The Early Republic: the constitution of the fourth and third century BCE (part 2)

The Curia Julia, successor of the Curia Hostilia. On the left the church of Santi Luca e Martina, on the spot where the Curia Hostilia once stood.

The Greek historian Polybius (ca. 203-120 BCE), who lived in Rome for a long time, has left us a description of the mixed constitution of the Roman Republic. He saw the consuls as the monarchic element of the constitution, the Senate as the aristocratic element and the people and their tribunes as the democratic element.[1] As long as an equilibrium between the three elements was guaranteed, the state functioned well. This did not necessarily entail that the consuls, Senate and people enjoyed an equal share of the power. On the contrary, Polybius believed that the Romans were so successful because of what he saw as the de facto dominance of the Senate.[2] Politicians such as Cicero were also in favour of a strong Senate and a rather docile people with docile tribunes. Polybius lived during the Mid-Republic and likely saw a Senate that was truly dominant. Cicero, however, lived during the Late Republic, and to his regret saw how the democratic element was gaining the upper hand, which in his view destabilised the res publica. The roots of this development reached back all the way to the Early Republic and were closely connected to several important events of the fourth and third century BCE. In part 1 I have already discussed the opening of the consulship and other offices to the plebs. This part is about the Senate and popular assembly.


While describing the election of the first plebeian consul for the year 366 BCE, Livius states that the Senate, at the time still dominated by patricians, initially refused to ratify the election of this Lucius Sextius.[3] Apparently there was a statute or custom that gave the Senate a right of veto with regard to the outcome of elections. This right of veto was abolished by a Lex Maenia of the early third century BCE, but we do not really know much about the rationale of the new law. It may have been related to the election of the plebeian Manius Curius Dentatus in 290 BCE.[4] As a result of the Lex Publilia of 339 BCE the Senate had already lost its right to veto legislative decisions in the comitia centuriata. Livius specifically speaks of laws (leges)[5], which raises the question what laws he was referring to. Most laws were, after all, passed by the comitia tributa, the assembly of the tribus. Perhaps our historian counted decisions about war and peace among the ‘laws’, as decisions about war and peace were the prerogative of the comitia centuriata.

View of the Janiculan Hill.

It is possible that the Senate retained a right to ratify or reject legislation passed in the concilium plebis. According to Livius the aforementioned Lex Publilia had also declared plebiscita to be binding for all Roman citizens (Quirites), both patrician and plebeian. Many historians, however, assume that such decisions by the plebs had to be ratified first by either an assembly of the whole populus Romanus or by the Senate to become fully binding.[6] This all changed with the adoption of the Lex Hortensia of 287 BCE. A conflict over debts led to riots and looting in the city. For the last time in history there was a plebeian secession as the plebs marched to the Janiculan Hill on the other side of the Tiber. The dictator Quintus Hortensius managed to solve the crisis. Among the concessions he made was the pledge that from now on plebiscita were to have the same status as leges adopted by the whole Roman people.[7] We may wonder whether this was truly a substantial concession. The number of patricians had become very small indeed and had probably dwindled to no more than a few percent of the Roman population. And so the Lex Hortensia was in effect the closing chapter of a series of developments that had started two centuries previously. The new law brought the conflict of the Orders to an end for good.

As of 287 BCE the role of the Senate in the legislative process was merely that of an advisor. It was customary to consult the Senate about a bill before tabling it in the popular assembly, but it was not mandatory. This was demonstrated in 188 BCE, when a people’s tribune skipped discussion in the Senate. During the Late Republic this would occur ever more often. Starting in the fourth century BCE the Senate grew ever more important as the body which dictated Roman domestic and foreign policy. Now that the Republic was the rising power in Italy, it had to deal with ever more other foreign peoples. Envoys from, for instance, the Greek cities in Southern Italy, the Samnites, the Celts in the Po valley or the Carthaginians frequently travelled to Rome and were then welcomed in the Senate. Moreover, it was the Senate that took the decisions about prolonging magistrates’ terms of office.

View of the Forum Romanum.

The influence of the Senate as an advisory body was large, but it could not give the consuls and other magistrates binding orders. In other words, the Senate relied on authority rather than concrete powers. A stubborn and self-assured consul could ignore the wishes of the Senate, and in such a case the Senate could only stop him if it had the support of the people’s tribunes.[8] After all, the tribunes did have concrete powers of coercion, such as the right of veto. An example of a stubborn consul was Lucius Postumius Megellus, who held the office for the third time in 291 BCE. According to Dionysius of Halicarnassus, he declared that, as long as he was consul, he governed the Senate, and that the Senate did not govern him. Megellus did not care that the Senate wanted a proconsul to besiege the town of Cominium in Samnite territory. As consul, he outranked a proconsul, and so in spite of Senate protests he decided to chase the proconsul from his camp and assume command of the army.[9]

Popular assembly

Remains of the Imperial Rostra. The Republican Rostra is no longer extant.

In a previous post I have already discussed how the Roman people was divided into 30 curiae, 193 centuriae and – as of 495 BCE – 21 tribus, four urban and seventeen rural. Depending on the decision to be taken, either the whole people or the plebs convened as the assembly of the curiae, centuriae or tribus. It is not very plausible that the curiae actually still got together in the fourth century BCE. These units probably only continued to exist on paper, with the leges curiatae being passed by the 30 lictors of the curiae in a meeting presided over by a magistrate named the curio maximus.[10] A lex curiata possibly gave a magistrate his imperium and the right to interpret the auspicia, although the precise meaning of this law remains obscure. During the siege of Rome by the Senones, Camillus was reportedly recalled from exile by a decision of the comitia curiata, and the appointment of Lucius Papirius Cursor as dictator in 310 BCE was said to have been a decision by the same assembly.[11] What is interesting is that in the latter case we also read the name of one of the curiae, i.e. the curia Faucia. Thanks to Varro we also know a couple of other names, such as the curia Calabra and curia Acculeia.[12] Livius believed the curiae were all named after Sabine women kidnapped during the reign of Romulus.[13]

As was already mentioned, the Roman people took decisions about war and peace in the comitia centuriata. The consuls, praetors and censors were elected in this assembly. Apparently some legislation was discussed in the comitia centuriata as well, given that in 339 BCE the Senate lost its right to veto such legislation (see above). It is quite difficult to establish whether the centuriae still decided on many bills. We know that the Law of the Twelve tables was adopted by the comitia centuriata, but presumably as early as the fifth century BCE there was a shift towards having legislation passed by the Roman people or plebs in the assembly of the tribus. For the fourth century BCE, he have a large number of examples of laws passed or rejected by the tribus.[14] The tribus furthermore elected the other magistrates, so the curule aediles, plebeian aediles, people’s tribunes, duumviri navales, quaestors and several others. For obvious reasons, plebeian aediles and people’s tribunes were exclusively elected by the plebs.

Augustus as Pontifex Maximus (Museo Nazionale Romano, Rome).

Eventually the tribus were also involved in the election of certain priests.[15] Somewhere between 292 and 219 BCE[16] a direct election of the supreme pontiff, the pontifex maximus, was introduced. He was elected by 17 of the 35 tribus. Why less than half of the Roman people was involved in the election of the pontifex maximus remains unclear. The 17 tribus were possibly selected by drawing lots, and it is in any case implausible that only the 17 original rural tribus were allowed to vote. The same procedure was probably used for the election of the aforementioned curio maximus. During the Early and Mid-Republic, the ordinary pontiffs (pontifices), soothsayers (augures) and the ten men (decemviri) in charge of the Sibylline Books were selected by co-optation. It was not until the end of the second century BCE that they too were elected. The special priests for certain deities (flamines), the Vestal Virgins and the ‘king of sacrifices’ (rex sacrorum) were not elected, but appointed by the pontifex maximus. They were subsequently initiated in a special assembly of the comitia curiata called the comitia calata.[17]

The number of tribus was stable at 21 for a long time, but in the fourth and third century BCE it was raised on multiple occasions until it was set at 35. This increase was clearly connected to Roman territorial expansion. In 387 BCE four new tribus were created, i.e. Stellatina, Tromentina, Sabatina and Arniensis. Their creation was linked to the annexation of the territory of the Etruscan city of Veii, which had been conquered by the Romans some years previously.[18] In 358 BCE two new tribus were created, Pomptina and Publilia[19], followed by another two in 332 BCE, Maecia and Scaptia.[20] The Roman presence in Campania led to the creation of the tribus Ufentina and tribus Falerna in 318 BCE.[21] The number of tribus had now grown to 31. Four more were added in the third century BCE, Terentina and Aniensis in 299 BCE and Velina and Quirina in 241 BCE.[22] After 241 BCE new Roman citizens were enrolled in one of the existing 35 tribus by the censors.

Enrolling citizens in tribus was not a neutral act. Decision-making in the comitia tributa was not based on the principle of ‘one man, one vote’: a majority of the tribus was required to adopt a bill, elect a magistrate or reach a verdict. Relatively few citizens were enrolled in some of the tribus, especially the rural ones, which meant that in these tribus the vote of an individual citizen carried greater weight. When in 312 BCE the censor Appius Claudius Caecus brought about a more balanced distribution and enrolled members from the lower classes (very likely including freedmen) in all of the tribus, there was fierce resentment among the nobility. As a consequence, the censor Quintus Fabius Maximus reversed his predecessor’s decision in 304 BCE and enrolled those at the bottom of society in the four urban tribus, thereby decreasing their political influence.[23] Later there were similar conflicts, for instance in 168 BCE. In our sources we regularly find the censors punishing citizens by relegating them to one of the four less prestigious urban tribus. The elite clearly wanted to secure its control of the smaller rural tribus, and thus its control of the majority of voting units in the comitia tributa.

The temple of Castor and Pollux (centre) on the Forum Romanum.

From the middle of the fourth century BCE popular assemblies always took place in Rome itself. This may sound like a no-brainer, but in 357 BCE the consul Gaius Marcius Rutilus had the assembly adopt a law about a 5% tax on the emancipation of slaves in the army camp at Sutrium in Etruria.[24] Roman soldiers were of course entitled to vote, but the consul was their hierarchical superior and the participation of civilians in this ‘popular assembly’ so far from Rome can never have been very large. The people’s tribunes were wary of such an incident ever happening again. So where did the popular assemblies take place? The comitium and rostra on the Forum Romanum – i.e. the circular square and speaker’s platform opposite the Senate building – were the usual location for assemblies of the tribus. As of the second half of the second century BCE meetings of the tribus also took place in the open space in front of the temple of Castor and Pollux, also on the Forum. The sources furthermore mention assemblies taking place in front of the temple of Jupiter Optimus Maximus on the Capitoline Hill, while during the Late Republic elections were held on the Field of Mars.[25] This field dedicated to the Roman god of war was also where meetings of the comitia centuriata took place, which is not surprising given the military nature of this assembly.


[1] Polybius 6.11-6.18.

[2] See Polybius 6.51, where the historian compares Rome to Carthage. In Rome the Senate is still the dominant power, while in Carthage it is the people.

[3] Livius 6.42.

[4] Cicero, Brutus 55; Andrew Lintott, The Constitution of the Roman Republic, p. 38.

[5] Livius 8.12.

[6] Lintott, p. 37 and 122.

[7] Unfortunately we know very few details of the conflict, as Book 11 of Livius’ work has been lost. We must therefore try and reconstruct the context and contents of the Lex Hortensia by using sources such as Livius Periochae 11, Plinius, Naturalis historia 16.37, Aulus Gellius, Attic nights 15.27, Augustinus, De civitate Dei 3.17 and the Digest, Book 1.2.2.

[8] Lintott, p. 67.

[9] Dionysius of Halicarnassus 17.4-17.5.

[10] The office of curio maximus was exclusively held by patricians for ages. In 209 BCE the first plebeian was elected.

[11] Livius 5.46 and 9.38.

[12] Varro, De lingua Latina V-VI.

[13] Livius 1.13.

[14] Among the rejected laws was a bill about the colonisation of Veii, which was rejected by one vote (Livius 5.30). The Lex Licinia Sextia of 367 BCE was ultimately accepted by the tribus (Livius 6.38-6.42).

[15] For this paragraph, see Lintott, p. 183-184.

[16] As the Books 11-20 of Livius’ work have been lost, it is impossible to establish the precise year.

[17] Lintott, p. 49.

[18] Livius 6.5.

[19] Livius 7.15.

[20] Livius 8.17. Gaius Octavius, the future emperor Augustus, was a member of the tribus Scaptia.

[21] Livius 9.38.

[22] Livius 10.9 and Periochae Book 19.

[23] Livius 9.46.

[24] Livius 7.16.

[25] Lintott, p. 41, 46 and 55.

One Comment:

  1. Pingback:The Early Republic: Samnites, Latins and Campanians (343-327 BCE) – – Corvinus –

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