consequence, was subsequently introduced. The dictator was made subject
to the _provocatio_ within the city,[869] probably by the _lex Valeria_
of 300 B.C.[870]—a change which, while not hampering the power of this
magistracy in the field, prevented its being used for ruthlessly crushing
a so-called sedition in Rome. Although we here see the commencement of
the infringement of its civil power, the military authority of the office
persisted for a century longer. It was not until the Hannibalic war that
the two weakening elements of popular election and colleagueship were
introduced into this magistracy. In the year 217 B.C., when, after the
disaster at the Trasimene lake, it was difficult to communicate with the
sole surviving consul, Q. Fabius Maximus was elected dictator,[871]
presumably at the _comitia centuriata_ under the guidance of a praetor.
In the same year the distrust and misplaced confidence of the people
raised M. Minucius, the master of the horse, to an equality of command
with Fabius.[872] Both acts were signs that the office was felt to be
an anachronism, and the next year (216) marks the last instance of the
military dictatorship.[873] The last dictator (_comitiorum habendorum
causa_) was appointed in 202;[874] for the application of the name to
Sulla and Caesar was the transference of the title of a constitutional
office, in the first instance to a constituent authority, in the
second to a monarchy, and in neither case was even the ancient mode of
nomination preserved.[875]
_The Magister Equitum_
Every dictator, no matter for what purpose appointed,[876] nominated as
his delegate a master of the horse,[877] who, unlike other delegates,
possessed the _imperium_, six fasces,[878] and a rank equal to the
praetor.[879] These distinctions justify the assertion that he was a
magistrate,[880] and apparently one of curule rank, even though his
tenure of power was strictly dependent on that of his nominator.[881]
Like a magistrate he asked for a _lex curiata_ for the ratification
of his _imperium_,[882] and he seems to have had power to question the
people and to transact business with the Senate.[883] In these three
respects the office differed from that of the _tribuni celerum_ of the
monarchy. As the dictator was a lesser king, the _magister equitum_ was
a greater lieutenant; but, in spite of the theoretical independence of
his position, his services were entirely at the disposal of the dictator,
who could enforce obedience to his commands, if necessary, by capital
punishment.[884] Although originally employed, as the name signifies, for
the sole leadership of the _equites_ under the higher _imperium_ of the
dictator, and always to some extent preserving his character of a cavalry
general, he could be entrusted by his absent superior with full command
either in the camp or in Rome.[885] The office was a useful one, as it
gave two generals of tried military capacity to Rome in time of danger,
and obviated the disadvantages that might follow from the dictator’s
having to use incompetent consuls or praetors as his subordinates.
This consideration also explains why, in order to secure experienced
men for the post, the custom became fixed of choosing ex-consuls or
ex-praetors.[886]
_The Consuls_
The consuls, after their election at the _comitia centuriata_, could at
least in later times assume the _insignia_ of their rank, and transact
all the ordinary official business within the state without waiting
for the consent of the _curiae_. Their first act was the taking of the
auspices; these were always favourable, for the _haruspex_ who stood
by[887] announced, as a matter of form, that lightning had been seen
upon the left. Armed with this consent they assumed the praetexta,
and, preceded by their lictors, performed the first significant act
of authority. This act was the summons of the Senate,[888] and was
one which showed that they were the magistrates who stood highest
in the Roman executive. For, indeed, throughout Republican history,
the consulship—though in power it often yielded to the tribunate or
dictatorship, and in the reverence it inspired to the censorship—was the
highest titular office in the state.[889] The rank of the consuls is
sufficiently exhibited by the fact that it was chiefly by their names
that the years were dated,[890] and by the ceremonial respect which was
paid to them by the other magistrates.[891]
In considering the functions of the consuls we must distinguish between
two periods of the history of the Republic. The first extends from their
institution to the year 81 B.C.; the second from this year, when the
reforms of Sulla introduced a change in their position which was felt
as long as consuls continued to exist. This change caused no alteration
in their powers, but only in the scope of their activity. During the
first period they are the heads of the whole state, and are found ruling
wherever Roman energy extends; during the second they are practically the
chief magistrates only of the city of Rome and of Italy.
The theory of colleagueship—that each individual member of a college
was vested with the fullest power of action subject to the veto of his
assessor—did not necessitate a united activity of the consuls in every
department of state. They divided their functions, sometimes before
their entry on office,[892] and in early times there are traces of the
fundamental division of competence expressed by the terms _domi_ and
_militiae_, one consul occasionally taking the field at the head of an
army, while the other remained at home to transact the business of civil
administration.[893] This arrangement, which divested colleagueship
of its meaning as a safeguard against the rule of a single man, was,
however, very unusual, and, as a rule, the consuls were present together
in Rome or undertook a joint command abroad. But joint activity in the
city—even after the duties of registration had been given to the censor
and those of civil justice to the praetor—was in some departments almost
impossible. It was obviated by a principle of rotation, which gave the
administration and the fasces for a single month to each consul in
turn,[894] the elder of the two being given the symbol of power first,
and the one who possessed it at the moment being described as _consul
major_.[895] This distinction never wholly vanished; for Caesar, we are
told, revived in his consulship (59 B.C.) an old custom by which the
lictors walked behind the consul who had not the fasces.[896] But long
before Caesar’s time positive co-operation between the consuls in the
city was common. They summoned the Senate together, and many consular
laws bear the names of two rogators. There remained, however, several
important acts which, while they, morally if not legally, demanded the
assent of both consuls, could yet be performed only by one. Such were the
election of magistrates and the nomination of a dictator. In these cases
the question as to which consul should act was often decided by agreement
(_comparatio_) or by lot (_sortitio_).
In all domestic matters, with the exception of civil jurisdiction
and finance, the consuls were the heads of the administration,[897]
and this, in the developed Republic, meant that they were the chief
servants of the Senate. It was the consuls who regularly consulted this
body, who expressed its decrees, as well as commands which they had
a constitutional right to issue on their own authority, in the form
of edicts, and who brought legislative measures, which had received
senatorial approval, before the _comitia_ of the centuries and of the
tribes. It was they, too, who represented the state to foreign kings and
nations and introduced their envoys into the Senate.
Consular jurisdiction was of two kinds, administrative and criminal.
The administrative justice of the Republic was concerned chiefly with
financial matters touching the interests of the community, such as
pecuniary claims made by the state on individuals or by individuals on
the state. The regular discharge of this duty passed to the censors; but
in the gaps between the censorships it reverted to the consuls. We also
find them adjudicating on questions of property between the cities of
Italy.[898] In this matter they doubtless acted on the instructions of
the Senate.
The criminal jurisdiction of the consuls was expressed in three ways.
It was for centuries, as exercised through the quaestors, the regular
capital jurisdiction for ordinary, as opposed to political, crimes;
it was asserted, as part of their _coercitio_, with or without appeal
according to the nature of the sentence imposed;[899] or it might be
jurisdiction without appeal delegated by the people. We shall trace
elsewhere the growth of a custom by which the _comitia_ assigned
jurisdiction on certain crimes to special commissioners. The people, who
in this delegation were acting on the advice of the Senate, generally
left the appointment of the commission to that body, and the Senate
selected either a consul or a praetor.[900] We also find the consul
presiding over a criminal inquiry (_quaestio_) raised by a point of
international law, such as the question whether the repudiation of a
treaty by the people should have as its consequence the surrender of the
general guilty of concluding it.[901]
The unlimited _imperium_ of the consul in the field (_militiae_), which
was asserted when he had crossed the _pomerium_[902] and required
the sanction of the _lex curiata_, was, in the early Republic when
wars were confined to Italy, generally exercised by both the consuls
together. To avoid the inconvenience and danger attending the rule of
two commanders-in-chief of equal power, the principle of rotation was
adopted, each consul having the supreme command for a single day.[903]
But this device was necessary only when military considerations dictated
that all the Roman forces should act together. Frequently the Roman
armies had been simultaneously directed against various points of Italy,
and the custom naturally suggested itself that each consul should command
half of the regular army of four legions, and thus have an independent
sphere of operations (_provincia_).[904] In a defensive war, such as
that against Hannibal, Italy would naturally fall into two consular
provinces;[905] but the practice became even more essential when the
Roman arms extended beyond the peninsula, and in the period of the
acquisition of the empire, from the beginning of the first Punic war
to the close of the struggle with Greece (264-146 B.C.), _Italia_ as
a whole, and some foreign country such as Greece or Macedon, are the
regular _provinciae_ held by the consuls.[906] The arrangements which
were made for the permanent government of provinces, first through
praetors and afterwards through pro-magistrates, tended to arrest their
employment for this purpose; but down to the time of Sulla (81 B.C.) a
consul might at any time be appointed to a transmarine province.[907]
The consuls settled the distribution of _provinciae_ by agreement or
by lot,[908] the _sortitio_ becoming in time the more usual practice.
Occasionally the Senate ventured to suggest that one of the consuls
was better qualified for a special department, and in this case the
inevitable consent of his colleague enabled him to assume it _extra
sortem_.[909] But, as Rome’s activity extended, and the available
magistrates with _imperium_ increased, the important question came to
be, not who should have one of two departments, but which should be the
consular provinces. This power to nominate the provinces (_nominare
provincias_) had, by the close of the Hannibalic war, become the
undisputed prerogative of the Senate,[910] and one of its surest modes
of controlling the consuls. This _de facto_ power was formally recognised
by a law of the tribune C. Gracchus in 123 B.C., although it scarcely
required legal recognition, and the purport of the _lex Sempronia_ was
to weaken the discretionary power of the Senate by enacting that the
consular provinces should be fixed before the election of the consuls
who were to hold them.[911] At this period the consular departments were
almost invariably foreign commands; but, after the close of the social
war and the reforms of Sulla, they were held by their recipients as
proconsuls after their year of office at Rome had expired.
We do not know the exact tenor of the _lex Cornelia de provinciis
ordinandis_. Sulla did nothing to infringe the military _imperium_ of the
consuls; after as before his law it was legal for them to “approach any
province”;[912] but he devised some means of separating home from foreign
commands, which, by crystallising the established custom, restricted the
consuls and praetors to the civil government of Rome and Italy, and sent
them out after their year of office as proconsuls and propraetors to the
provinces. The powers conferred by the military _imperium_[913] were
thenceforth lost, and the consul at the close of the Republic had less
specific functions than any magistrate; even his criminal jurisdiction
had vanished before the establishment of the permanent courts. Yet still
the consul, who observed constitutional forms, was the chief interpreter
of the Senate’s will; while one who, like Caesar in 59 B.C., violated all
these forms, might exercise an almost monarchical power. The possession
of the consulship was the great annual prize, contested and almost
equally secured by the conservative and the reform parties from the time
of the Gracchi to the close of the Republic,[914] and the competition was
not wholly directed to secure the military _imperium_ which lay beyond
it. The civil office might still make a capable man, supported by a
powerful following, the guide of the destinies of the state.[915]
_The Praetors_
We have seen how the functions of civil jurisdiction were given to
a minor colleague of the consuls, and how a second colleague was
subsequently added to try cases in which the interests of _peregrini_
were involved.[916] The needs for judicial magistrates could not end
here. The provinces of Sicily and Sardinia, acquired as a consequence of
the first Punic war, required jurisdiction, and two praetors were given
them about the year 227 B.C.; two more were added in 198 B.C. for the two
newly acquired Spanish provinces, thus bringing up the full number to
six. A _lex Baebia_ (_circa_ 180 B.C.) enacted that four and six praetors
should be elected in alternate years, probably for the wise purpose of
making the praetorian government of the difficult Spanish provinces
biennial; but this law was soon suspended, and six praetors continued
to be annually elected until the time of Sulla (81 B.C.).[917] It is
true that between 198 and 81 many provinces had been added to the Roman
Empire; but the principle of administration by pro-magistrates had gained
recognition while these were being created; the praetors were becoming,
like the consuls, more and more city officials, and the necessity for
adding to their number came from the development of the criminal law.
At least eight praetors were needed for the presidency of the civil and
criminal courts at Rome, and consequently two were added by Sulla to the
original six.
The variety of functions performed by the praetors was due to their
having a general and a special character. On entering office, after
election by the centuries, they were at once, as inferior colleagues
of the consuls, capable of any of the duties which flowed from the
_imperium_. They were then assigned some special office, some definite
_provincia_; but the exercise of this did not destroy their capacity
for general action. For command in war, as well as for the exercise of
at least civil jurisdiction—both attributes of the full _imperium_—they
required a _lex curiata_. Each had the right to six lictors, and appeared
with the full number when controlling a province outside the city;
but, in the exercise of his jurisdiction at home, he employed, or was
allowed, only two.[918] The praetor’s specific title was derived from
his province; of the two original home praetors one was known as the
_praetor qui inter cives jus dicit_, or, in the colloquial phrase which
became titular, as _praetor urbanus_; the other as the _praetor qui
inter peregrinos jus dicit_, known finally as the _praetor peregrinus_.
But both the home praetors were often spoken of as having _urbanae
provinciae_ and exercising _urbana jurisdictio_.[919] Their rank was
higher than that of their colleagues—hence their names were, like those
of the consuls, used for dating[920]—and of the two the _praetor urbanus_
was regarded as holding the more distinguished position.[921] His duties
were naturally far more engrossing than those of his colleague, and the
law that he must not be absent more than ten days from Rome during his
year of office[922] made him more of a distinctly civic official.
The powers of the praetors, taken in their natural order, may be divided
into (i.) their general administrative duties at Rome, and (ii.) the
duties of their special departments. In the first of these spheres they
acted in virtue of their own _imperium_ but _vice_ the consuls, and
generally, therefore, when the consuls were absent from the city. If they
acted when the consul was present, it was by authority of the Senate, and
legally the consuls might prohibit this action.[923] Such an injunction
by the Senate was a constitutional mode of coercing the consuls into
doing their duty. In this way the praetors might summon the Senate,[924]
propose a _rogatio_,[925] hold the levy,[926] and exercise criminal
jurisdiction delegated by the people.[927] Usually, however, such duties
were performed by them only in the absence of the consuls, and the
_praetor urbanus_ generally took the lead,[928] although the summons of
the Senate by both home praetors, and even by a provincial praetor, was
not unknown.[929]
The special functions of the praetors were always assigned by lot
(_sortitio_). During the period when some of the praetors governed
provinces, a regular sortition took the form of an assignment of the
two urban _provinciae_ to two, and of the foreign provinces to two
and afterwards to four members of the college.[930] But in the third
and early part of the second centuries, before prorogation of command
became the normal principle, and when Rome had few magistrates with
_imperium_ at her disposal, this regular sortition could not always be
observed. Sometimes the two urban praetorships were combined,[931] or the
_praetor peregrinus_ might be given an Italian command, such as Cisalpine
Gaul.[932] In this way a praetor could be spared for the command of the
fleet or in Gaul (at Ariminum). This disturbance of the _sortitio_ and
the appointment of a praetor _extra ordinem_[933] were naturally the work
of the Senate. After Sulla the two civil and six of the criminal courts
were assigned to the eight praetors by lot.
The civil jurisdiction, whether of the urban or provincial praetors,
still adhered to the ancient form by which the ruling in law (_in jure_)
was the duty of the magistrate, and the judgment on the question of fact
(_in judicio_) was the function of a single _judex_ or, in matters
requiring rapid decision, of a bench of “recoverers” (_recuperatores_).
The rulings of the _praetor urbanus_ had originally followed the forms
of the _legis actio_, but in matters affecting _peregrini_ a custom had
grown up for the praetor to devise formularies of action (_formulae_)
which bound the _judex_ in his decision. The convenience of this
procedure extended its use to almost all cases, and by a _lex Aebutia_ of
uncertain date the simpler formulary procedure almost wholly replaced the
more complicated provisions of the _legis actiones_.[934] The _formula_
was a conditioned acquittal or condemnation; the praetor said to the
_judex_, “If it appears that a debt is due, an obligation has been
incurred, etc., condemn the defendant in a certain amount or in a sum
left to your estimate; if the condition is not apparent, acquit him” (_si
paret ... condemna; si non paret, absolve_). The _judex_ by his finding
changed the conditioned sentence into one that was categorical and final.
In most communities such rulings as those of the praetors would be
occasional expositions of a fixed code or of an uncertain body of statute
and customary law. At Rome a useful practice was adopted which brought
the living law, as opposed to the dead letter of her only code and to
statutes which had fallen into disuse, before the eyes of all the people.
The praetors announced by means of edicts, issued on their entrance on
office, what their rulings would be in any given case. The edict was
the “living voice of the civil law”;[935] and it is not surprising to
find that by the time of Cicero it had taken the place of the “song” of
the Twelve Tables in the legal education of the Roman youth.[936] The
profession of the edict was interpretation of the law of Rome; but it
was an interpretation that took the form of “assisting, supplementing,
and even correcting the civil law.”[937] It was, therefore, not the
_jus civile_ of Rome, but the valid modifications of this expressed in
what was currently known as magistrates’ law (_jus honorarium_). The
civil law was of course presumed as the background of these documents;
it found expression in many formulae which the magistrates continued to
give, and the _album_ itself probably contained a line of separation
which showed where the formulae based on _jus civile_ ended and those
founded on magisterial promises began. The most typical language of the
_jus honorarium_ is one of command veiled under the form of promises;
the praetor asserts “under certain given circumstances I will grant or
will not grant a case” (_judicium, actionem dabo ... non dabo_). Less
frequently the language is more imperative: “I will compel payment or
an oath” (_solvere aut jurare cogam_); before the question of right is
decided, “I forbid force to be used” (_vim fieri veto_).
A consideration of judge-made law, the consequence it may be of
precedents drawn from already decided cases, and therefore merely the
recognition of practice which had already crept into use,[938] but
still expressed, as it is in this case, in a purely abstract form,
suggests many questions. First, as to its validity. The edict was law
that held good for a year (_lex annua_):[939] a limitation that would
have produced a most unsatisfactory uncertainty as to its validity for
future litigants and subsequent magistrates, had it not been for the
facts that it was actually continuous, and that it was received, only to
be slightly modified in accordance with legislative changes or with the
demands of convenience, by successive wielders of civil jurisdiction. To
use technical language, the edict was _perpetuum et tralaticium_.[940]
Secondly, we must consider the limitation on the magistrate and the
forces that bound him to observe his own promulgated law. At Rome the
veto operated successfully for this purpose[941] even before the passing
of the _lex Cornelia_ of 67 B.C., which obliged a magistrate to adhere to
the rulings of his own edict.[942] In the shaping of the edictal rules
the mere fact of publicity in a community so legally gifted as that of
the Romans must have sufficed to keep the magistrate within the bounds of
prudence; when he was conscious of little legal training, the assistance
of eminent jurisconsults must have frequently been called in.
The edict is the source of most of our modern Roman law; the titles of
Justinian’s _Digest_ are often commentaries on its rubrics excerpted from
the writings of the scientific jurists, and that it should become the
prototype of the world’s law was only natural when we consider the way in
which it was built up. It was not only the collective work of generations
of gifted men, who were fortunately not professing lawyers, but it was
the outcome of an adjustment of Roman law first with that of Italy and
then with that of the provinces. The beginnings of a recognition of a
“law of the civilised world” (_jus gentium_) must be older than the
institution of the _praetor peregrinus_, since for more than a century
the _praetor urbanus_ had been issuing edicts not merely for _cives_
but also for _peregrini_; but, when a separate comprehensive edict was
issued for _peregrini_, equity found a more systematic expression, and
its reaction on the comparatively rigid forms of the urban edicts was
necessarily great; but the power of this reaction was possibly even
surpassed by that of the provincial edict (_edictum provinciale_),
issued originally by the foreign praetors and then by the proconsuls and
propraetors in each of Rome’s dependencies.
The connexion of the praetors with criminal jurisdiction was, apart
from the rare occurrence of a special judicial commission, due to the
growth of the standing courts. These _quaestiones perpetuae_ or _judicia
publica_ were to a large extent modelled on the civil procedure by which
compensation was exacted through a court of _recuperatores_. Hence the
praetors seemed their most appropriate presidents, and the size of
the college was, as we have seen,[943] increased by Sulla to meet the
growing number of these courts. For criminal jurisdiction six praetors
were available, whose provinces were possibly determined by the Senate
and were certainly distributed amongst the designated magistrates by
the use of the lot.[944] Although the general principle of distribution
made each praetor preside over the jurisdiction ordained by a single
law which created a _quaestio_, yet the spheres of jurisdiction were by
no means fixed. Groups of _quaestiones_ or of their branches[945] might
be rearranged every year, and it may not even have been necessary for a
single praetor to maintain a particular sphere of jurisdiction throughout
the whole tenure of his office. The general administrative functions of
the office might interfere with jurisdiction, and a readjustment of the
original distribution of _provinciae_, probably with the consent of the
Senate, seems to have been sometimes necessary.[946]
_The Aediles_
The junction of the plebeian and curule aedileships into a single office
is testified by their being spoken of together where their duties are
mentioned or prescribed by law,[947] and the fusion was so complete that
it is sometimes impossible to discover whether a historical reference
applies to the plebeian or to the patrician magistracy. But in their
respective qualifications for office, forms of election and _insignia_,
the separation was still complete. The plebeian aediles must still be
plebeians, while the curule aediles belonged in alternate years to either
order;[948] the former were elected by the Plebs, the latter by the
_comitia tributa_ of the people; the former sat on the modest bench of
the plebeian officials and had no distinctive dress, the latter sat on
the curule chair and wore the _praetexta_;[949] the anomaly remained that
the one office was not a magistracy at all, the other a magistracy proper
which gave its holder a claim to a seat in the Senate. The one peculiar
privilege of the plebeian aediles—the _sacrosanctitas_ which they shared
with the tribunes—vanished as a consequence of their employment as
officials of the state.[950]
The general position now assumed by the aediles was that of assistants to
the consuls in the administration of the city; in the fulfilment of which
task they had certain special spheres of competence assigned them.[951]
(1) Their care of the state archives—originally possessed to a limited
extent by the plebeian aediles[952]—was still continued, and they divided
in some unknown way with the quaestors the custody of _senatus consulta_
in the _aerarium Saturni_.[953]
(2) The _cura urbis_ involved a series of duties connected with the
public sites, buildings, and functions of the city. The aediles had to
see to the paving of the streets, to insist on individuals keeping the
pathways before their own houses in repair, and to lease out at the
public cost the renewal of such thoroughfares as were connected with
public buildings.[954] They saw that all public places, such as roads and
squares, were kept clean and clear of obstacles, partly from a sanitary
motive, partly for the purpose of preventing the encroachments of private
buildings on public sites.[955] They controlled the water-supply and
prohibited private persons, with the connivance of the water-inspectors
(_aquarii_), taking more than their fair share from the public
conduits.[956] Their control of public buildings and temples was limited
to inspection and supervision, for the repair of such buildings, at least
when undertaken on a large scale, was leased out by the censors. Closely
connected with this _aedium sacrarum procuratio_[957] was their control
of the _cultus_ of the community, which obliged them to see that no
foreign innovations crept into the primitive form of Roman worship.[958]
Their police duties are shown by the edicts which they issued for keeping
order at the public games,[959] and by their control of private places
of utility or amusement to which the public were admitted, such as baths,
taverns, and the like.[960]
The aediles possessed the usual means of _coercitio_ for enforcing
their decrees; they seized pledges (_pignora_) and imposed fines
(_multae_).[961] When the latter surpassed the limit of the _multa
suprema_, the case went on appeal to the people; the plebeian aediles
defended their fines before the _concilium plebis_, the curule before
the _comitia tributa_. From the _cura urbis_ also sprang an anomalous
civil jurisdiction which was confined to the curule aediles; in one
form of civil action which survived in their edict as codified under
Hadrian—that, namely, arising from the damage done by wild beasts on the
public roads—it was they who gave the _formula_ and appointed the _judex_
or _recuperatores_.[962]
(3) Their care of the market is typified by Cicero in the most important
of its subdivisions—the care of the corn-supply (_cura annonae_).[963]
Their duty was to regulate prices as far as possible, especially by the
prevention of monopolies; the aediles often sold corn at a moderate price
fixed by the state, although sometimes ambition led them to incur the
loss themselves;[964] and it was they who as a rule presided over the
distributions ordained by the later _leges frumentariae_.[965] The supply
of corn to an army in Italy from the city magazines was also one of their
cares.[966] Other duties springing from their control of the market were
the enforcement of the sumptuary laws,[967] the inspection of weights
and measures with the maintenance of their normal standard,[968] and the
regulation of the sale of slaves and cattle. This power found expression
in civil jurisdiction, which was in this case also confined to the curule
aediles. It was they who gave the _formula_ for the return of slaves and
cattle sold under false representations, and appointed the _judex_ in
such cases.[969]
(4) The _cura ludorum_ of the aediles was not the mere presidency
of festivals such as was possessed by other magistrates, but the
establishment of regularly recurring games, very largely at their
own expense. The games were given jointly by the respective pairs
of colleagues,[970] the oldest festival, the _ludi Romani_, being
in the hands of the curule,[971] the _ludi plebeii_ in those of the
plebeian aediles.[972] The other festivals established from time to
time—_Megalesia_, _Cerealia_, _Floralia_—increased the burden of the
aedileship. The Megalesia apparently fell to the lot of the curule
aediles,[973] the others seem to have been given indifferently by either
pair.
The aediles are sometimes found exercising functions of criminal
jurisdiction, all of which cannot be brought into close connexion with
any of their special powers, and which, therefore, do not spring from
the ordinary _coercitio_. This criminal jurisdiction was, like the civil
jurisdiction of the curule aediles, an anomaly, for these magistrates did
not possess the _imperium_. It is to be explained partly as a survival
(for some jurisdiction of the kind had been exercised by the plebeian
aediles) and partly as the result of considerations of convenience.
Before the institution of the _quaestiones perpetuae_ there was a great
lack of criminal courts at Rome. The _quaestores_ were at hand for the
trial of grave capital crimes against individuals, and the tribunes for
political jurisdiction. What was needed was a magistracy for bringing
ordinary and lesser crimes involving a money penalty (_multa_) before the
people, and this was found in the aedileship. It is true that the aediles
were not prohibited from undertaking the prosecution of political crimes
that might be met by a fine, such as a mild case of _majestas_[974] or
the bribery of a bench of _judices_;[975] and judgment on a breach of
the peace (_vis_) was in harmony with their police duties.[976] But as a
rule it is a class of ordinary crimes, somewhat beneath the dignity of
tribunician prosecution, that we find them visiting. Such were adultery
committed either by men or women,[977] usury,[978] illegal speculations
in corn,[979] and the offence of exceeding the amount of domain-land
which the laws permitted an individual to possess.[980] The aediles
were stimulated to a career of prosecution by the singular custom which
permitted them to retain the fines collected and to apply them to any
public purpose which they pleased. We find them expended on buildings and
adornments of the city, and by the plebeian aediles on their games.[981]
_The Quaestors_
We have already spoken of the criminal investigators (_quaestores
parricidii_), whom tradition attributes to the monarchy,[982] and of the
more certain assistants of the consuls for criminal jurisdiction and
finance (_quaestores parricidii et aerarii_), who are assigned to the
early Republic.[983] We have seen that, first nominated by the consuls,
they were soon elected by the tribes,[984] and we have witnessed the
opening of the office to Plebeians when, in 421 B.C., the number of
quaestors was raised from two to four, and one of these officials was
assigned to each consul in the field.[985] About the year 267 B.C.
four more were added for the purposes of Italian administration, and
no further change is recorded until Sulla raised their number to
twenty,[986] although some intermediate increase is not improbable.
After the quaestorship had become an independent magistracy, its tenure
continued to be annual; but the consular quaestor is so much a part of
his superior that, after the prolongation of the _imperium_ had become
usual, a biennial tenure, held partly in Rome, partly in a province,
must have been the rule.[987] The rank of the quaestor was the lowest
in the _cursus honorum_,[988] and he had none of the _insignia_ of the
curule magistrates. Coins exhibit him on a straight-legged chair, with
a money-bag or money-chest, and a staff the significance of which is
unknown.
The quaestorian _provinciae_ were determined, before these magistrates
entered on their office, by a decree of the Senate,[989] and the
individuals were then assigned to their several departments by lot;
although, probably always by a special grace of the Senate, there are
instances of commanders selecting their own assistants.[990]
The departments may be grouped under the three heads of urban, military,
and Italian.
(i.) The general duty of assistance which the two urban quaestors
(_quaestores urbani_) rendered to the consuls was curtailed of one of its
attributes by the loss of their criminal jurisdiction about the middle
of the second century B.C.; for they could no longer have been needed
as delegates in _parricidium_ after the first _quaestio de sicariis_
had been established.[991] Their functions were henceforth, as they had
for some time mainly been, financial. Their old association with the
_aerarium_ gave them the custody of the keys of this treasury,[992] the
guardianship of the standards that were kept there,[993] and, above
all, of the great mass of state papers and archives which it held.
These contained laws[994] and decrees of the Senate,[995] the list of
_judices_,[996] the public accounts (_tabulae publicae_), which included
the statements of moneys voted to magistrates[997] and the reckoning of
provincial governors with the _aerarium_ in respect to direct tribute
paid them by the provincials. Connected with this financial custody were
the quaestors’ duties of collection. To them the _publicani_ usually
paid the sums which they had guaranteed for the leasing of the public
revenues.[998] The collection of fines imposed by the _judicia populi_,
and exacted by the _quaestiones_ for peculation and extortion, was also
in their hands.[999]
The quaestors also conducted sales on behalf of the treasury—not of those
large portions of the public domain which were alienated by the censors,
but of current acquisitions, such as those of slaves and booty captured
in war,[1000] and of that portion of conquered land which was brought
immediately under the hammer (_ager quaestorius_).[1001] This threefold
function of guardianship, collection, and sale gave the urban quaestors
an unequalled grasp of the state of the public revenues, and as they
were annual, while the censors—the budget-makers—were merely occasional
officials, we are not surprised to find them making financial statements
in the Senate.[1002]
(ii.) The general assistance which the quaestors were meant to render to
the consuls was extended, as we saw,[1003] in the year 421 B.C. to their
activity in the field. Each consul or praetor who assumed a military
command was given a particular quaestor (the dictator being exempted
from what was regarded as a limitation on the discretionary powers of
the magistrate), and, after the custom had grown up of extending the
_imperium_, these assistants accompanied the proconsuls and propraetors
to their provinces. The term of the quaestorship was prolonged with that
of the office with which it was associated,[1004] for the connexion
between the superior and inferior was regarded as being of almost as
personal a character as that between father and son.[1005] We shall
examine the relation more minutely when we come to deal with provincial
organisation. It is sufficient to remark here that, though the quaestors’
functions were mainly financial, they were in all other respects true
administrative delegates of the magistrates with _imperium_,[1006] and
were constantly employed on judicial and military business.
(iii.) The quaestors of Italy were probably identical with those of
the fleet (_classici_), and were a result of the organisation of Italy
which followed the war with Pyrrhus (267 B.C.). For the purposes of the
Pyrrhine war twelve quaestors were created, whose number, when they
were given permanent stations, was reduced to four.[1007] Three of
these stations can be approximately determined. One was Ostia, and the
tenure of this post was burdened with the duty of the supply of corn
to Rome.[1008] The second appears to have been the woods and forests
(_calles_) of Italy.[1009] The third was in Cispadane Gaul,[1010]
perhaps at Ravenna or Ariminum. The fourth is unknown, but was perhaps
the quaestorship at Lilybaeum in Sicily, which, after the creation of
the first Sicilian praetor in 227 B.C., would have become a provincial
post. The other three survived the Republic as spheres of Italian
administration.[1011] The functions of these quaestors were chiefly
the levying of contingents from the allies in ships and men,[1012] the
protection of the coasts, and at Ostia, as we have seen, the supply of
corn for the capital.
A further quaestorian department is mentioned by Cicero—the _provincia
aquaria_, which was probably concerned with the water supply of the
capital. It is uncertain whether this function was attached to one of the
Italian quaestorships.[1013]
_The Censors_
We have already described the institution of the censorship in 443
B.C.,[1014] and have seen that patrician rank was originally a necessary
qualification for the post. The first mention of a plebeian censor is
in 351 B.C.[1015] One of the Publilian laws of 339 B.C. is said to have
extended to the censorship the provision of the Licinian law about the
consulship, and to have enacted that one censor must be a Plebeian;[1016]
but it is not until the year 131 B.C. that we find two plebeian
censors.[1017]
The election to this office, like that to the other higher magistracies,
took place in the _comitia centuriata_[1018] under presidency of the
consul. The election was then ratified, not, as in the case of other
magistrates, by a _lex curiata_, but by a _lex centuriata_,[1019] a form
of statutory approval which marks the censors as peculiarly the officials
concerned with the organisation of the _exercitus_.
In rank the censor occupies an anomalous position. Although lacking the
_imperium_ and the right of summoning people and Senate, he is reckoned
amongst the _majores magistratus_, he has the “highest _auspicia_,”[1020]
he sits in the curule chair, wears the purple-striped toga, and (an
honour accorded to no other magistrate) is buried in the full purple of
the king.[1021] Politically the censorship was the apex of a career.
Often held in its earlier period by ex-consuls, it became practically
confined to the consular, and its enormous powers, its lofty ethical
significance, and its comparative infrequency made it the goal of those
who had already attained the chief titular dignity of the state.
Four attributes of the office are very important in determining its
character. The first gave it the necessary authority, the others created
a healthful limitation of its powers.
(1) The censorship was an irresponsible office.[1022] Its holders could
not be called to account for any act done in connexion with the _census_,
any act that was an outcome of the _censoria potestas_ ratified by
the _lex centuriata_; and although the _lectio senatus_ was a later
addition to their functions, this power seems to have been included in
the indemnity. This principle of immunity was stated in a decree of
the Senate of the year 204 B.C.,[1023] and, although often challenged
by the tribunes, was maintained until the close of the Republic. One
of the effects of the Clodian _plebiscitum_ of 58 B.C., which limited
the discretionary power of the censors in the _regimen morum_,[1024]
would have been to make them judicially responsible for a breach of its
provisions; but this law was soon repealed. The censors were also free
from the usual limitation created by the tribunician intercession; it
was clearly invalid against the particular _potestas_ exercised at the
_census_,[1025] although the _obnuntiatio_ could be employed against the
summons of the people to the _census_ and the _lustrum_, as against any
other _contio_.[1026]
(2) The limitation of tenure to eighteen months caused a break in the
continuity of the magistracy, and was a symbol that the office was
merely occasional. The censorial ordinances were valid for the whole
quinquennial period of the _lustrum_, but, whatever may have been the
original intention of the limitation of tenure, it was continued as an
effective guarantee against such enormous powers being exercised for a
continuous period of four or five years.[1027]
(3) Re-election to the censorship was forbidden, for a continuous moral
control exercised by the same men would have been intolerable.[1028]
(4) The collegiate principle operated here as in other offices, but
nowhere was the check of the veto more necessary and more healthy than in
its influence on the arbitrary moral judgments of the censors. Without
it the Senate might have been packed by a single man, and degradation
from the highest positions and on the scantiest evidence might have
been due to caprice, and followed by the unpopularity which divided
responsibility renders less intense.[1029] The collegiate relation
was, indeed, closer in this than in any other magistracy. Its holders
must be elected together, the name of the singly-appointed censor not
being returned;[1030] and, whether from grounds of convenience or from
a religious scruple, it was enacted that, if one post was vacated by
abdication or death, the holder of the other should resign.[1031]
The original and specific powers of the censors, various as they
seem, form a perfect unity. Their work is briefly that of numbering
and purifying the people. The accompaniments of this _census_ are
(i.) registration, i.e. the assignment of individuals to their proper
state-divisions; (ii.) the decision of the incidence of financial
burdens, based on an estimate of the property of individuals; (iii.) the
consideration of the moral worth of individuals with reference to their
fitness to exercise various functions of state, known generally as the
_regimen morum_; (iv.) the purification (_lustrum_), perhaps to avert
the anger of the gods from the iniquity of numbering the people, perhaps
merely a regularly recurring atonement for involuntary sin, the voluntary
sinners being first removed by the exclusion effected by the _cura morum_.
To this aggregate two functions were added: first, the _lectio
senatus_, which, although no part of the _census_, is an outcome of
the same activity and forms an integral part of the _regimen morum_;
secondly, financial duties, such as the leasing of taxes and _opera
publica_—functions that any of the supreme magistrates could perform.
They are not an integral part of the _census_, and this portion of the
censors’ business is conducted under senatorial supervision.[1032]
I. The _lectio senatus_, although in the eyes of the censors and of the
world the first of their charges, was but a late attachment to their
office. Even in the year 311 B.C. the consuls could still venture to set
aside a censorian list and return to the practice of selecting their
own _consilium_,[1033] and later still (216 B.C.) a dictator could be
chosen for the purpose of filling up gaps in the order.[1034] A _lex
Ovinia_, a _plebiscitum_ of uncertain date, may have made the censors
mainly responsible for the _lectio_, but the fragmentary paraphrase of
its contents, which has been preserved, merely limits their discretionary
power in the exercise of their choice. The censors are to choose “the
best men,” a direction which, interpreted by our knowledge of later
methods of selection, implies at the least that ex-curule magistrates
must be chosen,[1035] at the most that the whole list of magistrates
(including the plebeian aediles and the quaestors) should be scrutinised
before censorian nominees were appointed.[1036]
The framing of the Senate’s list was, in accordance with the estimate
of its importance, the first work of the censors after their entrance
on office. It was accomplished rapidly, for there was no summoning of
the Senate as a corporation, or even of individuals, as at the _census_.
Facilities may have been offered to a senator of clearing himself of
charges,[1037] but formal procedure was dispensed with, and nowhere was
the arbitrary power of the censors more manifest than in the execution of
this the gravest of their duties.
Rejection took the form of affixing marks (_notae_) against names in the
register; these names were omitted in the revised list. Then took place
the _sublectio_ of new names, and here the censure was pronounced by
omitting those who had a claim to a seat in the house.[1038] The veto,
which operated in its constantly negative manner, which enabled one
censor to retain a name omitted by the other,[1039] or even perhaps to
hinder the election of a new member selected by his colleague, and the
written grounds for censure appended to the rejected name (_subscriptio
censoria_),[1040] were some guarantees against capricious exclusion.
The automatic method of recruiting the Senate introduced by Sulla
produced a modification in the censorian selection. The magistrates seem
to have lost the power of rejecting applicants, their right of exclusion
being confined to names already on the list. It is not known whether the
censors at a subsequent _lustrum_ still retained the power of reversing
an _infamia_ once pronounced; but the usual mode in which a seat was
regained by an ejected senator was to seek popular election and to enter
the Senate through a magistracy.[1041]
II. The _census_ opened with a summons to the people to meet the censors
in the Campus Martius. It was the army as exhibited in the centuriate
list that the censors wished primarily to examine, and, consequently, it
was the members of this body that they summoned to appear in person; the
_capite censi_, with their votes in the tribes and their taxable capital,
might be represented only by the _curatores tribuum_,[1042] although
the censor could summon any member of the burgess community whom he
pleased.[1043]
The financial examination at each _census_, which had as its object
the rating for the _tributum_, was based on the returns of the last
scrutiny. There was, therefore, some means of checking the declarations
now made on oath by each head of a family, and in doubtful cases external
evidence must have been taken. The returns were made in accordance with
the instructions of a general formula (_lex censui censendo_) which the
censors had published;[1044] but their general conditions must always
have been the same. First came a declaration of the size of the property,
then of its value. But the estimate of the individual owner need not be
accepted by the censors; they often attached an exaggerated estimate to
articles of luxury,[1045] or expressed their disapprobation of social or
moral offences by an arbitrary and excessive rating of the goods of the
offenders.[1046]
All the property thus assessed must be the object of quiritarian
ownership. Originally it had been but the land and the animals associated
with it (_res mancipi_),[1047] such objects as had been conveyed by
mancipation, and for the evidence of the transfer of which from hand
to hand the mancipation witness could be summoned. But the growing
mercantile community had to take account of movables, and throughout the
historical period all objects of property, corporeal or incorporeal,
which constituted _pecunia_ in the later sense of the word, were subject
to valuation and taxation.[1048] After the time when direct taxation
ceased in Italy (167 B.C.) the valuation was no longer made for the
_tributum_; but property was still for a time the determinant of the
kinds of military service and voting rights, and the censors had still
to scrutinise the professions of the assessed, although the scrutiny was
perhaps conducted with less rigour than before.
As it was the head of the family alone that could give an account of
property, so it was to him that the censor put the requisite questions
as to the persons dependent on his care. The respondent gave not only
his own name, his father’s and his age, but made similar declarations
about his son, his daughter, and his wife.[1049] Inquiries about the
female members of the family were chiefly undertaken on moral grounds;
they were of no importance for the work of registration, whose object was
to assign voting rights and military burdens. Of the three subdivisions
of the Roman state—the _curia_, the tribe, the century—the first was
not considered by the censor, for the _curia_, like the _gens_, was
inherited. The assignment of the tribe varied at different periods. If
there was never a time in the history of the censorship when it had
been confined to landholders,[1050] the possessor of an allotment was
naturally registered in the _tribus_ which contained his plot of ground,
the non-possessor in that wherein he dwelt. But, by the year 312 B.C.,
the landless citizens had already been confined to the four urban tribes;
the radical censor of that year distributed them even over the country
tribes, to increase the voting power of this _forensis factio_;[1051]
but in 304 B.C. the landless proletariate was again confined to the
_tribus urbanae_,[1052] and hence arose the permanent distinction between
the more honourable country and the less distinguished city tribe. As
a matter of fact, this distinction between the landed and the landless
citizen could not continue when all property, personal as well as real,
became of equal value at the _census_, and membership of the tribe
became practically hereditary. But it was a heredity which might be
broken by the censor at every period of registration. He might, as we
shall see, arbitrarily transfer an individual from his paternal country
tribe to one of the four urban divisions, which, partly from historical
reasons, partly because they contained the freedmen, were accounted less
distinguished.
The distribution into centuries naturally followed the distinctions of
property and age which qualified for those bodies. The list which set
forth this distribution was still pre-eminently an army list, but the
table of seniors (_tabulae seniorum_) undoubtedly contained the names of
those who were past the age of compulsory service. The _sexagenarii_,
although the young bloods might object to their voting for a war in which
they were not to share,[1053] or electing a general by whom they would
not be led, still had the right of taking part in the deliberations of
the _comitia centuriata_.
It is obvious that the complete census of tribes and centuries included
every voting unit of Rome, and, in spite of the fact that an individual
scrutiny of the _aerarii_ may not have taken place,[1054] we must suppose
that there was a tribal list of _all_ the citizens which proved the right
to vote at the _comitia tributa_ and the _concilium plebis_. But it is
almost certain that, when an historian mentions a census of Republican
times, he is reproducing merely the army list,[1055] the vital element
in registration for a military state. All under the military age are
excluded, and it has even been concluded that in the historical lists
the _seniores_ themselves are not entered.[1056] The _proletarii_ are
potentially, and in a sense actually, members of the Roman army;[1057]
but it is very questionable whether they appear in the Republican lists.
It was, perhaps, not until the Principate that the census contained the
names of all male Romans above the military age.[1058]
III. _The recognitio equitum._—The word _equites_ primarily and properly
applied only to the citizen cavalry of 1800 men, serving on horses
supplied by the state.[1059] These formed the _centuriae equitum equo
publico_, and this class was the _ordo equester_ in the strict sense.
It is true that _equites_ had come to have a wider meaning than this.
About the close of the fifth century, individuals possessing a certain
census and not included in the equestrian centuries were permitted to
serve as cavalry with their own horses.[1060] They were no definite body,
but were selected for a particular service by the commander, if the
censors had admitted their pecuniary qualification.[1061] The consequence
was that the terms _eques_ and even _ordo equester_ were transferred to
these potential knights, and came to specify all who possessed a certain
census, which, in the Principate and probably in the later Republic,
was 400,000 sesterces.[1062] The censorship was only concerned with
this wider body of knights as the authority which proved the monetary
qualification of its individual members. The only body of _equites_ which
it recognised and treated as a corporation was that of the eighteen
centuries.
The review of the knights (_equitum census_,[1063] _recognitio
equitum_[1064]) took place, not like that of the rest of the citizens
in the Campus Martius, but in the Forum. The whole corps filed past
the censor man by man, each knight leading his horse by the bridle,
as the herald called his name.[1065] The first question considered by
the censors was that of discharge. While the knights were still the
cavalry of Rome, the service was a burden, and a burden that from the
close of the second century of the Republic was made incompatible with
a seat in the Senate.[1066] In the Gracchan period, as we have seen,
ten years’ service had to be proved before the knight could claim his
dismissal.[1067] The discharge was usually granted, if the conditions had
been fulfilled, but the censors, as a penal measure, claimed the right
of not allowing past service to count, and even of imposing additional
service at the knight’s own expense.[1068] Ignominious discharge, before
the completed term of service, was a consequence of military negligence,
as shown, for instance, by the shabby condition of the public horse
(_impolitia_),[1069] or of any moral blemish, which in other ranks of
life would have entailed dismissal from the Senate or the tribes. The
form of dismissal was “sell your horse” (_vende equum_), of retention
“lead it on” (_traduc equum_).[1070] The censors’ final duty was to fill
up the vacant gaps in the centuries. This was done by the enrolment, at
their own discretion, of qualified members from the infantry (_pedites_).
This procedure was but one example of that wider censure which was
directed against the citizen body at the time of its registration in
the Campus Martius. This scrutiny was preceded by an edict in which the
censors declared some of their moral canons—canons, we may believe, that
were transmitted from college to college and seldom departed from—while
they animadverted on new evils which they believed to be undermining the
life of the state.[1071] The acts which called forth their censure may be
conveniently considered under four heads.
(i.) Those concerned with family life and private relations. The father
as the domestic magistrate or judge[1072] was wholly responsible for
the conduct of the little world of the family, and the censor exercised
his control over women vicariously through their husbands.[1073]
The objects of censorian animadversion were the cruel punishment of
slaves,[1074] the wrong done to a client, which had been formerly
punished by pontifical law,[1075] the bad education of children, whether
it took the form of undue harshness or of over-indulgence,[1076] and
the non-performance of the _sacra_ of the clan.[1077] The censors
discountenanced celibacy,[1078] imposing additional taxation on
persistent bachelors.[1079] They discouraged _mésalliances_ such as
unions between free-born citizens and freedwomen,[1080] and checked the
legal freedom of divorce. In the usual marriage by _consensus_ a mere
repudiation on the part of the husband was sufficient to dissolve the
tie;[1081] but the censors restrained a reckless exercise of this power,
and we find a senator degraded for divorcing his wife without taking
advice of the family council.[1082] They also punished bad husbandry,
neglect of property,[1083] and luxurious living,[1084] and enforced good
faith (_fides_) in the execution of informal contracts which were not yet
protected by the sanctions of the civil law. This was especially the case
with guardianship (_tutela_),[1085] but their scrutiny extended to all
legal relations that were held to involve _bona fides_, such as those of
partnership, mandate, and deposit.[1086]
(ii.) Disqualifications were pronounced as a consequence of certain modes
of life, trades, or professions. Actors were perpetually disqualified
from all civic privileges,[1087] and gladiators were probably subject
to a similar degradation.[1088] Amongst dishonourable employments
was reckoned that of a money-lender who exacted an excessive rate of
interest.[1089]
(iii.) Breaches of political duty in any sphere called down the
censor’s displeasure. The magistrate might be degraded for cruelty or
insubordination in the exercise of his office,[1090] for the neglect of
constitutional formalities,[1091] for a misuse of the auspices,[1092]
or even for the passing of a law likely to injure the morals of
the community.[1093] The _judex_ might be punished for accepting
bribes,[1094] the soldier or officer for shirking service or for showing
cowardice or disobedience,[1095] and the voting citizen for a misuse of
his judicial or elective power.[1096] Disgraceful conduct in a court
of law might also entail the censure. It visited the collusion of a
prosecutor with the accused or malicious prosecution in a criminal case
(_praevaricatio_, _calumnia_),[1097] and attended false witness and false
oaths. Since there was no secular punishment for perjury, its visitation
was peculiarly the work of the censors.[1098]
(iv.) The censors sometimes pronounced disqualifications as the result of
a judicial sentence.[1099] Theft and other private delicts were attended
with infamy, and sometimes the censure was independent of the judgment of
a court.[1100] The censure, which followed a criminal condemnation, might
be either one of the censors’ own creation[1101] or the mere fulfilment
of a disqualification already enjoined by law. Of the second kind were
the disabilities pronounced by the _lex Cassia_ of 104 B.C.[1102] or by
the _lex Calpurnia de ambitu_ of 67 B.C., the latter of which enjoined
perpetual exclusion from the Senate as a result of condemnation.[1103]
IV. The effects of the censorian _infamia_ depended partly on the rank
of the person disqualified, but were always regulated to some extent
by the gravity of the offence. The senator was removed from the list,
the knight from the equestrian centuries, the commoner is said _tribu
moveri_ or _aerarius fieri_, or both.[1104] “Removal from the tribe”
has two meanings: either that of the milder penalty of relegation from a
higher to a lower tribe, or of the severer punishment of total exclusion
from the tribes, while _aerarium facere_ implies exclusion from the
centuries.[1105]
V. _The lustrum._—After the ranks of the various orders had thus been
purified, the lustral sacrifice (_lustratio_) was offered for the whole
assembled army in the field of Mars.[1106] The ox, the sheep, and the
pig (_suovetaurilia_), which were led round the host and then sacrificed
to the god, were at once an atonement for sin and a thanksgiving
for blessings prayed for at the preceding _lustrum_ and since
vouchsafed.[1107] The completion of this ceremonial marked the close of
the censor’s functions, at least of those connected with the _census_.
VI. _Other functions of the censors._—The necessity for the division of
functions, which had created the censorship, led to financial duties,
analogous to but unconnected with those of the _census_, being taken from
other magistracies and attached to that office. These were the leasing
of the public revenues, the maintenance of public property, and the
administrative jurisdiction connected with these duties.
The Roman state, in its administration of the public property, had always
favoured the system of contracting out. The system was that of purchase
or lease by middlemen (_publicani_) of a prospective source of revenue,
which the individual or the company farmed at its own risk or profit.
Sometimes the middleman was himself the occupant (_possessor_) of, or the
contractor (_conductor_) for, the source of wealth from which the revenue
was derived. This principle was applied to limited sources of wealth or
those requiring particular industrial appliances, such as fisheries,
salt-works, mines, and forest-land. This system of direct farming was
sometimes applied to domain-land both in Italy and the provinces. The
_ager Campanus_ was dealt with in this way, and the royal domains of
the kings whom Rome had supplanted were, with the confiscated territory
of Corinth, let on long leases to _publicani_,[1108] who doubtless in
most cases sublet these territories to smaller holders. Such contracts
were put up to auction, and their terms were fixed by a _lex censoria_
dictated by the censor as the representative of the state. This _lex_,
besides specifying the revenue which the lessee was required to pay, also
fixed the conditions under which the contract was to be undertaken.[1109]
The second kind of tax-farmer is a true middleman.[1110] The _publicanus_
here is not himself employed in working the source of wealth; he is not
a _possessor_ or occupant, but one who has bought from the state the
right to collect revenue from such an occupant. The right is put up to
auction and bought for a fixed sum, for which the company of successful
contractors furnishes security. Their gains depend on the prospective
surplus of the revenue which they propose to farm over the sum which
they have agreed to pay. This was the method of dealing with the public
land which had been left open for occupation by squatters (_occupatorius
ager_). It was either tilled land (_ager_) enjoyed by a _possessor_, or
pasture land (_silva pascua_, _saltus_) over which the _pastor_ grazed
his flocks. Both occupants were tolerated by the state on condition that
they paid a fixed due for their precarious tenure.[1111] The _publicani_
were the men who had the right to collect this _vectigal_ from the user
of the land, and the dues which they might collect were determined by
the _lex dicta_ under which the censor sold the right.[1112] A further
class of revenues collected in this manner were the harbour dues
(_portoria_). They were based on the same leading idea of the use of
public ground by a private occupant; he pays for this use, and the right
of collecting this _vectigal_ within a given area is sold to a company of
_publicani_. A great extension was given to this system of tax-farming by
its application to provincial administration. The Roman translated the
tithe (δεκάτη, _decuma_) which he found in Sicily and Asia into his own
familiar _vectigal_, but for a time he adhered to the existing conditions
of local collection, and in Sicily the tithes were sold in the island
itself in accordance with the _lex Hieronica_.[1113] Asia was the first
province to which the experiment of a collective sale of the taxes in
Rome was applied.[1114] The system was apparently extended to the Asiatic
provinces organised by Pompeius, and the censorship was the normal
vehicle through which the revenues of a vast kingdom could be purchased
by a company of Roman speculators.
The censors exercised great discretionary powers in the conclusion of
these contracts, but a revision of such as had already been concluded
belonged not to them but to the Senate.[1115] Their merely executive
capacity is an explanation of the fact that they could not alienate
the property of the Roman people. Wherever the sale of public lands or
buildings by these officials is described, we must assume the concurrence
of the people or the Senate.
The extent of the censors’ control of the property of the state made
their registers (_tabulae_) assume the proportions of a budget, which
must have been the guide of the state’s expenditure. Although only
quinquennial, this budget was tolerably stable, for the varying returns
(as opposed to the invariable revenues, such as the fixed tribute of
some of the provinces) were estimated for the interval that elapsed
between one _lustrum_ and another. An unusual increment, such as that
from booty, which might appear in any year, would have formed the ground
for a statement made by the quaestors, the permanent officials of the
_aerarium_.
But, although estimates were made by the censor, he had little to do
with general expenditure. He had no concern with the provinces and the
army, and was limited to the maintenance and extension of the public
property of the state. He was either a maker or a repairer of _opera
publica_, such as roads, aqueducts, temples, and public buildings.[1116]
Such buildings or repairs were leased out to contractors, the state
here becoming the debtor of a private company and seeking to obtain the
lowest estimate for the work.[1117] For the purpose of repairs or new
works a credit (_pecunia attributa_) was granted by the Senate, which
directed the quaestors to employ this money at the discretion of the
censors.[1118] Within the limits of this sum they could act at their
own discretion with respect to the modes of expenditure, although they
doubtless took the advice of the Senate. These grants and the purposes
to which they were applied were known by the strange name of _ultro
tributa_,[1119] a designation which may be a relic of a time when such
_opera_ were not leased, but were burdens (_munera_, _moenia_), owed as a
voluntary tribute by the community.[1120]
These financial functions of the censors gave rise to an administrative
jurisdiction. In their guardianship of public places they decided where
private buildings had encroached on state property,[1121] or where
public buildings had been usurped by _privati_.[1122] They may at times
have pronounced on the pecuniary penalties meant to enforce the rights
of public property, for they sometimes exercised their coercive power
and proclaimed varying penalties (_multae_) to compel obedience;[1123]
but such quasi-criminal jurisdiction must have been exercised more
frequently by the aediles, and, where the amount of the fine necessitated
the appeal, it must have been pronounced and defended by the latter
magistrates. Jurisdiction bearing a resemblance to that of civil law was
concerned with the _ultro tributa_, when the question arose whether a
contract had been carried out satisfactorily or not, and with disputes
about the public land, the controversy in the latter case lying most
frequently between the _publicanus_ and the _possessor_,[1124] but
sometimes, no doubts between one who claimed to be an owner on the one
hand and the middleman or an occupant on the other. The form of this
jurisdiction varied. Sometimes, when the dispute lay between the state
and an individual, as in the controversies about the _ultro tributa_,
the sentence was the result of a purely magisterial cognisance, although
we may suppose that the censor could, if he pleased, give a _judex_ in
such a case. Where the dispute lay between two _privati_, even though one
of them had the quasi-official position of a _publicanus_, the granting
of a _judex_ or _recuperatores_ was, at least in the later Republic,
usual.[1125]
_The plebeian Magistrates_
The accidental preservation of the tribunate, through the failure of the
decemvirate to do its work, and consequently of the plebeian assembly
in all its purity, led to the persistence of a magistracy chosen only
by and only from the Plebs. But the plebeian aedileship was welded with
the curule office of the same name into practically a single magistracy,
which has already been discussed;[1126] while the tribunate is so
intimately bound up with every phase of the constitutional development
and organisation of Rome, that every one of its leading functions has
already been considered.
We have seen the method of its institution and the singular religious
basis on which its power rested,[1127] and we have observed the numbers
of the holders of the office rising from two to four, and finally to
ten.[1128] The right of eliciting resolutions from the Plebs and the
coercive power and jurisdiction possessed by this office have also
been described.[1129] We have further dwelt on the anomalous duality
of the office, and seen how in a certain sense it is not a magistracy,
the tribune lacking both the requisite _insignia_[1130] and the right
of taking _auspicia impetrativa_,[1131] but how, on the other hand,
it becomes practically a magistracy of the people, when functions
originally purely plebeian come to be used in the interest of the whole
state. The right of acting with the Plebs gave the tribunes the power of
initiating legislation when _plebiscita_ had been raised to the level of
_leges_;[1132] in their elective capacity they not only presided over the
appointment of their successors and of the plebeian aediles, but through
the Plebs they might not only create a minor magistracy such as the
triumvirate _agris dandis assignandis_,[1133] but in the closing years
of the Republic actually conducted the election of such officials.[1134]
Their power of prohibition and their right of veto,[1135] limited for a
moment by Sulla but soon restored in all its plenitude,[1136] became,
when constitutionally employed, a guardianship of the whole state against
the illegal or unconstitutional proceedings of other magistrates, and
formed the chief basis of the Senate’s authority. Their association with
the Senate, from being merely prohibitive, grew to be positive,[1137] and
they finally shared the presidency of that body. Lastly, their powers
of coercion and jurisdiction widened into a judicial control of the
magistracy; they were the prosecutors of faulty officials, and, up to the
time of the development of the _quaestiones_, represented the chief means
which the state possessed of enforcing criminal responsibility on its
executive.[1138]
_The minor Magistrates_
Prominent amongst the minor magistrates (_minores magistratus_)[1139]
stands a group known finally, and perhaps in Republican times, as the
_viginti-sex-viri_.[1140] This group was merely a collection of small
colleges and not itself a _collegium_. It is probable that most of its
members were originally nominated by superior magistrates; in later times
they were all elected in the _comitia tributa_, although doubtless a
separate elective act was required for each college.
(_a_) The _IIIviri capitales_, sometimes called by the less technical
name of _IIIviri nocturni_, probably from their duty of extinguishing
fires, were introduced as a standing institution about the year 289
B.C.[1141] Their general function was that of assistance to the other
magistrates in criminal jurisdiction. After the judgment had been
pronounced, they guarded the prisoners and carried out the death
sentence.[1142] Their duties preliminary to a criminal trial were the
preventive imprisonment of the accused and the conduct of a first
examination after a criminal charge had been made.[1143] They also heard
ordinary police-court charges, such as those of vagrancy or nocturnal
disturbance of the peace,[1144] and they exercised police duties in the
town, such as that of preserving order in the streets.[1145] When acting
as magistrates who could give a final judgment, their dealings seem to
have been with slaves and foreigners. There is no evidence that they
possessed any right of sentencing citizens or any higher jurisdiction
which would bring them into contact with the people.
(_b_) The triumvirate of the masters of the mint (_IIIviri
monetales_),[1146] originally an occasional, first becomes a standing
office about the time of the social war.[1147]
(_c_) Six sanitary commissioners, acting probably as subordinates to
the aediles and bearing the titles _IVviri viis in urbe purgandis_ (or
_viarum curandarum_), _IIviri viis extra propiusve urbem Romam passus
mille purgandis_, are first mentioned in Caesar’s Municipal Law (45
B.C.). The first looked to the cleansing of the streets within Rome, the
second perhaps of those within the radius of a mile from the walls.[1148]
(_d_) The _Xviri stlitibus judicandis_ have a strange history; for, from
being simple _judices_, they become minor magistrates of the people.
They are doubtless the decemvirs who were rendered sacrosanct by the
Valerio-Horatian laws of 449 B.C.,[1149] the reason for this protection
being that they were the jurors who decided in cases of freedom,
that ultimate plebeian right which, as the story of Verginia shows,
might sometimes be assailed. By Cicero’s time they are still judges
in _liberales causae_, but they have risen to the rank of independent
magistrates.[1150]
(_e_) The _IIIIviri praefecti Capuam Cumas_[1151] were the elected
delegates who represented the jurisdiction of the praetor in the
_municipia_ and colonies of the Campanian district. Their functions may
be more appropriately discussed when we are dealing with the organisation
of Italy.
Certain judicial and military posts were also filled by popular election.
The paucity of criminal judges at Rome after the institution of the
_quaestiones perpetuae_[1152] led to the appointment of an annual
president of the chief court which tried ordinary crimes—that, namely,
which dealt with murder and kindred offences (_quaestio de sicariis_).
The magisterial position of these _judices quaestionis_ is shown both by
the fixed qualification—it is generally, perhaps always, an ex-aedile
that is appointed[1153]—and by the fact that, like the magistrate who
takes the oath _in leges_,[1154] these _judices_ swear to observe the
special law which they are administering.[1155] They were probably
elected by the people in the _comitia tributa_.[1156]
Subordinate military posts were also in the people’s gift, and we have
already noticed how the tribunate of the legions became in part a
quasi-magistracy.[1157] In the year 311 B.C. the appointment of consular
delegates for the command and maintenance of the fleet was also entrusted
to the tribes.[1158] These _IIviri navales_ were not annual officials,
but, in obedience to the occasional character of the Roman fleet, came
into existence when a war required its creation. The office seems to have
become extinct by the second century B.C.
More occasional still was the creation by the _comitia tributa_, in later
times occasionally by the _concilium plebis_,[1159] of minor magistrates
with extraordinary functions. Such were the officials for conducting a
colony (_coloniae deducendae_) for the assignment of land (_agris dandis
assignandis_), or for the dedication of a temple (_aedi dedicandae_). To
this category belong the occasional _curatores_ for the corn-supply and
the roads (_annonae_, _viarum_).