previous next


CONSI´LIUM a select assembly of official persons who sat together (root sed); thus distinguished from concilium, a public meeting of unofficial persons called together (calare). The principle of Roman law, especially in early times, was to entrust large powers to individuals rather than to majorities; in other words, trial by a judge was the rule, trial by jury the exception. This principle was mitigated in practice by requiring the person responsible for the decision, whether in public or private matters, to call in the aid of impartial and intelligent advisers (consiliarii). Family councils were in use among the Romans, as they still are in Latin countries, and the patria potestas was exercised subject to their control. According to tradition, Sp. Cassius, the agrarian reformer, was put to death by his father, adhibito propinquorum et amicorum consilio (V. Max. 5.8.2). L. Gellius Publicola, the venerable friend of Cicero (Cic. Brut. 47.174), having to try his son on a charge nearly affecting himself, called in almost the whole senate as his consilium, and in consequence of their opinion declared him innocent (V. Max. 5.9.1). The imperium of the kings and chief magistrates, in itself primarily an extension of the patria potestas, was subject to a like restraint. The tyranny of Superbus was shown in his trying capital charges sine consiliis (Liv. 1.49.4). The senate was the natural consilium of the kings and afterwards of the consuls. Cicero as consul could not think of acting in a time of public danger without his consilium publicum, the senate (in Cat. 3.3.7). The senate-house burnt at the funeral of Clodius is “templum consilii publici” (pro Mil. 33.90). There are, however, examples of consuls choosing for themselves a consilium for a particular question (Ascon. in Or. in Tog. Cand. p. 89; Mommsen, Staatsr. i.2 p. 297 n.). Other magistrates, as for instance the aediles (Juv. 3.161), likewise summoned a consilium at their own discretion.

2. Consilium of Provincial Governors. In Rome itself the right of appeal (provocatio) enabled the consuls and praetors to act in many cases without a consilium: in the provinces the consilium was almost the only check on the arbitrary power of the governor, and the omission to call it in, as we see from the Verrine orations, of itself afforded a strong presumption of misgovernment. [p. 1.530]It was consequently expected that every important decision of a proconsul or propraetor should be “de consilii sententia” (Cic. de Leg. Agr. 2.1. 9, § 51). [For this formula the abbreviation D. C. S. was used, Cic. Ver. 5.21, § 53: the rarer phrase, ex cons. sent., occurs Liv. 45.29.] The conduct of Verres on the occasion of one of his most iniquitous judgments throws a clear light on the authority and position of the consilium of a provincial governor (Cic. Ver. 2.29, § 71). In order to get rid of M. Petilius, the leading member of it, whose integrity he feared, he tells him to go and attend to his function of judex in a res privata. Petilius, who wanted his friends to act as his own consilium in this arbitration, declined to act while Verres required their services on his consilium publicum. Verres “kindly and liberally” says he will not detain any who wish to go and act with Petilius; they all go; and he is left with his cohors or “personal staff” (cf. Hor. Sat. 1.7, 23). He then, in spite of the protests of the defendant's counsel, pronounces a hasty decision against him, and rushes from the judgment seat in fear lest Petilius and the other members of his regular consilium should return in time to stop the iniquity. We see that the consilium publicum, headed by a man like Petilius, of equestrian rank, could neither be intimidated nor ignored, even by a hardened oppressor like Verres; that it could only be got out of the way by a stratagem; but that, in its absence, Verres could turn his cohors (which Cicero calls nequissima) into a consilium for the nonce, and colourably declare that he had acted on the best advice he could get. We see, further, that the office of a consilium extended to a judicium privatum; a judex in a res privata was often assisted by the advice of his friends, though he gave the judgment himself. Long calls this a “quasi consilium” (ad Cic. l.c.).

This consilium must be carefully distinguished from the tres arbitri and the recuperatores so often mentioned in private suits [JUDEX]; and from the assessores or professional experts [ASSESSOR]. To these the powers of the magistrate were delegated, and the decision of the majority was binding; the consilium, on the other hand, was designed as a safeguard against error and partiality on the part of the magistrate, but his decision was his own. As Mommsen puts it, the principle of the consilium and the principle of decision by a majority were mutually exclusive both in theory and practice (l.c. p. 295). This distinction is the more necessary, as the body of the judices is also sometimes loosely called consilium (Div. in Caecil. 4.13; Act. i. in Verr. 6.17).

The consilium of a provincial governor was formed partly from the principal persons in his suite, partly from the leading Roman citizens on the spot; and it is probable that all the latter of equestrian rank had a right to sit, and that no one was admitted who was not rated to the first class in the census (Mommsen, l.c. p. 303). The relation of a governor to his consilium was bound, according to Cicero, to be a friendly and confidential one; he vehemently denounces one Decianus, who had turned against Flaccus after having stood in this relation to him (pro Flacc. 32.78; 33.81). Here, however, Cicero is almost certainly defending a bad case; it may be doubted whether he would have been equally indignant at similar conduct on the part of the consilium of Verres.

3. Councils of War. These are constantly mentioned as matters of course, without its being stated of what officers they were composed. Some discretion was no doubt allowed to the general. The legati and the military tribunes as the highest legionary officers were of course present (Plb. 1.49; 3.41, &c.), and a varying number of centurions; the primuspilus probably always, as Polybius mentions this privilege in his great description of the Roman army (6.24, πρῶτος αἱρεθεὶς καὶ συνεδρίου κοινωνεῖ); the centurions primorum ordinum usually (Caes. Gal. 5.28); on one occasion, probably exceptional, the centurions omnium ordinum (ib. 1.40). This, however, was not so much a council of war as a reprimand to the officers for giving way to panic. It is almost needless to say that Rome would not have conquered the world if her generals had been controlled by their councils. When the conquest was practically complete, and the chief object of the now dominant senate was to keep the spoils for their own order, we find generals in the field controlled by senatorian legati (Mommsen, pp. 298, 301). With the commencement of the civil wars this state of things came to an end; revolutionary leaders naturally brooked no such restraint.

4. Under the Empire. The judicial council of the emperors is discussed under CONSISTORIUM a name which, however, was not given to it till the time of Diocletian. For the gradual increase in the emperor's right of interference with the regular course of justice, see also APPELLATIO

There was, besides, an administrative council, the composition of which varied. Augustus on first organising his empire (B.C. 27) set up a committee of the senate consisting of the consuls, one magistrate of each denomination, and fifteen unofficial senators chosen by lot every six months (Suet. Aug. 35; Dio, 53.21). At the end of his life we find his adopted son and colleague, his two grown--up grandsons, the acting and designate consuls, and twenty senators also apparently chosen by lot, meeting in the name of the entire senate within the palace on account of the emperor's age and infirmities (Dio, 56.28; cf. 55.27; Jos. Ant. 17.9.5; Mommsen, Staatsr. ii.2 865). The council of Tiberius included, besides his amici and familiares, twenty principes civitatis; and Suetonius further notes the curious fact that not more than two or three of these escaped destruction at his hands (Suet. Tib. 55). The notices of councils in the succeeding imperial period are less regular (Dio, 60.4; Suet. Nero 15, Vesp. 21, Tit. 7; Plin. Ep. 31, Paneg. 88, for Trajan). For changes under Hadrian, Alexander Severus, &c., see CONSISTORIUM (Mommsen, Staatsr. i.2 293-305; ii.2 865-867, 948-952; Cuq, Le Conseil des Empereurs d'Auguste à Dioclétien, Paris, 1884; Humbert, ap. D. and S. s. vv. Consilium, Consilium Principis, Consistorium.


hide References (14 total)
  • Cross-references from this page (14):
    • Polybius, Histories, 1.49
    • Polybius, Histories, 3.41
    • Caesar, Gallic War, 5.28
    • Cicero, Against Verres, 2.2.71
    • Cicero, Against Verres, 2.5.53
    • Cicero, On the Agrarian Law, 2.1.9
    • Suetonius, Nero, 15
    • Suetonius, Tiberius, 55
    • Suetonius, Divus Augustus, 35
    • Livy, The History of Rome, Book 45, 29
    • Livy, The History of Rome, Book 1, 49.4
    • Cicero, Brutus, 47.174
    • Valerius Maximus, Facta et Dicta Memorabilia, 5.8.2
    • Valerius Maximus, Facta et Dicta Memorabilia, 5.9.1
hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: