Roman Public Life

by A. H. J. Greenidge

But, although estimates were made by the censor, he had little to do with general expenditure. He had no concern with the provinces and the army, and was limited to the maintenance and extension of the public property of the state. He was either a maker or a repairer of opera publica, such as roads, aqueducts, temples, and public buildings.[1116] Such buildings or repairs were leased out to contractors, the state here becoming the debtor of a private company and seeking to obtain the lowest estimate for the work.[1117] For the purpose of repairs or new works a credit (pecunia attributa) was granted by the Senate, which directed the quaestors to employ this money at the discretion of the censors.[1118] Within the limits of this sum they could act at their own discretion with respect to the modes of expenditure, although they doubtless took the advice of the Senate. These grants and the purposes to which they were applied were known by the strange name of ultro tributa,[1119] a designation which may be a relic of a time when such opera were not leased, but were burdens (munera, moenia), owed as a voluntary tribute by the community.[1120]

These financial functions of the censors gave rise to an administrative jurisdiction. In their guardianship of public places they decided where private buildings had encroached on state property,[1121] or where public buildings had been usurped by privati.[1122] They may at times have pronounced on the pecuniary penalties meant to enforce the rights of public property, for they sometimes exercised their coercive power and proclaimed varying penalties (multae) to compel obedience;[1123] but such quasi-criminal jurisdiction must have been exercised more frequently by the aediles, and, where the amount of the fine necessitated the appeal, it must have been pronounced and defended by the latter magistrates. Jurisdiction bearing a resemblance to that of civil law was concerned with the ultro tributa, when the question arose whether a contract had been carried out satisfactorily or not, and with disputes about the public land, the controversy in the latter case lying most frequently between the publicanus and the possessor,[1124] but sometimes, no doubts between one who claimed to be an owner on the one hand and the middleman or an occupant on the other. The form of this jurisdiction varied. Sometimes, when the dispute lay between the state and an individual, as in the controversies about the ultro tributa, the sentence was the result of a purely magisterial cognisance, although we may suppose that the censor could, if he pleased, give a judex in such a case. Where the dispute lay between two privati, even though one of them had the quasi-official position of a publicanus, the granting of a judex or recuperatores was, at least in the later Republic, usual.[1125]

The plebeian Magistrates

The accidental preservation of the tribunate, through the failure of the decemvirate to do its work, and consequently of the plebeian assembly in all its purity, led to the persistence of a magistracy chosen only by and only from the Plebs. But the plebeian aedileship was welded with the curule office of the same name into practically a single magistracy, which has already been discussed;[1126] while the tribunate is so intimately bound up with every phase of the constitutional development and organisation of Rome, that every one of its leading functions has already been considered.

We have seen the method of its institution and the singular religious basis on which its power rested,[1127] and we have observed the numbers of the holders of the office rising from two to four, and finally to ten.[1128] The right of eliciting resolutions from the Plebs and the coercive power and jurisdiction possessed by this office have also been described.[1129] We have further dwelt on the anomalous duality of the office, and seen how in a certain sense it is not a magistracy, the tribune lacking both the requisite insignia[1130] and the right of taking auspicia impetrativa,[1131] but how, on the other hand, it becomes practically a magistracy of the people, when functions originally purely plebeian come to be used in the interest of the whole state. The right of acting with the Plebs gave the tribunes the power of initiating legislation when plebiscita had been raised to the level of leges;[1132] in their elective capacity they not only presided over the appointment of their successors and of the plebeian aediles, but through the Plebs they might not only create a minor magistracy such as the triumvirate agris dandis assignandis,[1133] but in the closing years of the Republic actually conducted the election of such officials.[1134] Their power of prohibition and their right of veto,[1135] limited for a moment by Sulla but soon restored in all its plenitude,[1136] became, when constitutionally employed, a guardianship of the whole state against the illegal or unconstitutional proceedings of other magistrates, and formed the chief basis of the Senate’s authority. Their association with the Senate, from being merely prohibitive, grew to be positive,[1137] and they finally shared the presidency of that body. Lastly, their powers of coercion and jurisdiction widened into a judicial control of the magistracy; they were the prosecutors of faulty officials, and, up to the time of the development of the quaestiones, represented the chief means which the state possessed of enforcing criminal responsibility on its executive.[1138]

The minor Magistrates

Prominent amongst the minor magistrates (minores magistratus)[1139] stands a group known finally, and perhaps in Republican times, as the viginti-sex-viri.[1140] This group was merely a collection of small colleges and not itself a collegium. It is probable that most of its members were originally nominated by superior magistrates; in later times they were all elected in the comitia tributa, although doubtless a separate elective act was required for each college.

(a) The IIIviri capitales, sometimes called by the less technical name of IIIviri nocturni, probably from their duty of extinguishing fires, were introduced as a standing institution about the year 289 B.C.[1141] Their general function was that of assistance to the other magistrates in criminal jurisdiction. After the judgment had been pronounced, they guarded the prisoners and carried out the death sentence.[1142] Their duties preliminary to a criminal trial were the preventive imprisonment of the accused and the conduct of a first examination after a criminal charge had been made.[1143] They also heard ordinary police-court charges, such as those of vagrancy or nocturnal disturbance of the peace,[1144] and they exercised police duties in the town, such as that of preserving order in the streets.[1145] When acting as magistrates who could give a final judgment, their dealings seem to have been with slaves and foreigners. There is no evidence that they possessed any right of sentencing citizens or any higher jurisdiction which would bring them into contact with the people.

(b) The triumvirate of the masters of the mint (IIIviri monetales),[1146] originally an occasional, first becomes a standing office about the time of the social war.[1147]

(c) Six sanitary commissioners, acting probably as subordinates to the aediles and bearing the titles IVviri viis in urbe purgandis (or viarum curandarum), IIviri viis extra propiusve urbem Romam passus mille purgandis, are first mentioned in Caesar’s Municipal Law (45 B.C.). The first looked to the cleansing of the streets within Rome, the second perhaps of those within the radius of a mile from the walls.[1148]