CHAPTER X

III.

THE PRINCEPS AND THE CONSTITUTION

Vespasian owed the principate to his troops—a fact which his forthright honesty so far confessed that, instead of following the example of Vitellius and dating his rule from the day of his acceptance by the Senate, he frankly admitted that it had begun when he was first acclaimed at Alexandria. It was, indeed, no new experience for the Senate to be confronted with a princeps of the soldiers’ choosing; but the Senate alone could give legality to what without it would remain a usurpation, and Vespasian, faced with the task of establishing a new Imperial house, was in no position to despise the help which he could get from that influential quarter. Accordingly he acted with deference; and the Fathers, with less misgiving than when the same grants were made to Otho and Vitellius, voted him the customary prerogatives as soon as Vitellius was dead, when he and Titus were also designated for the ordinary consulships of the following year and Domitian was offered a praetorship, together with consulare imperium. Thenceforward he held his position by legal right, and about his accession there would be no more to say were it not for the fortunate survival of a fragment from a series of bronze tables on which his powers were set out at length.

The famous document set up by Cola di Rienzi in the Basilica of St John Lateran, and now to be seen in the Capitoline Museum, moots questions of the first importance about the nature of the Flavian Principate. Nothing now remains but the end of a text which when complete must have been long, and in what survives there are no more than seven final clauses, with part of an eighth, followed by what describes itself as a ‘sanctio’ giving indemnity to all who in obeying this measure might infringe some other statute or legal enactment. Short as it is, however, this scrap has much to reveal. Despite lapses in grammar and orthography, the impressive lettering can prove that its contents were of more than ephemeral interest: it is not a draft but a statute. Yet its form is ambiguous; for though it is twice described by its own wording as a ‘lex’, all except the final sanctio is phrased in the way appropriate, not to a law, but to a decree of the Senate. Nevertheless, its nature is not in doubt. From the middle of the principate of Augustus popular assemblies at Rome had fallen into rapid decline. Their approval of such proposals as were submitted to them became more and more of a formality, and in this law we have a measure of the length to which the decline had gone by the beginning of the Flavian age. Despite the solemnity of an occasion on which a new princeps was to be made, the formulation of the proposals in the preliminary senatorial decree was allowed to stand unaltered when they were submitted to the People for passage into law.

Though it is clear that the measure was what Rome of those days was content to accept as a lex rogata, in the absence of its most important sections the significance of the enactment as a whole is open to dispute. From the minutes of the Arval Brotherhood, whose activities during the first five months of 69 are known in detail, it appears that at this time the creation of a new Princeps involved repeated reference to the People: on separate occasions they conferred the tribunicia potestas and elected him first to his priesthoods and then to the office of Pontifex Maximus. And, besides these, from some source or other he had to receive the all-important imperium. That this could be legally conferred by either Army or Senate, as Mommsen had supposed, is a view which can no longer be defended since it was demonstrated that of these two the Senate alone was concerned; and it is only slightly less probable that Mommsen was mistaken, too, in maintaining that the imperium was granted by a process in which the People had no part. According to the theory of the Republic it was in the People alone that imperium had its origin; and, if ever this doctrine was respected when the creation of a princeps was in question, it may well have been observed at the accession of Vespasian. For he was the first of a new line, in need of support from every quarter; and that his friends did not despise such help as could be won by deference to the traditions of the constitution is suggested by the emphasis which numismatic records lay on Libertas.

Nevertheless, the various attempts made to prove that the extant clauses come from a measure which in its earlier part conferred on Vespasian one or other of his main constitutional powers cannot be regarded as successful. Any such theory conflicts with Roman practice by which, when an individual was invested with authority by the State, the ways in which he should exercise it were not specified but left to his discretion; and this difficulty is not to be removed by the suggestion that after the death of Vitellius the Senate, by a bold innovation, formulated a detailed definition of the manner in which the princeps might use his rights in order to prevent a repetition of Nero’s final tyranny. The Senate was then in no condition to impose checks on a man who had fought his way to power; and the measure itself, so far from reducing his authority, in fact leaves it almost limitless. At most it may be said that, if either the imperium or the tribunicia potestas was bestowed in the missing sections, the claims of the former might be supported by the nature of the grants set out in the extant part; for two of them at least—the right to conclude treaties (and probably to declare war) and to change the course of the pomerium—cannot be brought into constitutional relation with the tribunician power.

There is, however, much to commend another view, which would see in this law a consolidated grant of miscellaneous rights additional to those which formed the main basis of the Imperial positions. Supplementary powers of this sort had from time to time been given to Augustus; for instance, the clause with which the extant fragment begins—if it is rightly assumed when complete to have authorized Vespasian to declare peace and war as well as to make treaties with whomsoever he would—to some extent repeats a grant which there is good reason to believe that Augustus had formally received. Thus, when the inscription mentions Augustus, Tiberius and Claudius as predecessors who had enjoyed this particular right, it may be agreed that the right had been given them by law. Elsewhere, however, the nature of the precedent is more doubtful. Vespasian is permitted to extend and advance the limits of the pomerium when he shall think it in the interests of the State, as was permitted to Tiberius Claudius Caesar Augustus Germanicus; but it is by no means certain that Claudius had received any express authority to change the pomerium when he did so in AD 49. The surviving evidence would rather suggest that Claudius justified himself by a half-forgotten tradition of the Republic and that, such was his auctoritas, no objection was raised. But, if this is doubtful, it is harder still to believe that Augustus had been explicitly and formally given the constitutional right and power to do all such things as he may deem to serve the interests of the State and the dignity of all things divine and human, public and private; and yet for this too he is adduced as a precedent, together with Tiberius and Claudius. And to these considerations may be added the fact that two of the rights here granted are supported by no precedent at all.

Throughout its history the Principate was in course of development. Gradually its holders increased their powers, not so much by securing formal authorization for acts from which their predecessors had been debarred as by using the opportunities afforded by their prestige quietly to assume new functions, which thereafter were regarded as part of the imperial prerogative. This process had gone far even before the death of Nero, when supremacy suddenly passed to a new and undistinguished family. Until the Flavians had acquired the pre-eminent influence of their predecessors it was, if not necessary, at least desirable that every act of the princeps should be plainly justified by law. Accordingly the past was searched, and precedents were collected in a single act which conferred on Vespasian the right to do both those things to which earlier emperors had been empowered by special enactment and those other things which their auctoritas had allowed them to do without fear of challenge. And finally, to provide for those emergencies in which the princeps might be required to take action of a kind not contemplated even in this exhaustive code, an attempt was perhaps even made to formulate the use to which auctoritas itself had been put. For such may well have been the intention of the remarkable clause which formally empowers Vespasian to take any action of whatever kind which he may deem to be in the general interest.

If such an interpretation is justified, it may well be no mere accident that the only law now partly extant about the prerogatives of the princeps is a law for the benefit of Vespasian. The extinction of the line which traced its descent from Julius Caesar and Augustus produced problems of a kind which had not arisen since the first establishment of the Principate, and it would not be a matter for surprise if one result of the transition to a new regime had been the codification of customs created by the old. In its turn this legal formulation of what in the past had been no more than common practice cannot have been without consequences of its own. To concentrate in Vespasian’s person explicit authority to perform every act for which Augustus, Tiberius or Claudius supplied a precedent by itself was to give him powers greater than any single princeps had exercised before; but the attempt to find a legal substitute for the auctoritas which the upstart lacked went farther and did all that law could do towards turning the Principate into an autocracy. Nevertheless, the Principate survived for more than a hundred and fifty years, and for that reason the effects of the changes made on Vespasian's accession are easy to exaggerate. Henceforward it was not the constitution which stood between Rome and absolutism: as will be seen, however, there were other barriers not wholly ineffective.

IV.

 THE IMPERIAL HOUSE AND THE TRANSMISSION OF THE PRINCIPATE