Roman Public Life

by A. H. J. Greenidge

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while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous (perpetua), as being called forth by ever-present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