intercessio

• I Lit.: testium, Gell. 14, 2, 7.—
• II Transf.
• • A An interposition, a becoming surety for one: mea intercessio parata et est et fuit, Cic. Att. 1, 4: intercessiones pecuniarum in coitionibus candidatorum, id. Par. 6, 2.—
  • B A fulfilment, performance, Cod. Just. 12, 22, 1; Cod. Th. 6, 28, 4. —
  • C An intervention, interposition, protest on the part of a tribune of the people, who annulled a decree of the Senate by his veto: cum intercessio stultitiam intercessoris significatura sit, non rem impeditura, Cic. Agr. 2, 12: intercessionem liberam relinquere, Caes. B. C. 1, 7: remittere, Liv. 38, 54: intercessionem facere pro aliquo, Gell. 7, 19: intercessionem suam interponere, Val. Max. 6, 1, 10.

• 1 CAD-, a mediation, suretyship: mea intercessio parata est.—An intervention, interposition, protest, veto: tribunicia, Cs.: empta: remittere intercessionem, L.

INTERCESSIOLEGAL. It is intercessio when a person takes upon himself the debt of another. To become intercessor a person must incur liability by entering into a contract or other transaction with some one else's creditor. Thus a payment by one person of another's debt is not intercessio, because no liability is incurred by such payment (Dig. 16, 1, 4.1). Nor is it intercessio to promise a debtor to indemnify him for outgoings to his creditor, since no relation is thereby created between the party promising and the creditor. He who intercedes may either (1) take upon himself the debt of another and become debtor in place of that other (privative intercession), or (2) become debtor while the person for whom he intercedes is also debtor (cumulative intercession).

1. To the first head, that of privative intercession, belong (a) the case of a man taking upon himself an already existing obligation of another, so as to release the latter from all liability. In this case the old debt is put an end to by a species of novation, called expromissio, the creditor accepting the intercessor as his debtor in the place of his previous debtor, and thus discharging the latter; (b) the case of a person taking an obligation on himself which does not already exist, but which the person for whom he intercedes would otherwise have contracted for himself. This is called intervention (cf. Dig. 16, 1, 18.14: Si quum essem tecum contracturus, mulier intervenerit, ut cum ipsa potius contraham, videtur intercessisse).

2. To the second head, that of cumulative intercession, belong (a) the case of a person becoming surety for another; (b) the case of a person becoming a party to a correal obligation otherwise than as fidejussor (as to correi, cf. Inst. 3.16, De duobus reis stipulandi et promittendi; and see art. OBLIGATIO); (c) the giving a thing in pledge for the debt of another (Dig. 16, 1, 8pr., 32.1).

It may be convenient to give some account in this place of the law relating to a surety's liability. It was a general rule that a contract of suretyship could only be entered into in a formal way by question and answer. In the case of a sponsor, the interrogatio was, Idem dari spondes? In the case of a fidepromissor, it was, Idem fidepromittis? In the case of a fidejussor, it was, Idem fide tua esse jubes? The object of having a sponsor, fidepromissor, or fidejussor, was greater security to the stipulator. With respect to one another sureties were consponsores (Cic. ad Att. 12.1. 7), confidepromissores, confidejussores. In the Institutes of Gaius, a distinction is made between sponsores and fidepromissores on the one side, and fidejussores on the other. Each sponsor or fidepromissor (the obligation of sponsor and fidepromissor became identical, but only cives could be sponsores) was originally liable for the whole debt for which he was security, and he had no means of action against a co-sponsor. The liability did not pass to his heredes. By the Lex Publilia, sponsores who had been compelled to pay the debt had a special action in duplum against the principal debtor, which was called actio depensi.

The Lex Furia de sponsione, B.C. 345, made a considerable change in the position of sponsores and fidepromissores, by enacting that a sponsor or fidepromissor should only be liable for his share of the debt with his co-sureties, who were alive at the time when the money became due (singuli viriles partes), and that he should cease to be liable after the lapse of two years. A Lex Apuleia, which was passed before the Lex Furia, gave one of several sponsores or fidepromissores who paid more than his share an action against the rest for contribution; but this lex was rendered useless by the Lex Furia, at least in Italy, to which country alone the Lex Furia applied, while the Lex Apuleia extended to places out of Italy.

Fidejussores were of later institution than sponsores and fidepromissores, and, on account of the preference given to them, gradually superseded the older kind of surety. Each fidejussor was liable for the whole debt, as if he were sole debtor, his obligation being that of a correus (singuli in solidum obligantur). Fidejussores were never released from their obligation by length of time, and the heres of a fidejussor was bound. A fidejussor who had been compelled to pay the whole amount had no redress against his co-fidejussores, but every surety could recover on a mandati judicium from his principal whatever he had been compelled to pay on his account. A creditor might sue either the debtor or his fidejussor, and after he had elected to sue one of them he could not sue the other. Sponsores and fidepromissores could only become parties to a debt which was contracted by stipulation, though in some cases they might be bound when their principal was not, as in the case of a pupillus who promised without the auctoritas of his tutor, or of a man who promised something after his death; but a fidejussor might be accessory to all obligations, whether contracted re, verbis, litteris, or consensu, or arising in any other way.

The stringent liability of fidejussores was somewhat lessened by special enactments of the emperors in their favour (beneficia). Thus, by a rescript (epistola) of Hadrian, a fidejussor who was sued might require (ope exceptionis) the creditor also to sue the other solvent fidejussores, each according to his proportion. If any one of them was not solvent, his share became a burden to the rest. According to a change in the law made by Justinian (Novell. 4), a fidejussor might compel the creditor to sue his debtor, if solvent, before having recourse to him (beneficium excussionis). A fidejussor before paying the debt might insist that the creditor should assign to him all his rights of action against co-fidejussores (beneficium cedendarum actionum).

The Lex Cicereia provided that a creditor who obtains the guarantee of sponsors and fidepromissors should previously declare to them the amount of the debt to be guaranteed and the number of sponsors or fidepromissors by whom it was guaranteed. If it was judicially proved that the creditor had not complied with the requisitions of the law, the sureties were released. This rule was subsequently made the practice in the case of fidejussores also (Gaius, 3.123). A Lex Cornelia limited the amount for which any person could be a security for the same person to the same person within the same year to twenty thousand sesterces, but with some exceptions, one of which was a security dotis nomine. No person could be bound in a greater amount than his principal, but he might be bound in less.

In the legislation of Justinian sponsores and fidepromissores are not recognised, they having been entirely supplanted by fidejussores. The subject of the sponsio often occurs in Cicero's letters; and in one case he was called on in respect of a sponsio alleged to have been given by him twenty-five years before (ad Att. 12.17). Cicero uses the expression appellare to express calling on a surety to pay (ad Att. 1.8). Certain informal kinds of guarantee, called mandatum qualificatum and constitutum debiti alieni, which are also species of intercession, were established in later Roman law; for an account of these, see MANDATUMand CONSTITUTUM.

Women were incapacitated from doing certain acts on account of the weakness of the sex. In the early part of the reign of Augustus, and in that of Claudius, it was declared by the Edict that women should not intercedere for their husbands. Subsequently, in the reign of Claudius, A.D. 46, the Senatusconsultum Velleianum absolutely prohibited women becoming sureties or borrowing money for others, two particular modes of intercession. The law was extended by the jurists to other cases of intercession, which, though not expressly provided for in the SC., were within its principle. A woman who was sued in respect of her intercessio, or her heres, might plead the statute (exceptio SC. Velleiani). Whatever she paid in ignorance of her right so to plead, she might recover. In certain cases a woman was permitted to renounce the benefit of the senatusconsultum; and there was a considerable number of exceptions to the rule that a woman who interceded could plead the senatusconsultum. (For the changes made by Justinian in the law on the subject, see Windscheid, Pandekten, 2.488.) Hence the term intercessio is used in two senses in our sources: (1) for any undertaking by one person of the obligation of another, which is its ordinary sense; (2) in a narrower sense, for any such undertaking, which is contrary to the SC. The Novella 134, 100.8, was specially intended to prevent a wife interceding under any circumstances for her husband.

(Dig. 16, 1, ad SC. Velleianum; Paulus, S. R. 2, 11; Cod. 4, 29; Gaius, 3.115-127; Inst. 3.20, de fidejussoribus; Dig. 46, 1; Cod. 8, 41, de fidejussoribus et mandatoribus; Girtanner, Die Bürgschaft nach gemeinen Civilrecht; Hasenbalg, Die Bürgschaft des gemeinen Rechts; Kattenhorn, Ueber Intercessionen der Frauen; Vangerow, Pandekten, 3. § § 577, 578, 579, 581; Windscheid, Pandekten, 3.476, &c., § 485, &c.; Poste's Gaius, 3. § § 110-127, comm.)

INTERCESSIOCONSTITUTIONAL. Intercessio is used to denote the right of veto possessed by Roman magistrates: a right of which, as Mommsen has pointed out, there are two distinct aspects. One of these is the power possessed by the higher magistrates of forbidding the actions of the lower magistrates: the other is the power possessed, not only by higher magistrates, but by magistrates of equal power, of rendering invalid actions already performed by magistrates of lower or equal authority. The former power is distinct from the latter in that it is an attribute solely of major potestas, and is not necessarily followed by the invalidity of the act it forbids, if this act is performed in spite of the veto; its fullest exercise is shown in the complete suspension of public business known as the JUSTITIUMand it is sometimes spoken of as an exercise of the right of intercessio (Liv. 10.37). But intercessio is more often applied to the employment of the second power, the use of which was far more frequent in the working of the political machinery. It represents the right of a magistrate to render ineffective the completed actions of his inferior or equal. It is an attribute, therefore, not only of major but of par potestas, and the invariable effect of its exercise is the invalidity of the act against which it is levelled. With the institution of the double magistracy in place of the monarchy, the intercession originated within the limits of par potestas; with the creation of the lower magistrates of the people originated the conception of major potestas as giving the right of veto: and this idea culminated in the powers that were vested in the subsequently-created tribune, who had major potestas over every magistrate of the state except the dictator. The intercessio was thus a supervision, exercised by closely-related magistrates, who were theoretically irresponsible during their year of office over one another's functions, for the prevention of illegal or inequitable actions; and on the part of the tribune a general supervision over all other magistracies in the interests, originally of the plebs, later of the whole community.

The intercession originated with the principle of colleagueship, and, except in the case of the tribune, was mainly confined within the limits of colleagueship. Thus the dictator has it against his inferior colleague the consul, the consul against his inferior colleague the praetor; but the consul can also veto the acts of the aedile or quaestor, who are not his colleagues, if we may accept the application to Roman practice of a principle laid down in the municipal law of Salpensa (100.27; C. I. L. n. 1963), although there is no known instance of the exercise of such a veto at Rome. The tribune, outside the bounds of his own college, can exercise the right of intercession against all the patrician magistrates except the dictator--against the consul, praetor, aedile, and quaestor. In the case of major potestas the right of intercession is unshackled; but between certain magistrates of wholly dissimilar character, neither major nor par potestas existed. No relation of this kind could be established between the aedile and quaestor, or between the consul and censor, and accordingly such magistrates have no power of vetoing one another's actions. Another restriction, and one that was necessary to prevent utter confusion in the working of this power, was that the veto could not be vetoed the intercession is final, and the act that is declared void cannot be re-established by any further exercise of this power. Another limitation of the intercession is found in its purely civil character: intercession only exists where divided authority is found; for the purposes of administration militiae such a division of authority was never tolerated; and thus Cicero excludes the intercessio resting on appellatio, the only form in which it could have manifested itself outside Rome, from the military sphere altogether (Cic. de Leg. 3.3, 6). A further limitation rests on the theory that the intercession is only valid when directed against the actions of a magistrate. It was not, therefore, permitted against the decisions of juries in civil cases; the magistrate's functions being confined to proceedings in jure, all those in judicio were outside the sphere of the veto. In the quaestiones, in which the distinction between proceedings in jure and in judicio disappeared [JUDICIUM PUBLICUM], the veto was similarly not permitted against the finding of the magistrate and jury, the reasons being that the quaestiones were a development of civil process, in which the intercession was not permitted, and that the magistrate's acts here, during the process, are not distinguishable from those of the jury. But it appears that against the purely magisterial actions that formed the preliminary of a quaestio, intercession was still possible; in the trial of Vatinius, when the praetor, on application, had named a certain day for the trial, Vatinius appealed to a tribune ne causam diceret (Cic. in Vat. 14, 33).

The intercession may conveniently be considered from three points of view, according to the sphere of the magistrate's actions against which it was directed: the decree (edictum), the rogatio, and the senatusconsultum.

(i.) Against the magistrate's decree (edictum), whether as forming a part of civil jurisdiction of the ordinary judicial magistrates, the praetors, or of criminal jurisdiction conducted by the consul, aedile or quaestor, or of the ordinary administration of the duties imposed on individuals by the state, the intercession was most frequently directed. Intercession in all these cases rests on appellatio, the request for help (auxilium) put forward by an individual who appeals against the decree by which he feels himself injured. The appellatio must be made personally to the magistrate and the intercession exercised personally by him. Thus we find tribunes attaching themselves to consuls, to prevent the execution of their edict on the occasion of an expected levy (Liv. 4.55, 3), and the praetor Caelius Rufus taking up his position next to the chair of his colleague Trebonius, waiting for appeals from the latter's decisions (Caes. Bell. Civ. 3.20, tribunal suum juxta C. Treboni praetoris urbani sellam collocavit, et si quis appellavisset fore auxilio pollicebatur) and in the time of the Empire, when the princeps in virtue of his imperium received such appeals, we find Tiberius taking up a similar position close to the praetor's chair (Tac. Ann. 1.75, 1). This necessity for the presence of the assisting magistrate was most marked in the case of the tribune (Gell. 13.12, Tribuni antiquitur creati intercessionibus faciendis quibus praesentes fuissent), who were prevented for this reason from staying a night without the walls. Certain further limitations and formalities in the appellatio are known to us from the Lex Salpensana (100.27), such as the rule that an interval of three days was granted to the magistrate to inform himself of the grounds of the appellatio made to him, and the rule that no magistrate could intercede more than once in the same case: regulations which, though applying to the organisation of a municipal town, may with certainty have their origin referred to Roman practice. In civil jurisdiction the intercessio might be employed at any stage of the proceedings in jure; the usual appeals were from one home praetor to another, although they might possess different provinciae. Thus Verres the praetor urbanus had his decisions vetoed by his colleague Piso, who was probably praetor peregrinus in cases where Verres had decided contrary to his own edict (Cic. in Terr. 1.4. 6, 119: cf. Caes. Bell. Civ. 3.20); but the consul, who possesses no jurisdictio, can yet veto the decisions of the praetor, as we find him in one case vetoing the decisions of the praetor urbanus in a case of bonorum possessio (Val. Max., 6). This, however, was unusual, and the general principle was to confine intercession to magistrates possessing somewhat similar authority, with the exception of the tribune. So powerful and far-reaching was the tribune's veto against the decree of the magistrate, that it has been thought that the tribune's right of intercession sprang from his power of auxilium, and that his other powers of veto, against the rogatio and the senatusconsultum, were of later growth. His interferences were for the most part against criminal jurisdiction, which, like civil jurisdiction, might be interfered with at any stage of the proceedings before the magistrate, and against the exercise of administrative power, more particularly against that of the consul (Cic. de Repub. 2.33, 58, contra consulare imperium tribuni plebis constituti). In matters of state-administration, such as the raising of consular levies (Liv. 2.43) or the quaestorian collection of the taxes (Liv. 30.3.42), it is the execution of the decree resting on the magistrate's right of coercitio that is interfered with by the tribune. From an appeal of this sort made to the tribune from the coercitio of a magistrate, a kind of quasi-judicial process results, more especially if the appeal had been made to the whole college, the process being spoken of as a cognitio of the tribunes (Liv. 42.33, cognituros se de quo appellati essent). We have such a process described by Livy (l. c.) on the occasion of an appeal from a consular levy. The matter is heard before the college of tribunes ( ad subsellia tribunorum), before which appear the appellants and the magistrate appealed against, to defend the fact against which the appeal has been lodged. The collegium gives its verdict sometimes with the grounds of their decision (Ascon. in Milon. p. 47). It is possible, Mommsen thinks, that the college may in cases like this have found by a majority; although if one tribune persevered in the intercession, he might overrule the adverse decision of his other colleagues (Mommsen, Staatsr. 1. p. 280).

(ii.) Against the rogatio the intercession might be directed as against any other act of the magistrate, and here we find the two aspects of the veto strongly marked; the right to forbid the question being put at all, and the right to intercede against the question after it has been put. The first right belongs to magistrates with major potestas: the consul can forbid the praetor to question the people (Liv. 27.5); and it was from this power the consul possessed of forbidding the question, that the constitutional custom arose for the praetor to consult the consul before putting the rogatio (Liv. 45.21, sed et praetor novo maloque exemplo rem ingressus erat, quod non consulibus certioribus factis de sua unius sententia rogationem ferret). But the intercession against a rogatio that had been already put, though it probably belonged originally to the par majorve potestas throughout the circle of the magistracies, soon became the exclusive right of the tribune. It might be pronounced in any of the assemblies, and against any kind of act brought before these assemblies ; against elections (Liv. 4.50, 8; 25.2-Z2, 6), against leges, including formal acts such as the Lex Curiata (Cic. de Leg. Agr. 2.1. 2, 30), and against plebiscita (Plut. TG 10). Certain formalities were observed in the intercession against a rogatio; it seems to have been irregular to pronounce the intercessio before the day of voting arrived (Cic. ad Att. 4.1. 6, 6; Ascon. in Cornel. p. 58), and indeed before the speeches for and against the law had been made (Liv. 45.2, quum ita traditum esset, ne quis prius intercedat legi, quam privatis suadendi dissuadendique legem potestas facta esset). In the case of leges, the correct time for interposing the veto seems to have been when the introductory acts of the magistrate were over, and just before the voting had commenced (Mommsen, Staatsr. 1. p. 285); in elections we find the tribune interceding after the praerogativa had voted (Liv. 27.6, 5).

(iii.) Against a senatusconsultum. The intercession against a senatusconsultum, as against a rogatio, rested originally on the par majorve potestas. It was exercised by the tribune against the tribune (Cic. pro Sest. 31, 68), consul (ib. 34, 74), and praetor (Cic. ad Fam. 10.1. 2, 3 and 4), and originally by the consul against the consul (Liv. 30.43, 1) and praetor, although it is unlikely that intercession was ever applied in the last-mentioned case, since the praetor did not usually summon the senate while the consul was at Rome. We find no instance of the consul's vetoing a senatusconsultum proposed by the tribune, and it is concluded accordingly that he did not possess this power. The exercise of intercession in the senate was simplified by the magistrate, who intended to veto the resolution, declaring his intention beforehand. This must be the meaning of the declaration often made by magistrates in the senate--by the consul, for instance, against his colleague, that he would not allow any business to proceed, non passurum quicquam agi (Liv. 26.26, 7; 30.40-Z2, 8: cf. 42.10, 10, Popillius prae se ferens, si quid decerneret, intercessurum, collegam deterruit). This threat did not necessarily suspend the particular business in the senate; the motion on which the veto was put, was, if passed by a majority, drawn up as a senatus auctoritas. Sometimes the senate requested the magistrate to suspend the intercession ( intercessionem remittere, Liv. 36.40, 10), and sometimes attached to a particular decree a general vote of censure on any magistrate who should veto it (Cic. ad Farm. 8.8, 6, qui impedierit prohibuerit, eum senatum existimare contra rempublicam fecisse). The intercessio on certain kinds of senatusconsulta might be forbidden by law; thus the Lex Sempronia in 123 B.C. forbade the intercession on the senatorial assignment of the consular provinces (Cic. de Prov. Cons. 8, 17; de Domo, 9, 24). The veto on a senatusconsultum did not apparently interrupt the procedure of the senate, since it was usually pronounced after the voting on the measure (Val. Max.), or while the voting was in progress (Cic. ad Fam. 10.1. 2, 3), but never apparently during the debate. Hence the advantage of the preliminary declaration that the veto would be pronounced.

If we may trust tradition, this right of intercession was not originally confined to magistrates who had the right of summoning or even of sitting in the senate, since it is stated that the tribune possessed the former before he possessed either of the latter powers, sitting on a bench before the doors for the purpose of examining the decrees (Val. Max.). In the course of time, as the tribune gained the right of taking part in the debate and of summoning the senate, his intercessio came to outweigh that of the consuls. Consular intercession against a senatusconsultum continued in force long after such intercession against a rogatio had ceased to be recognised: but before the close of the Republic it yielded even in this domain to that of the tribune. The evidence, which is entirely negative, is strongly in favour of Mommsen's view that after the time of Sulla consular intercession against a senatusconsultum is not found, as against that of Willems, who holds that traces of it are found down to the close of the Republic (Mommsen, Staatsr. 1. p. 282, n. 7; Willems, Le Sénat de la République Romaine, 2. p. 200, n. 2). It is not necessary to imagine that the consular right of intercession in these cases was removed by direct legislative enactment, but that it ceased to be usual, and in time came to be regarded as unconstitutional. The tendency of republican development was to make the tribunate the sole forbidding power, and, in so far as the intercession represented a guardianship of the law, to raise the tribunate into the great corrective power in the state. (Mommsen, Römisches Staatsrecht, 1. p. 67, and pp. 268 sq.; ii. pp. 290 sq.: and for intercession in the senate cf. Willems, Le Sénat de la République Romaine, ii. pp. 199 sq.)

(1) The Latin term for the interference of a higher officer with some public act on the part of one lower in rank—e. g. calling a meeting of the commons. The tribune of the people could thus interfere with the praetor, quaestor, and aedile, so that it was even open to the tribunes of the people to refuse a triumph to a consul or a praetor.

(2) The quashing of an official act. As in (1), this might be issued by a higher official against a lower one; and also by one colleague against another—e. g. by tribune against tribune. It was necessary that the intercessio should be made in person, and in general immediately after the act in question. It was employed against judicial decisions, administrative ordinances (solely on the appeal of the person concerned); also against decrees of the Senate and motions in the popular assembly. The later species of intercessio early became a special right of the tribuni (q. v.).

(3) In general legal procedure, intercessio means the assumption by one person of another's debt. To become an intercessor, he must incur liability by entering into a contract or other similar transaction with the other person's creditors. See Gaius, iii. 110-127, ed. Poste.