Chapter X: The Principate (2)

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.

(iv.) _Finance._—Finance at Rome was always so intimately bound up with provincial control, that the division of the provinces into public and imperial implied of itself the existence of two separate financial departments. The Senate still asserts control over the _aerarium_, and gives instructions to the guardians of the chest. The qualification of these guardians varied from time to time. The dictator Caesar had in 45 B.C. given the charge to two aediles, but quaestors seem again to have been the presidents of the treasury[1878] until Augustus in 28 B.C. instituted two _praefecti aerarii Saturni_, chosen yearly from the ex-praetors by the Senate.[1879] Even this change was short-lived, and the praefects were soon replaced by two of the praetors of the year who received their _provincia_ by lot.[1880] Claudius in 44 A.D. restored the Republican method of administration through quaestors; but these were no longer to be annual officials designated by lot, but to be chosen by the Emperor for a period of three years.[1881] Finally under Nero (56 A.D.) the elements of the Augustan and the Claudian arrangements were combined[1882] in the provision that two ex-praetors should be appointed as praefects of the treasury, but that these should be named, generally for three years, by the Princeps.[1883] The fact that the Princeps appointed the guardians of the public chest was by no means an assertion that he controlled its funds, and, although his indirect influence on the _aerarium_ was unquestionably great, this treasury still remained in principle under the direction of the Senate alone. Even in the second century it voted a loan to Marcus Aurelius for carrying on a war.[1884]

The Princeps was rendered financially independent of the Senate through the possession of his own treasury (_fiscus_ or _fiscus Caesaris_),[1885] into which flowed the revenues from his own provinces, certain dues owed by the public provinces, and some extraordinary revenues, such as the confiscated goods of condemned criminals or lapsed inheritances (_bona damnatorum_, _bona vacantia_), in the claim to which the _fiscus_ finally replaced the _aerarium_. The Princeps was the owner of the _fiscus_, but was regarded as a trustee of the wealth which it contained. To sue the _fiscus_ was to sue the Princeps; but, although he was the sole subject of rights in relation to this treasury, he did not regard the money which it contained as though it were his own private property. Even in the early Principate there is evidence of the existence of crown property (_patrimonium_ or _patrimonium privatum_), the use of which for private purposes was vested in the Princeps.[1886] The _patrimonium_ doubtless commenced by being the strictly personal property of the first family of Caesars, and much of it was acquired by bequest;[1887] but, when the Principate had ceased to be hereditary in the Julian line, it seems to have been looked on as crown property, which was heritable only by the successor to the throne. The bequeathal of this property, which was implied when the Princeps selected an heir, might thus be regarded as a mode of designation; although, if the destined heir did not succeed, the _patrimonium_ passed to his successful rival. It was probably due to the uncertainty of the tenure of the _patrimonium_ that with Septimius Severus we find the creation of a new aggregate of private property, the _res privata_,[1888] the administration of which was kept quite distinct from that of the _patrimonium_. All Caesar’s property, whether held in trust for the state or for the crown, or applied to the needs of his family, was equally administered by his own private servants. Of these we shall speak when we deal with the functionaries of the Princeps as a whole.

Another treasury under imperial control, which served a public purpose, was that established for supplying pensions to discharged soldiers. The want of it had been severely felt in the last years of the Republic, when the mercenary army looked for its final rewards to plunder or the political influence of its generals; and, when Augustus created a professional army by the introduction of the long-service system, he found it necessary to establish a pension fund for those who had given twenty of the best years of their life to the practice of arms. The result was the _aerarium militare_, which the Emperor endowed with a large capital,[1889] and to which, as fixed sources of revenue, the two taxes of the _vicesima hereditatum_ and the _centesima rerum venalium_ were assigned.[1890] The administration of this chest was given to three praefects (_praefecti aerarii militaris_), who remained three years in office, and were chosen from ex-praetors, originally by lot but later by the Princeps.[1891]

(v.) _Cultus._—In matters of religion and worship the dyarchy is again apparent. So far as the state had a religious head, the Princeps, in virtue of the chief pontificate, occupied this position, and we have seen the influence which this headship gave him.[1892] But the Senate had not lost all its control over the cultus of the community or its right to pronounce on foreign worships, when their social merits or their legality were in question. It is the Senate that is consulted on the growth of Egyptian and Jewish worship at Rome,[1893] and on the right of asylum in the provinces.[1894] Claudius questions it on the subject of the restoration of the college of _haruspices_,[1895] and Aurelian asks it for a pontifex to dedicate the great temple of the sun-god at Palmyra.[1896] So far as the appointment to the great priestly colleges was not controlled by the Princeps, the gift of this honour was now in the hands of the Senate.

(vi.) _Coinage._—The right of coinage, although its possession by a state may be taken as a mark of sovereign rights being enjoyed by that community, is scarcely a significant mark of the sovereignty within a state. Whether the Senate or the Princeps possessed this right would make little difference to the theory of the constitution. As a fact, the right was possessed by both powers, and was an additional illustration of the principle of the dyarchy. From the year 15 B.C. the Princeps undertakes the gold and silver coinage, the Senate that of copper. The possession of the latter was a privilege in so far as the exchange value of copper was higher than its intrinsic value, and payments of any amount could be made in what was really a token currency.[1897]

We have now exhibited the system of dual control as it existed in all the chief departments of the state. It would be easy to prove that in almost every particular it might be made a fiction. The senatorial power of legislation is directed to so large an extent by the imperial initiative that the _oratio_ of the Princeps is sometimes cited in place of the decree of the Senate to which it gave birth;[1898] the independence of senatorial jurisdiction is often infringed by the tribunician power of the Emperor, while his authority is directly or remotely in conflict with that of the other courts at every turn; his praefects tend to usurp the administration of Rome and Italy, while his procurators are a check on the activity of the proconsuls of the public provinces; his influence over the _aerarium_ can be asserted whenever he cares to take the trouble to initiate or support in the Senate the proposal of a grant of money to himself.[1899] But such a control of departments, if wisely asserted, by no means rendered the dyarchy nugatory. Under a judicious prince the Republican constitution was sufficient for its own sphere in perhaps ninety-nine cases out of every hundred; because in the hundredth some pressure was felt from the head of the state, we cannot pronounce the dyarchy to be a fiction. If the control by the Princeps is brutally and unwisely, however legally, asserted, he is by common consent not a Princeps but a tyrant. We must judge the Principate by its best names, by a Nerva, a Trajan, a Marcus Aurelius, an Alexander, a Decius. In the reigns of all these princes the dyarchy is a living thing. If it is objected that it becomes a living thing merely through a concession of the Princeps, the answer is that this concession was certainly not pictured by these Emperors to themselves as an act of grace, but was regarded as mere obedience to the constitution; and to maintain the theory that a constitution which demands obedience from the wise is a palpable fiction because it cannot enforce obedience on the headstrong, is to wring a strange admission from political science.

§ 6. _The Senatorial and the Equestrian Nobility_