The Roman Constitution.

In the time of Cicero the Roman "State" had technically a republican constitution, that is, every citizen had a share in the government. But not every citizen had an equal share, partly from fixed constitutional principles, and partly from differentiations in social prominence which affected constitutional rights.

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.

Senatorial Order.

The Ordo Senotorius 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 below, p. lix) 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 descended from an ancestor who had held a curule office. 1When any person not so descended was chosen a magistrate, he was called a novus homo, 2 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.

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, 3 i.e. possess a fortune of 400,000 sesterces; 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 p. lv, 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. 4

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 equito 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 Judiciaria of C. Gracchus (B.C. 123), which prescribed that the judices should not, as heretofore, be taken from the Senators (see p. lxv), 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 Eqitestris, 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 judices.


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 families 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 been originally 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 plebeian origin. In time plebs in an enlarged

sense and populus in its 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. 5

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 kus suffragii) and holding office (jus honorum), and (ii) civil rights, especially those securing personal freedom by the right of appeal (jus provocationis), etc., and by other privileges limiting the arbitrary power of magistrates (see remarks on the imperium, p. lviii, 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 jure) enjoyed not only all the civil rights referred to, but also the jus suffragii et honorum; but many persons, not cives optimo jure, had important civil rights without being entitled to vote or hold office. The jus 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 independence 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 jus Caeritum, because 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 colaniae, 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 colaniae 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 bands of prefects (praefecti) sent from the capital.


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 (see p. liii, above).


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 (see under Assemblies, p. lv, below). Throughout the history of the republic, there was a constant tendency to extend the suffrage, in spite of the efforts of the upper classes.

The government of this complex assemblage of citlzens 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.

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.

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) 6being retained, for each tribe there were now formed two centuries of each class, one of seniores (above 45), one of juniores, making in all 350 centuries. To these were added 18 centuries of equites (the young men of senatorial families, see p. li), 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. 7

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.

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 (see p. lviii, below). 8 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.


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 people, and was held regulariy in the Comitium or the Forum. 9 After a rogatio (proposition 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.

The Senate.

The Roman Senate (senatus), as its name indicates, was originally the council of elders" (cf. the Homeric βουλὴ γερόντων), 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 in the state. 10

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 jus 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 (see note, Cat. 3.10) 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 Catiline 4.

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 on, to give his opinion on any subject not included in the questions referred. 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. Cf. the closing sections of the Fourteenth Philippic (pp. 255, 256, below).

The Executive.

The Consuls.

After the expulsion of the kings, their absolute authority (imperium), both in peace and 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. 11 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 coordinate 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, 12 military or sovereign power, as of a general in the field. 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 (jus pravocationis) to the comitia centuriata (see p.321, below) 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. 13 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. 14 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. 15 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 p. lxiii, below.


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." 16 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. 17 As curule magistrates, however, they could on occasion command armies or assist the consuls in emergencies (see Cat. 3. 5), and were assigned as propraetors to provinces abroad after their year of office. 18 Like the consuls, they were regularly elected at the comitia centuriata in July and began to serve on the first of the following January.


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. 19

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, 20 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.


The aediles (from aedes, a temple) were four magistrates, who had the general superintendence of the 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. 21

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 (see p. lviii, above), 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 clavus (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 was symbolized in the most striking manner in the case of all magistrates except the tribunes, 22 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 orpropraetor. It was only the military imperium that was thus prorogued, 23 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, 24 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. 25 No difference was made between the 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 (cf. p. lviii, above). Their opportunities for plunder were almost unlimited. 26 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.


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 majores, but did not possess the imperium, and had no power to convene either the Senate or an assembly of the people. Their functions were (i) 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 (nova 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 (see p. lx, above). 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 taxation but the position of a citizen in the centuriae (see p. lv, above, on the comitia centuriata). The classes under the census were divided as follows:

First class:having property valued at 100,000 asses or more.
Second class:75,000
Third class:50,000
Fourth class:25,000
Fifth class:11,000

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 the people (a state within the 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). 27 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, jus 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) 28 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 (see p. lv, above); 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 (see p. lxv, below). 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 (see below).


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 (jus augurium), was in the hands of a much honored body (collegium) of distinguished citizens, called augurs (augures). These were not themselves magistrates, 29 but simply the official interpreters of the jus 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. 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. 30 Cicero himself became an augur, B.C. 53.


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.


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 for but 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. 31 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.

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, and, since none of the orations in this edition were spoken in such cases, they may be left out of account here.

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 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 (see below). 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 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. 32 Examples of such trials are found in Rosc. Am. (p. 1) and Verres (p. 26).

Such a court consisted of a presiding judge, quaesitor (praetor, or judex quaestionis), who caused a jury (judices) to be impanelled and sworn (hence called jurati), varying in number in the different courts and at different times, to try the case under his presidency. These judices were drawn by lot from a standing body (judices selecti), the exact number of which is unknown, 33 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 judices should be taken from non-Senators who possessed the equestrian census (see p. lxii, above). 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 judices (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 judices) should have held the office of Tribunus Aerarius (i.e. president of one of the thirty-five local tribes, see p. liv, above). 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. Verr. 1. 32, for a hint at his powers.) For the method of voting, see note on Defence of Milo, p. 177, l. 19.

1 Whoever held any curule office — that is, dictator, consul, interrex, praetor, magister equitum, or curule aedile — secured to his posterity the jus 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. (See Def. of Milo, sect. 33, p. 185, l. 14.)

2 Examples are Cato the Censor, Marius, and Cicero.

3 This requirement grew up only after the establishment of the equites equo privato.

4 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.

5 So in the formula for the Roman government: Senatus Populusque Romanus.

6 See p. lxii.

7 See p. lxv.

8 This was done annually by passing a law called lex curiata de imperio On such occasions the thirty curiae were represented by bailiffs (lictores).

9 For an example of an address at such a meeting see the Oration for the Manilian Law.

10 For membership in the Senate, see p. l, above.

11 See p. lxii.

12 Of the other regular magistrates only the praetors possessed the imperium (see p. lix). The imperium was formally conferred on the consuls by the comitia curiata (see p. lvi).

13 Cf. Crucifixion of a Roman Citizen, sect. 6.

14 4 see note on Cat. 1.2 (p. 100, l. 12).

15 See p. lxi.

16 He was, however, inferior in rank to the consul, who had major potestas.

17 See p. lxv.

18 See p. lxi.

19 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. Cf. Cat. 4.15 (p. 149. ll. 10, 11).

20 In the time of the Gracchi the age was 27.

21 Cf. Impeachment of Verres, sects. 37-40 (pp.41, 42); Plunder of Syracuse, sect. 19 (p.58, ll. 2-5).

22 See p. lxii.

23 Sometimes a private citizen was invested with the imperium and called proconsul (see Manil. Law 62).

24 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.

25 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. See Life of Cicero, p. xxiii, above.

26 Cf. Impeachment of Verres.

27 See p. lii.

28 See p. lx.

29 See Philippic 14. 14, and note.

30 The rule in this matter was several times changed by law.

31 See p. lviii.

32 Sulla's quaestiones perpetuae were eight or ten in number. Six of these —Repetundae (extortion), Ambitus (bribery), Peculatus (embezzlement), Majestas (treason), de Sicariis et Venefeis (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 judices quaestionis.

33 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.

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