THE ORGANISATION AND GOVERNMENT OF THE PROVINCES
When Rome had asserted her supremacy over the greater part of Sicily
at the close of the first Punic war, a new problem in organisation was
presented to her. She held, perhaps rightly, that these new dependencies,
with their transmarine position, fickle politics, and in some cases
Carthaginian sympathies, could not safely be included in the military
symmachy of Italy; so she substituted tribute for military service,
placed the command of the cities of a wide district under the guidance
of the personal _imperium_, and created the first permanent external
department of administration (_provincia_). The government which had been
adopted for Hellenic cities was still more necessary for the barbarians
of Spain, a country which Rome had not sought but which military
exigencies alone warned her not to leave. The recognition of Empire
in the West was rapid and easy, for the effective government of Italy
seemed to involve the control of the Tyrrhenian Sea. The Senate showed
greater hesitancy in accepting a similar Adriatic policy, and declined
to recognise that Rome had permanent interests even in eastern Europe
of a magnitude that should lead to Empire. War followed war, Greece was
once and Macedon twice at her feet, but on every occasion she declined
to annex. It was not until experience had proved the costliness and the
danger of a protectorate that in 146 B.C. Macedonia was recognised as
a province with Achaea as its annexe. The troublesome relations with
Carthage had meanwhile ended in war and annexation, and what had hitherto
been rather a distant problem—Rome’s relations with the potentates of
Asia—became, as the years rolled on and as Roman trade struck deeper
roots in the East, one of paramount concern. The history of eastern
Europe was repeated in Asia, and although Rome had already a foothold
in Anatolia through her acceptance of the kingdom of Pergamus, the
death-blow to the protectorate system in these regions was first struck
by Pompeius’ organisation of the East at the close of the Mithridatic
wars (65-63). Further extensions in the West and North, which resulted in
the conquest of further Spain and of Gaul, were due to the enterprise of
individual commanders, or to the search for a frontier which should be a
permanent protection against barbarian invasion; and at the close of the
Republic the list of Roman provinces had risen to fifteen.[1487]
The idea of a province was that of an aggregate of states (_civitates_);
where Greek or Phoenician civilisation had penetrated, these states
were cities, but sometimes, as in Gaul and Spain, they were cantons
or tribes. Natural political associations were usually chosen as the
units of government, although formidable combinations were broken up,
and the numerical regulation of the government centres in a province
was an integral part of its organisation. Thus the number of communal
unions was in Sicily 68,[1488] in Asia 44,[1489] and 64 in Transalpine
Gaul.[1490] Such aggregates probably include the free and federate
states, which, although geographically, were not juristically within the
province at all. The cities which were _liberae_ and those which were
_liberae et foederatae_ differed, sometimes perhaps in the degree, but
always in the basis, of their rights. The latter had the grant of their
rights embodied in a sworn treaty (_foedus_), which was the product in
the earlier Republic of Senate and people, in the later of either of
these powers,[1491]—a guarantee which was meant to be perpetual, and the
breach of which was either an act of war or its result. A charter (_lex
data_), on the other hand,[1492] which made a city only “free” might be
revoked at any moment. The rights common to both groups of states are
practically those of the Italian communes[1493]—a control of their own
finances, a free enjoyment of their land which exempted them from the
payment of tribute, and above all a use and enjoyment of their own native
law[1494]—and both agree in being entirely outside the sphere of the
governor’s jurisdiction.[1495] He could enter such a privileged city only
as a guest, and although for purposes of convenience great central cities
which were free, as Antioch in Syria and Thessalonica in Macedonia, were,
from their position as natural capitals, chosen as the residence of the
governor, he merely exercised jurisdiction in these towns, not over their
citizens. More distant still from provincial rule were the allied kings
(_reges socii_) on the frontiers. Their independence was less conditioned
than that of the free and allied cities, for they were bound to furnish
less definite assistance to Rome in time of need, and their foreign
activity was not wholly destroyed. But the chief reason why in a list of
Rome’s friends they appear in a separate category[1496] is that a treaty
with a king was not, like one with a Republic, regarded as eternal. It
was a personal obligation, and its perpetual validity depended on its
renewal with each successive occupant of the throne.
States which belonged to neither of these categories were subject or,
as the phrase ran, tributary (_stipendiariae_), the test of subjection
being the normal one in the ancient world of the payment of a tax to
a superior. Yet these too had their rights and their charter. The
guarantee, however, was no longer individual but collective, and was
contained in the law of the province (_lex provinciae_). This law was
usually the work of the conquering general himself, assisted by ten
senatorial commissioners (_decem legati_) appointed by the Senate,
and it continued to bear the name of its chief creator, as we see in
the cases of the _lex Rupilia_ of Sicily,[1497] the _lex Aemilia_ of
Macedonia,[1498] and the _lex Pompeia_ of Bithynia.[1499] While it
re-established the states of a conquered district, it also gave them
certain ultimate rights. It defined the burden of the tribute, specified
the particular circuit-courts which the citizens of the various towns
were to attend, and framed regulations, which the governor was expected
to observe, about national and international jurisdiction. But these
regulations, slight and general as they were, are no sufficient test of
the amount of autonomy, in administration and jurisdiction, actually
enjoyed by the subject towns. Much of their independence was permissive
and based on the will of the governor. But the ruler, whether honest or
dishonest, was practically bound to grant it, for the Roman government
had provided him with no staff which could take over the minuter duties
of administration; if he was an enlightened man, he cherished the fiction
that the states were free;[1500] if unenlightened, he at least knew that
by permitting self-government he was saving himself trouble. In the case
of the eastern cities the neglect of the governor was almost as great an
evil as his exactions.[1501]
The theory of Roman taxation was in origin that it was a war indemnity.
This accounts for the fact that in the early days of Rome’s dealings
with conquered peoples a tax might be imposed even on nations which
were declared free,[1502] and for the name _stipendium_ (“payment for
the army”) which was borne by the direct taxation imposed by Roman
commissioners on provincials.[1503] This equitable theory, that the taxes
collected should merely defray the expenses of the military occupation
and administration of a province, seems to have been realised in practice
where the Roman government took the trouble to organise a system of its
own. The Macedonians were made to pay but half of what they had paid to
their kings,[1504] the Spanish provinces must have cost more than they
brought in, and in Cicero’s time it was only the Asiatic provinces,
where taxes were imposed on quite a different system, that yielded a
surplus.[1505] It was this system, which the Romans found existing in
Sicily, Sardinia, and Asia, and with their characteristic negligence
elected to preserve, which changed the whole theory of Roman taxation.
The principle was that of the payment by the cultivator (_arator_) of
a tithe (_decuma_) of the produce of his land. It was inevitable that
the Roman lawyer should associate this due with the _vectigal_ paid by
the occupants of _ager publicus_, and should evolve from the comparison
the strange theory that land in the provinces was not owned but merely
“possessed” by its holders.[1506] The chief practical consequences of the
tithe system were a surplus to the treasury, and the exactions of the
middlemen (_publicani_) through the indirect system of collection which
it involved.
The direct tax (_stipendium_) was collected by a tribute assessed either
on the land (_tributum soli_) or on the personalty of individuals
(_tributum capitis_).[1507] The Romans of the Republic seem never to
have attempted to form an accurate estimate of the resources furnished
by the land and personal wealth of a province; doubtless in Hellenised
districts they employed the systems which they found existing, such as
the schedules which formed the bases of the εἰσφοραί: in Spain amongst
other rough expedients they seem to have adopted a valuation tax on a
proportion of the produce of the soil;[1508] while elsewhere, as in
Macedonia,[1509] they fixed a total on the existing basis of collection.
The direct tax was usually collected by the communes themselves and paid
to the governor’s quaestor.
The tithe (_decuma_) was collected on the contract system, and the
difference in its mode of collection in the _vectigales provinciae_
depended on whether the site of the auction was in the province itself,
where local companies or even communities[1510] could compete for its
collection, or whether the tithes of the whole province must be put up
to auction in Rome, in which case the province was likely to become the
prey of a single Roman company. In Sicily the first system was adopted in
accordance with the principles laid down by Hiero, its last great king
(_lex Hieronica_);[1511] the second system was devised by C. Gracchus
for Asia and was doubtless extended to eastern provinces subsequently
organised such as Cilicia.[1512] The pretext for the change was no doubt
the incapacity of the Asiatic cities to collect their own dues,[1513] and
was welcome to the weakness of the states, which liked to have near them
a body of Roman capitalists from whom they could borrow in emergency; but
it created a pernicious connexion between capitalism and administration
which made the government of the Asiatic dependencies the gloomiest scene
of Roman rule. The tithe system in Asia, and perhaps in other provinces
where it prevailed, was abolished by Caesar in 48 B.C.[1514] The harbour
and frontier dues (_portoria_), the source of revenue next in value to
the direct tribute or the tithe, were collected by private companies
(_portitores_) perhaps throughout the whole imperial world, as they
had been from the earliest times in Italy.[1515] Other dues demanded
from the province were paid for by the Roman government. Such were the
corn supplied for the praetor and his retinue (_frumentum in cellam_ or
_frumentum aestimatum_),[1516] and the second _decuma_ sometimes required
by the state (_frumentum emptum_) and raised by command of the Senate
and people.[1517] In both these cases a reasonable price was fixed by the
Roman government.
We pass now to the governor and his staff. The early institution
of praetors and the later use of the pro-magistracy for provincial
government have already been described.[1518] But we have seen that even
Sulla did not formally dissociate the consulship and praetorship from
provincial rule.[1519] The consequences of this continued association
were curious. By a law of C. Gracchus, which aimed at destroying one
of the most valuable pieces of patronage which the Senate had at its
disposal, the consular provinces must be assigned before the election
of their holders.[1520] They are strictly consular, and are technically
entered on by their possessors on March 1 of their year of office,
although no definite agreement need be come to as to their partition
until the following December[1521]—the earliest date at which the consuls
of the later Republic could quit their urban duties. March 1 was the
beginning of the military and provincial year, as since 152 B.C. January
1 had been of the year of civil office at Rome. The reason why the 1st of
March of the year of office at Rome was chosen, and not the same date in
the following year, was that the pro-magistracy was not yet recognised as
a separate office, and that, if this second solution had been adopted,
the interval between December 29 and March 1 would have caused a break
in the _imperium_.[1522] The anomaly resulted that a provincial governor
held his command only for two months in his own right, and for ten months
while waiting for his successor. It was harmless in practice, inasmuch as
Sulla’s law had ordained that the governor should retain his _imperium_
until he returned to Rome, and need only quit his province thirty days
after the arrival of his successor,[1523] and was only accidentally
disastrous as leading to the quarrel between Caesar and the Senate, and
thence to the downfall of the Roman Republic. The pro-magistracy was
first raised into a separate office by a Pompeian law of 52 B.C., which
enacted that governors should seek their provinces five years after
holding office at Rome. It was a law that, by diminishing the nearness
of the prize, was intended to make the consulship and praetorship less
an object of illegitimate ambition at Rome. It might, therefore, have
conferred a slight indirect benefit on the provincials, but the speedy
collapse of the Republican government prevented its adequacy being
tested. The tenure of a provincial governorship was nominally annual,
but, even after Sulla had raised the number of praetors to eight, there
were but ten magistrates available for fifteen provinces, and we know of
three propraetors—Verres in Sicily, Q. Cicero in Asia, and Fonteius in
Narbonese Gaul—who severally held their provincial commands for three
years in succession.
The chief members of the governor’s staff were one subordinate
magistrate, the quaestor, and certain senatorial commissioners
(_legati_), one of whom was usually assigned to a praetorian, and three
to a consular province. The magisterial position of the quaestor did
not entitle him to an independent sphere of duties. It is true that he
was, in the main, a financial official, was entrusted by the Senate
with money or a credit for meeting the expenses of the administration
of his province,[1524] received the revenues from the _stipendium_, and
had at the end of the year to give an account of income and expenditure
in his own name and that of his superior;[1525] but even here the
real responsibility was incurred by the governor, whose commands were
irresistible, and in all other respects the quaestor is the merest
delegate, who exercises jurisdiction, or any kind of administrative
work, in obedience to a voice that was supposed to convey a paternal
authority.[1526] He might even, like the legates, be dismissed for
incompetence or maladministration before the term of his office had
expired.[1527] The _legati_ had originally been representatives of
the government in Rome, but, to avoid friction, the custom grew up of
allowing governors to suggest individuals for the post.[1528] Yet to
the end of the Republic their names were submitted to the Senate, and
they were supposed to be subordinate officials of the state. No special
departments were, however, assigned them; any power which they exercised
was delegated by the governor, whether it took the form of the command
of a legion or the presidency of a court. A still more independent
selection was made of the unofficial members of the staff. The “comrades”
(_comites_) of the governor were young men, whom he initiated in the
mysteries of official and diplomatic life, and whose services he employed
for any purpose for which they seemed competent.[1529] But, however many
instruments the governor might use, there was such a complete unity of
responsibility that, in dealing with the administration of a province, we
are treating of the powers of a single man.
These powers were exercised chiefly in three spheres—military,
administrative, and judicial. In a province that seethed with war the
summer months were spent in camp, the winter in more peaceful duties;
but in a settled district the governor could map out his circuits as he
pleased, and devote some time to the ungenial task of inspecting the
affairs of the municipalities under his control. Apart from the necessary
diplomatic intercourse with neighbouring potentates or protected chiefs,
the amount of administrative work which the governor undertook was as
much or as little as he pleased. Its quantity depended on his view as to
how far self-government was a symptom of health or of disease. That it
sometimes had the latter character is shown by the startling discovery
made by Cicero when he undertook an unexpected investigation into the
financial affairs of his subject states. He found that the native Greek
magistrates of Cilicia had been plundering their respective treasuries
for the last ten years.[1530] But the possibility of such a discovery
is itself a testimony to the best aspect of provincial rule in the
Republic—its noble but sometimes misguided belief in the capacity of
people to govern themselves.
There was, however, one systematic function to which most of the
governor’s energies were directed in time of peace, and that was
jurisdiction, both civil and criminal. General regulations concerning
jurisdiction were made in the charters of the provinces; but these could
not be the same for every country, since the judicial machinery of some
groups of states was far more perfect than that of others. Sicily, the
only province the details of whose _lex_ are known, was peculiarly
favoured, and its privileges may be taken as the best type of those
offered by Rome. It was ordained that, in a suit between two citizens
of the same state, the trial should be held in that state and according
to its laws,[1531] a regulation which certainly guaranteed the native
_judex_ and the native code, but which did not, perhaps, inhibit an
appeal to the governor or take away his right of interpreting the law.
The charter then provides for cases of inter-political jurisdiction.
If a Sicilian of one state sues a Sicilian of another, the governor is
to provide by lot the _judex_ or _judices_,[1532] who are perhaps in
this case to be Roman citizens.[1533] When litigation arises between
an individual and a community not his own, the Senate of some third
state should be the judge, when either litigant has challenged one
of three senatorial bodies proposed.[1534] In suits between Roman
citizens and Sicilians the _judex_ was to be of the nationality of the
defendant.[1535] In all other matters _judices_ chosen by the magistrate
(_selecti_) were to be appointed from the Roman citizens dwelling within
the assize.[1536]
In Sicily it is clear that the _peregrinus judex_ was a standing
institution. Elsewhere, even in the Hellenised East, his existence was
more dependent on the grace of the governor. Cicero, in his government of
Cilicia, following the precedent of Mucius Scaevola, the ideal governor
of Asia, allowed the greatest freedom to the native laws, courts, and
judges, and remarks on the quickened life which their use inspired in
the provincials.[1537] The attempt, indeed, to substitute her own for
the native law was abhorrent to the political sense of Rome, and her
most ambitious representatives never attempted to make their edicts
into codes. The importance of the edict was chiefly felt in matters of
private international law, administrative jurisdiction, and procedure.
It stated principles which should regulate the relations between members
of different states or between provincials and Romans, it issued rules
for the settlement of claims made by the _publicani_, and it supplemented
the law of the province by framing regulations for the conduct of private
suits. The edict of each province was a separate entity, and drew its
name from the country to which it directly applied,[1538] and it had
a continuous existence, although the unity and continuity of its life
depended too much on the discretion of the individual governor.[1539] The
edict might be composed at Rome,[1540] and its author might copy from
more than one original. The rulings of his predecessor would doubtless
be well known; there were the edicts of other provinces, the work of
famous administrators of the past;[1541] and, as a fruitful source of
general rules of procedure, there was the _edictum perpetuum_ of the
capital In Cicero’s own edict, of which he furnishes a brief description,
the principles regulating business and trading relations (especially
as existing between Roman companies and provincials) were clearly and
fully set forth. As much attention was devoted to the general rules of
inheritance and bankruptcy, such as had been evolved by the _imperium_ at
Rome, and which were doubtless meant not to supersede the customs of the
various communities, but to be a common law for the province as a whole.
But much remained that could not be formulated. A province had boundless
surprises in store, and Cicero found it wiser to leave the third part
of his edict “unwritten.” The principles of the urban praetor were to
be drawn upon as occasion required.[1542] The civil jurisdiction of the
governor, which was based on the edict, was either personal or delegated,
and in both cases required the visitation of circuits (_conventus_,
διοικήσεις),[1543] into which the province had been divided at the time
of its organisation. A programme of the assize was drawn up, the stay in
each circuit was accurately determined,[1544] and the governor held a
court (_forum egit_) in each of them in turn.[1545]
Delegated jurisdiction was performed usually by the quaestor and the
legates; in both cases it was due to the mandate of the governor,[1546]
who could assign them lictors, if he pleased,[1547] and could always
control their sentences.[1548]
The governor possessed an unfettered criminal jurisdiction over the
members of the stipendiary states; but it cannot be supposed that
he often exercised it. He might summon any case into his court, but
ordinary crimes he doubtless left to the judicial machinery of the states
themselves.[1549] On the other hand, it was held that an offence might
be of such import as to transcend even his competence; and although
there was no legal means of escaping his jurisdiction, it was considered
advisable that he should send cases of a grave political character—those,
for instance, connected with sedition or a popular rising—to be tried at
Rome.[1550] The only restraining influence on the governor’s jurisdiction
was the necessity, imposed by custom, of consulting a council of
advisers.[1551] This _consilium_, however, was purely Roman, being
composed of Roman citizens residing in the _conventus_ and of members of
the governor’s retinue,[1552] and although a council composed wholly of
the latter was usually avoided, there was no legal hindrance to such a
narrow selection.[1553]
Over Roman citizens in the provinces the governor possessed the same
autocratic power; for his jurisdiction here is on a level with that of
the camp, and he gives judgment in a sphere to which the _provocatio_
does not extend.[1554] Yet a strong customary law, which was seldom
disobeyed, directed that he should remit to Rome all cases in which
Roman citizens were to be tried on a capital charge, and that, if he
pronounced judgment himself, he should inflict on them no degrading
punishments.[1555]
Almost every item in the provincial organisation that we have sketched
shows where its inherent weakness lay. It resided in the uncontrolled
power of the governor. Yet it was a weakness more apparent in practice
than in theory. There were many controlling forces at work which the
organiser and the government hoped would be effective. There were the
charters of cities and of provinces, and in the province a constant, if
improvised, committee of the Senate, which the governor was supposed
to consult before he ventured on any important step.[1556] There was
an unparalleled amount of legislation intended for the protection of
provincials and expressed in enactments dealing with the ordering of the
provinces, the rights of magistrates, and with extortion (_de provinciis
ordinandis_, _de jure magistratuum_, _repetundarum_); and, lastly,
there was the criminal responsibility supposed to be enforced by the
courts which carried out these laws. Some of these checks—the charters
of the favoured cities, the senatorial commission—were real, but were
not far-reaching enough seriously to affect the form of provincial
rule. Those of the laws were almost nugatory, for though the government
that proposed them had a collective conscience, its individual members
who were bound by them had none, and the courts that were supposed to
enforce these laws became the prey of party strife and the weapon of
party fanatics. But a government that depends on protective legislation
and the enforcement of criminal responsibility must be in a perilous
state. The defect must be in the principle of rule, not merely in
its working. And in truth the Republican theory of provincial rule
represents a fundamental inconsistency of idea. The theory aimed at the
impossible combination of martial law with municipal independence. Had
the rights of all the states been provided with better safeguards, their
self-government might have been more real, and the autocracy of the
governor might have been proportionately checked. But this solution would
have been an offence to the idea of the unlimited _imperium_, a clinging
superstition which the Romans had inherited from the history of their own
state and her days of conquest. The Roman Empire had been developed from
a protectorate; it bears to the end of the Republican period the traces
of its origin, and, in its lack of organisation, conveys the suggestion
of being a merely provisional government. The merits of such system as
there was cannot be ignored. The unrestricted _imperium_ was necessary
in time of war and, under a benevolent despot, might be useful even in
days of peace, while the very absence of organisation betrays the noble
belief that the aggregate of states which formed a province was rather
a confederated suzerainty than an integral part of an empire. But its
defects are more glaring and are to be found in the absence of some
central authority at home, not interested in provincial misrule, which
might enforce responsibility on governors; in the existence of annual
commands, and the exaggeration of routine which rendered extraordinary
appointments, such as that of Pompeius, inevitable; and in the lack of
an organised civil service, which, with its mechanical routine and its
self-evolved rules, is perhaps the surest of all checks on autocracy.