Chapter IV · THE MAGISTRACY

§ 1. General Characteristics of the Magistracy

The collective powers of the magistrate had, as we saw, been summed up in the word imperium; they had, perhaps, also been expressed by the vaguer term potestas. When, in course of time, magistracies were created which did not possess the imperium, potestas was necessarily the only word which expressed the generic power of the magistracy; imperium became a special species of this power. Thus one could speak of the consulare imperium or of the consularis potestas, but only of the tribunicia potestas.[614]

It is difficult to treat collectively of the special manifestations of this authority; for the magistracies were graduated by differences of power. To avoid confusion and repetition it will be best, in this general sketch, to give a complete list of magisterial powers, and to point out in each case where they are accorded to, or withheld from, the particular occupants of office. Magisterial powers may be divided into (i.) administrative, (ii.) those exercised in connexion with the people, (iii.) those exercised in connexion with the Senate; and (iv.) certain general powers which underlie all these spheres of activity—the right of interpreting the will of the gods through auspices, and the right of enforcing decrees.

(i.) Administrative powers.—The sphere of administrative activity had from the first days of the Republic been divided into the two departments of command at home (domi) and abroad (militiae), the dividing line between the two being sometimes the pomerium, sometimes the limit marked by the first milestone outside the city.[615]

The home administration can be adequately considered only when we deal with the separate magistracies. But the common form in which it asserted itself may be considered here. This was the right of issuing commands in the form of edicts (jus edicendi), applicable to the special branches of administration under the control of the magistrates, from the quaestor to the consul.[616] The edicts of all the magistrates corresponded to one another in their general form; they contained commands, prohibitions, and advice. They were all at an early period issued in writing, and the difference between them was simply that while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous (perpetua), as being called forth by ever-present necessities, and were therefore transmitted by magistrates to their successors (tralaticia). Prominent in their continuity were those of the censors and praetors; while the one created a code of Roman morality, the other developed a system of legal procedure.

The administrative duties abroad belonged exclusively to the magistrates with imperium, i.e. in the ordinary course of things to the consuls and praetors, in exceptional circumstances to the dictator.[617] The treatment of provincial administration may be deferred until we deal with the provinces and the pro-magistracy which imperial government created. Here we may appropriately notice the exceptional powers which military command gave to the magistrate over the persons and services of the burgesses, and the honours which it conferred on its possessor.

The first right conferred by military command (imperium in the narrower sense[618]) was that of the formation of an army by enforced conscription (dilectus). It was exercised, however, only by the magistrate in supreme command, that is, by the consuls or the dictator, not by the praetor. It was a purely magisterial right, and in the levy of the regular consular army of four legions the consuls were probably independent of any guidance. Custom eventually dictated that, when exceptional forces were needed, the permission for the raising of these should come from the Senate.[619] Within this permission the consuls acted at their own discretion. They summoned all the juniores to meet them, formerly on the Capitol, later in the Campus Martius; and under their inspection the military tribunes selected whom they would and bound the conscripts to obedience by a military oath (sacramentum).[620] Although this oath was in form one of personal allegiance to special commanders, was tendered to both colleagues[621] and had to be renewed with every change of command,[622] its primary import was to give the soldier the right of using weapons against enemies, and to change what would have been acts of mere brigandage (latrocinium) into those of legitimate service (legitima militia).[623] A secondary association with the oath may in early times have been that he who broke it was sacer, and that the vengeance of the gods could be satisfied by summary execution inflicted by the general on the offender.[624] The power of inflicting capital punishment for military offences did not, however, need this religious sanction; it was a consequence of the coercitio of the imperator, when outside the sphere of the provocatio[625] and unchecked by the veto of a colleague.[626] A further right preliminary to the conduct of war was the nomination of the officers of the army—the military tribunes, centurions, decurions, and commanders of every branch. Appointment to all these posts, from the highest to the lowest, was originally in the hands of the consuls; but the tendency of the Republic was to remove selection to the higher military commands from the discretion of the magistrate. In 362 B.C. the creation of six of the military tribunes of the standing army of four legions was transferred to the people in the comitia tributa;[627] by the year 207 all of the twenty-four had been thus elected,[628] and the standing military tribunate had become one of the regular minor magistracies of the state.[629] The tribunes for other legions that might be raised were still nominated by the consuls,[630] and sometimes the people gave up its right of election in their favour.[631] In raising supplies most magistrates were dependent on the Senate; but the consul’s original control of the aerarium survived in the right he possessed of ordering the quaestor to pay him any money he required for military expenses.[632]

When the preparations for war were completed and the consuls took the field, their discretionary authority in the conduct of the campaign, in finance and in jurisdiction, was almost absolute. The first power was hampered only by the condition that they could not wage war against a state which stood in any degree of alliance with Rome without the consent of the people; the second received some slight limitation from the appointment of military quaestors in 421;[633] the third was theoretically unlimited throughout the whole history of the Republic, but received some slight modification from the growing sense of the sanctity of the life of a Roman citizen, which made the generals during the last century of the Republic more chary of pronouncing capital sentences upon their officers and soldiers.[634] It is important to remember that this absolute jurisdiction militiae was not in the least confined to the army; every Roman citizen within the sphere of the general’s administration, and every provincial, when these spheres had developed into standing provinces, were equally subjected to martial law.[635] The provincial in fact was often in better case than the Roman sojourning in the provinces. He could sometimes appeal to the liberties granted to his town by charter; but the Roman found that his palladia—the provocatio and the intercessio—had vanished in this sphere.[636]

A victory over the foe gave the general the right to claim two further privileges—the one a titular designation, the other a popular manifestation of success—which were strictly regulated by constitutional law. Every holder of the imperium was necessarily an imperator; but from a very early period of the Republic it was considered improper for the possessor of the very limited imperium within the walls to use this title. It was reserved for the general in command of an army; imperator is both the official and the familiar title by which he was addressed by his soldiers. But, even under these circumstances, it was not employed by the general himself as a part of his official designation. For this a victory was requisite; the soldiers after the battle proclaimed him conqueror by shouting the familiar name; from this time he was supposed to have it impressed on him in a peculiar manner and could bear it in his list of titles.[637] Custom decreed that the honour should be assumed only in consequence of a great and decisive victory;[638] but the ambition and rivalry of provincial governors finally caused the most trifling successes to be commemorated in this way.

The salutation was the usual preliminary to a triumph—the solemn procession of the general through the city to the Capitol at the head of his victorious army. As the title imperator could be conferred only on a commander-in-chief, and was inconsistent with delegated authority, the triumph was necessarily confined to the magistrates with the capacity for supreme command—the dictator, consul and praetor,[639] and to the one of these who at the moment of victory was in highest authority. Thus the dictator usually excluded the consul,[640] the consul the praetor; and when two consuls were in command, the right resided with the one who had the imperium and the auspicia on the day of the victory.[641] The same rule held when the honour was granted to pro-magistrates; here too independent command was the necessary condition of a triumph.

Other qualifications were fixed by custom. The return of the victorious army was originally necessary—a rule which rendered the most deserving general, who had handed over his forces to a successor, incapable of triumphing,[642] and which, with the growth of standing armies, had to be abandoned for the rule that the province must be reduced to a state of peace (provincia pacata).[643] The war must be a justum bellum, not the mere crushing a revolt of citizens or slaves;[644] and finally, the custom was fixed that it must be a war, the magnitude of which was attested by the fall of 5000 foes.[645]

The right to triumph was one entirely at the discretion of the general; and as long as he chose the Alban Mount as the scene of his military pageant, no power could hinder him.[646] It was only when he wished to enter the city of Rome for the more imposing procession to the Capitol that he found difficulties in his way. The triumph implied the display of the full military imperium within the city;[647] and, though instances are not lacking of magistrates who on their own responsibility successfully asserted this right,[648] the custom became fixed that permission for this display should be accorded by the state. Originally it may have been granted by the people,[649] but the permission for the exercise of the full imperium for the single day soon required the consent of the Senate, all the more necessary as its control of finance enabled it to grant or refuse the money which paid the expenses of the triumph.[650] The case was otherwise with the pro-magistrate. The proconsul had only the imperium militiae, and none within the walls, and it was impossible, therefore, for the Senate to recognise the display of a power which did not exist. In this case a special dispensation from the laws was necessary, which could originally be granted only by the people. The Senate took the initiative by asking the tribunes to introduce a plebiscitum sanctioning the arrangement.[651] The continuity of the imperium from magistracy to pro-magistracy was originally a condition of the triumph. Thus it was refused to the elder Scipio Africanus who had been elected proconsul without having exercised any previous imperium.[652] By the close of the Republic both these scruples had been set aside. The triumph was decreed to proconsuls by the Senate, and without regard to their having held any previous imperium.[653]

(ii.) Powers exercised in connexion with the people.—The dealings which the magistrate had with the assembled people were of two kinds; he might summon them for the purpose of imparting information: in this case the meeting was called a contio;[654] or he might convene them for the purpose of passing decrees binding on the community: such an assembly assumed one of the various forms of the comitia. The first power (contionem habere) was often preliminary to the exercise of the second (cum populo agere); for a contio or a series of contiones generally preceded the formal meetings of the assemblies at which laws or plebiscita were passed,[655] and was in fact an indispensable preliminary, since, in the case of legislation, it was the chief opportunity for recommendations or criticisms of a bill, and, in the case of popular jurisdiction, was the only means by which the people could form an estimate of the evidence. The magisterial contio was, in fact, the great vehicle for constitutional agitation and, as such, the most democratic institution in Rome.

But the use of the contio was not confined to the preliminaries of legislation. It was the form in which the people were summoned to witness any public act,[656] and to listen to the magistrate’s commands when these were expressed in the form of verbal edicts.[657] The essential feature of such an assembly was that the people were invited to meet a magistrate and to listen to his views; the masses were mere auditors; and the fact that this was no chance gathering was further emphasised by the solemnity of the proceedings—the formal summons, the opening prayer,[658] and the elevation of the magistrate on the tribunal. We cannot say with certainty how far this right of holding a contio extended. It was certainly possessed by the consuls, praetors, censors, and tribunes, and probably by all the magistrates down to the quaestor.[659] The conflict of magisterial authority was felt here as in other departments, and the higher magistrate could summon to himself the contio convoked by an inferior.[660]

The Roman constitution recognised no right of public meeting; a gathering of the citizens by a citizen might be treated as a breach of the peace, or might be summarily visited by the coercitio of a magistrate. But the increase of the magistrates, and the corresponding divergence of their views, supplied a partial substitute for this popular self-repression. It was open to any magistrate to introduce a citizen to the contio, and give him a right to speak (producere in contionem, dare contionem);[661] it was equally open to a colleague or superior to veto this permission;[662] but custom must have made such a use of the intercessio very infrequent. The right of granting a contio gave a limited power of debate on legislative matters to distinguished private individuals; but this was not its only use. It was the sole means by which political leaders, who might happen to be in a private station—as Pompeius after his return from the East, or Cicero after his recall from exile—could express their views;[663] it was also a convenient mode in which a magistrate might justify a line of conduct. We find a foreign king and a public informer thus produced to influence the popular mind. The jus contionis dandae meant an increase in magisterial power, and was no true concession to democracy; the demagogue in opposition, who was not a magistrate or useful to a magistrate, had no opportunity of making his voice heard in Rome.

The right of eliciting binding resolutions from the people when assembled in their comitia (jus cum populo agendi) always remained an inherent attribute of the imperium; as such it belonged, under ordinary circumstances, to the consul and praetor; under exceptional conditions, to the dictator, interrex, and consular tribunes. It was also possessed by one at least of the occasional delegates of the highest magistrates, the master of the horse.[664] By these magistrates the comitia might be assembled in any form—by curies, by centuries, or by tribes. None of the lower magistrates possessed in their own right the power to summon and preside over the assembly; but the extension of the provocatio and the consequent growth of popular jurisdiction rendered it necessary that the lower magistrates with judicial powers should meet the people. Thus the curule aediles defended their sentences before the comitia tributa;[665] the delegates of the consular criminal jurisdiction, the quaestores parricidii, and duumviri perduellionis brought their judgments before the comitia of the centuries.[666] No plebeian magistrate had the jus agendi cum populo; hence when the tribune, in the exercise of his jurisdiction, wished to obey the command of the Twelve Tables, which confined the hearing of capital cases to the comitia of the centuries, he had to ask a patrician magistrate—in this case the praetor—to call a meeting for him by a given day (diem a praetore petere).[667] When the praetor had named a day (diem dixit) the tribune then appeared in the assembly as the accuser.[668]

The right of eliciting formal resolutions from the Plebs (jus cum plebe agendi) belonged exclusively to the plebeian magistrates. The tribunes alone had the presidency of the concilium, but here again the growth of popular jurisdiction rendered it necessary that the plebeian aediles should defend their sentences before the Plebs.[669]

(iii.) Powers exercised in connexion with the Senate.—The right of bringing matters before the Senate (jus cum patribus agendi, consulendi senatus, referendi ad senatum) is one that runs parallel to the right of transacting business with the Populus, and, as such, it is attributed by Cicero[670] to the same magistrates—to the consuls and praetors, the dictator, magister equitum, and interrex. It of necessity attached to the consular tribunes of early times, and was one of the attributes of the praefectus urbi.[671]

This right necessarily did not attach originally to the tribunes of the Plebs, for they were first the outcome of a revolution, and then for centuries the presidents of a corporation independent of the people. But, after the lex Hortensia had made the concilium plebis one of the legislative organs of the community, it would have been dangerous to senatorial government to deny the president of this assembly the right of consulting the Senate.[672] The admission of the tribunes into the circle of the magistrates with the jus consulendi was one of the conditions of the Senate’s permanent control over initiative in legislation.

(iv.) General powers: the auspicia and the coercitio.—We have now to consider certain magisterial powers which cannot be regarded as forming a separate department, since they are coextensive with the whole sphere of official authority. The first that we shall treat, the taking of the auspices, was as much a duty as a right. The observance of the auspicia publica is not merely an act that the magistrate may perform, but one that he must perform if his powers are to be duly exercised. The imperium and the auspicia are indissolubly connected;[673] they are the divine and human side of the same power, and every important act of human activity should be prefaced by an appeal for divine assistance. We have already explained that the only auspices which are properly connected with the magistracy were those known as impetrativa, and that the looking for these—the gift of spectio—was always a peculiar attribute of the patrician magistracy,[674] and was, therefore, not possessed by the tribunes and aediles of the Plebs. With respect to the other category of auspices—the oblativa—not only are all magistrates on a level with one another, but they are all below the level of the meanest citizen. The citizen, if he is a devout man, may suspend the business he has in hand, if an evil sign appears. The magistrate is bound to do so, if the sign is by common consent evil, or has been pronounced such by the college of pontiffs or by the Sibylline books. Roman theology recognised five categories of auspices; four of these belong to the class impetrativa, one to the class oblativa.[675] The latter, as being the simpler and the one common to all the magistrates, may be considered first.

(1) Dirae.—These were a heterogeneous collection of signs of ill omen. Anything that broke the silence (silentium)[676] when the auspices were being taken was of this character, such as the fall of anything in a temple (caducum auspicium),[677] or a sudden noise, such as the squeak of a mouse.[678] Such too was any sudden event that seemed to warn back from a course once taken—the flight of ravens towards the walker or round his head, and the stumbling of his foot on the threshold;[679] the struggle of birds in the air ending in the defeat of those that had flown from the direction of the general’s camp;[680] the seizing of the boundary stones of a newly laid-out city by wolves,[681] and countless others. A peculiarly dreadful omen was a fit of epilepsy, called, from its power of suspending the assemblies, morbus comitialis. Such signs, to be effective hindrances, must have an obvious connexion in time and place with the act they impede, and must, besides, be noticed by the agent. Hence a flash of lightning was the most effective of auspicia oblativa. Less potent signs could be ignored by veiling the senses. The augur, who is asked by the officiating magistrate if there is silence, does not look round him, but straightway answers “yes”;[682] in sacrifice flutes are blown to drown all other sounds,[683] and the general bent on fighting takes the precaution of travelling in a closed litter.[684] If another person forced the omen on the magistrate’s notice, he was bound to attend to it. This announcement (nuntiatio or obnuntiatio) we shall speak of elsewhere; it belongs to the history of the conflict between the authorities of the different magistrates.

The four other classes of omens belong to the category of auspicia impetrativa. These were—

(2) Signs from the flight of birds (signa ex avibus), the oldest form of augural discipline, as the very words augures and auspicium prove, and one that in the early Republic was used in all solemn acts of state, such as the summons of the comitia or the appointment of a dictator.[685]

(3) Closely akin to this was the augury from the motions and sounds of four-footed beasts (signa ex quadrupedibus); but by the close of the Republic these forms of divination, which required study and research, had given place to the two remaining classes, which were more easily interpreted, or more readily manipulated for political purposes. These were the coelestia auspicia and the auspicia ex tripudiis.[686]

(4) Chief of the heavenly signs (celestia auspicia), and the surest expression of Jupiter’s will, were thunder and lightning. Thunder seems sometimes to have been regarded as a wholly evil omen;[687] but the course taken by the lightning determined its significance—if on the watcher’s left, it was lucky; if on the right, unlucky.[688]

(5) The auspicia ex tripudiis were signs given by the feeding of tame birds (aves internuntii Jovis)—generally domestic fowls. If, while they ate, something fell from their mouths (tripudium solistimum), still more if the falling object made a ringing noise (sonivium), the sign was taken as an assent of the gods to the business in hand. This mode of augury was convenient for two reasons. It was always available; the birds could be taken about in cages under the custody of their keepers and interpreters of their acts, the pullarii. Hence it was the mode of augury specially favoured in the camp, and the sacred chickens were the invariable attendants of a Roman army. Again, the favourable sign might be so easily gained. The irate Roman admiral, who threw his chickens that would not eat into the sea, lacked the patience to wring the wished-for omen from them by protracted hunger, or by feeding them with porridge which they could not swallow with sufficient rapidity.[689]

The auspices were at first an accompaniment of the imperium; later, when they became an attribute of the whole patrician magistracy, their importance varied with the potestas of the magistrate. Officials with imperium were said to possess maxima auspicia, and the pro-magistrates were naturally included in this list, for the auspices were as necessary in war as in peace; those of the censors, on account of the importance of this office, were reckoned maxima, although the occasions on which they were taken were so unique that they were not brought into the same category as those of the consuls and praetors; those of the lower magistrates, aediles and quaestors, were called minora.[690] This was little more than a formal difference, had reference merely to the importance of the respective spheres of operation, for which observations were made, and did not determine the kinds of auspices that might be taken by each magistrate.

The occasions of the magistrate’s auspication embraced every public act of any importance. In three cases above all was it regarded as essential; these were the nomination of a magistrate, the holding of the comitia, and the departure of a general for war. The chief rule of observance was that the auspices must be taken on the same day and in the same place in which the act was to be performed. The fact that the Roman civil day (dies civilis) began at midnight[691] was convenient for procuring the requisite silentium; and sometimes, to prevent any flaw (vitium), the act itself was performed before daybreak. Thus the consul, when he nominates a dictator, “rises in the stillness of the night”[692] to do so. The ceremonial for all public auspication[693] was as follows. A sacred enclosure (templum) was marked out on the required spot—within or without the pomerium, according to the purpose in view—within which the magistrate pitched his tent (tabernaculum capere),[694] which had one side open for observation. After midnight he rose, and, seated on the floor, performed the rite. Its validity depended on his personal observation alone; but he might invite skilled assistants to his aid.[695] The consequence of inability to get a favourable omen was necessarily the non-performance of the contemplated act; the only course open was to wait for another day, and to seek the auspices over again (repetere auspicia).[696] If the act had been performed in spite of ill omens, or if subsequent reflection showed a flaw in the ceremonial, the act was said to be subject to a vitium which rendered it invalid; the law passed did not hold good, and the magistrate thus faultily elected (vitio creatus) had to resign his functions.[697] In the case of the election of the consuls being thus vitiated the consequences might be serious; for if the flaw was discovered after their entrance on office, a renewal of the auspices (renovatio auspiciorum)[698] could only be effected through an interregnum. It was in this connexion that the power of the augurs came into play, for they were the interpreters of the heaven-sent signs. It was no wonder that membership of the augural college was the highest ambition of the Roman statesman, when its decree could upset a law, stave off a capital charge, or force a consul to abdicate. It is true that the augurs could give their advice only on the request of a magistrate or of the Senate; but, as a measure or election not favoured by the government would readily be challenged in this way, the decision as to the future of the state often rested wholly with the college of augurs. Their power of interpretation extended to the far more frequent auspicia oblativa, and in reporting these even the initiative might, as we shall see, be taken by an augur.

Since the auspicia publica were personal signs vouchsafed to individuals, a collision between the auspices of colleagues engaged in the same business was not impossible. What the result of such a collision was in the case of magistrates engaged domi is unknown.[699] In the field the effective auspices were in the hands of the consul whose turn for command had come,[700] or, in case of joint command, in those of the higher magistrate; thus the auspices of the consul extinguished those of the praetor.[701] In the later Republic the difficulty scarcely existed, as joint command of two magistrates with imperium became very infrequent, and the proconsul or propraetor took the auspices alone.

The auspices were the mode in which the god’s will was revealed to the magistrate. The other universal power—the coercitio—was the mode in which the magistrate’s will was forced on man. It was the method in which he compelled obedience to his commands, or secured the performance of state obligations which it was his duty to enforce. It was, therefore, in touch with criminal jurisdiction, but differed from it in two ways. Firstly, coercitio was not directed to the enforcement of the permanent obligations of man to his fellow man, which is the object of the criminal law, but rather to the repression of exceptional acts directed against the state as a whole; and secondly, the means of coercitio actually available could be employed by the magistrate on his own responsibility, while the power of jurisdiction he shared with the people. This second difference, however, was unknown to constitutional theory. The magistrate might avail himself of any means of coercion against a harmful or disobedient citizen—he might employ fines, bonds, and scourging;[702] but the fine, beyond a certain limit, and the scourging gave rise to the provocatio; in this case magisterial coercion led on to jurisdiction.

The objects of magisterial coercitio were by no means always private citizens. It could be directed against senators and judices, and could be exercised by any superior over any inferior magistrate, to compel his respect or to force him to a performance of his duties.

The severest mode of coercion—the infliction of the death penalty—was, as we saw, originally inherent in the imperium, but was rendered impossible by two Valerian laws of 509 and 449 B.C.[703] A third lex Valeria of 300 B.C. prohibited the execution or scourging of one who had appealed; but the weakness of former enactments was repeated in this law; it declared the magistrate’s contravention of it to be improbe factum.[704] An effective sanction seems first to have been supplied by one of the three Porcian laws;[705] certainly at the end of the Republic a violation of the provocatio entailed a capital penalty on the magistrate.

With respect to the capital jurisdiction of the tribunes, we have seen how their tacit recognition of the appeal gave rise to this jurisdiction.[706] But in theory the coercion of the tribune, when used in defence of the sanctity of his own person, was not subject to appeal.[707] Here the old religious penalties remained in force, and a period as late as the year 131 B.C. witnessed the spectacle of a tribune dragging a censor, who had degraded him, to the Tarpeian rock with intent to hurl him down—a fate from which he was saved only by the veto of the tribune’s colleagues.[708]

Scourging, which is found in the early Republic as a punishment employed in the military levy,[709] was practically abolished as a mode of coercitio by the third lex Valeria of 300 B.C.[710] and the leges Porciae, which submitted the threat of such punishment to appeal, the latter laws imposing a heavy penalty on the magistrate who inflicted it.

Imprisonment (abductio in carcerem, in vincula), although not recognised as a penalty in Roman law, plays a double part in the coercitio. It was one of the modes by which the magistrates defended their dignity and secured obedience, not merely from private citizens, but from lower magistrates and senators; and it was adopted as a precautionary measure to secure the appearance on trial of one whom they accused. The use of this severe measure against magistrates by any power but the tribunate is rare;[711] but it plays a great part in the tribunician annals, and the temporary imprisonment of a consul became a familiar feature of party strife during the closing years of the Republic.[712] It was a summary method of silencing the opposition of a too zealous optimate, and the veto of the tribune’s colleague was the only means of releasing the head of the state.[713] Preventive imprisonment for the purpose of securing the appearance of an accused at trial was rare at Rome. The custom of giving sureties or bail (vades, vadimonium) was early recognised;[714] but it rested entirely with the magistrate whether he should accept such a security.[715]

The imposition of a fine (multa) was the most common mode of enforcing obedience, and was possessed by all the magistrates with the possible exception of the quaestor.[716] As early as 454 B.C. the power of fining (jus multae dictionis), which had hitherto belonged to the consuls alone, was conferred “on all magistrates”—including, therefore, the tribunes and plebeian aediles—by a lex Aternia Tarpeia passed in the assembly of the centuries.[717] The lex Menenia Sextia (452 B.C.) fixed the highest fine that could be imposed by a magistrate on his own authority (multa suprema) at two sheep or thirty oxen[718]—the former the limit for the poor man, the latter for the rich. After coined money, or at least metal by weight, had come into vogue during the decemviral period, a lex Julia Papiria (de multarum aestimatione) of 430 B.C. fixed 3000 libral asses as the extreme amount that a magistrate might impose.[719] The infliction of a fine larger than this multa suprema subjected the official who pronounced it to an appeal to the people.[720] The provocatio against multae went before the comitia or the concilium of the tribes according as the fines were imposed by patrician or plebeian magistrates, and we shall see how this appeal brought the aediles into contact with these two assemblies.[721] Certain laws continued to fix an absolute limit even to fines submitted to the judgment of the people. They were generally limited to less than half of the property of the accused.[722]

But the tribunes’ power of imposing money penalties extended far beyond the limits of that of the other magistrates. The power of confiscating all the goods of an individual by consecrating them to a god (consecratio bonorum), a relic, like the execution from the Tarpeian rock, of the old religious jurisdiction and as little subject to the appeal, had been occasionally put in force by them in extreme cases,[723] and like other vanished relics of antiquity was revived during the party struggles of the close of the Republic.

Another mode of coercion, specially used against magistrates and the official class, was the seizing of articles of their property as pledges (pignoris capio).[724] It was possessed by all the magistrates who had the coercitio, and was employed rather as a punishment than as a security for good behaviour. Hence the pledges were often destroyed,[725] and we find a consul seeking satisfaction for his outraged dignity in breaking up the curule chair of the praetor who would not rise to greet him as he passed by.[726]

Although, after the provocatio had limited the right of inflicting death and scourging, the means of coercitio were much the same for every magistrate, a formal difference in its mode of exercise existed between the higher and lower magistrates, and between the magistrates with imperium and the tribunes. The consuls and other magistrates with imperium had the right of summoning delinquents before their tribunal (vocatio) as well as of summarily arresting them in person (prensio).[727] The quaestors and lower officials had neither of these rights; and the theory of the tribune’s being an exceptional magistrate who should render assistance in person[728] was so far preserved that he had only the right of arrest.[729] We sometimes meet with tribunes who carried out their mandates with their own hands, but their presence alone was sufficient for the prensio to be effective; in early times they used their aediles for the act of violence, in later times their viatores.[730] By the close of the Republic the distinction was obliterated, and the tribunes, without formal right, summoned individuals before them.[731]

A mere enumeration of the powers of the Roman magistracy throws little light on the working of the civic constitution. The question which we shall now consider—the conflict of powers—is from this point of view more instructive if only because it shows why Rome could not be governed by her magistrates.

The first ground of conflict was religious and arose from a use, or rather misuse, of the auspices, which we have hitherto refrained from discussing because it is only indirectly connected with the jus auspiciorum. It arose from a power possessed not by the magistrate only but by every Roman citizen. It was the duty of any one who was the witness of an evil omen (e.g. one of the dirae belonging to the class of auspicia oblativa) to give notice of this occurrence to any magistrate about to embark on an important undertaking. The most frequent occasion on which such obnuntiatio[732] was employed was the holding of the comitia. The respect paid to this announcement by the magistrate guiding the proceedings naturally depended on the position which the announcer held in the state. The notice of a private and unknown citizen might be received with suspicion; that given by an augur, who actually waited by the comitia to watch for such signs,[733] or by another magistrate, would usually be respected. But, while the obnuntiatio of the augur, the plebeian magistrate, and the private citizen depended on chance, that of the patrician magistrate could be the result of design. Observation of the heavens was, as we saw, the favourite form of spectio of the urban magistrate, and the belief was strongly held that, if he asked a sign, the sign would come. The lightning which appeared might be a lucky or unlucky omen for the magistrate himself; but, whether it appeared on the left or right, it was, as an auspicium oblativum, unfavourable to the holding of the comitia.[734] A patrician magistrate had, therefore, only to give out that “he would observe the heavens” (se servaturum de coelo) to suspend all meetings of the comitia and of the concilium.[735] Hence the edict by which the consuls summoned the comitia centuriata contained the words “ne quis magistratus minor de coelo servasse velit.”[736] The patrician obnuntiatio was a powerful weapon in politics, the counterpoise to the plebeian intercessio.

The uncertainty respecting the necessity for observing most of these religious messages called for legislation; and about the year 153 B.C. two laws, the lex Aelia and the lex Fufia, were passed which, amongst other comitial regulations,[737] professed to give rules for the obnuntiatio.[738] The import of these rules is quite uncertain, but they seem to have recognised the right of the magistrate to watch the skies to the detriment of public business, and to have attempted to define the value of the announcement made by plebeian magistrates, augurs, and perhaps even by private individuals. The scandalous use made of the auspices by the consul Bibulus in the year 59 B.C. was a shock to the national conscience, and the ineffectiveness of his procedure gave courage to the enemy. In the next year the tribune P. Clodius abrogated at least that portion of the law which bolstered up the misuse of the spectio; the obnuntiatio was frequently employed as a political engine after this date, but its authors are tribunes and augurs,[739] which shows that it was in these cases based on the professed chance observation of auspicia oblativa.

The other modes of conflict were based on powers inherent in the magistracy; these were the right of prohibition possessed by the higher magistrates over the lower, and the right of veto possessed by superiors over inferiors or by colleagues with equal powers over one another.

The right of prohibition was an outcome of major potestas and was possessed by all higher over all lower magistrates. The tribune had it against all officials except the dictator; the consul against the praetor and against all magistrates with the exception of the dictator and the tribune. The magistrate’s right to forbid differed from the magistrate’s intercession in that the latter was levelled against a completed act and rendered it invalid; the former was merely a prohibition based on some power which the superior magistrate had in reserve; this power was the coercitio, the use of which was threatened if the command was disobeyed; hence, if the coercitio was not effectively put forward, the act which contravened the command was valid.[740]

The scope of the exercise of this power was conditioned by circumstances; most frequently the prohibition was directed against certain specific acts. The intercourse of a lower magistrate with the people, which had not the approval of his superior, might be hampered by this means; thus the higher magistrate had the right avocare contionem from the lower.[741] The tribune possessed it in a supreme degree, and it was a grave infringement of his majesty when any other official called away a portion of the people whom he was addressing.[742] The consul might hinder the praetor from introducing a rogatio,[743] and to guard against the possibility of the obnuntiatio when he himself was holding the comitia consistently forbade him to consult the heavens on that day.[744] Other more glaring misuses of magisterial power were hindered in this way, such as the attempt to triumph without the consent of Senate or people,[745] or the effort to prolong a magistracy beyond its appointed tenure.[746]

But the prohibition might, under special circumstances, be far more sweeping than this; it might extend to the suspension of all the functions of a magistrate, or even to the enforced cessation of almost all the active life of the state.

A higher magistrate, although he could not take away office from an inferior or even force him to abdicate, could visit a misuse of his functions by prohibiting all further action on his part. This power, practically amounting to a suspension from office, is found twice in our annals directed by the consul against the praetor—in one case for a breach of respect, in the other for revolutionary proceedings.[747] Nor was the power confined to Rome. The provincial governor had a similar capacity for dismissing officials, who disgraced his administration, from the country under his control.[748]

A far more comprehensive act was the edict of a magistrate with major potestas that all lower magistrates should suspend the exercise of their functions. Such a cessation of public business was known as justitium, a name derived from the suspension of that department of business which was the most constant sign of the active life of the state, the courts of law (juris statio). The decree was usually pronounced by the highest magistrate present in Rome who possessed the imperium, by the dictator,[749] or by the consuls[750]; and, as a rule, the justitium was proposed on a vote of the Senate[751] and to meet certain definite contingencies. The most usual circumstances which called for it were a sudden war, or a rising within the confines of Italy and its neighbourhood (tumultus),[752] or a public mourning following on a national disaster, or the death of a distinguished man.[753] The cessation of the justitium (justitium remittere[754]) was pronounced by a decree of the magistrate who had enjoined it.

Although such a prohibitive order suspended the whole administration of justice both civil and criminal, was accompanied by the closing of the aerarium,[755] and even by the cessation of the sittings of the Senate, it necessarily did not interrupt all the business of the state, for it might be declared for the purpose of directing exclusive attention to some special sphere of administration. Thus in time of danger the military levy went on,[756] and during the social war, while all other judicial business was suspended, the Varian commission still sat to perform its vindictive work on the friends of the allies.[757]

Such was the constitutional employment of this exceptional power. But its value as a political weapon was too obvious for it to fail to be part of the armoury of the tribunes. We have seen the use to which it was put by the tribune Licinius;[758] and his example was followed in the last century of the Republic by his great successor in agrarian agitation, Ti. Gracchus. In 133 he published an edict “prohibiting all other magistrates from transacting business until the voting on his law was finished; he put his own seals on the temple of Saturn, that the quaestors might not draw money out or pay money in; he announced a fine that he would inflict on praetors who ventured to disobey, so that each in terror abandoned the administration which had been confided to him.”[759] The higher patrician magistrates, the consul and praetor, could employ no such direct weapon. They could, however, indirectly check the passing of a plebiscitum by assigning to a comitial day one of those movable feasts, the date of which was fixed by their authority,[760] and thus making it a dies fastus.

Intercessio, though sometimes employed to describe the power of prohibition which we have just discussed,[761] is more properly applied to the power possessed, not only by higher magistrates, but by those of equal authority, of vetoing acts already performed by magistrates of equal or lower authority. It was an outcome, therefore, not only of major but of par potestas, and its invariable consequence was the invalidity of the act against which it was levelled. The intercession accompanied the par potestas of the consuls; with the creation of lower magistrates the conception of major potestas as giving this power arose, and the culminating point in the history of the intercession was the creation of the tribunate. It was the great safeguard against illegal or inequitable acts performed by magistrates, who were irresponsible during their year of office, and the tribune’s major potestas over every magistrate made him the guardian of the interests, originally of the Plebs and later of the whole community.

A veto to be valuable should imply some knowledge of the business vetoed; and thus we are not surprised to find that, except in the case of the tribune, the intercessio was generally confined within the limits of colleagueship. Thus the dictator possessed it against the consul, the consul against the praetor; although it is not improbable that the consul could veto the acts of the aedile and quaestor who were not his colleagues.[762]

The tribune, outside the bounds of his own college, could employ the intercession against all the patrician magistrates except the dictator—against the consul, praetor, aedile, and quaestor. The growth of the Roman constitution, however, created magistrates between whom no relation which justified the veto could be imagined to exist; none, for instance, could be established between the aedile and quaestor or between the consul and censor, and accordingly these magistrates had no power of impeding one another’s actions.

Three general limitations existed, which alone made this strange power a practical working principle of the constitution. The first, which was necessary to prevent utter confusion, was the finality of the intercession. The veto could not be vetoed, and the act which had been declared void could not be again made valid by the exercise of this power. A second was its purely civil character; in the field divided command was not tolerated, and the intercession, therefore, did not exist. A third was that the veto could only be directed against what was clearly the act of a magistrate. We shall find instances of this rule in the special applications of the intercession; an important consequence of it was that neither the verdict of a judex in civil cases, nor, after the growth of the standing criminal courts, of the judices in these quaestiones could be quashed by a magistrate.

The intercession may conveniently be considered from the point of view of three spheres of magisterial power against which it was directed—the decree (edictum[763]), the rogatio, and the senatus consultum.

(i.) The intercession might be directed against decrees of any kind—against those issued in the course of civil jurisdiction by the praetor, in the course of criminal jurisdiction by the consul, aedile, or quaestor, or in the exercise of other departments of administration such as the military levy. Intercession in all these cases rested on appellatio, the request for help (auxilium) made by the individual who felt himself injured by the decree. The appeal had to be made personally to the magistrate and the intercessio exercised personally by him. Thus we find tribunes tracking the footsteps of consuls to offer help on the occasion of an expected levy,[764] and a praetor taking up his position close to the chair of his colleague, waiting for appeals from his decisions.[765] In civil jurisdiction the intercessio might be employed at any stage of the proceedings before the magistrate (in jure); the appeal was usually from one of the city praetors to another, although they might possess different judicial departments (provinciae).[766] The general principle was to give the mutual right of veto to magistrates possessing somewhat similar authority and knowledge. But this rule did not apply to the tribune. His interference was directed against both civil[767] and criminal jurisdiction, and against the exercise of administrative power, especially that of the consul. In such cases as the consular conscription or the quaestor’s collection of the taxes,[768] it is not the general decree that is opposed by the tribune, but its application to individual cases by the coercitio of the magistrate. An appeal of this kind made to the tribunes sometimes became the subject of a quasi-judicial process, especially if it had been made to the whole college.[769] A picture of this process, which has been preserved, shows the appeal made from a consular levy; the appellants and the magistrate appealed against appear before the benches of the tribunes (ad subsellia tribunorum);[770] the collegium weighs the arguments and then gives its verdict, sometimes with the grounds of its decision.[771] It is possible that the college may in these cases have agreed to give the finding by a majority of votes, although, if one tribune persevered in the veto, he might overrule the assent of all his colleagues.

(ii.) The intercession against a rogatio, as contrasted with the power of forbidding a magistrate to question the people,[772] became at a very early period of the Republic the exclusive right of the tribune. It might be pronounced in any of the assemblies and against any kind of measure brought before these assemblies—against elections,[773] against leges, including formal acts such as the lex curiata,[774] and against plebiscita.[775] Custom had caused the intercession against a rogatio to be guided by certain formalities; it seems to have been irregular to pronounce the veto before the day of voting had arrived,[776] and indeed before the speeches for and against the law had been made.[777] In the case of laws, the correct time for interposing the veto seems to have been the moment when the introductory acts of the magistrate were over and before the voting had commenced;[778] in elections we find the tribune interceding after the first tribe had voted.[779]

(iii.) The intercession against a decree of the Senate (senatus consultum) was in theory a veto of the magistrate’s decree on which he had taken advice. It resided originally with the par majorve potestas. It was exercised by the tribune against the tribune,[780] consul,[781] and praetor,[782] and throughout the greater part of the history of the Republic by the consul against the consul.[783] The tribune possessed the right of vetoing senatorial decrees at the time when he had not only no power of summoning the Senate, but not even a seat in the House. In early days he placed his bench before the open doors for the purpose of examining decrees which were passed out to him and signifying his approval or dissent.[784] But, when in course of time the tribune gained the right of taking part in debate and of summoning the Senate, his intercession came to replace that of the consuls; and although the consular veto of a senatus consultum continued to be employed long after that against a rogatio had ceased to be recognised, it is not found after the time of Sulla (81 B.C.).[785] Here again the tendency was to make the tribunate the sole prohibitive power, and the tribune the sole guardian of the law.

The exercise of the veto in the Senate was simplified by the magistrate, who intended to impede the resolution, signifying his intention beforehand. This is the meaning of the declaration often made by a magistrate in the Senate, e.g. by the consul, that “he would not allow any business to proceed” (non passurum quicquam agi).[786] This declaration saved the time of the House, since the veto was not pronounced during the debate, but usually after the voting on the measure[787] or while the voting was in progress.[788] Hence the veto did not interrupt the procedure, nor even the threat of the veto suspend the particular business. The motion on which the veto had been put was, if approved by a majority of the Senate, drawn up as a resolution of the House (senatus auctoritas). It had lost its binding legal force as a decree, but it remained as an opinion for the guidance of any magistrate who cared to respect it. Sometimes the Senate requested the magistrate to suspend the intercession (intercessionem remittere),[789] and sometimes attached to a particular decree a general vote of censure on any magistrate who should veto it.[790] The intercession on certain kinds of senatus consulta might be forbidden by law. Thus the lex Sempronia (de provinciis consularibus) of 123 B.C. forbade the employment of the veto on the senatorial assignment of the consular provinces.[791]

It is needless to say that, with this conflict of authority, there was no true theory of responsibility in the Roman magistracy; for that implies a unity of power. But a description of what may be called the second element of responsibility, the capacity for being punished, or for being forced to give compensation, for a misuse of functions, will form a fitting complement to the history of the intercession.

The civil and criminal responsibility of magistrates was enforced by the same courts and the same processes by which ordinary citizens were tried. The only privilege which they enjoyed was that, as a rule, they could not be tried for a criminal offence during their year of office, and that none but the magistrates without the vocatio and prensio (i.e. the quaestors and aediles) could be summoned into the praetor’s court.[792] There was no special category of political offences which the magistrate alone could commit, although it is true that he was more specially liable than ordinary citizens to be tried for certain crimes; his greater capacity for doing harm to the state by cowardice or ignorance would expose him more than the ordinary citizen to a charge of perduellio; but the judicium populi tried him as a citizen, not as a magistrate, and the general rule that a magistrate was exempt from prosecution during his year of office made him, in fact, a privatus when he stood his trial. The commission of delicts, which were not cognisable by the popular courts, would have brought him before the ordinary civil tribunals. If he robbed a citizen, it was furtum; if he assaulted him in a manner not justified by his power of coercitio, it was injuria. There was indeed one delict which only a magistrate or an official could commit—appropriation of the state funds. In very early times this may have been brought under the expansive conception of perduellio, and punished criminally.[793] A few early laws, such as the fifth century lex de ambitu, were directed exclusively against magistrates or candidates for a magistracy; these laws doubtless specified the penalty to be imposed,[794] but their interpretation was left to the ordinary organs of criminal justice, the comitia.

But, as the foreign activity of Rome increased, and greater individual responsibility devolved on commanders distant from the centre of affairs and severed from all collegiate control, the possibilities of magisterial wrong-doing became too great to allow of the continuance of this simple system. The original theory was not, indeed, abandoned; the magistrate was tried before the same civil and criminal courts as the ordinary citizen; but the first step in the differentiation of ordinary from political jurisdiction was made when the initiatory steps in criminal proceedings against the magistrate were made the duty of a special office. It was the tribunes who were now used by the state—that is, by the Senate—as public prosecutors in criminal matters. It was a rough kind of justice which they meted out; the various charges which they brought could hardly be described by specific names, and in few cases was a penalty fixed by law. They formulated a punishment and brought it before the people, appearing as accusers either before the tribes or, when the penalty they proposed was a capital one, before the centuries, and the people, by a special legislative act, accepted or rejected their proposal.[795] Their superior potestas and, when the injury was done to their person, their sacrosanctitas gave them the legal right to coerce any magistrate into appealing or to bring him to trial during his year of office; but so strong was the feeling against this indignity to the magistracy that the veto of a colleague postponed the decision until the expiry of the official functions of the delinquent.[796] This political jurisdiction was not, however, directed solely against magistrates, but against any individuals who held an official position, against the staff-officers (legati) of a general,[797] against envoys[798] and senators,[799] and even against the farmers of the revenue (publicani).[800] The usual victims, however, were consuls and praetors, and the offences charged were mainly such as came under the conceptions of treason,[801] or were open violations of the rules governing the magistracy;[802] but sometimes they were wrongs done to individuals, such as might have come before the civil courts.[803]

The growth of Rome’s provincial territory made the continuance of this clumsy and casual jurisdiction impossible. The creation of the standing criminal courts (quaestiones perpetuae), with their presidents and juries, was the reaction of the provinces on Rome. We shall speak elsewhere of the mixed character of these courts, which were formed of a fusion of ideas borrowed from the criminal and civil law. The earliest which were created supplied a readier redress and severer punishments for the delicts of magistrates than the civil courts could give. Others were based on the classification of political offences. The great codification of the criminal law effected by Sulla (81 B.C.) rendered the tribunician jurisdiction superfluous, although it still reappeared at intervals during the party struggles of the close of the Republic.

We have now reviewed every important aspect of the magistracy in general; but before going on to describe the separate functions of the magistrates in administration, so far as these have not been already anticipated, it will be convenient to touch slightly on the formal conditions requisite for holding office at Rome. These conditions often illustrate the magistrate’s position in the state, and they sometimes create real limitations on his power.

The qualifications for public office (jus honorum petendorum) were based on the general principle that for patrician magistracies any citizen was eligible,[804] for plebeian only those of plebeian birth.[805] But to this general rule there were certain limitations based partly on the idea of the dignity of office, partly on the view that experience of a certain kind was necessary for the fulfilment of such responsible functions.

In the first place, citizenship had not its private-law connotation. Freedmen may not have been de jure excluded from office;[806] but the lists of magistrates show that not only were the sons of freedmen ineligible, but that the magistracy was practically reserved to those who could boast a free grandfather.[807]

In the second place, certain careers were considered as a necessary preliminary to, others as a necessary disqualification from, the magistracy. In a military city like Rome one is not surprised to find that a certain amount of military service was demanded of one who might have to lead the armies of the state, and that during the greater part of the Republic the capite censi were wholly excluded from the magistracy. The length of service required from the infantry soldier is unknown; from the eques equo publico it was ten years’ service “in the camp or the province,”[808] as late as the time of C. Gracchus (124 B.C.).[809] This military qualification gives us a minimum age of twenty-eight as being necessary for the holding of the quaestorship. In the Ciceronian period, on the other hand, the age was thirty,[810] and the military qualification, although it still partially survived in municipal law,[811] seems to have been abolished for Rome. Conversely, the exercise of any trade or profession for which payment was received was a disqualification for office, as long as the trade or profession was exercised.[812] This was, to some extent, an outcome of the prejudice against βαναυσία found amongst all military peoples;[813] but, as offices at Rome were unpaid, it was also a necessary provision for securing due attention to the discharge of the duties of the magistracy.

Thirdly, access to the magistracy might be hindered by the past moral delinquencies of an individual or his criminal condemnation. It is a mistake to suppose that there was a definite class of infames excluded from office at Rome. Certain criminal laws made temporary or permanent exclusion from the magistracy one of their sanctions. Exclusion on kindred grounds—notorious moral lapses of the candidate, his previous condemnation in a disgraceful civil suit, the fact that a prosecution for a crime was at that moment hanging over his head—was entirely the work of the magistrate who presided over the elections. He acted entirely on his own discretion, although naturally on the advice of a consilium of experienced men, in declining to receive the name of such a candidate.[814] This remarkable power was the outcome of the still surviving theory that the magistrate nominated his successor, and that the election by the people was only a complementary act.

Other limitations to the attainment of magistracy were determined by the previous holding of office. The magistrate who presided over the filling up of a vacancy in the regular magistracies might not return himself as elected;[815] and two laws further provided that, if a new office was established by statute, neither the rogator of the measure nor his colleagues or relatives should be eligible to the post.[816]

The continuation and accumulation of magistracies were also forbidden by plebiscita of the year 342 B.C., which enacted that at least ten years must elapse between the tenures of the same magistracy, and that two magistracies should not be held together in the same year.[817] Such legislation was the starting-point for a series of measures known as leges annales, which specified the order in which the various magistracies must be held (certus ordo magistratuum),[818] the age which qualified for each, the interval which must elapse between the holding of any two, and that which must intervene between the holding of the same, magistracies. In the year 180 B.C. the lex Villia, a plebiscitum of a comprehensive character, was passed, which specified the age at which each magistracy might be held;[819] it appears also to have fixed the interval which must elapse between the holding of two patrician magistracies, since from about this period we find the beginning of the rule, which held good in Cicero’s day, that a biennial interval must be observed between the patrician offices in the gradus honorum.[820] Finally, Sulla in 81 B.C. re-enacted the rules about the certus ordo and the interval between the same magistracies by declaring that the quaestorship must be held before the praetorship, and the praetorship before the consulate, and that ten years must elapse before the resumption of the same magistracy.[821]

The validity of election was dependent on the observance of certain forms, the first of which was concerned with the presiding magistrate. While the tribune alone could be the president at the election of plebeian magistrates, the consuls and praetors created the magistratus populi, but, as we have already shown in connexion with the interregnum, none but a consul could preside at the consular and praetorian elections.

The first act of the candidate was to send in his name (profiteri) to the magistrate destined to preside. This professio had to be made three weeks (trinum nundinum, intra legitimos dies)[822] before the date of election. A list of the candidates was then prepared for the people[823] after the magistrate had examined their names and satisfied himself of the qualifications of the competitors. Up to the middle of the last century B.C. the candidates need not be in Rome; but after the year 63 B.C. some unknown law enacted that they should make the professio in person,[824] and a similar clause was again inserted in Pompeius’ law de jure magistratuum of 52 B.C.[825] During the interval between the professio and the election, canvassing, which had commenced long before the open profession of candidature, became brisker. Legitimate ambitio almost rose to the dignity of a formal act. The aspirant, in a dazzlingly whitened robe (candidatus), surrounded by a cortège and accompanied by a slave with a good memory for names (nomenclator), affably saluted all the citizens whom he met, and shook hands warmly with the rustic voter. Rome’s habit of extending her franchise made the country vote always of some importance; but after the social war the canvassing that followed the professio was as nothing compared with that which had preceded it. The municipal voters, who could not come up for ordinary legislative business, flocked to Rome for the elections in the summer; and to secure success all Italy had to be sounded from the Padus to the Lacinian promontory. Canvassing on this gigantic scale required time and an elaborate organisation. We find Cicero beginning to canvass on 17th July 65 B.C. for the consular elections in 64; and men better circumstanced in birth, wealth, and rank commenced operations by setting in motion a vast machine, which had as its head some noble coterie at Rome (sodalitas), and as its instruments the election agents (divisores), each of whom took charge of a portion of a tribe. The means used were not necessarily illegitimate, although the names of the divisores became associated with bribery,[826] and a series of laws—not longer, however, than the chain of enactments which Rome usually devoted to some special theme—strove by ever-increasing penalties to stamp out an evil which disappeared only with the popular assemblies themselves.

After the people had chosen the new magistrate by their suffrage, a final duty had to be performed by the president in the shape of the renuntiatio, or formal announcement of the result of the election. That this was not a purely formal act is shown by the president’s power to refuse to return a legally, or even morally, unqualified candidate who had slipped through the previous stages of election.[827]

If we believe that the king during his lifetime nominated his successor,[828] there must from the first have been an interval between appointment to and entrance on office. This interval existed throughout the Republic for most of the annual magistracies; only the dictator, the censors, the magistrates created as the result of an interregnum (ex interregno), or those elected to fill up a place that had become vacant (suffecti), entered office immediately on their election. For the ordinary magistrates there was a more or less considerable interval between election and entrance on office; for the patrician magistracies it had originally been short, for the elections were one of the last acts of the consul’s annual reign, and the new consuls and praetors entered office from the close of the third century on 15th March,[829] from 153 B.C. on 1st January.[830] But in the closing years of the Republic—perhaps in consequence of a change introduced by Sulla—the elections were universally held in the month of July; and this gave a six-months’ interval between election and entrance on office for the consuls and praetors, and one of more than four months for the quaestors and tribunes, who assumed their functions on 5th and 10th December respectively.[831]

During this interval the magistrate elect was designatus, and, though his imperium or potestas was necessarily dormant, he had a distinct position in the state and could exercise certain official functions preparatory to the magistracy, such as issuing edicts, which would be binding after his entrance on office.[832] Even before the renuntiatio he had taken an oath of fealty to the state[833]—one, however, that could only have been exacted when the candidate was present at the election.

The entrance on office was signalised by another promise on oath to respect the laws (in leges)—a custom which probably grew out of the power of the people to bind either present or future magistrates by an execratio to respect a certain lex.[834] Refusal to take it within the period of five days was followed by loss of office;[835] only the Flamen Dialis, who might not swear, could claim exemption, and with the people’s consent take the oath by deputy.[836] During the later Republic we also find evidences of an oath which closed the tenure of office; the magistrates, on the expiry of their functions, addressed the people and swore that, during their period of rule, they had wilfully done nothing against the interest of the state but striven their utmost to promote its welfare.[837]

The assumption of the magistracy carried with it the right—and indeed the duty—to exhibit certain external marks of dignity which distinguished the masters of the community from their subjects. The lictors and the fasces were a survival from the monarchy, and were employed as a token of dignity and for the enforcement of the coercitio by the magistrates with imperium, on a scale, as will be seen when we describe the different magistracies, proportioned to the strength of the imperium. The other magistrates possessed only the servants—scribae, praecones, accensi, viatores, servi publici—necessary for the carrying out of their behests.

Like the lictors, the purple robe—the almost universal symbol of royalty in the ancient world—and the curule chair were inherited by the Republican magistrate; but the royal robe could be used only in the triumphal procession, where the other regal insignia were revived,[838] or for the celebration of festivals.[839] In the garb of peace of the curule magistrates the purple had become a narrow hem (praetexta) round the toga. The quaestors, who were not included in this list, seem to have worn no special dress; while the tribunes and plebeian aediles showed, by their complete lack of magisterial insignia, that they were never regarded as magistrates of the community.

In the dress of war the regal colour also reappears. Once outside the pomerium the magistrate may don the scarlet military cloak (paludamentum) worn over his armour. The dagger (pugio)[840] worn round his neck or on his waist, and the axes, which can now be enclosed in the fasces, were added signs of the untrammeled imperium.

The insignia were not mere empty signs that bolstered up a power which won no true respect. If the Senate appeared to the envoy of Pyrrhus to be an assembly of kings, he was looking at a body the members of which had for some period of their lives received the homage due to kings. The reverence for office as a holy trust, which is such a characteristic feature of Republican forms of government, was heightened in the Roman mind by its genius for abstraction, which saw in the individual holder of power not the magistrate but the magistracy, and by its almost superstitious veneration for the forms of law. It was an obvious thing to Romans that they must spring from their horse when they met a magistrate riding,[841] that they must make room for him on the path, that they must rise from their seat as he passed by, and that they must stand bareheaded before him in the contio or the comitia. The occasional Roman, to whom these things were not obvious, was soon reminded of his duties by the coercitio of the magistrate, who had the fullest means of protecting his own dignity; his life had been made by the law as sacred as the life of the state itself, for an attempt on the safety of a Roman magistrate was treason (perduellio).

§ 2. The Individual Magistracies

After this general review of the magistracy, we may glance at the precise place in the state administration assigned to the separate magistrates, so far as the record of their duties has not been already anticipated.

The Dictator

The only true mode of creating a dictator (dicere dictatorem) was through nomination by one of the consuls,[842] who, as we have seen, to avoid unfavourable omens, pronounced his selection between midnight and morning.[843] The question, which consul was to exercise this power, was decided either by the possession of the fasces, which belonged only to the acting consul, or by one of the two favourite modes of settling questions of collegiate action, agreement (comparatio) or the use of the lot (sortitio).[844] But this purely consular function came in time, like all extraordinary acts of administration, to be usurped by the Senate. At what period this result was attained we cannot say; for the annalists have transferred the constitutional observances of the third century B.C. to the earliest times.[845] Finally, the point was reached at which the Senate not only suggested the advisability of nomination but the name of the nominee;[846] opposition to these instructions was constitutionally possible,[847] but was borne down by the de facto power of the Senate with the tribunate as its instrument. By the close of the fourth century B.C. custom had further fixed the rule that the person created should be a past holder of the consulship.[848] The ancient provision that the dictator could be nominated only on Roman soil was found impossible of observance, since the consul, when he received the Senate’s message, was often far distant from the city, and ager Romanus was, in true Roman fashion, liberally interpreted to include the whole of Italy.[849] After the nomination of the new magistrate his imperium was confirmed by a lex curiata.[850] The insignia of the dictator were in one respect greater even than those of the king. As the consul had inherited the twelve regal lictors, the dictator, in order that his higher imperium might be more clearly shown, was preceded by twenty-four;[851] and the axes were seen with the fasces even within the walls.[852] The dictator appointed to meet an emergency either of war or revolution[853] bore no special designation which had reference to this emergency, but was aptly described as created for carrying on the business of the state (rei gerundae causa).[854] But minor needs of peace might lead to the nomination of a dictator for a special purpose; we find a dictator appointed for holding elections (comitiorum habendorum causa),[855] on one occasion for making out the list of the Senate (legendo senatui),[856] and others for purely ceremonial or religious purposes—for the celebration of games (ludorum faciendorum causa)[857] and the ordering of festivals (feriarum constituendarum causa),[858] and for driving the nail (clavus annalis) into the temple of Jupiter (clavi figendi causa),[859] an act of natural magic which was supposed to be a specific against pestilence. These dictators imminuto jure, appointed for a special purpose, were expected to retire as soon as the function was completed.[860] The six months’ tenure of the dictator rei gerundae causa[861] was never legally exceeded, but it might be shortened, for it seems to have been necessary for the dictator to resign when the consul who had nominated him retired from office.[862]

The creation of a dictator did not abolish the other magistracies of the people; it merely suspended their independent activity. The dictator was a collega major given to the consuls, who still continued under his direction to command armies,[863] and even those troops which were levied by the dictator took the oath of obedience to the consuls as well.[864] The praetors still sat in the courts, and lesser officials continued to perform the subordinate functions of government. But it was felt that under a dictator all magistrates existed on sufferance, with the exception of those of the Plebs.[865] It is certain that the presence of a dictator brought no legal diminution to the powers of the tribune; it is equally certain that constitutional custom dictated that the auxilium of these city magistrates should not be effective when the state was under martial law.[866] Collision was necessarily rare since the duties of the dictator took him far afield.

This extraordinary power had yet some normal limitations. The dictator never meddled with civil jurisdiction; and he had not the power, possessed by the consuls while in Rome, of taking money from the aerarium without a decree of the Senate.[867] The government was naturally unwilling that a magistrate to all intents and purposes a king should wage war out of Italy; and there is but one example of a dictator commanding in the extra-Italian world.[868]

A further limitation to his original powers, and one of the greatest 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.