Roman Public Life

by A. H. J. Greenidge

Consular jurisdiction was of two kinds, administrative and criminal. The administrative justice of the Republic was concerned chiefly with financial matters touching the interests of the community, such as pecuniary claims made by the state on individuals or by individuals on the state. The regular discharge of this duty passed to the censors; but in the gaps between the censorships it reverted to the consuls. We also find them adjudicating on questions of property between the cities of Italy.[898] In this matter they doubtless acted on the instructions of the Senate.

The criminal jurisdiction of the consuls was expressed in three ways. It was for centuries, as exercised through the quaestors, the regular capital jurisdiction for ordinary, as opposed to political, crimes; it was asserted, as part of their coercitio, with or without appeal according to the nature of the sentence imposed;[899] or it might be jurisdiction without appeal delegated by the people. We shall trace elsewhere the growth of a custom by which the comitia assigned jurisdiction on certain crimes to special commissioners. The people, who in this delegation were acting on the advice of the Senate, generally left the appointment of the commission to that body, and the Senate selected either a consul or a praetor.[900] We also find the consul presiding over a criminal inquiry (quaestio) raised by a point of international law, such as the question whether the repudiation of a treaty by the people should have as its consequence the surrender of the general guilty of concluding it.[901]

The unlimited imperium of the consul in the field (militiae), which was asserted when he had crossed the pomerium[902] and required the sanction of the lex curiata, was, in the early Republic when wars were confined to Italy, generally exercised by both the consuls together. To avoid the inconvenience and danger attending the rule of two commanders-in-chief of equal power, the principle of rotation was adopted, each consul having the supreme command for a single day.[903] But this device was necessary only when military considerations dictated that all the Roman forces should act together. Frequently the Roman armies had been simultaneously directed against various points of Italy, and the custom naturally suggested itself that each consul should command half of the regular army of four legions, and thus have an independent sphere of operations (provincia).[904] In a defensive war, such as that against Hannibal, Italy would naturally fall into two consular provinces;[905] but the practice became even more essential when the Roman arms extended beyond the peninsula, and in the period of the acquisition of the empire, from the beginning of the first Punic war to the close of the struggle with Greece (264-146 B.C.), Italia as a whole, and some foreign country such as Greece or Macedon, are the regular provinciae held by the consuls.[906] The arrangements which were made for the permanent government of provinces, first through praetors and afterwards through pro-magistrates, tended to arrest their employment for this purpose; but down to the time of Sulla (81 B.C.) a consul might at any time be appointed to a transmarine province.[907]

The consuls settled the distribution of provinciae by agreement or by lot,[908] the sortitio becoming in time the more usual practice. Occasionally the Senate ventured to suggest that one of the consuls was better qualified for a special department, and in this case the inevitable consent of his colleague enabled him to assume it extra sortem.[909] But, as Rome’s activity extended, and the available magistrates with imperium increased, the important question came to be, not who should have one of two departments, but which should be the consular provinces. This power to nominate the provinces (nominare provincias) had, by the close of the Hannibalic war, become the undisputed prerogative of the Senate,[910] and one of its surest modes of controlling the consuls. This de facto power was formally recognised by a law of the tribune C. Gracchus in 123 B.C., although it scarcely required legal recognition, and the purport of the lex Sempronia was to weaken the discretionary power of the Senate by enacting that the consular provinces should be fixed before the election of the consuls who were to hold them.[911] At this period the consular departments were almost invariably foreign commands; but, after the close of the social war and the reforms of Sulla, they were held by their recipients as proconsuls after their year of office at Rome had expired.

We do not know the exact tenor of the lex Cornelia de provinciis ordinandis. Sulla did nothing to infringe the military imperium of the consuls; after as before his law it was legal for them to “approach any province”;[912] but he devised some means of separating home from foreign commands, which, by crystallising the established custom, restricted the consuls and praetors to the civil government of Rome and Italy, and sent them out after their year of office as proconsuls and propraetors to the provinces. The powers conferred by the military imperium[913] were thenceforth lost, and the consul at the close of the Republic had less specific functions than any magistrate; even his criminal jurisdiction had vanished before the establishment of the permanent courts. Yet still the consul, who observed constitutional forms, was the chief interpreter of the Senate’s will; while one who, like Caesar in 59 B.C., violated all these forms, might exercise an almost monarchical power. The possession of the consulship was the great annual prize, contested and almost equally secured by the conservative and the reform parties from the time of the Gracchi to the close of the Republic,[914] and the competition was not wholly directed to secure the military imperium which lay beyond it. The civil office might still make a capable man, supported by a powerful following, the guide of the destinies of the state.[915]

The Praetors

We have seen how the functions of civil jurisdiction were given to a minor colleague of the consuls, and how a second colleague was subsequently added to try cases in which the interests of peregrini were involved.[916] The needs for judicial magistrates could not end here. The provinces of Sicily and Sardinia, acquired as a consequence of the first Punic war, required jurisdiction, and two praetors were given them about the year 227 B.C.; two more were added in 198 B.C. for the two newly acquired Spanish provinces, thus bringing up the full number to six. A lex Baebia (circa 180 B.C.) enacted that four and six praetors should be elected in alternate years, probably for the wise purpose of making the praetorian government of the difficult Spanish provinces biennial; but this law was soon suspended, and six praetors continued to be annually elected until the time of Sulla (81 B.C.).[917] It is true that between 198 and 81 many provinces had been added to the Roman Empire; but the principle of administration by pro-magistrates had gained recognition while these were being created; the praetors were becoming, like the consuls, more and more city officials, and the necessity for adding to their number came from the development of the criminal law. At least eight praetors were needed for the presidency of the civil and criminal courts at Rome, and consequently two were added by Sulla to the original six.

The variety of functions performed by the praetors was due to their having a general and a special character. On entering office, after election by the centuries, they were at once, as inferior colleagues of the consuls, capable of any of the duties which flowed from the imperium. They were then assigned some special office, some definite provincia; but the exercise of this did not destroy their capacity for general action. For command in war, as well as for the exercise of at least civil jurisdiction—both attributes of the full imperium—they required a lex curiata. Each had the right to six lictors, and appeared with the full number when controlling a province outside the city; but, in the exercise of his jurisdiction at home, he employed, or was allowed, only two.[918] The praetor’s specific title was derived from his province; of the two original home praetors one was known as the praetor qui inter cives jus dicit, or, in the colloquial phrase which became titular, as praetor urbanus; the other as the praetor qui inter peregrinos jus dicit, known finally as the praetor peregrinus. But both the home praetors were often spoken of as having urbanae provinciae and exercising urbana jurisdictio.[919] Their rank was higher than that of their colleagues—hence their names were, like those of the consuls, used for dating[920]—and of the two the praetor urbanus was regarded as holding the more distinguished position.[921] His duties were naturally far more engrossing than those of his colleague, and the law that he must not be absent more than ten days from Rome during his year of office[922] made him more of a distinctly civic official.

The powers of the praetors, taken in their natural order, may be divided into (i.) their general administrative duties at Rome, and (ii.) the duties of their special departments. In the first of these spheres they acted in virtue of their own imperium but vice the consuls, and generally, therefore, when the consuls were absent from the city. If they acted when the consul was present, it was by authority of the Senate, and legally the consuls might prohibit this action.[923] Such an injunction by the Senate was a constitutional mode of coercing the consuls into doing their duty. In this way the praetors might summon the Senate,[924] propose a rogatio,[925] hold the levy,[926] and exercise criminal jurisdiction delegated by the people.[927] Usually, however, such duties were performed by them only in the absence of the consuls, and the praetor urbanus generally took the lead,[928] although the summons of the Senate by both home praetors, and even by a provincial praetor, was not unknown.[929]

The special functions of the praetors were always assigned by lot (sortitio). During the period when some of the praetors governed provinces, a regular sortition took the form of an assignment of the two urban provinciae to two, and of the foreign provinces to two and afterwards to four members of the college.[930] But in the third and early part of the second centuries, before prorogation of command became the normal principle, and when Rome had few magistrates with imperium at her disposal, this regular sortition could not always be observed. Sometimes the two urban praetorships were combined,[931] or the praetor peregrinus might be given an Italian command, such as Cisalpine Gaul.[932] In this way a praetor could be spared for the command of the fleet or in Gaul (at Ariminum). This disturbance of the sortitio and the appointment of a praetor extra ordinem[933] were naturally the work of the Senate. After Sulla the two civil and six of the criminal courts were assigned to the eight praetors by lot.