PROCONSUL
PROCONSUL The office of proconsul was one resting on the
theory of delegated authority. Delegation of the powers exercised by the
supreme magistracy of Rome, for certain specific purposes, was a theory
always recognised by the Roman commonwealth; although, after the supreme
magistracy had been limited, such delegation was not permitted within Rome
itself, the
imperium domi being always vested
in a duly elected magistrate. Without the walls, however, this principle did
not extend, and consequently, for purposes of administration outside Rome
itself, the full consular imperium, on the condition that it did not extend
to administrative duties within the city, might for a temporary purpose be
conferred on an individual, who was then said to act in the consul's stead
(
pro consule). But, although the theory of
the proconsulate was one of delegated authority, in practice this delegation
usually assumed the form of a prolongation of existing command (
prorogatio). Such a prolongation was really a
dispensation from the existing term of office recognised by the
constitution; and, although such a dispensation was not permitted within the
city walls, outside the walls the consul's imperium might, for some purpose,
be regarded as indefinitely prolonged: and the proconsulate was, as a rule,
such an indefinite prolongation of a pre-existing consular imperium
(
prorogare imperium), recognised by the
powers of the state, and extended, as regards its exercise, to the world
outside the Roman
pomerium (Mommsen,
Hist. Rome, i. pp. 261, 326). It is true that the
earliest instance of a magistrate with the title
pro
consule shows us, not a prolongation, but a direct delegation
of office by its possessor. It is applied by Livy (
3.4) to the commander of the reserve of the Roman army as early as
the year 464 B.C.; and Dionysius (
9.12), who calls this magistrate
ἀντιστρατηγός, says that the appointment was in
the hands of the consuls for the year (8.64). This is probable enough, but
Niebuhr (
Hist. Rome, ii. p. 123) supposes that the title
pro consule as applied to this
[p. 2.494]office is an anachronism, and that the real
proconsulate did not commence until many years later. The first instance of
the proconsulate as a delegation of the full consular powers outside Rome
that we meet with was effected by the prolongation of the consular imperium.
In 327 B.C. at the commencement of the second Samnite war the consul Q.
Publilius Philo had his imperium prolonged, in order that he might continue
the conduct of the war, after he had ended his usual term of office (
Liv. 8.23,
12). As a
mere recognition of imperium existing in his person, the office was not
conferred by the usual elective comitia, but by the really sovereign body,
the
comitia tributa plebis (loosely called
populus by Livy), on the motion of the
tribunes, who themselves acted on the advice of the senate. This was the
usual constitutional procedure, originally observed in the
prorogatio: but in the very next instance of the
proconsular command that we meet with, that of the consul L. Fabius Maximus
in 308 B.C. (
Liv. 9.42,
2), the senate alone is mentioned as giving its sanction to the
prorogatio, without a plebiscitum: and
Mommsen regards this as having been the constitutional practice from this
time forward (
Hist. Rome, i. p. 326). Subsequently to this,
however, when the proconsulate was conferred on L. Volumnius in 296 B.C., the plebiscitum and the senatusconsultum are
both mentioned as having been employed for the purpose (
Liv. 10.22) It is possible, therefore, that the proconsulate of
308 B.C. was the first in which the senate had definitely taken the
initiative, and that the plebiscitum was passed so entirely as a matter of
course, on the advice of the senate, that Livy regards the case as
practically a prolongation by the senate alone. The senate was, no doubt,
constitutionally the proper body for taking the initiative in this matter,
as in all matters of foreign administration; but during the second
Macedonian war (197 B.C.) we find a tribune interfering with the senate's
provisions, insisting that a new consul should not be sent out, and getting
the consul's imperium prolonged (
Liv. 32.28).
A proconsul thus appointed had only the military imperium, which was
incapable of exercise, and therefore of recognition, within the city walls.
But for a Roman commander to triumph he must be invested with the imperium
domi: otherwise he has no legal status as a magistrate within the walls. For
the consul to triumph, during his year of office, a simple decree of the
senate was sufficient, recognising his full possession of the imperium with
which he was already invested. But the proconsul had no imperium within the
walls; consequently, for him to triumph, a special decree of the people was
necessary, conferring the imperium on him for the occasion. The
constitutional procedure in this case was for the senate, on recognising the
proconsul's claim to a triumph, to ask the tribunes of the people to propose
the matter to the concilium plebis, and get a plebiscitum sanctioning the
arrangement (
Liv. 26.21): this was done
ex auctoritate senatus; and sometimes the senate
committed the duty of making the request of the tribune to one of the other
magistrates, such as the praetor (
Liv. 45.35).
Previous possession of the consular imperium, however, was not necessary to
qualify a man for the exercise of proconsular powers. In theory it was a
delegated authority; and although the system of
prorogatio was usually adopted and had become the
constitutional manner of creating a proconsul, it did not exclude the
procedure of delegation. When this office was delegated to a person who did
not possess the imperium at all, the procedure was one of election. Thus, in
the first known case of the proconsulare imperium being vested in a person
who had exercised no previous imperium, the proconsul was elected in the
Comitia Centuriata, the regular comitia for consular elections. P. Cornelius
Scipio was created proconsul in this way, in 211 B.C. (
Liv. 26.18); the case was altogether exceptional (
“extraordinaria cura deligendum esse,” Liv. ib.),
constitutional precedent was set aside, and a definite election to the
proconsulship was made by the populus. The extraordinary nature of the
imperium so conferred was felt especially when a triumph was to be decreed
to a proconsul elected in this manner, “quia neminem ad eam diem
triumphasse, qui sine magistratu res gessisset, constabat” (
Liv. 28.38: cf. 31.20). These difficulties were
not, however, felt when the proconsulship was conferred on a magistrate who
was not a consul, but had yet exercised the imperium as praetor, of which
there are several instances; among them that of M. Marcellus in 216 B.C.
(
Liv. 23.30) and Ti. Claudius in 177 B.C.
(
Liv. 41.12). At a later period of the
Republic we find a propraetor, in the exercise of provincial duties,
invested with the title of Proconsul, because he governed a proconsular
province, as in the case of Q. Metellus Celer, governor of Cisalpine Gaul in
62 B.C. (superscription to,
Cic. Fam. 5.1).
Proconsular appointments, such as those mentioned above, were originally
created only for a temporary purpose, such as the necessity of prolonged
command in war. But with the creation of the Roman provinces outside Italy
the prolongation of proconsular command became a definite constitutional
necessity. Special administrators (
praetores）
were appointed for the first four transmarine provinces of Rome: but no more
were created for this purpose; and, when the number of provinces increased,
their administration was divided between the four home offices, the two
consuls and the two city praetors. But such a combination of home and
foreign functions was impossible without a regular prolongation of their
imperium for the purpose of foreign administration; and so, in the interval
between the second Punic war and the reforms of Sulla, we find the
proconsulship becoming an annual institution, created for the purpose of
administering those provinces where the largest military forces were
required, but with no definite legal rules to regulate it, either in
defining the length of its tenure, or in establishing any complete
separation between home and foreign commands. With the institution of the
proconsulate as a regular magistracy, the right of the senate to confer it
and to assign its functions became unquestioned, and the necessity for the
plebiscitum originally required to sanction its creation had entirely
disappeared. (For the arrangement of proconsular provinces and for
proconsular administration
[p. 2.495]within the provinces,
see
PROVINCIA) But there had
always been a formal sanction on the part of the whole people, required for
the conferring of this kind of imperium, which still continued in force.
This was the Lex Curiata, a law passed in the assembly of the curies: which
was originally, as Cicero believed, in the nature of a vow of allegiance
tendered to the “magistratus cum imperio,” when entering on
their office, as it had been tendered to the king (
Cic. de Rep. 2.13, 25); it was thus required by
formal law as arecognition of the imperium vested in the proconsul, as well
as in any of the other magistrates who possessed the imperium (
Cic. de Lege Agr. 2.1. 1, 26;
2.12, 30;--Mommsen,
Staatsrecht, i. pp. 51, 54, 55, notes).
It has been supposed from a passage in Cicero's letters (
ad
Fam. 1.9, 25) that the law of Sulla
de provinoiis
ordinandis dispensed with the necessity of this law in the case of
proconsular appointments confirmed by the senate. The proconsular provinces
were always fixed by the senate previously to the election of the consuls
who were to fill them by a Lex Sempronia (C. Gracchi) passed in 123 B.C.
(
Cic. de Prov. Cons. 2, 3).
Sulla confirmed this enactment; and although he did dispense with the
necessity of a, Lex Curiata where the proconsular
provinces were so conferred, he did not do away with its
constitutional advisability ( “legem curiatam consuli ferri
opus esse, necesse non esse,”
Cic. Fam. 1.9,
25). As the formal popular recognition of the imperium, it still
continued down to the end of the Republic; although its necessity seems to
have been still further diminished by the senatusconsultum of 52 B.C. (
D. C. 40.30 and 46), by which a proconsul was not
assigned a province until five years after he had held office at Rome (
Caes. Civ. 1,
6).
The proconsular imperium, since it was exercised without the walls, was
unlimited by any of the restrictions--such as the right of appeal, the veto,
and even the definite limit of time--that were imposed on it within Rome
itself. Outside the walls it maintained all its original
regal character (
Cic. de
Rep. 1.40, 63;
de Leg. 3.3, 6). It was
necessarily limited in the proconsul's provincial administration by the
definite rights of the
civitates with which he
came into contact (
Cic. Att. 5.1. 1,
2;
Tac. Ann.
2.53,
3). But in the field it was
unlimited, and hence the extreme severity of the old martial law, from which
there was no appeal (
Cic. de Leg.
3.3, 6). But between the time of the Second Punic War and the war
with Jugurtha, a considerable mitigation of this martial law is known to
have taken place; the right of appeal (
provocatio) seems to have been extended to Roman citizens on
service (
Sal. Jug. 69): and it is not
improbable that this limitation of the summary military jurisdiction of the
proconsul was brought about by the direct extension of the law of C.
Gracchus, “ne de capite civis Romani injussu populi judicetur,”
to Roman citizens on military service.
After the creation of the provinces, the duration of the proconsulate had
been fixed generally at one year, for the purpose of provincial government:
and so, although there was no definite regulation respecting it before the
time of Sulla, the usual separation of command had been one year in Rome as
consul, a second in the provinces as proconsul. Sulla (in 81 B.C.) defined
this arrangement by law (Lex Cornelia de provinciis ordinandis), and so
established a complete separation betweeen home and foreign commands.
Another constitutional rule that had settled itself was that a provincial
governor should retain his command until relieved by his successor; this was
also recognised by Sulla's law, with the additional enactment that he should
leave his province within thirty days after the arrival of his successor,
and that he should retain his imperium until he re-entered Rome (
Cic. Fam. 12.4,
2;
1.9,
25). Really, however, at this time Italy itself was the boundary of
a proconsul's exercise of his imperium, through the large extension of the
Roman franchise. Pompey, coming from the East, disbanded his army as soon as
he reached Italy, and Caesar's crossing the Rubicon with an armed force was
practically a declaration of war.
The duration of proconsular government was, after Sulla, annual (
Cic. Fam. 2.7,
4); this rule continued until the time of Caesar, who fixed the
tenure of consular provinces at two years (
Cic.
Phil. 1.8,
19; B.C. 46).
Augustus restored the original limit of one year (
Tac. Ann. 3.58), and this rule remained in force. The date at
which the proconsul entered on his office during the Republic is uncertain:
Caesar's second command in Gaul began on March 1st (
Cic. de Prov. Cons. 15), and this may have been
theoretically the proper date for a proconsul to go to his province, being
regarded as the commencement of the official year. The date of the actual
commencement of his official functions never really corresponded to this
date; but depended partly on the time at which he quitted the consular
office at home, which from the year 153 B.C. ended with Dec. 31st, partly on
the time at which he chose to go out within the year after his consular
office had expired (
Cic. ad Att. v.
16, 4); for the previous governor had to retain the command, or
delegate it to an officer within the province, until his successor arrived
(
Dig. 1,
16,
10;
Cic. Att. 6.6,
4). Before the year 51 B.C. the two
consuls never went out to the provinces assigned them before their election,
until ten months after their nominal tenure of them. For instance, in the
ordinary course of things the proconsular command which commenced on March
1st, 49, would be assigned to the consul designate for 49 (elected in 50);
he, however, could not actually
enter on the
province until his year of office as consul had come to an end, that is,
until Jan. 48: his predecessor meanwhile holding the province until his
arrival. Hence arose Caesar's dispute with the senate. After the
senatusconsultum of 52 B.C. by which proconsular governorships were not
filled up until five years after the consulship was held, a proconsul might
be sent out at any time: Cicero's government of Cilicia began on July 31st
(
ad Att. 5.16, 2); and from this power of filling up
proconsular governments at the earliest date at which they were legally
vacant, Caesar would have had to resign his province before March 1st, 49,
instead of before Jan. 1st, 48 B.C.: which he
refused to do, appealing to the pre-existing constitutional custom (
Caes. Civ. 1,
85;
Cic.
de Prov.
[p. 2.496]Cons. 15). Under the Empire the
date varied from time to time, but there was a fixed date for the filling up
of such commands. Under Tiberius this date was June 1st, under Claudius
April 1st (
D. C. 57.14,60, 11;--Mommsen,
Hist. Rom. iv. p. 350;
Staatsrecht, ii. p. 255).
With the Empire, and the new division of the provinces into senatorial and
imperial that accompanied it [
PROVINCIA], there came certain alterations in the mode of
appointment and powers of the proconsul. The regulation as to the five
years' interval between home and foreign commands, originating in 52 B.C., was enforced by Augustus (
D. C. 53.14), but not strictly adhered to. Some
consulares were set aside by the senate, others by the emperor (
Tac. Ann. 3.71;
3.32), while the “jus liberorum” gave the preference to
some over others (
D. C. 53.13,
2). Proconsuls were now confined to the senatorial
provinces, and the governors of these provinces had the title, even though
they may only have been praetors (
D. C. 53.13,
3). This title carried with it in one
respect only a formal
proconsulare imperium,
because the provinces were nonmilitary, but within the province they had
majus imperium over everyone except the
princeps. The two great senatorial provinces, Asia and Africa, were always
given to consulares, and hence the title
proconsul
consularis; the other proconsuls were only
praetorii. In Africa, as one of the corn-supplying provinces,
the senatorial proconsul had a legion, sometimes two; but when real military
power was to be conferred on him, the appointment, instead of being
regulated as usual by allotment among the senior consulares, was thrown on
the princeps (
Tac. Ann. 3.35,
74). Each senatorial proconsul had three
legati pro praetore, nominally chosen by
himself, but approved by the emperor (
D. C.
53.14,
7); he had a salary from the
treasury (
salarium proconsulare, Tac.
Agr. 43, 3), first given to provincial governors by
Augustus; he was attended by lictors, and had the other insignia of his
rank, but “did not wear the sword nor the military dress”
(
D. C. 53.13,
3), to show that his command was not a military one, and in
deference to the full proconsular imperium vested in the emperor, although
technically, as the possessor of the proconsular imperium, he was the
colleague of the emperor.
Subordinate command is incompatible with the idea of the proconsular
imperium. A praetor may have this imperium, in republican times, as in the
cases quoted above, or in imperial times, if sent to govern one of the minor
senatorial provinces; but never, in either case, when he goes as a
subordinate to another official. For this reason the consulares who governed
the imperial provinces were never called proconsuls, but
legati pro praetore, because their command was not an
independent one. The only exception to this rule is where, for a special
purpose, a proconsul is granted imperium majus over other proconsular
governors (
Cic. Att. 4.1,
7;
Tac. Ann.
2.43,
2). Hence, under the Empire, a
commander gifted with proconsular imperium, together with full power to
exercise it in a military capacity, was a colleague of the emperor (
collega imperii), and the conferring of this honour
was one of the most distinctive modes of nominating a successor to the
principate. The proconsular imperium was the legitimised basis on which the
emperor's position as commander of the military forces rested; but it was
more or less legitimate according to the way in which it was assumed. As
conferred by the senate, it was a strictly constitutional power: it was so
conferred on Tiberius, and on his colleagues in the Empire, Germanicus and
Drusus (
Tac. Ann. 2.43,
2;
1.14,
4), and Vitellius also dated his
dies imperii accepti from the date at which the
soliti honores were conferred on him by the
senate (Henzen,
Act. Fr. Arv. p. 64). As conferred by the
legions, it was less legitimate. Vespasian, for instance, dated his
dies imperii from the day of his salutation by the
legions as Imperator (Suet.
Vesp. 6), which was equivalent to
a recognition of his right to this imperium. The proconsular imperium of the
emperor was unique, in that it did not lapse from the fact of his presence
within the walls (
D. C. 53.17,
6;
32,
5). But this privilege did not extend to his
colleagues: Germanicus, who had held it in Germany, had to have it conferred
again before going to the East, because he had been within the city walls
(
Tac. Ann. 2.43,
2; cf. 1.14, 4), and Drusus could not hold it while he was
within the walls as consul designate (
Ann. 1.14, 5).
(Mommsen,
Römisches Staatsrecht, ii.1 90, 233, 238-246, 257; ii.2 811
sq.; Die
Rechtsfraqe zwischen Caesar und dem Senat.）
[
A.H.G]
