CHAPTER X

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.

Roman Public Life · 第 12 / 17 章