chapter  III
13 Pages

The New Republic and the Struggle of the Orders

The establishment of the Roman Republic was due either to revolution or evolution; it was either the effect or the cause of the fall of the monarchy. The former view is that presented by tradition, the latter is a hypothesis of some modern scholars. We may here accept the traditional view that after the sudden fall of Tarquinius Superbus the monarchy was abolished and two annual magistrates named consuls (or more probably at fi rst ‘praetors’) were established in its place. 1 They continued to be appointed throughout the history of the Republic except when they were superseded once by a Decemvirate and on occasions by ‘military tribunes with consular power’. In times of crisis, however, they might be constrained to nominate a dictator, who temporarily overshadowed them. 2

The consuls (or ‘praetors’) had considerably less power than the kings, but they were invested with supreme executive authority ( imperium ) and were the executive head of the state. They possessed full military imperium , which included powers of life and death in the military sphere. They exercised supreme criminal and civil jurisdiction and could ‘coerce’ private citizens even in peace-time. But ‘at home’ ( domi ) within the pomerium their criminal jurisdiction was checked by the right of every citizen to appeal ( provocare ) to the people against a capital sentence: a right which the Romans believed to have been coeval with the Republic (Lex Valeria). 3 With their subordinate offi cers they were responsible for the fi nancial and general administration of the state. This supreme executive authority, which was a basic constitutional conception,

was conferred by the Comitia Curiata on those candidates who had been designated by the previous consuls and chosen by the Comitia Centuriata. It was only vested in the consuls and praetors (i.e. the original ‘praetors’ and the judicial praetors established later) or in those who took their place: the dictator, his master of horse and the interrex . Later magistrates, e.g. censors and aediles, who took over some of the consuls’ duties, did not obtain imperium . 4

The great power of the consuls was limited in the religious sphere, where they had not the same prestige as the kings, by the rex sacrorum and the Pontifex Maximus. The former was the direct successor of the kings and was provided with an offi cial house in the Forum, the Regia, but it was the Pontifex Maximus who soon became the more infl uential: he gained control of the calendar, nominated the Flamines and the Vestal Virgins and generally wielded great authority. In fact the nobles may well have created this offi ce, which was held for life, in order to prevent the priesthoods, which they themselves held, from being controlled by the successor of the king, the rex sacrorum . 5

The two main brakes which prevented the consuls driving the state chariot wherever they wished were the time-limit of their offi ce and the principle of mutual control. They had to abdicate at the end of a year; con tinuity of gov - ernment rested in the Senate, not in the magistrates. Secondly, the principle of collegiality, i.e. of investing the two consuls with equal and co-ordinate authority, enabled the one to check and nullify the acts of his colleague by right of veto ( intercessio ), for ‘no’ always overcame ‘yes’. Further, the consul was hampered by the theoretical sovereignty of the people, and by custom, mos maiorum ; for instance, he was forced by weight of public opinion (at some point) to allow the right of appeal and, like the king, he consulted the Senate from moral, not legal, obligations. The main body of the patricians, who formed the economic and military, though not the numerical, basis of the state, was suffi cient to check any consul’s aspirations to tyranny; 6 and later the consul’s own power became more limited, while the Roman people found in the tribune a protector against both the patricians and any magistrate who aspired to unconstitutional power.