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.

The edicts, decrees, and rescripts came eventually to be described as “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.