1. The Lawmakers
Let us try to picture to ourselves this complex state, so formed after five centuries of development. By common consent it was one of the ablest and most successful governments that the world has yet seen; Polybius, indeed, considered it an almost literal realization of Aristotle’s ideal constitution. It provided the framework, sometimes the battleground, of Roman history.
Who, among this people, were the citizens? Technically, those who had been born or adopted into one of the three original tribes of Rome. In practice this meant all males above fifteen years of age who were neither slaves nor aliens, and all aliens who had received a grant of Roman citizenship. Never before or since has citizenship been so jealously guarded or so highly prized. It meant membership in the relatively small group that was soon to rule the whole Mediterranean area; it brought immunity from legal torture or duress, and the right of appeal from any official in the Empire to the Assembly—or, later, the emperor—at Rome.
Obligations went with these privileges. The citizen, unless quite poor, was liable to military service at call from his sixteenth to his sixtieth year; and he could not hold political office until he had served ten years in the army. His political rights were so bound up with his military duties that his most important voting was done as a member of his regiment, or “century.” In the days of the kings he had voted also in the comitia curiata; i.e., he and other heads of families had come together (cum-ire) in a gathering of the thirty curiae, or wards, into which the three tribes had been divided; and to the end of the Republic it was this Curial Assembly that conferred upon the elected magistrates the imperium, or authority to govern. After the fall of the monarchy the Curial Assembly rapidly lost its other powers to the comitia centuriata—the soldiers assembled in “centuries” originally of one hundred men. It was this Centurial Assembly that chose the magistrates, passed or rejected the measures proposed to it by officials or the Senate, heard appeals from the judgments of magistrates, tried all cases of capital crime charged to Roman citizens, and decided upon war or peace. It was the broad base of both the Roman army and the Roman government. Nevertheless, its powers were narrowly constrained. It could convene only at the call of a consul or a tribune. It could vote only upon such measures as were presented to it by the magistrates or the Senate. It could not discuss or amend these proposals; it could only vote Yes or No.
The conservative character of its decisions was guaranteed by the class arrangement of its members. At the top were eighteen centuries of patricians and businessmen (equites). Then came the “first class”—men owning 100,000 asses’ worth of property;I these had eighty centuries, or 8000 men, in the Assembly. The second class embraced citizens owning between 75,000 and 100,000 asses; the third, between 50,000 and 75,000 asses; the fourth, between 25,000 and 50,000 asses; and each of these classes had twenty centuries. The fifth class included citizens owning between 11,000 and 25,000 asses, and had thirty centuries. All citizens possessing under 11,000 asses were formed into one century.10 Each century cast one vote, determined by a majority of its members; a small majority in one century could cancel a large majority in another, and give the victory to a numerical minority. Since each century voted in the order of its financial rank, and its vote was announced as soon as taken, the agreement of the first two groups gave at once ninety-eight votes, a majority of the whole, so that the lower classes seldom voted at all. Voting was direct: citizens who could not come to Rome for the meeting had no representation in the Assembly. All this was no mere device to disfranchise the peasants and the plebs. The classification of centuries had been made by the census to distinguish men for taxation as well as for war; the Romans thought it just that the right to vote should be proportioned to taxes paid and military duties required. Citizens with less than 11,000 asses of property had altogether only one centurial vote; but correspondingly they paid a negligible tax and were in normal times exempt from military service.11 Of the proletariat, till Marius’ day, nothing was asked except prolific parentage. Despite some later changes, the Centurial Assembly remained a frankly conservative and aristocratic institution.
Doubtless as an offset to this, the plebs had from the beginning of the Republic held its own assemblies, the concilia plebis. Out of these councils, probably, came the comitia populi tributa which we find exercising legislative power as early as 357 B.C. In this Tribal Assembly of the People the voters were arranged according to tribe and residence, on the basis of the Servian census; each tribe had one vote, and the rich counted for no more than the poor. After the recognition of its legislative authority by the Senate in 287, the power of the Tribal Assembly grew until by 200 it had become the chief source of private law in Rome. It chose the tribunes (i.e., tribal representatives) of the people (tribuni plebis) as distinct from the tribuni militares elected by the centuries. Here, too, however, there was no discussion by the people; a magistrate proposed a law and defended it, another magistrate might speak against it; the Assembly listened, and voted Yes or No. Though by its constitution it was more progressive than the Centurial Assembly, it was far from radical. Thirty-one of its thirty-five tribes were rural, and their members, mostly owners of land, were cautious men. The urban proletariat, confined to four tribes, was politically powerless before Marius, and after Caesar.
The Senate remained supreme. Its original membership of clan heads was recruited by the regular admission of ex-consuls and ex-censors, and the censors were authorized to keep its numbers up to 300 by nominating to it men of patrician or equestrian rank. Membership was for life, but the Senate or a censor could dismiss any member detected in crime or serious moral offense. The august body convened at the call of any major magistrate in the curia, or senate house, facing the Forum. By a pleasant custom the members brought their sons with them to attend in silence, and to learn statesmanship and chicanery at first hand. Theoretically the Senate might discuss and decide only such issues as were presented to it by a magistrate, and its decisions were merely advice (senatus consulta), without the force of law. Actually its prestige was so great that the magistrates nearly always accepted its recommendations, and seldom submitted to the assemblies any measure not already sanctioned by the Senate. Its decisions were subject to veto by any tribune, and a defeated minority of the Senate might appeal to the assemblies;12 but these procedures were rare except in revolution. The magistrates held power for a year only, while the senators were chosen for life; inevitably this deathless monarch dominated the bearers of a brief authority. The conduct of foreign relations, the making of alliances and treaties, the waging of war, the government of the colonies and provinces, the management and distribution of the public lands, the control of the treasury and its disbursements—all these were exclusive functions of the Senate, and gave it immense power. It was legislature, executive, and judiciary in one. It acted as judge in crimes like treason, conspiracy, or assassination, and appointed from its membership the judges in most major civil trials. When a crisis came it could issue its most formidable decree, the senatus-consultum ultimum, “that the consuls should see to it that no harm should come to the state”—a decree that established martial law and gave the consuls absolute command of all persons and property.
The Senate of the Republic II often abused its authority, defended corrupt officials, waged war ruthlessly, exploited conquered provinces greedily, and suppressed the aspirations of the people for a larger share in the prosperity of Rome. But never elsewhere, except from Trajan to Aurelius, have so much energy, wisdom, and skill been applied to statesmanship; and never elsewhere has the idea of service to the state so dominated a government or a people. These senators were not supermen; they made serious mistakes, sometimes vacillated in their policies, often lost the vision of empire in the lust for personal gain. But most of them had been magistrates, administrators, and commanders; some of them, as proconsuls, had ruled provinces as large as kingdoms; many of them came of families that had given statesmen or generals to Rome for hundreds of years; it was impossible that a body made up of such men should escape some measure of excellence. The Senate was at its worst in victory, at its best in defeat. It could carry forward policies that spanned generations and centuries; it could begin a war in 264 and end it in 146 B.C. When Cineas, the philosopher who had come to Rome as envoy of Pyrrhus (280), had heard the Senate’s deliberations and observed its men, he reported to the new Alexander that here was no mere gathering of venal politicians, no haphazard council of mediocre minds, but in dignity and statesmanship veritably “an assemblage of kings.”13
2. The Magistrates
The major officials were elected by the Centurial, the minor by the Tribal, Assembly. Each office was held by a collegium of two or more colleagues, equal in power. All offices except the censorship ran for only a year. The same office could be held by the same person only once in ten years; a year had to elapse between leaving one office and taking another; and in the interval the ex-official could be prosecuted for malfeasance. The aspirant to a political career, if he survived a decade in the army, might seek election as one of the quaestors who, under the Senate and the consuls, managed the expenditure of state funds, and assisted the praetors in preventing and investigating crime. If he pleased his electors or his influential supporters, he might later be chosen one of the four aediles charged with the care of buildings, aqueducts, streets, markets, theaters, brothels, saloons, police courts, and public games. If again successful, he might be made one of the four praetors who in war led armies, and in peace acted as judges and interpreters of the law.III
At about this point in the cursus honorum, or sequence of offices, the citizen who had made a name for integrity and judgment might become one of the two censors (“valuators”) chosen every fifth year by the Centurial Assembly. One of them would take the quinquennial census of the citizens, and assess their property for political and military status and for taxation. The censors were required to examine the character and record of every candidate for office; they watched over the honor of women, the education of children, the treatment of slaves, the collection or farming of taxes, the construction of public buildings, the letting of governmental property or contracts, and the proper cultivation of the land. They could lower the rank of any citizen, or remove any member of the Senate, whom they found guilty of immorality or crime; and in this function the power of either censor was immune to the veto of the other. They could try to check extravagance by raising taxes on luxuries. They prepared and published a budget of state expenditures on a five-year plan. At the close of their eighteen-month term they would gather the citizens together in a solemn ceremony of national purification (lustrum), as a means of maintaining cordial relations with the gods. Appius Claudius Caecus (the Blind), great-grandson of the Decemvir, was the first to make the censorship rival the consulate in dignity. During his term (312) he built the Appian Aqueduct and the Appian Way, promoted rich plebeians to the Senate, reformed land laws and state finances, helped to break down the priestly and patrician monopoly and manipulation of the law, left his mark on Roman grammar, rhetoric, and poetry, and, by his deathbed speech against Pyrrhus, decided the Roman conquest of Italy.
Theoretically one of the two consuls (“consultants”) had to be a plebeian; actually very few plebeians were chosen, for even the plebs preferred men of education and training for an office that would have to deal with every executive phase of peace and war throughout the Mediterranean. On the eve of the election the magistrate in charge of it observed the stars to see if they favored the presentation of the several candidates’ names; presiding over the Centurial Assembly on the morrow, he might offer to its choice only those names that the auspices had approved;14 in this way the aristocracy discouraged “upstarts” and demagogues, and in most cases the Assembly, awed or intimidated, submitted to the pious fraud. The candidate appeared in person, dressed in a plain white (candidus) toga to emphasize the simplicity of his life and morals, and perhaps the more easily to show the scars he had won in the field. If elected, he entered office on the ensuing March 15. The consul took on sanctity by leading the state in the most solemn religious rites. In peace he summoned and presided over the Senate and the Assembly, initiated legislation, administered justice, and in general executed the laws. In war he levied armies, raised funds, and shared with his fellow consul command of the legions. If both of them died or were captured during their year of office, the Senate declared an interregnum, and appointed an interrex (or interval-king) for five days, while a new election was being prepared. The word suggests that the consuls had inherited, for their brief term, the powers of the kings.
The consul was limited by the equal authority of his colleague, by the pressure of the Senate, and by the veto power of the tribune. After 367 B.C. fourteen military tribunes were chosen to lead the tribes in war, and ten “tribunes of the plebs” to represent them in peace. These ten were sacro-sancti: it was a sacrilege, as well as a capital crime, to lay violent hands upon them except under a legitimate dictatorship. Their function was to protect the people against the government, and to stop by one word—veto, “I forbid”—the whole machinery of the state, whenever to any one of them this seemed desirable. As a silent observer the tribune could attend the meetings of the Senate, report its deliberations to the people, and, by his veto, deprive the Senate’s decisions of all legal force. The door of his inviolable home remained open day and night to any citizen who sought his protection or his aid, and this right of sanctuary or asylum provided the equivalent of habeas corpus. Seated on his tribunal he could act as judge, and from his decision there was no appeal except to the Assembly of the Tribes. It was his duty to secure the accused a fair trial, and, when possible, to win some pardon for the condemned.
How did the aristocracy retain its ascendancy despite these obstructive powers? First, by limiting them to the city of Rome and to times of peace; in war the tribunes obeyed the consuls. Secondly, by persuading the Tribal Assembly to elect wealthy plebeians as tribunes; the prestige of wealth and the diffidence of poverty moved the people to choose the rich to defend the poor. Thirdly, by allowing the number of tribunes to be raised from four to ten; if only one of these ten would listen to reason or money, his veto could frustrate the rest.15 In the course of time the tribunes became so dependable that they could be trusted to convene the Senate, take part in its deliberations, and become life members of it after their terms.
If all these maneuvers failed, a last bulwark of social order remained—dictatorship. The Romans recognized that in times of national chaos or peril their liberties and privileges, and all the checks and balances that they had created for their own protection, might impede the rapid and united action needed to save the state. In such cases the Senate could declare an emergency, and then either consul could name a dictator. In every instance but one the dictators came from the upper classes; but it must be said that the aristocracy rarely abused the possibilities of this office. The dictator received almost complete authority over all persons and property, but he could not use public funds without the Senate’s consent, and his term was limited to six months or a year. All dictators but two obeyed these restrictions, honoring the story of how Cincinnatus, called from the plow to save the state (456 B.C.), returned to his farm as soon as the task was done. When this precedent was violated by Sulla and Caesar, the Republic passed back into the monarchy out of which it had come.
3. The Beginnings of Roman Law
Within this unique constitution the magistrates administered a system of law based upon the Twelve Tables of the Decemvirs. Before that epochal enactment Roman law had been a mixture of tribal customs, royal edicts, and priestly commands. Mos maiorum—the way of the ancients—remained to the end of pagan Rome the exemplar of morals and a source of law; and though imagination and edification idealized the ruthless burghers of the early Republic, the tales told of them helped educators to form a stoic character in Roman youth. For the rest, early Roman law was a priestly rule, a branch of religion, surrounded with sacred sanctions and solemn rites. Law was both lex and ius—command and justice; it was a relation not only between man and man but between man and the gods. Crime was a disturbance of that relation, of the pax deorum or peace of the gods; law and punishment were in theory designed to maintain or restore that relation and peace. The priests declared what was right and wrong (faset nefas), on what days the courts might open and the assemblies meet. All questions regarding marriage or divorce, celibacy or incest, wills or transfers, or the rights of children, required the priest as now so many of them require the lawyer. Only the priests knew the formulas without which hardly anything could be legally done. They were in Rome the first iurisconsulti, consultants in the law, counselors; they were the first to give responsa, or legal opinions. The laws were recorded in their books, and these volumes were so securely guarded from the plebs that suspicion charged the priests with altering the texts, on occasion, to suit ecclesiastical or aristocratic ends.
The Twelve Tables effected a double juristic revolution: the publication and secularization of Roman law. Like other codes of the sixth and fifth centuries—those of Charondas, Zaleucus, Lycurgus, Solon—they represented a change from uncertain unwritten custom to definite written law; they were a result of increasing literacy and democracy. The ius civile, or law of citizens, freed itself in these Tables from the ius divinum, or divine law; Rome decided not to be a theocracy. The priestly monopoly was further deflated when the secretary of Appius Claudius the Blind published (304) a calendar of court days (dies fasti—“days of utterance”), and a “formulary” of proper legal procedures, which had till then been known to few but the priests. Secularization took another step when Coruncanius (280) began the first known public instruction in Roman law; from that time onward the lawyer replaced the priest and dominated the mind and life of Rome. Soon the Tables were made the basis of education; till Cicero’s day all schoolboys had to learn them by heart; and doubtless they had a share in forming the stern and orderly, litigious and legalistic, Roman soul. Amended and supplemented again and again—by legislation, praetorial edicts, senatusconsulta, and imperial decrees—the Twelve Tables remained for nine hundred years the basic law of Rome.
The law of procedure was already complex in this code. Almost any magistrate might act as a judge; but the praetors were the usual court, and their revisions and interpretations of the statutes kept Roman law a living growth instead of a corpse of precedents. Every year the praetor urbanus, or chief city magistrate, drew up a list or “white tablet” (album) of senators and equites eligible for jury service; the presiding judge in an action chose jurors from this list, subject to a limited number of rejections by plaintiff and defendant. Lawyers were permitted to advise clients and plead in court; and some senators gave legal advice in public sittings or at home. The law of Cincius (204 B.C.) forbade taking pay for legal services, but legal skill found ways of circumventing this counsel of perfection. Slaves were often tortured to elicit evidence.
The Twelve Tables constituted one of the severest codes in history. They retained the old paternal omnipotence of a military-agricultural society; allowed the father to scourge, chain, imprison, sell, or kill any of his children—merely adding that a son thrice sold was thereafter free from his father’s rule.16 Class division was preserved by forbidding the marriage of a patrician with a plebeian. Creditors received every right against debtors.17 Owners could dispose freely of their property by will; property rights were held so sacred that a thief caught in the act was given as a slave to the man whom he had robbed. Penalties ranged from simple fines to exile, enslavement, or death. Several took the form of equivalent retaliation (lex talionis); many were fines delicately adjusted to the rank of the victim. “For breaking the bones of a freeman, 300 asses; of a slave, 150 asses.”18 Death was decreed for libel, bribery, perjury, harvest thieving, nocturnal damage to a neighbor’s crops, the defrauding of a “client” by a patron, “practicing enchantments,” arson, murder, and “seditious gatherings in the city by night.”19 The parricide was tied in a sack, sometimes with a cock, a dog, a monkey, or a viper, and cast into the river.20 Within the capital, however, appeal from any but a dictator’s sentence of death could be taken by a citizen to the Assembly of the Centuries; and if the accused perceived that the vote there was going against him he was free to commute his sentence into exile by leaving Rome.21 Consequently, despite the severity of the Twelve Tables, capital punishment of freemen was rare in republican Rome.
4. The Army of the Republic
The Roman constitution rested finally on the most successful military organization in history. The citizens and the army were one; the army assembled in its centuries was the chief lawmaking body in the state. The first eighteen centuries supplied the cavalry; the “first class” formed the heavy infantry, armed with two spears, a dagger, and a sword, and protected by bronze helmet, cuirass, greaves, and shield; the second class had all of these except the cuirass; the third and fourth had no armor; the fifth had only slings and stones.
A legion was a mixed brigade of some 4200 infantry, 300 cavalry, and various auxiliary groups;22 two legions made a consul’s army. Each legion was subdivided into centuries—originally of one hundred, later of two hundred, men—commanded by centurions. Every legion had its vexillum—its banner or colors; honor forbade that this should ever fall into hostile hands, and clever officers sometimes threw it into the enemy’s ranks to stir their men to a desperate recovery. In battle the front ranks of the infantry hurled at the foe, ten to twenty paces away, a volley of javelins—short wooden lances with an iron point—while on the wings archers and slingers attacked with arrows and stones, and the cavalry charged with pikes and swords; hand-to-hand combats with short swords were the final and decisive action. In a siege massive wooden catapults, worked by tension or torsion, hurled ten-pound rocks over 300 yards; immense battering rams, suspended on ropes, were drawn back like a swing and then released against the enemy’s walls; an inclined ramp of earth and timber was built, wheeled towers were pushed and hauled up this ramp, and from these towers missiles were discharged upon the foe.23 Instead of the solid and unwieldy phalanx—six lines of 500 men each—which the early Republic seems to have taken over from Etruria, the legion was rearranged, about 366 B.C., into maniples IV of two centuries each; free room was left between each maniple and its neighbors, and the maniples of each succeeding line stood behind these open spaces. This formation made possible a rapid reinforcement of one line by the next, and a quick veering of one or more maniples to face a flank attack; and it gave free play to that individual combat for which the Roman soldier was especially trained.
The major element in the success of this army was discipline. The young Roman was educated for war from his childhood; he studied the military art above all others, and spent ten formative years of his life in field or camp. Cowardice was in that army the unforgivable sin, punished by flogging the offender to death.24 The general was empowered to behead any soldier or officer, not merely for flight from battle, but for any deviation from orders, however favorable the result. Deserters or thieves had their right hands cut off.25 Food in camp was simple: bread or porridge, some vegetables, sour wine, rarely flesh; the Roman army conquered the world on a vegetarian diet; Caesar’s troops complained when corn ran out and they had to eat meat.26 Labor was so arduous and long that the soldiers begged for battle instead; valor became the better part of discretion. The soldier received no pay till 405 B.C., and little thereafter; but he was allowed to share, according to his rank, in the booty of the defeated—bullion and currency, lands and men and movable goods. Such training made not only brave and eager warriors but able and intrepid generals; the discipline of obedience developed the capacity to command. The army of the Republic lost battles, but it never lost a war. Men molded by stoic education and brutal spectacles to a contemptuous familiarity with death carved out the victories that conquered Italy, then Carthage and Greece, and then the Mediterranean world.
Such in outline was the “mixed constitution” that Polybius admired as “the best of all existing governments”: a limited democracy in the legislative sovereignty of the assemblies, an aristocracy in the leadership of the patrician Senate, a Spartan “dyarchy” in the brief royalty of the consuls, a monarchy in occasional dictatorships. Essentially it was an aristocracy, in which old and rich families, through ability and privilege, held office for hundreds of years, and gave to Roman policy a tenacious continuity that was the secret of its accomplishments.
But it had its faults. It was a clumsy confusion of checks and balances in which nearly every command could in time of peace be nullified by an equal and opposite command. The division of power was an aid to liberty and—for a while—a restraint on malfeasance; on the other hand, it led to great military disasters like Cannae, it dissolved democracy into mob rule, and at last brought on the permanent dictatorship of the Principate. What astonishes us is that such a government could last so long (508 to 49 B.C.) and achieve so much. Perhaps it endured because of its muddling adaptability to change, and the proud patriotism formed in the home, the school, the temple, the army, the Assembly, and the Senate. Devotion to the state marked the zenith of the Republic, as unparalleled political corruption marked its fall. Rome remained great as long as she had enemies who forced her to unity, vision, and heroism. When she had overcome them all she flourished for a moment and then began to die.