Law and Administration Faculty
Warmińsko-Mazurski University in Olsztyn
Responsibility of municipal clerks in Roman law by
virtue of improper disposal of public financial resources on the example of
corn trade
Contents: 1. Introduction. – 2. Organization of corn trade. – 3. The municipalities representation at making civil-legal procedures.
– 4. Legal bases of clerks responsibility. – 5. Responsibility rules of magistratus. – 6. Conclusions. – Abstract.
1. –
Introduction
Self-governance has its roots in Ancient times, and for sure, the Roman times.
Roman municipalities and colonies are the archetype of contemporary organized
self-government structures and they can be the inspirations to solve current
problems in this field. Hence, the municipalities and colonies have been the
subject of numerous researches, also for the author of this publication[1].
Magistratus
in municipalities conducted different legal actions related with spending
public financial resources. The development of organization and functioning of
municipalities initiated many rules connected with magistratus (clerks) responsibility for improper disposal of public
resources. The subject of this work is the analysis of rules for clerks
responsibility, in relation to one of the basic assignments of magistratus, i.e. supplying the city,
particularly the corn supply.
Rome and other municipalities in distant areas of the empire were food
supplied by the authorities of each ancient city, what was their basic
obligation. The basic component of food supply system was creating the
institutional and legal frameworks. The subject of food supply was not only to
deliver corn, mainly wheat, but also oil, water and other foodstuffs, which are
not going to be described in this paper because of the volume of work, which is
limited by the number of pages.
The organization system of food supply in Rome and in other
municipalities was relatively complicated and it was constantly modified
according to political systems transformations[2]. The legal system, similarly, was continuously transformed, and it was
depended on new sources of creating law. Hence, the legal regulations related
to corn supply were written by the lawyers in their documents, in emperors
constitutions and municipalities legal acts.
Corn supply to Rome and other municipalities (municipes, civitates or res publicae) required legal procedures
performed by the clerks (magistratus)
entitled to represent the city, e.g. duumvirs who were counterparts of
contemporary village heads, and private subjects that purchased corn,
transported it, and keep, in big, for those times, stores. Exactly those legal
procedures are the subject of analysis in this work. The purpose of this
article is to present a character and range of magistratus’ responsibility when doing their activities.
The system of corn supply organization and the legal actions linked with
it, were not the subject of interest for Polish Romance philology, although, T.
Łoposzko[3] and S. Mrozek[4] write about largitiones privatae.
Also M. Kuryłowicz[5] writes about the penal aspects of food supply system. The issues of
ancient cities food supply were the subject of numerous works in international
literature[6]. After the rough analysis of literature, there should be stated the
lack of relation to issues associated with legal activities for food supply to
Rome and other cities of the empire, and particularly those, associated with
the character of actions and the range of magistratus
responsibility.
2. – Organization of corn trade
Corn, mainly wheat, and also water, oil and wine, constituted the basis
of biological existence of a man in Ancient Rome. Not all the dwellers of Rome
or other cities, could afford to buy basic food products at the market prices,
spending their money. Hence, the authorities of individual cities had the duty
to provide the basic needs of the poorest part of their societies.
In Rome there was organized a kind of social assistance system –frumentatio, it consisted in free or for
little payment corn distribution. During the rush period there were even over
300,000 of dwellers in Rome (numbering about million citizens), entitled to
profit of this kind of help.
Boarding so big number of dwellers in need, originated the necessity to
store appropriate corn supplies and other food products. In Rome the ediles
were responsible for corn storing, whereas in provinces the responsibility was
on duumvirs and ediles[7]. In some cities, there were also curatores
rei publicae[8]. Exactly those clerks, working on behalf of the local communities, had
at their disposal the proper financial resources for that purpose. They made
proper contracts with the subjects (publican,
susceptores)[9] dealing with corn purchasing from private producers, with corn
transport (navicularii)[10] and the owners of harbour stores, where corn was stored.
3. – The municipalities representation at
making civil-legal procedures
According to A. Bricchi[11] magistratus, performing the legal procedures with private subjects on
behalf of municipalities, acted on the basis of public and private law. The
public officers made mainly the contracts: sale (emptio-venditio), arrentation of public areas (locatio-conductio rei), or the contract on doing public works. In
those cases, the clerk acted on behalf of the institution, which he
represented. That was the direct representation, defined in sources as nomine communi municipium[12].
Therefore, that was the defection of the rule of indirect representation,
typical for Roman private law at that time. Consequently, it can be stated,
that there were the beginnings of dogmatically unknown construction of indirect
representation. Any disputes resulting from these legal activities were solved
by means of instruments of legal protection typical for formulary process (per formulas).
On the basis of analysis of sources in literature of the end of the19th
and the beginning of the 20th centuries, there was worked out the distinct
theory, called the indirect representation. According to that theory magistratus performed the legal
procedure with the direct effect for him, only later, at the end of his
authority service, he made the transfer of his liabilities for the
municipality. Therefore, that was the classical indirect representation, as a
consequence, during the period of performing magistratus function, the person taking civil-legal liability was
self-responsible. Within mutual accounts, particularly for the damages
sustained during the transport of corn, the clerk had the possibility to
require the compensation against the municipalities with actiones utiles or to accept the praetor protection[13].
The Italian Romanist A. Bricchi[14], mentioned above, properly noticed in the 40s of the 20th century, that
the French Romanist B. Eliachevitch[15], the main representative of that theory, omitted the earlier research
and accepted the rule, according to which magistratus,
as a representative of organs or institutions, represented them directly.
Therefore, he performed the legal procedures, also within the private law,
contracting obligations with direct effect for the represented institution.
In turn, in the latest literature we can find the conception by Y.
Thomas, introducing a new notion quasi the
cities representation by the clerks at performing civil-legal activities, means
something between the direct and indirect representation[16].
The conceptions mentioned above, related with the character of legal
procedures, were formulated, imitating the contemporary conceptions of direct
representation[17]. In the meantime, according to the Roman legal dogmatics, any
definitions and generalizations were created in general for the needs of
didactics, not practice, which is still something dynamic, beyond specified
frameworks. Hence, Javolenus said that any definitions are not safe[18]. Therefore, the practice applied in Roman law, can be revealed though
the analysis of specific events (cases), which will allow to formulate several
generalizations, and as a consequence, to indicate the similarities between the
past and contemporary regulations.
4. – Legal bases of clerks responsibility
The clerks responsible for purchasing corn and its supply to Rome or
municipalities had to undertake the activities within their representation of
cities. The range of magistratus qualifications
resulted from general principles, customs, or the warrant given by the city
council (ordo decurionum).
In case of purchasing corn, the most important issue was to fix the
price. Since that determined the security of proper amount of financial
resources in the state or city budget, and the clerks responsibility.
Paul. l. primo sententiarum (D. 50.8.7 pr.):
Decuriones pretio viliori frumentum, quod annona temporalis est patriae suae,
praestare non sunt cogendi.
According
to Paulus, magistratus was obliged to
purchase corn according to market prices. Therefore, he was not obliged to
search special offers. It was enough to display, that the price of corn
purchased did not vary from the market price, obligatory at that moment. That
statement should be seen from the perspective of fighting with the phenomenon
of manipulation of corn price, e.g. through the price conspiracy. Marcianus,
the other lawyer, represents similar attitude.
Marcianus libro primo de iudiciis
publicis (D. 50.1.8): Non debere cogi decuriones
vilius praestare frumentum civibus suis, quam annona exigit, divi fratres
rescripserunt, et aliis quoque constitutionibus principalibus id cautum est.
The Emperors Marcus Aurelius and Lucius Verus (divi fratres) decided that Decurions should not have been forced to
supply corn at the lower price than the market offered. Furthermore, the
similar solutions were defined in other emperors’ constitutions.
E. Albertario[19] in the textbook for Roman law of contract undertakes briefly the issue
concerning clerks responsibility for the city food supply. According to the
author, the lower clerks, both in provinces and in cities, were jointly and
severally responsible together with nominators,
means with those who nominated them, to accomplish specified assignments on
the basis of the corn supply contract.
The dogmatic construction of magistratus
responsibility for the liabilities, appearing with the occasion of making
contracts on corn supply, was based on existed earlier responsibility of administrators
for the property of the persons being under charge[20]. In case of constituting several administrators, all of them were
jointly and severally responsible. Analogically, in case of clerks
responsibility for the liabilities towards the city purse. In that case, they
were also jointly and severally liable.
Since Marcus Aurelius[21] times, magistratus was
responsible only in case, if he was able to notify the objection against the
activities of his friend in the office, and he did not do it. However, the
clerks could not institute an action (action)
within the formulary process. Consequently, the magistratus responsibility[22] was becoming restricted. Papinian justifies the conception mentioned
above in the text.
Papin. l.
secundo quaest. (D. 50.1.11 pr.): Imperator Titus Antoninus Lentulo vero
rescripsit magistratuum officium individuum ac periculum esse commune. Quod sic
intellegi oportet, ut ita demum collegae periculum adscribatur, si neque ab
ipso qui gessit neque ab his, qui pro eo intervenerunt, res servari possit et
solvendo non fuit honore deposito. Alioquin si persona vel cautio sit idonea, vel solvendo fuit quo tempore
conveniri potuit, unusquisque in id quod administravit tenebitur.
According to the Papinian’s text, the emperor Septimius Sewer in his
rescript addressed to unknown Lentulus, expresses the rule concerning magistratus responsibility. According to
that rule, the duties are individual for each magistratus, however the responsibility is collective – magistratuum officium individuum
ac periculum esse commune. The content of that
rule is the reflection of collegial system of running local authorities offices
during the republican period, or later in municipalities or colonies. The
responsibility of clerks, shaped in such the way, was applied also in relation
to the administrators. According to Claudius Tryphinus Et tutorum quidem periculum commune est in administratione tutelae et
in solidum universi tenentur[23], the administrators were jointly and
severally responsible for governing the pupils’ properties. The source of joint
and several responsibility was not the contract, legal act, or fault.
Therefore, the joint and several responsibilities of magistratus, resulted from the risk, attributed to the public
function and the constitutional duty, related with it, to take care of the city
property[24].
In further part of the Ulpian text there are following two
specifications of magistratus
responsibility. In the second sentence the joint and several responsibility was
attributed to the colleague at office, if one of them personally or his
representative performed the legal action on behalf of the represented legal
person, with the damage for the municipality. The joint and several
responsibilities was applied only in case if the person responsible for
accomplishing the legal action was insolvent. As a result, the joint and
several responsibility of the colleague in an office had subsidiary character
in relation to the magistratus individual
responsibility. Such the solution has its reflection in the third sentence,
where Ulpian writes, that in case of submitting high enough deposit by the
clerk, or in case of possessing financial resources, each magistratus bears the responsibility individually, for his
governance actions, including civil-legal activities.
In the following extract Ulpian presents the rule about the basis and
the range of magistratus responsibility.
Ulp.
l. 1 ad ed. (D. 50.8.8): Magistratus rei publicae
non dolum solummodo, sed et latam neglegentiam et hoc amplius etiam diligentiam
debent.
Magistratus responsibility
had subjective character, so they bear the responsibility for fault (dolus), that means for intentional activities
with the damages for municipality. Ulpian indicates that they were also
responsible for negligence (neglegentia)
and for the shortage of proper diligence (diligenti),
which they had to demonstrate, as at dealing with their own matters[25].
The joint and several responsibility rule of magistratus generated following consequences, which are described
in the text by Ulpian:
Ulp.
l. 3 opinionum (D. 50.8.2.10): Quod depensum pro collega in magistratu
probabitur, solvi et ab heredibus eius praeses provinciae iubet.
The joint and several responsibility is linked with the right of
recourse. Therefore, the payment of whole due by one of the responsible clerk,
generated the right of recourse in relation to the others. The return of
payment could be claimed also from the successors of the obliged persons. Such
the solution appears also in municipalities legal acts, e.g. in lex Ursonensis cap. 80, where there is the regulation obliging the clerk to account
the public money, which he disposed, within thirty days since resigning from
the office. In case of his death, that duty was transferred on his successors[26]. Investigation of regression claims took place at the governor of
province.
The clerk responsibility for the liabilities, contracted on behalf of
the city, were covered from the financial resources (caution rem salvam fore)[27], that was paid by clerks to the public purse during the republic
period, whereas during the principate period, the municipal clerks had to pay
it. The function of deposit was to protect the interests of the state or city
in case of improper governance of the property, charged to magistratus[28]. The example of constituting such the deposit for the duumvirs and
ediles exists in numerous sources; in lex
municipii Tarentini 1.7.12 [29], among others. Still during the 3rd century AD, all the clerks, who
performed public functions- quo eius
nomine rei publicae abest, paid the responsibilities for the contracted
liabilities[30].
The joint and several responsibility of duumvirs for the city matters, was
distinctly wider, than in case of occurring such the responsibility among the
private persons.
Further analysis of the sources shows that in the 2nd century AD, the
rules of municipal clerks’ responsibility, particularly the duumvirs, were
spread in relation to the curators. For example curator kalendarii was responsible for the city debts because of
loans, which were taken during his work in the office, even if the clerk did
not do any activities associated with the loan contract[31]. In that case the responsibility was not based on a gilt, that was the
decision of the emperor Alexander Sewer[32]. The clerks were also responsible for not paying the rent by renters of
public lands, if they made the contract with them, independently of their fault[33]. Such a wide clerks responsibility was started to be limited in the 2nd
century AD on the basis of rescripts[34].
5. – Responsibility rules of magistratus
Ulpian writes in book 50 entitled 8
De administratione rerum ad civitetes pertinentium about several rules related
with magistratus responsibility.
Ulp. l. 3 opinionum
(D. 50.8.2.1): Quod quis suo nomine exercere prohibetur, id nec per subiectam
personam agere debet. Et ideo si decurio subiectis aliorum nominibus praedia
publica colat, quae decurionibus conducere non licet, secundum legem usurpata
revocentur.
According to Ulpian magistratus cannot delegate more rights than he
possesses himself. That late classical
lawyer gave as an example situation of delegating the third person by Decurion to
rent public lands. That action constituted the violation of law-secundum legem
usurpata revocentur, because of the fact, that the individual Decurion did not
have such the right.
In the following text he says about the necessity of spending public
financial resources according to the purpose.
Ulp. l.
3 opinionum (D. 50.8.2.2): Quod de frumentaria ratione in alium usum conversum est, sua causa cum
incremento debito restituatur: idque etsi contra absentem pronuntiatum est,
inanis est querella. Ratio tamen administrationis secundum fidem acceptorum et
datorum ponatur.
Financial resources intended on corn
purchasing could not be spent on the other purposes. The clerk himself could not do it by his own
initiative, without acceptance. The
clerk responsible for corn purchasing was obliged to return the amount of
money, expended without accordance to the aim, together with the interest
charged from the day of changing the purpose. Returning the financial
resources, spent not suitably, was prosecuted judicially. Judge had the right
to pass the sentence even at the absence of the person concerned. Such the
solution was justified with the fundamental right which is the basis of
administrating the public properties – good faith and honesty – secundum fidem.
The duty to return financial resources
without accordance to the purpose, appeared also when money was spent to
accomplish another public need.
In the extract given above Ulpian gives the
example of changing the intention of spending the financial resources earlier
intended on purchasing corn, to realise the other public purpose, e.g. building
the public bathhouse. Even spending those financial resources well-meant did not absolve from an obligation
to return the whole amount of money to the public purse, even from their own
resources.
Ulp. l.
3 opinionum (D. 50.8.2.5): Si indemnitas debiti frumentariae pecuniae cum suis usuris fit,
immodicae et illicitae computationis modus non adhibetur: id est ne commodorum
commoda et usurae usurarum incrementum faciant.
According to Ulpian the interest should not be exaggerated. In such the
case, the person obliged to pay could refuse to pay it.
The joint and several responsibility of magistratus created the
liability (rekurs) among the clerks, when one of them paid the financial
resource to the city or state public purse.
Ulp. l. 3 opinionum
(D. 50.8.2.9): Actio autem, quae propter ea in collegam decerni solet, ei qui
pro altero dependit ex aequitate competit.
Ulpian in
his argumentation, justifying such the solution, applied the rule of right. In
practice, that meant that the clerk when making the decision should demonstrate
proper qualifications, not only those required to perform the office
assignments, but also, the moral values. Hence, he was obliged to repair the
damages occurring in municipality property, caused by making a profitless
contract[35].
Magistratus were
jointly and severally responsible for the damage caused, if they governed the
public resources improperly. As a result of such the governing one of the
collegial clerks payed the damage. Consequently, he had reserved the right, to
investigate from his office colleague, a half of the returned amount of money
(rekurs). Such the solution was applied during the republican period, what is
acknowledged in numerous examples contained in municipality legal laws[36]. In turn, the principate period was the time of applying cognitive
process, hence, in many sources there are also the cases of municipality clerks
responsibility at the provinces’ governors, with applying the typical cognitive
processes procedures[37].
The
following issue, which requires to be solved, is the case of interest of public
money, which obligatory has to be returned to public purse, if it is spent
improperly.
Ulp. l. 3 opinionum (D. 50.8.3.1) Qui fideiusserint pro conductore vectigalis
in universam conductionem, in usuras quoque iure conveniuntur, nisi proprie
quid in persona eorum verbis obligationis expressum est.
In the text
given above, Ulpian says that in case if magistratus
fully guaranteed for the tax
collector, he was obliged to return money, which the tax collector should have
gather, but he did not do it, but also he was responsible for the interest
resulting from the legal law.
Ulp.
l. 3 opinionum (D. 50.8.3.2) Sed si in locatione fundorum pro
sterilitate temporis boni viri arbitratu in solvenda pensione cuiusque anni
pacto comprehensum est, explorata lege conductionis fides bona sequenda est.
Magistratus was not
obliged to pay interest in case of crop failure. In case of renting the lands,
if there was the crop failure, the renter was not obliged to pay the rent
during that year, and the tax collector and magistratus
who made the contract, returned to the public purse only the nominal amount
of money without any interest. Such the immunity resulted from the fact, that
in such the circumstances, he was treated as an honest person, who, although
gave his due diligence, did not achieve the expected increase. However, he had
to have good faith at executing the stipulations of contract – lex conductionis.
6. – Conclusions
Although
in Roman law they did not know the notion, legal person, it was applied in
municipal practice, among others. Municipalities had their own representation
in duumvires persons. In the Roman jurisprudence letters and emperors’
constitutions, there were written the rules of responsibility of
municipalities’ organs for improper governing of the city properties. The basic
rule, which later generated magistratus
responsibility, was the purposiveness of the public financial resources
expenditures. The public resources disposers could not decide about any changes
of their allocation. The changes in purposiveness initiated the duty of their
returning to the public purse together with the interest. The clerks were
responsible even in case when they changed the purposiveness of public
financial resources expenditure with good faith for another public aim. The
city prosecuted the claim in that account, in relation to the successors of the
obliged person. Spending the public financial resources for another aim was
treated as causing the damage on the public property.
In principal, the clerk who decided and gave the
disposition about public financial resources expenditure was responsible for
it. Payment was balanced from the deposit,
which magistratus brought into
municipal purse, at the opportunity of his election for the post, or from his
private property. In case of his insolvency, i.e. the deposit was not big
enough, or his private property was not enough to compensate the damage, then
they applied the principle of joint and several liabilities of magistratus working at the same office.
Such the solution had its source in the rule of collegial office governing in
republican Rome and in municipalities. Therefore, when one of the duumvirs was
insolvent, then the payment for the municipality had to be given by the others.
However, that who paid the money had the right to institute a civil action
against the office colleague for the return of payment (recurs). That action
could be also instituted in relation to the successors of the person legally
liable.
Abstract
Municipalities had their own representatives, the duumvirs, whose
assignment was day-to-day governance of the city. The duumvirs also bore
governance financial liability. The basic responsibility rule of magistratus was the purposiveness of
public financial resources, being expended. The change of expenditure’
intentionality created a duty to return the resources to the public purse
together with interest. Such the duty was on the clerks, even when they changed
the purposiveness of spending the public resources, in good faith, for the
other public purpose. The city prosecuted a claim of that virtue even in
relation to the successors of the obliged person. Payment was balanced from the
deposit, which magistratus brought
into municipal purse, at the opportunity of his election for the post, or from
his private property. In case of his insolvency, there was applied the
principle of joint and several liability of the clerks working at the same
office.