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 more and more completely and definitely transformed from the absolute lord into the limited commissioner and administrator of the community, the old counter-magistracy, the tribunate of the people, was undergoing at the same time a similar transformation internal rather than external. It served a double purpose in the commonwealth. It had been from the beginning intended to protect the humble and the weak by a somewhat revolutionary assistance (-auxilium-) against the overbearing violence of the magistrates; it had subsequently been employed to get rid of the legal disabilities of the commons and the privileges of the gentile nobility. The latter end was attained. The original object was not only in itself a democratic ideal rather than a political possibility, but it was also quite as obnoxious to the plebeian aristocracy into whose hands the tribunate necessarily fell, and quite as incompatible with the new organization which originated in the equalization of the orders and had if possible a still more decided aristocratic hue than that which preceded it, as it was obnoxious to the gentile nobility and incompatible with the patrician consular constitution. But instead of abolishing the tribunate, they preferred to convert it from a weapon of opposition into an instrument of government, and now introduced the tribunes of the people, who were originally excluded from all share in administration and were neither magistrates nor members of the senate, into the class of governing authorities.
While in jurisdiction they stood from the beginning on an equality with the consuls and in the early stages of the conflicts between the orders acquired like the consuls the right of initiating legislation, they now received—we know not exactly when, but presumably at or soon after the final equalization of the orders—a position of equality with the consuls as confronting the practically governing authority, the senate. Hitherto they had been present at the proceedings of the senate, sitting on a bench at the door; now they obtained, like the other magistrates and by their side, a place in the senate itself and the right to interpose their word in its discussions. If they were precluded from the right of voting, this was simply an application of the general principle of Roman state-law, that those only should give counsel who were not called to act; in accordance with which the whole of the acting magistrates possessed during their year of office only a seat, not a vote, in the council of the state.(17) But concession did not rest here. The tribunes received the distinctive prerogative of supreme magistracy, which among the ordinary magistrates belonged only to the consuls and praetors besides—the right of convoking the senate, of consulting it, and of procuring decrees from it.(18) This was only as it should be; the heads of the plebeian aristocracy could not but be placed on an equality with those of the patrician aristocracy in the senate, when once the government had passed from the clan-nobility to the united aristocracy. Now that this opposition-college,