Roman Public Life

by A. H. J. Greenidge

A far more comprehensive act was the edict of a magistrate with major potestas that all lower magistrates should suspend the exercise of their functions. Such a cessation of public business was known as justitium, a name derived from the suspension of that department of business which was the most constant sign of the active life of the state, the courts of law (juris statio). The decree was usually pronounced by the highest magistrate present in Rome who possessed the imperium, by the dictator,[749] or by the consuls[750]; and, as a rule, the justitium was proposed on a vote of the Senate[751] and to meet certain definite contingencies. The most usual circumstances which called for it were a sudden war, or a rising within the confines of Italy and its neighbourhood (tumultus),[752] or a public mourning following on a national disaster, or the death of a distinguished man.[753] The cessation of the justitium (justitium remittere[754]) was pronounced by a decree of the magistrate who had enjoined it.

Although such a prohibitive order suspended the whole administration of justice both civil and criminal, was accompanied by the closing of the aerarium,[755] and even by the cessation of the sittings of the Senate, it necessarily did not interrupt all the business of the state, for it might be declared for the purpose of directing exclusive attention to some special sphere of administration. Thus in time of danger the military levy went on,[756] and during the social war, while all other judicial business was suspended, the Varian commission still sat to perform its vindictive work on the friends of the allies.[757]

Such was the constitutional employment of this exceptional power. But its value as a political weapon was too obvious for it to fail to be part of the armoury of the tribunes. We have seen the use to which it was put by the tribune Licinius;[758] and his example was followed in the last century of the Republic by his great successor in agrarian agitation, Ti. Gracchus. In 133 he published an edict “prohibiting all other magistrates from transacting business until the voting on his law was finished; he put his own seals on the temple of Saturn, that the quaestors might not draw money out or pay money in; he announced a fine that he would inflict on praetors who ventured to disobey, so that each in terror abandoned the administration which had been confided to him.”[759] The higher patrician magistrates, the consul and praetor, could employ no such direct weapon. They could, however, indirectly check the passing of a plebiscitum by assigning to a comitial day one of those movable feasts, the date of which was fixed by their authority,[760] and thus making it a dies fastus.

Intercessio, though sometimes employed to describe the power of prohibition which we have just discussed,[761] is more properly applied to the power possessed, not only by higher magistrates, but by those of equal authority, of vetoing acts already performed by magistrates of equal or lower authority. It was an outcome, therefore, not only of major but of par potestas, and its invariable consequence was the invalidity of the act against which it was levelled. The intercession accompanied the par potestas of the consuls; with the creation of lower magistrates the conception of major potestas as giving this power arose, and the culminating point in the history of the intercession was the creation of the tribunate. It was the great safeguard against illegal or inequitable acts performed by magistrates, who were irresponsible during their year of office, and the tribune’s major potestas over every magistrate made him the guardian of the interests, originally of the Plebs and later of the whole community.

A veto to be valuable should imply some knowledge of the business vetoed; and thus we are not surprised to find that, except in the case of the tribune, the intercessio was generally confined within the limits of colleagueship. Thus the dictator possessed it against the consul, the consul against the praetor; although it is not improbable that the consul could veto the acts of the aedile and quaestor who were not his colleagues.[762]

The tribune, outside the bounds of his own college, could employ the intercession against all the patrician magistrates except the dictator—against the consul, praetor, aedile, and quaestor. The growth of the Roman constitution, however, created magistrates between whom no relation which justified the veto could be imagined to exist; none, for instance, could be established between the aedile and quaestor or between the consul and censor, and accordingly these magistrates had no power of impeding one another’s actions.

Three general limitations existed, which alone made this strange power a practical working principle of the constitution. The first, which was necessary to prevent utter confusion, was the finality of the intercession. The veto could not be vetoed, and the act which had been declared void could not be again made valid by the exercise of this power. A second was its purely civil character; in the field divided command was not tolerated, and the intercession, therefore, did not exist. A third was that the veto could only be directed against what was clearly the act of a magistrate. We shall find instances of this rule in the special applications of the intercession; an important consequence of it was that neither the verdict of a judex in civil cases, nor, after the growth of the standing criminal courts, of the judices in these quaestiones could be quashed by a magistrate.

The intercession may conveniently be considered from the point of view of three spheres of magisterial power against which it was directed—the decree (edictum[763]), the rogatio, and the senatus consultum.

(i.) The intercession might be directed against decrees of any kind—against those issued in the course of civil jurisdiction by the praetor, in the course of criminal jurisdiction by the consul, aedile, or quaestor, or in the exercise of other departments of administration such as the military levy. Intercession in all these cases rested on appellatio, the request for help (auxilium) made by the individual who felt himself injured by the decree. The appeal had to be made personally to the magistrate and the intercessio exercised personally by him. Thus we find tribunes tracking the footsteps of consuls to offer help on the occasion of an expected levy,[764] and a praetor taking up his position close to the chair of his colleague, waiting for appeals from his decisions.[765] In civil jurisdiction the intercessio might be employed at any stage of the proceedings before the magistrate (in jure); the appeal was usually from one of the city praetors to another, although they might possess different judicial departments (provinciae).[766] The general principle was to give the mutual right of veto to magistrates possessing somewhat similar authority and knowledge. But this rule did not apply to the tribune. His interference was directed against both civil[767] and criminal jurisdiction, and against the exercise of administrative power, especially that of the consul. In such cases as the consular conscription or the quaestor’s collection of the taxes,[768] it is not the general decree that is opposed by the tribune, but its application to individual cases by the coercitio of the magistrate. An appeal of this kind made to the tribunes sometimes became the subject of a quasi-judicial process, especially if it had been made to the whole college.[769] A picture of this process, which has been preserved, shows the appeal made from a consular levy; the appellants and the magistrate appealed against appear before the benches of the tribunes (ad subsellia tribunorum);[770] the collegium weighs the arguments and then gives its verdict, sometimes with the grounds of its decision.[771] It is possible that the college may in these cases have agreed to give the finding by a majority of votes, although, if one tribune persevered in the veto, he might overrule the assent of all his colleagues.