“imperial constitutions” (_constitutiones principum_), and although,
as we have seen, different degrees of permanence might attach to each
of these methods of utterance, to a jurist of the second century they
all had the force of law.[1818] From this category of enactments with
binding force one important class of imperial ordinances seems formally
to have been exempted. This class consisted of the _mandata_, or
general instructions which the Princeps gave to officials subordinate
to himself. In the early Principate they were for the most part issued
to the governors of Caesar’s provinces, but the gradual encroachment of
the Emperor’s powers on senatorial administration led to the mandates
being issued to proconsuls as well. When the mandate dealt with a precise
point of the _jus civile_ and was repeated by successive emperors, it
doubtless came to have the force of a rescript;[1819] but it was more
often concerned with the general administrative duties of subordinates,
directing them in the doubtful cases of the moment, and, therefore,
not necessarily laying down rules of perpetual validity. In one sense
the mandate stands higher than the rescript, for it is as a rule more
general in form, and a _mandatum_ may be the result of a series of
_rescripta_ on the same point; but in another sense it stands lower,
since it was understood that it might be recalled at any moment by
the Princeps who had issued it, and that it might not be observed by
his successor. The remarkable differences of treatment to which the
Christians were subjected during the Principate was due chiefly to
the fact that, so far as this treatment was a concern of the central
government at all, it was one directed by mandate.
A review of the powers of the Princeps as exercised through his
“constitutions” and his mandates shows that he was not regarded as a true
legislative authority, and that the binding force of his ordinances was
technically inferior to that possessed by decrees of the Senate. But the
theory of legislation was never of much practical importance at Rome. The
Romans had lived for centuries mainly under the rule of interpreted or
judge-made law, and now the Roman world, enlarged and unified, looked for
guidance, not to the _comitia_, which were in decay, or to the Senate,
whose contact with the provinces was ever becoming less, but to the one
interpreter who was known to every judge and every litigant, and whose
utterances could be heard at the farthest ends of the earth. It was the
force of circumstances, not any constitutional theory, which made the
Princeps the highest of all legislative, because the greatest of all
interpreting, authorities.
(ii.) _Jurisdiction._—If we turn from the legislative to the judicial
sphere, we find the same theoretical assertion of a dual control. But it
is complicated in this instance by the fact that the Senate is not the
sole representative of the Republican side of the administration. The
state still asserts itself through old organs such as the praetors and
the _judices_, while it has acquired a new organ in the joint activity of
consuls and Senate. In a sphere parallel to theirs the Princeps works,
sometimes exercising a jurisdiction that is all his own, at other times
infringing on their powers, but always occupying a position that exhibits
him to the provincial mind as the highest court in the Roman world. The
jurisdiction of these several courts must be treated in its separate
aspects of civil and criminal, of jurisdiction in the first instance
and by way of appeal. The power of reversing sentences and the right to
pardon must also be considered.
The civil jurisdiction of the Republic, with its division into _jus_
and _judicium_, continued during the greater part of the period of the
Principate, and the praetor still gave his legal rulings in the shape of
a formula which he submitted to a _judex_. But these _judicia ordinaria_
tended gradually to be replaced by the personal cognisance (_cognitio_)
of the magistrate, which, exercised on a limited scale by the praetor
during the Republic, became a feature of the Emperor’s own jurisdiction
from the very beginning of the Principate, and was soon extended to
provincial governors and to his great delegates, the praefects. This
jurisdiction was described as _extra ordinem_, and, like the other form,
it admitted of a distinction between magistrate and _judex_. But the
new _judex extra ordinem datus_[1820] is wholly different in character
from the _judex ordinarius_ of the older form of process. The new
procedure does not admit the distinction between _jus_ and _judicium_;
the _judex_ is a true delegate, is appointed without a _formula_, and
decides on the law as well as on the facts of the case. The sphere of
the _cognitio_ of the Princeps was probably unlimited in theory, and
may have been conferred on the first Emperor by statute.[1821] It was
a voluntary jurisdiction which any one might request and which the
Emperor might refuse. In case of such refusal the case was taken by
the praetor. The early Principes, however, showed an unwillingness to
interfere with the common-law jurisdiction of the ordinary courts, and
confined their attention to cases of equity, such as those springing from
matters of trust (_fidei commissum_) and guardianship (_tutela_). But
the number even of these cases soon became too vast for the cognisance
of the Emperor and his occasional delegates, and we have seen how
special praetors were successively appointed to share in this equitable
jurisdiction.[1822]
The civil courts of appeal existing under the Principate are partly
due to a survival of the Republican principle of _appellatio_ to a
magistrate with the right of veto, partly to the principle (new for
Rome, though not for the provinces) of delegated jurisdiction, and
partly to a wholly novel principle of an appeal which can completely
reverse the decisions of a lower court, which has its origin mainly in
an attempt at centralising the higher provincial jurisdiction in Rome.
From the decision of a _judex_ in the _judicia ordinaria_ there is now,
as formerly, no appeal to any authority, although, as we shall see, the
sentences of _judices_ might, under certain conditions, be reversed by
the authority either of the praetor or the Princeps. From the decision
of the praetor _in jure_ an appeal lies as before to an equal or higher
authority,[1823] and the veto in virtue of the _major potestas_ or
_majus imperium_ is naturally possessed by the Princeps. When we find
Tiberius present in the praetor’s court, he may be there for the purpose
of over-ruling that magistrate’s decisions.[1824] His presence seems to
show that the limitations of the old _auxilium_—which must be offered in
person[1825]—were preserved. Whether the veto was pronounced in virtue
of the _imperium_ or in virtue of the _tribunicia potestas_ is a matter
of indifference; how the veto operated is the really important point. On
the analogy of the Republican intercession its effects should have been
purely cassatory, and perhaps in the early Principate this principle
was observed. But it must be remembered that the Princeps is in a very
different position to the vetoing consul or tribune of the Republic,
or even to the Republican praetor who presides over a department other
than that which he controls by his veto. These magistrates can negative
a decision of a lower court, but they cannot replace this negatived
decision by a positive judgment of their own. The Princeps, on the other
hand, has a theoretically unlimited power of civil jurisdiction.[1826] He
can, therefore, supplement his negative by a positive judgment, and this
unique combination of the power of vetoing and the power of judging is
almost unquestionably the basis of that appeal to Caesar which leads to
the reformation of a sentence. It is not improbable that the appeal came
to operate in this way even against the praetor, although, even if it
did not, the effect of Caesar’s veto would really be reformatory. Even
the tribunes of the Republic could put pressure on a praetor to induce
him to alter his formula,[1827] and we can hardly imagine the praetor
withstanding the suggestion accompanying a veto pronounced by the holder
of the _tribunicia potestas_. The jurisdiction of the municipal towns
of Italy was, so far as it was “ordinary” jurisdiction, still under the
control of consuls, praetors, and tribunes, at least as late as the reign
of Nero.[1828] These municipal courts were technically those of the
_praetor urbanus_, and the Princeps probably interfered (if at all) with
their jurisdiction only through his control of the rulings of the praetor
in Rome. We shall trace elsewhere the mode in which the extraordinary
jurisdiction of one of Caesar’s delegates, the praefect of the city, came
to encroach on the ordinary jurisdiction of the Roman courts.
Another method of appeal springs from the principle of delegated
jurisdiction. Caesar, when he cares to exercise civil jurisdiction,
can perform it either personally or through mandataries, and there is
necessarily an appeal from the mandatary to the higher authority, unless
this authority distinctly asserts that no appeal will lie.[1829] The
appeal in such a case, if it is upheld, issues not merely in the veto but
in the reform of the sentence of the mandatary. Caesar may, of course,
employ such delegates as he pleases. Augustus used the _praetor urbanus_
and _consulares_ for home and foreign _appellationes_,[1830] a word which
in this context probably means simply “requests for cognisance” made
to the Princeps. The imperial jurisdiction in matters of trust (_fidei
commissa_) was delegated to consuls or to praetors.[1831] But, apart from
this regular delegation, the Emperor might instruct any one to be his
_judex extra ordinem_, when he did not care to take the case himself.
The appeal from provincial governors was, so far as the public or
senatorial provinces were concerned, the result of a conscious striving
after unity of administration, although it was not wholly unconnected
with Republican precedents; with respect to Caesar’s provinces, it was
a direct consequence of the fact that the governors of these provinces
were merely his legates, although the frequency with which the appeal
was allowed shows the same striving for a centralised jurisdiction.
The principle which in the early Principate regulated appeals from the
public provinces was that these should come invariably to the Senate,
and this principle of the dyarchy, which tended to be disregarded, was
emphatically restated by Nero at the commencement of his reign.[1832]
It was probably a development of a Republican custom in accordance with
which certain important cases had been summoned from the provinces to
Rome by the consuls and Senate (_Romam revocatio_);[1833] but this
principle seems to have been now extended to include true cases of
appeal as well as cases of denial of jurisdiction. When such appeals in
civil matters came to Rome, it is probable that the Senate delegated the
hearing of them to the consuls.
The fact that this principle of the appellate jurisdiction of the Senate
required restatement in 54 A.D. prepares us for the ultimate neglect
into which it fell. It is certain that by the close of the second and
beginning of the third century, Caesar, or his great delegate the
praefect of the praetorian guard, is the universal court of appeal
for the whole provincial world. This result cannot be attached to any
power possessed by the Princeps over the proconsuls of the public
provinces; for the statement that he possessed _maius imperium_ over
such governors[1834] can only mean that in any collision of authority
the Princeps is not inferior to the proconsul. The world-wide appellate
jurisdiction of the Princeps was a thing of very gradual growth, and
it originated, not from any idea of his prerogative, but from the
irresistible tendency of provincial governors, senatorial as well as
imperial, to refer their difficulties to the highest interpreting
authority in the Roman world, the Princeps and his _consilium_ of
judicial advisers. It is no wonder that the man who became the central
source of law should also become the universal authority for its
interpretation in detail.
When we turn to criminal jurisdiction, we find that here too there are
three sources of _jus_. The Republic is represented by the _quaestiones
perpetuae_ with their praetors and equestrian _judices_, and also by the
new criminal jurisdiction which has been attached to the consuls and the
Senate; the Principate is represented by the jurisdiction of the Princeps
and his delegates. The jurisdiction of the _quaestiones_, so long as it
continued,[1835] proceeded on the old lines. They judged except where the
case, through a request of the parties accepted by a higher court, was
exempted from their jurisdiction. The higher courts, which might stop
their jurisdiction by accepting a case, were those of the Senate and
the Princeps. Both of these were high courts of voluntary jurisdiction,
and no appeal was permitted from one to the other.[1836] Voluntary
jurisdiction is by its nature difficult to define; but custom tended to
limit the Senate’s cognisance to certain classes of cases. These classes
were determined either by the position of the accused or the nature of
the offence. The Senate tried ordinary crimes, such as murder, adultery,
incest, when they were committed by the members of the upper classes
in society,[1837] and there was a growing feeling, which subsequently
obtained something like legal recognition, that a senator should be
tried by his peers.[1838] But the character of the offence was the chief
determinant of the Senate’s jurisdiction. Any offence of a directly
political character, even in the early Principate a breach of a treaty by
a foreign prince,[1839] tended to come before it. It was the usual court
for extortion or other misuse of powers by provincial governors;[1840]
it judged offences against the majesty of the state;[1841] and when the
majesty of the Princeps had become identified with that of the state,
it might be employed as a convenient engine of judicial tyranny.[1842]
Its utility was assisted by the unlimited and arbitrary character of
its jurisdiction. It interpreted while it judged; it might extend the
incidence of a law and frame new penalties; it might even punish in cases
where no penalty was fixed by law;[1843] and the principle, forbidden in
the _quaestiones_, of uniting several crimes in the same charge, was here
admitted.[1844] This jurisdiction was technically, perhaps, a _cognitio_
of the consuls.[1845] But the Senate was their constant advising body,
and the sentence took the form of a _senatus consultum_. We shall soon
see how the Emperor’s presence at the board enabled him to influence a
jurisdiction which was technically independent of his control.
The voluntary jurisdiction of the Princeps in criminal matters was
theoretically unlimited, and could be exercised at any time or in any
place. It rested with him whether he would undertake the cognisance
(_cognitionem suscipere_) at the request of one of the parties,[1846]
or refer the case to the ordinary courts that is, to the _quaestio_
competent to try it. The relations of the two high courts of voluntary
jurisdiction to the ordinary court of necessary jurisdiction, are
admirably exemplified by the procedure adopted in the trial of Piso
for the murder of Germanicus (A.D. 19-20). It is at the outset assumed
that the case, which is one of poisoning, will come before the special
commission established by the _lex Cornelia de veneficis_. But the
Emperor’s cognisance is sought by the prosecutor, and Tiberius and his
_consilium_ actually listen to the preliminaries of the trial. But
the Emperor soon sees how invidious it will be to pronounce judgment
in a case in which the murder of his own nephew and adopted son is
the subject of investigation, and he, therefore, sends the matter
unprejudiced to the Senate with a request that they should exercise
their voluntary jurisdiction—a request which, coming from the Princeps,
it was practically, although not legally, impossible for the Senate to
decline.[1847]
But, although any request for cognisance might be listened to, the
Princeps usually confined his personal jurisdiction to certain spheres.
These included serious crimes committed by members of the upper ranks in
society, but especially offences committed by imperial servants or by
the officers of the army.[1848] The Emperor might, of course, delegate
this jurisdiction, although the delegation of special cases seems to
have been unusual.[1849] On the other hand, the regular delegation of
certain kinds of offences is frequent enough, and is the basis of the
criminal jurisdiction of the Emperor’s servants, the various praefects
who presided over the city, the praetorian guard, the corn-supply, and
the watch.[1850]
A peculiar right of the Princeps to try cases from the provinces in
which the lives of Roman citizens were involved may, perhaps, have grown
up during the Principate. It certainly does not exist during the early
portion of this period. Instances of the maintenance of the Republican
principle, that capital charges against Roman citizens should be sent
to Rome, are indeed furnished by such cases as those of the Bithynian
Christians in the reign of Trajan,[1851] and perhaps of St. Paul’s
appeal in the reign of Nero;[1852] and perhaps such a demand for a
trial at Rome was accompanied by a request, usually accepted, to be
tried before the Princeps; but there are as many instances which prove
the unlimited jurisdiction of the provincial governor, at least when
dealing with ordinary crimes. Thus Marius Priscus scourged and strangled
a Roman knight in the province of Africa, and Galba, when governor
of Tarraconensis, crucified a guardian, who was a Roman citizen, for
poisoning his ward.[1853] There are, however, signs that the right to
kill (_jus gladii_), if this expression refers to ordinary as well as
to military jurisdiction, was specially given by the Emperor at least
to the administrators of his own provinces,[1854] which shows that the
frequent requests of one who stood “before Caesar’s judgment seat” to
be tried by Caesar had issued in some standing rule. At a later time,
when the universal criminal appeal to Caesar had grown up, certain
persons—senators, officers, and decurions—are exempted from capital or
severe penalties pronounced by provincial governors,[1855] and this
jurisdiction, reserved for the Princeps, was exercised by the _praefectus
praetorio_ without appeal.
The Princeps was (especially in the early Principate) by no means a
universal court of criminal appeal for the whole Roman world. There was
no appeal to him from the _quaestiones perpetuae_, although he may have
had some right of rescinding the inequitable judgments of such courts
(_in integrum restitutio_); nor is there theoretically any appeal from
the Senate, although the Princeps possesses, through the _tribunicia
potestas_, a practical power of rescinding the judgments of that
body.[1856] In the matter of jurisdiction delegated to his praefects,
the appeal lies unless he wills it away, as he does in favour of the
_praefectus praetorio_. With respect to the provinces, the principle
of the dual control, which we have illustrated with reference to civil
jurisdiction,[1857] must have originally been supposed to hold good
with reference to criminal jurisdiction as well; but the dyarchy was,
in this particular, ultimately dissolved. By the end of the second
century Caesar, represented in most cases by his inappellable praetorian
praefect, was the highest court of criminal appeal for the whole Roman
world.
Besides the right of appeal, there is in most political societies a
power residing somewhere which is, or approximates to be, a power of
pardon. It is sometimes regarded as a signal attribute of sovereignty,
but somewhat improperly, since the power of rescinding sentences or of
ordering a new trial may reside in a mere executive authority, such
as a court of cassation, which possesses none of the other attributes
which we usually associate with a sovereign. In the constitution of the
Principate it is certainly not regarded as a sovereign right, for the
power is limited and, like most of the manifestations of public life, is
theoretically divided between the organs of the Republic and the Princeps.
The Senate possessed no general power of pardon beyond the right,
inherited from the Republic, of annulling charges and thus releasing
people, who are on their trial, on certain public and festal
occasions.[1858] This right of declaring _abolitiones publicae_ was one
expression of its right of amnesty.[1859] But the Senate had besides,
as a high court, the right of rescinding its own former sentences (_in
integrum restitutio_).[1860] It might also be occasionally consulted by
the Princeps on the advisability of his rescinding the sentences of the
imperial courts—those, as a rule, which had been pronounced by former
Emperors.[1861] But such consultation was not a right of the Senate, but
merely a concession of the Emperor.
The Emperor, in his relation to the courts of Rome, possessed the full
power of _restitutio_ only over his own sentences and those of his
predecessors in office.[1862] He had no right of interference in the
way of _restitutio_ with the judgments of the Senate, for the power
which he possessed, of preventing the reception of the charge[1863] or
the execution of the judgment, was merely a practical and accidental
consequence of the application of the tribunician power to a decree of
the Senate.[1864] Nor is there any distinct evidence of his possessing
the power of rescinding the sentences of the _quaestiones perpetuae_,
although interference with these on equitable grounds is not improbable,
and seems, where permitted, to have taken the form of consent to a
new trial (_retratactio_).[1865] With respect to the ordinary civil
courts, the praetor possessed the power of equitable restitution,[1866]
but there is evidence that the Princeps, also as a court of equity,
might rescind inequitable sentences both of ordinary _judices_ and of
_centumviri_.[1867]
The Princeps also possessed a power of quashing indictments (_abolitio_),
which does not seem to have been confined to his own jurisdiction, but
to have been extended to other criminal courts as well.[1868] Its origin
may be explained on two grounds. The first depends on the fact that it
was possible to have any case brought to the Emperor’s court, on the
request either of the prosecutor or of the accused. The Emperor might,
after listening to the preliminaries, refuse to hear such a case without
“remitting” it to another court,[1869] and it is very improbable that any
other authority would listen for a moment to a prosecution to which the
Emperor had declined to attend. The dismissal of the case by the Princeps
was practically a power of abolition; but the right might have been
exercised even more directly. Republican history furnishes an instance
of a tribune prohibiting the president of a _quaestio_ from receiving a
charge,[1870] and it is obvious that the _tribunicia potestas_ of the
Princeps might have been exercised in the same way to impede the first
step in the jurisdiction of every criminal court.
With respect to the provinces, just as the criminal appeal finally
passes to the Emperor,[1871] so the revision of the sentences of the
local courts, where revision is suggested by the judge,[1872] as well as
the infliction of punishments denied to the judge—such as the capital
penalty on decurions or deportation on any one[1873]—centre finally in
the hands of the Princeps. All right of revision and restitution is not,
indeed, denied to the provincial governor,[1874] but while this was
finally restricted by certain well-defined rules, the Emperor’s power of
restitution appears ultimately to have been unlimited. “This power might
be so employed by the Emperor as to take the form of a free pardon,[1875]
but theoretically it was merely an equitable assistance. As a legally
unlimited power of rescinding sentences, it approaches very nearly to
a power of pardon; but it is an executive duty rather than a sovereign
right, and we search in vain in the Principate for a power of pardon
regarded as an admitted constitutional right of a sovereign.”[1876]
(iii.) _Administration._—The principle of a dual control is as manifest
in administrative matters as in any other. The spheres of administration
are Rome, Italy, and the Provinces. With respect to the first two it
is clear that one of the few justifications for the maintenance of
Republican government was that, by leaving the ordinary administrative
duties connected with Rome and Italy to the Senate and ordinary
magistrates, it enabled the Princeps to concentrate his attention on his
proper sphere, the foreign and provincial world. But even the provinces
did not deserve the undivided attention of the Princeps. Those whose
administration presented no special difficulties, and which required no
military force, might still be left to the care of the Roman people.
This division of responsibility might have continued a reality had the
Principate continued to be what it was in origin—a provisional government
by an individual who had little personal assistance at his command. But
as this rule gradually assumed the form of a huge government department,
overshadowing all others, with an organised civil service which replaced
the assistance furnished by freedmen and slaves, it not unnaturally
tended to encroach on the Republican spheres of administration. The
motive for the tendency was chiefly the fact that the Princeps was, in
the eyes of all men, not the head of a department but of the state, and
a responsibility, which he would gladly have disclaimed, for the acts of
all officials, even those of Republican departments, was thus thrust upon
him.[1877] There is no particular ground for believing that the Princeps
managed departments such as Rome or Italy better than the Republican
officials. The important fact was that public opinion forced him to
manage them, whether for good or ill.
(iv.) _Finance._—Finance at Rome was always so intimately bound up with
provincial control, that the division of the provinces into public and
imperial implied of itself the existence of two separate financial
departments. The Senate still asserts control over the _aerarium_, and
gives instructions to the guardians of the chest. The qualification of
these guardians varied from time to time. The dictator Caesar had in
45 B.C. given the charge to two aediles, but quaestors seem again to
have been the presidents of the treasury[1878] until Augustus in 28
B.C. instituted two _praefecti aerarii Saturni_, chosen yearly from the
ex-praetors by the Senate.[1879] Even this change was short-lived, and
the praefects were soon replaced by two of the praetors of the year who
received their _provincia_ by lot.[1880] Claudius in 44 A.D. restored the
Republican method of administration through quaestors; but these were
no longer to be annual officials designated by lot, but to be chosen by
the Emperor for a period of three years.[1881] Finally under Nero (56
A.D.) the elements of the Augustan and the Claudian arrangements were
combined[1882] in the provision that two ex-praetors should be appointed
as praefects of the treasury, but that these should be named, generally
for three years, by the Princeps.[1883] The fact that the Princeps
appointed the guardians of the public chest was by no means an assertion
that he controlled its funds, and, although his indirect influence on
the _aerarium_ was unquestionably great, this treasury still remained in
principle under the direction of the Senate alone. Even in the second
century it voted a loan to Marcus Aurelius for carrying on a war.[1884]
The Princeps was rendered financially independent of the Senate through
the possession of his own treasury (_fiscus_ or _fiscus Caesaris_),[1885]
into which flowed the revenues from his own provinces, certain dues owed
by the public provinces, and some extraordinary revenues, such as the
confiscated goods of condemned criminals or lapsed inheritances (_bona
damnatorum_, _bona vacantia_), in the claim to which the _fiscus_ finally
replaced the _aerarium_. The Princeps was the owner of the _fiscus_, but
was regarded as a trustee of the wealth which it contained. To sue the
_fiscus_ was to sue the Princeps; but, although he was the sole subject
of rights in relation to this treasury, he did not regard the money which
it contained as though it were his own private property. Even in the
early Principate there is evidence of the existence of crown property
(_patrimonium_ or _patrimonium privatum_), the use of which for private
purposes was vested in the Princeps.[1886] The _patrimonium_ doubtless
commenced by being the strictly personal property of the first family
of Caesars, and much of it was acquired by bequest;[1887] but, when the
Principate had ceased to be hereditary in the Julian line, it seems to
have been looked on as crown property, which was heritable only by the
successor to the throne. The bequeathal of this property, which was
implied when the Princeps selected an heir, might thus be regarded as
a mode of designation; although, if the destined heir did not succeed,
the _patrimonium_ passed to his successful rival. It was probably due to
the uncertainty of the tenure of the _patrimonium_ that with Septimius
Severus we find the creation of a new aggregate of private property, the
_res privata_,[1888] the administration of which was kept quite distinct
from that of the _patrimonium_. All Caesar’s property, whether held in
trust for the state or for the crown, or applied to the needs of his
family, was equally administered by his own private servants. Of these
we shall speak when we deal with the functionaries of the Princeps as a
whole.
Another treasury under imperial control, which served a public purpose,
was that established for supplying pensions to discharged soldiers. The
want of it had been severely felt in the last years of the Republic,
when the mercenary army looked for its final rewards to plunder or
the political influence of its generals; and, when Augustus created a
professional army by the introduction of the long-service system, he
found it necessary to establish a pension fund for those who had given
twenty of the best years of their life to the practice of arms. The
result was the _aerarium militare_, which the Emperor endowed with a
large capital,[1889] and to which, as fixed sources of revenue, the two
taxes of the _vicesima hereditatum_ and the _centesima rerum venalium_
were assigned.[1890] The administration of this chest was given to three
praefects (_praefecti aerarii militaris_), who remained three years in
office, and were chosen from ex-praetors, originally by lot but later by
the Princeps.[1891]
(v.) _Cultus._—In matters of religion and worship the dyarchy is again
apparent. So far as the state had a religious head, the Princeps, in
virtue of the chief pontificate, occupied this position, and we have
seen the influence which this headship gave him.[1892] But the Senate
had not lost all its control over the cultus of the community or its
right to pronounce on foreign worships, when their social merits or their
legality were in question. It is the Senate that is consulted on the
growth of Egyptian and Jewish worship at Rome,[1893] and on the right
of asylum in the provinces.[1894] Claudius questions it on the subject
of the restoration of the college of _haruspices_,[1895] and Aurelian
asks it for a pontifex to dedicate the great temple of the sun-god at
Palmyra.[1896] So far as the appointment to the great priestly colleges
was not controlled by the Princeps, the gift of this honour was now in
the hands of the Senate.
(vi.) _Coinage._—The right of coinage, although its possession by a
state may be taken as a mark of sovereign rights being enjoyed by that
community, is scarcely a significant mark of the sovereignty within a
state. Whether the Senate or the Princeps possessed this right would make
little difference to the theory of the constitution. As a fact, the right
was possessed by both powers, and was an additional illustration of the
principle of the dyarchy. From the year 15 B.C. the Princeps undertakes
the gold and silver coinage, the Senate that of copper. The possession of
the latter was a privilege in so far as the exchange value of copper was
higher than its intrinsic value, and payments of any amount could be made
in what was really a token currency.[1897]
We have now exhibited the system of dual control as it existed in all the
chief departments of the state. It would be easy to prove that in almost
every particular it might be made a fiction. The senatorial power of
legislation is directed to so large an extent by the imperial initiative
that the _oratio_ of the Princeps is sometimes cited in place of the
decree of the Senate to which it gave birth;[1898] the independence of
senatorial jurisdiction is often infringed by the tribunician power of
the Emperor, while his authority is directly or remotely in conflict
with that of the other courts at every turn; his praefects tend to
usurp the administration of Rome and Italy, while his procurators are
a check on the activity of the proconsuls of the public provinces; his
influence over the _aerarium_ can be asserted whenever he cares to take
the trouble to initiate or support in the Senate the proposal of a grant
of money to himself.[1899] But such a control of departments, if wisely
asserted, by no means rendered the dyarchy nugatory. Under a judicious
prince the Republican constitution was sufficient for its own sphere in
perhaps ninety-nine cases out of every hundred; because in the hundredth
some pressure was felt from the head of the state, we cannot pronounce
the dyarchy to be a fiction. If the control by the Princeps is brutally
and unwisely, however legally, asserted, he is by common consent not a
Princeps but a tyrant. We must judge the Principate by its best names,
by a Nerva, a Trajan, a Marcus Aurelius, an Alexander, a Decius. In
the reigns of all these princes the dyarchy is a living thing. If it
is objected that it becomes a living thing merely through a concession
of the Princeps, the answer is that this concession was certainly not
pictured by these Emperors to themselves as an act of grace, but was
regarded as mere obedience to the constitution; and to maintain the
theory that a constitution which demands obedience from the wise is a
palpable fiction because it cannot enforce obedience on the headstrong,
is to wring a strange admission from political science.
§ 6. _The Senatorial and the Equestrian Nobility_
Although the authority of the Princeps rested virtually on the support
of the army, his position might have been unsafe, and would have been
embarrassing, had he not secured for the work of administration at home
and abroad an official class, that was dependent to some extent on
imperial creation and, therefore, worked in harmony with himself. The old
Republican nobility, so far as it had not been extinguished, might be
utilised; but it could be employed only by being kept in fetters, and by
power being given to the Princeps to recruit its ranks at his will. We
have already considered his control of office, his right of _adlectio_,
and his power of creating Patricians. But a wider power, cognate to
the gift of the Patriciate, was needed, to make him the patenter of a
nobility from which alone senators and magistrates were to be chosen.
Such a power had been usurped by Augustus, and the recognition of a
“senatorial order” was its result. Perhaps in the later Republic society
had already recognised the right of the prospective senator to wear the
broad scarlet stripe (_latus clavus_) on his tunic, but the right became
more clearly defined with the commencement of the Principate; and the
_laticlavii_ are prospective senators and holders of Republican offices,
either recognised as such by the Princeps or endowed by him with the
symbol of senatorial rank. The senator’s son possesses the right to wear
the _latus clavus_ and to attend the meetings of the _curia_, in which
he will one day take an active part;[1900] the eques to whom the symbol
has been given may qualify for the Senate through the vigintivirate and
the quaestorship. The first steps to office and to the Senate were, as
we have seen, usually through the army; but the young soldier who was
destined for the Senate differed, in service and in title, from his
purely equestrian compeer. The _tribuni laticlavii_[1901] are a special
class of officers, who may often have started their service, as mounted
officers of the legions, with the brevet rank of tribune, and whose
service was shorter than that of the other equites in order that they
might be qualified for the quaestorship by the age of twenty-five.[1902]
The possessors of the _latus clavus_ must always have been expected to
pursue a senatorial career;[1903] by the time of Claudius they might be
compelled to this course, the penalty of refusal being the deprivation of
the broad stripe, but sometimes of equestrian rank as well.[1904]
Great care was taken to preserve the dignity and purity of this
senatorial order. The _latus clavus_ was granted only to those who could
trace free birth through four generations, and Claudius was forced to
excuse his conduct in giving it to a freedman’s son.[1905] The Julian
marriage laws prohibited marriage with freedwomen or actresses, not only
to senators, but to their sons, grandsons, and great-grandsons.[1906]
“The order” was reckoned to include the wives of senators and all
descendants in the male line,[1907] together with adoptive children,
until they were emancipated, and even those natural children who had
been emancipated.[1908] The commercial disabilities of senators were
perpetuated and sharpened. The Republican prohibition that they should
not be purchasers of public contracts[1909] was renewed by an edict of
Hadrian.[1910] They were permitted to invest capital at a moderate rate
of interest, but at times even this was disallowed.[1911]
These disabilities were, however, to some extent compensated by
privileges. As the senators ceased to be purely Roman, the question of
their duties to their native states had to be considered, and the rule
was fixed that, while they were allowed to retain their domicile of
origin (_origo_), they owed no public duties (_munera_) to the cities of
their birth.[1912] We have already mentioned the growth of the principle
which reserved criminal jurisdiction on a senator to the senatorial
court.[1913]
In the early Principate there was no distinct title reserved for the
order, but after the close of the first century the epithet _clarissimus_
came to be applied to its members, and the title _clarissima_ is even
given to women of senatorial rank.[1914] A distinction in office and
dignity but no distinction in rank separates the Princeps from the
senators. They are his “peers” (ὁμότιμοι),[1915] and this peerage is
chiefly shown in their sole participation in Republican offices. They
might, indeed, be delegates of the Princeps, but not his servants in the
sense in which the procurators were. Besides filling the regular offices
of state, senators possessed a monopoly of provincial government, where
the country governed was a true _provincia_ and not a department assigned
temporarily or permanently to a procurator or praefect; they were the
sole commanders of the legions, and, as Caesar’s nominees, they filled
the office of praefect of the city and the various commissionerships
(_curationes_) for duties which he had undertaken, such as the care of
the water-supply, of the roads, of public works, and of the banks and
channel of the Tiber (_curatores aquarum, viarum, operum publicorum,
alvei et riparum Tiberis_).[1916]
We have already spoken of the military training and attitude of this
nobility,[1917] and also of its gradually increasing provincial
character.[1918] Both these characteristics were in harmony with its
sphere of duties, which were mainly provincial. A successful member of
the order could have seen but little of Rome or Italy until his declining
years. If his early military service was real and not nominal,[1919] he
spent most of the years between eighteen and twenty-five in the camps and
on the frontiers. If he had shown military ability, he might be sent back
as an ex-quaestor to take command of a legion, although such a legateship
was usually reserved to men of praetorian rank.[1920] The praetorship
and consulship qualified him for long terms of service in successive
Caesarian provinces, and for the annual governorship of those still under
the control of the Senate.[1921] This identification with provincial life
was an identification with the Principate, for there were few Republican
associations to impress the mind when the bounds of Italy had been
passed. The principles of selection, training, and habituation to which
this nobility was subject were thus directed to inspire it with a belief
in, if not with an enthusiasm for, the accepted order of things.
The second order which supported the throne and did the work of the
Empire was that of the Equites. The word _eques_ has now, as in the
Republic, a dual signification. Tacitus employs it to describe the
capitalist class, presumably the possessors of a census of 400,000
sesterces,[1922] and it is obvious that current terminology did not
accept the restrictions which the Principate may have wished to impose on
the use of the term. It is uncertain what these restrictions were, for
literature and inscriptions mention two methods of conferring equestrian
rank, and it is not known whether these methods—the gift of the rank
through the gold ring and through the public horse—were sometimes
alternative or always concurrent. But the grant of knighthood to freedmen
is described as having been effected by the gift of the gold ring[1923]—a
gift which, as early as the time of Hadrian, had come to confer free
birth (_ingenuitas_) merely and not equestrian rank,[1924] and it cannot
be shown that the public horse was always given to members of this class
when they were endowed with the _insignia_ of knighthood.[1925] It is
not improbable, however, that when the gold ring had lost its earlier
signification and become merely a means of conferring free birth, only
one order of official equites was recognised, and that the title in its
proper sense was restricted to the order whose members had, from the
time of Augustus, been pre-eminently the bearers of the name. This order
was the old one of the _equites equo publico_, which was reorganised
and vastly extended in scale at the very beginning of the Principate. We
are told that even under Augustus the annual parade might witness the
appearance of five thousand knights,[1926] and these could have been
but a portion of the order, for many members of the corps must have
been detained on financial, administrative, and military duties in the
provinces. This increase in numbers seems to have led to the abandonment
of the old centuriate organisation, for the equites of the Principate
are grouped in _turmae_ and commanded by _seviri_.[1927] Selection for
the order was entirely in the hands of the Princeps,[1928] and probably
any one with the requisite qualifications—free birth, good character,
and a property of 400,000 sesterces—could get this patent of nobility
from the Emperor’s hands. At the times when the censorship was revived
in the person of the Princeps,[1929] the selection and elimination of
equites may have followed the rules prevailing under the Republican
system of revision;[1930] but, as the censorship was no part of the
constitution of the Principate, some department must have existed from
the first for the purpose of registering the names of applicants. We find
a permanent bureau eventually established for this purpose. It bore the
title _a censibus equitum Romanorum_, and seems to have been a branch of
the general department of petitions (_a libellis_).[1931] Although this
office was concerned primarily with the duty of admission to the order,
yet its holders must have pointed out to the Princeps cases where the
qualifications requisite for knighthood had ceased to exist, and they
must thus have acted as the board that really controlled the tenure of
the rank. The formal control in this particular was, however, effected,
now as in the Republic, by a solemn and public act. The act, although
a Republican survival, was not employed with its Republican meaning.
The parade of the knights (_transvectio equitum_) on the Ides of July
had, during the Republic, been a mere procession; it was now given the
significance of the censorian review in the Forum,[1932] and became the
means of testing the qualifications of members of the order (_probatio
equitum_).[1933] The knights now passed on horseback, not on foot; they
could not ask for their discharge (_missio_), for the tenure of their
rank was no longer conditioned by military service, although Augustus
finally permitted all members of the age of thirty-five, who were
unwilling to continue in the corps, to return their public horses;[1934]
but the knights were still questioned and made to give an account of
their conduct,[1935] and those whose answers were unsatisfactory were
dismissed from the ranks.[1936] That Augustus took this duty seriously is
shown by the fact that he more than once asked the Senate for committees,
whether of three or ten members, to assist him in the work.[1937] But,
although this parade is found in the reigns of subsequent Emperors,[1938]
and can be traced as late as the fourth century A.D.,[1939] the serious
duty of rejection was probably exercised more and more by the permanent
bureau which admitted to the order.
The eighteen centuries of Roman knights had, even at the end of the
Republic, never lost touch with the army. They had ceased to be the
citizen cavalry, but they were composed of the young nobility who
furnished the mounted officers of the legions. This secondary military
character was retained by the corps in the Principate; but it had an
additional significance as well. There can be no doubt that it was from
the _equites equo publico_ that the Emperors chose those members of the
official hierarchy—procurators and praefects—who were of equestrian rank.
It is less certain whether this corps furnished all the _judices_ during
the early Principate. Jurisdiction, whether civil or criminal, was a
burden (_munus_), and this may have been imposed on all who possessed
the requisite census, whether they had made profession for the order or
not.[1940]
It was natural that an order thus definitely constituted, and which
became more rigid as time went on, should end by enjoying titles of
honour peculiar to itself. This stage had been attained by the second
century; but the titular designations are not strictly those of the
equestrian order, but of the grades of office to which it led. After the
reign of Marcus Aurelius the equestrian hierarchy was divided into three
classes; the first contained only the praefect of the praetorian guard
who was called _vir eminentissimus_; the second the other equestrian
praefects and higher procurators, who bore the title _perfectissimi_; the
third—the possessors of all other equestrian posts—were _egregii_.[1941]
The equestrian officers of the army were not graduated on a similar scale
of rank, and the municipal knights of Italy are designated only by the
old Republican and non-official epithet of _splendidi_.[1942] The more
definite, but equally non-official, epithet of _illustris_ may have
been applied to individuals who possessed the senatorial census and the
_latus clavus_, but who were passing through the equestrian service in
the army (_equestris militia_), which was preparatory to entrance into
the Senate.[1943] But the name more particularly designated men who,
possessed of a senatorial fortune, preferred to retain their equestrian
rank, and even perhaps any equites of fortune and dignity such as the
holders of the great praefectures.[1944]
§ 7. _The Functionaries of the Princeps_
The Princeps, since he is not a king, has neither magistrates nor
ministers subject to his will; but he possesses a number of delegates
and servants who assist in the performance of his vast duties of
administration. Some of these, such as the legates, praefects, and
curators, find analogies in the Republican constitution; others, such
as the procurators and secretaries of departments, are borrowed from
the organisation of a Roman household and are transferred from the life
of the palace to that of the state. We may neglect for the moment the
legates and provincial praefects, who will be considered in the section
dealing with the organisation of the provinces, and fix our attention on
the offices of the central government, which are either peculiar to Rome
and Italy or common to them and the provincial world.
(i.) _The Praefects._—The four great praefectures, which were concerned
originally with the administration of Italy and Rome, were those of
the city (_urbi_), the praetorian guard (_praetorio_), the corn-supply
(_annonae_), and the watch (_vigilum_). Of these the first stands
entirely out of relation to the others so far as the career and
qualification of its holders were concerned; for, while the praefecture
of the city was a senatorial post, all the others were, during the
greater part of the Principate, equestrian. Of the three latter offices
the praefecture of the praetorian guard was the highest in rank, next
came that of the corn-supply, and thirdly that of the watch.[1945]
The praefecture of the city was the continuation in name, and to some
extent in functions, of one of the oldest offices in Rome;[1946] but
the historical continuity is rendered somewhat imperfect by the fact
that the ancient praefecture, which had originated with the kings and
had ceased to be a reality only with the appointment of the first
praetor,[1947] still continued in a shadowy form during the Principate
as the praefecture created when the days of the Latin festival drew the
magistrates away from Rome.[1948] But the new office of the Principate
was, in a sense, a continuation of the old one of the monarchy. Both were
products of personal rule and were based on the theory of delegation; the
later office was suggested by the earlier, and both had much the same
sphere of administration. The link between the Republican office and that
of the Principate is found in the arrangements of the dictator Caesar
and in the earlier procedure of Augustus. The link was broken when,
under Tiberius, the praefecture became a permanent and not an occasional
office. In 46 B.C. Caesar had left six _praefecti_ in Rome to administer
the affairs of the city during his absence;[1949] Maecenas had had a
similar, though less definite, position given him by Augustus;[1950] and
when the latter became Princeps, the praefecture between the years 27 and
24 B.C. became a more regular, although still an occasional office, and
was renewed from time to time by Augustus during his absences from the
capital.[1951] Tiberius’ long periods of retirement made it practically
perpetual,[1952] and under subsequent reigns the praefect remains in
office even when the Princeps is present in Rome.[1953] It was, perhaps,
due to its associations with the Republican magistracy that this office
was filled by a senator and a consular.[1954] The same associations may
account for the facts that the praefect of the city, although a delegate
of the Princeps and nominated by him for an indefinite period,[1955] is
yet accounted a magistrate, and is even credited with _imperium_.[1956]
One of the early occupants of the office[1957] sent in his resignation
six days after his appointment on the ground that he had held an
_incivilis potestas_; and indeed the scope of the praefect’s duties
and the extent of summary jurisdiction and coercive power which they
involved, might easily lead a sensitive mind to shrink from such
un-Republican authority. The praefect was briefly the guardian of the
city (_custos urbis_), and nothing that could be construed as a part of
that _tutela_[1958] was exempt from his control. It was his duty to keep
order everywhere, at the games as in the market, and for this purpose he
had at his disposal the city cohorts (_cohortes urbanae_) established by
Augustus,[1959] three divisions of which were quartered in Rome during
the reign of Tiberius.[1960] But the preservation of order implied
interference with a great many departments of civic life. The praefect
controlled the theatre, the money-changers, the sale of meat, the
trading and religious guilds; he listened to the grievances of slaves,
or to the complaints of _patroni_ about their freedmen, and finally
even had cognisance of serious offences committed by guardians.[1961]
The criminal jurisdiction, which was the complement of his authority,
was so indefinite that at a very early period it crossed that of the
_quaestiones perpetuae_,[1962] and, as the tendency of the Principate was
to make the latter give way before the former, we are not surprised at
the unlimited criminal jurisdiction described by Dio Cassius and recorded
in the _Digest_ as vested in the praefect in the third century A.D.[1963]
He might at this time inflict the severest punishments, even deportation
or condemnation to the mines.[1964] His police control and criminal
jurisdiction extended to the limit of a hundred miles from Rome.[1965]
Within the city he might judge in person; jurisdiction in Italy he
exercised through delegates.[1966] He also possessed a certain civil
jurisdiction connected with his functions of preserving order,[1967] and
finally became the court of appeal, in civil cases, from officials in
Rome.[1968] But he was not a final court, for a further appeal lay from
the praefect to the Emperor.
The _praefectus praetorio_ was in origin the commander of the Emperor’s
bodyguard. This _corps d’élite_, which even in the Republic had grouped
itself round a commander in the field, was given a definite existence and
organisation in the year 28 B.C.,[1969] and became the police of Italy,
the selected home force composed, unlike the legions, mainly of Italian
citizens,[1970] and the protector, often the transmitter, of the throne.
Its praefects at this early stage represent the military character of
the despotism perhaps more purely than any other officials, and even
the reign of the second Caesar could show in Sejanus one of the most
formidable of those praefects who were almost partners of the throne.
The danger threatened by the office illustrates its power, and this was
recognised when Vespasian sought security by giving the praefecture to
his own son Titus,[1971] or Severus married his elder son to the daughter
of his praefect Plautianus.[1972] A more favourite method was to increase
the number of its holders. Two were frequently appointed, and three
are found on two occasions since the time of Commodus.[1973] Gradually
the military functions of the office ceased to be the most important,
although its military history had determined its character. The praefect
of the guard had always been the man who stood next the throne; he was a
truer _alter ego_ of the Princeps than the praefect of the city, for his
activity was not confined to Rome and Italy. It was he who issued rapid
injunctions for the organisation of the army or for the guidance of the
civil service throughout the Empire, and at times we find two praefects,
such as Adventus and Macrinus in the reign of Caracalla, representing
respectively the military and civil spheres. But jurisdiction, the most
constant of the Emperor’s cares, and the framing of legal decrees, also
demanded the attention of the praefect, and hence it was necessary to
entrust the office to the first jurists of the Empire. Papinian, Ulpian,
and Paulus were all praefects of the guard. The change in the character
of the office perhaps began with Hadrian; it was carried on during
the reigns of the Antonine Emperors, and finally achieved in that of
Septimius Severus. The judicial aspect of the office was now paramount.
The praefect has become the highest criminal judge in Italy outside the
hundredth milestone;[1974] he is the court of appeal in criminal cases
from all provincial governors,[1975] and judges in those cases which the
provincial governor was not competent to decide.[1976] He is also the
court of appeal from provincial governors in civil cases.[1977] This
extensive jurisdiction was a result of the centralisation of judicial
power in the Emperor, which we have already traced.[1978] It had to be
delegated, and no fitter delegate could be found than the praefect.
Convenience also dictated that the delegation should be final, and the
principle was finally arrived at that there should be no appeal from
the praefect to the Emperor.[1979] This did not mean that the Emperor
ceased to judge; for at any moment he might displace his praefect and
hear the case himself. As the praefect judged _vice principis_, it is
natural to suppose that he presided over the imperial _consilium_,[1980]
which attained a definite organisation in the reign of Hadrian;[1981]
and this probability is scarcely shaken by the fact that we find special
_consiliarii_ nominated for the praefect,[1982] for he exercised a
varied jurisdiction and might be holding a court at the same time as the
Emperor. Apart from jurisdiction, his general mandates and ordinances had
legal force, provided that they did not conflict with laws or imperial
constitutions.[1983]
During the greater part of the Principate equestrian rank was a necessary
qualification for this praefecture. Senators first began to hold this
office from the time of Severus Alexander, who gave his praefects
_senatoria dignitas_ and the title _clarissimus_,[1984] for it was
held that one who pronounced judgment on a senator should himself be
of senatorial rank.[1985] At the time when the praefect was a knight,
dismissal from office often took the form of making him a senator or a
member of the senatorial order.[1986]
The _praefectus annonae_ was the final product of a question that had
never ceased to agitate Rome from the close of the Punic wars. Anxiety
about the supply of corn to the capital had raised Pompeius to an
extraordinary position in 57 B.C.,[1987] and in 43 the Senate, alarmed
at the possible designs of Antonius and Octavian, had agreed that no
individual _curator_ for corn should again be appointed.[1988] In the
early Principate the duty belonged technically to the _aediles cereales_
instituted by Caesar;[1989] but epochs of scarcity led to its being
taken over by the Princeps. Augustus accepted the task in 22 B.C.,[1990]
but whether as a permanent cura is uncertain,[1991] and in 18 B.C. and
6 A.D. experiments were made to carry it through by the appointment
of _curatores_ of praetorian or consular rank.[1992] Finally, as a
definite _cura_ of the Princeps, it was given to a praefect. The _cura
annonae_ as undertaken by the Princeps involved two charges; firstly,
the gratuitous distribution of corn to the poorer classes at Rome, and
secondly, the placing of corn on the Roman market for purchasers as well
as recipients. It was with the latter of these duties that the praefect
was chiefly, perhaps exclusively, concerned.[1993] He had to see that
the requisite mass of grain was brought to the market, and that it was
sold at a moderate and stable price.[1994] Assistance was furnished
him by subordinate officials in Rome itself, in the harbours of Italy,
and in the provinces, senatorial as well as imperial; but the number
of these procurators was not large, since the lower departments of the
corn-supply were managed by guilds, such as those of the _mensores_
and _navicularii_,[1995] “associations that originally leased their
services to the state and finally became its instruments.”[1996] The
praefect possessed a jurisdiction arising from his administrative
duties. He listened to criminal informations touching the public supply
of corn,[1997] and seems even to have heard certain civil actions
arising out of the corn trade.[1998] The appeal from his judgment went
immediately to the Emperor.[1999]
The institution of the _praefectus vigilum_ was equally the result of
the Emperor’s undertaking a special department of administration that
had formerly belonged to Republican magistrates. The guardianship of the
town against fires and nocturnal disturbances had belonged chiefly to the
_triumviri capitales_,[2000] and in a more general way to the aediles.
But the Republican appliances were found insufficient, and Augustus
formed an early scheme for giving the curule aediles a fire-brigade of
six hundred slaves.[2001] Even this did not prove satisfactory, and in
A.D. 6 he undertook the new _cura_—an undertaking which was followed by
the establishment of seven cohorts of _vigiles_, one for every two of the
fourteen regions of the city, and the creation of a praefect set over the
tribunes who were commanders of these divisions.[2002] This praefecture
was, like that of the corn-supply, equestrian, and the two differ little
in rank; for, although the _praefectura annonae_ was reckoned superior,
direct promotion from the command of the _vigiles_ to that of the
praetorian guard is found.[2003] The praefect protected the town and
patrolled the streets by night, and he exercised a jurisdiction closely
connected with his police functions, and resembling, in a lower degree,
that of the praefect of the city. He tried cases of arson, robbery,
burglary, and thefts in baths;[2004] but the higher jurisdiction in such
cases belonged to the _praefectus urbi_, and the praefect of the watch
could not try Roman citizens on capital charges.[2005] In the third
century he possessed some civil jurisdiction in matters connected with
leases and house-rent.[2006]
(ii.) _The Curators._—There were certain _curae_ undertaken by Augustus
which he did not give to equestrian praefects, but to senatorial
_curatores_. These _curae_ of the roads of Italy, of the public works,
of the public water-supply, and of the channel and banks of the Tiber
(_viarum, operum publicorum, aquarum publicarum, alvei et riparum
Tiberis_), were filled by nomination of the Princeps, but their holders
were perhaps, like the praefects of the _aerarium_, regarded as officials
of the people or of the Senate rather than of the Emperor; the reason for
this view probably being that the care of the roads, _opera publica_,
and the like was concerned with _solum publicum_, and “the public soil
in Rome and Italy was, even after the foundation of the Principate, not
the property of the Emperor but of the people or the Senate.”[2007] Hence
in the early Principate the pecuniary means for this administration was
guaranteed from the _aerarium_, the _fiscus_ merely contributing.[2008]
Hence too the occupation of these posts by senators and their method
of appointment. In 11 B.C. Augustus nominated _curatores aquarum_
with the consent of the Senate (_ex consensu senatus, ex senatus
auctoritate_);[2009] the _curatores operum publicorum_ and _viarum_ were
perhaps nominated in the same way, and the _curatores_ of the Tiber were
in Tiberius’ reign appointed by lot.[2010]
(iii.) _The Procurators._—The quasi-magisterial position of the occupants
of the higher imperial posts could not be reflected in the lower grades
of office. So far as the detailed _ministeria principatus_[2011] were
concerned, the Princeps adopted the analogy of the Roman house, not of
the Roman state, and employed either general agents (_procuratores_)
or assistants designated by the secretarial or other duty which they
performed (_ab epistulis_, _a rationibus_, etc.). There was always a
distinction between the two classes, which was still preserved now
that they had become official. The agent of domestic life might indeed
approximate to the condition of a mere bailiff, and might be a slave; but
the necessity for representing the absent _dominus_ in courts of law had
made it convenient that the procurator should be a free man; and the idea
of agency, usually of general agency (_procuratio omnium rerum_),[2012]
was closely associated with the word. On the other hand, the slaves and
freedmen of the household who copied and kept accounts, were not agents;
and, in accordance with this distinction, the officials of the Principate
who bear such titles as _ab epistulis_, _a libellis_, _a rationibus_, are
not spoken of as procurators, although one of these posts might rise to
the dignity of a procuratorship, as that _a rationibus_ did.
Although from the point of view of functions the two classes must be kept
distinct, from that of qualification they may be discussed together.
In both we observe the tendency for the household to become a bureau,
for the freedman and slave to give place to the Roman knight. Tiberius’
household consisted mainly of freedmen,[2013] and their influence reached
its zenith in the reign of Claudius. An Emperor who sought popularity
might, like Vitellius, transfer the _ministeria_ of the Principate to
Roman knights;[2014] but no comprehensive attempt seems to have been
made to reorganise the bureaucracy on this footing until the time of
Hadrian.[2015] Henceforth the higher grades were held as a rule by
knights, only the lower being possessed indifferently by equites or
freedmen.[2016] The procuratorship was the patent of equestrian nobility
(_equestris nobilitas_),[2017] and we have seen that titles were finally
devised to express the differences in procuratorial rank.[2018] The civil
service now became closely connected with the army, and the occupants of
civil posts were mainly retired officers, men who had held at least one
of the three positions in the equestrian service,[2019] and who, after
the second century, had generally filled every grade before they took the
procuratorship.[2020] This militarising of the administrative service is
one of the most curious features of the Principate. It gave that service
its precision, its rigidity, its tendency to work as a smooth machine
almost independently of personal control. This tendency was a blessing
in so far as it was calculated to diminish the influence due to the
idiosyncrasies of the Princeps, or of any individual holder of office;
but one cannot help suspecting that a great deal of the administrative
tyranny, which darkened the closing years of the Principate and weakened
the Empire, was due to the ineradicable habits of routine inspired by a
military life, and that the Greek or Graeco-Asiatic freedman, although
a more corrupt, was, on the whole, a more capable administrator. The
military supply was not, however, altogether sufficient, and from the
time of Hadrian a civil career was also open, which gave a chance to the
aspiring lawyer.
Theoretically the procurator’s duties were those of mere agency, and
he had little discretionary authority and no general official power.
Tiberius’ emphatic statement that his procurator’s business was merely
to manage the Emperor’s slaves and personal property[2021] is echoed in
the language of the _Digest_, which tells us that the duties of these
servants of the Emperor were strictly defined, that they were accountable
to their master for the use made of the finances or property under their
care, that they could not give, sell, or transfer it, and that “careful
management” was the limit of their power.[2022] It was only when they
kept within these bounds that their acts had all the authority of
those of the Princeps himself.[2023] But the extending spheres of their
operations rendered it impossible for these limits to be rigorously
preserved. Claudius asked and obtained that his procurators should be
permitted jurisdiction within their own financial departments[2024]—an
almost necessary result of the fact that in the provinces (and especially
in those under senatorial management) there was no convenient court
of arbitration to decide when money was or was not owing to the
Princeps.[2025] The consent of the Princeps, also, to the procurator’s
acts must eventually have meant the consent of the chief bureau at Rome;
for, in spite of the extraordinary capacity for personal government
possessed by the Roman Emperors, the fiscal system was too complicated
for every detail to reach their ears.
The chief duties of the procurators were financial, and most of
these agents can be summed up under the title _procuratores fisci_.
A number of titles are met with which clearly have reference to the
central department at Rome. Such are _procurator summarum_ found in an
inscription of Nero’s time and borne by a freedman,[2026] _procuratores
rationum summarum_,[2027] _rationalis summae rei_,[2028] _dispensator_
or _dispensator summarum_,[2029] and _vilicus summarum_.[2030] The
titles belong to different epochs, and it is difficult to establish
their precise import. It is generally agreed that from the time of
Claudius the title _a rationibus_ was reserved for the chief controller
of the _fiscus_. After the reign of Hadrian this post was reserved
for equites,[2031] and the members of the central bureau had a higher
standing than the financial agents in the provinces. The title
_procurator rationum summarum_, which belongs to the second century,
denotes some highly placed official connected with this central chest;
but, as it does not seem to be identical with the title _a rationibus_,
it has been thought to represent a subordinate controller perhaps
instituted by Marcus Aurelius.[2032] The title _rationalis_, which was
often identical with _procurator_,[2033] seems at some period within the
third century to have replaced _a rationibus_ as the designation of the
chief officer of the _fiscus_.[2034]
Amongst provincial procurators we may enumerate first those who were
confined to the imperial provinces. The procurator here occupied the
position which the quaestor held in the public provinces; he was the
chief officer of the provincial _fiscus_, collected the taxes due
to it, and managed the disbursement of its funds. There was also a
treasury connected with the military station in the province (_fiscus
castrensis_), and at the head of it a _procurator castrensis_, who
superintended the payments made to the soldiers,[2035] and military
expenses in general. Other procurators were common to all the provinces;
for even those that were “public” paid certain dues to the Emperor.[2036]
Such were lapsed legacies and the goods of the condemned (_bona caduca_
and _damnatorum_), after the _fiscus_ had asserted its claim to these
revenues,[2037] and the taxes owed by Roman citizens everywhere, such
as the _vicesima hereditatum_ and the _centesima rerum venalium_. But
the public provinces owed more direct dues to the Princeps as well. Thus
Africa, a corn-supplying but not an imperial province, was brought into
the closest relation with his _cura annonae_, and even the most peaceful
districts must have defrayed the expense of the necessary military
protection, and surrendered certain revenues to be collected by imperial
officials.
Common, too, to all the provinces were the agents who managed
the imperial estates (_procuratores patrimonii_ or _patrimonii
privati_).[2038] We have already noticed that after the time of Severus
a distinction was drawn between the _res privata_ and the _patrimonium_
of the Emperor.[2039] From this time onward the _procurator rerum
privatarum_ is distinct from the _procurator patrimonii_.[2040]
The non-financial procurators, who were actually governors of districts,
will be discussed when we are dealing with the organisation of the
provinces.
The tenure of office by a procurator was indefinite, and depended on the
imperial pleasure. Technically their posts expired when the Princeps who
had appointed them died,[2041] and the renewal of their office by his
successor, although it must have been the rule, was treated as a new
appointment. The posts were well paid and procurators bore the titles
_trecenarius_, _ducenarius_, _centenarius_, and _sexagenarius_, according
as their salaries varied from 300,000 to 60,000 sesterces. The salaries
of the procurators at Rome were probably higher than those belonging to
the same departments in Italy and in the provinces. Thus the _procuratio
rationis privatae_ was probably in Rome a _trecenaria_, in the provinces
a _ducenaria_, in Italy, where it would be merely a branch of the
central office, a _centenaria procuratio_.[2042] Promotion seems to have
been determined chiefly by merit, and one of the strong points of the
system was that there was no mechanical system of advancement. It was
possible for a secretary, who had never been a procurator proper, to be
appointed to a praefecture,[2043] but, as a rule, several procuratorships
were passed through before this summit of equestrian ambition was
attained.[2044]
(iv.) _Personal Assistants._—The secretariate of the Principate was,
as we have seen, but the business side of the organisation of a Roman
household, but so rapidly did the importance and official aspect of
these posts develop that already by Nero’s reign a Roman noble, who kept
assistants with such titles as _ab epistulis_ and _a libellis_, might be
suspected of treasonable designs.[2045] These secretaryships became, in
fact though not in law, great offices of state. They required more highly
trained ability than most of the procuratorships, and, as they brought
their holders into close relations with the Princeps, the influence and
the power of patronage which they conferred must have been enormous.
The official _ab epistulis_ put into shape all the decisions of the
Princeps which took the form of letters, so far as these were not written
personally by the Princeps himself. The answers to the _consultationes_
of officials, to the despatches of generals and provincial governors, or
to deputations from foreign communities, together with the nomination of
officials and officers and the conferment of privileges, passed through
his hands.[2046]
The official _a libellis_ drew up the answers to petitions (_preces_,
_libelli_)[2047] made by private individuals to the Emperor. The
answer was generally given in a short _subscriptio_ appended to the
document.[2048] The framing of such replies required considerable legal
knowledge; hence it is not surprising to find that jurists like Papinian
and Ulpian held this post.
The official _a cognitionibus_ was the adviser of the Emperor on legal
points, which were settled by imperial decree. The points on which
advice was given were perhaps wholly those of civil jurisdiction,
and were probably such as did not need to come before the imperial
_consilium_.[2049] The office was in existence at the beginning of the
third century,[2050] but is thought to have been subsequently merged in
that _a libellis_.[2051]
The official _a memoria_ is first mentioned about the time of the Emperor
Caracalla. His function was probably to put into form and reduce to
writing (often by dictation to a secretary)[2052] such speeches and
verbal decisions of the Emperor as did not fall under the competence of
the other officials.
(v.) _The Consilium._—The _consilium_ of the Princeps[2053] was merely
a renewed manifestation of that eternal principle of Roman public
life which directed that a magistrate should seek advisers. A council
was necessary for public confidence, but an imperial _consilium_ was
originally no part of the constitution of the Principate. Tiberius
imitated Augustus in seeking advice before coming to a decision on
important matters;[2054] yet when he sat as a high court of criminal
jurisdiction, his board of assessors could be described as consisting
of a “few friends.”[2055] The board may have become more determinate in
succeeding reigns, but the first Princeps whom we hear of as giving it
a definite organisation was Hadrian. That Emperor, we are told, when
he held a court of justice, summoned as his advisers jurisconsults
approved by the Senate.[2056] It is only a _judicial_ council that is
here described, and there is nothing to show that these legal experts
were necessarily consulted on administrative matters. The basis,
however, was laid for a permanent council of state, and the _consiliarii
Augusti_ of this period became a definite and salaried class.[2057]
They included both senators and equites,[2058] and some bore the title
_jurisperiti_.[2059] Others may not have been gifted with special
knowledge of the law, and may have been employed in cases where general
ability or experience may have been of more value than juristic training.
Actual jurisdiction was not, however, the only occasion on which legal
knowledge was indispensable in an adviser. The help of the jurist had to
be sought in the framing of the imperial _constitutiones_,[2060] and we
are told that for this purpose Severus Alexander was assisted by twenty
_jurisperiti_ out of a _consilium_ numbering seventy in all.[2061] A
difference of personnel for different branches of administration is
easily comprehensible, for it is improbable that the Emperor needed
to summon all his councillors on every occasion on which he took
advice.[2062] The mode of consultation was wholly informal and depended
on the discretion of the Princeps. Augustus in the exercise of his
jurisdiction distributed voting tablets (_tabellae_) to his councillors,
on which they could inscribe acquittal or condemnation or a modified
verdict.[2063] We cannot imagine that the votes were reckoned as in the
jury system. The _tabellae_ were for the enlightenment of the Princeps,
and he may have decided according to the weight of the names of those
who handed them in. Nero, we are told, took opinions on paper, and,
after reading them, gave his own judgment as though it were that of the
majority of his advisers.[2064] Under Severus Alexander opinions were
given verbally and taken down in short-hand.[2065]
We have already shown that it is probable that the imperial _consilium_
in its developed form was employed by the praefect of the praetorian
guard when he gave judgment _vice_ the Princeps.[2066]