The republican constitution (XIII): The minor magistrates

First among these must be reckoned the military tribunes, of whom there were normally six to each legion. Originally they were appointed by the consuls, but in 362 B.C. the election of six out of the regular number of twenty-four needed for the regular four legions was entrusted to the comitia tributa, and later others were similarly elected. The number however varied with the number of the legions and it was always for the consuls to fill up vacancies.

Minor civil magistracies were: (a) the tresviri capitales who exercised subordinate functions in connection with criminal jurisdiction, providing for the imprisonment of accused persons pending trial, arranging for executions and probably dealing on their own authority with slaves and foreigners. From their responsibility for the prevention of nocturnal disorder they were commonly known as tresviri nocturni. (b) The tresviri monetales, or masters of the mint, whose creation in 289 B.C. is thought to mark the beginning of coinage at Rome (c). Six commissioners for the upkeep of roads, of whom four were responsible for the streets of Rome itself, two for those in the immediate neighbourhood. They worked under the control of the aediles. More important for the lawyer are the judicial magistrates, (d) four praefecti Capuam Cumas, praetorian delegates for jurisdiction in these cities, and (e) x viri stlitibus iudicandis. These were associated with lawsuits involving freedom, and though they acted, during the republic, only as jurymen, were elected, and counted as magistrates. The reason is perhaps to be found precisely in the great importance, especially to the lower classes whose family tree might be hazy, of these trials for liberty.

The republican constitution (XII): The dictatorship

The republican constitution made provision from the first for a temporary return to monarchy in times of crisis when the principle of colleagueship was likely to cripple the efficiency of the state. Nor was it, as we might have expected, for the people to decide when this was necessary, but for the consuls themselves. In an emergency either consul could nominate a dictator who then became superior to himself, his colleague and all other magistrates. Which consul was to exercise the power was decided either by the possession of the fasces, or in default of agreement by lot, and, in any case, during the long period of senatorial government the power was only exercised on the authority of the senate. 

The emergency for which the dictator was appointed was usually military, but by no means necessarily; a dictator might be appointed, e.g., to hold the elections when both consuls were ill, or for some purely ceremonial function such as holding certain games. Though he was appointed without reference to the people, the dictator's imperium, like that of the consuls and praetors, had to be confirmed by a lex curiata. When a dictator was appointed for a special purpose he was expected to retire as soon as that purpose was fulfilled, but in any case he could not hold office for longer than six months, and apparently his powers also came to an end when the term of office of the consul who had appointed him expired. The persons appointed were nearly always men who had held the consulate and the office, originally confined to patricians, probably became open to the plebs at the same time as the consulate. During his tenure of the office the dictator was supreme; his superiority over the consuls was shown by his right to twenty-four lictors, a greater number than even the kings had had, and the axes appeared in the fasces even within the city. He was not, until comparatively late, subject to the rules of provocatio, and originally he was apparently also free from tribunician intercessio; even after this had been changed (perhaps about the beginning of the third century B.C.) the tribunes appear to have used their rights very rarely, if ever. As bearer of imperium the dictator was entitled to do all the acts that a consul could could do and he could further do one thing that no other magistrate could do, namely, give imperium to his own delegate, for every dictator nominated a magister equitum, who, though primarily, as the name implies, appointed to command the cavalry, was a general assistant and might have various duties delegated to him, e.g. full command at Rome while his superior was in command of the army in the field. The magister equitum had the right to six lictors and ranked equally with a praetor.

The republican constitution (XI): The tribunate

The institution of the tribunate as a measure of defence by the plebeians, the raising of the numbers from five to ten and the chief powers of the office have already been described. By the time that the struggle between the orders was over the tribunes had been for so long part of Roman public life that there was no attempt to abolish them and they continued to exist throughout the republic and well into the empire. Strictly, they remained magistrates not of the whole populus, but of the plebs only; they continued to be elected in the concilium plebis; they must be plebeians, and they bore no outward sign of rank whatever; in effect however they ranked as magistrates and the office was one regularly held by plebeians in the cursus honorum or magisterial career. They also obtained the right not only of sitting in but also of convening the senate.

The three powers which gave to the tribunate its greatest political importance were the intercessio by which they continued to be able to bring the whole business of the state to a standstill, their legislative power as presidents of the concilium plebis and their general power of coercitio which continued to be used chiefly for dealing with political offences, and especially for the prosecution of magistrates after the expiration of their term of office. Where the punishment which the tribunes desired to inflict was so severe as to be beyond the jurisdiction of the concilium plebis, the consul was bound to summon the centuries for the tribune, so as to enable him to defend the sentence before them.

The republican constitution (X): The censorship

We have already spoken of the institution of the censorship (in 443 B.C.9 as an incident in the struggle between the orders, which constituted a patrician victory in so far as the new office was confined originally to patricians. When the office became open to plebeians is uncertain, but we hear of a plebeian censor for the first time in 351 B.C. and soon afterwards, the same rule applied as to the consulship, that one of the two colleagues must be a plebeian.

The original purpose of the new magistracy was clearly to relieve the supreme magistrates of one of the duties that they had previously performed, that of taking the census, and at first the censorship appears to have been comparatively unimportant. But the control which it gave over the whole moral life of the people, and especially the power of appointing senators, made it, in the end, an office of even greater dignity than the consulship itself, and it was, with hardly an exception, held only by men of consular rank. The election was held in the comitia centuriata under the presidency of a consul, but the censor had no imperium, and, though he sat on the curule chair, he did not have the fasces borne before him. On the other hand the eminence of his office became apparent when he died, for he alone of all magistrates was buried in the full purple toga which had been the emblem of royalty. The censors also differed from other magistrates in that they were not elected annually; they were only elected for the purpose of taking the census, a duty which ended with the lustrum, or ceremonial purification of the people, and they had to lay down their office when this was completed, or at the latest eighteen months after their election. Then no others were appointed until a new census was to be taken, the usual interval being four or, later, five years. Re-election was forbidden.

The republican constitution (VIII): The aedileship

The aediles were originally purely plebeian officers, assistants of the tribunes, as the quaestors were assistants of the consuls, and were elected, like the tribunes themselves, in the concilium plebis.

A complete change, however, came over the office as a result of the creation in 367 of two new officers with the same title who were true magistrates of the whole people and as such were elected by the comitia tributa. Henceforward the connection with the tribunate is forgotten (1) and the four aediles act largely together as a single "college". Some differences between the plebeian and "curule" aediles remain; the former must always be plebeians, the latter are elected in alternate years from the two orders; the curule aediles have not only the curule chair from which they derive their name but also the magisterial praetexta, whereas the plebeian aediles, like the tribunes, have no outward sign of their office, and are in general considered to hold a lower rank.

The republican constitution (VII): The praetorship

The events which led up to the creation of the first praetorship in 367 B.C. have already been described. The new magistrate was to take over the duties hitherto performed by the consuls with respect to civil jurisdiction. This, it may as well be noted at once, does not mean that the praetor was a judge in our sense of the word. A Roman civil trial, until well on into the empire, always took place in two stages, the first of which alone was the concern of the jurisdictional magistrate. This was the stage in iure, in which only the preliminaries and especially the issue between the parties was settled. It was in the second stage, apud iudicem, that the actual trial took place and the issue raised was decided, the judge (iudex) in this stage being, not a magistrate, but a private person appointed for that purpose.

It is this division of functions between the magistrate and the iudex which alone makes it possible to understand how the Romans were able to manage for so long with a single jurisdictional magistrate, for it was not until about 242 B.C. that a second praetor was appointed and a division of duties made, one praetor superintending the jurisdiction between citizens (praetor urbanus) and the other that between foreigners or between citizens and foreigners and hence known as praetor qui inter peregrinos ius dicit, or more shortly praetor peregrinus ("foreign" praetor).

The republican constitution (VI): The consulate

We have seen that on the downfall of the monarchy the kingly power was limited by being transferred to two annually elected officers, known in historic times as consuls, and that the struggle between the orders turned largely on the questions of the eligibility of plebeians to this office, which continued throughout the republic to be the highest in the state. Like the royal power of which it was the successor, the consular imperium was, strictly, unlimited, extending to all departments of government, and including leadership of the army, jurisdiction and the right of putting business before the assembly as well as, of course, before the senate, the advisory body originally of the kings, now of the consuls. The only sphere in which the consuls did not succeed fully to the kingly power appears to have been that of religion. The position of head to the priestly college of pontifices passed to a separate official, the pontifex maximus, and for certain minor religious purposes the name of "king" was retained by a priest known as the rex sacrorum.

The election of the consuls took place in the comitia centuriata, which was summoned for this purpose normally by a consul, exceptionally by a dictator, an interrex or a military tribune with consular power. For a praetor to hold the consular election was quite irregular. The date of the elections, the most important regular political event in the year, which drew numbers of citizens from all parts of Italy to Rome, varied considerably from year to year until settled by Sulla, after whose time they were held in July. The consular year however (since a law of 153 B.C.) always began on January Ist, so that there was a considerable interval during which the successful candidates were consules designati before entering on their office. Once elected, a consul could not legally be removed from office, except perhaps by a dictator, but removal of a consul did occur in a few cases during the revolutionary period. If a consul died or resigned it was for his colleague to hold an election to fill his place for the remainder of the year. If both consuls died, an interrex had to be appointed.

The republican constitution (IV): Characteristics and procedure of roman assemblies

As already noticed, a Roman assembly can meet only when summoned by a magistrate, and it can transact only the business put before it by the magistrate. His proposal it must either accept or reject; there is no possibility of amendment, nor, in the actual assembly itself, of any discussion. When legislation was proposed, the magistrate had to draft the bill (rogatio) which he intended to put before the people, or cause it to be drafted for him, and this bill was, by constitutional practice, usually debated in the senate. By strict law, however, this was not necessary, and the consent or disapproval of the senate made no difference to the validity of a law once it was passed. It was the duty of the magistrate when the bill was drafted to publish it in an edict (proponere, promulgare) in which he also announced the date on which he would summon the assembly to vote on it.

The interval between promulgation and voting had, by a lex Caecilia Didia (98 B.C.), to be at least twenty-four days (trinundinum –three Roman weeks–), and this rule seems to have been followed in practice even before it was laid down by law. After promulgation the bill might be withdrawn but it could not be altered. During this interval the magistrate could, and usually did, hold informal public meetings for discussion (contiones) in which he spoke himself and might allow anyone else to speak for or against the bill. Sometimes the contio took place immediately before the assembly proper. Before the voting the bill was read out again and the presiding magistrate asked the people whether they agreed to it or not, velitis iubeatis, Quirites? The people then arranged themselves in their divisions (tribes or centuries) and voted separately. Originally each man gave his vote orally, but with the growth of bribery in the late republic an attempt was made to check it by introducing the secret ballot. Each man was given two tablets, one marked U.R. (uti rogas –"as you propose"–) and the other A. (antiquo –"I vote for the old state of things"); the former he cast into the urn if he wished to vote for the proposal, the latter if he rejected it.

The republican constitution (III): The assemblies of the people

From the very first, Roman popular assemblies appear to have had two peculiarities which remained characteristic of them so long as they continued to exist: (a) the voting was always by groups, and (b) the assembly could meet only when summoned by a magistrate, and could transact only the business put before it by the magistrate who summoned it.

The assembly did not, like the British House of Commons, vote by a simple counting of heads. First the heads were counted in each group, the majority determining the vote of the group; then the votes of the groups were counted, and the majority determined the vote of the assembly. The first group to be used for this purpose was the curia, and the earliest assembly was therefore known as the comitia curiata (1).

The republican constitution (II): The struggle between the orders

What was the origin of the plebeians is a question which has never been satisfactorily settled. According to Mommsen they were originally "clients", that is people who without being actually slaves were in a position of dependence. They might be slaves who had been set free but remained dependent in their "patrons" or former masters; they might be foreigners who had settled at Rome and placed themselves under the protection of a Roman; or, lastly, they might be members of conquered communities allowed to live in de facto freedom but without political rights. This hypothesis of Mommsen's is, however, not much in favour to-day. Many prefer to regard the difference between patricians and plebeians as originally one of race, the plebeians being the original inhabitants conquered by the patricians, who thus stood to them in a relationship something like that existing between the Normans and the English in the period following the conquest. According to others, the relationship was the other way about, the patricians being the original inhabitants and the plebeians foreigners whom they only admitted to the city as inferiors. More probably correct than either hypothesis is the view that there was no racial difference and that the patricians were simply the nobility. It may well be that at Rome, as in other city-states, the greater part of the land got into the hands of a minority of families. The comparative wealth of these families enabled them to live within the city and farm their lands outside through dependents, an advantage which in turn facilitated the arrogation of superior political rights to themselves. But whatever the origin of the distinction, it is one which appears as far back in Roman history as we can go, and in all times of which we know anything for certain the plebeians were citizens –unprivileged citizens, no doubt, but not mere resident foreigners. In spite of contrary views it may be said with some certainty that they not only fought in the Roman army but were members of the popular assembly.

The struggle between the plebeians and the patricians was of a twofold character, partly economic and partly political, and originally it was probably their economic grievances which the plebs found the more serious.

The republican constitution (I): Elements

Already in the monarchical constitution there had been the three elements of political organisation common to the Aryan peoples, the King, the Council of Elders (senatus, connected with senex), and the Assembly of the people.

Of the distribution of functions between the three we know nothing, nor is it likely that the constitution was at all definite. The king was leader in war and chief priest, and exercised some judicial functions; the senate was his council. Presumably the questions which were reserved for the assembly of the whole people varied a good deal with the character of the king; a weak king would ask the people's approval for a proposed course of action where a strong one would do without it.