The Early Republic: the constitution of the fourth and third century BCE (part 1)

In the late sixth century BCE the Romans traded in their monarchy for a republican system of government. In the century that followed, the Roman Republic was dominated by the class of the patricians, the ancient Roman nobility of which the members had held the most important civil and religious offices since the Age of Kings. The patricians tried to justify their monopoly on public offices, and especially the consulship, by claiming a special relationship with the sacra, the world of things sacred. In the fourth century BCE the patrician monopoly was broken in favour of the members of the other social class in Rome, that of the plebeians. The opening of the consulship to plebeians in 367 BCE can be considered a milestone. However, we should keep in mind that only the elite among the plebeians were actually able to reach the highest public offices. As a consequence, the dismantling of the patrician monopoly led to a new aristocracy rather than to a more democratic government. A new mixed patrician-plebeian nobility emerged, the nobilitas.

Opening up the consulship

In the fifth century BCE the patricians had a monopoly on the consulship. There is debate about whether they held this monopoly from the start or managed to establish it over time, but that matter is discussed elsewhere. The only thing relevant here is that in 445 BCE a compromise was reached and the people were given a choice: Roman citizens could either elect two patrician consuls or opt to choose consular tribunes (tribuni militum consulari potestate), of which there could be more than two. Consular tribunes could be plebeians, but according to tradition the election of the first plebeian consular tribune, Publius Licinius Calvus, took place as late as 400 BCE. Then there was a lot of turmoil in the early fourth century BCE. Rome conquered her arch-rival, the Etruscan city of Veii, but was subsequently overrun herself by a band of marauding Celts. Although the Romans eventually succeeded in dealing with the external threats, there were internal tensions that required their attention as well. The debts of the common people had by now reached staggering heights. Not just the simpler plebeians, but also the preeminent members of this class often found themselves unable to pay their debts and as a consequence ended up in debt bondage.

In these difficult times, two reformers, Gaius Licinius Stolo and Lucius Sextius, were elected as people’s tribunes in 376 BCE. Both men wanted to solve the debt crisis, introduce restrictions with regard to land ownership and open the consulship to plebeians. As they faced stiff opposition, they used their right of veto for five years in succession to prevent the election of curule magistrates (375-371 BCE), at least according to Livius.[1] It is generally assumed that this anarchy was made up later to explain gaps in the lists of magistrates[2], but there is no need to doubt the size and seriousness of the social problems in Rome. Stolo and Sextius were said to have been elected people’s tribune for ten years in a row. They ultimately succeeded in passing the legislation that made the desired reforms possible. The Lex Licinia Sextia of 367 BCE led to debt relief and stipulated that no citizen was allowed to possess more than 500 iugera of public land (ager publicus). Moreover, the new law stipulated that of the ten Keepers of the Sibylline Books – the decemviri sacris faciundis – five had to be patrician and the other five plebeian. But the most important element of the Lex Licinia Sextia was the opening of the consulship to the plebs. There was even a provision that one of the consuls had to be a plebeian: an early form of affirmative action.[3]

The year after the adoption of his law, Lucius Sextius served as the first plebeian consul. Gaius Licinius Stolo then became consul in 361 BCE. But although one of the consulships had been reserved for a plebeian candidate, it frequently happened that two patricians were elected. This was the case in the years 355-353 BCE, 351 BCE, 349 BCE and 343 BCE.[4] Apparently this part of the Lex Licinia Sextia was not working properly, and presumably this was because of obstruction by the patricians. The patricians referred to a provision in the Law of the Twelve table of 451-450 BCE that stipulated that “whatever the people ordain last shall be legally valid”, an early reference to the lex posterior principle.[5] So if the people elected two patrician consuls, then that decision overruled a law previously passed by the people that stipulated that one of the consuls had to be a plebeian. Apparently patrician influence in the comitia centuriata was still sufficiently large to have the assembly elect only patrician consuls. The Roman system of patronage and the absence of a secret ballot are likely to have contributed to this phenomenon.

In the end, the patricians were only able to delay the political breakthrough of the plebeian elite. In 342 BCE the people’s tribune Lucius Genucius tabled new bills confirming and complementing the Lex Licinia Sextia that had been adopted 25 years previously. The Lex Genucia did not just prohibit interest on loans[6] – a prohibition that, by the way, proved to be unenforceable – but also introduced several political reforms. It was now prohibited to hold the same office twice within a period of ten years and also to hold two different offices in the same year. The new law again stipulated that one of the consuls had to be a plebeian. A provision was added that both could be plebeian.[7] The Lex Genucia proved to be of great value, although the Romans did not always respect the required decennium between two consulships. What did happen, was that as of 342 BCE they elected at least one plebeian consul each year. Although it was allowed to elect two plebeians, this had to wait until 172 BCE. In the 170 years in between the Romans – always a traditional people – stuck to the practice of electing one patrician and one plebeian. When in 215 BCE that tradition was about to be broken with the election of two plebeians, religious objections were quickly raised and bad omens were cited as a reason to invalidate the election and have at least one patrician chosen as consul.

Praetor and curule aedile

In 367 BCE the office of praetor had been created as compensation for opening the consulship to plebeians. Initially only patricians could serve as praetors.[8] Now it should be noted that the consuls were originally also called praetors[9], but the praetor created in 367 BCE was primarily a judicial magistrate. He did not give rulings in legal cases himself, but presented the litigants with formulas (formulae) about which one or more judges (iudices) had to give a decision.[10] Starting in the second half of the second century BCE the praetor also presided over the permanent courts (quaestiones) in Rome, the first of which was set up in 149 BCE. Roman politicians often held the praetorship after serving a term as consul; this was a common practice until well into the third century BCE and did not actually change until the Lex Villia Annalis of 180 BCE set minimum ages for several public offices and streamlined the system of the cursus honorum.

Although primarily created as a judicial magistrate, we see a praetor commanding an army as early as 350 BCE.[11] Later this became ever more common, and eventually the number of praetors was raised from one to two in 242 or 241 BCE, from two to four in 227 BCE, from four to six in 197 BCE and from six to eight under Sulla in the late 80s BCE. These changes were all related to Roman territorial expansion and the creation of Roman provinces. As provincial governor the praetor obviously commanded troops and also served as the highest civil authority. In Rome itself there was a distinction between the praetor urbanus and praetor peregrinus. The latter dealt with legal cases in which non-Romans (peregrini; ‘strangers’) were involved. The patrician monopoly on the praetorship lasted a mere thirty years. In 337 BCE Quintus Publilius Philo served as the first plebeian praetor.[12]

The patrician monopoly on the office of curule aedile (aedilis curulis) was presumably broken even earlier. The curule aediles were created as counterparts to the plebeian aediles, who had been elected since the early fifth century BCE as aides to the people’s tribunes. Gradually the tasks of the latter aediles had been extended. They were for instance charged with maintaining public buildings (especially temples), supervising markets and organising certain games. The latter task seems to have been one of the main reasons to create curule aediles, as they were responsible for organising the annual Ludi Romani, while the plebeian aediles were responsible for the Ludi Plebeii. The office of aedilis curulis was more prestigious than its plebeian counterpart and it was presumably originally intended exclusively for patricians. Soon, however, patricians were elected in one year and plebeians in the next. In the same passage Livius mentions that not much later the office was opened to members of both classes, and this is clear evidence that the rotation system was in force no longer than a couple of years.[13] Although it was possible for a young man from a noble plebeian family to hold both aedileships in succession, this was not very common, the most famous example being Gaius Terentius Varro, the consul of 216 BCE.

Dictator and censor

The patrician monopoly on the offices of dictator and censor was abolished shortly after the consulship was opened to plebeians. In 356 BCE Gaius Marcius Rutilus served as the first plebeian dictator and in 351 BCE as the first plebeian censor.[14] A dictator was traditionally assisted by a master of horse (magister equitum), and the first plebeian to hold that office had been nominated as early as 368 BCE.[15] As the dictator wielded almost unlimited powers, he was still often appointed whenever the state was in grave danger because of a foreign war or domestic tensions and the dictator had to take charge of the army. However, starting in the fourth century BCE we see the dictator being charged with other duties as well, such as presiding over elections[16], giving the starting signal at the Ludi Romani[17] or leading certain investigations.[18] A very special task for which a dictator was sometimes appointed was the driving of a nail (clavum figere) in the Temple of Jupiter Optimus Maximus on the Capitoline Hill.[19] This ritual is mentioned for the first time for the year 363 BCE, but it was much older and had probably fallen into disuse. The ritual was carried out on the idus of September in the cella dedicated to Minerva. Originally the driving of a nail must have marked the passing of another year, but the ritual may also have been related to combating plagues.

The duties of the censors, first elected in 443 BCE, did not change much over the course of the fourth and third century BCE. The censors conducted the census, i.e. they counted the (male) Roman citizens, assessed the value of their property and enrolled them in one of several property classes. In doing so the censors also determined which citizens became senators and members of the order of the knights (equites). Initially the censors had a large degree of freedom to nominate senators and strike them from the roll again, but the Lex Ovinia of 318 BCE somewhat limited their powers. It stipulated that several former magistrates were to be admitted to the Senate automatically. These magistrates in any case included the consuls and praetors, as well as dictators and masters of horse if these had not previously served as consul or praetor. Having held the curule aedileship was probably also sufficient to be enrolled in the Senate by the censors.[20] Former plebeian aediles, people’s tribunes and quaestors had to wait much longer for a seat in the Senate. It was not until the time of Sulla that former quaestors became eligible.[21]

Censors worked in pairs and it was obviously possible for one of them to die while in office. Until the beginning of the fourth century BCE it was common practice to elect a censor suffectus in such a case. After all, suffect consuls were elected as well. Later the election of a single new censor was abolished on religious grounds, as the sack of Rome by the Celts in 390 or 387-386 BCE took place while a censor suffectus was in office. A new practice was then introduced, which saw the remaining censor lay down his office and the election of two new censors.[22] A Lex Publilia of 339 BCE stipulated that one of the censors had to be a plebeian while both could be, but the election of two plebeian censors had to wait until 131 BCE. By then, censors were usually former consuls, but in the fourth century BCE the order of the offices within the cursus honorum was not yet tightly fixed. Eminent statesmen such as Marcus Furius Camillus and Appius Claudius Caecus served as censors before they acquired the consulship.[23]

Other offices and the vestiges of the patrician monopoly

Together with the offices of praetor and curule aedile, the duumvir navalis was the third office created by the Romans in the fourth century BCE. The first duumviri were elected in 311 BCE.[24] The office was open to plebeians from the start and its creation was probably motivated by the Roman desire to gain control of the seas. In the middle of the fourth century BCE Latium had been attacked by Greek pirates. At the end of the Latin War (340-338 BCE) Rome had confiscated ships from Antium and in 313 BCE she founded the island colony of Pontiae. It was clear that the Romans had taken an interest in the sea, but the duumviri navales do not seem to have been a raging success. During large naval battles, such as those of the First Punic War, the Roman fleets were usually commanded by consuls. The office fell into disuse in the third century BCE, but was briefly revived in 181 BCE in order to have the duumviri fight Illyrian and Ligurian pirates. Not much later the office fell into oblivion.

The Roman army traditionally had a number of senior officers called military tribunes (tribuni militum). The military tribunes must be distinguished from the consular tribunes (tribuni militum consulari potestate) that were often elected between 445 BCE and 367 BCE. ‘Ordinary’ tribunes – six in each legion – were initially appointed by the consul or consular tribune, but as of 362 BCE the first six were elected by the people in the comitia tributa. Starting in 311 BCE sixteen out of twenty-four tribunes of the first four legions were elected and as of 207 BCE all twenty-four.[25] The tribunes of the other legions were appointed by their commanders and were called tribuni Rufuli. They were named after the people’s tribune Rutilius Rufus who in 169 BCE had drafted a bill about their legal position.

After the fourth century the Romans no longer created new offices. They did frequently raise the number of magistrates.[26] I already mentioned the increase in the number of praetors above, and an even better example is the number of quaestors, which was raised to eight in 267 BCE[27], and then under Sulla and Caesar to thirty and forty respectively, with Augustus bringing the number back to twenty. Another way to cope with a shortage of magistrates was to prolong the term of office of a magistrate. In 327 BCE the term of office of a consul was prorogued by the Senate for the first time (prorogatio) so that he could continue the siege of a city. The Senate’s decision made Quintus Publilius Philo, who also happened to be the first plebeian praetor, the first proconsul.[28] As Rome began fighting ever longer wars ever further from home, she ever more often made use of pro-magistrates. These were often, but not necessarily, regular magistrates whose term of office had been prolonged. A spectacular case was the election of 26-year-old Publius Cornelius Scipio as proconsul in 210 BCE.

Their ancient ties to the sacra allowed the patricians to retain their monopoly on certain religious offices until the end of the Republic. However, several developments in the fourth century BCE had made it a small monopoly indeed. Above, I already mentioned the decemviri sacris faciundis created in 367 BCE, of which five had to be patrician and five plebeian. These decemviri replaced two exclusively patrician duumviri. A next important step was the Lex Ogulnia of 300 BCE, which increased the number of pontifices from four to eight and the number of augures from five to nine. The new law furthermore stipulated that half of the pontifices and five out of nine augures had to be plebeian.[29] A limited number of priesthoods remained open exclusively to patricians until the end of the Republic. Examples include the Salian priests of Mars Gradivus and the flamines maiores, i.e. the three special priests of Jupiter, Mars and Quirinus (the deified Romulus).[30] Apparently the plebeians never really campaigned to have these priesthoods opened to members of both classes, which is understandable given the taboos that Salian priests and flamines had to respect. A Salian priest was for instance not allowed to travel during the month of Mars, which was inconvenient for a general on campaign (see the example of Scipio Africanus in 190 BCE). A flamen of Jupiter, Mars or Quirinus was not even allowed to leave Rome.

Eventually all public offices were opened to the plebeians and these even enjoyed a kind of preferential treatment (see above)[31], which made going over to the plebs (transitio ad plebem) an attractive option for some patricians. Nevertheless, many patricians seem to have been very proud of their heritage. This was not just true for patrician men, but also for patrician women, as is demonstrated by an incident in 295 BCE concerning the sanctuary of Pudicitia Patricia, goddess of patrician modesty or chastity. Verginia was a patrician matron, but because of her marriage to the plebeian consul Lucius Volumnius she was refused entry to the aforementioned sanctuary. The refusal left her highly indignant, and she subsequently founded an alternative sanctuary for plebeian chastity (Pudicitia Plebeia) in her own home.[32]

Notes

[1] Livius 6.35.

[2] Andrew Lintott, The Constitution of the Roman Republic, p. 36.

[3] Livius 6.42; Plutarchus, Camillus 39.

[4] Livius 7.17-7.19, 7.22, 7.24 and 7.28.

[5] See table XII (Philip Matyszak, Chronicle of the Roman Republic, p. 65). The argument of the patricians is mentioned in Livius 6.17, where it is put forward by the interrex Marcus Fabius.

[6] A Lex Diullia Menenia of 357 BCE had set the interest rate at one twelfth of the loan and a law adopted in 347 BCE had made the rate one twenty-fourth (Livius 7.16 and 7.27).

[7] Livius 7.42. The introduction of a mandatory decennium between two offices was no doubt a response to the same persons serving as consuls over and over again in the 350s and 340s BCE, with short intervals between the consulships. Examples include Marcus Fabius Ambustus in 360, 356 and 354 BCE, Marcus Popillius Laenas in 359, 356, 350 and 348 BCE and Gaius Marcius Rutilus in 357, 352, 344 and 342 BCE. Gaius Sulpicius was consul five times between 364 and 351 BCE.

[8] Livius 6.42 and 7.1.

[9] Livius 3.55.

[10] E.Chr.L. van der Vliet, Een geschiedenis van de klassieke Oudheid, p. 165.

[11] Livius 7.23 and 7.25.

[12] Livius 8.15.

[13] Livius 7.1.

[14] Livius 7.17 and 7.22.

[15] In Livius 6.39 and 10.8 his name is given as Gaius Licinius and Gaius Licinius Stolo respectively, but it is not clear whether he was the same man as the people’s tribune Gaius Licinius Stolo. He may alternatively have been Gaius Licinius Calvus, the consul of 364 BCE (Livius confuses the two men in 7.2 and 7.9).

[16] See for instance Livius 7.9, 7.24, 8.16 and 8.23.

[17] Livius 8.40.

[18] Livius 9.26.

[19] Examples in Livius 7.3, 8.18 and 9.28.

[20] Lintott, p. 68.

[21] Lintott, p. 68-69.

[22] See Livius 5.31, 6.27 and 9.34.

[23] Camillus was censor in 403 BCE and then served as consular tribune several times, while Caecus was censor in 312 BCE and then consul in 307 BCE and 296 BCE.

[24] Livius 9.30.

[25] Livius 7.5, 9.30 and 27.36.

[26] Van der Vliet, p. 168.

[27] Livius Periochae Book 15.

[28] Livius 8.23. In Livius 3.4 a proconsul is already mentioned for the year 464 BCE, but this example is probably not historical. The Fasti Triumphales explicitly state that Quintus Publilius Philo was the first proconsul.

[29] Livius 10.6.

[30] There were also flamines minores for deities such as Ceres, Flora, Portunus and Vulcanus. These flamines could be patrician or plebeian.

[31] In spite of this preferential treatment members of a couple of obscure patrician families managed to reach the consulship. Examples are the gens Nautia (a consul in 316 and 287 BCE) and the gens Folia (a consul in 318 BCE).

[32] Livius 10.23.