Prorogatio

In his study of the praetorship in the Republic, T. Corey Brennan has argued that originally prorogation was of two types, granted either by the Roman People or by the Senate: a prorogatio was put to a vote by the People (rogare) to determine whether a provincial command should be extended; propagatio was an extension by the Senate in other cases. By the mid-2nd century BCE, the Senate had usurped the People's power, and eventually all extensions of imperium were called prorogatio.[3] After the 190s BC, when the Senate no longer submitted its decisions on extending commands to a popular vote, the term prorogatio becomes a technical misnomer, since no rogatio (legislative bill) was involved.[4]

As Rome annexed more territories, its mechanisms of government had to evolve. A provincia was originally a task assigned to an official, the sphere of responsibility within which he was authorized to act, which might be specified geographically; when such territories were formally annexed,[5] the fixed geographical entity was a "province." In the Early and Middle Republic, the "task" was most often a military command within a defined theater of operations, the physical borders of which were regularly transgressed. The English term "governor"[6] is used to encompass several Roman titles as they pertained to provincial assignments, including consul, praetor, dictator, pro consule, pro praetore and “promagistrate.” A Roman governor had the right, and was normally expected, to remain in his province until his successor arrived, even when he had not been prorogued. According to the Lex Cornelia de maiestate, a governor was then required to give up his province within 30 days.[7] A prorogued magistrate could not exercise his imperium within Rome.[8]

Prorogatio has been characterized by modern scholars as a "dodge"[9] or a "legal fiction"[10] for maintaining the illusion that imperium was a property of the office and not the individual. In the Late Republic, the prorogatio imperii for supposed military crises provided one precedent for the legal maneuvering that permitted the multiple and sequential consulships of Gaius Marius in the context of the Cimbrian War,[11] as later when constitutional mechanisms were sought for consolidating the powers that created Augustus.[12]

The nature of promagisterial imperium is complicated by its relation to the celebrating of a triumph as awarded by the senate. Before a commander could enter the city limits (pomerium) for his triumph, he had to lay aside arms formally and ritually, that is, he had to reenter society as a civilian.[13] There are several early instances, however, of a commander celebrating a triumph during his two- or three-year term; it is possible that the triumph was held at the completion of his consulship (more rarely a praetorship) and before he returned to the field with prorogued imperium.[14]

In the Early Republic, only three magistrates — the two consuls and the sole praetor — held imperium. At first, the appointment of dictatores and magistri equitum filled the need for additional military commanders.[15] The first recorded prorogation was that of the consul Q. Publilius Philo in 327 BC. Philo was in the middle of a siege of Naples when his term in office was due to expire. The Senate decided that it was imprudent to recall him; instead, the tribunes of the plebs were to propose that "on the expiration of his consulship he conduct the campaign pro consule (in place of a consul) until the war was concluded." The first prorogation thus was brought before the People's Assembly for a vote (rogatio).[16]

During the Second and Third Samnite Wars (326–290 BC), prorogation became a regular administrative practice that allowed continuity of military command without violating the principle of annual magistracies, or increasing the number of magistrates who held imperium.[17] In 307, Q. Fabius Maximus Rullianus became the second magistrate to have his command prorogued.[18] But in the years 296–295, several prorogations are recorded at once, including four promagistrates who were granted imperium while they were private citizens (privati). Territorial expansion and increasing militarization drove a recognition that the "emergencies" had become a continual state of affairs, and a regular system of allotting commands developed.[19] Because the promagistracies, like the dictatorship, originated as special military commands, they may at first have been limited in practice to about six months, or the length of the campaigning season.[20]

Commanders were often prorogued during the First Punic War (264–241 BC). By the end of this long conflict, a second praetor had been added to the three magistrates holding imperium. The new office was the praetor qui inter peregrinos ius dicit ("praetor who administers justice among foreigners"). Brennan has argued that the purpose of this new office was not, as is often thought, to administer justice to foreigners living in Rome, but inter peregrinos in the provinces as the situation seemed to require. When the peregrine praetor was abroad with a military command, the urban praetor could remain in Rome to avoid suspending public and judicial business. The praetor urbanus, however, might also go abroad to take on a military command if the situation seemed to warrant it. During the 220s and 210s, the praetor peregrinus is found most often in northern Italy, fighting without much success against various Gallic polities.[21]

An increase in the number of praetors during this period is linked to the annexation of territories as "provinces" in the modern sense of a geographical region organized under formal administration. In 228–227 BC, two new praetorships were created and assigned to Rome's first administrative provinces, Sicily (Sicilia) and Sardinia (Corsica et Sardinia).[22] In 197 BC, two more praetorships were created along with the administrative provinces of Hispania Citerior and Hispania Ulterior, bringing the number to six.[23]

While modern scholars often suppose that prorogation was intended originally to ensure that an experienced commander with hands-on knowledge of the local situation could conclude a successful campaign, in practice the extension of command was subject to "unsteady ad-hoc politics."[24] During the Second Punic War (218–201 BC), commands were also prorogued out of necessity, because so many of Rome's ruling elite had died in the conflict; prorogation became almost the norm for the provinciae of Sicily, Sardinia, Hispania (as a military command prior to annexation), and the naval fleets.[25] As consul in 218 BC, P. Cornelius Scipio was assigned to Spain, and had his command prorogued through 211, when he was killed and his army defeated by Carthaginian forces. It was under these pressures that private citizens (privati) were granted imperium. Precedent was established in 210 when a vote by the assembly gave Scipio's son, later to be known as Africanus, a long-term command pro consule in Spain, although he was privatus; his second-in-command acted pro praetore. Scipio did not return to Rome until 206, and proconsuls continued to be appointed specifically for Spain after that.[26]

In the 2nd century BC, proconsular imperium had ceased to be granted by the popular assembly; the now-fictional prorogatio was justified by military emergencies as decided by the Senate. "Unusual political influence" was required for prorogations of longer than one year.[27] The Lex Baebia of 181 BC, which cracked down on electoral bribery, was accompanied by an attempt to regulate prorogation in relation to the praetorship. Advancement through the political career track had not been regularized before the 190s; the consulship and praetorship might be held in either order, without prerequisites. A law dating around 196 BC began to require that candidates for the consulship first serve as praetors, now numbering six. Competition for the praetorship became fierce, and campaign corruption (ambitus) virulent. The Lex Baebia et Cornelia of 181 devised a complicated system aimed at limiting the number of ex-praetors vying for the consulship. In the sortition for provinciae, the two Spains were to be left out in odd-numbered years, and only four praetorships would be available in those years. In effect, a provincial appointment in Spain meant automatic prorogation, resulting in a two-year term — and sometimes a shortage of administrators for other provinces that in turn required further prorogation. Six praetors become the norm again in the mid-170s, with administrative needs prioritized over the moral issues.[28]

Prorogation takes on a new importance with the annexation of Macedonia and the Roman province of Africa in 146 BC. The number of praetors was not increased even though the two new territories were organized as praetorian provinces. For the first time since the 170s, it became impossible for sitting magistrates to govern all the permanent praetorian provinciae, which now numbered eight.[29] This point marks the beginning of the era of the so-called "Roman governor," a post for which there is no single word in the Republic. Prorogation became fully institutionalized, and even the praetor urbanus was sometimes prorogued. Governors who received established territorial provinces could expect longer tenures.[30] The addition of the wealthy Asian province in 133 BC as a bequest of Attalus III put further pressure on the system, again without increasing the number of praetorships:

The Senate evidently placed a premium on controlling competition for the consulship, and chose to neglect the rapidly accelerating erosion of a fundamental Republican constitutional principle — the annual magistracy — as well as to ignore the added inconvenience to commanders and possible danger to provincials. … The members of the Senate had lost serious interest in maintaining a working administrative scheme for Rome's growing empire.[31]

In one major administrative development for which the career of Marius offers the clearest evidence, praetors now needed to remain in Rome to preside over increased activity in the criminal courts, often occasioned by prosecutions for extortion in the provinces or electoral corruption,[32] and only after their term were praetors regularly assigned to a province as proconsul or propraetor.[33] The scale of Roman military commitments in annexed territories during the Late Republic required regular prorogation, since the number of magistrates and ex-magistrates who were both able commanders and willing to accept provincial governorships did not increase proportionally. The holding of imperium thus depended less and less on elected office, detaching power further from its foundation in the People. "In the era 122–91," Brennan notes, "the Senate used prorogation as a panacea for its ailing administrative system." Emergency grants of imperium in the field during the Social War (91–87 BC) made the granting of extra-magisterial command seem routine. When Sulla assumed the dictatorship in late 82 BC, the territorial provinces alone numbered ten, with possibly six permanent courts to be presided over in the city.[34]

Prorogations of three years were not uncommon during this period, and the Senate begins to assign commands predetermined at three years or more in length.[35] C. Valerius Flaccus held various combinations of provincial assignments on the Iberian peninsula and in Gaul for more than a decade (92–81 BC), without any indication that he ever returned to Rome or was without a command. On more than one occasion,[36] Pompeius Magnus ("Pompey the Great") received imperium pro consule before he ever held a magistracy — at first from the Senate, then by vote of the People, the latter perhaps indicative of the revival of popularist politics. Given the extended prorogations, the five-year proconsular commands assigned to Julius Caesar in Gaul and Marcus Crassus in Syria are less exceptional than they have sometimes been regarded; it could be argued that the five-year appointment was a realistic assessment of the time required to accomplish the task, and avoided the uncertainty, delays, and political jockeying of year-by-year prorogation.

Although competition for remunerative provinces, especially Asia, might be fierce,[37] provinces that offered more administrative headaches than kickbacks were regarded as drudge duty. Cicero indicated his lack of enthusiasm for provincial governing when he repeatedly wrote to friends asking them to make sure that his proconsulship in Cilicia (51–50 BC) would not be prorogued.[38]

The titles "proconsul" and "propraetor" are not used by Livy or literary sources of the Republican era.[39] Pompey's status as privatus cum imperio established a precedent that was resorted to during attempts at carrying on a republican form of government in 43 BC, following Caesar's assassination, as evidenced in particular by the commands of Marcus Brutus, Cassius Longinus, Sextus Pompeius, and most fatefully Octavian.[40]

• Brennan, T. Corey. The Praetorship in the Roman Republic. Oxford University Press, 2000. Limited preview online.
• Lintott, Andrew. The Constitution of the Roman Republic. Oxford University Press, 1999. Limited preview online.
• Pittenger, Miriam R. Pelikan. Contested Triumphs: Politics, Pageantry, and Performance in Livy's Republican Rome. University of California Press, 2009. Limited preview online.

• Royal prerogative, a later medieval derivation and evolution of the term as method(s) of governance