THE AUGUSTAN EMPIRE (44 B.C.—A.D. 70)

CHAPTER VI

SENATUS POPULUSQUE ROMANUS

I.FORMULA AND FACT

SENATUS censuit populusque iussit. The words of Rome’s greatest constitutionalist express with precision the theory or government which was the creed of all Romans. ‘Commands’ issue from the sovereign People; ‘resolutions’ are taken by the Senate. The formal acts of the Roman State are registered in the name of both bodies: the order in which they are named varies, and in the earlier documents the People take precedence, but by the close of the Republican period the formula which stands at the head of this chapter had become stereotyped in public documents. It is the ‘Senate and People of Rome’ who in 29 b.c. set up in the Forum a monument (no doubt a triumphal arch) in honour of Octavian re publica conservata, and two years later the arch which marked the termination of the Via Flaminia at Rimini; from ‘Senate and People’ Augustus received the powers of the Principate in 27 b.c.; and at his request ‘the Senate and People of Rome’ conferred co-equal rights upon Tiberius at the close of the reign. The traditional formula remained in use as long as the Western Empire lasted; and we naturally find it prominent on the coinage of the Civil Wars which followed the death of Nero, when Galba declared himself Legaius senates populique Romani.

Thus far the formula: what of the reality, especially as Augustus conceived it? To begin with, while the deliberative and legislative functions receive express recognition, the executive is not explicitly mentioned. Yet it was precisely the lack of adequate control over the holder of executive authority (imperium), derived as it was from the fount of popular election and subject to the guidance of an advisory council with ancient and glorious traditions, which had led to the breakdown of the Republican system. The story has been told at length, and there is nothing more to add save that Augustus deliberately set aside the solution of the problem which had been exemplified by the dictatorships of Sulla and Caesar, and preferred to use the framework of the Republican constitution as the scaffolding of a structure adapted to the needs of the Mediterranean Empire of which the core was the city-state of Rome. We have seen that he was determined to be, beyond challenge, the wielder of supreme authority under the new conditions; but we have to ask what place he assigned in his system to the time-hallowed institutions which he desired to preserve. The genius of Rome had shown itself in the method by which, when change was called for, she set up new organs of State beside the old and left them to find their modus vivendi, often turning to new uses those which had outlived their original purpose. Would Augustus be able to carry this process a stage further, and har­monize the working of his new and elaborate administrative system, which compels our admiration, with the continued operation (with or without change of function) of the older organs?

That this was his intention is not to be doubted, and his successors were aware of the fact. Tiberius communicated to the Senate his political testament; and Dio, who gives a somewhat fuller version of his injunctions than other writers, makes him lay down the principle that public service should be rendered by all who were capable of understanding and managing affairs of State. Strabo tells us that Tiberius made Augustus ‘the standard (kanóna) of his government’, and Tacitus reports him as saying that he regarded all his doings and sayings as law; so that it might safely be assumed that such measures as were taken on his accession represent the considered judgments of his predecessor—even if we were not told that the oath of allegiance was taken in the form prescribed by Augustus, and that written instructions for the elections to magistracies had been drawn up by him before his death. We are also entitled to regard the ‘programme’ speech composed by Seneca for Nero to deliver on his accession as embodying the principles which tradition regarded as those of Augustus: Suetonius, in fact, says that Nero asserted his intention of ruling ex Augusti praescripto: and the keynotes of the speech, as recorded by Tacitus, are the right of the Senate to fulfil its ‘ancient functions,’ and the authority of the consuls over Italy and the public provinces. How far, we must ask, did theory correspond with fact?

Before, however, we examine this problem in detail a word must be said with regard to the theory that the Principate was in essence a military despotism, based on the control of the army. It is evident that in fact the princeps could not maintain his authority unless the army was, for all practical purposes, at his command, and Augustus’ use of the praenomen Imperatoris, although it was a personal appellation and not an official title, emphasized the relation between the troops and their imperator; but this does not alter the fact that the legal basis of the new constitution was the conferment upon the princeps of a special commission by the Senate and People of Rome. In the course of history it came about that the legions or praetorians, to whom an imperator was a necessity, imposed their will upon the Senate (which of course implied the formal consent of the People) when the succession was not clearly indicated: but such action was extraconstitutional, and was certainly not contemplated by Augustus as part of his system.

     II.CONSTITUTION OF THE SENATE

We have seen how the Senate, once freely chosen by the censors, had become in the course of history a body of ex-magistrates, to which, since the reform of Sulla, entry was obtained by the holding of the quaestorship. In Republican theory candidates for public office required for their qualification a previous period of military service; but service with the eagles was not in practice obligatory in the last century of the Republic, and most of those who aspired to office seem to have secured posts on the staff of some provincial governor as contubernales, some, of course, served as tribuni militum. Augustus made service as an officer a necessary qualification for a public career; if not a tribunus, the aspirant to a senatorial career must serve as praefectus alae in a regiment of auxiliary cavalry. But this was not all. The senator’s mark of distinction was the wearing of the broad purple stripe (latus clavits); and under Augustus, if not before, a senator’s sons enjoyed the same privilege, which marked them oft' from the members of the equester ordo, who wore the narrow stripe (angustus clavus). To serve as a tribunus or praefectus laticlavius meant, in Augustus’ system, to take the first step in the senatorial career; and Suetonius tells us that he often placed two laticlavii in command of an ala, ‘ne qui expers castrorum esset.’ He could, moreover, bestow the latus clavus on young men not of senatorial birth and thus qualify them to serve as prospective senators; and it was he who issued commissions and controlled promotions. Thus, from the outset of his career of public service, the young Roman under the Principate was imbued with the spirit of loyalty to the regime and to the ruler who exercised the chief command of the army.

Before, however, the aspirant entered upon the cursus honorum in the proper sense by holding the quaestorship, it was now necessary for him to be elected to one of the ‘lesser magistracies,’ a group of minor offices which had at one time been termed vigintisexviri, but which were reduced in number by Augustus to twenty. These originally included the tresviri capitales, who performed police duties, the tresviri monetales, who had charge of the mint, the quattuorviri viis in urbe purgandis and duoviri viis extra urbem purgandis, whose names indicate their functions, the decemviri stlitibus iudicandis, who had jurisdiction in cases where the freedom of a citizen was in question, and, finally, the four praefecti Capuam Cumas (as they were called for short), a sinecure office, dating from the times when circuit judges administered law in Campania. In two or three inscriptions the holder of such an office describes himself as XXVI vir, but it is more usual for the office to be specified; patricians in particular appear as masters of the mint (tresviri a(uro) a(rgento) a(ere) f(lando) f(eriundo). The way was now open for a qualified person to enter upon the cursus honorum by standing for the quaestorship. Caesar had doubled the number of quaestors, which had been fixed by Sulla’s law at twenty; but Augustus reversed this; and he also fixed the age at which the office which gave admission to the Senate might be held at twenty-five.

The form of election by the Comitia was retained, both for the quaestorship and the other magistracies; but the influence of the Emperor, if and so far as he chose to exert it, was a decisive factor. In the first place, he examined the qualifications of candidates for office and put those who possessed them on the list to be submitted to the vote; this had always been the duty of the consul, as presiding officer, and it may still have been lawful for an aspirant to office to submit his name to the chief magistrate (profiteri apud consulem), but it seems that even after Augustus ceased to hold the consulship candidates approached him, with the request that he would ‘nominate’ them, i.e. formally approve their candidature. But he went further than this. Caesar had issued what may be called a congé d’élire to the tribes in favour of candidates whom he desired to see elected; and Augustus took means to indicate those who enjoyed his support. Indeed, he followed the time-honoured Republican practice of canvassing the tribes in person in favour of ‘his candidates’ and cast his vote in the ballot ‘ut unus e populo’. In his later years, however, he was unequal to the conduct of a personal canvass (a mere formality in any case) and from a.d. 8 onwards he resumed the practice of Caesar. In the lex de imperio Vespasiani it is enacted that any candidate for office whom the Emperor shall ‘commend’ to the Senate and people shall be considered extra ordinem at the Comitia, there is no reference to previous precedent in this clause, and it is permissible to infer that the right of commendatio had not previously been included in the Imperial prerogative without limitation. It is in fact doubtful whether, under the Julio-Claudian dynasty, the congé d'élire had been issued in connection with elections to the consulship, although it cannot be doubted that, at any rate after the troubles which followed Augustus’ resignation of the office in 23 b.c. he made it clear whom he wished to see; elected, especially since the highest commands in the army were filled by consulares, For the other offices Caesar’s candidates are proud to designate themselves as such on their monuments. In the case of the quaestorship the candidati Caesaris furnished the two members of the college who were attached to the Emperor’s personal staff as secretaries and read his messages to the Senate when he was absent from the sitting. Candidati Caesaris are also found in the higher grades, but rarely in those of aedile and tribune. During the Republican period these offices had not formed part of the regular cursus honorum, and it was common to pass from the quaestorship to the praetorship without holding either; but this was altered by Augustus, who made it necessary for all save patricians to hold one or other office. The college of praetors numbered ten from 23 b.c. onwards when Augustus placed two in charge of the Aerarium, feeling no doubt that its management called for the service of officials of more experience than the quaestors. We hear, however, that in a.d. ii, when there were sixteen candidates for the office, Augustus allowed all to serve, but that twelve was the usual number; and it is consonant with this that Tiberius on his accession nominated twelve praetors, the number handed down from Augustus, of whom he selected four for commendation ‘sine repulsa et ambitu designandos’. It so happens that Velleius informs us that among the four were himself and his brother—candidati Caesaris—whose names were on the list drawn up by Augustus before his death, so that they attained the distinction ‘ut neque post nos quemquam divus Augustus, neque ante nos Caesar commendaret Tiberius.’

In examining the qualifications of candidates for office Augustus took property into account. As to this the statements of our authorities are conflicting: Suetonius informs us that he ‘raised the census of Senators from 800,000 sesterces to 1,200,000; Dio on the other hand that he fixed it at 400,000 sesterces in 18 b.c. and raised it to 1,000,000 in 13 b.c. This last figure at any rate, may be accepted; for Tiberius, according to Tacitus, bestowed property of this value on an ex-praetor who begged for leave to resign his rank on the score of poverty; and the historian also tells us that Augustus had bestowed the same sum on the grandson of the orator Hortensius, ‘ne clarissima familia extingueretur.’

III. LEGISLATION

Writing in the second century the jurist Gaius enumerates the following sources of law—leges, plebiscita, senatus consulta, constitutiones principum, edicts issued by magistrates who possess the ius edicendi, and responsa prudentum. The third and fourth of these would not have found a place in a list drawn up in the Republican period; for although the Senate, through the advice which it gave to the magistrates, exercised great influence on legislation, it had no constitutional power of passing general enactments, and the princeps was yet to come. During the reign of Augustus the famous doctrine of Ulpian, quod principi placuit legis habet vigorem would have seemed strange to a Roman jurist, although, by his use of the ius edicendi, his decisions on cases and petitions submitted to him, and his instructions to his subordinates, Augustus was in fact building up the body of law which Ulpian proceeds to analyse in the passage above quoted. Ulpian here expands the statement of Gaius (1, 5) that the Imperial constitutiones, which have the force of law, embrace edicts, decreta (judicial decisions) and epistulae (replies to petitions): but we must add to these mandata, or instructions to officials, which are often cited in the Digest, and came to form a code of administrative law, to which additions were made from time to time. Ulpian  quotes the clause inserted in this code by Trajan which finally legalized the ‘military testament’; and the document known as the ‘Gnomon of the Idios Logos’, in part based on Imperial mandata, illustrates the far-reaching effects of such instructions. The validity of the emperor’s edicts and other dispositions was guaranteed by the clause of the lex de imperio that has already been referred to.

We saw in the previous chapter that in 19 b.c. Augustus was offered, but declined, the power to enact leges Augustae and embodied his reforms of the civil and criminal codes in a series of leges Juliae, which were no doubt submitted to the popular vote. Legislation proposed by magistrates also continued—it will suffice to mention such famous enactments as the Lex Fufia Caninia, the Lex Aelia Sentia, and the Lex Papia Poppaea, which are discussed elsewhere. But beside these we meet with enactments in the form of senatus consulta, which often bear the name of the consul who proposed them; the earliest and one of the most famous of which we have knowledge is the s.c. Silanianum, which takes its name from C. Junius Silanus, consul in a.d. 10. This dealt with the torture and execution of the slaves of a murdered owner and is the subject of a chapter in Ulpian’s commentary on the edict, and there was a further enactment by the Senate in the following year concerning this matter.

It is to be observed that under the Julio-Claudians the Senate does not, strictly speaking, make law by its decree, but tenders advice to the magistrate who administers justice; this is clearly set forth in a senatus consultum, of which the text is preserved in the Digest, forbidding women to become answerable for the debts of others, and giving a further extension to a principle which, as Ulpian tells us, had been laid down in edicts issued by Augustus and afterwards by Claudius. In time, however, the Senate acquired the right to make law directly, and this accounts for the fact that Gaius, when he tells us that ‘what the Senate commands and lays down has the force of law’, adds the words ‘quamvis fuerit quaesitum’; half a century later Ulpian can write ‘there is no doubt that the Senate can make law’. But it may well be asked whether the Senate’s initiative in the matter of legislation was more than formal. In this connection it is instructive to examine the process by which a revised procedure de repetundis was set up in 4 b.c. In the fifth of the Edicts of Cyrene Augustus tells us that he has resolved to dispatch to the several provinces, and to append to his edict, copies of a senatus consultum which was passed in the consul­ship of Gaius Calvisius and Lucius Passienus, he himself being present and being one of the signatories, ‘ in order that it may be made clear to all who inhabit the provinces how great is the care taken by myself and the Senate that none of our subjects shall suffer injustice or extortion.’ Then follows the decree, with the substance of which this is not the place to deal. The preamble, however, is most instructive, for it tells us that the consuls took the advice of the Senate ‘Concerning the matters which Imperator Caesar Augustus, our princeps, in accordance with a resolution of the Advisory Board selected by lot from the Senate, desired to be brought before the Senate.’ Here we have a reference to the privy council or cabinet the institution of which is mentioned by Dio in his survey of the constitution which follows the account of the settlement of 27 b.c.; it consisted of the consuls, one member of each of the other colleges of magistrates, and fifteen other senators, selected by lot and serving for a period of six months. Suetonius calls these bodies consilia semenstria, and tells us that their function was to prepare business for submission to the full Senate; and we may be very sure that no important measure was so submitted unless it had the Emperor’s approval and had been drafted with the aid of his trained legal advisers.

Another example of the methods used by Augustus is to be found in the re-organization of the water-supply of Rome, of which a full account is fortunately preserved in the work of Frontinus de aquaeductibus. As is mentioned elsewhere, Augustus took this matter in hand after the death of Agrippa, who had bequeathed to him the company of slaves whom he had employed on the maintenance of the aqueducts built by him. Frontinus says that in a matter which up to this time ‘quasi potestate acta certo iure eguisset, senatus consulta facta sunt ac lex promulgata,’ and the texts of these are incorporated in his treatise. First of all Augustus confirmed by edict the register (commentam) compiled by Agrippa of those entitled to draw supplies of water. Then a series of senatus consulta passed in due form, defining the duties, privileges, insignia and salaries of the curatores ‘appointed by Caesar Augustus ex consensu senatus (or ex senatus auctoritate); they are, amongst other things, to have powers of iudicatio and cognitio in cases where private persons have obstructed the course of the aqueducts with buildings. A further decree of the Senate provides that ‘seeing that Augustus Caesar has undertaken to repair certain aqueducts at his own expense’ he shall have rights of way over private property and a right to purchase materials at a fair valuation. All the above decrees were passed by the Senate in the year following that of Agrippa’s death (11 b.c.), and two years later a law was proposed in due form by the consul T. Quinctius Crispinus and passed by the People voting ‘in foro pro rostris’ imposing fines on persons obstructing or damaging the aqueducts and giving various powers to the commissioners. Thus Augustus is shown to have been careful to use the traditional constitutional machinery when legislation was required; but the initiative, we cannot doubt, rested with him who surpassed all others in auctoritas and under his successors the oratio principis, pronounced by him­self or read by his quaestor in the Senate, became the text of law.

IV. THE ADMINISTRATION OF JUSTICE

It has been explained in a previous volume how the iudicium populi, in which the Roman people assembled in comitia tried and decided cases arising from the appeal (provocation) of a citizen against a sentence passed by a magistrate, gave place to the iudicium publicum, which took place in one of the Standing Courts (quaestiones perpetuae) set up by a series of statutes defining the several crimes of which the State took cognisance. These courts continued to function in the principate of Augustus; but, as we have seen, a general appellate jurisdiction was conferred upon the princeps, and from 23 b.c. onwards, when he ceased to hold the consulship annually, his proconsular imperium was retained even within the pomerium of the city, so that he could exercise in Rome itself the jurisdiction belonging to a provincial governor. Thus a new High Court came into being, and there is good evidence that Augustus took his duties as its president very seriously. Suetonius informs us that he often sat in court until nightfall, and, in order to illustrate his leniency, tells the anecdote that he put to a prisoner clearly guilty of parricide the question ‘ Surely you did not kill your father, did you?’ in order that he might avoid inflicting the well-known punishment of his crime, since only those who confessed were liable to it. Dio, on the other hand, speaks of his severity, and tells us how on one occasion Maecenas, seeing that he was about to pronounce a number of death-sentences, threw into his lap a tablet on which was written ‘Rise at last, executioner!’

It is not so easy to determine when or how a second High Court of Justice, that of the consuls, acting with the Senate as their consilium, was called into being. The narrative of Tacitus makes it clear that under Tiberius trials in the Senate, especially on the charge of maiestas, were frequent. In a.d. 15 Granius Marcellus, governor of Bithynia, was brought before the Senate on this charge, and Tiberius (as Tacitus says) announced that he would pronounce his sententia openly and on oath; whereupon Cn. Piso asked him whether he would vote first or last, adding ‘if first, I shall have a lead to follow, if last, I fear that I may unwittingly differ from your verdict’; and the Emperor agreed to a verdict of acquittal. In the following year Libo Drusus was charged with treasonable practices, and his accuser ‘approached the consuls and asked that the Senate should take cognisance of the case.’ In this case the accused committed suicide before the trial took place. In a.d. 19 Cn. Piso was tried on various charges, including the poisoning of Germanicus; we note that he expressed his willingness to stand his trial in the praetor’s court de veneficis, but that his prosecutor, Fulcinius Trio, laid his information before the consuls and that the Senate requested the princess to take up the case (cognitionem exciperet). Tiberius, however, declined to do so, and said that he would not place Germanicus above the laws, save in so far as his death should be investigated in the Senate and not before a jury-court; in this case also the accused committed suicide, and a vote of the Senate was taken, on the relatio of the Emperor, about the measures to be taken with regard to his honours and estate.

The impression which we gain from the accounts of these trials is that the new procedure was of recent growth, and not part of the system established on the ‘restoration of the Republic’ by Augustus. And indeed it would be hard to prove that the constitution of the Senate as a High Court of Justice dates back to so early a period. We have referred above to the case of Cornelius Gallus, where the fulminations of the Senate against the fallen favourite took the form of a demand that he should be condemned ‘in the courts’; in 22 b.c. we find Tiberius prosecuting the conspirators Varro and Caepio for treason apud iudices and obtaining their conviction, and in the same year M. Primus was tried before the praetor, Augustus being summoned as a witness, and several votes were cast for his acquittal. The procedure in the case of Iullus Antonius and the other lovers of Julia is nowhere described in detail: Velleius would lead us to think that the Lex Julia de adulteriis was put into force, but Dio hints at a charge of maiestas. Towards the close of the reign, however, cases are recorded by Tacitus in which the Senate appears to have acted in a judicial capacity. A certain Cassius Severus, who had published famosi libelli, was brought to trial ‘specie legis [maiestatis]’, and was exiled to Crete ‘iudicio iurati Senatus’. About the same time Volesus Messalla, the proconsul of Asia, who had been guilty of atrocious cruelty, was brought to trial and condemned, presumably under the lex repetundaruw, and in a.d. 22, when a similar case came before the Senate, Tiberius ordered to be read the indictment drawn up by Augustus and the senatus consultum which was passed inflicting penalties on Messalla. It has been supposed that a reference by the elder Seneca to Furius Saturninus ‘qui Volesum condemnavit’ implies that Saturninus procured his condemnation in a jury-court, and that the decree of the Senate followed the verdict; but the inference is uncertain.

It seems therefore that the Senate’s jurisdiction had become estab­lished before Augustus’ death; and we may trace one of the steps by which this was brought about in the fifth edict from Cyrene, which (as has already been mentioned) covers a senatus consultum passed in 4 b.c. on the recommendation of the Emperor’s consilium, laying down a new procedure to be adopted in cases of repetundae where the prosecutors claim only money damages and do not threaten the caput of the defendant governor. In the procedure the preliminary hearing of the case takes place in the Senate (which may be convened by any magistrate having the right to bring business before that body), and a commission consisting of four consulars, three praetorians and two other senators (which may be reduced to five if both parties exercise their right of challenging two) is set up, which is instructed to give a verdict within thirty days. In one sense this is no innovation, but a reversion to the procedure used before legislation de repetundis had taken place, for in effect it sets up a board of recuperatores to investigate the claim of the provincials, as had been done in 171 b.c.; but that this board should be made representative of the Senate shows the trend of constitutional development for which Augustus was responsible.

In what sense can it be said that there was precedent for this senatorial jurisdiction? Dio, it is true, in describing the working of the restored Republic (liii, 21, 6) says that the Senate ‘sat in judgment as a body as it had done before’; but his state­ment finds no support in historical or legal tradition. Mommsen, who at first explained the facts by the hypothesis that the ‘sovereign’ Senate of the dynasty succeeded to the rights of the comitia populi, wrote later of a ‘dependence’ of the new jurisdiction on the ‘martial law’ procedure set up in the last century of the Republic to deal with the threats to public security involved in the agitation of C. Gracchus and his followers and the conspiracy of Catiline, but admits that such emergency measures must not be confused with the proceedings of the ‘consular-senatorial’ court. Augustus, in fact, was well aware that the man who never makes a precedent never makes anything; but here, as always, he was true to his motto festina lente. In effect he restored to the consuls—acting with the advice of the Senate—the plenitude of the imperium such as he himself possessed. In the ‘programme’ speech of Nero we read: ‘consulum tribunalibus Italia et publicae provinciae adsisterent: illi patrum aditum praeberent’; and though these words of course cover much more than judicial functions, they indicate that the ‘consular-senatorial’ court was designed to try cases or hear appeals arising from its own sphere of administration. In fact, so long as the spirit of this programme was observed, we find that the Senate takes cognisance of offences committed by its own members, equites or provincials.

The Augustan system, in its completed form, thus provided for two High Courts of Justice, that of the princeps, and the Senate; and the result was to bring about far-reaching changes in procedure. The enquiries conducted by both courts are described by the term cognitions opposed to iudicium, and this made for elasticity, for the court was not bound by the formal restrictions of a suit promoted by a prosecuting party, nor (although it administered the laws by which the quaestiones were governed) was it precluded from dealing with several indictments in the same trial; and it could modify the penalty prescribed by statute. Both courts, moreover, were courts of final appeal, and this was of special importance as regards the Emperor’s court, for he delegated jurisdiction to his subordinates and representatives, from whom an appeal of courts lay to himself. This applied to the provincial governors who held their commissions from him as legati and to the praefecti appointed by him to take charge of departments of State. Of these the most important was the praefectus urbi. We have already referred to Augustus’ experiments in relation to this office, which was at first temporary. It is not quite clear when a permanent praefectus was appointed, but even if it was reserved for Tiberius to make their commander a permanent official, we cannot doubt that he was carrying out the expressed intentions of Augustus. The jurisdiction of the praefectus urbi arose from the fact that he was responsible for the maintenance of order in the City, but it was not long before he began to encroach on the functions of the civil courts, for as early as the reign of Nero we read of a case in which a prosecutor was exiled because he brought his case before the praetor in order to remove it from the jurisdiction of the prefect ‘with a semblance of legality’; and eventually he took cognisance, as Ulpian says, of all crimes committed ‘up to the hundredth milestone’ from Rome. It is possible that Augustus, with his scrupulous adherence to constitutional forms, regularized the position of his delegates by legislation. This was certainly the case with the praefectus Aegypti of whom it is said by Ulpian that he possesses an imperium ad similitudinem proconsulis, ‘which was conferred upon him by law under Augustus’; and the jurisdiction exercised by the praefectus annonae was no doubt based on the Lex Julia de annona mentioned in the forty-eighth title of the Digest, which Dio seems to date to 18 b.c.

A parallel development to that of the criminal courts may be seen in the field of civil jurisdiction. We have already mentioned the laws of 18 B.C. which regulated the procedure of the courts and finally abolished the antiquated procedure of the legis actiones, but the formulary system itself which was characteristic of the praetor’s court, and what it is convenient to call the ordo iudiciorum, gradually gave place to the more elastic cognition, which took place extra ordinem, and was exercised by the holder of an imperium or a delegate appointed by him. The emperor naturally used this procedure in his own court, whether he tried a case in the first instance or on appeal from a lower court; for appeal in the proper sense of the word, which had not existed under the Republic, now became a regular institution. Suetonius (Aug. 33) says that it was the practice of Augustus to delegate the hearing of appeals arising in Rome (urbanorum litigatorum) to the praetor urbanus and of those from the provinces to consulares. But the emperor and his delegates were not alone in using cognitio for the consuls—using the Senate as their consilium—were also competent to exercise jurisdiction in this form and to hear appeals; and we read in Tacitus that Nero ‘enhanced the prestige of the Fathers’ by enacting that those who appealed from the findings of indices in civil causes to the Senate should lodge the same caution-money as those who brought their cases before the emperor; up to that time, the historian tells us, no penalty was incurred by the unsuccessful appellant in the Senate’s court. In jurisdiction, therefore, Emperor and Senate exercised concurrent functions; and it was natural that no appeal should lie from one court to the other.

V. FOREIGN RELATIONS

The Senate was no longer the ‘assembly of kings’ which had inspired awe in the peoples and potentates of East and West in the great days of the Republic. We have already seen that the power of making peace and war, and of concluding treaties with foreign States, was part of the imperial prerogative; and that in the summary of the system of government with which his work ends, Strabo assigns the client-princes to the sphere of authority of the emperor; nor can it be doubted that this represents the facts of the case. In an interesting chapter of his life of Augustus (48) Suetonius tells us how the princeps pursued a policy of treating the protected rulers as ‘members and con­stituents of the Empire’ and encouraging friendships and matrimonial alliances between them, bringing up their children with his own and appointing advisers and guardians to such as needed such supervision. These statements can be abundantly illustrated from the history of the Eastern provinces, and the measures taken by Augustus are dealt with elsewhere. Here it will suffice to say that not only did he confirm in their principalities some of Antony’s vassals, such as Herod the Great in Judaea, Archelaus in Cappadocia, Amyntas in Galatia and Polemo in Pontus, but gave a further extension to the system by bringing under his protection the kingdom of Bosporus and the Odrysian principality in Thrace. At the same time it may be questioned whether he intended this system to be permanent. Galatia was annexed in 25 b.c. and Paphlagonia (hitherto ruled by the family of Deiotarus) was added thereto in 6 b.c.; and in a.d. 6 Archelaus, who had ruled Judaea on the death of Herod the Great, was deposed and his territory annexed. Nor can we doubt that in annexing Cappadocia and Commagene, Tiberius was carrying out a policy of absorption which he knew to be in accordance with the intentions of Augustus.

What part, if any, did the Senate play in the execution of this policy? There is no sign that it was in any way responsible for the decisions taken by Augustus, though he may have communicated them to it as a matter of courtesy. He speaks of the measures which he took to regulate the affairs of Armenia as his own acts, and it is evident that the Senate had no part in determining his policy. Nevertheless, Augustus contrived to preserve in some measure the fiction that the Senate was an organ of government in the field of foreign affairs. In 29 b.c. Antiochus of Commagene was charged with the murder of an envoy sent to Rome by his brother, Mithridates II; Augustus summoned him to Rome, brought him before the Senate and secured his condemnation and execution. This precedent was followed by Tiberius in two cases—those of Archelaus of Cappadocia in a.d. 17 and of Rhescuporis of Thrace in a.d. 19. It should be noted, however, that in his youth Tiberius had defended Archelaus against charges brought against him ‘in the Emperor’s court.’ Again, it may be assumed that it was by a vote of the Senate that the title of ‘friend of the Roman People’ was, according to Republican custom, conferred upon Polemo, King of Pontus, in 26 b.c., for the King returned the compliment by granting to Roman Senators the right to occupy seats of honour in the theatres of his realm.

That embassies from the Senatorial provinces were admitted to audience by the Senate was natural enough. In the procedure for claims de repetundis laid down in the senatus consultum of Cyrene the first step is for the envoys to lay their com­plaint before one of the magistrates who have the right of convening the Senate, and he is instructed to bring them before that body as soon as may be and nominate a senator to present their case. But foreign relations are not involved here. Dio relates that when a Parthian embassy came to him in 23 b.c. Augustus presented the envoys to the Senate, but that body referred the decision to him. Towards the close of his reign, when old age and infirmity restricted his powers of transacting business, it is said that Augustus ‘entrusted to three ex-consuls the embassies sent to Rome by peoples and kings; these sat separately and gave audience to the envoys and replied to their requests except in cases where it was necessary for the final decision to be taken by the Emperor and the Senate’. When taking decisions on foreign policy Augustus might—and doubtless as a rule did—summon a consilium of advisers. We read, for instance, that, on the death of Herod the Great, Augustus took the opinions of his ‘friends’ (i.e. the consilium amicorum) on the question of the succession in Judaea: Gaius Caesar, then sixteen years old, was amongst those who attended this meeting. But no real responsibility rested on the shoulders of the Senate in such matters.

VI. THE OLD AND THE NEW

We have seen that in the record of his acts which he bequeathed as his political testament Augustus laid stress on his restoration of Republican forms and his refusal to accept any office inconsistent with those ‘customs of the ancestors’ to which every Roman— whether sincerely or not—paid unquestioning homage. The document, however, must be admitted to be somewhat disingenuous in its selection and presentation of historical facts. We should be led by it to think that the constitutional settlement of 27 b.c. was the organic measure by which the new regime took shape, whereas in fact the statute of 23 b.c., which profoundly modified the position of the princeps, had far greater importance for the future of the system: and the statement that Augustus ‘added Egypt to the dominion of the Roman People’ may have a formal truth, but obscures the fact that neither the People nor the Senate (whose members were expressly forbidden to set foot therein) had any part or not in its government. In order, therefore, to form a judgment on the new constitution it has been necessary to examine in detail the actual working of the system in respect of the principal functions of government.

The conclusion to which we are led is this: that Augustus, who preferred evolution to revolution, made such use as he could of existing institutions and practices, even when he foresaw the gradual decline in their importance or even their eventual disappearance, and at the same time built up beside them, gradually and often tentatively, a new fabric, subject to his own control, as the framework of the Imperial State. For the successful achievement of this task it was necessary to enlist the willing co-operation of the old governing order and also to tap the resources of administrative ability which the class hitherto excluded from the highest offices could supply; and in these respects his triumph was conspicuous. The hierarchy of orders and the carrière ouverte aux talents were his guiding principles, and they were well adapted to the needs of the time; but they could only be applied by one who, like Augustus, had a keen eye for the qualities which distinguish great administrators and was able to secure their loyal service. In an interesting passage Velleius Paterculus illustrates the theme that ‘great undertakings need great helpers’ by reference to Agrippa and Statilius Taurus, who were not debarred by the novitas of their families from attaining the highest honours in the State—by the irony of fate the chapter concludes with a panegyric on his patron Sejanus! Seneca noted that Augustus ‘enrolled the whole regiment of his intimates from the enemy’s camp’; we have already seen that when he laid down the con­sulship in 23 b.c., both holders of that office were men who had fought on the side of Brutus and Cassius and that in the following year Augustus had nominated one of the proscribed for the consulship and another for the censorship; and it is well to remember that in 2 b.c. the crowning honour of the salutation as ‘Father of the Fatherland’ was conferred on the princeps on the proposal of the famous orator M. Valerius Messalla Corvinus, who had commanded the Republican right wing at Philippi and had captured Octavian’s camp. In the following years the consulship was held by representatives of the Cornelii Lentuli and the Calpurnii Pisones; and if we add that only a few years before two brothers, Africanus Fabius Maximus and Paullus Fabius Maximus, whose praenomina attest their pride in tracing descent from the great Scipio and Aemilius Paullus, were among the proconsuls (in Africa and Asia respectively) who were permitted to issue coins bearing their own portrait, we have said enough to show that the reconciliation of the great families of the Republic with the new regime was an accomplished fact.

At the same time the promotion of ‘new men’ to Senatorial rank and their elevation to the consulship continued throughout the reign, and the increase in the number of holders of the chief magistracy brought about by the shortening of the term of office and the appointment of suffecti, which became regular from a.d. 2 onwards, enabled Augustus to recognize the claims not only of the old aristocracy but also of the families which had gained access to the circle of nobiles during the Civil War period by services rendered to the triumvirs, and of the men of marked ability whom he desired to employ in the most responsible ad­ministrative or military positions. He needed consulares not merely to command his armies, but also to discharge other duties; we have seen that he allotted to them the hearing of appeals from the provinces; in a.d. 6 he set up a Commission of three Senators of this rank, chosen by lot, to effect economies in public expenditure; and in the same year and in the next two consulares were appointed to supervise the distribution of corn; and each of the Commissions or Curae, of which some account is given in a later chapter, had a consular for its president.

These Commissions may serve to illustrate Augustus’ adaptation of old methods to new purposes. Under the Republic it had been found necessary to supplement the annual magistracies by the appointment of Commissioners (curatores) to carry out special administrative tasks, such as the repair of roads; and Augustus retained the title, but set up permanent Boards as Departments of State. Suetonius says that ‘in order to increase the number of those taking part in the administration of the Republic, he devised new offices’, amongst which he enumerates the curae, and there are several inscriptions which show that such boards were composed of Senators with a consular as chairman. It is probable that then, as now, administrative ability was confined to a limited number of those who took part in public life, for we find that the same names recur in different lists; for example, the two inscriptions which give the names of the curatores locorum publicorum (with the consuls of a.d. 2 and a.d. 6 respectively as chairman) show that members of these boards also served on the Commission for regulating the Tiber; and this latter department was in a.d. 15 entrusted to Ateius Capito and L. Arruntius, the former of whom (as we know from Frontinus) had been curator aquarum since a.d. 13. Capito, we may add, was one of the leading jurists of the time, and the fore-runner of the ‘Sabinian’ School; and we are justified in regarding him as the chief legal adviser of the princeps. It has been pointed out that the new procedure set up for the trial of suits de repetundis in the edicts of Cyrene is clearly the work of a trained lawyer, and shows no trace of ‘politically orientated innovation’; and this is what we should expect from one who, like Capito, was at once an enthusiastic supporter of the Imperial regime and at the same time notoriously conservative as a lawyer. Augustus found in him and his like the type of public servant who can be trusted to reconcile order with progress.

Our finding, then, must be that Augustus was successful in adapting Republican institutions to the needs of the Imperial government and in creating a new governing class, into which the older aristocracy was absorbed. He must have recognized clearly that a Mediterranean empire could not be administered by the annual magistrates of an old-fashioned city-state; but the cursus honorum had a long and honourable tradition and had satisfied the ambition of the greatest of Romans in the past, and useful work could still be found for those who pursued it—under the control and supervision of the princeps. That the Senate had its part to play in his system is shown both by the assignment to it of new functions and by the attention which Augustus gave to matters of procedure and to the compulsion which he exerted upon the Senator to discharge his duties. In 17 B.C. he increased the existing fines for non-attendance, and though he reduced the quorum of four hundred necessary for the passing of a valid senatus consultum in 11 B.C., in 9 b.c. he dealt with the whole question of procedure by a comprehensive measure, again increasing the fine for absence, but fixing a variable quorum in accordance with the nature of the business to be transacted. But we should observe that Dio uses the word ‘command’ of the Emperor’s regulations, and says in the passage last cited that ‘he had the measures which he enacted inscribed on tablets and posted up in the Senate-house before bringing them forward, so that members of the Senate might, if they so desired, propose amendments’. It may be doubted whether any of them took advantage of the opportunity offered. And it must not be forgotten that from 29 b.c. onwards Augustus had reserved for himself the right of receiving requests from senators for leave of absence from Italy—which, if the object of their travel was a visit to Egypt, was refused on principle. He suspended the publication of the minutes of the Senate, which had been ordered by Caesar, and in the last year of his reign he modified the constitution of his Privy Council, which hence­forth consisted of the consuls, twenty senators and such other persons (including members of the Imperial family) as he might summon, and secured for its resolutions the force of senatus consulta. These facts are significant.

As for the Roman People, it may be formally true to say that he ‘restored the ancient rights of the assembly’ in 27 b.c., i.e. that the forms of election which had been suspended during the Triumvirate were once more brought into use. We have seen that legislation by the assemblies took place from time to time; and Suetonius records a device by which the members of municipal senates could cast their votes in the elections of the city magistrates and forward them in sealed ballot-boxes to Rome. It is a characteristic example of Augustus’ ingenuity— but it could have no practical significance when the princeps ‘commended’ to the electors the candidates whose election he desired.

Writing in the second century, Tacitus summed up the trend of Augustus’ government in the phrase ‘he gradually absorbed into himself the functions of Senate, magistrates and laws’: and this expresses the fact as seen from the standpoint of later times. Was Augustus himself conscious that this must inevitably ensue from the system which he adopted and especially from the establishment of a new administration which could not but overshadow the old? We shall never know: but Tiberius at least interpreted his injunctions in the sense that the Senate was to be consulted on all questions of policy, and followed them loyally in the earlier years of his reign. Hirschfeld believed that Augustus hoped that the welfare of the State might be secured by the harmonious co-operation of princeps and Senate, but his conclusion was that though we must give full recognition to his efforts ‘we cannot acquit him of the grave reproach of having willed the impossible and set up the impermanent’, through an under­estimate of the capacity of the twin pillars of his constitution. The history of his successors makes it hard to dissent from this judgment. Yet Tacitus, in the passage above quoted, recognizes that the provinces were ready to acquiesce in the new regime, since the ‘rule of Senate and People’ (Senatus populique imperium) had left Them at the mercy of ambitious and avaricious rulers, and denied them the protection of the laws, ‘perverted as they were by violence, intrigue and corruption.’ And the judgment of Strabo, who had seen the old order giving place to the new, was that ‘never had Rome and her allies enjoyed the blessings of peace and plenty in fuller measure than that which Augustus Caesar bestowed upon them from the time when he assumed absolute authority.’

CHAPTER VII

THE IMPERIAL ADMINISTRATION