Roman Public Life

by A. H. J. Greenidge

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]