LEGA´TUS
LEGA´TUS is a person dispatched on an official
mission, just as the neuter
legatum is used of
property of which the succession is determined with legal formality by the
testator. The precise meaning of legatus changes according to the nature of
the mission, but the idea inherent in the word--that of official appointment
for a definite purpose--is the same throughout the history of the Roman
constitution.
The various uses of tn word may be reduced to two, under one or other of
which the rest may be conveniently classed: viz. 1. legatus = an envoy
dispatched by a magistrate, under advice of the senate, for some object of
diplomacy, inquiry, or organisation; 2. legatus = a person formally attached
to a general-in-chief or provincial governor, as lieutenant or staffofficer.
Though it will be convenient to consider these two usages separately, it
must be observed that there is no difference between them in constitutional
law. The principle of appointment was the same in both cases; and the form
of it also, as will be shown, remained technically the same at all times;
all state legati being in the eye of the law the messengers of the
magistrate presiding in the senate at the time the appointment was made.
Varro (
L. L. 5.87) defines both kinds of legati in a single
sentence, and treats them as essentially the same: “Legati, qui lecti
publice, quorum opera consilioque uteretur peregre magistratus (2),
quive nuntii senatus aut populi essent (1).” Cicero also
(
in Vatin. 15, 35), when attacking Vatinius in 56 B.C.
for obtaining a
legatio without a decree of the
senate, exclaims: “Adeo afflictus senatus, adeo misera et prostrata
respublica, ut non
nuntios pacis atque belli, non
oratores, non
interpretes,
(1) non
belli consilii auctores, non
ministros muneris provincialis (2)
senatus more majorum deligere posset?” From these passages it is
plain that legati only differed in respect of the duties entrusted to them,
and that those duties were in the main of two kinds. We proceed to consider
these two in detail.
I.
Legati as State Envoys (legati
ad
aliquem).--The The first appearance of legati of this kind is
in the year 456 B.C., when three envoys, whose
names are given by Livy (
3.25), were sent to the
Aequi “questum injurias et ex foedere res repetitum.” Up to
this time it would appear that the duties of diplomacy and treaty-making,
which in the earliest times were doubtless simple and straightforward, had
been discharged by the college of Fetiales (
Liv.
1.24). But from 456 B.C. onwards Livy constantly makes mention of
legati sent on missions of various kinds, but chiefly employed in
negotiation, while the function of the Fetiales seems to have been
restricted to the actual declaration of war. Thus Varro writes ap. Nonium,
p. 529), “priusquam indicerent bellum iis a quibus injurias factas
sciebant fetiales, legatos res repetitum mittebant quattuor, quos
oratores vocabant.”
Mode of appointment.--In the earliest instance just referred
to, we are not told how the legati were appointed; but from Livy's language
in subsequent cases it may be gathered that the usual and natural method was
for a magistrate to consult the senate on the advisability of the mission,
when a senatusconsultum would authorise him to select the envoys (
Liv. 5.35;
29.29;
43.1. See also the “Senatusconsultum de
Thisbanis,” in the
Ephemeris Epigraphica, vol. i.
p. 279; Mommsen,
Staatsrecht, 2nd edit., vol. ii. pt. 1, p.
658). But there can be no doubt that from an early period the part played by
the senate in their appointment came to be regarded as the essential one;
and thus Cicero could expostulate with Vatinius, in the passage already
quoted, for having violated immemorial usage in becoming a legatus without
the authority of the senate. “Ne hoc quidem senatui
relinquebas,” he goes on, “quod nemo unquam ademit, ut legati
ex ejus ordinis auctoritate legerentur” (
in Vat.
15, 35). There is no known instance of the authorisation of legati in this
sense by the people in Comitia, though the language of Varro (ap. Non. p.
529) must be taken to imply that there was nothing to prevent it. But when
Polybius (
1.63) writes of the
δῆμος sending ten commissioners to arrange terms
of peace after the First Punic War, he may be either writing loosely and
without marking the special form of procedure, or these commissioners may
have been rather independent quasi-magistrates for making peace, of the same
kind as those appointed under agrarian laws for the division of land, and
not legati in any strict sense of the word. (Cf. Mommsen,
Staatsrecht, ii. pt. 1, p. 624, with Willems,
Le
Sénat de la République, 2.475, note.)
The selection of the individual envoys rested, as we saw, technically with
the magistrate; but towards the close of the Republic it would seem that the
choice was sometimes made by lot (
sortitio）
from the several ranks of senators (
consulares,
praetorii, &c.). An example of this method occurs in
Cic. Att. 1.1. 9,
3; and Tacitus (
Tac.
Hist. 4.6,
8) writes as though it
had once been a common practice ( “vetera exempla, quae sortem
legationibus posuissent” ). This must be regarded as a departure,
characteristic of the last age of the Republic, from the strict form of
procedure, induced no doubt by the
[p. 2.24]profit attaching
to commissions of this kind, and by the consequent strenuous competition for
them.
Qualification.--It was the general practice to select senators
only (
Cic. Att. 13.2. 0,
3), and such senators as were not at the
time holding office, which would disqualify them for duties at a distance
from Rome; but there seems to have been no definite rule, for we have one or
two instances in which, on an emergency, nonsenators were chosen (
Liv. 4.52, “consules . . . coacti sunt binos
equites adjicere:” cf.
Liv. 31.8). In
almost all important missions, one legatus at least was a
consularis; if there were two, the senior consularis was
princeps legationis (
Sal. Jug. 16). Even in the large legationes of the late
Republic, the practice of employing ex-magistrates for the most part still
held good, and exemplifies the importance attached by the Romans to official
experience, in this as in other public duties. Thus the legatio of 189 B.C.
which settled terms of peace with Antiochus consisted of three consulares,
four praetoriani, and three quaestorii (
Liv.
37.55: cf.
Cic. Att. 1.1. 9;
Willems,
Le Sénat, 2.506).
Number.--In the earliest legationes, the number of legati was
three (
Liv. 3.25,
6;
Dionys. A. R. 9.60,
19.13,
17). But we have instances of legationes consisting of two, four,
and six members, and most embassies after the Second Punic War were of ten
(
Liv. 33.24;
37.55;
45.17). Single legati are found
from time to time (
Liv. 21.8,
4, “ad bellum indicendum;” cf. 33.39 and 39.48). It
has been supposed that when a single legatus is thus mentioned, we are to
understand that the
princeps legationis is put
for the other members; but it is clear from the practice of granting
liberae legationes (to be explained
directly) to individuals, that there was no definite rule against the
appointment of single legati. (For full details as to the number of members
of a legatio see Willems,
Le Sénat, vol. ii. p.
499 foil.).
Authority and Responsibility.--No legatus could hold
imperium, for imperium could not be delegated; their
powers may best be expressed by the word
auctoritas; i.e. they acted under the sanction of the home
government. Being as a rule unable to communicate easily with the
authorities in Rome, they would naturally be given much freedom in their
dealings with foreign governments, and were in fact plenipotentiaries; but
on the subject of their instruction (
mandata）
and responsibility we have hardly any information. It is not till quite at
the close of the Republic that we find any trace of a legalised
responsibility, beyond the mere declaration in the senate of the results of
their mission (e. g.
Liv. 45.13), which might,
however, be made the opportunity of an attack on their proceedings, as we
see from
Liv. 42.47, where the impeachment was
(no doubt as usual) unsuccessful. We have an example of the successful
impeachment of legati by means of a
lex
instituting a
quaestio extraordinaria to try
them, in the year 110 B.C. (
Sal. Jug. 40); but
these legati were not state envoys of the kind now under discussion (ib. ch.
28). It was Caesar's law
de repetundis, of 59
B.C., which first made all kinds of legati
liable for misdoing in their office (
Dig. 48,
11,
1): but this law
apparently touched them only in so far as they had been guilty of pecuniary
corruption or extortion.
Emoluments.--All legati travelled at the expense of the state
(Zonaras,
8.6), to which they were entitled by
virtue of the ring which they wore (see Zonaras,
8.6; Mommsen,
Staatsrecht, 1.301; and article
ANULUS). A ship or ships of war
were, on important occasions, allotted them for transport (
Liv. 29.11;
30.26). It
seems also that in the last age of the Republic one or two lictors were
allowed them, at the discretion of the provincial governor in whose province
they travelled (
Cic. Fam. 12,
21; cf. 12, 20). All were personally inviolable,
as were the envoys of foreign peoples in Italy (
Liv.
4.17 foll.;
Tac. Hist. 3.80;
Pomponius in
Dig. 50,
18).
Legatio libera.--The advantages and emoluments
just mentioned led to a scandalous abuse of the legatio, which came into
vogue in the last century of the Republic, when rich senators frequently had
private business and interests in the provinces. In order to maintain a
state and dignity which would place him at an advantage, and give him
practically the status of an ambassador, a senator could obtain from the
senate a free mission (
legatio libera) on
stating the province for which he desired it, and perhaps also the nature of
his affairs (
Cic. Fam. 12,
21;
Att. 4, 2, 6). This practice
became such a scandal in Cicero's time, that he made a vigorous attempt in
his consulship to abolish it; but the feeling was so strong against him in
this effort at reform, that a tribune was found to interpose his veto, and
Cicero was forced to be content with a senatusconsultum limiting these
legationes to one year (see
ad Att. 15.11, 4;
de
Leg. 3.8, 18, 3.3, 9). A law of the dictator Caesar confirmed this
limitation; but the
legatio libera was not
abolished, and we hear of it under the Empire (
Suet.
Tib. 31;
Dig. 50,
7,
15). Cicero gives a very definite
opinion of the abuse he tried to remedy: “apertum est nihil esse
turpius quam est quempiam legari nisi reipublicae causa”
(
de Leg. 3.8, 18): but what had once become a senatorial
prerogative easily lost the taint of immorality in the minds of the
privileged capitalist.
Legati as Envoys under the Empire.--When the Republic came to
an end, all negotiations with foreign peoples passed into the hands of the
princeps, who appointed his own deputies by
virtue of his unlimited
proconsulare imperium
(Mommsen,
Staatsrecht, 2.892). The right of the senate to
send legati remained, however, in theory; and we find them sending
deputations to the
princeps when he happened to
be in the provinces (
Tac. Hist. 4.6-
8;
D. C. 59.23).
Legati in the sense of Envoys from foreign peoples.--The word
legatus was used by courtesy of an
ambassador from another state. All such, if coming from a friendly power,
were inviolable (
Dig. 50,
18), and treated with high consideration. They were lodged and
boarded (
locus et lautia) at the public
expense, and sometimes presented with gifts (
Liv.
28.39;
35.23; Senatusconsultum de
Asclepiade, line 8 of the Latin version). On arriving they gave in their
names to the praetor or quaestor urbanus at the temple of Saturn (
Liv. 10.45; Plut.
Quaest
Rom. 43), and in due time were introduced to the senate,
[p. 2.25]where they stated the object of their mission; this
was done in Latin or through an interpreter down to the last half-century of
the Republic, when, as all educated Romans spoke Greek, they began to be
allowed to use that tongue if they wished. Cicero's rhetorical teacher,
Molo, was the first to whom this privilege was granted (
V. Max. 2.2,
3).
When they had made their statement, they were liable to be questioned by
individual senators (
Liv. 30.22), under the
usual formalities of senatorial procedure; they then withdrew to a platform
outside the Curia called the Graecostasis (Varro,
L. L.
5.155), where they waited until called back to hear the response of the
senate (
Liv. 26.32,
30.22); or it was communicated to them by a magistrate (
Liv. 45.20). Occasionally it happened that the
senate had too much business on hand to allow them to give audience to all
the envoys in Rome; in this case a committee of experienced senators was
appointed to hear them (
Liv. 34.57;
Plb. 23.4; Senatusconsultum de Thisbanis, line 11,
in
Ephemeris Epigraphica, vol. i. p. 279). That the business
became arduous as the Empire increased may be gathered (1) from the
tradition, recorded by Plutarch (
Quaest. Rom.
43), that the envoys ceased to be given
locus et
lautia, save the most distinguished, owing to their great numbers;
(2) from what we know of two laws, the Lex Papia and the Lex Gabinia (both
of uncertain date, but the latter either of 67 or 58 B.C.), which ordained
that the senatorial sittings of the month of February should be entirely
devoted to this kind of business (
Cic. Fam.
1.4,
1;
Q. Fratr. 2.13,
3).
If the envoys were from a nation at war with Rome, they were received with
great caution. They were not admitted into the city, but, if an audience
were granted them, were lodged in the Campus Martius, and the senate met in
the temple of Bellona or in that of Apollo (
extra urbem,
Liv. 34.43; Festus, s. v.
senacula, p. 347, ed. Mull.). If no audience was accorded,
they were required to quit the city and Italy within a certain time, and in
their journey through Italy were escorted by a senator (
Liv. 37.1;
Plb. 32.1;
Sal. Jug. 28).
The same title of legatus was used of commissioners from the provinces or
from communities within them, bearing either congratulations on the conduct
of a provincial governor, or complaints against him. A good example of a
commission charged to explain provincial grievances will be found in
Liv. 43.2. Cicero frequently mentions such missions
in the Verrine orations; e. g. in 1.19 and 4, 31. Under the Empire these
legationes were put under stringent regulations, of which an account will be
found in
Dig. 50,
18.
II.
Legati as staff-officers; “quorum
opera consilioque uteretur peregre magistratus” (Varro,
l.c.). These were said to be legati
alicui, as opposed to legati
ad
aliquem.
Origin.--Livy mentions these at the very outset
of the Republic (2.20; 3.5), but his evidence is not conclusive, and it is
remarkable that so late as the battle of Cannae (B.C. 216) no legati are
mentioned in the list of the slain, though we are told of consulares,
quaestors, tribuni militares, and senators who were killed there. On the
other hand, so deeply rooted was the idea of the
consilium of the magistrate in the Roman mind, that it is
difficult to imagine that the consuls in the field were left wholly without
unofficial advisers. Perhaps the practice began as a regular institution
with the acquisition of transmarine provinces; but no reason can be shown
why even in Italian campaigns of an earlier date the senate should not from
time to time have made use of a natural mode of keeping the commanders
informed of their wishes. However this may be, from the Second Punic War
onwards, every commander and provincial governor had legati with him, and
Polybius writes of them as a standing institution in his time (
Plb. 6.35; cf.
Liv.
38.28,
12).
Mode of Appointment.--As in the case of legati as envoys, a
senatusconsultum authorised the magistrate to select the legati out of the
members of the senate (
Liv. 43.1; cf. 44.18). As
it frequently happened that the presiding magistrate was a consul or praetor
who was about to become a provincial governor, he thus became entitled to
nominate his own legati (
Sal. Jug. 28:
“Calpurnius [consul] parato exercitu legat sibi homines
nobiles,” &c.; cf.
Plut. Flam.
3;
Cic. Att. 2.1. 8,
3): and this mode of appointment being a
convenient one, it was natural that the provincial governor should desire to
establish it as a right. As a rule, however, the consent of the senate was
no doubt formally obtained (Schol. Bob. on
Cic. Vat.
15,
35). In the last century of the
Republic we find examples of laws in which the number and qualification of
the legati to be chosen by the proconsul was expressly laid down: this was
the case in the Lex Gabinia of B.C. 67, under which Pompeius received a
command against the pirates (
Plut. Pomp. 25;
Appian,
App. Mith. 94), and probably in
the Lex Vatinia which gave Caesar the command of Cisalpine Gaul in B.C. 59.
Under the Empire the nomination of legati seems always to have been the
right of the holder of the
imperium
proconsulare, whether of the
princeps
himself as having a
majus imperium, or the
proconsuls who continued to govern the senatorial provinces (
D. C. 53.14), but in the latter case the consent
of the
princeps was necessary to the validity
of the nomination. (See Willems,
Droit Romain, p. 510.)
Qualification.--The general rule was that these legati must be
senators; no certain instance is recorded of an exception, but it does not
follow that there was any definite disqualification of non-senators. (Cf.
Mommsen,
Staatsrecht, 2.661, note 1, with Willems, vol. 2, p.
608, note 4.) The rule held good under the Empire.
Number.--This was no doubt usually settled by the authorising
senatusconsultum in each case. After the Second Punic War, where Livy's
information may fairly be relied on, the number in attendance on a praetor
is generally two, while a consul has three. Later, again, we find consuls
with five and praetors with three. (See Willems,
Le
Sénat, ii. p. 611.) By the Lex Gabinia, Pompeius had
twenty-five allowed him, Caesar ten by the Lex Pompeia-Licinia of 55 B.C.
Under the Empire there was a fixed rule that in senatorial provinces (where
alone legati in the strict sense of the word are found) a pro-praetor should
have one, a proconsul three (
D. C. 53.14).
[p. 2.26]
Duties.--As we have seen, no legatus was in any sense a
magistrate, and could have no independent authority of his own; all were
strictly under the orders of their chief, and were bound to carry out any
kind of work he might allot them. (Marquardt,
Staatsverwaltung, 1.387; Mommsen,
Staatsrecht,
679.) But as the tenure of provincial commands became extended, legati were
frequently employed by their Generals-in-chief as commanders of division (i.
e. of a legion), and thence gained a standing position in the army beyond
that of a mere counsellor. This becomes first apparent in Caesar's Gallic
war, but it may have been to some extent the practice before (Caesar,
Caes. Gal. 1,
52;
2,
20;
5,
1; and
Rüstow,
Heerwesen Caesar's, p. 28). It was the
natural result of the practice by which commanders selected their own
legati; for they took care to choose men on whose skill and fidelity they
could rely, and to whom they could entrust the sole conduct of difficult or
distant operations. Recommended by its usefulness, it took definite shape
under the Empire. From the time of Augustus onwards each legion had its own
legatus (legatus legionis, as distinguished from other legati), and the
governors of imperial provinces had as many legati as legions (
Tac. Ann. 1.44;
2,
36; Marquardt,
Staatsverwaltung, 2.457), all of whom, however, were
selected by the
princeps.
All military legati had the right of travelling free of cost; and the fact
that they were included in the Lex Julia de repetundis, already alluded to,
shows that they had opportunities of gain in the provinces where they
served. Before the passing of that law, the governor or commander was
himself solely responsible for the conduct of his subordinates. (See
Liv. 29.19 foil., for the famous case of Scipio
and his legatus Pleminius. Rein,
Criminalrecht, pp. 192,
606.) He had, however, the power of dismissing a legatus, and could thus
relieve himself of responsibility (
Cic. Ver.
3.58).
Legati pro praetore.--The increase in the
importance of the legatus towards the close of the Republic is shown not
only by his being frequently attached to a particular legion as its
commander, but also by the growing practice by which the provincial governor
deputed him to act for him in some special locality or department. As early
as the earlier half of the 2nd century B.C., we
find a consul, at war within the bounds of Italy, having his army in charge
of a legatus in order to preside at the consular elections; and a century
later it frequently happened that a legatus was placed over a whole province
in the absence of the governor. Thus Caesar, who from 59 to 49 B.C. was in
command both of Cisalpine and Transalpine Gaul, used to leave the one or the
other in the charge of a legatus when he himself was necessarily absent
(
Caes. Gal. 1.10;
1.54). The practice was carried a step
farther by Pompeius between 55 and 50 B.C., for he
governed his province of Spain by legati while he himself remained in Italy
(Velleius, 2, 48). In such cases it became the practice to style the deputy
legatus pro praetore (
Caes. Gal. 1.21: cf. Sall.
Jug. 26 and 38). Such a title could not mean that the legatus
actually held the
imperium of a propraetor,
for, as we saw,
imperium could not be
delegated; but that he held a power which was practically equivalent to it.
under the
auctoritas of his chief. But there
can be no doubt that as provincial commands grow longer and more important,
civic technicalities tended to lose their strength and rigidity; and we have
mention in the year 82 B.C. of a
legatus pro
praetore (Pompeius in Sicily and Africa) appointed by the senate,
who is also styled by one author
legatus cum
imperio (cf.
Liv. Epit. 89, with
Granius Licinianus, p. 29, Bonn edit.). The practice of governing by
deputies with this honorary title led directly to the system by which, under
the Empire, the
princeps, as holder of an
unlimited
imperium, governed all the provinces
not under senatorial authority (see
PROVINCIA and
PROCONSUL) through
legati pro praetore
appointed by and responsible to himself.
This system began with the division of provinces between Augustus and the
senate in B.C. 27. From that time down to the complete reconstruction of the
provincial system by Diocletian, the imperial provinces were governed by
legati, either of consular or praetorian rank, according (as a rule) to the
number of legions stationed in the province; but all alike were styled
legati Augusti (or
Caesaris)
pro praetore, the
designation
vir consularis, or
vir praetorius, being entirely unofficial.
(Marquardt,
Staatsverwaltung, 1.408-10.) They are to be
distinguished from the
legati legionis already
mentioned, though it sometimes happened that the two offices were combined,
in which case the style was
legatus pro praetore
legionis (Marq.
op. cit. 309); and also,
of course, from the ordinary legati of the proconsuls who continued to
govern the senatorial provinces. These
legati pro
praetore were always, down to the reign of Gallienus, of
senatorial rank, as is shown by the fact that the one provincial governor
who was not a senator, the
praefectus Aegypti,
was never accorded the title of legatus.
Legati juridici.--Lastly, we find under the Empire, in the
imperial provinces, certain
legati juridici (also
known simply as
juridici), who seem to have been
persons of senatorial rank appointed by the
princeps to perform the subordinate judicial duties which in
senatorial provinces were administered by the ordinary legati of the
proconsul. These date probably from the beginning of the Empire; for as the
legatus pro praetore, being himself a
delegate of the
princeps, could not delegate
his duties to others like a proconsul, the governors of imperial provinces
would have had no assistants for their work if the
princeps had not supplied them. Thus we find even under
Augustus (Strabo, 3.4, 20) a
legatus pro
praetore in Spain, with three
legati
under him, who must have been
legati juridici; and
in later times, especially after Hadrian's reign, the title
legatus juridicus occurs frequently in inscriptions.
(The best account of these will be found in the French translation of
Mommsen's
Staatsrecht, by P. F. Girard, i. pp. 263, 264, and
notes, where the additional matter has the sanction of the author of the
work.)
After the reconstitution by Diocletian and Constantine of the whole system of
government, the word
legatus rapidly
disappears, in the technical senses which have been explained; only
surviving in the case of the legati attached to the provinces of Asia,
Africa, and Achaia, which continued to be governed by proconsuls,
[p. 2.27]or in an occasional inscription showing that the new
nomenclature of
praesides or
rectores provinciarum did not at once supersede it in common
usage. (Cf.
Notitia Occidentalis, xviii. p.
162, 2, 3; and Orelli,
Inscr. 3672; Schiller's
Geschichte der Kaiserzeit, ii. p. 56.)
[For more detailed information, see the chapter on Legati in Mommsen's
Staatsrecht, 2nd edit., ii. p. 657 foll.; cf. vol. 1.222
foll., with the additional notes in the French translation: also Marquardt,
Staatsverwaltung, 1.408 foil.; Willems,
Le
Sénat de la République, 2.492 foll. and
608 foll.; Buettner-Wobst,
de Legationibus Reipublicae,
Leipzig, 1876.]
[
W.W.F]
