by Cicero
As for my rule that ‘The responsibility shall rest with the presiding magistrate’ [11], I have taken the whole provision from the opinion expressed by that very judicious man, Crassus.* The Senate followed his advice when the consul Gaius Claudius raised the subject of the disorder fomented by Gnaeus Carbo.* It ruled that disorder could not take place in the people’s assembly without the consent of the presiding magistrate; for he had the power to close the meeting as soon as a veto had been exercised and a commotion had begun. Anyone who allows things to go on when no business can be done is inviting violence. By this law he loses his immunity* to prosecution.
Then comes the ruling ‘Anyone who blocks a harmful measure shall be deemed a public benefactor’ [11]. Who would not loyally come to the aid of the state if he knew he would be praised by the voice of such an excellent law?
43
This is followed by regulations which we also have in the laws and customs of our state: ‘They shall observe the auspices and obey the official augur’ [11]. It is the duty of a conscientious augur to bear in mind that he must be ready to assist on momentous national occasions, that he has been assigned as an advisor and servant to Jupiter the Best and the Greatest (just as officials have been assigned to him to observe the auspices at his command), and that certain specific areas of the sky have been allotted to him so that he may be able to give frequent assistance to the state from that quarter.
Then come regulations about the reading of bills, the handling of items one at a time, and the right to consult magistrates and private citizens [11].
After that we have two splendid laws taken from the Twelve 44 Tables. One gets rid of legislation directed at private individuals,* the other forbids any motion regarding a citizen’s life to be proposed except through the chief assembly [11]. What an excellent provision our ancestors made for future generations, at a time when seditious plebeian tribunes had not been created or even thought of! They refused to allow laws to be passed against individual people (for that is what privilegium means). What could be more unjust than such laws when, by definition, a law is something enjoined and binding on everyone? They forbade legislation against individuals unless it was passed by the Assembly of Centuries; for when the people are split up according to wealth, rank, and age, they think more carefully about their votes than when they meet indiscriminately in their tribes. Hence Lucius Cotta, a 45 man of great ability and deep insight, was all the more justified in saying that in my case no legal measure at all had been passed against me. He pointed out that, apart from the fact that those transactions took place in the presence of armed slaves, no valid decision could be taken by the Council of the Plebs about a citizen’s life, nor by any assembly against an individual; therefore I did not need a law (to rehabilitate me), because absolutely no legal action had been taken against me.* However, you and other very distinguished men preferred to take the view that the whole of Italy* should make clear its opinion of a man against whom slaves and brigands claimed to have passed a law.
44
45
Next comes a regulation about accepting money and offering bribes. Since laws have to be endorsed by court verdicts rather than verbal formulae, I have added ‘The penalty shall fit the crime’ [11]. In this way each offender is to be paid back in his own coin— violence being punished by death or exile, greed by a fine, improper canvassing by disgrace.
46
The final laws are not in force in our community, but they are necessary for the good of the state. We have no method of protecting our laws; and so our laws are what our clerks want them to be. We obtain them from copyists, but have no official record* confirmed by an official text. The Greeks* used to be more punctilious in this respect. They used to appoint ‘Guardians of the Law’, and these men would keep an eye, not just on the text of laws (that practice was also current among our ancestors), but also on men’s behaviour, and would call them back when they strayed beyond the law. This duty should be discharged by the censors. (Remember I have enacted that ‘the post of censor shall always have occupants’ [11].) Before these same men, outgoing magistrates are to give a public account of what they have done during their period of office [11], and the censors are to pronounce a preliminary judgement on them. In Greece this function is performed by officially appointed accusers. Yet these men cannot be strict if they are not doing the job voluntarily. So it is better that the account should be given and the case stated before the censors. A full hearing, however, should be reserved for a trial, with prosecutor, in a court of law.*
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That is all that needs to be said about magistrates, unless you think I have left something out.
ATTICUS: Well, even if we say nothing, does the point we have reached not suggest to you what you should deal with next?
MARCUS: Next? I suppose you mean the courts, Pomponius, for that subject follows on from the magistrates.
48–9. A discussion is adumbrated on the legal powers of magistrates
ATTICUS: What? Don’t you think something should be said about the law of the Roman people, as you set out to do?
MARCUS: What, may I ask, do you find wanting at this point?
ATTICUS: Wanting? Why, something which I think it is disgraceful for statesmen not to know about. You said a moment ago that the text of the laws was obtained from copyists. By the same token I notice that most magistrates, owing to their ignorance of their own legal system, know only as much as their clerks wish. Therefore, if, when you were setting out your laws about religion, you thought it right to speak about the transference of religious duties, you should see to it, now that your magistrates have been duly appointed, that you discuss the legal powers of those in positions of authority.
MARCUS: I shall do so briefly, if I can manage it; for Marcus Junius* wrote a very full account of the matter to your father, who was a friend of his, and (in my view anyhow) handled it in an expert and thorough manner. As for us, we should think and speak independently on the subject of natural law, but on Roman public law we shall state what has come down to us from earlier generations.
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ATTICUS: That is certainly my view, and I look forward to the very treatment you indicate . . .
FRAGMENTS OF THE LAWS
1. We should think ourselves lucky that death will bring a state which is either better, or else no worse, than what we know in life. For when the mind is active without the body, that kind of life is divine; but if the mind is devoid of consciousness, we surely experience no ill (Lactantius, Divinae Institutiones 3. 19).
2. Just as one and the same nature holds together and underpins the universe, and all its parts are in harmony with one another, so all human beings blend with each other by nature; but because of their wickedness they are at variance, and they fail to understand that they are blood-relatives and are placed under one and the same protection. If that point were grasped, there can be no doubt that men would live the life of gods (Lactantius, Divinae Institutiones 5. 8).
3. Since, then, as we can see, the sun has now moved a little beyond the zenith, and this whole place is not yet sufficiently shaded by these young trees, let us, if you agree, go down to the Liris and carry on the remainder of our discussion in the shade of those alders (Macrobius, Saturnalia 6. 4. 8).
APPENDIX
NOTES ON THE ROMAN CONSTITUTION
Official Bodies
The Senate or Council of Elders was a body of 300 with ten members from each of thirty voting districts (curiae), which in turn were based on the original three tribes. The senators, or fathers of families, represented the richest and most powerful clans. At one time, as a much smaller body, they had advised the king. Under the Republic they advised the magistrates who consulted them, but in virtue of their corporate experience their influence in every area of government was far weightier than that implies.
The comitia curiata or Assembly of Voting Districts, originally consisting wholly of patricians, ratified the appointment of a new king. It met at the k
ing’s behest to pledge loyalty in war or to endorse a death-sentence. It also had some more minor functions, such as witnessing wills and adoptions. Its importance dwindled with the passage of time.
The comitia centuriata or Assembly of Centuries, which was originally summoned by the king, met in the Campus Martius (Field of Mars). Its organization and procedure are described on pp. 47–8, 189–90. The function of the body was to enact laws; to elect consuls, praetors, and censors; to vote in capital cases (i.e. those involving death or exile); and to declare war and peace.
The comitia tributa or Assembly of Tribes, representing the whole population, was convened by a consul or praetor. It elected quaestors and curule aediles. As it met within the city and was more democratic than the Assembly of Centuries, it gradually increased in importance. Its measures were apparently subject to the approval of Senate until 339.
The concilium plebis or Council of the Plebs, like the comitia tributa was organized by tribes, but was not attended by patricians. It was presided over by a tribune and it elected tribunes and plebeian aediles. It also issued resolutions (plebiscita), which after 287 had the status of laws, and heard trials of non-capital offences. The Council drew closer in function to the Assembly of Tribes (which patricians often failed to attend), and frequently the two bodies are not distinguished in our sources.
The plebeian leaders were not members of an impoverished urban proletariat. Their families were squires of substantial means, and when they succeeded in gaining access to the governing class, they soon formed a new nobility which in its turn became exclusive. In the last 150 years of the Republic ten new men reached the consulship. Cicero was the only one to do so between 93 and 48.
In the Senate, members were invited to speak in order of seniority. In the other bodies there was no debate from the floor; members simply voted on the issues presented to them. (At the preliminary meetings, however, officials would vigorously advocate or oppose bills.) Ropes divided the membership according to centuries or tribes. These enclosures were connected to the magistrate’s platform by gangways. Each century or tribe produced a majority vote, which was then conveyed to the magistrate. Up to 241 BC new tribes were added for new citizens, but after that the number was fixed at 35: four in the city, sixteen in the immediate vicinity, and fifteen elsewhere, resulting from Rome’s expansion in Italy. Thereafter new citizens, in particular the Italians after 84, were distributed through the existing tribes, which consequently ceased to be territorial units.
The king wore a purple robe and sat in an ivory chair—the sella curulis (derived from currus = chariot). He was attended by officials (lictors) carrying the fasces (bundles of rods tied round an axe) which symbolized his absolute power. Though head of the state religion, he delegated the performance of rituals and the interpretation of religious law to priests. He appointed arbitrators for civil suits and special officials for cases of treason and homicide. He was in charge of foreign relations, and was responsible for raising and commanding an army. His financial resources came from rents of public domains, customs, licences from the salt trade, and fines.
Magistrates
Consuls were two equal ‘colleagues’, elected annually by the Assembly of Centuries, and gave their names to the year. They inherited the king’s regalia (though the full purple robe was reserved for special occasions), and also his attendants and symbols of power. They were in charge of foreign relations and had command of the army. At home they were the chief magistrates, convening and presiding over the Senate. In 366 the first plebeian became consul; but, as Roman magistrates had no salaries, such men had to be well off.
The Dictator or Master of the People was appointed only at times of crisis and held office for a maximum of six months. He was not elected by the people, but was nominated by a consul. His decisions were not subject to veto.
The Magister Equitum or Master of the Cavalry was appointed by the dictator as his assistant and had the rank of a praetor.
From about 443 two Censors were elected by the Assembly of Centuries from ex-consuls. They drew up a list of citizens and their property every five years for purposes of taxation. They entered office in the spring and held it for eighteen months; re-election was not allowed. They also revised the roll of the Senate and reviewed the knights, admitting new members and, in cases of disreputable conduct, expelling old ones. After the work was completed there was a public ceremony of purification in the Field of Mars, offering atonement for sin and thanks for blessings received.
Praetors were originally two military leaders (prae + ire); but at an early stage these came to be called consuls instead. In 366 the name praetor was attached to a newly instituted legal official, who had to be a patrician. He was elected by the Assembly of Centuries. In the middle of the third century the office was doubled, one praetor becoming the ‘city praetor’, the other (dealing with cases involving outsiders) the ‘foreign praetor’. As provinces were acquired the numbers rose to four (with Sicily and Sardinia) and then to six (with Nearer and Further Spain). Sulla raised the number to eight, to provide chairmen for his courts of inquiry. There were sixteen under Caesar.
In the early fifth century the Aediles were two plebeian officials, elected by the Council of the Plebs, who managed the temple (aedes) of Ceres and Liber on the Aventine Hill and looked after its archives. Gradually their responsibilities were widened to cover the administration of the city (streets, public buildings, markets, water- and food-supply, public order). In 367 two curule aediles (initially patrician) were added to share these duties. They were elected by the Assembly of Tribes. The aediles also shared the task of organizing public games.
The Quaestors were two legal and financial assistants to the consuls, elected after 447 by the Assembly of Tribes. In 421 the number was raised to four, and plebeians were admitted. As a result of Rome’s increasing power in Italy four more were added c. 267. Eventually Sulla raised the number to twenty and decided that the post should give automatic entry to the Senate. In the second century their duties became mainly financial. They included the supervision of treasury records, the collection of taxes and fines, and the sale of property acquired by conquest.
By 449 the number of Tribunes of the Plebs had risen to ten. Their duty was to intervene on behalf of plebeians in trouble with the law. The plebeians, in turn, swore to obey and protect them. They presided at the Council of the Plebs, and referred grievances to the consuls and Senate. By 216 they could convene and preside over meetings of the Senate. Because the tribunes had the right of veto, they were used by the senatorial authorities as a way of blocking unwelcome legislation.
Priests
Roman religion was a matter of ritual rather than doctrine. The priesthoods, which were held by secular magistrates, were retained by the patricians until 300. Then four plebeian pontiffs and five plebeian augurs were added, bringing the numbers up to eight and nine respectively. There was a special group of priests who consulted the Sibylline oracles when instructed to do so by the Senate. Their number was raised from two to ten in 367, and then to fifteen in the time of Sulla. Mention should also be made of the fetiales who carried out the rituals concerned with war and treaties.
Down to the third century pontiffs and augurs were appointed by their own colleges; after that they were elected by seventeen out of the thirty-five tribes, chosen by lot. The college of pontiffs also included the three major flamens, those of Jupiter, Mars, and Quirinus (there were fifteen in all, appointed from patrician families). As well as supervising the state cult, the pontifex maximus (chief pontiff) was in charge of the calendar. This involved the periodic intercalation of a month to bring the Roman lunar year into line with the sun. At the start of every year the pontifex maximus would post a list of forthcoming events on a board outside his residence. Both pontiffs and augurs were standing committees of the Senate, but the augurs acquired greater political influence from the custom of taking auspices. By searching the sky for signs they attempted to ascertain the will of the gods.
Since no public action could be taken without divine approval, the authorities regularly persuaded the augurs to obstruct unwelcome decisions by discovering adverse omens. The whole system depended on the credulity of the masses and (at least) the double-think of the aristocracy. For a table of priests and their functions see Beard and North 20–1.
The Equites
An additional note is called for on the equites or knights. These men originally constituted the cavalry of the Roman army and had their horses supplied at public expense. They usually belonged to important families in the country towns, and had to possess fortunes of at least 400,000 sesterces. If they wished, they might gain entry to the lower ranks of the Senate; but, given the restrictions on the commercial activities of senators, many of them preferred to engage in business, which often involved the lucrative activity of letting contracts, including the right to collect taxes in the provinces. Between the time of Gaius Gracchus and Cicero (except for a short period under Sulla) the knights supplied at least a third of the court which tried cases of extortion. This gave them considerable political influence. Socially they mixed with senatorial families, with whom they formed a narrow upper-class band of the population.
EXPLANATORY NOTES
THE REPUBLIC
BOOK 1
The missing portion of the preface will have contained, at least, an address to the dedicatee of the work, probably Cicero’s brother Quintus, and an announcement of the subject, doubtless with some reference to Cicero’s own position at the time of writing (the preface to De Oratore may be read for comparison).
