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JUSTI´TIUM

JUSTI´TIUM Justitium (derived from “Juris statio” ) was the name given to the suspension of certain public and private business of the community which was ordered by the higher magistrates at Rome, when occasion seemed to demand it: the name being derived from the suspension of that department of state which was the most obvious and constant sign of political life, the courts of law. The declaration of a justitium rested on the right of intercession in one of its forms--the right, that is, possessed by the higher magistrates, those armed with major potestas, of forbidding all action on the part of the inferior magistrates [INTERCESSIO]. It was usually pronounced by the highest magistrate present in Rome who possessed the imperium, by the dictator (Liv. 3.27, 2; 7.9, 6), or by the consuls (Mon. Ancyr.2 2, p. 54), and was generally called forth by some great public event, such as a war or a calamity affecting the whole state. But such a suspension of business might be declared for the purposes of party warfare. It was not unfrequently declared with this object by the tribunes, who, in order to break down the opposition to a measure they advocated, might issue a decree, based on their superior right of veto, announcing a total suspension of business until their object was attained (Plut. TG 10, διαγράμματι τὰς ἄλλας ἀρχὰς ἁπάσας ἐκώλυσε χρηματίζειν, ἀχρὶ ἂν περὶ τοὺς νόμους διενεχθῇ ψῆφος). Against the tribune, on the other hand, the higher patrician magistrates, the consul and praetor, could employ no such weapon directly. Indirectly, however, they could, on their own authority, check the passing of a plebiscitum by a decree which had the practical effect of a justitium; namely, by the declaring of those “feriae, quas consules vel praetores pro arbitrio potestatis edicunt” (Macrob. Sturn. 1.16, 6). In order to secure obedience on the part of the lower magistrates to a prohibition of this sweeping kind pro-nounced by a superior, some sanction was required, and hence we find that the tribune, in pronouncing the justitium, also declared a penalty in case of disobedience (Plut. TG 10, τοῖς ἀπειθήσασι τῶν στρατηγῶν ζημίαν ἐπεκήρυξεν, ὥστε πάντας ὑποδείσαντας ἀφεῖναι τὴν ἑκαστῷ προσήκουσαν οἰκονομίαν). But, as Mommsen points out, the fact that the lower magistrate's actions have been forbidden by the higher, does not create an invalidity in an act the former may choose to perform in spite of the prohibition. The magistrate's right to forbid differs from the magistrate's intercession, in that the latter is levelled at a completed act and renders it invalid; the former, which is a prohibition based on some power which the magistrate has in reserve, is merely “the threat of coercitio in the case of opposition” (Mommsen, Staatsr. i. p. 252); and if the coercitio is not effectively put forward, the act that contravenes the command is valid.

Such was the Justitium so far as it rested on the bare theory of the magistrate's power, but as such it was rarely realised. The action of Tiberius Gracchus in declaring a suspension of business on his own authority was no doubt legal, but was also highly unconstitutional, both in regard to the purpose for which it was employed, and in its being employed at all without the previous advice of the senate. As a rule the justitium was proposed on a vote of the senate (Liv. 3.3, 8; Cic. Phil. 5.12, 31). and to meet certain definite contingencies. It might be pronounced on the occasion of a festival (D. C. 59.7), but the most usual circumstances that called for it were a sudden war or tumultus (Liv. 3.5, 4, 6.7, 1; Cic. Phil. 5.12, 31), or public mourning, such as that following on a national disaster or the death of a distinguished man. A justitium of the latter kind was declared after the death of the dictator Sulla (Granius Licin. p. 44, Bonn, “Justitium fuit matronaeque eum toto anno luxerunt” ), and generally, under the principate, on the death of a member of the ruling house, as on that of Augustus (Tac. Ann. 1.16), Germanicus (ib. 2.82), and the younger Drusus. (Suet. Tib. 52). The justitium on these occasions sometimes closed with the funeral ceremonies (Monumen. Ancyr.2 p. 115, “Romae justitium indictum est, donee ossa ejus in mausoleum inferrentur” ), but were sometimes prolonged beyond it (Suet. Tib. 52, “non statim a funere ad negotiorum consuetudinem rediit justitio longiore inhibito” ); and it is a probable supposition that, on the occasion of any public funeral, a short justitium was declared for the time during which the funeral retinue remained in the forum (Mommsen, Staatsr. i. p. 251, n. 4). The cessation of the justitium ( “justitium remittere,” Liv. 10.21, 6) was pronounced, when the circumstances that demanded it were past, by a decree of the same magistrate who had enjoined it.

The effect of a justitium was the suspension of almost all the business of the state, including the administration of justice both civil and. criminal, and was accompanied by the closing of the Aerarium (Cic. de har. Resp. 26, 55, “justitium edici oportere, jurisdictionem intermitti, [p. 1.1053]claudi aerarium, judicia tolli;” Plut. TG 10, τῷ δὲ τοῦ Κρόνου ναῷ σφραγῖδας ἰδίας ἐπέβαλεν) and the suspension of the senate's sittings (Cic. pro Planco, 14, 33). It even extended to private business, when the exercise of this would have interfered with the purposes for which the justitium was declared (Liv. 3.27, 2, “dictator justitium edicit, claudi tabernas tota urbe jubet, vetat quemquam privatae rei quicquam agere:” cf. Liv. 9.8, 7). But it did not necessarily suspend all the business of the state, since for political purposes it was often declared that exclusive attention right be given to some sphere of state administration. If declared on the occasion of a war, the dilectus still went on (Liv. 6.7, 1); and during the Justitium declared in the time of the Social war, the Varian commission still sat, in spite of the suspension of all other judicial business (Cic. Brut. 89, 304, “exercebatur una lege judicium varia, ceteris propter bellum intermissis” ). (Mommsen, Römische Staatsrecht, i. pp. 263-266.)

[A.H.G]

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