I. CITIZENSHIP AND
ORDERS IN THE STATE
Accordingly there were among Roman citizens three social (and
in a manner political) ranks (ordines): the Senatorial Order (ordo senatorius),
the Equestrian Order (ordo equestris), and the People (populus, in the
narrower sense). The first two of these made up the Roman aristocracy.
I. SENATORIAL ORDER.-- The Ordo Senatorius was strictly speaking
only another name for the Senate, the members of which, by virtue of their life tenure of
office, their privileges and insignia, and their esprit de corps, formed a kind
of Peerage. The list of Senators, regularly numbering 300, was in early times made up by
the Censors at their discretion from among those who had held high magistracies. But after
the reforms of Sulla (B.C. 80) every person who had held the quaestorship--the lowest
grade of the regular magistracy(see quaestor below)--was lawfully
entitled to a seat in the Senate. This aristocracy was therefore an official or
bureaucratic class. Their number fluctuated, running up to five or six hundred.
Nobility, however, did not really depend on holding offices oneself, but on
being descending from an ancestor who had held a curule office. [Whoever held any curule
office--that is, dictator, consul, interrex, praetor, magister equitum, or curule
aedile--secured to his posterity the ius imaginum; that is, the right to place in
the hall and carry at funeral processions a wax mask of this ancestor, as well as of any
other deceased members of the family of curule rank. The privilege was highly prized.]
When any person not so descended was chosen a magistrate, he was called a novus homo
[examples are Cato the Censor, Marius, and Cicero], and, though he of course became a
member of the Senatorial Order, he was not regarded as a noble. His posterity, however,
would belong to the nobility. But such instances were very uncommon; for the Senate and
the magistrates had such control over the elections that it was very difficult for any
person not already a member of the nobility to be chosen to any office entitling him to
enter the Senate. Hence the Senatorial Order and the Nobility were practically identical,
and "new men" became necessarily identified with the class to which their
posterity would belong, rather than that from which they themselves had come. This double
relation of Cicero--a member of the Senate, but sprung from the Equestrian Order--goes a
great way to explain what is inconsistent and vacillating in his political career.
II. EQUESTRIAN ORDER. --The title Equites was originally applied to
the members of the eighteen centuries equitum equo publico under the Servian
constitution, to whom a horse was assigned by the state, together with a certain sum of
money yearly for its support, and who constituted the old Roman cavalry. Those who served equo
publico had to have the equestrian census, i.e. possess a fortune of 400,000
sesterces ($20,000) [this requirement grew up only after the establishment of the equites
equo privato]; and the horses were assigned by the Censors, as a rule, to the young
men of senatorial families. These centuriae equitum were therefore composed of
young noblemen. When they entered the Senate, they were (in the later years of the
republic) obliged to give up the public horse. Therefore, on becoming Senators, they voted
in the centuries of the first class, not with the Equites (see equites below). This
aristocratic body had, however, long before Cicero's time, ceased to serve in the field;
they formed a parade corps (somewhat like the Royal Guards in England), from which active
officers of the legion, tribuni militum, were taken. [When the Roman equites
ceased to serve as cavalry, troops of horse were demanded of the allies; and in the time
of Caesar we find that the Roman legion consisted exclusively of infantry, the cavalry
being made up of such auxiliaries.]
During the time that the equites equo publico still served in the
field as cavalry, another body grew up by their side, consisting of equites equo
privato: that is, persons of the equestrian census (having a property of 400,000
sesterces), who had not received a horse from the state, but who volunteered with horses
of their own. This body consisted mainly of young men of wealth who did not belong to
noble (that is, senatorial) families. No very distinct line was, however, drawn between
the two classes until the Lex Iudiciaria of C. Gracchus (B.C. 123), which
prescribed that the iudices should not, as heretofore, be taken from the
Senators, but from those who possessed the equestrian census, and at the same time were
not members of the Senate. This law did not formally exclude nobles who were not members
of the Senate; but the entire body of nobility was so far identified in spirit and
interest with the Senate, that an antagonism immediately grew up between them and this new
judicial class. A principal cause of the antagonism was that members of the Senate were
prohibited from being engaged in any trade or business: while, as has been shown above,
the Senate, by its control over the elections, virtually filled its own vacancies, of
course from the ranks of the nobility. Hence, as rich men of non-senatorial families were
excluded from a political career, and so from the nobility, while Senators were excluded
from a business life, there were formed during the last century of the republic two
powerful aristocracies,--the nobles, or Senatorial Order, a governing aristocracy of rank,
and the Equestrian Order, an aristocracy of wealth, corresponding to the moneyed
aristocracy of our day. The name Ordo Equestris was given to the latter body
because its members possessed the original equestrian census: that is, that amount of
property which would have entitled them to a public horse. From the ranks of the nobility
were taken the oppressive provincial governors: the Equestrian Order, on the other hand,
furnished the publicani, the equally oppressive tax-gatherers.
The Equestrian Order, Ordo Equestris, is therefore not merely
distinct from the centuriae equitum, but strongly contrasted with them. The
former is the wealthy middle class, the latter are the young nobility. The term equites
is sometimes applied to both indiscriminately, although the strictly correct term for the
members of the Equestrian Order was iudices.
III. POPULUS. --Below these two aristocratic orders, in estate and so in
social position, were all the rest of the free-born citizens not possessing a census
of 400,000 sesterces. Among these there was naturally great variety in fortune,
cultivation, and respectability; but they all had a status superior to that of the libertini
(freedmen) and the foreign residents. It was this third class which was under the control
of the tribuni plebis and which by its turbulence brought on all the disturbances
which ultimately resulted in the overthrow of the republic. It must not be supposed,
however, that these humbler citizens were debarred from political preferment except by
their want of money, and in fact many of them rose to positions of wealth and influence.
The populus (in the narrower sense) was often confounded with the plebs,
but in reality the distinction between the plebs and the patricians was
in Cicero's time historical rather than political. The patricians had been originally a
privileged class of hereditary nobility, entirely different from the later senatorial
nobility; but only a few patrician familes remained, and these, though still proud of
their high birth, had no special privileges and had been practically merged in the
Senatorial Order. Opposed to the patricians had originally been the plebs, a
class of unknown origin (probably foreign residents) destitute of all political rights.
These had gradually, in the long controversies of the earlier Republican times, acquired
all the rights and privileges of full citizens, and a majority of the Senatorial and
Equestrian Orders were of plebian origin. In time plebs in an enlarged sense and populus
in it narrower acceptation had become synonymous, meaning the "third estate" or,
in other words, all citizens not Senators or equites. Officially, however, Populus
(in its wider sense) includes all Roman citizens. [So in the formula for the Roman
government: Senatus Populusque Romanus. (S.P.Q.R.)]
ROMAN CITIZENSHIP. --Roman citizenship, like all rights that have grown up in
a long period of time, included many minute details. The important points, however, may be
included under two heads: (i) political rights, including those of voting (ius
suffragii) and holding office (ius honorum), and (ii) civil rights,
especially those securing personal freedom by the right of appeal (ius provocationis),
etc., and by other privileges limiting the arbitrary power of magistrates (see remarks on
the imperium, below). Among the civil rights were those of trade (commercii),
intermarriage (connubii), making a will (testamenti), and others, which,
though affecting the status of a man before the law, were unimportant in comparison with
the great political and civil privileges first mentioned. Full citizens of Rome (cives
optimo iure) enjoyed not only all the civil rights referred to, but also the ius
suffragii et honorum; but many persons, not cives optimo iure, had important
civil rights without being entitled to vote or hold office. The ius provocationis
was especially sought after by foreigners as affording a powerful protection all over the
world in times when the rights of common humanity were scantily recognized.
ITALIAN TOWNS. --Roman citizenship was originally
restricted to the inhabitants of the city and a small amount of adjacent territory. But as
Rome enlarged her boundaries the rights of citizenship were extended, in different
degrees, to the conquered Italians.
A native Italian town which lost its original dependence and was absorbed in
the Roman state, ceased to be a separate civitas, and became a municipium;
its citizens now possessed Roman citizenship as well as that of their own town. This Roman
citizenship was possessed in various degrees. Some municipia lost all rights of
self-government, without receiving any political rights at Rome in their place: that is,
their political existence was extinguished, and their citizens became mere passive
citizens of Rome, with civil rights, but no political ones. A second class of towns
retained their corporate existence, with the right of local self-government, but without
the Roman franchise. The condition thus established was called ius Caeritum,
because of the Etruscan town of Caere was taken as the type. The most favored class of municipia
retained all powers of self-government, with magistrates of their own election, at the
same time being full citizens of Rome. If, as happened in many cases, colonists were sent
from Rome (or Latium) to occupy the conquered territory, these retained their full Roman
citizenship though living at a distance from the city. Thus a class of towns called coloniae,
possessing special privileges, grew up.
After the Social War, which resulted (B.C. 90) in giving full Roman
citizenship to the inhabitants of all the Italian towns not already enjoying it, there
were practically but three classes of such towns: coloniae, municipia,
and praefecturae. There was no longer any real distinction between the coloniae
and the municipia, though the former were looked upon with more respect. The praefecturae,
however, had not full rights of self-government, for the administration of justice was in
the hands of prefects (praefecti) sent from the capital.
PROVINCIALS. --The foreign conquests of Rome were organized as fast as
possible as provinces (provinciae). The native inhabitants of these would not be
Roman citizens at all, unless citizenship, usually of the lowest grade, was specially
conferred upon them. Thus St. Paul was a free-born citizen of Tarsus, for his father had
in some way secured the lesser Roman citizenship, which conferred civil rights but did not
carry with it the right of suffrage or any other political privileges.
FREEDMEN. --Besides the free-born citizens (ingenui), the Roman
state included a large class of libertini or freedmen. Manumitted slaves became
citizens, but their exact status was a standing subject of controversy in politics. In
Cicero's time they voted in the four city tribes, though there had been various attempts
to make them eligible for membership in all the tribes so that their suffrages might count
for more. Throughout the history of the republic, there was a constant tendency to extend
the suffrage, in spite of the effort of the upper classes.
The government of this complex assemblage of citizens was in
the hands of a still more complex system of magistrates and assemblies. As in our own day,
we must distinguish the Legislative, the Executive, and the Judicial,
though these various branches of the state authority were not so scrupulously kept
separate as with us.
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II. THE PUBLIC
ASSEMBLIES
The Legislative (or law-making) power proper resided
in the Public Assemblies (comitia). There were, in Cicero's time, two principal
assemblies, both of them having as their basis the thirty-five local tribes into which the
whole people were divided for administrative purposes.
I. COMITIA CENTURIATA. --The Comitia Centuriata, or great comitia,
was the military organization of Servius Tullius endowed with new political powers at the
foundation of the republic. Later it was reorganized upon the basis of the thirty-five
tribes. There is no precise statement as to either the time or the manner of this
reorganization. It must, however, have taken place between the First and Second Punic
Wars, and, according to one theory, was carried out in the following manner. The old
division of the people into five classes (according to wealth) being retained, for each
tribe there were now formed two centuries of each class, one of seniores (above
45), one of iuniores, making in all 350 centuries. To these were added 18
centuries of equites (the young men of senatorial families), guilds of smiths,
carpenters, hornblowers, and trumpeters, and a century of freedmen and capite censi
(those who had no property) --373 in all. Each century had one vote, determined by the
majority of its voters. These comitia were regularly presided over by the consul;
they elected all the higher magistrates, and had full power of making laws, as well as
jurisdiction in criminal cases so far as this had not been transferred to the Quaestiones
Perpetuae.
II. COMITIA TRIBUTA. --Legislation had, before Cicero's time, however,
practically passed into the hands of the tribal assembly (Comitia Tributa). There
were two distinct assemblies which passed under this name:
(a) The Comitia Tributa proper, an assembly of the entire people
according to the thirty-five tribes (each tribe having one vote), which elected the
inferior magistrates (curule aedile, quaestor, etc.), and was presided over by the
praetor.
(b) The far more important tribal assembly of the plebeians exclusively,
presided over by the Tribune of the People. Strictly speaking, this latter was not comitia,
inasmuch as it was not composed of the whole people, populus, --the patricians
being excluded from it. But these were now reduced to a few noble families, whose members
would not have cared to take part in this democratic assembly even if they had been
permitted; and by the Hortensian Law (B.C. 287) acts of this assembly, plebiscita,
had received the validity of laws. This plebeian assembly elected the plebeian magistrates
(tribunes, plebeian aediles). It was also the principal organ for making laws.
The Comitia Centuriata, which elected the higher magistrates, being
originally a military organization, could only be convened outside the city, and
accordingly met in the Campus Martius or parade-ground. The Comitia Tributa,
however, being purely a civil assembly, usually met in the Forum, but could be convened in
any suitable place.
III. COMITIA CURIATA. --A third assembly, the Comitia Curiata, more
ancient than the other two, retained only certain formal functions, especially that of
ceremonially investing the consuls with the imperium or military authority.[This
was done annually by passing a law called lex curiata de imperio. On such
occasions the thirty curiae were represented by bailiffs (lictores).] It
had no longer any real power or political importance. Membership in the comitia
curiata was originally confined to patricians, but it is not clear whether this
restriction was continued in Cicero's time.
CONTIO. --Besides these assemblies, there were meetings, theoretically for
discussion, called contiones. A contio could be called by any magistrate
who had a matter to lay before the peope, and was held regularly in the Comitium
or the Forum.[For an example of an address at such a meeting see the Oration for the
Manilian Law (Pro Lege Manilia).]
After a rogatio (propositon of a law) had been offered, such a meeting was
regularly convened in order that the voters might hear the arguments on both sides. After
that, on the same or a subsequent occasion, the comitia voted on the bill, Yes or
No, at a regular meeting for that purpose.
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III. THE SENATE
The Roman Senate (senatus), as its name indicates,
was originally the "council of elders", advisers of the king. It had, therefore,
strictly speaking, no authority to make laws or to enforce their execution, and its votes
were simply consulta, i.e. matters agreed upon as advisable, and its power was auctoritas.
When annual magistracies succeeded the regal power, this advisory function continued, but
the influence of the Senate increased, and the increase went on until, in the third
century B.C., this body came to be the actual (though not formal) governing power in the
state, and its consulta became ordinances, by which the Senate directed
the administration of the whole state, though it still had no power to pass laws, and was
itself subject to the laws. The organization of a new province, for example, was an
executive measure, put in force not by a law of the people, but by an ordinance of the
Senate; and in this ordinance was embodied the entire authority of Rome over the province,
except so far as this was defined by general laws passed by the whole people.
It will thus be seen that the Senate, though originally a
"council," had by the time of Cicero absorbed a great part of the legislative as
well as the executive power of the state.
For membership in the Senate, see above.
The Senate could only be called together by some magistrate regularly
possessing the imperium (usually the Consul), or by the tribunes of the people (tribuni
plebis): the magistrate who summoned it also presided, and laid before it (referre)
the business for which it was convened. He might at this point give his own judgment. He
then proceeded to ask (rogare) the Senators individually their opinions (sententiae).
The order was to ask in their turns the consulares, praetorii, and aedilicii
(that is, those who sat in the Senate by virtue of having held these offices
respectively). It has been disputed whether the senatores pedarii--i.e. those who
had held no curule office--had the ius sententiae, or right to debate. There are,
however, numerous instances of their having taken part in discussion. If the annual
election had already taken place,--which was usually in July, six months before the new
magistrates assumed their offices,--the magistrates elect (designati) were called
upon before their several classes. The princeps Senatus [someone designated by
the censors as first man of the Senate: an honorary office, held ordinarily by
patricians.] was called upon first of all, when there were no consules designati.
The presiding officer, however, had it in his power to vary the order, and honor or slight
any Senator by calling upon him extra ordinem. For a deliberative oration,
delivered in the Senate, see the fourth Oratio
in Catilinem.
As the Senate was primarily a body of councillors, its business was as a rule
laid before it in general terms, not in any special form for action: each Senator could,
as he chose, give his judgment in full, by argument (sententiam dicere), or by
simply expressing his assent to the judgment of another (verbo adsentiri). No
Senator had a right to introduce any matter formally by motion, as with us, but it was
possible for a Senator, when called, to give his opinion on any subject not included in
the questions referred. [The most memorable example of this would be Cato the Censor, who,
from 153-149 B.C., ended every speech he made in the Senate by saying "Carthago
delenda est.--Carthage must be destroyed." --webmaster.] The vote was
taken by a division (discessio), i.e. the Senators went to one side or the other
of the house. When a majority had decided in favor of any sententia, it was
written out in proper form by the secretaries (scribae), under the direction of
the presiding magistrate, in the presence of some of its principal supporters (adesse
scribundo), and promulgated. An example of a formal resolution of the Senate is
contained in the last chapter of Cicero's Fourteenth Philippic.
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IV. THE EXECUTIVE
THE CONSULS. --After the expulsion of the kings, their
absolute authority (imperium), both in peace and in war, was vested in two
Consuls (originally praetores). Gradually, however, these autocratic powers were
limited by various checks, so that in one sense a Consul had no more power than the
president of a modern republic. He could, it is true, do anything in his year of
office without lawful question from anybody; yet, as he could be called to account at the
end of his term, any violation of the constitution was extremely dangerous. Particularly
was this true in regard to objections from any one of the ten tribunes. The danger of
transgressing this limitation was so immediate that it was rarely incurred, and
practically in almost all cases the "veto" (intercessio) of a tribune
was sufficient to stop any action on the part of the curule magistrates. Another
limitation on the consular power came from the curious Roman arrangement of co-ordinate
magistrates or "colleagues." The objection of one consul was sufficient to annul
any act of the other. This principle also applied to other magistracies, so that the
wheels of government could be stopped by any colleague of equal rank. To override such an
objection was an act of unconstitutional violence, which, however, was often practised
when public opinion could be relied on to sustain the illegal action. In practice, the two
consuls either took turns in the administration (sometimes alternating month by month) or
agreed upon a division of functions.
The consuls were regularly elected in July and entered upon their office on
the first day of the following January. They possessed two kinds of authority,--potestas,
or power in general (which all magistrates had in some degree), and imperium,
military or sovereign power, as of a general in the field. [Of the other regular
magistrates only the praetors possessed the imperium. The imperium was
formally conferred on the consuls by the comitia curiata.] This imperium
was originally exercised by the consuls, not only in the army but in the city, so that
they had absolute authority of life or death; but this was limited, early in the history
of the republic, by the Lex Valeria, which gave every citizen the right of appeal
(ius provocationis) to the comitia centuriata against a sentence of
capital or corporal punishment, and later by the Lex Porcia, which forbade the
scourging of citizens. By the Lex Sempronia of Caius Gracchus the right of appeal
in capital cases was established even against the military imperium. [Cf.
Crucifixion of a Roman Citizen, sect. 6.] In other respects, however, the military imperium
remained practically absolute, but it could not be exercised inside the walls, except by
virtue of the senatus consultum, "Dent operam consules ne quid res publica
detrimenti capiat," which revived the ancient powers of the consuls and was
equivalent to a declaration of martial law. After the Sullan reforms (B.C. 80) the consuls
did not receive the military imperium until their year of office had expired and
they were about to set out for their provinces. The civil powers of the consuls were
analogous to those of any chief magistrate. Most important among them were the right to
call together, consult, and preside over the Senate, and the right to convene the comitia
centuriata and preside over the election of the higher curule magistrates. For the
consular auspicia, see below.
PRAETORS. --Praetor was the original Italic title of the consuls,
but, as the result of the agitation for the Licinian Laws, in B.C. 366, a special
magistrate of that name was elected "who administered justice, a colleague of the
consuls and elected under the same auspices." [He was, however, inferior in rank to
the consul, who had maior potestas.] Gradually other praetors were added, until
in the time of Cicero there were eight. They were essentially judicial officers, and their
functions were assigned by lot. As curule magistrates, however, they could on occasion
command armies or assist the consuls in emergencies, and were assigned as propraetors to
provinces abroad after their year of office. Like the consuls, they were regularly elected
at the comitia centuriata in July and began to serve on the first of the
following January.
QUAESTORS. --the quaestors (quaestores), or
public treasurers, were in Cicero's time twenty in number. Two (called quaestores
urbani) had charge of the treasury and archives at Rome, while the others were
assigned to the several military commanders and provincial governors, to serve as
quartermasters and paymasters. The quaestors entered upon office on Dec. 5, when they drew
lots to determine their respective places of service. [They were originally appointed by
the consuls, but in Cicero's time were elected by the comitia tributa. The
practical management of the treasury was with the clerks (scribae quaestorii), as
in our modern civil service. These formed a permanent and powerful corporation.]
CURSUS HONORUM. --No one could be chosen praetor until
he had been quaestor, or consul until he had been praetor. These three magistracies, then,
formed a career of office--the so-called cursus honorum--which it was the aim of
every ambitious Roman to complete as soon as possible. To be elected quaestor a man had to
be at least 30 years old [in the time of the Gracchi the age was 27], and the lowest legal
ages for the praetorship and the consulship were 40 and 43 respectively. The consulship
could in no case be held until three years after the praetorship. Consuls and praetors
were curule magistrates, but this was not the case with the quaestor. The office of curule
aedile (see below) was often held between the quaestorship and the praetorship, but it was
not a necessary grade in the cursus honorum. The minimum age for this office was
the twenty-seventh year.
AEDILES. --The aediles (from aedes, a temple) were four magistrates,
who had the general superintendence of teh police of the city, criminal jurisdiction with
the power of imposing fines, the care of the games, public buildings, etc. They did not
form a board (collegium), but were of two grades, two being necessarily
plebeians, while the other two, the curule aediles, who ranked with the higher
magistrates, might be patricians. The aedileship was not a necessary step in a political
career, but it was eagerly sought, between the quaestorship and the praetorship, by
ambitious men, for the reason that the superintendence of the public games gave great
opportunity for gaining popular favor. A certain sum was appropriated from the public
treasury for these games; but an aedile who wished to rise to higher positions, and not to
be thought mean, took care to add a good sum from his own pocket.
LICTORS, INSIGNIA, ETC. --The consuls and praetors were accompanied by
special officers called lictors (lictores), who were at the same time a symbol of
the supreme power and the immediate ministers of the will of the magistrates. They carried
a bundle of rods and an axe bound together (the fasces), to inflict the
punishment of flogging and death according to the regular Roman mode of execution. Each
consul had twelve lictors, each praetor had six. After the right of appeal was
established, the lictors did not carry the axe inside the city. Besides the
"imperial" lictors, all magistrates were attended by ministers of various kinds,
viatores (summoners), praecones (criers), and slaves. All the curule
magistrates wore as a mark of authority the toga praetexta (white with a crimson
border), and the latus clavius (or broad stripe of crimson) on the front of the
tunic. As commanders of armies, they wore instead of the toga the paludamentum, a
kind of cloak entirely of crimson. In fact, the majesty of the law symbolized in the most
striking manner in the case of all magistrates except the tribunes, who, as champions of
the plebs, wore no distinguishing dress, the quaestors and the plebeian aediles.
PROCONSULS AND PROPRAETORS. --All the magistrates so far mentioned were
elected annually. when it was desired to retain the services of a consul or a praetor
after his term had expired, his imperium was extended (prorogatum) by
the Senate, and he was known as a proconsul or propraetor. It was only
the military imperium that was thus prorogued [sometimes a private citizen was
invested with the imperium and called proconsul], not the civil power. Thus the
proconsul had no authority within the city, and could not, like the consul, call together
the Senate or an assembly of the people.
As the state grew, it became customary to commit the government of conquered
provinces to proconsuls and propraetors, and to this end the prorogation of the imperium
for a second year became regular. After the time of Sulla, all provinces were so governed
[After the Sullan reforms (B.C. 80) the military imperium was not enjoyed by the
consuls and praetors until their year of civil magistracy had expired.], one of his laws
providing that the consuls and praetors should set out for their provinces immediately on
the expiration of their term of office in the city. [This arrangement was changed by a law
of Pompey (B.C. 52) which provided that five years should intervene between the magistracy
and the provincial government.] no difference was made between the full power of a
proconsul and that of a propraetor. Both officers had the full military and civil command
and were almost absolute monarchs, except for their liability to be afterwards called to
account. Their opportunities for plunder were almost unlimited. [Cf. Impeachment of
Verres, In C. Verrem]. Their power,
however, did not extend to the city itself, in which they were mere private citizens.
Hence it often happened that a commander, on returning from his province, remained outside
the city so as to retain his military imperium for some reason or other.
CENSORS. --The censors (censores) were two in number, elected from
men of consular dignity (consulares), originally at a minimum interval of four
years, afterwards once in five years,--the interval called a lustrum,--and
holding office for eighteen months. They ranked as magistratus maiores, but did
not possess the imperium, and had no power to convene either the Senate or an
assembly of the people. Their functions were--(1) to inspect the registry of citizens of
every class and order; (2) to punish immorality, by removal from the Senate, the
equestrian centuries, or the Tribe (nota censoria, infamia, ignominia);
(3) to superintend the finances (giving out contracts for collecting the revenues) and the
public works. In the intervals of the censorship, these last were under the care of the
aediles. Sulla tacitly abolished the office of censor, but it was revived in the
consulship of Pompey and Crassus, B.C. 70.
The property registration, of which the censors had charge, was called census,
and on it depended not only the taxation but the position of a citizen in the centuriae.
The classes under the census were divided as follows:
| First class: |
having property valued at 100,000 asses or more |
| Second class: |
having property valued at 75,000 asses or more |
| Third class: |
having property valued at 50,000 asses or more |
| Fourth class: |
having property valued at 25,000 asses or more |
| Fifth class |
having property valued at 11,000 asses or more |
The census of a Roman eques was, in Cicero's time,
400,000 sesterces, and this provision was one of long standing.
TRIBUNI PLEBIS. --Side by side with the "kingly" magistrates there
had arisen a class of magistrates of the people whose only privileges originally were
prohibitive, but who had come to have great power in the state.
The Tribuni Plebis (or plebi), ten in number and elected by
the Comitia Tributa, were the magistrates of that portion of people (a state
within a state) known as the Plebs. The plebeians at this epoch, however,
composed the whole people, with the exception of the few families of the patrician
aristocracy (such gentes as the Cornelian, Julian, Aemilian, Claudian). Not being
technically magistrates of the city or the whole people, but only of a single class, the
tribunes did not possess the imperium, but only potestas, had no real
executive power, and indeed were not magistrates at all in the strict sense of the term.
On the other hand, their persons were held sacred, and they had two very important and
wide-reaching functions: 1. The right of interfering, ius intercedendi
("veto"), to arrest almost any act of another magistrate. (This right
practically extended to a veto on legislation, elections, and ordinances of the Senate,
these being all under the direction of magistrates.) 2. The right to hold the assembly of
the plebs, organized by tribes. In this assembly, known as comitia tributa,
the plebeian magistrates (tribunes and plebeian aediles), were chosen, and laws were
passed, plebiscita, which of course were originally binding only upon the plebs,
but which, by the Hortensian Law (B.C. 287), received the force of leges; fines
were likewise imposed by this assembly.
Out of these original powers had been developed a very extensive criminal
jurisdiction, which made the tribunes and aediles the chief prosecuting officers of the
republic, the tribunes acting in cases of a political character. This order of things
continued until the time of Sulla, when the administration of criminal justice was
entrusted to the standing courts, quaestiones perpetuae, established by him. But
Sulla's provisions were abolished by Pompey (B.C. 70), the people fancying that the
corruptions of the courts could be remedied by restoring this power to the tribunes. The
tribunes also had authority to convene the Senate and bring business before it, preside,
and take part in debate. These privileges they acquired very early, by irregular practice
passing into custom, rather than by any special enactment.
THE AUSPICES. --The absolute continuity of the
government, which was more necessary at Rome than elsewhere, on account of a kind of
theocratic idea in the constitution, was secured by a curious contrivance. The
"regular succession" in Roman magistrates was as rigid as later in the Church.
The welfare of the state was supposed to depend upon the favor of the gods, and this could
only be transferred from one officer to another by an election which was practically a
religious ceremony in which both officers took part. This favor, technically known as the auspicia,
would lapse unless the election and inauguration were rightly performed. The ceremony
consisted in taking the auspices, a regular process of religious divination by
the flight of birds, etc., according to a very antiquated ritual.
AUGURS. --The magistrates alone were authorized to consult the auspices, that
is, to observe the various signs by which the gods were supposed to declare their will
with regard to the state. The interpretation of the auspices, however, which had been
developed into an extremely technical science (ius augurium), was in the hands of
a much honored body (collegium) of distinguished citizens, called augurs (augures).
These were not themselves magistrates, but simply the official interpreters of the ius
augurium, which they alone were supposed to know. Since all important public acts
(especially the holding of the comitia) were done auspicato (i.e., under
authority of the auspices), the augurs naturally came to have great political influence.
Their interpretation and advice could be disregarded, but such disregard was at the risk
of the magistrate and was almost sure to affect his popularity, especially if misfortune
followed. [Thus they were a conservative influence in the state.] The augurs held office
for life. Originally they had the right to fill vacancies on their board, but later such
vacancies were sometimes filled by election by the people. [The rule in this matter was
several times changed by law.] Cicero himself became an augur, B.C. 53.
INTERREX. --Whenever there was a suspension of legal authority, by vacancy of
the chief magistracy, it was understood that the auspicia--which were regularly
in possession of the magistrates--were lodged (in accordance with the most ancient custom)
with the patrician members of the Senate until new magistrates should be inaugurated. The
renewal of the regular order of things was begun by the patrician senators coming together
and appointing one of their own number as interrex. He held office for five days,
as chief magistrate of the commonwealth and possessor of the auspicia; then he
created a successor, who might hold the comitia for the election of consuls, but
who usually created another successor for that purpose.
DICTATOR. --The dictator was an extraordinary magistrate, possessing absolute
power, appointed by the consuls, at the instance of the Senate, in times of great public
danger. Properly he held office but for six months. The laws of appeal, and other
safeguards of individual liberty, had at first no force against this magistrate. In later
times (after B.C. 202) dictators were no longer appointed, but instead the Senate, when
occasion arose, invested the consuls with dictatorial power. Sulla, and afterwards Caesar,
revived the name and authority of the dictatorship; but in their case the office became
equivalent to absolute sovereignty, since each of them was appointed dictator for life (perpetuo).
The Magister Equitum, appointed by the Dictator, stood next in command to him and
also had the imperium.
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V. THE COURTS
Our division of legal business into civil and criminal,
though not exactly corresponding to the Roman classification of cases as causae
privatae and causae publicae, still affords the most convenient basis for an
understanding of the ancient courts.
In Civil Cases between individual citizens as well as foreign residents, the
jurisdiction, originally belonging to the king, was, on the establishment of the Republic
transferred to the consuls, but in the times with which we are especially concerned, it
rested with the praetors. The praetor urbanus had charge of all civil cases
between Roman citizens; the praetor peregrinus, of all civil suits to which an
alien was a party. Civil processes were various and complicated.
Criminal Jurisdiction also originally rested with the king, and, later, with
the magistrates (consuls, etc.) who succeeded him. But by the various laws concerning
appeal, the trial of all important offences was transferred to the assemblies of the
people. In accordance with its origin the jurisdiction of these bodies was always
theoretically an appellant jurisdiction. The case was supposed first to be decided by the
magistrate, who, having given notice (diem dicere) to the defendant (reus),
brought forward a bill (rogatio) enacting the punishment. If the case was a
capital one, i.e. involving the life or status of a Roman citizen, it was brought before
the comitia centuriata convened by the magistrate for the purpose, and decided
like any other question. It would appear that any curule magistrate as well as the
tribunes could take such action. If the case involved only a fine, it was tried before the
comitia tributa by an aedile or tribune.
These methods of trial were practically superseded after the time of Sulla by
the establishment of the standing courts. They were, however, sometimes revived, as in
Cicero's own case.
It had always been competent for the people to establish a quaestio
or investigation to try the persons suspected of crimes (quaestiones extraordinariae).
After the analogy of this proceeding, Sulla established standing courts (quaestiones
perpetuae) differing from previous quaestiones only in that they were
continuous instead of being appointed upon any particular occasion. It was before these
that most crimes were tried. [Sulla's quaestiones perpetuae were eight or ten in
number. Six of these-- Repetundae (extortion), Ambitus (bribery), Peculatus
(embezzlement), Maiestas (treason), de Sicariis et Veneficis (murder),
and probably Falsi (counterfeiting and fraud) --were presided over by six of the
eight praetors. For the other two (or four), ex-aediles (aedilicii) were
appointed to preside as iudices quaestionis.] Examples of such trials are found
in Roscius Amerinus (pro Roscio Amerino) and Verres (In C. Verrem).
Such a court consisted of a presiding judge, quaesitor (praetor,
or iudex quaestionis), who caused a jury (iudices) to be impanelled and
sworn (hence called iurati), varying in number in the different courts and at
different times, to try the case under his presidency. These iudices were drawn
by lot from a standing body (iudices selecti), the exact number of which is
unknown [For cases of extortion the number was specially fixed by the Lex Acilia
at four hundred and fifty, from whom fifty were chosen as jurors], and a right of
challenging existed as with us. This body was originally made up from the Senatorial
Order, but a law of C. Gracchus (B.C. 123) provided that the iudices should be
taken from non-Senators who possessed the equestrian census. From this time the
Senators and the Equites contended for the control of the courts. Sulla restored
to the Senators the exclusive privilege of sitting as iudices (B.C. 80), but the
Aurelian Law (B.C. 70) provided that the jurors should be taken, one-third from the
Senators and two-thirds from the Equestrian Order, and that one-half of the Equites
chosen (i.e. one-third of the whole number of iudices) should have held the
office of Tribunus Aerarius (i.e. president of one of the thirty-five local
tribes). This regulation remained in force until the dictatorship of Caesar, B.C. 45, when
this decuria of Tribuni Aerarii was abolished. A majority of the jurors
decided the verdict. The president had no vote, nor did he decide the law of the case: he
had merely charge of the proceedings as a presiding magistrate. (Cf. In C. Verrem 1.32
for a hint at his powers.) Each juror wrote on his ballot A (absolvo)
for acquittal or C or K (condemno) for
conviction.
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