Tacitus and the Roman Constitution

The New Digest are thrilled to welcome back Professor Simon Malloch for this guest essay. Professor Malloch lectures at the Department of Classics and Archaeology at the University of Nottingham. His previous essay, on Augustus, is available here. Some of the ideas in this essay occur in an essay (in press) that will be available here in due course. 

Tacitus disagreed with Polybius and Cicero that the Roman Republic (in its prime) had been a mixed constitution. Opening an excursus on the writing of history, he declares: 

All nations and cities are ruled by the people (populus), or by the nobility (primores), or by one man (singuli). A form of commonwealth (rei publicae forma) combining a selection from them is able to be praised more easily than to come about, or if it does come about, is not able to be long-lasting. (Annals 4.33) 

Tacitus uses these three elements individually to characterise the trajectory of Roman history. The next sentence reveals that he regarded control of the Republic as alternating between plebs and patres until control passed necessarily to a single ruler in the first century B.C. This view of power alternating between people and nobility implies in turn that Tacitus did not hold that the Republic ever manifested a stable constitutional order. Scholars holding the contrary view seek support from his remarks on the Republic in another excursus, on the history of legislation: 

When Tarquin had been expelled, the people prepared against the intrigues of the patres many measures for protecting liberty and for consolidating unity; Decemvirs were appointed [451 B.C.] and, with the summoning of what was outstanding anywhere, the Twelve Tables drawn up, the finis aequi iuris. For subsequent laws, although sometimes directed against criminals in accordance with their crime, were more often, however, carried by violence amid the dissension of the orders and to acquire office illegally or to banish distinguished citizens and for other corrupt reasons. (Annals 3.27) 

Those seeking evidence of a ‘constitutional order’ translate finis aequi iuris as ‘the culmination of equitable legislation’ and date the ‘subsequent laws’ of the next sentence to the period of the Gracchi (133 B.C.) onwards: the mid-fifth century to the later-second century was a period of stable constitutional order. But this reading rests upon a misinterpretation of finis and the context of its use. Tacitus never otherwise uses finis to mean ‘culmination’: in his hands the term means ‘end’ or ‘limit’. The claim that the Twelve Tables were ‘the end of equitable legislation’ is tied very closely to the next sentence, which explains that judgement. Tacitus distinguishes between the Twelve Tables and all subsequent legislation. There is no room for an implicit leap of three centuries – and so no stable constitutional order. 

Tacitus viewed the alternation of power between plebs and patres during the Republic against the backdrop of an unwritten, ‘living’ constitution consisting of mos (ancestral custom) and ius (justice or law, broadly understood). In the late first century B.C., when the contest for supremacy was now taking place between individuals, Tacitus characterises the twenty years of discordia as the absence of mos and ius (Annals 3.28), the death-throws of the Republic. The solution to the crisis was effected by Augustus. In his sixth consulship of 28 B.C. he gave ‘laws which we were to use in peace and under a princeps’ (Annals 3.28). 

The essentials of the republican constitution resonate also in Tacitus’s sketch of their transformation to entrench the unrepublican regime of Augustus. In the last years of Augustus: 

conditions at home were peaceful, the titles of the magistrates were the same; younger men had been born after the victory of Actium, and even most of the old men had been born during the civil wars: how many were left who had seen the Republic (res publica)? Therefore, when the situation of the community had been changed (uerso ciuitatis statu), there was no trace of old and sound custom anywhere: everyone, now that equality had been cast aside (exuta aequalitate), looked to the commands (iussa) of the princeps. (Annals 1.3-4) 

Superficially all was continuity, but in reality the political community had changed – not that there were many alive in the second decade of the first century A.D. who had seen the Republic. Tacitus’s use of res publica, the first in the Annals, to mean ‘the Republic’ is very pointed: he is practically alone among ancient authors writing after its fall in employing res publica in this way, and he does so rarely. The term retained currency to describe rather the re-established or ‘new’ res publica under the control of a princeps occupying a preeminent but informal station. In applying res publica to the ‘old’ Republic Tacitus was pointing up a contrast with what the ‘new’ res publica was not. 

What had changed? Tacitus observes that ‘equality’ had been cast aside under Augustus now that ‘commands’ issued from the princeps. Equality evoked libertas, the defining characteristic of the Republic: the res publica was free from external restraints to govern itself and its citizens were free from internal restraints to govern themselves on equal terms. Liberty remained a slogan of the new res publica of Augustus. This boast Tacitus subverts by using libertas, applied to the condition of senators, to mark the difference between the Republic and the new political reality. When, for example, Tiberius expressed an opinion on voting in cases before the senate, Tacitus prefaces the response of Lucius Piso with the remark that ‘there was remaining even then traces of dying liberty’ (Annals 1.74). Wrangling in the senate was observed silently by Tiberius, who allowed the senate ‘a show of liberty’ (Annals 1.77). Senators exercise a qualified libertas permitted by the princeps, not the complete libertas of the Republic. Tacitus uses the language of the old res publica to define the shape of the libertas of the new res publica under the control of a princeps. 

‘The titles of the magistrates were the same’: this statement goes to the heart of Tacitus’s view of the supremacy of Augustus. When Augustus laid down his Triumviral powers, he ‘paraded himself as consul and as content with the tribunician power for protecting the plebs’ (Annals 1.2). Augustus held the consulship and took the tribunician power (itself an innovation in the separation of the power from its magistracy) because he was careful to express and so legitimise his supremacy in a legal and conventional form. Tacitus explains elsewhere that Augustus took the tribunician power to mark his supremacy with a designation that avoided those traditional but controversial titles ‘king’ and ‘dictator’ (Annals 3.56). Augustus could afford to comport himself under the banner of these republican magistracies since he was secure in his pre-eminence (Annals 3.28). At the start of the Annals he emerges from the line of republican magnates to take everything ‘under his command’, sub imperium (Annals 1.1). Tacitus uses imperium, a term long associated with Augustus’s legal and limited tenure of power, to describe the new reality of his unlimited control. This total power was not static. It grew gradually over time as Augustus ‘drew to himself the functions of the senate, magistrates, and laws’ to find himself utterly unopposed (Annals 1.2). The result, in Tacitus’s view, was an informal dominatio, ‘despotism’ (Annals 1.3), power exceeding constitutional bounds. In this new res publica the traditional magistrates could and did retain their old names, for the reality of their power had been transformed: they were now subordinate to the informal supremacy of Augustus.