In the classic description of the Roman constitution in his sixth book, Polybius concludes that it contained three fundamental principles, monarchy, aristocracy and democracy, which were excellently mingled and balanced: the consuls represented regal power, the Senate aristocratic, and the people democratic. (Polybius, vi, 11–18. One may compare the English Cabinet vis-à-vis the Crown, Lords and Commons.) Such was the theoretical distribution of power, but in fact it was the Senate that drove the chariot of state and seldom did the magistrates or people try to kick over the traces. The Senate had come out of the Hannibalic War with flying colours and its functions widened with the extended scope of Roman policy. The increasing complication of judicial affairs could have been met by establishing paid jurymen from the people, as at Athens, but instead the people allowed the Senate to appoint judicial commissions to deal with matters that concerned the safety of the state and to supply the jury when the first quaestio perpetuawas established. The Senate’s control of the chief military commands, of finance and of foreign policy, was unquestioned till the time of Tiberius Gracchus; any objections raised by the people, as when they refused to declare war on Philip in 200, were generally overruled. It also took over from the people the right to prorogue a magistrate’s command, and occasionally it dispensed with the use of sortition in assigning duties to magistrates. The extent of its powers will be seen best by considering its relations with the people and with the magistrates.
Between the Lex Hortensia of 287, which had asserted the sovereign authority of the Roman people, and the close of the Hannibalic War, the voice of the people was heard occasionally. The democratic leaders of the new nobility may have urged the people to decide on the Mamertine alliance, while part of the Senate procrastinated, and the people stiffened up the terms imposed on Carthage after Aegates Insulae. The popular leader Flaminius enjoyed a striking career despite senatorial hostility, and when the Hannibalic War broke out the people were inclined to question the leadership of the Senate and to elevate their own nominees to command the armies. Flaminius, Minucius Rufus and Terentius Varro were not perhaps the military fools that the aristocratic tradition has depicted, but they were unfortunate. After their defeats the people acquiesced in the Senate’s direction of the war and only once again expressed their will forcibly, this time more wisely, by electing Scipio Africanus to the Spanish command. The prestige which the Senate thus won by its conduct of the war remained unshaken in the next century. The people were now willing to acquiesce, since their own representatives, the tribunes, could keep an eye on proceedings in the Senate. Also much of the legislation of the second century was carried through the tribal assembly by tribunes; this was due partly to the frequent absence of the consuls abroad, but it had the effect of keeping the people busy and giving them the impression that they were the main legislative body, whereas probably most of the measures had already been shaped in the Senate. Until the end of the Spanish wars little protest was heard from the people.
Beside encroaching on the judicial and indirectly on the legislative functions of the people, the Senate also won over their magistrates. The tribunes, who had originally been outside the Senate, were gradually absorbed into it and became an instrument of the senatorial oligarchy, for among the ten there would normally be some partisans of the Senate. They gained the right, perhaps by the Lex Hortensia, of convoking the Senate, and they gradually became in effect magistrates of the populus and not merely of theplebs, the office being held between the quaestorship and praetorship; thus a tribune, Ti. Sempronius Gracchus, intervened at the trial of the Scipios to help one of the old patrician families. One function of the tribune was that of public prosecutor. But the Senate, jealous of outstanding personalities, was often quite as interested as the people in calling magistrates to book, so that in the second century we find tribunes undertaking prosecutions in their own or senatorial interests rather than on behalf of the people. As cliques developed within the Senate, members of one faction would use this method to attack their rivals; Cato, for instance, is said to have been prosecuted forty-four times and he probably returned blow for blow by using the services of tribunes. Such prosecutions would often be dropped during the proceedings when once the political object had been attained, and generally some tribune could be found to veto his fellow. Another symptom of the decline of the tribunate was the use made of it by ambitious young men, who, lacking other means of attracting notice, would attack prominent men for personal or party ends, and so gain notoriety and impress the electorate. Occasionally tribunes may have tried to oppose the will of the Senate; such an attempt may have led to the Lex Aelia et Fufia, which gave magistrates the right to obstruct plebeian assemblies by announcing unfavourable omens (obnuntiatio) (c. 150 BC). But in the main the tribunes had become tools of the Senate.11
The war with Hannibal had two opposite results: it increased both the oligarchical power of the central administrative body, the Senate, and the dictatorial power of the executive magistrates. The need for continuity of command led to the suspension of the rule that forbade re-election to the consulship within ten years. During the war Q. Fabius Maximus, already twice consul, held the office three times (215, 214, 209), M. Claudius Marcellus four times (215, 214, 210, 208) and Q. Fulvius Flaccus twice (212, 209); they also held pro-magistracies. Even more revolutionary was the career of Scipio Africanus, who acted as proconsul in Spain for five years (210–206) and in Africa for three (204–201) and in the interval was consul (205); so that he was in command for ten consecutive years. Besides this threat to the annual magistracy, the principle of collegiality weakened; the complication of business involved a division of labour, and when regular governorships were established in the provinces collegiality abroad had disappeared in fact and in law. Indeed, the power of the consuls had grown immensely: they exercised semi-independent control in distant lands, they commanded large armies, they had to take decisions which determined the fate of countries, they dictated terms to subjects and allies. At home the use of the overriding power of the dictatorship had lapsed, so that the way was open for the ambitious general to aim at personal rule. But the kingly position won by Scipio Africanus after the battle of Zama engendered rivalry at home, and the jealous nobility found means to check the over-popular or over-ambitious general and to reduce genius to the level of mediocrity.
There were many ways by which the influence of the magistrates could be checked. The use of lot in assigning provinces prevented an ambitious candidate from emphasizing to the electorate his suitability for a given appointment. There was a tendency to keep the consuls in Italy when possible and to use praetors and propraetors for duties abroad. True, the increase of provinces necessitated prorogation of command, and a further move was taken in that direction by the Lex Baebia which reduced the praetorships in alternate years from six to four, chiefly to allow praetors in Spain a longer command to avoid the waste of time caused by the long journey to and from Spain; this law was, however, quickly repealed. But prorogation did not become a danger because the Senate gradually took over from the people the right to decide the matter. Consequently, after 200 BC few commands were prolonged for more than one year; that of Flamininus (198–194) was exceptional. Similarly, the method of investing privati with imperium, which had been applied to Scipio Africanus and to his successors in Spain, was discontinued when the number of praetors was raised in 197. But the Senate’s strongest hold over the magistrates was gained by restricting re-election and establishing a fixed sequence of office. In the fourth century tenure of the consulship for two consecutive years and re-election to the same office within ten years had been forbidden, and before the Second Punic War it became necessary for a year to elapse between the tenure of the aedileship, praetorship and consulship. Though in wartime the rule had to be disregarded, a fixed order of office became customary. This was regulated by statute in 180, and a two-years’ inverval between offices probably was prescribed (Lex Villia Annalis).12 Office must be held in the following order: quaestorship, aedileship, praetorship, consulship. The aedile-ship was not an essential stage, but was sought after as it gave the chance of winning popularity with the mob by a lavish display of public games. The minimum age limit for office was also fixed, and ten years’ military service was a necessary qualification for the quaestorship; thus the consulship could not be reached before the age of thirty-four, or, if the aedileship had been held, of thirty-seven. Later the minimum age for the consulship was fixed at forty-two and re-election was forbidden (perhaps c. 150). Thus the Senate was able to curb undue ambition, and any danger to the constitution arising from the practical abolition of collegiality and from the powers of provincial commanders was averted.
The Senate, the stronghold of the nobility, controlled not only the magistrates and people but was itself controlled by an inner circle of nobles, the descendants of those who had held the consulship (or perhaps, in the third and early second centuries, any curule magistracy may have sufficed). Men outside this group might reach the quaestorship, but they seldom climbed much higher; when they succeeded in gaining a consulship they were acclaimed ‘new men’ (novi homines). The effective government was in the hands of some ten or twenty families. Of the 108 consuls between 200 and 146 BC only eight came from new families, and perhaps only four were strictly novi homines, two of whom were helped by aristocratic friends, Cato (195) by Valerius Flaccus, Glabrio (191) by the Scipios (the two others were Cn. Octavius, 165, and L. Mummius, 146). Sallust remarks that the nobility passed on the consulship from one to another.13 Of the 200 consuls who held office from 234 to 134 BC, 159 were members of twenty-six families, 99 of ten families. The old difference between patrician and plebeian had disappeared, and in 172 both consuls were plebeians for the first time, but a new exclusiveness had grown up. This was partly due no doubt to deliberate policy, but partly also to difficulties inherent in the nature of the Roman magistracy: a candidate must be wealthy and yet have no connection with trade, and it was difficult for him to attract the notice of the electorate if he was outside the charmed circle of noble families whose exploits were on all men’s lips.