Introduction

Republican Rome never had a written constitution. This was not because the Romans were unaware of the possibility of codifying their constitutional practice, because they could and did produce written constitutions for the cities (coloniae) they founded in Italy, certainly by the end of the period and probably from the late fourth century onward.1 In their own case, however, they believed that their system had developed over generations through the accumulating wisdom of their ancestors, not through a single act of legislation. The constitution was not wholly unwritten either, because they passed many laws that modified preexisting practice, changing the number of magistrates, changing procedure in the assemblies, redefining the role of the Senate, and much else. There were also changes that were not so formally recognized, but simply accepted as the way in which business should be handled; adopting a procedure on a particular occasion might always form a precedent for the future.

The consequence is naturally to make the ‘‘Roman Constitution’’ difficult to define and elusive to locate. Modern accounts have sometimes seemed to give the impression of a unified, legally defined, coherent system. This impression is supported by detailed descriptions of the system in action based on reports of individual transactions. This is one sense in which the word ‘‘constitution’’ may be used; but the ‘‘constitution’’ is also the set of rules and principles, written or not, which defines what is permitted or forbidden within the established framework of sovereignty. This is normally evoked only when there are conflicts and disputes about the powers of different bodies or when changes in practice are needed or proposed. This chapter will first try to see what sources of information we have about the Roman system and its early development; then examine its basic working in the late republican period; thirdly look at what light some instances of conflict between powers can throw on

The Roman conception. The main argument will be that change and historical evolution must be recognized in any description of the working of the system and that its character must be assessed at any period in the light of that period’s conditions.

The term the Romans used for their own system of government was res publica, literally ‘‘the public thing,’’ which gave rise eventually to our word ‘‘republic.’’ The word was used both for the city or state as opposed to the individual citizen and for the particular constitutional system that they maintained from the end of the sixth century onward. The Romans themselves saw a high degree of continuity between the sixth-century origins of this form of government and its continuation down to the first century, to the lifetimes of Cicero and Caesar; but this long period saw radical changes in all aspects of the city of Rome and its life. In the sixth century, Rome was a small town speaking a language shared only by its immediate neighbors, and controlling only a limited area of central Italy; by the first century, it had become the richest and most powerful state in the Mediterranean area, ruling directly territories from Spain in the West to Anatolia in the East. Even the idea of the Romans themselves had been transformed in the course of this unrelenting expansion: not only was the population of Rome the city perhaps approaching one million, but membership of the Roman community - ‘‘the Roman citizenship’’ - had been extended gradually outside the immediate vicinity of the city until it included all the free citizens of Italy. If there is truth to be found in the claim that the constitution was the same at the end of this process as it had been at the beginning, the element of continuity will need to be carefully defined. In any simple sense, the Roman system changed totally in the course of five centuries, though, as the Romans thought themselves, the underlying principles survived.

Cicero, in his political dialogue the Republic (Book 2), written in the 50s, not long before the collapse of the republican order during the 40s and 30s, traces republican institutions further back in time than the foundation of the Republic itself. The tradition he followed was that a succession of kings had ruled and to these the different republican institutions owed their origins, many to Romulus the founder, others to Numa, the founder of religious institutions, or to the later kings. The historian Livy, writing a quarter of a century later, presents this as a process of development: the early Romans needed parental guidance; when the last king turned tyrant and was expelled, they had matured and could take care of themselves (Livy 2.1). It is a paradox that the Romans designed their republican system to avoid kingship as the greatest threat to liberty; but regarded their early kings mostly as benefactors, not villains.2 If the historical accounts of the earliest Republic are to be trusted, then there must be some truth in this picture: basic institutions such as the Senate, the assemblies of the People, the priestly colleges, are assumed to exist already. Modern accounts, led by the classic works of nineteenth-century scholarship which assembled the data, have often followed this ancient tradition by seeing profound continuities from regal to republican Rome, especially in the nature of the powers exercised by the officials who took over from the kings.

There is a great deal to be said for the attempt to understand any constitutional system by tracing its development over time. There is, however, a major problem when applying this method to Rome: for the later Roman Republic we have good information; the earlier the period to be considered, the weaker is the information and the less reliable the conclusions that can be drawn. For the early Republic, we are almost wholly dependent on accounts written centuries later by historians, such as Livy and Dionysius of Halicarnassus, who, at best, had a limited grip on the historical situation they were describing.3 For the late republican system, we have strong and at times even contemporary sources of information. First, and most direct, are the texts of laws that were passed by Roman political assemblies, recorded as inscriptions on bronze and still surviving today; there are also texts of decrees of the Senate, preserved in various ways.4 Secondly, there is evidence to be drawn from historians, from other writers, and above all from Cicero’s speeches and correspondence about the actual practice of the assemblies, of the Senate at work, of other political meetings, of magistrates at home and abroad; from all this material we can infer much about the rules by which political life in fact operated. Thirdly, we have an invaluable account, written by the second-century Greek historian Polybius (in Histories, Book 6), of the constitution as he saw it - the view of a well-informed outsider.5 Fourthly, we have Cicero’s attempts, in his Republic and Laws, to write his own version of a Roman constitution, albeit as he would have preferred it rather than as it really was in his day (see also Chapter 2).6

The evidence is therefore rich, detailed and written from different viewpoints, but all of it comes from the last century of the Republic and is only fully reliable when dealing with that short and relatively well-documented period. One option therefore is simply to describe the late republican situation and not to attempt to reconstruct its past. Such a description is offered below; but it is not possible to be satisfied with this alone. Any constitutional system mediates between the past and the present: its purpose is to provide means of showing how present or proposed actions conform to an old-established rule. In addition, the Romans placed a high value on tradition and therefore took constitutional decisions on the basis of claimed ancient precedents. They appealed to the conception of the mos maiorum (ancestral custom) as a reliable guide to legitimacy, implying that continuity was always desirable.7 It is therefore necessary to work out how the constitution in fact developed so as to understand their ideas of the past. Historians of the Republic try to make sense of Rome’s history from the foundation of the Republic, however thin and inadequate they find the surviving accounts. It would be a counsel of despair to say that we cannot even trace some of the main lines of development.