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INTERCESSIO

INTERCESSIO CONSTITUTIONAL. Intercessio is used to denote the right of veto possessed by Roman magistrates: a right of which, as Mommsen has pointed out, there are two distinct aspects. One of these is the power possessed by the higher magistrates of forbidding the actions of the lower magistrates: the other is the power possessed, not only by higher magistrates, but by magistrates of equal power, of rendering invalid actions already performed by magistrates of lower or equal authority. The former power is distinct from the latter in that it is an attribute solely of major potestas, and is not necessarily followed by the invalidity of the act it forbids, if this act is performed in spite of the veto; its fullest exercise is shown in the complete suspension of public business known as the JUSTITIUM and it is sometimes spoken of as an exercise of the right of intercessio (Liv. 10.37). But intercessio is more often applied to the employment of the second power, the use of which was far more frequent in the working of the political machinery. It represents the right of a magistrate to render ineffective the completed actions of his inferior or equal. It is an attribute, therefore, not only of major but of par potestas, and the invariable effect of its exercise is the invalidity of the act against which it is levelled. With the institution of the double magistracy in place of the monarchy, the intercession originated within the limits of par potestas; with the creation of the lower magistrates of the people originated the conception of major potestas as giving the right of veto: and this idea culminated in the powers that were vested in the subsequently-created tribune, who had major potestas over every magistrate of the state except the dictator. The intercessio was thus a supervision, exercised by closely-related magistrates, who were theoretically irresponsible during their year of office over one another's functions, for the prevention of illegal or inequitable actions; and on the part of the tribune a general supervision over all other magistracies in the interests, [p. 1.1016]originally of the plebs, later of the whole community.

The intercession originated with the principle of colleagueship, and, except in the case of the tribune, was mainly confined within the limits of colleagueship. Thus the dictator has it against his inferior colleague the consul, the consul against his inferior colleague the praetor; but the consul can also veto the acts of the aedile or quaestor, who are not his colleagues, if we may accept the application to Roman practice of a principle laid down in the municipal law of Salpensa (100.27; C. I. L. n. 1963), although there is no known instance of the exercise of such a veto at Rome. The tribune, outside the bounds of his own college, can exercise the right of intercession against all the patrician magistrates except the dictator--against the consul, praetor, aedile, and quaestor. In the case of major potestas the right of intercession is unshackled; but between certain magistrates of wholly dissimilar character, neither major nor par potestas existed. No relation of this kind could be established between the aedile and quaestor, or between the consul and censor, and accordingly such magistrates have no power of vetoing one another's actions. Another restriction, and one that was necessary to prevent utter confusion in the working of this power, was that the veto could not be vetoed the intercession is final, and the act that is declared void cannot be re-established by any further exercise of this power. Another limitation of the intercession is found in its purely civil character: intercession only exists where divided authority is found; for the purposes of administration militiae such a division of authority was never tolerated; and thus Cicero excludes the intercessio resting on appellatio, the only form in which it could have manifested itself outside Rome, from the military sphere altogether (Cic. de Leg. 3.3, 6). A further limitation rests on the theory that the intercession is only valid when directed against the actions of a magistrate. It was not, therefore, permitted against the decisions of juries in civil cases; the magistrate's functions being confined to proceedings in jure, all those in judicio were outside the sphere of the veto. In the quaestiones, in which the distinction between proceedings in jure and in judicio disappeared [JUDICIUM PUBLICUM], the veto was similarly not permitted against the finding of the magistrate and jury, the reasons being that the quaestiones were a development of civil process, in which the intercession was not permitted, and that the magistrate's acts here, during the process, are not distinguishable from those of the jury. But it appears that against the purely magisterial actions that formed the preliminary of a quaestio, intercession was still possible; in the trial of Vatinius, when the praetor, on application, had named a certain day for the trial, Vatinius appealed to a tribune “ne causam diceret” (Cic. in Vat. 14, 33).

The intercession may conveniently be considered from three points of view, according to the sphere of the magistrate's actions against which it was directed: the decree (edictum), the rogatio, and the senatusconsultum.

(i.) Against the magistrate's decree (edictum), whether as forming a part of civil jurisdiction of the ordinary judicial magistrates, the praetors, or of criminal jurisdiction conducted by the consul, aedile or quaestor, or of the ordinary administration of the duties imposed on individuals by the state, the intercession was most frequently directed. Intercession in all these cases rests on appellatio, the request for help (auxilium) put forward by an individual who appeals against the decree by which he feels himself injured. The appellatio must be made personally to the magistrate and the intercession exercised personally by him. Thus we find tribunes attaching themselves to consuls, to prevent the execution of their edict on the occasion of an expected levy (Liv. 4.55, 3), and the praetor Caelius Rufus taking up his position next to the chair of his colleague Trebonius, waiting for appeals from the latter's decisions (Caes. Civ. 3.20, “tribunal suum juxta C. Treboni praetoris urbani sellam collocavit, et si quis appellavisset fore auxilio pollicebatur” ) and in the time of the Empire, when the princeps in virtue of his imperium received such appeals, we find Tiberius taking up a similar position close to the praetor's chair (Tac. Ann. 1.75, 1). This necessity for the presence of the assisting magistrate was most marked in the case of the tribune (Gel. 13.12, “Tribuni antiquitur creati intercessionibus faciendis quibus praesentes fuissent” ), who were prevented for this reason from staying a night without the walls. Certain further limitations and formalities in the appellatio are known to us from the Lex Salpensana (100.27), such as the rule that an interval of three days was granted to the magistrate to inform himself of the grounds of the appellatio made to him, and the rule that no magistrate could intercede more than once in the same case: regulations which, though applying to the organisation of a municipal town, may with certainty have their origin referred to Roman practice. In civil jurisdiction the intercessio might be employed at any stage of the proceedings in jure; the usual appeals were from one home praetor to another, although they might possess different provinciae. Thus Verres the praetor urbanus had his decisions vetoed by his colleague Piso, who was probably praetor peregrinus in cases where Verres had decided contrary to his own edict (Cic. in Terr. 1.46, 119: cf. Caes. Civ. 3.20); but the consul, who possesses no jurisdictio, can yet veto the decisions of the praetor, as we find him in one case vetoing the decisions of the praetor urbanus in a case of bonorum possessio (V. Max. 7.7, 6). This, however, was unusual, and the general principle was to confine intercession to magistrates possessing somewhat similar authority, with the exception of the tribune. So powerful and far-reaching was the tribune's veto against the decree of the magistrate, that it has been thought that the tribune's right of intercession sprang from his power of auxilium, and that his other powers of veto, against the rogatio and the senatusconsultum, were of later growth. His interferences were for the most part against criminal jurisdiction, which, like civil jurisdiction, might be interfered with at any stage of the proceedings before the magistrate, and against the exercise of administrative power, more particularly against that of the consul (Cic. de Repub. [p. 1.1017]2.33, 58, “contra consulare imperium tribuni plebis constituti” ). In matters of state-administration, such as the raising of consular levies (Liv. 2.43) or the quaestorian collection of the taxes (Liv. 30.3.42), it is the execution of the decree resting on the magistrate's right of coercitio that is interfered with by the tribune. From an appeal of this sort made to the tribune from the coercitio of a magistrate, a kind of quasi-judicial process results, more especially if the appeal had been made to the whole college, the process being spoken of as a cognitio of the tribunes (Liv. 42.33, “cognituros se de quo appellati essent” ). We have such a process described by Livy (l.c.) on the occasion of an appeal from a consular levy. The matter is heard before the college of tribunes ( “ad subsellia tribunorum” ), before which appear the appellants and the magistrate appealed against, to defend the fact against which the appeal has been lodged. The collegium gives its verdict sometimes with the grounds of their decision (Ascon. in Milon. p. 47). It is possible, Mommsen thinks, that the college may in cases like this have found by a majority; although if one tribune persevered in the intercession, he might overrule the adverse decision of his other colleagues (Mommsen, Staatsr. i. p. 280).

(ii.) Against the rogatio the intercession might be directed as against any other act of the magistrate, and here we find the two aspects of the veto strongly marked; the right to forbid the question being put at all, and the right to intercede against the question after it has been put. The first right belongs to magistrates with major potestas: the consul can forbid the praetor to question the people (Liv. 27.5); and it was from this power the consul possessed of forbidding the question, that the constitutional custom arose for the praetor to consult the consul before putting the rogatio (Liv. 45.21, “sed et praetor novo maloque exemplo rem ingressus erat, quod non consulibus certioribus factis de sua unius sententia rogationem ferret” ). But the intercession against a rogatio that had been already put, though it probably belonged originally to the par majorve potestas throughout the circle of the magistracies, soon became the exclusive right of the tribune. It might be pronounced in any of the assemblies, and against any kind of act brought before these assemblies ; against elections (Liv. 4.50, 8; 25.2, 6), against leges, including formal acts such as the Lex Curiata (Cic. de Leg. Agr. 2.1. 2, 30), and against plebiscita (Plut. TG 10). Certain formalities were observed in the intercession against a rogatio; it seems to have been irregular to pronounce the intercessio before the day of voting arrived (Cic. Att. 4.1. 6, 6; Ascon. in Cornel. p. 58), and indeed before the speeches for and against the law had been made (Liv. 45.2 , “quum ita traditum esset, ne quis prius intercedat legi, quam privatis suadendi dissuadendique legem potestas facta esset” ). In the case of leges, the correct time for interposing the veto seems to have been when the introductory acts of the magistrate were over, and just before the voting had commenced (Mommsen, Staatsr. i. p. 285); in elections we find the tribune interceding after the praerogativa had voted (Liv. 27.6, 5).

(iii.) Against a senatusconsultum. The intercession against a senatusconsultum, as against a rogatio, rested originally on the par majorve potestas. It was exercised by the tribune against the tribune (Cic. pro Sest. 31, 68), consul (ib. 34, 74), and praetor (Cic. Fam. 10.1. 2, 3 and 4), and originally by the consul against the consul (Liv. 30.43, 1) and praetor, although it is unlikely that intercession was ever applied in the last-mentioned case, since the praetor did not usually summon the senate while the consul was at Rome. We find no instance of the consul's vetoing a senatusconsultum proposed by the tribune, and it is concluded accordingly that he did not possess this power. The exercise of intercession in the senate was simplified by the magistrate, who intended to veto the resolution, declaring his intention beforehand. This must be the meaning of the declaration often made by magistrates in the senate--by the consul, for instance, against his colleague, that “he would not allow any business to proceed,” “non passurum quicquam agi” (Liv. 26.26, 7; 30.40, 8: cf. 42.10, 10, “Popillius prae se ferens, si quid decerneret, intercessurum, collegam deterruit” ). This threat did not necessarily suspend the particular business in the senate; the motion on which the veto was put, was, if passed by a majority, drawn up as a senatus auctoritas. Sometimes the senate requested the magistrate to suspend the intercession ( “intercessionem remittere,” Liv. 36.40, 10), and sometimes attached to a particular decree a general vote of censure on any magistrate who should veto it (Cic. ad Farm. 8.8, 6, “qui impedierit prohibuerit, eum senatum existimare contra rempublicam fecisse” ). The intercessio on certain kinds of senatusconsulta might be forbidden by law; thus the Lex Sempronia in 123 B.C. forbade the intercession on the senatorial assignment of the consular provinces (Cic. de Prov. Cons. 8, 17; de Domo, 9, 24). The veto on a senatusconsultum did not apparently interrupt the procedure of the senate, since it was usually pronounced after the voting on the measure (V. Max. 2.27), or while the voting was in progress (Cic. Fam. 10.1. 2, 3), but never apparently during the debate. Hence the advantage of the preliminary declaration that the veto would be pronounced.

If we may trust tradition, this right of intercession was not originally confined to magistrates who had the right of summoning or even of sitting in the senate, since it is stated that the tribune possessed the former before he possessed either of the latter powers, sitting on a bench before the doors for the purpose of examining the decrees (V. Max. 2.27). In the course of time, as the tribune gained the right of taking part in the debate and of summoning the senate, his intercessio came to outweigh that of the consuls. Consular intercession against a senatusconsultum continued in force long after such intercession against a rogatio had ceased to be recognised: but before the close of the Republic it yielded even in this domain to that of the tribune. The evidence, which is entirely negative, is strongly in favour of Mommsen's view that after the time of Sulla consular intercession against a senatusconsultum is not found, as against that of Willems, who [p. 1.1018]holds that traces of it are found down to the close of the Republic (Mommsen, Staatsr. i. p. 282, n. 7; Willems, Le Sénat de la République Romaine, ii. p. 200, n. 2). It is not necessary to imagine that the consular right of intercession in these cases was removed by direct legislative enactment, but that it ceased to be usual, and in time came to be regarded as unconstitutional. The tendency of republican development was to make the tribunate the sole forbidding power, and, in so far as the intercession represented a guardianship of the law, to raise the tribunate into the great corrective power in the state. (Mommsen, Römisches Staatsrecht, i. p. 67, and pp. 268 sq.; ii. pp. 290 sq.: and for intercession in the senate cf. Willems, Le Sénat de la République Romaine, ii. pp. 199 sq.

[A.H.G]

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