Upholding the Moral Good: The Censor in Ancient Rome



Sacrifice scene during a census: left part of a plaque from the Altar of Domitius Ahenobarbus known as the “Census frieze”. / Photo by Jastrow, Louvre Museum, Wikimedia Commons


“Quis custodiet ipsos custodies? – “Who watches the watchmen?”


By Nico P. Swarz and Eric Ozoo
Swarz: University of Botswana
Ozoo: Baisago University College of Botswana


Abstract

Centuries ago in the Roman Empire the satirist, Juvenal raised the question: Quis custodiet ipsos custodies? This means literally: “Who watches the watchmen?” or “Who guards the guards?” In addition, it points to promoting the upholding of moral good acts among both the citizens and those who must defend the rights and interests of the individual against the abuse of power by those who possess public authority.

Introduction

The proponents or fathers of the Roman Empire believed that in order for a society to exist, the
citizens should adhered to moral good actions and should have respect for the laws of the country. The office of the censor materialised in support of such a noble idea. Such office started off under the reign of Servius Tullius and culminated eventually in the censor. The censor not only prevented or penalised crime or immoral actions by means of censure, but also had to uphold the traditional character, ethics and customs of the Roman nation.

The Censor: A Historical Process of Development

Servius Tullius, the sixth King of Rome, introduced the erstwhile census. Subsequent to the dethronement of the kings and the formation of the Republic, the consules (consuls) took over
the census in 443 BC [1]. As the census was labour intensive and beneath the dignity of a
consul, there was a need for a suitable bureaucracy, namely the censori, to fulfil this task[1]. Papirus and Sempronius were the first censors [1].

Until 442 BC, consuls were no longer elected; only military tribunes. As the latter could only be
plebeians (ordinary workers), the patricians (nobility) feared that the plebeians would gradually gain control of the census. The patricians thus tasked the tribunes and entrusted the task to two officials known as the censors, who were to be chosen from among the patricians.

The patricians fulfilled the duty of censor until 351 BC, when Marcius Rutilus was appointed as
the first plebeian censor [1]. Approximately twelve years later, a public law ordained that at least one of the censors had to be a plebeian [1]. For the first time, in 131 BC, both censors were thus plebeians.

Briefly: Such an important duty, namely the census, only belonged to the king as head of state. In time, the census belonged to the emperors (principes) and thereafter to the consuls (consules). Ultimately, the census became the duty of the censors [2].

Princeps (Emperor)

The princeps had considerable power so that he could interfere in every sphere of government
and society. He was thus viewed as the most suitable person to promote the citizens’ compliance with moral good actions, on the one hand, and to inculcate the same discipline of
compliance with moral good actions upon officials, on the other. However, the princeps
did not always do so by virtue of the principle princeps legibus solutus est (according to which
the princeps is considered elevated above the law) [3]. By virtue of this principle, princeps
(emperor) Caligula, for instance, raised his horse Incitatus to the status of consul. Despite this,
there were also good principes (plural form of princeps) such as, for instance, Augustus, who
respected the law [4]. Under Augustus, besides the juridical aspect, the religious obligation of the princeps was emphasised. By virtue of the religious character, a moral character was ascribed to the princeps, according to which he was considered the upholder or protector of
moral good actions among the citizenry.

As sanction, rebel principes such as, for example, Caligula were declared undignified, damnatio
memoriae (condemnatory remembrance), upon their death, because they did not promote moral good actions [5].

Consules (Consuls)

The power of the princeps (emperor) soon devolved upon the consules (consuls). Like the princeps, the consules also fulfilled priestly functions. There were two consules. Collegiality
was considered a prerequisite for effective management, in the sense that one official cannot accomplish anything if his colleague forbids his action by virtue of the ius intercedendi (right of veto) [6].

By virtue of the imperium = (power), the consules had the ius edicendi (right to issue orders) and to enforce (coercitio) those orders. They were empowered not only to catch and tie (vincula) a transgressor of the edicta, but also to flagellate (verbera) or impose fines upon the transgressor. According to this, the consules, like the princeps, were considered to uphold or protect moral good actions among the citizenry. Should the consules abuse their power, they could be called to account upon the expiry of their terms of office[5]. This indicates similarities with the princeps, who was declared unworthy after his death, because he neither encouraged nor promoted moral good actions.

Censor

As the state expanded, the consules could not fulfil all their administrative functions, some of
which being transferred to the censor. The office of censor was considered the most dignified in
the Roman Empire. It obtained the status of sanctus magistratus (sacred magestry) which
demanded the highest respect [7]. The dignified office of the censors was entrusted to the function, by virtue of their encouraging and promoting moral good actions among the citizenry. On this basis, the censors had the regimen morum (general control over the moral conduct of the citizens of the state). This ensured that the censor could guarantee a society’s religious conservatism. The censors thus also opposed the decline of civilization and impiety in the (later Christian) Roman Empire [4]. The qualities of the censor show similarities with the present-day “public protector” [8].

To a Roman, the climax of a successful career was to become a censor. Besides the origin of the candidate censor, his moral character was also taken into account in order to determine
whether he would be capable of promoting moral good actions among the citizenry. The choice of a candidate for the position of censor was not only influenced by the status of his ancestors, but also by the place of origin of his gens (family name) and by his family’s present domicile. In addition to a candidate censor’s moral conduct, his family also had to reflect integrity [8]
.
Van Zyl writes that the censors were dignified old gentlemen of irreproachable character who were held in great respect in society [9]. As upholders or protectors of moral good actions and of morals (custos morum), the censors were nicknamed censorius[9]. The census survey, previously conducted by the consules, was now transferred to the two censores[10].

In addition to the census survey, the censor was also responsible for the registration of properties. By virtue of these two important functions, previously fulfilled by the consules, the censor thus became aware of the citizens’ activities. The censores were considered the most suitable persons to promote moral good actions and to counteract deviant behaviour. The promotion of moral good actions was directed mainly at the senators, but also at the ordinary citizens.

Only former consules could as a rule be appointed as censores[2]. Thomas writes the following about the remarkable position of the censors: “[their] office became more august than even that of [consules …]” [11].

The Nature of the Censor’s Position

The censor’s duties were divided into three types. First, they had to register the citizens’ and
their own properties; secondly, they had to look after the regimen morum (uphold the moral
conduct of the citizens), and they had to supervise the public funds. Upholding the public morals and morality (regimen morum) can be viewed as one of the censor’s most important duties [1]. This made the position of censor one of the most respected and feared in the Roman
state. As far as this duty is concerned, the censors were also known as castigators (chastisers). They not only prevented or penalised crime or immoral actions by means of censure, but also had to uphold the traditional character, ethics and customs (mos majorem) of the Roman nation [1]. The important duty of the censor had a positive impact on the past and future (Christian) societies. It provided room for expansion by the public protector in South African society.

In performing the two important functions (taking the census and registering properties), the
censores (as mentioned earlier) were entitled to enquire about the private and public lives of the citizens [8]. Once the consules could no longer manage these two functions, the function of
censor was created in 443-435 BC. The position of censor entailed exposing the misconduct of
both senators and citizens. According to Cary and Scullard, misconduct by citizens included the
following transgressions: cowardice in battle, misuse of public funds, immorality, and so on[12]. Suolahti adds neglect of civil duties, misuse of position, jurists accused of corruption, election
fraud, those who unlawfully usurp the rights belonging to other groups of people, perjury, theft, and breach of contract [8]. On the basis of this, the citizens believed that the censor must
uphold moral good actions and punish transgressions. As such, the censor upholds or protects moral good actions in the community and thus sets an example of irreproachable character to the citizens [2].

The censores also used general measures to stifle exaggerated luxurious ways of life, which were, according to them, incompatible with public policy and the moral tradition of the Roman
nation. Wolff writes: “[They] developed a general jurisdiction in matters of morals […]” [6]. Due to the moral undertones associated with the position of censor, new duties were later attributed to the censor, namely to prepare the senatorial list (lectio senatus). In approximately 300 BC, the Lex Ovinia transferred the election of senators to the censor; this duty was previously managed by the consules[11]. This function considerably raised the censor’s esteem, in the sense that he could prosecute public office-bearers [11,2]. It is important to note that the censor’s power to prosecute served as deterrent for the ordinary citizen. The censor’s power to
prosecute strengthened his effectiveness as upholder of moral good actions to a great extent.

Soon the management of public funds was also entrusted to the censores. Accordingly, the
censor increased tax in order to punish those accused of immoral conduct, the childless and
those who possess items which the censorsconsider to be luxury [12].

As upholder and promoter of moral good actions, the censores issued a friendly warning concerning the neglect of family devotion, the misuse of power by the pater familias, unequal marriages, and unjustified divorces [8].

The Nature of the Transgression

Senators filled their positions for life, except when they were found guilty of gross public and private misconduct. When a senator was guilty of misconduct, it was the censor’s duty to punish him. This meant that, even if a senator could not be accused of a breach of positive law, the censors could nonetheless condemn his reprehensible behaviour [2].

Punishment for a Transgression

The Latin phrases iudicium censorium, gravitas consortia and auctoritas consortia indicate that
the censors were invested with power and could thus pronounce judgements and inflict punishments.

Censors usually affixed a mark (nota censoria) to a (public official) senator’s name who was found guilty of misconduct. Accordingly, this lowered the transgressor’s rank and esteem in society. Thomas writes: “By affixing their mark of disapproval [nota censoria] to the name of an
enrolled person, they could degrade him in rank and remove him from his tribe […]” [11]. Wolff
writes concerning the nota censoria: “[it …] became [the censors] dreaded weapon” [6].

Due to the impact of the nota censoria, the censor also had the authority to terminate a senatorial official’s career. According to this, the censors had the right not to appoint former members of the senate whom they deem to be undignified. Wylie writes: “[the censors …] deleting the names of those who had […] in their opinion […] by reason of misconduct, [be] unworthy to hold the senatorial dignity” [2]. The nota censoria could also negatively affect a
senator’s credit standing. However, this did not apply to women, because they were not taxpayers, soldiers or enfranchised citizens [8].

Remedies against the Nota Censoria

The nota censoria had to be accompanied by an explanation, whereafter the senator concerned
had the right to defend himself. However, there was no right to appeal against the censor’s
decision, because the censors were not considered bound to any right. Only his colleague’s right of veto could influence a censor’s decision. The censor’s decision was valid up to and including the next census survey. However, the new censors were not bound to their predecessors’ decisions and could choose to ignore their predecessors’ remarks [8].

Jurisdiction

The censors had jurisdiction in those cases where the interest of the State was in conflict with that of a private individual. They acted as chairpersons of the courts. Censors could mitigate penalties prescribed by the courts. They waived the debt of some individuals, for example
compensation to a contractor who did not comply with his contractual obligations, which must be forfeited and given to another person who would indeed comply with the contract. If this is not feasible, the censor would evaluate the damage or accept property as security or guarantee. It is likely that the penalties were minimal [8]. Due to his power of jurisdiction, the censor was required, in the interest of justice, to uphold moral good actions between citizens and was obliged to uphold these actions himself.

In the post-Republic, censors were rarely appointed; after 22 BC, censors were no longer officially elected [9].

References

  1. Livy. With an English translation by Foster BO. London: William Heinemann, G.P. Putnam’s Sons. 1924;Books 4-8.
  2. Wylie JK. Roman constitutional history. From the earliest times to the death of Justinian. Cape Town: The African Bookman, South Africa. 1948;8.
  3. Spiller P. A manual of Roman law. Butterworth, South Africa. 1986;12-14.
  4. Van Warmelo P. Die Oorsprong en Betekenis van die Romeinse Reg. 2de Druk. Pretoria: J.L. Van Schaik, Suid-Afrika. 1965;65-66.
  5. Wolff HJ. Roman law. A historical introduction. Norman: University of Oklahoma Press. 1951;32-36.
  6. Plutarch M. Plutarch life of Cato the elder. Loeb Classical Library Edition. 1914;2.
  7. Suolahti J. The roman censors. Netherlands Publishers. The Netherlands. 1963;12-14.
  8. Van Zyl DH. Geskiedenis en Beginsels Van Die Romeinse Privaatreg. Juta & Kie Bpk, Suid-Afrika. 1977;15-18.
  9. Boak AER. A history of Rome to 565 AD. 4th Edition. New York: The Macmillan Company. 1955;70-74.
  10. Thomas JAC. Textbook on Roman law. North-Holland Publishing Company. The Netherlands. 1976;8-15.
  11. Cary M, Scullard HH. A history of Rome down to the reign of Constantine. 3rd Edition. New York: The Macmillan Press. 1975;80-82.
  12. De Waal J, Currie I. The bill of rights handbook. 5th Edition. New York: The Macmillan Company Press. 2005;10-22.
  13. Swartz NP. Rosmini se Natuurregbydraeten opsigte van Menseregte in die Burgerlike Politieke Gemeenskap. Tydskrif vir Christelike Wetenskap. 2008;44(1 & 2):196.
  14. Rosmini A. The philosophy of right. Rights in civil society. Durham: Rosmini House. 1996;400-427.
  15. De Waal J. The bill of rights handbook. 4th Edition. New York: The Macmillan Company Press. 2001;1-200.
  16. Ferreira-Snyman. Demokrasie en die Openbare Administrasie. Tydskrif vir Geesteswetenskappe. 2005;45(1):83.
  17. National Coalition for Gay & Lesbian Equality v Minister of Justice. 1999;(1)SA 6 (CC):50-740.
  18. Calvin J. Institutes of the Christian religion. A New Translation by Henry Beveridge, Esq. Edinburgh: Printed for the Calvin Translation Society. 1845;1. Chapters 12, 20.
  19. The Holy Bible. New international version. International Bible Society. Great Britain. 1973-1984;54.
  20. Thomas Aquinas. Summa Theologiae. 1-2. Q. 80-90, A. 1. Benziger Bros. Edition. Translated by the Fathers of the English Dominican Province. 1947;1-2.

Originally published by Advances in Research 6:1 (2016, 1-8) under the terms of a Creative Commons Attribution 4.0 International license.

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