INTERCESSIO
INTERCESSIO
CONSTITUTIONAL. Intercessio is used to denote the
right of veto possessed by Roman magistrates: a right of which, as Mommsen
has pointed out, there are two distinct aspects. One of these is the power
possessed by the higher magistrates of forbidding the actions of the lower
magistrates: the other is the power possessed, not only by higher
magistrates, but by magistrates of equal power, of rendering invalid actions
already performed by magistrates of lower or equal authority. The former
power is distinct from the latter in that it is an attribute solely of
major potestas, and is not necessarily followed by
the invalidity of the act it forbids, if this act is performed in spite of
the veto; its fullest exercise is shown in the complete suspension of public
business known as the
JUSTITIUM and it is sometimes spoken of as an exercise of the right
of
intercessio (
Liv.
10.37). But
intercessio is more often
applied to the employment of the second power, the use of which was far more
frequent in the working of the political machinery. It represents the right
of a magistrate to render ineffective the completed actions of his inferior
or equal. It is an attribute, therefore, not only of
major but of
par potestas, and the
invariable effect of its exercise is the invalidity of the act against which
it is levelled. With the institution of the double magistracy in place of
the monarchy, the intercession originated within the limits of
par potestas; with the creation of the lower
magistrates of the people originated the conception of
major potestas as giving the right of veto: and this idea
culminated in the powers that were vested in the subsequently-created
tribune, who had
major potestas over every
magistrate of the state except the dictator. The intercessio was thus a
supervision, exercised by closely-related magistrates, who were
theoretically irresponsible during their year of office over one another's
functions, for the prevention of illegal or inequitable actions; and on the
part of the tribune a general supervision over all other magistracies in the
interests,
[p. 1.1016]originally of the plebs, later of the
whole community.
The intercession originated with the principle of colleagueship, and, except
in the case of the tribune, was mainly confined within the limits of
colleagueship. Thus the dictator has it against his inferior colleague the
consul, the consul against his inferior colleague the praetor; but the
consul can also veto the acts of the aedile or quaestor, who are not his
colleagues, if we may accept the application to Roman practice of a
principle laid down in the municipal law of Salpensa (100.27;
C. I.
L. n. 1963), although there is no known instance of the exercise
of such a veto at Rome. The tribune, outside the bounds of his own college,
can exercise the right of intercession against all the patrician magistrates
except the dictator--against the consul, praetor, aedile, and quaestor. In
the case of
major potestas the right of intercession
is unshackled; but between certain magistrates of wholly dissimilar
character, neither
major nor
par
potestas existed. No relation of this kind could be
established between the aedile and quaestor, or between the consul and
censor, and accordingly such magistrates have no power of vetoing one
another's actions. Another restriction, and one that was necessary to
prevent utter confusion in the working of this power, was that the veto
could not be vetoed the intercession is final, and the act that is declared
void cannot be re-established by any further exercise of this power. Another
limitation of the intercession is found in its purely
civil character: intercession only exists where divided authority
is found; for the purposes of administration
militiae such a division of authority was never tolerated; and
thus Cicero excludes the intercessio resting on
appellatio, the only form in which it could have manifested
itself outside Rome, from the military sphere altogether (
Cic. de Leg. 3.3, 6). A further
limitation rests on the theory that the intercession is only valid when
directed against the actions of a magistrate. It was not, therefore,
permitted against the decisions of juries in civil cases; the magistrate's
functions being confined to proceedings
in
jure, all those
in judicio were
outside the sphere of the veto. In the
quaestiones, in which the distinction between proceedings
in jure and
in
judicio disappeared [
JUDICIUM PUBLICUM], the veto was similarly not
permitted against the finding of the magistrate and jury, the reasons being
that the quaestiones were a development of civil process, in which the
intercession was not permitted, and that the magistrate's acts here, during
the process, are not distinguishable from those of the jury. But it appears
that against the purely magisterial actions that formed the preliminary of a
quaestio, intercession was still possible; in the trial of Vatinius, when
the praetor, on application, had named a certain day for the trial, Vatinius
appealed to a tribune “ne causam diceret” (
Cic. in Vat. 14, 33).
The intercession may conveniently be considered from three points of view,
according to the sphere of the magistrate's actions against which it was
directed: the decree (
edictum), the
rogatio, and the
senatusconsultum.
(i.) Against the magistrate's decree (
edictum),
whether as forming a part of civil jurisdiction of the ordinary judicial
magistrates, the praetors, or of criminal jurisdiction conducted by the
consul, aedile or quaestor, or of the ordinary administration of the duties
imposed on individuals by the state, the intercession was most frequently
directed. Intercession in all these cases rests on
appellatio, the request for help (
auxilium) put forward by an individual who appeals against the
decree by which he feels himself injured. The
appellatio must be made personally to the magistrate and the
intercession exercised personally by him. Thus we find tribunes attaching
themselves to consuls, to prevent the execution of their edict on the
occasion of an expected levy (
Liv. 4.55,
3), and the praetor Caelius Rufus taking up his
position next to the chair of his colleague Trebonius, waiting for appeals
from the latter's decisions (
Caes. Civ.
3.20, “tribunal suum juxta C. Treboni praetoris urbani sellam
collocavit, et si quis appellavisset fore auxilio pollicebatur” )
and in the time of the Empire, when the princeps in virtue of his imperium
received such appeals, we find Tiberius taking up a similar position close
to the praetor's chair (
Tac. Ann. 1.75,
1). This necessity for the presence of
the assisting magistrate was most marked in the case of the tribune (
Gel. 13.12, “Tribuni antiquitur creati
intercessionibus faciendis quibus praesentes fuissent” ), who
were prevented for this reason from staying a night without the walls.
Certain further limitations and formalities in the appellatio are known to
us from the Lex Salpensana (100.27), such as the rule that an interval of
three days was granted to the magistrate to inform himself of the grounds of
the appellatio made to him, and the rule that no magistrate could intercede
more than once in the same case: regulations which, though applying to the
organisation of a municipal town, may with certainty have their origin
referred to Roman practice. In civil jurisdiction the intercessio might be
employed at any stage of the proceedings
in
jure; the usual appeals were from one home praetor to another,
although they might possess different
provinciae. Thus Verres the praetor urbanus had his decisions
vetoed by his colleague Piso, who was probably praetor peregrinus in cases
where Verres had decided contrary to his own edict (
Cic. in Terr. 1.46, 119: cf.
Caes. Civ. 3.20); but the consul, who
possesses no
jurisdictio, can yet veto the
decisions of the praetor, as we find him in one case vetoing the decisions
of the praetor urbanus in a case of
bonorum
possessio (
V. Max. 7.7,
6). This, however, was unusual, and the general
principle was to confine intercession to magistrates possessing somewhat
similar authority, with the exception of the tribune. So powerful and
far-reaching was the tribune's veto against the decree of the magistrate,
that it has been thought that the tribune's right of intercession sprang
from his power of
auxilium, and that his other
powers of veto, against the rogatio and the senatusconsultum, were of later
growth. His interferences were for the most part against criminal
jurisdiction, which, like civil jurisdiction, might be interfered with at
any stage of the proceedings before the magistrate, and against the exercise
of administrative power, more particularly against that of the consul (Cic.
de Repub.
[p. 1.1017]2.33, 58, “contra consulare imperium
tribuni plebis constituti” ). In matters of state-administration,
such as the raising of consular levies (
Liv.
2.43) or the quaestorian collection of the taxes (
Liv. 30.3.42), it is the execution of the decree
resting on the magistrate's right of
coercitio
that is interfered with by the tribune. From an appeal of this sort made to
the tribune from the coercitio of a magistrate, a kind of quasi-judicial
process results, more especially if the appeal had been made to the whole
college, the process being spoken of as a
cognitio of the tribunes (
Liv. 42.33,
“cognituros se de quo appellati essent” ). We have such a
process described by Livy (
l.c.) on the occasion of
an appeal from a consular levy. The matter is heard before the college of
tribunes ( “ad subsellia tribunorum” ), before which appear the
appellants and the magistrate appealed against, to defend the fact against
which the appeal has been lodged. The collegium gives its verdict sometimes
with the grounds of their decision (Ascon.
in
Milon. p. 47). It is possible, Mommsen thinks, that the college
may in cases like this have found by a majority; although if one tribune
persevered in the intercession, he might overrule the adverse decision of
his other colleagues (Mommsen,
Staatsr. i. p. 280).
(ii.) Against the
rogatio the intercession might
be directed as against any other act of the magistrate, and here we find the
two aspects of the veto strongly marked; the right to forbid the question
being put at all, and the right to intercede against the question after it
has been put. The first right belongs to magistrates with
major potestas: the consul can forbid the praetor to question the
people (
Liv. 27.5); and it was from this power
the consul possessed of forbidding the question, that the constitutional
custom arose for the praetor to consult the consul before putting the
rogatio (
Liv. 45.21, “sed et praetor novo
maloque exemplo rem ingressus erat, quod non consulibus certioribus
factis de sua unius sententia rogationem ferret” ). But the
intercession against a rogatio that had been already put, though it probably
belonged originally to the
par majorve potestas
throughout the circle of the magistracies, soon became the exclusive right
of the tribune. It might be pronounced in any of the assemblies, and against
any kind of act brought before these assemblies ; against elections (
Liv. 4.50,
8;
25.2,
6), against
leges, including formal acts such as the
Lex Curiata (
Cic. de Leg. Agr. 2.1.
2, 30), and against
plebiscita (
Plut. TG 10). Certain formalities were observed
in the intercession against a rogatio; it seems to have been irregular to
pronounce the intercessio before the day of voting arrived (
Cic. Att. 4.1. 6,
6; Ascon.
in Cornel. p. 58), and indeed before the
speeches for and against the law had been made (
Liv.
45.2 , “quum ita traditum esset, ne quis prius intercedat
legi, quam privatis suadendi dissuadendique legem potestas facta
esset” ). In the case of leges, the correct time for interposing the
veto seems to have been when the introductory acts of the magistrate were
over, and just before the voting had commenced (Mommsen,
Staatsr. i. p. 285); in elections we find the tribune
interceding after the praerogativa had voted (
Liv.
27.6,
5).
(iii.) Against a
senatusconsultum. The intercession
against a senatusconsultum, as against a rogatio, rested originally on the
par majorve potestas. It was exercised by the
tribune against the tribune (Cic.
pro Sest. 31,
68), consul (ib. 34, 74), and praetor (
Cic. Fam.
10.1. 2,
3 and 4), and
originally by the consul against the consul (
Liv.
30.43,
1) and praetor, although it is
unlikely that intercession was ever applied in the last-mentioned case,
since the praetor did not usually summon the senate while the consul was at
Rome. We find no instance of the consul's vetoing a senatusconsultum
proposed by the tribune, and it is concluded accordingly that he did not
possess this power. The exercise of intercession in the senate was
simplified by the magistrate, who intended to veto the resolution, declaring
his intention beforehand. This must be the meaning of the declaration often
made by magistrates in the senate--by the consul, for instance, against his
colleague, that “he would not allow any business to proceed,”
“non passurum quicquam agi” (
Liv.
26.26,
7;
30.40,
8: cf. 42.10, 10, “Popillius
prae se ferens, si quid decerneret, intercessurum, collegam
deterruit” ). This threat did not necessarily suspend the particular
business in the senate; the motion on which the veto was put, was, if passed
by a majority, drawn up as a
senatus
auctoritas. Sometimes the senate requested the magistrate to
suspend the intercession ( “intercessionem remittere,”
Liv. 36.40,
10), and
sometimes attached to a particular decree a general vote of censure on any
magistrate who should veto it (
Cic. ad
Farm. 8.8, 6, “qui impedierit prohibuerit, eum
senatum existimare contra rempublicam fecisse” ). The intercessio
on certain kinds of senatusconsulta might be forbidden by law; thus the Lex
Sempronia in 123 B.C. forbade the intercession on the senatorial assignment
of the consular provinces (
Cic. de Prov.
Cons. 8, 17;
de Domo, 9,
24). The veto on a senatusconsultum did not apparently interrupt the
procedure of the senate, since it was usually pronounced after the voting on
the measure (
V. Max. 2.27), or while the
voting was in progress (
Cic. Fam. 10.1. 2,
3), but never apparently during the
debate. Hence the advantage of the preliminary declaration that the veto
would be pronounced.
If we may trust tradition, this right of intercession was not originally
confined to magistrates who had the right of summoning or even of sitting in
the senate, since it is stated that the tribune possessed the former before
he possessed either of the latter powers, sitting on a bench before the
doors for the purpose of examining the decrees (
V.
Max. 2.27). In the course of time, as the tribune gained the
right of taking part in the debate and of summoning the senate, his
intercessio came to outweigh that of the consuls. Consular intercession
against a senatusconsultum continued in force long after such intercession
against a rogatio had ceased to be recognised: but before the close of the
Republic it yielded even in this domain to that of the tribune. The
evidence, which is entirely negative, is strongly in favour of Mommsen's
view that after the time of Sulla consular intercession against a
senatusconsultum is not found, as against that of Willems, who
[p. 1.1018]holds that traces of it are found down to the
close of the Republic (Mommsen,
Staatsr. i. p. 282, n. 7;
Willems,
Le Sénat de la République
Romaine, ii. p. 200, n. 2). It is not necessary to imagine that the
consular right of intercession in these cases was removed by direct
legislative enactment, but that it ceased to be usual, and in time came to
be regarded as unconstitutional. The tendency of republican development was
to make the tribunate the sole forbidding power, and, in so far as the
intercession represented a guardianship of the law, to raise the tribunate
into the great corrective power in the state. (Mommsen,
Römisches Staatsrecht, i. p. 67, and pp. 268
sq.; ii. pp. 290
sq.: and
for intercession in the senate cf. Willems,
Le Sénat de la
République Romaine, ii. pp. 199
sq.）
[
A.H.G]
