The Early Republic: the constitution of the fifth century BCE (part 1)

Towards the end of the sixth century BCE the Romans abolished their monarchy. The precise circumstances leading to this decision will probably remain shrouded in mystery forever, but it seems highly unlikely that anger about a crime committed by the son of the last king was the main reason to change the entire system of government. In any case, it is a lot more plausible that the last king was expelled by a fellow Etruscan king. But however this may be and whether the Roman monarchy had degenerated into a tyranny or not, the Romans replaced their monarchy with an aristocracy, thus giving credit to the Greek historian Polybius’ theory about a cycle of forms of government. The Roman aristocracy was dominated by magistrates selected from a relatively small group of noblemen, who nevertheless enjoyed a popular mandate. The magistrates exercised their duties alongside an authoritative Senate and the assembly of the populus Romanus. The Romans certainly did not have a blueprint for their new constitution. After the abolition of the monarchy, they could not simply pull a document off a shelve and introduce it as the basic law of the young Republic. On the contrary, the Roman constitution grew organically and was constantly subject to change. In this post I will focus on developments in the sixth and fifth century BCE.

The higher magistrates

After the expulsion of the kings, the highest civil and military authority rested with two annually elected magistrates. In the sources they are called consuls, but the term is used somewhat anachronistically. Originally, the consuls were called ‘praetors’[1], a word that may derive from the Latin verb prae-ire, ‘to lead the way’. It is a word that refers to the military duties of a praetor.[2] At some unspecified point in time the term ‘consul’ was introduced, a term that either refers to the process of consulting the Senate and people (which the consuls were expected to do), or to the fact that the consuls were “yoked together (…) like oxen under the plough”.[3] It is now no longer possible to establish with any certainty when the name change was effected, but there are several possibilities. According to a late source (Zonaras), the praetors were relabelled as consuls from the consulate of Valerius and Horatius, that is from 449 BCE.[4] It is, however, also possible that the name change took place around 367 BCE, when the office of praetor as a magistrate with mainly legal duties and responsibilities was created. By the start of the third century BCE the term consul must have been fully internalised: the tomb of Lucius Cornelius Scipio Barbatus (see the image above) has an inscription in archaic Latin that states that the deceased had been ‘consol’. Barbatus held the office in 298 BCE. For the sake of simplicity I will only use the term ‘consuls’ for the two highest magistrates.

The consul was first and foremost commander of the army. For much of the fifth century BCE the consuls fought foreign wars against peoples such as the Sabines, the Volsci and the Aequi. These wars must have occupied them for the greater part of the year. When the consuls were in Rome, they exercised supreme civil authority. Their power was symbolised by their folding chair (the sella curulis) and by the twelve lictors that accompanied them. The lictors carried bundles of rods with them (fasces), and once outside Rome an axe was added to the bundle as a sign of the power (imperium) of these magistrates. If a consul was obstructed in the exercise of his duties, the lictors could in theory resort to the use of force to protect him. However, as there were only twelve of them, it should be clear that they did not stand a chance against a mob, apart from the fact that – in spite of the fasces they carried – the lictors were basically unarmed. We may therefore conclude that the consul’s job was not to enforce public order. His tasks did include consulting the Senate about domestic affairs and relations with other peoples in Latium. A consul could furthermore table bills in the popular assembly and ask the people to vote for war or peace. In some cases the consuls were charged with investigating certain matters or serving as judges with regard to sensitive issues. However, as the consuls spent much of the year campaigning, many of these tasks must have been delegated to other magistrates.

The fact that each year two consuls were chosen is often seen as part of a system of constitutional ‘checks and balances’. It is certainly possible that the element of collegiality did indeed work as a ‘check’ and prevented unbridled exercise of power. However, there are very few indications that this was in fact the rationale of the system. A consul did not need his colleague’s consent to take decisions, and while we have compelling evidence that people’s tribunes (see part 2) could veto other magistrates’ and each other’s decisions, this is far from certain as regards consuls. We do read about consuls striking decisions (consulta) of the Senate with a veto[5], but when it comes to decisions of consular colleagues it is perhaps more plausible that consuls simply reversed their colleagues’ decisions if they disagreed.[6] This happens to match quite well with the fact that the consuls, if they were both in Rome, held the fasces in alternate months and thus took turns in exercising the highest civil authority of the Roman state.[7]

An important competence of the consuls was the right to interpret the omens or auspices (auspicia). Taking the auspices involved studying the flight of birds, interpreting the appetite of the sacred chickens or drawing conclusions from the occurrence of thunder and lightning. Although the Romans had specialised priests called augures who could also interpret such signs, it was not strictly necessary to have a religious background to give authoritative interpretations of omens. What mattered was that a consul’s power to take the auspices stemmed from the fact that he was an elected magistrate.[8] It was, by the way, quite possible for a consul to be an augur at the same time. Consuls had other religious duties as well. They were for instance required to be present at the Feriae Latinae, the annual Latin festival for Jupiter Latiaris, which was held in April on Mons Albanus.[9] If no consul was present in the city, civil authority devolved onto a city prefect, the praefectus urbi. The roots of this office may go back to the Age of Kings.

In extreme circumstances the consuls could nominate a magistrate with extraordinary powers: the dictator. This magistrate was accompanied by 24 lictors. The dictator went without a colleague, although he did have a lieutenant called the magister equitum or master of horse. The imperium wielded by a dictator was larger than that of all the other magistrates. These magistrates remained in office, although in the exercise of their duties and powers they were subordinate to the dictator. Given his immense powers, a dictator was expected to lay down his office again as quickly as possible, preferably after a few days or weeks. At some point the maximum term was set at six months. Originally the dictator was known as the magister populi, a term that indicates that he was required to lead the infantry, while the magister equitum assumed command of the cavalry. As he was expected to remain with the foot soldiers, a dictator needed special dispensation to mount a horse. Dictators were usually selected from the former consuls. According to tradition Titus Larcius was the first dictator, nominated in 501 BCE during a war with the Latins. A rival tradition claims that Manius Valerius was the first dictator.[10]

In 443 BCE the office of censor was created. These elected magistrates conducted the census, i.e. they counted the number of (male?) Roman citizens, assessed the value of their property and enrolled them in one of several property classes. In doing so, the censors furthermore decided who belonged to the senatorial and equestrian orders (senatores and equites). It seems likely that this task had previously been performed by the consuls. In 435 BCE the censors were assigned an office on the Field of Mars, the so-called Villa Publica. Starting in the Mid-Republic this building seems to have also been used as a hotel to accommodate foreign guests, but this was probably not yet the case in the fifth century BCE. The Lex Aemilia of 434 BCE supposedly reduced the term of office of a censor from the original five years to just eighteen months. According to tradition this piece of legislation had been proposed by the dictator Mamercus Aemilius, and the censors were said to have punished him severely for this by relegating him to a lesser tribe and increasing his assessment eightfold.[11] Two results of censuses from the fifth century BCE have been preserved, although the numbers are not very reliable and we simply do not know who exactly were counted. There were supposedly 104,714 Roman citizens in 465 BCE and 117,319 in 459 BCE.[12]

The conflict of the Orders

Before proceeding to the lower magistracies, Senate and popular assembly in part 2, let us first take a look at the so-called ‘conflict of the Orders’. According to our sources Rome in the fifth century BCE was plagued by a protracted feud between, on the one hand, the original aristocracy, the patricians, and on the other the common people, the plebs. The conflict can be summarised as follows. The patricians were said to have monopolised all public offices and priesthoods. Moreover, they sided with the creditors who bled the common people dry and also held a disproportionate part of the public land (ager publicus) annexed by Rome during wars with neighbouring peoples. It should be noted that the stories about the conflict of the Orders were written down centuries later by historians, who no doubt interpreted them in the light of the events of their own age. This applies especially to the stories about the unfair distribution of land, which are strongly reminiscent of the revolutionary land reforms proposed by the brothers Tiberius and Gaius Gracchus between 133 BCE and 121 BCE. Nevertheless, there is no reason to discard the conflict of the Orders of the fifth century BCE as unhistorical. We must, however, remain critical of some of the claims made in our sources.

According to the traditional story, consuls could originally be elected only from the patricians. Objections against the election of plebeians were partly religious in nature, for it was believed that only patricians held the divine right to interpret the auspicia: only they were in contact with the sacra, the things sacred.[13] As a consequence, only patrician consuls were chosen during the first six decades of the Republic, until in 445 BCE a compromise was reached and the people were allowed a choice: Roman citizens could from now on elect either two patrician consuls or a number of military tribunes of consular rank (tribuni militum consulari potestate). These consular tribunes had the same powers as consuls, but their number was always greater than two. Livius claims the maximum number was six, although for the year 403 BCE he mentions the election of eight consular tribunes.[14] Both patricians and plebeians could hold the office of consular tribune, but according to tradition the first plebeian consular tribune was elected as late as 400 BCE. To add insult to injury, this Publius Licinius Calvus was also said to have been a rather elderly senator who had never held a public office before in his life.[15]

There are several problems with this classical story. First of all, the creation of the consular tribunes seems to have been influenced by the many wars fought by Rome in the fifth century BCE rather than by the conflict of the Orders. The Romans were simply in dire need of more military commanders to fight wars on multiple fronts. A second – and much more serious – problem is that, in spite of the alleged patrician monopoly on political offices, we actually find a lot of names among the consuls and consular tribunes of the fifth century BCE that evidently belonged to plebeian families, at least during the Mid- and Late Republic. The prime example is Lucius Junius Brutus, the legendary founder of the Roman Republic and the consul of 509 BCE. The gens Junia was a plebeian clan, and it is quite telling that the next Junius in the fasti consulares enters the stage as late as 325 BCE, and as a plebeian to boot. Members of the gens Sempronia served as consul or consular tribune in 497, 491, 444, 425, 423, 420 and 416 BCE, while in the lists we also find members of the gens Atilia (in 444 BCE), the gens Minucia (in 497, 492, 491, 458 and 457 BCE) and the gens Genucia (in 451 and 445 BCE).

There are basically three ways to explain these (apparent) inconsistencies. A first possibility is that the original fasti consulares have been lost, for instance during the sack of Rome by the Celts (‘Gauls’) led by Brennus in 387 BCE. After the sack the lists of magistrates had to be reconstructed, and as a consequence they must be regarded as notoriously unreliable as far as the fifth century BCE is concerned. It is therefore simply impossible to say with any certainty who were the consuls and consular tribunes during this century, and equally impossible to establish whether these men were exclusively patrician.

A second possibility is that the names are in fact correct, and that the members of the gens Sempronia, gens Atilia, gens Minucia and gens Genucia that reached the consulship or became consular tribunes were all patricians.[16] During the Mid- and Late Republic there were multiple Roman gentes that had both patrician and plebeian branches. Famous examples are the gens Claudia and the gens Servilia. The former was originally not even a Roman clan: its founder Attius Clausus was a Sabine who had migrated to Rome with his family and clients in 504 BCE. He had acquired Roman citizenship and had taken the name Appius Claudius. Later he also became a member of the patrician order, with the sources suggesting Appius was in fact co-opted by his peers (cooptatio in Latin).[17] It follows that the patricians did not entirely exclude outsiders. Conversely, there were also patricians who underwent the so-called transitio ad plebem and joined the plebeian order.[18] This transition may at first glance appear odd, but the fact that gradually more and more offices were opened to plebeian and even a form of affirmative action was introduced may have been an incentive for patricians to join the plebs. This might explain why in the fifth century BCE we find patrician Sempronii and Minucii, and in 304 and 305 BCE plebeians with the same family name.

A third and final possibility is a bit of a compromise between the other two. It may be argued that in the fifth century BCE the patricians did not so much as have a monopoly on the consulate, they rather tried to establish it.[19] In most cases they were successful, but sometimes the popular assembly chose plebeian candidates as consuls or consular tribunes. It should be noted that plebeians were not necessarily part of the poor and oppressed. We know there were plebeian senators (including the aforementioned Publius Licinius Calvus) and several more plebeian equites or knights. Wealthy plebeians wanted access to the offices of consul, consular tribune and censor, and in response to these attempts and occasional plebeian success the patricians tried to monopolise these offices. In doing so they seem to have won a right for the Senate to refuse to ratify the results of an election if an elected plebeian candidate was deemed unacceptable. As long as the Senate was still dominated by patricians this could be a serious political weapon.[20]

The desire to establish a patrician monopoly on the higher magistracies may have been the reason to prohibit marriages between patricians and plebeians in the Law of the Twelve tables of 451-450 BCE.[21] Just a few years later this ban was annulled by the 445 BCE Lex Canuleia, but for the remainder of the fifth century BCE the patricians continued their attempts to get only members from their order elected to the highest political offices. The plebeians, both rich and poor, did have their own tribunes to oppose them. These tribuni plebis will be discussed in the next post in this series.

Sources

Primary sources

• Dionysius of Halicarnassus, Book 11.53-11.62;
• Livius, Ab urbe condita, Books 2-5;
• Zonaras, Book 5.19.

Secondary sources

• Rachel Feig Vishnia, The transitio ad plebem of C. Servilius Geminus;
• Andrew Lintott, The Constitution of the Roman Republic, chapters IV and VII;
• Philip Matyszak, Chronicle of the Roman Republic, p. 46-65;
• Timothy Venning, A Chronology of the Roman Empire, p. 34-56;
• Chr.L. van der Vliet, Een geschiedenis van de klassieke Oudheid, p. 155, 237 and 245.

Notes

[1] Livius 3.55.

[2] Varro, De lingua Latina V.80. The general’s tent was called the praetorium, even when it was used by a consul.

[3] Philip Matyszak, Chronicle of the Roman Republic, p. 44.

[4] Zonaras (excerptor of Cassius Dio), Book 5.19.

[5] Livius 5.9.

[6] See the year 172 BCE for a dubious example of a consular veto against another consul’s decision.

[7] Livius 2.1.

[8] Andrew Lintott, The Constitution of the Roman Republic, p. 103.

[9] In 176 BCE the consul Gnaeus Cornelius Scipio Hispalus died after attending the Feriae Latinae.

[10] See Livius 2.18.

[11] Livius 4.24. Lintott p. 117 does not believe that the term of office was really reduced from five years to eighteen months. His position is that it is much more likely that the censors originally remained in office until the census had been concluded. They did not need five years for that. A maximum term was later introduced and set at eighteen months.

[12] Livius 3.3 and 3.24. The numbers given are conspicuously precise. It is not at all clear whether all Roman citizens were counted (including women and children) or just the adult men (starting at the age of 16-17) who were eligible for military service.

[13] E.Chr.L. van der Vliet, Een geschiedenis van de klassieke Oudheid, p. 155, 237 and 245.

[14] Compare Livius 4.16 to Livius 5.1. The Roman historian may simply have made a mistake, as the Marcus Furius Camillus and Marcus Postumius Albinus mentioned by him were (also) censors in 403 BCE. See Dionysius of Halicarnassus 11.53-11.62 for more information about the consular tribunes.

[15] Livius 5.19.

[16] Livius writes about Gaius Sempronius Atratinus, consul in 423 BCE, and his ‘patrician spirit’ (4.42).

[17] Livius 4.3-4.4.

[18] Rachel Feig Vishnia, The transitio ad plebem of C. Servilius Geminus.

[19] See Timothy Venning, A Chronology of the Roman Empire, p. 38.

[20] See Livius 6.42 for a refusal of the Senate (i.e. the patricians) to ratify the election of a plebeian consul in 366 BCE. The Senate also had the right to veto legislation adopted by the comitia centuriata, which it lost as a result of the Lex Publilia of 339 BCE. See for the Senate’s right of veto Lintott p. 37 and 86.

[21] See table XI (Matyszak, p. 65).