Roman Public Life

by A. H. J. Greenidge

The chief members of the governor’s staff were one subordinate magistrate, the quaestor, and certain senatorial commissioners (legati), one of whom was usually assigned to a praetorian, and three to a consular province. The magisterial position of the quaestor did not entitle him to an independent sphere of duties. It is true that he was, in the main, a financial official, was entrusted by the Senate with money or a credit for meeting the expenses of the administration of his province,[1524] received the revenues from the stipendium, and had at the end of the year to give an account of income and expenditure in his own name and that of his superior;[1525] but even here the real responsibility was incurred by the governor, whose commands were irresistible, and in all other respects the quaestor is the merest delegate, who exercises jurisdiction, or any kind of administrative work, in obedience to a voice that was supposed to convey a paternal authority.[1526] He might even, like the legates, be dismissed for incompetence or maladministration before the term of his office had expired.[1527] The legati had originally been representatives of the government in Rome, but, to avoid friction, the custom grew up of allowing governors to suggest individuals for the post.[1528] Yet to the end of the Republic their names were submitted to the Senate, and they were supposed to be subordinate officials of the state. No special departments were, however, assigned them; any power which they exercised was delegated by the governor, whether it took the form of the command of a legion or the presidency of a court. A still more independent selection was made of the unofficial members of the staff. The “comrades” (comites) of the governor were young men, whom he initiated in the mysteries of official and diplomatic life, and whose services he employed for any purpose for which they seemed competent.[1529] But, however many instruments the governor might use, there was such a complete unity of responsibility that, in dealing with the administration of a province, we are treating of the powers of a single man.

These powers were exercised chiefly in three spheres—military, administrative, and judicial. In a province that seethed with war the summer months were spent in camp, the winter in more peaceful duties; but in a settled district the governor could map out his circuits as he pleased, and devote some time to the ungenial task of inspecting the affairs of the municipalities under his control. Apart from the necessary diplomatic intercourse with neighbouring potentates or protected chiefs, the amount of administrative work which the governor undertook was as much or as little as he pleased. Its quantity depended on his view as to how far self-government was a symptom of health or of disease. That it sometimes had the latter character is shown by the startling discovery made by Cicero when he undertook an unexpected investigation into the financial affairs of his subject states. He found that the native Greek magistrates of Cilicia had been plundering their respective treasuries for the last ten years.[1530] But the possibility of such a discovery is itself a testimony to the best aspect of provincial rule in the Republic—its noble but sometimes misguided belief in the capacity of people to govern themselves.

There was, however, one systematic function to which most of the governor’s energies were directed in time of peace, and that was jurisdiction, both civil and criminal. General regulations concerning jurisdiction were made in the charters of the provinces; but these could not be the same for every country, since the judicial machinery of some groups of states was far more perfect than that of others. Sicily, the only province the details of whose lex are known, was peculiarly favoured, and its privileges may be taken as the best type of those offered by Rome. It was ordained that, in a suit between two citizens of the same state, the trial should be held in that state and according to its laws,[1531] a regulation which certainly guaranteed the native judex and the native code, but which did not, perhaps, inhibit an appeal to the governor or take away his right of interpreting the law. The charter then provides for cases of inter-political jurisdiction. If a Sicilian of one state sues a Sicilian of another, the governor is to provide by lot the judex or judices,[1532] who are perhaps in this case to be Roman citizens.[1533] When litigation arises between an individual and a community not his own, the Senate of some third state should be the judge, when either litigant has challenged one of three senatorial bodies proposed.[1534] In suits between Roman citizens and Sicilians the judex was to be of the nationality of the defendant.[1535] In all other matters judices chosen by the magistrate (selecti) were to be appointed from the Roman citizens dwelling within the assize.[1536]

In Sicily it is clear that the peregrinus judex was a standing institution. Elsewhere, even in the Hellenised East, his existence was more dependent on the grace of the governor. Cicero, in his government of Cilicia, following the precedent of Mucius Scaevola, the ideal governor of Asia, allowed the greatest freedom to the native laws, courts, and judges, and remarks on the quickened life which their use inspired in the provincials.[1537] The attempt, indeed, to substitute her own for the native law was abhorrent to the political sense of Rome, and her most ambitious representatives never attempted to make their edicts into codes. The importance of the edict was chiefly felt in matters of private international law, administrative jurisdiction, and procedure. It stated principles which should regulate the relations between members of different states or between provincials and Romans, it issued rules for the settlement of claims made by the publicani, and it supplemented the law of the province by framing regulations for the conduct of private suits. The edict of each province was a separate entity, and drew its name from the country to which it directly applied,[1538] and it had a continuous existence, although the unity and continuity of its life depended too much on the discretion of the individual governor.[1539] The edict might be composed at Rome,[1540] and its author might copy from more than one original. The rulings of his predecessor would doubtless be well known; there were the edicts of other provinces, the work of famous administrators of the past;[1541] and, as a fruitful source of general rules of procedure, there was the edictum perpetuum of the capital In Cicero’s own edict, of which he furnishes a brief description, the principles regulating business and trading relations (especially as existing between Roman companies and provincials) were clearly and fully set forth. As much attention was devoted to the general rules of inheritance and bankruptcy, such as had been evolved by the imperium at Rome, and which were doubtless meant not to supersede the customs of the various communities, but to be a common law for the province as a whole. But much remained that could not be formulated. A province had boundless surprises in store, and Cicero found it wiser to leave the third part of his edict “unwritten.” The principles of the urban praetor were to be drawn upon as occasion required.[1542] The civil jurisdiction of the governor, which was based on the edict, was either personal or delegated, and in both cases required the visitation of circuits (conventus, διοικήσεις),[1543] into which the province had been divided at the time of its organisation. A programme of the assize was drawn up, the stay in each circuit was accurately determined,[1544] and the governor held a court (forum egit) in each of them in turn.[1545]

Delegated jurisdiction was performed usually by the quaestor and the legates; in both cases it was due to the mandate of the governor,[1546] who could assign them lictors, if he pleased,[1547] and could always control their sentences.[1548]

The governor possessed an unfettered criminal jurisdiction over the members of the stipendiary states; but it cannot be supposed that he often exercised it. He might summon any case into his court, but ordinary crimes he doubtless left to the judicial machinery of the states themselves.[1549] On the other hand, it was held that an offence might be of such import as to transcend even his competence; and although there was no legal means of escaping his jurisdiction, it was considered advisable that he should send cases of a grave political character—those, for instance, connected with sedition or a popular rising—to be tried at Rome.[1550] The only restraining influence on the governor’s jurisdiction was the necessity, imposed by custom, of consulting a council of advisers.[1551] This consilium, however, was purely Roman, being composed of Roman citizens residing in the conventus and of members of the governor’s retinue,[1552] and although a council composed wholly of the latter was usually avoided, there was no legal hindrance to such a narrow selection.[1553]

Over Roman citizens in the provinces the governor possessed the same autocratic power; for his jurisdiction here is on a level with that of the camp, and he gives judgment in a sphere to which the provocatio does not extend.[1554] Yet a strong customary law, which was seldom disobeyed, directed that he should remit to Rome all cases in which Roman citizens were to be tried on a capital charge, and that, if he pronounced judgment himself, he should inflict on them no degrading punishments.[1555]

Almost every item in the provincial organisation that we have sketched shows where its inherent weakness lay. It resided in the uncontrolled power of the governor. Yet it was a weakness more apparent in practice than in theory. There were many controlling forces at work which the organiser and the government hoped would be effective. There were the charters of cities and of provinces, and in the province a constant, if improvised, committee of the Senate, which the governor was supposed to consult before he ventured on any important step.[1556] There was an unparalleled amount of legislation intended for the protection of provincials and expressed in enactments dealing with the ordering of the provinces, the rights of magistrates, and with extortion (de provinciis ordinandis, de jure magistratuum, repetundarum); and, lastly, there was the criminal responsibility supposed to be enforced by the courts which carried out these laws. Some of these checks—the charters of the favoured cities, the senatorial commission—were real, but were not far-reaching enough seriously to affect the form of provincial rule. Those of the laws were almost nugatory, for though the government that proposed them had a collective conscience, its individual members who were bound by them had none, and the courts that were supposed to enforce these laws became the prey of party strife and the weapon of party fanatics. But a government that depends on protective legislation and the enforcement of criminal responsibility must be in a perilous state. The defect must be in the principle of rule, not merely in its working. And in truth the Republican theory of provincial rule represents a fundamental inconsistency of idea. The theory aimed at the impossible combination of martial law with municipal independence. Had the rights of all the states been provided with better safeguards, their self-government might have been more real, and the autocracy of the governor might have been proportionately checked. But this solution would have been an offence to the idea of the unlimited imperium, a clinging superstition which the Romans had inherited from the history of their own state and her days of conquest. The Roman Empire had been developed from a protectorate; it bears to the end of the Republican period the traces of its origin, and, in its lack of organisation, conveys the suggestion of being a merely provisional government. The merits of such system as there was cannot be ignored. The unrestricted imperium was necessary in time of war and, under a benevolent despot, might be useful even in days of peace, while the very absence of organisation betrays the noble belief that the aggregate of states which formed a province was rather a confederated suzerainty than an integral part of an empire. But its defects are more glaring and are to be found in the absence of some central authority at home, not interested in provincial misrule, which might enforce responsibility on governors; in the existence of annual commands, and the exaggeration of routine which rendered extraordinary appointments, such as that of Pompeius, inevitable; and in the lack of an organised civil service, which, with its mechanical routine and its self-evolved rules, is perhaps the surest of all checks on autocracy.