The Earlier Republic (509-264 bc)

(1) Constitutional Change: Kings to Consuls

The move from monarchy to republic meant the removal of the kingship, of course. It was less clear what would replace that role. It is likely that there was a period of uncertainty and experimentation before the new constitutional posiĀ­tion was settled.

In practice, and especially as Rome's influence grew through the Republic, it was found that the business of running Rome was too big a job for the consuls to manage on their own. Over time, therefore, it became necessary to establish lesser magistracies to take over some of the consuls' functions.

One of these was the censorship, introduced in 443 BC. Two censors were elected at four- or five-year intervals, for periods of up to eighteen months, in order to conduct the census. This role included the supervision of morals, because they could place a mark (nota) against someone's name to show that they disapproved of his conduct. This could exclude that person from voting, and excluded him from becoming a senator.

Another was the quaestorship. The quaestors (originally two, increased to four in 421 BC) were originally assistants to the consuls. Their most important functions were related to state finances, and in particular to the management of the public treasury.

The aedileship was created in 367 BC.^[21] The aediles had various responsiĀ­bilities, such as the food and water supplies, the repair of roads, and the public

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marketplace. In the last mentioned of these, they had a major impact on the development of the contract of sale.^[22]

Of the greatest interest for the study of Roman law, though, was the praetorĀ­ship, also created in 367 BC. The praetor was responsible for the administration of civil justice. In that capacity, he^[23] had a major influence on the development of Roman law, as we shall see in Chapters 2 and 3.^[24]

In addition to these, there were various minor magistracies, and also an indiĀ­vidual could be given special powers to deal with some situations. The most important of these was the dictatorship. In emergencies, the consuls could name a dictator to take sole command of the state, with a term limited to six months.

(2) The Struggle of the Orders: Patricians and Plebeians

One important feature of Roman society in the earlier Republic is the division of the citizen body into two classes, or ā€˜Orders': the patricians and the plebeĀ­ians. The origin of the distinction is unknown: according the Roman sources, it emerged during the Monarchy, but it is likely that in fact it only crystallised during the early Republic. The patricians were a hereditary aristocracy; the plebeians, making up the great majority of citizens, were subject to a number of legal and political disadvantages. For example, the magistracies were only open to patricians, as were the priesthoods and the political influence that went with them. Resolutions (plebiscita) of the plebeian assembly, the concilium plebis, were denied legal validity over the whole community, even though the plebeians were the great majority. The patricians' superior legal position allowed them to monopolise knowledge of the law and access to public land. This is not to say that all of the plebeians were poor, though debt was a major problem.

Agitation for reform, as part of the so-called ā€˜Struggle of the Orders', included actual or threatened secession to form a new state, the first of these secessions supposedly happening as early as 494 BC. Over time, reforms did improve the position of the plebeians. In the early Republic, new plebeian magistrates, called tribunes, were recognised with the purpose of protecting the interests of the plebeians. They were given the power to convene the concilium plebis; the right to veto any act of another magistrate; and the right to protect plebeians, espeĀ­cially against unjust punishment. Another major concession, which we will see in greater detail in Chapter 3,^[25] was the publication of the law in the Twelve Tables in 451ā€”450 BC. From 367 BC, as part of a package of laws called the leges Liciniae Sextiae after the tribunes who proposed them, one of the consuls elected each year had to be a plebeian. From 300 BC, plebeians could bepontifices, in other words members of the most politically important of the priestly colleges. Finally, by an enactment of 287 BC called the lex Hortensia, plebiscita of the concilium plebis were made binding on the whole people. By these steps, the patrician/plebe- ian distinction was largely eliminated, but this did little to give greater political power to the masses. What actually happened was merely that political power was opened up to wealthier plebeians. There then emerged a new aristocracy, based on the holding of political office, and by the late Republic it was rare for someone to be elected to a magistracy who did not have any ancestors who had been magistrates.^[26]

(3) Constitutional Continuity: Senate and Assemblies

(a) The Senate

Formal responsibility for the management of the Roman state lay with the magĀ­istrates, between whom the various responsibilities of state were divided.

It was in part because of this that, in practice, the Senate played the leading role in Republican politics. This was the case even though the Senate,just as had been the case under the Monarchy, had very little formal power. After all, the Senate was the only permanent body in the Republican constitution, and so provided the only forum in which longer term policy could be developed.^[29] Moreover, the Senate was made up of the leading men in the Roman state. Its membership was chosen originally by the consuls, and from 312 BC by the cenĀ­sors, and in practice it came to be the convention that someone who had held a senior magistracy would be appointed to the Senate unless he had committed some serious misconduct. The senators, then, were very influential men, exerĀ­cising considerable powers of patronage, and with immense collective political authority. As a result, although the Senate was in theory only a consultative body, in practice it expected to be consulted by the magistrates before they exercised their powers.

(b) The Assemblies

Legislation and the election of magistrates fell within the remit of the whole body of adult, male citizens, meeting as an assembly. We have already seen the nature of these assemblies, and we have met one of them, namely the comitia centuriata. The comitia centuriata elected consuls, praetors and dictators, and could be sumĀ­moned only by a consul. There was another assembly, the comitia tributa. This had the same membership as the comitia centuriata, though organised differently, and was responsible for electing lesser magistrates. We have seen as well that the conĀ­cilium plebis, from which patricians were excluded, acquired in the mid-Republic the power to pass legislation binding on the whole community. In fact, the conĀ­cilium plebis became after this the dominant legislative organ.

(4) The External Situation

During this period, from Rome's beginnings as simply one of many city states, Roman power spread to dominate the whole of Latium and, eventually, the whole of Italy. This was not without setbacks, of course. Most notably, the city of Rome itself was captured and sacked by Gauls from the north of Italy in around 390 BC. From every setback, though, Rome managed to recover, and by the end of the period its dominance was undisputed. The process of estabĀ­lishing dominance over Italy was completed during the first half of the third century BC.

This does not always mean, though, that Rome was exercising direct rule over all of the communities over which it held sway. Sometimes it was, but the politiĀ­cal picture in Italy was much more complicated, and Rome's relationship with another community would depend on the political and military considerations in play at any given time. In addition to conquest and direct rule, there were two further, very important means of spreading Roman influence and control. One of these was colonisation. Often, a settlement of Roman citizens would be planted on new territory.^[30] The other method was through making treaties of friendship with other communities. These treaties would leave the existing local authorities in direct control of their communities, but subject to duties to provide support to the Romans ā€” especially military support ā€” when called upon to do so. These treaties would often be very unequal, in favour of the Romans. For example, only particularly favoured allies would be given Roman citizenship rights, although with such allies Rome was relatively generous. The less favoured would be excluded from this.^[31]

E.