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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

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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.






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).






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.






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.)






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).







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.)






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).







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.






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).






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.






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).






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.






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.






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.






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).






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.






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.






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.






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.






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.






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).