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Privileges of magistrates.

tion to this effect made by an assembly of augurs, at the request, of course, of the senate. Secondly, magistrates were always so dependent upon the senate that a senatorial decree was usually sufficient to induce them to abdicate. If they refused, they ran the risk of being made to suffer for it after the expiration of their time of office. In such cases the law, which admitted of no formal deposition, was, strictly speaking, observed; the magistrates were not deposed; they abdicated voluntarily; and the desired result was obtained. But when the tribune Marcus Octavius refused to abdicate at the urgent request of Tiberius Gracchus, and when, upon his refusal to abdicate, he was, on the motion of his opponent, formally declared by the comitia of tribes to have forfeited his office, then the old constitutional order of things was violated and the way was paved for the revolution.1

In addition to irremoveability from office, the Roman magistrates enjoyed irresponsibility during the term of office-in other words, exemption from prosecution for official acts. Roman magistrates, as such, could not be prosecuted. This also is a natural and necessary consequence of the republican constitution. Every accusation presupposes the possibility of a condemnation, and a condemnation would lessen the dignity of a magistrate, nay, of the people themselves, whom he represents during his period of office. Accordingly, no accusation was ever brought against an actual magistrate.3

Becker, Röm. Alterth. ii. 2, p. 53.

2 Even private suits could not be brought against the higher magistrates during their year of office. Gell. xii. 13.

3 This is proved beyond all doubt by the testimony of Polybius, vii. 15, 10: τὸ δὲ μέγιστον ἀποτιθεμένους τὴν ἀρχὴν δεῖ τὰς εὐθύνας ὑπέχειν τῶν Пεжрауμéνwν. Comp. Liv. ix. 26, xli. 6, 2, and 7, 10. Dionys. x. 50. There is actually preserved a fragment of a law, the Lex Acilia in the Corpus Inscript. Lat. 1. viii., in which the exemption of dictators, consuls, prætors, and masters of the horse, is specially mentioned: De heisce dum mag. aut imperium habebunt ioudicium non fiet. dic. cos. pr. mag. eq. The case related by Livy, xliii. 16, does not invalidate the rule. The two censors of 169 B.C. voluntarily and for special reasons waived their right, and submitted to an indictment, but they suspended their public functions during the trial-i.e. they temporarily resigned. Another case related by Valerius Maximus, vi. 1,



The irresponsibility of the magistrates in office contained no danger to the liberties of the people, because it was a fundamental principle of the Roman republic that Trial of magisevery magistrate after the expiration of his term of office trates. could be made answerable for his acts. Strange to say, the Romans had not, like the Greeks, a technical term1 to designate the act of rendering account; the reason probably being that cases are rare of magistrates being made answerable and actually punished for offences.2 Roman history has far more instances in which magistrates ought to have been called upon to account for their acts but were not. One cannot fail to perceive that the ruling nobility were able not only to guide the magistrates selected from their body in the course which was advantageous to the interests of their party, but also to shield them from the dangerous consequences which illegal proceedings might have had for them. The political trials in Rome have all more or less the character of party manoeuvres. The accusations were seldom brought in the interest of the state, and sentences of acquittal or condemnation were not given on the ground of purely judicial considerations. It was easy for the ruling party to bring about the tribunician impeachment of a troublesome opponent, and it was just as easy for them to take into their protection an accused member of their party. And not only could 7, is an exception which proves the rule. The tribune of the people C. Scantinius was prosecuted, not for any public malversation, but for a criminal act which had nothing to do with his official duties. M. Claudius Marcellus ædilis curulis C. Scantinio Capitolino tr. pl. diem ad populum dixit, quod filium suum de stupro appellasset; eoque asseverante se cogi non posse, ut adesset, quia sacrosanctam potestatem haberet, et ob id tribunicium auxilium implorante; totum collegium tribunorum negavit se intercedere, quominus pudicitiæ quæstio perageretur. Citatus igitur Scantinius reus uno teste qui tentatus erat, damnatus est. This case proves neither that the tribunes were generally responsible for official acts, nor that they had ceased to be sacrosancti. On the other hand, we see that Tiberius Gracchus tried to obtain a second tribuneship in the hope of thus putting off a public prosecution. Mommsen, Röm. Staatsrecht, i. 88, ii. 1, 289.

The word ratio in the phrase rationem reddere is much too vague and general, and cannot be compared with the precise eveúvŋ. Comp. above, p. 40, n. 1. 2 Liv. ii. 41, 52, 54, 61; ïii. 31; xxii. 40, 49; xxvi. 2, 3; xxvii. 34; xli. 6. Dionys. viii. 77; ix. 27, 28, 37; x. 40.


Constitutional checks.

a magistrate in Rome feel tolerably secure from responsibility for any violation of his official duty, but also cominon offences, such as plundering allies, or the embezzlement of public funds, were screened by the charitable disposition of a powerful nobility. The natural conclusion from all these considerations is that the constitutional responsibility of magistrates in Rome was rarely enforced in reality, and was therefore of little significance.' How the right of public impeachment could be abused, and was abused, for electioneering purposes, will appear when we come to discuss the subject of popular elections.

The Roman republic had, from the first, other means of proceeding against arbitrary dealings and offences of magistrates. Prevention was preferred to punishment. The entire organization of the magistracy aimed at this end, more especially the division of offices among colleagues, and, in connexion with it, the right of intercession. Above all, it was the duty of the tribunes of the people to exercise this right, and they frequently on their own account, as well as in the service of the senate, opposed dangerous measures of the magistrates before they were put into execution. In the common administration of law, the power which the Roman magistrates exercised over the people was early limited by the Valerian laws of provocation, which were afterwards completed by the Porcian laws; further by the limitation of fines to a moderate maximum; and finally by the actual abolition of capital punishment. Thus there remained no one but the subjects and allies who might be seriously injured by incapable and tyrannical magistrates; and the interests of these two classes were regarded by the Romans with supreme indifference.

We do not mean to deny that in the legal responsibility of magistrates the Roman state possessed sufficient

It has been remarked (vol. ii. p. 482) that the indulgence shown to the members of the nobility for mismanagement or malversation was strangely contrasted by the severity with which the lower class of citizens serving in the army was treated, such as the prisoners of war in the hands of Hannibal.




security against arbitrary government. The very possi- CHAP. bility of being impeached must have served as a warning, and in some cases the laws were actually brought to bear effect of upen guilty offenders; but, on the whole, the welfare of these the republic rested, not upon these laws, but on the constitutional checks already noticed. It was by these measures that the conduct of the magistrates was chiefly directed, and though the machinery was clumsy and its working capricious, yet the Romans managed to apply it on the whole successfully and to preserve in their commonwealth a fair degree of order and regularity.

Thus, by breaking up the unity of the executive power, Multipliand dividing it among a number of officials, the Romans cation of magisattained at least the principal object for the sake of which trates. they had made this division a fundamental feature of their constitution. It served to restrain the magistrates by mutual control, and made it possible for the constitution to confer upon them at times such extraordinary powers as were unusual in the republics of Greece. But this advantage was dearly paid for. It was paid for with the sacrifice of a centralised organization of the power of the state, and it produced internal and external crises which were overcome only by the healthy good sense of the people, by the good fortune of the eternal city, and by the circumstance that Rome, after all, had more unity in her organization than the enemies with whom she had to struggle for preeminence.

In the course of our narrative we have often pointed The dietatorship. out the great disadvantages which attended military operations under the Roman constitution in consequence of the division of the supreme command. The Romans themselves were conscious of these disadvantages, and resorted to the dictatorship in times of distress in order to unite the supreme power in one hand. This was regularly done in the first centuries of the republic, in the period

The division of the consulate between two colleagues of equal rank and power admits of no other motive. See Schwegler, Röm. Gesch. ii. p. 117. * Comp. Polyb. vi. 15.




powers of

the Roman

of the wars with the Equians and Volscians, as also in
the Samnite wars. Between the dictatorship of Camillus,
367 B.C., and that of Hortensius, 287 B.C.-that is, during
a space of eighty years-no less than twenty-seven dictators'
are noted in the fasti: on an average, therefore, one dic-
tator in three years. Hence we see how important a part
the dictatorship played in the Roman magistracy during
this period of violent struggles for the dominion of Italy.
But after the passing of the Hortensian laws, which mark
a distinct period in the development of the constitution
by establishing permanently the sovereignty of the plebeian
tribes after the fourth secession of the plebs, dictators
occur only at rare intervals in the Roman annals, and
appear no longer as an essential element of the constitu-
tion. In the war with Pyrrhus and the Tarentines no
dictator was appointed. All through the first war with
Carthage the idea of resorting to a dictatorship only once
entered the minds of the Romans—after the terrible defeat
of Drepana (249 B.C.). In the second Punic war the
dictatorship was revived only after the battles of the lake
Thrasymenus and of Cannæ. But this was the last occa-
sion on which this institution of the old republic was re-
vived. It remained henceforth practically abolished until,
in the time of the civil wars, it was re-established by Sulla,
who made the vain attempt to restore the constitution of
the old republic, and to destroy everything by which
democracy had modified the unlimited rule of the nobility.

By the disuse of the dictatorship the Roman constitution lost the only means which it possessed of occasionally executive. uniting together in one hand the scattered powers of the several magistrates, and of thus conferring upon the government in times of emergency an effective unity of action. This disadvantage must have been felt the more keenly as time went on, since the number of the higher

This is the number of real dictators (dictatores rei gerunde causa), without counting the dictators nominated for holding the comitia, for presiding at the festival of the ferie Latine, or for fixing the nail (clavi figendi causa).

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