The History of Rome - All 5 Volumes in One Edition. Theodor Mommsen
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a subsequent period, when the senate hesitated to reject unceremoniously the humble entreaty of the Samnites for peace (436). It is not till towards the close of this epoch that we find a considerably extended intervention of the -comitia tributa- in affairs of administration, particularly through the practice of consulting it as to the conclusion of peace and of alliances: this extension probably dates from the Hortensian law of 467.
Decreasing Importance of the Burgess-Body
But notwithstanding these enlargements of the powers of the burgess-assemblies, their practical influence on state affairs began, particularly towards the close of this period, to wane. First of all, the extension of the bounds of Rome deprived her primary assembly of its true basis. As an assembly of the freeholders of the community, it formerly might very well meet in sufficiently full numbers, and might very well know its own wishes, even without discussion; but the Roman burgess-body had now become less a civic community than a state. The fact that those dwelling together voted also with each other, no doubt, introduced into the Roman comitia, at least when the voting was by tribes, a sort of inward connection and into the voting now and then energy and independence; but under ordinary circumstances the composition of the comitia and their decision were left dependent on the person who presided or on accident, or were committed to the hands of the burgesses domiciled in the capital. It is, therefore, quite easy to understand how the assemblies of the burgesses, which had great practical importance during the first two centuries of the republic, gradually became a mere instrument in the hands of the presiding magistrate, and in truth a very dangerous instrument, because the magistrates called to preside were so numerous, and every resolution of the community was regarded as the ultimate legal expression of the will of the people. But the enlargement of the constitutional rights of the burgesses was not of much moment, inasmuch as these were less than formerly capable of a will and action of their own, and there was as yet no demagogism, in the proper sense of that term, in Rome. Had any such demagogic spirit existed, it would have attempted not to extend the powers of the burgesses, but to remove the restrictions on political debate in their presence; whereas throughout this whole period there was undeviating acquiescence in the old maxims, that the magistrate alone could convoke the burgesses, and that he was entitled to exclude all debate and all proposal of amendments. At the time this incipient breaking up of the constitution made itself felt chiefly in the circumstance that the primary assemblies assumed an essentially passive attitude, and did not on the whole interfere in government either to help or to hinder it.
The Magistrates. Partition and Weakening of the Consular Powers
As regards the power of the magistrates, its diminution, although not the direct design of the struggles between the old and new burgesses, was doubtless one of their most important results. At the beginning of the struggle between the orders or, in other words, of the strife for the possession of the consular power, the consulate was still the one and indivisible, essentially regal, magistracy; and the consul, like the king in former times, still had the appointment of all subordinate functionaries left to his own free choice. At the termination of that contest its most important functions —jurisdiction, street-police, election of senators and equites, the census and financial administration —were separated from the consulship and transferred to magistrates, who like the consul were nominated by the community and occupied a position far more co-ordinate than subordinate. The consulate, formerly the single ordinary magistracy of the state, was now no longer even absolutely the first. In the new arrangement as to the ranking and usual order of succession of the public offices the consulate stood indeed above the praetorship, aedileship, and quaestorship, but beneath the censorship, which—in addition to the most important financial duties —was charged with the adjustment of the rolls of burgesses, equites, and senators, and thereby wielded a wholly arbitrary moral control over the entire community and every individual burgess, the humblest as well as the most prominent. The conception of limited magisterial power or special function, which seemed to the original Roman state-law irreconcilable with the conception of supreme office, gradually gained a footing and mutilated and destroyed the earlier idea of the one and indivisible -imperium-. A first step was already taken in this direction by the institution of the standing collateral offices, particularly the quaestorship;14 it was completely carried out by the Licinian laws (387), which prescribed the functions of the three supreme magistrates, and assigned administration and the conduct of war to the two first, and the management of justice to the third. But the change did not stop here. The consuls, although they were in law wholly and everywhere co-ordinate, naturally from the earliest times divided between them in practice the different departments of duty (-provinciae-). Originally this was done simply by mutual concert, or in default of it by casting lots; but by degrees the other constituent authorities in the commonwealth interfered with this practical definition of functions. It became usual for the senate to define annually the spheres of duty; and, while it did not directly distribute them among the co-ordinate magistrates, it exercised decided influence on the personal distribution by advice and request. In an extreme case the senate doubtless obtained a decree of the community, definitively to settle the question of distribution;15 the government, however, very seldom employed this dangerous expedient. Further, the most important affairs, such as the concluding of peace, were withdrawn from the consuls, and they were in such matters obliged to have recourse to the senate and to act according to its instructions. Lastly, in cases of extremity the senate could at any time suspend the consuls from office; for, according to an usage never established by law but never violated in practice, the creation of a dictatorship depended simply upon the resolution of the senate, and the fixing of the person to be nominated, although constitutionally vested in the nominating consul, really under ordinary circumstances lay with the senate.
Limitation of the Dictatorship
The old unity and plenary legal power of the -imperium- were retained longer in the case of the dictatorship than in that of the consulship. Although of course as an extraordinary magistracy it had in reality from the first its special functions, it had in law far less of a special character than the consulate. But it also was gradually affected by the new idea of definite powers and functions introduced into the legal life of Rome. In 391 we first meet with a dictator expressly nominated from theological scruples for the mere accomplishment of a religious ceremony; and though that dictator himself, doubtless in formal accordance with the constitution, treated the restriction of his powers as null and took the command of the army in spite of it, such an opposition on the part of the magistrate was not repeated on occasion of the subsequent similarly restricted nominations, which occurred in 403 and thenceforward very frequently. On the contrary, the dictators thenceforth accounted themselves bound by their powers as specially defined.
Restriction as to the Accumulation and the Reoccupation of Offices
Lastly, further seriously felt restrictions of the magistracy were involved in the prohibition issued in 412 against the accumulation of the ordinary curule offices, and in the enactment of the same date, that the same person should not again administer the same office under ordinary circumstances before an interval of ten years had elapsed, as well as in the subsequent regulation that the office which practically was the highest, the censorship, should not be held a second time at all (489). But the government was still strong enough not to be afraid of its instruments or to desist purposely on that account from employing those who were the most serviceable. Brave officers were very frequently released from these rules,16 and cases still occurred like those of Quintus Fabius Rullianus, who was five times consul in twenty-eight years, and of Marcus Valerius Corvus (384-483) who, after he had filled six consulships, the first in his twenty-third, the last in his seventy-second year, and had been throughout three generations the protector of his countrymen and the terror of the foe, descended to the grave at the age of a hundred.
The Tribunate of the People as an Instrument of Government
While the Roman magistrate was thus