There is no doubt that the comitia had the power to change established constitutional practice in many areas, and frequently did so. Thus the Hortensian Law of c.287 established that the decrees of the plebs had the same force as laws passed through the other comitia-f5 the ages at which the magistracies could be held were fixed by the Villian Law of 180;36 old methods of voting were replaced by secret ballots in the course of the 130s, through the Gabinian Law and the Cassian Law (see also Chapter 18);37 the method of selecting priests of the major colleges was fixed by the Domitian Law of 104, and so on.3 Whether there were limits to this capacity is not clear, but legislation never seems to have touched directly on some core areas of the tradition such as imperium, auspicium, or the sacred laws of the priestly colleges. The Romans themselves must have been well aware that their constitution depended on a long series of laws, not just on tradition or the mos maiorum.
Major modifications were also introduced by evolution rather than legislation, and here there was obviously far more room for confusion as to what was traditional and what was the innovation of earlier generations. Thus, for example, the Roman system of administering provinces outside Italy seems largely to have developed from precedent to precedent. The original sense of the word provincia (province) was a job, which might be a legal task, an administrative task, or a military command; in the course of time, without losing the original sense, the word became specially associated with the area of the Empire to which a magistrate was sent. As the number of provinces to be administered grew, the Romans at first increased the number of praetors from the original one to two, four, and then six. But they also had a procedure called prorogatio, through which the power of an annual magistrate could be ‘‘prorogued’’ for a second or third year, during which the consul or praetor continued to hold the imperium and hence to hold a province or to command in the field if necessary. Originally this step had to be taken by a popular assembly, but it came to be a regular part of the Senate’s business to decide which provinciae should be consular or praetorian, and which should be held by prorogued magistrates from previous years. As a result of this, by the late second century, the provincial governors came to be not the current magistrates, who mostly stayed in Rome for the year, but the proconsuls and propraetors, who were the immediate ex-consuls or ex-praetors. This whole imperial system grew up, not as a result of legislation, but through the gradual extension of existing powers and procedures.39
There is no question, therefore, that the constitution evolved over time, never remaining static for very long, and that the introduction of changes, whether brought about by legislation or by evolution, implied awareness in the reformers both of the existing order and of the possibility of innovation. Adaptability to new conditions was obviously essential in such a dramatically changing society as Rome over the centuries of the Republic, but the combination of belief in an ancient system with constant adjustment to new conditions must have brought risks. What happened when conflict arose, as it often did, between the different elements of the constitution?
A frequent source of conflict was in the charged relationship between the Senate and the individual commander or governor. One famous example was that of one of the consuls of 173, M. Popillius Laenas. Popillius, in command in Liguria, attacked a local people, the Statelliates, destroyed their town, and sold them into slavery, despite the fact that they had not made war on Rome and had surrendered unconditionally. Decrees were passed condemning these actions and instructing Popillius to reverse his ‘‘atrocious’’ actions. Popillius defied the Senate in person, ferociously criticized and fined the praetor who had chaired the Senate meeting that had condemned him and, returning to his province, persisted in his policies. The consuls of 172 were Popillius’ brother Gaius and P. Aelius Ligus; Ligus initially put the matter on the Senate’s agenda, but was then persuaded to back his colleague so that the two consuls jointly refused to allow the Senate to debate the issue any further. The Senate, by way of retaliation, refused to conduct any further public business until the matter had been resolved. This produced constitutional deadlock, only broken when two tribunes took up the Senate’s cause, set up a special procedure to put Popillius on trial, and forced him to come back to Rome by threatening to have the trial conducted in his absence. To some extent at least, the Senate’s decrees were thus finally enforced and at least partial reparation paid to the Statelliates (Livy 42.8.1-9.7, 21.1-5). But Popillius himself found yet another ally in the praetor charged with holding the trial, who allowed the proceedings to be unresolved at the end of his year of office, so the special commission lapsed without condemning him (Livy 42.22.1-8).
The Senate’s constitutional weakness is very clear here, as on similar if less dramatic occasions. They are unable to act at all unless the presiding magistrate puts the motion to them; it is interesting that Popillius can load blame on the praetor who had chaired the Senate in the consuls’ absence. The only way forward is to find other friendly magistrates, the two tribunes who are prepared to take action in the comitia and propose legislation that sets the stage for judicial proceedings. Some of the specific weaknesses revealed here are gradually remedied in the legislation of the following decades, so that permanent courts and limitations on the actions of proconsuls are established between 149 and 80.40 But the weakness of the Senate’s capacity to enforce its wishes was not resolved.
A century later, in a very different situation, the same weakness is apparent in what the Senate can achieve. The senators in 62 almost to a man wished, rightly or wrongly, to find some way of condemning P. Clodius for an act of sacrilegious intrusion into the mysteries of the Bona Dea; our informant is Cicero, in letters written at the time, from a point of view totally hostile to Clodius. It becomes clear that the Senate can only act by persuading magistrates to put a bill to the Assembly on its behalf; the consul who carried out this duty did so at best half-heartedly and the proceedings were deferred. The Senate passed a stronger decree and a tribune vetoed it. The Senate next adopted the same tactic as in 171, refusing to conduct any business until the matter of the sacrilege had been resolved. Eventually a compromise was reached and the bill passed, in a weaker form (Cic. Att. 1.14.1-5 (= 14.1-5 SB); 1.16.1-2 (=16.1-2 SB)).41
One circumstance in which the Senate did have the power of decision is in the cancellation of legislation of which it disapproved. This happened in the specialized case of a law passed in circumstances that violated the proper procedures, particularly the correct taking of the auspicia. The Senate could then consult the augurs who gave a ruling as to whether a vitium (fault) had occurred; if so, the Senate, receiving this report, had the power to pass a decree that the Roman People were not bound by the law. A similar procedure applied to faulty elections, where the Senate called on the magistrates to abdicate. In these particular cases, the augurs acted as a constitutional advisory committee. Their authority over the sacred law enabled them to give the Senate the basis for effective action, which it often lacked in other circumstances.42
Here again, however, there are limits. The issue arose most famously after the legislation passed by Julius Caesar in 59, which was supposedly flawed, since it was only carried in the teeth of religious obstruction by his colleague in the consulate. Caesar’s opponents argued that both his own laws and also those proposed by Clodius the following year had been carried against the auspicia and were therefore vulnerable to negation in the Senate. Some augurs even stated at a contio, in response to Clodius, that they would, if consulted, report that a vitium had taken place. The problem was that, if Caesar’s wide-ranging legislation had been rescinded, then all actions taken under it would also become invalid and administrative chaos would have resulted. Clodius could safely ask the question, because he knew it could never lead to any effective action (Cic. Dom. 40, Har. resp. 48).43
In many other circumstances of conflict, the evidence gives the strong impression that the search for a solution was not a matter of consistently applying established constitutional principles, but of finding some improvised solution. A series of incidents from the third century onward involved a clash between priests. In each case, the pontifex maximus (head of the college of pontificeS; see Table 12.3) tried to stop a senior flamen from leaving Rome to carry out his duties as a magistrate; flamines had ritual duties that had to be conducted in Rome, and to prevent their abandoning these the pontifex had the power to impose a fine. There was obviously a constitutional point here: did public duty override religious obligation? The priests themselves, the Senate, speeches at contiones, all failed to resolve the issue. The resolution came in an appeal to the tribunes of the plebs, who took the issue to the comitia plebis, where a vote backed the pontifex maximus. The priests in question were the most senior patrician priests; so it seems inconceivable that there could have been any precedent in earlier centuries for patricians to appeal through plebeian magistrates. The procedure was probably invented on the first occasion we hear about it. A vote by the sovereign Roman People was the only way to resolve such an issue; a way to hold the vote had to be found, even at the price of involving the tribunes.44
At the end of the Republic, a famous long-running dispute encapsulates the problems. The Senate claimed the right, in the case of a constitutional crisis, to pass a decree (the so-called senatus consultum ultimum - their decree of last resort) calling on the magistrates to take any necessary measures to defend the Republic. It did so in its attempts to restrain successive reforming tribunes and to deal with the ensuing violence. It is not clear exactly what effect this decree had on the subsequent position of the magistrates concerned, if they had, for instance, put allegedly rebellious citizens to death. In 121, the consul, L. Opimius, was acquitted on a murder charge in exactly these circumstances; but Cicero, who had put alleged rebels to death in 63, after the passing of this same decree, was nevertheless exiled through a special law passed through the comitia. It seems clear that the Senate’s claim had grown up, not as a result of any legislation, but on the basis of a supposedly traditional power; there seems to have been no way of testing its legality, except in the trials, but these are themselves indecisive, because the courts only had power to condemn or acquit, not to settle the constitutional issue. In 49, on the eve of civil war, the Senate used the decree again, this time against Caesar, despite the efforts of supportive tribunes to use their vetoes in his support. Caesar (B Civ. 1.5) criticizes the overriding of the veto and the abuse of the decree, but he does not challenge its validity.45
The implication of this discussion is not that the Romans did not seek to resolve problems in line with established practice, using whatever precedents, traditions, laws, or decrees would provide guidance; but there seems to have been no easy route to achieving such a resolution. The constitutional rules changed as conditions varied; various different means were employed to make these changes; the situation of the Senate remained for the most part advisory in legal terms, while in practice it attempted to guide the Republic and all its policies. Progressively, the actual working of the political system rested less on clear constitutional principles and more on convention and tradition.
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