IMPERIUM, POTESTAS, AND THE POMERIUM IN THE ROMAN REPUBLIC
Few concepts were as fundamental to Roman war and government as imperium, that terrible power to give commands and compel obedience that was the de ning character-istic of Rome�’s military commanders. In spite of its importance, however, no adequate de nition of imperium survives from antiquity; the modern understanding of the term has been assembled by modern scholars, who have combed through the ancient sources and assembled a composite interpretation from a variety of independent references. The contention of this paper is that this received modern understanding is fundamentally in error in one important aspect: against the common belief that imperium existed within the pomerium of Rome and that it conveyed upon higher magistrates the power to perform their duties in the city, I believe that imperium did not, under normal circum-stances, exist within the pomerium, but rather that it was a strictly extra-mural military power. This position is not entirely new: Heuss, Kunkel, and Bleicken have all argued that the oldest meaning of imperium was supreme military command,1 but they also believed that imperium developed into the supreme civil (as well as military) power in the Roman state, and in this respect they join the vast majority of scholars who believe that imperium domi �– a weakened or limited form of imperium �– was the highest civil power in Rome. Only two scholars, to my knowledge, have expressed the opinion that imperium remained solely a military power: Daube suggested that imperare indicated military command only,2 and Mitchell (concurring with Daube) stated that �“in reality, magistrates with imperium held military commands; their authority was con ned to areas outside the city�….�”3 This position, however, has not been aggressively argued and has therefore failed to enter the mainstream of scholarly thought. Showing that imperium was not a domestic power is something of an uphill battle, since it challenges a foundation of our traditional understanding of Roman government, an understanding upon which generations of scholarship have been founded. Nevertheless, I believe the evidence is compelling and that it is time for a fresh look at imperium from a perspective that does not presuppose it to be the basis of consular (and later, praetorian) power in Rome.
* I owe a debt of gratitude to Elizabeth Meyer and J. E. Lendon, who read multiple drafts of this paper and improved it with their helpful criticism and suggestions. I also thank A. J. Woodman and Robin Seager, whose comments have sharpened my thinking on several points. Any remaining errors are exclusively my own.
1 A. Heuss, �“Zur Entwicklung des Imperiums der römischen Oberbeamten�”, ZRG 64 (1944) 57�–133 (= A. H. Gesammelte Schriften [Stuttgart 1995] 831�–907) and �“Gedanken und Vermutungen zur frühen römischen Regierungsgewalt�”, Nachr. Akad. Wiss. Göttingen. Phil.-hist. Kl. (1982) 377�–454 (= Gesammelte Schriften [as above] 908�–985, esp. 977�–981), W. Kunkel, An Introduction to Ro-man Legal and Constitutional History2 (J. M. Kelly [trans.], Oxford 1973) 15, and J. Bleicken, Zum Begriff der römischen Amtsgewalt (Göttingen 1981) 291 (= J. B. Gesammelte Schriften [Stuttgart 1998] 335).
2 D. Daube, Roman Law (Edinburgh 1969) 3�–4.3 R. E. Mitchell, Patricians and Plebeians (Ithaca / London 1990) 135�–136.
In this paper, therefore, I argue that the evidence we depend upon to prove the exist-ence of imperium domi is �– at best �– highly equivocal and uncertain, and that there are very persuasive reasons for discarding this notion and instead understanding Republican imperium strictly and solely as the power of military command. I argue rst that the pot-estas invested in each magistracy provided all of the power and authority necessary for of cials to perform their civic duties within the city. Since all Roman magistrates were de ned and given power by their potestas, it is unnecessary to begin with the assumption that imperium was ever necessary within the walls of Rome. Second, I will demonstrate that the surviving literature strongly suggests that imperium itself did not exist within the pomerium except under extraordinary circumstances, and that magistrates (as well as promagistrates) automatically forfeited their imperium when entering Rome. Finally, I will brie y examine three Republican institutions (the triumph, the dictatorship, and the senatus consultum ultimum) and argue that �– far from demonstrating the existence of imperium domi �– they reinforce the idea that imperium did not normally exist within the pomerium. As with any examination of fundamental Roman institutions, the poverty of reliable information from the early Republic requires a heavy reliance upon later sources. The focus of this paper, therefore, will be on the Roman use and understanding of imperium in the nal two centuries of the Republic, with signi cant attention given to the way Romans of this period imagined imperium to have functioned before this time.
It is not dif cult to understand why historians have long assumed that imperium was the ultimate magisterial power within the pomerium: ancient writers placed tremendous emphasis upon imperium as the hallmark of the highest magistracies in the state, and as fundamental to Rome�’s military glory. The idea of imperium was so pervasive that it was borrowed to describe the realm the Romans ruled �– the imperium Romanum �– and the early emperors exalted the word further by calling themselves imperatores and their command over the empire imperium maius. Ancient authors, moreover, constantly used imperium guratively outside its speci c and technical meaning �– the power of command given to particular magistrates by a lex curiata4 �– simply as a sonorous word meaning �‘power.�’5 Cicero refers to the imperium of the mind and to the imperium of a
4 I accept that imperium �– or more precisely, the capacity to take up imperium upon leaving the city �– was conferred by a lex curiata, but this point is not universally agreed upon among modern scholars. For discussion on the source of a magistrate�’s imperium, see: A. Magdelain, Ius, imperium, auctori-tas: études de droit romain (Rome 1990) 307, Mitchell, Patricians (as in n. 3) 7, 147�–150, J. Rüpke, Domi Militiae (Stuttgart 1990) 47�–51, A. Giovannini, Consulare imperium (Basel 1983) 45�–53, J. Bleicken, Begriff (as in n. 1), R. Develin, �“The Roman Command Structure in Spain 218�–190 B.C.�”, Klio 62 (1980) 356 and �“Lex Curiata and the Competence of Magistrates�”, Mnemosyne 30 (1977) 49�–61, H. S. Versnel, Triumphus (Leiden 1980) 319�–349, G. W. Botsford, The Roman Assemblies (New York 1968) 188�–200, A. Magdelain, Recherches sur l�’imperium: la loi curiate et les auspices d�’investiture (Paris 1968) 17�–20, and J. J. Nicolls, �“The Content of the Lex Curiata�”, AJPhil 88 (1967) 257�–278.
5 On the wide and varied use of the word imperium, see: J. S. Richardson, �“Imperium Romanum: Empire and the Language of Power�”, JRS 81 (1991) 2, D. Baronowski, �“The Romans�’ Awareness of their Imperialism in the Second Century B.C.�”, in E. Hermon (ed.), Gouvernants et gouvernés dans l�’imperium romanum (Québec 1991) 174, Z. Yavetz, �“Towards a Further Step into the Study of Roman Imperialism�”, in Hermon (as above n. 5) 5�–6, A. Giovannini, �“Magistratur und Volk: Ein Beitrag zur Entstehungsgeschichte des Staatsrechts�”, in W. Eder (ed.), Staat und Staatlichkeit in der frühen römischen Republik (Stuttgart 1990) 432�–433, M. Awerbuch, �“Imperium�”, Archiv für Begriffsgeschichte 25 (1981) 162�–176, J. Bleicken, Begriff (as in n. 1) 257�–297, J. Béranger, �“Im-perium, expression et conception du pouvoir impérial�”, Rev. Ét. Lat. 55 (1977) 325�–344, Versnel, Triumphus (as in n. 4) 313�–319, and Nicolls, Content (as in n. 4) 257�–258.
Imperium, Potestas, and the Pomerium in the Roman Republic 421
Spartan king,6 Varro describes the imperium of bees,7 Velleius Paterculus speaks of the imperium of the tribunes,8 and the Urso Charter refers to the imperium of the municipal duoviri and aediles.9 In all these cases imperium does not refer to the speci c and con-stitutional imperium that was formally conferred upon Rome�’s military commanders; rather, the word is used in a very casual manner to signify the general idea of power. This general and non-constitutional use of the word imperium is obvious when used in reference to Spartans, bees, or tribunes (all of whom lacked technical imperium), but how is one to detect such usage when applied to a magistrate who did, in fact, also pos-sess constitutional imperium? For example, does consulare imperium mean �“a consul�’s legally conferred authority to command Roman legions and enforce martial law,�” or does it merely signify �“the power of a consul�” in the same way that Velleius Paterculus referred to the imperium of tribunes and Varro the imperium of bees? Such distinctions are dif cult to identify, especially given the tendency of ancient authors to identify post and power: Livy uses imperium almost as a synonym for the consulship.10 The loose usage of the ancient authors has encouraged modern historians to imagine that imperium was the fundamental source of all power and authority in the Roman world.
When Theodor Mommsen wrote his tremendously in uential Römisches Staats-recht, he began, therefore, with the assumption that imperium �– which he held to be the absolute power of the banished monarchy �– was the highest power in Republican government, and therefore conveyed supreme authority in both military leadership and legal jurisdiction.11 Thus, even though he understood Roman government to have been sharply divided into two spheres, the peacetime civil administration (domi) and the wartime military command (militiae), Mommsen nonetheless argued that imperium entitled its holder to exercise command in both spheres.12 Since the citizens�’ right of appeal (provocatio) and tribunician intercession (intercessio) protected citizens from summary beatings and execution within the pomerium, he reasoned that imperium must have existed in two basic types: imperium militiae (the original unlimited power of the kingship) and imperium domi (the restricted and limited power of civil magistrates). Thus Mommsen laid out the system for understanding the powers of Roman Republican magistrates that still prevails today,13 and although some scholars have challenged his
6 Imperium of the mind: Cic. Rep. 1.60. Imperium of the Spartan king: Cic. Rep. 2.50. 7 Varro Rust. 3.16.6. 8 Vell. 2.2.3 (speaking of Ti. Gracchus) Octavioque collegae pro bono publico stanti imperium abro-
gavit�…. 9 Lex Coloniae Genetivae (RS 25) 94.30: imper(io) potestat(e)ve, 125.14: imperium potestatemve,
128.12�–13: magistratu imperioq(ue).10 Livy frequently uses consulare imperium as a shorthand term for the general idea of consular power,
and often describes the Con ict of the Orders as a clash between consular imperium and tribunician potestas: 2.27.11, 2.55.2, 3.6.9, 3.9.2, 3.9.8, 3.9.10, 3.17.7, 3.30.4.
11 T. Mommsen, Römisches Staatsrecht 13 (Leipzig 1887/8) 22, �“Imperium, dessen Ableitung unklar ist, bezeichnet in seinem allgemeinsten technischen Werth die oberste mit Commando und Jurisdic-tion ausgestattete Amtsgewalt�….�”
12 Mommsen, Staatsrecht 13 (as in n. 11) 61�–75.13 Although W. K. Lacey, Augustus and his Principate (Leeds 1996), J. Bleicken, �“Imperium consulare /
proconsulare im Übergang von der Republik zum Prinzipat�”, in J. Bleicken (ed.), Colloquium aus Anlass des 80. Geburtstages von Alfred Heuss (Kallmünz 1993) 117�–133 (= Gesammelte Schriften [as in n. 1] 705�–721), K. M. Girardet, �“Zur Diskussion um das imperium consulare militiae im 1. Jh. v. Chr.�”, Cahiers du Centre Gustave Glotz 2 (1992) 213�–220, J.-M. Roddaz, �“Imperium: nature et compétences à la n de la République et au début de l�’Empire�”, Cahiers du Centre Gustave Glotz 3
belief in the primacy of imperium in Republican government,14 very few have questioned the existence and importance of his imperium domi.
In fact, there is remarkably little evidence for the existence of an imperium domi that was the fundamental basis for civil administration within the pomerium.15 The best evidence perhaps comes from Sallust, who speci cally refers to domi militiaeque im-perium, but, as I will demonstrate below, this passage actually disproves the existence of imperium domi.16 If the slate is wiped clean of presuppositions and the question of imperium looked at afresh, I believe we must accept that imperium, although commonly used in a gurative or metaphorical manner, was (in the technical sense) strictly a mili-tary power that normally did not exist within the pomerium.
Imperium vs. Potestas
To begin with, imperium was not necessary within the pomerium, because potestas provided all the power and authority magistrates needed to perform the duties of their of ces. While modern scholars are well aware that potestas was an important aspect of Roman magistracies, I know of no one who identi es it as the fundamental, constitu-tional, and constitutive quality of magistracy.17 Construing potestas vaguely to mean
(1992) 189�–211, Magdelain, Ius (as in n. 4), Rüpke, Domi (as in n. 4) 41�–51, Giovannini, Consulare (as in n. 4), Bleicken, Begriff (as in n. 1) 287�–294, and Versnel, Triumphus (as in n. 4) have produced valuable research on imperium in recent decades, none seems to question Mommsen�’s statement that imperium was both a military and civilian power. For a recent survey of historians who have chal-lenged other aspects of Mommsen�’s arguments on imperium, see T. C. Brennan, The Praetorship in the Roman Republic (Oxford 2000) 14�–15.
14 Perhaps most notable is Bleicken, Begriff (as in n. 1) 259�–278, 294�–295, who argued that auspicium was the oldest and most fundamental source of magisterial authority, and that only later did imperium become important as a source of civilian authority. On Bleicken�’s arguments, see Heuss, Gedanken (as in n. 1) and Rüpke, Domi (as in n. 4) 41�–46.
15 Neither of the passages Mommsen actually cited in his discussion, Cic. Rep. 1.63 or Brut. 256, is to the point, being merely statements of the commonplace Roman dichotomy between militiae and domi. The rare occasions when the domi / militiae distinction is applied to imperium are discussed below.
16 Sall. Cat. 29.3. See below for discussion.17 T. C. Brennan, �“Power and Process under the Republican �‘Constitution�’�”, in H. Flower (ed.), The
Cambridge Companion to the Roman Republic (Cambridge 2004) 38 has recently come close to this position: �“Now, every republican magistrate had potestas, that is, the legitimate and legitimiz-ing power that was inherent in and peculiar to one�’s magistracy.�” Despite this statement, Brennan still considers that consuls, and later praetors, normally used their imperium in the civic sphere. Likewise, A. Schiller, Roman Law: Mechanisms of Development (The Hague 1978) 174 noted the fundamental importance of potestas: �“Potestas is usually considered to have been the general term employed to designate the powers as well as the duties which a magistrate was called upon to dis-charge.�” But Schiller also maintained the existence of an imperium domi that empowered much of a magistrate�’s domestic activities: �“�…the imperium of a magistrate is evidenced by�…the leadership of the state in time of peace. It included the convocation of the populace and the submission of pro-posals thereto, together with the conducting of the affairs of state in conjunction with the Senate.�” J. Hellegouarc�’h, Le vocabulaire latin des relations et des parties politiques sous la République (Paris 1972) states that potestas is a technical word (310) and that it was magisterial power (240), but he does not separate it from imperium as the sole or primary power of all magistrates (309). See also K. Löwenstein, The Governance of Rome (The Hague 1973) 48, �“All magistrates, including those endowed with imperium�…possessed a lesser kind of of ce authority called potestas. It was
Imperium, Potestas, and the Pomerium in the Roman Republic 423
�‘power�’, many scholars feel that it must be lled with more speci c powers to be mean-ingful. As a result, imperium is understood to be part of this broad potestas, a form of potestas possessed by certain high magistrates, and conveying the right to command soldiers.18 By intermingling the two concepts in this manner, imperium is brought into the sphere of a consul�’s or praetor�’s civilian authority, and once there it is very dif cult to again separate and distinguish between the two ideas. But this was not an error that the ancient authors made.
Potestas was the word the Romans used to describe the speci cally civil powers of a magistrate, whether or not that magistrate also possessed imperium. Throughout the Republic all regular (and extraordinary) magistrates possessed potestas, which was the power inherent in public of ce that enabled magistrates to ful ll their responsibilities. Consuls,19 praetors,20 dictators,21 masters of the horse,22 censors,23 tribunes,24 aediles,25
understood to refer only to the speci c duties and functions of a governmental, administrative, or judicial nature the of ce customarily carried with it. These specialized of ce assignments were to be performed by the speci c magistrate only who possessed jurisdiction, and by none other of an equal or inferior category or rank.�” On the other hand, some scholars have seen potestas as a fairly vague concept. Most important among these is Bleicken, Begriff (as in n. 1) �“�…Potestas ist kein Recht auf Handlung, ist nicht konkrete Kompetenz oder Verfügungsgewalt, sondern ist eine Kraft, welche die Gewalten gleichrangiger Beamter ordnet�” (280) and �“Potestas bezieht sich hier nicht, wie Auspizium, auf den Inhalt von Amtsgewalt, sondern ist eine reine Bezugsgröße, die das Ver-hältnis von Gewaltenträgern untereinander regelt�” (295). Kunkel, Introduction (as in n. 1) 15�–17 recognized that potestas was the sole power of those magistrates without imperium, but he held that imperium �“in the wider sense�” conveyed �“all-embracing authority�” to its holders; and in a later work (Staatsordnung und Staatspraxis der Römischen Republik [Munich 1995] 21�–28) he provides a good discussion of the potestas of different magistracies, but does not consider potestas to be the de ning quality of a magistrate. See also C. Buonauro, �“La responsabilità dei magistrati�”, Labeo (2002) 138�–146 and E. Staedler, �“Über Rechtsnatur und Rechtsinhalt der Augustischen Regesten�”, ZRG 61 (1942) 116.
18 A. Lintott, The Constitution of the Roman Republic (Oxford 1999) 95�–96, �“Every magistrate had potestas �– in its institutional sense a capability legitimized by statute or custom�…Potestas in its strongest form, that granted to consuls, praetors, proconsuls, propraetors �– and to the dictator and his master of horse �– was termed imperium.�” Kunkel, Staatsordnung (as in n. 17) 22 notes that im-perium and potestas often appear together in ancient sources, but he does not distinguish the two. A. Stephenson, A History of Roman Law (Colorado 1992) 142, �“Potestas was the general term for the power of doing anything. When this was bestowed upon the magistratus it was called imperium, provided that of cer was a major [i.e. consul, praetor, dictator, or master of horse], otherwise it was not.�” Awerbuch, Imperium (as in n. 5) �“Die hohen Amtsträger besitzen �‘imperium�’ �– die niederen Amtsträger �‘potestas.�’�” See also Mommsen, Staatsrecht 13 (as in n. 11), 22�–24, 116�–118.
3.30.1.24 A selection includes: Cic. Leg. agr. 2.30; Caes. BC 1.7; Livy 3.52.9, 4.34.9, 4.26.10, 4.56.10, 5.9.7,
39.5.2, Per. 58.5; Aug. RG 4; Vell. 2.30.4; Val. Max. 2.7.8; Tac. Ann. 1.3.3; Aul. Gell. 6.19.5, ILS 6123.
25 Cic. Leg. 3.7; Caes. Afr. 33; Frontin. Aq. 95; Tac. Ann. 13.28.2; Aul. Gell. 13.13.4. The investiture in the aediles of the responsibility to enforce of cial weights and measures is demonstrated in the lex Silia (see RS 46).
quaestors,26 and even decemviri27 could all be characterized by the potestas that was invested in their of ce. Indeed, because potestas alone �– without imperium �– gave power and authority to civic magistrates like censors, tribunes, aediles, and quaestors, it would seem strange to imagine that consuls and praetors needed the addition of imperium to be able to perform their own civic responsibilities. While imperium was a special power granted to certain magistrates only, every magistrate held potestas, which could include the capacity to give judgments,28 block actions,29 give orders,30 administer,31 summon,32 and punish.33 Magistrates�’ potestas, moreover, enabled them to undertake additional or unusual actions when instructed to do so by the senate or a higher magistrate.34 Cicero described potestas as the legal aspect that empowered a magistrate to function,35 Fes-tus de ned potestas as the power given to an individual by the people to enable him to undertake an of cial task,36 and Aulus Gellius identi ed it as the characteristic power of magistrates.37 Indeed, Gellius states that plebeian tribunes had the right to summon the senate, indicating that such a summons was legitimized by potestas and not by im-perium.38 Cicero identi ed the potestas of the magistrates �– along with the auctoritas of the aristocrats and libertas of the people �– as one of the three cornerstones of a stable government,39 and stated that magistrates were ranked according to their respective (and
declarandi. 31 Cic. Off. 1.71, potestas administrandi. 32 Plin. Ep. 6.5.2, potestas denuntiandi. 33 Tac. Ann. 1.77.4, potestas multandi.34 For example, when accusations were made to the senate about the behavior of Scipio (Africanus) in
Sicily in 204 B.C., the senate decided to send a praetor, an aedile, two tribunes of the plebs, and ten legates to investigate (Livy 29.20.4�–10). Although aediles and tribunes of the plebs did not normally conduct of cial business away from Rome, the senate evidently thought it reasonable and proper to expand the duties of these of cers to include the investigation and �– if necessary �– the arrest of a proconsul. See also Livy 4.30 (plebeian aediles are instructed to suppress foreign sacri ces), 4.51 (the senate requests that the tribunes investigate the murder of a military tribune), 25.1 (a praetor is assigned the task of freeing the people from superstitious fears and practices). Likewise, Aulus Gellius 13.12.6 (citing Varro) points out that tribunes occasionally �– and improperly �– utilized the power of summons even though this prerogative was not technically invested in their of ce.
35 Cic. Dom. 128, quaero quae lex lata sit�…ubi tibi haec potestas data sit�…; Leg. agr. 2.21, Licinia est lex altera Aebutia, quae non modo eum, qui tulerit de aliqua curatione ac potestate, sed etiam collegas eius, cognatos, ad nes excipit, ne eis ea potestas curatiove mandetur; Agr. 2.31, videte nunc, eos, qui a vobis nihil potestatis acceperint, quanto maioribus ornamentis ad ciat, quam omnes nos adfecti sumus, quibus vos amplissimas potestates dedistis.
36 Fest. p. 43L: cum potestate est dicebatur de eo, qui a populo alicui negotio praeferebatur. 37 Aul. Gell. 2.2.9. He states that the power of a father over his son is suspended when that son is a
magistrate with potestas: �…patrum iura, cum liorum qui in magistratu sunt potestatibus collata, interquiescere paululum et conivere�….
38 Aul. Gell. 14.7.4 (citing Varro), Primum ibi ponit qui fuerint per quos more maiorum senatus haberi soleret eosque nominat: �“dictatorem, consules, praetores, tribunos plebi, interregem, praefectum urbi.�”
39 Cic. Rep. 2.57, nisi�…et potestatis satis in magistratibus et auctoritatis in principum consilio et libertatis in populo sit, non posse hunc incommutabilem rei publicae conservari statum.
Imperium, Potestas, and the Pomerium in the Roman Republic 425
therefore clearly established) levels of potestas.40 Cicero also wrote that the potestas of magistrates was the foundation of the government,41 that potestas was frequently described as the fundamental basis of magisterial authority,42 and that a magistrate in Rome was conspicuous for the insignia potestatis that he possessed.43 He also refers to potestas as the of cial quality that empowered a magistrate�’s action,44 and as a foun-dation of Roman society.45 Valerius Maximus and Aulus Gellius described the relative power of consuls and praetors as a question of potestas maior and minor,46 and Livy referred to the collegiality of the consuls as par potestas.47 Finally, potestas was also the authority that enabled chief of cials in colonies (duumviri and aediles) to undertake their responsibilities,48 indicating that �– on all levels �– potestas was the recognizable authority of the civic magistrate.49
The primary importance of potestas to the de nition of a magistrate is also dem-onstrated by the occasional bestowal upon one magistracy of the potestas of another magistracy, such as when a duumvir or quattuorvir was given aedilician potestas,50 or
40 Cic. Leg. 3.11, Par maiorve potestas plus valeto (cf. 3.6 and 10). 41 Cic. Sest. 98, huius autem otiosae dignitatis haec fundamenta sunt, haec membra quae tuenda
principibus et vel capitis periculo defendenda sunt, religiones, auspicia, potestates magistratuum, senatus auctoritas, leges, mos maiorum, iudicia, iuris dictio, des, provinciae, socii, imperii laus, res militaris, aerarium.
42 Cic. Rep. 2.57, nisi aequabilis haec in civitate conpensatio sit et iuris et of cii et muneris, ut et potestatis satis in magistratibus et auctoritatis in principum consilio et libertatis in populo sit, non posse hunc incommutabilem rei publicae conservari statum; Leg. agr. 2.28, vidit et perspexit sine curiata lege decemviros potestatem habere non posse. See also Livy 3.65.8, cum �…vis potestatis omnis aliquanto posteriore anni parte languidior ferme esset; Tac. Ann. 4.6.2, minorum quoque magistratum exercita potestas.
43 Cic. Leg. agr. 2.32, Quirites�…insignia videtis potestatis.44 Cic. Pis. 8, potestate poterat.45 Cic. Sest. 98, haec membra, quae tuenda principibus et vel capitis periculo defendenda sunt, reli-
giones, auspicia, potestates magistratuum, senatus auctoritas�…. 46 Val. Max. 2.8.2, �…ne in honore triumphi minor potestas maiori aequaretur�…; and Gell. NA 14.7.6
(citing Varro), �…intercedendi ne senatusconsultum eret ius fuisse iis solis qui eadem potestate qua ii qui senatusconsultum facere vellent maiorve essent. On the topic of levels of potestas (maior, par, and minor) establishing the hierarchy of Roman magistrates, see also Bleicken, Begriff (as in n. 1) 278�–287.
47 Livy 2.18.8, (speaking of the dictatorship) neque enim, ut in consulibus qui pari potestate essent, alterius auxilium�….
48 Even in Roman colonies, local of cials administered by right of the potestas invested in their of- ces. This is evident in the lex Coloniae Genetivae (RS 25, sections 62, 65, 94, 95, 97, 125), which repeatedly refers to the potestas of the local magistrates as the source of their authority. This lex mentions possible intervention by men invested with imperium (94, 125), but the sole reference to a colonist holding imperium (128) is surely erroneous or metaphorical (compare with Cicero�’s reference to the imperium of the Spartan kings [Rep. 2.50] or Velleius Paterculus�’ mention of the imperium of Roman tribunes [2.2.3], neither of which can refer to the of cial imperium granted by a lex curiata).
an aedile was given quaestorian potestas,51 or a consul or aedile given censorial potes-tas.52 Legates in the army were frequently instructed to assume the duties and powers of a fallen quaestor, just as quaestors were frequently instructed to assume the duties and powers of a praetor.53 During one phase of the Con ict of the Orders the patricians were believed to have tried to keep the prestigious consulship out of the hands of plebe-ians by choosing to elect only military tribunes with consular potestas, thereby creating magistrates with the same powers and capabilities as the consuls, but preventing the actual consulship from being sullied by plebeian incumbents.54 In the political turmoil of the Late Republic, it was even possible to nd plebeian tribunes invested with prae-torian potestas and quaestors invested with consular potestas.55 In all of these cases, a man could assume the powers and prerogatives of another magistracy by assuming the potestas that was speci c to that magistracy.56 Moreover, Festus clearly indicates that imperium and potestas are different powers conveyed by the people,57 and inscriptions such as the lex agraria (of 111 B.C.), the Falerio fragment II, the lex coloniae Geneti-vae, and the lex de Gallia Cisalpina all differentiate between imperium and potestas as different aspects of a magistracy.58 Whereas potestas was essential and common to all magistracies, imperium was invested in very few magistracies and could even be given as a simple grant of command authority to a private citizen who held no magistracy at all.59 Thus Cicero�’s description of the dictatorship points out that, although it was
51 A number of imperial inscriptions refer to men holding aedileships and functioning with quaestorian potestas: aedilis quaestoricae potestatis (AE 1933. 67; 1934. 26, 28 [cf. 1993. 1770]; 1942/43. 8 [=CIL 8.6712]; CIL 8.7105; 8.7990, 8.7991; and 8.25647; see also CIL 8. 6950, 6957, and 6962).
52 Frontin. Aq. 95 (aediles function with censorial potestas over aqueducts when no censors are in of- ce) and Tac. Ann. 3.30.3 (a consul is given censorial potestas).
53 Legatus pro quaestore: Cic. Att. 9.1.4, Verr. 1.11, IG 9.2.613. Quaestor pro praetore: Caes. Alex. 42, Livy Per. 104, Sall. Cat. 19.1, Iug. 103.4 (pro quaestor pro praetore), Vell. Pat. 2.45.4, I. Délos 1603. That the title pro quaestore or pro praetore should be understood as signifying that an individual was invested with the potestas of the respective magistracy is made clear by Cicero�’s description of Verres�’ elevation to proquaestor while legate in Cilicia, a promotion Verres eagerly sought in order to use the powers of that of ce to engage in criminal pro teering (Cic. 2 Verr. 1.77, 1.90, 1.95). Cicero also refers to Verres as legatus quaestorius at that time (Cic. 2 Verr. 1.56).
54 First created (according to tradition) in 444 B.C.: per haec consilia eo deducta est res ut tribunos militum consulari potestate promisce ex patribus ac plebe creari sinerent, de consulibus creandis nihil mutaretur (Livy 4.6.8). See also CIL 6.31089: �…[Me]nenio Agrippa Lucretio T[ricipitino Nautio Rutilo Servilio Axilla trib(uno)] mil(itum) consulari potesta[te]�….
55 Tribunus plebis pro praetore: App. BC 2.43, Caes. BC 2.21, Alex. 48, Cic. Att. 10.8A, Livy Per. 111. Quaestor pro consule: ILS 491.
56 In CIL 8.6965, an imperial-era of cial in Numidia is even recorded as having held two types of potestas �– aedilician and quaestorian �– simultaneously: �…IIIvir aed(iliciae) et q(uaestoriae) pot(estatis)�…. In CIL 9.44, a man in Italy who was on multiple types of of cial boards was careful to distinguish them from each other by the type of potestas he held in each: C(aius) Antonius M(arci) f(ilius) Maec(ia) Achaicus IIIIvir aed(ilicia) pot(estate) IIIIvir iur(e) dicund(o) IIIIvir quinq(uies) censor(ia) potes(tate)�….
57 Festus p. 43L: cum imperio est dicebatur apud antiquos, cui nominatim a populo dabatur imperium. Cum potestate est dicebatur de eo, qui a populo alicui negotio praeferebatur.
58 Lex agraria (RS 2, clause 87): magistratus prove magistratu queive pro eo imperio iudicio potes-tateve erit�…; Falerio fragment II (RS 18): �…imperio potestateve; lex coloniae Genetivae (RS 25, l. 94): neve quis pro quo imperio potestateve facito�…; lex Gallia Cisalpina (RS 28, col. 1, l. 51): neive quis, pro quo imperio potestateue erit�…. Cf. lex Rubria (CIL 1.200=11.1146).
59 In order to command a Roman army, a man needed only to be cum imperio. Thus private citizens who held no of ce could, if invested with imperium, legitimately command Roman legions as privati
Imperium, Potestas, and the Pomerium in the Roman Republic 427
invested with omne imperium, the very name of the of ce was derived from its vis pot-estatis, indicating that potestas (and not imperium) de ned an individual as a dictator.60 Potestas was understood to be the of cial power common to all public magistrates in late Republican Rome, and it is therefore unnecessary to imagine that consuls and prae-tors needed imperium as well as potestas to undertake their civic responsibilities while Rome�’s other civic magistracies could function perfectly well with only potestas.
Some scholars would reject the idea that imperium was redundant in the civil sphere for consuls and praetors on the grounds that these magistrates needed imperium to func-tion as the supreme judicial authorities within the state.61 Although this was certainly the opinion of the jurists of the High Empire, their writings re ect the substantial evolution in the concept of imperium brought about by the rise of the emperors; in the last two centuries of the Republic, imperium was not required for normal civic judicial proceed-ings, for tribunes, aediles, and tresviri capitales all exercised legal authority without imperium,62 and aediles also possessed the power to pronounce a legal edict.63 Indeed, Lintott points out that in the Republic even private citizens could in ict the punishment for some crimes �– even capital offences �– with merely the assent of a magistrate.64 In his de Legibus, Cicero believed that all magistrates should possess judicial power,65 and when he speaks of praetors as judicial magistrates he speci cally refers to them as holding potestas.66 He likewise draws a distinction between the urban magistrate (ranked by potestas) who exercised judicial powers (iudicassit inrogassitve) and the military commander who exercised military authority (imperabit).67 It is true that certain crimes
cum imperio. Scipio Africanus is the most famous example of such a privatus (Livy 26.18�–20, Val. Max. 3.7.1), but the Romans frequently made use of such men when circumstances required another military commander (see Livy 23.34.14, 27.24.1, 28.46.13, 35.23.6�–7).
60 Cic. Rep. 1.63, gravioribus vero bellis etiam sine collega omne imperium nostri penes singulos esse voluerunt, quorum ipsum nomen vim suae potestatis indicat. nam dictator quidem ab eo appellatur, quia dicitur, sed in nostris libris vides eum, Laeli, magistrum populi appellari. Thus Cicero (using Scipio as a mouthpiece) points out that the title of an of ce, such as magister populi, indicates the strength or character of that of ce�’s potestas whether or not that of ce is also invested with impe-rium. Cicero expressed a similar idea when describing the infamous decemviri of the Early Republic: �…decemviri maxima potestate sine provocatione crearentur, qui et summum imperium haberent et leges scriberent (Rep. 2.61). His wording here suggests that the de nition of the new of ce was an issue of potestas, and that once established the new of ce was given imperium and the task of establishing laws.
61 For example, see: Lintott, Constitution (as in n. 18) 96�–97, Schiller, Law (as in n. 17) 179, and H. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law (Cambridge 1972) 45, 49, 226.
62 The exercise of jurisdiction was a primary task of the aediles and tresviri capitales, while tribunes could not only impose nes and imprison private citizens, but even subject sitting magistrates to these penalties. See Lintott, Constitution (as in n. 18) 122�–124 (tribunes), 131�–133 (aediles), 141�–143 (tresviri capitales).
63 See M. Kaser, Das Römische Zivilprozessrecht (Munich 1996) 243 and Jolowicz and Nicholas, Introduction (as in n. 61) 50.
64 A. Lintott, Violence in Republican Rome (Oxford 1968) 25�–26.65 Cic. Leg. 3.10, Omnes magistratus auspicium iudiciumque habento. While the de legibus is a liter-
ary work, its obvious correspondence to Roman law gives it considerable weight, especially since Cicero openly rated the Twelve Tables as the nest of all law codes (de or. 1.44).
66 Cic. Leg. 3.8, Iuris disceptator, qui privata iudicet iudicarive iubeat, praetor esto; is iuris civilis custos esto; huic potestate pari, quotcumque senatus creverit populusve iusserit, tot sunto.
67 Cic. Leg. 3.6, �…magistratus nec oboedientem et noxium civem multa vinculis verberibusve coherceto, ni par maiorve potestas populusve prohibessit, ad quos provocatio esto. quom magistratus iudicassit
�– particularly those on capital charges �– were reserved for the jurisdiction of praetors, but several scholars have already demonstrated that there are no grounds for assuming that praetors exercised imperium in these cases, nor is there any solid evidence in the literary record that connects jurisdiction with imperium.68 While it is tempting to cite Livy�’s statement that praetors were created speci cally to supervise the courts as proof positive that imperium was needed to exercise jurisdiction, this is in fact a red herring.69 It is reckless to assume that imperium empowered jurisdiction just because praetors possessed both imperium and jurisdiction. In fact, praetors had imperium because they were �– from the start �– military commanders as well as judicial magistrates, and liter-ary records show them commanding military forces virtually from the creation of their of ce.70 There is no good evidence that praetors (or consuls) needed their imperium to exercise jurisdiction, and even those scholars who argue the opposite are forced by the dearth of evidence to admit that imperium was rarely employed in Rome by magistrates.71 Although consuls might make use of their imperium in extraordinary circumstances, such occasions were inherently unusual and cannot be taken as evidence for normal judicial practice.72 Imperium was certainly a mighty power and associated with the highest magistracies also exercising a judicial role in the Republic, but this does not require us to assume that imperium itself conferred this jurisdiction in Rome.
There is furthermore no reason to believe that consuls and praetors in the later Republic needed the power of imperium to enforce their decisions or legitimate their actions; their magisterial coercitio was more than suf cient to empower them to give orders and compel obedience within the city. Coercitio was included in the potestas of most magistrates and, although subject to the citizen�’s right of appeal, was usually suf- cient to enable the magistrates to undertake their duties.73 Nippel usefully describes coercitio as:
inrogassitve, per populum multae poenae certatio esto. militiae ab eo, qui imperabit, provocatio nec esto, quodque is, qui bellum geret, imperassit, ius ratumque esto.
68 R. Stewart, Public Of ce in Early Rome (Ann Arbor 1998) 133, 203; Kaser, Zivilprozessrecht (as in n. 63) 43 and 186; Jolowicz and Nicholas, Introduction (as in n. 61) 47 n.9; M. Lauria, �“Iurisdictio�”, in Studi in onore di Pietro Bonfante nel XL anno d�’insegnamenta (Milan 1930) 481�–493.
69 Livy 6.42.11 contessum est�…a plebe nobilitati de praetore uno, qui ius in urbe diceret, ex patribus creando. There is, in fact, considerable debate about the true origin of the praetorship as distinct from the consulship, but one widely held view considers that the chief magistrates of the Early Republic were three military commanders called praetors, two of which developed into consuls and the third into the later praetorship. If this was so, it further demonstrates that praetors were not given imperium for jurisdiction, but �– like consuls �– for military command. See T. Cornell, The Beginnings of Rome (London / New York 1995) 226�–230 and Heuss, Gedanken (as in n. 1) 445�–446, 448�–449.
70 The earliest praetors mentioned in surviving records are military commanders: P. Valerius Poplicola received command of soldiers from one of the consuls in 350 B.C. (Livy 7.23.3), and L. Pinarius received a large army of four legions in 349 B.C. to guard the Italian shores (Livy 7.25.12�–13); the name of an earlier praetor is known (Sp. Furius Camillus in 366 B.C.), but his activities in of ce are not recorded (Livy 7.1.2). For discussion of the military activities of the early praetorship, see Brennan, Praetorship (as in n. 13) 61�–62, 79�–91, 102�–103, 106�–107.
71 For example, see Brennan, Power (as in n. 17) 42 �“when push came to shove, in the city at least, members of the same college almost never used imperium to check imperium,�” Lintott, Constitution (as in n. 18) 99, �“it was not an everyday weapon�…,�” and B. Frier, The Rise of the Roman Jurists (Princeton 1985) 246, �“the urban praetor�’s imperium was regarded mainly as a device of last re-sort�….�”
72 See below for extraordinary uses of imperium within the pomerium.73 See Jolowicz and Nicholas, Introduction (as in n. 61) 305�–320.
Imperium, Potestas, and the Pomerium in the Roman Republic 429
�…the general term for a number of measures a magistrate could use to enforce obedience without instituting legal proceedings. It covers scourging and execu-tion (by decapitation with an axe), arresting and carrying a disobedient person to prison, imposing a ne up to a multa maxima limit or seizing a pledge (pignoris capio). The gravest form of coercitio �– scourging and execution �– was banned by the provocatio laws.74
The breadth of this power allowed magistrates the legitimate use of force when neces-sary, although there is little indication that magistrates regularly used the full force of coercitio in the execution of their duties.75 While coercitio precluded resort to military force, it did permit a magistrate to set watches, form a praesidium of armed guards, or even mobilize an armed �‘mob�’ of friends and retainers.76 Livy, Velleius Paterculus, and Suetonius �– who lived at a time when the emperor did possess imperium within the city �– nevertheless all refer to magistrates�’ use of force to coerce and compel citizens in Rome as coercitio.77 Yet Republican coercitio was certainly not imperium, since ae-diles, tribunes, and tresviri capitales all possessed some degree of coercitio but lacked imperium.78 Tacitus in particular speaks of the aediles�’ use of coercitio to perform their police functions in Rome,79 while Lintott stated that within the city even the imperium-bearing consuls and praetors might function by virtue of their power of coercitio.80 Naturally, like other aspects of a magistrate�’s potestas, the strength of a man�’s coercitio depended upon the level of his potestas: the potestas maior of a consul gave him a level
74 W. Nippel, �“Policing Rome�”, JRS 74 (1984) 22.75 Nippel, Policing (as in n. 74) 22, notes that the vast majority of reported cases of coercitio being
used in the Middle and Late Republic were cases of a con ict between two magistrates or between a magistrate and a senator. It is likely that the commons, who individually had no hope of resisting magisterial coercitio (unless a tribune intervened), readily obeyed magisterial orders.
76 Nippel, Policing (as in n. 74) 25�–27 provides examples of each situation. See also Lintott, Violence (as in n. 64) 74 n. 5.
77 Livy 4.53.7 (damnum aliamque coercitionem), 26.36.12 (coercitione magistratus), Vell. 2.47.3 ([Pom-peius] eius consulatus omnem vim in coercitionem ambitus exercuit), Suet. Aug. 45.3 (coercitionem in histriones magistratibus omni tempore et loco lege vetere permissam ademit praeterquam ludis et scaena). Suetonius also speaks of Galba using coercitio in his civil administration of his province: Galb. 9.1 (primo acer et vehemens et in coercendis quidem delictis vel immodicus). Tacitus was so accustomed to the idea of coercitio being used to enforce domestic order that he described priests as having the ius coercendi during assemblies among the German tribes (Ger. 11.4).
78 W. Nippel, Public Order in Ancient Rome (Cambridge 1995) 8�–12, 16�–19, 21�–26. Nippel maintains (5) that �“it was understood that only magistrates with imperium could issue orders to a citizen, summon one or have one arrested without the magistrate being present in person.�” He bases this upon Gellius�’ statement (NA 13.12.6) that consuls and �“others who have imperium�” have the power of summons: [habent] vocationem, ut consules et ceteri qui habent imperium. This statement, however, does not say that imperium conferred the power of summons, nor should this idea be inserted into Gellius�’ words. Indeed, Gellius is probably doing nothing more than using ceteri qui habent imperium as a stylish substitute for a list of imperium-bearing magistrates, a literary device he uses again in this sentence to attribute the power of arrest to those magistrates who have a messenger (prensionem, ut tribuni plebis et alii qui habent viatorem).
79 Tac. Ann. 3.52.2�–3. The aediles complained at the dif culty of enforcing the sumptuary laws, and Tiberius wondered whether their coercitio should continue to be used to suppress extravagance: sed Tiberius saepe apud se pensitato an coerceri tam profusae cupidines possent, num coercitio plus damni in rem publicam ferret�….
80 Lintott, Violence (as in n. 64) 89, �“Of course the magistrates with imperium in the city, the consuls and praetors, had lictors to put into effect their powers of coercitio.�”
of coercitio superior to that of a praetor, and a praetor had a level of coercitio superior to that of an aedile.81 By virtue of his potestas, Caesar as praetor imprisoned an of cial inquisitor into the Catilinarian Conspiracy who had falsely charged Caesar (a superior magistrate) with complicity in the conspiracy.82 This evidence strongly suggests that magistrates�’ domestic prerogatives of command and compulsion were derived from their of cial coercitio, and not from the imperium that only a handful of magistrates possessed. Since the evidence for magisterial use of coercitio far outweighs that for im-perium domi, it seems increasingly probable that provocatio was established to restrain coercitio (magistrates�’ urban civil power) and not imperium (magistrates�’ extra-mural military power).83
Imperium was the right to exercise military command �– outside the pomerium �– and no more.84 The rst part of this statement offers no complications; possession of imperium has long been understood as conveying the right to military command, and Cicero clearly states that imperium was absolutely necessary for legitimate command of a Roman army.85 Indeed, the very fact that imperium alone �– without magisterial of ce �– authorized a private citizen to exercise military command demonstrates the strictly military nature of imperium,86 as does the fact that Cicero frequently equated
81 Cic. Leg. 3.6, magistratus nec oboedientem et noxium civem multa vinculis verberibusve coherceto, ni par maiorve potestas populusve prohibessit, and Mil. 89, an consules in praetore coercendo fortes fuissent? See also n. 46.
82 Suet. Iul. 17.2, �…[Caesar] coniecit in carcerem�…eodem Novium quaestorem, quod compellari apud se maiorem potestatem passus esset.
83 See below for discussion.84 Lintott, Constitution (as in n. 18) 97 has come close to this position, pointing out the division between
the military and civilian spheres and noting that magistrates within the city did not have military powers: �“[Cicero�’s proposed laws on magisterial coercion] may mislead us about the extent to which a magistrate in the civil sphere got his way by using force. It might be imagined that, inasmuch as the Romans were a people devoted to war, their civil life was like that of a military camp, subject to military discipline and the force of arms. In fact the opposite is the case under the Republic: within the area of the city the actions of magistrates were strictly subject to public law; normally they could not command troops and had only a few civilian minions.�”
85 In particular, see Cic. Phil. 5.45, imperium�…sine quo res militaris administrari, teneri exercitus, bellum geri non potest, and Agr. 2.30, �…consuli, si legem curiatam non habet, attingere rem mili-tarem non licet�…. See also: Cic. Phil. 5.45 (demus igitur imperium Caesari, sine quo res militaris administrari, teneri exercitus, bellum geri non potest), Livy 23.30.19 (Marcellus given imperium in 215 B.C. because his military skills and leadership are needed against Hannibal), 39.21.4 (the death of a military commander leaves the province sine imperio). This is what Mommsen, Staats-recht 13 (as in n. 11) 61�–75 called imperium militiae (die militärische Amtsgewalt, die Amtführung militiae). Many modern scholars have pointed out the innate connection between imperium and a military provincia: A. Giovannini, �“Les pouvoirs d�’Auguste de 27 à 23 av. J.-C.: une relecture de l�’ordonnance de Kymè de l�’an 27 (IK 5, no. 17)�”, ZPE 124 (1999) 97�–98, F. Hurlet, �“Recherches sur la durée de l�’imperium des �“co-régents�” sous les principats d�’Auguste et de Tibère�”, Cahiers du Centre Gustave Glotz 5 (1994) 257, Giovannini, Consulare (as in n. 4) 51, Löwenstein, Gouvernance (as in n. 17) 46, A. H. M. Jones, �“The Imperium of Augustus�”, JRS 41 (1951) 115.
86 For example, Scipio Africanus, although holding no of ce in 210 B.C., was invested with imperium to take over command of the Spanish legions (see n. 59 above). Clearly, imperium �– separate from any other magistracy or of cial power �– was suf cient authorization for a private citizen to command state armies. Yet, while an independent grant of imperium was suf cient to make Scipio a military commander, it did not make him a magistrate.
Imperium, Potestas, and the Pomerium in the Roman Republic 431
of cially sanctioned possession of an army with investment with imperium.87 Even the title imperator �– given to a victorious general by acclamation of his soldiers �– was inherently a military honor. Mommsen and his followers, positing an imperium domi (�„die städtische Amtsgewalt, die Amtführung domi�“) �– a weakened type of imperium subject to a tribune�’s intercessio and the citizens�’ right of provocatio88 �– conjured for themselves a problem: how to explain that the all-powerful imperium of the ancient kings could be diminished within the city, and how it was that this diminution was removed at those recorded moments when consuls and dictators clearly used the full strength of their imperium within the pomerium?89 Mommsen himself was not certain how to deal with this conundrum, and even admitted that he believed the imperium of the praetor within the city to be weaker while somehow also more complete than that of the consul, since praetors exercised judicial authority that consuls normally did not.90 Scholars since Mommsen likewise have performed feats of intellectual gymnastics to explain the workings of this imperium domi and how it operated in conjunction with other sources of political and social power, most especially the power of the tribunes and the auctoritas of the senate.91 But the simplest answer seems by far the best: consuls and praetors did not �– under normal circumstances �– possess imperium within the city of Rome. The divide between military and civilian powers at Rome was strong, and it is reasonable to believe that these powers derived from separate sources, imperium (military command) and potestas (civilian magisterial authority), rather than from a single military source (imperium) that was contorted and constrained when used in the civilian sphere. Many dif culties are in fact solved, and overly complex reconstructions avoided, by accepting that a magistrate�’s civilian authority derived from the potestas inherent in his of ce, while his military powers �– if he had any �– were derived from his possession of an imperium that operated only outside the pomerium.
Furthermore, possession of the fasces within the pomerium should not lead us to as-sume that imperium was normally used by those accompanied by these ancient symbols
87 Cic. Man. 47, Sest. 41, Red. sen. 32. Thus Pompey�’s formation and command of an army of clients in 83 B.C. was technically illegal before he joined with Sulla and came under his imperium, and Cicero (Man. 61) calls such a command praeesse in exercitu (cf. Sest. 40).
88 Mommsen, Staatsrecht 13 (as in n. 11) 61�–75. Of course, Mommsen also believed that a consul could override provocatio if he wished (see 1.140�–142, and 150�–151). On these restraints upon imperium domi, see Lintott, Constitution (as in n. 18) 32�–34, Magdelain, Ius (as in n. 4) 210�–211 (although he does not accept the unity of imperium), Kunkel, Introduction (as in n. 1) 15�–16, Jolowicz and Nicholas, Introduction (as in n. 61) 12�–13, 305�–317, C. E. Brand, Roman Military Law (Austin 1968) 66. Giovannini, Consulare (as in n. 4) 19�–26 argues that the right of provocatio even extended outside the pomerium and beyond the rst milestone from Rome.
89 See below for discussion of the extraordinary use of imperium within the pomerium.90 Mommsen, Staatsrecht 23 (as in n. 11) 233, �“Das militärische Imperium mangelt dem Prätor
keineswegs wie dem Consul das jurisdictionelle, vielmehr ist sein Imperium zwar schwächer, aber vollständiger als das consularische.�”
91 Most modern historians have accepted (or at least failed to refute) Mommsen�’s argument for im-perium domi. A select list of scholars includes: M. Polia, Imperium: Origine e funzione del potere regale nalle Roma archaica (Rimini 2001), Lintott, Constitution (as in n. 18), Lacey, Augustus (as in n. 13), Bleicken, Imperium (as in n. 13), B. Liou-Gille, �“Le Pomerium�”, Museum Helveticum 50.1 (1993), Girardet, Diskussion (as in n. 13), Roddaz, Imperium (as in n. 13), Magdelain, Ius (as in n. 4), Rüpke, Domi (as in n. 4), Giovannini, Consulare (as in n. 4), Béranger, Imperium (as in n. 5), Develin, Lex (as in n. 4), Kunkel, Introduction (as in n. 1), Versnel, Triumphus (as in n. 4), V. Ehrenberg, �“Imperium Maius in the Roman Republic�”, AJPhil 74 (1953), H. Last, �“Imperium Maius: A Note�”, JRS 37 (1947), and E. G. Hardy, Studies in Roman History (London 1910).
of authority. Staveley argued that fasces were necessarily a symbol of imperium because they are referred to as insignia imperii in some ancient passages.92 A close inspection of these passages, however, demonstrates that the evidence upon which Staveley based this conclusion is weak.93 Furthermore, he overlooks references to fasces or lictors as insignia potestatis.94 In the de lege agraria Cicero does not associate the fasces with
92 E. S. Staveley, �“The Fasces and Imperium Maius�”, Historia 12 (1963) 459. He cites Livy 1.8.2, 1.17.6, 2.7.7; Dion. Hal. 3.61; Cic. Rep. 2.55, Man. 32, Lig. 22, 2 Verr. 5.39, 5.97, 5.167; Sall. Cat. 36.1. See also Rüpke, Domi (as in n. 4) 43. Thomas Schäfer, Imperii Insignia: Sella Curulis und Fasces (Mainz 1989) takes a less extreme position than Staveley, and argues that the fasces were either insignia dignitatis or insignia imperii (p. 209).
93 The three references found in Livy are highly suspect because of their very early appearance (two are monarchical and the other dates to the rst year of the Republic), and because of the small number of citations (it is suspicious that Livy, who otherwise makes tremendous use of the word imperium, does not employ the evocative phrase more often, especially during his account of the Con ict of the Orders). Further, Staveley�’s references to Cicero are also weak evidence: pro lege Manilia 32 does not actually mention lictors and fasces as insignia imperii; in the second actio against Verres from which he draws evidence, 5.39 (cf. Cic. Lig. 22) refers to the fasces in the provinces (where, I argue, a magistrate�’s imperium was active), 5.97 has an imprecise meaning in its reference to imperii populi Romani nomen ac fasces, and 5.167 does not mention imperium. Two of Staveley�’s examples (Cic. Rep. 2.55 and Livy 2.7.7) refer to Publicola�’s establishment of provocatio in Rome in 509 B.C., and are questionable because of this early date and because Livy�’s reference to insignia imperii appears before Publicola�’s establishment of provocatio and his removal of axes from consular fasces. The reference in Dionysius of Halicarnassus (3.61.1�–2) also refers to the regal period (under L. Tarquin-ius Priscus) and includes all curule trappings �– including a royal crown �– as insignia imperii. It is possible that the kings held (or were thought to have held) imperium within the pomerium, which explains why many of Staveley�’s examples are from the regal period. The Sallust passage (Cat. 36.1) also refers to the meaning of fasces outside of the pomerium and is a little vague when it speaks of various symbols of imperium: cum fascibus atque aliis imperi insignibus. Staveley does not include Cic. Har. Resp. 3 or Livy 28.24.14 in his argument, probably because neither truly supports his argu-ment: Cicero�’s passage is highly metaphorical, and Livy�’s passage refers to events in Spain �– where imperium was clearly in force �– and speci cally describes the insignia imperii as including the axes (fasces securesque), which indicates that these particular insignia imperii could not exist in Rome where the axes were normally forbidden in a magistrate�’s fasces. Schäfer, Insignia (as in n. 92) 209 argues for a broader meaning of the fasces as either insignia dignitatis or insignia imperii, but the passages he cites do not demonstrate that the fasces represented imperium within the pomerium. In addition to Staveley�’s evidence, Schäfer cites: Cic. QFr. 1.1.13 (insignia dignitatis et potestatis), Livy 3.36.3 (insigne regium), Dion. Hal. 10.59 (ta; paravshma th'~ basilikh'~), Diod. 36.2.4 (refers to a man who is neither a Roman magistrate nor in Rome, and does not mention imperium), Caes. BC 2.32.9 (refers to a promagistrate outside of Rome), Hisp. 42.6 (refers to a man who is neither a Roman magistrate nor in Rome), Val. Max. 2.7.7 (imperiosissimi duodecim fasces), Plut. Cic. 16 (Catiline, as a private citizen, assumes the fasces with axes after leaving the city), Ant. 17 (the sen-ate sends fasces and the insignia of a praetor to Octavian outside of Rome), Prop. 3.9.23 (a poetic usage, since axes were not permitted in fasces within the city: cum tibi Romano dominas in honore secures et liceat medio ponere iura foro), App. Civ. 2.3 (Catiline, as a private citizen, assumes the fasces with axes after leaving the city), 2.122 (no mention of fasces, only of general insignia: ta; shmei'a th'~ ajrch'~).
94 Although the phrase insignia potestatis does not appear as frequently as insignia imperii, the two terms are used in the exact same manner. For example, Cicero (Leg. agr. 2.32) says that the decem-viri proposed by the lex Agraria of 63 B.C. were to have �– in Rome �– the insignia potestatis, which he identi es as consisting of scribes, lictors, criers, and chicken-keepers. Valerius Maximus (6.5.2) describes the ornaments of a consul�’s of ce as insignia potestatis. Cicero (Pis. 23) also refers to lictors (but not fasces) as the ornaments of the consulship.
Imperium, Potestas, and the Pomerium in the Roman Republic 433
imperium, but with iudicium and potestas,95 and in the pro Cluentio he refers to fasces as only one of many symbols of magisterial honor.96 Indeed, Cicero also wrote to his brother that, while the fasces were insignia of potestas, they should be even more in-signia of dignitas.97 That Staveley is in error is also suggested by the fact that lictors were frequently given to magistrates, senators, priests, and ambassadors who did not possess imperium �– hard to reconcile with the claim that lictors and fasces necessar-ily represented imperium.98 Even dead aristocrats were accompanied by fasces during their funeral processions.99 Given the precise procedures involved in granting imperium �– the lex curiata and the taking of the auspices �– it is hard to believe that the symbols of imperium would be handed out so casually when imperium itself was so closely guarded. Cicero was not being redundant when he referred to magistrates possessing both imperium and fasces: although bearers of imperium possessed fasces, this does not require us to assume that they were causally connected.100 Lictors bearing fasces were certainly important and awe-inspiring symbols of power, but like imperium they were merely aspects or traits of certain magistracies or of cials.101 Thus Gellius indi-cates that the ability to take up and possess the fasces was something that lay within the potestas of the consulship.102 Even stronger evidence is the traditional rotation of the fasces between the consuls: if the fasces represented possession of imperium �– even imperium domi �– in Rome, then the rotation of the fasces between consuls would require us to accept that only one consul held imperium at a time.103 If this were true, it would undermine the fundamental Roman principle of distributing supreme power between
95 Cic. Leg. agr. 1.9 (speaking of a proposal to create ten grain commissioners with extensive pow-ers) quorum cum adventus graves, cum fasces formidolosi, tum vero iudicium ac potestas erit non ferenda; licebit enim, quod videbitur, publicum iudicare, quod iudicarint, vendere.
96 Cic. Clu. 154, �…quodque permulta essent ornamenta, quibus eam mitigare molestiam posset, locus, auctoritas, domi splendor, apud exteras nationes nomen et gratia, toga praetexta, sella curulis, insignia, fasces, exercitus, imperia, provinciae�….
97 Cic. QFr. 1.1.13, �…maioraque praeferant fasces illi ac secures dignitatis insignia quam potestatis. See also 1.1.35, where Cicero urges his brother: �…ut remoto imperio ac vi potestatis et fascium publicanos cum Graecis gratia atque auctoritate coniungas�….
98 Mommsen, Staatsrecht 13 (as in n. 11) 384 notes that the former aedile acting as iudex quaestionis inter sicarios was assigned two lictors: �„Zwei Lictoren führt der in Rom fungirende Prätor. Auch dem gewesenen Aedil, der als iudex quaestionis inter sicarios in Rom fungirt, werden Lictoren beigelegt; ohne Zweifel hat er ebenfalls zwei gehabt.�“ Mommsen goes on to point out that several Roman priests were also attended by lictors (389�–392). Cicero also refers to legates and quaestors possessing lictors when abroad in the provinces (Cic. 2 Verr. 1.67 [legate], 2 Verr. 2.11 [quaestor], Planc. 98 [quaestor]). Staveley himself acknowledges that lictors were given to ambassadors and senators visiting the provinces in the rst century B.C. (�“Fasces�” [as in n. 92] 470), and can offer no better explanation than that, in those cases, the fasces were merely tokens of prestige. Indeed, even the duumviri of Capua are recorded as possessing lictors bearing fasces, which Cicero says is highly unusual for a colony and a sign of great presumption and haughtiness (Cic. Leg. agr. 2.93, deinde anteibant lictores non cum bacillis, sed, ut hic praetoribus urbanis anteeunt, cum fascibus bini).
1.6.53, 16.34. 102 Gellius NA 2.15.4 �…kapite VII legis Iuliae priori ex consulibus fasces sumendi potestas t, non
qui pluris annos natus est, sed qui pluris liberos quam collega aut in sua potestate habet aut bello amisit.
103 By tradition, consuls rotated possession of the fasces in alternate months (Cic. Rep. 2.55, Livy 2.1.8, Dio 53.32.1, see Lintott, Constitution [as in n. 18], 100). This practice may have been discontinued
two consular colleagues, since the consul without fasces would be unable to intercede against his colleague, who was fully vested with imperium.104 That fasces alone do not signify imperium is suggested also by the practice of consuls of lowering their fasces �– devoid of their axes �– before an assembly of the people: hardly a symbol of supreme military power.105 The fasces of the dictator, on the other hand, were a source of terror to the Romans because they were fully equipped with axes, even in Rome.106 If we are looking for symbols of imperium, these axes (secures), which consuls and praetors could only add to their fasces outside the pomerium (where their possession of imperium is undoubted), are perhaps a better candidate.
Furthermore, while some Roman magistrates held imperium, imperium did not in itself de ne a man as a magistrate: imperium was a concept separate and independent from magistracy. Ancient Latin authors understood this very well: Livy stated that triumphing promagistrates (who, in order to triumph, must be holding imperium) triumphed non in magistratu,107 and recorded private citizens (privati) who were not magistrates being invested cum imperio.108 Festus pointed out that someone with imperium was merely a holder of imperium, and therefore not necessarily a magistrate.109 In 173 B.C. a praetor designate, who had not yet assumed his magistracy, was sent cum imperio to ght a plague of grasshoppers in Apulia,110 and Suetonius emphasized that Caesar had behaved well neque in imperiis neque in magistratibus.111 Several Roman statutes also make clear that there is a difference between a magistrate and a holder of imperium, since at least two laws use the phrase magistratum aut imperium.112 Imperium was the authority to command Rome�’s citizen legions in the eld, and therefore it could be bestowed upon private citizens as easily as upon magistrates,113 and a man�’s imperium could continue
for a period in the Middle Republic (Staveley, �“Fasces�” [as in n. 92], 461�–462), but in the Late Republic is was certainly in force and obeyed even by Caesar (Suet. Iul. 20.1).
104 I nd unconvincing the idea that a consul�’s imperium was �‘dormant�’ when he did not hold the fasces, because this implies a serious imbalance that would seem to undermine and render useless the col-legiality that was a hallmark of Roman magistracies. Livy presents the alternation of the fasces as a practice intended to reduce the appearance of regal power in Rome, but he does not indicate that this practice actually reduced the power or prerogatives of either consul (2.1.8: Omnia iura, omnia insignia primi consules tenuere; id modo cautum est ne, si ambo fasces haberent, duplicatus ter-ror videretur). He even imagined that the rst decemviri, who shared a single set of fasces despite being immune to the right of appeal, nevertheless permitted their judgments to be revised by their colleagues (3.36.6). Furthermore, although it is very rare to nd consuls obstructing one another, it was certainly possible: in 95 BC the consul Q. Mucius Scaevola vetoed his colleague�’s request for a triumph (Cic. Pis. 62).
105 Cic. Rep. 1.62, 2.53, Livy 2.7.7.106 Livy 2.18.8 Creato dictatore primum Romae, postquam praeferri secures viderunt, magnus plebem
metus incessit, ut intentiores essent ad dicto parendum. See below for discussion about the imperium of the dictator within the pomerium.
107 Livy 36.39.10.108 See above (n. 59).109 Festus p. 43L, cum imperio est dicebatur apud antiquos, cui nominatim a populo dabatur impe-
rium.110 Livy 42.10.7�–8.111 Suet. Iul. 54.1 (cf. Aug. 61.1 where Augustus acts in imperiis ac magistratibus). 112 Lex repetundarum 8, 9 (RS 1), lex agraria 87 (RS 2).113 Notice the ease with which the Romans bestowed imperium upon the private citizen P. Cornelius
Scipio in 210 B.C. (Livy 26.18�–20). Although they questioned the wisdom of entrusting the critical war in Spain to such a young man, no one is recorded as objecting to �– or even questioning �– the propriety and logic of conferring imperium on a non-magistrate.
Imperium, Potestas, and the Pomerium in the Roman Republic 435
without diminution long after his consulship or praetorship had automatically expired at the end of his year in of ce.114 The distinction between imperium and magistracy was deftly utilized by Augustus who, despite being invested with imperium maius for most of his rule, could nonetheless say quite honestly that �– in those years when he chose to hold a magistracy �– he held no more potestas than anyone who had been his colleague in of ce.115 His claim demonstrates that he and his audience understood the power and authority of a Roman magistrate to be de ned and measured by potestas, whether or not that magistrate also held imperium. Thus, while imperium was certainly a mighty power, it did not de ne a man as a magistrate nor did it confer civic jurisdiction upon him.
Imperium and the Pomerium
The pomerium was Rome�’s sacred boundary and, although not completely understood by modern scholars, nevertheless played a critical role in her history and the history of imperium. Most scholars believe that the pomerium was a border that separated the military and civilian worlds.116 All agree that it was a religious boundary, and that com-manders had to undergo a special ceremony when leaving the city in order to exercise their military prerogatives properly.117 These rituals regulating a magistrate�’s acquisition of military power when he left the city were elaborate, as were the rituals he performed when laying down that military power in order to re-enter the city.118 The Romans, therefore, used ceremonies to exclude carefully from the city all military activity, which
114 On the fact that imperium did not automatically expire with a man�’s magistracy at the end of his year in of ce, see Lacey, Augustus (as in n. 13) 17�–56.
115 Aug. RG 34, post id tempus praestiti omnibus dignitate, potestatis autem nihilo amplius habui quam qui fuerunt mihi quoque in magistratu conlegae.
116 For example: M. Beard, J. North, and S. Price, Religions of Rome (Cambridge 1998) 179, Liou-Gille, Pomerium (as in n. 91) 94�–95, Magdelain, Ius (as in n. 4) 209�–211, 224, 228, Nippel, Policing (as in n. 74) 20, Rüpke, Domi (as in n. 4) 29�–41, A. Magdelain, �“Le Pomerium archaïque et le mun-dus�”, Rev. Ét. Lat. 54 (1977) 76, J. S. Richardson, �“The Triumph, the Praetors and the Senate in the Early Second Century B.C.�”, JRS 65 (1975) 58�–60, Mommsen, Staatsrecht 13 (as in n. 11) 63�–70. Contra, Giovannini, Consulare (as in n. 4) 1�–26 believes that the separation of imperium domi and militiae was not spatial but task-oriented. He argues that a Roman citizen outside the pomerium, but not enrolled in the army, was subject to civilian law, and therefore the pomerium could not have marked a point where civilian law ended. His argument, however, is based upon the assumption that imperium �– speci cally the so-called imperium domi �– was the source of a magistrate�’s judicial authority. On the other hand, if (as I have argued) the source of a magistrate�’s civil authority was his potestas �– which existed both within and outside the pomerium �– then there is no reason to presume that the pomerium in any way limited civil law from reaching Roman citizens outside of the city.
117 This included making vows on the Capitoline, taking auspices, and changing into military clothing upon exiting the pomerium (Cic. Pis. 55; Caes. BC 1.6; Livy 5.52.15, 41.10.5, 42.49.1�–2, 45.39.11, Varro Ling. 7.37, Dio 53.13.4). Once a Roman (who was authorized to do so) had performed these rituals and changed his clothing, he was termed paludatus, or �“wearing the general�’s cloak�”. Since only one who was paludatus could properly exercise military command, Cicero virtually equated the two ideas, such as his statement that two consuls feared to be sent paludati (i.e. in command) against the Parthians (Fam. 8.10.2). On the sacred nature of the pomerium see Plut. Rom. 11.4 and QR 27; Aul. Gell. NA 13.14�–15.4.
118 See Beard, Religions (as in n. 116) 177�–181, Stewart, Public (as in n. 68) 124�–126, Rüpke, Domi (as in n. 4) 125�–143, 215�–234, A. J. Marshall, �“Symbols and Showmanship in Roman Public Life: The Fasces�”, Phoenix 38 (1984) 121�–122, Develin, Lex (as in n. 4) 58, Magdelain, Pomerium (as in n. 116) 76.
we should believe included the use of imperium.119 It is beyond dispute that a promag-istrate could not enter the pomerium without automatically forfeiting his imperium, but the evidence strongly suggests that �– in the later Republic and probably earlier �– sitting consuls and praetors were also deprived of their imperium inside the pomerium. For this reason, even sitting magistrates needed to perform the necessary rituals in order to take up imperium legitimately when leaving the city,120 and if they returned with hopes of a triumph �– even within their year in of ce �– they could not re-enter the pomerium without forfeiting their imperium and therefore their eligibility for a triumph.121 In 177 B.C. two proconsuls and both of their armies refused to recognize and obey the com-mands of the consul C. Claudius because he had left Rome without taking the required vows and performing the necessary ceremonies.122 Claudius, despite being a consul in of ce and having been assigned the provincia of the proconsuls, was forced to return to Rome and perform the neglected rituals before the soldiers and their of cers would acknowledge his authority to command. If Claudius had possessed imperium within the city, even Mommsen�’s weakened imperium domi, it is dif cult to imagine on what grounds proconsuls (and especially private soldiers) could refuse to obey his commands. Claudius was rebuffed because, having neglected the necessary rituals when leaving the pomerium, he lacked imperium altogether: he had not possessed it in Rome, and he failed to take it up when leaving the city. Perhaps he personally believed the traditional rituals to be unimportant or hoped that no one would notice the oversight,123 but the unprecedented and universal refusal of proconsuls and soldiers alike to recognize his command demonstrates that the general belief among the Romans was that imperium could only be taken up by performing the proper ceremonies upon leaving the city.
Another incident suggesting that magistrates did not possess imperium within the pomerium involves Appius Claudius Pulcher�’s famous attempt to forge a lex curiata while consul in 54 B.C. Nearing the end of his consulship, which he had spent in Rome, Appius was concerned because he had failed to obtain a lex curiata de imperio at the beginning of his magistracy.124 The consequence of this oversight was that Appius was
119 Even the Centuriate Assembly, which (in historic times) was primarily a civilian body, was excluded from the city because it met in archaic military units. See Aulus Gellius (15.27.5): centuriata autem comitia intra pomerium eri nefas esse, quia exercitum extra urbem imperari oporteat, intra urbem imperari ius non sit. Likewise the religious festivals of the October Horse and the Armilustrum, which �– because of their military nature �– were held outside the pomerium (see Rüpke, Domi [as in n. 4] 23�–27).
120 This does not, of course, mean that a consul or praetor had to perform the rituals every time they exited the city, since their of cial potestas was not limited by the pomerium as was their imperium. Rather, they only needed to perform the requisite ceremonies if they wished to take up imperium, which was necessary in order to take command of an army.
121 See below for discussion of the relationship between the triumph, imperium, and the pomerium. 122 Livy 41.10.5�–13: non votis nuncupatis, non paludatis lictoribus�…nocte profectus�…. The procon-
suls replied that they would only obey his orders once he had returned to Rome and performed the necessary rituals: tum consulis imperio dicto audientes futuros esse dicerent, cum is more maiorum, secundum vota in Capitolio nuncupata, lictoribus paludatis profectus ab urbe esset�….
123 Compare with Verres below (n. 144).124 Cic. Att. 4.17.2 (�…tres augures cui se adfuisse dicerent cum lex curiata ferretur quae lata non es-
set�…) and 4.18.4 (�…negant enim latum de imperio), Fam. 1.9.25 ([Appius] dixit�…sese, si licitum esset legem curiatam ferrem sortiturum esse cum collega provincias; si curiata lex non essent, se paraturum cum collega tibique successurum; legem curiatam consuli ferri opus esse, necesse non esse�…), QFr. 3.2.3 (Appius sine lege curiata con rmat se Lentulo nostro successurum). It is not clear why Appius could not acquire a legitimate lex curiata de imperio before the end of his magistracy,
Imperium, Potestas, and the Pomerium in the Roman Republic 437
not eligible to command a provincia because he had not been authorized to take up imperium, a capacity traditionally conferred by the lex curiata. To avoid losing his op-portunity to command, Appius bribed some augurs to swear (falsely) that he had indeed acquired the necessary lex.125 When his attempt to forge a lex curiata was revealed and exploded, Appius tried another approach and claimed that a lex Cornelia of Sulla�’s ren-dered a lex curiata unnecessary for a man who had already been assigned a province by the senate.126 On these grounds Appius de antly stated that he would take a province,127 and indeed he was in command of Syria the following year.128 Regardless of the strict legality of Appius�’ argument, this incident suggests that Appius had held the consulship and ful lled his consular responsibilities within Rome without possessing a lex curiata, which he understood to mean that he did not possess imperium.129 There was apparently no concern that the legality or validation of his term as consul was in jeopardy, merely that he would not be able to legally take up the province that had already been allotted to him at the completion of his term, which can only have been a question of imperium.130 Indeed, his speci c invocation of the lex Cornelia makes clear that his primary concern was his ability to take up imperium when leaving for his province �– a concern that is dif cult to understand if he was already in possession of imperium (even imperium domi)
but it is likely that �– for some reason �– the comitia curiata could not be convened, perhaps because of a tribunician veto or mob violence initiated by Clodius and Milo.
125 Cic. Att. 4.17.2. On October 1 of 54 B.C. C. Memmius, a candidate for the consulship of 53 B.C., read out in the senate an agreement he and his co-candidate Domitius had made with the sitting consuls (of which Appius was one). In this agreement the candidates promised to persuade three augurs to swear (falsely) that they had been present at the passage of a lex curiata for the consuls (which had never actually occurred) in exchange for the consuls�’ assistance in the upcoming consular election.
126 Cic. Fam. 1.9.25 (Appius in sermonibus antea dictitabat, postea dixit etiam in senatu palam, sese, si licitum esset legem curiatam ferre, sortiturum esse cum collega provinciam; si curiata lex non esset, se paraturum cum collega tibique successurum, legemque curiatam consuli ferri opus esse, necesse non esse; se, quoniam ex senatus consulto provinciam haberet, lege Cornelia imperium habiturum quoad in urbem introisset). In accordance with the lex Sempronia of 123 B.C., the sen-ate had already decreed the consular provinces for 54 B.C. before Appius was elected, and Appius claimed that this decree was suf cient authorization for him to acquire a province even without a lex curiata. He further argued that Sulla�’s law allowed him to hold imperium in that province, even without a lex curiata, until he returned to Rome. Cicero�’s letter indicates that he, and many other senators, doubted the legality of Appius�’ proposed course of action. See also Jones, Imperium (as in n. 85) 113.
127 Cic. QFr. 3.2.3, Appius sine lege curiata con rmat se Lentulo nostro successurum, and Att. 4.18.4, Appius sine lege suo sumptu in Ciliciam cogitat.
128 Several of Cicero�’s letters are addressed to Appius during the latter�’s provincial command (Fam. 3.6�–3.13).
129 G. V. Sumner, �“The Coitio of 54 B.C., or Waiting for Caesar�”, Harv. Stud. 86 (1982) 136 points out that Appius�’ colleague, L. Domitius Ahenobarbus, was unwilling to push the issue as far as was Ap-pius, and believes that Ahenobarbus would not have proceeded to a province without a lex curiata. If correct, this suggests that Appius�’ intentions were �– at best �– reprehensible. On the other hand, Cicero wrote to P. Lentulus that �“opinions differed�” (varias esse opiniones intellego) on the matter (Fam. 1.9.25).
130 If it had been a question of another power, such as his auspicium, Appius would have had even greater problems, since a consul certainly takes the auspicia during his term in of ce, and therefore the validity of his consulship itself might have been brought into question (as Bibulus and his friends claimed about Caesar [MRR 2.187]).
in Rome.131 And although Appius�’ creative interpretation of the law seems to have been upheld, and he was permitted to hold imperium without a lex curiata, he did so under a lex Cornelia that was passed in 81 B.C., suggesting that before 81 B.C. it would have been impossible for a consul to obtain imperium without a lex curiata. This episode demonstrates that a man could be consul in Rome without possessing imperium:132 the potestas that was innate in the consulship was suf cient to de ne a man as a consul within the pomerium, but to obtain a province and command a military force there he needed to add imperium to his consular potestas.
A third incident suggesting that the Romans believed imperium to be strictly a military power that was kept outside the pomerium involves Q. Fabius Maximus and the consular elections held in 215 B.C. Although this was a rather old story by the time Livy recorded the surviving version, it is nevertheless very useful for illuminating how the Romans of the later Republic understood the functioning of imperium. According to Livy, Fabius was consul in that year and, when returning to Rome from his provincia, took special care not to cross the pomerium and enter the city, but instead encamped his army on the Campus Martius and summoned the Centuriate Assembly to him in order to hold elections for the following year.133 His purpose in remaining outside the city was to retain his imperium in order to exert greater in uence over the elections: he rejected the two candidates named by the rst century to vote, ordering that century to vote again and to select more worthy men �– and in fact, he and Marcellus were elected. When T. Otacilius Crassus, one of the two rejected candidates, objected to Fabius�’ interference, Fabius threatened him with punishment, menacingly pointing out that his lictors still carried axes in their fasces.134 Since Fabius had not yet crossed the pomerium he still possessed imperium, including the right of summary execution represented by the axes in his fasces. Fabius�’ ominous threat was a clear statement that Otacilius was in Fabius�’ power and did not enjoy the protection of provocatio from scourging and even execution. This incident strongly suggests that imperium domi did not exist: if, as is usually held, imperium domi was the all-powerful imperium limited by the right of provocatio, then Fabius should not have been able to threaten Otacilius in this manner, since provocatio
131 Although some scholars have questioned whether the lex curiata actually conferred imperium (see n. 4 above), I believe that Appius�’ argument that he could acquire imperium through the lex Cornelia if a lex curiata was denied him demonstrates that �– at the very least �– Appius believed that a lex curiata conferred imperium.
132 Compare with A. Postumius Albinus (cos. 242 B.C.), the amen of Mars, and Q. Fabius Pictor (pr. 189), the amen of Quirinus, both of whom �– when consul �– were prevented by the pontifex maxi-mus from leaving Rome to take up a provincial command on the grounds that their religious duties as amines required their presence in the city (MRR 1.218, 361). Both men were prevented from activating their imperium �– military command �– but nevertheless successfully held magistracies. If either man used his imperium in another capacity, it was not recorded.
133 Livy 24.7.11, inde Romam comitiorum causa veniens in eum quem primum diem comitialem habuit comitia edixit atque ex itinere praeter urbem in campum descendit (cf. 24.9.1�–2).
134 Livy 24.9.2: lictores ad eum accedere consul iussit et, quia in urbem non inierat protinus in campum ex itinere profectus, admonuit cum securibus sibi fasces praeferri. Fabius considered the two candi-dates named by the leading century to be unexceptional military commanders, and he believed that the crisis of Hannibal�’s repeated victories required that the consulship go to Rome�’s nest military men. His manipulation of the election took the form of interrupting the election in order to point out the poor generalship of the candidates named by the rst century. His possession of imperium quickly and easily suppressed any dissent, and the remaining centuries voted as he wanted and re-elected him to another consulship with Marcus Marcellus as his colleague (24.9.3).
Imperium, Potestas, and the Pomerium in the Roman Republic 439
extended to the rst milestone outside Rome, meaning that the Campus Martius �– and all Roman citizens in it �– were protected by provocatio.135 Since Fabius and Otacilius were both within the effective sphere of provocatio, Fabius�’ threat should have been laughable, because his imperium militiae should have been reduced to imperium domi by the presence of provocatio. The fact, however, that Livy portrays Fabius as being able to menace a fellow citizen �– credibly and effectively �– during an election suggests that Livy and his audience believed such threatening use of imperium to be plausible, no doubt because imperium domi did not exist; Fabius�’ imperium was not hampered by provocatio.136 Still, few consuls would have been bold enough to use their imperium in such a erce manner, since they could easily face repercussions once they laid down their imperium.137 Of course, in 215 B.C. the Romans were reeling from their losses at Cannae, and the stern Fabius Maximus probably felt that the crisis required a strong and in exible hand. Determined to protect the state, he used his imperium �– apparently unrestrained by provocatio �– to squash opposition. This story was memorable for the un inching action of the great Fabius, but it also provides strong evidence that the Ro-mans of the later Republic did not possess the notion of imperium domi.
I would argue that provocatio was ineffective against imperium because the right of appeal was originally intended to protect citizens only from magisterial abuse of potestas, including coercitio. When Cicero wrote about the infamous decemviri of early Rome, he described their of ce as being created with maxima potestas sine provoca-tione, and given both summum imperium and the writing of laws.138 Although he was writing about the distant and quasi-mythical past, his wording suggests that he believed their unusual immunity to provocatio to apply to their potestas, which is to say that the decemviri differed from other magistrates because their potestas was immune to provocatio. Although they were also given imperium, one need not assume that it was intended to be held in the city; the decemvirate was a temporary replacement for the consulship, and therefore the decemviri required the capacity to take up imperium (like consuls) if military action was needed during their tenure.139 Since the primary task of
135 Livy 3.20.6�–7, neque enim provocationem esse longius ab urbe mille passuum (cf. Dio 51.19.6). Dionysius of Halicarnassus (8.87.6) mistakenly believed that tribunician potestas was limited to within the walls of Rome. Appian (BC 2.31) vaguely noted the restriction of tribunician powers to the city.
136 Compare with the episode in Livy (3.63.6) in which the consuls of 449 B.C. are accused of deliber-ately terrifying the senate because they had summoned it to a meeting in the Campus Martius where they held imperium and military command. The consuls, who had just returned from their provinciae and were requesting triumphs, accepted this complaint and moved the meeting into the Temple of Apollo, where their military power would appear less imposing. Both the senate�’s objection and the consuls�’ acquiescence suggest that it was understood that a consul would not normally conduct civil proceedings while in possession of the military force conferred by imperium.
137 A safer course was followed by Ti. Sempronius Gracchus, consul in 163 B.C. and father of the famous Gracchi. After his successors had been elected and taken of ce, and Gracchus himself had already arrived in his province, he suddenly realized that a aw had occurred in the auspices during his successors�’ election. After he reported this aw to the senate, the two men who had been elected were forced to resign their of ce (Cic. QFr. 2.2.1, Div. 1.33 and 36, 2.74, NatD. 2.10.11; Val. Max. 1.1.3; Plut. Marc. 5.1�–3).
138 Cic. Rep. 2.61, inita ratio est, ut et consules et tribuni plebis magistratu se abdicarent, atque ut de-cemviri maxima potestate sine provocatione crearentur, qui et summum imperium haberent et leges scriberent.
139 Livy 3.36.3�–5 supports this view and points out that the imperium of the decemviri was not an issue �– and perhaps not even used �– for over a year. While the rst board of ten was restrained and admired,
the decemviri �– the writing of laws �– was civil in nature, the foundation of their of ce was an unusual potestas that was immune to appeal. Whether or not this is historically accurate, Cicero�’s description indicates that he understood provocatio to be a refuge only from magisterial potestas. Since imperium was not a civil power and not intended to be utilized within the city, provocatio was not originally envisioned as a protection against it. In the domestic sphere of the Roman world (domi) citizens theoretically en-joyed liberty from unjusti ed violence: the terror of imperium was kept outside of the city, and inside provocatio offered refuge from the abuse of magisterial potestas and coercitio. Only when civil strife threatened the security of the state was the military force of imperium permitted within the city, where its immunity to provocatio enabled it to crush con ict.140 This would also explain why full Roman citizens were subject to harsh punishments �– including scourging and summary execution �– while serving in the army: on campaign in the eld a commander functioned by virtue of his imperium, which was not subject to the restraints imposed by provocatio. Even after the Lex Por-cia extended provocatio beyond the city of Rome and into the provinciae, provocatio remained largely ineffective against imperium: citizen-soldiers enjoyed little reprieve from the punishments handed out by their commanders, and civilians (including Roman citizens) could still nd themselves at the mercy of imperium-bearing magistrates.141 Although provincial governors were certainly expected to use restraint in the exercise of their imperium over the civilian population of their province, there was nothing to stop a governor like Verres from executing Roman citizens, even those who invoked provocatio.142 Although Verres was prosecuted after the fact, provocatio does not seem to have been able to resist imperium. Therefore, on those exceptional occasions when a magistrate actually was (for some reason) instructed to use imperium within the pomerium, Romans were uncertain about the level of protection offered by provoca-tio. According to custom, imperium was irresistible once unleashed, but in practice a magistrate might be very cautious about using his imperium in the civil sphere, since he could be held accountable for his actions once he left of ce. For this reason a bold and highly in uential man like Fabius might feel comfortable exing his imperium to manipulate elections, while almost two centuries later a more cautious man like Cicero might hesitate to use his imperium to punish citizens without a trial. The weakness of provocatio in the face of imperium suggests that the two were not originally intended to occupy the same sphere.
the second board attempted a coup that they symbolized by adding axes to their fasces within the city. If we may take Livy�’s emphasis on the axes to be signi cant, it should represent an augmenta-tion of the power wielded by the decemviri, and since they already possessed maxima potestas sine provocatione, the inclusion of axes in their fasces was almost certainly a signal of their possession of imperium within the pomerium �– an open announcement of their claim to regal authority. It is possible that the rst board of decemviri relied solely upon their potestas and never took up their imperium, which contributed to the shock of the Roman people at the actions of the second board.
140 See the discussion of dictators and the senatus consultum ultimum below.141 A. Lintott, �“Provocatio: From the Struggle of the Orders to the Principate�”, ANRW 1.2 (1972)
251�–253 points out (251) that even after the Lex Porcia provocatio remained largely ineffective against imperium: �“at best a lex Porcia mitigated the severity of a military ogging.�” On the Lex Porcia and the limited use of provocatio in the provinces, see also: Rüpke, Domi (as in n. 4) 41�–43, J. Martin, �“Die Provokation in der klassischen und späten Republik�”, Hermes 98 (1970) 87�–91, A. H. McDonald, �“Rome and the Italian Confederation (200�–186 B.C.)�”, JRS 34 (1944) 18�–20.
Imperium, Potestas, and the Pomerium in the Roman Republic 441
Cicero makes clear that imperium was a dreadful and mighty power, but emphasizes that it was used outside the city of Rome.143 He also insisted that Verres as propraetor had forfeited his imperium and his right to command a province by secretly re-enter-ing the city (and therefore crossing the pomerium) after his of cial departure from the city.144 Indeed, the Romans were so conscious of the formalities required to take up imperium after crossing the pomerium that, at the outbreak of the Civil War in 49 B.C., Caesar�’s enemies were careful to perform the necessary rituals despite the fact that they had neglected to obtain a lex curiata.145 It is possible that, like Appius Claudius, these men argued that a lex curiata was not strictly necessary, but nevertheless their careful performance of the proper ceremonies indicates that they did understand the necessity of formally taking up their imperium after crossing the pomerium. Regardless of its source, imperium had to be taken up when �– and only when �– its holder left Rome, since he did not automatically possess imperium within the city as well as outside it.
The fact that tribunes could and did arrest consuls and throw them into prison is another argument against the existence of imperium within the pomerium.146 Likewise, in 172 B.C. the tribunes forced both consuls to leave the city and set out for their provinces, threatening the consuls with prosecution if they remained any longer within Rome.147 It seems beyond belief that the highest power to command and compel obedience should be so weakened within the pomerium as to be helpless to protect its holder from ar-rest and imprisonment, especially since possession of imperium outside of Rome was known to be ironclad protection against all forms of prosecution and interference.148 Rather, these cases indicate that we must either discard the concept of imperium domi, or we must accept that consular imperium domi was so meager a thing that it was easily
143 Cic. Leg. agr. 2.45, grave est enim nomen imperii, atque id etiam in levi persona pertimescitur, propterea quod vestro, non suo nomine, cum hinc egressi sunt, abutuntur.
144 Cic. 2 Verr. 5.34. Cicero alleges that Verres, while living outside the pomerium having of cially taken up his imperium by leaving the city, repeatedly re-entered the pomerium at night to visit his mistress.
145 Caes. BC 1.6, Neque exspectant, quod superioribus annis acciderat, ut de eorum imperio ad popu-lum feratur, paludatique votis nuncupatis exeunt. Caesar�’s comment was intended to invalidate the legitimacy of his enemies�’ commands by pointing out their failure to receive a lex curiata.
146 Livy records that tribunes imprisoned both consuls in both 151 B.C. and 138 B.C. (Livy Per. 48 and 55). In 60 B.C. the tribune L. Flavius imprisoned the consul Q. Caecilius Metellus Celer for his opposition to legislation favorable to Pompey (Cic. Att. 2.1.8, Dio 37.50). Cicero (Leg. agr. 2.101) also remarks that consuls could be arrested by tribunes.
147 Livy 42.21.4�–5 and 8. Both consuls �– C. Popillius Laenas and P. Aelius Ligus �– had been assigned the active military province of Liguria, but they remained in Rome in order to hinder the senate from acting against Popillius�’ brother, who was a proconsul waging an unauthorized war against the Statelliates in Liguria. Although the senate had been powerless to force the two consuls to depart for their provinces (and thereby remove their protection of Popillius�’ brother), the potestas of the tribunes proved more than suf cient to compel the consuls to leave the city with threats of prosecu-tion.
148 RS 12 Cnidos Copy Col. 4, ll. 31�–39 and Delphi Copy Block C, ll. 4�–8. Famously, Caesar wanted to stand for a second consulship in absentia in order to retain his imperium and thereby remain im-mune to prosecution (Suet. Iul. 30.3�–5). His enemies in the senate, however, sought to deny Caesar this privilege and force him either to remain outside of Rome (and therefore take no further part in Roman politics) or to lay down his imperium and become vulnerable to prosecution before standing for election. Although it was possible for the Roman people to strip a commander in the eld of his imperium (see n. 190 below), Caesar�’s tremendous popularity at that time made this possibility unlikely.
overawed by tribunician potestas. Even more remarkable was Caesar�’s need �– despite being the urban praetor �– to satisfy his creditors before he could leave for his praetorian province in Spain in 62 B.C.149 Was imperium domi so weak that even moneylenders could impose themselves upon a sitting praetor? All of these episodes, therefore, sug-gest that higher magistrates did not automatically acquire military authority upon their entrance into of ce, but rather that it was a separate prerogative activated only by the performance of additional rituals when they exited the pomerium.
The Triumph, the Dictator, and the Senatus Consultum Ultimum
Finally, there were occasions in the Republic when imperium was used clearly and openly within the pomerium. Although these occasions may seem like good evidence for magisterial possession of imperium in the civic sphere, they actually show the op-posite: these episodes were extraordinary and therefore cannot be taken to represent the normal state of Roman civic authority, and as such they underline what the normal situation was. Triumphs, the creation of a dictator, and the emergency actions of consuls invested with a senatus consultum ultimum were highly irregular events that cannot be held to represent the normal civic powers of magistrates.
(a). The Triumph
While our knowledge about the triumph does not, in itself, disprove the notion of imper-ium domi, the weight of the evidence already presented should encourage us to suspend any assumption of the existence of imperium domi and reconsider anew the relationship between imperium and the triumph. If we do this, I believe we can resolve the confus-ing question of why a sitting consul could not enter the city before the celebration of his triumph. Like so many Roman institutions, the triumph was a ritual that developed gradually over the centuries, and it would be a mistake to speak of a single �“format�” that de ned the triumph.150 Nevertheless, there seems to be universal agreement among the surviving sources that the triumph was a highly unusual celebration, most particularly because it spectacularly broke Rome�’s ancient prohibition against a military commander leading soldiers across the pomerium and into the city. Because of this momentous ex-ception to normal practice, our sources are often at pains to describe the way in which the triumph was authorized, often giving us more information about the authorization than about the triumph itself. By the Late Republic Roman authors possessed a fairly clear picture of the legal issues surrounding a triumph. A victorious military commander (whether a magistrate or a promagistrate) who desired a triumph could not cross the pomerium and enter the city;151 his request for a triumph had to be made at a special
149 Suet. Iul. 18.1.150 On the tendency in Roman authors to idealize the triumph, see T. Itgenshorst, Tota illa pompa: Der
Triumph in der römischen Republik (Göttingen 2005) 42�–88, 148�–188.151 Plut. Caes. 13.1 ejpei; de; tou;~ me;n mnwmevnou~ qrivambon e[xw diatrivbein e[dei,�… (cf. Cat. Min. 31).
Contra: R. Develin, �“Tradition and Development of Triumphal Regulations in Rome�”, Klio 60 (1978) 437, who believes that a sitting magistrate could �– if he so wished �– enter the pomerium and hold a triumph without obtaining any type of authorization, an action that Liou-Gille, Pomerium (as in n. 91) 102 calls �“un sacrilège abominable.�”
Imperium, Potestas, and the Pomerium in the Roman Republic 443
meeting of the senate held outside the pomerium, and the celebration of his triumph marked the rst moment when he was permitted to cross the pomerium while retaining his imperium.152 If the senate refused to grant permission, a commander could seek to acquire the necessary authorization from a vote of the people.153 If the people also refused, a commander could (by virtue of his unrestricted imperium) celebrate a triumph on the Alban Mount a short distance from Rome, well outside the pomerium, without anyone�’s permission.154 In all cases, applications for triumphs were carefully weighed, because the celebration of a triumph permitted the commander to retain his imperium while leading his victorious soldiers across the pomerium.155 Q. Caecilius Metellus Creticus and Q. Marcius Rex both lingered for years just outside the pomerium in hopes of a triumph,156 while Caesar famously forfeited his claim for a triumph by crossing the pomerium in 60 B.C. in order to announce his candidacy for the consular elections that year.157 And it is likely that C. Marius celebrated his triumph over Jugurtha on the rst of January in 104 B.C. speci cally because he had been elected consul for that same year in absentia,
152 See Livy 26.21.1, 28.9.5, 31.47.7, 33.22.1, 34.39.5, 38.44.9�–11, 39.4.2, 39.29.4, and Plut. Caes. 13.1. This meeting was usually held in the Temple of Apollo or the Temple of Bellona, Livy 28.9.5 (207 B.C.), 31.47.7 (200 B.C.), 33.22.1 (197 B.C.), 34.39.5 (191 B.C.). See H. M. Cotton and A. Yakobson, �“Arcanum Imperii: The Powers of Augustus�”, in G. Clark and T. Rajak (eds.), Philosophy and Power in the Graeco-Roman World (Oxford 2002) 199.
153 Sine auctoritate senatus populi iussu: see Livy 3.63.8�–11 (449 B.C.) and 7.17.9 (356 B.C.). In 294 B.C. the senate and several tribunes opposed L. Postumius Megellus�’ request for a triumph, but he nonetheless was authorized to celebrate one by the remaining tribunes and �– most important �– by the approval of the people (celebrante populo) (Livy 10.37.6�–12). Richardson, Triumph (as in n. 116) 58�–60 states that the normal procedure for authorizing a triumph was for the senate to instruct a tribune to bring a rogatio before the people requesting a dispensation for the general applying for a triumph (see Livy 26.21.5, 45.35.4, Cic. Att. 4.18.4). Although the senate seems to have ap-propriated the prerogative to grant or refuse triumphs by the Late Republic, the originally public (as opposed to senatorial) control over the authorization of a triumph suggests that the prohibition on possessing imperium within the pomerium was primarily a matter of law and not religion. The banishment of imperium from the city of Rome, therefore, was probably a part of the same process by which citizens of Rome won the right of appeal, and therefore the story of Publicola�’s famous (if historically uncertain) removal of the axes from his fasces in 509 B.C. was the historical imagining of a speci c moment at which imperium was established as a strictly extra-mural power (Livy 2.8, 3.20). See Itgenshorst, Tota (as in n. 150) 148�–188 (discussion on the historicity of Livy�’s descrip-tions of early triumphs) and 193�–203 (tensions between potential triumphators and the Roman senate and state).
154 Livy 26.21.6, 33.23.3, 42.21.7, 45.38.4.155 Livy 45.35.4 tribus iis omnibus decretus est ab senatu triumphus mandatumque Q. Cassio Praetori,
cum tribunis plebis ageret, ex auctoritate patrum rogationem ad plebem ferrent, ut iis, quo die urbem triumphantes inveherentur, imperium esset. The emphasis in this passage focuses upon the universal agreement among the senate, tribunes, and citizens that a returning commander would be permitted to have imperium inside the city. Since the removal of imperium from inside the pomerium had been done to safeguard the citizens themselves, it is only natural that their approval was necessary to make a temporary exception to this prohibition. The same was done for the lesser form of triumph, the ovation: tribuni plebis ex auctoritate senatus ad populum tulerunt ut M. Marcello quo die urbem ovans iniret imperium esset (Livy 26.21.5). On the retention of the triumphator�’s imperium within the pomerium, see Last, Imperium (as in n. 91) 160.
156 Creticus waited at least three years (65�–62 B.C.) before being permitted to triumph (Cic. Pis. 58, Livy Per. 99, App. Sic. 6), and Rex died without ever receiving permission, having waited at least three years (66�–63/2 B.C.) (Cic. Att. 1.16.10, Sall. Cat. 30.3�–4, 33.1).
157 Cic. Att. 2.1.6�–10 and 3.3, Livy Per. 103, Vell. 2.44.1�–2, Suet. Iul. 18, Plut. Caes. 13, Cat. Min. 31.
and therefore he needed to celebrate his triumph before he took up the consulship, lest he forfeit his triumph by crossing the pomerium to enter upon his consulship.158 While some historians have devised ingenious arguments to explain why a sitting consul could not enter the city before his triumph, I believe that the best solution is the simplest: imperium �– and along with it the capacity to request a triumph �– automatically lapsed when any commander (including a sitting consul) crossed the pomerium.159 Although a consul or praetor had the ability to take up imperium again by performing the neces-sary ceremonies and exiting the pomerium, he could not renew his claims for a triumph because his victorious command had already been resigned irreversibly along with his imperium. This would have caused no delays in the early days of the Republic, when battles were fought close to home and a consul could hold his triumph almost as soon as it was approved. When the triumphator completed his procession through Rome, his imperium automatically lapsed just as did that of a non-triumphing commander when he returned to Rome.160 Thus, after Marius�’ above-mentioned triumph in 104 B.C., his social faux pas of convening the senate while still wearing his triumphal regalia drew tremendous criticism from the senators.161 Their anger was aroused because Marius�’ appearance before them garbed in triumphal military attire visibly implied that he was a commander cum imperio instead of a magistrate cum potestate. Although the sena-tors certainly knew that his imperium had expired with the completion of his triumph, they were nevertheless unwilling to tolerate even the suggestion that his triumph and imperium extended into the senate house. Thus, while the triumph was certainly an oc-casion upon which imperium existed within the pomerium, it was a highly exceptional occasion and one speci cally authorized by either the people or the senate. Nothing
158 MRR 1.558. Marius might have been able to celebrate his triumph earlier than January 1 (although he probably needed the extra time to return from Numidia and prepare his triumph), but triumphing on New Year�’s Day not only carried a special prestige, but also gave him the added glory by triumph-ing on the same day as his consular inauguration. Marius could not have triumphed later, however, since crossing the pomerium to enter into his consulship would have required that he lay down his imperium and thereby forfeit his right to a triumph irrevocably, as had happened to Caesar in 60 B.C. when he was forced to forfeit his praetorian triumph over Spain in order to attend the consular elections for 59 B.C. (Suet. Iul. 18.2). Caesar won that consulship and with it imperium, but even so his praetorian triumph remained forfeit.
159 For example, L. Bonfante Warren, �“Roman Triumphs and Etruscan Kings: The Changing Face of the Triumph�”, JRS 60 (1970) 49 suggested that the triumph was a puri cation ceremony intended to remove the pollution incurred by the bloody power of imperium. Such an argument does not, of course, explain why only some commanders received triumphs, or why a man who quali ed for a triumph, such as Julius Caesar in 60 B.C., could forgo his triumph and enter the city without ceremony or ritual. Versnel, Triumphus (as in n. 4) 192 suggests that triumphing magistrates and promagistrates were granted imperium militiae within the city as well as imperium domi, but this is contested by Richardson, Triumph (as in n. 116) 59�–60, who also struggles with the problem: �“Certain magistrates returning to demand a triumph, namely a dictator, consul or praetor in their years of of ce, can scarcely have needed an extension of imperium, for they already held imperium domi in virtue of their magistracy; and yet in these cases too the senate met outside the city, nor did the general cross the pomerium before the day of his triumph. Attempts to conjecture an additional grant of imperium militiae to the returning magistrate�…cannot explain those examples already noticed�…It is better to explain the undoubted desire of a potential triumphator to avoid crossing the pomerium by some other ceremonial inhibition than the need for an extended imperium. Perhaps the most satisfactory is the idea that the triumph was in part an �‘entry�’ ritual, and that once he had crossed the pomerium, it was no longer possible for the general to make the formal entry triumphans or even ovans.�”
160 RS 1.12, Cnidos 4, ll. 38�–39 and Delphi C, l.3. See also: Cic. Fam. 1.9.25.161 Plut. Mar. 12.5 and Dio 48.4.5.
Imperium, Potestas, and the Pomerium in the Roman Republic 445
about the triumph should persuade us that such a thing as imperium domi existed; rather, by discarding this dubious notion we are able to expand our knowledge of the triumph and understand why sitting consuls and praetors were forbidden to enter the city prior to the celebration of their triumph.
(b). The Dictator
The imperium of the dictator certainly operated within the pomerium of Rome, but the critical point of the dictatorship was that it was an extraordinary magistracy. In the Early and Middle Republic, dictators were frequently created in times of crisis when the potestas and authority of the consuls were deemed an insuf cient remedy.162 Dictators were terrifyingly effective because they possessed the highest degree of potestas, they operated without a colleague, and they could utilize their imperium within the city.163 Cicero says that the creation of the dictatorship established a new type of imperium that was closer to the power of a king,164 and the novelty was no doubt the dictator�’s use of imperium within the pomerium.165 This was demonstrated very clearly by the inclu-sion of axes in the fasces of the dictator within the city of Rome, whereas consuls and praetors were only permitted to place axes in their fasces when they left the city to take
162 Plutarch (C. Gracch. 18.1) directly compares the ability of the dictator to order summary execution to the actions of Opimius when he was operating under the SCU of 121 B.C. Some dictators were also created in order to provide an additional senior magistrate when both consuls were detained in their provinces, but those need not concern us here.
163 Velleius (2.28.2) described Sulla as acting with unbridled imperium while dictator. Polybius (3.87.7�–8) describes a dictator as aujtokravtwr strathgov~ and distinguishes this of ce from the consulship by the dictator�’s greater number of lictors and his ability to act in all matters without consultation with the senate. This implies that the dictator�’s power was different in quality (and not merely quantity) from that of the consuls�’ within the city of Rome (where the senate was usually found). This qualitative difference becomes clear if we accept that consuls acted in the city with potestas and therefore lacked the complete independence enjoyed by the dictator, whose unusual possession of imperium within the pomerium allowed him to ignore the senate if he so wished. See also Polyb. 6.12.3�–4, where the duties of the consuls include carrying out the decrees of the senate and of the people (further suggesting that their actions are to some degree dependent upon the decrees of the senate and assemblies), and 6.12.5, where the consul�’s power as a military commander in the eld is nearly (scedovn) that of an aujtokravtwr (which again suggests that the dictator wields the absolute power of imperium inside the pomerium �– and thus is an aujtokravtwr in Rome �– whereas the consul wields imperium only in the eld �– and thus is an aujtokravtwr only in the eld, or rather nearly an aujtokravtwr, because he is still potentially subject to collegial interference).
164 Cic. Rep. 2.56 �…novumque id genus imperii visum est et proximum similitudini regiae. Cicero�’s statement should not be taken literally, since a dictator did not have a new type of imperium, but rather his imperium had a different and unrestricted range of application.
165 Of the important checks placed upon regal imperium at the foundation of the Republic (collegial-ity, limited terms of of ce, and the right of appeal made possible by the removal of imperium from within the pomerium), the dictator�’s imperium differed from that of a consul�’s only in that the dic-tator could use his imperium within the pomerium (the dictator was still subject to a limited term of of ce, and his lack of a colleague did not change the nature of his imperium, but only freed him from potential intercession by that colleague). The only novelty to the dictator�’s imperium, therefore, was that �– unlike a consul �– he could use his imperium within the pomerium, thereby negating the citizens�’ right to provocatio and the tribune�’s power of intercessio that had been made possible by the original removal of imperium from the city.
up a military command.166 The unusual possession of imperium within the pomerium explains why there was no provocatio from a command by a dictator (there was no ap-peal from imperium), and why the dictator was immune to tribunician veto (the civil potestas of the tribunes had no force against a man operating by virtue of military, and not civil, law).167 For this reason, dictators were often appointed in early Rome to get around tribunician potestas, since their highly unusual possession of imperium within the pomerium enabled them to overwhelm the potestas of the tribunes.168 When the dictator Fabius Maximus �– in Rome to conduct important sacri ces �– announced his decision to punish Minucius, his disobedient but popular master of horse, the tribune Metilius was powerless to stop Fabius. Although Metilius still enjoyed the protection of his tribunician sacrosanctity, he was unable to take any action against Fabius except to urge the people to remove him from his powerful of ce.169 Given the desperation with which Metilius sought to protect Minucius, it seems likely that the tribune would have vetoed or imprisoned the unpopular dictator had he been capable of so doing. Likewise, Dionysius of Halicarnassus wrote that only a dictator could stop civil unrest,170 and the reason is clear: in early Rome, only a dictator could use imperium in the civic sphere within the pomerium. For this reason, dictators were as effective as they were dangerous: according to legend, in 501 B.C. civil riots instantly ceased when citizens recognized the monarchical power of the rst dictator,171 and in 325 B.C. the dictator L. Papirius Cursor very nearly executed his disobedient Master of Horse within the pomerium in spite of the invocation of provocatio and the pleas for mercy from the senate and the people.172 That the dictator�’s tremendous power was rooted in his unusual possession
166 See Magdelain, Ius (as in n. 4), 579�–582.167 Livy 2.18.8, neque enim, ut in consulibus qui pari potestate essent, alterius auxilium, neque provoca-
tio erat neque ullum usquam nisi in cura parendi auxilium; 3.20.8, dictatore opus esse rei publicae, ut qui se moverit ad sollicitandum statum civitatis sentiat sine provocatione dictaturam esse (see also Dion. Hal. AR 6.58.2). Festus (p. 216L) recorded that at some point provocatio was extended to restrain the powers of a dictator as well: provocatio ab eo magistratu ad populum data est, quae ante non erat. When this was done is uncertain, but it supports the argument that originally there was no appeal from a dictator. On the other hand, Lintott. �“Provocatio�” (as in n. 141) 236�–237 (and Constitution [as in n. 18] 111�–112) believes there may be grounds for questioning even the dictator�’s initial immunity from provocatio and intercessio, since it was not unknown for a dictator to spare a man who had appealed to the people (but see below n. 172).
168 See Mommsen, Staatsrecht 23 (as in n. 11) 141�–172.169 Plut. Fab. 9.1.170 Dion. Hal. AR 5.70�–77.171 Livy 2.18.1�–10.172 Livy 8.33.3�–35.9. Lintott, Constitution (as in n. 18) 111 believes that this incident suggests that
provocatio was effective against a dictator because the disobedient master of horse, Q. Fabius Maximus Rullianus, had appealed to the people for protection. On this point I cannot concur with Lintott, because Papirius Cursor was not compelled to relent, but rather yielded willingly to the entreaties of the senate and people. In Livy�’s account the tribunes themselves are not certain how to respond, because their intervention against a dictator�’s imperium �– an act that apparently had never happened before �– would establish an irreversible precedent. As Livy portrays the event, even the tribunes understood the absolute nature of the dictator�’s imperium and they wished to avoid placing any limitations upon it, not even their own power of intervention. In the end, the tribunes were spared from having to make such a momentous decision because the people universally fell to entreating the dictator for mercy. Such supplication molli ed the dictator and gave him an excuse to back down from the potential confrontation with the tribunes, but it cannot be taken for certain that the tribunes would have thought it proper (or possible) to intercede against a dictator. Therefore, although this event indicates that �– in practical terms �– provocatio could potentially be invoked in
Imperium, Potestas, and the Pomerium in the Roman Republic 447
of imperium within the pomerium is also suggested by Livy�’s account of the conspiracy of Sp. Maelius in 439 B.C.173 Against this threat the consuls claimed to be unable to act effectively because their imperium had been dissolved or annulled by the laws of ap-peal,174 and they called for a dictator to be chosen, since that of ce did not suffer from the same handicap as the consulship, but rather was free from all laws and could still in ict summary execution.175 Although these events belong to Rome�’s ancient past and cannot be taken as historic fact, their presentation by later authors indicates that Romans of the Late Republic understood that the dictatorship was immensely more powerful than the consulship, and was especially effective at suppressing domestic strife. These stories strongly suggest that later Romans believed that dictators derived their awesome power in part from their possession of imperium within the pomerium, which in turn supports previous arguments that imperium was not, under normal circumstances, employed within the city. With the end of the Second Punic War the Romans ceased appointing dictators for over a century, no doubt because Italy was safe from sudden invasion and Rome was quiet domestically under the authoritative rule of a strong aristocracy. When it again became necessary to bring imperium into the city to quell domestic disturbances, the senate did not appoint a dictator, but rather adopted a new procedure.
(c). Senatus consultum ultimum and imperium
Without doubt there were occasions upon which consuls clearly �– and apparently le-gitimately �– used their imperium within the pomerium to conduct military operations or summarily to execute Roman citizens. Most famously: L. Opimius attacked and executed C. Gracchus and his followers in 121 B.C.,176 C. Marius conducted a campaign in Rome to defeat Saturninus and Glaucia on the Capitol in 100 B.C.,177 Cicero executed several of Catiline�’s conspirators in 63 B.C.,178 and Pompey lled Rome with soldiers to main-
any situation, the uncertainty of the tribunes and the fact that the power of choice over the fate of Rullianus remained in Papirius�’ hands should dissuade us from accepting this event as evidence that a dictator�’s imperium was always subject to provocatio and tribunician intervention.
173 A. Lintott, �“The Tradition of Violence in the Annals of the Early Roman Republic�”, Historia 19 (1970) 13�–18 has argued that the dictator in this story may have been a later addition (perhaps post-Gracchan). Whether or not this is correct, I believe we may still accept that Livy�’s account exhibits the notions Romans held about the power of the traditional (pre-Sullan) dictatorship.
174 Livy 4.13.11, tum Quinctius consules immerito increpari ait, qui constricti legibus de provocatione ad dissolvendum imperium latis, nequaquam tantum virium in magistratu ad eam rem pro atrocitate vindicandam quantum animi haberent. Opus esse non forti solum viro, sed etiam libero exsolutoque legum vinclis.
175 Livy 4.14.1�–7. Livy remarks that the Roman people were surprised by the new and unusual sight of military units being deployed in the city.
176 MRR 1.520. Although the main battle between Opimius�’ soldiers and Gracchus�’ followers took place outside the pomerium on the Aventine, much of the preceding military activity took place inside the pomerium, including the assemblage of Opimius�’ forces in the Forum, and probably also the execu-tion of Fulvius�’ son who had been arrested in the Forum (Plut. C. Gracch. 14�–17).
177 MRR 1.574�–576. Cicero provides a vivid account of the public emergency created by Saturninus inside the city that was resolved by the passage of an SCU, which empowered Marius to arm the citizenry and command them against the domestic insurgents (Cic. Rab. Post. 20�–21, 34).
178 Plutarch (Cic. 15�–16) emphasizes that Catiline left the city only after the senate passed a SCU charg-ing Cicero to suppress the conspiracy, and Velleius (2.34.4) even states that Catiline was driven from Rome by fear of the consul�’s imperium (Catilina metu consularis imperi urbe pulsus est). Since
tain order during the trial of Milo in 52 B.C.179 In all four cases, the consuls were acting under the aegis of a senatus consultum ultimum, the �‘ nal decree�’ in which the senate instructed the consuls to ensure that the state suffered no harm. It seems likely that the SCU was developed in part as a replacement for the dictatorship, which had (with nota-ble exceptions) ceased to be used after the Second Punic War.180 Like the dictatorship, the SCU was intended to solve emergency situations within the city by authorizing the use of imperium within the pomerium.181 Sallust de nes this as giving the magistrate domi militiaeque imperium, a phrasing that certainly seems to support the existence of two types of imperium: domi and militiae. A closer look at the context of this passage, however, reveals the opposite. Sallust de nes the SCU as follows:182
Itaque, quod plerumque in atroci negotio solet, senatus decrevit darent operam consules ne quid res publica detrimenti caperet. Ea potestas per senatum more Ro-mano magistratui maxuma permittitur, exercitum parare, bellum gerere, coercere omnibus modis socios atque civis, domi militiaeque imperium atque iudicium sum-mum habere; aliter sine populi iussu nullius earum rerum consuli ius est.
Therefore, as is often done in an emergency situation, the senate decreed that the
Cicero had produced concrete evidence of the conspiracy�’s existence (but not of Catiline�’s guilt), the senate no doubt empowered Cicero to use his imperium within the city, since the conspiracy posed an internal as well as external threat. Catiline actually waited two weeks before nally leaving the city, a delay made possible by his con dence that Cicero would not act without proof of Catiline�’s guilt.
179 Pompey had been elected sole consul at the beginning of 52 B.C. to suppress the urban violence that plagued Rome (MRR 2.234), and the senate instructed him to �‘see that the state received no harm,�’ which was the traditional wording of the SCU (Cic. Mil. 70: �…cum senatus ei commiserit ut videret ne quid res publica detrimenti caperet�…). Armed with this decree, he used his imperium to bring cohorts of soldiers across the pomerium and station them conspicuously in military formation in the heart of the city (Cic. Mil. 3, Plut. Cic. 35.2�–5).
180 The dictatorship fell into disuse after 202 BC (MRR 1.316), although it was revived by Sulla and Caesar when each man wished to wield unmatched power within the city of Rome. On the devel-opment of the SCU and re nements in its use between 121�–63 B.C., see J. Ungern-Sternberg von Pürkel, Untersuchungen zum spätrepublikanischen Notstandsrecht (München 1970).
181 A different view is put forward by Ungern-Sternberg, Untersuchungen (as in n. 180), who argues that the rst SCU (used against C. Gracchus) gained its legitimacy as a result of the immanent and obvious danger to the state, and thus the trampling of provocatio was tolerated as an absolute neces-sity (55�–67). Later use of the SCU, however, developed a system for circumventing provocatio by declaring the perceived troublemakers to be hostes, and therefore outside the scope of provocatio (111�–122). This view does not contradict the arguments put forward in this paper, but rather they complement each other well: the people tolerated Opimius�’ emergency use of military force within the pomerium because it had a solid precedent in the dictatorship. Opimius could have (as consul) named a dictator to resolve the crisis, but doing so would have removed control of the senate�’s response from his own hands. Instead, he secured the passage of an SCU that authorized his own use of imperium within the pomerium, allowing him to direct the brutally effective response against Gaius Gracchus. Although the SCU itself was a novelty, the purpose and power of the SCU was familiar and had a rm precedent. The Roman people understood that emergencies might require the unusual use of imperium within the pomerium, and the later practice of declaring troublemakers to be hostes would have made such emergency use of the consuls�’ imperium more palatable to the citizenry. Indeed, from the perspective of the Roman people the SCU must have been far preferable to the dictatorship because it only permitted the use of martial law to resolve a speci c emergency, whereas the creation of a dictator imposed martial law for up to six months. See also Lintott, Con-stitution (as in n. 18) 89�–93, who suggests that the SCU was technically illegal.
Imperium, Potestas, and the Pomerium in the Roman Republic 449
consuls should see to it that the Republic suffer no harm. That power that �– by Ro-man custom �– is entrusted to a magistrate by the senate is the greatest: to prepare an army, to wage war, to coerce by all means allies and citizens, and to hold the command and highest jurisdiction both at home and in military affairs. In other situations, authority in none of these areas is invested in a consul without the com-mand of the people.
This passage makes two critical points. First, a magistrate only wielded imperium domi militiaeque in cases of dire emergency and with proper authorization. In normal cir-cumstances, therefore, a consul or praetor did not possess imperium domi militiaeque. Second, since all commanders in the eld already possessed imperium militiae, the importance of the SCU is that it authorized the use of imperium domi (that is, imper-ium in Rome), and therefore imperium domi did not exist �– in normal civic conditions �– without a special decree. Furthermore, the phrase imperium domi militiaeque is very rare in Latin literature, appearing (to my best knowledge) only two other times, neither of which constitutes strong evidence for the existence of a regular imperium domi.183 Thus Sallust demonstrates that imperium domi is highly unusual and is not normally part of a consul�’s of ce; it must be specially given to him by explicit order of the sen-ate. In effect, by passing an SCU the senate instructs the consul to take up his imperium and use it in a different and (normally) illegal manner: to bring his imperium into the city and utilize it there for the protection of the state.184 The SCU should, therefore, be understood as a formal declaration of martial law,185 a declaration that directed the consuls to use military power (imperium) within the city of Rome, where such power was normally forbidden.186 As a result of this extraordinary situation, the imperium of
183 Both of these references appear in Livy. In the rst (1.pr.9) Livy is clearly using imperium to de-note the Roman Empire (ad illa mihi pro se quisque acriter intendat animum, quae vita, qui mores fuerint, per quos viros quibusque artibus domi militiaeque et partum et auctum imperium sit). In the second (10.8.9), a speech complaining about the lex Ogulnia and the patrician monopolies on the priesthoods in 300 B.C., the emphasis is on auspicium domi militiaeque (semper ista audita sunt eadem, penes vos auspicia esse, vos solos gentem habere, vos solos iustum imperium et auspicium domi militiaeque�…). This passage, of course, is very weak evidence, since imperium is modi ed by iustum, while auspicium is modi ed by domi militiaeque. Although imperium is in close proximity to the phrase domi militiaeque, I do not think that this proximity alone demonstrates the existence of imperium domi. Compare with the Sallust passage cited above (29.3: domi militiaeque imperium atque iudicium summum), which also has a chiasmus separating the ideas of imperium and iudicium.
184 Lintott, Violence (as in n. 64) 156 comes close to this position: �“Imperium is certainly not conferred [by the SCU]�…instead instructions are given for the exercise of imperium, which promise by im-plication the senate�’s backing for their performance�….�”
185 The SCU was the equivalent of martial law because, by authorizing the use of imperium within the pomerium, the senate effectively suspended the citizens�’ right of appeal, since there was no appeal from imperium. Cicero (Rab. Post. 20) demonstrates this when he describes the military nature of the SCU of 100 B.C.: t senatus consultum ut C. Marius L. Valerius consules adhiberent tribunos pl. et praetores, quos eis videretur, operamque darent ut imperium populi Romani maiestasque conservaretur. Adhibent omnis tribunos pl. praeter Saturninum, praetores praeter Glauciam; qui rem publicam salvam esse vellent, arma capere et se sequi iubent. Parent omnes; ex aedi ciis arma-mentariisque publicis arma populo Romano C. Mario consule distribuente dantur. C. Nicolet, The World of the Citizen in Republican Rome (Berkeley / Los Angeles 1980) 144 and 163 also refers to the SCU as martial law.
186 Cicero presents magistrates as possessing the right to execute without a trial (Cic. Cat. 1.3�–4, Mil. 70), and Caesar claims that his enemies declare a state of emergency in order to empower Pompey and the consuls to use military force against Caesar (BC 1.5). Dio (38.14.4) records that Clodius
the consuls would overpower the normal potestas of all other magistrates, including that of the tribunes, and for this reason Sallust refers to consular use of imperium within the pomerium descriptively (if somewhat inaccurately) as a potestas maxuma.187 Of course, an SCU was not a law lifting the ban on imperium within the city, but rather the senate�’s instruction to the consuls (or praetors) that they ignore the ban and bring their imperium into the city on their own authority, along with the promise of senate�’s full support should the magistrate later be held accountable for this infraction. Magistrates who used their imperium within the pomerium under an SCU were still accountable to the people for their actions once they laid down their imperium. Opimius and Cicero were both prosecuted for their respective actions: Opimius was acquitted of any wrongdoing, but Cicero was forced into exile (although his enmity with Clodius, and not his use of imperium, was largely to blame for this, and he was eventually recalled).188 Indeed, Cicero�’s hesitation to act independently and decisively against Catiline and his fellow conspirators indicates the tenuousness of his position: to use his imperium within the city was highly unor-thodox and fraught with danger for himself, and he wanted to gather as much support as possible before taking such controversial action.189 While all holders of imperium were liable for prosecution for abuses of their imperium in the provinces,190 those who dared to use their imperium in Rome under the aegis of an SCU were at particular risk, since their actions brought military power into the civilian sphere.191
believed that the entire senate was equally guilty for the death of Catiline�’s co-conspirator Lentulus because it had authorized the execution by their passage of their SCU. See also E. Badian, �“Magis-tratur und Gesellschaft�”, in Eder, Staat (as in n. 5) 468, who points out that consuls did not execute citizens by virtue of their potestas consularis, but rather by virtue of their imperium. Contra: A. Drummond, Law, Politics and Power (Stuttgart 1995) 79�–95 argues that an SCU gave the consuls no new prerogatives (i.e., did not legally suspend the right of provocatio), and that it was not a clearly understood action. An even better example of this use of martial law was a case in 211 B.C.: with Hannibal at the very gates of Rome and the city in an uproar the senate invested all former dictators, consuls, and censors with imperium for as long as the enemy was at the walls: Livy 26.10.9, et quia multis locis comprimendi tumultus erant qui temere oriebantur, placuit omnes qui dictatores, consules censoresve fuissent cum imperio esse, donec recessisset a muris hostis. Et diei quod reliquum fuit et nocte insequenti multi temere excitati tumultus sunt compressique. This imminent threat to the city resulted in the enactment of martial law, under the aegis of which the use of imperium within the city was authorized. In certain cases, the senate could also declare a tumultus, which placed the entire city in a state of emergency, normally the result of a hostile force advancing on Rome itself (see Lintott, Violence [as in n. 64] 153�–155).
187 Caesar (BC 1.7) indicates that the ultimate decree was intended to allow the consul to overwhelm all possible sources of trouble within the city, including pernicious laws, tribunician violence, secessions of the people, and the seizure of temples and elevated or defensible positions in the city.
188 MRR 1.523�–524 (Opimius) and 2.193�–197 (Cicero).189 On Cicero�’s hesitation, see also Ungern-Sternberg, Untersuchungen (as in n. 180) 86�–129.190 For example, the quaestio perpetua de repetundis was established in 149 B.C. so even provincials
could prosecute former magistrates and promagistrates for abuse of their imperium (see Lintott, Constitution [as in n. 18] 158�–159), and Verres was prosecuted �– among other things �– for misuses of his imperium in Sicily (Cic. Verr. 1.53, 2 Verr. 2.127, 4.84, 4.89). Commanders could even be stripped of their imperium if the people judged such action warranted, such as when Q. Servilius Caepio, a proconsul in Gaul in 105 B.C., famously refused to cooperate with the consul Cn. Mallius Maximus, an impasse that led to the disastrous defeat of two Roman armies at Arausio. In response the Roman people immediately abrogated Caepio�’s imperium and recalled him to Rome to be pros-ecuted for his actions (Livy Per. 67).
191 In addition to the prosecutions of Opimius and Cicero, Marius felt the need to leave Rome and drop out of politics for several years following the debacle that resulted from his use of imperium in
Imperium, Potestas, and the Pomerium in the Roman Republic 451
Like the dictatorship, therefore, the SCU demonstrates that the Romans did not hesitate to authorize the use of imperium within the city when emergency situations called for such measures, but these occasions should be understood as exceptions, not the standard practice. Indeed, it is likely that one motive behind the development of the SCU was to impose stricter limits on even the emergency use of imperium within the pomerium. Whereas a dictator could impose martial law on Rome for up to six months, the SCU limited consular use of imperium within the city to the duration and resolution of a speci c emergency only, which greatly reduced the potential for abuse of emergency powers.192 The Romans were a military people, but in their civilian life they did not want to live under the imposing power of imperium, and although they could tolerate its emergency use to solve a domestic crisis, the development of the SCU probably represents an attempt to con ne such use of imperium as narrowly as possi-ble. In fact, the Romans went to great lengths to carefully regulate and control all use �– however brief �– of imperium within the pomerium, and episodes like the triumph, the dictatorship, and the SCU underline the idea that imperium was a military power that only appeared in Rome under the most extraordinary circumstances. By accepting this idea and discarding the notion of imperium domi we can resolve several problems and enhance our understanding of these three unusual aspects of Roman history.
Conclusion
Mommsen was correct to detect a difference in the powers a magistrate possessed within and outside Rome, but he was mistaken to assume that both areas were ruled by imperium. Imperium was the supreme military power in the state and empowered a magistrate with absolute regal authority, including the power of life and death, over citizen-soldiers, allies, and enemies assigned to him by the state. The tremendous power of imperium was, however, carefully limited by the sacred boundary of the pomerium, into which imperium (except in exceptional circumstances) did not extend. Imperium remained outside the city with all other things military, while within Rome magistrates functioned by right of their potestas to undertake their assigned duties. If force or physi-cal violence were necessary, the magistrates used their coercitio (and not some form of degraded imperium domi) to enforce order. Only in the gravest of situations did the senate authorize the emergency use of imperium and martial law within the boundary of the pomerium, but these occasions were considerable exceptions to the norm.
Potestas (unlike imperium) was the common possession of all magistrates, and despite the frequent use of the word imperium to characterize consuls, it was potestas that signi ed their �– and all �– magisterial capacity and entitlement. The particular duties
Rome to subdue Saturninus and Glaucia in 100 B.C. (Cic. Rep. 1.6; Plut. Mar. 31). He went to the province of Asia, perhaps following the precedent of P. Cornelius Scipio Nasica Serapio, who �– like Marius �– had gone there in 132 B.C. in order to escape the hatred of the Roman people for his role in the slaying of Tiberius Gracchus (Cic. Flac. 75, Rep. 1.6; Plut. TG 21.2).
192 While Livy celebrated men like L. Quinctius Cincinnatus, who resisted the allure of supreme power and resigned the dictatorship a mere sixteen days into his of ce (3.26.7), he noted that some men were less noble and used their power for personal ends. One such dictator was Mamercus Aemilius who, when the military emergency for which he had been appointed dissipated on its own, refused to resign his of ce and used his authority to push forward a bill that reduced the term of the censors�’ of ce from ve years to eighteen months (4.24.1�–9).
and responsibilities of a magistracy were de ned by the potestas it possessed, and ques-tions of precedence were likewise established by the level or type of potestas invested in each of ce. Potestas is not only a better documented source of domestic magisterial authority and power, but also a more logical and convincing one, since it was the power that all domestic magistrates had in common, while imperium was the sole possession of military commanders. Although much ink and intellectual effort have been expended trying to explain how imperium domi might have existed and functioned, I suggest that it is time nally to dismiss this ill-documented but lingering notion, and instead to accept that imperium was speci cally and only the power of military command, that it �– like military command �– was strictly prohibited within the pomerium (except in extraordi-nary circumstances), and that the potestas invested in each magistracy was suf cient to empower of cials to perform their civic responsibilities.
Providence College, Providence, RI Fred K. Drogula
