The Constitutional Framework

According to Roman tradition, a succession of seven kings had governed Rome in the first two and a half centuries after the city’s establishment.^[3] Although knowl­edge of the political history of the regal period is scarce, its institutions must almost certainly have included a council of elders, or senate, in which the heads of the noble patrician families had a seat, and a popular assembly, where the voice of the people could make itself heard from time to time.

The kingship came to an end in 509 bc when King Tarquinius Superbus was overthrown and replaced by two annually elected magistrates. Apparently, the fall of the Monarchy was devised by the patricians who, chafing under high-handed foreign monarchs who did not respect their prestige (dignitas) or their advice, led a movement that wrested control of the state from the king. The uprising was probably inspired by similar movements in neighbouring cities and precipitated by the general weakening of the Etruscan power in Italy.

Roman writers describe the end of the monarchy as one of the fundamental events of Roman history.

By the middle of the third century BC, the Roman constitution comprised three major components: the magistrates (magistratus), the senate (senatus), and the assemblies of the people (comitia)?

1.2.2.1     The Magistrates

The magistrates represented the executive. Their functions were carefully pre­scribed, and their powers limited by two important constitutional principles: annuality and collegiality. Annuality meant that a magistrate held office for a year only; collegiality denoted that there were at least two magistrates of equal power in the same office. Furthermore, after leaving office, a magistrate could be held liable for any offences he committed while in office.

The magistrates were elected by the assemblies of the people, which also invested them with potestas or executive power and, in the case of higher magis­trates, imperium or supreme command.

The highest executive office of the state was held by two annually elected magistrates, the consuls (consules). Their functions were very broad and included the administration of the state, leadership of the army and holding supreme com­mand in war. Moreover, they convened the senate and the assemblies of the people, presided over them as chairmen and introduced matters for senate discussion and legislative proposals for assembly voting. Before the introduction of the praetorship in 367 bc, they also governed the administration of justice in relation to both civil and criminal matters.

In 367 bc the Leges Liciniae Sextiae introduced the office of praetor—an office of particular importance for the development of Roman law. The praetor’s function was the administration of civil law, which had hitherto belonged to the consuls. From c. 242 bc a second praetor was appointed to exercise civil jurisdiction in disputes between foreigners (peregrini) and between foreigners and Roman citi­zens. The new praetor (praetor peregrinus) was distinguished from the original official whose jurisdiction was normally restricted to disputes between Roman citizens (iurisdictio urbana) and was thus termed praetor urbanus or praetor urbis.

From 443 bc two censors were elected for the purpose of taking the census, a function that hitherto had pertained to the consuls. Censors were elected every 5 years, but held office for 18 months, which was an exception to the annuality principle. On the occasion of the taking of the census, these officials were entitled to inquire into the private and public life of citizens and to stigmatize those whose behaviour violated generally accepted moral norms.^[9] They could also promulgate general measures for repressing modes of behaviour or living (e.g. excessive luxury) they considered to be contrary to the public interest or the moral traditions of the community.

From 367 bc, two aediles curules were elected each year to oversee law and order and to attend to the care and upkeep of the city. Their functions included the supervision of public works, streets and buildings in Rome, the maintenance of essential food supplies and the organization of certain public games. They also controlled public markets, laid down rules governing the sale of goods therein and exercised jurisdiction with respect to market disputes and matters of public order.^[10]

From the middle of the fifth century BC, quaestors were elected annually to supervise the state treasury (aerarium). These officials were also entrusted with the collection of public revenues derived from taxation and other sources and the financing of public works and military operations.^[11]

At the beginning of the fifth century BC, the plebeians decided to elect their own officials, called tribunes (tribuni plebis),^[12] to safeguard their interests.^[13] The tri­bunes had the right of affording aid (ius auxilii) to members of the plebeian class who were the victims of oppression at the hands of patrician magistrates. In time, the tribunes were endowed with a general power of veto (intercessio), which they might exercise against practically any act of a state organ and so bring about a deadlock in the machinery of government.^[14] When the political differences between the patrician and the plebeian classes disappeared the tribunes were regarded as magistrates for all the Roman people and by the third century BC they had become the chief proponents of legislation.

1.2.2.2     The Senate

The senate (senatus), the great council of the state, was the most important stabilizing factor in the republican system of government.

At the beginning of the republican period the senate was composed of 300 mem­bers, chosen exclusively from the patrician class.^[17] Leading plebeians began to be admitted to the senate after the passing of the leges Liciniae Sextiae in 367 bcsize=1>. From that time the senators were drawn from among those who had occupied the highest offices of the state (notably, former consuls and praetors)^[18] and held their office for life.

1.2.2.3     The Assemblies of the People

Legislative power vested in the assemblies of the people, whose principal functions were the enactment of statutes and the election of magistrates. All male Roman citizens with the right to vote (ius suffragii) had a seat in these assemblies. The assemblies met when convened by the appropriate magistrate, who would place a proposal before them. This proposal could then be approved or rejected and this was done on a block vote system, not by the method of one man, one vote. The voting took place either by curia, a unit going back to very early times, or by centuria (century) or by tribus (tribe) or, in later times, by geographical unit.

Depending on whether voting was done by curia, centuria or tribus, there were three types of assembly: the comitia curiata, the comitia centuriata and the comitia tributa. Alongside these assemblies was the concilium plebis, which was reserved for the plebeians.

The earliest popular assembly in Rome was the curiate assembly (comitia curiata), based on the division of the Roman people into 30 curiae, or brotherhoods of men.^[19] The principal function of this assembly during the Republic was to vote on the lex de imperio, the special law whereby the imperium was vested to the higher magistrates. Furthermore, twice a year it was convened to witness and confirm certain ceremonial acts of private law, such as the making of wills and adrogatio (the adoption of a person not subject to paternal control).^[20]

The comitia centuriata, the greatest of all Roman assemblies, consisted of the citizens organized on a timocratic basis into classes and centuries (centuriae).^[21] Of the political functions of this assembly the most important was the election of the higher magistrates of the state (the consuls, praetors and censors). Within its province fell also the enactment of legislation.^[22] Originally, it seems, legislative measures were regularly brought before it, but eventually this assembly, presum­ably because of its cumbrous nature, was seldom convened for legislative pur­poses—after the enactment of the lex Hortensia (287 bc), practically all legislative measures were brought before the concilium plebis. The comitia centuriata oper­ated also as a court of justice hearing appeals against sentences involving death and other severe punishments imposed by magistrates.

The comitia tributa was the assembly of the citizens organized into groups according to their place of residence. This assembly possessed the important political function of electing the lower magistrates of the state, such as the aediles and the quaestors. Another task of this assembly was voting on laws proposed by higher magistrates, although generally these laws were less politically important than those enacted by the centuriate assembly. However, the relatively uncompli­cated proceedings in the tribal assembly often inspired the senate, in emergencies or for expediency, to request magistrates to submit bills to this assembly rather than the comitia centuriata.

The concilium plebis was the assembly of the plebeians alone, and the voting unit therein was the tribe.^[23] This assembly passed resolutions (plebiscita), which originally had no binding effect outside the plebeian class. After the plebeians’ success in the struggle of the orders, the plebiscita were recognized (by the lex Hortensia de plebiscitis of 287 bc) as having the full force of laws binding on both patricians and plebeians alike. Besides its legislative functions, the concilium plebis acted as a court of justice to hear cases involving violations of the plebeians’ rights.^[24] From the time of the lex Hortensia onwards, this assembly, sitting under the presidency of a tribunus plebis, was by far the most active legislative organ of the state, and the great majority of the laws of which we have record were, strictly speaking, plebiscita?'^[25]

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