Chapter IV: The Magistracy (2)

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.

In most communities such rulings as those of the praetors would be occasional expositions of a fixed code or of an uncertain body of statute and customary law. At Rome a useful practice was adopted which brought the living law, as opposed to the dead letter of her only code and to statutes which had fallen into disuse, before the eyes of all the people. The praetors announced by means of edicts, issued on their entrance on office, what their rulings would be in any given case. The edict was the “living voice of the civil law”;[935] and it is not surprising to find that by the time of Cicero it had taken the place of the “song” of the Twelve Tables in the legal education of the Roman youth.[936] The profession of the edict was interpretation of the law of Rome; but it was an interpretation that took the form of “assisting, supplementing, and even correcting the civil law.”[937] It was, therefore, not the _jus civile_ of Rome, but the valid modifications of this expressed in what was currently known as magistrates’ law (_jus honorarium_). The civil law was of course presumed as the background of these documents; it found expression in many formulae which the magistrates continued to give, and the _album_ itself probably contained a line of separation which showed where the formulae based on _jus civile_ ended and those founded on magisterial promises began. The most typical language of the _jus honorarium_ is one of command veiled under the form of promises; the praetor asserts “under certain given circumstances I will grant or will not grant a case” (_judicium, actionem dabo ... non dabo_). Less frequently the language is more imperative: “I will compel payment or an oath” (_solvere aut jurare cogam_); before the question of right is decided, “I forbid force to be used” (_vim fieri veto_).

A consideration of judge-made law, the consequence it may be of precedents drawn from already decided cases, and therefore merely the recognition of practice which had already crept into use,[938] but still expressed, as it is in this case, in a purely abstract form, suggests many questions. First, as to its validity. The edict was law that held good for a year (_lex annua_):[939] a limitation that would have produced a most unsatisfactory uncertainty as to its validity for future litigants and subsequent magistrates, had it not been for the facts that it was actually continuous, and that it was received, only to be slightly modified in accordance with legislative changes or with the demands of convenience, by successive wielders of civil jurisdiction. To use technical language, the edict was _perpetuum et tralaticium_.[940] Secondly, we must consider the limitation on the magistrate and the forces that bound him to observe his own promulgated law. At Rome the veto operated successfully for this purpose[941] even before the passing of the _lex Cornelia_ of 67 B.C., which obliged a magistrate to adhere to the rulings of his own edict.[942] In the shaping of the edictal rules the mere fact of publicity in a community so legally gifted as that of the Romans must have sufficed to keep the magistrate within the bounds of prudence; when he was conscious of little legal training, the assistance of eminent jurisconsults must have frequently been called in.

The edict is the source of most of our modern Roman law; the titles of Justinian’s _Digest_ are often commentaries on its rubrics excerpted from the writings of the scientific jurists, and that it should become the prototype of the world’s law was only natural when we consider the way in which it was built up. It was not only the collective work of generations of gifted men, who were fortunately not professing lawyers, but it was the outcome of an adjustment of Roman law first with that of Italy and then with that of the provinces. The beginnings of a recognition of a “law of the civilised world” (_jus gentium_) must be older than the institution of the _praetor peregrinus_, since for more than a century the _praetor urbanus_ had been issuing edicts not merely for _cives_ but also for _peregrini_; but, when a separate comprehensive edict was issued for _peregrini_, equity found a more systematic expression, and its reaction on the comparatively rigid forms of the urban edicts was necessarily great; but the power of this reaction was possibly even surpassed by that of the provincial edict (_edictum provinciale_), issued originally by the foreign praetors and then by the proconsuls and propraetors in each of Rome’s dependencies.

The connexion of the praetors with criminal jurisdiction was, apart from the rare occurrence of a special judicial commission, due to the growth of the standing courts. These _quaestiones perpetuae_ or _judicia publica_ were to a large extent modelled on the civil procedure by which compensation was exacted through a court of _recuperatores_. Hence the praetors seemed their most appropriate presidents, and the size of the college was, as we have seen,[943] increased by Sulla to meet the growing number of these courts. For criminal jurisdiction six praetors were available, whose provinces were possibly determined by the Senate and were certainly distributed amongst the designated magistrates by the use of the lot.[944] Although the general principle of distribution made each praetor preside over the jurisdiction ordained by a single law which created a _quaestio_, yet the spheres of jurisdiction were by no means fixed. Groups of _quaestiones_ or of their branches[945] might be rearranged every year, and it may not even have been necessary for a single praetor to maintain a particular sphere of jurisdiction throughout the whole tenure of his office. The general administrative functions of the office might interfere with jurisdiction, and a readjustment of the original distribution of _provinciae_, probably with the consent of the Senate, seems to have been sometimes necessary.[946]

_The Aediles_

The junction of the plebeian and curule aedileships into a single office is testified by their being spoken of together where their duties are mentioned or prescribed by law,[947] and the fusion was so complete that it is sometimes impossible to discover whether a historical reference applies to the plebeian or to the patrician magistracy. But in their respective qualifications for office, forms of election and _insignia_, the separation was still complete. The plebeian aediles must still be plebeians, while the curule aediles belonged in alternate years to either order;[948] the former were elected by the Plebs, the latter by the _comitia tributa_ of the people; the former sat on the modest bench of the plebeian officials and had no distinctive dress, the latter sat on the curule chair and wore the _praetexta_;[949] the anomaly remained that the one office was not a magistracy at all, the other a magistracy proper which gave its holder a claim to a seat in the Senate. The one peculiar privilege of the plebeian aediles—the _sacrosanctitas_ which they shared with the tribunes—vanished as a consequence of their employment as officials of the state.[950]

The general position now assumed by the aediles was that of assistants to the consuls in the administration of the city; in the fulfilment of which task they had certain special spheres of competence assigned them.[951]

(1) Their care of the state archives—originally possessed to a limited extent by the plebeian aediles[952]—was still continued, and they divided in some unknown way with the quaestors the custody of _senatus consulta_ in the _aerarium Saturni_.[953]

(2) The _cura urbis_ involved a series of duties connected with the public sites, buildings, and functions of the city. The aediles had to see to the paving of the streets, to insist on individuals keeping the pathways before their own houses in repair, and to lease out at the public cost the renewal of such thoroughfares as were connected with public buildings.[954] They saw that all public places, such as roads and squares, were kept clean and clear of obstacles, partly from a sanitary motive, partly for the purpose of preventing the encroachments of private buildings on public sites.[955] They controlled the water-supply and prohibited private persons, with the connivance of the water-inspectors (_aquarii_), taking more than their fair share from the public conduits.[956] Their control of public buildings and temples was limited to inspection and supervision, for the repair of such buildings, at least when undertaken on a large scale, was leased out by the censors. Closely connected with this _aedium sacrarum procuratio_[957] was their control of the _cultus_ of the community, which obliged them to see that no foreign innovations crept into the primitive form of Roman worship.[958] Their police duties are shown by the edicts which they issued for keeping order at the public games,[959] and by their control of private places of utility or amusement to which the public were admitted, such as baths, taverns, and the like.[960]

The aediles possessed the usual means of _coercitio_ for enforcing their decrees; they seized pledges (_pignora_) and imposed fines (_multae_).[961] When the latter surpassed the limit of the _multa suprema_, the case went on appeal to the people; the plebeian aediles defended their fines before the _concilium plebis_, the curule before the _comitia tributa_. From the _cura urbis_ also sprang an anomalous civil jurisdiction which was confined to the curule aediles; in one form of civil action which survived in their edict as codified under Hadrian—that, namely, arising from the damage done by wild beasts on the public roads—it was they who gave the _formula_ and appointed the _judex_ or _recuperatores_.[962]

(3) Their care of the market is typified by Cicero in the most important of its subdivisions—the care of the corn-supply (_cura annonae_).[963] Their duty was to regulate prices as far as possible, especially by the prevention of monopolies; the aediles often sold corn at a moderate price fixed by the state, although sometimes ambition led them to incur the loss themselves;[964] and it was they who as a rule presided over the distributions ordained by the later _leges frumentariae_.[965] The supply of corn to an army in Italy from the city magazines was also one of their cares.[966] Other duties springing from their control of the market were the enforcement of the sumptuary laws,[967] the inspection of weights and measures with the maintenance of their normal standard,[968] and the regulation of the sale of slaves and cattle. This power found expression in civil jurisdiction, which was in this case also confined to the curule aediles. It was they who gave the _formula_ for the return of slaves and cattle sold under false representations, and appointed the _judex_ in such cases.[969]