The Roman Republican Constitution: Some Lessons

In the beginning, Rome was ruled by kings. According to the account passed down to us from her historians, Rome expelled her last king in 509, after his son raped the wife of a leading Senator. The coup leaders immediately set up a new system of government, which they called the Republic, the res publica (literally, “the public thing”).

The break with the past was momentous. At the beginning of Book II of his history of Rome, which is the part of the narrative immediately following the expulsion of the king, Livy announces that “the new liberty enjoyed by the Roman people, their achievements in peace and war, annual magistracies, and laws superior in authority to men [my italics] will henceforth be my theme.” As far as he was concerned, the end of the monarchy represented the beginning of the rule of law.

The new political order was so different, and so much more ingenious than the old one, that I am inclined to think that there must be much more to the story than we have received from the Roman historians. Such a constitution does not spring up so quickly, without considerable forethought or precedent.

Imperium

It was not a complete break with the past. There were certain respects in which the original Roman Republicans built on what they already had. One of these was the notion of imperium. The word is often translated as “command”, and imperator, which has been received into English as “emperor”, originally meant something like “commander”. For the Romans, imperium meant something like the right not only to command others, but also the right to subject them to treatment not normally permitted by one citizen against another, up to and including putting them to death. Its origins were likely military: the right to put citizens to death originated in the right to dispose of the lives of troops in battle.

Under the old monarchy, only the king possessed imperium, which could devolve to military commanders in the camp if the king happened not to be leading the army himself. The king’s imperium was symbolized by the fasces, a long-handled axe surrounded by a bundle of rods (pictured). The rods represented the king’s power to inflict corporal punishment, and the axe represented his power to inflict capital punishment. It is from the fasces that we get the term “fascism”. Fasces were carried around by attendants of the king, called lictors.

However, what modern fascists have underemphasized was that there was another aspect to the symbolism of the fasces: the bundle of rods also represented the Senate and people of Rome (senatus populusque Romanus, abbreviated SPQR), by whose authority and in whose interests the ultimate power symbolized by the axe was supposed to be wielded. The rods had the physical effect of strengthening the axe’s handle, just as the authority (auctoritas) of the king was made more powerful when he acted with the support of the people. It was in part because the king lost sight of this source of his power and legitimacy that he was expelled.

Dividing the Imperium: Collegiality

While the Romans had gotten rid of their kings, they kept the notion of imperium, along with its symbolic manifestation in the fasces. But because experience had taught them that imperium could be dangerous when concentrated in the hands of one man, they split this power, originally between two elected men, the highest magistrates of the new Republic, the consuls. Later, they added a pair of magistrates below the consuls, the praetors. These also wielded the imperium, because of their function as administrators of the Roman legal system, and because they carried out the functions of the consuls while the latter were away from the city or otherwise incapacitated. It was hoped that this collegial method of dividing the imperium between pairs of magistrates would provide a check on its abuse.

Attenuating the Imperium: Annuality

In addition to collegiality, the exercise of imperium was constrained by annuality: magistrates were elected to their offices for a term of one year only, and they were not entitled to hold office again until a certain length of time had expired (although the length of this term varied throughout Republican history, and was often simply ignored). An additional aspect to the annual nature of the magistracies was the holder’s liability to prosecution for official malfeasance upon expiry of his term (but not during it). Thus, an official contemplating criminal misconduct (i) could be constrained by his colleague, (ii) could be prosecuted after his term expired, and (iii) could not hope to run again for office immediately in order to escape prosecution.

Negative Consequences of Limiting the Imperium

The early years of the Republic were tumultuous. First, there were many external threats. And although the kingly tyrants were expelled, a new tyranny was introduced, only this one was class-based. The aristocratic patrician class dominated the political system, and effectively closed it off to participation from the lower plebeian class. Indeed, so rigid was this hierarchy that not only could plebeians not hold office, but intermarriage with the patriciate was also prohibited. It was a caste system. The plebeians obviously resented this state of affairs, and thus began a long struggle that came to be called the “Conflict of the Orders”. It was complicated and had many stages to it, but the general trend was towards greater enfranchisement of the plebeians. However, the various political crises that arose along the way created emergencies that revealed the downside of limiting the imperium.

Every state learns sooner or later that extraordinary emergencies will occur, where the very survival of the state hangs in the balance, and where the solution appears to depend on a suspension or radical alteration of the constitution. Constitutional planners will attempt to make provisions for such contingencies, but unfortunately, the Roman Republican constitution at first did not. Over time it developed some tools for dealing with repeated emergencies. These solutions usually involved reversing one or more of the constitutional limitations of the imperium. This could be done either a) by doing away with collegiality or b) by extending the annual term limit. Each of these was tried, but not both at the same time (at least not until the late Republic when Sulla and then Julius Caesar did it, the latter effectively ending the Republic).

Suspension of Collegiality: The Dictatorship

The first crisis calling for an alteration of the constitution, caused by an external threat, came disconcertingly early, in 501 BC, only eight years after the founding of the Republic. The response to the crisis was to establish a new magistrate, the dictator. The dictator was an “extraordinary” magistracy, in that he was not regularly elected — in fact, he wasn’t elected at all. He was appointed by one of the presiding consuls on the advice of the Senate, to assume supreme powers (i.e. undivided imperium) for the protection of the state when it was under critical threat.

This would seem to be a re-institution of the monarchy, and indeed historians were ambivalent about the measure. On one hand, Livy saw little that was legally or politically problematic about the dictatorship, even implying that the position was provided for in the law of the Republic at its institution: “They chose men of consular rank, for so the law prescribed which had been passed to regulate the selection of a dictator” (2.18.6-7).

On the other hand, Dionysius of Halicarnassus, in his Roman Antiquities was suspicious of the dictatorship: “the senate resolved to introduce into the government a magistracy of equal power with a tyranny, which should be superior to all the laws…. The plebeians, being unaware of the real import of this proposal, ratified the resolutions of the Senate, although, in fact, a magistracy that was superior to a legal magistracy was a tyranny; and they gave the senators permission to deliberate by themselves and choose the person who was to hold it” (5.70.3ff)

Dionysius’ account is a bit overblown. What prevented the dictator from becoming a tyrant was the fact that his term of office was to last no more than six months. Thus, while the Romans put the imperium into one man’s hands, they even further limited the time limit during which he could hold it. In fact, it was commonly the custom that the dictatorship was held for less than six months, because dictators were customarily expected to abdicate power once the threat had been neutralized.

Until Sulla and Caesar in the first century BC, the last Roman dictator held office in 216 BC, after the disastrous defeat by Hannibal at Cannae. After 216 the Roman state found a different tool for dealing with crises, the so-called senatorial “final decree”, to be explained shortly.

Suspension of Annuality: The Proconsulship

As the Romans expanded their territory, the consuls, in their role as commanders-in-chief, found themselves fighting wars in far-off provinces. Such wars often lasted more than a single campaigning season, and it became inconvenient or even disastrous to have to change generals every time new consuls were elected.

The response was to allow a consul to remain in the province in which he was fighting, until the war had been brought to a satisfactory conclusion, or until it was convenient (or necessary) to change leadership. These ex-consuls who were given an extended term in an assigned a province were called proconsuls.

Here we have a situation where the imperium was extended beyond a year. However, the Romans compensated for this dangerous innovation by continuing to elect two new consuls every year, and by limiting the extent of the proconsul’s imperium to a single assigned province.

Suspension of the Constitution: The “Final Decree”

As already mentioned, the Romans ceased to make use of the dictatorship after 216 BC, for reasons which are unclear. They were always less than comfortable with the office in any case. Instead they had resort to another tool, but one which was potentially more dangerous. Indeed, it would set a pattern for the assumption of extraordinary powers by many a modern fascist dictator.

First of all, notice that once the precedents had been established, the dictatorship and the proconsulship could be viewed as simply customary provisions of the constitution, to be invoked during times of crisis. Thus, the constitution could still be regarded as in effect: the dictator had to give up power in six months, and the proconsul only held power within provincial confines and at the pleasure of the Senate.

The new emergency instrument was much more radical. It was called the senatusconsultum ultimum, or “final decree of the Senate” (hereafter referred to as SCU). This took the form of a decree issued by the Senate, which proclaimed videant consules ne res publica detrimenti capiat (“let the consuls see to it that the Republic suffer no harm”). In effect it was a declaration of martial law, giving complete discretion to the consuls to do anything they deemed necessary to protect the state.

It was also somewhat paradoxical, for it basically suspended the rule of law so that the rule of law could be protected. Its danger lay in its very vagueness. There were no delimitations on the powers that could be exercised, and there was no statement of the criteria to be met that would satisfy the SCU’s objectives. It therefore amounted to a suspension of the constitution. And because it sanctioned any and all actions the consuls chose to undertake, it also effectively protected them from prosecution for those actions once their term had expired.

The SCU was mainly invoked during the later Republic, not as a response to external threats but to internal ones. Predictably, it had the tendency to sanction the extra-judicial murder of political enemies of the ruling class.

Lessons to be Learned

The SCU was more a symptom than a cause of the collapse of the Republican constitution. It was invoked because of the extraordinary political upheavals that were tearing the Republic apart. These had their sources in continuing class warfare, along with the stresses of a ruling a vast empire with an administrative machinery designed for an aristocratic city-state. Although the SCU didn’t cause all of Rome’s political problems, it was certainly an inappropriate response to them.

Why did the Romans not consider reviving the position of dictator? I don’t know. I suspect it might have had to do with an anti-monarchical animus that had grown up in the intervening period, as the Romans exceptionalized and valorized themselves above the Mediterranean peoples they had conquered, most of whom had been subjects of kings. In their own eyes, Rome was a society of heroic men who had freed themselves from the tutelage of princes. Perhaps they took their own propaganda too much to heart, the dictatorship seeming too much like a kind of kingship, and kingship too much like tyranny.

What lessons can a free people learn from the breakdown of the Roman Republican constitution? Well, we might note that a wisely formed constitution must make some kind of provision for emergency. This will demand some flexibility, but not of the kind represented by the vagueness of an instrument like the SCU.

The principle here should be: A wise constitution, where it confers extraordinary powers, will also clearly delineate the extent of those powers, and provide clear criteria for their eventual termination.

Where a constitution must grant extraordinary powers to some office or institutional body, it should at the same time curtail whatever other powers it has that are not necessary to meeting the emergency, so that when the emergency has been met, the empowered office or body is not strong enough to subvert the constitution. Thus, when the Romans found it necessary to invest a dictator with undivided imperium, it strictly shortened and clearly delimited the time during which that imperium could be exercised; and when it was found necessary to extend the period of time a proconsul could have imperium, it at the same time limited the extent of territory over which he could exercise it, while making it clear that it was held at the pleasure of the Senate, revocable at any time.

The principle here should be: A wise constitution grants powers with one hand, and takes powers away with the other hand.

Finally, no constitution should contain an instrument like the SCU, providing for its own negation. As a matter of fact, it is not even clear that the Roman constitution allowed for it. For one thing, there is considerable disagreement among historians about the extent to which the SCU was a formalized practice. Some of them would argue that it was less a constitutional principle and more an ill-considered innovation. When a constitution is forced to say “Euthanize me in order to protect me from my enemies,” it is no longer worthy of protection, because it can no longer perform the most vital function of a constitution, which is to protect those subject to it from the arbitrary exercise of naked power.

The principle here should be: A wise constitution abhors a vacuum and contains no gaps or suicide pills.