Roman Public LifeGreenidge, A. H. J. (Abel Hendy Jones)
History
Roman Public Life
Greenidge, A. H. J. (Abel Hendy Jones)
Constitutional history -- Rome; Rome -- Politics and government
Since the _auspicia publica_ were personal signs vouchsafed to
individuals, a collision between the auspices of colleagues engaged in
the same business was not impossible. What the result of such a collision
was in the case of magistrates engaged _domi_ is unknown.[699] In the
field the effective auspices were in the hands of the consul whose
turn for command had come,[700] or, in case of joint command, in those
of the higher magistrate; thus the auspices of the consul extinguished
those of the praetor.[701] In the later Republic the difficulty scarcely
existed, as joint command of two magistrates with _imperium_ became very
infrequent, and the proconsul or propraetor took the auspices alone.
The auspices were the mode in which the god’s will was revealed to the
magistrate. The other universal power—the _coercitio_—was the mode in
which the magistrate’s will was forced on man. It was the method in which
he compelled obedience to his commands, or secured the performance of
state obligations which it was his duty to enforce. It was, therefore,
in touch with criminal jurisdiction, but differed from it in two ways.
Firstly, _coercitio_ was not directed to the enforcement of the permanent
obligations of man to his fellow man, which is the object of the criminal
law, but rather to the repression of exceptional acts directed against
the state as a whole; and secondly, the means of _coercitio_ actually
available could be employed by the magistrate on his own responsibility,
while the power of jurisdiction he shared with the people. This second
difference, however, was unknown to constitutional theory. The magistrate
might avail himself of any means of coercion against a harmful or
disobedient citizen—he might employ fines, bonds, and scourging;[702]
but the fine, beyond a certain limit, and the scourging gave rise to the
_provocatio_; in this case magisterial coercion led on to jurisdiction.
The objects of magisterial _coercitio_ were by no means always private
citizens. It could be directed against senators and _judices_, and could
be exercised by any superior over any inferior magistrate, to compel his
respect or to force him to a performance of his duties.
The severest mode of coercion—the infliction of the death penalty—was,
as we saw, originally inherent in the _imperium_, but was rendered
impossible by two Valerian laws of 509 and 449 B.C.[703] A third _lex
Valeria_ of 300 B.C. prohibited the execution or scourging of one who
had appealed; but the weakness of former enactments was repeated in this
law; it declared the magistrate’s contravention of it to be _improbe
factum_.[704] An effective sanction seems first to have been supplied by
one of the three Porcian laws;[705] certainly at the end of the Republic
a violation of the _provocatio_ entailed a capital penalty on the
magistrate.
Public-domain text, read in full here on John Shaqi.
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