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Chapter X

This webpage reproduces a chapter of
A History of Rome
by
Tenney Frank

published by
Henry Holt and Company
New York 1923

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
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Chapter XII

 p180  Chapter XI

The Roman Constitution

The Roman constitution of the middle of the second century B.C. was very highly praised by Polybius, who was a Greek statesman with a profound knowledge of politics. What he particularly admired in it was its apparent union of strong executive power (in the consuls) with aristocratic and democratic elements represented by the administrative Senate and the primary legislative assembly. He thought that the diverse elements in the state checked and balanced each other very wholesomely in the Roman form of government. It is interesting to note that the sixth book of Polybius, which contains this analysis, had some influence, chiefly through French publicists of the 18th century, in the shaping of the Constitution of the United States, especially in stressing the theory of "checks and balances" between the executive, legislative, and judicial branches of the government. The modern scholar feels that Polybius overstated the importance of the mutual interdependence of the several departments. Polybius did not know that the larger part of the Senate's powers had been acquired by gradual usurpation during the wars and that these might any day be challenged; and he overestimated the virtues of anti-democratic elements because he had grown up in Greece where primary assemblies frequently played havoc with governments.

It is somewhat difficult even now to describe the constitution of 150 B.C., for it was not written and codified like ours but was rather, like England's, a product of laws and gradually assumed practices adopted for emergencies or forced by one element of the state upon the rest by sheer weight of influence. As in England, precedents tacitly established at times of stress were likely in time to be considered  p181 as authoritative as practices recognized by law, but we also know that such precedents are more readily attacked and disavowed than are openly adopted statutes. The Gracchi, for instance, found it far easier to annul such of the Senate's powers as had been assumed through a long series of precedents than those that had been recognized by legal enactment.

In discussing this constitution we shall describe it as Polybius observed it, assuming for the present the validity of customary practice long established. We shall also examine it with reference to the five actual branches of government, 1) the electoral, 2) the executive, 3) the legislative, 4) the judicial, and 5) the administrative, rather than as Roman authors usually did, under the heads of consuls, senate, and people, or as is more usual in America with reference to executive, legislative and judicial offices.

The Electorate. In Rome as in America the people were considered sovereign. While in America this sovereignty is exerted directly in the election of officials to do the people's business, but indirectly through their representatives in legislation, the people at Rome exerted their will directly in primary assemblies both in electing and in legislating, except in so far as they had acquiesced for some time in the Senate's assumption of partial legislative rights. At present we are interested only in the electorate. All male citizens of military age could take part in elections. They voted in groups according to wards by show of hands, until in 139 B.C. when the secret written ballot was introduced. A separate election was held for each of the important officers: censors (only every fifth year), consuls, praetors, aediles, quaestors, and tribunes. In the election of tribunes, quaestors, and aediles the people voted by wards (tribus) in the comitia tributa, all votes of a ward having equal value, while a majority of the wards determined the election. The classification of the voters in the centuriate assembly which elected censors, consuls and praetors was  p182 more intricate. Here the electors of every ward were again subdivided according to wealth into five classes, and the classes were subdivided by age into juniors and seniors. The centuriate assembly had been somewhat democratized in the third century so that it was no longer absolutely controlled by the first class. Indeed the five separate classes now had an equal number of votes. But the assembly still bore a conservative aspect. In the first place the upper "classes," while naturally containing fewer individuals than the lower, had the same number of votes, and secondly, the "classes" of the seniores (voters of forty‑six years and over) had the same voting value as "classes" of juniores, though mortality statistics inform us that such classes could not have had more than about half as many voters. Thus we see that a premium was still placed upon wealth and age, and we comprehend why this assembly continued in general to favor conservative candidates and why it was so difficult for novi homines to gain high political distinction. It seems strange to us that while the populace so feared the aristocratic tendencies of the centuriate assembly as to object to its activity in a legislative capacity it never seriously tried to stop its activity in electing higher magistrates.

The Executives at Rome were the two consuls, elected for a year, by the centuriate assembly. They were commanders-in‑chief of the army and, by a custom from which Rome suffered severely in various wars, they took personal command in the field even when quite devoid of military experience. As chief executives they were responsible for the preservation of order and for the proper execution of the laws, and, according to the conservative theory which was sometimes questioned by the liberals, they could at all times of great danger assume dictatorial powers by means of an order from the Senate. While they were not granted a direct veto power in legislation, they had some influence in law‑making since they alone could summon the Senate and the centuriate comitia. At the time under discussion,  p183 however, all their powers were greatly limited by the Senate, since that body, consisting of ex‑magistrates holding their seats for life, insisted upon being consulted by the executives in all matters of importance. After their term of office they were each, by an accepted custom, allotted a province where, being both civil and military magistrates, they governed with almost unrestricted powers for a year.

The legislative power lay at this time theoretically in the primary assemblies (both centuriata and tributa). In point of fact the tribunes were so apt to hamper the conservative centuriate assembly that it was seldom called together except for elections. In order to expedite legislation it had become customary for the Senate to invite the tribunes into the Senate for the discussion of necessary measures, and when a bill satisfactory to all parties had been agreed upon to let the tribunes present it to the tribal assembly.

It must not be thought, however, that even this assembly was summoned except when absolutely necessary. The people were too busy and widely scattered for constant attendance at the comitium. Two expeditionary devices for the passing of ordinary administrative measures and for the improvement of the civil and criminal code had emerged. In the first place the Senate was tacitly permitted during the wars, when emergency measures were constantly called for, to order new levies of troops, to raise money, to assign armies to points of danger, to look after the budget, in short, to pass practically all measures that had to do simply with administration. Most of these acquired functions the Senate was still permitted to exercise till the day of the Gracchan revolution. In the second place, ordinary reforms of the civil and criminal law were made by the praetors who presided over the courts. In fact Roman law was "judge-made" to a larger extent even than in America. There is only this difference: while in America the interpretation  p184 of laws is usually based upon the decisions of courts in particular cases, that of Roman laws was largely based upon the general edicts of praetors who were allowed to issue a formal statement during their term of office as to what legal customs should be considered antiquated and what new practices should be adopted by the courts.

By these two devices the assemblies were saved the trouble of constantly meeting to discuss matters of which they had no understanding. In the days of Cato the assemblies were in general called together in legislative session only to vote on questions of war and peace, on actual constitutional reforms, on the grant of citizenship and on appeals in capital cases.

The judicial functions were performed in large measure by the praetors' courts. In 149, Piso passed a law establishing the scope of each court so that the praetors could specialize — a good innovation (which is being more and more introduced in modern states), since the praetors held office for but a year and did not have time to master a large field. Separate special courts were soon created to take care of indictments for provincial misgovernment, for treason, for embezzlement, for murder, etc. The praetors at this time drew their jurors from the body of senators, a procedure which made for intelligent judgments in most cases, but which worked badly in cases of provincial maladministration, since the accused would necessarily be one of their number. As we have seen, the court was largely responsible for the progress of the law.

Owing to the fact that the theory of popular government was always strong, political cases — especially of impeachment of magistrates — continued to be brought by the tribunes before the assembly. This was a privilege that the people did not care to delegate to the courts when the good name of Rome was at stake. Furthermore, by an old custom the people were slow to give up the right of hearing appeals of citizens in cases of life and death. In  p185 such cases the assemblies interfered with the judiciary. Finally, the Senate, as we shall see, invaded the field of the courts in matters that touched upon questions of senatorial administration.

The fifth function of government is that of administration. This is usually delegated by a sovereign legislative body to the ministry or the "king in council," though in America it is shared by the president (with his cabinet) and Congress. At Rome, the Senate, formerly acting as the king's council or the consul's cabinet, had acquired most of this work, though of course the popular assembly frequently asserted its sovereign right to perform administrative tasks. Gracchus for instance learned to use the assembly for the passage of administrative bills quite disregarding the Senate. However, during the great wars, as we have noted, and long thereafter, the Senate carried on the administration of the great empire in so far as definite tasks had not been assigned to censors, aediles, and pro‑magistrates. All senators had been magistrates and had had much practical experience. They could, therefore, be trusted to undertake this work. They made some mistakes, and through "senatorial courtesy" committed wrongs in favor of their own members to the detriment of innocent subjects. But so do all administration bodies. At Rome there was certainly no body that could have done this work more wisely or generously.

The Senate's usurpation of judicial and executive functions — destined to lead to disastrous quarrels — came about in this way. During the Punic Wars and after, the senators assumed that throughout Italy they had the right to examine into facts relating to alleged breaches of law and order. Then they assumed that the right to examine implied the right to pronounce judgment. Thus they began to appoint special judicial commissions with plenary powers, and the consuls, being of their number, executed the orders of such commissions. Thus they tried certain cases of  p186 alleged treason. Again, they felt that if they could try and condemn, and order the consuls to execute their judgments, they could also empower the consul to assume full dictatorial powers at time of danger in order to safeguard the state. Such an order was called a senatus consultum ultimum. An instance of its employment was Cicero's commission from the Senate in the days of Catiline "to see that the state suffered no harm." This practice was first seriously questioned by the Gracchi.

The interrelations of functions in the Roman constitution may, though inadequately, be pictured in diagram as follows:


[image ALT: A diagram showing a series of four boxes, from left to right labeled 'Courts' (Judiciary), 'Electorate Assemblies' (Legislative), 'Ex‑Magistrate Senate' (Administrative), and 'Magistrates' (Executive): arrows go from Magistrates to Senate, from Magistrates to Assemblies, from Senate to Assemblies, and from Senate to Courts. Below these four boxes is a single box labeled 'ELECTORATE', with lines leading up to all four boxes, and a separate arrow to the Judiciary function above 'Courts'; the line from Electorate to Senate is a dashed line, the others are all solid. It is a summary organizational chart of the constitutional arrangement of the government of ancient republican Rome.]

It will appear from this diagram that the electorate, theoretically sovereign, was at the basis of the system. It elected the praetors of the courts and the executive magistrates; it constituted the legislative assemblies, and indirectly (through the election of the magistrates) determined the personnel of the Senate. The arrow-head lines indicate the overlapping of functions. So, for instance, although the praetors' courts performed most of the functions of the judicial department, the assemblies always retained and the Senate acquired certain judicial powers. Similarly, although the assemblies were the chief legislative bodies, nevertheless the presiding executives had a strong hand in shaping legislation, and the Senate took to itself a large share, not only in framing bills for the assemblies but also in issuing quasi-legislative consulta in the field of administration  p187 recognized as belonging to the Senate. Finally, the assemblies (especially in the Gracchan days) invaded the administrative field, which was ordinarily controlled by the Senate with the aid of the executives.

It would be quite misleading to assume that the Romans had intentionally shaped their constitution with a view to attaining those "checks and balances" which Polybius so much admired. The fact is that whenever the Senate was strong it insensibly tended to usurp powers in every department of state, while on the other hand powerful democratic leaders now and then tried to check the Senate and enlarge the functions of the tribal assembly led by the tribunes. The overlapping of functions was, therefore, a resultant of survivals and compromises rather than of consistent design.

Nor should the diagram be permitted to lead to the supposition that the Romans thought of their constitution as shaped to perform five distinct functions of government. They were only hazily and occasionally aware of the distribution of these functions. Indeed they usually thought out and framed constitutional measures with reference to the rights and privileges of (1) the magistrates, (2) the Senate, and (3) the populace. Their constitution can be schematized according to functions only because the instincts of Romans for a logical division were at times more accurate than their actual formulation.

The stability of the constitution and the governmental good sense of the Romans are attested by almost unparalleled fact that Rome lived for four centuries without civil war or violent revolution. The weakest point logically is indicated by the dotted line. This broken line indicates that the Senate was not responsible to the electorate since its members had reached their seats in the Senate by virtue of elective magistracies and not by direct election to the Senate, and since they held their seats for life. Since now the Senate had acquired vast powers of administration  p188 in the state it is clear that the electorate, which considered itself sovereign, might some day challenge the position of this more than semi-independent body.

Rome and the provinces. The Roman empire now consisted of Rome — the ager Romanus of the thirty-five tribus in central Italy — Latin cities and colonies, allies in Italy, numerous allied states in Greece and in Asia, and finally several provinces which contained subjects of various grades. The provinces were Sicily (acquired in 241), Sardinia and Corsica (236), Hither and Farther Spain (organized in 197), Cisalpine Gaul (practically, if not officially), Macedonia (established in 146), and Africa (146). Conditions varied greatly in the different provinces.

The government of Sicily was placed in the hands of propraetors. A Roman praetor after his term at Rome had his magistracy prolonged for a year so that he might serve as governor in a province. During the second century the Senate usually sent excellent men to this province and the government was then generally good. Unfortunately the Punic landlord system based upon slave-culture of a harsh type was continued under Roman rule, and the emphasis laid upon cereal culture by the tithe-system over-induced intensive farming which in turn increased the evils of slavery as well as of soil-exhaustion. The first serious revolt of slaves which the Roman government had to meet was in this province where there were as yet very few Roman landholders. It broke out in 134, led by a Syrian religious mystic who gathered 200,000 slaves to his banner before he was defeated by Rupilius in 132.

Sardinia and Corsica were mountainous islands inhabited chiefly by an old remnant of the pre‑Indo-European race. Carthage had held only trading posts on their coasts at which bartering with the natives was carried on. Rome of course was never satisfied to hold provinces in this easy manner. The Senate cared nothing for the trade, and conceived it to be a duty to establish organized governments  p189 in these islands so that the manhood of the province could be depended upon to take their share in the allied contingents of Rome's army. The second century, therefore, provided many instances of unedifying expeditions into the interior to pacify villages of natives that had no use for civilization.

In Spain the same conditions held. Only the south and the east were to any extent organized when Rome took the province. In order to organize the whole, the Senate divided Spain into two provinces in 197 B.C., and set about the long task of pacification. After many more or less successful efforts with arms, the elder Gracchus, adopting conciliatory tactics, came to an understanding with most of the tribes, and fixed upon a tribute of half a tithe on annual products as Rome's share. But many Spanish tribes were averse to peace, and objected to tribute. Revolts were frequent, and several Roman praetors, either from lack of sympathy with barbaric customs, or from venality and a desire for military conquests, accepted such revolts as opportunities for strong reprisals. This condition of affairs led finally in 149 to a general revolt of many tribes under Viriathus, a Lusitanian shepherd. The war dragged on needlessly because the Senate, long underestimating its importance, sent inferior men to the field. A constitutional peculiarity which Americans are in a position to appreciate also caused some difficulty. Repeatedly when a consul in the field made a treaty of peace with a Spanish tribe, the Senate at Rome, which claimed the right to pass on all treaties, would be induced by the political enemies of the consul to reject or revise it. Thus the Spaniards naturally came to the conclusion that Roman generals were not to be trusted. They thought the consuls when in trouble made peace with the intention of rejecting the terms as soon as reinforcements arrived. One typical incident among many became famous in later history. In 137 the consul Hostilius Mancinus was badly defeated by the Numantines and saved  p190 his army only by signing a treaty giving Numantia its independence. The Senate insisted that no consul had a right to make such or any treaty. They rejected it, and handed over Mancinus to the Numantines, who, however, were too proud to receive him. Then the war broke out anew. This disgraceful situation continued until Scipio Aemilianus was sent out in 134 with permission to remain till he could end the war. This he did with expedition. Numantia fell in 133, and the Lusitanian revolt was at an end. During and after this war many Roman soldiers settled in Spain when their military service was over, and through them, even though no colonies were as yet sent, a large part of Spain was gradually Romanized. Latin had come to be the accepted language in a large part of the peninsula in Augustus' day.

Of the organization of Cisalpine Gaul we are not informed. The Senate seems to have allowed the quiet infiltration of Italians to take care of the problems there. Italians gradually occupied a large part of the country and organized local governments in the regular Italian fashion. We do not hear that a tribute was exacted in Cisalpine Gaul.

Macedonia was made a province after the invasion of Andriscus had been suppressed in 147. The proconsul kept an army for the protection of the northern frontier where various mountain tribes provided opportunities for governors ambitious to gain the "honor" of a triumph. The tribute here was fixed for each community, being estimated at about half of what the former royal tax had been. But Rome also drew revenue from the old royal mines which the state had taken over as public property. The public corporations worked these by contract, receiving 50 percent of the ore in return for the working of the mines.

The situation in Africa we have reviewed above. Such were the conditions in the provinces. The subjects were being given the advantages of peace, even when they preferred  p191 not to have them; on the whole the exactions of the state were but little more than what was required to finance the provincial governments. In general the governors, though unsympathetic with the temperament of the barbaric races they governed, were, during the second century, fairly efficient. But the temptations which the great power of the proconsulship offered, insufficiently checked because of the distance from any supervision, were many, and gradually led to the creation of evil precedents. Governors were flattered and banqueted, and the custom was established that they and their staff should be royally provided for by the provincial communities. What this led to we shall see later. Piso's new court, created in 149 for the protection of misruled provincials, was established in good intention, but it was costly for provincials to plead at Rome; and since this court, like the rest, drew its jury from the body of senators, who were likely to be personal friends of the governors, a fair trial was not assured by it. This is the reason why Gracchus removed the senators from the jury panel in 123. We shall see to what results that led.

The second century B.C. was a period of dangerous political experiments and of rapid changes in social customs and religious beliefs. That the core of Roman political society was still sound is apparent to those who will read the observations made by the Greek historian, Polybius. We may quote some passages from chapters 53‑7 of his sixth book:1

"Whenever an illustrious Roman dies, in the course of his funeral, the body with all its paraphernalia is carried into the forum to the Rostra, as a raised platform there is called, and sometimes is propped upright upon it so as to be conspicuous, or, more rarely, is laid upon it. Then with all the people standing round, his son, if he has left one of full age and he is there, or, failing him, one of his relations, mounts the Rostra and delivers  p192 a speech concerning the virtues of the deceased, and the successful exploits performed by him in his lifetime. . . . After the burial and all the usual ceremonies have been performed, they place the likeness of the deceased in the most conspicuous spot in his house, surmounted by a wooden canopy or shrine. This likeness consists of a mask made to represent the deceased with extraordinary fidelity both in shape and color. These likenesses they display at public sacrifices adorned with much care. And when any illustrious member of the family dies, they carry these masks to the funeral, putting them on men whom they thought as like the originals as possible in height and other personal peculiarities. And these substitutes assume clothes according to the rank of the person represented: if he was a consul or praetor, a toga with purple stripes; if a censor, whole purple; if he had also celebrated a triumph or performed any exploit of that kind, a toga embroidered with gold. . . . There could not easily be a more inspiring spectacle than this for a young man of noble ambitions and virtuous aspirations. For can we conceive any one to be unmoved at the sight of all the likenesses collected together of the men who have earned glory, all as it were living and breathing? Or what could be a more glorious spectacle?

Besides the speaker over the body about to be buried, after having finished the panegyric of this particular person, starts upon the others whose representatives are present, beginning with the most ancient, and recounts the successes and achievements of each. By this means the glorious memory of brave men is continually renewed; the fame of those who have performed any noble deed is never allowed to die; and the renown of those who have done good service to their country becomes a matter of common knowledge to the multitude, and part of the heritage of posterity. But the chief benefit of the ceremony is that it inspires young men to shrink from no exertion for the general welfare, in the hope of obtaining the glory which awaits the brave. And what I say is confirmed by this fact. Many Romans have volunteered to decide a whole battle by a single combat; not a few have deliberately accepted certain death, some in time of war to secure the safety of the rest, some in time of peace to preserve the safety of the commonwealth. There have also been instances of men in office putting their own sons to death, in defiance of every custom  p193 and law, because they rated the interests of their country higher than those of natural ties even with their nearest and dearest.

Again the Roman customs and principles regarding money transactions are better than those of the Carthaginians. In the view of the latter nothing is disgraceful that makes for gain; with the former nothing is more disgraceful than to receive bribes and to make profit by improper means. For they regard wealth obtained from unlawful transactions to be as much a subject of reproach, as a fair profit from the most unquestioned source is commendation. A proof of the fact is this. The Carthaginians obtain office by open bribery, but among the Romans the penalty for it is death. With such a radical difference, therefore, between the rewards offered to virtue among the two peoples, it is natural that the ways adopted for obtaining them should be different also.

Greek statesmen, if entrusted with a single talent, though protected by ten checking-clerks, as many seals, and twice as many witnesses, yet cannot be induced to keep faith: whereas among the Romans, in their magistracies and embassies, men have the handling of a great amount of money, and yet from pure respect to their oath keep their faith intact. And, again, in other nations it is a rare thing to find a man who keeps his hands out of the public purse, and is entirely pure in such matters: but among the Romans it is a rare thing to detect a man in the act of committing such a crime."


The Author's Note:

1 Shuckburgh's translation.

Thayer's Note: Paton's somewhat more recent translation is also onsite.


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