CHAPTER IV

THE MAGISTRACY

§ 1. _General Characteristics of the Magistracy_

The collective powers of the magistrate had, as we saw, been summed up in the word _imperium_; they had, perhaps, also been expressed by the vaguer term _potestas_. When, in course of time, magistracies were created which did not possess the _imperium_, _potestas_ was necessarily the only word which expressed the _generic_ power of the magistracy; _imperium_ became a special _species_ of this power. Thus one could speak of the _consulare imperium_ or of the _consularis potestas_, but only of the _tribunicia potestas_.[614]

It is difficult to treat collectively of the special manifestations of this authority; for the magistracies were graduated by differences of power. To avoid confusion and repetition it will be best, in this general sketch, to give a complete list of magisterial powers, and to point out in each case where they are accorded to, or withheld from, the

## particular occupants of office. Magisterial powers may be divided into

(i.) administrative, (ii.) those exercised in connexion with the people, (iii.) those exercised in connexion with the Senate; and (iv.) certain general powers which underlie all these spheres of activity—the right of interpreting the will of the gods through auspices, and the right of enforcing decrees.

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

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while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous (_perpetua_), as being called forth by ever-present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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The four other classes of omens belong to the category of _auspicia impetrativa_. These were—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The intercession may conveniently be considered from the point of view of three spheres of magisterial power against which it was directed—the decree (_edictum_[763]), the _rogatio_, and the _senatus consultum_.

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

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

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

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

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

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

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

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

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

The qualifications for public office (_jus honorum petendorum_) were based on the general principle that for patrician magistracies any citizen was eligible,[804] for plebeian only those of plebeian birth.[805] But to this general rule there were certain limitations based

## partly on the idea of the dignity of office, partly on the view that

experience of a certain kind was necessary for the fulfilment of such responsible functions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2. _The Individual Magistracies_

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

_The Dictator_

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

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

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

A further limitation to his original powers, and one of the greatest consequence, was subsequently introduced. The dictator was made subject to the _provocatio_ within the city,[869] probably by the _lex Valeria_ of 300 B.C.[870]—a change which, while not hampering the power of this magistracy in the field, prevented its being used for ruthlessly crushing a so-called sedition in Rome. Although we here see the commencement of the infringement of its civil power, the military authority of the office persisted for a century longer. It was not until the Hannibalic war that the two weakening elements of popular election and colleagueship were introduced into this magistracy. In the year 217 B.C., when, after the disaster at the Trasimene lake, it was difficult to communicate with the sole surviving consul, Q. Fabius Maximus was elected dictator,[871] presumably at the _comitia centuriata_ under the guidance of a praetor. In the same year the distrust and misplaced confidence of the people raised M. Minucius, the master of the horse, to an equality of command with Fabius.[872] Both acts were signs that the office was felt to be an anachronism, and the next year (216) marks the last instance of the military dictatorship.[873] The last dictator (_comitiorum habendorum causa_) was appointed in 202;[874] for the application of the name to Sulla and Caesar was the transference of the title of a constitutional office, in the first instance to a constituent authority, in the second to a monarchy, and in neither case was even the ancient mode of nomination preserved.[875]

_The Magister Equitum_

Every dictator, no matter for what purpose appointed,[876] nominated as his delegate a master of the horse,[877] who, unlike other delegates, possessed the _imperium_, six fasces,[878] and a rank equal to the praetor.[879] These distinctions justify the assertion that he was a magistrate,[880] and apparently one of curule rank, even though his tenure of power was strictly dependent on that of his nominator.[881] Like a magistrate he asked for a _lex curiata_ for the ratification of his _imperium_,[882] and he seems to have had power to question the people and to transact business with the Senate.[883] In these three respects the office differed from that of the _tribuni celerum_ of the monarchy. As the dictator was a lesser king, the _magister equitum_ was a greater lieutenant; but, in spite of the theoretical independence of his position, his services were entirely at the disposal of the dictator, who could enforce obedience to his commands, if necessary, by capital punishment.[884] Although originally employed, as the name signifies, for the sole leadership of the _equites_ under the higher _imperium_ of the dictator, and always to some extent preserving his character of a cavalry general, he could be entrusted by his absent superior with full command either in the camp or in Rome.[885] The office was a useful one, as it gave two generals of tried military capacity to Rome in time of danger, and obviated the disadvantages that might follow from the dictator’s having to use incompetent consuls or praetors as his subordinates. This consideration also explains why, in order to secure experienced men for the post, the custom became fixed of choosing ex-consuls or ex-praetors.[886]

_The Consuls_

The consuls, after their election at the _comitia centuriata_, could at least in later times assume the _insignia_ of their rank, and transact all the ordinary official business within the state without waiting for the consent of the _curiae_. Their first act was the taking of the auspices; these were always favourable, for the _haruspex_ who stood by[887] announced, as a matter of form, that lightning had been seen upon the left. Armed with this consent they assumed the praetexta, and, preceded by their lictors, performed the first significant act of authority. This act was the summons of the Senate,[888] and was one which showed that they were the magistrates who stood highest in the Roman executive. For, indeed, throughout Republican history, the consulship—though in power it often yielded to the tribunate or dictatorship, and in the reverence it inspired to the censorship—was the highest titular office in the state.[889] The rank of the consuls is sufficiently exhibited by the fact that it was chiefly by their names that the years were dated,[890] and by the ceremonial respect which was paid to them by the other magistrates.[891]

In considering the functions of the consuls we must distinguish between two periods of the history of the Republic. The first extends from their institution to the year 81 B.C.; the second from this year, when the reforms of Sulla introduced a change in their position which was felt as long as consuls continued to exist. This change caused no alteration in their powers, but only in the scope of their activity. During the first period they are the heads of the whole state, and are found ruling wherever Roman energy extends; during the second they are practically the chief magistrates only of the city of Rome and of Italy.

The theory of colleagueship—that each individual member of a college was vested with the fullest power of action subject to the veto of his assessor—did not necessitate a united activity of the consuls in every department of state. They divided their functions, sometimes before their entry on office,[892] and in early times there are traces of the fundamental division of competence expressed by the terms _domi_ and _militiae_, one consul occasionally taking the field at the head of an army, while the other remained at home to transact the business of civil administration.[893] This arrangement, which divested colleagueship of its meaning as a safeguard against the rule of a single man, was, however, very unusual, and, as a rule, the consuls were present together in Rome or undertook a joint command abroad. But joint activity in the city—even after the duties of registration had been given to the censor and those of civil justice to the praetor—was in some departments almost impossible. It was obviated by a principle of rotation, which gave the administration and the fasces for a single month to each consul in turn,[894] the elder of the two being given the symbol of power first, and the one who possessed it at the moment being described as _consul major_.[895] This distinction never wholly vanished; for Caesar, we are told, revived in his consulship (59 B.C.) an old custom by which the lictors walked behind the consul who had not the fasces.[896] But long before Caesar’s time positive co-operation between the consuls in the city was common. They summoned the Senate together, and many consular laws bear the names of two rogators. There remained, however, several important acts which, while they, morally if not legally, demanded the assent of both consuls, could yet be performed only by one. Such were the election of magistrates and the nomination of a dictator. In these cases the question as to which consul should act was often decided by agreement (_comparatio_) or by lot (_sortitio_).

In all domestic matters, with the exception of civil jurisdiction and finance, the consuls were the heads of the administration,[897] and this, in the developed Republic, meant that they were the chief servants of the Senate. It was the consuls who regularly consulted this body, who expressed its decrees, as well as commands which they had a constitutional right to issue on their own authority, in the form of edicts, and who brought legislative measures, which had received senatorial approval, before the _comitia_ of the centuries and of the tribes. It was they, too, who represented the state to foreign kings and nations and introduced their envoys into the Senate.

Consular jurisdiction was of two kinds, administrative and criminal. The administrative justice of the Republic was concerned chiefly with financial matters touching the interests of the community, such as pecuniary claims made by the state on individuals or by individuals on the state. The regular discharge of this duty passed to the censors; but in the gaps between the censorships it reverted to the consuls. We also find them adjudicating on questions of property between the cities of Italy.[898] In this matter they doubtless acted on the instructions of the Senate.

The criminal jurisdiction of the consuls was expressed in three ways. It was for centuries, as exercised through the quaestors, the regular capital jurisdiction for ordinary, as opposed to political, crimes; it was asserted, as part of their _coercitio_, with or without appeal according to the nature of the sentence imposed;[899] or it might be jurisdiction without appeal delegated by the people. We shall trace elsewhere the growth of a custom by which the _comitia_ assigned jurisdiction on certain crimes to special commissioners. The people, who in this delegation were acting on the advice of the Senate, generally left the appointment of the commission to that body, and the Senate selected either a consul or a praetor.[900] We also find the consul presiding over a criminal inquiry (_quaestio_) raised by a point of international law, such as the question whether the repudiation of a treaty by the people should have as its consequence the surrender of the general guilty of concluding it.[901]

The unlimited _imperium_ of the consul in the field (_militiae_), which was asserted when he had crossed the _pomerium_[902] and required the sanction of the _lex curiata_, was, in the early Republic when wars were confined to Italy, generally exercised by both the consuls together. To avoid the inconvenience and danger attending the rule of two commanders-in-chief of equal power, the principle of rotation was adopted, each consul having the supreme command for a single day.[903] But this device was necessary only when military considerations dictated that all the Roman forces should act together. Frequently the Roman armies had been simultaneously directed against various points of Italy, and the custom naturally suggested itself that each consul should command half of the regular army of four legions, and thus have an independent sphere of operations (_provincia_).[904] In a defensive war, such as that against Hannibal, Italy would naturally fall into two consular provinces;[905] but the practice became even more essential when the Roman arms extended beyond the peninsula, and in the period of the acquisition of the empire, from the beginning of the first Punic war to the close of the struggle with Greece (264-146 B.C.), _Italia_ as a whole, and some foreign country such as Greece or Macedon, are the regular _provinciae_ held by the consuls.[906] The arrangements which were made for the permanent government of provinces, first through praetors and afterwards through pro-magistrates, tended to arrest their employment for this purpose; but down to the time of Sulla (81 B.C.) a consul might at any time be appointed to a transmarine province.[907]

The consuls settled the distribution of _provinciae_ by agreement or by lot,[908] the _sortitio_ becoming in time the more usual practice. Occasionally the Senate ventured to suggest that one of the consuls was better qualified for a special department, and in this case the inevitable consent of his colleague enabled him to assume it _extra sortem_.[909] But, as Rome’s activity extended, and the available magistrates with _imperium_ increased, the important question came to be, not who should have one of two departments, but which should be the consular provinces. This power to nominate the provinces (_nominare provincias_) had, by the close of the Hannibalic war, become the undisputed prerogative of the Senate,[910] and one of its surest modes of controlling the consuls. This _de facto_ power was formally recognised by a law of the tribune C. Gracchus in 123 B.C., although it scarcely required legal recognition, and the purport of the _lex Sempronia_ was to weaken the discretionary power of the Senate by enacting that the consular provinces should be fixed before the election of the consuls who were to hold them.[911] At this period the consular departments were almost invariably foreign commands; but, after the close of the social war and the reforms of Sulla, they were held by their recipients as proconsuls after their year of office at Rome had expired.

We do not know the exact tenor of the _lex Cornelia de provinciis ordinandis_. Sulla did nothing to infringe the military _imperium_ of the consuls; after as before his law it was legal for them to “approach any province”;[912] but he devised some means of separating home from foreign commands, which, by crystallising the established custom, restricted the consuls and praetors to the civil government of Rome and Italy, and sent them out after their year of office as proconsuls and propraetors to the provinces. The powers conferred by the military _imperium_[913] were thenceforth lost, and the consul at the close of the Republic had less specific functions than any magistrate; even his criminal jurisdiction had vanished before the establishment of the permanent courts. Yet still the consul, who observed constitutional forms, was the chief interpreter of the Senate’s will; while one who, like Caesar in 59 B.C., violated all these forms, might exercise an almost monarchical power. The possession of the consulship was the great annual prize, contested and almost equally secured by the conservative and the reform parties from the time of the Gracchi to the close of the Republic,[914] and the competition was not wholly directed to secure the military _imperium_ which lay beyond it. The civil office might still make a capable man, supported by a powerful following, the guide of the destinies of the state.[915]

_The Praetors_

We have seen how the functions of civil jurisdiction were given to a minor colleague of the consuls, and how a second colleague was subsequently added to try cases in which the interests of _peregrini_ were involved.[916] The needs for judicial magistrates could not end here. The provinces of Sicily and Sardinia, acquired as a consequence of the first Punic war, required jurisdiction, and two praetors were given them about the year 227 B.C.; two more were added in 198 B.C. for the two newly acquired Spanish provinces, thus bringing up the full number to six. A _lex Baebia_ (_circa_ 180 B.C.) enacted that four and six praetors should be elected in alternate years, probably for the wise purpose of making the praetorian government of the difficult Spanish provinces biennial; but this law was soon suspended, and six praetors continued to be annually elected until the time of Sulla (81 B.C.).[917] It is true that between 198 and 81 many provinces had been added to the Roman Empire; but the principle of administration by pro-magistrates had gained recognition while these were being created; the praetors were becoming, like the consuls, more and more city officials, and the necessity for adding to their number came from the development of the criminal law. At least eight praetors were needed for the presidency of the civil and criminal courts at Rome, and consequently two were added by Sulla to the original six.

The variety of functions performed by the praetors was due to their having a general and a special character. On entering office, after election by the centuries, they were at once, as inferior colleagues of the consuls, capable of any of the duties which flowed from the _imperium_. They were then assigned some special office, some definite _provincia_; but the exercise of this did not destroy their capacity for general action. For command in war, as well as for the exercise of at least civil jurisdiction—both attributes of the full _imperium_—they required a _lex curiata_. Each had the right to six lictors, and appeared with the full number when controlling a province outside the city; but, in the exercise of his jurisdiction at home, he employed, or was allowed, only two.[918] The praetor’s specific title was derived from his province; of the two original home praetors one was known as the _praetor qui inter cives jus dicit_, or, in the colloquial phrase which became titular, as _praetor urbanus_; the other as the _praetor qui inter peregrinos jus dicit_, known finally as the _praetor peregrinus_. But both the home praetors were often spoken of as having _urbanae provinciae_ and exercising _urbana jurisdictio_.[919] Their rank was higher than that of their colleagues—hence their names were, like those of the consuls, used for dating[920]—and of the two the _praetor urbanus_ was regarded as holding the more distinguished position.[921] His duties were naturally far more engrossing than those of his colleague, and the law that he must not be absent more than ten days from Rome during his year of office[922] made him more of a distinctly civic official.

The powers of the praetors, taken in their natural order, may be divided into (i.) their general administrative duties at Rome, and (ii.) the duties of their special departments. In the first of these spheres they acted in virtue of their own _imperium_ but _vice_ the consuls, and generally, therefore, when the consuls were absent from the city. If they acted when the consul was present, it was by authority of the Senate, and legally the consuls might prohibit this action.[923] Such an injunction by the Senate was a constitutional mode of coercing the consuls into doing their duty. In this way the praetors might summon the Senate,[924] propose a _rogatio_,[925] hold the levy,[926] and exercise criminal jurisdiction delegated by the people.[927] Usually, however, such duties were performed by them only in the absence of the consuls, and the _praetor urbanus_ generally took the lead,[928] although the summons of the Senate by both home praetors, and even by a provincial praetor, was not unknown.[929]

The special functions of the praetors were always assigned by lot (_sortitio_). During the period when some of the praetors governed provinces, a regular sortition took the form of an assignment of the two urban _provinciae_ to two, and of the foreign provinces to two and afterwards to four members of the college.[930] But in the third and early part of the second centuries, before prorogation of command became the normal principle, and when Rome had few magistrates with _imperium_ at her disposal, this regular sortition could not always be observed. Sometimes the two urban praetorships were combined,[931] or the _praetor peregrinus_ might be given an Italian command, such as Cisalpine Gaul.[932] In this way a praetor could be spared for the command of the fleet or in Gaul (at Ariminum). This disturbance of the _sortitio_ and the appointment of a praetor _extra ordinem_[933] were naturally the work of the Senate. After Sulla the two civil and six of the criminal courts were assigned to the eight praetors by lot.

The civil jurisdiction, whether of the urban or provincial praetors, still adhered to the ancient form by which the ruling in law (_in jure_) was the duty of the magistrate, and the judgment on the question of fact (_in judicio_) was the function of a single _judex_ or, in matters requiring rapid decision, of a bench of “recoverers” (_recuperatores_). The rulings of the _praetor urbanus_ had originally followed the forms of the _legis actio_, but in matters affecting _peregrini_ a custom had grown up for the praetor to devise formularies of action (_formulae_) which bound the _judex_ in his decision. The convenience of this procedure extended its use to almost all cases, and by a _lex Aebutia_ of uncertain date the simpler formulary procedure almost wholly replaced the more complicated provisions of the _legis actiones_.[934] The _formula_ was a conditioned acquittal or condemnation; the praetor said to the _judex_, “If it appears that a debt is due, an obligation has been incurred, etc., condemn the defendant in a certain amount or in a sum left to your estimate; if the condition is not apparent, acquit him” (_si paret ... condemna; si non paret, absolve_). The _judex_ by his finding changed the conditioned sentence into one that was categorical and final.

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

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

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

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

_The Aediles_

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

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

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

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

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

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

(4) The _cura ludorum_ of the aediles was not the mere presidency of festivals such as was possessed by other magistrates, but the establishment of regularly recurring games, very largely at their own expense. The games were given jointly by the respective pairs of colleagues,[970] the oldest festival, the _ludi Romani_, being in the hands of the curule,[971] the _ludi plebeii_ in those of the plebeian aediles.[972] The other festivals established from time to time—_Megalesia_, _Cerealia_, _Floralia_—increased the burden of the aedileship. The Megalesia apparently fell to the lot of the curule aediles,[973] the others seem to have been given indifferently by either pair.

The aediles are sometimes found exercising functions of criminal jurisdiction, all of which cannot be brought into close connexion with any of their special powers, and which, therefore, do not spring from the ordinary _coercitio_. This criminal jurisdiction was, like the civil jurisdiction of the curule aediles, an anomaly, for these magistrates did not possess the _imperium_. It is to be explained partly as a survival (for some jurisdiction of the kind had been exercised by the plebeian aediles) and partly as the result of considerations of convenience. Before the institution of the _quaestiones perpetuae_ there was a great lack of criminal courts at Rome. The _quaestores_ were at hand for the trial of grave capital crimes against individuals, and the tribunes for political jurisdiction. What was needed was a magistracy for bringing ordinary and lesser crimes involving a money penalty (_multa_) before the people, and this was found in the aedileship. It is true that the aediles were not prohibited from undertaking the prosecution of political crimes that might be met by a fine, such as a mild case of _majestas_[974] or the bribery of a bench of _judices_;[975] and judgment on a breach of the peace (_vis_) was in harmony with their police duties.[976] But as a rule it is a class of ordinary crimes, somewhat beneath the dignity of tribunician prosecution, that we find them visiting. Such were adultery committed either by men or women,[977] usury,[978] illegal speculations in corn,[979] and the offence of exceeding the amount of domain-land which the laws permitted an individual to possess.[980] The aediles were stimulated to a career of prosecution by the singular custom which permitted them to retain the fines collected and to apply them to any public purpose which they pleased. We find them expended on buildings and adornments of the city, and by the plebeian aediles on their games.[981]

_The Quaestors_

We have already spoken of the criminal investigators (_quaestores parricidii_), whom tradition attributes to the monarchy,[982] and of the more certain assistants of the consuls for criminal jurisdiction and finance (_quaestores parricidii et aerarii_), who are assigned to the early Republic.[983] We have seen that, first nominated by the consuls, they were soon elected by the tribes,[984] and we have witnessed the opening of the office to Plebeians when, in 421 B.C., the number of quaestors was raised from two to four, and one of these officials was assigned to each consul in the field.[985] About the year 267 B.C. four more were added for the purposes of Italian administration, and no further change is recorded until Sulla raised their number to twenty,[986] although some intermediate increase is not improbable.

After the quaestorship had become an independent magistracy, its tenure continued to be annual; but the consular quaestor is so much a part of his superior that, after the prolongation of the _imperium_ had become usual, a biennial tenure, held partly in Rome, partly in a province, must have been the rule.[987] The rank of the quaestor was the lowest in the _cursus honorum_,[988] and he had none of the _insignia_ of the curule magistrates. Coins exhibit him on a straight-legged chair, with a money-bag or money-chest, and a staff the significance of which is unknown.

The quaestorian _provinciae_ were determined, before these magistrates entered on their office, by a decree of the Senate,[989] and the individuals were then assigned to their several departments by lot; although, probably always by a special grace of the Senate, there are instances of commanders selecting their own assistants.[990]

The departments may be grouped under the three heads of urban, military, and Italian.

(i.) The general duty of assistance which the two urban quaestors (_quaestores urbani_) rendered to the consuls was curtailed of one of its attributes by the loss of their criminal jurisdiction about the middle of the second century B.C.; for they could no longer have been needed as delegates in _parricidium_ after the first _quaestio de sicariis_ had been established.[991] Their functions were henceforth, as they had for some time mainly been, financial. Their old association with the _aerarium_ gave them the custody of the keys of this treasury,[992] the guardianship of the standards that were kept there,[993] and, above all, of the great mass of state papers and archives which it held. These contained laws[994] and decrees of the Senate,[995] the list of _judices_,[996] the public accounts (_tabulae publicae_), which included the statements of moneys voted to magistrates[997] and the reckoning of provincial governors with the _aerarium_ in respect to direct tribute paid them by the provincials. Connected with this financial custody were the quaestors’ duties of collection. To them the _publicani_ usually paid the sums which they had guaranteed for the leasing of the public revenues.[998] The collection of fines imposed by the _judicia populi_, and exacted by the _quaestiones_ for peculation and extortion, was also in their hands.[999]

The quaestors also conducted sales on behalf of the treasury—not of those large portions of the public domain which were alienated by the censors, but of current acquisitions, such as those of slaves and booty captured in war,[1000] and of that portion of conquered land which was brought immediately under the hammer (_ager quaestorius_).[1001] This threefold function of guardianship, collection, and sale gave the urban quaestors an unequalled grasp of the state of the public revenues, and as they were annual, while the censors—the budget-makers—were merely occasional officials, we are not surprised to find them making financial statements in the Senate.[1002]

(ii.) The general assistance which the quaestors were meant to render to the consuls was extended, as we saw,[1003] in the year 421 B.C. to their

## activity in the field. Each consul or praetor who assumed a military

command was given a particular quaestor (the dictator being exempted from what was regarded as a limitation on the discretionary powers of the magistrate), and, after the custom had grown up of extending the _imperium_, these assistants accompanied the proconsuls and propraetors to their provinces. The term of the quaestorship was prolonged with that of the office with which it was associated,[1004] for the connexion between the superior and inferior was regarded as being of almost as personal a character as that between father and son.[1005] We shall examine the relation more minutely when we come to deal with provincial organisation. It is sufficient to remark here that, though the quaestors’ functions were mainly financial, they were in all other respects true administrative delegates of the magistrates with _imperium_,[1006] and were constantly employed on judicial and military business.

(iii.) The quaestors of Italy were probably identical with those of the fleet (_classici_), and were a result of the organisation of Italy which followed the war with Pyrrhus (267 B.C.). For the purposes of the Pyrrhine war twelve quaestors were created, whose number, when they were given permanent stations, was reduced to four.[1007] Three of these stations can be approximately determined. One was Ostia, and the tenure of this post was burdened with the duty of the supply of corn to Rome.[1008] The second appears to have been the woods and forests (_calles_) of Italy.[1009] The third was in Cispadane Gaul,[1010] perhaps at Ravenna or Ariminum. The fourth is unknown, but was perhaps the quaestorship at Lilybaeum in Sicily, which, after the creation of the first Sicilian praetor in 227 B.C., would have become a provincial post. The other three survived the Republic as spheres of Italian administration.[1011] The functions of these quaestors were chiefly the levying of contingents from the allies in ships and men,[1012] the protection of the coasts, and at Ostia, as we have seen, the supply of corn for the capital.

A further quaestorian department is mentioned by Cicero—the _provincia aquaria_, which was probably concerned with the water supply of the capital. It is uncertain whether this function was attached to one of the Italian quaestorships.[1013]

_The Censors_

We have already described the institution of the censorship in 443 B.C.,[1014] and have seen that patrician rank was originally a necessary qualification for the post. The first mention of a plebeian censor is in 351 B.C.[1015] One of the Publilian laws of 339 B.C. is said to have extended to the censorship the provision of the Licinian law about the consulship, and to have enacted that one censor must be a Plebeian;[1016] but it is not until the year 131 B.C. that we find two plebeian censors.[1017]

The election to this office, like that to the other higher magistracies, took place in the _comitia centuriata_[1018] under presidency of the consul. The election was then ratified, not, as in the case of other magistrates, by a _lex curiata_, but by a _lex centuriata_,[1019] a form of statutory approval which marks the censors as peculiarly the officials concerned with the organisation of the _exercitus_.

In rank the censor occupies an anomalous position. Although lacking the _imperium_ and the right of summoning people and Senate, he is reckoned amongst the _majores magistratus_, he has the “highest _auspicia_,”[1020] he sits in the curule chair, wears the purple-striped toga, and (an honour accorded to no other magistrate) is buried in the full purple of the king.[1021] Politically the censorship was the apex of a career. Often held in its earlier period by ex-consuls, it became practically confined to the consular, and its enormous powers, its lofty ethical significance, and its comparative infrequency made it the goal of those who had already attained the chief titular dignity of the state.

Four attributes of the office are very important in determining its character. The first gave it the necessary authority, the others created a healthful limitation of its powers.

(1) The censorship was an irresponsible office.[1022] Its holders could not be called to account for any act done in connexion with the _census_, any act that was an outcome of the _censoria potestas_ ratified by the _lex centuriata_; and although the _lectio senatus_ was a later addition to their functions, this power seems to have been included in the indemnity. This principle of immunity was stated in a decree of the Senate of the year 204 B.C.,[1023] and, although often challenged by the tribunes, was maintained until the close of the Republic. One of the effects of the Clodian _plebiscitum_ of 58 B.C., which limited the discretionary power of the censors in the _regimen morum_,[1024] would have been to make them judicially responsible for a breach of its provisions; but this law was soon repealed. The censors were also free from the usual limitation created by the tribunician intercession; it was clearly invalid against the particular _potestas_ exercised at the _census_,[1025] although the _obnuntiatio_ could be employed against the summons of the people to the _census_ and the _lustrum_, as against any other _contio_.[1026]

(2) The limitation of tenure to eighteen months caused a break in the continuity of the magistracy, and was a symbol that the office was merely occasional. The censorial ordinances were valid for the whole quinquennial period of the _lustrum_, but, whatever may have been the original intention of the limitation of tenure, it was continued as an effective guarantee against such enormous powers being exercised for a continuous period of four or five years.[1027]

(3) Re-election to the censorship was forbidden, for a continuous moral control exercised by the same men would have been intolerable.[1028]

(4) The collegiate principle operated here as in other offices, but nowhere was the check of the veto more necessary and more healthy than in its influence on the arbitrary moral judgments of the censors. Without it the Senate might have been packed by a single man, and degradation from the highest positions and on the scantiest evidence might have been due to caprice, and followed by the unpopularity which divided responsibility renders less intense.[1029] The collegiate relation was, indeed, closer in this than in any other magistracy. Its holders must be elected together, the name of the singly-appointed censor not being returned;[1030] and, whether from grounds of convenience or from a religious scruple, it was enacted that, if one post was vacated by abdication or death, the holder of the other should resign.[1031]

The original and specific powers of the censors, various as they seem, form a perfect unity. Their work is briefly that of numbering and purifying the people. The accompaniments of this _census_ are (i.) registration, i.e. the assignment of individuals to their proper state-divisions; (ii.) the decision of the incidence of financial burdens, based on an estimate of the property of individuals; (iii.) the consideration of the moral worth of individuals with reference to their fitness to exercise various functions of state, known generally as the _regimen morum_; (iv.) the purification (_lustrum_), perhaps to avert the anger of the gods from the iniquity of numbering the people, perhaps merely a regularly recurring atonement for involuntary sin, the voluntary sinners being first removed by the exclusion effected by the _cura morum_.

To this aggregate two functions were added: first, the _lectio senatus_, which, although no part of the _census_, is an outcome of the same activity and forms an integral part of the _regimen morum_; secondly, financial duties, such as the leasing of taxes and _opera publica_—functions that any of the supreme magistrates could perform. They are not an integral part of the _census_, and this portion of the censors’ business is conducted under senatorial supervision.[1032]

I. The _lectio senatus_, although in the eyes of the censors and of the world the first of their charges, was but a late attachment to their office. Even in the year 311 B.C. the consuls could still venture to set aside a censorian list and return to the practice of selecting their own _consilium_,[1033] and later still (216 B.C.) a dictator could be chosen for the purpose of filling up gaps in the order.[1034] A _lex Ovinia_, a _plebiscitum_ of uncertain date, may have made the censors mainly responsible for the _lectio_, but the fragmentary paraphrase of its contents, which has been preserved, merely limits their discretionary power in the exercise of their choice. The censors are to choose “the best men,” a direction which, interpreted by our knowledge of later methods of selection, implies at the least that ex-curule magistrates must be chosen,[1035] at the most that the whole list of magistrates (including the plebeian aediles and the quaestors) should be scrutinised before censorian nominees were appointed.[1036]

The framing of the Senate’s list was, in accordance with the estimate of its importance, the first work of the censors after their entrance on office. It was accomplished rapidly, for there was no summoning of the Senate as a corporation, or even of individuals, as at the _census_. Facilities may have been offered to a senator of clearing himself of charges,[1037] but formal procedure was dispensed with, and nowhere was the arbitrary power of the censors more manifest than in the execution of this the gravest of their duties.

Rejection took the form of affixing marks (_notae_) against names in the register; these names were omitted in the revised list. Then took place the _sublectio_ of new names, and here the censure was pronounced by omitting those who had a claim to a seat in the house.[1038] The veto, which operated in its constantly negative manner, which enabled one censor to retain a name omitted by the other,[1039] or even perhaps to hinder the election of a new member selected by his colleague, and the written grounds for censure appended to the rejected name (_subscriptio censoria_),[1040] were some guarantees against capricious exclusion.

The automatic method of recruiting the Senate introduced by Sulla produced a modification in the censorian selection. The magistrates seem to have lost the power of rejecting applicants, their right of exclusion being confined to names already on the list. It is not known whether the censors at a subsequent _lustrum_ still retained the power of reversing an _infamia_ once pronounced; but the usual mode in which a seat was regained by an ejected senator was to seek popular election and to enter the Senate through a magistracy.[1041]

II. The _census_ opened with a summons to the people to meet the censors in the Campus Martius. It was the army as exhibited in the centuriate list that the censors wished primarily to examine, and, consequently, it was the members of this body that they summoned to appear in person; the _capite censi_, with their votes in the tribes and their taxable capital, might be represented only by the _curatores tribuum_,[1042] although the censor could summon any member of the burgess community whom he pleased.[1043]

The financial examination at each _census_, which had as its object the rating for the _tributum_, was based on the returns of the last scrutiny. There was, therefore, some means of checking the declarations now made on oath by each head of a family, and in doubtful cases external evidence must have been taken. The returns were made in accordance with the instructions of a general formula (_lex censui censendo_) which the censors had published;[1044] but their general conditions must always have been the same. First came a declaration of the size of the property, then of its value. But the estimate of the individual owner need not be accepted by the censors; they often attached an exaggerated estimate to articles of luxury,[1045] or expressed their disapprobation of social or moral offences by an arbitrary and excessive rating of the goods of the offenders.[1046]

All the property thus assessed must be the object of quiritarian ownership. Originally it had been but the land and the animals associated with it (_res mancipi_),[1047] such objects as had been conveyed by mancipation, and for the evidence of the transfer of which from hand to hand the mancipation witness could be summoned. But the growing mercantile community had to take account of movables, and throughout the historical period all objects of property, corporeal or incorporeal, which constituted _pecunia_ in the later sense of the word, were subject to valuation and taxation.[1048] After the time when direct taxation ceased in Italy (167 B.C.) the valuation was no longer made for the _tributum_; but property was still for a time the determinant of the kinds of military service and voting rights, and the censors had still to scrutinise the professions of the assessed, although the scrutiny was perhaps conducted with less rigour than before.

As it was the head of the family alone that could give an account of property, so it was to him that the censor put the requisite questions as to the persons dependent on his care. The respondent gave not only his own name, his father’s and his age, but made similar declarations about his son, his daughter, and his wife.[1049] Inquiries about the female members of the family were chiefly undertaken on moral grounds; they were of no importance for the work of registration, whose object was to assign voting rights and military burdens. Of the three subdivisions of the Roman state—the _curia_, the tribe, the century—the first was not considered by the censor, for the _curia_, like the _gens_, was inherited. The assignment of the tribe varied at different periods. If there was never a time in the history of the censorship when it had been confined to landholders,[1050] the possessor of an allotment was naturally registered in the _tribus_ which contained his plot of ground, the non-possessor in that wherein he dwelt. But, by the year 312 B.C., the landless citizens had already been confined to the four urban tribes; the radical censor of that year distributed them even over the country tribes, to increase the voting power of this _forensis factio_;[1051] but in 304 B.C. the landless proletariate was again confined to the _tribus urbanae_,[1052] and hence arose the permanent distinction between the more honourable country and the less distinguished city tribe. As a matter of fact, this distinction between the landed and the landless citizen could not continue when all property, personal as well as real, became of equal value at the _census_, and membership of the tribe became practically hereditary. But it was a heredity which might be broken by the censor at every period of registration. He might, as we shall see, arbitrarily transfer an individual from his paternal country tribe to one of the four urban divisions, which, partly from historical reasons, partly because they contained the freedmen, were accounted less distinguished.

The distribution into centuries naturally followed the distinctions of property and age which qualified for those bodies. The list which set forth this distribution was still pre-eminently an army list, but the table of seniors (_tabulae seniorum_) undoubtedly contained the names of those who were past the age of compulsory service. The _sexagenarii_, although the young bloods might object to their voting for a war in which they were not to share,[1053] or electing a general by whom they would not be led, still had the right of taking part in the deliberations of the _comitia centuriata_.

It is obvious that the complete census of tribes and centuries included every voting unit of Rome, and, in spite of the fact that an individual scrutiny of the _aerarii_ may not have taken place,[1054] we must suppose that there was a tribal list of _all_ the citizens which proved the right to vote at the _comitia tributa_ and the _concilium plebis_. But it is almost certain that, when an historian mentions a census of Republican times, he is reproducing merely the army list,[1055] the vital element in registration for a military state. All under the military age are excluded, and it has even been concluded that in the historical lists the _seniores_ themselves are not entered.[1056] The _proletarii_ are potentially, and in a sense actually, members of the Roman army;[1057] but it is very questionable whether they appear in the Republican lists. It was, perhaps, not until the Principate that the census contained the names of all male Romans above the military age.[1058]

III. _The recognitio equitum._—The word _equites_ primarily and properly applied only to the citizen cavalry of 1800 men, serving on horses supplied by the state.[1059] These formed the _centuriae equitum equo publico_, and this class was the _ordo equester_ in the strict sense.

It is true that _equites_ had come to have a wider meaning than this. About the close of the fifth century, individuals possessing a certain census and not included in the equestrian centuries were permitted to serve as cavalry with their own horses.[1060] They were no definite body, but were selected for a particular service by the commander, if the censors had admitted their pecuniary qualification.[1061] The consequence was that the terms _eques_ and even _ordo equester_ were transferred to these potential knights, and came to specify all who possessed a certain census, which, in the Principate and probably in the later Republic, was 400,000 sesterces.[1062] The censorship was only concerned with this wider body of knights as the authority which proved the monetary qualification of its individual members. The only body of _equites_ which it recognised and treated as a corporation was that of the eighteen centuries.

The review of the knights (_equitum census_,[1063] _recognitio equitum_[1064]) took place, not like that of the rest of the citizens in the Campus Martius, but in the Forum. The whole corps filed past the censor man by man, each knight leading his horse by the bridle, as the herald called his name.[1065] The first question considered by the censors was that of discharge. While the knights were still the cavalry of Rome, the service was a burden, and a burden that from the close of the second century of the Republic was made incompatible with a seat in the Senate.[1066] In the Gracchan period, as we have seen, ten years’ service had to be proved before the knight could claim his dismissal.[1067] The discharge was usually granted, if the conditions had been fulfilled, but the censors, as a penal measure, claimed the right of not allowing past service to count, and even of imposing additional service at the knight’s own expense.[1068] Ignominious discharge, before the completed term of service, was a consequence of military negligence, as shown, for instance, by the shabby condition of the public horse (_impolitia_),[1069] or of any moral blemish, which in other ranks of life would have entailed dismissal from the Senate or the tribes. The form of dismissal was “sell your horse” (_vende equum_), of retention “lead it on” (_traduc equum_).[1070] The censors’ final duty was to fill up the vacant gaps in the centuries. This was done by the enrolment, at their own discretion, of qualified members from the infantry (_pedites_).

This procedure was but one example of that wider censure which was directed against the citizen body at the time of its registration in the Campus Martius. This scrutiny was preceded by an edict in which the censors declared some of their moral canons—canons, we may believe, that were transmitted from college to college and seldom departed from—while they animadverted on new evils which they believed to be undermining the life of the state.[1071] The acts which called forth their censure may be conveniently considered under four heads.

(i.) Those concerned with family life and private relations. The father as the domestic magistrate or judge[1072] was wholly responsible for the conduct of the little world of the family, and the censor exercised his control over women vicariously through their husbands.[1073] The objects of censorian animadversion were the cruel punishment of slaves,[1074] the wrong done to a client, which had been formerly punished by pontifical law,[1075] the bad education of children, whether it took the form of undue harshness or of over-indulgence,[1076] and the non-performance of the _sacra_ of the clan.[1077] The censors discountenanced celibacy,[1078] imposing additional taxation on persistent bachelors.[1079] They discouraged _mésalliances_ such as unions between free-born citizens and freedwomen,[1080] and checked the legal freedom of divorce. In the usual marriage by _consensus_ a mere repudiation on the part of the husband was sufficient to dissolve the tie;[1081] but the censors restrained a reckless exercise of this power, and we find a senator degraded for divorcing his wife without taking advice of the family council.[1082] They also punished bad husbandry, neglect of property,[1083] and luxurious living,[1084] and enforced good faith (_fides_) in the execution of informal contracts which were not yet protected by the sanctions of the civil law. This was especially the case with guardianship (_tutela_),[1085] but their scrutiny extended to all legal relations that were held to involve _bona fides_, such as those of partnership, mandate, and deposit.[1086]

(ii.) Disqualifications were pronounced as a consequence of certain modes of life, trades, or professions. Actors were perpetually disqualified from all civic privileges,[1087] and gladiators were probably subject to a similar degradation.[1088] Amongst dishonourable employments was reckoned that of a money-lender who exacted an excessive rate of interest.[1089]

(iii.) Breaches of political duty in any sphere called down the censor’s displeasure. The magistrate might be degraded for cruelty or insubordination in the exercise of his office,[1090] for the neglect of constitutional formalities,[1091] for a misuse of the auspices,[1092] or even for the passing of a law likely to injure the morals of the community.[1093] The _judex_ might be punished for accepting bribes,[1094] the soldier or officer for shirking service or for showing cowardice or disobedience,[1095] and the voting citizen for a misuse of his judicial or elective power.[1096] Disgraceful conduct in a court of law might also entail the censure. It visited the collusion of a prosecutor with the accused or malicious prosecution in a criminal case (_praevaricatio_, _calumnia_),[1097] and attended false witness and false oaths. Since there was no secular punishment for perjury, its visitation was peculiarly the work of the censors.[1098]

(iv.) The censors sometimes pronounced disqualifications as the result of a judicial sentence.[1099] Theft and other private delicts were attended with infamy, and sometimes the censure was independent of the judgment of a court.[1100] The censure, which followed a criminal condemnation, might be either one of the censors’ own creation[1101] or the mere fulfilment of a disqualification already enjoined by law. Of the second kind were the disabilities pronounced by the _lex Cassia_ of 104 B.C.[1102] or by the _lex Calpurnia de ambitu_ of 67 B.C., the latter of which enjoined perpetual exclusion from the Senate as a result of condemnation.[1103]

IV. The effects of the censorian _infamia_ depended partly on the rank of the person disqualified, but were always regulated to some extent by the gravity of the offence. The senator was removed from the list, the knight from the equestrian centuries, the commoner is said _tribu moveri_ or _aerarius fieri_, or both.[1104] “Removal from the tribe” has two meanings: either that of the milder penalty of relegation from a higher to a lower tribe, or of the severer punishment of total exclusion from the tribes, while _aerarium facere_ implies exclusion from the centuries.[1105]

V. _The lustrum._—After the ranks of the various orders had thus been purified, the lustral sacrifice (_lustratio_) was offered for the whole assembled army in the field of Mars.[1106] The ox, the sheep, and the pig (_suovetaurilia_), which were led round the host and then sacrificed to the god, were at once an atonement for sin and a thanksgiving for blessings prayed for at the preceding _lustrum_ and since vouchsafed.[1107] The completion of this ceremonial marked the close of the censor’s functions, at least of those connected with the _census_.

VI. _Other functions of the censors._—The necessity for the division of functions, which had created the censorship, led to financial duties, analogous to but unconnected with those of the _census_, being taken from other magistracies and attached to that office. These were the leasing of the public revenues, the maintenance of public property, and the administrative jurisdiction connected with these duties.

The Roman state, in its administration of the public property, had always favoured the system of contracting out. The system was that of purchase or lease by middlemen (_publicani_) of a prospective source of revenue, which the individual or the company farmed at its own risk or profit. Sometimes the middleman was himself the occupant (_possessor_) of, or the contractor (_conductor_) for, the source of wealth from which the revenue was derived. This principle was applied to limited sources of wealth or those requiring particular industrial appliances, such as fisheries, salt-works, mines, and forest-land. This system of direct farming was sometimes applied to domain-land both in Italy and the provinces. The _ager Campanus_ was dealt with in this way, and the royal domains of the kings whom Rome had supplanted were, with the confiscated territory of Corinth, let on long leases to _publicani_,[1108] who doubtless in most cases sublet these territories to smaller holders. Such contracts were put up to auction, and their terms were fixed by a _lex censoria_ dictated by the censor as the representative of the state. This _lex_, besides specifying the revenue which the lessee was required to pay, also fixed the conditions under which the contract was to be undertaken.[1109]

The second kind of tax-farmer is a true middleman.[1110] The _publicanus_ here is not himself employed in working the source of wealth; he is not a _possessor_ or occupant, but one who has bought from the state the right to collect revenue from such an occupant. The right is put up to auction and bought for a fixed sum, for which the company of successful contractors furnishes security. Their gains depend on the prospective surplus of the revenue which they propose to farm over the sum which they have agreed to pay. This was the method of dealing with the public land which had been left open for occupation by squatters (_occupatorius ager_). It was either tilled land (_ager_) enjoyed by a _possessor_, or pasture land (_silva pascua_, _saltus_) over which the _pastor_ grazed his flocks. Both occupants were tolerated by the state on condition that they paid a fixed due for their precarious tenure.[1111] The _publicani_ were the men who had the right to collect this _vectigal_ from the user of the land, and the dues which they might collect were determined by the _lex dicta_ under which the censor sold the right.[1112] A further class of revenues collected in this manner were the harbour dues (_portoria_). They were based on the same leading idea of the use of public ground by a private occupant; he pays for this use, and the right of collecting this _vectigal_ within a given area is sold to a company of _publicani_. A great extension was given to this system of tax-farming by its application to provincial administration. The Roman translated the tithe (δεκάτη, _decuma_) which he found in Sicily and Asia into his own familiar _vectigal_, but for a time he adhered to the existing conditions of local collection, and in Sicily the tithes were sold in the island itself in accordance with the _lex Hieronica_.[1113] Asia was the first province to which the experiment of a collective sale of the taxes in Rome was applied.[1114] The system was apparently extended to the Asiatic provinces organised by Pompeius, and the censorship was the normal vehicle through which the revenues of a vast kingdom could be purchased by a company of Roman speculators.

The censors exercised great discretionary powers in the conclusion of these contracts, but a revision of such as had already been concluded belonged not to them but to the Senate.[1115] Their merely executive capacity is an explanation of the fact that they could not alienate the property of the Roman people. Wherever the sale of public lands or buildings by these officials is described, we must assume the concurrence of the people or the Senate.

The extent of the censors’ control of the property of the state made their registers (_tabulae_) assume the proportions of a budget, which must have been the guide of the state’s expenditure. Although only quinquennial, this budget was tolerably stable, for the varying returns (as opposed to the invariable revenues, such as the fixed tribute of some of the provinces) were estimated for the interval that elapsed between one _lustrum_ and another. An unusual increment, such as that from booty, which might appear in any year, would have formed the ground for a statement made by the quaestors, the permanent officials of the _aerarium_.

But, although estimates were made by the censor, he had little to do with general expenditure. He had no concern with the provinces and the army, and was limited to the maintenance and extension of the public property of the state. He was either a maker or a repairer of _opera publica_, such as roads, aqueducts, temples, and public buildings.[1116] Such buildings or repairs were leased out to contractors, the state here becoming the debtor of a private company and seeking to obtain the lowest estimate for the work.[1117] For the purpose of repairs or new works a credit (_pecunia attributa_) was granted by the Senate, which directed the quaestors to employ this money at the discretion of the censors.[1118] Within the limits of this sum they could act at their own discretion with respect to the modes of expenditure, although they doubtless took the advice of the Senate. These grants and the purposes to which they were applied were known by the strange name of _ultro tributa_,[1119] a designation which may be a relic of a time when such _opera_ were not leased, but were burdens (_munera_, _moenia_), owed as a voluntary tribute by the community.[1120]

These financial functions of the censors gave rise to an administrative jurisdiction. In their guardianship of public places they decided where private buildings had encroached on state property,[1121] or where public buildings had been usurped by _privati_.[1122] They may at times have pronounced on the pecuniary penalties meant to enforce the rights of public property, for they sometimes exercised their coercive power and proclaimed varying penalties (_multae_) to compel obedience;[1123] but such quasi-criminal jurisdiction must have been exercised more frequently by the aediles, and, where the amount of the fine necessitated the appeal, it must have been pronounced and defended by the latter magistrates. Jurisdiction bearing a resemblance to that of civil law was concerned with the _ultro tributa_, when the question arose whether a contract had been carried out satisfactorily or not, and with disputes about the public land, the controversy in the latter case lying most frequently between the _publicanus_ and the _possessor_,[1124] but sometimes, no doubts between one who claimed to be an owner on the one hand and the middleman or an occupant on the other. The form of this jurisdiction varied. Sometimes, when the dispute lay between the state and an individual, as in the controversies about the _ultro tributa_, the sentence was the result of a purely magisterial cognisance, although we may suppose that the censor could, if he pleased, give a _judex_ in such a case. Where the dispute lay between two _privati_, even though one of them had the quasi-official position of a _publicanus_, the granting of a _judex_ or _recuperatores_ was, at least in the later Republic, usual.[1125]

_The plebeian Magistrates_

The accidental preservation of the tribunate, through the failure of the decemvirate to do its work, and consequently of the plebeian assembly in all its purity, led to the persistence of a magistracy chosen only by and only from the Plebs. But the plebeian aedileship was welded with the curule office of the same name into practically a single magistracy, which has already been discussed;[1126] while the tribunate is so intimately bound up with every phase of the constitutional development and organisation of Rome, that every one of its leading functions has already been considered.

We have seen the method of its institution and the singular religious basis on which its power rested,[1127] and we have observed the numbers of the holders of the office rising from two to four, and finally to ten.[1128] The right of eliciting resolutions from the Plebs and the coercive power and jurisdiction possessed by this office have also been described.[1129] We have further dwelt on the anomalous duality of the office, and seen how in a certain sense it is not a magistracy, the tribune lacking both the requisite _insignia_[1130] and the right of taking _auspicia impetrativa_,[1131] but how, on the other hand, it becomes practically a magistracy of the people, when functions originally purely plebeian come to be used in the interest of the whole state. The right of acting with the Plebs gave the tribunes the power of initiating legislation when _plebiscita_ had been raised to the level of _leges_;[1132] in their elective capacity they not only presided over the appointment of their successors and of the plebeian aediles, but through the Plebs they might not only create a minor magistracy such as the triumvirate _agris dandis assignandis_,[1133] but in the closing years of the Republic actually conducted the election of such officials.[1134] Their power of prohibition and their right of veto,[1135] limited for a moment by Sulla but soon restored in all its plenitude,[1136] became, when constitutionally employed, a guardianship of the whole state against the illegal or unconstitutional proceedings of other magistrates, and formed the chief basis of the Senate’s authority. Their association with the Senate, from being merely prohibitive, grew to be positive,[1137] and they finally shared the presidency of that body. Lastly, their powers of coercion and jurisdiction widened into a judicial control of the magistracy; they were the prosecutors of faulty officials, and, up to the time of the development of the _quaestiones_, represented the chief means which the state possessed of enforcing criminal responsibility on its executive.[1138]

_The minor Magistrates_

Prominent amongst the minor magistrates (_minores magistratus_)[1139] stands a group known finally, and perhaps in Republican times, as the _viginti-sex-viri_.[1140] This group was merely a collection of small colleges and not itself a _collegium_. It is probable that most of its members were originally nominated by superior magistrates; in later times they were all elected in the _comitia tributa_, although doubtless a separate elective act was required for each college.

(_a_) The _IIIviri capitales_, sometimes called by the less technical name of _IIIviri nocturni_, probably from their duty of extinguishing fires, were introduced as a standing institution about the year 289 B.C.[1141] Their general function was that of assistance to the other magistrates in criminal jurisdiction. After the judgment had been pronounced, they guarded the prisoners and carried out the death sentence.[1142] Their duties preliminary to a criminal trial were the preventive imprisonment of the accused and the conduct of a first examination after a criminal charge had been made.[1143] They also heard ordinary police-court charges, such as those of vagrancy or nocturnal disturbance of the peace,[1144] and they exercised police duties in the town, such as that of preserving order in the streets.[1145] When acting as magistrates who could give a final judgment, their dealings seem to have been with slaves and foreigners. There is no evidence that they possessed any right of sentencing citizens or any higher jurisdiction which would bring them into contact with the people.

(_b_) The triumvirate of the masters of the mint (_IIIviri monetales_),[1146] originally an occasional, first becomes a standing office about the time of the social war.[1147]

(_c_) Six sanitary commissioners, acting probably as subordinates to the aediles and bearing the titles _IVviri viis in urbe purgandis_ (or _viarum curandarum_), _IIviri viis extra propiusve urbem Romam passus mille purgandis_, are first mentioned in Caesar’s Municipal Law (45 B.C.). The first looked to the cleansing of the streets within Rome, the second perhaps of those within the radius of a mile from the walls.[1148]

(_d_) The _Xviri stlitibus judicandis_ have a strange history; for, from being simple _judices_, they become minor magistrates of the people. They are doubtless the decemvirs who were rendered sacrosanct by the Valerio-Horatian laws of 449 B.C.,[1149] the reason for this protection being that they were the jurors who decided in cases of freedom, that ultimate plebeian right which, as the story of Verginia shows, might sometimes be assailed. By Cicero’s time they are still judges in _liberales causae_, but they have risen to the rank of independent magistrates.[1150]

(_e_) The _IIIIviri praefecti Capuam Cumas_[1151] were the elected delegates who represented the jurisdiction of the praetor in the _municipia_ and colonies of the Campanian district. Their functions may be more appropriately discussed when we are dealing with the organisation of Italy.

Certain judicial and military posts were also filled by popular election. The paucity of criminal judges at Rome after the institution of the _quaestiones perpetuae_[1152] led to the appointment of an annual president of the chief court which tried ordinary crimes—that, namely, which dealt with murder and kindred offences (_quaestio de sicariis_). The magisterial position of these _judices quaestionis_ is shown both by the fixed qualification—it is generally, perhaps always, an ex-aedile that is appointed[1153]—and by the fact that, like the magistrate who takes the oath _in leges_,[1154] these _judices_ swear to observe the special law which they are administering.[1155] They were probably elected by the people in the _comitia tributa_.[1156]

Subordinate military posts were also in the people’s gift, and we have already noticed how the tribunate of the legions became in part a quasi-magistracy.[1157] In the year 311 B.C. the appointment of consular delegates for the command and maintenance of the fleet was also entrusted to the tribes.[1158] These _IIviri navales_ were not annual officials, but, in obedience to the occasional character of the Roman fleet, came into existence when a war required its creation. The office seems to have become extinct by the second century B.C.

More occasional still was the creation by the _comitia tributa_, in later times occasionally by the _concilium plebis_,[1159] of minor magistrates with extraordinary functions. Such were the officials for conducting a colony (_coloniae deducendae_) for the assignment of land (_agris dandis assignandis_), or for the dedication of a temple (_aedi dedicandae_). To this category belong the occasional _curatores_ for the corn-supply and the roads (_annonae_, _viarum_).

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