JUSTI´TIUM
JUSTI´TIUM Justitium (derived from “Juris
statio” ) was the name given to the suspension of certain public
and private business of the community which was ordered by the higher
magistrates at Rome, when occasion seemed to demand it: the name being
derived from the suspension of that department of state which was the most
obvious and constant sign of political life, the courts of law. The
declaration of a justitium rested on the right of intercession in one of its
forms--the right, that is, possessed by the higher magistrates, those armed
with
major potestas, of forbidding all action on the
part of the inferior magistrates [
INTERCESSIO]. It was usually pronounced by the highest magistrate
present in Rome who possessed the imperium, by the dictator (
Liv. 3.27,
2;
7.9,
6), or by the consuls
(
Mon. Ancyr.2 2, p. 54), and was
generally called forth by some great public event, such as a war or a
calamity affecting the whole state. But such a suspension of business might
be declared for the purposes of party warfare. It was not unfrequently
declared with this object by the tribunes, who, in order to break down the
opposition to a measure they advocated, might issue a decree, based on their
superior right of veto, announcing a total suspension of business until
their object was attained (
Plut. TG 10,
διαγράμματι τὰς ἄλλας ἀρχὰς ἁπάσας
ἐκώλυσε χρηματίζειν, ἀχρὶ ἂν ἡ περὶ τοὺς νόμους διενεχθῇ
ψῆφος). Against the tribune, on the other hand, the higher
patrician magistrates, the consul and praetor, could employ no such weapon
directly. Indirectly, however, they could, on their own authority, check the
passing of a plebiscitum by a decree which had the practical effect of a
justitium; namely, by the declaring of those “feriae, quas consules
vel praetores pro arbitrio potestatis edicunt” (Macrob.
Sturn. 1.16, 6). In order to secure obedience on the part
of the lower magistrates to a prohibition of this sweeping kind pro-nounced
by a superior, some sanction was required, and hence we find that the
tribune, in pronouncing the justitium, also declared a penalty in case of
disobedience (
Plut. TG 10,
τοῖς ἀπειθήσασι τῶν στρατηγῶν ζημίαν ἐπεκήρυξεν,
ὥστε πάντας ὑποδείσαντας ἀφεῖναι τὴν ἑκαστῷ προσήκουσαν
οἰκονομίαν). But, as Mommsen points out, the fact that the
lower magistrate's actions have been forbidden by the higher, does not
create an invalidity in an act the former may choose to perform in spite of
the prohibition. The magistrate's right to forbid differs from the
magistrate's intercession, in that the latter is levelled at a completed act
and renders it invalid; the former, which is a prohibition based on some
power which the magistrate has in reserve, is merely “the threat of
coercitio in the case of opposition” (Mommsen,
Staatsr. i. p. 252); and if the coercitio is not effectively
put forward, the act that contravenes the command is valid.
Such was the Justitium so far as it rested on the bare theory of the
magistrate's power, but as such it was rarely realised. The action of
Tiberius Gracchus in declaring a suspension of business on his own authority
was no doubt legal, but was also highly unconstitutional, both in regard to
the purpose for which it was employed, and in its being employed at all
without the previous advice of the senate. As a rule the justitium was
proposed on a vote of the senate (
Liv. 3.3,
8;
Cic. Phil. 5.12,
31). and to meet certain definite
contingencies. It might be pronounced on the occasion of a festival (
D. C. 59.7), but the most usual circumstances that
called for it were a sudden war or tumultus (
Liv.
3.5,
4,
6.7,
1;
Cic. Phil.
5.12,
31), or public mourning, such
as that following on a national disaster or the death of a distinguished
man. A justitium of the latter kind was declared after the death of the
dictator Sulla (Granius Licin. p. 44, Bonn, “Justitium fuit
matronaeque eum toto anno luxerunt” ), and generally, under the
principate, on the death of a member of the ruling house, as on that of
Augustus (
Tac. Ann. 1.16), Germanicus (ib.
2.82), and the younger Drusus. (
Suet. Tib.
52). The justitium on these occasions sometimes closed with the
funeral ceremonies (
Monumen. Ancyr.2 p.
115, “Romae justitium indictum est, donee ossa ejus in mausoleum
inferrentur” ), but were sometimes prolonged beyond it (
Suet. Tib. 52, “non statim a funere ad
negotiorum consuetudinem rediit justitio longiore inhibito” );
and it is a probable supposition that, on the occasion of any public
funeral, a short justitium was declared for the time during which the
funeral retinue remained in the forum (Mommsen,
Staatsr. i.
p. 251, n. 4). The cessation of the justitium ( “justitium remittere,”
Liv. 10.21,
6) was
pronounced, when the circumstances that demanded it were past, by a decree
of the same magistrate who had enjoined it.
The effect of a justitium was the suspension of almost all the business of
the state, including the administration of justice both civil and. criminal,
and was accompanied by the closing of the Aerarium (
Cic. de har. Resp. 26, 55, “justitium edici
oportere, jurisdictionem intermitti,
[p. 1.1053]claudi
aerarium, judicia tolli;”
Plut. TG 10,
τῷ δὲ
τοῦ Κρόνου ναῷ σφραγῖδας ἰδίας ἐπέβαλεν) and the
suspension of the senate's sittings (Cic.
pro
Planco, 14, 33). It even extended to private business, when the
exercise of this would have interfered with the purposes for which the
justitium was declared (
Liv. 3.27,
2, “dictator justitium edicit, claudi tabernas
tota urbe jubet, vetat quemquam privatae rei quicquam agere:” cf.
Liv. 9.8,
7). But it
did not necessarily suspend all the business of the state, since for
political purposes it was often declared that exclusive attention right be
given to some sphere of state administration. If declared on the occasion of
a war, the dilectus still went on (
Liv. 6.7,
1); and during the Justitium declared in the time of
the Social war, the Varian commission still sat, in spite of the suspension
of all other judicial business (
Cic. Brut.
89,
304, “exercebatur una
lege judicium varia, ceteris propter bellum intermissis” ).
(Mommsen,
Römische Staatsrecht, i. pp. 263-266.)
[
A.H.G]
