§ 1. We must treat the greater Magistrates who command outside the ruling city, such as Proconsuls and Propraetors, or outside the kingdom in which the king has established his seat, such as Viceroys and Great Praetors. Because in this matter not only different states but even the same states—and indeed the Roman state—frequently varied, it must be taught seriously; the practice of the ancient wise men must be brought forward, and the errors and outcomes weighed.
§ 2. Those were called Proconsuls, or men “in place of a Consul,” whose Magistracy was continued after the completion of the year for the sake of the state, and who were sent into the provinces either from a Magistracy or from private life. Propraetors were appointed on the same principle: they were sent from the Praetorship or into praetorian provinces. A Magistracy was first prorogued for Publilius Philo, in Livy, book 8: “A triumph was decreed to Publilius because it was sufficiently believed that the enemies, subdued by the siege, had come into allegiance. These two singular things happened first to that man: the prorogation of command, which had not previously occurred in anyone, and a triumph after he had discharged his office.”
This happened in year 428 from the foundation of the city, during the siege of Palaepolis. Scipio was made Proconsul from private life; Livy, book 26. Ordinary Consuls, after discharging the Magistracy, went to a province in the following year; but if this occurred in subsequent years, they were said to go as private persons. Yet however they were sent, there was need of good and courageous Magistrates. Most excellently the preface to Novel 24 says: “We certainly never believed that the ancient Romans could have established so ample a state from small and even the very smallest beginnings, and thereafter could have joined to themselves and pressed and protected by command almost the whole world—we might say—unless, after sending the greater Magistrates into the provinces, they had acquired greater dignity for themselves by that means, had given those men power both of arms and of laws, and had possessed men fitted and suitable for both. They called these men Praetors, a name imposed upon them because they went before and were placed over all the others, the administration both of military affairs and of the prescription of laws having been permitted to them. Hence they also called praetoria those places in which Magistrates were accustomed publicly either to administer justice or to reside, and established that most laws in the state should be introduced by the living voice of the Praetors. Many Praetors partly added to the command, or governed, Sicily, partly the island of Sardinia, partly Spain, and others some other region by land and sea.”
§ 3. Sicily and Sardinia were the beginning of the provinces; afterwards the two Spains and others followed. The first governors of these were appointed in the Centuriate Assembly and called Praetors; afterwards provinces were also entrusted to Consuls for the purpose of conducting war. Praetors who remained in a province with their command prorogued were called Propraetors. But afterwards it seemed more correct that those who had discharged the Praetorship in the city should depart for the provinces toward the end of the year. Their power was no less than that of the Proconsuls, but they nevertheless employed only six Lictors, not twelve. In order gradually to draw all things to himself, Augustus sent into provinces men who had discharged neither the Consulship nor the Praetorship in the city, and called them Propraetors.
§ 4. They were sent by a Curiate Law, because without it they had no right to conduct war; hence that law was not necessary for men going to a pacified province. The command of the people was, however, necessary for the expenses and equipment required by a province. For by aid of a law it was obtained that traveling expenses should be decreed for the legates, cohort, and retinue. Capitolinus testifies in Alexander that money was given from public funds to governors.
These were the laws for departing. First: “A Proconsul must take care not to burden a province in providing lodgings, as our Emperor together with his father rescripted to Aufidius Severianus. No Proconsul may possess his own grooms, but in place of them soldiers discharge the services in the provinces.” Second: “It is indeed better for a Proconsul to depart without his wife, but he can also do so with his wife, provided he knows that the Senate, when Cotta and Messala were Consuls, decreed that, if the wives of those departing to their offices committed any offense, an account and punishment would be exacted from the husbands themselves.” Third: “Before the Proconsul has entered the boundaries of the province decreed to him, he must send an edict concerning his arrival, containing some commendation of himself—if there is any familiarity or connection with the provincials—and especially excusing them from coming to meet him either publicly or privately, for it is fitting that each person should receive him in his own native country.” See book 1, π., On the Office of the Proconsul.
§ 5. Proconsuls therefore possessed power and command: power was the capacity of making inquiry and judging; command concerned military affairs. They commonly administered justice in winter and in the assize districts, and conducted war in summer. Proconsuls were sent for the sake of war: first into Africa, then into Asia and Achaea. It was first established in year 605 from the foundation of the city that those who had discharged the Consulship in the city should go with consular power into the provinces. Before his arrival a Proconsul could not delegate authority to his Legate unless perhaps he underwent a necessary delay on the journey. Ulpian, book 4, On the Office of the Proconsul: “After he has entered the province he must delegate jurisdiction to his Legate; nor may he do this before entering the province. For it is exceedingly absurd that, before he himself obtains jurisdiction—for it does not belong to him before he comes into that province—he should delegate to another what he does not possess. But if he has done it beforehand, the Legate must be believed to possess jurisdiction, not from the time when it was delegated, but from the time when the Proconsul entered the province.”
Papinian limits this in book 1 of the Questions: “Sometimes a Proconsul can delegate jurisdiction even if he has not yet reached the province. For what if he undergoes a necessary delay on the journey, while the Legate will arrive in the province very speedily?”
The care of revenues, the grain supply, and ships rested no less upon them. Thus they commanded a quantity of grain and sold or stored it; they sometimes imposed revenues and possessed their own praetorium. All these things are not now customarily conceded to governors, for they greatly abused their power to exhaust the provinces. But the laws themselves explain these rights most clearly in the passages cited above: “They are also accustomed to delegate inquiry concerning persons in custody to their Legates, in such a way that they remit the persons already heard to themselves, so that the Proconsul himself may liberate the innocent. But this kind of delegation is extraordinary; for no one can transfer to another the power of the sword given to him, or the power of any other coercion, and therefore not the right of liberating accused persons either, since they cannot be accused before him. But just as it rests in the Proconsul’s judgment to delegate or not to delegate jurisdiction, so the Proconsul may indeed take away delegated jurisdiction, but ought not to do this without consulting the prince.”
§ 6. Plainly royal honor was paid to him: to good men temples, statues, feast-days, and honorable embassies to the Senate; the same things were paid even more lavishly to bad men so that they would not inflict as much harm as they were able.
The honor of a Proconsul extended more widely than his power. Thus π., On the Office of the Proconsul: “A Proconsul possesses proconsular insignia everywhere from the moment he has departed the city; but he exercises power only in that province which has been decreed to him.”
He nevertheless employed some power even outside his own province, although honorary rather than commanding power. Thus law 1, π., title 16: “All Proconsuls, as soon as they have departed the city, possess jurisdiction, but not contentious jurisdiction—voluntary jurisdiction. Thus both free persons and slaves can be manumitted before them, and adoptions can be made. But no one can be manumitted before a Proconsul’s Legate because he does not possess jurisdiction of that kind.”
Voluntary jurisdiction is exercised without a tribunal; contentious jurisdiction from a tribunal, as Cujas and others explain.
But what they principally sought was an opportunity to gather immense treasures. For they harassed the allies by plunder and extortions and granted and sold immunities. Strabo, book 12, concerning Paphlagonia: ὕστερον δὲ οἱ τῶν Ῥωμαίων ἡγεμόνες ἄλλως καὶ ἄλλως ἐποίησαν μερισμούς, βασιλέας τε καὶ δυνάστας καθιστάντες καὶ πόλεις τὰς μὲν ἐλευθεροῦντες, τὰς δὲ ἐγχωρίζοντες τοῖς δυνάσταις, τὰς δὲ ὑπὸ αὑτοῖς τοῖς Ῥωμαίοις ἔχοντες. “Afterwards Roman commanders established different divisions, appointing kings and dynasts, making some cities free, subjecting some to dynasts, and leaving some under the power of the Roman people.” From this came great wealth: some from gifts of cities so that they would not pay what was owed or receive a soldier into winter quarters, and other things treated elsewhere.
§ 7. I have mentioned above several errors in this class. No prudent person can approve the fact that the governors were selected by lot; Augustus himself, after he had selected the Proconsuls for the people’s provinces by lot, afterwards changed the practice. Next, the command was excessively brief. “What have we to do,” says Apuleius, “with those vicissitudes of Proconsuls? What with brief years and hastening months? While they go and return, the year is consumed.” For this reason Magistracies are entrusted very differently in the present age, as Augustus himself also did, so that his Prefects remained and were changed at his judgment. This is also observed now in Gaul and other kingdoms.
But the fact that the provincials, deprived of the aid of laws, were condemned under the appearance of right and laws after they had been afflicted and exhausted by every injury brought the greatest ruin. If they prevailed in their case, they nevertheless recovered the smallest part of their property, while those great defendants drank it away:
But you, victorious province, weep.
Nor did any better hope dawn upon the victorious province: the relatives, friends, associates, children, and grandchildren of the condemned were to command again. Avengers therefore threatened, and advocates were of no benefit, since, having plundered in another quarter, they themselves needed protection, or were joined by affinity of marriages or fellowship in rapine.
§ 8. The method of correction consisted of the laws of treason, peculation, and extortion. But these laws had so passed into abuse that the provincials were afflicted by the very laws enacted for their safety. The law of treason and peculation was indeed enforced severely; proceedings concerning extortion were slow except in atrocious cases and against a weak enemy. That law was therefore given for the sake of the allies, and sometimes had an effect. Peter Gregory may be consulted concerning it in the Syntagma, book 36, chapter 28, §15 and following. Julius Caesar removed from their order men convicted of extortion. When Marius Priscus was accused under the Julian law of extortion by the Africans over whom he had presided as Proconsul, it pleased the Senate that the seven hundred thousand which Marius had accepted should be paid into the treasury. Marius was interdicted from the city and Italy. Concerning Hostilius Firminus, the Legate of Marius, it likewise pleased the Senate that, because he had lent his service to the most shameful ministries,
no account of him should be taken in the allotment of a province. Cornelius Gallus, when Octavian held Roman affairs, was Procurator of Egypt; according to Ammianus Marcellinus, he exhausted the city after intercepting very many things. Upon his return, when he was arraigned for his thefts and the nobility, sharply indignant at the despoiled province, had been given the business for examination by the Emperor, he fell upon a drawn sword, certainly from fear of the capital penalty which he supposed that he would undergo on that account. Gaius Servilius Glaucia proposed a law at Rome by which Latins had the right of obtaining citizenship in place of a man whom they had brought to condemnation by accusing him of extortion. The Julian law of extortion also wills that the man is guilty who has accepted something so as to do more or less by virtue of his office. Demosthenes the Orator was condemned by the Athenian people to fifty talents because, after declaring that Harpalus, who had fled from Alexander out of Asia, was an enemy, he was afterwards appeased by a cup and twenty talents from Harpalus and desisted from his undertaking, as Dinarchus says against Demosthenes, as do Plutarch, Justin, and Athenaeus.
For the same reason, those who accept something in order to accuse or not accuse are held by the law of extortion, as are those who enter into an agreement to accuse innocent persons; those who accept money for giving or withholding a denunciation or testimony, or for selecting or sending a soldier; and those who accept it for delivering an opinion in the Senate or a public council. Ulpian notes another head of the Julian law of extortion: if a Proconsul dismisses his Legate from the province before himself. Another head forbids Senators to possess a seagoing ship. A governor is prohibited from building or possessing a ship in the province which he administers, or from purchasing anything else there. We read that men were condemned under the law of extortion among the Greeks also. According to Xenophon, in rendering their account for the preceding period the commanders Philesius and Xanthicles were condemned because they had embezzled twenty minas from the Gaulitic money which they had received for disbursement, and judgment ordered them to repay the same amount.
§ 9. Sometimes they were first sent into provinces in the fifth year after entering the Consulship. From this it happened that many never obtained provinces by lot. This occurred under Tiberius and frequently thereafter, so that the name of the Consuls gradually grew worthless when they perceived others to hold a higher position.
§ 10. At first they were called Praetors, afterwards Propraetors, of whom I have spoken above. But since the arrangement had been varied in many ways, Justinian attempted to recall it to the ancient laws. He did this in other cases and in the case of the Praetor of Pisidia, Thrace, Lycaonia, and especially Paphlagonia, Novel 29, chapters 1 and 2: “Indeed, the man who holds command over the whole province—while the whole province is called Paphlagonia, as before—will also go about and inspect the cities. No formula, perhaps formerly framed as sacred to prohibit such conduct, prevents this; nor will he send vicars here and there through the cities in his place. For we entirely prohibit this very thing, since it is shameful that, while he himself administers justice in the province, he should meanwhile entrust his functions to another contrary to law. He himself will administer everything and bring the public tributes to completion with the greatest readiness of spirit, exacting neither more nor less. Retaining, moreover, an equality consonant with justice, he will at the same time employ foresight so that, if the fisc has suffered any loss, he may correct it, and at the same time preserve the cities unharmed both publicly and privately. He shall receive the allowance which each of the two Magistrates possessed, amounting to seven hundred and twenty-five aurei; he shall also possess an assessor, who shall receive seventy-two aurei, and one cohort composed from both, proceeding to the number of one hundred men and receiving four hundred and forty-seven aurei and a third from the public treasury. And since he receives his office without payment, let him likewise discharge it without payment. For in this part also we shall redeem our subjects, and we ourselves shall give to those who customarily receive something under occasion of suffragium, as they call it, paying this to them through your throne from the public tributes of that province; nor shall we allow our subjects to be driven into servitude under the appearance and covering of an auction.”
§ 11. The name “Governor” is general, for a Proconsul too was a Governor. Thus book 1, π., title 18: “The name ‘Governor’ is general; and therefore Proconsuls, Caesar’s Legates, and all who govern provinces, even if they are Senators, are called Governors. The designation ‘Proconsul’ is special.”
These are his rights and power. First, adoption before him, emancipation of a son, and manumission of a slave. Ulpian, law 6 and π., On the Office of the Governor. Second, he possesses power over the inhabitants of his province. Paul, law 3. Outside his province he is a private person. Third, he possesses greater command than all persons after the prince, like a Proconsul. Ulpian, law 36, On the Edict. Fourth, cognizance belongs to the correctors and provincial Governors concerning all the causes which at Rome are heard by the Prefect of the City or the Praetorian Prefect, and likewise by the Consuls, Praetors, and others. Hermogenianus, book 2 of the Epitomes of Law. Marcian therefore rightly says in book 3 of the Institutes: “All provincial petitions which have various Judges at Rome pertain to the office of the Governors.” The management of all business therefore pertains to the Governor. This must be noted against those who have judged the power of Governors to be less than that of Proconsuls.
More of his offices are described in law 1, π., title 18. There several golden laws must be noted, especially law 12: “Although the man who presides over a province ought to discharge the function and office of all the Magistrates at Rome, nevertheless one must regard not what is done at Rome but what ought to be done.” And law 13: “It befits a good and grave Governor to take care that the province which he governs is peaceful and quiet. He will obtain this without difficulty if he acts solicitously so that the province is free from evil men, and searches them out. For he must seek sacrilegious persons, robbers, kidnappers, and thieves; punish each according to his offense; and coerce those who harbor them, without whom a robber cannot remain concealed for long.” And law 18: “It is contained in a plebiscite that no Governor should accept a service or gift unless it is food or drink to be consumed within the next few days.”
§ 12. Among the Turks the office of the Agha corresponds partly to the office of the Praetorian Prefect and partly to that of Proconsuls. For he is the head and Judge of the Janissary soldiers and possesses the first place in war. Otherwise the Pashas, Beylerbeys, and Sanjakbeys exercise various functions in war and peace. But because that command is tyrannical, it generally sends robbers and thieves into the regions, whom the Turk is afterwards accustomed to slaughter and plunder when they have become rich. The difficult thing is that those through whom the empire is administered must act as lions abroad and foxes at home. For the authority of the Pashas among the Turks is very great: in ancient times, while their affairs were still slight, they were employed in councils; now they also govern the councils and preside over the most powerful kingdoms. This is the more dangerous because Emperors accustomed to pleasures do not ordinarily pay much attention to the state unless the dangers of wars, or the frequent sedition of the Janissaries, shakes off their torpor.
§ 13. A Dioecetes is one who administers definite dioceses, but the division of dioceses varied. In ancient times the parts of a province were called dioceses. Cicero, book 3 of the Letters, says that three Asian dioceses were attributed to the province of Cilicia. But in the later times of the empire provinces were parts of dioceses. There were five dioceses of the East. The one called the diocese of the East properly so called embraced fifteen provinces;
the Asian diocese ten, the Pontic six, the Egyptian six, and that of Dacia five. There were also six dioceses of the West: the Italian, Illyrian, African, Gallic, Spanish, and British. From this it came into the usage of the Church that the jurisdictions of Bishops are called dioceses.
§ 14. Viceroys are now furnished with the same power. Spain possesses many of them; the dignity is not so customary in other kingdoms because they do not administer kingdoms so remote or so numerous through vicars. The dignity and power of Vice-kings and Viceroys is not the same as that which belonged to the Vicars, for the Vicars possessed civil jurisdiction, while the Vice-kings possessed both civil and military jurisdiction. Vicars are compared with Counts in law 1 of the Code, title 38: “In civil causes it is fitting that Vicars be preferred to Counts of the soldiers; in military business Counts are preferred to Vicars. Whenever association in judging occurs, the Vicar shall be placed first and the Count shall follow as his associate. For the merit of the Prefecture stands before the other dignities, and the vicarial dignity judges that by its very name it draws to itself a portion of it, possesses the power of sacred cognizance, and is accustomed to represent the reverence of our judgment.”
Nevertheless, Augustal Vicars who were created by the Prince possessed the chlamys and carriage and administered the tributes. Cassiodorus, book 9 of the Variae.
§ 15. The Prince of Dalmatia presides over tribunals and hears causes, but is not the Governor of provinces with proconsular or any other power. He also judged the Count of the provinces himself. “Power over the provinces has indeed been given to the Count, but the Judge himself has been entrusted to you,” says Cassiodorus in book 7.
§ 16. The Vicar of the Pontic tract is also called the Count of the Pontic Diocese; he performed the functions of the Praetorian Prefect. “It seemed good to us,” says Justinian, “to impose a Vicar upon all the provinces of the Pontic Diocese, so that he may fill not only the place of the Praetorian Prefect but also that of the most glorious Master of Offices, the most glorious Dukes, and the most magnificent Magistrates who preside over the divine patrimony, treasury, and household Protectors.” They were Proprefects and governed a diocese in the place of the Prefect. Nevertheless, they possessed command from the Prince. The Vicar of the Praetorian Prefect administered justice in seven provinces of Italy. There were, however, not only Vicars of the Praetorium but also Vicars of the Master of the Soldiers. In Eutropius, book 7, chapter 6, the Consular Governors of Venetia, Aemilia, Flaminia, and Liguria are under the Vicar of Italy, as are the Governor of the Cottian Alps and those of both Rhaetias.
Tetrarchs performed almost the functions of Satraps and Vicars, although they are more similar to our Counts and Barons. The name originated among the Thessalians, for their region was divided into four parts, each of which was called a τετραρχία; their names were Thessaliotis, Phthiotis, Pelasgiotis, and Hestiaeotis. Hence it came about that men who commanded some part were called τετράρχαι. Thus Antipas and Philip were appointed Tetrarchs by Augustus. Josephus, book 17, chapter 18. It is established from Hirtius, On the Alexandrian War, that there were several Tetrarchs of Gallograecia.
§ 17. This above all was wisely established: after Consuls and Praetors had been designated, and before they entered their Magistracy, provinces were to be decreed to them, which the designees either arranged among themselves or obtained by lot. In this way, before entering their Magistracy, they knew over whom they were to command abroad, and from their Consulship or Praetorship the provincials also judged the morals of their future Governor. In the time of the Emperors, when Governors were sent at the judgment of one man, this could not be observed.
But enough has been said concerning these matters. I repeat this one thing, and repeat it again: provincial Magistrates must be visited frequently and their actions examined; otherwise they will become worse through the power itself.
§ 18. In the time of Augustus men were also called Proconsuls in another manner. For those whom he sent with command into the pacified provinces, the care of which he had committed to the Senate, he also called Proconsuls. Dio says: “Augustus ordered the Prefectures to be annual unless someone possessed a privilege by reason of a multitude of children or of marriage; he ordered that they be sent by the common counsel of the Senate, neither girded with a sword nor employing military dress. He wished them to be called Proconsuls—not only those two Consulars but also the remaining Praetorians, or men who held the place of Praetorians—and that both should be attended by as many Lictors as the laws permitted them to possess in the city; that they should assume the insignia of command as soon as they came outside the pomerium, and retain them until their return to the city.”
And afterwards: “The Senate granted Africa and Asia separately to Consulars and assigned the remaining provinces to Praetorians. It equally forbade both to obtain provinces by lot before the fifth year after discharging a Magistracy in the city. Thus it happened that, although their number was greater than that of the provinces, command nevertheless eventually reached all. But after the time of Caesar Octavian, when some of them had administered their Magistracy badly, these provinces too were annexed to the Emperor, and so in some fashion he assigned even these provinces to them. Moreover, they also selected certain Legates or Assessors for themselves, whose counsel they employed in the administration of the province. A Praetorian took one from men of his own or an inferior order; a Consular took three from men of the same dignity, all approved by the Emperor himself. This too was established generally concerning the power over all provinces: they were to conduct no levy of soldiers; exact no money beyond that which had been established without command of the Senate or Emperor; and, when a Successor had been sent, depart from the province immediately, spending no time on the return journey but returning to Rome within three months.”
§ 19. The retinue was large and costly and exceedingly burdensome to the state. There were the Quaestor, Legates, Tribunes, Centurions, and, in addition to the military officers, attendants, Lictors, and the whole cohort of friends. Alexander Severus and others established a limit; for the Senate decreed such great expenses for Magistrates for no other reason than that public resources might in this manner be poured out upon patricians. A limit was therefore deservedly established.
§ 20. Augustus sent Proconsuls into the provinces without the military belt and military jurisdiction. This was gradually abandoned, for it produced several disadvantages, and much more so when in the same province there were two Magistrates, one wearing the toga and the other the military cloak, and there was no sufficiently exact method of keeping them in their office. Justinian therefore joined both powers. Novel 21, chapter 1: “These things moved us to make this Magistracy also united, as we did among the Pisidians, and to impose upon it the designation ‘Praetor’ together with our name. For we will that this man too be called the Justinianic Praetor of Lycaonia, just as the Praetor of Pisidia and of others. Next we also draw both cohorts together into one—the one over which the civil Magistrate presided and the one over which the military Magistrate presided—and call it Praetorian. It is to be constituted from approved men proceeding in the customary manner from the sacred bureau of petitions, from which the Duciani formerly also drew them; we extend its measure to the number of one hundred men, and assign to it the allowances of both Magistrates, but to the Assessor and the others—”
Accordingly he placed over Pisidia a governor whom he called both Governor and Praetor, with proconsular command. Then, with the same intention, he gave Lycaonia a Praetor, Novel 25, drawing two Magistrates into one and tempering the two together, as he himself says. In Novel 26 he declares that he did this in many places, and did so because of dissension. Kings must weigh very carefully the words which moved Justinian. He says: “We all know that two men with the name of Vicars sit at the Long Wall. One of them governs the military cohorts, for there is a great force of soldiers in that place; the other is Prefect over civil business. But although both discharge the functions of others there—the one of the most glorious Prefects, the other of the high-minded Masters of the Soldiers—they nevertheless never agree with one another. Although the fisc furnishes each separately with his allowances and provides other salaries, they nonetheless perpetually and without interruption take up this one business for themselves: that they exercise immortal contentions with one another. It therefore seemed right and orderly to us to do here also what we did among other nations, although they were not so savage and did not need such military protection: not to have the one preside over civil business while the other commands among the soldiers alone, but to draw both offices into one and place over that locality some grave Magistrate worthy of reverence, who should equally care for civil business there and be solicitous for the handsome and becoming order of the soldiers. For the man who governs the province moves about in other places and is scarcely sufficient for them.”
The same law was pronounced concerning the Praetor of Sicily, Novel 104: “Let Sicily possess a Praetor who shall both conduct civil affairs and bear the care of military expenditure; public tributes, however, do not pertain to his solicitude.”