Lecture 23: DEVELOPMENT OF THE ROMAN CONSTITUTION

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Etruscan Kings (619-510 BC) were responsible for a number of developments including the Roman constitution. King Servius Tullius (c 550 BC) introduced census reforms similar to those of Solon in Athens. He reorganized the military assembly into five classes based on property qualifications. Within each class, soldiers were organized according to centuries of 100 soldiers, and for each level of wealth a century of older and a century of younger citizens existed. Hence the Military Assembly was also known as the Centuriate Assembly.

The
Military (Centuriate) Assembly was organized into some 193 centuries in all, 14 in the "equestrian" or Knights' class (i.e., those whose worth enabled them to own horses), 70 in the First Class. "Votes" would be cast according to centuries (the majority vote within a century carried that century as one vote). The top centuries voted first, and their votes counted most. As soon as the vote of a majority of centuries (97) was secured, the election was over. Since the wealthier citizens tended to see things in common, centuries of the Equites (the Knights) and the First Class typically voted alike. This gave a candidate or a legislative measure 84 centuries. Assuming the highest ranking centuries of the Second Class voted similarly, only 13 more centuries were necessary to secure a vote, at which point the voting would cease and the assembly disbanded. Typically, the lower classes would never be called on to vote. In short, this was a conservatively organized assembly in which the votes of the wealthiest citizens came first and counted most. Rarely were the centuries of the poorest citizens called to vote.

Servius Tullius' logic in organizing such an assembly was to enable wealthy
plebeians, (citizens not related to any of the senatorial families of the kings) to be enrolled in the highest class on the basis of wealth, as opposed to birth, a reflection of the growing importance of the hoplite phalanx at Rome (like Greece, because those with the most worth furnished the most armor) and the need of the king to draw on greater manpower than otherwise available within the aristocracy. As in Sparta, Roman kings appear to have enjoyed strong support among the element of small soldier citizen soldiers and animosity among the aristocracy.

In 510 BC the aristocracy rebelled and expelled the last Etruscan king of Rome, Tarquin the Proud. Patrician aristocrats declared themselves a republic and carefully transferred the power of the king to new annually elected magistrates eventually known as
consuls (2 consuls elected annually). These annually elected chief executive officers were elected by the Centuriate Assembly. The religious power of the king they transferred to a chief priest known as the Pontifex Maximus. The members of the Senate, the patres, or patricians (all those who claimed descent from members of the Senate of the kings) informed the citizenry that since they were descended from the gods, it was necessary that "patricians" alone be allowed to hold this high office. The power of the consuls, their imperium, was ultimately based on the consul's authority to consult the auspices, that is, to consult with the gods about the appropriateness of conducting public business. This religious authority gave the consuls the right to command armies, the power to hold assemblies, and to convene the Senate, and more broadly the royal power of life and death over everyone and everything in the army's path. This power was designated by the presence of 12 bodyguards or crowd-control attendants known as lictors. The lictors accompanied the consul everywhere he went in public to clear a path for him. They carried bundles of rods known as the fasces to beat people who failed to respect the authority of the consul. When the consul left the city at the command of the army the lictors places an axe in their bundle of rods to signify the consul's authority to conduct sacrifice, i.e., his power of life and death in order to preserve the authority of the republic over everyone and every thing in his path. He could execute captured enemies and his own mutineers with impunity once entrusted with imperium outside the walls of Rome. An actual religious ceremony led by the priests known as the augurs would deliver the imperium into his hands as he prepared to leave the city. There was a clear notion here that an aura of religious magic, the power to consult with the gods through augury, lay at the foundation of imperium. Roman officials entrusted with this power (consuls, dictators, and praetors) had the power to consult with the gods before conducting any public action, be it a battle or an electoral assembly. The gods would speak to them through augury. Patricians insisted that this power would evaporate if the authority were entrusted to someone who was not, like themselves, descended from the gods. They used religious taboo to insist on their supremacy in political society. Plebeians could vote in the assembly, but only patricians could hold office and therefore enter the Senate for life.

Since by now as a result of the urban development of the Etruscan kings Rome was the largest city in all Italy, it had developed a complex society with numerous wealthy plebeian (non senatorial) families. The latter were unwilling to accept such logic particularly since the kings had recently encouraged their participation in leadership by adlecting many leading plebeians into their Senate. Plebeian leaders used general citizen discontent based on crises concerning land and debts (recall Israel and Greece) to mount protests against the patrician leadership. These culminated in 494 BC in the great secession on the Sacred Mount. The hoplite army of the Romans withdrew from the army of the consuls just prior to a battle with the army of the expelled former King and refused to fight. They staged a "sit-down" strike on what became known afterward as the Sacred Mount, while dressed in their full panoplies of armor. Cognizant of the consuls' authority of
imperium and the risk they ran by mutinying, the plebeian soldiers bound themselves together religiously by swearing a most fearsome oath to protect the persons of the representatives they chose to speak for them at that moment. These annually elected representatives of the "plebeian assembly" became known as the 10 Plebeian Tribunes. Because of the oaths sworn on the Sacred Mount, their persons were sacrosanct, or "inviolable", that is, they could not be touched without inciting all plebeians to come to their protection. Sacrosanctitas suddenly gave the plebeian tribunes religious authority that was equal in some sense to the imperium of the consuls and brought the state to a constitutional crisis requiring negotiations on the level of equals between the Senate and its magistrates, the 2 consuls, and the plebeian assembly and its duly appointed "civil liberties protectors," the 10 tribunes. Through personal inviolability, tribunes could extend their protection to ordinary Roman citizens merely by placing their hand on them and asserting their auxilium or help. No Roman magistrate could impose his authority on a citizen when a tribune's auxilium had been extended. Tribunes learned to veto the work of all other magistrates simply by appearing in a convened assembly or Senate meeting and using their sacrosanctitas to block any and all public activity (intercessio). They also obtained the right to pass legislation in the Plebeian Assembly that was binding on all Roman citizens and the state. All these powers evolved from the intrinsic religious authority offered by their sacrosanctitas. Over time, ambitious tribunes learned to explore the full sense of their religious power to effect political reform and innovation on the Republic.

As the plebeian assembly became permanent it evolved into a
Tribal (Popular, Plebeian) Assembly of 35 voting tribes, arranged geographically according to one's residence. In an election (to elect plebeian magistrates such as the tribunes) votes would be conducted within each tribe in an order determined by lot. The votes of the majority of voters in a tribe determined the one vote of that tribe. Out of 35 tribes, a majority of 18 would carry the election. Although the Tribal Assembly was regarded as more democratically organized, evidence shows that it was blatantly "jerry-rigged" to ensure that even this assembly was weighted toward the property-holding classes. In fact, all manumitted slaves when enrolled in the roman census were placed in the four urban tribes of Rome rather than in the 31 rural tribes of their former owners. This ensured that the vote of the emerging urban population was diluted by the fewer votes of the population of rural farmers in the outskirts of the city. In short, Rome remained a conservative society through and through; at the outset the work of the plebeian tribunes was really to ensure the political rights of wealthy non-patrician citizen soldiers, and until the era of the Late Republic the main purpose of the plebeian assembly was to address the concerns of citizen soldiers.

Ultimately what plebeian leaders wanted was access to the magistracies and membership in the Senate. For centuries this conflict raged domestically even as Rome conducted sustained wars with the expelled king and his sons and with neighboring peoples in its effort to survive. Every time the plebeians appeared to be on the verge of gaining full political equality with the patricians, the latter would change the rules, largely by creating some new electoral office and by relegating an essential component of the former royal power to that office and restricting its eligibility exclusively to patricians. In this manner, other magistracies came into being --

8 praetors -- chief judicial officers responsible for organizing Roman legal business and courts. These magistrates also held imperium, eventually served as provincial governors, and as such tended to conduct military operations in "pacified" regions of the empire.

2 curule aediles -- responsible for public safety, maintenance of public monuments, and performing celebrations in honor of the Roman gods. This last task enabled them to gain great notoriety in Rome by throwing the annual Roman festivals, oftentimes going deeply into personal debt in order to put on outlandish games.

10 quaestors -- chief financial officers, their number equaled those of magistrates holding imperium (consuls and praetors combined). Their main job was to carry the war chest of any Roman magistrate entrusted with imperium and to dispense funds as required. If anything happened to the consuls they constitutionally assumed command of the army until an new commander could be appointed and dispatched by the Senate. Otherwise they managed the state treasury, the money supply, and the provincial governor's financial administration in the provinces (eventually).

2 Censors-- elected every 5 years for a term of not more than 18 months. They drew up a list of citizens; determined the membership of the Senate; and let out public contracts for auction to public contractors known as publicani. Religiously their job was to "cleanse" the Roman body politic and its institutions (that is, to perform the lustrum) to ensure that all was right with the gods so that Rome could continue to receive their blessing as elicited through state augury.

All of these offices were outgrowth to the
Struggle of the Orders at Rome (494-287 BC), the conflict resulting from the efforts of the plebeians to gain full political status at Rome.

Another very important office resulted from this conflict, that of the Roman
Dictatorship. The dictator represented the temporary restoration of royal absolute authority. A dictator was appointed by the Roman Senate and People in the event that the consuls became incapacitated through death on the battlefield, for example. The Dictator enjoyed imperium inside the city, not just outside, and was designated by appointment of 24 lictors rather than 12. The lictors bore their axes in the fasces inside the city because the dictator enjoyed the power of life and death inside the city as well. However, the appointment only lasted 6 months, at which time it was expected that the political crisis would be resolved and normal governing procedures could resume. In essence, the dictatorship was the temporary institution of martial law, with Rome placed on an emergency war footing. All other curule magistracies ceased to function and the dictator ruled Rome using archaic, formerly royal subordinates known as the Master of the Horse (magister equitum) and the Prefect of the city (praefectus urbanus). The appointment of the dictator was therefore an extreme measure rarely resorted to because the freedom of all Romans, including patricians, became subordinate to the "whimsy" of a single individual. Dictators were common during the struggle of the orders, used to combat the increasingly recognized sacrosanctitas of the plebeian tribunes, and later during the Hannibalic War they were common because so many Roman consuls were killed or injured in the field, leaving a temporary power vacuum at Rome.

Ultimately, in 287 BC the Plebeian Assembly passed a law known as the
Lex Hortensia that recognized the legally binding character of all legislation passed by the plebeian or tribal assembly. By this point it was secured that at least one consul and one censor every time be plebeian. Plebeians attained full and equal status in political life, assumed the highest magistracies, and entered the Senate for life. The Roman aristocracy became a mixed patricio-plebeian aristocracy and in fact, majority plebeian. Since patricians could only survive by blood (both parents had to be patrician), by the end of the Republic fewer than 20 patrician families survived. The conflict between plebeians and patricians essentially disappeared by the time of the Middle Republic, but it left the Roman Senate and People with a working constitutional structure, sufficiently flexible yet enjoying clear recognition of rank and responsibility that enabled this society to meet any and all challenges in the Mediterranean world.

Constitutionally, this left the Roman Republic in the unique position of operating two governments at the same time. The Centuriate Assembly elected those magistracies concerned with
imperium, the military, the judiciary, and the treasury (the curule magistracies); its elections were conducted in a way that favored the wealthiest citizens and its acts were binding on the Roman state. However, the Plebeian or Tribal Assembly used the more democratically organized assembly of 35 tribes to elect the plebeian magistrates (tribunes and aediles) and to pass any legislation that assembly deemed necessary. Such legislation was also binding on the state. The point that needs to be kept in mind is that the same body politic was voting in either assembly, the difference was how voting was organized and its results. In essence, Rome enjoyed the function of two governments operating at the same time and place. Such a constitutional development is referred to as Dual Polity. What held these governments together and prevented the obvious risk of political "gridlock" was the intermediating influence of the Senate.