The Roman Late-Republican Constitution

Introduction

The Romans never had a written constitution, but their form of their government, especially from the time of the passage of the lex Hortensia (287 B.C.), roughly parallels the modern American division of executive, legislative, and judical branches, although the senate doesn't neatly fit any of these categories. For a mid-second century B.C. outsider's account of the Roman government see John Porter's translation of Polybius 6.11-18.
Since Roman government changed significantly over time, this 'constitution' is a codification of the governmental form of the late Republic. Sources: University of Texas and the University of Alabama.

I. CITIZENSHIP AND ORDERS IN THE STATE

ROMAN CITIZENSHIP. --The definition of Roman citizenship evolved over the life of the Republic. In general it consisted of two groups of rights:
(i) political rights, including those of voting and holding office
(ii) civil rights, especially:
- personal freedom by the right of appeal
- privileges limiting the arbitrary power of magistrates
- rights of contract: trade, intermarriage, making a will, etc.
Full citizens of Rome enjoyed political and civil rights. But many persons had important civil rights without being entitled to vote or hold office. Roman citizenship was originally restricted to the inhabitants of the city and a small amount of adjacent territory. But as Rome enlarged her boundaries the rights of citizenship were extended, in different degrees, to the conquered Italians and later to the leadership of conquered foreign Provinces.

In the late Republic there were three ranks of Roman citizens: the Senatorial Order, the Equestrian Order, and the People. The first two of these made up the Roman aristocracy:

A. SENATORIAL ORDER

Every man who had held a magisterial office, or who was descended from a former magistrate, had the right to be a Senator. For much of the Republican era there were 300 Senators, but the number fluctuated up to six hundred. By its control over the magisterial elections, the Senate virtually filled its own vacancies from the ranks of the nobility.
In the rare instance when a man who was not from the Senatorial class was chosen a magistrate, he was called a novus homo, and, though he of course became a member of the Senatorial Order, he was not regarded as a noble. His posterity, however, would belong to the nobility.

B. EQUESTRIAN ORDER

Persons of the equestrian census (having a property of 400,000 sesterces), who had not received a horse from the state, but who volunteered with horses of their own. This body consisted mainly of young men of wealth who did not belong to senatorial families. The Lex Iudiciaria of C. Gracchus (B.C. 123), prescribed that jurors must be selected from the Equestrian Order.

Members of the Senate were prohibited from being engaged in any trade or business, and effectively from juries as well. Meanwhile rich men of non-senatorial families were excluded from a political career, and so from the nobility. Thus during the last century of the Republic there were two powerful aristocracies,--the nobles, or Senatorial Order, a governing aristocracy of rank, and the Equestrian Order, an aristocracy of wealth.

C. POPULUS

Below these two aristocratic orders were all the rest of the free-born citizens not possessing a census of 400,000 sesterces. Populi had a status superior to that of the freedmen and the foreign residents.
    The populus (in the narrower sense) was often confounded with the plebs, but in reality the distinction between the plebs and the patricians was in Cicero's time historical rather than political. The patricians had been originally a privileged class of hereditary nobility, entirely different from the later senatorial nobility; but only a few patrician familes remained, and these, though still proud of their high birth, had no special privileges and had been practically merged in the Senatorial Order. Opposed to the patricians had originally been the plebs, a class of unknown origin (probably foreign residents) destitute of all political rights. These had gradually, in the long controversies of the earlier Republican times, acquired all the rights and privileges of full citizens, and a majority of the Senatorial and Equestrian Orders were of plebian origin. In time plebs in an enlarged sense and populus in it narrower acceptation had become synonymous, meaning the "third estate" or, in other words, all citizens not Senators or equites. Officially, however, Populus (in its wider sense) includes all Roman citizens. [So in the formula for the Roman government: Senatus Populusque Romanus. (S.P.Q.R.)]

D. FREEDMEN

Besides the free-born citizens, the Roman state included a large class of freedmen. Manumitted slaves became citizens, but their exact status was a standing subject of controversy in politics. In Cicero's time they voted in the four city tribes, though there had been various attempts to make them eligible for membership in all the tribes so that their suffrages might count for more. Throughout the history of the republic, there was a constant tendency to extend the suffrage, in spite of the effort of the upper classes.

II. THE SENATE

   The Roman Senate (senatus), as its name indicates, was originally the "council of elders", originally exclusively from patrician families. By the late Republic it was mostly composed of former higher magistrates, those who had served as Consuls, Praetors, Censors, Aediles, and Quaestors. When annual magistracies succeeded the regal power, the influence of the Senate increased until the Senate became the actual (though not formal) governing power in the state. It still had no power to pass laws, and was itself subject to the laws of the Magistrates or passed by the whole people. The Senate was the most powerful organ of Republican government and the only body of state that could develop consistent long-term policy.
    The Senate could only be called together by some magistrate regularly possessing the imperium (usually the Consul), or by the Tribunes of the people: the magistrate who summoned it also presided, and laid before it the business for which it was convened. He might at this point give his own judgment. He then proceeded to ask the Senators individually their opinions. The order was to ask in their turns the ex-Consuls, ex-Praetors, and ex-Aediles (that is, those who sat in the Senate by virtue of having held these offices respectively). It has been disputed whether the senatores pedarii--i.e. those who had held no office--had the right to debate. There are, however, numerous instances of their having taken part in discussion. If the annual election had already taken place,--which was usually in July, six months before the new magistrates assumed their offices,--the magistrates-elect were called upon before their several classes. The 'first man' of the Senate (an honorary office usually held by patricians) was called upon first of all, when there were no Consuls-elect. The presiding officer, however, had it in his power to vary the order, and honor or slight any Senator by calling upon him out of order.
    As the Senate was primarily a body of councillors, its business was as a rule laid before it in general terms, not in any special form for action: each Senator could, as he chose, give his judgment in full, by argument, or by simply expressing his assent to the judgment of another. No Senator had a right to introduce any matter formally by motion, as with us, but it was possible for a Senator, when called, to give his opinion on any subject not included in the questions referred. The vote was taken by a physical division, i.e. the Senators went to one side or the other of the house. When a majority had decided in favor of any judgement, it was written out in proper form by the secretaries, under the direction of the presiding magistrate, in the presence of some of its principal supporters, and promulgated.

Authority:
-enacted "decrees of the senate" (senatus consulta), which apparenly had not formal authority, but often in practice decided matters.
-took cognizance of virtually all public matters, but most important areas of competence were in foreign policy (including the conduct of war) and financial administration.

III. THE PUBLIC ASSEMBLIES: the legislative bodies.

The Legislative (or law-making) power proper resided in the Public Assemblies (comitia). In the late Republic there were two principal assemblies, both of them having as their basis the thirty-five local tribes into which the whole people were divided for administrative purposes. These Assemblies included the entire electorate, but each had a different internal organization (and therefore differences in the weight of an individual citizen's vote). Each Assembly was made up of voting units; the single vote of each voting unit determined by a majority of the voters in that unit; measures passed by a simple majority of the units.

A. TRIBAL ASSEMBLY

By the late Republic, the Tribal Assembly had become the main legislative body. There were two distinct assemblies which passed under this name:
(1.) The Tribal Assembly proper, an assembly of the entire people according to the thirty-five tribes (each tribe having one vote), which elected the inferior magistrates: the Tribunes, Curule Aedile, and the Quaestors. The Tribal Assembly was presided over by the Praetor.
(2.) The far more important tribal assembly of the plebeians exclusively, presided over by the Tribune of the People. Strictly speaking, this latter was not comitia, inasmuch as it was not composed of the whole people, populus, --the patricians being excluded from it. But these were now reduced to a few noble families, whose members would not have cared to take part in this democratic assembly even if they had been permitted; and by the Hortensian Law (B.C. 287) acts of this assembly, plebiscita, had received the validity of laws. This plebeian assembly elected the plebeian magistrates (tribunes, plebeian aediles). It was also the principal organ for making laws.
Because the Tribal Assembly was a purely civil assembly it could be convened in any suitable place. It usually met in the Forum.

B. CENTURIATE ASSEMBLY

The Centuriate Assembly, or great assembly, was organized upon the basis of the thirty-five tribes.  The old division of the People into five classes (according to wealth) being retained, for each Tribe there were now formed two Centuries of each class, one of seniores (above 45), one of iuniores, making in all 350 Centuries. To these were added 18 Centuries of Equites (the young men of senatorial families), guilds of smiths, carpenters, hornblowers, and trumpeters, and a Century of Freedmen and capite censi (those who had no property) --373 in all. Each Century had one vote, determined by the majority of its voters. These assemblies were regularly presided over by the Consul; they elected all the higher magistrates, and had full power of making laws, as well as jurisdiction in criminal cases so far as this had not been transferred to the permanent standing courts. Because the Centuriate Assembly was originally a military organization it could only be convened outside the city, and accordingly met in the Campus Martius or parade-ground.
Authority:
- elected Censors and magistrates with imperium (Consuls and Praetors);
- proper body for declaring war;
- passed some laws;
- served as highest court of appeal in cases involving capital punishment.

Classes of the People:
First class: having property valued at 100,000 asses or more
Second class: having property valued at 75,000 asses or more
Third class: having property valued at 50,000 asses or more
Fourth class: having property valued at 25,000 asses or more
Fifth class having property valued at 11,000 asses or more

C. CURIATE ASSEMBLY

This more ancient assembly was retained only certain formal functions, especially that of ceremonially investing the Consuls with the imperium or military authority. It no longer had any real power or political importance. Membership in the Curiate Assembly was originally confined to patricians. It is not clear whether this restriction persisted in the late Republic.

D. CONTIO

Besides these assemblies, there were meetings, theoretically for discussion, called contiones. A contio could be called by any magistrate who had a matter to lay before the people, and was held regularly in the Comitium or the Forum. After a propositon of a law had been offered, such a meeting was regularly convened in order that the voters might hear the arguments on both sides. After that, on the same or a subsequent occasion, the Public Assembly voted on the bill, Yes or No, at a regular meeting for that purpose.

IV. ELECTED MAGISTRATES: the Executives

Collegiality: With the exception of the Dictatorship, all offices were collegial, that is, held by at least two men. All members of a college were of equal rank and could veto acts of other members; higher magistrates could veto acts of lower magistrates. The name of each office listed below is followed (in parentheses) by the number of office-holders; note that in several cases the number changes over time (normally increasing).

Annual tenure: With the exception of the dictatorship (6 months) and the censorship (18 months), the term of office was limited to one year. The rules for holding office for multiple or sucessive terms were a matter of considerable contention over time.

A. Curule (higher) magistrates:

CONSULS (2): Minimum age: 43. Prior appointment as Quaestor and Praetor required. Elected by Senate. Chief civil and military magistrates; had the power to command armies and (within limits) to coerce citizens. Greater authority than Praetors; convened the Senate and the Curiate and Centuriate Assemblies. Term could be extended as a proconsul, with military authority only, for governing outside the City.

PRAETORS (8): Minimum age: 40. Prior appointment as Quaestor required. Elected by Senate. Had the power to command armies and (within limits) to coerce citizens; main functions (1) military commands (governors) (2) administered civil law at Rome. Term could be extended as a propraetor, with military authority only, for governing outside the City.

CENSORS (2): Prior appointment as Quaestor, Praetor, and Consul required. Elected by Senate. Elected every 5 years to conduct census, enroll new citizens, review roll of senate; controlled public morals and supervised leasing of public contracts; in protocol ranked below Praetors and above Aediles, but in practice, the pinnacle of a senatorial career -- enormous prestige and influence (auctoritas).

QUAESTORS (20-40): Minimum age: 30. Elected by Senate. Financial officers and administrative assistants (civil and military); in charge of state treasury at Rome; in field, served as quartermasters and seconds- in-command.

CURULE AEDILES (2): Elected by Senate. In charge of religious festivals, public games, temples, upkeep of city, regulation of marketplaces, grain supply.

B. Lower magistrates:

PLEBIAN AEDILES (2): in charge of religious festivals, public games, temples, upkeep of city, regulation of marketplaces, grain supply.

TRIBUNES (10): Elected by Tribal Assembly. Charged with protection of lives and property of plebians; their persons were inviolable (sacrosanct); had power of veto (Lat. "I forbid") over elections, laws, decrees of the senate, and the acts of all other magistrates (except dictator); convened Tribal Assembly and elicited plebiscites, which after 287 B.C. (lex Hortensia) had force of law.

C. Other Executive Functionaries:

THE AUSPICES: The absolute continuity of the government, which was more necessary at Rome than elsewhere, on account of a kind of theocratic idea in the constitution, was secured by a curious contrivance. The "regular succession" in Roman magistrates was as rigid as later in the Church. The welfare of the state was supposed to depend upon the favor of the gods, and this could only be transferred from one officer to another by an election which was practically a religious ceremony in which both officers took part. This favor, technically known as the auspicia, would lapse unless the election and inauguration were rightly performed. The ceremony consisted in taking the auspices, a regular process of religious divination by the flight of birds, etc., according to a very antiquated ritual.
AUGURS: The magistrates alone were authorized to consult the auspices, that is, to observe the various signs by which the gods were supposed to declare their will with regard to the state. The interpretation of the auspices, however, which had been developed into an extremely technical science (ius augurium), was in the hands of a much honored body (collegium) of distinguished citizens, called augurs (augures). These were not themselves magistrates, but simply the official interpreters of the ius augurium, which they alone were supposed to know. Since all important public acts (especially the holding of the comitia) were done auspicato (i.e., under authority of the auspices), the augurs naturally came to have great political influence. Their interpretation and advice could be disregarded, but such disregard was at the risk of the magistrate and was almost sure to affect his popularity, especially if misfortune followed. [Thus they were a conservative influence in the state.] The augurs held office for life. Originally they had the right to fill vacancies on their board, but later such vacancies were sometimes filled by election by the people. [The rule in this matter was several times changed by law.] Cicero himself became an augur, B.C. 53.
 INTERREX: Whenever there was a suspension of legal authority, by vacancy of the chief magistracy, it was understood that the auspicia--which were regularly in possession of the magistrates--were lodged (in accordance with the most ancient custom) with the patrician members of the Senate until new magistrates should be inaugurated. The renewal of the regular order of things was begun by the patrician senators coming together and appointing one of their own number as interrex. He held office for five days, as chief magistrate of the commonwealth and possessor of the auspicia; then he created a successor, who might hold the comitia for the election of consuls, but who usually created another successor for that purpose.
DICTATOR: in times of military emergency appointed by Consuls; had the power to command armies and (within limits) to coerce citizens. Dictator appointed a Master of the Horse to lead cavalry; tenure limited to 6 months or duration of crisis, whichever was shorter; not subject to veto.

V. THE COURTS.

Late Republican permanent courts consisted of a presiding judge who impanelled and swore in a jury. These juries were drawn by lot from a standing body, and a right of challenging existed as with us. This body was originally made up from the Senatorial Order, but a law of C. Gracchus (B.C. 123) provided that the jurors should be taken from the Equestrian Order. From this time the Senators and the Equites contended for the control of the courts. Sulla restored to the Senators the exclusive privilege of sitting as jurors (B.C. 80), but the Aurelian Law (B.C. 70) provided that the jurors should be taken, one-third from the Senators and two-thirds from the Equestrian Order, and that one-half of the Equites chosen (i.e. one-third of the whole number of jurors) should have held the office of Tribunus Aerarius (i.e. president of one of the thirty-five local tribes). A majority of the jurors decided the verdict. The president had no vote, nor did he decide the law of the case: he had merely charge of the proceedings as a presiding magistrate. Each juror wrote on his ballot A (absolvo) for acquittal or C or K (condemno) for conviction.

Civil litigation:

 Presiding official: Praetor. The Praetor Urbanus had charge of all civil cases between Roman citizens; the Praetor Peregrinus, of all civil suits to which an alien was a party. The Praetor did not try cases but presided only in preliminary stages; determined nature of suit and issued a "formula" precisely defining the legal points at issue, then assigned case to be tried before a delegated judge or board of arbiters (3-5 recuperatores for minor cases, one of the four panels of "The one hundred men" for causes célèbres (inheritances and financial affairs of the rich)). Judge or arbiters heard case, rendered judgment, and imposed fine.

Criminal prosecution:

Before Sulla, criminal jurisdiction rested with the magistrates. But by the various laws concerning appeal, the trial of all important offences was transferred to the assemblies of the people. In accordance with its origin the jurisdiction of these bodies was always theoretically an appellant jurisdiction. The case was supposed first to be decided by the magistrate, who, having given notice to the defendant, brought forward a bill enacting the punishment. If the case was a capital one, involving the life or status of a Roman citizen, the magistrate convened the Centuriate Assembly to decide the case like any other question. If the case involved only a fine, it was tried before the Tribal Assembly by an Aedile or Tribune.
By late Republic (after Sulla) most cases prosecuted before one of the permanent standing jury courts. Juries were large, ranging from 50 to 75 members. Each court had a specific jurisdiction, such as.:
- treason,
- electoral corruption (bribery),
- extortion in the provinces,
- embezzlement of public funds,
- murder and poisoning,
- counterfeiting and fraud,
- violence