Ancient History Sourcebook

The Roman Republican Constitution: Outline

The Roman Republican Constitution

I. Tarquinius Superbus, Lars Porsenna, and the Transition to the Republic
A. Rape of Lucretia legend (to characterize tyranny of the Tarquins).
B. Lars Porsenna (= Mastarna?) rules Rome briefly after the fall of the Tarquins.
1. But trad'n makes him an ally of Superbus who besieges the city in vain.
C. Dual consular system begins immediately?
1. So say the Fasti. Some scholars downdate.

II. Roman Assemblies in the Republic
A. Four (or five?) different names, but only two different groups.
Comitia Curiata, Comitia Centuriata, Comitia (Populi) Tributa, Concilium Plebis

II. The Comitia Curiata (earliest Roman popular assembly).
A. Non-exlusive membership; reflects "Servian" tribes based on location, not family?
B. Earliest function is to confirm choice of king (assume voting by acclamation at earliest stages).
C. Later passes resolutions (plebiscita).
1. Some functions subsumed with change to tribal voting procedure.
2. This same assembly, voting by tribes, is the Comitia Tributa.
3. Some distinguish a Comitia Populi Tributa and a Comitia Plebis Tributa.
D. Plebiscites get the force of law, 287 BC (lex Hortensia, Sourcebook 42).
1. Comitia Curiata falls into disuse after 287, Comitia Centuriata passes leges and plebiscites.
2. Comitia Curiata continues ceremonial duties (rubber stamp for consuls, praetors).
3. Confirms imperium of magistrates, has jurisdiction over adoptions and wills.

III. The Comitia Centuriata (DH 7. 59, cf. Sourcebook 27).
A. Date of Origin
1. Even if Servius Tullius is too early, it exists by 450 BC (mention in 12 Tables).
2. Supposedly invented to make the Roman assembly more plutocratic.
B. Original functions
1. As criminal court for capital cases.
a. Procedurally, this always involved an appeal from the magistrate's decision (provocatio)?
b. Provocatio in 509 BC may be a retrojection either from the lex Valeria of 449 or 300 BC.
c. But provocatio in 449 looks secure as part of the Valerio-Horatian Laws?
Romans knew it was a Valerius, not sure if it was Publius or Marcus (SB 24).
d. Twelve Tables enshrine jurisdiction of comitia centuriata for capital cases (IX. 2).
e. See Cicero, de Domo Suo 17.45; also Sourcebook 33.
2. Election (originally just approval?) of consuls.
a. Later praetors, censors, aediles [except Plebeian], quaestors.
b. Elections are real, but from candidates proposed by the Senate.
c. And subject to influence wielded under the patron/client system.
3. Digression on Patron/Client system.
a. Cicero (Rep. 2.16) believed the system was as old as Romulus.
b. J-C Richard sees it as key to the Servian tribal reforms.
c. Example of the Fabii on the war with Veii illustrates its pervasiveness and power.
Quote from Livy 2.48-49.
4. Procedure.
a. No speeches or proposals from the floor.
b. Preliminary discussions is groups (contiones) during the preceding weeks.
C. Original Composition and Structure
1. Six classes by wealth, the sixth being the capite censi “head count”.
1st Class: 98 centuries
2nd Class: 22 centuries (20 plus 2 of engineers)
3rd Class: 20 centuries
4th Class: 22 centuries (20 plus 2 of trumpeters)
5th Class: 30 centuries
Head Count: 1 century
2. The centuries polled from the top down.
3. Voting ended when 97 (or 98?) of 193 centuries were in agreement.
4. Plutocratic character possibly undermined after reforms c. 240, cf. DH 4. 21. 1-3.
D. Legislative Functions.
1. Originally passes laws subject to confirmation by the Senate (patrum auctoritas).
2. 339 BC, Senate power changes to probouleutic (approves laws in advance).
3. Remains the body for elections, appeals, declaration of war.
4. But in the later Republic the Comitia Tributa is the main legislative assembly.

IV. The Comitia Tributa (Populi)
A. Overlaps with Concilium Plebis or is confused with it in many sources.
B. Main Differences.
1. Open to all citizens.
2. Presided over by consul or praetor, not tribune.
C. Main Similarities
1. Voting is by the 35 tribes, 4 urban and 31 rural.
a. All poor and ex-slaves are in the urban tribes.
b. Number of tribes rises from 25 in the 4th century to 35 by 240 BC.
2. Legislates broadly including criminal laws.
D. Example of confusion: under 471, Livy says “tribunes first elected in the Comitia Tributa Plebis.” (2.58)
1. He probably should have said the Concilium Plebis.
a. Lack of tribunician authority before 471 should stem from election by the Concilium Plebis.
b. Annalists before Livy had had tribunes elected by the Comitia Curiata. Reject this.
2. Livy is thinking of the Comitia Populi Tributa or just Comitia Tributa.
3. Less plutocratic than the Comitia Centuriata.
a. But do not accept that it elected the plebeian magistrates.

V. The Concilium Plebis and Tribunes of the Plebs.
A. Origin of the concilium plebis is unclear. No trace of it in the regal period.
1. Begins as an informal gathering? Tied to struggle of orders Q.
2. Supposedly arose informally, affirmed in 471 by Lex Publilia.
3. It elects the tribunes of the people and the plebeian aediles.
4. It legislates broadly with the blessing of the Senate, mostly on prescribed measures.
5. Plebiscites get the force of law in 287.
B. Tribunes of the Plebs
1. Traditionally created as part of the settlement of the first secessio (strike) in 494.
a. But the first secessio is a canard (a doublet of the secession of 450).
b. Tribunate probably achieves recognition with Lex Publilia in 471.
c. Proceeds from the arrests of the consuls Manlius and Furius by the tribunes.
1. This is unlikely to have happened. Tribunes had no such authority (Livy 2.56).
2. Coercitio (power of arrest) belongs only to magistrates with imperium.
3. But tribunes seem to get it after the Valerio-Horatian laws of 449.
d. This leads to the assassination of the tribune Genucius.
f. A near riot spurs the senate to elect Appius Claudius, who precipitates another riot ...
1. Which ends with the Senate recognizing the tribunes.
2. Perhaps more important than what the tribunes actually did in the conflict of orders is that the Romans
believed that they had been the champions of the common people against the abuses of the nobles.
a. That perception is most important for later famous tribunes (Gracchi, Saturninus, Augustus).
3. Not magistrates, they have no imperium.
4. Their power proceeds from the inviolability of their person (sacrosanctitas).
5. Two major rights:
a. An original right of rescuing a constituent from seizure by a patrician.
1. An ancient version of habeas corpus.
b. A later right of near universal veto (intercessio), even (in theory) of senatorial decisions.
c. This develops by extension of right to intervene to prevent unlawful arrests.
2. Not to be confused with military tribunes.

VI. The Twelve Tables
A. Codification of the laws in 451 and 450 by a board of ten (the decemviri).
1. Some high points.
a. Right of appeal in capital cases to the Comitia Centuriata (IX).
b. Limits on the patria potestas including emancipation for sons (IV).
c. Legal validity of wills and codification of intestate succession (V).
d. Prohibition against slander/casting of spells (mala carmina) (VIII).
e. Recognition of marriages wherein wife remains attached to father's household (VI).
a. Cum manu remains more popular than sine manu.
f. Forbidding of marriages between patricians and plebeians (XI).
1. But this was apparently short-lived, superseded in 445 BC.

VII. Consuls
A. Monarchic power (imperium) devolves upon them.
1. Symbols of monarchic power: purple border, fasces, lictors, curule chair.
B. Originally only patricians were consuls?
1. Fasti seem to controvert this, but solve by positing either:
a. Transitio ad plebem (conversion from patrician to plebeian), or
b. Patrician and plebeian branches of the same family.
2. Or that the whole patrician/plebeian distinction is a false one.
C. Interruption of consuls in the aftermath of the Twelve Tables passage.
1. 444-367 BC, 55 of 77 years saw tribuni militum consulari potestate.
2. Powers of the consuls divide between censors and military tribunes.
a. Later military tribunes are just junior officers in the Roman army.
3. But censors are institutionalized as one of the highest offices in the state.
a. Two censors at a time with five year terms.
b. They control citizenship, assignment to tribes and centuries, admission to Senate.
c. Typically only those who have held a curule magistracy (consul or praetor).
d. Unclear at what date the censors acquire power of appointment to the Senate (Lex Ovinia).
1. Variously placed in 5th and 4th centuries BC.
D. Licinio-Sextian Law (376 BC) propose to permit or demand one plebeian consul.
1. Implementation seems not to be immediate?
2. It took ten years to pass; passes in 367 BC.
3. But thereafter we do get years with two patricians (7 of 24 to 342 BC).
4. Praetors a spin-off of this reform - originally patrician only.
a. That lasts until 337, when Q. Publilius Philo becomes praetor.
b. A major duty is publication of edicts (legal guidelines).
c. Praetors preside over the courts and other municipal matters.
E. Consulship is pinnacle of political career for most politicians.
1. Consulars could go on to become censor or dictator.
2. Increasingly, consulship is occupied with military duties.
3. Possibility of extension of command by the Senate (prorogatio).
a. Rare in the 4th century, this becomes very important later on.

IX. Senate
A. Function for the early period is hard to define. Much power, little of it statutory.
B. Before the censors it is not clear what were the qualifications for membership.
C. Membership comes to be awarded upon completion of magistracies.
1. First only for curule magistracies (consul, praetor, curule aedile).
2. Later extended to include plebeian aediles, tribunes, and finally quaestors.
D. Without formal legislative power, the Senate still ran the Roman Republic (more so in the late Republic).
1. Syme: The Roman Republican government was a "senatorial oligarchy".

Source: https://web.archive.org/web/20000305015749/http://web.reed.edu/academic/departments/classics/RepublicanConstitution1.html

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Paul Halsall, February 2023
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