Roman Public Life

by A. H. J. Greenidge

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]