Roman Public Life

by A. H. J. Greenidge

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.