Historical and Constitutional Background

In the eighth century bc (Roman tradition fixed the date at 753 bc), a settlement of Italic peoples took root on the central Italian plain of Latium in the lower valley of the Tiber River, some fifteen miles from the sea.

The formation of this settlement probably derived from a number of neighbouring clans (gentes) joining to establish a larger political entity. In early times, the clan (gens) was the most important element in society as it performed most of the political, religious and economic functions that were only later gradually assumed by the state. A clan was composed of households (familiae) that traced their lineage back to a common male ancestor (real or legendary). The members of a clan bore a common gens-name, could hold meetings and pass resolutions that were binding on the members, and they had a common cult. Although in time the central state organization supplanted the clan system, the latter continued to play an important role in social and religious life for a considerable period.

The early Roman society displayed a strongly patriarchal and conservative pattern that remained a distinctive feature of the Romans throughout their history. The cornerstone of society was the household (familia), a closely-knit unit characterized by its social and economic cohesion. The head of the family (pater familias) had near absolute power over all persons and all property in his household, even though this power was in practice limited by custom, religion and public opinion. Leading families assumed the role of patrons for a motley class of people, the clients (clientes), whose members had a position of complete personal dependence upon the families to which they had attached themselves. A client and patron relationship was hereditary on both sides and based on reciprocity of socially prescribed duties and obligations.

The clientela phenomenon continued throughout Roman history, although in later ages it played a less prominent role.

Another feature of early Roman society was the division of the population into two classes: the aristocrats or patricians, who increasingly insisted on their economic, social and political predominance; and a heterogeneous group of commoners or plebeians. The patrician aristocracy formed a closed order in society with clearly defined privileges based upon birth and the ownership of landed property. The members of this class enjoyed all the rights of the Roman citizenship—only they were Roman citizens in a full sense (cives optima iuris)—and monopolized political power. The plebeian class was composed largely of small farmers, labourers, artisans and tradesmen. Although its members were Roman citizens, initially they did not enjoy any of the public rights (iura publica) of the Roman citizenship such as the right to hold public office (ius honorum) in the political, military or religious spheres. According to the first century BC historian Livy,name="_ftnref1" title="">^{^[1]} at first only patricians formed a gens but the names of early plebeian clans are also cited in the sources.

The economic life of the Romans in the period under consideration was based largely on cattle-rearing and cultivation of the land. It cannot be said with certainty whether the early Romans were familiar with the principle of private ownership. Probably at first only moveables (such as domestic animals and implements) could be privately owned, whilst immoveables were subject to collective ownership by the Roman clans. As their city expanded and contacts with other communities proliferated, the Romans developed an interest in trade, commerce and industry. The early Romans did not use coins in their transactions but pieces of bronze whose value was determined according to their weight.

After the introduction of a written alphabet in the late sixth century BC, the Romans began to record their customary rules governing property and draft legal documents for certain economic transactions, last wills and testaments.

By the fifth century, the Roman settlement had begun a process of steady expansion. In 493 bc, Rome concluded a treaty with a league of Latin cities whereby each party undertook to aid the other in the event of war. Thereafter, the Romans concentrated on quelling the power of opposing tribes to the north while gradually dominating the Latin cities. During the fourth and early third centuries, the Romans fought a series of wars against the Samnites (a tribe from the Apennine area); the Latins who rose in revolt; the Celts and the Etruscans; and finally the Greek city-states of southern Italy. By the time these wars were over in 272 bc the Romans had gained control over most of the Italian peninsula. This did not entail the formation of a single state; rather, the various Italian communities were more or less allowed to govern themselves but they were made subordinate to Rome in different ways.

1.2.1.1 The Early Roman State

The early Roman city-state was shaped under the influence of the Etruscans, a highly civilized people who dominated central Italy in the seventh and sixth centuries BC.

Roman tradition declares that during the first two and a half centuries after the founding of the city, a succession of seven kings had governed Rome, the last three of whom had Etruscan origins. The office of king (rex) was not hereditary but elective. Furthermore, although technically the king was supreme warlord, priest and judge, his authority was limited by the clan organization and by the characteristically Roman habit of seeking advice before action.

The Roman kings turned for advice to a council of clan elders or senate, which probably represented the collective opinion of the patrician class. Besides acting as the king's advisory body, the senate was also entrusted with the task of governing the state during the period between the death of a king and the election of another (interregnum) through a succession of senators acting as temporary kings (interreges). Since the success of the state ultimately depended on the cooperation of the citizenry, the king and his council found it expedient to inform the people of important decisions and therefore convoked on occasion a gathering called the curiate assembly (comitia curiata). This assembly was composed of the thirty curiae, or wards, into which the whole citizen body (populus Romanus) was divided. The curiate assembly, strictly speaking, did not have any legislative power but one of its most important functions was the formal sanctioning of the laws proposed by the king in exercise of his supreme command (imperium). Moreover, this assembly bestowed the imperium upon a newly elected king through a special law called the lex curiata de imperio. Although the political role of the assembly during the regal era seems to have been a passive one, the idea that political authority rested ultimately with the Roman people as a whole had great importance in the development of Roman political theory.

During the period from the late sixth to the mid-third centuries BC, the Roman state organisation underwent a series of momentous changes. A turning point in the history of this period was the overthrow of the monarchy around 509 bc and the establishment of an aristocratic republic. Perhaps more fundamental was the gradual shift of power from the exclusive control of the patricians towards the plebeians. This transformation prompted by the internal political struggle between the two classes (known as ‘the struggle of the orders') was reflected in the creation of institutions specifically designed to safeguard plebeian interests and the opening of state offices that had traditionally been the preserve of the patricians.

By the middle of the third century BC, a precarious equilibrium between the classes had been established and the Roman state was dominated by a new nobility composed of both patrician and wealthy plebeian families. Thus, the fundamentally aristocratic character of the Roman state did not change. What changed was the constitution of the aristocracy in power: the old patrician aristocracy was replaced by a new and exclusive patricio-plebeian nobility based on wealth and office-holding.

The political structure of the republic comprised three interrelated elements: the magistrature (magistratus), the senate (senatus), and the assemblies of the Roman people (comitia).^{^[2]}

The highest executive office of the state was held by two annually elected magistrates, named consuls (consules). Their functions included command of the army and the power to convene the popular assemblies where their proposed bills were voted on. However, as their title (from consulere: to consult) indicates, they were bound by the well-established constitutional principle of consulting the senate on major issues. In times of emergency when the security of the state was threatened, each consul had the right to appoint (with the senate's approval) an extraordinary magistrate, the dictator, in whose hands all state authority was concentrated. However, the dictator's power was limited by the expectation that he would resign immediately upon resolution of the emergency situation or fulfilment of the task he was appointed to tackle. In any event, a dictator could not remain in office for more than 6 months and this rule was apparently engaged without exceptions. During the later Republic, in a great emergency (ultima necessitas) the senate could pass a special decree (senatus consultum ultimum) that armed the consuls with additional powers and authorized them to initiate any extraordinary measures for averting the danger.

From 367 bc, a praetor was elected each year and he controlled the judicial functions relating to the administration of civil law. Around the middle of the third century bc an additional praetor was appointed to supervise litigation in disputes between foreigners, and between foreigners and Roman citizens. The new praetor (praetor peregrinus) was distinguished from the original one who was termed praetor urbanus as he only had jurisdiction over disputes between Roman citizens (iurisdictio urbana). From 443 bc two magistrates, the censors, were elected every 5 years to compile an official list of the citizens of Rome (in 434 bc the duration of the censors' term in office was limited to 18 months). Their chief responsibility was to estimate the wealth of individual citizens and determine the amount of tax that each person had to pay. When it became customary to compose notes on the census list regarding a citizen's misconduct, the censor assumed the additional task of supervising morals. By the end of the fourth century bc, the censors were entrusted with the further task of compiling the roll of senators. From 367 bc, two curule aediles were elected each year to attend to the care and upkeep of the city. They exercised certain legal jurisdiction in market disputes and matters of public order. From 447 bc two magistrates of lower rank, the quaestors, were elected annually to supervise the state treasury. In connection with the magistrature, there should be mention of the tribunes of the plebeians (tribuni plebis) who were not originally regarded as magistrates. The office of tribune was introduced at the beginning of the fifth century bc as an exclusively plebeian office. The chief task of its holders was to protect members of the plebeian class against abuses by patrician magistrates through the exercise of their right to veto acts of other magistrates (intercessio). When the political differences between the patrician and plebeian classes disappeared in the early third century bc, the tribunes were regarded as magistrates for all the Roman people. In the course of time, they acquired the right to convene and preside over the popular assemblies and to submit legislative proposals to them. It was recognized as a general norm that a person could not be appointed to the highest offices of the state without first progressing through the lower ones—a process referred to as cursus honorum. Every magistrate was vested with an executive power (potestas) to perform the various duties and responsibilities of his office. In exercise of his potestas, a magistrate could issue executive orders (ius edicendi) and employ any coercive or punitive measures he considered necessary for the enforcement of his orders (ius coercendi, coercitio minor). Besides the potestas conferred to all state officials, the highest magistracies (the consuls, the praetors and the dictator) were accompanied by a special power known as imperium. Only magistrates with imperium could assume command of an army, and summon and preside over the senate (ius agendi cum senatu) and the assemblies of the people (ius agendi cum populo). Moreover, only these magistrates had the full power of iurisdictio, i.e. the power to set out the legal principles upon which legal disputes were decided (ius dicere: declaring the law), and could impose severe penalties for violations of their orders, including capital punishments (ius coercendi, coercitio maior).

During the republican period the senate (senatus) played a pivotal role in Roman political life. By the middle of the third century bc this body was largely composed of leading ex-magistrates (notably, former consuls and praetors), who held their senatorial office for life. The senate possessed no formal executive authority and its resolutions were officially known as senatus consulta and not laws. However, the prestige and influence of its members and stable constitution meant the senate held the real leadership of Rome in its hands.^{^[3]} Within the senate's province fell the conduct of foreign policy and various duties relating to the administration of public finances, such as fixing the budget assigned to each magistrate, the management of public lands (ager publicus) and the imposition of special taxation (tributum) to cover the expenses of war. Moreover, it was the constitutional practice for magistrates to consult the senate on the formulation and execution of laws and on other important matters of the state. Although a magistrate was not in principle compelled to accept the senate's judgment, he would normally defer to its authority. It is only in times of political crisis and internal disorder that we find legislative proposals were carried in the teeth of senatorial opposition.

Rome's earliest popular assembly (comitia curiata) continued to exist during the republican age. However, as a political body it was superseded by the new assemblies that were formed following the military and political reforms of the late sixth and early fifth centuries bc: the assembly of the centuries (comitia centuriata) and the assembly of the tribes (comitia tributa). Alongside these assemblies was the concilium plebis, which was reserved for the plebeians. A feature common to all Roman assemblies, including the comitia curiata, was that the formulation of decisions proceeded in two stages: first within the group (curia, centuria and tribus) and then per group in the assembly. Decisions were reached by considering the number of groups that voted for or against a proposal; the vote of each group was determined by the majority of the individual voters it comprised. However, the assemblies differed from each other with respect to composition, powers and scope of competence. The comitia centuriata, Rome's principal legislative assembly, consisted of the citizens organized on a timocratic basis into classes and centuries (groups of a hundred citizens). There were five classes in all, each comprising a set number of centuries. The system was far from democratic as the first class consisted of the wealthiest citizens and supplied most of the centuries, and hence could outvote the other four classes in the assembly. The centuriate assembly elected the highest officials of the state and passed laws proposed by magistrates. Moreover, the assembly operated as a court of justice hearing appeals against sentences involving death and other severe punishments imposed by magistrates (provocatio ad populum). The assembly of the tribes (comitia tributa) was the assembly of the citizens as residents of Rome. The Roman people were divided into urban and rural tribes according to their place of residence. There were four urban tribes (tribus urbanae) and several rural tribes (tribus rusticae). The rural tribes, mainly comprised of affluent farmers and large landowners, outnumbered the urban tribes (despite the latter containing more citizens): thus, the wealthier citizens exercised the most influence in the assembly. The most important functions of the tribal assembly were the election of the lower officials and voting on laws that had little political importance. The concilium plebis, the assembly of the plebeians, was created in 471 bc after the Roman senate recognised the right of the plebeians to hold meetings to elect their leaders (the tribuni plebis) and discuss their own affairs. Like the assembly of the tribes, it was organized on a tribal basis. The plebeian assembly passed resolutions, called plebiscita, which originally had no binding effect outside the plebeian class. Following the plebeians’ success in the struggle of the orders, the plebiscita obtained the full force of law and were binding on both patricians and plebeians alike. The formal distinction between the concilium plebis and the comitia tributa was retained until the close of the Republic. After the middle of the third century bc there were actually very few practical differences between the two bodies with respect to their composition and the laws they enacted. This was largely due to the elimination of the political division between the patricians and the plebeians, and the rapid increase of the plebeian population following the social and economic changes prompted by Rome’s expansion.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Historical and Constitutional Background

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