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Text #9526

"Lex Hortensia", in Wikipedia.
https://en.wikipedia.org/wiki/Lex_Hortens...

In Roman law, Lex Hortensia (287 BC) was the final result of the long class struggle between patricians and plebeians, where the plebeians would periodically secede from the city in protest (secessio plebis) when they felt they were deprived of their rights. After 287 BC, the Comitia Centuriata falls into the background and the tribunes, working with the Senate, make the Lex Hortensia a stage in the development of Senatorial domination in the State. The Lex Hortensia contained similar stipulations of the two earlier laws, the Lex Valeria-Horatia of 449 BC and Lex Publica ut plebei scita omnes quirites tenerent of 339 BC. The statement that set the Lex Hortensia apart was the prelude that ‘olim patricii dicebant plebi scitis se non teneri, quae sine auctoritate eorum facta essent.’ This meant that through their plebeian assembly the plebeians could make laws that were considered binding for the entire Roman people (both patrician and plebeian), but which excluded the patricians of having any say in the legislative process in the plebeian assembly. The patricians were the wealthiest class of ancient Roman society, whilst the plebeians were the working class of Rome. Although many still attained wealth and status, they did not have the ancestral background associated with the patricians. This resulted in the struggle for power between the two classes.

Quintus Hortensius was a Roman dictator during the 3rd century BC, when the struggle between plebeians and patricians was at an apex. For two centuries, the classes had been locked in a struggle, in which the patricians tried to control and maintain the ever-growing plebeian privilege. Often in response to the actions of the Senate, the plebs would take composite action and seceded from the city. In 287 BC, the plebeians seceded to the Janiculan hill, and in response Quintus Hortensius was appointed dictator. Shortly thereafter he passed a law to attempt to end the struggle between the plebeian and patrician classes; because the law was sponsored by Quintus Hortensius, it became known as the Lex Hortensia, or “the Hortensian law”. Though very little is known about him personally, it has been suggested he died while still dictator.

What made this law especially noteworthy was that each resolution was binding, regardless of prior approval of the Senate, which made the measures passed just as binding as those passed by the Roman assemblies. It was passed in direct response to the patricians’ refusal to accept some of the plebeian decisions as binding upon them. This also allowed for the plebeians to rise to a higher status, where the wealthy now held the same amount of power and voice as the patricians did in the Senate. This also allowed the dominance of the patrician officials to wither.

After 509 BC, when the last kings of the Roman republic were overthrown, all focus in power came to be on the Roman Senate, which ruled through elected magistrates that ruled for a lifetime. The members of this Senate, and thus the elected magistrates, were members of the elite wealthy families who could afford for their members to spend money and time on campaigning and elections. In 494 BC, when the plebeians organized en masse and seceded to the Sacred Hill, they forced the higher orders to recognize them “as a constituted order with assemblies and magistrates of its own, and right of corporate action on its own account.” They sought to represent only the concerns of the members of this “constituted order” and no records claim they sought to exercise either sovereignty or legislative power over the community. The secession of 287 would prove to be the final one, because in response the dictator Quintus Hortensius sponsored a law which gave the Plebeian Council the right to enact laws (plebiscites) that were not subject to vetoes by the senate. Yet, by the time of the Punic Wars from 264 to 146 BC between Carthage and Rome, the plebeian assembly had been delegated the entirety of powers similarly granted to the populous. This new plebeian governing committee was allowed to form their own concilium with their own magistrates and tribunes, under their own set of traditions and procedures. This concilium came to be known as the concilium plebis, whose decisions were binding only to other plebeians. Providing that the decisions were approved by patricians, then and only then could they be applied to all Roman citizens. This council also elected the ten tribunes and Aediles in interest of the plebeians. Around the mid-5th century BC, the plebeians began to demand the Roman rulers to codify Roman law so that all citizens were seen as equal. The Plebeian Council had already acquired the right to pass laws that were binding on both Plebeians and Patricians (in 449 BC), but up to this point, plebiscites were subject to vetoes by the Patrician senators (through the auctoritas patrum, or “authority of the fathers” or “authority of the Patrician senators”). This law also ended this requirement for laws (leges) passed by the Tribal Assembly, but not for the Centuriate Assembly. During the late Roman Republic, thanks to the Lex Hortensia, the concilium plebis became the main legislative body in the Roman government. This law should not be viewed as the final triumph of democracy over aristocracy, since, through its close relations with the Plebeian Tribunes, the senate could still control the Plebeian Council. Thus, the ultimate significance of this law was in the fact that it robbed the Patricians of their final weapon over the Plebeians. The result was that the ultimate control over the state fell, not onto the shoulders of democracy, but onto the shoulders of the new Patricio-Plebeian senatorial aristocracy.

After the Lex Valeria-Horatia and the Lex Hortensia, the majority of plebeian votes were seen as a mere petition to which the patricians would then act upon accordingly. Frequently the tribune would see the vote of the plebs as moral support rather than legal validity. Once the Lex Valeria-Horatia and Lex Publica ut plebei scita omnes quirites tenerent were passed, the plebeians and its magistrates did hold practical power of initiative. After these laws, the tribune was given the power to confirm or object what the majority of the Plebeian council had decided. It has been argued that the two most notable laws passed to grant power to the plebeian assembly, Lex Valeria and Lex Horatia, were the actual first instance of considerable and sovereign power being granted to the plebs; some scholars accept another theory. Most scholars believe that a mistake was made in the interpretation of the articles of the laws, namely by Livy, who assumed them to be dealing with the plebeian assembly, but were actually meant for the comitia tributa, a minor assembly of the populus Romanus. Suffice it to say, modern scholars accept Lex Hortensia as being the monumental movement in bringing the power between the plebs and the nobles to an equal standing.

References

F. E. Adcock. Reviewed work(s): “Comitia Tributa-Concilium Plebis, Leges-Plebiscita” by A. G. Roos. The Journal of Roman Studies, Vol. 36, Parts 1 and 2 (1946), http://www.jstor.org/stable/298054.

R. Develin. “”Provocatio” and Plebiscites. Early Roman Legislation and the Historical Tradition.” Mnemosyne, Fourth Series, Vol. 31, Fasc. 1 (1978), pp. 45-60, http://www.jstor.org/stable/4430760 (accessed February 12, 2010).

“Quintus Hortensius.” Encyclopædia Britannica. Encyclopædia Britannica Online, http://www.britannica.com/EBchecked/topic/272473/Quintus-Hortensius.

Arlene W. Saxonhouse, “Classical Greece and Rome,” in Theories Thin, Political Philosophy: Theories, Thinkers, and Concepts, ed. Seymour Martin Lipset (Washington, D.C.: CQ Press, 2001), 308-310.

J. L. Strachan-Davidson, “The Growth of Plebeian Privilege at Rome,” The English Historical Review 1, no. 2 (Apr 1886):14, http://www.jstor.org/stable/546888. Abbott

“Plebeians, Romans,” in Ancient Greece and Rome, ed. Carroll Moulton (New York: Simon and Schuster MacMillan, 1998).

J. L. Strachan-Davidson, “The Decrees of the Roman Plebs,” The English Historical Review 5, No. 19 (July 1890): 462-474, http://www.jstor.org/stable/546448 (accessed February 18, 2010).

Text #9527

"Roman Constitution", in Wikipedia.
https://en.wikipedia.org/wiki/Roman_Const...

The Roman Constitution was an uncodified set of guidelines and principles passed down mainly through precedent. The Roman constitution was not formal or even official, largely unwritten and constantly evolving. Having those characteristics, it was therefore more like the British common law system than a statutory law system like the written United States Constitution, even though the constitution’s evolution through the years was often directed by passage of new laws and repeal of older ones.

Concepts that originated in the Roman constitution live on in both forms of government to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the bloc voting found in the electoral college of the United States, originate from ideas found in the Roman constitution.

Over the years, the Roman constitution continuously evolved. By 573 BC, the Constitution of the Roman Kingdom had given way to the Constitution of the Roman Republic. By 27 BC, the Constitution of the Roman Republic had given way to the Constitution of the Roman Empire. By 300 AD, the Constitution of the Roman Empire had given way to the Constitution of the Late Roman Empire. The actual changes, however, were quite gradual. Together, these four constitutions formed four epochs in the continuous evolution of one master constitution.

The Roman senate was the most permanent of all of Rome’s political institutions. It was probably founded before the first king of Rome ascended the throne. It survived the fall of the Roman Kingdom in 510 BC, the fall of the Roman Republic in 27 BC, and the fall of the Roman Empire in 476 AD. It was, in contrast to many modern institutions named ‘Senate’, not a legislative body.

The power of the senate waxed and waned throughout its history. During the days of the kingdom, it was little more than an advisory council to the king. The last king of Rome, the tyrant Lucius Tarquinius Superbus, was overthrown following a coup d’état that was planned in the senate.

During the early republic, the senate was politically weak. During these early years, the executive magistrates were quite powerful. The transition from monarchy to constitutional rule was probably more gradual than the legends suggest. Thus, it took a prolonged weakening of these executive magistrates before the senate was able to assert its authority over those magistrates. By the middle republic, the senate reached the apex of its republican power. This occurred because of the convergence of two factors. The plebeians had recently achieved full political enfranchisement. Therefore, they were not as aggressive as they had been during the early republic in pushing for radical reforms. In addition, the period was marked by prolonged warfare against foreign enemies. The result was that both the popular assemblies and the executive magistrates deferred to the collective wisdom of the senate. The late republic saw a decline in the senate’s power. This decline began following the reforms of the radical tribunes Tiberius and Gaius Gracchus. The declining influence of the senate during this era, in large part, was caused by the class struggles that had dominated the early republic. The end result was the overthrow of the republic, and the creation of the Roman Empire.

The senate of the very early Roman Empire was as weak as it had been during the late republic. However, after the transition from republic to empire was complete, the senate arguably held more power than it had held at any previous point. All constitutional powers (legislative, executive and judicial) had been transferred to the senate. However, unlike the senate of the republic, the senate of the empire was dominated by the emperor. It was through the senate that the emperor exercised his autocratic powers. By the late principate, the senate’s power had declined into near-irrelevance. It never again regained the power that it had held before that point.

Much of the surviving literature from the imperial period was written by senators. To a large degree, this demonstrates the strong cultural influence of the senate, even during the late empire. The institution survived the fall of the Empire in the West, and even enjoyed a modest revival as imperial power was reduced to a government of Italy only. The senatorial class was severely affected by the Gothic wars.

The first Roman assembly, the Comitia Curiata, was founded during the early kingdom. Its only political role was to elect new kings. Sometimes, the king would submit his decrees to it for ratification. During the early republic, the Comitia Curiata was the only legislative assembly with any power. Shortly after the founding of the republic, however, the Comitia Centuriata and the Comitia Tributa became the predominant legislative assemblies.

Most modern legislative assemblies are bodies consisting of elected representatives. Their members typically propose and debate bills. These modern assemblies use a form of representative democracy. In contrast, the assemblies of the Roman Republic used a form of direct democracy. The Roman assemblies were bodies of ordinary citizens, rather than elected representatives. In this regard, bills voted on (called plebiscites) were similar to modern popular referenda.

Unlike many modern assemblies, Roman assemblies were not bicameral. That is to say that bills did not have to pass both major assemblies in order to be enacted into law. In addition, no other branch had to ratify a bill (rogatio) in order for it to become law (lex). Members also had no authority to introduce bills for consideration; only executive magistrates could introduce new bills. This arrangement is also similar to what is found in many modern countries. Usually, ordinary citizens cannot propose new laws for their enactment by a popular election. Unlike many modern assemblies, the Roman assemblies also had judicial functions.

After the founding of the empire, the powers of the assemblies were transferred to the senate. When the senate elected magistrates, the results of those elections would be read to the assemblies. Occasionally, the emperor would submit laws to the Comitia Tributa for ratification. The assemblies ratified laws up until the reign of the emperor Domitian. After this point, the assemblies simply served as vehicles through which citizens would organize.

During the years of the Roman Kingdom, the king (rex) was the only executive magistrate with any power. He was assisted by two quaestors, whom he appointed. He would often appoint other assistants for other tasks. When he died, an interrex would preside over the senate and assemblies, until a new king was elected.

Under the Constitution of the Roman Republic, the “executive branch” was composed of both ordinary as well as extraordinary magistrates. Each ordinary magistrate would be elected by one of the two major Legislative Assemblies of the Roman Republic. The principal extraordinary magistrate, the dictator, would be appointed upon authorization by the Senate of the Roman Republic. Most magistrates were elected annually for a term of one year. The terms for all annual offices would begin on New Year’s Day, and end on the last day of December.

The two highest ranking ordinary magistrates, the consuls and praetors, held a type of authority called imperium (Latin for “command”). Imperium allowed a magistrate to command a military force. Consuls held a higher grade of imperium than praetors. Consuls and praetors, as well as censors and curule aediles, were regarded as “curule magistrates”. They would sit on a curule chair, which was a symbol of state power. Consuls and praetors where attended by bodyguards called lictors. The lictors would carry fasces. The fasces, which consisted of a rod with an embedded axe, were symbols of the coercive power of the state. Quaestors were not curule magistrates, and had little real power.

Plebeian tribunes were not officially “magistrates”, since they were elected only by the plebeians. Since they were considered to be the embodiment of the People of Rome, their office and their person were considered sacrosanct. It was considered to be a capital offense to harm a tribune, to attempt to harm a tribune, or to attempt to obstruct a tribune in any way. All other powers of the tribunate derived from this sacrosanctity. The tribunes were assisted by plebeian aediles.

In an emergency, a dictator would be appointed. A newly appointed dictator would usually select a deputy, known as the “Magister Equitum” (“Master of the Horse”). Both the dictator and his master of the horse were extraordinary magistrates, and they both held imperium. In practice, the dictator functioned as a consul without any constitutional checks on his power. After 202 BC, the dictatorship fell into disuse. During emergencies, the senate would pass the senatus consultum ultimum (“ultimate decree of the senate”). This suspended civil government, and declared (something analogous to) martial law. It would declare “videant consules ne res publica detrimenti capiat” (“let the consuls see to it that the state suffer no harm”). In effect, the consuls would be vested with dictatorial powers.

After the fall of the republic, the old magistracies (dictators, consuls, praetors, censors, aediles, quaestors and tribunes) were either outright abandoned, or simply lost all powers. The emperor became the master of the state. The founding of the empire was tantamount to a restoration of the old monarchy. The chief executive became the unchallenged power in the state, the senate became a powerless advisory council, and the assemblies became irrelevant.

The Roman constitution was one of the few constitutions to exist before the 18th century. None of the others are as well known to us today. And none of the others governed such a vast empire for so long. Therefore, the Roman constitution was used as a template, often the only one, when the first constitutions of the modern era were being drafted. And because of this, many modern constitutions share a similar, even identical, superstructure (such as a separation of powers and checks and balances) as did the Roman constitution.

References

Abbott, Frank Frost (1901). A History and Description of Roman Political Institutions. Elibron Classics (ISBN 0-543-92749-0).

Byrd, Robert (1995). The Senate of the Roman Republic. U.S. Government Printing Office, Senate Document 103-23.

Cicero, Marcus Tullius (1841). The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws. Translated from the original, with Dissertations and Notes in Two Volumes. By Francis Barham, Esq. London: Edmund Spettigue. Vol. 1.

Lintott, Andrew (1999). The Constitution of the Roman Republic. Oxford University Press (ISBN 0-19-926108-3).

Polybius (1823). The General History of Polybius: Translated from the Greek. By James Hampton. Oxford: Printed by W. Baxter. Fifth Edition, Vol 2.

Taylor, Lily Ross (1966). Roman Voting Assemblies: From the Hannibalic War to the Dictatorship of Caesar. The University of Michigan Press (ISBN 0-472-08125-X).

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