AHC: Save the Roman Republic.

[Matteo]

There was no idea of representation in the roman republic.

The people elected magistrates that had to be elected. But once magistrates, they had no mandate and just were tribunes, or aediles or consuls, ...etc, and exert et full power as magistrates. The power was inside the magistracy, not a delegation from the people.

And if you put majority systems in the college of tribunes, you will weaken the college's ability to do anything because majority will also be required to propose bills.

If you want some idea of a représentative body, you need Rome to give-up the notion of city-State itself.

 

[Agricola]

A proper legislature would certainly take quite a while to evolve from the scenario I propose. As a rough outline: ...

Your concept comes pretty close to my thoughts. I am just starting with the Optimates in the senate, who are trying to stabilize the roman constitution, via strengthening the senate, like Sulla tried and like Cicero outlined in de legibus and de re publica up to a certain extent.

One major basic problem of the roman republic (amongst many others), was the huge discrepancy between the de iure constitution and the de facto constitution:

De iure (according to a few constitutional laws and the mos maiorum):

1. The magistrates are the executive of the republic. They govern the state and promote bills.

2. The senate is an advisory board. The senate advises the magistrates on strategic decisions and bills.

3. The comitia elect the magistrates and decide on laws

De facto ( during the time this aristocratic republic did really work):

1. the magistrates are agents (henchman) of the senate. They are not allowed to decide about anything beyond usual daily business. They are also not allowed to promote a bill to the comitia, without a preliminary decision of the senate. If a magistrate acts against the will of the aristocracy represented by the senate, his colleague or some of the (aristocratic) tribunes will block him easily for a year and afterwards his career and social standing is ruined.

2. The senate is the highest executive, legislative and in some cases even iurisdiction. Magistrates are controlled closely. If needed, a senatorial committee (decemviri or any other number) supports the magistrate. The decision of this official consilium of a magistrate is binding. If there is no clear responsibility of a magistrate for a specific issue, such decemviri could act independently as an executive body.

3. The comitia should just vote about bills which already passed the senate and are supported by the majority of the senate. Due to the fact, that the upper classes have the majority in the comitia centuriata, the final decision should be obvious. The aristocracy also ensures, that just proper candidates are nominated for election. If this does not work occasionally, the censors could ensure, that an undesired ex-quaestor becomes no member of the senate. The comita plebis is controlled by many aristocratic tribunes, which still have hope to make a career in the higher magistrate.

This huge dircrepancy of law and political reality and the scrapiness and low grade of codification of the roman constitution, opened possibilities to bypass the constitution and destabilize the republic. It worked while the aristocracy was fairly united about the big political questions or at least able to reach a consensus mediated by the consulares of the powerful families. When the aristocracy became unbalanced in terms of wealth and power due to the expansion, single potentates (but also bankrupts) started to use the obvious flaws of the roman constitution for enriching and empowering themselves.

Now let us assume, that the optimates in the senate, try to reform the republic in a way, that the de facto constitution becomes the de iure constitution and is not longer bypassable. What could be the proposal?

1. they strip the comitia of its legislative power, like Tiberius did. All decisons are now done by the senate. Every bill is promoted to the senate. Also the magistrates are now elected by the senate. Senators are still nominated by co-optation, like it theoretically always has been. This was also the usual process in most other roman cities.

2. Of course this would bring a huge and loud populist opposition to the scene, which is not willing to accept this approach. Now your concept comes into play. As a compensation and due to the strong roman tradition regarding "democracy" (mos maiorum), the role of the tribunes is strengthend and the comitia plebis survives as the only comitia.

3. But this new role and reponsibility of the tribunes is regulated heavily:

- Tribunes still have their right of veto. But just if the majority of the tribunes agree, which was not that unusual as I explained above.

- Tribunes should also participate in the election of magistrates by the senate, due to the disempowerement of the comitia.

- The tribunes (now called Comitia Tribunorum) still participate in the sessions of the senate, like they always did. They also have the right to discuss, not just announce a veto. This integration of 2 chambers in one session is very different to a modern 2 chamber system.

- Tribunes are still elected by the comitia plebis, but the comitia looses its right to decide about bills. One reason (like for all comitia) is, that over 90% of the roman people are living outside of Rome mainly in Italy but also in the provinces and cannot participate in frequent votes.

- Due to this geographical distribution of roman citizens, even for elections the romans use a system Augustus used just once. I mention Augustus here as a proof, that this approach is not fully against the roman mindset. All roman cities get a list of candidates (for tribune) and vote onsite. The results are forwarded to Rome via local magistrates as couriers. Sounds pretty similar to the american system, but just similar.

- In order to reduce the effort for such elections, tribunes are elected for 3 years (the average time of service of the later imperial governors or procurators sounds appropriate). They can be re-elected, like it sometimes happened in the early republic. But they are not allowed to become senators or magistrates. This leads to a situation were mainly the roman equites apply for tribune.

- During this process of implementing this new "Comitia Tribunorum" the number of tribunes is heavily increased. Also to balance a bit with the 300+ senators. Well, 300 tribunes would be a bit too much. But 10 are not enough obviously to replace the comitia.

- The tribunes also have still their right to promote bills. But due to the disempowered comitia they forward their bill to the senate, which is now the legislative power. Every bill of the tribunes can be blocked by the majority of the senate (veto) like every bill of the senate can be blocked by the new comitia tribunorum (veto).

- I am not sure, how to deal with the "ius auxilium". That was a tribunes right to step in and block every action of a magistrate against a roman, if the tribune is convinced, that this action is against roman law. This was the initial right of the tribunes, the most important one, and their daily business. However, we do not read much in ancient sources about this daily business, because ancient authors focus on the big political cases.

Voila, here is a 2-chamber system, which is not fully beyond the roman mindset and could happen in a well thought longterm alternative history.

This model includes also some first steps into the direction of representation for the tribunes. Well, the tribunes always have been representatives of the people. Just not in a modern sense. In a next step you could introduce an even more representative system, where the fully romanized roman provinces (e.g. Narbonensis, Baetica, Sicilia, Africa proconsularis,...) with a high amount of roman citizens directly elect their tribunes and send them to Rome, because the process of sending couriers to Rome is too unpractical looking to the long distances. This could now lead to a next step where also the italians are asking for directly elected tribunes per region. And finally we got a kind of roman House of Commons with representatives of the people.

The model also does not touch the senate as a 1st chamber of the aristocracy build by co-optation. The senate still has to deal with these annoying tribunes. But now in a much more regulated manner, which should lead to a more proper legislature.

Nevertheless, this is just one of many reforms needed to stabilize the roman republic. Here just stabilizing the legislative. We still have no division of powers and the senate is still the highest executive body of the republic. And the much more dangerous and challenging problem comes with provincial administration and military command. I also used some concepts, which were feasible during the early principate and are questionable in an earlier timeframe.

 

[DominusNovus]

There was no idea of representation in the roman republic.

The people elected magistrates that had to be elected. But once magistrates, they had no mandate and just were tribunes, or aediles or consuls, ...etc, and exert et full power as magistrates. The power was inside the magistracy, not a delegation from the people.

And if you put majority systems in the college of tribunes, you will weaken the college's ability to do anything because majority will also be required to propose bills.

Thats the entire point.

 

[DominusNovus]

One major basic problem of the roman republic (amongst many others), was the huge discrepancy between the de iure constitution and the de facto constitution:

You make some very intriguing points, though I do want to point out that we shouldn't be treating the Roman Constitution, De Jure or De Facto, as writ in stone. Granted, the initial parameters of this challenge were post 100 BC, which does have a pretty specific structure (or, rather, multiple specific ones). However, the Roman Constitution, for all the famed conservatism of the Romans, was constantly evolving, and there were plenty of variations over the years; the further back we go, the closer the actual operation and the written law will coincide.

On another tangent, could we see an evolution of the Praetorship along similar lines as our proposals for the Tribunate? After all, Praetors were the most numerous of the proper magisterial offices, and the office tended to be very flexible in its duties (comparatively speaking, of course).

 

[Agricola]

You make some very intriguing points, though I do want to point out that we shouldn't be treating the Roman Constitution, De Jure or De Facto, as writ in stone. Granted, the initial parameters of this challenge were post 100 BC, which does have a pretty specific structure (or, rather, multiple specific ones). However, the Roman Constitution, for all the famed conservatism of the Romans, was constantly evolving, and there were plenty of variations over the years; the further back we go, the closer the actual operation and the written law will coincide.

Yes, I have read Erich S. Gruen "The Last Generation of the Roman Republic". He clearly shows how flexible and adaptive the romans and the roman constitution were. A very succesful attack to a 200 year old common opinion amongst historians. Actually, from my point of view, it was often more of an disadvantage, that the roman constitution was that easy to change. The romans were sometimes surprisingly creative in reinterpreting their traditions (mos maiorum): Constitution is what is enforceable. And sometimes not for the better.

However, due to this huge discrepancy between political reality and law, I described above, the roman constitution was too easy to exploit. Which helped a lot to escalate the political instability of the late republic. Of course the constitution was not the reason for the fall of the republic. It was just an instrument used.

But there was a clear border the romans were not willing to cross. Some fundamental changes, which are fully obvious and logical from our modern point of view are fully unimaginable for the romans (against the ancient mindset). Also if you touch the role and power of the patron-client-relationship which is the main base of aristocratic power and the roman society at all, the opposition would be very strong. Augustus did it, because he had to. But he had the power to do so, was very careful, and his reign lasted exceptionally long.

On another tangent, could we see an evolution of the Praetorship along similar lines as our proposals for the Tribunate? After all, Praetors were the most numerous of the proper magisterial offices, and the office tended to be very flexible in its duties (comparatively speaking, of course).

The praetor evolved a lot from the foundation of the republic to the principate. The question is, where do you like to go with the praetor?

Would you like to introduce an independent iurisdiction? Is'nt that a strong violation of the roman mindset? Could the roman way of administration work at all without iurisdictional power? Where should we draw the line between iurisdiction (law) and executive (administrative order). In a way the romans would understand. Looking to the daily business of any roman magistrate, administration usually meant iurisdiction in ancient times. Do we really need independent praetors? Or do we just need an independent supreme court? Like the the later consilium principis (the one with mainly law experts), which was not independent of the princeps, but of rest of the world.

And most important: What does this mean for the propraetores in the provinces, which are the real dangerous guys.

 

[DominusNovus]

I think we are very close in our general opinions on the Republic.

 

[Agricola]

Well, if you do not like to answer my question, where you like to go with the praetors and iurisdiction in general, I will start with my thoughts.

I have to say in advance, that my personal approach, I am working on, is to reconstitute the republic during the early principate, because I am convinced, this is easier. Not easy, but easier by several reasons:

1. the most traditional and conservative, if not fundamentalistic, aristocrats of the republic were dead after Caesars war against Pompeius and especially the proscriptions of the 2nd triumvirate. Entire families were wiped out.

2. The imperial senate was composed of followers of the principes or at least supporters of the principate as the new and better model. Just a miniority was supporting the pure old republican ideas.

3. After decades of principate the senators saw the advantages of some of the new concepts of the princeps, e.g. extended buerocracy and hierarchy for more efficiency or the implementation of an "Imperial Supreme Court". Even during a reconstitution of a republic, they would be not willing to loose these advantages of the imperial administration.

During the republic, there was no court of appeal. The decision of a praetor was final. Regardless, how corrupt, politically influenced or incompetent this guy was. Well, there have been some exceptions were cases could be forwarded to the comitia or the senate. But they never have been, what we call a court of appeal today.

This changed with the implementation of the "Imperial Court" by Augustus. Actually he himself was the one and only supreme judge, officially. He could revise any decision of his legates legally and due to his outstanding auctoritas he could do that in Rome and in the senatorial provinces de facto too. So every inhabitant could appeal to the emperor. Well, for peregrines or slaves, it was a bit more diffcult, but possible. Also a lot of governors and procuratores asked at least for the emperors opinion, before they decided a tricky case.

This offer of the princeps helped a lot in order to control the governors, to increase legal compliance all over the empire and to develop and harmonize roman law. So my point is, even if the local judges are politicians (like during the principate too), all you need in a first step is one supreme court! As independent from the rest of the world as possible. Of course the principes had their agenda, but they themeselves were fairly independent. And most decisions made by the imperial court were just daily business clarifying tricky legal cases and developing the roman law greatly.

This imperial court was usually not the princeps himself. Most principes used advisors called consilium principis. The one and only consilium principis never existed. The principes assembled such advisory boards fully situationally and depending on the case (military, adninistration, legal issues, city isseues, ....). So the consilium was most probably composed differently on a daily if not hourly basis. There is one exception: the consilium acting as the imperial court! Latest from the 2nd century on, these guys were the best law experts of the empire and acted longterm as consilarii for legal issues. Most of the time they decided without the princeps joining a session of the consilium. And most of the decisions of this appeal court were done without a public tribunal. Even if the decisions were published as a decision of the princeps himself.

The challenge is, to implement such a supreme court in a republican scenario:

1. By whatever reasons, the republican senate sees a strong reason to establish a supreme court of appeal. Most propably, because the senate is bored to care by itself. Or because these amatuerish praetors just did too many mistakes, even impacting members of the aristocracy.

2. This supreme court is composed of the best law experts of the republic. And they are nominated for lifetime, in order to increase a bit their independency.

3. The court could be the usual decemviri, that means 10 men. One could act as praetor maximus. He is the leader of the courthouse, not of the tribunal itself. Like a praetor he usually does not act as a judge himself. He is a kind of investigative judge, examining magistrate or pre-judge, who proves, supported by his office, if a case is acceptable at all, and whats the basis for the claim. The difference between this supreme court and the usual roman quaestio is obvious. There are now 9 professional fulltime and longterm experienced judges and not an amateur judge nominated by an also amateur praetor, leading a court, where an even more amateurish jury is deciding about a case.

4. If a member of the court dies or retires the new member is nominated by co-optation by the court itself from the best jurists (not necessarily praetors) of the empire. Just in order to reduce political influence and get the best judge available.

Perhaps we need here some political control. Even modern states have some political control over their supreme courts. How about the court nominates 3 guys and the senate decides about 1?

5. The workload on this court would increase with every year of existance, like it did during the principate. So in a 2nd step the senate would establish multiple courts dealing with different subjects, e.g.

- the questio capitalis rei publicae (supreme criminal court)
- the quastio inter privatos rei publicae (supreme civil court)
- the quaestio inter fiscum et privatos rei publicae (supreme fiscal court)
- ...

The first two quaestiones (and more) already existed in the late republic, but on city level (normal court of a praetor) and replaced increasingly the iurisdiction of the comitia. So it is a safe guess, that such a functional division makes sense for the romans for multiple supreme courts too. The quaestio inter fiscum et privatos is an invention of the 2nd century AD. Its need appears as soon as a republican fiscus becomes a juristic person, like the imperial fiscus became after time.

6. After a century or more of good work, the senate trusts these supreme courts and delegates even the more political cases to these supreme courts. Finally, and after the new republican constitution was fully codified, they establish the quaestio inter res publicam et magistratus

Heureka, we got a constitutional court!

Don't get me wrong. Romans were world champions in ignoring and changing a constitution. Introducing a codified constitution with a court (e.g. by Julius Caesar) leads to nothing. You have to change the roman mindset. They have to learn to trust in their constitution and see it as an asset. And changes of a society need time.

Of course I have an idea, how professional judges could be implemented slowly in Rome on city level and in the provinces as well. Finally even in the about 2000 cities of the empire. All driven naturally by this (not so simple) first step: the establishment of a 1st professional supreme court. This could indead lead to a separation of iurisdiction and executive power. But that is a very long way. It is not a matter of brave single decisions. Traditions have to change by natural reasons. People need to become convinced. A single event or law can't do that.

But this is more part of a reform of provincial administration and a reform the cursus honorum. At the end we may get something like a separate career path for independent praetors. Will they be really independent and less corrupt? Well, these are the ancient times, you know ...

And finally, don't ask me, how to implement such a court in republican times. As mentioned above, it will become easier, after people are used to the more beneficial concepts of the principate. And of course the mother of all questions still is: Is it possible at all to implement an almighty supreme court without an almighty princeps?

 

[DominusNovus]

I wasn't avoiding your questions, I just figured they were rhetorical. As for what the end result sought after is, for any given reform, I'm hesitant to make any suggestions. The way I see it, the Republic just needs to be shaken up in some peaceful fashion. Where to go with a Praetorian College isn't as important as having one, essentially.

Honestly though, you're providing some solid stuff here, so I'm happy to just let you keep going. The question of how necessary the principate is to reform aspects like the judiciary is one I definitely don't have an answer for.