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of civil war, put into the hands of Octavius, after his victory at Actium, the right of appointing to public offices.
The accession of Augustus to the empire was signalized by the creation of many new offices : lieutenants and attorneys of the emperor, legati et procuratores Cæsaris, prefect of the city, præfectus urbi, prefects of the pretors, quæstores candidati principis, præfectus annonum, and even præfectus vigilum, a sort of Dogberrys of the watch.
Augustus was employed during the whole of his reignwhich was a period of transition—in reforms, aptly conceived and well executed, and he left the people in the enjoyment of their right to nominate to public office.
Tiberius suppressed the comites, and made all the appointments himself, and in place of election gave the new officers certificates, codicilli imperiales or diplomata—a word with a meaning given it by Seneca: “Video isthic diplomata, vacua honorum simulacra, umbram quamdam ambitionis laborantis quæ decipiat animos inanium opinione gaudentes; humanæ cupiditatis extra naturam quæsita nomina; in quibus nihil est quod subjici oculis."
The word suffragium began then to be used, and it meant originally the money given to obtain public office. There were two sorts of suffragia—those received by the courtiers, the other by the emperors themselves. “Privatum scilicet suffragium, quod suffragatoribus aulicis dabatur; et dominicum suffragiurn quod imperialibus rationibus inferebatur" (Nov. 161). According to Suetonius, Vespasian made no scruple about accepting, and even requiring, small sums from those who solicited him for offices.
Suffrage did not, perhaps, mean the price of the office, but it did as much harm as if it had been an avowed sale for a stipulated sum.
The new officer was not warm in his place, before he did his best to get back all his outlays, and hence, particularly in the case of governors of provinces, who were least under restraint, exactions without number. “ Provincias spoliari et numerarium tribunal, audita utrinque licitatione, alteri addici, mirum non est, quia quæ emeris vendere jus gentium est." What Seneca thus describes, became in the reign of Heliogab
alus so public, that the judges' places were sold openly to the highest bidder.
Alexander Severus announced, on his accessión, his intention to repress this disorder: “ Necesse est ut qui emit vendat, at ego non patiar mercatores potestatum quos, si patiar, punire non possum ; erubesco enim punire qui emit et vendit;" and his efforts were partially successful, but brief as his reign. Constantine vainly forbade his courtiers to accept presents from those who solicited office under him (Cod. Theod., De muner. et honor. l. ad hon. Cod. Just., De præfect. Dignitate 1. Unica). Julian, the Apostate, refused a suitor who wanted to recover the moneys so paid, and Theodosius made a law to enforce contracts of this kind, certi conditio pro sut: fragio (Amm. Marcellin., lib. 22: Cod. Theod. 1. 1, si certum pet. de suffragio). Zozimus says that this prince created new offices, which he sold for cash, although it is known that he forbade raising contributions from those who aspired to become governors of the provinces, under a fourfold penalty. “ Ad ejusmodi honoris insignia non ambitione vel pretio sed probatæ vitæ testimonio accedendum esse.” To enforce this wise measure, the emperor prescribed for them an oath that they had not given and would not give any thing as an inducement, neque se dedisse quicquam, neque daturo postinodum fore, sive per se, sive per interpositam personam, in fraudem legis sacramentique, aut venditionis donationisque titulo, aut alio velament ocujusmodo contractùs ” (Code Ad. leg., Jul. Repet. l. ult.). This oath has in substance served even in modern times, at least, as a proof of the good intentions of the law-makers.
But while it is easy to modify the laws, it is difficult to improve the morals of a nation. In spite of these prohibitions, the traffic in public offices kept steadily on its downward progress. Eutropius is called by Claudian, caupo famosus honorum;" and Justinian repeated the prohibition against the sale of judicial offices in terms that are worth weighing. (Nov. 8, Præf. s. 1.) Unfortunately this praiseworthy effort failed too, and the history of the eastern empire is full of edicts vigorously, but vainly, denouncing the violations of the law, and only serving to show more effectively the practice. It spread
too, beyond the precincts of the court. Just as the people had lost the power of choosing their own officers, which were bought by courtiers of the emperors, so the officers of various grades sold their subordinate places, and even the municipal offices were sold for the price of the expenses of the public games, or for a round sum paid into the treasury. In Rome the senators were rated at a fixed amount called the aurum oblatitium, and the consuls, under Valentinian and Zeno, were obliged to contribute a certain share of the repairs of the aqueducts. The new officers were obliged, too, to pay something to their older colleagues, called sportulæ, “Qui magistratum ineunt solent totumn Bulen vocare vel binos denarios singulis dare” (Plin., lib. x. Epist.).
Still there was always a clearly-defined understanding that these payments were gifts, elegantly described by Trojan as honoraria, to the people or the emperor, in return for the distinction conferred, and not the price of the office itself.
No officer could stipulate for a round sum as a condition of yielding to his successor, nor did his place pass upon his death, as of right, to his heirs. These two distinguishing qualities, the sale, and the inheritance of offices, even in this time of Roman decline, were found only in that class of officers known as militia. The Emperor Constantine celebrated his accession by multiplying the dignities and creating officers for his new position. There were already places filled by nobilissimi, illustres, spectabiles, clarissimi, perfectissimi, and egregii; to these were added cubicularii, castrensiani, ministeriani, silentiarii, all under the common naine of palatini.
It was at this time too, that militia became the general designation for all holding public place. The thirty-fifth and fifty-third Novellæ, the three last books of the Code, and the Commentaries of Lazius Reip. Rom., show that at first the name was limited to the officers of the household of the emperor. It was soon extended, first to the subaltern officers employed by the governors of the provinces, and finally to all civil employments, and particularly that of advocates.
There were two classes, the militia armata and the militia civilis; the latter was subdivided into militia palatina, militia togata seu forensis, and militia literata, corresponding to the
household, the huntsman, falconers, and other personal officers of the emperor in the first class, the jurisconsults and lawyers in the second, and the secretaries of the emperor in the third.
The militia were formed into corporations or scholæ, divided into different companies, each with its head, not unlike the distribution in our departments. At first the right of nomination belonged to the chief of each class; this magister officiorum is called, by Cassiodorus, “gloriosus donator aulici consistorii, quasi alter Lucifer." Afterward, the emperor himself made the appointments by letters called probatoriæ, and in Greek ooKiyaola, which were duly registered. At first, too, these appointments were purely gratuitous; but gradually from being given to the officers as a gift for the benefit of widows and children, the officers got the right to dispose of them for their own private profit.
Hence arose the distinction of offices that were sala ble and hereditary, and those that were still in the gift of the emperor. Even the former, however, were dependent on the act of the emperor for their recognition, for he was still the source of all power, a quo ut a sole radii omnes exeunt dignitates."
The legislation on this subject is found in the Institutes, 1. xxvii., Cod. de pign. et hyp., and 1. xi., Cod. de prox. sacr. ; and in the Novellæ 46, c. 4, and 53, c. 5; and in the L. 102, 8. 2, and 3, Dig. de legat. 3.
The learning bestowed on it is scattered over many works, and makes an essential part of all the treatises on sales, as distinct as any other branch.
The elements essential to such a contract were three, consensus, res, and pretium. The last could not exceed a suin fixed either by the society to which the office belonged, or by the emperor. The security for it was not unlike that of our own purchase-money mortgage; and gave rise to nearly as much discussion.
The relations of creditors, wife's dower, rights of minors, and the conditions made in the construction of the contracts of sale, were all elaborated, and the treatises written on them, as well as the efforts made to secure by law, first one right and then another, are still occasionally referred to in the French courts. The gifts inter vivos, and the right to make testa
mentary disposition of offices, were all fully admitted, and the Lex. 102, s. 3, de legatis 3, makes the following decision : " Testator liberto militiam his verbis legavit : Seio liberto meo militiam do lego illam: quam militiam et testator habuit. Quæsitum est an onera omnia et introitus militiæ ab herede sint danda; respondit danda.”
There was also the hereditary transmission of offices, at first limited to children or direct descendants as the objects, along with the father, of the bounty of the emperor who gave the office: “Hoc habeant non tamquam paternam hereditatem sed tanquam inperialem munificentiam; ut et substantiam relinquentibus et non habentibus, merito solatium proebeamus" (Nov. 53, c. 5).
The office itself came to the son, if there was one who could fill it, or was sold for the benefit of all the children; in either case, the new incumbent was obliged to pay the onus or introitus militiæ, an entrance fee fixed by statute, and due to the chief of the department, or to the corporation of which he was the head; or, in some cases, to the supernumerarii, those who were promised the next vacancy, a body regularly organized by the wisdom of an emperor, “ Instituit imperator Claudius imaginariæ militiæ genus, quod vocatur supernumerum, quo absentes titulo tenus fungerentur.”
Even where the office was sold for the benefit of the heirs, the purchaser had to pay to the family a round sum, called casus militiæ, which was also known as suffragium, solatium, and scholæ placitum : the first, because it required a vote of the corporation to which the office belonged; the second, because it was a consolation to the heirs for the death of their father, from whom the office descended to them; and the third, because it was regulated “pro tenore communis militantium placiti."
The limitation of this right of inheritance was of pretorian origin, and lost its primitive character under the later emperors. The “collatio bonorum” was extended to brothers and sisters, subject to a right to limit it by express words, and to a cloud of questions as to whether it meant the price given, or the assessed value; and whether it was the value at the time of the death of the donee or the donor, on all of