THE MAGISTRACY
§ 1. _General Characteristics of the Magistracy_
The collective powers of the magistrate had, as we saw, been summed up in
the word _imperium_; they had, perhaps, also been expressed by the vaguer
term _potestas_. When, in course of time, magistracies were created which
did not possess the _imperium_, _potestas_ was necessarily the only word
which expressed the _generic_ power of the magistracy; _imperium_ became
a special _species_ of this power. Thus one could speak of the _consulare
imperium_ or of the _consularis potestas_, but only of the _tribunicia
potestas_.[614]
It is difficult to treat collectively of the special manifestations
of this authority; for the magistracies were graduated by differences
of power. To avoid confusion and repetition it will be best, in this
general sketch, to give a complete list of magisterial powers, and to
point out in each case where they are accorded to, or withheld from, the
particular occupants of office. Magisterial powers may be divided into
(i.) administrative, (ii.) those exercised in connexion with the people,
(iii.) those exercised in connexion with the Senate; and (iv.) certain
general powers which underlie all these spheres of activity—the right
of interpreting the will of the gods through auspices, and the right of
enforcing decrees.
(i.) _Administrative powers._—The sphere of administrative activity had
from the first days of the Republic been divided into the two departments
of command at home (_domi_) and abroad (_militiae_), the dividing line
between the two being sometimes the _pomerium_, sometimes the limit
marked by the first milestone outside the city.[615]
The home administration can be adequately considered only when we deal
with the separate magistracies. But the common form in which it asserted
itself may be considered here. This was the right of issuing commands in
the form of edicts (_jus edicendi_), applicable to the special branches
of administration under the control of the magistrates, from the quaestor
to the consul.[616] The edicts of all the magistrates corresponded to one
another in their general form; they contained commands, prohibitions,
and advice. They were all at an early period issued in writing, and the
difference between them was simply that while some, such as those of the
consuls and quaestors, were occasional and, when the necessity for them
had passed, withdrawn, others, such as those of the censors, praetors,
curule aediles and provincial governors, were continuous (_perpetua_),
as being called forth by ever-present necessities, and were therefore
transmitted by magistrates to their successors (_tralaticia_). Prominent
in their continuity were those of the censors and praetors; while the one
created a code of Roman morality, the other developed a system of legal
procedure.
The administrative duties abroad belonged exclusively to the magistrates
with _imperium_, i.e. in the ordinary course of things to the consuls
and praetors, in exceptional circumstances to the dictator.[617] The
treatment of provincial administration may be deferred until we deal with
the provinces and the pro-magistracy which imperial government created.
Here we may appropriately notice the exceptional powers which military
command gave to the magistrate over the persons and services of the
burgesses, and the honours which it conferred on its possessor.
The first right conferred by military command (_imperium_ in the
narrower sense[618]) was that of the formation of an army by enforced
conscription (_dilectus_). It was exercised, however, only by the
magistrate in supreme command, that is, by the consuls or the dictator,
not by the praetor. It was a purely magisterial right, and in the levy
of the regular consular army of four legions the consuls were probably
independent of any guidance. Custom eventually dictated that, when
exceptional forces were needed, the permission for the raising of these
should come from the Senate.[619] Within this permission the consuls
acted at their own discretion. They summoned all the _juniores_ to meet
them, formerly on the Capitol, later in the Campus Martius; and under
their inspection the military tribunes selected whom they would and bound
the conscripts to obedience by a military oath (_sacramentum_).[620]
Although this oath was in form one of personal allegiance to special
commanders, was tendered to both colleagues[621] and had to be renewed
with every change of command,[622] its primary import was to give the
soldier the right of using weapons against enemies, and to change what
would have been acts of mere brigandage (_latrocinium_) into those of
legitimate service (_legitima militia_).[623] A secondary association
with the oath may in early times have been that he who broke it was
_sacer_, and that the vengeance of the gods could be satisfied by summary
execution inflicted by the general on the offender.[624] The power of
inflicting capital punishment for military offences did not, however,
need this religious sanction; it was a consequence of the _coercitio_ of
the _imperator_, when outside the sphere of the _provocatio_[625] and
unchecked by the veto of a colleague.[626] A further right preliminary
to the conduct of war was the nomination of the officers of the
army—the military tribunes, centurions, decurions, and commanders of
every branch. Appointment to all these posts, from the highest to the
lowest, was originally in the hands of the consuls; but the tendency of
the Republic was to remove selection to the higher military commands
from the discretion of the magistrate. In 362 B.C. the creation of
six of the military tribunes of the standing army of four legions was
transferred to the people in the _comitia tributa_;[627] by the year
207 all of the twenty-four had been thus elected,[628] and the standing
military tribunate had become one of the regular minor magistracies of
the state.[629] The tribunes for other legions that might be raised were
still nominated by the consuls,[630] and sometimes the people gave up
its right of election in their favour.[631] In raising supplies most
magistrates were dependent on the Senate; but the consul’s original
control of the _aerarium_ survived in the right he possessed of ordering
the quaestor to pay him any money he required for military expenses.[632]
When the preparations for war were completed and the consuls took the
field, their discretionary authority in the conduct of the campaign,
in finance and in jurisdiction, was almost absolute. The first power
was hampered only by the condition that they could not wage war against
a state which stood in any degree of alliance with Rome without the
consent of the people; the second received some slight limitation
from the appointment of military quaestors in 421;[633] the third was
theoretically unlimited throughout the whole history of the Republic, but
received some slight modification from the growing sense of the sanctity
of the life of a Roman citizen, which made the generals during the last
century of the Republic more chary of pronouncing capital sentences
upon their officers and soldiers.[634] It is important to remember that
this absolute jurisdiction _militiae_ was not in the least confined
to the army; every Roman citizen within the sphere of the general’s
administration, and every provincial, when these spheres had developed
into standing provinces, were equally subjected to martial law.[635] The
provincial in fact was often in better case than the Roman sojourning in
the provinces. He could sometimes appeal to the liberties granted to his
town by charter; but the Roman found that his palladia—the _provocatio_
and the _intercessio_—had vanished in this sphere.[636]
A victory over the foe gave the general the right to claim two
further privileges—the one a titular designation, the other a popular
manifestation of success—which were strictly regulated by constitutional
law. Every holder of the _imperium_ was necessarily an _imperator_; but
from a very early period of the Republic it was considered improper for
the possessor of the very limited _imperium_ within the walls to use this
title. It was reserved for the general in command of an army; _imperator_
is both the official and the familiar title by which he was addressed by
his soldiers. But, even under these circumstances, it was not employed
by the general himself as a part of his official designation. For this
a victory was requisite; the soldiers after the battle proclaimed him
conqueror by shouting the familiar name; from this time he was supposed
to have it impressed on him in a peculiar manner and could bear it
in his list of titles.[637] Custom decreed that the honour should be
assumed only in consequence of a great and decisive victory;[638] but
the ambition and rivalry of provincial governors finally caused the most
trifling successes to be commemorated in this way.
The salutation was the usual preliminary to a triumph—the solemn
procession of the general through the city to the Capitol at the head of
his victorious army. As the title _imperator_ could be conferred only on
a commander-in-chief, and was inconsistent with delegated authority, the
triumph was necessarily confined to the magistrates with the capacity for
supreme command—the dictator, consul and praetor,[639] and to the one
of these who at the moment of victory was in highest authority. Thus the
dictator usually excluded the consul,[640] the consul the praetor; and
when two consuls were in command, the right resided with the one who had
the _imperium_ and the _auspicia_ on the day of the victory.[641] The
same rule held when the honour was granted to pro-magistrates; here too
independent command was the necessary condition of a triumph.
Other qualifications were fixed by custom. The return of the victorious
army was originally necessary—a rule which rendered the most deserving
general, who had handed over his forces to a successor, incapable of
triumphing,[642] and which, with the growth of standing armies, had to
be abandoned for the rule that the province must be reduced to a state
of peace (_provincia pacata_).[643] The war must be a _justum bellum_,
not the mere crushing a revolt of citizens or slaves;[644] and finally,
the custom was fixed that it must be a war, the magnitude of which was
attested by the fall of 5000 foes.[645]
The right to triumph was one entirely at the discretion of the general;
and as long as he chose the Alban Mount as the scene of his military
pageant, no power could hinder him.[646] It was only when he wished to
enter the city of Rome for the more imposing procession to the Capitol
that he found difficulties in his way. The triumph implied the display
of the full military _imperium_ within the city;[647] and, though
instances are not lacking of magistrates who on their own responsibility
successfully asserted this right,[648] the custom became fixed that
permission for this display should be accorded by the state. Originally
it may have been granted by the people,[649] but the permission for
the exercise of the full _imperium_ for the single day soon required
the consent of the Senate, all the more necessary as its control of
finance enabled it to grant or refuse the money which paid the expenses
of the triumph.[650] The case was otherwise with the pro-magistrate.
The proconsul had only the _imperium militiae_, and none within the
walls, and it was impossible, therefore, for the Senate to recognise
the display of a power which did not exist. In this case a special
dispensation from the laws was necessary, which could originally be
granted only by the people. The Senate took the initiative by asking the
tribunes to introduce a _plebiscitum_ sanctioning the arrangement.[651]
The continuity of the _imperium_ from magistracy to pro-magistracy was
originally a condition of the triumph. Thus it was refused to the elder
Scipio Africanus who had been elected proconsul without having exercised
any previous _imperium_.[652] By the close of the Republic both these
scruples had been set aside. The triumph was decreed to proconsuls
by the Senate, and without regard to their having held any previous
_imperium_.[653]
(ii.) _Powers exercised in connexion with the people._—The dealings
which the magistrate had with the assembled people were of two kinds;
he might summon them for the purpose of imparting information: in this
case the meeting was called a _contio_;[654] or he might convene them
for the purpose of passing decrees binding on the community: such an
assembly assumed one of the various forms of the _comitia_. The first
power (_contionem habere_) was often preliminary to the exercise of the
second (_cum populo agere_); for a _contio_ or a series of _contiones_
generally preceded the formal meetings of the assemblies at which laws
or _plebiscita_ were passed,[655] and was in fact an indispensable
preliminary, since, in the case of legislation, it was the chief
opportunity for recommendations or criticisms of a bill, and, in the case
of popular jurisdiction, was the only means by which the people could
form an estimate of the evidence. The magisterial _contio_ was, in fact,
the great vehicle for constitutional agitation and, as such, the most
democratic institution in Rome.
But the use of the _contio_ was not confined to the preliminaries of
legislation. It was the form in which the people were summoned to witness
any public act,[656] and to listen to the magistrate’s commands when
these were expressed in the form of verbal edicts.[657] The essential
feature of such an assembly was that the people were invited to meet a
magistrate and to listen to his views; the masses were mere auditors; and
the fact that this was no chance gathering was further emphasised by the
solemnity of the proceedings—the formal summons, the opening prayer,[658]
and the elevation of the magistrate on the tribunal. We cannot say with
certainty how far this right of holding a _contio_ extended. It was
certainly possessed by the consuls, praetors, censors, and tribunes, and
probably by all the magistrates down to the quaestor.[659] The conflict
of magisterial authority was felt here as in other departments, and the
higher magistrate could summon to himself the _contio_ convoked by an
inferior.[660]
The Roman constitution recognised no right of public meeting; a gathering
of the citizens by a citizen might be treated as a breach of the peace,
or might be summarily visited by the _coercitio_ of a magistrate. But the
increase of the magistrates, and the corresponding divergence of their
views, supplied a partial substitute for this popular self-repression.
It was open to any magistrate to introduce a citizen to the _contio_,
and give him a right to speak (_producere in contionem_, _dare
contionem_);[661] it was equally open to a colleague or superior to
veto this permission;[662] but custom must have made such a use of the
_intercessio_ very infrequent. The right of granting a _contio_ gave a
limited power of debate on legislative matters to distinguished private
individuals; but this was not its only use. It was the sole means by
which political leaders, who might happen to be in a private station—as
Pompeius after his return from the East, or Cicero after his recall from
exile—could express their views;[663] it was also a convenient mode in
which a magistrate might justify a line of conduct. We find a foreign
king and a public informer thus produced to influence the popular mind.
The _jus contionis dandae_ meant an increase in magisterial power, and
was no true concession to democracy; the demagogue in opposition, who was
not a magistrate or useful to a magistrate, had no opportunity of making
his voice heard in Rome.
The right of eliciting binding resolutions from the people when assembled
in their _comitia_ (_jus cum populo agendi_) always remained an inherent
attribute of the _imperium_; as such it belonged, under ordinary
circumstances, to the consul and praetor; under exceptional conditions,
to the dictator, interrex, and consular tribunes. It was also possessed
by one at least of the occasional delegates of the highest magistrates,
the master of the horse.[664] By these magistrates the _comitia_ might
be assembled in any form—by curies, by centuries, or by tribes. None of
the lower magistrates possessed in their own right the power to summon
and preside over the assembly; but the extension of the _provocatio_
and the consequent growth of popular jurisdiction rendered it necessary
that the lower magistrates with judicial powers should meet the people.
Thus the curule aediles defended their sentences before the _comitia
tributa_;[665] the delegates of the consular criminal jurisdiction, the
_quaestores parricidii_, and _duumviri perduellionis_ brought their
judgments before the _comitia_ of the centuries.[666] No plebeian
magistrate had the _jus agendi cum populo_; hence when the tribune,
in the exercise of his jurisdiction, wished to obey the command of
the Twelve Tables, which confined the hearing of capital cases to the
_comitia_ of the centuries, he had to ask a patrician magistrate—in
this case the praetor—to call a meeting for him by a given day (_diem a
praetore petere_).[667] When the praetor had named a day (_diem dixit_)
the tribune then appeared in the assembly as the accuser.[668]
The right of eliciting formal resolutions from the Plebs (_jus cum plebe
agendi_) belonged exclusively to the plebeian magistrates. The tribunes
alone had the presidency of the _concilium_, but here again the growth
of popular jurisdiction rendered it necessary that the plebeian aediles
should defend their sentences before the Plebs.[669]
(iii.) _Powers exercised in connexion with the Senate._—The right of
bringing matters before the Senate (_jus cum patribus agendi, consulendi
senatus, referendi ad senatum_) is one that runs parallel to the right
of transacting business with the Populus, and, as such, it is attributed
by Cicero[670] to the same magistrates—to the consuls and praetors, the
dictator, magister equitum, and interrex. It of necessity attached to the
consular tribunes of early times, and was one of the attributes of the
_praefectus urbi_.[671]
This right necessarily did not attach originally to the tribunes of the
Plebs, for they were first the outcome of a revolution, and then for
centuries the presidents of a corporation independent of the people.
But, after the _lex Hortensia_ had made the _concilium plebis_ one of
the legislative organs of the community, it would have been dangerous to
senatorial government to deny the president of this assembly the right of
consulting the Senate.[672] The admission of the tribunes into the circle
of the magistrates with the _jus consulendi_ was one of the conditions of
the Senate’s permanent control over initiative in legislation.
(iv.) _General powers: the auspicia and the coercitio._—We have now to
consider certain magisterial powers which cannot be regarded as forming
a separate department, since they are coextensive with the whole sphere
of official authority. The first that we shall treat, the taking of the
auspices, was as much a duty as a right. The observance of the _auspicia
publica_ is not merely an act that the magistrate may perform, but
one that he must perform if his powers are to be duly exercised. The
_imperium_ and the _auspicia_ are indissolubly connected;[673] they are
the divine and human side of the same power, and every important act of
human activity should be prefaced by an appeal for divine assistance.
We have already explained that the only auspices which are properly
connected with the magistracy were those known as _impetrativa_, and
that the looking for these—the gift of _spectio_—was always a peculiar
attribute of the patrician magistracy,[674] and was, therefore, not
possessed by the tribunes and aediles of the Plebs. With respect to the
other category of auspices—the _oblativa_—not only are all magistrates on
a level with one another, but they are all below the level of the meanest
citizen. The citizen, if he is a devout man, may suspend the business
he has in hand, if an evil sign appears. The magistrate is bound to do
so, if the sign is by common consent evil, or has been pronounced such
by the college of pontiffs or by the Sibylline books. Roman theology
recognised five categories of auspices; four of these belong to the class
_impetrativa_, one to the class _oblativa_.[675] The latter, as being
the simpler and the one common to all the magistrates, may be considered
first.
(1) _Dirae._—These were a heterogeneous collection of signs of ill omen.
Anything that broke the silence (_silentium_)[676] when the auspices
were being taken was of this character, such as the fall of anything
in a temple (_caducum auspicium_),[677] or a sudden noise, such as the
squeak of a mouse.[678] Such too was any sudden event that seemed to warn
back from a course once taken—the flight of ravens towards the walker
or round his head, and the stumbling of his foot on the threshold;[679]
the struggle of birds in the air ending in the defeat of those that had
flown from the direction of the general’s camp;[680] the seizing of the
boundary stones of a newly laid-out city by wolves,[681] and countless
others. A peculiarly dreadful omen was a fit of epilepsy, called, from
its power of suspending the assemblies, _morbus comitialis_. Such signs,
to be effective hindrances, must have an obvious connexion in time and
place with the act they impede, and must, besides, be noticed by the
agent. Hence a flash of lightning was the most effective of _auspicia
oblativa_. Less potent signs could be ignored by veiling the senses. The
augur, who is asked by the officiating magistrate if there is silence,
does not look round him, but straightway answers “yes”;[682] in sacrifice
flutes are blown to drown all other sounds,[683] and the general bent
on fighting takes the precaution of travelling in a closed litter.[684]
If another person forced the omen on the magistrate’s notice, he was
bound to attend to it. This announcement (_nuntiatio_ or _obnuntiatio_)
we shall speak of elsewhere; it belongs to the history of the conflict
between the authorities of the different magistrates.
The four other classes of omens belong to the category of _auspicia
impetrativa_. These were—
(2) Signs from the flight of birds (_signa ex avibus_), the oldest form
of augural discipline, as the very words _augures_ and _auspicium_
prove, and one that in the early Republic was used in all solemn acts
of state, such as the summons of the _comitia_ or the appointment of a
dictator.[685]
(3) Closely akin to this was the augury from the motions and sounds of
four-footed beasts (_signa ex quadrupedibus_); but by the close of the
Republic these forms of divination, which required study and research,
had given place to the two remaining classes, which were more easily
interpreted, or more readily manipulated for political purposes. These
were the _coelestia auspicia_ and the _auspicia ex tripudiis_.[686]
(4) Chief of the heavenly signs (_celestia auspicia_), and the surest
expression of Jupiter’s will, were thunder and lightning. Thunder seems
sometimes to have been regarded as a wholly evil omen;[687] but the
course taken by the lightning determined its significance—if on the
watcher’s left, it was lucky; if on the right, unlucky.[688]
(5) The _auspicia ex tripudiis_ were signs given by the feeding of tame
birds (_aves internuntii Jovis_)—generally domestic fowls. If, while they
ate, something fell from their mouths (_tripudium solistimum_), still
more if the falling object made a ringing noise (_sonivium_), the sign
was taken as an assent of the gods to the business in hand. This mode
of augury was convenient for two reasons. It was always available; the
birds could be taken about in cages under the custody of their keepers
and interpreters of their acts, the _pullarii_. Hence it was the mode of
augury specially favoured in the camp, and the sacred chickens were the
invariable attendants of a Roman army. Again, the favourable sign might
be so easily gained. The irate Roman admiral, who threw his chickens that
would not eat into the sea, lacked the patience to wring the wished-for
omen from them by protracted hunger, or by feeding them with porridge
which they could not swallow with sufficient rapidity.[689]
The auspices were at first an accompaniment of the _imperium_; later,
when they became an attribute of the whole patrician magistracy, their
importance varied with the _potestas_ of the magistrate. Officials
with _imperium_ were said to possess _maxima auspicia_, and the
pro-magistrates were naturally included in this list, for the auspices
were as necessary in war as in peace; those of the censors, on account
of the importance of this office, were reckoned _maxima_, although
the occasions on which they were taken were so unique that they
were not brought into the same category as those of the consuls and
praetors; those of the lower magistrates, aediles and quaestors, were
called _minora_.[690] This was little more than a formal difference,
had reference merely to the importance of the respective spheres of
operation, for which observations were made, and did not determine the
kinds of auspices that might be taken by each magistrate.
The occasions of the magistrate’s auspication embraced every public act
of any importance. In three cases above all was it regarded as essential;
these were the nomination of a magistrate, the holding of the _comitia_,
and the departure of a general for war. The chief rule of observance was
that the auspices must be taken on the same day and in the same place
in which the act was to be performed. The fact that the Roman civil day
(_dies civilis_) began at midnight[691] was convenient for procuring the
requisite _silentium_; and sometimes, to prevent any flaw (_vitium_),
the act itself was performed before daybreak. Thus the consul, when he
nominates a dictator, “rises in the stillness of the night”[692] to do
so. The ceremonial for all public auspication[693] was as follows. A
sacred enclosure (_templum_) was marked out on the required spot—within
or without the _pomerium_, according to the purpose in view—within
which the magistrate pitched his tent (_tabernaculum capere_),[694]
which had one side open for observation. After midnight he rose, and,
seated on the floor, performed the rite. Its validity depended on his
personal observation alone; but he might invite skilled assistants to
his aid.[695] The consequence of inability to get a favourable omen was
necessarily the non-performance of the contemplated act; the only course
open was to wait for another day, and to seek the auspices over again
(_repetere auspicia_).[696] If the act had been performed in spite of ill
omens, or if subsequent reflection showed a flaw in the ceremonial, the
act was said to be subject to a _vitium_ which rendered it invalid; the
law passed did not hold good, and the magistrate thus faultily elected
(_vitio creatus_) had to resign his functions.[697] In the case of the
election of the consuls being thus vitiated the consequences might be
serious; for if the flaw was discovered after their entrance on office,
a renewal of the auspices (_renovatio auspiciorum_)[698] could only be
effected through an _interregnum_. It was in this connexion that the
power of the augurs came into play, for they were the interpreters of
the heaven-sent signs. It was no wonder that membership of the augural
college was the highest ambition of the Roman statesman, when its decree
could upset a law, stave off a capital charge, or force a consul to
abdicate. It is true that the augurs could give their advice only on the
request of a magistrate or of the Senate; but, as a measure or election
not favoured by the government would readily be challenged in this way,
the decision as to the future of the state often rested wholly with the
college of augurs. Their power of interpretation extended to the far more
frequent _auspicia oblativa_, and in reporting these even the initiative
might, as we shall see, be taken by an augur.
Since the _auspicia publica_ were personal signs vouchsafed to
individuals, a collision between the auspices of colleagues engaged in
the same business was not impossible. What the result of such a collision
was in the case of magistrates engaged _domi_ is unknown.[699] In the
field the effective auspices were in the hands of the consul whose
turn for command had come,[700] or, in case of joint command, in those
of the higher magistrate; thus the auspices of the consul extinguished
those of the praetor.[701] In the later Republic the difficulty scarcely
existed, as joint command of two magistrates with _imperium_ became very
infrequent, and the proconsul or propraetor took the auspices alone.
The auspices were the mode in which the god’s will was revealed to the
magistrate. The other universal power—the _coercitio_—was the mode in
which the magistrate’s will was forced on man. It was the method in which
he compelled obedience to his commands, or secured the performance of
state obligations which it was his duty to enforce. It was, therefore,
in touch with criminal jurisdiction, but differed from it in two ways.
Firstly, _coercitio_ was not directed to the enforcement of the permanent
obligations of man to his fellow man, which is the object of the criminal
law, but rather to the repression of exceptional acts directed against
the state as a whole; and secondly, the means of _coercitio_ actually
available could be employed by the magistrate on his own responsibility,
while the power of jurisdiction he shared with the people. This second
difference, however, was unknown to constitutional theory. The magistrate
might avail himself of any means of coercion against a harmful or
disobedient citizen—he might employ fines, bonds, and scourging;[702]
but the fine, beyond a certain limit, and the scourging gave rise to the
_provocatio_; in this case magisterial coercion led on to jurisdiction.
The objects of magisterial _coercitio_ were by no means always private
citizens. It could be directed against senators and _judices_, and could
be exercised by any superior over any inferior magistrate, to compel his
respect or to force him to a performance of his duties.
The severest mode of coercion—the infliction of the death penalty—was,
as we saw, originally inherent in the _imperium_, but was rendered
impossible by two Valerian laws of 509 and 449 B.C.[703] A third _lex
Valeria_ of 300 B.C. prohibited the execution or scourging of one who
had appealed; but the weakness of former enactments was repeated in this
law; it declared the magistrate’s contravention of it to be _improbe
factum_.[704] An effective sanction seems first to have been supplied by
one of the three Porcian laws;[705] certainly at the end of the Republic
a violation of the _provocatio_ entailed a capital penalty on the
magistrate.
With respect to the capital jurisdiction of the tribunes, we have
seen how their tacit recognition of the appeal gave rise to this
jurisdiction.[706] But in theory the coercion of the tribune, when
used in defence of the sanctity of his own person, was not subject to
appeal.[707] Here the old religious penalties remained in force, and a
period as late as the year 131 B.C. witnessed the spectacle of a tribune
dragging a censor, who had degraded him, to the Tarpeian rock with intent
to hurl him down—a fate from which he was saved only by the veto of the
tribune’s colleagues.[708]
Scourging, which is found in the early Republic as a punishment employed
in the military levy,[709] was practically abolished as a mode of
_coercitio_ by the third _lex Valeria_ of 300 B.C.[710] and the _leges
Porciae_, which submitted the threat of such punishment to appeal, the
latter laws imposing a heavy penalty on the magistrate who inflicted it.
Imprisonment (_abductio in carcerem, in vincula_), although not
recognised as a penalty in Roman law, plays a double part in the
_coercitio_. It was one of the modes by which the magistrates defended
their dignity and secured obedience, not merely from private citizens,
but from lower magistrates and senators; and it was adopted as a
precautionary measure to secure the appearance on trial of one whom
they accused. The use of this severe measure against magistrates by
any power but the tribunate is rare;[711] but it plays a great part
in the tribunician annals, and the temporary imprisonment of a consul
became a familiar feature of party strife during the closing years of
the Republic.[712] It was a summary method of silencing the opposition
of a too zealous optimate, and the veto of the tribune’s colleague was
the only means of releasing the head of the state.[713] Preventive
imprisonment for the purpose of securing the appearance of an accused at
trial was rare at Rome. The custom of giving sureties or bail (_vades,
vadimonium_) was early recognised;[714] but it rested entirely with the
magistrate whether he should accept such a security.[715]
The imposition of a fine (_multa_) was the most common mode of enforcing
obedience, and was possessed by all the magistrates with the possible
exception of the quaestor.[716] As early as 454 B.C. the power of fining
(_jus multae dictionis_), which had hitherto belonged to the consuls
alone, was conferred “on all magistrates”—including, therefore, the
tribunes and plebeian aediles—by a _lex Aternia Tarpeia_ passed in the
assembly of the centuries.[717] The _lex Menenia Sextia_ (452 B.C.)
fixed the highest fine that could be imposed by a magistrate on his own
authority (_multa suprema_) at two sheep or thirty oxen[718]—the former
the limit for the poor man, the latter for the rich. After coined money,
or at least metal by weight, had come into vogue during the decemviral
period, a _lex Julia Papiria_ (_de multarum aestimatione_) of 430
B.C. fixed 3000 libral asses as the extreme amount that a magistrate
might impose.[719] The infliction of a fine larger than this _multa
suprema_ subjected the official who pronounced it to an appeal to the
people.[720] The _provocatio_ against _multae_ went before the _comitia_
or the _concilium_ of the tribes according as the fines were imposed
by patrician or plebeian magistrates, and we shall see how this appeal
brought the aediles into contact with these two assemblies.[721] Certain
laws continued to fix an absolute limit even to fines submitted to the
judgment of the people. They were generally limited to less than half of
the property of the accused.[722]
But the tribunes’ power of imposing money penalties extended far
beyond the limits of that of the other magistrates. The power of
confiscating all the goods of an individual by consecrating them to a god
(_consecratio bonorum_), a relic, like the execution from the Tarpeian
rock, of the old religious jurisdiction and as little subject to the
appeal, had been occasionally put in force by them in extreme cases,[723]
and like other vanished relics of antiquity was revived during the party
struggles of the close of the Republic.
Another mode of coercion, specially used against magistrates and the
official class, was the seizing of articles of their property as pledges
(_pignoris capio_).[724] It was possessed by all the magistrates who
had the _coercitio_, and was employed rather as a punishment than as a
security for good behaviour. Hence the pledges were often destroyed,[725]
and we find a consul seeking satisfaction for his outraged dignity in
breaking up the curule chair of the praetor who would not rise to greet
him as he passed by.[726]
Although, after the _provocatio_ had limited the right of inflicting
death and scourging, the means of _coercitio_ were much the same for
every magistrate, a formal difference in its mode of exercise existed
between the higher and lower magistrates, and between the magistrates
with _imperium_ and the tribunes. The consuls and other magistrates
with _imperium_ had the right of summoning delinquents before their
tribunal (_vocatio_) as well as of summarily arresting them in person
(_prensio_).[727] The quaestors and lower officials had neither of these
rights; and the theory of the tribune’s being an exceptional magistrate
who should render assistance in person[728] was so far preserved that
he had only the right of arrest.[729] We sometimes meet with tribunes
who carried out their mandates with their own hands, but their presence
alone was sufficient for the _prensio_ to be effective; in early times
they used their aediles for the act of violence, in later times their
_viatores_.[730] By the close of the Republic the distinction was
obliterated, and the tribunes, without formal right, summoned individuals
before them.[731]
A mere enumeration of the powers of the Roman magistracy throws little
light on the working of the civic constitution. The question which we
shall now consider—the conflict of powers—is from this point of view more
instructive if only because it shows why Rome could not be governed by
her magistrates.
The first ground of conflict was religious and arose from a use, or
rather misuse, of the auspices, which we have hitherto refrained from
discussing because it is only indirectly connected with the _jus
auspiciorum_. It arose from a power possessed not by the magistrate
only but by every Roman citizen. It was the duty of any one who was
the witness of an evil omen (e.g. one of the _dirae_ belonging to the
class of _auspicia oblativa_) to give notice of this occurrence to any
magistrate about to embark on an important undertaking. The most frequent
occasion on which such _obnuntiatio_[732] was employed was the holding of
the _comitia_. The respect paid to this announcement by the magistrate
guiding the proceedings naturally depended on the position which the
announcer held in the state. The notice of a private and unknown citizen
might be received with suspicion; that given by an augur, who actually
waited by the _comitia_ to watch for such signs,[733] or by another
magistrate, would usually be respected. But, while the _obnuntiatio_ of
the augur, the plebeian magistrate, and the private citizen depended
on chance, that of the patrician magistrate could be the result of
design. Observation of the heavens was, as we saw, the favourite form of
_spectio_ of the urban magistrate, and the belief was strongly held that,
if he asked a sign, the sign would come. The lightning which appeared
might be a lucky or unlucky omen for the magistrate himself; but, whether
it appeared on the left or right, it was, as an _auspicium oblativum_,
unfavourable to the holding of the _comitia_.[734] A patrician magistrate
had, therefore, only to give out that “he would observe the heavens” (_se
servaturum de coelo_) to suspend all meetings of the _comitia_ and of
the _concilium_.[735] Hence the edict by which the consuls summoned the
_comitia centuriata_ contained the words “ne quis magistratus minor de
coelo servasse velit.”[736] The patrician _obnuntiatio_ was a powerful
weapon in politics, the counterpoise to the plebeian _intercessio_.
The uncertainty respecting the necessity for observing most of these
religious messages called for legislation; and about the year 153 B.C.
two laws, the _lex Aelia_ and the _lex Fufia_, were passed which,
amongst other comitial regulations,[737] professed to give rules for
the _obnuntiatio_.[738] The import of these rules is quite uncertain,
but they seem to have recognised the right of the magistrate to watch
the skies to the detriment of public business, and to have attempted
to define the value of the announcement made by plebeian magistrates,
augurs, and perhaps even by private individuals. The scandalous use made
of the auspices by the consul Bibulus in the year 59 B.C. was a shock to
the national conscience, and the ineffectiveness of his procedure gave
courage to the enemy. In the next year the tribune P. Clodius abrogated
at least that portion of the law which bolstered up the misuse of the
_spectio_; the _obnuntiatio_ was frequently employed as a political
engine after this date, but its authors are tribunes and augurs,[739]
which shows that it was in these cases based on the professed chance
observation of _auspicia oblativa_.
The other modes of conflict were based on powers inherent in the
magistracy; these were the right of prohibition possessed by the higher
magistrates over the lower, and the right of veto possessed by superiors
over inferiors or by colleagues with equal powers over one another.
The right of prohibition was an outcome of _major potestas_ and was
possessed by all higher over all lower magistrates. The tribune had it
against all officials except the dictator; the consul against the praetor
and against all magistrates with the exception of the dictator and the
tribune. The magistrate’s right to forbid differed from the magistrate’s
intercession in that the latter was levelled against a completed act and
_rendered it invalid_; the former was merely a prohibition based on some
power which the superior magistrate had in reserve; this power was the
coercitio, the use of which was threatened if the command was disobeyed;
hence, if the _coercitio_ was not effectively put forward, _the act which
contravened the command was valid_.[740]
The scope of the exercise of this power was conditioned by circumstances;
most frequently the prohibition was directed against certain specific
acts. The intercourse of a lower magistrate with the people, which had
not the approval of his superior, might be hampered by this means;
thus the higher magistrate had the right _avocare contionem_ from the
lower.[741] The tribune possessed it in a supreme degree, and it was a
grave infringement of his majesty when any other official called away
a portion of the people whom he was addressing.[742] The consul might
hinder the praetor from introducing a _rogatio_,[743] and to guard
against the possibility of the _obnuntiatio_ when he himself was holding
the _comitia_ consistently forbade him to consult the heavens on that
day.[744] Other more glaring misuses of magisterial power were hindered
in this way, such as the attempt to triumph without the consent of
Senate or people,[745] or the effort to prolong a magistracy beyond its
appointed tenure.[746]
But the prohibition might, under special circumstances, be far more
sweeping than this; it might extend to the suspension of all the
functions of a magistrate, or even to the enforced cessation of almost
all the active life of the state.
A higher magistrate, although he could not take away office from an
inferior or even force him to abdicate, could visit a misuse of his
functions by prohibiting all further action on his part. This power,
practically amounting to a suspension from office, is found twice in
our annals directed by the consul against the praetor—in one case for a
breach of respect, in the other for revolutionary proceedings.[747] Nor
was the power confined to Rome. The provincial governor had a similar
capacity for dismissing officials, who disgraced his administration, from
the country under his control.[748]
A far more comprehensive act was the edict of a magistrate with _major
potestas_ that all lower magistrates should suspend the exercise of
their functions. Such a cessation of public business was known as
_justitium_, a name derived from the suspension of that department
of business which was the most constant sign of the active life of
the state, the courts of law (_juris statio_). The decree was usually
pronounced by the highest magistrate present in Rome who possessed the
_imperium_, by the dictator,[749] or by the consuls[750]; and, as a
rule, the _justitium_ was proposed on a vote of the Senate[751] and to
meet certain definite contingencies. The most usual circumstances which
called for it were a sudden war, or a rising within the confines of Italy
and its neighbourhood (_tumultus_),[752] or a public mourning following
on a national disaster, or the death of a distinguished man.[753] The
cessation of the _justitium_ (_justitium remittere_[754]) was pronounced
by a decree of the magistrate who had enjoined it.
Although such a prohibitive order suspended the whole administration
of justice both civil and criminal, was accompanied by the closing of
the _aerarium_,[755] and even by the cessation of the sittings of the
Senate, it necessarily did not interrupt all the business of the state,
for it might be declared for the purpose of directing exclusive attention
to some special sphere of administration. Thus in time of danger the
military levy went on,[756] and during the social war, while all other
judicial business was suspended, the Varian commission still sat to
perform its vindictive work on the friends of the allies.[757]
Such was the constitutional employment of this exceptional power. But its
value as a political weapon was too obvious for it to fail to be part of
the armoury of the tribunes. We have seen the use to which it was put
by the tribune Licinius;[758] and his example was followed in the last
century of the Republic by his great successor in agrarian agitation, Ti.
Gracchus. In 133 he published an edict “prohibiting all other magistrates
from transacting business until the voting on his law was finished; he
put his own seals on the temple of Saturn, that the quaestors might not
draw money out or pay money in; he announced a fine that he would inflict
on praetors who ventured to disobey, so that each in terror abandoned the
administration which had been confided to him.”[759] The higher patrician
magistrates, the consul and praetor, could employ no such direct weapon.
They could, however, indirectly check the passing of a _plebiscitum_
by assigning to a comitial day one of those movable feasts, the date
of which was fixed by their authority,[760] and thus making it a _dies
fastus_.
_Intercessio_, though sometimes employed to describe the power of
prohibition which we have just discussed,[761] is more properly applied
to the power possessed, not only by higher magistrates, but by those
of equal authority, of vetoing acts already performed by magistrates
of equal or lower authority. It was an outcome, therefore, not only of
_major_ but of _par potestas_, and its invariable consequence was the
invalidity of the act against which it was levelled. The intercession
accompanied the _par potestas_ of the consuls; with the creation of lower
magistrates the conception of _major potestas_ as giving this power
arose, and the culminating point in the history of the intercession was
the creation of the tribunate. It was the great safeguard against illegal
or inequitable acts performed by magistrates, who were irresponsible
during their year of office, and the tribune’s _major potestas_ over
every magistrate made him the guardian of the interests, originally of
the Plebs and later of the whole community.
A veto to be valuable should imply some knowledge of the business vetoed;
and thus we are not surprised to find that, except in the case of the
tribune, the _intercessio_ was generally confined within the limits
of colleagueship. Thus the dictator possessed it against the consul,
the consul against the praetor; although it is not improbable that the
consul could veto the acts of the aedile and quaestor who were not his
colleagues.[762]
The tribune, outside the bounds of his own college, could employ
the intercession against all the patrician magistrates except the
dictator—against the consul, praetor, aedile, and quaestor. The growth
of the Roman constitution, however, created magistrates between whom no
relation which justified the veto could be imagined to exist; none, for
instance, could be established between the aedile and quaestor or between
the consul and censor, and accordingly these magistrates had no power of
impeding one another’s actions.
Three general limitations existed, which alone made this strange power
a practical working principle of the constitution. The first, which
was necessary to prevent utter confusion, was the finality of the
intercession. The veto could not be vetoed, and the act which had been
declared void could not be again made valid by the exercise of this
power. A second was its purely _civil_ character; in the field divided
command was not tolerated, and the intercession, therefore, did not
exist. A third was that the veto could only be directed against what was
clearly the act of a magistrate. We shall find instances of this rule in
the special applications of the intercession; an important consequence of
it was that neither the verdict of a _judex_ in civil cases, nor, after
the growth of the standing criminal courts, of the _judices_ in these
_quaestiones_ could be quashed by a magistrate.
The intercession may conveniently be considered from the point of view
of three spheres of magisterial power against which it was directed—the
decree (_edictum_[763]), the _rogatio_, and the _senatus consultum_.
(i.) The intercession might be directed against decrees of any
kind—against those issued in the course of civil jurisdiction by the
praetor, in the course of criminal jurisdiction by the consul, aedile,
or quaestor, or in the exercise of other departments of administration
such as the military levy. Intercession in all these cases rested on
_appellatio_, the request for help (_auxilium_) made by the individual
who felt himself injured by the decree. The appeal had to be made
personally to the magistrate and the _intercessio_ exercised personally
by him. Thus we find tribunes tracking the footsteps of consuls to offer
help on the occasion of an expected levy,[764] and a praetor taking up
his position close to the chair of his colleague, waiting for appeals
from his decisions.[765] In civil jurisdiction the _intercessio_ might
be employed at any stage of the proceedings before the magistrate
(_in jure_); the appeal was usually from one of the city praetors to
another, although they might possess different judicial departments
(_provinciae_).[766] The general principle was to give the mutual
right of veto to magistrates possessing somewhat similar authority and
knowledge. But this rule did not apply to the tribune. His interference
was directed against both civil[767] and criminal jurisdiction, and
against the exercise of administrative power, especially that of the
consul. In such cases as the consular conscription or the quaestor’s
collection of the taxes,[768] it is not the general decree that is
opposed by the tribune, but its application to individual cases by
the _coercitio_ of the magistrate. An appeal of this kind made to the
tribunes sometimes became the subject of a quasi-judicial process,
especially if it had been made to the whole college.[769] A picture of
this process, which has been preserved, shows the appeal made from a
consular levy; the appellants and the magistrate appealed against appear
before the benches of the tribunes (_ad subsellia tribunorum_);[770] the
_collegium_ weighs the arguments and then gives its verdict, sometimes
with the grounds of its decision.[771] It is possible that the college
may in these cases have agreed to give the finding by a majority of
votes, although, if one tribune persevered in the veto, he might
overrule the assent of all his colleagues.
(ii.) The intercession against a _rogatio_, as contrasted with the power
of forbidding a magistrate to question the people,[772] became at a very
early period of the Republic the exclusive right of the tribune. It might
be pronounced in any of the assemblies and against any kind of measure
brought before these assemblies—against elections,[773] against _leges_,
including formal acts such as the _lex curiata_,[774] and against
_plebiscita_.[775] Custom had caused the intercession against a _rogatio_
to be guided by certain formalities; it seems to have been irregular
to pronounce the veto before the day of voting had arrived,[776] and
indeed before the speeches for and against the law had been made.[777]
In the case of laws, the correct time for interposing the veto seems to
have been the moment when the introductory acts of the magistrate were
over and before the voting had commenced;[778] in elections we find the
tribune interceding after the first tribe had voted.[779]
(iii.) The intercession against a decree of the Senate (_senatus
consultum_) was in theory a veto of the magistrate’s decree on which he
had taken advice. It resided originally with the _par majorve potestas_.
It was exercised by the tribune against the tribune,[780] consul,[781]
and praetor,[782] and throughout the greater part of the history of the
Republic by the consul against the consul.[783] The tribune possessed
the right of vetoing senatorial decrees at the time when he had not only
no power of summoning the Senate, but not even a seat in the House. In
early days he placed his bench before the open doors for the purpose
of examining decrees which were passed out to him and signifying his
approval or dissent.[784] But, when in course of time the tribune
gained the right of taking part in debate and of summoning the Senate,
his intercession came to replace that of the consuls; and although the
consular veto of a _senatus consultum_ continued to be employed long
after that against a _rogatio_ had ceased to be recognised, it is not
found after the time of Sulla (81 B.C.).[785] Here again the tendency was
to make the tribunate the sole prohibitive power, and the tribune the
sole guardian of the law.
The exercise of the veto in the Senate was simplified by the magistrate,
who intended to impede the resolution, signifying his intention
beforehand. This is the meaning of the declaration often made by a
magistrate in the Senate, e.g. by the consul, that “he would not
allow any business to proceed” (_non passurum quicquam agi_).[786]
This declaration saved the time of the House, since the veto was not
pronounced during the debate, but usually after the voting on the
measure[787] or while the voting was in progress.[788] Hence the veto
did not interrupt the procedure, nor even the threat of the veto suspend
the particular business. The motion on which the veto had been put was,
if approved by a majority of the Senate, drawn up as a resolution of the
House (_senatus auctoritas_). It had lost its binding legal force as a
decree, but it remained as an opinion for the guidance of any magistrate
who cared to respect it. Sometimes the Senate requested the magistrate
to suspend the intercession (_intercessionem remittere_),[789] and
sometimes attached to a particular decree a general vote of censure on
any magistrate who should veto it.[790] The intercession on certain kinds
of _senatus consulta_ might be forbidden by law. Thus the _lex Sempronia_
(_de provinciis consularibus_) of 123 B.C. forbade the employment of the
veto on the senatorial assignment of the consular provinces.[791]
It is needless to say that, with this conflict of authority, there was no
true theory of responsibility in the Roman magistracy; for that implies
a unity of power. But a description of what may be called the second
element of responsibility, the capacity for being punished, or for being
forced to give compensation, for a misuse of functions, will form a
fitting complement to the history of the intercession.
The civil and criminal responsibility of magistrates was enforced by the
same courts and the same processes by which ordinary citizens were tried.
The only privilege which they enjoyed was that, as a rule, they could not
be tried for a criminal offence during their year of office, and that
none but the magistrates without the _vocatio_ and _prensio_ (i.e. the
quaestors and aediles) could be summoned into the praetor’s court.[792]
There was no special category of political offences which the magistrate
alone could commit, although it is true that he was more specially liable
than ordinary citizens to be tried for certain crimes; his greater
capacity for doing harm to the state by cowardice or ignorance would
expose him more than the ordinary citizen to a charge of _perduellio_;
but the _judicium populi_ tried him as a citizen, not as a magistrate,
and the general rule that a magistrate was exempt from prosecution
during his year of office made him, in fact, a _privatus_ when he stood
his trial. The commission of delicts, which were not cognisable by
the popular courts, would have brought him before the ordinary civil
tribunals. If he robbed a citizen, it was _furtum_; if he assaulted him
in a manner not justified by his power of _coercitio_, it was _injuria_.
There was indeed one delict which only a magistrate or an official could
commit—appropriation of the state funds. In very early times this may
have been brought under the expansive conception of _perduellio_, and
punished criminally.[793] A few early laws, such as the fifth century
_lex de ambitu_, were directed exclusively against magistrates or
candidates for a magistracy; these laws doubtless specified the penalty
to be imposed,[794] but their interpretation was left to the ordinary
organs of criminal justice, the _comitia_.
But, as the foreign activity of Rome increased, and greater individual
responsibility devolved on commanders distant from the centre of affairs
and severed from all collegiate control, the possibilities of magisterial
wrong-doing became too great to allow of the continuance of this simple
system. The original theory was not, indeed, abandoned; the magistrate
was tried before the same civil and criminal courts as the ordinary
citizen; but the first step in the differentiation of ordinary from
political jurisdiction was made when the initiatory steps in criminal
proceedings against the magistrate were made the duty of a special
office. It was the tribunes who were now used by the state—that is, by
the Senate—as public prosecutors in criminal matters. It was a rough
kind of justice which they meted out; the various charges which they
brought could hardly be described by specific names, and in few cases
was a penalty fixed by law. They formulated a punishment and brought it
before the people, appearing as accusers either before the tribes or,
when the penalty they proposed was a capital one, before the centuries,
and the people, by a special legislative act, accepted or rejected their
proposal.[795] Their superior _potestas_ and, when the injury was done
to their person, their _sacrosanctitas_ gave them the legal right to
coerce any magistrate into appealing or to bring him to trial during his
year of office; but so strong was the feeling against this indignity
to the magistracy that the veto of a colleague postponed the decision
until the expiry of the official functions of the delinquent.[796]
This political jurisdiction was not, however, directed solely against
magistrates, but against any individuals who held an official position,
against the staff-officers (_legati_) of a general,[797] against
envoys[798] and senators,[799] and even against the farmers of the
revenue (_publicani_).[800] The usual victims, however, were consuls
and praetors, and the offences charged were mainly such as came under
the conceptions of treason,[801] or were open violations of the rules
governing the magistracy;[802] but sometimes they were wrongs done to
individuals, such as might have come before the civil courts.[803]
The growth of Rome’s provincial territory made the continuance of this
clumsy and casual jurisdiction impossible. The creation of the standing
criminal courts (_quaestiones perpetuae_), with their presidents and
juries, was the reaction of the provinces on Rome. We shall speak
elsewhere of the mixed character of these courts, which were formed of a
fusion of ideas borrowed from the criminal and civil law. The earliest
which were created supplied a readier redress and severer punishments for
the delicts of magistrates than the civil courts could give. Others were
based on the classification of political offences. The great codification
of the criminal law effected by Sulla (81 B.C.) rendered the tribunician
jurisdiction superfluous, although it still reappeared at intervals
during the party struggles of the close of the Republic.
We have now reviewed every important aspect of the magistracy in general;
but before going on to describe the separate functions of the magistrates
in administration, so far as these have not been already anticipated,
it will be convenient to touch slightly on the formal conditions
requisite for holding office at Rome. These conditions often illustrate
the magistrate’s position in the state, and they sometimes create real
limitations on his power.
The qualifications for public office (_jus honorum petendorum_)
were based on the general principle that for patrician magistracies
any citizen was eligible,[804] for plebeian only those of plebeian
birth.[805] But to this general rule there were certain limitations based
partly on the idea of the dignity of office, partly on the view that
experience of a certain kind was necessary for the fulfilment of such
responsible functions.
In the first place, citizenship had not its private-law connotation.
Freedmen may not have been _de jure_ excluded from office;[806] but
the lists of magistrates show that not only were the sons of freedmen
ineligible, but that the magistracy was practically reserved to those who
could boast a free grandfather.[807]
In the second place, certain careers were considered as a necessary
preliminary to, others as a necessary disqualification from, the
magistracy. In a military city like Rome one is not surprised to find
that a certain amount of military service was demanded of one who might
have to lead the armies of the state, and that during the greater
part of the Republic the _capite censi_ were wholly excluded from the
magistracy. The length of service required from the infantry soldier
is unknown; from the _eques equo publico_ it was ten years’ service
“in the camp or the province,”[808] as late as the time of C. Gracchus
(124 B.C.).[809] This military qualification gives us a minimum age of
twenty-eight as being necessary for the holding of the quaestorship.
In the Ciceronian period, on the other hand, the age was thirty,[810]
and the military qualification, although it still partially survived in
municipal law,[811] seems to have been abolished for Rome. Conversely,
the exercise of any trade or profession for which payment was received
was a disqualification for office, as long as the trade or profession
was exercised.[812] This was, to some extent, an outcome of the prejudice
against βαναυσία found amongst all military peoples;[813] but, as offices
at Rome were unpaid, it was also a necessary provision for securing due
attention to the discharge of the duties of the magistracy.
Thirdly, access to the magistracy might be hindered by the past moral
delinquencies of an individual or his criminal condemnation. It is a
mistake to suppose that there was a definite class of _infames_ excluded
from office at Rome. Certain criminal laws made temporary or permanent
exclusion from the magistracy one of their sanctions. Exclusion on
kindred grounds—notorious moral lapses of the candidate, his previous
condemnation in a disgraceful civil suit, the fact that a prosecution
for a crime was at that moment hanging over his head—was entirely
the work of the magistrate who presided over the elections. He acted
entirely on his own discretion, although naturally on the advice of a
_consilium_ of experienced men, in declining to receive the name of such
a candidate.[814] This remarkable power was the outcome of the still
surviving theory that the magistrate nominated his successor, and that
the election by the people was only a complementary act.
Other limitations to the attainment of magistracy were determined by the
previous holding of office. The magistrate who presided over the filling
up of a vacancy in the regular magistracies might not return himself as
elected;[815] and two laws further provided that, if a new office was
established by statute, neither the _rogator_ of the measure nor his
colleagues or relatives should be eligible to the post.[816]
The continuation and accumulation of magistracies were also forbidden
by _plebiscita_ of the year 342 B.C., which enacted that at least ten
years must elapse between the tenures of the same magistracy, and that
two magistracies should not be held together in the same year.[817]
Such legislation was the starting-point for a series of measures known
as _leges annales_, which specified the order in which the various
magistracies must be held (_certus ordo magistratuum_),[818] the age
which qualified for each, the interval which must elapse between the
holding of any two, and that which must intervene between the holding
of the same, magistracies. In the year 180 B.C. the _lex Villia_, a
_plebiscitum_ of a comprehensive character, was passed, which specified
the age at which each magistracy might be held;[819] it appears also
to have fixed the interval which must elapse between the holding of
two patrician magistracies, since from about this period we find the
beginning of the rule, which held good in Cicero’s day, that a biennial
interval must be observed between the patrician offices in the _gradus
honorum_.[820] Finally, Sulla in 81 B.C. re-enacted the rules about the
_certus ordo_ and the interval between the same magistracies by declaring
that the quaestorship must be held before the praetorship, and the
praetorship before the consulate, and that ten years must elapse before
the resumption of the same magistracy.[821]
The validity of election was dependent on the observance of certain
forms, the first of which was concerned with the presiding magistrate.
While the tribune alone could be the president at the election of
plebeian magistrates, the consuls and praetors created the _magistratus
populi_, but, as we have already shown in connexion with the
_interregnum_, none but a consul could preside at the consular and
praetorian elections.
The first act of the candidate was to send in his name (_profiteri_)
to the magistrate destined to preside. This _professio_ had to be made
three weeks (_trinum nundinum, intra legitimos dies_)[822] before the
date of election. A list of the candidates was then prepared for the
people[823] after the magistrate had examined their names and satisfied
himself of the qualifications of the competitors. Up to the middle of the
last century B.C. the candidates need not be in Rome; but after the year
63 B.C. some unknown law enacted that they should make the _professio_
in person,[824] and a similar clause was again inserted in Pompeius’
law _de jure magistratuum_ of 52 B.C.[825] During the interval between
the _professio_ and the election, canvassing, which had commenced long
before the open profession of candidature, became brisker. Legitimate
_ambitio_ almost rose to the dignity of a formal act. The aspirant, in
a dazzlingly whitened robe (_candidatus_), surrounded by a cortège and
accompanied by a slave with a good memory for names (_nomenclator_),
affably saluted all the citizens whom he met, and shook hands warmly
with the rustic voter. Rome’s habit of extending her franchise made the
country vote always of some importance; but after the social war the
canvassing that followed the _professio_ was as nothing compared with
that which had preceded it. The municipal voters, who could not come up
for ordinary legislative business, flocked to Rome for the elections
in the summer; and to secure success all Italy had to be sounded from
the Padus to the Lacinian promontory. Canvassing on this gigantic scale
required time and an elaborate organisation. We find Cicero beginning
to canvass on 17th July 65 B.C. for the consular elections in 64; and
men better circumstanced in birth, wealth, and rank commenced operations
by setting in motion a vast machine, which had as its head some noble
coterie at Rome (_sodalitas_), and as its instruments the election agents
(_divisores_), each of whom took charge of a portion of a tribe. The
means used were not necessarily illegitimate, although the names of the
_divisores_ became associated with bribery,[826] and a series of laws—not
longer, however, than the chain of enactments which Rome usually devoted
to some special theme—strove by ever-increasing penalties to stamp out an
evil which disappeared only with the popular assemblies themselves.
After the people had chosen the new magistrate by their suffrage, a
final duty had to be performed by the president in the shape of the
_renuntiatio_, or formal announcement of the result of the election. That
this was not a purely formal act is shown by the president’s power to
refuse to return a legally, or even morally, unqualified candidate who
had slipped through the previous stages of election.[827]
If we believe that the king during his lifetime nominated his
successor,[828] there must from the first have been an interval between
appointment to and entrance on office. This interval existed throughout
the Republic for most of the annual magistracies; only the dictator,
the censors, the magistrates created as the result of an interregnum
(_ex interregno_), or those elected to fill up a place that had become
vacant (_suffecti_), entered office immediately on their election. For
the ordinary magistrates there was a more or less considerable interval
between election and entrance on office; for the patrician magistracies
it had originally been short, for the elections were one of the last
acts of the consul’s annual reign, and the new consuls and praetors
entered office from the close of the third century on 15th March,[829]
from 153 B.C. on 1st January.[830] But in the closing years of the
Republic—perhaps in consequence of a change introduced by Sulla—the
elections were universally held in the month of July; and this gave a
six-months’ interval between election and entrance on office for the
consuls and praetors, and one of more than four months for the quaestors
and tribunes, who assumed their functions on 5th and 10th December
respectively.[831]
During this interval the magistrate elect was _designatus_, and, though
his _imperium_ or _potestas_ was necessarily dormant, he had a distinct
position in the state and could exercise certain official functions
preparatory to the magistracy, such as issuing edicts, which would be
binding after his entrance on office.[832] Even before the _renuntiatio_
he had taken an oath of fealty to the state[833]—one, however, that could
only have been exacted when the candidate was present at the election.
The entrance on office was signalised by another promise on oath to
respect the laws (_in leges_)—a custom which probably grew out of the
power of the people to bind either present or future magistrates by an
_execratio_ to respect a certain _lex_.[834] Refusal to take it within
the period of five days was followed by loss of office;[835] only the
Flamen Dialis, who might not swear, could claim exemption, and with the
people’s consent take the oath by deputy.[836] During the later Republic
we also find evidences of an oath which closed the tenure of office; the
magistrates, on the expiry of their functions, addressed the people and
swore that, during their period of rule, they had wilfully done nothing
against the interest of the state but striven their utmost to promote its
welfare.[837]
The assumption of the magistracy carried with it the right—and indeed
the duty—to exhibit certain external marks of dignity which distinguished
the masters of the community from their subjects. The lictors and the
fasces were a survival from the monarchy, and were employed as a token
of dignity and for the enforcement of the _coercitio_ by the magistrates
with _imperium_, on a scale, as will be seen when we describe the
different magistracies, proportioned to the strength of the _imperium_.
The other magistrates possessed only the servants—_scribae, praecones,
accensi, viatores, servi publici_—necessary for the carrying out of their
behests.
Like the lictors, the purple robe—the almost universal symbol of
royalty in the ancient world—and the curule chair were inherited by the
Republican magistrate; but the royal robe could be used only in the
triumphal procession, where the other regal _insignia_ were revived,[838]
or for the celebration of festivals.[839] In the garb of peace of the
curule magistrates the purple had become a narrow hem (_praetexta_) round
the toga. The quaestors, who were not included in this list, seem to have
worn no special dress; while the tribunes and plebeian aediles showed,
by their complete lack of magisterial _insignia_, that they were never
regarded as magistrates of the community.
In the dress of war the regal colour also reappears. Once outside
the _pomerium_ the magistrate may don the scarlet military cloak
(_paludamentum_) worn over his armour. The dagger (_pugio_)[840] worn
round his neck or on his waist, and the axes, which can now be enclosed
in the fasces, were added signs of the untrammeled _imperium_.
The _insignia_ were not mere empty signs that bolstered up a power which
won no true respect. If the Senate appeared to the envoy of Pyrrhus to
be an assembly of kings, he was looking at a body the members of which
had for some period of their lives received the homage due to kings. The
reverence for office as a holy trust, which is such a characteristic
feature of Republican forms of government, was heightened in the Roman
mind by its genius for abstraction, which saw in the individual holder
of power not the magistrate but the magistracy, and by its almost
superstitious veneration for the forms of law. It was an obvious thing to
Romans that they must spring from their horse when they met a magistrate
riding,[841] that they must make room for him on the path, that they
must rise from their seat as he passed by, and that they must stand
bareheaded before him in the _contio_ or the _comitia_. The occasional
Roman, to whom these things were not obvious, was soon reminded of his
duties by the _coercitio_ of the magistrate, who had the fullest means of
protecting his own dignity; his life had been made by the law as sacred
as the life of the state itself, for an attempt on the safety of a Roman
magistrate was treason (_perduellio_).
§ 2. _The Individual Magistracies_
After this general review of the magistracy, we may glance at the precise
place in the state administration assigned to the separate magistrates,
so far as the record of their duties has not been already anticipated.
_The Dictator_
The only true mode of creating a dictator (_dicere dictatorem_) was
through nomination by one of the consuls,[842] who, as we have seen, to
avoid unfavourable omens, pronounced his selection between midnight and
morning.[843] The question, which consul was to exercise this power,
was decided either by the possession of the fasces, which belonged only
to the acting consul, or by one of the two favourite modes of settling
questions of collegiate action, agreement (_comparatio_) or the use of
the lot (_sortitio_).[844] But this purely consular function came in
time, like all extraordinary acts of administration, to be usurped by the
Senate. At what period this result was attained we cannot say; for the
annalists have transferred the constitutional observances of the third
century B.C. to the earliest times.[845] Finally, the point was reached
at which the Senate not only suggested the advisability of nomination
but the name of the nominee;[846] opposition to these instructions was
constitutionally possible,[847] but was borne down by the _de facto_
power of the Senate with the tribunate as its instrument. By the close
of the fourth century B.C. custom had further fixed the rule that the
person created should be a past holder of the consulship.[848] The
ancient provision that the dictator could be nominated only on Roman soil
was found impossible of observance, since the consul, when he received
the Senate’s message, was often far distant from the city, and _ager
Romanus_ was, in true Roman fashion, liberally interpreted to include
the whole of Italy.[849] After the nomination of the new magistrate his
_imperium_ was confirmed by a _lex curiata_.[850] The _insignia_ of the
dictator were in one respect greater even than those of the king. As the
consul had inherited the twelve regal lictors, the dictator, in order
that his higher _imperium_ might be more clearly shown, was preceded by
twenty-four;[851] and the axes were seen with the fasces even within
the walls.[852] The dictator appointed to meet an emergency either of
war or revolution[853] bore no special designation which had reference
to this emergency, but was aptly described as created for carrying on
the business of the state (_rei gerundae causa_).[854] But minor needs
of peace might lead to the nomination of a dictator for a special
purpose; we find a dictator appointed for holding elections (_comitiorum
habendorum causa_),[855] on one occasion for making out the list of the
Senate (_legendo senatui_),[856] and others for purely ceremonial or
religious purposes—for the celebration of games (_ludorum faciendorum
causa_)[857] and the ordering of festivals (_feriarum constituendarum
causa_),[858] and for driving the nail (_clavus annalis_) into the
temple of Jupiter (_clavi figendi causa_),[859] an act of natural magic
which was supposed to be a specific against pestilence. These dictators
_imminuto jure_, appointed for a special purpose, were expected to retire
as soon as the function was completed.[860] The six months’ tenure of the
dictator _rei gerundae causa_[861] was never legally exceeded, but it
might be shortened, for it seems to have been necessary for the dictator
to resign when the consul who had nominated him retired from office.[862]
The creation of a dictator did not abolish the other magistracies of the
people; it merely suspended their _independent_ activity. The dictator
was a _collega major_ given to the consuls, who still continued under
his direction to command armies,[863] and even those troops which were
levied by the dictator took the oath of obedience to the consuls as
well.[864] The praetors still sat in the courts, and lesser officials
continued to perform the subordinate functions of government. But it
was felt that under a dictator all magistrates existed on sufferance,
with the exception of those of the Plebs.[865] It is certain that the
presence of a dictator brought no legal diminution to the powers of the
tribune; it is equally certain that constitutional custom dictated that
the _auxilium_ of these city magistrates should not be effective when the
state was under martial law.[866] Collision was necessarily rare since
the duties of the dictator took him far afield.
This extraordinary power had yet some normal limitations. The dictator
never meddled with civil jurisdiction; and he had not the power,
possessed by the consuls while in Rome, of taking money from the
_aerarium_ without a decree of the Senate.[867] The government was
naturally unwilling that a magistrate to all intents and purposes a king
should wage war out of Italy; and there is but one example of a dictator
commanding in the extra-Italian world.[868]