The Early Republic: the constitution of the fifth century BCE (part 2)

The Conflict of the Orders of the Early Republic was not, as is often claimed, a struggle between the patricians and plebeians. It was actually a struggle between, on the one hand, the patricians and the elite among the plebeians, and on the other between the two elites together – patrician and plebeian – and the lower classes of the plebeians. While the patricians had a monopoly on public offices or at the very least tried to establish one, rich plebeians tried to break it and in doing so aimed to work together with the poorer plebeians. The latter suffered from excessive debt, which sometimes resulted in debt bondage. Citizens who could not pay a debt ran the risk of ending up as a nexus, a kind of hostage of the creditor. That creditor could be a patrician, but also a wealthy plebeian. This explains why on some occasions rich plebeians wanted to forge alliances with the poor of their own class, while on other occasions they stood side by side with the patricians. It is a fact that the Conflict of the Orders ultimately also influenced the Roman constitution.

Creation of the people’s tribunes

According to tradition the debt crisis of the plebeians had grown so bad at the start of the fifth century BCE that, in 494 BCE, the plebs packed their belongings and marched to the Mons Sacer, the Sacred Mountain on the other side of the river Anio just north of Rome. An alternative tradition claims this secession (secessio in Latin) was actually a march to the Aventine Hill, a part of Rome that was within the city walls, but had been excluded from the pomerium. The secession was a serious affair, but in the end the crisis was solved by allowing the plebeians to elect their own officials, the people’s tribunes (tribuni plebis). These tribunes were sacrosanct (sacrosanctus). Coercion against them, in whatever form, was strictly prohibited[1] and they could use their sacrosanctity to give aid (auxilium) to citizens and veto the decisions of other magistrates and fellow tribunes (intercessio). People’s tribunes could also table bills in the assembly of the plebs and let the plebs decide in – often politically charged – trials. This description of the office of tribune is accurate for the Late Republic, but tribunes are unlikely to have already functioned exactly like this in 494 BCE. The tribuneship was an office that evolved over the course of many years and grew organically, just like the Roman constitution itself did.

There is discussion about the original number of people’s tribunes. According to Livius there were initially two, Gaius Licinius and Lucius Albinus, who then co-opted three more.[2] A law of 457 BCE subsequently set the number of people’s tribunes at ten, while a Lex Trebonia of 448 BCE was said to have expressly forbidden co-optation. The rationale of the latter law was the fact that apparently sometimes patricians were co-opted, while the tribuneship had been intended as an exclusively plebeian office.[3] In spite of the Lex Trebonia, there was another attempt at co-optation of patricians in 401 BCE[4], an event which proves that it was not just wealthy plebeians preying at offices monopolised by the patricians, but that it could be the other way round as well. Election of people’s tribunes was, in any case, always the prerogative of the plebs. Over time, their assembly became the formal concilium plebis, which did not just choose the tribunes, but also adopted much legislation. Laws passed by the concilium initially only bound the plebs itself, but later their binding force was extended to the entire populus Romanus, at least since the Lex Hortensia of 287 BCE. Livius’ claim that this was already the case in 449 BCE[5] may be doubted.

The Law of the Twelve tables

According to tradition, 449 BCE was the year that the Decemvirate collapsed. The Decemvirate was a committee of ten (patrician) magistrates, the decemviri, that had been set up in 451 BCE to draft a Roman law code. The decemviri were led by Appius Claudius, a grandson of the Sabine Attius Clausus who had settled in Rome in 504 BCE with his family and clients, and who had been enrolled in the patrician class. Another decemvir was one Gaius Julius, a distant ancestor of Julius Caesar. The powers of the decemviri were unlimited, and while they were in office no consuls or people’s tribunes were elected. The men succeeded in drafting ten out of twelve law tables and had these ratified by the popular assembly. Originally they had been instructed to step down after a year, but the decemviri needed an extra year to complete the two missing tables. So Claudius got himself re-elected and, according to tradition, greatly influenced the election of the other nine decemviri. And then all hell broke loose, at least according to the story as it is told in the classical sources.

In this story the decemviri degenerated into genuine tyrants.[6] Instead of just producing the missing tables, they created a kind of Roman junta and terrorised the populace. Physical violence and murder were not uncommon, and the opponents of the decemviri, both patricians and plebeians, referred to them as the ‘ten Tarquinii’, a clear reference to the last Roman king, the Etruscan Tarquinius Superbus, and his relatives. There are striking similarities between the story told by historians such as Livius and that of the expulsion of the Tarquinii after the rape of Lucretia (Lucrece). Now it was Appius Claudius who committed a heinous crime involving the virgin girl Verginia, with the sole difference that she was not raped and that, instead of committing suicide, she was stabbed to death by her father.[7] Among the leaders of the opposition against the decemviri were Lucius Valerius Potitus and Marcus Horatius Barbatus, who after the fall of Claudius and his cabal became the new consuls. Rather coincidentally, after the expulsion of the Tarquinii in 509 BCE the consuls who replaced them were also called Valerius and Horatius. In the end it was a second secession of the plebs, this time definitely to the Aventine, that in 449 BCE caused the fall of the decemviri.[8] Once in office, the consuls Valerius and Horatius restored the power of the tribunes.

While the story of the decemviri is a moralistic tale about the abuse of power rather than true history, the Law of the Twelve tables can certainly be considered historical. The new laws were engraved in bronze tablets, which ensured that later historians were still able to consult them.[9] Modern historians, however, can only make use of the surviving fragments. In the tables, Roman citizens found rules about summoning parties and witnesses at trials (tables I and II) or paying debts (table III), but also about the killing of deformed children (table IV), guardianship for women (table V) and a ban on burying or cremating the dead in the city (table X). Tables VIII and IX dealt with what we would call criminal law. They contained rules about paying indemnities in cases of assault and libel, the treatment of thieves, witnesses making false statements and the bribing of judges. Scholars of Roman constitutional law will find the prohibition on putting people to death without a conviction in a trial relevant (table IX). The same goes for the ban on intermarriage between patricians and plebeians (table XI), a ban that was by the way quickly annulled by the Lex Canuleia of 445 BCE. Livius claimed that the Law of the Twelve tables was the source of all public and private law (fons omnis publici privatique iuris)[10], but that claim seems untenable as regards public law.

Other magistrates

According to tradition the creation of the tribunate was followed by assigning aides to the tribunes. These aides were the two plebeian aediles.[11] Their number remained stable at two, even though the number of people’s tribunes was increased to ten. The office of plebeian aedile was not open to patricians, unlike the office of curule aedile created in 367 BCE, for which eventually members of both classes were allowed to stand. While the plebeian aediles of the Early Republic were clearly ranked below the people’s tribunes, they actually outranked these tribunes in the cursus honorum of the Mid- and Late Republic. Young Roman noblemen usually held the office of tribune first and then proceeded to the aedileship. It was possible to skip the tribunate, and it is quite telling that the Lex Villia Annalis of 180 BCE did set a minimum age for aediles (probably 36), but not for people’s tribunes.

The word aedile (aedilis) derives from the Latin word for ‘temple’ (aedes), so it should not come as a surprise that these magistrates were charged with the maintenance of public buildings, but in time also with the maintenance of roads and the supervision of markets, the grain supply and certain games. A curiosity was the fact that they were allowed to flog actors; flogging Roman citizens was prohibited (in principle) at the start of the second century BCE.[12] The plebeian aediles were specifically responsible for organising the annual plebeian games (ludi plebeii) and for keeping the plebeian records, which were presumably kept in the temple of Ceres on the Aventine.[13] According to Dionysius of Halicarnassus, this temple had been inaugurated in 493 BCE, so shortly after the first secession of the plebs.[14] This helped create a strong bond between the temple and the plebs, and the bonds between the common people and the Aventine was strong as well. Not only was this hill the destination of at least one and perhaps even two secessions, but a Lex Icilia of 456 BCE was said to have granted plebeians permission to settle on the Aventine. Up until then the hill had probably mostly been inhabited by non-Romans.[15]

The fifth century BCE also saw the creation of the office of quaestor, a magistrate who chiefly had financial duties and responsibilities. Two quaestors administered the Roman treasury, the aerarium, which was kept in the temple of Saturn. As this temple was consecrated in 497 BCE[16], it seems likely that the first Republican quaestors were elected around this time.[17] In 446 BCE they are specifically mentioned for the first time in connection with the aerarium[18], and it is not inconceivable that up until 421 BCE administering the treasury was their sole task. In the latter year their number was doubled from two to four. The office, which up to then had been exclusively held by patricians, was opened to plebeians as well.[19] The increase in the number of quaestors must have been linked to an extension of their duties: two quaestors continued to administer the treasury in Rome, while two others became the financial aides of the consuls. In 409 BCE the first plebeian quaestors were elected. Their names were Quintus Silius, Publius Aelius and Publius Pupius.[20]

Senate

It is very likely that there was already a Senate during the Roman Age of Kings. Back then, senators were recruited from the nobility and served as the king’s trusted advisers. They were called the patres or ‘fathers’, and it is certainly no coincidence that the words patres and patricii (patricians) are related. During the Early Republic, most senators will have been patricians, making the Senate a – predominantly conservative – bastion of patrician power. However, there were certainly plebeian senators as well. It is possible that these were primarily to be found among the conscripti, the senators nominated after the expulsion of the Tarquinii to bring back the Senate to full strength.[21] In all likelihood, it was these senators that led the political fight to break the patrician monopoly on offices such as the consulship.

The duties and competences of the Senate were not codified anywhere, but the de facto power of this body was very large. The Senate was first and foremost an advisory council for the magistrates, especially the consuls. Senators gave advice on domestic affairs, but also on foreign policy, which in the fifth century BCE must above all have covered the relations with the peoples in and around Latium. As the consuls were from the same social class as the senators and took their place among them after their term of office had expired, Senate opinions were usually taken seriously. However, a determined consul could veto a Senate decision (senatus consultum)[22] and the Senate lacked the means to challenge or set aside such a consular veto. It was the popular assembly, and not the Senate, that adopted or rejected legislation. However, up until the beginning of the third century BCE the senators do seem to have had the right to refuse to ratify the election of a magistrate or a bill passed by the popular assembly.[23] After this right had been abolished, the Senate was left with an advisory role in the legislative process, the importance of which must definitely not be underestimated.

During the Late Republic the Senate could charge a consul to take all measures necessary to protect the Republic. The formula used for this decree was consul videret ne quid res publica detrimenti caperet. From the trial in 120 BCE against the murderers of people’s tribune Gaius Gracchus we may conclude that this Senate decree could be a justification for the killing Roman of citizens without a trial. Livius claims the formula cited above was already used by the Senate in 464 BCE, but our historian was probably anachronistic here.[24]

Popular assembly

The popular assembly was charged with the adoption of laws, the election of magistrates and the administration of justice. Under the Roman constitution there were in fact several different popular assemblies. First of all there was a difference between the assembly of the entire populus Romanus and that of the plebs Romana. The term comitia was often used for an assembly of the former, while an assembly of the latter was eventually referred to as the concilium plebis. A meeting of the plebs could only be called by a people’s tribune, while only curule magistrates could convene a meeting of the entire Roman people. The Roman people, and as a consequence the Roman plebs, had been divided into 30 curiae, 193 centuriae and – as of 495 BCE – 21 tribus, four urban and seventeen rural. Depending on the type of decision to be taken, either the entire people or the plebs got together as an assembly of the curiae, centuriae or tribus. The curiae were basically relics from the Age of Kings. Their creation was attributed to the first Roman king, Romulus, but during the Early Republic their role seems to have been purely ceremonial[25], much unlike that of the centuriae and tribus.

Creation of the centuriae was traditionally attributed to the sixth king, Servius Tullius (ca. 578-534 BCE). He was also credited with having created the four urban tribus (Esquilina, Palatina, Suburana and Collina). It was quite relevant whether a decision was taken by the comitia centuriata or the comitia tributa. As is discussed elsewhere in greater detail, the former assembly was dominated by the knights (equites) and the first property class, who together controlled 98 centuriae. It follows that the assembly was dominated by the wealthiest Romans. The comitia tributa, in its turn, was a slightly more democratic institution and gave more influence to ordinary citizens. A man’s tribus was determined in the census and it seems that the hereditary principle was applied: sons were enrolled in their fathers’ tribus. And yet, it is necessary to put the influence of ordinary people somewhat into perspective. The four urban tribus were much larger than their rural counterparts and it was common to enrol the urban poor in one of these tribus. The censors had the power to relegate a Roman citizen to an urban tribus and it was said that the former dictator Mamercus Aemilius was the first to have suffered this fate in 434 BCE.

Several of the much smaller rural tribus seem to have been linked to certain patrician gentes[26]: Aemilia, Claudia, Cornelia, Fabia, Horatia, Papiria, Sergia and even Romilia, a rather obscure patrician family that spawned just a single consul, Titus Romilius in 455 BCE. The tribus Clustumina was probably linked to the city of Crustumerium, north of Rome, which was conquered in 499 BCE. It is possible that the inhabitants of this city had been granted Roman citizenship and were enrolled in the same tribus. In time however, the geographical connotations of the term tribus, which could be translated as ‘district’, were lost. The origins of some of the other tribus, such as Pollia, Pupinia and Voltinia, are shrouded in mystery. Pupinia could refer to a region in Latium not far from Rome[27], while the other names may have been related to rather obscure gentes from the Ages of Kings of which the male members never reached the consulship during the Early Republic (it should be noted that a gens Pollia did exist).

As early as the fifth century BCE a shift is visible from decision making in the assembly of the centuriae to decision making in the assembly of the tribus. The Lex Publilia of 471 BCE for instance granted the right to elect people’s tribunes to the assembly of the tribus, which suggests that this election had previously been the prerogative of the centurial assembly (or, in theory, the assembly of the curiae).[28] If we take a look at legislation, we may note that the Law of the Twelve tables was still passed by the comitia centuriata.[29] It is plausible that shortly after legislative issues were already mainly dealt with by the comitia tributa and concilium plebis. During the Late Republic all legislation was passed by either the comitia tributa or the concilium plebis, while these assemblies also elected the majority of the magistrates. Only the election of the consuls, censors and – since 367 BCE – praetors remained the prerogative of the comitia centuriata. Until the mid-second century BCE this assembly also decided on matters of war and peace. The declaration of war against Carthage in 149 BCE, which led to the Third Punic War, may have been the last example of the comitia centuriata making use of this power, which was soon de facto transferred to the Senate.

Provocatio and regnum

To conclude this post, I will discuss two more concepts that played a significant role during the Mid- and Late Republic, but of which the roots probably go back to the Early Republic. These are the concept of provocatio (‘appeal’) and regnum (kingship or sole rulership).

Provocatio offered citizens the means to appeal to the people if they were threatened with coercion (coercitio) by a magistrate. The effectiveness of the instrument was highly dependent on the people’s tribunes, as it was the tribunes that – using their sacrosanctity – provided the actual protection. According to tradition, the consul Publius Valerius Poplicola had instructed the popular assembly to adopt a law on provocatio as early as 509 BCE. This law was set aside by the decemviri (see above), but was then supposedly reintroduced by the consuls Lucius Valerius Potitus and Marcus Horatius Barbatus. The historicity of the laws of 509 and 449 BCE is rather doubtful. The right of provocatio may in fact have been introduced much, much later, by the Lex Valeria of 300 BCE.[30] It is furthermore remarkable that in each of the three cases a member of the Valerius family was involved: the consul Marcus Valerius Maximus Corvus was the man behind the law of 300 BCE. The right of provocatio was subsequently extended at the start of the second century BCE by three Leges Porciae. The right could now be invoked up to a mile outside the city and also applied if a citizen was threatened with flogging. And yet it would be wrong to completely discard the laws of 509 and 449 BCE as stories invented by later historians. Table IX of the Law of the Twelve tables does contain a provision that is highly reminiscent of provocatio, i.e. the rule that no citizen was to be executed without being convicted by the assembly (nisi per maximum comitiatum).[31]

During the Late Republic it was widely held that killing people who aspired to become king was the right thing to do, even if these people had not resorted to violence yet, nor launched their coup against the Republic. The thought that seeking a regnum was a capital offence derived from a series of incidents during the Early Republic of the fourth, fifth and sixth century BCE. Almost all of these stories sound like they were at least partially made up, and they were certainly embellished later, but the only thing that mattered during the Late Republic was that people strongly believed in the morals and principles conveyed by the stories. As early as 509 BCE, the aforementioned Publius Valerius Poplicola was said to have introduced a law that declared sacer people seeking the kingship. Such people were effectively outlawed.[32] Spurius Cassius, the consul of 486 BCE, was accused of wanting to buy a throne for himself with his land reforms. Immediately after his term of office had expired he was convicted and executed.[33] Whether he was killed by his own father or as a result of a conviction for perduellio (high treason) by the Roman people matters less than the fact that it was apparently felt that Cassius deserved to die because of his aspirations.

The death of the wealthy knight Spurius Maelius was also deemed a justifiable homicide. During a famine he freely distributed grain and was therefore suspected of seeking a regnum. This suspicion was somewhat justified, as a cache of weapons was found in his house.[34] In 439 BCE Maelius was killed without a trial by the magister equitum Gaius Servilius Ahala, lieutenant of the dictator Cincinnatus. In spite of the Law of the Twelve tables and laws on provocatio, the murder was thought to be justified.[35] The final example dates from the early fourth century BCE. Marcus Manlius Capitolinus had won everlasting fame in 387 BCE when he defended the Capitoline Hill against a horde of Celts that had defeated a Roman army and had taken the city. A few years later we find Manlius as a champion of the common people and a firm opponent of debt laws and debt bondage. His popularity grew so large that the elite began to view him as a threat and readily accused him of seeking a regnum. Several versions of the trial that followed have been preserved, but in the end he was thrown from the Tarpeian rock[36], literally becoming a ‘fallen hero’.[37]

Sources

Primary sources

• Cicero, De legibus III.4.11;
• Dionysius of Halicarnassus, Books 6, 9 and 11;
• Livius, Ab urbe condita, Books 2-5, 6 and 9-10.

Secondary sources

• Andrew Lintott, The Constitution of the Roman Republic, chapters IV-VI and VIII;
• Philip Matyszak, Chronicle of the Roman Republic, p. 46-65;
• Timothy Venning, A Chronology of the Roman Empire, p. 34-56.

Notes

[1] In 473 BCE, the tribune Gnaeus Genucius was said to have been murdered in spite of his inviolability (Livius 2.54). Dionysius of Halicarnassus, however, claims the man died of natural causes (9.8).

[2] Livius 2.33.

[3] Livius 3.30 and 3.65.

[4] Livius 5.10.

[5] Livius 3.55.

[6] See Livius 3.32-3.55 and Dionysius of Halicarnassus 11.1-11.45.

[7] Marcus Claudius, one of Appius’ clients, claimed that Verginia was one of his slaves. When an intervention by Appius led to the girl being assigned to this Marcus Claudius, her father took a butcher’s knife and stabbed her to death, thereby saving her honour.

[8] Appius Claudius died in prison. He was either murdered by order of the people’s tribunes (whose office had been restored) or committed suicide by hanging before he could be brought to trial (Dionysius of Halicarnassus 11.46). His possessions were forfeited (Livius 3.58).

[9] See Philip Matyszak, Chronicle of the Roman Republic, p. 65.

[10] Livius 3.34.

[11] According to Dionysius of Halicarnassus 6.90.

[12] Andrew Lintott, The Constitution of the Roman Republic, p. 130. The Leges Porciae gave Roman citizens a right of appeal if they were threatened with flogging.

[13] Lintott, p. 129.

[14] Dionysius of Halicarnassus 6.94.

[15] Livius 3.31. Tradition held that, during the Age of Kings, the populations of the defeated Latin cities of Politorium, Tellenae, Ficana and Medullia were deported to the Aventine.

[16] Livius 2.21.

[17] There may have already been quaestors during the Age of Kings (see Lintott, p. 134).

[18] Livius 3.69.

[19] Livius 4.43.

[20] Livius 4.54.

[21] Livius 2.1. The senators were addressed as patres et conscripti.

[22] Livius 5.9.

[23] See Lintott, p. 37 and 86. For an example see Livius 6.42.

[24] Livius 3.4.

[25] After the election of the consuls, the curiae for instance adopted a lex curiata, which may have conferred upon elected magistrates their imperium and the right to interpret the auspicia. However, the precise significance of the lex curiata is unknown and fiercely debated.

[26] For a complete list see Timothy Venning, A Chronology of the Roman Empire, p. 35.

[27] See Livius 9.41.

[28] Livius 2.56-2.58.

[29] Livius 3.34, 3.37 and 3.55.

[30] See Livius 2.8, 3.55 and 10.9.

[31] Cicero, De legibus III.4.11.

[32] Livius 2.8.

[33] Livius 2.41.

[34] Livius 4.13-4.14.

[35] The story is also told by Dionysius of Halicarnassus (Book 12.1-12.4). He refers to an alternative version of Maelius’ death, in which Servilius Ahala is not the dictator’s aide, but a private individual. This version of the story can be traced back to Lucius Cincius Alimentus (a historian from the late third century BCE) and Lucius Calpurnius Piso Frugi, the consul of 133 BCE and censor of 120 BCE.

[36] Livius 6.20.

[37] In Livius 6.17 and 6.18 the stories of Cassius, Maelius and Manlius are explicitly linked.