Cardinal Stefan Wyszyński University in Warsaw
Faculty of Law and Administration
The Roman Censors as Protectors of Public Places*
Sommari0: 1.
Introduction.
– 2. Competencies concerning the use of public water.
– 3. Competencies concerning constructions built in public
places. – 4. Delimiting public
and private space. – 5. Conclusions.
– Abstract.
1. – Introduction
When describing the competencies of censors, Livy stated
that their duties included deciding on ius
publicorum privatorumque locorum[1], that is, on law concerning public and
private places. Within these duties the censors could conclude contracts on
raising new buildings and on renovating and reconstructing the existing ones.
Censors were also responsible for protecting the public places. It should be
considered what their authority consisted of and what legal measures they could
apply.
2. – Competencies concerning
the use of public water
Some information related to the discussed
issue can be found in the sources describing the censorship of Cato, who had
been appointed to the office in 184 B.C. together with L. Valerius Flaccus[2].
Liv.
39.44.4: aquam publicam omnem in privatum aedificium aut agrum fluentem ademerunt;
et quae in loca publica inaedificata immolitave privati habebant, intra dies
triginta demoliti sunt.
The text by Livy covers two different
problems: the use of public water and building in public places. Both these
issues must be discussed, because they concern the censors’ competencies
related to the ius publicorum
privatorumque locorum.
According to the historian, the censors
cut off the supply of public water to private buildings and fields. It was an
action concerning the cura aquarum.
Writing about public water, Livy probably had the aqueducts on mind. Supplying
water from them to private estates required special permits.
Front., De
aquaed. 2.94-95: Apud antiquos omnis aqua in usus publicos
eroga<ba>tur et cautum ita fuit: ‘ne quis privatus aliam ducit<o>,
quam quae ex lacu humum accidit’ (haec enim sunt verba legis), id est quae ex
lacu abundavit; eam nos caducam vocamus. et haec ipsa non in alium usum quam in
balnearum aut fullonicarum dabatur, eratque vectigalis, statuta mercede quae in
publicum penderetur. Aliquid et in domos principum civitatis dabatur,
concedentibus reliquis. Ad quem autem magistratum ius dandae vendendaeve aquae
pertinuerit in iis ipsis legibus variatur. Interdum enim ab aedilibus, interdum
a censoribus permissum invenio; sed apparet quotiens in re publica censores
erant, ab illis potissimum petitum, cum non erant, aedilium eam potestatem
fuisse.
Frontinus conveyed information concerning
the regulations related to the supply of water and its security. To forefathers
water was for public use, which was expressed in the legal formula preventing
private individuals from drawing other water than that overflowing from the
reservoir[3]. It could be used in bath houses and
dye-works, what, however, was charged with a tax in the fixed amount[4]. Water was also – upon the general
agreement – supplied free of charge to houses of the most prominent citizens.
The magistrates were authorised to donate and sell water. They were censors and
aediles, but the latter had this authority only when there were no censors in
office at that time[5].
The meaning of the term ius dandae vendendaeve aquae should be
discussed. It seems that it means granting concessions[6] for
receiving the aqua caduca, that is
the water overflowing from the reservoir: for principes civitatis, that is the individuals at the top of the
social ladder, it was free-of-charge, whereas for the individuals running
service workshops it was necessary to pay the appropriate tax.
Front., De
aquaed. 2.97: Quanto opere autem curae fuerit ne quis violare ductus
aquamve non concessam derivare auderet, cum ex multis apparere potest, tum et
ex hoc quod Circus Maximus ne diebus quidem ludorum circensium nisi aedilium
aut censorum permissu inrigabatur, quod durasse etiam postquam res ad curatores
transiit sub Augusto, apud Ateium Capitonem legimus. Agri vero, qui aqua publica contra
legem essent inrigati, publicabantur.
According to Frontinus, it was very
important that nobody interfered the flow of water and dared to draw it without
permission. How important it was could prove the fact that the Circus Maximus
was supplied with water only upon prior consent of the aediles[7] or the censors, even at the days of
games. The requirement to obtain consent concerned not only the private individuals,
but also the magistrates who organised the games[8]. Later, this rule was still in force,
even when in the age of Augustus the duties of the republican magistracies were
assigned to the curatores aquarum –
here Frontinus referred to the authority of Ateius Capito, who himself
performed this office. The lands irrigated with public water contra legem[9] were subject to seizure[10].
Thus it can be concluded from the text
that they were the censors who granted concessions for drawing water. Here,
however, a question arises regarding the form of granting such permits, which
has not gained a due place in the literature until today. It seems that
initially private individuals could only make the use of aqua caduca, then, however, a possibility appeared to draw water
from the aqueduct itself or from a castellum[11]. It might have taken a form of a right
to draw water – ius aquae hauriendae,
or a right to supply water with appropriate devices, especially pipes (fistulae) – ius aquae ducendae.
The use of the term ius dandae vendendaeve aquae by Frontinus for defining competencies
of the magistrates suggests contractual connotations. A hypothesis can be made
that sales agreements were concluded with individuals who were going to use
public water. However, this raises many doubts due to the existence of a
periodically adjusted payment, not a fixed price. In addition, the object was a
thing of a specific nature, as Frontinus wrote that water was treated as a
thing intended for public use (res in usu
publico)[12]. Also legal protection for purchasers
would be difficult to provide in this case.
Fest. 516
L., s.v. vend<itiones>: Venditiones ... dicebantur censorum
locationes; quod vel<ut fr>uctus locorum publicorum venibant.
According to Festus, the locationes concluded by the censors were
called venditiones, what allows us to
think that ius aquae vendendae did
not consist in sale, but in the conclusion of the locatio censoria[13].
Consideration should be given to the fact
that the rights of individuals using water were defined as iura. Maybe they were property rights of absolute nature and
protected erga omnes.
Front., De
aquaed. 107: Ius impetratae aquae neque heredem neque emptorem neque ullum
novum dominum praediorum sequitur. balneis quae publice lavarent privilegium
antiquitus concedebatur, ut semel data aqua perpetuo maneret.
The report of Frontinus clearly
demonstrates that the nature of the discussed rights was similar to the
servitudes. The right to use water acquired through an application (ius impetratae aquae) was personal and
was not transferrable to a heir, a purchaser or any other new owner of the
land. However, the concessions formerly granted to the public bath houses[14], were permanent, thus inheritable and
negotiable, attached to the property and irrevocable. Therefore it seems that
in the republican period the rights granted by the censors could be connected
with the ownership of land and it was supposedly so when a payable concession
was granted, especially when it concerned a service workshop. It may be
supposed that the concessions for principes
civitatis were personal.
So the censors granted private
individuals various payable and free-of-charge concessions. The law of personal
nature lasted until the death of its holder, however, it could be revoked
earlier by the censor. The right connected with the ownership of the estate
might be even of a perpetual nature, although it could be cancelled for not
paying the rent, change of the purpose of the building or its destruction. Such
decisions were made by the censors.
Presumably the measures of protection
against third parties infringing these rights were granted by the censors
within their jurisdiction. Nonetheless, if the citizen's interest was breached
by the censor – for example if the magistrate wanted to cancel a perpetual
concession – the available legal means of protection was intercessio, in the first place of a colleague performing the same
office, then possibly a plebeian tribune[15], and maybe also an intervention of the
senate.
An open question remains whether the
censors could enforce the punishments mentioned by Frontinus[16], because the author gave only general
information on punishment in the form of publicatio,
that is seizure. It was a criminal sanction. However, no unambiguous answer can
be given based on the text of Frontinus. If granting a concession was in the
censorial competency, it is possible that they also could apply the punishment
of seizure. In such a case, the situation of incensus, whose property was sold through an auction may constitute
a distant point of reference. On the other hand, it need to be borne in mind
that those who did not submit to the census, were punished under the sentence
of the assembly[17]. Therefore it seems possible that a
trial was also held in the case of illegal irrigation of fields, whereas the
auction of the property itself could be conducted by the censor.
The ius
dandae vendendaeve aquae was very strictly applied by Cato and his
colleague in office, who – as it is mentioned by Livy – deprived private
individuals of opportunity to use public water.
Plut., Cat. Mai. 19.1:
ἀποκόπτων
μὲν ὀχετοὺς, οἷς
τὸ παραρρέον
δημόσιον ὕδωρ ὑπολαμβάνοντες
ἀπῆγον εἰς οἰκίας
ἰδίας καὶ
κήπους.
Plutarch informs that Cato cut off the pipes
through which water ran into private houses and gardens. The reason for such
interventions should be reconsidered. Cutting the pipes off may mean either
cancellation of the concessions or blocking illegal connection to water. The
last practice – quite frequent – was fought by all the authorised magistrates[18]. Therefore with no doubt the censors
performing their office made sure that nobody could steal water. Yet the quoted
sources show that the actions taken by Cato and his colleague were of an
extraordinary nature – why would anyone mention something that was natural. So
it seems that in this case the censors cancelled the previously granted rights.
However, it should be analysed whether
cancelling concessions concerned the individuals who made use of the public
water for a fee or those principes
civitatis. The attitude of Cato himself may be a very useful hint here, as
he was one of the most notable characters of that time: a man of principle, a
non-conformist, not paying attention to the public. Cancelling the concessions
for the service workshops would not have any economic justification, however,
supplying water to houses of sybaritic nobles might have been regarded by Cato
as indication of the unnecessary luxury. Other decisions of this pair of censors,
such as, for instance, increasing value of the luxury goods and enforcement of
a huge tax on them during census[19], seem to confirm this thesis.
The issue of using public water was also
mentioned in Cato's speech In L. Furium
de aqua[20], delivered during his censorship at a contio. According to Alan Astin, this
speech concerned a fine imposed by a censor for stealing water. From the sparse
fragments preserved in works of the grammarian – Charisius, hardly anything can
be stated for certain.
Charis., Ars
279 (ed. Barwick): atqui Cato in L(ucium) [in] Furium de multa de caro emptis “o quanti
ille agros 'inquit' emit, qua aquam duceret”.
It results clearly from the text that
Furius acquired some land and wanted to supply it with water. The situation can
be reconstructed as follows: the previous owner of the land had a concession,
but a personal one, therefore it was not transferred to Furius. Consequently,
because he used water, Cato made a speech against him, justifying the
imposition of a fine. Even such a strict censor as Cato did not attempt to
procure a seizure of land as Furius was probably convinced that the right was
still current.
3. – Competencies concerning
constructions built in public places
The second part of Livy's record concerns
building in public places. The censors ordered that all what had been built or
expanded in the public places by private individuals, should be destroyed
within thirty days. One should not overlook the fact that the censors could
grant a concession for building in a public place, based on which the builder
made use of the constructed building and paid a rent – solarium[21]. But Cato fought cases of building
without concession.
Plut., Cat.
Mai. 19.1:
ἀνατρέπων δὲ καὶ καταβάλλων ὅσα προὔβαινεν εἰς τὸ δημόσιον οἰκοδομήματα.
Also Plutarch wrote about destroying the
buildings situated on the public land. Therefore it seems that the competencies
of censors were very broad – they could enforce demolition.
This issue may be brought closer by
analysing the case of Rutilius described by Livy and Valerius Maximus.
Liv.
43.16: Saepe id querendo veteres publicani cum impetrare nequissent ab senatu,
ut modum potestati censoriae inponerent, tandem tribunum plebis P. Rutilium, ex
rei privatae contentione iratum censoribus, patronum causae nancti sunt.
Clientem [eius] libertinum parietem in Sacra via adversus aedes publicas
demoliri iusserant, quod publico inaedificatus esset. Appellati a privato tribuni. cum
praeter Rutilium nemo intercederet, censores ad pignera capienda miserunt
multamque pro contione privato dixerunt.
According to Livy in 169 B.C. the censors
Tiberius Gracchus and Claudius Pulcher[22] estranged the equites from them first by performing a very strict review of the
knight centuries and then by issuing an edict preventing the previous
contractors from the auctions of public profits and expenses. When the senate
refused to restrict the censors’ rights, the plebeian tribune P. Rutilius[23] offered his help. He had his personal reasons
for wanting to do some harm to the censors[24], who had ordered his freedman to
demolish the wall, which he had built on via
Sacra, but he supported it on public buildings. The tribunes – except
Rutilius – declined to intervene, so the censors ordered taking pledge (pignoriscapio) and imposed a fine during
contio. This text clearly
demonstrates the competencies of the censors in the area of protection of
public places.
Val. Max.
6.5.3: ...diem iis P. Popilius tribunus pl. perduellionis ad populum dixit,
praeter communem consternationem privata etiam ira accensus, quia necessarium
eius Rutilium ex publico loco parietem demoliri iusserant.
Also Valerius Maximus referred to the
same story, however, he gave other names – the tribune was Popilius and his client
was Rutilius. The quoted fragment with no doubt confirms the Livy's story – the
censors ordered the wall built in the public place to be destroyed, and it also
indicates that the whole case became a willingly told anecdote.
Based on these accounts we can state that
the censors were authorised to order demolitions (demoliri iubere) of buildings or their parts, the wall in this
case, raised in public places, as well
as to take something as security (pignoriscapio)
and impose fines. Each of these competencies requires discussing.
Some hints related to demolitio can be found when analysing
the case of two bandits prowling in Rome, Macellus and Cupedo, mentioned in the
sources[25].
Varr., L.L.
5.146: Haec omnia posteaquam contracta in unum locum quae ad victum pertinebant
et aedificatus locus, appellatum Macellum, ut quidam scribunt, quod ibi fuerit
hortus, alii quod ibi domus furis, cui cognomen fuit Macellus, quae ibi publice
sit diruta, e qua aedificatum hoc quod vocetur ab eo Macellum.
According to Varro, the word Macellum[26] designating a forum, on which the food was sold, derives from a name of a thief,
who had his house in this place. The house was publice demolished, that is, the public services performed this
task, and it was replaced with a marketplace[27].
Fest. 112
L., s.v. macellum: Macellum dictum a Macello quodam, qui exercebat in
Urbe latrocinium; quo damnato censores Aemilius et Fulvius statuerunt, ut in domo
eius obsonia venderentur.
Festus confirms this etymology, however
specifies that Macellus dabbled in latrocinium,
that is, he was not a common thief, but rather a bandit[28]. He adds that the decision to make his
property a place for selling food was made by the censors[29] in 179 B.C.
Donat., Ad
Ter. Eun. 256: Varro Humanarum rerum “Numerius Equitius Cuppes”, inquit,
“et Manius Macellus singulari latrocinio multa loca habuerunt infesta. His in
exsilium actis bona publicata sunt, aedes ubi habitabant dirutae eque ea
pecunia scalae deum Penatium aedificatae sunt. Ubi habitabant, locus, ubi
venirent ea, quae vescendi causa in urbem erant allata. Itaque ab
altero Macellum, ab altero Forum Cuppedinis appellatum”.
A fragment of the Varro's Antiquitates rerum humanarum quoted in a
commentary by Donatus allows us also to state that the bandits went into exile,
and their property was confiscated[30]. The buildings where they had lived were
destroyed and the money gained from the sale of the movable property served for
building the stairs to the Temple of Penates. In the place of the demolished
houses a marketplace was built.
In this case some thoughts need to be
given to the role of censors. Only Festus mentioned their decision, and
according to him the censors decided on the use of bandits’ houses. However,
other sources suggest that the whole story was much more complex. It seems that
latrones were sentenced to exile,
probably by a criminal tribunal[31]. Their property was confiscated. As
public property it had to be in the administration of the censors. Because most
clearly the state made some profit on it, which was dedicated to building the
stairs, an auction had to be made, which concerned rather the movable property
and was conducted by the censors. Thus one of censors' competencies was selling
public property[32]. As of the immovable property, the
censors made a decision whether to demolish the houses and construct macellum. Therefore it must be assumed
that they had right to order demolition of a house or other building located in
the public land. In this case it concerned the seized goods, so the cost of
demolition was borne by the state treasury. Also the reason for such a
demolition is of major importance. Matthew Roller is convinced that in this way
a memory of the condemned individual was deleted[33].
What about demolitio in disputable cases, where a private individual had built
something on the public land, as it was in the case of Rutilius’ freedman?
Raising anything in someone else’s area (inaedificatio) caused that the building
became – according to the principle of superficies
solo cedit – the property of the land owner, in this case of populus Romanus[34]. Thus a question arises, whether the
consors imposed the obligation to destroy the building on a private individual
or on appropriate public services. In the sources the term demoliri iusserant[35] appears, what seems to indicate that a privatus was charged with this
obligation[36]. From the text by Livy it can be deduced
that some deadline was assigned to a citizen for demolition – the source
referring to Cato's censorship mentions thirty days.
As a security the censors could also
conduct a pignoriscapio[37], that is, take a pledge. It was an
autonomous measure, which the magistrate could exercise under coërcitio, to which he was authorised[38]. The censors made use of it, especially
in order to ensure protection of public places.
The right to impose fines (ius multae dictionis) was extended to
all the magistrates[39] by lex
Aternia Tarpeia of 454 and lex
Menenia Sestia de multa et sacramento of 452 B.C.[40]. It should be assumed that these
regulations covered also the censors, who were first appointed probably in 443
B.C.[41].
From Cicero's statement it may be assumed
that from the most ancient times the censors had the right to impose fines. In
430 B.C. L. Papirius and P. Pinarius[42] took cattle from citizens as a form of a
fine. Probably these were punishments for pasturing the animals on ager publicus without a concession[43]. In connection with these incidents,
under lex Iulia Papiria[44], the amounts to be taken by the
magistrates as penalties were established. A fine, regarded by Gellius as the
highest one (suprema), amounted to
3020 ases (30 oxen and 2 sheep), and the lowest one (minima) – 10 ases (1 sheep)[45].
If an object located in the public place
was not permanently fixed to the ground, the censors ordered it to be removed.
Plin. Mai.
34.30-31: L. Piso prodidit M. Aemilio C. Popilio iterum cos. a censoribus P.
Cornelio Scipione M. Popilio statuas circa forum eorum, qui magistratum gesserant,
sublatas omnes praeter eas, quae populi aut senatus sententia statutae essent,
eam vero, quam apud aedem Telluris statuisset sibi Sp. Cassius, qui regnum
adfectaverat, etiam conflatam a censoribus. nimirum in ea quoque re ambitionem
providebant illi viri. exstant Catonis in censura vociferationes mulieribus
statuas Romanis in provinciis poni; nec tamen potuit inhibere, quo minus Romae
quoque ponerentur, sicuti Corneliae Gracchorum matri, quae fuit Africani
prioris filia. sedens huic posita soleisque sine ammento insignis in Metelli
publica porticu, quae statua nunc est in Octavia operibus.
Pliny[46] informed that in 158 B.C.[47] the censors Scipio and Popillius removed
the statues of those who performed magistracies from the forum, except those
who had been raised by the decision of the people or senate. A statue, which
Sp. Cassius, later sentenced to exile for attempting to introduce monarchy (adfectatio regni)[48], had erected for himself nearby the
Temple of Tellus, was even smelted. Pliny also mentioned Cato’s speeches
delivered during his censorship[49], in which the politician reproved
raising statues of women in the provinces. He could not even manage to prevent
them from being raised in Rome, where the statue of Cornelia, mother of the
Gracchi, was placed[50]. This last example concerns a very
famous woman, even a mother's topos.
Nonetheless, the statues could generally
be raised in the public places only with consent of the people or senate[51]. Otherwise this constituted a breach of locus publicus and the censors were
authorised to remove such objects. The text suggests that such a request was
not addressed to the founders. For certain it was done on behalf of the censors
by the auxiliary officials, probably viatores,
using servi publici. However, it does
not seem that the statues were confiscated. Maybe they were taken back and
placed in the owner's estate, although in such a case the cost of removal had
to be covered. Nevertheless, the case of Sp. Cassius was different. His
property had been seized[52], his house had been destroyed and the
Temple of Tellus[53] was built in the same place. However,
the statue probably remained. Because it was a public property, the censors
could smelt it, and they could do so especially due to another fact - the
statue presented a man sentenced for perduellio,
whose memory should have been erased.
The reason for censors' intervention in
such cases was not only a need to watch over public places, but also performing
regimen morum, because in this manner
they hindered excessive ambitio.
Non.
548.24-26 L., s.v. moliri: L. Cassius Hemina lib. II de censoribus: et
in area in Capitolio signa quae erant demolivit.
Nonius preserved a fragment of work by L.
Cassius Hemina titled De censoribus[54], in which the author wrote that a censor
removed signa from the temple in the
Capitol. In this case the sacred place was protected, from which the censor,
presumably also in order to curb the pride of the citizens, removed the signa, which was placed there without a permit.
But the major question remains: What were these signa[55]? It seems that they might be statues,
apparently votive ones, which represented their founders, thus they reminded
about them as well. Other possibility is that the military signs or spoils left
by the victorious leaders during their triumph could also be understood as an
expression of their excessive ambitio.
Liv.
40.51.3: aedem Iovis in Capitolio columnasque circa poliendas albo locavit, et
ab his columnis, quae incommode obposita videbantur, signa amovit clipeaque de
columnis et signa militaria adfixa omnis generis dempsit.
Censor Lepidus made a contract on
whitening the columns in the Temple of Jupiter and he removed from them the signa, such as the shields and signa militaria. Now Livy distinguished signa and signa militaria, but probably both things were related to the army.
Maybe the first ones were the spoils reminding of a victory[56].
4. – Delimiting public and
private space
The censors' competencies connected with cura locorum publicorum were the subject
of another part of the same fragment of Livy's work.
Liv.
40.51.8: complura sacella publicaque loca, occupata a privatis, publica
sacraque ut essent paterentque populo curarunt.
In 179 B.C. the censors M. Aemilius
Lepidus and M. Fulvius Nobilior made sure that the chapels[57] and other public places occupied by
private individuals became loca publica, and loca sacra, that is, the publicly sacred places[58], and that they were open to people.
Thus, we can conclude that the duties of censors included recovering original
status of public places, which had been occupied or access to which had been
restricted by a private individual[59].
CIL
I(2a).2.766: M. Valerius M. f. M’. n. Messal(la), P. Serveilius C. f. Isauricus
cens(ores) (e)x s(enatus) c(onsulto) termin(arunt).
As the inscription clearly shows, the
censors could also mark borders between the public land and private estates.
Their duty was also to put the boundary stones at the Tiber. Several inscriptions
found on stones at the banks of Tiber[60] attest the terminatio by the censors of 54 B.C.[61].
CIL
VI.919: [Ti. Claudius Caes. Augustus L. Vitellius P. f. ex] s.c. [ce]nsores
[l]oca a pilis et columnis, quae a privatis possidebantur, causa cognita ex
forma in publicum restituerunt.
This inscription shows that during the
censorship of the emperor Claudius and Vitellius a dispute concerning ownership
of the public places, which were possessed by private individuals[62], arouse. The censors, acting according
to a resolution of the senate[63], recovered the places in publicum[64]. The term causa cognita seems interesting here. Maybe the censors issued an
edict in this case, under which they conducted causae cognitio in each case and made the suitable decision. It is
very probable that in such cases the censors announced the intended actions in an edict and set out
a deadline, when they were to make a cognitio,
in order to give the possessors a chance to prove their rights to the property,
by indicating a concession.
5. – Conclusions
The censors cared for public places using
which required their permission. Such concessions could have a nature of either
property or personal rights, so they could be perpetual or time-limited. Typically
they also were payable, although it occurred that they were granted
gratuitously to people in highest level of the social hierarchy (principes civitatis). The censors could
also cancel concessions and react in cases of usurpation. They guarded borders
between public and private locations, were competent in matters connected with
use of public location without concession and within this competency they could
exercise means of coercion which included imposing fines, taking pledge and
ordering demolition.
The competencies of censors were very
wide. However a drawback of this magistracy was certainly its non-permanency.
That is why their duties had to be fulfilled by other magistrates, in this case
especially the aediles, when there were no censors in office. This, in turn,
could cause lack of continuity of the decision-making process and uncertainty
of the citizens.
Abstract
La tutela dei luoghi pubblici da parte dei
censori consisteva nella possibilità di dare
oppure togliere concessioni per il loro uso nonché di intervenire nei casi dell’esercizio
illegale ed occupazione di questi luoghi. Le competenze dei censori contenevano
il diritto di applicare una multa, di sequestrare delle cose e di ordinare
demolizioni.