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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]

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