holders of curule office.1 The first interrex was no doubt guided by the wishes of the Senate, or of the patres, in the choice of his nominee, and the whole list may have been prepared before his appointment. With the creation of the highest regular patrician office, i.e. with the election of a single consul, the interregnum necessarily came to an end and the interrex retired.

The reappointment of a chief magistrate called the people into life again; and, as a rule, it perpetuated itself by perpetuating the magistracy. There was, indeed, one large section of the people which had a continuity of existence as a corporation -this was the concilium of the Plebs with its presidents, the tribunes. From the year 287 this concilium was an independent legislative sovereign, and nothing more clearly marks the theoretical dualism of popular sovereignty at Rome than the fact that one parliament could continue to exist while the other, the comitia in its various shapes, was dormant. The division of executive, judicial, even of deliberative power, is not uncommon in governments of the mixed type; the division of unlimited legislative authority is rarer and nowhere so clearly marked as in Rome; for an act of parliament did not require the co-operation of the two assemblies-the separate fiat of each had the force of law.2 It is true that in practice this fundamental dualism was not acutely felt, for the individual elements of the Populus and the Plebs were to all intents and purposes the same. We may emphasise the practical similarity and the theoretical difference best by glancing at the two assemblies of the tribes. Except in elective matters they differed hardly at all in the sphere of their competence-each was a legislative and judicial assembly. But they were under the presidency of magistrates of different kinds, and this caused a slight difference in their constitution. When the tribunes of the Plebs summoned the people by tribes, the members of the few patrician families did not attend; when the consul or praetor summoned the people by tribes, the Patricians could be present.3 A fundamental distinction in theory here produces little effect in practice.

While this dual sovereignty-harmless except for its incidental effect of the preservation of the tribunate-was a result of the course taken by the evolution of plebeian privileges, a far more serious consequence was produced by what we noticed 1 Willems le Sénat ii. pp. 14, 16.

3 See Appendix on the comitia tributa.

2

p. 126.

as the second leading idea in the Roman constitution's period of growth,1 the weakening of the magistracy. This weakening— partly the result of a struggle for freedom, partly of accidental circumstances such as the distractions of war-from the first assumed a form which prevented Rome from ever expanding into a democracy. The early Greek states adopted the system of weakening the sole magistracy, first by dividing its functions amongst several holders, and then, when this was not sufficient, by deliberately taking powers from them and giving them to carefully organised popular bodies. In Rome the principle of division was not wholly unknown; thus the censorship and praetorship take over some of the functions of the consulate, but the principle of wholesale transference was entirely absent; even the usurpation of capital jurisdiction by the people was modified by the condition that they could meet only on the summons of a magistrate. The principle of weakening adopted at Rome was that of the increase of the number of magistrates, without any essential alteration of the character of the magistracy. The increase was effected partly by a consistent application of the principle of colleagueship, partly by the setting up of new powers in conflict with the old. The result was chaos. In the developed constitution there were twenty annual magistrates— ten tribunes, two consuls, eight praetors—each armed with the power of passing valid acts of parliament, and of vetoing the resolutions of his colleagues and inferiors. It is true that there was a legal subordination amongst them; the consul was inferior to the tribune, the praetor to the consul; and the rigorous application of law would have reduced the Roman constitution to an oligarchy of ten. As a matter of fact, the tribunate was too early enlisted on the side of the nobility to think of pressing its powers; dissension reigned within the college, and the history of the collective magistracy was one of perpetual conflict and therefore of weakness. In this weakness the people shared, for they were wholly dependent on the magistracy. In shaking the authority of their representatives they had shaken their own; and certain radical defects in the popular organisation, which we shall discuss when we consider the assemblies more in detail, added to their incapacity to rule. Since the guidance of magistrates and of people was equally impossible, and central government must reside somewhere, its fitting place was not unnaturally 1 p. 89.

sought in the single experienced, permanent, and deliberative body in the state, the Senate. The assumption of the reins of government by a power, which as an independent authority was not contemplated in the original constitution, necessarily gave rise to a body of constitutional custom by the side of the older constitutional law. The applications of this new code can only be estimated by a more detailed treatment of the three factors of government the magistracy, the people, and the Senate.

1 The power of this body was much increased by the long wars waged in West and East; but its ascendency was assured before these wars began. See the section on the Senate.

CHAPTER IV

THE MAGISTRACY

§ 1. General Characteristics of the Magistracy

we saw,

THE collective powers of the magistrate had, as been summed up in the word imperium; they had, perhaps, also been expressed by the vaguer term potestas. When, in course of time, magistracies were created which did not possess the imperium, potestas was necessarily the only word which expressed the generic power of the magistracy; imperium became a special species of this power. Thus one could speak of the consulare imperium or of the consularis potestas, but only of the tribunicia potestas.1

It is difficult to treat collectively of the special manifestations of this authority; for the magistracies were graduated by differences of power. To avoid confusion and repetition it will be best, in this general sketch, to give a complete list of magisterial powers, and to point out in each case where they are accorded to, or withheld from, the particular occupants of office. Magisterial powers may be divided into (i.) administrative, (ii.) those exercised in connexion with the people, (iii.) those exercised in connexion with the Senate; and (iv.) certain general powers which underlie all these spheres of activity-the right of interpreting the will of the gods through auspices, and the right of enforcing decrees.

(i.) Administrative powers.-The sphere of administrative activity had from the first days of the Republic been divided into the two departments of command at home (domi) and

1 For an instance of its cumulative use see Cic. in Verr. act. i. 13, 37 "erit tune consul Hortensius cum summo imperio et potestate"; for one of its disjunctive uses see Dig. 4, 6, 26, 2 "consulem praetorem ceterosque qui imperium potestatemve quam habent."

abroad (militiae), the dividing line between the two being sometimes the pomerium, sometimes the limit marked by the first milestone outside the city.1

The home administration can be adequately considered only when we deal with the separate magistracies. But the common form in which it asserted itself may be considered here. This was the right of issuing commands in the form of edicts (jus edicendi), applicable to the special branches of administration under the control of the magistrates, from the quaestor to the consul.2 The edicts of all the magistrates corresponded to one another in their general form; they contained commands, prohibitions, and advice. They were all at an early period issued in writing, and the difference between them was simply that while some, such as those of the consuls and quaestors, were occasional and, when the necessity for them had passed, withdrawn, others, such as those of the censors, praetors, curule aediles and provincial governors, were continuous (perpetua), as being called forth by ever-present necessities, and were therefore transmitted by magistrates to their successors ralaticia). Prominent in their continuity were those of the censors and praetors; while the one created a code of Roman morality, the other developed a system of legal procedure.

The administrative duties abroad belonged exclusively to the magistrates with imperium, i.e. in the ordinary course of things to the consuls and praetors, in exceptional circumstances to the dictator.3 The treatment of provincial administration may be deferred until we deal with the provinces and the pro-magistracy which imperial government created. Here we may appropriately notice the exceptional powers which military command gave to the magistrate over the persons and services of the burgesses, and the honours which it conferred on its possessor.

The first right conferred by military command (imperium in the narrower sense 4) was that of the formation of an army by 1 p. 79.

2 Mommsen (Staatsr. i. p. 203) denies the right of the quaestor to issue edicts; but the absence of distinct mention of quaestorian edicts is no ground for denying him what appears to have been a common magisterial right.

3 For the pro-magistrates see the sections on the consuls and the provinces.

4 In the course of the Republic imperium came to denote par excellence command abroad, as was natural, since here alone the power was unshackled. Hence the phrase cum imperio esse descriptive of a magistrate who can assert this latent power (Cic. ad Fam. viii. 8, 8 "qui praetores fuerunt neque in provincia