Roman Public Life

by A. H. J. Greenidge

(ii.) The intercession against a rogatio, as contrasted with the power of forbidding a magistrate to question the people,[772] became at a very early period of the Republic the exclusive right of the tribune. It might be pronounced in any of the assemblies and against any kind of measure brought before these assemblies—against elections,[773] against leges, including formal acts such as the lex curiata,[774] and against plebiscita.[775] Custom had caused the intercession against a rogatio to be guided by certain formalities; it seems to have been irregular to pronounce the veto before the day of voting had arrived,[776] and indeed before the speeches for and against the law had been made.[777] In the case of laws, the correct time for interposing the veto seems to have been the moment when the introductory acts of the magistrate were over and before the voting had commenced;[778] in elections we find the tribune interceding after the first tribe had voted.[779]

(iii.) The intercession against a decree of the Senate (senatus consultum) was in theory a veto of the magistrate’s decree on which he had taken advice. It resided originally with the par majorve potestas. It was exercised by the tribune against the tribune,[780] consul,[781] and praetor,[782] and throughout the greater part of the history of the Republic by the consul against the consul.[783] The tribune possessed the right of vetoing senatorial decrees at the time when he had not only no power of summoning the Senate, but not even a seat in the House. In early days he placed his bench before the open doors for the purpose of examining decrees which were passed out to him and signifying his approval or dissent.[784] But, when in course of time the tribune gained the right of taking part in debate and of summoning the Senate, his intercession came to replace that of the consuls; and although the consular veto of a senatus consultum continued to be employed long after that against a rogatio had ceased to be recognised, it is not found after the time of Sulla (81 B.C.).[785] Here again the tendency was to make the tribunate the sole prohibitive power, and the tribune the sole guardian of the law.

The exercise of the veto in the Senate was simplified by the magistrate, who intended to impede the resolution, signifying his intention beforehand. This is the meaning of the declaration often made by a magistrate in the Senate, e.g. by the consul, that “he would not allow any business to proceed” (non passurum quicquam agi).[786] This declaration saved the time of the House, since the veto was not pronounced during the debate, but usually after the voting on the measure[787] or while the voting was in progress.[788] Hence the veto did not interrupt the procedure, nor even the threat of the veto suspend the particular business. The motion on which the veto had been put was, if approved by a majority of the Senate, drawn up as a resolution of the House (senatus auctoritas). It had lost its binding legal force as a decree, but it remained as an opinion for the guidance of any magistrate who cared to respect it. Sometimes the Senate requested the magistrate to suspend the intercession (intercessionem remittere),[789] and sometimes attached to a particular decree a general vote of censure on any magistrate who should veto it.[790] The intercession on certain kinds of senatus consulta might be forbidden by law. Thus the lex Sempronia (de provinciis consularibus) of 123 B.C. forbade the employment of the veto on the senatorial assignment of the consular provinces.[791]

It is needless to say that, with this conflict of authority, there was no true theory of responsibility in the Roman magistracy; for that implies a unity of power. But a description of what may be called the second element of responsibility, the capacity for being punished, or for being forced to give compensation, for a misuse of functions, will form a fitting complement to the history of the intercession.

The civil and criminal responsibility of magistrates was enforced by the same courts and the same processes by which ordinary citizens were tried. The only privilege which they enjoyed was that, as a rule, they could not be tried for a criminal offence during their year of office, and that none but the magistrates without the vocatio and prensio (i.e. the quaestors and aediles) could be summoned into the praetor’s court.[792] There was no special category of political offences which the magistrate alone could commit, although it is true that he was more specially liable than ordinary citizens to be tried for certain crimes; his greater capacity for doing harm to the state by cowardice or ignorance would expose him more than the ordinary citizen to a charge of perduellio; but the judicium populi tried him as a citizen, not as a magistrate, and the general rule that a magistrate was exempt from prosecution during his year of office made him, in fact, a privatus when he stood his trial. The commission of delicts, which were not cognisable by the popular courts, would have brought him before the ordinary civil tribunals. If he robbed a citizen, it was furtum; if he assaulted him in a manner not justified by his power of coercitio, it was injuria. There was indeed one delict which only a magistrate or an official could commit—appropriation of the state funds. In very early times this may have been brought under the expansive conception of perduellio, and punished criminally.[793] A few early laws, such as the fifth century lex de ambitu, were directed exclusively against magistrates or candidates for a magistracy; these laws doubtless specified the penalty to be imposed,[794] but their interpretation was left to the ordinary organs of criminal justice, the comitia.

But, as the foreign activity of Rome increased, and greater individual responsibility devolved on commanders distant from the centre of affairs and severed from all collegiate control, the possibilities of magisterial wrong-doing became too great to allow of the continuance of this simple system. The original theory was not, indeed, abandoned; the magistrate was tried before the same civil and criminal courts as the ordinary citizen; but the first step in the differentiation of ordinary from political jurisdiction was made when the initiatory steps in criminal proceedings against the magistrate were made the duty of a special office. It was the tribunes who were now used by the state—that is, by the Senate—as public prosecutors in criminal matters. It was a rough kind of justice which they meted out; the various charges which they brought could hardly be described by specific names, and in few cases was a penalty fixed by law. They formulated a punishment and brought it before the people, appearing as accusers either before the tribes or, when the penalty they proposed was a capital one, before the centuries, and the people, by a special legislative act, accepted or rejected their proposal.[795] Their superior potestas and, when the injury was done to their person, their sacrosanctitas gave them the legal right to coerce any magistrate into appealing or to bring him to trial during his year of office; but so strong was the feeling against this indignity to the magistracy that the veto of a colleague postponed the decision until the expiry of the official functions of the delinquent.[796] This political jurisdiction was not, however, directed solely against magistrates, but against any individuals who held an official position, against the staff-officers (legati) of a general,[797] against envoys[798] and senators,[799] and even against the farmers of the revenue (publicani).[800] The usual victims, however, were consuls and praetors, and the offences charged were mainly such as came under the conceptions of treason,[801] or were open violations of the rules governing the magistracy;[802] but sometimes they were wrongs done to individuals, such as might have come before the civil courts.[803]

The growth of Rome’s provincial territory made the continuance of this clumsy and casual jurisdiction impossible. The creation of the standing criminal courts (quaestiones perpetuae), with their presidents and juries, was the reaction of the provinces on Rome. We shall speak elsewhere of the mixed character of these courts, which were formed of a fusion of ideas borrowed from the criminal and civil law. The earliest which were created supplied a readier redress and severer punishments for the delicts of magistrates than the civil courts could give. Others were based on the classification of political offences. The great codification of the criminal law effected by Sulla (81 B.C.) rendered the tribunician jurisdiction superfluous, although it still reappeared at intervals during the party struggles of the close of the Republic.

We have now reviewed every important aspect of the magistracy in general; but before going on to describe the separate functions of the magistrates in administration, so far as these have not been already anticipated, it will be convenient to touch slightly on the formal conditions requisite for holding office at Rome. These conditions often illustrate the magistrate’s position in the state, and they sometimes create real limitations on his power.

The qualifications for public office (jus honorum petendorum) were based on the general principle that for patrician magistracies any citizen was eligible,[804] for plebeian only those of plebeian birth.[805] But to this general rule there were certain limitations based partly on the idea of the dignity of office, partly on the view that experience of a certain kind was necessary for the fulfilment of such responsible functions.