The Republican constitution was now unified. The plebs had constructed a state of their own within the patrician state, and without a revolution the two had been fused into one. There was naturally much overlapping of function: for instance, there were four assemblies, the aedileship was duplicated and the tribunes of the plebs did not fit easily into the magisterial picture, but thanks to the Roman genius for adaptation, tempered by traditionalism, the constitution was co-ordinated. When setting up new institutions the Romans preferred to modify rather than to abolish the old, which had religious as well as secular sanctions; practices which were at first adopted for emergencies were then tacitly assumed to be authoritative. Guided less by political theory than by the need to overcome everyday difficulties, the Romans had built an edifice which could always be modified; it was not a cast-iron structure like some of the written constitutions of the Greeks that could only be changed by revolution. Previous enactments could be repealed by subsequent legislation, as they can in England in contrast with the United States of America, where certain fundamental rules cannot be abrogated. (There were, however, certain restrictions, e.g. the Twelve Tables established that laws should lay down general principles, by forbidding a law to be passed against an individual: privilegia ne inroganto. Forbidden privilegia would cover an English Act of Attainder, as that by which Henry VIII disposed of Thomas Cromwell.) The Roman constitution endured because it was internally flexible and adapted the substance while retaining the form. This flexibility can be traced, for example, in the fundamental changes in the nature of the tribunate or quaestorship or in the growth of the power of the Senate with its theoretical inability to legislate. ‘The reason for the superiority of the constitution of our city to that of other states’, Cato is reported to have said (Cicero, de rep. ii, 1, 2), ‘is that the latter almost always had their laws and institutions from one legislator. But our Republic was not made by the genius of one man, but of many, nor in the life of one, but through many centuries and generations.’ Polybius writes (vi, 10, 13) in the same strain that the Romans did not achieve their constitution ‘by mere thinking, but after many struggles and difficulties, always choosing the best course after actual experience of misfortune’.
There had been three main tendencies at work in the early Republic: the struggle for political equalization, the devolution of power among an increasing number of magistrates, and the extension of the power of the Senate. Amid the constant clash of interests three great organs of the state had been evolved: the magistrates, the Senate and the assemblies. That they worked in harmony was a triumph of compromise and common sense. We must next consider them separately. At the fall of the monarchy the king’s power had passed mainly to the two consuls (or praetors) who had been forced to share it in the course of time with an increasing number of magistrates. These had been created partly in a vain attempt by the patricians to retain a monoploy of government, partly because the growing needs of an expanding state necessitated the sharing of responsibility. The most characteristic feature of the magistracy is perhaps that it was simply an honos: no salary was paid to an official. This determined its nature, for only the well-to-do propertied classes could attain to it. The plebeians might win the right of entry into the patrician preserves, but only their richer representatives could go in. In theory the magistrates were elected by the whole citizen body, but this electorate was so scattered that the elections were often easily manipulated in favour of a given class; as early as 358 a tribune, C. Poetelius, tried to regulate electioneering propaganda outside Rome (Livy, vii, 15, 12). Thus there had grown up the new nobility of rich landowners who handed down from generation to generation the tradition of office within their own families, and it became more difficult for a novus homo who belonged to a family outside the governing circle to win his way to a magistracy. Hence a steady level of efficiency was maintained, but few men of outstanding genius were produced. The early Roman magistrates seem types rather than individuals.
A remarkable feature of the magistracy is the fewness of the offices. Each year there were two consuls, primarily for military affairs, one praetor for jurisdiction, two quaestors for the Treasury and two to accompany the consuls, two curule and two plebeian aediles for policing the city; there were ten plebeian tribunes who at first tended to hinder rather than assist the work of government but who were later worked into the scheme; there were decemviri stlitibus iudicandis, later at any rate judges in suits which involved liberty and citizenship; at intervals two censors were appointed to revise the list of citizens and of senators, to supervise public behaviour and to let out state contracts; finally, in an emergency a dictator might be appointed. Thus the higher administrative magistrates, excluding the tribunes, numbered only eleven or at the most fourteen. They were assisted sometimes by a board of technical advisers of senatorial rank (consilium), and by numerous subordinates, such as lictors, clerks (scribae), messengers (viatores) and heralds (praecones). Later other appointments were made: the four prefects (quattuorviri) to whom the praetors delegated the administration of justice in Campania in 318; the police officers, triumviri capitales, appointed about 290, who exercised a summary jurisdiction over petty offenders; and the duoviri navales chosen by popular election in 311. But a more important method of dealing with the paucity of magistrates than that of allowing them to delegate authority or of establishing minor magistracies was the prorogatio imperiiwhereby a consul or praetor after his year of office was allowed to act pro consule or pro praetore. First established in 326 to meet specific military needs, this practical device later became a normal part of constitutional procedure, and from such small beginnings there grew the basis of the military commands that eventually undermined the Republic.
Of the magistrates the consuls, who acted as presidents at home and generals abroad, retained their primacy, but their wings had been clipped. The establishment of consular tribunes had damaged the prestige of the consulship, the creation of other magistracies had robbed it of many of its functions, the extraordinary appointment of proconsuls in effect widened the basis of the office, dictators were appointed frequently, and the growing power of the Senate encroached on the consular field of action. But nevertheless the consuls’ powers remained very great, especially as the theatres of war increased. The comparative frequency of the appointment of dictators was due to the exigencies of the great wars of 366–265, but many were nominated for special non-military purposes, such as for holding the elections in the absence of the consuls (comitiorum habendorum causa) or for religious purposes. Like the military dictators, these special dictators were required to resign their office when their business was ended. This new use of the dictatorship was one cause of its decline; further, a dictator’s sentence was made subject to provocatio within the city, perhaps by the Lex Valeria of 300.
The new magistracy created in 366, the praetorship, proved very useful. By custom the praetor relieved the consuls of their civil jurisdiction; as their colleague, though vested with lesser imperium, he took their place in Rome when they were absent, summoning and presiding over the Senate, calling an assembly, or if necessary himself commanding an army. But it was his judicial duties that came to be the peculiar mark of his office. Enough has already been said in connection with Appius Claudius to demonstrate the increasing power of the censors, especially when the lectio senatus came within their competence. In 339 it was enacted that one censor must be a plebeian; and no act was more symbolic of the real union of the orders than the ceremonial cleansing of the state (lustrum) by a plebeian censor in 280. The two sets of aediles, curule and plebeian, were soon harmonized; they were responsible mainly for municipal administration, such as the safety of roads and buildings, public order, market regulations, weights and measures, the water and corn supply, and arrangements for public festivals, but they also had judicial authority to prosecute for offences against the community such as usury and the occupation of public land. The quaestors, whose numbers were raised to four in 421, and to eight in about 267, remained chiefly financial officials, but those who served on a consul’s military staff not only administered his financial affairs but also could themselves undertake military duties. Finally, the tribunes of the plebs, though not strictly magistrates of the Roman people, were gradually recognized as such; by a wise compromise the patricians worked these plebeian officers into the constitution. At first the tribune was the revolutionary officer under whose aegis and leadership the plebeians had won political equality, but after the middle of the fourth century he became less of a class leader and more of a representative of the rights of the individual against the claims of the state. He could act as public prosecutor against any magistrate for political offences except the dictator (as was done in 423, 420, 362 and 291; in the last case in the interests of the Senate), and he could pass laws through the Concilium Plebis. Gradually he acquired the right to speak in and finally (in 216) to convoke the Senate, which soon realized the value of the tribune’s veto as a means of controlling the other magistrates as well as his fellow tribunes; and there would be few years when the Senate was unable to win the support of at least one of the ten tribunes.
While magistrates came and went the Senate remained. The need of a permanent governing body which could make quick decisions in times of crisis led to an immense increase in its powers. Theoretically it could not legislate, but its resolutions (senatus consulta) were generally obeyed, and it came to wield a predominating moral guidance in the state. After the fifth century more plebeians won entry, and the rise of the new nobility strengthened its authority at a time when patrician prestige was weakening. Originally its numbers had been filled by the kings and then by the consuls at will, but tradition gradually restricted the consuls’ choice to ex-magistrates. When the duty of revising the list was transferred from the consuls to the censors by the Ovinian law they were instructed to give preference to ex-magistrates. As members retained their seats for life, the Senate might justly be considered a representative council, embodying all the experience of past and present. The sovereign people who claimed ultimate authority were more ready to acquiesce in its rule, since it was they who elected the magistrates and thus they were indirectly responsible for the composition of the Senate. It tended, however, to remain conservative, since the higher magistrates were elected by the Comitia Centuriata where wealth predominated. Its great reverence for custom, mos maiorum, together with its numbers, tended to stereotype its policy in a safe and mediocre mould; but if it lacked brilliance it guided the state safely through many troublous seas and its collective wisdom often checked the extravagant or dangerous whims of the sovereign people.
The people, with their more cumbrous assemblies, were willing for the most part to acquiesce in the growth of the Senate’s power: still more were the magistrates over whom it soon exercised almost absolute control. It became customary for the consul to refer every matter of importance to the Senate, and he was morally bound to follow its advice when formally expressed in a senatus consultum. The average official would not dare to challenge the authority of a body composed of ex-magistrates, on which he himself would sit for the rest of his career; if he was bold enough to withstand this moral pressure, he could generally be checked by a tribune. Thus the magistrates became the executive of a senatorial administration which claimed by right of custom alone to direct the policy of the state in all its important branches, especially in finance and foreign affairs. Only the actual declaration of war and concluding of peace were left to the people, and even then the preliminary diplomatic negotiations had been conducted by the Senate, which was able to give the people a strong lead. Finally, the dignity rather than the actual power of the Senate has found its classic expression in the report of Pyrrhus’ ambassador, Cineas, that the Senate was an assembly of kings.