lex de imperio vespasiani
DESCRIPTION
Lex de imperioTRANSCRIPT
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 1/23
Society for the Promotion of Roman Studies is collaborating with JSTOR to digitize, preserve and extend access to The
Journal of Roman Studies.
http://www.jstor.org
Lex de Imperio VespasianiAuthor(s): P. A. BruntSource: The Journal of Roman Studies, Vol. 67 (1977), pp. 95-116Published by: Society for the Promotion of Roman StudiesStable URL: http://www.jstor.org/stable/299922Accessed: 24-08-2015 21:04 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of contentin a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.For more information about JSTOR, please contact [email protected].
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 2/23
LEX
DE IMPERIO
VESPASIANI
By
P. A.
BRUNT
Few Roman
documentshave
been more
discussed thanthe great
bronzetablet
1
which
Cola
di
Rienzo
discovered and
erected in the
Church of St. John
Lateran, and
which
preserves he latter part
of a grantof
powers made to
Vespasian by senate
and people.2
Does it relateto his tribunician ower or to his imperium,r does itmerely onfer n him
supplementary ights? Is
the grant
ralatician n character, r
is it
specifically esigned
to
enlarge,or to
limit, the imperial
power of
Vespasian? Does it
explain the later
uristic
doctrines hatthe emperor
ould himself
make aw and was
not bound to obey
theexisting
laws? I
shall
argue that
thedocument
preservespartof the
senatus onsultum
assed wheni
Vespasian was
first ecognized t
Rome in December
69; thatwith one
possible
exception
in thefinal lause
it s tralatician,
robablygoingback to
A.D. 37 but
ncorporating
dditional
prerogativesonferred n
Claudius and
emperors etween
Claudius and
Vespasian (Part );
and that
t is indeed the
basis ofthe uristic
doctrines
mentioned Part
ii). A few
remarks
are appended on
itsrelevance o
thepoliticaltheory
by which mperial
autocracy ould
be
justified
Part
II).
I.
'CUNCTA
SOLITA
The words of
our
document
expresslydescribe it as
a
lex,
and
its final section
is
a
sanctio
n
the enacting
mperativesproper
to comitial
egislation. Yet all the
preceding
clauses
are in the
advisoryform
characteristic f
senatusconsulta,
mplying
he
senatorial
'
censuere
before ut
withthe
subjunctive. Since I947 we have
had
an exact
parallel
to
this in
the Tabula
Hebana, a comitial
enactmentof A.D. I9-20
(it
is
explicitly ermed
a
rogatio),
which s also
drafted, o far s
extant, n senatorial
ut' clauses.3 The
explanation
is simple.
Evidently the comitial
proceedings were
so perfunctory
hat it was thought
enough
to
embody the
recommendations f
the senate without
change in
a
lex,
which
presumably ontained a
suitable enacting
preamble,as well
as a sanctio uch as
that pre-
served
n
the
tablet. The
draftsmen f the senatorial
decree
did not
scruple
to refer o the
document
s
a
lex
notmerely n the
sanctiobut in the final lause of the decree tself
v. 30).
Historians n antiquity eldom cared much about legal forms,4nd in recording he
accession
of a new
emperorthey
naturallygnorethe routine of comitial
procedure,
and
mention
only his recognition
ythe senate. Of
course,
as
the
senate tself
was
often
not a
free
gent, his
too could be a
formality. till it symbolized
omething
f
mportance:
the
emperor ctually
needed the
co-operation f senators o
carry
n the
government,
hereas
the
comitia,which
had
long sinceceased to
represent
he whole citizen
body,
had no
effective
role at all:
its votes
could hardlybe said
to conveythe
endorsement
f
public
opinion.
However, the institutions f
the
Principate
had
developed
from those
of the late
Republic, and itwas
therefore roper for
the people to
participate
n
the creation
of
an
I
CIL VI, 930
=
ILS 244. Theories advanced
down to
1956
are
reviewed by G. Barbieri,
Diz. Ep.
s.v. ' lex
, 750 f., endorsing H. M. Last, CAH
xi
(I936),
404 f., and later discussions by B. Grenz-heuser, Kaiser und Senat in der Zeit von Nero bis
Nerva
(Diss. Muinster,964),
227
f., cf 70
f.;
see also
F. de Martino, St.d.
Cost. rom.
V2
(I974),
ch. xx
(particularly orPart
i).
The studies most
accessible
to the English
student, those of Last and M.
Hammond, The
Antonine Monarchy (I959) (see
index under lex), are in
my view
in
part
erroneous,
thoughthey
void
the absurdities
f
M. A.
Levi, Riv.
Fil.
LXVI (I938),
I
f. and Athen.XVI I938),
85
f., and
his followers. There is much
good sense in
B.
Parsi,
D6signation t
nvestiture e I'Empereur om.
I963)-
the relevant
criticisms of J. Bleicken, ZSS
LXXXI
(I964), 395 f. seem to
be mistaken-and
in
Grenz-
heuser. Obiterdictaare countless. L. Homo
briefly
suggested
n Les
instit.
olit.
rom. 1970),
26o
f.,
that
a
lex in
A.D.
37 was the
prototype, s I argue here.
The conclusions and most of the argumentspro-
pounded below
have
been
anticipated by
individual
scholars,
but no
full discussion known to me seems
entirely atisfying. have not burdened the
notes by
arraying minenit
ames who have taken this side or
that, and have probably failed
to express all my
obligations
to earlier
work,
of some of which I
am
doubtless unconscious; in general testimony andargument are to speak for themselves. Oswyn
Murray helped
me
by
criticizing
an
earlier draft.
Mommsen,
StR, is
cited from the latest
edition,
reprintedn
952.
2
Rienzo's paraphrase
of the tabula,which
shows,
e.g. in
his confusion f pomerium and' pomarium
,
that
he did not understand
t, has
suggested
to some
scholars (most recently M. Sordi,
St. Volterra
i,
303 f.) that
he had before him another
tablet,
comprising
he earlierpart of the
aw
and listing
ther
imperial rerogatives,
onvenientlyistedby Karlowa,
Rom. Rechtsgesch.
(i885),
496
f.; but see de
Martino, op.
cit.
(n.
I),
562
f.
3
EY
94
a
(vv.
14; I7;
46; 49); 94 b.
4
H.
Siber,
Das Fiihreramt
des
Augustus
I940),
I3
f.; 6I; 67,
collected evidence forhistorians uch
as Dio ignoringthe formal part played by comitia
and sometimes by senate
in
ratifyingdecisions
Augustus
took in acquiring
or conferring mperial
powers, egislating
nd
'
appointing' magistrates.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 3/23
96 P. A. BRUNT
emperor. According to Cicero
'
omnis potestates, mperia,
curationes b
universo populo
Romano proficisci onvenit' (de leg. agr. II, I7).
In the
Republic
it was
the people that
had elected the magistratesnvestedwith mperium
nd
that
had
conferredmperiumxtra
ordinem n persons who held no office,
ike
Pompey
in
67 and 66. The Gabinian and
Manilian laws of those years had
also allotted to
him
a
large province with
additional,
specificprerogatives. Similarly,
he
people
could
assign
such a
province
o a
magistrate
or
a termofyears. Caesar was consul n 59when underthe Vatinian awhe receivedCisalpine
Gaul and
Illyricum
or
five
years:
he would
automatically overn
hese
provinces, etaining
imperium,
s
proconsul,once
his
year
of office ad
expired,
for
the
durationof the
term,or
indeed till the arrival f a successor cf. Cic., Fam. I, 9, 25). In these particular nstances he
prior pproval of the senate had not been obtained,
s
constitutionalonvention emanded.
Augustus
and his successors could
count on the
compliance
of
the
senate and afford o be
more correct.
The tribunician
ower
was
granted
o
Augustus
for ife
per legem (RG io); we
can
assume senatorialconsent.
He
says
that on
five
ccasions
he
sought
and
secured from he
senate
a
colleague
in
this
power.5
As
for
his
imperium,
n
the
revolutionary
onditions of
43 B.C. he first btained
t
propraetore
rom he
senate
alone,
and
then
from
he
people under
the
Lex Titia
constituting
he triumvirate.6
rom
3
to
23
he was
continuously
onsul. No
grant of consular or proconsular mperiumo him in January
7
was then necessary or
conceivable. What
he must have received was the administration f
certain
provinces
and
the command of the
armies
stationed
n
them
for ten
years,
and it was
this
grant
hat
was
later renewedforfurther eriods of
five
or
ten
years;
like Caesar in
59,
he
initiallyhad the
imperium equired
in
virtue
of his
consular office,
ut
his
provincial command indirectly
and automatically nsured the continuance
of this
imperium,
henever
he ceased to be
consul. Dio records that the
grant
n
27
was made
by
senate and
people, i.e. by
a
lex
ratifying senatusconsultum,
nd he
observes
hat
Augustus
conducted
public
affairs
ith
he
more
eal,
since he had now received he
government
rom ll
the
Romans
LIII, 12, I;
2I,
x).
(Dio had good reason forregarding he lex
de
provinciis
f
27 as the legal
basis for
the new
monarchy,
ince it
placed Augustus
n command
of
the
greaterpart
of the
army.)
In
23,
when
he
ceased
to hold
the
consulship
each
year, Augustus'
'
proconsular' imperium,
o
use the term hat came into use in the Principate n. 7), was made ' maius as againstthat
of
proconsuls;
and he was
relieved
of
the
necessity
o
have it
renewed
when
he crossed the
pomerium.8
This
may have meant from he
first hat he was
entitled o
use
it
within
Rome
itself, right hat s certainly mplied by the authority rantedhim
in
i9 to have the rods
carriedbefore
him
everywhere;and
it
is
evidentthat
for
certain
purposes
he
exercised
his
imperium
n the
city,
s did
his successors.9
It
may
be that
the
senate alone
voted
him
such
5 RG 6,
2; similarly
he
laudatio Agrippae EJ 366
-
Zeitsch. ap. Epigr. 1I970),
21I7
f. and
VI
(1I970),
227
f.) distinguishes
the
SC under which
Agrippa
received tr. pot. from the
lex which defined his
imperium. Suet., Aug. 37
says
that
Augustus
co-
opted
his
colleagues
in tr.
pot.
So
Mommsen StR
I,
220; II,
ii6i =
DPR
1, 251; V,
476 must be right
n
holdingthattheemperorcould co-opt a colleague in
tr.pot.,
though Augustus sought the consent of
the
senate
cf.
n.
I2).
6RG
i.
Augustus'
possession of imperium rom
43
B.C.
is not veiled from
the reader but
almost
everywhere
atently mplicit.
7
Brunt,
RS
LI
(I961),
237; Zeitschr.
ap. Epigr.
XIII (1974), I65
f. Cicero refers to the
consular
imperiumf proconsuls Flacc.
85; Pis. 38;
55);
the
adjective
proconsulare
is first
ttested n Livy.
It
would
have been absurd for consul to be granted
he
imperium
e
already possessed.
8
Dio LIII, 32,
5, oftenmisconstrued s a grant
of
lifelong mperium.
9
Dio
LIV, 10,
5, which may
mean only that he was
now authorized o bear n
Rome and Italy the nsignia
of the imperium e could already exercise there; in
any event after
9q
it
is
inconceivable that he had the
insigniawithout the power.
For his command and
levying of soldiers see
Zeitschr. cited in
n.
7.
EJ
282 f. illustratehis right o give
commands in Italy.
For his
exercise of
civil
and criminal
urisdiction
n
the first nstance
and not only on appeal see
W.
Kunkel, ZSS
LXXXI
(I964), 360 f.,
reviewing
J.
Bleicken, Senatsgericht .
KCaisergericht
I962);
Kunkel may well
be correct n tracingthis urisdic-
tion
back to his right, ranted n 30
and distinct rom
tribunician power,
?KKTOS
51K&ceiv
Dio
LI, 19),
cf.
Dio
LII,
33,
I
(Tat
yE'aipa),
.e.
to assume jurisdic-
tion on the request
of either
party;
however, could
the right have been
fully effective, f its holder
ceased to have the executive
power of consular
imperium
which
in
30 Augustus
had
as consul?
Suet.,
Tib.
17,
suggests
that Tiberius'
imperium as
alreadyvalid in Rome on
Augustus' death, cf. Ann.
I,
7, 5. However,
possession
of
consular imperium id
not
mean that the
holder
could
perform
functions
proper o a
magisterial ffice, .g. conductof
elections,
cf. B. M. Levick,
Historia
XVI
(I967),
207
f.
and
A. E.
Astin, Latomus
XXVIII
(I 969), 863
f.
on
the
so-called
'
nominatio of
emperors;
thus
Claudius
had to
assume a
specific
consular
function,
n
order
to presideover
games (Dio
LX, 23,
4.
cf. StR Ii,
136
f.
=
DPR
III, 157).
So
perhapsn
A.D.
14
Tiberius
could
only convene the senate tribuniciae
potestatis
praescriptione (Ann. I,
7; Suet., Tib. 23).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 4/23
LEX DE IMPERIO VESPASIANI
97
extensions f the
normalpower ofa proconsul, hough
he silence of our sources s no proof
thatthe people
did not formally ndorsethem, nd it
was certainly he senatewhich granted
him some supplementaryrights,
for instance that of nominatingcuratores
quarum.10
However, he owed his tribunician
ower, his imperiumnd the grantof
his provincial and
military ommands
to the suffragesf the people as
well as of the senate.
When
Augustus designated coadjutors and future
successors, they too received
imperium, houghnot tribunicianpower, fromthe people. The laudatioAgrippae refers
expressly o a law
which vested Agrippawith mperium
n any provincehe visited cf. n. 5).
Tiberius musthave received similar
grantsboth beforehis exile and in A.D.
4, and we are
expressly old of
a consular aw ofA.D.
I2,
which evidently
nhanced his imperium, aking
it equal with that
of Augustus in all the provinces and
armies. 1 On Augustus' death he
already possessed in law as well as
in reality he meansto control he state.
There was no
immediate need
to pass a lex de imperio n his behalf.
Still, his position was not in
all
respectsequal to
that of Augustus. He had perhaps
obtained tribunician ower only for a
term,whereasAugustus had been
granted t for ife.12 It had perhaps never
been granted
him
by the people
(but cf. n.
I2).
He must surely
have lacked various supplementary
privilegesAugustus
had enjoyed, uch as the so-calledius
primaerelationisn. 42). He was
not PontifexMaximus (n.
25),
and
as yet lacked the
appellations of Augustus
and
pater
patriae, as well as the praenomen
mperatoris.13
Moreover,he enjoyed thepowers he already
had by Augustus'
favour ather han n his own right.
Tacitus plausibly ays thathe wished
to seem to have been called and chosenby the commonwealth
o the succession Ann. I, 7).
The
'
relatioconsulum (ibid.
I3,
4), which must ultimatelyhave been
approved by the
senate
after he
prolongeddebate
in
September
I4,
was surely ntended to give
him the
same
position
s
Augustus. By
extending is tribunician ower
for
ife
if
this had not been
done
previously),
y conferring n
him various supplementary ights
hat Augustus
alone
had
possessed,14
y callinghim Augustus n.
I3),
and by electing
him Pontifex
Maximus,
senate
and
people
would
recognize
him as the new Princeps.15
It
may
be said that there s no hint of any lex confirming
hatever
decrees the
senate
passed. Perhaps
this s not quite true: Tacitus, in describing
what
he
regards
s
Tiberius'
hypocritical
hesitation n assuminghis role as Princeps,
speaks
of him as
'
trifling
with
senate and plebs' (Ann.
I,
46). There is perhaps another argument. Augustushad never
accepted
his
provinces
or
more
than imited
periods
of
five
r ten
years.
Tiberius'
'
aequum
ius in omnibus provinciis exercitibusque
(n.
i
i) cannothave
been intended
to outlast
Augustus'
own
'
ius '. This was renewed
for
the last
time n A.D. 14.
But in
24
and
again
in
34
Tiberius asked forno renewal, hough he apse
ofthe decennium
was
on each occasion
thought ppropriate
or
celebrationsDio LVII, 24, I; LVIII, 24,
I, cf.
LIII,
i6,
3).
Yet
he
was
much too addicted to
constitutional
orrectness o have
dispensed
with
due
authoriza-
tion.
If he did not seek an
extension, he explanation
must be that
it
was not
required.
Hence,
he must
have
takenhis
provinces
n
14
without
imit
n time.
According
o
Suetonius
(Tib. 24),
when he at last
accepted
mperium
-the word
here must
signify
he
government
of
the
empire
6-he
did so with the
reservation,
pparently
recorded
verbatim:
'
dum
10
EJ 278 B = Front., Aqu.
104,
cf. Dio
LIV,
8, 4
(cura viarum). In
211
the senate had authorized a
proconsul to command in the city,having
par cum
consulibus imperium'
(Livy xxvi, 9, io). Cf. the
authoritygranted
to Pompey as proconsul in early
52;
he
actually
received
criminal
charges (Ascon.
34 C). Tiberius
at least was associatedwith Aug. in
taking he census of
A.D. 14
by a lex. (Suet.,
Tib. 21).
Some
sort of
authorization
to
perform censorial
duties may ie behind
Suet., Aug.
27
and Dio
LIV,
10,
which cannot be accepted as they stand
(cf. RG 6).
EJ
311, III shows that
Augustus
was empowered by
lex or S.C. to grantcitizenship nd
immunity.
I
Vell.
II, 121, I;
Suet., Tib.
21,
i,
cf. Zeitschr.
cited in
n.
7.
12
Mommsen
on
RG 6 noted that
the last renewal
in
A.D. 13
was perhaps for ife. As it was still validafterAugustus' death n. 9), it had perhapsthen been
confirmed y the comitia,
nd the text of RG 6 not
revised to take account
of this n.
5).
13
He never took the last two, but coins and
inscriptions
ILS
III p.
262)
show that Suet.,
Tib.
26,
2 was wrong
in statingthat he used
the title
of
Augustus
onlyto foreign
rinces.
14
Dio
LIX,
3,
i
quoted
in
n.
i8, which
is only
true
about Gaius
if we assume
that
Dio's
6v6pacra
includes
prerogatives
as well
as mere titles,
as
-rrpoallyopfat
robably
does
in
LIII,
i8,
4.
15
Contra B. M. Levick,
Tiberius
the
Politician
(1976), ch. v, it seems
tome incredible
that
a formal
'
relatio
should
have vaguely
recognized
Tiberius'
succession
to a
'
statio
paterna
, a Stoic
metaphor
(Brunt,
PBSR
XLIII
(I975),
2I).
16
Oxf.
Lat. Dict. s.v.,
I c,
cf. n. 23
and the similar
use
of
'imperator'
attestedby
Vitruv.
III
pr.,
4.
Contra
Grenzheuser, op.
cit.
(n.
I),
242,
this
wide
meaningcould have developed early,fewremember-ing the Republic (Ann.
I,
3, 7), cf. perhapsVell.
II,
I26,
5; 13I,
2.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 5/23
98
P. A. BRUNT
veniam d
id
tempus, uo
vobis
aequumpossit
videri
dare
vos aliquam
senectuti
meae
requiem'. In otherwords
he wouldnot commit imself
o the
burden
or ny specified
period, uthoped,
r
pretended
o
hope,
hat
he
might
etire
arly.
t seems
probable
hat
as a consequence
o imitwas fixed o his enure,
nd that hereforeo renewal
verbecame
necessary.
utthis n turn mplies hat notheraw was required
o confirmnd amend
he
law of 2 underwhich
e can
only
havereceived limitedenure.
Thus it maybe that s early s
A.D.
I4
senate nd people, or hefirstime, onferred
the
otality
f mperial owers
nd
prerogatives
in so far s Tiberiusdid not
refuse
hem)
on a new ruler; those which
he
already
ossessedweresimultaneously
onfirmed,nd
extendedn time.
I
shall
uggestater p. I09) that lause
VII of our documentoes back
to A.D.
14.
Whether
rnot his eso, t splain hat
nA.D.
37
Gaiusneeded comprehensive
grant f egal
powers, incehe was a privatus
t the ime fTiberius'death.
Indeed, f he
succeeding
mperors p tothe accession
f Titus,Nero alonehad any ort
f egalpower
appropriate
o an
emperor,
rior
o the death f his
predecessor.
Tiberiusdied
on i6 March 37. In the following ear
nd in 39 the
ArvalBrethren
commemorated8 March
s
theday
n whichGaius' a senatumpera[torppellatus
st] .17
In the ight f this explicit
ormulation e must ssume
that acrificesy the Brethren
'
ob imperium
in other eigns elebrate n
emperor's ecognitionythe
enate.We know
also fromheirActa thatGaius entered omeon z8 March; it was doubtless nthe next
day
that he senate ormallyoted
himhis powers n detail: 'ingressoque
rbem, tatim
consensu
enatus t rrumpentisn
curiam urbae .. iusarbitriumquemnium
erum
lli
permissum
st'
(Suet.,
Gaius 14, i). According o
Dio, after n early display
of
'
Republicanism',
n which e was careful ot o assume ny
ofthe mperialitles, e soon
became
most
monarchical', aking n one
day,presumablyt the session
f thesenate
Suetonius
escribes,
ll
thetitles,
r
rather
he prerogatives,hatAugustus
ad gradually
accumulated,
ome of which
Tiberius
had never
ccepted.'8
Withno precedent
o
guide
them utside
he
ongueurs
f
Tiberius'recognition,he senate
was slower han t
was
to
be on all later ccasions o
do
more han cclaim
henewemperor; endays
passedbefore
it
formally
ecreed
o Gaius
theplenitudef mperial owers,
ut at east t s certain hat
Gaius received hem
ll en
bloc,
whether
r
not
ny
imilar
rant
ad beenmade o
Tiberius.
This wasthenormal racticen Dio's time
LIII,
i8, 4, cf.n.
14),
and seems o be attested n
everyubsequent
ccasion. shall rgue nPart
i
that he o-called
iscretionarylause VI)
of
our documentn
particularoes back
o 37, but not o I4.
Claudius oowas a
privatus
n theeveofhis accession.
Proclaimed ythe praetorians
on the
day
of
Gaius' assassination,
4
JanuaryI, which
he apparentlyook as his
dies
imperiiSuet.,
Cl. ii), he
was acknowledgedy the senate
n the
25th.
Dio brieflyays
that
he
enate otedhim ll the
powers roper
o his supremacy;he deferred
cceptance
of he itle
pater atriae
(LX, I, 4; 3, 2).
On Claudius'death
I3 October, 4),
Nerowas at once aluted imperator
, somewhat
after
oon,
by the praetorians; acitus dryly
dds:
'
sententiam ilitum
ecutapatrum
consulta
(Ann.xii, 69).
From uetoniusNero ) we earn
hat twas lreadyvening hen
the
ession f he enate nded t which
immense onours'were oaded
on him, nd that
pleading isyouth, erefusedhe itle f pater atriae (which e took ater).'9Obviously
he obtained t
least he
rights
hat
Claudiushad acquired
n 4I or thereafter.he
Arval
17
See edition by A. Pasoli, Studi
e Ricerche
VII
(I 950); the relevant
extracts
are conveniently
printed by E. M. Smallwood,
Documents llustrating
the
Principatesof Gaius, Claudius
and Nero
(I967),
ch.
ii
and Documents
llustrating he Principates of
Nerva, Trajan
and
Hadrian (I966), ch. ii,
and by
M.
McCrum
and
A. G.
Woodhead,
Select
Documents
of the Principates of the
Flavian Emperors
I96I),
ch.
In.
18
Dio LIX,
3,
I:
8rloKpa-ruKbrTaorrosE &p ETvai
r&
rp6-ra
56gaS,
&ca,-rE
T
TCp
8pcp
i
rf yE
povA~j
p&yat
rt
piT-re
r(v
6vop&-rcv T-&V
&pXnK<V1Tpocreiaea
ri, povapXnKbrTaros
ybvE-ro,
2)
c7a-re
ir&vTa 6aa
6
AOyOvarTOs
iv
roao*Tcp
-rfiS
&pXis
Xp6vcp
p6Ats
Kai Kmc'
?V
&KaaTov
ypqpitaevra
ot
iigaro,
&v
gvia
6
Tipiplos
o*5'
6Acs wpOa1KArO,
iV
vtQ
hpkpc
?apETv.
In fact
Gaius no more than
Tiberius assumed the
praenomen
mperatoris,
nd as Dio himself
notes
(ibid. 3,
2),
it was
a
little ater that he
accepted
the
titleof
pater patriae, not
attested n coins or inscrip-
tions before
9.
It
seems then that t was not so much
titles as
prerogatives, ossessed
by Augustus
but in
some cases
rejected by
Tiberius, that
Gaius
accepted
on
28 March. Contra
Bleicken, op.
cit.
(n.
i), the
significance f Suetonius'
'
ius
arbitriumque
mnium
rerum is not
exhaustedby reference o the exclusion
of
Tiberius Gemellus
from
ny
share
in
power.
19
This title ppears on occasional coin issues from
55/6 RIC i, 146
f.), but is only
commonlyused
after
64/5 (I 56
f.)
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 7/23
100
P. A. BRUNT
first.)
Consulship and priesthoodswere no
essentialparts of the Princeps'position, nd the
fact
that the comitiametseparately o confer hem
does not show that imperium in its
wide
sense was not granted long with tribunician
ower.25
The news of Otho's
suicide on
I7
April Jos.,
By
IV,
548) reached
Rome
on
i9 April,
when
the senate voted
Vitellius mperium.That date is attestedby the Arval
Acts, though
the Brethrendeferred he
appropriate acrifice ill
i
May; at this time
only one of their
number L. Maecius Postumus) was at Rome;
26
probably young and inexperiencedman
(he
was not suffect onsul until 98), he may well
have lacked the promptdecisivenessto
sacrifice s required.
Tacitus says that
'
in senatu cuncta longis aliorum
principatibus
composita statim
decernuntur' (Hist.
II,
55).27
Again we know from the Arval Acts of
comitia ribuniciaepotestatis,eld without egard o
the trinum undinums early s 30 April;
only part
of
the record of
their acrifices or May and June
s
extant, nd
nothing
for
the
restof the year, nd this s
probablywhy we arenot nformed f other
comitia orVitellius
like thosefor Otho.
Nor do
they provide
any particulars
f
the accession
of
Vespasian.
Unfortunately or
us, fromhis reignthe
Brethren eem to have givenup the practice
dopted
in
Nero's
time
of
celebrating nniversaries f the grant of
imperium r tribunician
power.
In
8i they
sacrificed n Domitian's
accession 'ob imperium on I4 September the
day after
Titus'
death) and ' ob comitia tribunicia' on 30 September on one view of the trinum undinum
the
proper nterval ould ust have been kept), but
the completerecordof
their
proceedings
for
September 87 and 9I
shows that anniversarieswere not
commemorated. Similarly
Trajan's dies mperii,
8
January 8 (the record n that year s lost), was
not
celebrated
n
January f the years forwhich t survives ioi,
I05 and I
I7).
Vespasianwas recognized t
Rome in
late December 69, and we might xpect his
comitia ribuniciae otestatis to have
followed
n
January
r
(at latest)February 0; in the
ight
of the
subsequentpractice
of the
Arvals,
the
fact
that no
anniversary f
the
latter vent was celebrated
early
n
78,
the
only
year of his
reign when we have theirActa forthe
relevantmonths,has no significance.
Vitellius was killed probably on
zo
or
2I December.28 The magistrates nd senators
had
scattered n terror, nd the senate could not be
convened that veryday (Tacitus, Hist.
III, 86), nor perhaps, n
view of the licence allowed to the Flavian troops
xv,
),
for
some
daysthereafter; but it was certainly efore January 0 (IV, 39) that t met and ' cuncta
principibus olitaVespasiano decernit
(Iv,
3, 3).
On the same day itvoted that Vespasian
and
Titus should be consuls for
70
and that
Domitian should be
praetor with consular
imperium
3,
4), and it
decided to send ambassadors to congratulate he
new emperor; in
this connectionTacitus
refers o its decrees de imperio , where
imperium may properly
be
taken n its
widest ense nn. i6 and 23),
denoting
he
totality f mperialpowers 6, 3).29
As
we have
seen, Tacitus had
recorded on Otho's accession
the
vote of
the
tribunician
power,the
nomen
Augusti nd all the honours of
emperors, nd on thatofVitellius he grant
25
Contra
Grenzheuser, p. cit.(n. I),
240.
Strictly,
Otho acquired imperiums consul, but since
23 B.C.
the
consulate had
come to be
seen
as
purely orna-
mental for
the
emperor.
Otho
had
to
be
chosen
pontifexbefore
he could
become
pontifex
maximus;
the
electing body
(I7
of
the
35
tribes) and the
presiding
officera
pontifex)were not
the same as
at
the
other
elections.
Augustus' comitia
pontificatus
maximi
RG
io) were
as
late
as
I2
B.C.,
Tiberius' on
I5
March IS
(EJ,
p.
47).
26
This
tends to
confirm ac., Hist. ,
88.
Maecius:
RE XIV,
237.
27
No
doubt
the senate voted him the
names Caesar
and Augustus which
both Galba
and
Otho had
had,
but
he
declined the first
ill almost the end
of
his
reign, nd
postponed
acceptance of
the second
(Hist.
I, 62; II,
62; 90; III,
58); hence
neither ppears in
the Arval Acta; 'Augustus' figures n some of hiscoin issues. Neitherhe nor Otho (unlike Galba) is
known to
have been
'
pater
patriae ,
a title
normally
offered
ut deferred. Unlike
both Galba and
Otho,
Vitellius did not
assume the praenomen
mperatoris
(ILS
243
need not reflecthis wishes), which Nero
had been the first
mperor ince
Augustus
to
bear,
nd
only from 6; again
we
must
surely
uppose that the
senatehad
voted t to him.
His novel titleof
'consul
perpetuus
(ILS
242
f.)
illustrated,
according to
Suet., Vit.
i
i,
his
disregardfor us.
28
M.
Hammond, Mem. Amer. Acad. Rome xv
(1938),
33.
29
Dio-Xiph.
LxVI,
i,
i
says
that
Vespasian
was
recognized
s imperator y
the senate,that
Titus and
Domitian were
called Caesar and
thatVespasian
and
Titus
were
designated consuls. The soldiers
had
already given
Domitian the
name of Caesar
(Hist.
III,
86);
Dio
here
preserves decision
of
the
senate
which Tacitus
omits. Equally
Tacitus does not
expressly ay that
Vespasian received the nominaof
clauses VII and VIII-' imperator Caesar Ves-pasianus Augustus', which he had in
fact already
usurped (p. io6).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 8/23
LEX DE IMPERIO VESPASIANI
IOI
of cuncta ongis aliorum principatibus
omposita . He surelymeansto recordthe vote of
more
or
less identical titles and powerson each occasion, and his new
formula-' cuncta
solita -is chosen merelyfor iterary ariety. It indicates,
however,
hat
n Tacitus' view,
each of the prerogatives onferred
n Vespasian conformed o precedent. Like Vitellius,
he received the powers that had
been accumulated n successive reigns, ust as Gaius too
had received on one day all those
which Augustus had gradually ecured; the formula hat
Tacitus employs for the grant to Vitellius mplies that he was also invested with rights
whichemperors aterthan Augustushad been the first o obtain. We
may compare Dio's
statement
hat
n
his
own
day the
appellationsof Caesar, Augustus andpaterpatriae, which
had been voted separately o earlier
mperors, ad come to be voted enbloc, nd his descrip-
tionof thegrantmade to Gaius in 37.
Given
the
circumstances
f
December 69 we
can believe Tacitus' statement hatthe
powers
accorded to
Vespasian
were all 'solita', though perhaps we should not deny the
possibility hat
minor
djustmentswere
made
of
a kind
thathe could
regard s
of
no political
significance p. io6). The alternatives re to suppose that the senate
sought either to
restrict r to enlargeVespasian's
powers. The first f these objectiveswould no doubt have
been congenial to Helvidius Priscus, who took
an
important art
in other
debates of
late
December 69.30 But the senate did not dare to assume the independent
olethat Helvidius
advocated. Moreovernot even Helvidius is recorded as having urgedany imitation f the
imperial authority. Ever since January69 the senate had
been
at
the mercy of military
force,31 nd the conduct
of
the Flavian soldiery
fter
hey
entered
he
city could
not
have
encouraged
t
to
try
o restrictVespasian's legal rights;
nor is
it
conceivable that Tacitus
would
have
failed to
notice such
an
attempt.
Perhaps
t is somewhat
more
plausible
to
imagine
hat the
senate was
disposed
to
heap
new powers and
honours
on
Vespasian. His pronunciamento
was
surely
ess
objectionable
thanthatofVitellius: he had risen
gainst n usurper,Vitellius gainst legitimate mperor.
According o Tacitus
the
senateand politically
onscious
equites
had detested
and
despised
both Otho and Vitellius; thoughOtho inspired greaterfear,
Vitellius
too
appeared
un-
worthy f
the
Principate;
it had onlyseemed certain deteriorem
ore
qui
vicisset
.32
It
is true that Vitellius' brief ule had not been oppressive,
nd that
he
had
manifested ome-
thingof the civilitas hat the higherorders valued in an emperor.33But therehad been a
more
or
less
prolonged honeymoonperiod
in the
reigns
of
Tiberius,
Gaius,
Claudius and
Nero,
all of
whom
had,
from the senatorial
standpoint,degenerated
nto
tyrants.34
he
power
of Vitellius'
freedman,
Asiaticus,
nd
his admiration
orNero
augured ll;
so did
his
personal extravagance;
to
fill
mpty offers, apacity
ould be
predicted.35
He had
proved
unable to controlhis troopsin Italy and Rome.36
The readiness of
his
former
artisans,
Caecina and
Lucilius
Bassus,
to betray
his
cause suggests
hat
they
sensed
that
he
had
too
little upport
o survive.
Vespasian's
own reputation
was indeed
dubious,
and
in
retrospect
Tacitus could
say
thathe was
the first
mperor
o
change
for he better
fter ccession.
Yet
it cannot have been in doubt that
he had already hown more
of the
qualitiesrequired
n a
30
On
Helvidius see Brunt, PBSR
XLIII (I975),
esp.
28
f. The
debate recorded n Hist. IV, 7 f. but
perhaps not
those of
9 f.,
took
place
at the same
session
as
the decree
de
imperio 6, 3).
It is perfectly
clear from , 3 that Helvidius
formally nd no
doubt,
given
hischaracter, incerely pproved
of
Vespasian's
recognition.
31
Tacitus delineates
the
mpotence
nd servility f
the senate
with some
acerbity,
Hist.
I,
19;
35;
45;
47;
II,
7I; 87;
IOI;
III,
37;
55.
32
Hist.
I,
50;
II, 31. On Otho see
also I,
7I;
8I.
It was, none
the less, of great value to Otho
that n
the provinces
he was believed
to
have
the
authority
f
the senate
on his side
(x,
76; 84); as late as z38
the
senate
commanded
great
nfluence.
33
Hist.
II, gI; 92, 2
f.; Dio
LXV,
7. Cf. also n.
27.
His coins celebrate
LIBERTAS and CLEMENTIA
(RIC
I, p. 224
f.);
for
clemency
cf. Hist. I,
75;
II,
6o;
62;
III,
59; 75;
Dio LXv,
6;
Otho
too
had
shown t
I,
45;
71
;
88) and
for he same
reasons:
not
only
did it
make
a
good
impression,
but each
could
reckon hat
hisrival
had few,
f ny,devoted
partisans
whom
t might
be prudent
o eliminate
cf. Hist.
I,
77;
iI,
6o).
Suet., Vit.
I3
f. presents
a very
hostile
picture,
perhaps
from
biassed
Flavian
sources,
cf.
also
Hist.
i,
63
f.;
III, 38
f.
34
Hence
Otho's
moderation
also inspired
no
credence,
ist.
, 7I.
35
Hist.
ii,
62;
94 f.
Asiaticus:
II,
57;
95.
Cf.
Suet.,
Vit. Io
f.;
Dio
LXV,
2-5;
Hist.
I,
7I;
95;
Suet.,
Vit.
I I, cf. 4;
Dio
LXV, 7 (cf. Hist.
I,
78
for
Otho).
Tacitus allows
him some
merit
only
for
simplicitas'
nd
liberalitas
, III,
86.
Hist.
II,
56;
6z; 68;
93 f. (Their
demoraliza-
tion is evidentlyexaggeratedby Tacitus, following
pro-Flavian
writers, f.Jos.,BJ
IV,
585
f.; so much
is proved
by the
courage
they
displayed,
though
leaderless,
n the second
civil
war.)
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 9/23
I02
P. A. BRUNT
ruler hanhisrival.37The early efectiono his cause
of cities n North taly s perhaps
clue to the entimentsf hebetter lasses,whoof
course ontrolled unicipalffairs.38
t
is somewhat ess significanthat after he battle
of Cremona ll and sundry penlyor
secretlyspoused he ide ofthevictor.39 utthisbehaviour eed not
be ascribed oself-
interest iewed n thenarrowestense. Only he elimination
fVitellius ouldnow
restore
peace and order. In
December
69
the senatewas
'
laetus et spei certus
,
because
the
triumph f Vespasianwas ikely o end civilwar IV,3,
3).
Tacitus dds
that ts
eal in his favourwas augmentedy a letter e wrote
tamquam
manente ello
criptae
, in
which,
one he ess,he spoke ut princeps'. This lettermust
ofcoursehave been writteny Vespasianwhenhe
was quiteuncertain fthe ssue of the
war,
and
was presumably
orwarded y Mucianus
withhis own despatch o the senate
(ibid.
4,
I). Both documents
must have been readto the senate, f not before
t voted
'
cuncta olita, at anyratebefore draftingommittee
ould throw ts decrees ntothe
precise egalformulaereservedn our nscription.40
s it thenpossible hatVespasian, r
Mucianuson his
behalf,
skedforpowers xceedinghosewhich ny previous
uler
had
possessed,
r
that ven n the bsence f uch request
he enate oted uchpowers
f ts
ownvolition? he answers surely No'. Vespasian's
wn etter ontained,ccording o
Tacitus, civiliade se et rei publicaeegregia';
givenTacitus'
own bias, thisseems
to
excludehepossibilityhatt ought n enlargementfhis uthority. y ontrast, ucianus'
despatch ave
ffence,
ut pparentlyecause texalted
isown erviceso Vespasian;there
is not a hint
hathe
demandednovel powersfor he new ruler. Tacitus
castigates
he
'
adulatio'
that hesenatedisplayed o Mucianus
nd otherFlavian officers,nd praises
Helvidius or
onfiningimselfo sincere raise f
Vespasian iv, 4), butthere re none
of
the
ronical
omments
e should xpect rom im fthe
senate,
whosepowerlessnessnd
servility
n
69 he is fond
f
revealing,
ad respondedo Vespasian's tudied
moderation
y
loadinghimwith nprecedentedonours nd prerogatives.
We
may
hen
onclude
hat n December 9 the senatedid no more r
ess than
vote
Vespasian t one stroke
ll theusual powers f a Princeps,ust as it voted uch
powers o
Gaius, Nero,
Otho and
Vitellius,
nd,
as we may nfer rom acitus'
statement
bout
the
recognitionfVitellius,
hat hese owers ncluded otonly hosewhich ad
beenbestowed
at one time ranother n Augustus ut otherswhichhad first een grantedo oneofhis
successors. he question
hen riseswhether e can dentifyhe enatorial ecree
mbodied
in our tabulawith hedecreeof December
69,
or whethert representsome atergrant
enlarging espasian's ights.At thispoint t will
be convenientor eferenceo transcribe
the
survivinglauses. It is not mypurpose o comment
xhaustivelyn details, ut some
remarks n
the particular
rerogatives ill be found n the notes,where
hey re not
discussed
n
the
text.
37
Hist.
I,
50.
Though
contemptuous
of time-
servers and
traitors
whom
pro-Flavian
writershad
praised
(ii,
Ioi;
iii, 86, 2),
critical
of
Vespasian's
chiefagents esp.
It,
84,
2;
95, 3) and not naturallybiassed to the Flavian house afterhis
experience
of
Domitian,
Tacitus
admitted
that
Vespasian's
victory
benefited
the
state
and
that
some
of
his partisans
had had the
public
welfare
at
heart,
see
II,
5,
I;
7, 2;
cf.
Ann.
xxi,
55.
His
alleged bad conduct
as
proconsul of
Africa
It,
97,
2,
contraSuet.,
Vesp. 4)
hardly
ounted at
Rome;
it was
perhaps
remembered
against
him that he
had been
a
prot6gd f
Narcissus,
but he
had been
inconspicuous between
Agrippina's
gainingpower
ibid.) and his
appointment n
Judaea,
and such
reports
s
reached Rome
thence
mayhave
at
least
confirmedhis
merits
as
general. Otho
and
Vitellius
had both been
favourites
f
Nero,
and both
had been
disloyalto
Galba.
38
Hist.
III,
6
and
8.
39
III,
57 and 59;
there
was indeed
no
unanimity
among Italian towns. For the ' primorescivitatis
see
Ill, 64.
The consular
legates
in the
Balkans at
least
evinced little
zeal
in
the
Flavian
cause
(x, 96;
IIl,
4; IO
f.;
50),
and
provincial
governors n
the
west did
notdeclarefor
t until
theyhad heardof
the
victory
t Cremona II,
97;
IlU,35; 44; IV, 31);
still,
the honours
that
Vespasian was
to
bestow
on
Tampius Flavianus in Pannonia,Aponius Saturninus
in
Moesia,
Pompeius Silvanus in
Dalmatia,
C.
Calpetanus
Rantius Quirinalis
Valerius
Festus
in
Africa
and Vettius Bolanus in Britain
shows that
he
did not regard any
of them as
his opponents;
for
their
careers
after 69 see
W.
Eck,
Senatoren
von
Vespasian
bisHadrian
I970);
A.
B. Bosworth,
Athen.
LI
(I973),
49
f.
Hordeonius
Flaccus
and his legionary
legates
on theRhine
were suspectedfrom hefirst
f
Flavian sympathies
(Hist.
iv, 13;
i9
etc.).
The
behaviourof
senators n
posts outside
Italy is some
guide
to the sentiments
f the
order,hesitantly
nd
unenthusiastically
referring
espasian.
40On
the
drafting
of senatus consulta
after
the
senate
had been dissolved
see
Monamsen,
StR
III,
104
f.
=
DPR
VII,
202
f.
The
interval
is not
recorded;
the statement
by
O'Brien Moore
(RE
Suppl. vi, 8oi) that t was usual in the Republic to
draft n SC during
or immediately
fter
he session
is
probable,
but not
warranted
by the
texts
cited
(Plut.,
Mar.
4; Cic., Cat.
iiI,
I3).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 10/23
LEX DE IMPERIO VESPASIANI
103
I
Lbellum acem?]
oedusve um
quibus
volet
acere
iceat,
ta
uti
icuit
ivo
Aug.,
Ti.
Julio
aesari
Aug.,Tiberioque
ClaudioCaesari
Aug.
Germanico;
1
II utique i senatum
abere,
elationem
acere,
emittere,enatus
onsulta
er
relationem
isces-
sionemque
acere iceat,ta uti icuit
divoAug.
et
cet.);
2
III utique, um
ex
voluntate
uctoritate
ussu
mandatuveius
praeseniteve
o
senatus
habebitur,
omniumerumus
perinde
abeatur ervetur,
c
si e lege enatus dictus
ssethabereturque;
3
IV utique quos magistratumotestatemmperium urationemveuius rei petentes enatui
populoque
Romano
ommendaverit,uibusve uffragationem
uam
dederit
romiserit,orum
omitis
quibusque xtra rdinem
atiohabeatur;
4
V
utique
i
fines
omerii roferreromovere,
um xrepublica ensebit
sse, iceat,
tauti icuit i.
ClaudioCaesariAug.Germanicocf.n. 47).
VI utiquequaecunque
x
usu
reipublicaemaiestate
ivinarum
um<an>arum,
ublicarum
rivata-
rumque erum
sse eCnsebit,i
agere
acere
us
potestasque
it, ta
uti divoAug.
et
cet.)fuit:
VII utiquequibus
legibus
plebeive citis criptum
uit,
ne
divus Aug. (et
cet.)
tenerentur,
is
legibus lebisque citis
mp.
Caesar
Vespasianus
olutus it, uaeque
ex
quaque
egerogatione
ivum
Aug. (et cet.) facere
oportuit,
a
omnia imp.
Caesari
Vespasiano
Aug.
facere
icCat;
VIII
utique
quae
ante hanc
legem
rogatam
cta
gesta
decreta
mperata b imperatoreaesare
VespasianoAug. iussu mandatuveius
a
quoque sunt, a perinde
ustarataq(ue) int
c si
populi
plebisveussu actaessent.
No precedents re cited in threeof the clauses. In VIII it would indeed have been
hard
to
draft form f words
to statethat Vespasian's
actsprior o the
date of the lex
were
to be as
valid
as
the
acts ofAugustus etc.
priorto such leges
as had formallyonferred
ike
powers upon
them; and,
indeed, seeing that
Augustus had possessed
a series of
legal
powers
from
3
B.C.onwards, t is doubtful
whether here
was ever anymoment
when such
a
provision would
have been requisite
n his case. But
clauses III
and IV are another
matter.As no precedent
s cited, does
it not follow hat the rights
hey convey
were
novel
forVespasian?
This inference
s not warranted.
The documentmakes
no mention f Gaius,
although
there can be no doubt that
he had enjoyedthe
plenitudeof Augustus'
powers. It must
follow
from his
that his memory, hough
neverformally ondemned,
had been
allowed
to
lapse into oblivion.45 But
Nero,
and
his
short-lived
uccessors,had
been formally on-
demned, and it was thereforeltogether nappropriate o mention nyof them, t least until
his
memoryhad been restored.46
Hence, no precedent
ould be cited
n clauses III
and IV
41
Strictly
he
people alone
could make treaties n
the
Republic, but from the
second century
.C.
the
senate arrogated
the power;
magistrates and
promagistrates
ontinued to
require confirmation or
such pacts
as
theymade in
the
field
see
Mommsen,
StR
iii,
1158
f.
DPR
VII,
378
f.).
The
lex
Iulia
de
repetundis
f
59
B.C.
(Cic., Pis. 50) and the
lex Iulia
mnajestatis,nacted
by
Caesar
(J. E. Allison and
J.
D.
Cloud,
Latomus xxI
(i962),
711
f.), repeating
a
provisionof the
Sullan law (Cic.,
loc.
cit.), forbade
them to make wars without sanction by senate andpeople ('iniussu principis' in Dig.
XLVIII, 4, 3
represents later
development); hence
the charge
againstPrimus Dio LIV, 3,
2). But StraboxVII, 3, 25
says
that
Augustus
rroAipou
Kal
dipivnS
Kxa-rq
K*pt0S
81'a
piov,
nd Dio
LIII,
17,
5
ascribes these
rights o all
emperors. Our document ffers
onfirma-
tion;
'
foedusve
implies
a
supplement
of
the kind
printed
above. It is true that
ts historic tatements
could be ill-informed, ut
this
s at
least unlikely or
reign o
recent s Claudius '.
Hence, Dio's statement
(LX, 23,
6) that
n
44
the
senate confirmed he
pacts
made with British
peoples by
Claudius
and
his
legati
(the
latterwould
perhaps
not
be
covered n
any grant
to the
emperorhimself) hould not be
taken
to
mean
that
they required
such
confirmation. Just
as
Claudius
chose to obtain the
senate's agreement to
his adlection of Gauls into the senate, though he
was entitled o admit
them
on
his own
authority,
o
he
may
have
welcomed
endorsement f
arrangements
in Britain
which did not legally
require
their
onsent.
There is other
evidence
for emperors consulting
he
senate
on wars
and treaties:
they wanted
public
approval.
See
Mommsen,
StR
II,
954
f.
=
DPR
v,
24I
f.
42
Cf.
Dio
LIII,
32,
5;
LIV,
3, 3
for extensions
of
Augustus'
tribunician
right
to do business
with
the
senate; see
StR
ii, 896 f.
==
DPR v,
I75
f.
The
precise
technical
meaning
of the
terms
per rela-
tionem
discessionemque
facere'
is controversial,
ut
not relevant o this
article,
ee StR
III,
983.
=
DPR
VII,
172
f.;
Karlowa, R6m.Rechtsgesch.
,
498;
B. L.
Cantarelli,
Bull. Comm.Arch.
II
(I89o),
I96
f.
43
StR III
9I9 f.
-DPR
vii
98 f.
assembles
the
evidence for
restrictions
n
the senate
meeting.
44
See
Levick and Astin,
cited in
n.
9.;
Grenz-
heuser
n.
I),
73
f.
45
Claudius
vetoed
abolitio memoriae,
but
Gaius'
name,like
thatof Tiberius,
was
omitted
from he
ist
of emperors
named
in 'oaths
and prayers'
(Dio
LX,
4,
5
f,
cf.
IX, 9, i); his
acta were
gradually
rescinded
(ibid.
4,
i correcting
Suet., Cl.
14). His
name,
however,
emained
n the official
ist
of
emperors
who
made grantsof
Roman
citizenship,
as did
those of
later
rulerswhose
memory
was
condemned,
Otho
and
Vitellius alone
excepted;
see
JRS
LXIII
(1973),
86
for
the
Tabula Banasitana.
It may be
inferred
hatsuch
grants
remained
valid,
unlike those
recorded
by
Tacitus, Hist.
I,
78,
I; III,
55,
2.
4
Suet.,
Nero
49;
Tac.,
Hist. IV,
40;
cf.
last note
for Otho and
Vitellius.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 11/23
104 P. A. BRUNT
on the assumption hat no predecessorof Vespasian earlier han Nero possessed the
rights
thatthey conveyed. None could have been invokedfor clause V, if Claudius had also
been
consignedto oblivion. Thus we have at least an alternative xplanationforthe lack of any
precedent n these clauses. But can this alternative xplanationbe confirmed?
Unfortunately,
here s
no actual recordofany specific rant fthe rights oncerned o
any emperor fter 4. For that matter he inscription lone tells us that Claudius acquired
a right o extend the pomeriumwhich, by implication,Augustus and Tiberius had lacked.
From Tacitus and otherwriterswe know only that he did in fact extend t, auctis populi
Romani finibus', as one of his inscriptions oasts (ILS
2I3).47
They were not interested
in
the grant
of
formal uthority. Our inscription lso implies that no emperor arlier han
Nero had a legal right o select magistrates y commendation r suffragatio.48 owever, t
is well-known hatall fromAugustus onwards had backed candidates for office,who were
then
n
practicebound to be elected n. 44). Probably t appeared of very ittle ignificance
when
this power, which had once derivedfrom uctoritas,was given formal alidity y law.
It is still ess surprising hat there s no record of the prerogative onveyed n clause III,
which simply nabled the emperor o set aside technicalobstaclesto the senate meeting nd
reachingdecisions. Thus it is not significant hat there s no record that the prerogatives
conveyed
to
Vespasian in clauses
III and
IV
had
been granted o Nero
or to
a
successor.
However,we cannot confirm hat these particularprerogativeswere in fact solita'.
On
the other hand, those granted n the other clauses were certainly,
n the
views
of the
draftsmen, ased on grantsmade to earlier mperors. If the senate voted cuncta solita in
December 69, could it have failed to include these powers, and if it included
them
then,
what reason was there
o vote them once more
at a later
stage? Further,
he final
lause,
in
validatingVespasian's
acta
prior
to the
lex, implies
that all
his
subsequent
acta will
owe
theirvalidity o the lex; hence it is the lex, and the senatus onsultumncorporated herein,
which
has
given
him
the totality
f
mperial uthority; yet
thatwas
surely
onferred n
him
in December
69.49
This
argument s not conclusive againstthe hypothesis
hat
t was later
felt hat nsufficient
uthority
ad
been voted
to
him;
a
clause
that
validated
his earlier
cta
could then have been
thoughtnecessary o provide
for the
contingency
hat
he had out-
stepped the powers first onferred n him; but whyon this view repeat grants already
made?
There
remains anotherconsideration. Some scholars
continueto assert that
the date
of
our document cannot be determined.50But others
have
rightly ecognized
that
it
is
almost
certainly
ateable
very
lose to December
69.51
The omission
of
Galba's
name
surely
shows that the senate's decree was
passed
before
the restoration
f his
memory.
Now
Tacitus recordsthat the senate was convened on
i
January y
Frontinus
s
praetor;
after
certainbusiness had been
transacted-among
other
things
Tettius
lulianus was
deprived
of
his
praetorship
n the
groundthat
he had deserted
Flavian
legion-Frontinus resigned
in
favourof Domitian. We then hear that on
the
day
when Domitian entered
he
senate,
a
motion was passed
'
eo
referente'to restoreGalba's memory.52Apparently
t
the
same
session Tettius Iulianus was restored o office,
s
news
had come
in that he
had
actually
fled
from Moesia to
Vespasian. This certainly mplies
that it
was not
on
i
January
hat
Domitian assumed the presidency f the senate,buthe wouldhardlyhavedeferred oingso
beyond
its
next
appointed meeting,which should
have been held
on
9,
or
less
probably,
I3 January;
3
and there is no
reason
to think that even
in
this short
interval Tettius'
47
Ann.
XII, 23;
Gell.
XIII,
I4. Augustus'
silence
in RG shows that he did not extend the
pomerium,
cf. Sen., Brev. Vitae
I3,
8, fromwhich it
probably
follows that Claudius obtained special
authorization,
because he had not fulfilled he conventional pre-
condition for an extension, Italico agro
adquisito'.
See
StR ii, I072 f.
=
DPR V, 376 f.
48
However, the fact that Nero and his
successors
commended all holders of the consulship, t
least for
the year 69 (Hist.
I,
77,
2; II, 7I),
shows
only
that
theywere carrying he practicefurther han Tiberiushad done at first Ann.
i,
8i), not that theyacted in
virtue f a legal rightwhich he had lacked. Clause IV
implies that the imperial candidates like
others
still
needed the votes of the comitia.
Such
formalities
survived n Trajan's
time Pliny, Paneg.
63,
I; 92,
3),
and Dio's
(LVIII,
20,
4).
49
L. Lesuisse, Rev. Belge
XL
(i962),
5I
f.
50
e.g. Parsi,
op. cit. (n.
I),
I20.
51
e.g. J. Gage,
RJRA
v
(1952),
290 f. I am not
persuaded by
his suggestion hat
ome of Vespasian's
coins attesthis
respect for Galba's memory.
But he
has anticipated
he argument n this
paragraph.
52
Tac.,
Hist.
IV, 39; 40,
I.
53
Mommsen, StR
III,
924
--
DPR
vii,
I04
onSuet., Aug. 35 (cf. Dio
LV,
3), to be correctedfrom
the Calendar of
Philocalus (CIL
I, p. 374).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 12/23
LEX DE
IMPERIO
VESPASIANI
105
friendshad not received
nformation f his movements nd destination.54
But since the
senate was evidentlywarmly n favour fthe
restoration f Galba's memory,55nd
Domitian
had himself aken the initiative, is name must
have appeared in any list drawn up there-
after f those emperors
whose rightswere to be the model for Vespasian's.
An objection arises.
Suetonius tells us thatthe senate, as soon as
it was allowed, voted
that
statue hould be
set up to Galba in the forum, ut thatVespasian
annulled the decree,
believing hat Galba had sent assassins from pain to take his life.56 t could then be argued
that Vespasian would
not have allowed any mention of Galba to be
made in our senatus
consultum,r at any rate
n the copy publicly nscribed,perhaps at some
later date. On this
view
our
document
might ndeed have been drafted fter he restoration
f Galba's memory
9
January, ut was only enacted, or published,
after ubmissionto Vespasian, who could
then
of
course have
deleted Galba's name
and required other lterations; alternatively,he
enactmentwe
have
was much later, followingVespasian's
return
o
Rome,
and took
into
account his views on Galba from the first.
However, it must be noted that it refers o
Claudius withoutcallinghim
'
divus ; this
was certainly ot
in
accord with Vespasian's
settledpolicy; he actually
ebuilt he temple o Claudius which Nero
had allowed
to fall
nto
ruins.57Though we
do not know ust whenVespasian began to revive
he cult of Claudius,
it is
awkward o assume
that the inscribeddraft f our senatus
onsultumelongs precisely
to a point n time whenhe had formed n adverseopinionon Galba, which was not known
to Domitian and Mucianus in early January
70, and had not yet
resolved to venerate
Claudius. It
may be
said that, f due regard
was
paid to the
trinum undinum,
lex
that
embodied the senatus
onsultum f December would have been passed
after
he restoration
of Galba's memory, nd that therefore he
senatus onsultum f
our
inscription
annot
be
that of December. But it would not
have been proper
to alter the
terms
of
the senatus
consultum,orthatof
the ex once promulgated,n the nterval efore
tsenactment. On this
groundalone
it
seems
to me nearly ertain hat
our
senatus
onsultumntedates January.
Thus it was
passed
at
just
about
the time
of the
decree Tacitus
records.
Tacitus'
decree comprised cuncta
solita':
in our document precedents
re cited
for some of the
powersconferred nd theymay
well have
existed
for
herest;
the
fact hat
not
all
of
them
go
back
to
Augustus
corresponds xactly
with Tacitus' account
of
the
grant
of
powers
to
Vitellius and (with one possible exception to be considered below) Vespasian surely
received precisely imilar
grant. Some have supposed that our document
istsprerogatives
supplementaryo imperiumnd tribunician ower,
but
there
s
no
record
anywhere
f
any
such
supplementary
ranton the accesssion
of an
emperor,
nd
though
clause
IV
confers
prerogative eculiar
to the Princeps, nd VII in part concernsdispensations
rom aws
such
as
could be conferred ven
on
privatepersons
Part I), clauses
II
and
III
can be
interpreted
as
enlarging
he emperor's tribunicianpower,
and
I,
V
and VI are connected
with his
imperium.
f
Vespasian
received cuncta solita'
in
December
69,
there
was
no need
to
make him
a
later
grant
of
prerogatives
which are
explicitly
ttributed
o his
predecessors
(I, II, V, VI, VII); further nalysis
of
clauses
VI and
VII
in
Part I
will show thatthere
s
no
reason to think hat, ontrary o their xpress
anguage, hey
ither
nlarged
or restricted
the
rights
f
Vespasian
in comparison
with those of earlier
mperors.
'Entities
should not
be multipliedwithoutnecessity'. Our document s the textofpartof the decree Tacitus
mentions,
which
granted simultaneously
mperium,
ribunician
power
and
every
other
imperial prerogative
o Vespasian. This decree would have been
ratified
t the
imperial
'
comitiatribuniciae
potestatis ,
the
only
comitial
meeting
ver mentioned
t
an
emperor's
accession.
As we shallsee (Part I),
the
urists,
whose
anguage
must
urely
be
correct, peak
of
a
'
lex de
imperio
.
Hence the
comitia tribuniciae
potestatis
also
conveyed mperium
to him.
We can
explain
this
divergence
n
the description
f
a
single
comitial
act,
if
we
54
Tettius'
journey
to
Vespasian was slow (Hist. ii,
85,
2)
and he may well not yet have
reached the
emperor, but
'cognitus est ad Vespasianum con-
fugisse does not imply that he had.
55
They also voted
'
ut Pisonis quoque memoria
celebraretur; Tacitus' remark that this proved'
inritum (IV, 40) shows that,whatever
Vespasian's
later ttitude o
Galba proved to be (n. 56), he did not
annul the restoration f Galba's memory.
56
Suet., Galba 23, cf.
n. 55. Naturally Antonius
Primus, legate
of the legion Galba had
raised, had
acted on his own initiative
n re-erectingGalba's
statues
n
Italian towns Hist.
III,
7).
5
Suet., Vesp. 9, i. Cf.
'
divom Claudium'
in lex
Salpensana xxv.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 13/23
io6 P. A. BRUNT
remembern theone hand hatAugustus ad treated he ribunicianower s the summi
fastigii ocabulum (Tac., Ann. II, 56)-the practice f
he
ArvalBrethren ay eflecthis
conception-and
n
the other andthat mperium
n
its
old
technical ense, he power o
command rmies
nd
exercise hehighesturisdiction, as so much herealbasis
n
law of
imperial uthorityhat t came o be employed tillmore xtensively,o denote hetotality
of
the
emperor's owers,what
ne
might erhaps
all
hissovereigntynn. i6, 23).
It is, however,onceivable hat lauseVIII had never ppeared n anyprevious ena-
torialdecree
n an
emperor'sccession.
t validates is acta antehanc
egem ogatam
.
If it was tralatician,
t
musthave been originallyntended o
validate
mperial
cta in
the
interval
etween new ruler's
ssumption
f
power
nd
the comitial ex. No such clause
wasrequirednA.D. I4, whenTiberiuswas amply rmedwith egalpowers n thedeath f
Augustus,
nd
wouldno doubthavebeencareful
ot
o exceed
hem. But ofhis successors
down o 69, Nero lone
had
even n nadequate hare
n
the mperial rerogativesefore
is
accession.
A
legalpuristmight herefore
ave
thought
t
necessary
o
cover ach
of them
in the exercise f imperial uthorityn the brief nterval etween he day when
t
was
assumed nd
the comitial
roceedings. t maybe observed
hat he first f
theseterminin
was
until
69
the same
or
almost he same
as
that of
recognitiony
the
senate.
Gaius
apparently
id not ct as
Princeps
t
all
before
uchrecognition;
laudius'
position
was n
dispute or essthan wodays; Nero and Othowere ach acknowledgednthevery ayof
the
preceding mperor's eath;
and Galba had
purported
o be
only egate
f senate nd
people
until e was
proclaimed
t
Rome Suet.,Galba
I0,
z;
ii, i).
I
cannot
elpdoubting
if anynecessity as seen for uch a clausebefore he reign fVitellius.
Vitelliuswas proclaimed n the Rhine n 3 January 9
and at Rome
not
ill 9
April.
In the nterim e had been acting s emperor,nd his acta during
his
periodobviously
required onfirmation.f t was already ormal or he lex de imperio to contain clause
like
VIII, originally
o
cover he periodbetween ecognition
t Rome and comitial nact-
ment,
twould
f
ourse
as drafted)qually
ave overed
he
period
f
Vitellius'
surpation.
So too clause
VIII
covers he cta
of
Vespasian
incehis
proclamation
n
theeast
on
i
July
69.
If on
theother
and egalpedantryad not ntroduceduch
a
clause
nto
he
lex
de
imperiobefore 9, tsnecessityorVitellius ouldhavebecome lear t somedate fter
is
recognitiont Rome, nd it is easyto believe hat, ivenhis outward espect or he aw
(text
o nn.
27 and 33), he wished o havehis acta ratified. his wouldhave
beena
techni-
cality
f
no nteresto
Tacitus,whoofcourse oes notmention
t. But
f
hisprovision
ad
beenrecently
ade
forVitellius,t wouldhavebeenevident rom he tart hat
t must
lso
be made
for
Vespasian,
nd a
precedentirstreatedn the ase
of
Vitellius fter
is
recogni-
tion
on
i9
Aprilwouldhave beenfollowedwithout elay t the very ime
of
Vespasian's
recognition
n
December.
This
hypothesis
ould
xplain hefact hat,
whereas
itellius ounted
9
April
s his
dies
mperii, espasian ack-dated is to July.Vitellius' ies mperii ad already, e may
think,eenofficiallyixed' statutum) before heratificationfhis previousctagavehis
position retrospectiveegitimacyrom
he moment f
his proclamationy the egions.
Butunder
lauseVIII
the egitimacy
f
Vespasian's roclamation as mplicitlyecognized
inhis nvestituretRome.
It
has
always
een a puzzlethatVespasian ook July s his dies mperii. rima acie
it
commemorateshe fact hathe owed his power o the troops. Yet it was his gravest
problem, nd mostremarkablechievement,o restore isciplinen the army;
8
for his
purpose he ess he seemed o be the creature fthe oldiers,he better. n general e was
careful
o
show
raditionalespect o the enate. Of course e had never oncealed rom
he
first
hathe was
acting s emperor.He had writteno the enate efore
itellius'
eath
ut
princeps (Hist. IV, 3). He had assumedthe styleof Imperator aesar Vespasianus
Augustus'which
his
soldiers
ad
offered im Tac., Hist. I, 8o) and which he ast two
clausesof our
senatus onsultumccord o him. This is now attestedn a milestone rom
Judaea
ated o
69.
But he ame
nscription
akes o mention
f
ribunician
ower.59
hat
58
Suet., Vesp. ,
i
f., cf.
Tac., luist.
I,
82, 2.
59JRS
LXVI
(1976),
5 f.;
the
editors note
that
Vespasian's coins of 69
also omit the
tribunician
title. His first ear of tr.pot. is attested n a diploma
of March 0 (ILS I989).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 14/23
LEX DE
IMPERIO VESPASIANI
I07
most civilian of imperial
powers could only
be granted at Rome.
We
now know
what
Suetonius
had in mind
when he says that Vespasian
was late in taking t; obviouslyhe
received
t in December 69, but he
had not usurped t earlier.60But now
thathe did
assume
it, he back-dated
t to
I
July. The
retroactive lause VIII
could be held to mean
that
he
had
really
been the legitimate rinceps
from heverymoment
of his pronunciamento,
nd
no
disrespect
for the constitutional
ightsof senate and
people was involved. Officially,
Vitellius ike Otho hadneverbeena legitimatemperor; eventheirbeneficia ereexpunged
from herecord n. 45).
Perhaps
t may be thought hat
he fact hatno document
imilarto our tablet urvives
for ny
reignbut Vespasian's
makesagainst he
conclusion hat he ex
we possess is
wholly,
or almost
wholly,
ralatician.
t is enough to recall
thatnotone of the bronze
tablets et
up
at
Rome,
to which scoresof military
iplomatarefer, s still
extant.
The
dating of our document
n my viewexcludes any
theorywhichpresumes
that ts
provisions,with the
possible exceptionof the
last, had been devised for
the special case of
Vespasian'saccession.
But'even f his s not conceded,
even f t was drafted
much ater han
December,
it can still not have
been intended (as some
scholars have argued) to
limit
Vespasian's powers
by defining hem.
Vespasian himself
had no interest n encouraging
or
permitting
uch limitation,nd
it s an entiremisconception
f the character f the
senate
to suppose that either n his reignor at any timesince
A.D. 4I
it was capable of seekingto
impose restrictions n
the dominanceof ts masters.
Moreover,any such
interpretation
f
the lex nvolves misconstruction
f the meaningof clause
VI, which by mplication
etthe
emperor
bove the laws. Even this
clause in my view probably
goes back to A.D. 37.
This
requiresfurther reatment.
II.
'
Quod principiplacuit
...'
Domitian's are the
last comitiatribuniciae
otestatis
f which we hear.
The literary
sources
stillmention t most the
part of the senate n making
n emperorduring he second
centuryand thereafter.
Pliny's vague reference
o the 'senatus populique consensus',
which had confirmed
y 'electio' the 'iudicium'
of Nerva in designating
Trajan
as
his
partner nd successor (Paneg.
IO,
2),
does not necessarilyor probablyallude to comitial
proceedings. At the
same time thecomitia till
met underTrajan to vote
forthesingle
ist
of
candidates destinedfor he various
magistraciesn. 48).
Nerva seemsto
have
passed
his
agrarian
aw through he
comitia.A
It is therefore nlikely
hat he comitial
itual
was as
yet
neglected n the investiture
f a new emperor.
Nor can one divine
any reason why
this
harmlessceremony hould have
been abandoned at any point
n the second century.
The
fact
that
both Gaius, writing n the
middle ofthe
century,
nd Ulpian, early
n the
third
century, ase the emperor's
quasi-legislativeuthority
n his' lex de imperio
(infra) urely
providesdecisive confirmation
hat t continued,
whatever e thought f
their xplanation
f
that authority. Gaius, in particular,
harplycontrasts
lex or plebiscitum
ith
a
senatus
consultum,
nd regards
he right f the emperor
o issue ruleswhich legis
vicemoptinent'
as
more secure than the
right fthe senate to
do so, just because it is grounded
n
a ' lex
;
this argument ould not even have been advanced, if it had become the practiceforthe
emperor
o
receive
his imperium rom he senate
alone. Some
scholars have
indeed
main-
tained
that he
texts
of
both Gaius
and Ulpian have been
altered xtensively
n
or
before
he
time of
Justinian.
But even
f
this
general heory an be sustained,62
he nterpolators
ould
hardlyhave inserted
llusions to an obsolete
lex de imperio ;
their purpose
would
have
been to
bring
older egal writings p to date.
Long
before
Justinian
he
people
had
certainly
ceased
to
take
any part,
howeverformal,
n the
election of
a'
new
emperor.63
Ulpian's
60
Suet.,
Vesp.
I2:
'
ac
ne tribuniciam quidem
potestatem .. patris patriae appellationemnisi sero
recepit ; in the acuna leftby most MSS, one inserts
'n ec
; some editors
read
'
aut', and
Hirschfeld,
probably rightly,nserted statimnec '. There
is
not
sufficientlyprecise evidence to show whether
emperors from Gaius onwards had taken the
same
day as 'dies imperii and 'dies trib. pot.', see
M.
Hammond, op. cit. (n. z8), 23
ff.
i
Dig.
XLVII, 21,
3, I,
cf. Dio
LXVIII 2,
I
(who
characteristicallygnores he
fact hat
here
was
a
lex).
62
See
contra E.
Diosdi,
Proc.
XII
Int.
Congress
Pap.
(I970), I5I53
f.
63A. H.
M.
Jones,
Later
Roman Empire x964)
I,
322.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 15/23
io8
P. A. BRUNT
statement f the matter s merely ossilized
n the nstitutesfJustiniansee n. 73). It
may
be said that f that is true forJustinian'swork, t may also be true for Ulpian's
(though
hardlyforthat of Gaius). But
it is difficulto see why any rulerbeforeUlpian's
day
should
have
let
the
comitial eremony all nto disuse; this s much
more ikely o have occurred n
or after he anarchy f the mid-third entury,when some emperors
never or seldom visited
Rome, and when Rome ceased in all but name to be the
capital of the empire. Dio, a
contemporary f Ulpian, showshow Augustus received his powers frompeople as well as
senate p. 96), and remarks hat the authority f emperors n
his own time derivedfrom he
laws and traditionLIII,
I8,
4); at least he fails o note thatthe
forms f popular assent
had
everfallen nto desuetude.
From all this t does not
follow hatthe termsof the lexde
imperio
n the time of Gaius
or
Ulpian
were
exactly the
same as those enacted in 69. The jurists, as we have seen,
ascribe
to the emperor quasi-legislative
uthority; they lso assert hathe was not subject
tothe aws. Could these mperialprerogatives e derivedfrom
he Vespasianic aw, or have
they
some
otherorigin,perhaps
a change n the lex de imperio tself?
Clause VII
of our document
freesVespasian from he obligation o
observe those
aws
fromwhich his predecessorshad been freed. He was bound
(it would seem) by all other
laws. We actually know of particulardispensations hat
Augustus or his successors had
obtainedfrom he senate,whoseright o grant hem,usurped n the ate Republic, had been
regulated and implicitly onfirmed
y a Lex Cornelia of 67 B.C. In the early Principate
emperors ometimes btained
ike dispensations ormembers f theirfamily.64 y contrast,
Domitian and Trajan were
already conferring rivileges n others,which earlieremperors
had
sought from he senate,and the emperorwas now regarded
s the only authority
rom
whom
they were to be obtained.65
Ulpian
in
his
commentary
n the Lex Julia
t
Papia
writes:
'
Princeps egibus
solutus
est: Augusta autem licet legibus soluta non est, principes
tamen eadem
illi
privilegia
tribuunt, uae ipsi habent'. It has been observed hat Ulpian's
first tatement
eed not
have
had a
general applicability:
he may have been concerned only
with
the
marriage
aws.
However, Justinian ites a pronouncement
f Severus
and
Caracalla
that
they
would
not
take
nheritances nder wills n whichthe Princepshad been
instituted
s
heir litis causa
',
or which were defective n otherways, and quotes theirwords: 'licet enimlegibus soluti
sumus, attamen egibus vivamur
. Paul says that t was dishonourable
for an
emperor
o
take egacies orfideicommissander a defectivewill:
'
decet
enim tantae
maiestati
as servare
leges, quibus ipse solutus esse
videtur.' Severus Alexander tates
he
same
principle
himself:
'
ex
imperfecto estamentonec imperatorem ereditatem
indicaresaepe
constitutum
st.
Licet
enim
lex imperii sollemnibus uris
imperatorem
olverit,
nihil
tamen
tam
proprium
imperii st, ut legibus vivere
66
Dio providesconfirmation
hat n
his
day
the
Princeps
was
'
legibus
solutus
;
he refers o
the Latin formula.
He
actually
dated this
to
24 B.C.,
when
Augustus on his return rom pain wished to give the plebs
400
HS
apiece,
but
awaited
the
senate's approval; the senate
then freed him from
ll
compulsion
of the
laws,
in
order,
s
I
have stated,that he mightbe in reality ndependent
nd supreme
over
both
himself
nd
the
aws, and so mightdo everything e wished
and
refrain rom
doing anything
e did not
wish
.67
(The phrase
CaYroKp6c-rcop
vUTOr
doubtlessmeansthattheemperorwas not to be
bound
'
ius dicere ex
suis edictis
,
as the
praetors
had
been
by
Lex Cornelia
of
67,68
nd
that
his udicial decisions
and rescripts,which
had
become
binding
on other
ourts,
o far s
generally pplicable (n. 8i),
were not
to be
binding
on
him, ust
as
the
Supreme
Court
in
64
Asconius 58 c f.,cf. Mommsen, StR III, I228
f.
(= DPR
VII,
456
f.);
ii,
883 f. (= DPR v
i6o f.),
esp.
888
(= DPR v, I65 f.), citing Dio
LV,
2;
32;
LIX, 15.
B5
Martial
i, 9I
f.;
Pliny,
p. i,
I3,
8; X, 94; Dig.
I,
3, 3'. Martial
II,
95 and ix, 97 suggests hat
Titus,
perhaps Vespasian,
had granted uch dispensations.
66
nst.
II, 17,
8; Dig.
XXXII, 23;
CJ
VI,
23,
3.
Neither these textsnor the more limited
formulation
of cl. VII suggest hatthe leges concerned re only
those affecting the Princeps in private
law (so
Arangio-Ruiz, St. del Diritto
Rom.7
I968),
240
f.);
it is indeed in this connection that emperors
profess
'
legibus
vivere , whereas
in criminal
jurisdiction
theycertainlywere
unfettered
y the
laws.
67
Dio
LIII,
i8, I:
UAwvTat
y&p
8i
rc6v v6o,cov,
bs
aIJTa ra Aariva
Ojaccra
MEysi,
and
28,
2
(I have
quoted
the Loeb
translation).
68
Ascon.
59
c.
The law provided
that praetores
ex
edictis suis perpetuis
ius
dicerent .
It does not
seem
to
have applied
expressly
o other
magistrates
r
promagistrates,
but they
were doubtless
under
a
moral obligation to conform e.g. Cic., Fam. xiii,
56,
3), which
may have hardened
into a
rule under
the Principate.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 16/23
LEX DE IMPERIO VESPASIANI I9
the U.S.A. and, latterly,
ur own House of Lords are not
bound
by theirformer
ecisions.)
However, our document mplies that
Augustus had no such general dispensation.
In
Z4
he
was
a
candidatefor he consulshipof23
and presumably oughtrelief rom he
aw of
ambitus
whichbarred himfrom distributing
money to the whole plebs.69 Dio has evidentlymis-
construed his relief s a general dispensation,
he more easily because in his
own day
the
Princeps was
'
legibus
solutus'.
Must we then nfer hat n some laterredaction f the ex de imperio generaldispensa-
tion from he awshad been substituted
or he imiteddispensationwe have in
clause VII?
And
if
so, when
was the change probablymade? One might
doubt if the powersgranted o
Domitian at his accessionwould have
exceeded those of hisfather, nd the emperors etween
Nerva and Commodus are most unlikely
o have sought and obtained any formal
xtension
of their
rights.
P. de Francisci see n. 70) conjectured hat
Septimius Severus
was the first
to
be
formally
legibus solutus' withoutqualification.
However,
it
may not
be
necessary
to assume that he clause was ever rewritten.
aul saysthat he emperor seems
(' videtur )
to be dispensedfrom he aws (n. 66).
That mightmean that he principlewas not
expressly
stated n, but onlydeduced from, he
lex imperii to whichSeverus Alexander
appealed.
In factthe principle
was not advancedforthe first ime
n the Severan period. Con-
trasting rajan
with Domitian, Plinysays: 'Quod ego nunc
primum udio, nunc primum
disco, non est princeps uper eges , sed leges super principem ' (Paneg. 65,
i).
This
implies not merely hat Domitian had
in practice et the laws at nought so Pliny
held) but
that he had been
heard to say, or othershad said on his behalf,
hat he stood
above them.
There
would indeed
be something dd in his dispensing
others fromtheirprescriptions
(as
Trajan
also did), if he were subject
to them himself. Furthermore, nder
Claudius
Seneca had
already written:
'
Caesari
.
.
. omnia licent (ad Polyb. 7, Z); under
Nero he
had
expatiated
on the
absolute
authority
f the
emperor de
clem.
, i).
Now
clause
VI ofour document ppears to authorize
Vespasian to act as he thinks
best
in
the public interest. shall argue that
this s not only the mmediately atural
nterpreta-
tion of the clause
but that it is correct.
The
sanctio
also indemnifies ny person
for any
action he performs
huius legis ergo . Clause VI by implication
uthorizes he emperor
o
act
at his discretion ven if this nvolves
violationof existing aws, and the sanctio
xpressly
entitleshis agents o obey his commands hough heymaybe contrary o such laws. Hence
the
emperor legibus solutus esse videtur
. And if this clause goes back to the
investiture
at
which Gaius received ius arbitriumque
mniumrerum, it s not surprising
hat Seneca
could
avow
that
'
Caesar can do what he chooses . In
normal practice
indeed
a
good
emperor might
prefer legibus vivere , as emperors claim
to do long after
he
Severan
period;
70
it
was no doubt in this sense
that Trajan let itbe understood hat
he would
act
on
the
principle
leges super principem'.
But
if
this total dispensation rom he laws could be
deduced from lause VI,
as
early
as
Claudius and Nero, why ppend the
more imiteddispensation f clause
VII?
That clause
is puzzling n anotherway too. On the
most imited nterpretationf clause
VI Vespasian
was
entitled
o act in such ways as Augustushad had
a right o act. But clause
VII
then
adds that he is entitled o do whatever t was proper for
Augustus to do under any
lex or
rogatio.
This provision ppears to be, and is, otiose.71 I conjecture hat clause VII repre-
sents
part
of
the
enactmentwhich assimilated Tiberius'
rights n A.D. I4 to
those
which
Augustus
had enjoyed, nd thatwhenthe much wider authority
omprised n
clause
VI was
added, probably
n 37, it was retainedwith characteristic
oman conservatism, hough
t
had become unnecessary.
69
Mommsen,
Strafr.
65
f.
=
Dr.
pin. III, I94 f.);
the prohibition
s
assumed, not expressly ttested.
70
P.
de
Francisci,
IDR
xxxiv
I925), 32I
f.,
has
collected numerous textsof the fourth entury nd
later,
which
state the imperial policy
of
abiding by
the
laws;
as he says, such statements are quite
compatible with theirhaving the right to be used in
special circumstances)to disregardthem. He also
notes
that
in Trajan's
time
Dio
Chrysostom
had
presented a model of monarchyas
&vuTrreuOuvos
cpx'
(II,
9 f.;
42
f.;
LXII,
3). Justinian Nov. cv, 4)
actually
explains why
the emperor
s set above the
laws by the
conception of
the monarch
as
nomos
empsychos.
doubt
if this had much
to do with
the
development
of the principle
'princeps
legibus
solutus
est'
in
Roman public
law.
71
Augustus of
course had in
addition such iura
as
flowed from
his imperium
nd tr.pot. as
such, and
these could be fortifiedy senatus onsulta,which it
would have
been
easy
to mention n
clause VII.
The
ius conferred
n clause VI is
wider still.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 17/23
110
P. A. BRUNT
We
may now
turn
o
the uristic tatementswhich
derive he emperor's
uasi-legislative
authority rom he
lex
de imperio.
i. Gaius
I,
2:
'
Constantautem iura
populi Romani ex legibus,
plebiscitis,
enatus-
consultis,
constitutionibus rincipum,
edictis eorum qui ius edicendi habent,
responsis
prudentium.' After correctly
differentiatingeges and
plebiscita
(3),
he proceeds
(4):
'
Senatusconsultumest
quod senatus iubet atque constituit,
dque legis vicem
optinet,
quamvis fuerit uaesitum. (5) Constitutioprincipisest quod imperatordecretovel edicto
vel epistulaconstituit. Nec
umquam dubitatum st, quin id legis vicem optineat, um
ipse
imperator
er legem mperium ccipiat.'
He then describes he magisterial
dicta,of
which
he might clearly
have said, though he
does not, thatthey too
'
vicem
legis
optinent
(6),
and adds that
under a rescript f Hadrian
the responsaprudentium
.. quibus permissum
est
ura
condere also
'
take
the place of aw ', if they gree;
otherwise he udexmay
follow
his own
udgement
7)*
2.
Pomponius
in his
encheiridionp. Dig. I,
2, 2,
after eviewing
ther
ources
of
law,
notably egesand plebiscita,
holds that as it became
hard to convenepopular assemblies,
'
coepit
senatus e interponeret quidquid
constituisset bservabatur,
dque ius appellabatur
senatus
consultum
(g); he then refers
o the magisterial dicts Io)
and adds thatfinally
(' novissime')
'
constituto
principe datum est ei ius,
ut quod constituisset, atum esset'
(iI),
with the effet
I2)
that quod ipse princeps constituit ro lege servetur .
3. Ulpian, Dig. I, 4,
I pr.:
'
Quod principi placuit
legis habet vigorem: utpote
cum
lege regia,72
uae de imperioeius lata
est, populus ei et in eum omne
suum imperium
et
potestatem
onferat. (I) Quodcumque
igitur mperatorper epistulam
et subscriptionem
statuit el cognoscens decrevit
el de plano interlocutus
st vel edicto
praecepit, egem
esse
constat. (2) Plane ex his
quaedam suntpersonalesnec
ad exemplumtrahuntur;
nam
quae
princeps alicui
ob merita ndulsit vel
si quam poenam irrogavitvel
si cui sine exemplo
subvenit,personam
non egreditur.'
4. Justinian,
nst. , 2,
3
f. follows
Gaius' enumeration f the
sources
of
scriptum
us',
but
apartfrom erbal changes
he adoptsPomponius' explanation
f thereasonwhy'
aequum
visum est senatum vice populi consuli
(5),73 and substitutes Ulpian's
words (' quod
principiplacuit
etc.) for Gaius' on imperial
constitutions.
S. More vaguely,Papinianhad writtenDig. i,
I,
7): 'ius autem civile est, quod ex
legibus, plebis
scitis, enatus consultis,
decretisprincipum, uctoritate
rudentium
enit
.
Here
'
decreta is evidently
sed generically f all imperial
onstitutions;
4
it can,
however,
be
contrasted
with edicta or proclamations
cf. n. 76), or be
still more narrowly
onfined
to
the
emperor's udicial decisions, thus
excluding boththe
'
epistulae
he
wrote
n
reply
to
thosewho had the status
that entitled hem to correspond
withhim, and
the minutes
('subscriptiones ) thathe
appended topetitions ' libelli
), bothof which may
be designated
rescripta75
72
Most scholars think his word is interpolated
n
accordance with later usage (e.g.
Cy
I,
I4,
5, 2
and
IZ,
I);
Mommsen suggested hat t might e
genuine,
reflecting he effect f Greek usage on a jurist from
Berytus StR
ii,
876, n.
2
=
DPR v,
I12,
n.
2).
For
hypercritical xamination f all the texts quoted,
not
accepted by
most
scholars, see Kruger,
ZSS
XLI
(1920),
262
f.;
Perozzi, St. Bonfante
1930) i,
89
f.
Perozzi inter alia objects to the use of
the verb
'
constituere in the text of Gaius with reference o
statutes and senatorial decrees, but perhaps it was
deliberately nserted to assimilate them to
imperial
'constitutiones .
73Perhaps Justinian claims that the senate
had
takenthe place of thepopulus, n order to suggest hat
the emperor till n effect eceiveshis power
from he
populus through the medium of a senatorial
decree,
which s as good as a lex.
74
On
constitutions ee Jolowicz-Nicholas,
Hist.
Introd. to the Study
of
Roman Law3 (1972), 365
f.
The collection of constitutions down to
234
in
G.
Gualandi, Legislazione mperiale
e
Giurisprudenza
I (I963) does not include those in CJ, forwhich see
index to
Kruger's edition,p. 489 f.,
nor those
known
from
non-juristic
sources,
for which
see P.
de
Francisci,
Anz. Stor.
Dir. XII-XIII (I968/9),
I
f.;
he
seeks to
explain the
factsthat
fromHadrian
(a) the
volume
of constitutions
reatly
ncreases
and (b)
they
seem to have seldom taken the form of edicts.
Constantine
was to
rule: ' contra ius rescripta
non
valeant,quocumque
modo
fuerintmpetrata.
Quod
enim publica
iura perscribunt,
magis
sequi iudices
debent
(CTh.
I,
2,
2); de
Francisci,op.
cit. (n. 70),
explains this
as referring
o rescripts
ssued by
his
rivals
for power.
But
might
it be an abbreviated
disclaimer
of the
general
validity
of
rescripts
which
were only
intendedto confer
privileges
n particular
cases,
cf. CJ I,
14,
a
(A.D. 42o)
and nn. 77
and 8i?
75 Imperial
mandata are
never classed
expressly
among the
constitutiones,
hough
they
are cited
by
jurists
at
times
as evidence
of the law;
see e.g.
Dig.
xxix, I,
I pr. for the
military
will;
however, n
my
view the sectionof
Trajan's
mandata quoted
merely
circulates
o officialshe
rulesmade in
another
form,
probablyby edict. Mandata as such could hardlybe
regarded
s taking
heplace of
lex', as theymust
ave
been mainly
dministrative,
ften eferring
o
a
single
province,
ndwere
sometimes ecret
Sen.,
Ep. 83,
4).
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 18/23
LEX DE
IMPERIO
VESPASIANI
III
The
praetorianedict, as
stereotyped nder
Hadrian, alreadyimplies the
validity of
senatus consultaand imperial
edicts and decreta,
placing them on a par with
leges and
plebiscita.76The classical
urists continually
ite the constitutions r
rescripts f emperors
as
deciding the
law; Justinian ightly
laimed that they
constitutiones, uae
ex
imperiali
decretoprocesserunt,egis
vicem obtinere perte
dilucidequedefiniunt (CJ I, I4,
I2,
I).77
Fronto,
n a
speechwhich
earned approval at leastfor ts
style rom ius,was able to
say that
bythe udicial decisions decreta)of the emperor,unlikethose of private udices, exempla
publice valitura n
perpetuum anciuntur
.78
However,it was still
proper to distinguish
'constitutiones'
from' leges
.79 Gaius assertsonlythat
he former take theplace
of aw'
and
Pomponius that they are
to be
observed pro lege , while
Ulpian allows them the
force
of
law '. It
was
a
much later usage
when a constitutio as
described
as a
lex,80 and
'
legem esse
constat in our textof Ulpian
can hardlybe verbally
uthentic. None the ess,
the
later
usage
corresponded o whatwas the
reality ven
in
the
second century.
Ulpian's
dictum that the
pleasure
of
the
prince
has the force of
law
did not
of course
mean that
his
everyutterance
had
this
effect. They might
be
lacking as Ulpian
notes)
in
thenecessary
enerality.
1
Even edictsmight
oncern nlyparticular
ersons,
2
or
particular
provinces.83 On
the otherhand
constitutionsmightexpressly tate
principlesofuniversal
validity,84
r
the
uristsmight ee in
them mplicationswhich
warrantedwide
extension.85
Iftheywere to be generally pplicable, theyhad of course to becomegenerally nown; and
the necessary
publicity could be secured
particularly hrough their
ncorporation
n
the
writings f the urists or
through heir nclusion n the mandata that
officials eceivedfrom
the
emperor, ppropriate
xtracts romwhich they might
publish.
Many, perhaps
most,
of the
imperial
constitutions ould be
regarded
s
no more than
authoritativenterpretationsf the
existing aw.87 But others
patently
reated
entirely
ew
rules.88
It was once orthodox
to hold thatthe latter at
least had no validity
beyond
the
lifetime f their
authors,unless renewed by
succeedingemperors. This
doctrinehas been
refuted.89Unless an emperor's
memorywas
condemned, or his acts rescinded or
allowed
to
lapse,
and
sometimes
ven then
n. 93),
his
constitutions,
owever
nnovatory,
emained
in
force until such time as
theywere
abrogated. Thus
Paul refers o the
abrogation
of an
edict
of
Augustus
forbidding aterfamiliaso disinherit
iliusfamilias
erving
n
the
army,
and edicts ofTrajan and Hadrian had to be repealed by Diocletian and Justinian.90More
often,
we
hear
of
constitutionshatremained n
force.
1
Some
ofthese ssued from
mperors
of the
first
entury.
For
instance, Claudius and
Nero,
as
well as
Trajan,
established
new
ways n
which JunianLatins could
obtaincitizenship.92 It
is
to be noted
that Nero's
rule
76
Dig.
II, I4,
7,
7;
iII, i, i,
8;
iv,
6,
i, I;
XLIII,
8, 2
pr. Edicts
alone
are mentioned
n
XXVIII,
7,
14.
7
But CJ i, 14, 12, 2
(where
'
legibus refers o
jurists)
shows that there
had been
doubts,
perhaps
over
the
generality
f some
constitutions; Justinian
here does not
distinguish
those which
were
'personales' from he
rest.
78
Fronto,
ad M.
Caes.
i, 6
(Naber, p.
13
f.).
Cf.
Pliny,
p. x, I2,
3;
Dig.
xxxvi,
I, 52
(Hadrian).
79
e.g.
Gaius I,
z6; Ulpian,
Dig. x,
2,
2
pr.;
Paul,
VI, 2, 12,
4 and
XXII,
3, 5; Gordian, CY x, 46,
I.
80
e.g.
Justinian,
Y
,
I4, 12
Pr.
81
Cf.
Papin.,Dig.
I,
3,
I:
'lex est
commune
praeceptum';
Ulp.,
ibid. 8:
'iura non in
singulas
personas
sed
generaliter onstituuntur'.
82
e.g.
FIRA2
I
68,
Ii;
71.
83
e.g. FIRA2
i
68, i,
in
and Iv;
Pliny,Ep. x,
65
f.;
79,
I.
84
e.g. Dig. XXVI,
4,
I,
3 (Pius);
in such cases
juristssay
that
emperors
generaliter
escripserunt
,
when
they
hould in omni
oco
valere
(Ulpian, Dig.
XLVII,
12,
3,
5).
86
Thus a
rescript
f Pius
to
the
koinon
f Asia is
taken to
be of universal
validity
because
it is not
expressly
imited
to
Asia, Dig. xxvii, i,
6,
2.
Simi-
larlyTrajan's
ruling
on the
treatment f
Christians,
despite the initial reservation n Pliny,Ep. x, 97,
I,
seems to
have
been
applied
everywhere
n
later
reigns. Note the dictum
of
Javolenusunder
Trajan,
Dig. I,
4, 3: 'beneficium
imperatoris
..
quam
plenissime interpretari
ebemus.' Coll.
III
3,
3 (cf.
Gaius
I,
52 f.)
illustrates
ow
urists generalized
from
particular imperial
decisions. Gualandi
(n. 74)
furnishes
ountless instances in
all branches of
the
law. The validation
of fideicommissand
of the
ius
codicillorum
underAugustus
Inst.
I,
23,
I;
25
Pr.)
are early examples
of the development
of general
rules out of particular
ases.
87
e.g. Gaius
II, 195 (Pius). It was
also constantly
necessary
for
emperors
o repeatexisting
ules of the
law: ' saepe rescriptum st is a juristicrefrain.
88
e.g. the decretum
f Marcus making
new ruleof
law
on the occasion of a particular
case in Dig.
iv,
2,
13
=
XLVIII, 7, 7.
For 'novum ius' made by
senatus
onsulta nd constitutions
ee e.g. Gaius, Dig.
V, 3, 3.
And noteJulian,Dig.
I,
3,
I
I:
'
aut interpre-
tatione
aut constitutione
ptimiprincipis
.
89
Orestano,
Gli Editti Imperiali,
extract
from
BIDR
XLIV
(i937),
cf.n.
II5.
90
Dig. xxviii, z, z6;
CY
VI, 33, 3; vii, 6, i,
I2;
VIII,
IO, 5; Inst.
III,
7, 4.
I
would not
cite here the
cancellationof
some of Gaius' measures
by Claudius
(Dio
LX,
4,
i),
since
we cannot be sure that these
measureswere
not senatus onsulta.
I1
Orestano
(n.
89)
lists
them,
e.g.
edicts
of
Augustus
in Fr. de
iure
fisci
8; Dig.
XLVIII,
I8,
8
pr.,
both of universal application.
92
Other concessions
to
Junian
Latins were made
by senatus
consulta or (under
Tiberius) by the lex
Visellia,
ee Gaius
I,
28 f.; Ulpian,
Tit.
III.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 19/23
II2
P. A. BRUNT
remained valid,
despite
his
condemnation;
it was
evidently mpractical
o
reverse all the
acta of a 'tyrant',
and
unnecessary,
s
some
might
be
universally pproved.)
93
Claudius
too amended
the
Cornelian
aw on
will-making
y
edict. This
is one
instanceof
a
common
practice wherebyRepublican
statuteswere
broughtup
to
date. When the classical urists
summarize
he
prescriptions
f such
statutes, heyfrequently
scribe
to them
rules
which
n
formor substance
represent mperial
amendments.94 t is clear that the
quasi-legislative
authority fthePrincepswas held to go backto Augustus n.
9I)
although twas farmore
extensively sed,
to
udge
from
our
sources,
from he
reign
of
Hadrian
(n. 74).
Gaius shows that the
authority
f
jurists
to
develop
the law
by interpretation
lso
rested on imperialfiat. Augustus
had
begun the practiceof selecting urists who were
authorized ex
auctoritate
rincipis espondere'; 95
it s
clearly
hese whom Gaius describes
as
persons quibus permissum
st
iura
condere',
and whose
agreement n
a
point of
law
was
made decisive
by
a
rescript
f
Hadrian.96
It
is not always observed
that
the
validity
f senatus onsulta s a
source of law under
the Principate also derived from
he
emperor's
will.
In
form
a
senatusconsultum as
no
more
than a
piece
of
advice
to the
magistrates.
Thus
in
the SC
Velleianum, robably
of
Nero's
reign,
he
senate resolved
arbitrari
enatum
recte
atque
ordine facturos
d
quos de
ea
re in iure aditum erit,
i
dederintoperam,
ut in ea re senatus
voluntas servetur.9 In
the Republic tribunes could veto decrees of the senate and deprivethemof effect; and
even
if they were passed without veto, magistrates
ould on
occasion neglectto observe
them.
But in the
Principate
ll
senatorialdecrees of
substance
were
either nitiated
by
the
emperor
or
at
least
required
his
sanction;
98
and
given
his
support,
neitherveto
nor dis-
obedience was
practicable.
In
the
same
way
it was
the
emperor's authority
hat made it
possible
forthe
senate to
assume
urisdiction
over life
and
death
with no
regard
to the old
ius
provocationis
r to
the
Republican
statutes
which
had
set
up
courts to
try particular
offences,
nd to
deprive
he comitia f
free
hoice
at
elections
by submitting
o
them
a
single
list of candidates.
Even in the Republic senatorialdecrees
had
had
great weight.
We have seen that
the
senate
actuallyusurped
the
right
o
grant rivilegia;
in
67
B.C. the
tribuneCornelius
had
to
give up the attempt o deny this and contenthimselfwith
regulating he procedure. Very
likelyoptimates rguedthat senatorialdecrees should be observed ikestatutes; ifso, this
would
certainly ave been contested, nd
rightly;
the
very
form f the
decrees shows
that
the
contentionwas incorrect.99Gaius
was
surelyright
hat t was
long questioned whether
they
took the
place
of
aws', though
one
may
doubt if
this
argument ontinued,
or at
any
rate
if
it had any practical importance, once decrees were passed
'
auctore principe .
Scholars
have,
on
the
other
hand,
taken offence
t Gaius'
statement
hat
the
validity
of
imperial constitutions ad never been in doubt. So far
as
the form f
mperial edicts goes,
they
were
also sometimes
ouched
in
the senatorial
anguage
of
advice.100 But even
if
they
issued directcommands and prohibitions, y whatrightdid the Princeps act? Gaius' own
answer
has
been
pronounced unsatisfactory.
et
this
be
so: it is
still naive to
suppose
that
93
For Domitian cf.Pliny,Ep. x, 6o; 66;
72;
Dig.
XLVIII, 3,
2,
I;
i6, i6. On abolitio memoriae nd
rescissioctorum
ee StR
ii,
1129I-33
=
DPR v, 41 f.
They would
not affect senatus consulta
passed
'
auctore Caesare '. The
condemnation f Domitian's
memorys implicitn Dio LXVIII, i,
and indeed n
Nerva's
letter p. Pliny, Ep.
X,
58,
IO:
'
cum
rerum
omnium
ordinatio,quae prioribus
temporibus nco-
hatae
consummatae unt, bservanda
it,
um
epistulis
etiam Domitiani standum est .
94 Dig.
XLVIII, 10, 15
pr. Cf.
for nstance 8,
I,
3-5;
8,
4, 2;
8,
5;
8,
II;
8,
14
for
extensionsof the law
on murder; otherswere made
by SC e.g. 8,
3,
2 f.;
8, 6; 8,
II,
2;
8, 13.
Cf. n. 41.
5 Dig.
I, 2, 2,
49. What this
meant
at
first s far
from lear, see
de Martino,492 for
bibliography.
6
Naturally mperial constitutions
were normally
based on uristicadvice; for clear nstance ee Dig.
XXXVII, 14, 17.
9
Dig.
XVI, I,
2,
i;
date: D.
Medicus, Zur. Gesch.
desSC Vell.
I957)
13 f.
98
The SC Calvisianum,which in effect mendedthe ex lulia de repetundisnd is a very early
nstance
of senatorial
legislation'
(4
B.C.), was
promoted
by
Augustus (FIRA
2
I,
68, v).
For
imperial
sanction
Tac.,
Ann. III,
52-5;
XV,
20-2
are
significant.
99
Ascon. 58 C f. For
other
quasi-legislative
activities f the post-Sullan senate see
StR
III, 1228
f.
-DPR VII,
458 f. A. Watson, Law
Making in the
Later
Roman
Republic
i974),
ch. 2 iS
clearlyright
that
senatus consulta
did not
possess
legal force as
such,
but
they could
be
just
as
effective,
f
the
magistratesweredisposed to obey
and enforce
hem,
and Cicero
held this to be their
duty Sest.
139).
Cf
Cicero's ideal set of aws in
Leg.
III,
6;
'
(magistratus)
quodcumque
senatus crevit,
agunto , and
i
O:
'(senatus) decreta rata sunto
.
100
e.g. placet' in FIRA2 I, 67,
cf.
68,
, III
and
iv, but in
III
Augustus also says xeMuca,f. the
language of
Claudius, ibid.
7I
andVespasian, bid.
73.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 20/23
LEX DE IMPERIO
VESPASIANI
II3
any urist or layman would have dared to impugn
the validityof imperial orders. Nec
umquam dubitatum st ; at least no doubtswill ever
have been expressed.
Gaius justifies imperial authorityby
the
words 'cum ipse imperator per legem
imperium accipit'. It has often been objected that Republican magistratesreceived
imperium romthe people by election, and some
privati ike Pompey by statute,but that
this had never been taken to convey to them
quasi-legislativepower.
But
what
if
Gaius
means imperium' to be construednotin itstechnical ense but as the totality f imperial
power granted o him by 'lex' on his accession (nn.
i6, 23)? Certainly
his
must be the
meaning of the word in Ulpian's similar
statement:
the
'populus' did not possess
'imperium' in the
narrow
sense,10'
which
belonged
to
magistrates
nd
promagistrates;
what
t
could
transfer
o the
Princeps
was
its
sovereignty,
manifest nter
lia
in
the
right
o
make aws. Ulpian has
in
fact mprovedon Gaius' drafting,nd
this
may be why Justinian
preferred o adopt his formulation.
Thus Gaius and Ulpian found
the
source
of
the
emperor's right
o make
law in the
statutepassed at his accession.
I would
accept
the view that
they
re
referringo clause VI
of
our
document. Various
objections
have
been offered.
Some think
hat the
verbs agere
facere relate
only
to executive acts of
administra-
tion.102 But how
can the
connotation
f
agere
be
narrower
han that
of acta
, which n
its application to holders of imperiumn the Republic certainly ncludes their general
rulings? It would be absurd to suppose that the
imperial acta, which senators swore to
observe
n.
I
I4)
and
which
on the
death of a
tyrant
were sometimes
escinded,
xcluded
the
edicta and decreta.
Others uppose that
clause
VI
merely
uthorizes
Vespasian
to act at
his
discretion
n
an
emergency.103 ne
could think
of Cicero's doctrine
that for
the consuls
'
salus
populi
'
was to be
'
suprema
ex
',
and of
the
extraordinaryower
that he senate
purported
o
vest
n
magistrates y decreeing n crisesthatthey hould
see
to
it
thatthe
commonwealth uffered
no harm.104 But
if
this
was the draftsmen's
ntention, hey
have
failed
to
express
it.105
Vespasian
is to be
entitled
o
act
as he
thinksbest
in the interest
'
ex
usu
')
not
only
of
the
state
but of private
ndividuals. The
phrase
ex
usu
'
may
remindus
that
utilitas
,
both
public
and
private,
was sometimes dduced
to
ustify
nnovations
n
the
law,106
nd
also of
theallusion to private nterestsn Tiberius' avowalthat twas his duty servire tuniversis
civibus
saepe
et
plerumque
etiam
singulis
(Suet.,
Tib.
29);
most
imperial
constitutions
were in
fact
concerned
with the
protection
f
private
rights
nd
interests.
But can
its
scope
be limited
by
the
phrase
ita
uti divo
Augusto et ceteris)
fuit ? Here
there
may seem to be
an
ambiguity.
Were
the
draftsmen irst
onferring power
on
Vespasian, and
then
claiming,
whether
ruly
or
falsely,
hat
the same
power
had
belonged
to
Augustus,
Tiberius and
Claudius? Or
were
they conferring
n
Vespasian only
such
power
as
those
emperors
had
legallypossessed?
In
the
first
ase the reference o
Augustus
etc.
is
merelyhistorical,
but in the second
it
is
part
of the
very
definition
f
Vespasian's
rights. In clause
III
at least the intention
f
the
words ita uti
licuit .
.'
must
surely
be of
the second
kind. In virtue f
the
tribunician
ower
an
emperor
had
the
right
o summon
the
senate and
lay
business
before
t, leading
to
a senatus
onsultum.
There
was thereforeno
101
StR
I, 22
=
DPR
I
24.
I
do
not,
however,
agree
with Mommsen
that where 'imperium'
is
used of the populus,
t eitherhas
a geographical
ense
or
s
' political peculation ;
it s simply
dominion
or 'sovereignty'
over subject
peoples (Oxf.
Latin
Dict. s.v.,
5), though the
usage is not indeed
'technical'
as when applied
to a
magistrate.
102
e.g. Arangio-Ruiz
n. 66).
For acta cf. StR
II,
906
=
DPR v i86; Cic.,
Dom. 40
illustrates the
equation
of
a
magistrate's
cta with quae egisset'.
The
'
acta'
of
Bassus
in Bithyniacertainly
ncluded
judicial
decisions (Plin.
Ep. x, 56, 4).
Hence
in
cl.
VIII
of our
document acta gesta
decreta mperata'
is unnecessarily full,
cf. the
pleonasms
in
cl.
IT.
'Facere ': cf.Ann.
IV,
37.
103
So de
Martino,502
and othershe
cites.
104
Cic., Leg.
III, 8; Phil. XI,
27;
Sall.,
Cat. 29 etc.
105
One might rather
think of senatus
consulta
which had invited
magistrate
o take such and
such
action si ei
e republica fideque sua videretur (e.g.
FIRA
132).
106
The
phrasing
of
the
clause is odd.
Strictly
ex
usu
'
relates
only to
'
reipublicae and
'
maiestate
to all that
follows. But 'maiestate', while more
appropriatethan
'
usu
'
to things
divine,
and
well
suited
to
things public,
is
nonsense
for
things
private;
'
ex
usu
'
was surely
till n
the minds of the
draftsmen. ee
Heumann-Seckel,Handlexikon
u
den
Quellendes
ram. Rechts9, s.v. 'utilis', 'utilitas', for
commonmotiv
n
explaining he origin
of
egal rules,
esp.
innovations, .g. Ulp., Dig.
I, 4, 2:
'
in
rebus
novis
constituendis
videns esse utilitasdebet, ut recedatur
ab eo iure, quod diu aequum visum est . TheI
novum ius
'
that
emperors made could be
so
justified.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 21/23
II4
P. A. BRUNT
necessityto grant this right specifically n
addition to the tribunicianpower itself,
nd
more must be intended: the clause vests n Vespasian the enlargedrights f doing
business
with he senate which had been voted toAugustus n. 42), simplyby referringo
Augustus'
rights. Clause VII is an even more obviousexample of the way n which Vespasian's
rights
are defined by reference o those of
Augustus. However, Clause VII itself empowers
Vespasian
to
exerciseall the powers which
aws had vested n Augustus; something
more
mustbe designed n VI. And that s to be found n the word censebit . It is at Vespasian's
discretiono do what he thinksbest, and
it is added in the words ita uti.
. .'
thatAugustus
had had a like discretion; the addition
cannot imitVespasian's.
If Vespasian was free o do what he
thoughtbest, he was an autocratwhose powerwas
theoretically estricted nly by his own judgement. (In practice,of course, any autocrat
had
to bear nmindwhathis subjects wouldtolerate.) The draftsmen llege that
Augustus,
Tiberius and Claudius had not merely
njoyed power no less absolute but thattheyhad the
same
legal authorityius). This historical
tatement s not to be believed. Overt assumption
ofthe right o act as he pleased would have been incompatiblewith Augustus' scrupulous
care
to
offendRepublican susceptibilities
s little as was consonant with his retention
f
control
over the state; he could get his
way without t. His refusal f the dictatorshipnd
of the 'cura legum et morum summa potestate', both offeredby senate
and people,
illustrate is caution. It is clear thatthis cura would have enabled him to legislate, ince
he
adds
that he took the measures the
senate thoughtnecessary per tribuniciampotes-
tatem
, that s by nitiating omitial egislation.'07Dio, who loves to
recordand sometimes
to
exaggerate he powers voted to Augustus,
mentionsno grantof a right
o do
what
he
deemedbestforpublic and private nterests.108
But whatever uccess withcontemporaries ugustus' Republican
moderation chieved,
he
appeared
as
the founder of
a monarchy to Dio (LIII, 17),
Suetonius
(Aug. 28)
and
Tacitus
109
and, still earlier, to Seneca. 10
Tacitus indeed makes out that
this
was
recognized n A.D. 14, and by Augustus' apologists. ' It cannot then be supposed
that by
citing he precedentof Augustus the draftsmenwere hoping
to
suggest
that
the
power
of a
new
emperorwould be restrained, s
thatof Augustushad been; it
is
relevant,
for
that
matter, hat Claudius too is cited, and he was detested for further ncroachments
n the
authority f the old Republican organsof government. 12
We
may
indeed ask
how the draftsmen
ame
to
impute
to
Augustus
a
discretionary
authoritywhich in strict aw he had
never possessed. It is
apparent
that
they
were
scrupulous elsewherenot to
ascribe
to
previous emperors pecificprerogatives
or
which
there
was
no precise warrant. Augustus,
Tiberius and
Claudius had
all commended
candidatesto magistracies,who were nevitably eturned.
But
they
had
evidently
revailed
'auctoritate
; if,as seems probable,the prerogative
was first
ormally ranted
o
Nero,
it
was
within the recollectionof
the
draftsmen
hat no earlier emperor
had
possessed
it
in
law. On the otherhand, they lso knewor believed thatAugustus
had done much that
was
at least notnormally one bya man merely n virtue f proconsular mperium
r
tribunician
power,
and
they thought t proper to
grant to
a
new emperor
the
formal
right
o act
as
Augustus had acted.
It was theundoubtedmeritof Last's interpretationf thediscretionarylause thathe
saw that
tgave egalsanction othe ctivityf n emperor
n matters
where
Augustus
had
been
able to
operate freelywithout uch
sanction,merely
n
virtueof
his
pre-eminent
uctoritas.
He noted
that accordingto SuetoniusVespasian at his
accession was
deficient
n
maiestas
and
auctoritas,
nd he
supposed that the
clause was
tailor-made
for
Vespasian. Suetonius,
however, dds that Vespasian's reputed miracles n Egypt supplied
the
deficiency;
be this
107
RG
5
f. For Augustus'
'
Republicanism'
(which comes out in his own designation of his
position as 'princeps
'
and reference to other
notables as 'principes ', RG
IX, i)
see
Velleius
ii,
89, 3 f.
108
Contra Herzog,
Gesch. u.
System
der rJm.
Verfassung
i, I5i,
nothing n Dio
LIV, 10 (I9 B.C.)
can be relevant; consular power did not give the
holder such discretion s cl. VI, and Dio's account of
the cura morum s wrong.
109
Hist.
I,
I; Ann.
I, I, I;
2,
2;
3,
I;
4,
i
etc.
110
e.g.
Benef.
VI,32,
cf.
I,
20,
where
he argues that
liberty
and the
Republic
were irretrievably
ost
by
44
B.C.
11
Ann.
I, 9,
4:
'non aliud discordantis
patriae
remedium
fuisse
quam
ut ab uno regeretur'.
Ovid's
'res est publica Caesar' (Tr. IV, 4, x5) shows that
contemporaries
ould
have been so clearsighted.
112
Ann. xi,
5,
i
(cf. for
Aug.
I, 2,
I); xiii, 4.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 22/23
LEX
DE
IMPERIO VESPASIANI
I15
rightor wrong and one might doubt if they mpressed Romans as much as
Egyptians,
'dedita
superstitionibus ens ),
he knows
nothing
of
a
grant
of
extra egal power. 3
No
ancient writer
does. Last's
thesisfails,
f
our document comprises the grant of
'
cuncta
solita . Nor was Vespasian the first
mperor o lack the auctoritas f Augustus, or even of
Tiberius, whose personal services to the state made
him indisputably he first itizenon
Augustus'
death.
On
accession
Gaius,
Claudius and Nero each
possessed onlythat prestige
which ccrued tothem s members fthe mperialdynasty; none had any personal chieve-
mentsto show,
and their
capacity o rule
could
be doubted. If
it was ever felt hat ack of
auctoritaswas a ground forvesting new rulerwith
compensatinig
egal power,that
feeling
could have existed n
A.D.
37. But it
s
not n the
east
necessary o suppose that at anytime
there was
a
conscious intent
to
'
institutionalize auctoritas, r supply its absence
by
additional potestas.
The
popular enthusiasm hat accompanied Gaius' accession and
the
servility f the senate would be sufficient
n
themselves o explain the conferment f legal
power
more
sweeping
than
that
which Augustus
had
obtained,
and
which Tiberius would
certainly ave rejected. It
is true
thatclause VI
legalizes autocracy, ut after he
oppression
of
Tiberius' later
years,
no matter
where
the
responsibility
ies
for he
development,
o
one
could be in doubt that
the
Princeps could be
as
autocratic
s
he chose, and the best course
might
have seemed
to
be
that
of
winning
he
good-will
of the new
Princeps by
an
unlimited
expression f confidence n his wisdom and benevolence. Nothingforbidsus to date clause
VI to
A.D.
37.114
No doubt on this
nterpretation
lause
VI
made
every
other clause in the
lex
logically
redundant, nd whereas tmayseem natural
hat specificpowers vested n emperorsbefore
the
date
at
which
the
discretionarylause
was
first mbodied
n the
lex
de
imperio should
have been
repeated,
however
unnecessary,
ne
might
sk
why
additional
specificpreroga-
tives were inserted ater, e.g. clauses
III,
IV
and
(if
the
discretionary lause goes
back to
37)
V.
We may recall,however, hat
he generalprohibition
n
repetundaeegislation gainst
the
enrichment
f
officials
except
as
specifically anctioned)
was not
thought
o make it
unnecessary
o
set
out with
ncreasingprecision
the
principal
modes of
illegal enrichment
for
which
charges
would lie.
Similarly
n
emperor
could still
be
specifically
uthorized o
exercise
his
discretion
n
certain
ways.
These authorizations
were of
political
value to him
in thatthey conveyed,or purported o convey,public approvalfor his taking ctions of a
given
kind.
The
hypothesis
hat
the
prototype
f our
document
dates to
37 may explain why
the
name
of
Tiberius
appears
in
it, though
he
was not
among
the
divi.
Although
there
were
hostile
demonstrations gainst
his
memory
on his death
(Suet.,
Tib.
75) and
his will was
immediately
et aside
(idem.,
Gaius
I4;
Dio
LIX, I, 2),
and
although
from
38
the
senate
ceased to swear observance
of his acta
(Dio LIX, 9, i),
Gaius
initially rofessed
o
honour
him
(Suet.,
Gaius
I5;
Dio
LVIII, 28,
5; LIX, 3, 7);
his
name could
then
not
have
been
omitted
rom
'
lex de
imperio passed
in
37;
it
would have been natural
f t
had then
been
transcribed
n each successive act
of investiture.
Clause
VI
is
in
itself
ufficient
ustification
orthe
uristic
doctrines hat the
emperor
was
'
legibus
solutus
and
that
his
constitutions
took
the
place
of
lex .
None
of
his
actions could be questioned, o long as he was emperor, venthough heymightbe contrary
to
existing
aws.
Clause
VIII also
suggests
he
kind
of formula hat
could
have
been
used
when
the
senate
swore to
observe
the
acta
of
a
past emperor.115 ogether
these
provisions
explain why imperial
constitutionsmade law
and
why unlike,
for
nstance,
the edicts of
'
Suet., Vesp.
7,
2;
Tac., Hist.
iv,
8i. The
Flavian quasi-monopoly of the ordinary
onsulship,
and
the
absurd
numberof their mperatorial
cclama-
tions, no doubt
reflect espasian's desire to compen-
sate forhis ' novitas .
114
Dio XLVII,
I8, 3;
LVII,
8,
4; LIX, 9, I; LX,
I0,
I.
115
For
magisterial dicts see StR
i,
634 f.
=
DPR
II
306 f. Orestano,op. cit. n.
89),
was right
hatthis
limitation ame not
to apply to imperial edicts (nor
constitutionsn
general),but the explanation s surely
not that theywerenot magisterial n principle as he
thinks) but that
given above. Orestano maintains
thatmagisterial
dicts only announced rules bywhich
the magistratewould
be
guided
in
exercisinghis own
powers,
whereas
emperorsprescribed
rules
for
others
to follow. But rules
of
the first kind indirectly
determined
he
proper
conduct
of
the citizens,and
not all magisterial
dicts
consistently
onformedto
Orestano's
model. Cf.
the
aedilician
edict, esp. 5
f.
(FIRA
2
I, p. 390 f.), and occasional formulae
n
the
praetorian edict like
'
ne quid in loco publico vel
itinere fiat' (ibid. 377);
also Cic., Quinct. 84 with
his paraphrase,
89.
See
also
for nstance
Cic.,
Verr.
II,
3, 36; Qu. fr.
, i,
26; Fam.
II,
8,
3
f.; Livy
XXXIX,14, 7 f.;
XLI, 9, 9-I2; XLIII, 14,
5. f.;
FIRA2
I, no. 52-4.
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTCAll use subject to JSTOR Terms and Conditions
7/21/2019 Lex de imperio vespasiani
http://slidepdf.com/reader/full/lex-de-imperio-vespasiani 23/23
ii6
LEX DE IMPERIO
VESPASIANI
magistrates, hey
remained valid aftertheir authors had
ceased to hold office.116 he
confirmationf an emperor's cta by
oaths provided n additional
anction.
On the
views
here advanced, no such clause justified
legislation by Augustus or
Tiberius. However,
the oath taken bysenators o observe
the acta of Augustuswould have
given posthumousvalidity o any
egislative hanges he
made; duringhis own life-timewe
can
assume that no one ventured o
challenge hem. The attitude f Tiberius,
who avowed
thathe respected ll Augustus' deeds andwords vice legis , musthavereinforced he oath,
but perhaps t can
also be connectedwith t. Tiberius, at
least n the earlypart ofhis reign,
was scrupulous in observing
constitutional orms, and this strong statement,
which he
made in
the senate,
was only unobjectionable f the senate
was
bound
by
oath to
regard
Augustus' acta as
'
perinde usta rataqueac si populi
plebisve ussu acta essent .117 In any
case
the ong apse of time n which
Augustus' acta were enforced, uringhis own
reign nd
that
of
Tiberius,would have tended to
give them the sanctionofcustom.118
Tiberius' acta
were
not confirmed
n the same way, and in fact re hardly
ver cited ater. But,as we have
seen, even when the
acta of an emperorwere allowed to lapse or
actuallyrescinded, his did
not mean
in practice
that those rules he had made whichwere
acceptable
were
treated as
altogetherdevoid of
authority:theymight stand on their
merits and on the force
of
custom; the very engthof time for
which Nero and Domitian
ruled was
relevant.
III.
Emperor
and Res Publica
'Deo
auctore
nostrum ubernantes
mperium, uod
nobis
a
caelesti maiestate
raditum
est': these are the
openingwords of theconstitutionnwhich
Justinian xplainshisproject
of
compiling heDigest. He is emperor
by the grace of God. It would be easy
to
trace this
concept
of
monarchy
ack to
Hellenistic
philosophy cf.
n.
70),
and to
point
out
its
nfluence
in
the
adulatory anguage of Roman
poets
and
panegyristse.g. Sen.,
Clem.
I, i)
or
in
imperialpropaganda. Yet at the same
time therepersisted he
concept
of the state as
'
res
publica ,119which, as Cicero rightly eld
(Rep. I, 39),
was
equivalent
to 'res
populi',
the
property, ffairs nd interests f ts
citizens. In the second century ulian,
n
discussing
he
validity
f
custom,
can
write:
'
inveterata onsuetudo
pro lege
non
immerito
ustoditur,
t
hoc est us quod diciturmoribusconstitutum; nam,cum ipsae legesnulla alia ex causa nos
teneant, quam quod
iudicio
populi receptae sunt,
merito et
ea, quae
sine
ullo
scripto
populus probavit, tenebunt omnes.'
Similarly statutes can
fall into desuetude 'tacito
consensu
omnium'. This doctrinewas
reconciled by jurists
with the absolute
power
of
the
emperorby reference o the lex de
imperio
.
Even
in the ate
empire
he
emperor
was
in
principle lective,
ust as the kingshad
been, and at his election he people, or
eventually
the senate
as its representative,
nvested him with
all
its own sovereignty.
Magisterial
imperium
ad
always had
a
discretionary lement,
but
in the
Republic
the
right
of
its
holders
had been
limitednot
only by
the
moral
obligation
o act
'
e
republica
fideque
sua '
(n.
I05)
but
by
the
equal powersof other
magistrates,
nd
by
the
prospect
hat
on
demitting
office
heymightbe brought o account. The
emperor
had no
equals,
and he could
only
be
brought
o account
by
assassinationor insurrection.
Still,
his
powers
had
their
ineage
in
Republican precedents,not in Hellenisticpracticeor theory. King Ptolemywas himself
the state:
ImperatorCaesar was the
representative
f the res
publica.
His
authority
was
unlimited,
ut he
was
supposed to exercise t ex usu
reipublicae
. In
theory
t least he was
not
rresponsible; he could be
condemned, fhe misbehaved nd
had been overthrown. ow
much
differencehese
refined
istinctions
made to thewelfare
f his
subjects
s
another
matter.
Brasenose
College,Oxford
116
Ann.
V,
37. The substantial
uthenticity fthis
speech is
guaranteed by its
incompatibilitywith
Tacitus'
comments (38, 5). Cf.
generally Syme
Tacitus
1958), 700 f.
I
For
custom
making law see Watson,
op.
cit.
(n. 99), ch.
I3;
Jolowicz-Nicholas, p. cit. (n. 74),
353
f.
upholding Dig.
I,
3,
3I
as
genuine. (It is surely
wrong to say
that the Romans
do not invoke the
idea of
custom in
constitutionalaw, see
e.g. Cic.,
Sest.
I37;
Rep.
III, 41.
Dio LIII,
i8, 4 rightly
ased
the
position of
the
Princeps
on
custom.
Like
Great
Britain,
Rome never
had
a written
onstitution,
nd
any
distinction between
'
constitutional
and
'customary'
is
unsound.)
118
Justinian says: 'statum rei publicae susten-
tamus
(Deo
Auct. i).
119
Dig. I, 3, 31 (n. II7).