THE PRINCIPATE
§ 1. _The Powers of the Princeps_
We have seen that the powers on which Augustus based his position as
Princeps were the _proconsulare imperium_ and the _tribunicia potestas_.
In the theory of a constitution which he presented to the world the first
of these prerogatives was supposed to establish his power outside Rome
and Italy, the second, with its purely civic traditions, to be the basis
of his influence within the central state. His object in exalting the
tribunician power to the first place in Rome and her Italian dependencies
now merged in the city, was to conceal as carefully as possible the
military basis of his rule. The unlimited _imperium_ was to be felt only
by his army and his provincial subjects.
It needed little reflection to show that this principle, although
in appearance the most important that underlay the Principate, was
practically unworkable. Government in Rome was inconceivable without an
_imperium_, and supreme government impossible without one of such an
indefinite character that it should seem to stand out of relation to the
regular and limited _imperia_ of consuls and praetors. This power was
secured by an easy juristic device. By a special exemption, which had its
prototypes in Republican history, the Emperor was allowed to _retain_
the full _imperium_ within the walls;[1585] and lawyers were careful not
to declare explicitly what was implied in this retention. It might have
meant—as it would have meant during the Republic—that the Emperor was not
debarred by his presence in Rome from holding command abroad. It might
signify that the limitations imposed by the city walls now rendered the
proconsular a quasi-consular _imperium_, and this was perhaps the ruling
theory. But a different line of interpretation would have rendered it
easy to show that the _imperium_ here as elsewhere was unlimited. The
nebulous atmosphere of this mockery of a magistracy was as well suited
to the despot as to the constitutional ruler. In the actual position
of the Princeps within Rome we find traces of all these theories. As
a provincial ruler he governs from the capital; as commander-in-chief
he keeps his praetorian guards in Italy and his fleets at Ravenna and
Misenum; while as the wielder of an undefined but civic _imperium_ he
gives justice, as a court of first instance or a court of appeal, and
issues edicts to supplement the laws.
But the recognition of an _imperium_ within Rome was not alone
sufficient. Even when this was joined to the tribunician power, great
gaps were left in the position which should be held by a true head of
the state. To fill these up, and thus supply a solid foundation for
autocracy, fresh grants of isolated powers were necessary; and these
grants, though in theory occasional, soon became permanent in practice.
The Emperor, like the tribune, possessed no distinctive official dress
while he resided in Rome: hence the consular _insignia_ had to be
conferred;[1586] he possessed in virtue of his tribunician power only
the right of making the third proposal at the Senate: hence the grant of
the _jus primae relationis_.[1587] Such grants admitted of indefinite
extension, and the stage which they had reached by the date of the
accession of Vespasian is partially known to us from the only official
document which throws light on the powers of the early Principate. In
the existing fragment of this charter, which appears to be a decree
of the Senate meant to be submitted to the people for their formal
assent,[1588] we find the Emperor credited with the heterogeneous powers
of making treaties, extending the _pomerium_, commending candidates for
magistracies, and issuing edicts as interpretations of law human and
divine. The measure further exempts him from the operation of certain
enactments and gives him certain privileges, not possessed by the other
magistrates, in his relations with the Senate. These powers cannot be
brought under any single legal designation; but, as most of them are
more or less directly connected with some kind of _imperium_, the view
that they were tacked on to the bill conferring the tribunician power,
which received the formal ratification of the Plebs, is improbable. On
the other hand, they cannot be said to have belonged originally to a
law conferring the _imperium_; for the imperial biographies frequently
speak of the gift of the _proconsulare imperium_ (by the Senate) and
of the _tribunicia potestas_ (by Senate and People) without any hint
of a general law conferring _the_ “imperium.”[1589] Yet the gift of
the _imperium_ is sometimes mentioned,[1590] and if the passages of
jurists of the second and third centuries, which speak of _imperium_
being conferred through a _lex_,[1591] are genuine, we must conclude
that the centre of gravity in the powers of the Princeps had shifted
with the course of years. Originally the casual collection of powers,
which appears in the law sanctioning Vespasian’s rule, must have been a
mere supplement to the two leading prerogatives—the proconsular and the
tribunician powers. But it is quite possible that in the course of time
the vast development and the great importance of these added privileges
may have caused the enactment containing them, now known as the _lex de
imperio_, to overshadow the other sources of the imperial authority.
There was one source, however, most distinctively expressive of the
character of the Principate, which found no expression in legal
enactments. The military oath (_sacramentum_), which during the closing
years of the Republic was tending to become a bond of personal allegiance
between a legion and its chief, was naturally taken in the Principate
by the whole army to its sole commander.[1592] But on the very first
transference of the throne a new departure was made. At the accession
of Tiberius the oath of fealty was taken voluntarily by the civil
orders;[1593] it was administered by provincial governors and was renewed
twice a year, on the first of January and on the anniversary of the
Emperor’s accession.[1594] The fact that a soldier’s oath bound the whole
Roman world was the fittest expression of the military character of the
new despotism.
A classification of the Emperor’s powers in detail, with an attempt to
deduce each of them from a prerogative conferred on him at his accession,
is rendered difficult by the facts that no Roman lawyer cared or dared
to evolve a complete theory of the Imperial constitution, and that here,
as in so many other departments of Roman history, we are dealing with an
office which, as it grew, gradually absorbed into itself fresh spheres
of influence. The Principate, in fact, finally absorbed the state, and
the only adequate formula for its authority which later jurists could
find was that the people had committed its sovereign power to its
delegate. But yet, when we examine the spheres of the Emperor’s activity,
it becomes clear that, while some are connected with an _imperium_,
others are attached more closely to the tribunician power, while others
again are associated with the relics of Republican offices held by the
Princeps, or flow from certain extraordinary rights conferred on him by
statute.
(i.) The first rights connected with the _imperium_ that strike our
attention are those exercised in the military sphere—rights which,
on a vast scale, reflect and extend the powers possessed by the
_imperator_ of the Republic. The Princeps has the right to raise
levies,[1595] to nominate officers, and to confer military distinctions.
In declaring war he has replaced the comitia of the centuries; and the
statutory recognition of his right to conclude a treaty[1596] settled
a vexed question of Republican procedure.[1597] This recognition
of the federative power was not earlier than the reign of the first
Claudius,[1598] but had already become a permanent element in the
imperial authority by the accession of Vespasian. The right to extend the
_pomerium_ of the city, which dates also from the reign of Claudius, is
also found amongst the list of imperial prerogatives in 69 A.D.[1599]
The Republican general had often followed up a successful campaign by
assigning lands and planting colonies. These acts had been done at
the mandate of the people; but the new commander-in-chief needed no
such permit. The Princeps divides territories that belong to the Roman
people and establishes colonial settlements at his will. The gift
of the franchise had also been entrusted at times to the Republican
commander,[1600] and now it is placed wholly in the hands of the Emperor.
He grants these gifts both to communities and to individuals. He gives
Latin rights to _peregrinae civitates_,[1601] and citizenship to Latin
towns, while he may alter the nominal _status_ of a community by changing
a _municipium_ into a colony, or a colony into a _municipium_.[1602]
His right of conferring citizenship on individuals was equally
unquestioned,[1603] and he might remedy the defect of birth by giving
_ingenuitas_ to a freedman.[1604]
With the _imperium_ too is obviously connected the administration of
those provinces which were peculiarly entrusted to the care of the
Princeps. The government of these provinces, as well as the maintenance
of the army, necessitated a financial administration, separate from that
of the state and peculiar to himself, and this was accompanied by a right
of coinage. His criminal and civil jurisdiction over citizens as well as
soldiers are also connected with some undefined idea of the _imperium_,
while his power of legal interpretation, although specially conferred,
does not differ essentially from that of the praetor, and is to be traced
to the same source. The detailed consideration of these powers must be
deferred until we treat of that separation of authority between Caesar
and the Senate which gave its formal character to the Principate.
(ii.) The _tribunicia potestas_, which had been granted to Augustus
in 36, reconferred in 30, and made the chief outward support of his
authority in 23 B.C.,[1605] continued to serve the Emperors as the
ostensible means by which all other magistracies were subject to their
control,[1606] and possessed an artificial prominence from its employment
as a means of dating the years of their reign. Positively it conferred
the _sacrosanctitas_, which had encompassed the Republican tribune,[1607]
the right of approaching the assembly of the Plebs, which was of value as
long as the Emperors deigned to legislate through popular channels, and
perhaps the only strictly constitutional power which they possessed of
transacting business with the Senate.[1608] But its negative were now,
as ever, of more value than its positive powers. The _intercessio_ made
its possessor the moderator of the state,[1609] and the severest means
of tribunician coercion could be employed against every recalcitrant
official; while this veto, when used in the Senate, became either
a means of suspending the jurisdiction of that body or a method of
pardoning the criminal whom it had condemned.[1610] The right of help
(_auxilium_)[1611] based on the appeal (_appellatio_) becomes also, as
we shall see, one of the means of establishing the first true appellate
jurisdiction which the Roman world had seen.
(iii.) With respect to other Republican offices in which the Princeps
was directly interested, we have only to consider the consulship and
the censorship, for they were the only two whose titles or powers were
sufficient to warrant their assumption by the head of the state.
The consulship was no integral part of the imperial power after Augustus
had ceased to employ it in this way;[1612] but it was frequently assumed
as an occasional office by the Princeps, who held it for a short time,
generally at the beginning of his rule.
The censorship had disappeared as a Republican office, and we might have
expected that its vast powers combined with its Republican traditions
would have made it a valuable supplement to the authority of the Prince.
But there were reasons against its assumption. In its pure form it was an
occasional office, and its permanent tenure might have shocked Republican
sentiment; while the fact that the assessment of the Roman people for
the _comitia_ and the army soon ceased to be necessary made its absence
scarcely felt. On the analogy of the _tribunicia potestas_, the powers of
the office without the office itself were, in the form of a _cura legum
et morum_, offered to Augustus, but declined by him.[1613] There was no
constitutional difficulty about exercising some of the functions of the
censorship through the _imperium_, whether consular or quasi-consular,
and this was done by Augustus when he revised the list of the Senate in
29 and 18 B.C.[1614] Two of the succeeding Principes, however, Claudius
and Vespasian, thought fit to assume the office in its old temporary
form, and Domitian carried out the design of making it an integral part
of the Principate by assuming the position of censor for life (_censor
perpetuus_).[1615] His precedent was not followed because it was
unnecessary. The revision of the list of the Senate and _equites_—the
only meaning that the _cura morum_ now had—was established by consent
as an admitted right of the Princeps,[1616] and even the power of
creating Patricians came to be recognised as one inherent in his office.
This power had been conferred on Caesar and Augustus by law; Claudius
and Vespasian exercised it as censors;[1617] but, apparently without
further enactment, this power of ennobling, extinct since the beginning
of the Republic[1618] and no part of the Republican census, became an
admitted imperial prerogative. It was only when the destined Princeps was
himself a Plebeian that this honour, which was considered a necessary
qualification for his office, was conferred on him by the Senate.[1619]
(iv.) The chief of the extraordinary rights conferred on the Princeps by
special enactment were those which had relation to the Senate, the right
of recommendation to office (_commendatio_) and a dispensation from the
operation of certain laws.
The special privileges which distinguished the Emperor from other
magistrates in transacting business with the Senate were three in
number. First, he has not merely the power to put a motion (_referre_)
when present in the house, but he can send a written recommendation
(_relationem facere_) when the Senate meets under the presidency of
another magistrate.[1620] In such a meeting the Emperor as a rule
only claims priority for one item in a single sitting (_jus primae
relationis_); hence we sometimes find, as a special privilege, the right
of priority given him for three, four, or five.[1621] The power which he
possesses of dividing the house upon his motion without debate (_senatus
consultum per discessionem facere_) is not a new one, but one that
might be exercised by the consul of the later Republic. Secondly, the
Emperor has the power to withdraw a _relatio_ of his own which is already
before the house (_relationem remittere_); and thirdly, the privilege of
ordering the Senate to meet under the presidency of another magistrate.
The second special right has reference to the elections of magistrates,
and introduces us to the question how far the Princeps could control
them. Two functions are attributed to him by our authorities, that of
nomination and that of commendation; but the effects of the two are very
different. The _nominatio_ is merely the negative power possessed by
the Republican magistrate of receiving names and excluding unqualified
aspirants from candidature. With respect to most offices—the praetorship,
for instance—it was exercised by the Princeps conjointly with the
consuls, and the number of candidates whom he nominated was, at least in
the early Principate, limited.[1622] The practical effect of the Prince’s
nomination on the election might be great, but its legal influence was
_nil_.[1623] _Commendatio_, on the other hand, a privilege developed
from the Republican practice by which candidates were recommended by
distinguished persons for election, is a right legally conferred, and one
which absolutely secures the choice by the electing body of the person
so commended.[1624] The extent to which it might be employed differed
with the various magistracies; thus in Tiberius’ reign, out of at least
twelve candidates for the praetorship only four were commended by the
Emperor.[1625] Magistrates, who had gained their position by this act of
imperial favour, were designated _candidati Caesaris_.[1626] The highest
office of all, the consulship, seems, at least in the early Principate,
never to have been awarded on a formal imperial recommendation; for the
description of the method by which Tiberius filled up this post at his
pleasure shows that the Emperor effected his object by a clever use of
the nomination.[1627] This may have been a limitation of practice, not
of theory, for the words of the law as we have it exempt no office from
this imperial control, and it is certain that from the time of Vespasian
onwards the consulship too was subject to the _commendatio_.[1628]
The Princeps, according to the enactment which confers powers on
Vespasian, was dispensed from certain laws (_legibus solutus_).[1629]
There is no implication here of an exemption from the operation of the
ordinary civil and criminal law. The Princeps is not above the laws, nor
are the courts of the community his courts; and, if he was exempt from
prosecution during his year of office, this was the normal privilege of
the Republican magistrate. What is meant is the dispensation from certain
principles of the constitution or enactments, which the Principate as
a magistracy necessarily violated or which were found inconvenient to
the Princeps. Such were the _leges annales_, or the rule forbidding the
holding of the _imperium_ within the walls. In choosing an heir the
Emperor was also exempted from following the precise formalities of
adrogation;[1630] he could manumit without the _vindicta_[1631] and was
not subject to the disabilities of the Julian and Papian law.[1632]
(v.) The separation of religious from political duties, which had been
a characteristic of the Republic, was continued theoretically under
the Principate. The Emperor was in no sense a high priest, and ritual
was still a function of the sacerdotal colleges. But he was a member
of the great religious guilds which dealt with augury and with the
_jus divinum_,[1633] and the law gives him the power to carry out the
orders of such societies if he thinks it to be in the interest of the
state.[1634] We have not, however, merely the phenomenon of the civil
assisting the religious arm, for the Prince, as _pontifex maximus_,
represents both in his own person. The chief pontificate was specially
conferred on him with the other imperial powers; he may originally have
been invested, like the pontifex of the Republic, by the assembly of
the seventeen tribes,[1635] but later the creation seems to have been
wholly the work of the Senate, although a formal announcement of the
result (_renuntiatio_) was still made before the assembly.[1636] When the
Principate came to admit the principle of colleagueship, only one of the
Augusti was made chief pontiff,[1637] and the association of the highest
religious and civil power continued until the stole was rejected by the
piety of Gratian.[1638]
It is obvious that the attempt to keep the rôles of pontiff and Princeps
apart, even if made, could never have been successful. Where crime was
also sin the pontiff could now utter authoritative law and exercise
coercion; the lay and the religious character are strangely mixed in the
methods adopted by Domitian for the punishment of incest,[1639] and when
the _jussio principis_ speaks on a question of burial law,[1640] it must
have been difficult to tell whether it was the Prince or the pontiff who
was giving his decision.
Apart from its influence on law, the chief pontificate was valuable for
its powers of patronage. Few distinctions were more earnestly sought by
young nobles than admission to the religious colleges, and the door to
them lay chiefly through the Princeps. His influence might be exercised
by his right of nomination or by his commendation to the electing
body.[1641]
§ 2. _Titles, Insignia, and Honours of the Princeps_
In dealing with the titles of the Princeps, it is as well to begin with
those which were not in the list of official titles, for, impressed on
the ruler, as they were, by current usage, they were often the most
significant. The word _Princeps_, although it described no office or
peculiar authority, was yet a semi-official designation; even as employed
in the later Republic it had signified a political pre-eminence over
other citizens,[1642] and now it denoted not so much the “chief citizen”
as the “head” or “chief man” in the state, the director of the Republic,
to whom all looked for guidance, who was responsible for its failures
and credited with its successes, even when these were the result of the
actions of other magistrates.[1643] It was above all a title which tended
to emphasise the continuance of the life of the Republican government
under the new _régime_, and suggested a mental contrast, at once to the
Emperor’s position as the commander of his legions, expressed in the
title _imperator_, and to that absolute headship which, as exercised in
family life at Rome, was known as _dominium_.[1644] The name, indeed,
of _dominus_ inspired such a horror in the mind of Augustus that he
disliked this mode of address (a familiar one from the members of a
family to its head) to be employed even by his sons and grandsons,[1645]
and Tiberius insisted that he was _dominus_ only to his slaves.[1646] But
the language of courtly life, perhaps at times of real affection, forced
the title into use, and the younger Pliny employs it constantly in his
correspondence with Trajan. It is not, however, until the time of Severus
that it appears on the public addresses of corporations, and Aurelian is
the first emperor who is _dominus_ on his coins.[1647] It is probable
that these niceties of western nomenclature were always lost on the
oriental mind. To it the Principate is a monarchy, and Caesar, when he is
not a god, is either αὐτοκράτωρ or βασιλεύς.
If we turn now to the titular designation of the Princeps, we find that
this consists partly of titles of office, partly of those of honour.
The word _imperator_ occupies a doubtful place between the two; for
while denoting no office, it signifies the possession of an active and
untrammelled _imperium_. It occupies a twofold place in the list of
titles. Augustus employed it as a _praenomen_, perhaps in accordance
with the view that he had inherited the title from his uncle, who had
borne it (apparently as a _cognomen_[1648]) during the later years of his
life, and as a _praenomen_ it was used by most succeeding emperors.[1649]
But it appears a second time in the titular designation of the Princeps
with its old Republican significance—that of an appellation borne by a
commander who had been acclaimed after a victory.[1650] As so employed
it was qualified by numerals to mark the number of the salutations;
amongst these was reckoned that which had acclaimed him Emperor, and,
consequently, after the first victory won under his auspices, he appears
as _imperator II_.
A more distinctive title of office is that of _proconsul_. Although
it merely expresses the fact of a _proconsulate imperium_, it was a
designation that was avoided by the early Principes, probably out of
deference to the senatorial administration of the public provinces, which
was exercised through proconsuls, and it was first employed by Trajan.
Its employment hints at the practical disappearance of the dual control
abroad, and suggests the all-embracing nature of the Emperor’s _imperium_.
Amongst the honorary appellations of the Emperor, _Caesar_ and _Augustus_
take the foremost place. The latter, although appended to the Emperor’s
name like a _cognomen_, was never looked on as a family designation. It
was the highest of all personal titles of honour, since it expressed the
sanctified majesty of the Prince alone,[1651] and was not borne even by
that subordinate partner on the throne (_consors imperii_), the holder
of the _proconsulate imperium_ or _tribunicia potestas_, through whose
assistance the earlier emperors sometimes lightened the burden of their
administration. It was not until the collegiate principle was fully
recognised in 161 A.D. that the _duo Augusti_ appear.
_Caesar_, on the other hand, was in origin purely a family designation,
since it was the hereditary _cognomen_ of that branch of the Julian
house which had ascended the throne, and all the emperors to Caligula
could claim a legitimate right to it whether by descent or adoption.
Even Claudius and Nero, connected as they were with the extinct family
of Caesars, might use it with some show of family right. It is only with
Galba and his successors that _Caesar_ becomes strictly an appellative;
it is an assertion of a fictitious dynastic claim such as that which led
the princes of the house of Emesa to adopt the revered name of Antoninus,
and may be indirectly connected with a claim to succeed to the crown
property.[1652] The name, even when thus artificially employed, continued
to be a _cognomen_; it was shared by the ruling Princeps with his sons
and grandsons.
With Hadrian’s reign we find the beginning of a limitation of its use.
The Caesar is now the presumptive successor to the throne;[1653] the
elective monarchy has been recognised as one that is, if not hereditary,
at least capable of transmission through nomination, and the choice of
the bearer of the name is made by the reigning Emperor, although it
may be suggested by the Senate.[1654] After the beginning of the third
century the name appears as _nobilissimus Caesar_, Geta being the first
prince to bear this title. The recognition of the dual monarchy rendered
it inevitable that two Caesars might be simultaneously designated for the
throne.
Other honorary _cognomina_, such as _Germanicus_, _Pius_, _Felix_, were,
even when transmitted, purely personal, although their adoption was now
reserved for the Emperor, and such designations were no longer borne by
the other nobles in the state. The designation _pater patriae_ has more
distinct reference to the political position of the Princeps. A title
once conferred by popular acclamation on Cicero, it is now equally in
the gift of the people as represented by the Senate. As its conferment
was not necessary to the powers of the Principate, the grant of this
designation, however much it might be the result of flattery, was always
regarded as the reward of merit.[1655]
The order of the imperial titles admits of variations, but, as finally
fixed, was usually _pontifex maximus_, _tribunicia potestate_ (II. III.
etc.), _imperator_ (II. III. etc.), _consul_ (II. III. etc.), _censor_
(when this office was assumed, as it was by Claudius, Vespasian, Titus
and Domitian), _proconsul_ (a title adopted by Trajan and occupying the
last place after the reign of Hadrian).[1656]
The usual _insignia_ of the Princeps are those of a Republican
magistrate. Within the walls he wears the scarlet-striped gown (_toga
praetexta_); outside them he may don the scarlet _paludamentum_. But the
laurel crown, which he might wear anywhere and at any time,[1657] and
the laurel-wreathed _fasces_[1658] are peculiar to him. At festivals and
games the embroidered robe of triumph (_vestis triumphalis_) might also
be assumed. Like other magistrates he has lictors[1659] and _viatores_,
but he also boasts a special bodyguard as well, other than the praetorian
cohorts. This guard was composed of mounted foreign mercenaries, usually
of German horsemen.
But other peculiar honours seemed to lift the Princeps to more than
magisterial rank. Regular vows (_vota_) were offered for him, as for the
state,[1660] by the consuls and the colleges of priests; his birthday and
the days of his victories were celebrated as public festivals;[1661] his
statue and image are sacred and may not be profaned even by juxtaposition
with unclean things;[1662] his _genius_ is the most binding power by
which a man can swear; for while perjury in the name of the gods is
punished only by heaven, to swear falsely by the Emperor’s name is
treason on earth.[1663] Coins, whether struck by the Senate or the
Emperor, show only his head or that of members of the imperial house.
The _domus Caesaris_ was, in fact, raised far above the position of
the other noble houses in the state. It was especially the agnatic
descendants of the founder of the dynasty that were thus honoured, and
the Roman idea of the unity of the household even led to the inclusion
of the name of Caesar’s relatives in the soldier’s oath of fealty.[1664]
Their effigies, too, appear on coins—a right originally restricted
to such members of the family as actually shared in the government,
but which was in later times granted as a compliment to ladies of the
imperial house.[1665] Caesar’s relatives might also be distinguished by
commands which could be interpreted as a promise of the succession. We
shall speak elsewhere of this meaning which might be read into the gift
of the proconsular or tribunician power, and almost equally significant
was the appointment of some young member of the family to the honorary
command of the corps of _equites_ (_princeps juventutis_).[1666] There
was, indeed, one title which seemed to signify a dignity absolutely equal
to that of the Princeps himself. This was the name _Augusta_, which
was borne by certain ladies of the ruling family. It was originally
reserved for a single member, such as the mother, the grandmother, or
the wife of the reigning Emperor, and may have originally implied some
share in the throne. The Principate was not a regular magistracy, and
there was no valid constitutional ground for excluding women from the
throne, although the actual influence of queen-mothers, such as Livia,
Agrippina, or Mamaea, however powerful it may have been, was wholly
informal.[1667] The name _Augusta_ came, however, to be employed merely
as an honorary designation, to be borne by such a woman as Marciana, the
unaspiring sister of Trajan.[1668] A stranger title was developed by the
ambition of ladies of the second and third century. Faustina, wife of
Marcus Aurelius, and Julia Domna, wife of Septimius Severus, were both
designated “mothers of the camp” (_mater castrorum_). One important and
disastrous result of this elevation of the imperial house was that its
members were protected, like its head, against all the attacks of _laesa
majestas_. As even the most indirect reflection on the Princeps was
treason, because he represented the state, a similar view was taken of
constructive wrongs to members of the imperial family, because they were
one with the Princeps. This view was too purely Roman to need time to
develop. Even in the reign of the second Princeps we find that a poet has
to expiate by death the folly of an obituary poem on the Emperor’s living
son.[1669]
As the Princeps was not a king he had no court, and “Augustus or Trajan
would have blushed at employing the meanest of the Romans in those menial
offices which, in the household and bedchamber of a limited monarch,
are so eagerly solicited by the proudest nobles of Britain.”[1670]
Yet, although the _entourage_ of the early Principes was simplicity
itself, the stately life of the Republican noble had already furnished
precedents for distinguishing the grades and privileges of those who
sought the Emperor’s presence. The younger Gracchus and Livius Drusus
had, at the daily _salutatio_, drawn distinctions amongst their numerous
adherents; at the morning audience some were received singly, others in
larger or in smaller groups;[1671] and it is not surprising that this
distinction should have been revived for the great throng of callers who
filled the hall of the imperial palace. The _amici_ of the Princeps were
those “received at court,” and were divided into friends of the first
and second “audience.”[1672] From this body were selected the judicial
and administrative advisers of the Emperor (_consilium_) as well as
the comrades (_comites_) whom he took with him when he quitted Italy
on business of state. From the latter, who consisted of senators or
knights, he selected a group for a special journey,[1673] and employed
them as delegates in matters administrative, judicial, and military.
§ 3. _Creation, Transmission, and Abrogation of the Principate_
The Principate was, in the theory of the constitution, an elective
office, and one based on the principle of occasional delegation.
It was necessary for the life of the state that there should be a
magistracy,[1674] but it was not necessary that there should be a
Princeps. Hence there was no institution such as the Republican
_interregnum_ to fill up the gap left by the vacancy of the throne,[1675]
and the fact that such gaps did occur in the history of the Principate
shows that the possibility of government by magistrates, senate, and
people was no mere fiction. The abstract idea of a Principate was indeed
perfectly realised at the death of the very first Princeps, in so far
as responsible men in the Roman world had a perfectly definite idea of
the precise powers that must be vested in an individual in order to save
that world from anarchy. Yet Tiberius can pretend to hesitate, not merely
about assuming the office, but about the nature of the office which he
assumes;[1676] and, although on the accession of his successor, Gaius
Caesar, the _soliti honores_ were conferred _en bloc_, yet the idea that
the creation of a Princeps was an act of special investiture always clung
to the office. It was obvious so far as the choice of the person was
concerned, but it even affected the powers conferred, and we have seen
that the grants made to Emperors of the second and third centuries were
in all probability different, both in form and in matter, from those made
to Emperors of the first.[1677]
The electing body was the Roman people, chiefly represented by the Senate
but still retaining in its own hands the formal ratification of most of
the powers conferred. But the powerlessness of this sovereign is of the
very essence of the history of the Principate. As a rule, all that it
can do is to recognise an _imperium_ already established by the army,
whether this establishment be due to the tacit consent of praetorians or
legionaries or to the active use of their swords. The crucial point in
the creation of an emperor is his salutation by his army as _imperator_.
Such a salutation did not mean that the general who accepted it was
Princeps; it meant only that he was a candidate for the Principate.
The act itself was one of revolution; its legality depended upon its
success. Did the legions in other provinces accept the candidature, the
Senate immediately fulfilled its formal task; did rival aspirants meet
in battle, it was always ready to welcome the survivor. To be truly
a Princeps was to receive the customary honours and offices from the
Senate, and Vitellius was acting in the true spirit of the constitution
when he adopted as the formal date of his accession (_dies imperii_) the
day on which his claims had been ratified by the fathers.[1678] Vespasian
was acting contrary to that spirit when he regarded as the beginning of
his the moment at which he had been saluted _imperator_ by the legions of
Egypt.[1679]
Yet although the history of the Empire furnishes an unparalleled series
of successful revolutions, it must not be supposed that the importance
of the Senate’s formally transmitting the succession was ever questioned
or obscured. The Senate’s authority was rendered stable by the many
peaceful instances of dynastic succession; it was rendered creditable
by such a stand as that made against the tyrant Maximin; it was kept
alive by the fact that when, in the days of the “thirty tyrants,” the
Empire was breaking up, Italy was still the only formal centre of a world
power; it was bound up with the magic name of Rome, and even in the third
century was welcomed with relief by an army sick of its own lawless
violence.[1680]
But whether we lay more stress on the _de facto_ or the _de jure_ element
in the act of election, we must admit that the elective principle was
not the sole determinant in the transmission of the Principate. It was
crossed by two others, both of which were typically Roman. These were the
principles of nomination and of hereditary succession.
Nomination took the form of designation by some significant act. One
of the most significant modes in which the Princeps could point to his
choice of a successor was to invest an individual with an approximation
to those powers which were of the essence of the Principate, and thus
to make him in a sense a colleague in the Empire (_collega_, _consors
imperii_). The powers chosen were the _proconsulare imperium_, the
_tribunicia potestas_, or both. It was thus that Augustus at different
times designated Agrippa and Tiberius for the throne,[1681] that Tiberius
pointed to Germanicus and Drusus as his destined successors, that
Nerva nominated Trajan, Trajan Pius, and Pius Marcus Aurelius.[1682]
Although such a position is described as one of colleagueship in the
imperial power, yet it did not confer, as regards the _imperium_, the
most characteristic rights of the Principate. The colleague did not
possess joint command over the praetorian guard or the fleet, nor joint
administration over all the Caesarian provinces,[1683] unless these
rights were conferred by special mandate, as they were on Tiberius
during the closing years of Augustus’ life;[1684] nor had the colleague,
although in possession of an independent _imperium_, any right to
triumph, except by the will of the Princeps,[1685] for his victory had
been due to legions which had taken the _sacramentum_ to another. The
name _imperator_ was not borne by this assistant to the throne unless it
was specially conferred, as it was by Vespasian on Titus and by Hadrian
on Antoninus Pius.[1686] It is uncertain whether the possessor of the
_tribunicia potestas_ and of the _proconsulare imperium_ in its lower
form had to have these powers reconferred on his accession to the throne.
In the case of the _imperium_, since it fell short of that required for
the imperial position, reconferment is probable. But yet the possession
of such a power seemed to create a continuity in the Principate, and the
state seemed never to have lost its head.
A second mode of nomination was effected by the Princeps designating
his intended successor as his heir. It was not merely that this was
an effective way of showing one’s will, but it actually pointed to a
transmission of the crown property (_patrimonium_) which accompanied the
Principate. Gaius attempted to employ this mode of designation in favour
of his sister Drusilla,[1687] and Tiberius showed either that he had
left the succession open, or that he contemplated a joint Augustate, by
making his great-nephew Gaius and his grandson Tiberius Gemellus joint
heirs.[1688]
Adoption was as effective a means of emphasising one’s intentions. Such
an adoption by the Princeps might be by testament, but it need not follow
the legal forms, and required only a public announcement through a
_contio_ whether in the Forum, the Senate, or the camp.[1689] It was thus
that Galba named Piso as his successor, but adoption usually accompanied
the gift of quasi-imperial power, as in the cases of Tiberius, Trajan,
Antoninus Pius, and Marcus Aurelius.[1690]
We have already noticed the method by which the Princeps, sometimes with
the help of the Senate, could announce his wishes as to the succession
by the gift of the name of Caesar.[1691] This was a constitutional
recognition of a principle of designation which had hitherto been
informal.
Three of the modes of nomination which we have mentioned—those by
heirship, adoption, and the gift of the name of Caesar—obviously approach
very closely to the principle of hereditary succession. Adoption
especially created to the Roman mind a tie only less strong than that of
natural birth; and, whichever of the three methods was employed, it would
have been considered almost inconceivable that a man should pass over
his own son or agnatic descendant in favour of a stranger. Just as in
the Republic son had succeeded father in office, so in the Principate it
was easy to gain recognition for a dynasty; and, as a rule, it was only
when the last of a line had, for misgovernment or other reasons, been
violently overthrown, that the principle of selection found free play.
The magic of the name of Caesar could call even Claudius to the throne;
Vespasian, the _novus homo_, found it easy to transmit his power; the
dynasty founded by Severus ran through four generations in spite of the
murder of Caracalla and the scandal of Elagabalus’ rule; the death of the
two elder Gordians made the accession of the third inevitable; and Carus,
the last of the rough soldier emperors, could be succeeded by the gentle
Numerian and the extravagant Carinus.
The lack of any definite principle of succession combined with the
warring forces within the Empire to make the position of a ruling Emperor
one of dazzling uncertainty. The possibility of election by the legions
created a rude standard of merit, and it is questionable whether any
really incapable man ever sat on the Roman throne. But usurpation was
often followed by dethronement, tyranny by death or posthumous disgrace;
and although such expulsions, executions, and censures were practically
the work of the army, it is of some importance for the constitutional
theory of the Principate to determine the legal form which dethronement
or condemnation assumed.
As it was the Senate, representing the people, which gave, so it was
this power which took away the Principate; and the act of deposition
is attested in the cases of Nero, Didius Julianus, and Maximin.[1692]
Deposition was followed by death, and then came the condemnation of the
reign, one that might follow even when the death of the tyrant had not
been directly ordered by the government.[1693] In its extremest form this
was a condemnation of the memory (_damnatio memoriae_) of the late ruler
on the ground that he was a traitor (_perduellis_).[1694] His _acta_ were
rescinded, his name erased from the records. A milder form of censure was
the mere neglect of his _acta_ in the form that no oath to observe them
was sworn by magistrates and senators.[1695] In the latter case there was
no wholesale rescission of the acts, and each special case in which the
late Emperor had decided was approved on its individual merits.
On the other hand the acceptance of a reign took the twofold form of
an oath to observe the _acta_ of the dead Emperor[1696] and a vote to
assign him a place amongst the deified Caesars. The prospect of this
posthumous recognition of the merits of a reign must often have exercised
a stimulating influence on the occupant of the throne,[1697] although it
was somewhat spoilt by the consciousness that the decision of the Senate
would, to a large extent, be guided by the wishes of his successor in
office.
§ 4. _The other Powers in the State—the Magistracy, the Comitia, and the
Senate_
(1) _The Magistracy_
As the Republican constitution continued in form unimpaired, so its most
essential feature, the magistracy, although subjected to modification,
was still an integral element in the administration of Rome and Italy
during the Principate. Few radical differences were introduced into the
magisterial qualifications or career; the innovations affected only the
age for office, the starting point in the _cursus honorum_, and one
of the steps in the _certus ordo magistratuum_. The minimum age for
the quaestorship was now twenty-five years,[1698] for the praetorship
thirty,[1699] and two new qualifications were necessary before the
quaestorship could be held. One was membership of the vigintivirate, the
aggregate of lower magistracies to which the _sex-et-vigintiviratus_
of the Republic had now shrunk.[1700] The other, perhaps originally
a practical rather than a legal qualification, was the tenure of the
military tribunate,[1701] the latter being held generally after one
of the magistracies in the vigintivirate had been administered. This
change, though apparently formal, meant a fundamental alteration in the
spirit of the new nobility. The possibilities of culture, to be acquired
in the schools of Athens and Rhodes, were now almost extinct. From the
age of eighteen the aspirant to the highest honours in the State might
be serving with Caesar’s legions on the frontier. It was through the
Emperor’s grace that he attained a military position which was at least
a practically necessary qualification for the magistracy; at the age of
twenty-five the young soldier entered on the race for higher honours;
as an ex-praetor, even at times as an ex-quaestor, he might be made
the general of a brigade (_legatus legionis_), and from thence proceed
to the government of a military, or the administration of a civil,
province. Nothing shows more clearly the true military character of the
new monarchy than the fact that even its civil and Republican posts
were administered by soldiers; nothing explains more adequately the
subservience of the Senate than the fact that it was composed mainly of
ex-officers, trained in the habits of rigid obedience and in unwavering
respect to the _sacramentum_—of men to whom Caesar was not Princeps but
Imperator.
With respect to the steps in office which followed the quaestorship,
a further change was due to the unwillingness of candidates to burden
themselves with the aedileship, now that its powers of bribery were of no
avail, and with the now undistinguished tribunate of the Plebs. The rule
was laid down that between the quaestorship and praetorship a Patrician
must hold the curule aedileship, a Plebeian one of the two aedileships
or the tribunate.[1702] An exemption from this lengthy course could,
however, be given by an exercise of the imperial right of _adlectio_.
This was the conferment of an artificial magisterial rank. In form it was
a power exercised in the revision of the list of the Senate and elevated
from a lower to a higher grade within that order. But the _adlectio_ also
had the effect of qualifying for the magistracy immediately above the
rank thus artificially assigned. One who was _adlectus inter quaestorios_
was qualified for the tribunate, one _adlectus inter tribunicios_ for the
praetorship, and one _adlectus inter praetorios_ for the consulship. The
consulship was amongst civic magistracies still the crown of a political
career; hence the rarity of adlection _inter consulares_.[1703]
A smaller honour was the conferment by the Senate, generally on
the proposal of the Princeps, of the _ornamenta_ of a magistracy
(_quaestoria_, _praetoria_, _consularia_) on one who had not held the
magistracy itself. This honour gave no right of entry into the Senate,
and none of holding the magistracy next in rank to that whose ornaments
were conferred,[1704] but merely the privilege of wearing the _insignia_
of an office at festivals and on other public occasions;[1705] it may,
however, have given the right of voting with the class of senators
whose _ornamenta_ were conferred, if the person honoured was already
provided with a seat at the Senate.[1706] This distinction was by no
means reserved for persons legally qualified for the magistracy; it
might be granted to knights high up in the imperial service, such as the
praefects of the guard[1707] and of the watch,[1708] or to provincial
procurators.[1709] Claudius granted it to imperial freedmen,[1710] and we
find that even senators excluded from the curia were sometimes left the
_ornamenta_ of their rank.[1711]
The permission to use the ornaments of a triumph (_ornamenta
triumphalia_) was the result of the limitation of the right to the
actual triumph. The application of the principle that this right was
inconsistent with a subordinate _imperium_,[1712] had, when applied to
the Principate, the effect of legally confining triumphs to the Princeps
alone; for the governors of his own provinces were merely his delegates,
while those of senatorial provinces, though nominally in independent
authority, had as a rule no armies at their command.[1713] The triumphal
_insignia_ might, however, be granted by the Senate on the proposal of
the Princeps.[1714]
The election to the magistracies will be more fitly treated in connexion
with the _comitia_ and the Senate. The obligations to which their holders
bound themselves on their appointment were those of the Republic, with
the exception that the _jus jurandum in leges_ was amplified by the
inclusion of the valid _acta_ of the Princeps—those, that is, of a living
or a previous emperor whose binding character had been recognised by
oath.[1715]
If we turn now to the individual offices, we find that the CONSULS
are still the officially recognised heads of the Republic and of the
Senate. On the suspension of the Principate they are the representatives
of the state,[1716] and we find them acting in accordance with this
character. It was the consuls who, on the deposition of Nero, sent
despatches to Galba with the news of his selection,[1717] and it was by
the surrender of his dagger to a consul that the abdication of Vitellius
was effected.[1718] The dignity of the office is shown by the fact that
it was the only one in which a citizen might have the Princeps as a
colleague, and still more by the view of a gracious emperor that, when
he was performing the functions of that office, the vast dignity of
the Principate was for a moment lost in that of the consulship.[1719]
As presidents of the Senate the consuls were partners in its nominal
sovereignty. They guided its jurisdiction, both in civil and in criminal
matters, and in the former may have acted as its commissioners. They also
possessed in their own right high judicial functions—in matters of trust
(_fidei commissa_), for instance—which were originally delegated to them
by the Princeps, and of which we shall treat elsewhere.
But the very fact that the consulship was such a prize, as well
as the fact that its occupation led to the filling of other high
offices—the government of certain senatorial and imperial provinces
and the praefecture of the city—induced a shortening of its tenure and
a consequent multiplication of the individuals who might enjoy its
privileges and become qualified for other duties. The expensiveness of
the office may also have contributed to this end; for the increase in
the number of occupants would lessen the pecuniary burden imposed by the
celebration of games.[1720] Even the half-yearly consulships of the early
Principate become in course of time very infrequent, and we subsequently
find a tenure of but four or two months.[1721] Those appointed for 1st
January were _ordinarii_, the others _suffecti_,[1722] and the whole year
was dated by the names of the former.
The number of the PRAETORS varied under Augustus and his successors
from ten to eighteen. Twelve, fourteen, fifteen, and sixteen are found
at various times, and the final limit of eighteen was still maintaining
itself in the time of Hadrian.[1723] The reason for this expansion
of their numbers was their utility for the enlarged jurisdiction of
the period. The Republican functions of the _praetor urbanus_ and
the _praetor peregrinus_ continued, until those of the latter became
extinct, perhaps soon after the conferment of citizenship on the whole
Roman world by Caracalla (212 A.D.);[1724] while other praetors, were
guides of the _quaestiones perpetuae_, until the disappearance of these
commissions towards the close of the second century.[1725] But new
spheres of extraordinary jurisdiction claimed the attention of others.
Thus Claudius instituted two praetors for adjudication on trusts (_fidei
commissarii_),[1726] Nerva one for the decision of cases arising between
the _fiscus_ and private individuals (_fiscalis_),[1727] and Marcus
Aurelius another for the granting, and perhaps for the control, of
guardians (_tutelaris_).[1728] For a short time the administration of the
_aerarium_ was also in the hands of praetors.[1729]
Most of the specific functions, which the AEDILES had exercised
during the Republic, now passed to other hands or were shorn of their
importance. The history of the later Republic had shown how incompetent
these officials were to exercise an adequate control of the market,
and the _cura annonae_ passed to the Princeps and to the praefecture
established by him. Their police functions were to a large extent
absorbed by the praefecture of the city, but they still destroyed books
condemned by the Senate,[1730] and attempted to carry out the sumptuary
laws.[1731] The _cura urbis_ still entailed on them the duty of keeping
clean the streets of Rome[1732] and a supervision over places of public
resort.[1733] Much of their criminal jurisdiction must have lapsed with
the disappearance of trials before the _comitia_, but they still retain
a power of inflicting fines and seizing pledges—one which was limited
and regulated during the reign of Nero[1734]—and the special civil
jurisdiction of the curule aediles still continues.[1735]
The QUAESTORS still maintained their functions as financial officials and
general assistants to the magistrates. Their number had been raised by
Caesar to forty, but was again reduced to twenty by Augustus.[1736] For
a time two quaestors had the guardianship of the _aerarium_,[1737] and
others were in the public provinces the financial and judicial assistants
of the proconsuls.[1738] Four more were assigned to the consuls, two to
each, as their agents and assistants;[1739] while the Princeps himself
employed two, commended by himself (_quaestores Augusti_, _quaestores
candidati principis_), chiefly for the purpose of reading his despatches
to the Senate.[1740] During the reign of Claudius a step was taken which
“put up the quaestorship for sale,”[1741] and associated it with a
function that clung to it longer than any other. This was the exhibition
of gladiatorial games at the cost of the exhibitor,[1742] a pecuniary
burden which henceforth fell on every aspirant for higher office, until
Severus Alexander ordained that only the _quaestores candidati_ should
themselves defray the expenses of these spectacles, the cost of the games
given by the others being defrayed from the _fiscus_.[1743]
The TRIBUNES OF THE PLEBS were not colleagues of the Princeps, for the
_tribunica potestas_ was not the tribunate, and the actions in virtue
of it were not even theoretically subject to the tribunes’ veto. But
their great negative powers were still occasionally exercised in some
departments of state during the first century of the Principate. Like
the office itself, however, they were but a shadow of those of the
Republic.[1744] The _intercessio_ against decrees of the Senate might
be attempted when unimportant matters, such as the right to scourge
actors, were under discussion,[1745] or might be employed as a warning
to the Senate that the Princeps should be consulted on the business
in hand.[1746] In higher matters of state its exercise might mean
danger or death to the tribune who mistook the fictitious for the real
Republic, or who, recognising the tyranny, chose to brave the anger of
the Emperor.[1747] The right of _auxilium_ was still exercised against a
praetor in 56 A.D.,[1748] and appealed to by an Emperor in 69.[1749] But
this, too, soon disappeared to leave no trace. In the early Principate
the tribunes seem to have possessed some right of summoning civil cases
from the Italian towns to Rome,[1750] probably through an exercise of
the veto; and, although their criminal jurisdiction had disappeared with
the _comitia_, they retained some power of inflicting fines (_multae_),
which was limited during the reign of Nero.[1751] There is also evidence
that they still possessed the right of veto in civil jurisdiction.[1752]
Amongst positive powers their presidency of the Senate still survives, as
we shall see in dealing with that body.
The office of tribune, since it conferred little distinction, was by
no means an object of ambition; and the difficulty of getting the ten
places filled led to the inclusion of this magistracy, as one of the
necessary steps, in the _cursus honorum_,[1753] and sometimes to more
drastic measures such as the selection of ex-quaestors by lot under
Augustus,[1754] or the reception of members of the equestrian order under
Claudius.[1755] Yet, with all its disadvantages, the tribunate survived
the Principate, and tribunes are named in imperial despatches of the
fourth century.[1756]
(2) _The Comitia_
An element in the restoration of the Republic by Augustus, after the
provisional government of the Triumvirate was over, was a renewal of the
life of the popular assemblies.[1757] But it was impossible that their
purely local character could be reconciled with the imperial interests of
the day, or that their popular character should be consistent with the
rule of the Princeps and his nobility. For a moment they remained to a
certain extent a reality, and throughout the Principate they exercised
the shadow of power which was sufficient to express the still surviving
theory of popular sovereignty.
From the first a considerable portion of the powers of the _comitia_ had
been transferred wholly to the Princeps; for to him belonged the rights
of declaring war, of making peace, and of forming alliances;[1758] while
the criminal jurisdiction which the people exercised at the end of the
Republic was no longer necessary, for while the more definite portion of
it was handed over to the _quaestiones_,[1759] the more indefinite now
fell under the extraordinary cognisance of the Senate. Legislative power
tended to centre more and more in the Princeps and Senate, and it is
only during the first century that enactments are mentioned which have
the true forms of _leges_ and _plebiscita_.[1760] The right of election
was the most permanent of the popular prerogatives. Under Augustus the
people still chose its magistrates, although the choice was considerably
influenced by the Princeps;[1761] and after Tiberius in the first year of
his reign had caused all the real elements of election—the profession,
the nomination, the vote—to be transferred to the Senate,[1762] the
formal _renuntiatio_ of the successful candidates (an integral part of
the election)[1763] still continued to be made to the people down to
the third century.[1764] It is only in respect to the consulship that
there is a doubt whether, during the first century A.D., more than the
mere announcement of the result was not effected in the _comitia_. The
evidence is conflicting, but the indications of a formal popular control
of these appointments are on the whole outweighed by those which refer to
the Senate the real elements of election—rendered nugatory at times by
the way in which the Princeps exercised his powers of nomination.[1765]
There can be little question, however, that in the later Principate the
consular, like all other, elections were vested in the Senate. The
survival of the _comitia_ into the third century, whether for the purpose
of the _renuntiatio_ or for that of ratifying the powers of the Princeps,
was no mere mass-meeting informally assembled. The stately forms of the
Republic were preserved, and when the centuries were assembled the red
flag still flew from the Janiculum.[1766]
(3) _The Senate_
It was through the Senate of the Principate that the idea of popular
sovereignty was most practically and even most formally expressed;
and, as the Principate claimed and even tried to be nothing more than
the extraordinary magistracy of a Republic, the most infinite pains
was taken with this body to give it dignity, stability, and weight. We
shall speak elsewhere of the senatorial “order” which was created during
the Principate; it was from this order that the Senate was recruited,
and the will of the Princeps could be very distinctly asserted in the
selection of members of the great council. Entrance was, as in the
Republic, chiefly through the magistracy, the tenure of the quaestorship
qualifying for a seat at the board. When, therefore, the Senate
became itself the electing body, the principle of entrance was one of
cooptation; and as the Princeps did not, to any great extent, influence
the selection of quaestors by his _commendatio_,[1767] the principle
was something more than a mere theory. But we shall see that he often
gave the _latus clavus_ which admitted to the senatorial order; we have
seen that he advanced to the military tribunate, which became one of the
qualifications for the quaestorship;[1768] he might also have exercised
an influence in the formal nomination of candidates for this office;
while his right of _adlectio_,[1769] when exercised with reference to
persons who had not been magistrates, gave him the power of actually
creating senators.
The qualifications for the Senate had reference to age, wealth, and
birth. As twenty-five was the minimum age for the quaestorship, a man
might be a senator at twenty-six.[1770] The _census_ required, though it
varied from time to time during the reign of Augustus, was finally fixed
at a million sesterces.[1771] _Ingenuitas_ was required—Claudius even
demanded free birth through three generations[1772]—and it was counted
one of the abuses of tyrannical rule when the favour of Emperors admitted
freedmen into the Senate.[1773] For a time the council maintained its
mainly Roman character, but “new men” from Italy and the provinces
crept in with the censorships of Claudius and Vespasian,[1774] and the
former Emperor even granted admission to the Gallic Aedui, perhaps by an
employment of his right of _adlectio_.[1775] The reception of provincials
finally became so frequent that, to give them an Italian interest, it
was decreed by Trajan that one-third of their property must be invested
in land in Italy,[1776] a quota that was changed by Marcus Aurelius to
one-fourth.[1777]
Removal from the Senate belonged to the Emperor either as censor, when he
exercised the discretionary moral judgment which had been associated with
the Republican _lectio_,[1778] or in virtue of that power of revision
which, as we have seen, became associated with the Principate.[1779] The
chief grounds of exclusion were lack of the requisite census, refusal
to take the oath _in acta Caesaris_ which was demanded of senators as
of magistrates,[1780] or condemnation for crime. The Senate itself, in
the exercise of its judicial power, could add to the sentence which it
inflicted on a senator the penalty of expulsion from the house;[1781]
it might even make this expulsion a punishment for calumnious
accusation.[1782] The revised list of the Senate (_album senatorium_)
was posted up publicly every year,[1783] and the Emperor appeared at
the head of this list as _princeps senatus_.[1784] The number of the
Senate was fixed by Augustus at 600,[1785] and, as there seems to have
been little or no alteration in the number of the quaestors, the size of
the body into which they passed may have been fairly constant. Augustus
also instituted fixed days for meeting. These regular meetings (_senatus
legitimi_) took place twice a month, on the Kalends and the Ides, except
during the autumn months of September and October, and attendance on
these days was compulsory.[1786] Even to these meetings, however, there
was a summons through an edict.[1787] Extraordinary sittings (_senatus
indicti_) could also be held whenever the magistrate deemed them
necessary.[1788] The presidency and summons belonged chiefly to the
consuls, but, as in the Republic, were possessed also by the praetors and
tribunes.[1789] When the Senate had been summoned, the Princeps shared in
the presidency as a magistrate, and it is very questionable whether he
ever appeared at the board in the character of a simple senator.[1790] As
a magistrate he might address the house at any moment, and, during the
early Principate at least, custom dictated that there should be a pause
at the opening and at the close of a debate which the Princeps might fill
up with an expression of opinion if he pleased.[1791] We have already
noticed the singular privileges which he possessed in the matter of
bringing business before the house.[1792]
Amongst the powers of the Senate, that which was formally the greatest
was the creation and deposition of the Princeps. We have already seen how
this right was limited in practice;[1793] but its nominal exercise was an
expression of the view that the sovereignty of the Roman people now found
its chief exponent in the ancient council. The same idea is expressed in
the senatorial power of dispensation from laws—whether in favour of the
Princeps and members of his house,[1794] or in administrative matters
such as the right of forming associations.[1795] The elective power which
the Senate enjoyed from the beginning of the reign of Tiberius[1796] is
also a sign of its perpetuating the powers of the people.
Over foreign administration, once the great bulwark of its power, the
Senate has now but little control. Although it still receives messages
of the victories of the Princeps, and grants him a triumph,[1797] it has
lost all independent rights of war, peace, and alliance. But it receives
envoys from the provinces which are under its control,[1798] and from
the towns of Italy,[1799] and, at least in the first century of the
Principate, it may act as the advising body of the Princeps in spheres
which pertain wholly to him. Tiberius consulted the Senate on military
questions;[1800] Vespasian waived an embarrassing offer of help from the
Parthians by urging them to send an embassy to the Senate; and Decebalus,
after his conquest by Trajan, obtained his final terms of peace by the
same means.[1801] Such concessions were doubtless acts of grace on the
part of the Princeps, but they also represent a constitutional principle
which finally disappeared—the principle of consulting the representatives
of the people on questions that were of paramount interest to the state.
The other powers of the Senate, which express its sovereignty or its
partnership of administration with the Princeps, we must reserve for the
next section, in which we shall attempt to illustrate the theory of a
dual control which pervades the constitution of the Principate.
§ 5. _The Chief Departments of the State; the Dual Control of Senate and
Princeps_
We have already seen that, in the most essential fact of sovereignty—the
creation of the Principate—the Senate and people, or rather the Senate as
representing the people, was theoretically supreme.[1802] The attribute
of sovereignty that comes nearest to this is the power of legislation,
for it is one that the “determinate human superior” generally retains
in his own hands. The other functions that are usually associated with
the highest authority in a community, such as the control of general
administration, jurisdiction, finance, cultus and coinage, may more
easily be delegated. If the delegation is temporary, there is no division
of sovereign power; if perpetual, there is such a division unless the
legislative power be thought of as capable of recalling the mandate.
We have already seen to what a large extent the people had delegated
its powers to the Princeps, and we have also seen that this delegation
was, in fact though not in theory, perpetual.[1803] But, in the spheres
of authority which we are now about to examine, there is neither the
theory of complete retention, nor that of complete delegation, of
sovereign power. The sovereign has partly retained and has partly
delegated in perpetuity every one of the functions of government which
we have enumerated, and this singular dualism affects, not only the
administrative, but even the legislative activity of the state.
(i.) _Legislation._—With respect to legislation it has already been
shown how the _comitia_ still uttered their general mandates until a
period at least as late as the reign of Nerva.[1804] But, even before
the legislative power of the people became extinct, this power had been
passing to the Senate; and in the strict theory of the constitution, true
legislative authority is to be finally found only in the great council
which represents the people.
The origin of this senatorial legislation is doubtless to be sought in
the advice on legal points which the Republican Senate had often tendered
to the magistrate, and in the interpretation of customary law or of
enactments which often accompanied this advice.[1805] It has, indeed,
been noted that the _senatus consulta_ of the Principate, which prescribe
general commands such as in the Republic would have been the subject of
_leges_, are often expressed in this advisory form;[1806] decrees of the
Senate never attained the formal structure of a law;[1807] they also
lack its imperative mode of utterance, and for these two reasons they
were never described as _leges_. The highest degree of validity which
the jurist could give them was “the binding force of laws”;[1808] but
this force was sufficient to make them sources of the _jus civile_,[1809]
and down to the third century such general commands as tended to alter
the fundamental legal relations of Roman citizens to one another, were
generally expressed in the form of _senatus consulta_.
The Princeps, on the other hand, is not credited directly with any
power of legislation; but the faculty for making _jus_, which was
inherent in the _imperium_ of every Roman magistrate, and especially
apparent in that of the praetor, was manifested by the Princeps in an
unexampled degree. His methods of utterance are through the edict, the
decree, and the rescript. The _edictum_ is, like that of the praetor,
technically an interpretation of law; but the creative power associated
with interpretation is here pushed to its extremest limits, and statute
law supplemented this faculty inherent in the _imperium_ by explicitly
declaring that whatever ordinances the Princeps might lay down should
(with certain limitations fixed by precedents) be considered valid.[1810]
Whether the edict of one Princeps bound his successor must have depended
to some extent on the degree of formality in the utterance. Tiberius
professes respect even for the _obiter dicta_ of Augustus;[1811] but
this reverence was exaggerated, and none but the formal edicts expressed
in written form could, as a rule, have been included in the _acta_. It is
by no means certain that even these were always included in the _acta_ to
which the oath was taken;[1812] but if an edict had been recognised as
valid by several succeeding Principes and was then abandoned, some formal
method of repudiation seems to have been necessary.[1813]
The _decretum_ was, in its strict sense, the sentence of the Princeps
when sitting as a high court of justice;[1814] as a _res judicata_ it
necessarily possessed absolutely binding force for the case in which
it was issued, and prevented any renewal of this process; but, unless
formally rescinded in a succeeding reign, its validity as a precedent
seems not to have been questioned, and the words _Caesar dixit_ appeal to
the jurists almost with the force of law.[1815]
The third mode of utterance is by means of the letter (_epistola_) or
rescript (_rescriptum_).[1816] These letters contained instructions
either on administrative or on judicial matters. In their first character
they might be addressed either to individual officials subordinate to the
Emperor or to the provincial diet,[1817] the scope of their application
depending on the Emperor’s discretion at the time of the issue, and
on the interpretation of the rescript after his death. In matters of
justice, whether addressed to the judge or to the litigant, they might
settle doubtful points of law or extend a principle to new cases. The
power of interpretation is at least as great in the rescript as in the
edict; but the rescript was the more powerful vehicle for law-making.
It kept the Princeps in constant touch with the provincial world, and
was the chief mode in which the uniformity of its administration and its
law was moulded. The rescripts also had, on account of the precision and
permanence of their form, a more unquestioned validity, as perpetual
enactments, than either the edict or the decree. When the _acta_ of an
emperor are referred to, it is chiefly these, together with the charters
or privileges (_leges datae_, _beneficia_) that he may have conferred on
states, that are intended. The rescripts might be elicited either by the
_consultatio_ of a doubtful official who was subordinated, either as an
administrator or as a judge, to the Emperor, or they might be written in
answer to the petition (_libellus_, _supplicatio_) of one of the parties
to a suit. In the latter case they were often a convenient substitute for
the personal appearance of the appellant in the Emperor’s court.