CONSI´LIUM
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,
ὁ 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.）
[
W.W]
