CONSISTO´RIUM
CONSISTO´RIUM Augustus and his successors, following
an ancient practice of Roman magistrates, consulted their friends and
followers (
amici, familiares, comites) before
giving judicial decisions in cases of importance. The
consilium principis or judicial council thus instituted
[p. 1.531]stituted was not at first a standing body of
advisers, but was constituted for each particular occasion only. This,
however, had ceased to be the rule by the time of Hadrian, for we are
informed that this emperor, when he was sitting in a judicial capacity,
included in his
consilium not only his personal
followers, but also certain jurists who had been approved of by the senate
(Spartian.
Hadr. cc. 8, 18). From this time the position of
members of the imperial council (
consiliarii
augusti) seems to have been regarded as a permanent one. The
council was composed of persons of the greatest eminence; both senators of
the highest rank and members of the order of Equites sat in it. The imperial
prefects and especially the
praefecti praetorio
were generally members of it. The council was not confined to lawyers,
though on account of the nature of its business it was especially requisite
that it should contain the most eminent jurists. It was not usual to summon
the whole body of councillors to meet, but certain councillors were selected
on each occasion as they were required. Alexander Severus is said to have
been in the habit of summoning at least twenty jurists and fifty other
members. The
consilium principis was not a
general council for state affairs, and is not to be confused with the
political council we find certain emperors convening. Its functions were
generally confined to legal business. The emperor not only took its advice
respecting his judgments, but also in all matters connected with legal
administration. It was strictly consultative in character, the emperor not
being bound in any way by its opinion. The council as a rule only sat at
Rome, though it might be held wherever the emperor was. The term
auditorium principis is used as equivalent to
consilium. Such, according to Mommsen
(
Staatsrecht, 2.948), was the nature of the
consilium previous to the changes made in its
constitution by Diocletian and his successors. The usual name for the
consilium after it had been newly organised
by these later emperors is
consistorium
principis, a term which first appears in inscriptions of the
middle of the fourth century (Orelli, 3184, 3185; cf. Mommsen,
Staatsrechlt, 2.949, n. 2), and which perhaps originally
meant the place in the imperial palace where the
consilium was held. The ordinary members of the
re-constituted body, which is known as the
consistorium
principis, were called
comites
consistoriani: they were divided into the two classes of (1)
illustres, (2)
spectabiles. The
illustres
consisted of four great officers of the palace: viz. the
quaestor sacri palatii, the
magister
officiorum, the
comes sacrarum
largitionum, and the
comes rei
privatae. The class of
spectabiles
was a larger one: its members are generally named simply
comites consistoriani. Besides these two classes of ordinary
and active members of the consistorium (
in actu
positi), there was a class of extraordinary members, called
vacantes. There was also a class of purely
honorary members (
honorarii). The
praefectus praetorio and the
praefecti militum attended when business relating to their
departments was in question; other officials might be summoned as
extraordinary members. The functions of the consistorium seem to have been
wider than those of the earlier
consilium,
since it acted as a council for advising the emperor not only in matters
relating to legal administration, but in other matters of state. According
to Haubold, the
consistorium principis was the
administrative council of the state, and should be distinguished from the
auditorium principis--the emperor's supreme
court of justice; but Bethmann-Hollweg has shown that this view is
erroneous, more especially because we find the word
consistorium used for the council in its judicial as well as
in its administrative aspect. Thus, in
Nov. 23, cc. 2, 3, the
terms
consistorium and
auditorium are used interchangeably. For this and other
reasons it would seem that the consistorium was not exclusively a state
council, as Haubold supposes, but also a supreme court of justice--a body
analogous to the Privy Council in this country, as it was once constituted.
(Mommsen,
Staatsr. ii.2 p. 948;
Bethmann--Hollweg,
Civilprocess, 3.17, 94; Haubold,
De Consistorio Principum; Rein, ap. Pauly s. v.)
[CONSILIUM; AUDITORIUM.]
[
E.A.W]
