The Roman Constitution
The Romans
Chapter 2 Case Study
Plans like this one are helpful in illustrating the ‘due process’, but if one expects to find ‘due
process’ carried out in every instance (in ancient or modern government), one will most
certainly be disappointed. It is better to use this as a guide to judge what actually happens
during specific events in Roman history. Does the diagram match the progression of events?
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Questions of constitutionality
In the following three historical examples consider the
following questions:
• Were the powers of the tribune of the plebs sacrosanct
(inviolate)?
• Was a dictator necessary?
• Who has imperium (the power to kill a Roman citizen)?
• Are the outcomes of these events consistent with the
checks and balances set out in the Roman constitution?
Is it constitutional?
Example 1: Spurius Maelius (c. 429 BC)
Maelius, an aspiring second-class citizen is cheekily handing
out grain to generate popular support.
1. The official grain distributor goes to the consul.
Constitutional?
2. The consuls claim they lack the power to punish Maelius.
Constitutional?
3. Consuls propose a dictator.
Constitutional?
4. Dictator sends his master of the horse, who kills Maelius for
attempting to leave (though he has called upon the tribune of the
plebs).
Constitutional?
5. Dictator Cincinnatus declares the murder justified on account of
Maelius’ audacity at selling corn and trying to court favour among his
betters.
Constitutional?
Is it constitutional?
Example 1: Spurius Maelius (ca. 429 BC)
Maelius, an aspiring second-class citizen is cheekily handing out
grain to generate popular support.
1. The official grain distributor goes to the consul.
Constitutional? Yes.
2. The consuls claim they lack the power to punish Maelius.
Constitutional? Er yes, but consuls are the most powerful officials in Rome. The
only thing they cannot do is kill someone.
3. Consuls propose a dictator.
Constitutional? Yes, but is it necessary?
4. Dictator sends his master of the horse, who kills Maelius for attempting to
leave (though he has called upon the tribune of the plebs).
Constitutional? Not really: the master of the horse does not have imperium
(right to kill a citizen), especially one who has invoked the protection of the
tribune of the plebs
5. Dictator Cincinnatus declares the murder justified on account of Maelius’
audacity at selling corn and trying to court favour among his betters.
Constitutional? Seriously?
Is it constitutional?
Example 2: Tiberius Gracchus (133 BC)
1. Tiberius’ proposal of a land reform is vetoed by
his fellow tribune Marcus Octavius.
Constitutional?
2. Tiberius gains a majority vote (according to
Appian) in 18 of 35 tribes to remove Octavius
from office.
Constitutional?
3. Misinterpreting Tiberius’ gesture of fear
(pointing to his own head) as a call for a crown,
an irate pontifex maximus grabs a club and kills
Tiberius on the steps of the Capitol.
Constitutional?
Is it constitutional?
Example 2: Tiberius Gracchus (133 BC)
1. Tiberius’ proposal of a land reform is vetoed by his fellow tribune
Marcus Octavius.
Constitutional? Yes, but quite unusual: tribunes seldom vetoed each
other’s proposals.
2. Tiberius gains a majority vote (according to Appian) in 18 of 35 tribes
to remove Octavius from office.
Constitutional? It seems so. Other accounts say that Tiberius had
Octavius personally removed after Octavius vetoed a vote to remove
him from office. This is an unusual scenario, and it is not clear that
there was a ‘due process’ for this type of stalemate.
3. After misinterpreting Tiberius’ gesture of fear of personal as a call for
a crown, an irate pontifex maximus grabs a club and kills Tiberius on
the steps of the Capitol.
Constitutional: No. Neither the Senate nor the pontifex maximus
possessed imperium. While the murder of Tiberius was not a
formally legitimized act, it was followed by a formal inquiry in which
his supporters were formally charged and killed. So much for the
Is it constitutional?
Example 3: The Catiline Conspiracy, 62 BC
1.
After a series of events (including the attempted assassination of the consul
Cicero), five incriminating letters are read to the Senate, illustrating a
conspiracy against the Roman state. The authors of the letters are arrested.
Constitutional?
2. After a debate, the Senate empowers Cicero with the senatus consultum
ultimum, ‘the Senate’s ultimate decree’, to kill all five men.
Constitutional?
Is it constitutional?
Example 3: The Catiline Conspiracy, 62 BC
1.
After a series of events (including the attempted assassination of the consul
Cicero), five incriminating letters are read to the Senate, illustrating a
conspiracy against the Roman state. The authors of the letters are arrested.
Constitutional? Yes, evidence submitted to the Senate that these men are guilty
of treason certainly merited their arrest.
2.
After a debate, the Senate empowers Cicero with the senatus consultum
ultimum, ‘the Senate’s ultimate decree’, to kill all five men.
Constitutional? The Senate believed their ultimate decree was constitutional but
many Romans (including Julius Caesar) were not convinced. The constitution
did not grant the power to kill a Roman citizen (imperium) to the senate.
‘Due process’, as in the case of Maelius, required the appointment of a
dictator (though this office was a bit tarnished after Sulla). While some
hailed Cicero, as Cincinnatus had hailed his master of the horse, a ‘saviour
of the republic’, this unconstitutional act would blemish his career for the
rest of his life.
Conclusions on the Roman constitution
The flexibility of the Roman constitution allowed it to evolve and adapt
significantly over nearly 500 years. However, Rome’s empire and her
social structure outgrew the bounds of the small agrarian society that
created it.
The very flexibility that allowed the Roman constitution to grow also
made it subject to the machinations and manipulation of individuals
and governing bodies (e.g. the Senate), who pushed their powers to
the limits (and, some would say, beyond).
The evolution of the Roman constitution demonstrates the strengths
and weaknesses inherent in a system of checks and balances. The
subsequent manipulations of the Roman constitution by various offices
and individuals present a series of lessons in politics that could be
applicable to a number of modern constitutions, particularly those
inspired by the Roman model.