The Censor in the Late Republican Empire and His Meaning for Modern Democracy

In the Late Republican time, the censor was involved in maintaining and enforcing moral conduct amongst the citizenry. It had to guard the morals of the populace. The question to be asked now concerns the implications, for humanity in a modern democracy, of censuring the censor. This study determines that the functions of the censor display similarities with that of the Public Protector in a modern democracy. However, the functions of the censor belonged to the Late Republican time. Only centuries later, a bureaucracy, the Public Protector, appeared with functions similar to those of the censor. However, because of the constitutional demands of a modern democracy, the Public Protector had to fulfil additional and wider-ranging functions. Despite these larger and wider-ranging functions, the influence of the censor is clearly to be seen in the functions of the Public Protector.


Introduction
Governments are seen as the protectors of the interests of the citizens and of its own interests.A democracy can only survive if the citizens have the assurance that their safety and other rights vis-à-vis other people and the government will be protected and respected.This will best be done if maintaining morally good acts amongst the citizenry as well as the bureaucracy is enhanced.
The censors of the Roman Empire display similar functions as government officials (for instance, the Public Protector) in a modern democracy.For purposes of this article, a study concerning the term, jurisdiction, and powers of the censor in the Late Republican period is hugely important.The article further aims at making relevant the role of censor for the modern democracy (under the Public Protector).The influence of the censor in the Late Republican Empire is still relevant and serves as the ground for maintaining morally good acts.On this basis, the protection of human rights in a modern democracy has been made possible.

The origin of the censor
The census was introduced by Servius Tullius, the sixth king of Rome.After disposing of the kings and founding the Republic, the census was replaced by the consuls in 443 BC "Idem hic annus [443 BC] censurae initium fuit, rei a parva origine orate, quae deinde tanto incremento aucta est ut morum disciplinaeque Romanae penes eam regimen […]" (Note 1) Because the census was labour intensive and beneath the dignity of a consul, the need arose for an appropriate bureaucracy, i.e. the censor, to fulfil this task." [Cui] scribarum ministerium custodiaeque tabularum cura, cui arbitrium formulae censcendi subiceretur."(Note 2) The first censors were Papirius and Sempronius.(Note 3) Up until 442 BC, no more consuls were elected, but only military tribunes.Because the military tribunes could also be plebeians (ordinary workers class), the patricians (nobility) feared that the plebeians would in due course obtain control over the census.The patricians thus terminated the tribunes and entrusted the job of census to two officials, the censors.They had to be elected from the patricians.
The patricians dominated the office of censor until 351 BC, when Gaius Marcius Rutilus was appointed as the first plebeian censor.(Note 4) Approximately 12 years later, a Publilian law decreed that at least one of the censors had to be a plebeian.(Note 5) In 131 BC, both censors were plebeians for the first time.
There were usually two censors.Should one of them die during his term of office, the other one replaced him.This happened only once in 393 BC when the Gauls occupied Rome.However, the Romans viewed this as "an offense against religion".(Note 6) Since then, if one of the censors were to die, his colleague had to resign and two new censors were elected to replace them.(Note 7) The censor was involved in the regulation of the moral acts and discipline of the Roman citizens.(Note 8) There had to be no motive for financial gain from the office.For instance, Cato travelled from on village to the other in the mornings to hear cases.He then returned to his farm and worked in the fields with his slaves.(Note 9) He received no financial gain for his services.

The term of office of the censor
The Romans believed that the biggest protection of the freedom of citizens lie in the fact that positions of power were not to be of a lengthy nature, but that a time limitation had to be placed on them.(Note 10) Owing to ancient legislation, the term of office of the censor was initially determined as five years.Ten years after setting up the office, the term of office was reduced to 18 months by the dictator, Mamercus Aemilius Mamercinus by means of a law, the Aemelian law.(Note 11) Mamercus wrote: "Ut re ipsa" inquit "sciatis, Quirites, quam mihi diuturna non placeant imperia, dictatura me abdico."(Note 12) As far as the tension between the ancient legislation and the Aemelian law is concerned, the latter won because it was ordained after the ancient precept and practice required that later legislation should replace earlier legislation." [Et] ideo Aemiliae potius legi paruerunt quam illi antiquae qua primum censores create errant, quia hanc postremam iusserat populus, et quia, ubi duae contrariae leges sunt, simper antique obrogat nova."(Note 13) On the one hand, this gesture by Mamercus was received favourably by the Roman citizenry.On the other hand, prominent patricians criticised this limitation on the term of office of the censor.The Aemelian law was binding on the censor and it remained valid for approximately 100 years after its proclamation.For example, the censor Appius Claudius was threatened with imprisonment if he did not obey the Aemelian laws.(Note 14)

The election of the censor
Censors were elected in the Centuriate meeting, with a consul as chairperson.(Note 15) Both censors had to be elected on the same day.If the election was not completed on the same day, it was considered invalid and a new meeting had to be held.(Note 16) Once the censors were elected and the censorial powers were granted to them by the decree, Lex Centuriata, they were thus installed in their office.(Note 17) Only someone who has been consul was fit for the office of censor.(Note 18) There were no laws prohibiting someone from standing for censor twice.However, only one person was elected to the office of censor twice, namely Gaius Marcius Rutilus in 265 BC.In the same year, the latter decreed a law that entailed that now one could be elected as censor twice.For this, he received the nickname Censorinus.(Note 19)

Features of the office of censor
The office of censor was regarded as the highest in dignity in the Roman Empire.It was regarded as "sanctus magistratus" (sacred magestry) worthy of the highest respect.(Note 20) Persons filling this office had to bestow it with power and dignity.(Note 21) The dignity of the office of censor was entrusted to this office on account of their maintaining and enhancing morally good acts amongst the citizenry.Based on this, the censors had at their disposal the regimen morum (the general control over the moral behaviour of citizens of the state).On basis of dignified features entrusted to this office, the censors had to allow themselves to be led by their own views (ad arbitrium censoris) and were not required to be responsible towards any other office in the state.(Note 22) This -responsibility towards other offices -could leave a loophole for the abuse of power.

Duties of the censor
The duties of the censor can be divided into three classes.Firstly, they had to register the citizens and their property; secondly, they had to guard over the regimen morum (maintaining the moral conduct of the citizens); and lastly, they had to supervise the finances of the state.(Note 23) For purposes of this article, only the second duty of the censor will be discussed.
After the censors were relieved from the duty of public administration because of a lack of funding (in the state coffers), they then focussed their attention on maintaining public morality (regimen morum).(Note 24) The latter (duty) will be regarded as one of the most important duties of the censor.This made the office of censor into one of the most remarkable and feared in the Roman state.As far as the latter is concerned, the censors were also known as castigators (chastisers).In terms of this description, they were viewed as the maintainers of the public mores and morality.(Note 25) They were not only to prevent or punish crime or immoral acts by way of censure, but they also had to maintain the traditional character, ethics, and habits (mos majorum) of the Roman population.(Note 26)

Censure (punishment by the censor)
Die punishment imposed by the censor (censure) was preceded by the nota (mark, letter) or notatio, or animadversio censoria (censorial reproach) or praefectura (command).The Roman population habitually associated the rebuke (nota) with punishment and it would later be known as the nota censoria.Because, as previously noted, the censor was not required to report to anybody, the suspicion existed that they could abuse their power by being prejudiced.That the censors allowed themselves to be led by their discretion strengthened this suspicion.It was thus decided that censors were to perform an oath stating that they would not be prejudiced.The practical implication of this oath caused the censors to be bound in every case (on their list) to be able to name (subcriptio censoria) the name of the guilty person(s) and the punishment about to be meted out to him.(Note 27) This was most probably done to curb the prejudice of censors and to prevent the abuse of power.
The nota was only ignominia and not infamia.(Note 28) This meant that the punishment were not eternal in nature but could be undone by following censors or by way of a lex.Ignominia was of a transitory nature and most probably did not remove someone (who were preparing for an office) of his office, or disqualified him.(Note 29) For instance, Mamercus Aemilius was raised to dictator by the censor despite an official transgression and the following reproach.(Note 30) However, the nota was not valid unless both censors agreed on the punishment.
The nota censoria was used to punish the following transgressions: if, for instance, and individual lived in celibacy during a time which citizens were forced by the state to marry in order to live as citizens of the state, (Note 31) the breaking up of a marriage, or engagement in an untoward way or for insufficient reasons, (Note 32) inappropriate behaviour towards women and children as well as insubordination of children towards parents, (Note 33) a luxury lifestyle or exorbitant waste of public funds, (Note 34) neglect or failure by and individual to cultivate his fields, (Note 35) cruelty towards slaves or clients and the perpetuation of scandalous trade or career, such as playing in theatres.(Note 36)

6.1Effect of the punishment (censure) of the censor
By way of the nota censoria, a perpetuator could be excluded from or released of the rank of senator (ejection e senatu) by means of motio (removal).(Note 37) The punishment could entail the mere exclusion from the list of senators or a perpetuator could be demoted to an agriculturalist.(Note 38) By means of an ademptio equi, the state-subsidised horse of a guilty person (equestrian) was taken back from him in public.(Note 39) The punishment could be combined with both of the abovementioned.(Note 40) The motio e tribu entailed that a perpetrator was ostracised from his family.(Note 41) Lastly, the referre in aerarios or facere aliquem aerarium was imposed on any person whom the censors though deserving of such a punishment.This punishment included all other forms of punishment: "for an equestrian could not be made an aerarius unless he was previously deprived of a horse, nor could a member of a rustic tribe be made an aerarius unless he was previously excluded from it."(Note 42) The Latin phrases iudicium censorium, gravitas censorial, and auctoritas conseria are indicative of the fact that the censors were persons endowed with power and thus able to make judgements and ascribe punishments.The censors usually put a mark (the nota censoria) behind the name of a (public official) senator who was found guilty of misconduct.Thomas wrote: "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 […]" (Note 43) Wolf wrote about the nota censoria: " [It] […] became [the censors] dreaded weapon."(Note 44) Because of the impact of the nota censoria, the censor was also vested with the competence to end the career of a senatorial official.(Note 45) They also maintained the right not to reappoint former members of the senate who, in their eyes, were unworthy."[The] censors […] deleting the names of those who had […] in their opinion […] by reason of misconduct, [be] unworthy to hold the senatorial dignity."(Note 46) The nota censoria also adversely affected the credit standing of a convicted senator.However, this did not hold for women because they were not tax payers, soldiers, or enfranchised citizens.(Note 47)

The end of the censor
The censor existed for 421 years, i.e. from 443 BC to 22 BC.This office was terminated by Lucius Cornelius Sulla.No census was performed between the time of Sulla's dictatorship and the first consulship (82-70 BC) of Gnaeus Pompeius Magnus (Pompey).
The strict maintenance of moral behaviour amongst citizens, which was supported by Sulla, was, however, disregarded by the aristocracy.This is proof of the fact that, during this period, the censor did not figure anymore.However, the censor revived again under the next consuls, i.e.Pompey and Marcus Licinius Crassus.Thus the power and influence of the censor could not be reinstated.(Note 48) During the civil wars in Rome, no more censors were elected.After a long interlude, censors were once again appointed in 22 BC, when August caused Lucius Munatius Plancus and Aemilius Lepidus Paullus to fill this office.(Note 49) This was the last time that censors were appointed.

Practical application: the duties of the censor vis-à-vis the Public Protector
The powers of the censor resemble that of the Public Protector (Ombudsman in the previous dispensation, Ombudsman Act, Act 118 of 1979) in the current dispensation.The Public Prosecutor, however, has more powers than the censor had.In contrast to the censor, the Public Prosecutor can investigate "unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a function connected with his or her employment by an institution or entity contemplated in paragraph (a)" (Note 50) According to this, it is clear that the Public Protector covers a much wider field than mere complaints concerning prejudice consequent upon the unlawful or improper conduct by the state or an official of the state in public capacity.The South African Legal Commission subsequently recommended that the Public Protector should also have the powers to investigate complaints that deal with the violation of environmental rights, fundamental rights and freedoms, complaints pertaining to corruption, bribery and the theft of state money.These recommendations of the Legal Commission are supported by sections 177(3) and (4) of the Constitution of South Africa, Act 108 of 1996.Apart from the Public Protector's duty to maintain moral acts, s/he also acts as the champion for the protection of basic human rights.

Conclusion
It is clear that the Public Protector performs similar functions to those of the censor.The duties of the censor were characteristic of the circumstances of the Late Republican period in the Roman Empire.The Public Protector's functions are requested by the demands of a modern democracy in order for the Protector to fulfil a wider-ranging function than that of the censor.Common to both offices is the fact that they are involved in maintaining morally good acts that serve as the basis for the protection of basic human rights.On this basis, the Public Protector can thus been regarded as the successor of the censor, despite the wider-ranging duties of the former.As said earlier, the larger duties of the Public Protector were necessitated by the need of a modern democratic dispensation.Apart from the wider-ranging duty, both offices have as common denominator the maintenance and enhancement of morally good acts amongst the citizenry.In this, the influence of the censors can be seen in the functions of the Public Protector when it concerns the maintenance of morally good acts amongst the citizenry amongst each other and vis-à-vis the public administration (state).

Notes
Note 1. Livy iv: viii."This same year saw the adoption of the censorship, an institution which originated in a small way but afterwards grew to such dimensions that it was invested with the regulation of the morals and discipline of the Romans."Note 2.