1The Roman people must not be confused with the population of the City, even enlarged to the surrounding countryside. The term has a political meaning, as attested by the consecrated formula senatus populusque romanus. The people is one of the constituent elements, with the Senate and the magistrates, of the government of the City. It enjoys, in Montesquieu’s description, most of the legislative power and a part of the executive and the judicial powers (EL, XI, 12-18).
2From the royal period on it was one of the components of power, since it was called to confirm the election of the king, that the king bring to it “the matters” that had been previously “debated in the Senate”; moreover “the people had the right to elect magistrates, to consent to new laws”, but “it did not have the power to judge”. Servius Tullius, the next-to-last king, had, at least apparently, a policy that favored the people: “he stripped himself of civil judgments […]; he took all matters directly to the people, he relieved it of taxes”. His successor, Tarquin, did exactly the opposite and behaved like a tryant: “he usurped the people’s power”. Little good did it do him: “the people remembered for a moment that it was the legislator, and Tarquin was finished”.
3Chapter VIII of Romans (“On the divisions that always existed in the City”) defines “the free government, and thus ever agitated” of Rome, from the expulsion of the kings to the installation of the imperial regime. But Montesquieu does not speak of this “hidden war” that existed “within the walls”, as Bossuet had, as a vice that was finally to cause “the downfall of Rome”. He deals with the “divisions” – between the people and the Senate – by affirming (in chapter IX) that “these divisions were necessary, that they had always been there and would always be”. And Montesquieu then shows, in L’Esprit des lois, why these divisions had appeared and why, despite a certain evolution towards democracy, they had never disappeared.
4The distinction between people and Senate overlaps with the distinction between plebeians and patricians, but they do not exactly coincide. Patrician families filled the Senate, at least in the early centuries of the Republic, but they were also part of the people when it came to voting in the centuriate assembly, where they even had a sort of premium thanks to the reform attributed to Servius Tullius. There the plebeians were cast back into the classes with hardly any political weight; on the other hand, in the tribal assembly, where it was domicile, and not wealth, that constituted the criterion, they again had a certain influence over public business. Yet it must be remarked that the country tribes, where well-to-do Romans lived, massively outnumbering the tribes of the City, where the most impoverished were piled up, it was another premium granted to the most conservative elements among the citizens.
5The creation of the plebe tribunate was a turning point in the conflict that opposed plebeians and patricians; the plebes had retreated to the Sacred Mountain, and to get them to come back took a promise from the Senate that there would be a special magistracy created for the defense of plebeians. However, regrets Montesquieu, “the plebeians who had obtained tribunes to defend them used them to attack, little by little they took away all the patricians’ prerogatives: that produced continual disputes” (“les plébéiens qui avaient obtenu des tribuns pour les défendre, s’en servirent pour attaquer, ils enlevèrent peu à peu toutes les prérogatives des patriciens : cela produisit des disputes continuelles”). The two camps were well defined: “The people was supported, or rather animated by the tribunes, and the patricians were defended by the Senate, which was almost entirely composed of patricians, which was the most inclined to the old maxims, and feared lest the populace raise some tribune to tyranny.” (“Le peuple était soutenu, ou plutôt animé par ses tribuns, et les patriciens étaient défendus par le Sénat, qui était presque tout composé de patriciens, qui était plus porté pour les maximes anciennes, et qui craignait que la populace n’élevât à la tyrannie quelque tribun.”, Romans, VIII).
6What means had the people for overcoming the Senate’s resistence? The long sentence in which Montesquieu exposes the antagonists’ respective motives clearly shows the advantage which the patricians long enjoyed: “The people employed on its side its own strength, and its superiority in the suffrages, its refusals to go to war, its threats of withdrawal, the partiality of its laws, and its judgments against those who had caused it too much resistence” (“Le peuple employait pour lui ses propres forces, et sa supériorité dans les suffrages, ses refus d’aller à la guerre, ses menaces de se retirer, la partialité de ses lois, enfin ses jugements contre ceux qui lui avaient fait trop de résistance”). The Senate had many other weapons, which quite often assured it of preeminence.
7The analysis of what the ideal constitution could be leads Montesquieu, in book XI of L’Esprit des lois, to examine Roman institutions in the light of the distribution of the three powers which, as we know, he deems must be separated for freedom to exist.
8The people had, under the Republic, most of the legislative power: however, according to Montesquieu, “there were a thousand occasions on which the Senate necessarily had to legislate”; so he approves the fact that “the Senate’s decrees [had] force of law for a year; they became perpetual only by the people’s will” (EL, II, 2). Furthermore, censure, according to him, allowed for “regulating” the people’s legislative power, and dictatorship for “limiting” it (EL, XI, 16).
9The people also had a share of the executive power, although most of it belonged to the Senate and the magistrates: Montesquieu indeed attaches, in a way that now appears paradoxical to us, the election of the magistrates to the executive power. We have seen that the centuriate system favored the election of candidates rather favorable to the senatorial party. So it is not really surprising that, even when the people had obtained the right to elect plebeians as consuls and praetors, it continued to elect patricians.
10As for the “power of judging”, it belonged in a certain way to the people, but this prerogative was subject to variations. Going through the royal period and the beginnings of the Republic, Montesquieu observes that, by the Law of the Twelve Tables, “the people itself judged” crimes that were “public” and that, for the others, “it named for each crime, by a particular commission, a quaestor to pursue it”. Later – coming now towards the end of the Republic – “some of these commissions were made permanent”.
11It is after this description that Montesquieu observes that, until the Gracchi, “the judges were taken from the order of the senators”: could it be that, as the note of one commentator, Brèthe de la Gressaye, would give us to understand, it was a “simple usage that was introduced at a time when only the senators had sufficient juridical knowledge, and was maintained because the senators, at that time virtuous, proved to be equitable judges” (“simple usage qui s’était introduit en un temps où seuls les sénateurs avaient les connaissances juridiques suffisantes, et qui se maintint parce que les sénateurs, pour lors vertueux, se montrèrent des juges équitables”)? Or because a just distribution of powers required that the senators have their share of the “power to judge”? In any case it was the Senate, and not the people, that, for four of the five centuries that the Roman Republic lasted, really disposed of the judicial power. Montesquieu accords such political importance to the change that took place at the request of Tiberius Gracchus (in fact, Caius) that he writes: “When the Gracchi took the power to judge from the senators, the Senate could no longer hold out against the people” (“Quand les Gracques privèrent les sénateurs de la puissance de juger, le Sénat ne put plus résister au peuple”).
12When, in the Republic’s last century, the civil wars begin to take shape, Montesquieu does identify one of the causes of “the downfall of Rome”: distant wars cause the soldiers to lose their spirit of citizenship, the generals “could no longer obey”, the Roman people was no longer the same: “While the people of Rome was corrupted only by its tribunes, to whom it could grant only its own power, the Senate could easily defend itself, because it was constantly acting […]; but when it could give its favorites tremendous power outside, all the Senate’s wisdom became useless, and the Republic was lost” (“Tandis que le peuple de Rome ne fut corrompu que par ses tribuns , à qui il ne pouvait accorder que sa puissance même, le Sénat put aisément se défendre, parce qu’il agissait constamment [...] ; mais lorsqu’il put donner à ses favoris une formidable autorité au dehors, toute la sagesse du Sénat devint inutile, et la République fut perdue”, Romans, IX).
13The other cause was, after the Social War, the extension of the City to the confines of Italy. Montesquieu recalls the qualities that were those of the original people, and which it no longer possessed: “At that time Rome was no longer the city where the people had but a single spirit, a single love of freedom, a single hatred of tyranny, where the jealousy of the Senate’s power and the prerogatives of the grandees still mixed with respect was just love of equality” (“Pour lors Rome ne fut plus cette ville dont le peuple avait eu qu’un même esprit, un même amour pour la liberté, une même haine pour la tyrannie, où cette jalousie du pouvoir du Sénat et des prérogatives des grands toujours mêlée de respect n’était qu’un amour de l’égalité ”). Here Montesquieu rather clearly rejoins Bossuet. Yet he does not reconsider the fecund notion that a free government is necessarily an “agitated” government and, in this way implicitly vaunting the virtues of a regime, like that of Rome under the Republic, which authorizes a state that could be qualified as conflictual, he goes so far as to assert that “as a general rule, every time we see everyone tranquil in a state that calls itself a republic, we can be sure there is no freedom there”.
André Eskenasi, “‘Peuple’ et ‘nation’ dans De l’esprit des lois. Quelques remarques d’un lexicologue”, Revue Montesquieu 3 (1999), p. 111-124. http://montesquieu.ens-lyon.fr/spip.php?article325
Patrick Andrivet, “Rome enfin que je hais…” ? Une étude sur les différentes vues de Montesquieu concernant les anciens Romains, Orléans: Paradigme, 2012.