Read Ebook: Roman Public Life by Greenidge A H J Abel Hendy Jones

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The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army , and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the "hundred" .

As will be seen from the accompanying table of the census, the mass of citizens whose property fell below that of the lowest class was not wholly unprovided for. They were organised, according to Livy, into six, according to Dionysius into five, centuries. Some of these were composed of professional persons, whose services were indispensable to an army, and who were, perhaps, members of the trade guilds which are said to have existed in the regal period. Such were the carpenters who formed two centuries, and the horn-blowers and trumpeters who formed one each.

THE SERVIAN CLASSIFICATION

THE CAVALRY

THE INFANTRY

Total, 193 centuries , 194 .

THE CENSUS

THE GROWTH OF THE REPUBLICAN CONSTITUTION

Against this phalanx of patrician power what forces could the Plebeians boast?

When we consider this situation, it is not surprising that the leading features of the first period of development of the Roman constitution were an attempt to limit the power of the magistrates, and a struggle of the Plebs for equality with the Patriciate. The two struggles do not run on parallel lines but are interwoven at every point, since the magistracy represented the Patriciate. Nor do they represent merely an effort to weaken or to obtain political privilege; in their earlier stages the motive of the Plebs is not ambition, but defence. Their first efforts have the negative object of the protection of rights, not the positive design of an attempt to share in a political power which was closed to their order.

The second great movement of the tribunate was an attempt to secure an equal administration of the law.

The Twelve Tables contained the "whole body of Roman law" , not in the sense that they were a complete and detailed system, but in the sense that they pronounced on all important or disputed points in all departments of law, private, criminal, and public.

The new law does not appear to have made mention of the Plebs and its tribunes, for they were hardly a part of the constitution; and yet, in the crisis that followed the fall of the decemvirate, the question that gathered round these ignored powers was great enough to obscure every other issue.

The first great utterance of the Plebs, which followed the Valerio-Horatian law, was one of this character, for it attached a criminal penalty to a derogation of duty to the Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved that "any one who left the Plebs without tribunes or created a magistrate without appeal should be scourged and executed." It was a mode by which the Plebs tried to guard itself from any possible surrender of its liberties such as that which had created the decemvirate.

Meanwhile the consulship had been modified in yet another way--one which was detrimental to the power of the office, but was meant to preserve influence to the Patriciate. In the institution of the censorship we find at work the same double motive which had influenced the government in creating the consular tribunate--the sense that two men could not manage all the business of a growing state, and the desire not to share with the Plebeians the unimpaired powers of the supreme office.

Meanwhile the provisional government drifted on. It won military successes; it was gradually building up a hegemony in Italy. But the effect of war now, as at an earlier period, was ruinous to those to whom this government had to look for support. In spite of the palliative measures of pay for the army and occasional land distribution, a large portion of the yeoman farmers were again in a pitiable state. We cannot now speak of the social grievances of Plebeians as a whole; those members of the Plebs who began to occupy the benches of the Senate, and who aspired to the military tribunate or quaestorship, were as wealthy as their patrician compeers. The race for office was keen between the members of the two orders. The Patrician had now to beg for his place on the curule chair. The first law against canvassing was passed in 432; it prohibited a candidate from whitening his toga with chalk before the elections--a primitive measure, but one which shows that the plebeian electorate had at last become a power. But though isolated members of the Plebs were soaring into the upper regions, the mass of this body still consisted of bankrupt agriculturists. The situation which they regarded as desperate was, apart from the harsh law of debt, the normal condition of a modern proletariate. But the ideal of the ancient citizen was higher than our own; they wished to be proprietors of freehold land or of land held on an undisturbed tenure from the state.

The praetorship, if it ever was a patrician preserve, did not long remain such. Thirty years after its institution a Plebeian, Q. Publilius Philo, successfully contested the post. The objections of the presiding magistrate, whether based on law or custom, were overruled and Plebeians declared eligible for the office.

But, apart from these minor benefits, the mass of the Plebeians did not share to any very large extent in the triumph of their order. The true reason of the individual Roman being thus thrust into the background can only be given by a review of the causes, soon to be treated, which moulded both the theory and practice of the developed Roman constitution. It must suffice here to trace the painfully inadequate results which were secured by these centuries of agitation by a glance at the distribution of power in the Roman state, at the date of the war with Pyrrhus, or the outbreak of the struggle with Carthage.

THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE DEVELOPED REPUBLIC

The second form was the enrolment on the register of citizens by the censor, when the census was in progress, at the request of the master . It was the false declaration of the master that the man was free which gave validity to this form.

The third and later form was manumission by testament , by which the master either commanded the freedom of the slave in his will, or left it as a trust to his heir.

The comparative inconvenience of these forms had led to other simpler modes of manumission--by announcement of the freedom before friends , or through a letter to the slave bidding him live as a freeman , or even by inviting him to dine as a freeman at his master's table . Manumission effected in this informal way, though protected by the civil courts, did not confer the political rights of citizenship.

The duties of the citizen are certain services which he owes to the state, which are paid either by his personal labour or by his property.

But the greatest change in Roman society was due to the growth of a slave population, which, in the city and that part of Italy which formed the Roman domain, reduced the free citizens to a minority.

The Roman constitution had lost none of its complexity by growth. The accretions of ages had changed a curious but comparatively simple type of polity into a jumble of constitutional law and custom, through which even the keen eye of the Roman jurist could not pierce, and which even his capacity for fictitious interpretation and the invention of compromises could not reduce to a system. The lack of logic, which is the usual accompaniment of a conservatism not thorough-going enough to be consistent, produced a machine the results of which appeared for a time to be eminently satisfactory. It conquered the world, and succeeded for a time in governing it with some show of decency and a fair measure of success. Had the equilibrium been maintained in practice as in theory, mixed constitutions would have had the most assured claim to the respect and acceptance of the world. But as the knots which the jurist could not untie were cut by the sword, and the constitution reverted to a type far simpler even than that of its origin, we must assume a weakness in the mixed system, which might not have rendered it inadequate as the government of a city state or even of Italy, but certainly rendered it incapable of imperial rule. The test was a severe one, and the constitution which could not answer the strain need not be wholly condemned. For empire is a mere excrescence on the life of a state, a test neither of its goodness nor of its vitality. A pure treatment of the Roman constitution will neglect, as far as possible, this abnormal growth, and, although much of its structure was the result of war, will be able to show that its essential peculiarities were not the effect of conquest.

While this dual sovereignty--harmless except for its incidental effect of the preservation of the tribunate--was a result of the course taken by the evolution of plebeian privileges, a far more serious consequence was produced by what we noticed as the second leading idea in the Roman constitution's period of growth, the weakening of the magistracy. This weakening--partly the result of a struggle for freedom, partly of accidental circumstances such as the distractions of war--from the first assumed a form which prevented Rome from ever expanding into a democracy. The early Greek states adopted the system of weakening the sole magistracy, first by dividing its functions amongst several holders, and then, when this was not sufficient, by deliberately taking powers from them and giving them to carefully organised popular bodies. In Rome the principle of division was not wholly unknown; thus the censorship and praetorship take over some of the functions of the consulate, but the principle of wholesale transference was entirely absent; even the usurpation of capital jurisdiction by the people was modified by the condition that they could meet only on the summons of a magistrate. The principle of weakening adopted at Rome was that of the increase of the number of magistrates, without any essential alteration of the character of the magistracy. The increase was effected partly by a consistent application of the principle of colleagueship, partly by the setting up of new powers in conflict with the old. The result was chaos. In the developed constitution there were twenty annual magistrates--ten tribunes, two consuls, eight praetors--each armed with the power of passing valid acts of parliament, and of vetoing the resolutions of his colleagues and inferiors. It is true that there was a legal subordination amongst them; the consul was inferior to the tribune, the praetor to the consul; and the rigorous application of law would have reduced the Roman constitution to an oligarchy of ten. As a matter of fact, the tribunate was too early enlisted on the side of the nobility to think of pressing its powers; dissension reigned within the college, and the history of the collective magistracy was one of perpetual conflict and therefore of weakness. In this weakness the people shared, for they were wholly dependent on the magistracy. In shaking the authority of their representatives they had shaken their own; and certain radical defects in the popular organisation, which we shall discuss when we consider the assemblies more in detail, added to their incapacity to rule. Since the guidance of magistrates and of people was equally impossible, and central government must reside somewhere, its fitting place was not unnaturally sought in the single experienced, permanent, and deliberative body in the state, the Senate. The assumption of the reins of government by a power, which as an independent authority was not contemplated in the original constitution, necessarily gave rise to a body of constitutional custom by the side of the older constitutional law. The applications of this new code can only be estimated by a more detailed treatment of the three factors of government--the magistracy, the people, and the Senate.

THE MAGISTRACY

It is difficult to treat collectively of the special manifestations of this authority; for the magistracies were graduated by differences of power. To avoid confusion and repetition it will be best, in this general sketch, to give a complete list of magisterial powers, and to point out in each case where they are accorded to, or withheld from, the particular occupants of office. Magisterial powers may be divided into administrative, those exercised in connexion with the people, those exercised in connexion with the Senate; and certain general powers which underlie all these spheres of activity--the right of interpreting the will of the gods through auspices, and the right of enforcing decrees.

The home administration can be adequately considered only when we deal with the separate magistracies. But the common form in which it asserted itself may be considered here. This was the right of issuing commands in the form of edicts , applicable to the special branches of administration under the control of the magistrates, from the quaestor to the consul. The edicts of all the magistrates corresponded to one another in their general form; they contained commands, prohibitions, and advice. They were all at an early period issued in writing, and the difference between them was simply that while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous , as being called forth by ever-present necessities, and were therefore transmitted by magistrates to their successors . Prominent in their continuity were those of the censors and praetors; while the one created a code of Roman morality, the other developed a system of legal procedure.

Chief of the heavenly signs , and the surest expression of Jupiter's will, were thunder and lightning. Thunder seems sometimes to have been regarded as a wholly evil omen; but the course taken by the lightning determined its significance--if on the watcher's left, it was lucky; if on the right, unlucky.

With respect to the capital jurisdiction of the tribunes, we have seen how their tacit recognition of the appeal gave rise to this jurisdiction. But in theory the coercion of the tribune, when used in defence of the sanctity of his own person, was not subject to appeal. Here the old religious penalties remained in force, and a period as late as the year 131 B.C. witnessed the spectacle of a tribune dragging a censor, who had degraded him, to the Tarpeian rock with intent to hurl him down--a fate from which he was saved only by the veto of the tribune's colleagues.

But the tribunes' power of imposing money penalties extended far beyond the limits of that of the other magistrates. The power of confiscating all the goods of an individual by consecrating them to a god , a relic, like the execution from the Tarpeian rock, of the old religious jurisdiction and as little subject to the appeal, had been occasionally put in force by them in extreme cases, and like other vanished relics of antiquity was revived during the party struggles of the close of the Republic.

A mere enumeration of the powers of the Roman magistracy throws little light on the working of the civic constitution. The question which we shall now consider--the conflict of powers--is from this point of view more instructive if only because it shows why Rome could not be governed by her magistrates.

The other modes of conflict were based on powers inherent in the magistracy; these were the right of prohibition possessed by the higher magistrates over the lower, and the right of veto possessed by superiors over inferiors or by colleagues with equal powers over one another.

But the prohibition might, under special circumstances, be far more sweeping than this; it might extend to the suspension of all the functions of a magistrate, or even to the enforced cessation of almost all the active life of the state.

A higher magistrate, although he could not take away office from an inferior or even force him to abdicate, could visit a misuse of his functions by prohibiting all further action on his part. This power, practically amounting to a suspension from office, is found twice in our annals directed by the consul against the praetor--in one case for a breach of respect, in the other for revolutionary proceedings. Nor was the power confined to Rome. The provincial governor had a similar capacity for dismissing officials, who disgraced his administration, from the country under his control.

The tribune, outside the bounds of his own college, could employ the intercession against all the patrician magistrates except the dictator--against the consul, praetor, aedile, and quaestor. The growth of the Roman constitution, however, created magistrates between whom no relation which justified the veto could be imagined to exist; none, for instance, could be established between the aedile and quaestor or between the consul and censor, and accordingly these magistrates had no power of impeding one another's actions.

It is needless to say that, with this conflict of authority, there was no true theory of responsibility in the Roman magistracy; for that implies a unity of power. But a description of what may be called the second element of responsibility, the capacity for being punished, or for being forced to give compensation, for a misuse of functions, will form a fitting complement to the history of the intercession.

The growth of Rome's provincial territory made the continuance of this clumsy and casual jurisdiction impossible. The creation of the standing criminal courts , with their presidents and juries, was the reaction of the provinces on Rome. We shall speak elsewhere of the mixed character of these courts, which were formed of a fusion of ideas borrowed from the criminal and civil law. The earliest which were created supplied a readier redress and severer punishments for the delicts of magistrates than the civil courts could give. Others were based on the classification of political offences. The great codification of the criminal law effected by Sulla rendered the tribunician jurisdiction superfluous, although it still reappeared at intervals during the party struggles of the close of the Republic.

We have now reviewed every important aspect of the magistracy in general; but before going on to describe the separate functions of the magistrates in administration, so far as these have not been already anticipated, it will be convenient to touch slightly on the formal conditions requisite for holding office at Rome. These conditions often illustrate the magistrate's position in the state, and they sometimes create real limitations on his power.

The qualifications for public office were based on the general principle that for patrician magistracies any citizen was eligible, for plebeian only those of plebeian birth. But to this general rule there were certain limitations based partly on the idea of the dignity of office, partly on the view that experience of a certain kind was necessary for the fulfilment of such responsible functions.

If we believe that the king during his lifetime nominated his successor, there must from the first have been an interval between appointment to and entrance on office. This interval existed throughout the Republic for most of the annual magistracies; only the dictator, the censors, the magistrates created as the result of an interregnum , or those elected to fill up a place that had become vacant , entered office immediately on their election. For the ordinary magistrates there was a more or less considerable interval between election and entrance on office; for the patrician magistracies it had originally been short, for the elections were one of the last acts of the consul's annual reign, and the new consuls and praetors entered office from the close of the third century on 15th March, from 153 B.C. on 1st January. But in the closing years of the Republic--perhaps in consequence of a change introduced by Sulla--the elections were universally held in the month of July; and this gave a six-months' interval between election and entrance on office for the consuls and praetors, and one of more than four months for the quaestors and tribunes, who assumed their functions on 5th and 10th December respectively.

After this general review of the magistracy, we may glance at the precise place in the state administration assigned to the separate magistrates, so far as the record of their duties has not been already anticipated.

In considering the functions of the consuls we must distinguish between two periods of the history of the Republic. The first extends from their institution to the year 81 B.C.; the second from this year, when the reforms of Sulla introduced a change in their position which was felt as long as consuls continued to exist. This change caused no alteration in their powers, but only in the scope of their activity. During the first period they are the heads of the whole state, and are found ruling wherever Roman energy extends; during the second they are practically the chief magistrates only of the city of Rome and of Italy.

Consular jurisdiction was of two kinds, administrative and criminal. The administrative justice of the Republic was concerned chiefly with financial matters touching the interests of the community, such as pecuniary claims made by the state on individuals or by individuals on the state. The regular discharge of this duty passed to the censors; but in the gaps between the censorships it reverted to the consuls. We also find them adjudicating on questions of property between the cities of Italy. In this matter they doubtless acted on the instructions of the Senate.

The general position now assumed by the aediles was that of assistants to the consuls in the administration of the city; in the fulfilment of which task they had certain special spheres of competence assigned them.

We have already spoken of the criminal investigators , whom tradition attributes to the monarchy, and of the more certain assistants of the consuls for criminal jurisdiction and finance , who are assigned to the early Republic. We have seen that, first nominated by the consuls, they were soon elected by the tribes, and we have witnessed the opening of the office to Plebeians when, in 421 B.C., the number of quaestors was raised from two to four, and one of these officials was assigned to each consul in the field. About the year 267 B.C. four more were added for the purposes of Italian administration, and no further change is recorded until Sulla raised their number to twenty, although some intermediate increase is not improbable.

The departments may be grouped under the three heads of urban, military, and Italian.

The quaestors of Italy were probably identical with those of the fleet , and were a result of the organisation of Italy which followed the war with Pyrrhus . For the purposes of the Pyrrhine war twelve quaestors were created, whose number, when they were given permanent stations, was reduced to four. Three of these stations can be approximately determined. One was Ostia, and the tenure of this post was burdened with the duty of the supply of corn to Rome. The second appears to have been the woods and forests of Italy. The third was in Cispadane Gaul, perhaps at Ravenna or Ariminum. The fourth is unknown, but was perhaps the quaestorship at Lilybaeum in Sicily, which, after the creation of the first Sicilian praetor in 227 B.C., would have become a provincial post. The other three survived the Republic as spheres of Italian administration. The functions of these quaestors were chiefly the levying of contingents from the allies in ships and men, the protection of the coasts, and at Ostia, as we have seen, the supply of corn for the capital.

We have already described the institution of the censorship in 443 B.C., and have seen that patrician rank was originally a necessary qualification for the post. The first mention of a plebeian censor is in 351 B.C. One of the Publilian laws of 339 B.C. is said to have extended to the censorship the provision of the Licinian law about the consulship, and to have enacted that one censor must be a Plebeian; but it is not until the year 131 B.C. that we find two plebeian censors.

Four attributes of the office are very important in determining its character. The first gave it the necessary authority, the others created a healthful limitation of its powers.

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