devoted to the general rules of inheritance and bankruptcy, such as had been evolved by the imperium at Rome, and which were doubtless meant not to supersede the customs of the various communities, but to be a common law for the province as a whole. But much remained that could not be formulated. A province had boundless surprises in store, and Cicero found it wiser to leave the third part of his edict "unwritten." The principles of the urban praetor were to be drawn upon as occasion required.1 The civil jurisdiction of the governor, which was based on the edict, was either personal or delegated, and in both cases required the visitation of circuits (conventus, dioikýσeis),2 into which the province had been divided at the time of its organisation. A programme of the assize was drawn up, the stay in each circuit was accurately determined,3 and the governor held a court (forum egit) in each of them in turn.4

2

Delegated jurisdiction was performed usually by the quaestor and the legates; in both cases it was due to the mandate of the governor,5 who could assign them lictors, if he pleased, and could always control their sentences.7

The governor possessed an unfettered criminal jurisdiction over the members of the stipendiary states; but it cannot be supposed that he often exercised it. He might summon any case into his court, but ordinary crimes he doubtless left to the judicial machinery of the states themselves.8 On the other

1 Cic. ad Att. vi. 1, 15 "unum (genus) est provinciale, in quo est de rationibus civitatum, de aere alieno, de usura, de syngraphis; in eodem omnia de publicanis. Alterum, quod sine edicto satis commode transigi non potest, de hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis : quae ex edicto et postulari et fieri solent. Tertium, de reliquo jure dicundo aypapov reliqui. Dixi me de eo genere mea decreta ad edicta urbana accommodaturum." 3 Cic. ad Att. v. 21, 9.

2 Cic. ad Fam. iii. 8, 6.

Cic. ad Att. v. 20, 1; ad Fam. iii. 8, 4 and 5. 5 Suet. Caes. 7"" Quaestori (Caesari) ulterior Hispania obvenit; ubi cum, mandatu praetoris, jure dicundo conventus circumiret, etc." Quaestorian jurisdiction was more frequent in Sicily than in other provinces, on account of the presence of the second quaestor at Lilybaeum.

6 Cic. ad Fam. xii. 30, 7 "Illud non nimium probo quod scribis... te tuis etiam legatis lictores ademisse."

7 Thus Verres quashes either a decision, or the execution of a decision, given by his quaestor (Cic. Div. in Caec. 17, 56 "Lilybaeum Verres venit postea: rem cognoscit: factum improbat: cogit quaestorem suum pecuniam . . . adnumerare et reddere ").

...

8 Possibly certain kinds of criminal jurisdiction were guaranteed to cities by the lex provinciae. The Senate of Catina in Sicily tried a slave (Cic. in Verr. iv. 45, 100).

hand, it was held that an offence might be of such import as to transcend even his competence; and although there was no legal means of escaping his jurisdiction, it was considered advisable that he should send cases of a grave political character-those, for instance, connected with sedition or a popular rising-to be tried at Rome.1 The only restraining influence on the governor's jurisdiction was the necessity, imposed by custom, of consulting a council of advisers.2 This consilium, however, was purely Roman, being composed of Roman citizens residing in the conventus and of members of the governor's retinue, and although a council composed wholly of the latter was usually avoided, there was no legal hindrance to such a narrow selection.4

3

Over Roman citizens in the provinces the governor possessed the same autocratic power; for his jurisdiction here is on a level with that of the camp, and he gives judgment in a sphere to which the provocatio does not extend.5 Yet a strong customary law, which was seldom disobeyed, directed that he should remit to Rome all cases in which Roman citizens were to be tried on a capital charge, and that, if he pronounced judgment himself, he should inflict on them no degrading punishments.

Almost every item in the provincial organisation that we have sketched shows where its inherent weakness lay. It resided in the uncontrolled power of the governor. Yet it was a weakness more apparent in practice than in theory. There were many controlling forces at work which the organiser and the government hoped would be effective. There were the charters of cities and of provinces, and in the province a constant, if improvised, committee of the Senate, which the governor was supposed to consult before he ventured on any

1 Cic. in Verr. i. 33, 84 (of an émeute at Lampsacus) "Non te ad senatum causam deferre non eos homines, qui populum concitarant, consulum literis evocandos curare oportuit?"

2 The council was not, however, legally necessary. Cf. Cic. in Verr. ii. 30, 75 "Reus plorare . . ut cum consilio cognosceret.'

3 ib. ii. 29, 70; 30, 75.

4 ib. ii. 30, 75 "hominem innocentem de sententia scribae, medici haruspicisque condemnat.'

5 For the threat of capital punishment on a Roman citizen see Cic. ad Q. fr. i. 2, 5; for its apparent execution, Diod. xxxvii. 5, 2.

6 Cic. in Verr. v. 66, 170 "Facinus est vincire civem Romanum; scelus, verberare prope parricidium, necare: quid dicam in crucem tollere?" Cf. pro Rab. 5, 17.

important step.1 There was an unparalleled amount of legislation intended for the protection of provincials and expressed in enactments dealing with the ordering of the provinces, the rights of magistrates, and with extortion (de provinciis ordinandis, de jure magistratuum, repetundarum); and, lastly, there was the criminal responsibility supposed to be enforced by the courts which carried out these laws. Some of these checks-the charters of the favoured cities, the senatorial commission-were real, but were not far-reaching enough seriously to affect the form of provincial rule. Those of the laws were almost nugatory, for though the government that proposed them had a collective conscience, its individual members who were bound by them had none, and the courts that were supposed to enforce these laws became the prey of party strife and the weapon of party fanatics. But a government that depends on protective legislation and the enforcement of criminal responsibility must be in a perilous state. The defect must be in the principle of rule, not merely in its working. And in truth the Republican theory of provincial rule represents a fundamental inconsistency of idea. The theory aimed at the impossible combination of martial law with municipal independence. Had the rights of all the states been provided with better safeguards, their self-government might have been more real, and the autocracy of the governor might have been proportionately checked. But this solution would have been an offence to the idea of the unlimited imperium, a clinging superstition which the Romans had inherited from the history of their own state and her days of conquest. The Roman Empire had been developed from a protectorate; it bears to the end of the Republican period the traces of its origin, and, in its lack of organisation, conveys the suggestion of being a merely provisional government. The merits of such system as there was cannot be ignored. The unrestricted imperium was necessary in time of war and, under a benevolent despot, might be useful even in days of peace, while the very absence of organisation betrays the noble belief that the aggregate of states which formed a province was rather a confederated suzerainty than an integral part of an empire. But its defects are more glaring and are to be found in the absence of some central authority at home, not interested in provincial misrule, which

1 See p. 285.

might enforce responsibility on governors; in the existence of annual commands, and the exaggeration of routine which rendered extraordinary appointments, such as that of Pompeius, inevitable; and in the lack of an organised civil service, which, with its mechanical routine and its self-evolved rules, is perhaps the surest of all checks on autocracy.

CHAPTER IX

THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE

THE party of reform which, during the last century of the Republic, gave a new development to the elastic Roman constitution, by gradually creating a stronger executive organ than had been known since the time of the monarchy, had two distinguishing features. One was an opposition, sometimes rational, sometimes blind, to the senatorial government; the other the exposition of a positive programme for remedying evils which all but the most callous or careless could see. The nature of their attack varied with the assailable features presented by its object. At first it was directed against the assumed indifference of the Senate to internal reform and its failure to suggest hasty remedies for economic grievances. This was the essential feature of the Gracchan movement; but, although its example was perilous, the immediate effects of this first revolution were transitory in the extreme. The Senate emerged from the attack shaken but victorious. Italy was but of little account when the world lay at the feet of the noble families who composed the great council of state, and the Senate could be made to appear the only true government for an empire. Unfortunately this theory was rudely shaken. A miserable war in a protected state, into which the government was most unwillingly dragged, was thought sufficient to show that the merits of the senatorial administration of the empire were an illusion. The epoch of the Jugurthine war is the turning-point of the history of this period. A reforming party with an imperial policy must associate itself with the military power. The change was rapidly effected. Tribunes, commons, assemblies still represent the nominal sovereigns, but their weapons too powerful for the users are the imperator, the