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PROCONSUL The office of proconsul was one resting on the theory of delegated authority. Delegation of the powers exercised by the supreme magistracy of Rome, for certain specific purposes, was a theory always recognised by the Roman commonwealth; although, after the supreme magistracy had been limited, such delegation was not permitted within Rome itself, the imperium domi being always vested in a duly elected magistrate. Without the walls, however, this principle did not extend, and consequently, for purposes of administration outside Rome itself, the full consular imperium, on the condition that it did not extend to administrative duties within the city, might for a temporary purpose be conferred on an individual, who was then said to act in the consul's stead (pro consule). But, although the theory of the proconsulate was one of delegated authority, in practice this delegation usually assumed the form of a prolongation of existing command (prorogatio). Such a prolongation was really a dispensation from the existing term of office recognised by the constitution; and, although such a dispensation was not permitted within the city walls, outside the walls the consul's imperium might, for some purpose, be regarded as indefinitely prolonged: and the proconsulate was, as a rule, such an indefinite prolongation of a pre-existing consular imperium (prorogare imperium), recognised by the powers of the state, and extended, as regards its exercise, to the world outside the Roman pomerium (Mommsen, Hist. Rome, i. pp. 261, 326). It is true that the earliest instance of a magistrate with the title pro consule shows us, not a prolongation, but a direct delegation of office by its possessor. It is applied by Livy (3.4) to the commander of the reserve of the Roman army as early as the year 464 B.C.; and Dionysius (9.12), who calls this magistrate ἀντιστρατηγός, says that the appointment was in the hands of the consuls for the year (8.64). This is probable enough, but Niebuhr (Hist. Rome, ii. p. 123) supposes that the title pro consule as applied to this [p. 2.494]office is an anachronism, and that the real proconsulate did not commence until many years later. The first instance of the proconsulate as a delegation of the full consular powers outside Rome that we meet with was effected by the prolongation of the consular imperium. In 327 B.C. at the commencement of the second Samnite war the consul Q. Publilius Philo had his imperium prolonged, in order that he might continue the conduct of the war, after he had ended his usual term of office (Liv. 8.23, 12). As a mere recognition of imperium existing in his person, the office was not conferred by the usual elective comitia, but by the really sovereign body, the comitia tributa plebis (loosely called populus by Livy), on the motion of the tribunes, who themselves acted on the advice of the senate. This was the usual constitutional procedure, originally observed in the prorogatio: but in the very next instance of the proconsular command that we meet with, that of the consul L. Fabius Maximus in 308 B.C. (Liv. 9.42, 2), the senate alone is mentioned as giving its sanction to the prorogatio, without a plebiscitum: and Mommsen regards this as having been the constitutional practice from this time forward (Hist. Rome, i. p. 326). Subsequently to this, however, when the proconsulate was conferred on L. Volumnius in 296 B.C., the plebiscitum and the senatusconsultum are both mentioned as having been employed for the purpose (Liv. 10.22) It is possible, therefore, that the proconsulate of 308 B.C. was the first in which the senate had definitely taken the initiative, and that the plebiscitum was passed so entirely as a matter of course, on the advice of the senate, that Livy regards the case as practically a prolongation by the senate alone. The senate was, no doubt, constitutionally the proper body for taking the initiative in this matter, as in all matters of foreign administration; but during the second Macedonian war (197 B.C.) we find a tribune interfering with the senate's provisions, insisting that a new consul should not be sent out, and getting the consul's imperium prolonged (Liv. 32.28).

A proconsul thus appointed had only the military imperium, which was incapable of exercise, and therefore of recognition, within the city walls. But for a Roman commander to triumph he must be invested with the imperium domi: otherwise he has no legal status as a magistrate within the walls. For the consul to triumph, during his year of office, a simple decree of the senate was sufficient, recognising his full possession of the imperium with which he was already invested. But the proconsul had no imperium within the walls; consequently, for him to triumph, a special decree of the people was necessary, conferring the imperium on him for the occasion. The constitutional procedure in this case was for the senate, on recognising the proconsul's claim to a triumph, to ask the tribunes of the people to propose the matter to the concilium plebis, and get a plebiscitum sanctioning the arrangement (Liv. 26.21): this was done ex auctoritate senatus; and sometimes the senate committed the duty of making the request of the tribune to one of the other magistrates, such as the praetor (Liv. 45.35).

Previous possession of the consular imperium, however, was not necessary to qualify a man for the exercise of proconsular powers. In theory it was a delegated authority; and although the system of prorogatio was usually adopted and had become the constitutional manner of creating a proconsul, it did not exclude the procedure of delegation. When this office was delegated to a person who did not possess the imperium at all, the procedure was one of election. Thus, in the first known case of the proconsulare imperium being vested in a person who had exercised no previous imperium, the proconsul was elected in the Comitia Centuriata, the regular comitia for consular elections. P. Cornelius Scipio was created proconsul in this way, in 211 B.C. (Liv. 26.18); the case was altogether exceptional ( “extraordinaria cura deligendum esse,” Liv. ib.), constitutional precedent was set aside, and a definite election to the proconsulship was made by the populus. The extraordinary nature of the imperium so conferred was felt especially when a triumph was to be decreed to a proconsul elected in this manner, “quia neminem ad eam diem triumphasse, qui sine magistratu res gessisset, constabat” (Liv. 28.38: cf. 31.20). These difficulties were not, however, felt when the proconsulship was conferred on a magistrate who was not a consul, but had yet exercised the imperium as praetor, of which there are several instances; among them that of M. Marcellus in 216 B.C. (Liv. 23.30) and Ti. Claudius in 177 B.C. (Liv. 41.12). At a later period of the Republic we find a propraetor, in the exercise of provincial duties, invested with the title of Proconsul, because he governed a proconsular province, as in the case of Q. Metellus Celer, governor of Cisalpine Gaul in 62 B.C. (superscription to, Cic. Fam. 5.1).

Proconsular appointments, such as those mentioned above, were originally created only for a temporary purpose, such as the necessity of prolonged command in war. But with the creation of the Roman provinces outside Italy the prolongation of proconsular command became a definite constitutional necessity. Special administrators (praetores) were appointed for the first four transmarine provinces of Rome: but no more were created for this purpose; and, when the number of provinces increased, their administration was divided between the four home offices, the two consuls and the two city praetors. But such a combination of home and foreign functions was impossible without a regular prolongation of their imperium for the purpose of foreign administration; and so, in the interval between the second Punic war and the reforms of Sulla, we find the proconsulship becoming an annual institution, created for the purpose of administering those provinces where the largest military forces were required, but with no definite legal rules to regulate it, either in defining the length of its tenure, or in establishing any complete separation between home and foreign commands. With the institution of the proconsulate as a regular magistracy, the right of the senate to confer it and to assign its functions became unquestioned, and the necessity for the plebiscitum originally required to sanction its creation had entirely disappeared. (For the arrangement of proconsular provinces and for proconsular administration [p. 2.495]within the provinces, see PROVINCIA) But there had always been a formal sanction on the part of the whole people, required for the conferring of this kind of imperium, which still continued in force. This was the Lex Curiata, a law passed in the assembly of the curies: which was originally, as Cicero believed, in the nature of a vow of allegiance tendered to the “magistratus cum imperio,” when entering on their office, as it had been tendered to the king (Cic. de Rep. 2.13, 25); it was thus required by formal law as arecognition of the imperium vested in the proconsul, as well as in any of the other magistrates who possessed the imperium (Cic. de Lege Agr. 2.1. 1, 26; 2.12, 30;--Mommsen, Staatsrecht, i. pp. 51, 54, 55, notes). It has been supposed from a passage in Cicero's letters (ad Fam. 1.9, 25) that the law of Sulla de provinoiis ordinandis dispensed with the necessity of this law in the case of proconsular appointments confirmed by the senate. The proconsular provinces were always fixed by the senate previously to the election of the consuls who were to fill them by a Lex Sempronia (C. Gracchi) passed in 123 B.C. (Cic. de Prov. Cons. 2, 3). Sulla confirmed this enactment; and although he did dispense with the necessity of a, Lex Curiata where the proconsular provinces were so conferred, he did not do away with its constitutional advisability ( “legem curiatam consuli ferri opus esse, necesse non esse,” Cic. Fam. 1.9, 25). As the formal popular recognition of the imperium, it still continued down to the end of the Republic; although its necessity seems to have been still further diminished by the senatusconsultum of 52 B.C. (D. C. 40.30 and 46), by which a proconsul was not assigned a province until five years after he had held office at Rome (Caes. Civ. 1, 6).

The proconsular imperium, since it was exercised without the walls, was unlimited by any of the restrictions--such as the right of appeal, the veto, and even the definite limit of time--that were imposed on it within Rome itself. Outside the walls it maintained all its original regal character (Cic. de Rep. 1.40, 63; de Leg. 3.3, 6). It was necessarily limited in the proconsul's provincial administration by the definite rights of the civitates with which he came into contact (Cic. Att. 5.1. 1, 2; Tac. Ann. 2.53, 3). But in the field it was unlimited, and hence the extreme severity of the old martial law, from which there was no appeal (Cic. de Leg. 3.3, 6). But between the time of the Second Punic War and the war with Jugurtha, a considerable mitigation of this martial law is known to have taken place; the right of appeal (provocatio) seems to have been extended to Roman citizens on service (Sal. Jug. 69): and it is not improbable that this limitation of the summary military jurisdiction of the proconsul was brought about by the direct extension of the law of C. Gracchus, “ne de capite civis Romani injussu populi judicetur,” to Roman citizens on military service.

After the creation of the provinces, the duration of the proconsulate had been fixed generally at one year, for the purpose of provincial government: and so, although there was no definite regulation respecting it before the time of Sulla, the usual separation of command had been one year in Rome as consul, a second in the provinces as proconsul. Sulla (in 81 B.C.) defined this arrangement by law (Lex Cornelia de provinciis ordinandis), and so established a complete separation betweeen home and foreign commands. Another constitutional rule that had settled itself was that a provincial governor should retain his command until relieved by his successor; this was also recognised by Sulla's law, with the additional enactment that he should leave his province within thirty days after the arrival of his successor, and that he should retain his imperium until he re-entered Rome (Cic. Fam. 12.4, 2; 1.9, 25). Really, however, at this time Italy itself was the boundary of a proconsul's exercise of his imperium, through the large extension of the Roman franchise. Pompey, coming from the East, disbanded his army as soon as he reached Italy, and Caesar's crossing the Rubicon with an armed force was practically a declaration of war.

The duration of proconsular government was, after Sulla, annual (Cic. Fam. 2.7, 4); this rule continued until the time of Caesar, who fixed the tenure of consular provinces at two years (Cic. Phil. 1.8, 19; B.C. 46). Augustus restored the original limit of one year (Tac. Ann. 3.58), and this rule remained in force. The date at which the proconsul entered on his office during the Republic is uncertain: Caesar's second command in Gaul began on March 1st (Cic. de Prov. Cons. 15), and this may have been theoretically the proper date for a proconsul to go to his province, being regarded as the commencement of the official year. The date of the actual commencement of his official functions never really corresponded to this date; but depended partly on the time at which he quitted the consular office at home, which from the year 153 B.C. ended with Dec. 31st, partly on the time at which he chose to go out within the year after his consular office had expired (Cic. ad Att. v. 16, 4); for the previous governor had to retain the command, or delegate it to an officer within the province, until his successor arrived (Dig. 1, 16, 10; Cic. Att. 6.6, 4). Before the year 51 B.C. the two consuls never went out to the provinces assigned them before their election, until ten months after their nominal tenure of them. For instance, in the ordinary course of things the proconsular command which commenced on March 1st, 49, would be assigned to the consul designate for 49 (elected in 50); he, however, could not actually enter on the province until his year of office as consul had come to an end, that is, until Jan. 48: his predecessor meanwhile holding the province until his arrival. Hence arose Caesar's dispute with the senate. After the senatusconsultum of 52 B.C. by which proconsular governorships were not filled up until five years after the consulship was held, a proconsul might be sent out at any time: Cicero's government of Cilicia began on July 31st (ad Att. 5.16, 2); and from this power of filling up proconsular governments at the earliest date at which they were legally vacant, Caesar would have had to resign his province before March 1st, 49, instead of before Jan. 1st, 48 B.C.: which he refused to do, appealing to the pre-existing constitutional custom (Caes. Civ. 1, 85; Cic. de Prov. [p. 2.496]Cons. 15). Under the Empire the date varied from time to time, but there was a fixed date for the filling up of such commands. Under Tiberius this date was June 1st, under Claudius April 1st (D. C. 57.14,60, 11;--Mommsen, Hist. Rom. iv. p. 350; Staatsrecht, ii. p. 255).

With the Empire, and the new division of the provinces into senatorial and imperial that accompanied it [PROVINCIA], there came certain alterations in the mode of appointment and powers of the proconsul. The regulation as to the five years' interval between home and foreign commands, originating in 52 B.C., was enforced by Augustus (D. C. 53.14), but not strictly adhered to. Some consulares were set aside by the senate, others by the emperor (Tac. Ann. 3.71; 3.32), while the “jus liberorum” gave the preference to some over others (D. C. 53.13, 2). Proconsuls were now confined to the senatorial provinces, and the governors of these provinces had the title, even though they may only have been praetors (D. C. 53.13, 3). This title carried with it in one respect only a formal proconsulare imperium, because the provinces were nonmilitary, but within the province they had majus imperium over everyone except the princeps. The two great senatorial provinces, Asia and Africa, were always given to consulares, and hence the title proconsul consularis; the other proconsuls were only praetorii. In Africa, as one of the corn-supplying provinces, the senatorial proconsul had a legion, sometimes two; but when real military power was to be conferred on him, the appointment, instead of being regulated as usual by allotment among the senior consulares, was thrown on the princeps (Tac. Ann. 3.35, 74). Each senatorial proconsul had three legati pro praetore, nominally chosen by himself, but approved by the emperor (D. C. 53.14, 7); he had a salary from the treasury (salarium proconsulare, Tac. Agr. 43, 3), first given to provincial governors by Augustus; he was attended by lictors, and had the other insignia of his rank, but “did not wear the sword nor the military dress” (D. C. 53.13, 3), to show that his command was not a military one, and in deference to the full proconsular imperium vested in the emperor, although technically, as the possessor of the proconsular imperium, he was the colleague of the emperor.

Subordinate command is incompatible with the idea of the proconsular imperium. A praetor may have this imperium, in republican times, as in the cases quoted above, or in imperial times, if sent to govern one of the minor senatorial provinces; but never, in either case, when he goes as a subordinate to another official. For this reason the consulares who governed the imperial provinces were never called proconsuls, but legati pro praetore, because their command was not an independent one. The only exception to this rule is where, for a special purpose, a proconsul is granted imperium majus over other proconsular governors (Cic. Att. 4.1, 7; Tac. Ann. 2.43, 2). Hence, under the Empire, a commander gifted with proconsular imperium, together with full power to exercise it in a military capacity, was a colleague of the emperor (collega imperii), and the conferring of this honour was one of the most distinctive modes of nominating a successor to the principate. The proconsular imperium was the legitimised basis on which the emperor's position as commander of the military forces rested; but it was more or less legitimate according to the way in which it was assumed. As conferred by the senate, it was a strictly constitutional power: it was so conferred on Tiberius, and on his colleagues in the Empire, Germanicus and Drusus (Tac. Ann. 2.43, 2; 1.14, 4), and Vitellius also dated his dies imperii accepti from the date at which the soliti honores were conferred on him by the senate (Henzen, Act. Fr. Arv. p. 64). As conferred by the legions, it was less legitimate. Vespasian, for instance, dated his dies imperii from the day of his salutation by the legions as Imperator (Suet. Vesp. 6), which was equivalent to a recognition of his right to this imperium. The proconsular imperium of the emperor was unique, in that it did not lapse from the fact of his presence within the walls (D. C. 53.17, 6; 32, 5). But this privilege did not extend to his colleagues: Germanicus, who had held it in Germany, had to have it conferred again before going to the East, because he had been within the city walls (Tac. Ann. 2.43, 2; cf. 1.14, 4), and Drusus could not hold it while he was within the walls as consul designate (Ann. 1.14, 5). (Mommsen, Römisches Staatsrecht, ii.1 90, 233, 238-246, 257; ii.2 811 sq.; Die Rechtsfraqe zwischen Caesar und dem Senat.


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