Chapter IV: The Magistracy (1)

§ 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while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous (_perpetua_), as being called forth by ever-present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.