ROMAN MAGISTRACY

Roman magistracy rests upon the exercise of the powers included within the concepts known as imperium and pot estas.’ The ancient sources identify the consular imperium with that possessed by the rex, and hence Mommsen takes imperium to mean the power, unlimited and indivisble, exercised by the highest magistrates.^{[391] [392] [393] [394] [395] There are many adherents to this view of the single, sovereign exercise of power to this day, yet it is difficult on this theory to explain away the right of appeal from the magistrate to the people (ius provocationis), or, even more, to account for the subsequent development of the grades of imperium, such as imperium maius and im­perium minus? For this reason, some reference may be made to some theories of recent years which seek to overcome these hurdles?}

Wesenberg argued that many of the powers exercised by the rex were not held by the magistrate, for he was subject to control by the senate and the people.¹ In fact, he maintained that the ‘total imperium’ theory was a conception of the 19th century. De Martino traced imperium back to the kingdom, but attributed its authority as a measure to counteract the power of the gentes (the clans), and thus somewhat later? A good deal of credence would seem to rest with those scholars who would deny the connection of magisterial imperium with the powers of the rex. According to Heuss imper­ium, at the start, was merely the power of military command, necessitated by the fact of continuous wars in the early years of the republic.’ Only in the course of time was the concept broadened to include non>military powers within the city itself.

Potestas is usually considered to have been the general term employed to designate the powers as well as the duties which a magistrate was called upon to discharge. Within the sphere of his competency the magistrate acted in the name of and in behalf of the state?⁷ Some magistrates were said to have equal power with respect to others, par potestas; magistrates might also have greater power, maior potestas, when contrasted with others who had lesser power, minor potestas. This resulted in a distinction between superior magistrates, magistral! maiores, magistrates with imperium as well as potes­tas - the consuls and the praetors among the ordinary magistrates - and the lesser magistrates, magistrati minores, who had potestas alone - such as the quaestors and aediles?^{1 [396] [397] [398] [399] [400] [401] [402] [403] [404] [405]}

Gellius, Nodes Atticae XIV.7.6

He f Varro) afterwards wrote on intercessions and he said that the right of inter­ceding lest a senatus consul turn be made belonged only to those who had the same or greaterpower (potestas)as those who wished to enact the senatus consultant.

Lex Municipal« Salpensana XXVII (81-84 A.D.)

Respecting the duoviri or aediles or quaestores of this municipality, there shall exist the right and power ofintercessio by the said duoviri both against each other and where some person shall appeal to one or both of them against an aedile or aediles, or against a quaestor or quaestores. The same shall belong to the aediles against one another,. The intercessio shall be within three days following the date when an appeal has been or could have been made; always provided that nothing be done contrary to this law, and that no one of the magistrates be appealed more than once in the same matter, nor shall any one. when intercessio has been made, act contrary thereto.

See Hardy.”

Plutarchus, Quaestiones Romanae LXXXI

Andas some orators deny that an except io (affirmative defense )isa type oftrial since it consists in the contradiction of a trial -for trial brings a case (to court J and results in judgement, while exceptio takes it out of court and quashes it - in the same way they consider the tribunate of the plebs to be rather a check on magistracy and directed against it than a magistracy itself. For the duty and the power of the tribune of the plebs is to withstand the authority of the magistrate, even to curtail his extravagances.

A statement of general application according to Mommsen?⁰

Cicero, De lege agraria IL 12.30

The consuls, when proposing a curtate statute, have often been halted by a veto of the tribunes of the plebs - not that we complain of this, for the tribunes have this power: only if anyone abuses that power, we know what we think. But this tribune of the plebs (Servilius Rullus), in connection with a curtate statute which a praetor is proposing, lakes away the power of intercession. And while he is to be blamed because the tribuniaan power is lessened by a tribune ofthe plebs, he is also to be laughed at because. while a consul is not allowed to attend to

19. Charters 61,92 n.25.

20. Staaisrecht I 267 n.l.

military matters unless he is authorized by a curtate statute, to the man (the praetor) against whom he forbids intercession, he gives the same power, even though there has been intercession, as if the law had been passed. So I do not understand why he either forbids intercession or thinks anyone would intercede, since intercession will only show the folly of the interceder, and will not hinder anything.

Rullus would permit no veto against the praetor going ahead, or if there is a veto, it is not to count.

Among the most significant of the notions which characterize Roman magistracy is the principle of collegiality, correlative to which is the doctrine of equal power (par potestas) between collegial magistrates, and the oppor­tunity to exercise veto-power (intcrcessio). Collegiality means that col­leagues rather than single individuals would occupy a single office. And par potestas meant that each holder of an office had complete and independent authority in that office. Rather than decision by majority, an order of one magistrate was effective without the consultation of the other, or other col­leagues. This tied up with intercessio, the right of one magistrate to stay the action of his colleague and thereby halt further consequences. The veto power could be exercised only against what was clearly a magisterial act, and hence was not good against the verdict of a index (the private person acting as a judge-juror); nor could an intercessio itself be vetoed. Mommsen attri­buted the collegial consulship, to be gained over the position set forth by Mommsen.^IS His conclusion war­rants quotation as being of general import.

The basic reason of recent writers to believe that par potestas and inter­cessio were original to the Republic is not simply their conviction that these institutions were not necessary as a security against a possible return to regnum - for, even if they were right in this, there could be no logical reason for denying that the Romans may none the less have em­braced the principle of equal collegiality as an extra, though inessential, precaution. It is rather their total unwillingness to credit the Romans with an ingenuity and foresight which they have failed to find in other peoples at a similar stage in their development. The Rome of509 B.C. is regarded, to use Bernardi’s words, as a (trans.) ‘primitive society incapable then of theoretical reflection.’²* It is, of course, impossible to refute this contention. But I would conclude by emphasizing that it is based upon an argument from analogy of a type, which, if widely employed, could only serve tex stultify every attempt at true historical research. Analogical arguments can be, and often are, extremely useful as aids to the interpre­tation of our source material - although even here they must be viewed with caution - but the scholar who is prepared to use them in order to dis­credit an entire written tradition is in danger of sacrificing history upon the altar of a preconceived philosophy of determinism. For the student of early Rome it is a matter of peculiar concern to discover the secret of her greatness. If he proceeds by first dismissing all that the Roman writers themselves have to impart, and by then reconstructing her history with­out their aid, and upon the fixed assumption that the Roman mind and temperament differed in no respect from that of other nations whose achievements have long been forgotten, his chances of success are small indeed!¹’

The device of intercessio was not limited to colleagues of equal power (par potestas) but could be utilized by the superior magistrates against those who were lesser magistrates. Siber pointed out that there is evidence in the sources for intercession between patrician magistrates, namely, consuls between themselves, against praetor and against inferior magistrates; praetors between themselves and against inferior magistrates; neither of these against censors; censors only between themselves; inferior magistrates neither between themselves nor against even lower magistrates.²· There did

25. Stavdcy, Historia 5 (1956) 74. 92-101.

26. Bernardi, Athenaeum 1952, 17.

27. Stavdey, Historia 5 (1956) 74, 100-101.

28. Siber, Verjassungsredtt 85.

exist, however, the possibility of the intercession of the tribune of the plebs against the action of any magistrate. Among themselves, the tribune’s inter­cessio may be considered to derive from the collegial position, but, as respects any magistrate, the power of intercessio stems from the right to represent the plebeian body (the so-called ius auxilii), an exercise of political power, extremely significant in the constitutional development of Rome. Weiss and Siber modify Mommsen’s view as to the nature of tribunician intercession.³*

There are other characteristics of the Roman magistracy which can only be mentioned in passing.There was age qualification for office and a specified interim of years between holding of offices. Incidentally, there was distinct sequence, cursus honorum, for the holding of offices.³¹ Among other factors was the disability of holding two offices at one time, and liabil­ity, civil and criminal, for illegal acts while in office. In addition, most magistracies were limited to one year for the term.” Finally, it should be noted that, as a public service, the established practice in office holding was service without compensation.

Cicero, In M. Antonium oratio philippics V. 16.45 Let us therefore confer imperium upon Caesar. without which military affairs cannot be directed, an army cannot be kept, a war cannot be waged....

Gaius, Institutionum commentarius IV. 103

All actions arise either from statutory law or are contained in the imperium.

Varro, De lingua latina VI.90

JTtar someone was wont to be sent around the walls to ‘entice* the people to that place from which he might call them to the gathering, not only before the consuls and the censors, but even before the quaestors, is shown by an old Commentary on the Examination of M. Sergius, son of Manius, the quaestor, who accused Tragus of a capital offense.

29. Weiss, Grundzuge 22 nJ and 25; Siber, Verfassungsrecht 86. Cf. Meier, Mus. Helv. 25 (1968) 86-100.

30. Recent survey, with bibliography, by d£ Dominicis, j.v. Magistral! (diritto romano). AWZW 10(1964)32-38.

31. See the brief account, with bibliography. Anon., s.v. cursus honorum, NNDI 5(1960) 80-81.

32. See the article by Coli, ‘Sui limiti de durata delle magistrature romane’, Studi Arangio- Ruiz IV 395—418.

Cicero, De legibus III.3.6

Let the imperia be just and let the citizens obey them humbly and without oppo­sition: let the magistrate coerce the disobedient and harmful citizen by fines, imprisonment or corporal punishment, unless an equal or greater power (par maiorve potest as) or the people, to whom let there be an appeal, forbid it.

In practical operation, during the course of the centuries, the imperium of a magistrate is evidenced by the command of the military force, with the con­comitant power to levy troops, as well as the leadership of the state in time of peace. It included the convocation of the populace and the submission of proposals thereto,” together with the conducting of the affairs of state in conjunction with the Senate.’⁴ The magistrate could issue orders in connec­tion with his office, and enforce obedience to them, the so-called coercitio power.” And within the scope of his activity, the magistrate could exercise jurisdiction over disputes.”

Magisterial orders in prohibitory form, the ius prohibendi, arc to be distin­guished from intercessions, for the former might well be issued prior to an anticipated act.” Enforcement (coercitio) was linked with criminal com­petence, but could also be exercised solely upon the magistrate's own responsibility.” A decree of death - subject to appeal to the people, pro vo­catio ad populum - imprisonment, corporal punishment, confiscation of property, monetary fine and seizure of a pledge were all sanctions available to the magistrate with imperium; the lower magistrates were limited to the imposition of a fine and pledge-taking?*

Ulpianus, Libra [Z/] Libro lad edictum (D.50.1.26 pr.)

Those things which are rather within imperium than iurisdictio a municipal magistrate cannot do.

To many scholars the power of exercising jurisdiction to hear disputes was at the start merely another phase of the general power of imperium. In the course of time, according to Arangio-Ruiz, iurisdictio came to refer to the protection of the rights of individuals accorded by custom or by law, whereas imperium remained the uncircumscribed discretional power of the magistrate.⁴¹ On the other hand, in an exhaustive study many decades ago, Lauria attempted to demonstrate that iurisdictio and imperium were two entirely independent conceptions.^{[414] [415] The clement of command was not at all involved in iurisdictio. At the start the magistrate merely announced the formal words needed to press a claim. Eventually, iurisdictio came to include all forms of magisterial control over process, criminal and administrative as well as civil. 4i'In a recent discussion, however, the view is expressed that in one sense iurisdictio was a power derived from imperium, while in other passages it signified powers quite apart from the element of command.[416]}

2. Particular Magistrates

§ 62 None of the magistrates of republican Rome - with one significant excep­tion - played any considerable role in the development of the private Roman law during the epoch of the republic. Yet it seems desirable to give some particulars of the nature and the powers of the various officials of the Roman state. A very brief delineation of the individual magistracies is provided in the relevant entries in Berger’s Encyclopedic Dictionary. A survey of the prin­cipal officials and their roles is to be found in many of the text-books on the history of the Roman law. ’ The most extensive discussion, however, is given under the pertinent entries of the encyclopedias and compendia dealing with Roman law and classical antiquity. Herein it is only necessary to present a few texts, the most vital data, and reference to further treatment of the indi­vidual magistracies.

a. The Consul

§ 63 Pomponios, Libro singular! enchiridii (D. 1.2.2.16, 26)

Then, after the expulsion of the kings, two consuls were constituted and it was provided by statute that supreme power should be vested in them; they were so named because they, above all others, consulted the Interest of the common­wealth. However, that they should not lay claim in all respects to royal power, it was provided by statute that there should be an appeal from them, nor could they impose capital punishment upon a Roman citizen without the order of the people; the only (royal} power left to them was that of coercion and of order­ing persons to be imprisoned in the name of the commonwealth. (26) Later, when it was decided that consuls should also be appointed from the plebs, they came to be instituted from both bodies.

Beseler is of the opinion that the undoubtedly popular etymology of consul is perhaps a post-classical gloss.^[417]

Cicero, De re publico 11.32.56

... And the consuls had a power, limited in time to a year, but by its very nature and legally, completely regal.

The consul - earlier termed praetor, infrequently index - was the chief magistrate of the Roman republic. At the start the office was held by patri­cians, but after a lex Licinia Sextia of 367 B.C., one of the consuls had to be a plebeian. The office was annual, and collegial, though scholars differ as to when this latter practice was instituted. The unlimited power of the consul was gradually diminished by reason of the creation of new magistracies, and by the expanding activity of the Senate. In military matters, however, the consul could propose legislation, call the popular assembly or the Senate into session, supervise religious matters and enforce public security. After the creation of the office of praetor, the civil competence of the consul was largely curtailed.

The classical treatment of the consul is by Mommsen, with good brief surveys in encyclopedic entries by Kubler and Lippold? Further biblio­graphy in the article by Coli?

b. The Praetor

§ 64 Pomponius, Libro singular! enchiridii (D. 1.2.2.27-28)

And since the consuls were called away by wars on the borders and there was no one in the state to administer Justice, it came to pass that a praetor was also created, who was called urban because he administered justice in the city. (28) Some years kit er, as this praetor did not suffice because great numbers offoreign­ers were coming into the state, another praetor was created in addition, who was called peregrinus (foreign )from the fact that for the most part he adminis­tered justice to the foreigners.

The office of the praetor and the role he played in the administration of justice is treated at length, infra, chap. IX.

c. The Censor

§ 65 Pomponius, Libro singular! enchiridii (D. 1.2.2.17)

Later, when the administration of the census required more time and the consuls were not equal to this additional office, censors were created.

Livius, Ab urbe condita IV.8.2 (443 B.C.)

The same year saw the beginning of the censorship, an office sprung from minor origin which later grew to such importance that the entire regulation of the morals and discipline of the Romans was in its hands, and the Senate, the cen­turies of the knights and the determination of honor and ignominy were within the jurisdiction of this magistrate; the right ofpublic and private places and the revenue of the Roman people was at his pleasure and decision.

2. Mommsen, Stoatsrecht II, I 74-140; Kubler, s.v. Consul, RE 4 (1901) 1112-38; Lippold, s.v. Consul, 7KC3 (1956) 390-404.

3. Cali, t.v. Consoli, NNDI4 (1959) 236-43.

Cicero, De legibus III.3.7

Let the censors take a census of the people by age, offspring, familial andpecun­iary property. Let them have the care ofthe temples of the city, the streets, aque­ducts, treasury and revenues, and let them distribute the people according to tribes, and then divide them with regard to fortune, age and rank. Let them keep a register of the equestrian and pedestrian (orders}, prevent that there be celi­bates, take charge of the folkways of the people, and not permit scandal in the Senate. Let there be two (censors), having a magistracy of five years, Let the rest of the magistrates be annual, but their office be perpetual.

From Cicero’s constitution for an ideal state, based on the Roman exper­ience.

The censorial magistracy was probably first separated from the consular office in 435 B.C., though tradition has it 443 B.C. Censors, colleagues, were appointed once every five years, for a period of eighteen months, although their decrees were valid for the entire period (lustrum). It has been thought that the censors did not have imperium, though this has recently been chal­lenged. ¹ The authority of the censors, indeed, was exceptionally broad. Their activities may be described as threefold. (1) The censors made up the roll of citizens, in connection with which the moral character of the individual was examined. A morals court could be instituted to hear charges of im­morality;^{[418] [419] [420] if the charges were sustained, a ‘nota’ was entered on the census­roll, and the person became subject to censorial-infamy. Taking the census led to an enumeration of taxable property and weapons, and fur­nished a register of possible military conscripts. (2) The censors drafted the list of persons eligible for the Senate; the stigma of a ‘nota’ would result in exclusion. (3) The censors had general supervision over the revenues of the state, including the handling of the assets and liabilities of the community, the contracts dealing with the farming out of the taxes, besides engaging in limited expenditures for buildings, roads, etc.}

There are a number of recent studies on the censors; these are listed, and the primary sources are noted, by Guizzi?

d. The Tribune of the Plebs

f 66 Pomponius, Libro singulari enchiridii (D. 1.2.2.20)

About thesametime, when theplebs had seceded from the patricians some seven­teen years after the expulsion of the kings, the plebs created tribunes for itself on Mons Sacer, who were to be plebeian magistrates. They were called tribunes because formerly the people had been divided into three parts and one tribune was created from each part; or because they were created by the vote of the tribes.

The second etymology is nearer the truth.*

Cicero, Pro Publio Quinctio VII.29

Mievwts formally demands that the agent should give security that the judgment would be paid (if Quinctius lost his case}. Alfenus contended that it was not equitable for an agent to give security, inasmuch as the defendant would not have to give security if he were present in person. The tribunes were appealed to; when a positive protection (auxilium) had been sought from them, the matter was so left that Sextus Alfenus promised that Publius Quinctius would appear by the Ides of September.

Asconius, In Milonianum § 37: Bai. 47 (St. 40)

/Is / (Cicero) have learnedfrom the records of his year (ofoffice). ontheXVKal. Sept., L. Norias, tribune of the plebs, colleague of Clodius, when Damio ap­pealed to the tribunes in his action against L. Flavius, the praetor, and the trib­unes recognized the appeal, delivered judgynent as follows:...

Appeal from a civil action according to Mommsen.¹

The tribune of the plebs, the chief representative of the plebeians, was not technically a magistrate, since he did not possess imperium, nor power over the people as a whole. Two tribunes of the plebs were appointed after an early secession of the plebs, the number was increased later to four, and then to ten. The primary powers of the tribune derived from his right of auxilium, the protection of a plebeian from allegedly illegal actions imposed by (patri­cian) magistrates. This power was largely carried out by the utilization of intercessio, the ability to veto the act of any magistrate, from the consul down. The intercessio of a tribune could be exercised against the decree of a magistrate, against the proposal of a statute, and against a resolution of the Senate. In order to enforce his will, the tribune had also the power of prohibitio and coercitio (prohibition and punishment). The tribune had further the right to convoke an assembly of the plebs, and to preside over it, and in the course of time gained the right to attend the Senate and to make legislative proposals. By a lex Atinia of 149 B.C., ex-tribunes were admitted to membership in the Senate. Towards the close of the republic the tribune ^{[421] [422] was looked upon as the upholder of the Roman constitution. In spite of the absence of sovereign authority, the office of tribune came in time to be the most powerful in the state, evidenced by the fact that Augustus sought to base his strength largely on the tribunicia potestas (tribunician power). There is an extensive literature on the tribune of the plebs, in part cited by Berger, and discussed by Siber?}

e. The Aedile

§ 67 Pomponios, Ubro singular! enchiridii (D. 1.2.2.21, 26, 32)

Moreover, in order that there should be officers to superintend the temples in which the plebs deposited all its enactments, two members of the plebs were appointed, who were called aediles. (26)-.. Then, that the patricians should have something more, it was resolved that two from their number should be appointed, so the curule aediles were created. (32)... Then Gaius Julius Caesar appointed... two aediles to superintend the grain, {.called > cereales, from Ceres.

Zonaras, Annales VII. 15 i.f.

In addition to them (the tribunes) two aediles were chosen to be their assistants in the matter of documents. They took charge of everything written that was sub­mitted to the plebs, to the people and to the Senate, keeping it so that nothing that was done escaped their notice. Originally, therefore, they were chosen for this purpose and the trying of cases, afterwards they were further granted the supervision of the public market, whence they came to be called agoranomoi (clerks of the market) by those who put their names into Greek.

Cicero, In C. Verrem actio secunda V. 14.36

Now I am aedile elect: I have an idea of what I have receivedfrom the Roman people. I am bound to celebrate holy games with the greatest of care and cere­mony for Ceres, Liber (Bacchus) and Libera. lam bound to render Flora mater propitious to the Roman nation and people by the splendor of her games. lam bound to celebrate those most ancient games which were the first to be called Roman, with the greatest of dignity and devout observance in honor ofJupiter, Juno and Minerva. I am bound to see to the sacred buildings, to take care of the whole city. In return for all that labor and anxiety these honors are granted to me: a place ofprecedence in the delivering of my opinions in the Senate, a fringed toga, a curule chair, a right oftransmitting my image to thefuture and posterity.

3. Berger,« Tribuni plebis, ED; Siber, r.r. Plebs, RE 21.1 (1951) 103, 169-87.

When the plebs first obtained its tribunes, two other plebians were desig­nated aediles to act as the assistants of the tribunes. As such they enjoyed a certain amount of criminal competence, enforcing their decrees by means of coercitio. In addition, they were the custodians of the archives of theplebs, and had charge of liturgical (public) services, such as the laying of streets, the repair of public buildings, and the like. In 367 B.C. two members of the patrician order were made curule aediles. The resultant admixture of ple­beian and patrician officials became an annual office, without imperium but with criminal jurisdiction.

The sphere of influence of the aediles was extended in three directions in the later republic: (1) they had general administration of city Rome, in charge of building, repairing and cleaning streets and sewers, the super­vision of public buildings and temples, religious ceremonies and public events, and the prevention of public disturbances; (2) they had control of business and commerce, by reason of fixing the standards of weights and measures, confiscating forbidden and spoiled goods offered for sale, and had general supervision of slave and of domestic and wild animal markets; they also had the regulation of prices, particularly of grain, and had power to exact fines for cornering the food supply; (3) they had the supervision, and in part the private financing, of the public games.

It is with respect to market sales that the aediles occupied a prominent place in the administration of the private law;’ their competence in crimi­nal cases flowed from the magisterial power of coercitio. See generally, Kubitscheck and, more recently, Siber.²

f. The Quaestor

§ 68 Pomponios, Libro singulars enchiridii (D. 1.2.2.22)

Then, when the treasury of the people had come to be enlarged, in order to pro­vide officers for it. quaestors were appointed to superintend money matters, so called because they were created for the purpose of inquiring into and guiding the finances.

Auctor, Rhetorioa ad Herennium 1.12.21 (c. 100 B.C.)

When Lucius Saturninus was about to propose the grain law concerning the five- sixths as (money}, Quintus Caepio, who was urban quaestor at the time, ex­plained to the Senate that the treasury could not stand so great an outlay. The

!. See infra, chap. IX. $ 148.

2. Kubitscheck, x.». Aediles, EE 1 (1894) 448-64; Siber, j.v. Plebs. RE 21.2 (1951) 103, 166-69; also Coli, s.v. Awiiles, IWDl 1 (1957) 337-39.

Senate decreed that if he should propose the law to the people he would appear to be doing so against the common welfare. Satuminus began with his motion; his colleagues interceded, but he neverthless brought the lot-urn downfora vote. Caepio, when he saw that he wj presenting his motion against the public wel­fare, despite his colleagues vetoing, attacks him with the help of some ‘good men' (Conservatives), destroys the bridges, throws down the ballot boxes, and prevents further action. Caepio is held for treason.

The voters passed over bridges to the polls in the Campus Martius.

The treasury of the Roman Republic was administered by the quaestors, as assistants to the consuls. The number of quaestors gradually increased, as administrators of the finances of the military commanders and the provincial governors. The urban quaestors, although directly responsible to the consuls, actually paid out monies only upon the authorization of the Senate. The quaestorship was the first post in the magisterial careerfcursus honorum). Though important in the financial affairs of Rome, the quaestors played little part in legal affairs.^[423]

There were other and minor magistrates, with no particular significance in the administration of justice. As respects the role of the magistrates during the epoch of the Principate, this will be dealt with in passing in connection with the discussion of the civil service operating under the Emperors.