Abstract
The censors had wide-ranging powers related to the performance of public tasks. They concluded contracts (locationes censoriae) for the erection and repair of public buildings, as well as the collection of public revenues. The position of the contractors was weaker, but they were able to obtain assistance from the senate and sometimes from the plebeian tribunes. The tasks of the censors required the acquisition of land. This was done by purchase (emptio in publicum). It is not known whether the censors used coercive measures, but it seems that they rather conducted negotiations. They then carried out a publicatio, i.e. the granting of public status to the property.
The implementation of public works, as well as the collection of state revenues were fundamental elements of public life in the Roman Republic. The activities were carried out by private entities with which the state, or rather the populus Romanus, concluded contracts.1 The Senate supervised the entire policy, but it was the censors2 who were entrusted with determining the terms of contracts, as well as concluding and executing them. It is uncertain when the censors acquired this competence, but it seems that – since the second pair of censors approved the construction, that is, performed the probatio Villae Publicae – these magistrates could have been responsible for this task from the beginning.3
When describing the principles governing the system of the Roman Republic, Polybius dealt in detail with the powers of the Senate. In that connection, he also wrote about the role of locationes censoriae,4 and listed contracts concerning the construction and renovation of public buildings, as well as the collection of taxes for the use of navigable rivers, ports, gardens, mines, and public land. According to the Greek historian, almost the entire society was involved in these contracts, in one way or another: some citizens as contractors, others as their partners, others as guarantors providing a personal or material collateral.
The work of Polybius gives an idea of the scale of these projects and allows one to appreciate their importance for the state treasury. The system led to forming publicans' companies (societates publicanorum) by the members of the equestrian order,5 because such a collective entity could more easily bear the burden of fulfilling the contract than a single citizen. This, in turn, allowed the equites to attain, firstly, wealth and, secondly, political importance, for example in the form of participation in permanent criminal tribunals (quaestiones perpetuae). On the other hand, however, these companies were focused on making profits, in which they had basically no restrictions. This led, for example, to developing robbery policies in the provinces, which were dramatically impoverished during the decline of the Republic.
The censors concluded, on behalf of the Roman people,6 various types of contracts generally called locationes censoriae,7 for which the terms sarta tecta tuenda locare,8 ultro tributa locare,9 vectigalia locare10 or opus publicum faciendum locare11 appear in the sources. These terms should be clarified, noting however that some of them pose interpretative difficulties for scholars.
The phrase sarta12 tecta tuenda locare most scholars understand as referring to the conclusion of a contract for the maintenance and repair of public buildings.13 Andrea Trisciuoglio argued,14 however, that the tasks undertaken by the contractor (redemptor) were broader and also included the obligation to guard and protect the building and possible donations, for example temple beneficences. This thesis, supported by numerous source texts, seems very convincing. Opera publica, on the other hand, refers to all kinds of public works related to construction or renovation.15 The sources refer to roads,16 reservoirs and sewage pipelines,17 aqueducts18 and various other types of public buildings.19 Thanks to similar ventures carried out by censors, Rome became a metropolis: a functional and beautiful city.20
The term ultro tributa is translated as a voluntary contribution. The dispute21 concerns whether the term referred to the funds for public expenditures granted to officials, primarily censors, by the Senate,22 or to public works that contractors voluntarily took on themselves at the lowest possible price.23 The third possibility, pointed out by Trisciuoglio,24 concerns citizens: the contractor, when undertaking the conduct of works, would also have the prospect of obtaining pecuniary benefits such as temple donations or water fees paid by citizens using these goods. This thesis is not very convincing, for it runs counter to the interpretation of the sarta tecta. If the latter relate to contracts in which the redemptor was obliged both to renovate and guard a given building and to collect fees for the State, it is improbable that with the ultro tributa the revenues would be received by the contractor. The phrase ultro tributa infimis (scil. pretiis) locaverunt appearing in Livy's texts25 seems to indicate that a ‘reverse’ auction was being conducted. The entity that agreed to do a given job at the lowest price won.26
In the sources, the most frequently appearing phrase is publica vectigalia ultrove tributa.27 Hence, these two terms are juxtaposed. Publica vectigalia were state revenues from various types of direct and indirect taxes,28 the collecting of which was leased by auction to the entity that offered the state treasury the highest sum of money.29 Therefore, it seems that – since the vectigalia were revenues – the ultro tributa should be interpreted as state expenditures. Arnaldo Biscardi30 identified the phrase vectigalia locare with loca publica fruenda locare, and the phrase ultro tributa locare with loca publica tuenda locare, and assumed that it is a matter of distinguishing between taking advantage by the contractor, i.e. the use of things, and its guarding and renovation or construction. In the first case, the conductor obtained benefits, for which he paid a fixed amount to the state, in the second – he performed work, for which he received remuneration.
Therefore, it cannot be ascertained whether all the mentioned terms definitely apply to different types of contracts. It seems that the auction concerned vectigalia and ultro tributa, and the latter may have included agreements concerning sarta tecta and publica opera, which indeed belonged to state expenditure.31
The Senate decided to grant the censors funds they could use at their discretion for construction and renovation projects.32 At the same time, the censors were responsible for the leasing of state revenues, information on which was drawn from tabulae censoriae.
The first stage of the procedure for concluding contracts was the censorial edict announcing the conditions for locationes, as well as setting the date of the auction.33 In the edict, censors could include provisions regarding persons participating in the tender, and also exclude some entities.34 This indicates that the censors must have known the exact personal status of the publicans' companies bidding for a given locatio.35 It should be added that the censors acted on the grounds of the decision of the Senate,36 which granted them a certain amount of funds, whereas the funds from the aerarium were paid to them by the quaestors.37
According to Cicero,38 contracts, at least vectigalia, had to be concluded in Rome in the presence of the Roman people.39 It can be assumed that this rule also applied to other locationes. The phrase in conspectu populi Romani seems to imply that it refers to the contio.40
The auction41 was conducted by a crier (praeco),42 who also served as a public witness (testis publicus).43 When discussing the meaning of the word locus, Varro44 also explained why the activities performed by praeco are referred to as locare. The auction should be continued until the price was fixed. It seems, therefore, that praeco ran the auction until the bids had been exhausted.45 If no one was already willing to offer a higher (with vectigalia) or lower (with ultro tributa) bid, he announced the result. The successful tender had to give a collateral guaranteeing the performance of the contract. It was established in a personal and material form – predibus prediisque.46
Subsequently, the contract was written down47 and its contents placed in a publicly accessible place, probably in a building related to the activities of the censors, i.e. the atrium Libertatis. The protection of the contractor of public contracts has rarely been the subject of research. The most common matter of scholarly interest includes the consequences that were applied to a delayed or non-compliant counterparty. However, Paul du Plessis48 has recently devoted a considerable amount of attention to the protection of the contractor, who dealt with construction and renovation contracts. Based on the analysis of sources, namely lex parieti faciundo Puteolana,49 causa Iuniana presented in Verrines50 and municipal laws, the scholar has come to the conclusion that the contractor was not in any way directly protected but had indirect protection. This could perhaps have been a form of protest invoking the terms of the contract, if the official had set too high requirements, as well as the opportunity to appeal to influential people who were able to help. In municipal practice, there existed regulations counteracting the unfair enrichment of officials who supervised public contracts: these included the prohibition of bribery and of participation in auctions by the officials and their relatives (familia). In municipalities, an official approving the work was also strongly dependant on the Senate's opinion and had to submit an approval report before the Senate. It should be noted, however, that it is not known to what extent the municipal practice reflected the one applied in Rome. It seems that the duumviri seem to have had less freedom than the censors.
However, other sources can be cited, from which further conclusions can perhaps be drawn regarding the protection of a counterparty of a locatio censoria. The following considerations will apply to all types of locationes because the rules regarding them seem similar in this aspect. The key to highlighting the problem seems to be an excerpt from The Histories by Polybius.51 The Greek historian emphasized that – as far as public contracts were concerned – the Senate had the supreme position.52 It could grant a party an extension of time, it could facilitate the terms of the contract in the event of an accident or it could release the contractor completely if the contract proved impossible to perform.
The leading role of the Senate is confirmed in other source texts. Livy, writing of the censorship of Cato and Flaccus, reports that the censors had set very high prices for the locationes, after which the Senate, at the request of the publicans, ordered the contracts to be reauctioned.53 The censors then issued an edict removing from the auction all those who had received the previous contracts.54 They then concluded new contracts for slightly lower amounts.
While describing the case of the tribune Rutilius under the censorship of C. Claudius and Tiberius Gracchus, Livy mentioned that the publicans, dissatisfied with the fact that the censors did not allow some of them to bid, tried to receive help from the Senate, but unsuccessfully.55 Hence, they turned to the plebeian tribune for help,56 who tried to force through a plebiscite57 cancelling the censorial locationes, which also proved unsuccessful.
Although the aim was not to protect the contractors but the interests of those who were not allowed to bid, this episode clearly shows that the first resource was the Senate, which could overrule the decisions of the censors. The alternative was to obtain the support of the plebeian tribune.58 However, it seems that in this case the favour of a larger part of the college should have been obtained due to the low clout of just one tribune. The question remains whether the plebiscite proposed by Rutilius quae publica vectigalia [aut] ultro tributa C. Claudius et Ti. Sempronius locassent, ea rata locatio ne esset: ab integro locarentur, et ut omnibus redimendi et conducendi promiscue ius esset had any right to exist, and whether the plebeian assembly could overrule the censorial edict and locationes. The text by Livy seems to indicate that there was no positive regulation limiting the concilia plebis in this matter. The intercessio of another tribune was of course possible. Rutilius probably did not feel very confident, as he quickly abandoned his attempts to put his rogatio to a vote and tried to use other means against the censors. This may indicate that he was aware that his project was condemned to failure, probably because it had entered too far into the sphere of competence of the censors and the Senate.
The most famous case related to this issue concerns the locationes included in the collection of taxes from the provinces of Asia, which were leased by the censors since the lex Sempronia de provincia Asia.59
In a letter to Atticus dated December 5th, 61 BC, Cicero informed60 his friend of a request addressed to the Senate by those who had entered into a locatio agreement with the censors61 to collect taxes in Asia. The publicans explained that the excessive enthusiasm had impelled them to declare too much money. They, therefore, asked for the contracts to be cancelled. There was a lengthy debate in the Senate, during which Cicero, dreaming of concordia ordinum, gave two speeches62 in support of conductores. Finally, in 59 BC, the Senate, influenced by Caesar, decided to lower the rates by one-third.63
Therefore, it seems that the Senate was the ultimatum refugium for contractors in public locationes, as it could cancel the contract or reduce the rates. However, gaining support in the Senate required a lot of political influence and, therefore, cases of such interventions were rare.
Locationes censoriae were concluded for the duration of one lustrum at most. In the case of permanent, recurring contracts, or such contracts the performance of which required more time, the agreement could be renewed by successive censors. Varro, deriving the term lustrum from luere,64 emphasized that every five years a settlement by the censors of the vectigalia and ultro tributa contracts took place.65
The contractor's compliance with the terms of the contract was controlled by the censor who had concluded it. Sometimes, in order to allow this, the term of office of the censors was extended. If necessary, however, the task could be taken over by successors in office or by other officials, such as the consul or the praetor.
The decision of the censors was necessary to settle contracts involving the payment of receivables to the contractor,66 i.e. at the ultro tributa. In the case of vectigalia, the entity leasing the state income had to pay the declared amount to the state treasury.
The activity carried out by the censors in the case of sarta tecta was exactio,67 while in the case of opera publica – probatio.68 One can try to establish the boundaries of the exactio on the basis of the excerpt of the Verrines concerning the causa Iuniana.69 The Senate passed a resolution conferring powers on the praetors regarding those locationes related to sarta tecta for which the consuls had not yet proceeded the case (cognitio) and a decision had not been taken (iudicatio). It seems, therefore, that the official who concluded the contract usually performed the exactio.70 However, what needs to be considered is the scope of the officials' competencies.71 They probably first carried out an inspection of the place entrusted to the contractor, and then issued an administrative decision regarding the approval of the activities carried out, which entitled them to collect receivables from the state treasury,72 as well as led to releasing the contract guarantors from their obligation.
The situation was similar73 in the case of probatio operis,74 during which the official checked whether the work performed met the technical requirements specified in the contract. In this case, it seems that the conductor was treated similarly to the private locatio conductio operis, i.e. he bore the risk75 until the work was approved and was also liable for its defects. However, Susan Martin76 pointed out that the contractor's position was weaker in the public contract because they were subject to the decisions of the official.
Since the censors concluded contracts for the execution of public works, it is still necessary to determine how they acquired the land on which public buildings were erected: the land had to be public property, and with such large investments that could be problematic.
The scholars argue, first of all, whether censors had the right to forcibly expropriate landowners in order to acquire the land needed for construction. Opinions on this topic are diverse. Gerhard Radke77 strongly denied this power to the censors. However, other scholars78 expressed the opinion that the competencies of censors related to the construction of roads and aqueducts had to be supported by the possibility of compulsory acquisition of land for this purpose from private individuals. In particular, the term ius publicandi used in the sources, which can be understood as a ‘right to expropriation’,79 is controversial. Such an interpretation does not seem to have sufficient support in the extant sources.80
The definition of a public road given by Ulpianus81 in the commentary to the edict indicates that one who was entitled to the ius publicandi could determine the width range of the public road so that it could be walked and driven on. The possibility of expropriation cannot be concluded in any way from the text, since it only concerned the problem of delimiting the road so that it would be passable.
Liv. 39,44,6: Cato atria duo, Maenium et Titium, in lautumiis, et quattuor tabernas in publicum emit basilicamque ibi fecit, quae Porcia appellata est.
Liv. 44,16,9-11: ad opera publica facienda cum eis dimidium ex vectigalibus eius anni attributum ex senatus consulto a quaestoribus esset, Ti. Sempronius ex ea pecunia, quae ipsi attributa erat, aedes P. Africani pone Veteres ad Vortumni signum lanienasque et tabernas coniunctas in publicum emit basilicamque faciendam curavit, quae postea Sempronia appellata est.
Liv. 40,51,8: habuere et in promiscuo praeterea pecuniam: ex ea communiter locarunt aquam adducendam fornicesque faciendos. impedimento operi fuit M. Licinius Crassus, qui per fundum suum duci non est passus.
Another text by Livy concerning the year 179 BC may also provide a clue.86 The historian stated that the censors were granted common funds for which they contracted the construction of an aqueduct.87 However, there emerged an obstacle that prevented the work from being completed: M. Licinius Crassus did not allow the aqueduct to pass through his land. Livy's wording does not enable to determine whether he refused to establish a servitude in favour of the state or to sell the land.88 Luigi Capogrossi Colognesi89 expressed the view that it was possible to conduct an aqueduct without the necessity for purchasing land, although it is not known whether this also applied to bringing water to Rome itself or only to other territories. It seems that the aqueducts leading to Rome had a special status due to their strategic importance. Therefore, the state probably took care to gain ownership of the land through which they ran. Otherwise, the risk of interruptions in water supply would be too great. The case of Marcus Crassus seems to indicate that the censors could not force permission to conduct the aqueduct through private land.90
Front. De aquaed. 128: multo magis cum maiores nostri admirabili aequitate ne ea quidem eripuerint privatis quae ad modum publicum pertinebant, sed cum aquas perducerent, si difficilior possessor in parte vendunda fuerat, pro toto agro pecuniam intulerint et post determinata necessaria loca rursus eum agrum vendiderint, ut in suis finibus proprium ius res publica quam privati haberent.
The problem of acquiring land for the construction of aqueducts was also addressed by Frontinus. He admired the aequitas of the ancestors, who did not take away from private individuals even what was needed for public purposes. If a person possessing the land91 was unwilling to sell a part of it, they paid for the whole, and after having determined exactly how much they needed, they sold the rest back, so that the state and its citizens would retain their rights within the prescribed limits, and the buyer from the state was not, it seems, the previous owner, but a willing purchaser who wanted to exercise the right of ownership of the land located either by the road or by the aqueduct. In the latter case, they could usually quite easily obtain the right to draw water.
The cited passage of Frontinus's work may indicate that it was possible to force the owner to sell the land, even if it was necessary to use this complicated method involving double sales.92 On the other hand, however, such an elaborate bargain seems to indicate the weak overall position of an official who had to negotiate with the person possessing the land. Therefore, it seems very likely that the censors could not expropriate by force: they induced the citizen to accept the most advantageous offer possible.
The routing of the aqueduct must have been preceded by a thorough survey of the land through which it was supposed to pass and preliminary talks with the people who possessed it. The solemnity of the censor's office played a significant role in the persuasion process. Even without the use of any coercive measures, the censors were probably able to convince the possessors of the land to sell the part through which the aqueduct was supposed to run. An additional incentive was probably the promise of a water concession.
The case of Crassus described by Livy must have been of an exceptional character. His refusal probably occurred after the route of the aqueduct had been determined and thus the censors were forced to interrupt the already advanced works.
It is also worth mentioning the criminal penalty of publicatio bonorum,93 which was imposed during the Republican period. Such a punishment consisted of the confiscation of property, including land. However, it does not appear that this sanction was imposed by censors. Rather, the source texts mention senatorial decisions94 and sentences passed by popular assemblies and criminal courts. In the context of censorship, confiscation of property is mentioned as one of the sanctions that could be imposed on an incensus, i.e. someone who deliberately failed to appear for the census.95 Yet this penalty was imposed not by the censors themselves, but by the popular assembly. There is evidence in the source texts, however, that property subject to publicatio could be at the disposal of the censors, and it was up to them to decide its destination.96 This was particularly true of land that could be used for public investment. For example, the Macellum was built on the site of the confiscated and demolished house of the bandit Macellus.97 It must be stressed, however, that the publicatio bonorum as a criminal sanction and the publicatio as a decision by an official to assign a piece of land for a public purpose are two completely different legal institutions.
In conclusion, the censors entered into public revenue and expenditure lease contracts on behalf of the State. In the edict, they announced the date of the auction in which they selected the counterparty submitting the most advantageous offer and concluded a contract with it. They then checked whether the selected entity had complied with conditions of the contract approving the work. Their activity was supervised by the Senate, which could modify or even cancel contracts, which was a form of contractor protection. It can also be assumed that when acquiring land for public purposes, censors relied more on their authority than on force arguments. First, the censors purchased land (buildings could already stand on it, which at that time were also the subject of purchase and were later demolished in order to erect a new structure), concluding a public law contract: emptio in publicum. Whether the censors could have forced a citizen to sell land may be arguable. They seem to have used their authority and negotiated rather than coerced. Only then did the actual publicatio take place, i.e. the declaring the status of public land. The competence to perform this activity by the official is referred to in the sources as ius publicandi. However, that does not mean expropriation, but only the possibility of deciding to declare the area public, as in the case of land demarcation (terminatio).98
Acknowledgement
The article is a result of the project 2018/29/B/HS5/00949 financed by the National Science Centre, Poland.
Literature
Aubert, J.-J., ‘The Republican Economy and Roman Law: Regulation, Promotion, or Reflection?’ in Flower, H.I. (ed), The Cambridge Companion to the Roman Republic (Cambridge UP 2004, repr. 2007) 160-78 https://doi.org/10.1017/CCOL0521807948.008.
Badian, E., Publicans and Sinners: Private Enterprise in the Service of the Roman Republic (Cornell UP 1972).
Balsdon, J.P.V.D., ‘Roman History, 65-50 B.C.: Five Problems’ (1962) 52 Journal of Roman Studies 134-41 https://doi.org/10.2307/297885.
Blanch Nougués, J.M., ‘La concesión de obras públicas y su financiación en el Derecho Romano’ (2007) 8 Revista General de Derecho Romano.
Bleicken, J., Das Volkstribunat der klassischen Republik: Studien zu seiner Entwicklung zwischen 287 und 133 v. Chr. (Beck 1955).
Biscardi, A., Il concetto romano di locatio nelle testimonianze epigrafiche (Circolo Giuridico dell’Università 1960).
Broughton, T.R.S., The Magistrates of the Roman Republic (vol. II, American Philological Association 1952).
De Boor, C., Fasti censorii (Schade 1873).
Cancelli, F., Studi sui censores e sull’ arbitratus della lex contractus (Giuffrè 1960).
Capogrossi Colognesi, L., Ricerche sulla struttura delle servitù d’acqua in diritto romano (Giuffrè 1966).
Coarelli, F., ‘Public Building in Rome between the Second Punic War and Sulla’, transl. M.H. Crawford (1977) 45 Papers of the British School at Rome 1-23 https://doi.org/10.1017/S0068246200009168.
Cimma, M.R., Ricerche sulle società di publicani (Giuffrè 1981).
Crawford, J.W., M. Tullius Cicero: The Lost and Unpublished Orations (Vandenhoeck & Ruprecht 1984).
Crawford, M. H. (ed), Roman Statutes , vol. 1 (Institute of Classical Studies 1996).
Deniaux, E. Rome, de la Cité-État à l’Empire: Institutions et vie politique aux IIe et Ier siècle av. J.-C. (Hachette 2001).
De Robertis, F.M., La espropriazione per pubblica utilità nel Diritto Romano (L'Erma di Bretschneider 1936).
De Ruggiero, E., Dizionario epigrafico di antichità romane (Pasqualucci 1900).
Ducos, M., Les Romains et la loi: Recherches sur les rapports de la philosophie grecque et de la tradition romaine à la fin de la République (Les Belles Lettres 1984).
Du Plessis, P.J., ‘The Protection of the Contractor in Public Works Contracts in the Roman Republic and Early Empire’ (2004) 25 Journal of Legal History 287-314 https://doi.org/10.1080/0144036042000290735.
Ferrary, J.-L., ‘À propos du fragment 90 Peter (IV, 15 Chassignet) des Origines de Caton et de la tradition varronienne sur les origines du macellum’ (2001) 75 Revue de philologie, de littérature et d’histoire anciennes 317-27 https://doi.org/10.3917/phil.752.0317.
Greenidge, A.H.J., Roman Public Life (Macmillan & Co. 1901).
Gwyn Morgan, M., ‘The Introduction of the Aqua Marcia into Rome, 144-140 B.C.’ (1978) 122 Philologus 25-58 https://doi.org/10.1524/phil.1978.122.12.25.
Hahn, G., De censorum locationibus (Edelmann 1879).
Jordan, H., ‘Zur Topographie von Rom’ (1862) 2 Hermes 89-95.
Keseberg, J.F., De censoribus Romanorum commentatio (Typis Bassianis 1829).
Kubitschek, W., ‘Censores’ in Wissowa, G. (ed), Paulys Real-Encyclopädie der classischen Altertumswissenschaft , (vol. 3, Metzler 1899) 1902-908.
Kunkel, W. and Wittmann, R., Staatsordnung und Staatspraxis der römischen Republik. Zweiter Abschnitt: Die Magistratur (Beck 1995).
Lange, L., Römische Alterthümer (2nd edn, vol. I, Weidmann 1863).
Leuregans, P., ‘L’origine administrative du terme locatio dans la locatio-conductio romaine’ (1977) 55 Eos 303-22.
Lintott, A.W., Imperium Romanum: Politics and Administration (Routledge 1993).
Lozano Corbi, E. ‘¿Existio en la epoca republicana el derecho a la expropiacion forzosa por causa de utilidad publica?’ (1995) 17 Revista de Estudios Histórico-Jurídicos 123-29.
Maganzani, L., Pubblicani e debitori d’imposta: Richerche sul titolo edittale de publicanis (Giappichelli 2002).
Malmendier, U., Societas publicanorum: Staatliche Wirtschaftsaktivitäten in den Händen privater Unternehmer (Böhlau 2002).
Martin, S.D., ‘A Reconsideration of probatio operis’ (1986) 103 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 321-37 https://doi.org/10.7767/zrgra.1986.103.1.321.
Mateo, A., Manceps, redemptor, publicanus: Contribución al estudio de los contratistas públicos en Roma (Universidad de Cantabria 1999).
Mayer-Maly, Th., Locatio conductio: Eine Untersuchung zum klassischen römischen Recht (Herold 1956).
Melničuk, Ja.V., Римские цензоры и характер государственных подрядов (cura operum locandorum) (Roman censors and the nature of public contracting (cura operum locandorum)) (2000) 1 Ius Antiquum 32-42.
Meyer, G., De iure expropriationis in imperio Romano (Pfeil 1867).
Milazzo, F., La realizzazione delle opere pubbliche in Roma arcaica e repubblicana: Munera e ultro tributa, (Edizioni Scientifiche Italiane 1993).
Mommsen, Th., ‘Die römischen Anfänge von Kauf und Miethe’ (1885) 6 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 260-75 https://doi.org/10.7767/zrgra.1885.6.1.260.
Mommsen, Th., Römisches Staatsrecht (3rd edn, vol. II.1, Hirzel 1887).
Muñiz Coello, J., ‘Empleados y subalternos de la administración romana II. Los praecones’ (1983) 14 Habis 117-45.
Nicolet, C., Censeurs et publicains: Économie et fiscalité dans la Rome antique (Fayard 2000).
Pérez-Gómez, S.C., Regimen juridico de las concesiones administrativas en el derecho romano (Dykinson 1996).
Piacentin, S., Financial Penalties in the Roman Republic: A Study of Confiscations of Individual Property, Public Sales, and Fines (509-58 BC) (Brill 2021).
Pikulska-Radomska, A., ‘Un impôt sur la consommation du sel dans la République romaine?’ (2008) 55 Revue internationale des droits de l'antiquité 365-71.
Pina Polo, F., The Consul at Rome: The Civil Functions of the Consuls in the Roman Republic (Cambridge UP 2011).
Polo Toribio, G., ‘Algunas puntualizaciones entorno a la figura jurídica del incensus’ (2009) 12 Revista General de Derecho Romano.
Polo Toribio, G., Manumissio. Libertas. Census. Civis. Incensus (Dykinson 2023).
Ponte Arrebola, V., ‘La expropiación forzosa en la construcción de vías públicas romanas a la luz de la legislación municipal y colonial’ (2008) 10 Revista General de Derecho Romano.
Radke, G., ‘Viae publicae Romanae’ in Ziegler, K. (ed), Paulys Real-Encyclopädie der classischen Altertumswissenschaft (vol. Suppl. 13, Druckenmüller 1973) 1417-686.
Rainer, J.M., ‘Zur locatio conductio: Der Bauvertrag’ (1992) 109 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 505-25 https://doi.org/10.7767/zrgra.1992.109.1.505.
Rauh, N.K., ‘Auctioneers and the Roman Economy’ (1989) 38 Historia 451-71.
Reigadas Lavandero, E., Censura y res publica: aportación constitucional y protagonismo político (Universidad Pontificia Comillas 2000).
Roller, M.B., ‘Demolished Houses, Monumentality and Memory in Roman Culture’ (2010) 29 Classical Antiquity 117-80 https://doi.org/10.1525/CA.2010.29.1.117.
Rotondi, G., Leges publicae populi Romani: Elenco cronologico con una introduzione sull’ attività legislativa dei comizi romani (Società editrice libraria 1912).
Sacchi, O., L’Ager Campanus Antiquus: Fattori di trasformazione e profili di storia giuridica del territorio dalla Μεσόγεια arcaica alla centuriatio romana (Jovene 2004).
Samter, R., ‘Probatio operis’ (1905) 26 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 125-44 https://doi.org/10.7767/zrgra.1905.26.1.125.
Silver, M., ‘Fiscalism in the Emergence and Extinction of societates publicanorum’ (2007-2008) 6 Pomoerium 46-71.
Stockton, D., The Gracchi (Oxford UP 1979, repr. 2002).
Stuart, M., ‘Pliny, Historia Naturalis, XXXI, 41’ (1943) 64 American Journal of Philology 440-44 https://doi.org/10.2307/291637.
Suolahti, J., The Roman Censors: A Study on Social Structure (Suomalainen Tiedeakatemia 1963).
Talamanca, M., Contributi allo studio delle vendite all’asta nel mondo classico (Accademia nazionale dei Lincei 1954).
Tarwacka, A., ‘The Consequences of Avoiding Census in Roman Law’ (2013) 21 Revista General de Derecho Romano.
Tarwacka, A., ‘The Roman Censors as Protectors of Public Places’ (2014) 12 Diritto@Storia <http://www.dirittoestoria.it/12/tradizione-romana/Tarwacka-Roman-Censors-Protectors-Public-Places.htm> accessed 24 June 2024.
Taylor, R., Public Needs and Private Pleasures: Water Distribution, the Tiber River and the Urban Development of Ancient Rome (L’Erma di Bretschneider 2000).
Torrent, A., ‘La polemica sobre la tricotomia “res, operae, opus” y los origenes de la “locatio-conductio”’ (2011) 4 Teoria e Storia del Diritto Privato.
Torrent, A., ‘Anulación por el Senado de locationes censoriae de vectigalia y ultro tributa en el 184 a. C. (Liv. 36,44,7)’ (2014) 7 Teoria e Storia del Diritto Privato.
Torrent, A., ‘Pactiones, publicani y leges censoriae’ (2015) 15 RIDROM: Revista Internacional de Derecho Romano 68-97.
Trisciuoglio, A., Sarta tecta, ultrotributa, opus publicum faciendum locare: Sugli appalti relativi alle opere pubbliche nell’ età repubblicana e augustea (Jovene 1998).
Wiseman, T.P., ‘Roman Republican Road-Building’ (1970) 38 Papers of the British School at Rome 122-52.
Cf. Mateo (1999) 34–39.
These tasks were sometimes entrusted by the Senate to other officials: consuls, praetors, aediles, and even quaestors. Cf. Hahn (1879) 14–15; De Ruggiero (1900), s.v. censor; Trisciuoglio (1998) 100–58; Pina Polo (2011) 135–68.
Cf. Liv. 4,22,7.
Polyb. 6,17,2–4. Cf. Melničuk (2000).
On publicans companies cf. Badian (1972); Cimma (1981); Milazzo (1993); Mateo (1999); Nicolet (2000); Maganzani (2002); Malmendier (2002); Silver (2007-2008); Torrent (2015).
Cf. Malmendier (2002) 78–79.
Contracts concluded by censors are very similar to private law locatio conductio operis: in the Roman sources for the activities performed by a contractor the verb conducere is used (e.g. Liv. 43.16), and the payment is due only after the locator has received the finished work. However, there is no evidence of their interdependence or certainty as to their priority. This issue has been widely discussed in the literature. Mommsen (1885) advocated the public-law roots of locatio conductio; Cf. Leuregans (1977). Differently, Mayer-Maly (1956) 23–25. Cf. Torrent (2011).
E.g. Liv. 42,3,7.
E.g. Liv. 39,44,7.
E.g. Liv. 39,44,7.
E.g. Liv. 39,44,5.
Sarte is translated as integre. Cf. Fest. 254 L., s.v. produit; Fest. (Paul.) 428 L., s.v. sarte.
Cf. Mommsen (1887) das Geschäft, den Körper und das Dach der heiligen Häuser und der Gemeindestätten in Stand zu halten; Lange (1863) in Bau und Besserung halten; Cancelli (1960) 69; Kunkel and Wittmann (1995) 457.
Trisciuoglio (1998) 7–32. A list of construcion works initiated by censors is given by Coarelli (1977) 1–19.
Cf. Trisciuoglio (1998) 75–94.
Liv. 41,21. On viae censoriae cf. Wiseman (1970) 122–52.
Liv. 39,44,4; Dion. Hal. 3,67.
Liv. 9,21,6; Diod. Sic. 20,36; Front., De aqued. 6; 8; 95.
Liv., Per. 20; Liv. 40,51; 44,16.
Cf. Deniaux (2001) 66–67.
Cf. on the subject very extensively Milazzo (1993) 9–14; 68–72 and the cited literature.
Cf. Mommsen (1887) 446.
Cf. Lange (1863) 815; Hahn (1879) 36; Milazzo (1993) 67–157.
Trisciuoglio (1998) 33–74.
Liv. 39,44,7.
Cf. Greenidge (1901) 232, fn. 2.
Varr., L.L. 6,11; Liv. 39,44,7; 43,16,2 i 7; Tab. Heracl. 73.
Cf. Isid., Etym. 16,18,8: Vectigalia sunt tributa, a vehendo dicta. Cf. Mateo (1999) 90–93; Pikulska-Radomska (2008).
Cf. Liv. 39,44,7: vectigalia summis pretiis, ultro tributa infimis locaverunt.
Biscardi (1960) 422.
Cf. Cancelli (1960) 99.
Cf. Blanch Nougués (2007) 7.
Cf. Cic., In Verr. 2,1,141.
Cf. Liv. 39,44,8; 43,16,2; Malmendier (2002) 111–12.
Cf. Torrent (2015) 70 ff.
Cf. Polyb. 6,13,3; G. Hahn (1879) s. 10; Trisciuoglio (1998) 118–31.
Cf. Liv. 44,16,9.
Cic., De leg. agr. 1.7: censoribus vectigalia locare nisi in conspectu populi Romani non licet.
Cf. G. Hahn (1879) 15; Kubitschek (1899) 1904; Rauh (1989) 453.
Cic., De leg. agr. 2,55: Vectigalia locare nusquam licet nisi in hac urbe, hoc ex loco, hac vestrum frequentia.
Cf. Liv. 24,18,10–11.
Cf. Muñiz Coello (1983) 131–32.
Arg. ex Cic., De leg. Agr. 2,56: Xviri vestra vectigalia non modo non vobis, Quirites, arbitris sed ne praecone quidem publico teste vendent? Cf. Tert., Ad nat. 1,10,22; Apol. 13,5.
Varr., L.L. 5.15: Ab eo praeco dicitur locare, quod usque idem it, quoad in aliquo constitit pretium.
The offer was made by raising a hand. On behalf of the company, this was done by manceps. Cf. Fest. 139 L., s.v. manceps; Ps. Ascon. 113 Or.; Lintott (1993) 86; Mateo (1999) 25–32.
Cf. Varr., L.L. 5.40; 6,74; Fest. 249 L.; Ps.-Ascon. 177 Or.; Trisciuoglio (1998) 204–20. On the public sale of praedia by the questor in case of default of obligation cf. Talamanca (1954) 172–75.
Examples of such leges censoriae can be found, some of which were also reproduced during the period of the Principate: Lex agr. 85; 89; Tab. Her. 72; D. 50,16,203. An example preserved in epigraphic form, but derived from municipal practice, is the lex parieti faciundo Puteolana, FIRA III No. 153. Cf. M. Ducos, Les Romains et la loi. Recherches sur les rapports de la philosophie grecque et de la tradition romaine à la fin de la République, Paris 1984, s. 124.
du Plessis (2004) 287–314.
FIRA III No. 153. Cf. Aubert (2004) 174.
Cic., In Verr. 2,1,129–151.
Polyb. 6,17,5: ἔχει δὲ περὶ πάντων τῶν προειρημένων τὴν κυρίαν τὸ συνέδριον: καὶ γὰρ χρόνον δύναται δοῦναι καὶ συμπτώματος γενομένου κουφίσαι καὶ τὸ παράπαν ἀδυνάτου τινὸς συμβάντος ἀπολῦσαι τῆς ἐργωνίας.
du Plessis (2004) 298–99 argues that the influence of the Senate, visible in the third century BC, weakened in the second century and had no longer any significance, thus the officials had basically a free hand. However, it seems that since the second century BC, examples of Senate intervention can be pointed out. The lack of reaction on its part in some cases can be explained by political reasons. The increase in the political importance of the equites may have led the Senate to passivity in the name of – perhaps selfishly – protecting its own interests. Cf. Badian (1972) 17 ff.
Liv. 39,44,8: quas locationes cum senatus precibus et lacrimis victus publicanorum induci et de integro locari iussisset, censores, edicto summotis ab hasta qui ludificati priorem locationem erant, omnia eadem paulum imminutis pretiis locaverunt.
Por. Reigadas Lavandero (2000) 315; Torrent (2014).
Liv. 43,16: Saepe id querendo veteres publicani cum impetrare nequissent ab senatu, ut modum potestati censoriae inponerent. Cf. Badian (1972) 39–42.
Liv. 43,16: ‘tandem tribunum plebis P. Rutilium, ex rei privatae contentione iratum censoribus, patronum causae nancti sunt. […] Hinc contentione orta cum veteres publicani se ad tribunum contulissent, rogatio repente sub unius tribuni nomine promulgatur, quae publica vectigalia [aut] ultro tributa C. Claudius et Ti. Sempronius locassent, ea rata locatio ne esset: ab integro locarentur, et ut omnibus redimendi et conducendi promiscue ius esset. Diem ad [eius] rogationem concilio tribunus plebis dixit. Qui postquam venit ut censores ad dissuadendum processerunt, Graccho dicente silentium fuit; [cum] Claudio obstreperetur, audientiam facere praeconem iussit. Eo facto avocatam a se contionem tribunus questus et in ordinem se coactum ex Capitolio, ubi erat concilium, abit.’
Cf. Rotondi (1912) 284–85; Bleicken (1955) 62.
du Plessis (2004) s. 310, fn. 64 rightly points out that, in the case of causa Iuniana, it would have been pointless to obtain the support from the tribune, since, at the time of Verres's praetorship, the powers of the tribunes were still limited by the Sullan law.
Cf. Rotondi (1912) 308; Stockton (1979, 2002) 153–56; Kunkel and Wittmann (1995) 401.
Cic., Ad. Att. 1,17,9: ‘Asiam qui de censoribus conduxerunt, questi sunt in senatu se cupiditate prolapsos nimium magno conduxisse, ut induceretur locatio, postulaverunt.’
It is not known who held the office of censor, although it is supposed that C. Scribonius was one of them. Cf. De Boor (1873) 28; Broughton (1952) 179; Suolahti (1963) 475–77; Reigadas Lavandero (2000) 465–70.
The speech in question is De locatione Asiatica inducenda. Cf. Crawford (1984) 113–14.
Cf. App., Bell. civ. 2,13; Dio Cass. 38,7,4; Cic., Ad Att. 2,16,2; Baldson (1962) 135–37.
Varr., L.L. 6.11: ‘Lustrum nominatum tempus quinquennale a luendo, id est solvendo, quod quinto quoque anno vectigalia et ultro tributa per censores persolvebantur.’
Cf. Milazzo (1993) 72–76. Cf. also Keseberg (1829) 4, who rightly considered Varros's argument to be incorrect, because the term lustrum had appeared before the censors took over the competencies related to locationes.
Cf. lex parieti faciundo Puteolana, FIRA III No. 153.
Cf. Liv. 45,15,9; Cic., In Verr. 2,1,103; 130.
Cf. Liv. 45,15,9.
Cic., In Verr. 2,1,130: ‘L. Octavius C. Aurelius consules aedis sacras locavissent neque potuissent omnia sarta tecta exigere. […] factum est senatus consultum quibus de sartis tectis cognitum et iudicatum non esset.’
The same was true of the opera publica. Cf. Liv. 45,15,9: ‘ut ex instituto ad sarta tecta exigenda et ad opera, quae locassent, probanda anni et sex mensum tempus prorogaretur….’ See however Trisciuoglio (1998) 109 for a contrary opinion.
Cf. Cancelli (1960) 99–101; Trisciuoglio (1998) 228–32.
Cf. D. 48,11,7,2 (Mac. 1 iud. publ.); Trisciuoglio (1998) 239–41.
Probatio and exactio are equated by Cancelli (1960) 99–101. Cf. Trisciuoglio (1998) 232–34.
Cf. Samter (1905) 125–44; Martin (1986) 321–37.
On the scope of the risk cf. Rainer (1992) 505–25 and the cited literature.
Martin (1986) 323–24. The author equates exactio and probatio.
Cf. Radke (1973) 1433–38, according to whom – apart from Via Appia – the censors did not deal with the construction of roads at all, and ius publicandi was associated with the imperium exercised by the highest magistrates. Cf. Ponte Arrebola (2008) 12–17; Pina Polo (2011) 137. Indeed, the construction of roads was hardly a domain of the censors, but other investments were, so drawing the conclusion of the absence of ius publicandi on this basis alone is difficult to accept. I also disagree with the concept that some competences could be associated with the imperium, which is not a clear concept at all. The Romans did not use it to denote a group of magistrates with the highest powers – it is only a modern concept trying to categorize things that the Romans themselves did not feel the need to categorize.
Cf. Kunkel and Wittmann (1995) 458; Pérez-Gómez (1996) 57–58.
Cf. De Robertis (1936).
Cf. Taylor (2000) 100–11.
D. 43,8,2,21 (Ulp. 68 ad ed.): ‘viae autem publicae solum publicum est, relictum ad directum certis finibus latitudinis ab eo, qui ius publicandi habuit, ut ea publice iretur commearetur.’
Cf. De Boor (1873) 17; Broughton (1952) II, 374–75; Suolahti (1963) 351–58; Reigadas Lavandero (2000) 300–16.
Cf. Plut., Cat., 19,2; Meyer (1867) 22.
On the other hand, it seems that things were different for the holders of ager publicus, who could have been removed from the ground much more easily. Cf. Meyer (1867) 22.
Por. De Boor (1873) s. 18; Broughton (1952) II, s. 423–24; Suolahti (1963) s. 371–76; Reigadas Lavandero (2000) s. 331–42.
Censorship was exercised by M. Aemilius Lepidus and M. Fulvius Nobilior. Cf. De Boor (1873) 17–18; Broughton (1952) II, 392; Suolahti (1963) 359–66.
The aqueduct was the Aqua Marcia, the construction of which was completed by the praetor Q. Marcius Rex as late as 143 BC. Cf. Stuart (1943) 440–44; Gwyn (1978) 25–58.
Cf. Taylor (2000) 58–59.
Capogrossi Colognesi (1966) 116–17. Cf. Lex coloniae Genetivae Iuliae 99.
Cf. Lozano Corbi (1995) 123–29, who is of the opinion that in this case the particular game of interests influenced the course of the case and that the censors did not force the sale of land on Crassus, although they could. The author strongly advocates the existence of the right to forced expropriation for reasons of public interest (utilitas publica).
The term possessor, used by Frontinus, probably meant not only the Quiritarian owner, but also, for example, the possessor ad usucapionem or those who possessed ager publicus. It seems that no proof of ownership was required, as was the case with an ordinary sales contract.
Selling land was considered an obligation by De Robertis (1936) 69–73.
Cf. Piacentin (2021) 11 ff.
Cf. especially the case of the ager Campanus analysed in detail by Sacchi (2004) passim, esp. 191 ff.
Cf. Polo Toribio (2009) 10–11; Polo Toribio (2023) 115 ff.; Tarwacka (2013) s. 1–16.
The censors also had jurisdiction in matters concerning disputes over public land. Cf. Crawford (ed) (1996) 35–36.
Fest. 112 L., s.v. Macellum. Cf. Jordan (1862) 89–95; Ferrary (2001) 317–27; Roller (2010) 168–70.
Cf. CIL I(2a).2.766; Tarwacka (2014).
