Chapter IV · THE MAGISTRACY (continued 2)

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).