Roman Public Life

by A. H. J. Greenidge

The Emperor, in his relation to the courts of Rome, possessed the full power of restitutio only over his own sentences and those of his predecessors in office.[1862] He had no right of interference in the way of restitutio with the judgments of the Senate, for the power which he possessed, of preventing the reception of the charge[1863] or the execution of the judgment, was merely a practical and accidental consequence of the application of the tribunician power to a decree of the Senate.[1864] Nor is there any distinct evidence of his possessing the power of rescinding the sentences of the quaestiones perpetuae, although interference with these on equitable grounds is not improbable, and seems, where permitted, to have taken the form of consent to a new trial (retratactio).[1865] With respect to the ordinary civil courts, the praetor possessed the power of equitable restitution,[1866] but there is evidence that the Princeps, also as a court of equity, might rescind inequitable sentences both of ordinary judices and of centumviri.[1867]

The Princeps also possessed a power of quashing indictments (abolitio), which does not seem to have been confined to his own jurisdiction, but to have been extended to other criminal courts as well.[1868] Its origin may be explained on two grounds. The first depends on the fact that it was possible to have any case brought to the Emperor’s court, on the request either of the prosecutor or of the accused. The Emperor might, after listening to the preliminaries, refuse to hear such a case without “remitting” it to another court,[1869] and it is very improbable that any other authority would listen for a moment to a prosecution to which the Emperor had declined to attend. The dismissal of the case by the Princeps was practically a power of abolition; but the right might have been exercised even more directly. Republican history furnishes an instance of a tribune prohibiting the president of a quaestio from receiving a charge,[1870] and it is obvious that the tribunicia potestas of the Princeps might have been exercised in the same way to impede the first step in the jurisdiction of every criminal court.

With respect to the provinces, just as the criminal appeal finally passes to the Emperor,[1871] so the revision of the sentences of the local courts, where revision is suggested by the judge,[1872] as well as the infliction of punishments denied to the judge—such as the capital penalty on decurions or deportation on any one[1873]—centre finally in the hands of the Princeps. All right of revision and restitution is not, indeed, denied to the provincial governor,[1874] but while this was finally restricted by certain well-defined rules, the Emperor’s power of restitution appears ultimately to have been unlimited. “This power might be so employed by the Emperor as to take the form of a free pardon,[1875] but theoretically it was merely an equitable assistance. As a legally unlimited power of rescinding sentences, it approaches very nearly to a power of pardon; but it is an executive duty rather than a sovereign right, and we search in vain in the Principate for a power of pardon regarded as an admitted constitutional right of a sovereign.”[1876]

(iii.) Administration.—The principle of a dual control is as manifest in administrative matters as in any other. The spheres of administration are Rome, Italy, and the Provinces. With respect to the first two it is clear that one of the few justifications for the maintenance of Republican government was that, by leaving the ordinary administrative duties connected with Rome and Italy to the Senate and ordinary magistrates, it enabled the Princeps to concentrate his attention on his proper sphere, the foreign and provincial world. But even the provinces did not deserve the undivided attention of the Princeps. Those whose administration presented no special difficulties, and which required no military force, might still be left to the care of the Roman people. This division of responsibility might have continued a reality had the Principate continued to be what it was in origin—a provisional government by an individual who had little personal assistance at his command. But as this rule gradually assumed the form of a huge government department, overshadowing all others, with an organised civil service which replaced the assistance furnished by freedmen and slaves, it not unnaturally tended to encroach on the Republican spheres of administration. The motive for the tendency was chiefly the fact that the Princeps was, in the eyes of all men, not the head of a department but of the state, and a responsibility, which he would gladly have disclaimed, for the acts of all officials, even those of Republican departments, was thus thrust upon him.[1877] There is no particular ground for believing that the Princeps managed departments such as Rome or Italy better than the Republican officials. The important fact was that public opinion forced him to manage them, whether for good or ill.

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

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

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

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

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