CHAPTER X

VI.

SENATE AND MAGISTRATES

The duties of the Senate whose composition was thus carefully controlled scarcely call for any long examination. As the Principate grew older, the independence of the Senate declined; and, though it remained an important part in the machine of government, its most valuable functions were to focus that educated opinion which was the strongest protection against autocracy and to maintain a supply of persons duly qualified to hold some of the highest posts in the administration. The Empire now owed more to senators than to the Senate. A friendly princeps could coax the Senate into a hesitant self-confidence; but gratitude for the good-will of a Trajan was hardly less potent than the fear inspired by a Domitian in moving it to that ready acceptance of Imperial guidance which sapped its vitality as a deliberative council.

The old forms, indeed, were retained. With Hadrian’s codification of the Edict, senatus consulta, which since Augustan times had been producing ius honorarium, came to be a source of Civil Law itself, even if the true source of its inspiration is revealed both by the reluctance of the Senate to act without the emperor’s advice and by the custom, which appears in Hadrian’s time, of quoting as the law, not the decree of the Senate, but the oratio in which the princeps had submitted the proposal to the House. In matters of the private law this was, indeed, a natural outcome of the increasing control exercised by the legal advisers of the court over the growth of the Ius Civile ­ a control in itself desirable; but the professional jurists who sat on the emperor’s consilium were only a section of these experts in all the varied aspects of government whose services the emperor controlled and whose superior knowledge made any action difficult without reference to the man who was their master and their mouthpiece. And even in matters where no technical issue was involved a diffident Senate was content to leave decisions to the princeps: Pliny’s attack on Publicius Certus produced a memorable debate, but no trial followed because Nerva ignored the whole affair.

Again, though the Senate was nominally responsible for the election of magistrates, the freedom of its choice was somewhat circumscribed. The frequent canvassing which Pliny undertook is evidence enough that in filling junior posts the House still enjoyed a wide discretion; but the consulships, perhaps since the time of Nero, were regularly bestowed, even under the most enlightened regimes, by what was virtually Imperial patronage. Indeed the magistracies themselves were ceasing to be posts of governmental importance and becoming, with some exceptions, mere honors whose only other significance was the qualifications they conferred for service in the Empire. In a letter to Pompeius Falco, Pliny makes it plain that he himself was slightly peculiar in refusing, as tribune, to treat the office as ‘inanis umbra, sine honore nomen’, and despite the extravagances of gratitude expressed by those who became consuls it is not surprising that, when few could hope to hold it longer than two months, the consulship itself was regarded as an irksome distinction. Fronto, in AD 143, “stuck”, as he says, “in Rome and bound by golden bonds”, was not afraid to tell Marcus that he looked forward to his release as eagerly as a Jew to the end of a fast. The consuls, indeed, had a tedious task; for their first business was with the Senate, and the shortness of their office unsuited them for routine of a kind which took time to learn.

Praetors, however, were in better case. It is true that their ancient functions were being curtailed. Hadrian’s concern for the ius honorarium deprived the praetor urbanus of the proud right to shape the ‘viva vox iuris civilis’, and it is probable that the praetor inter cives et peregrinos likewise lost his power of making law. So too the praetors in charge of the iudicia publica were slowly yielding ground to Imperial officials in the administration of criminal justice. Yet the machinery of the iudicia publica which Sulla had constructed was still in active work; and even though cases in increasing numbers were heard elsewhere, in this connection praetors still had their old duties to perform. Moreover, it was to the praetorship that more than one princeps turned when a new task of responsibility needed competent discharge. In AD 70 members of this college are found again in control of the aerarium, as had been the custom from 23 BC to AD 44, though their restoration was brief and praefecti of the type instituted by Nero in AD 56 seem soon to have been re­instated. But at the end of the first century, after Titus had suppressed one of the two praetorships which Claudius had created to deal with cases arising out of fideicommissa, Nerva restored the number of praetors to eighteen by appointing one, who does not indeed seem to have long survived, to take charge of suits between private individuals and the fiscus; and possibly it was when this office became superfluous through the growing activities of the advocates fisci at Rome that Marcus used it to meet the need for a special magistrate to relieve the consuls of the difficult questions about tutela by converting its holder into the praetor tutelaris.

Despite the decay of the magistracies and the strength of Imperial influence on its proceedings, both legislative and electoral, the Senate still retained duties of the first importance, and these it was generally the aim of the princeps to stress. Though they were almost certainly empowered to declare peace and war, the emperors even showed deference to the ancient concern of the Senate with the foreign relations of Rome. Meaningless as the form might be, it doubtless flattered the Fathers’ conceit and strengthened their good-will when Trajan consulted them about Dacian affairs, when Hadrian did the same about Parthia, and Marcus about military arrangements in the East and on the Danube. But the significance of the Senate’s part in government is to be discerned rather in its discharge of the functions with which it had been entrusted when the Principate was first established. One of its cares was the finance of that part of the Empire for which it was immediately responsible, though since the time of Augustus the financial system had undergone a change. Within what was at first a single organization, the finances under Imperial control had grown by the time of Claudius into a separate department, and this—the fiscus—had been made independent of the senatorial aerarium, which in the end it was to absorb. But the time for that did not come until the third century, and throughout the Antonine age the two treasuries existed side by side, as they are revealed by the younger Pliny. The princeps could, indeed, call on resources of the Aerarium Saturni at will, but if he cared for the friendship of the Senate, when its aid was needed he asked it formally to vote supplies, as Marcus did in AD 178; and even Commodus is said so far to have followed his father’s example in this respect as to use trickery instead of force to secure a grant from this quarter. Again, though his maius imperium enabled the emperor to override or ignore the proconsuls in the public provinces, the Senate retained its immediate responsibility for the control of their administration; and even when, under Trajan, the Imperial government began its well-meant efforts to reduce the inefficiency which the Senate was unable to repress, the emperors were still content to represent their interference as exceptional and to act towards the Senate and its officials with the same regard as had been shown by Augustus and Vespasian.

In general, however, it is clear that even under friendly emperors the proceedings of the House were tending towards that banality which in days of oppression was a matter for complaints; and against the loss of its former power the Senate had nothing to set except its increasing activity as a court of justice. The cases of Baebius Massa, Caecilius Classicus, Marius Priscus, Julius Bassus and Varenus Rufus, in all of which the younger Pliny was engaged, are enough to show that not a little business of this sort was provided by the governors of the public provinces; and it was on the occasion of great trials like theirs that the House was more clearly conscious of its own importances than at any other time save when there was a vacancy in the Principate. The judicial functions of the consular-senatorial court were not, however, confined to the hearing of such causes célèbres. The tribunal was competent to take civil as well as criminal cases from regions under its own controls; it exercised a wide discretion in interpreting, and even modifying, the law; and the finality of its decisions, which may have been in doubt during the first century of the Principate, was expressly guaranteed by a constitutio of Hadrian. One claim made for it, though without complete success before the time of Severus, deserves special notice—the claim that it alone should have the right to condemn a senator to death. According to Dio, the demand was refused by Domitian, but Nerva, Trajan and Hadrian are said to have promised that they would refrain from passing such sentences themselves; and Marcus, who is not recorded to have committed himself on this matter, seems to have had difficulty in restraining the Fathers from a bloody revenge on those of their colleagues who had been involved with Avidius Cassius. Mommsen observed with truth that the claim of senators facing capital charges to be tried by their peers was only respected in this period at times when they could be sure of impartial justice in a trial before the emperor himself. As a High Court the Senate was not, indeed, alone; for the court of the emperor was by its side. But the equal partnership of princeps and Senate was nowhere more fully established than in the judicial sphere, and the consular-senatorial court was doing work of value by giving some relief to the princeps in that legal business which, for all its importance, could easily make excessive claims on the time of the emperor.

The decline of the Senate and the steady increase of the emperor’s prestige brought with it a change in the means by which princeps and Senate were kept in contact. In the days when memories of the Republic were fresh Augustus had been cautious in his dealings with the House, and business in fact inspired on the Palatine had only been submitted after consideration by a cabinet which was formally constituted, regularly changed, and chosen, not by Imperial nomination, but by lot.

Such a body might command the respect due to representative members of the Senate itself, and its support was doubtless of value: indeed, in the last year of Augustus’ life it was empowered in a slightly altered form to act in the Senate’s name. But by Tiberius its character was changed, and thenceforward the princeps relied for advice about political affairs on any of his friends whose opinion he valued. Counselors of this kind were certainly drawn from the class of amici augusti, which in the early days of the Empire included that large body of leading citizens who had acquired the right of entry to the daily levee; but in course of time the amicitia principis acquired a narrower sense to describe the relation between the emperor and those for whose personal service or advice he had a special use. Tiberius took with him to Capreae a carefully chosen entourage, and Claudius was accompanied to Britain by at least one comes who held rank of legatus without special duties—an appointment of a kind which soon became more commons. Under the Flavians the amici grew in political importances; in Trajan’s time, if not before, their leisure was secured by exemption from certain public duties; and the historian of Pius speaks as if by the middle of the second century amicus had come to mean an imperial counsellor. Such advisers were of two kinds—those whom the princeps consulted on issues of general policy, and the more technical experts on law who sat in the consilium which, after a history which began with the Principate, was formally constituted by Hadrian; but, though some individuals doubtless served in both capacities, the two bodies were always as distinct as the ends they had to serve, and it is in the former that we may see a link of value between emperor and Senate. Neither of these boards was composed of senators alone: indeed, it was counted for righteousness in Hadrian and Marcus that, when a senator was on trial, equestrian members of the judicial council were excluded. But senators were naturally numerous among those whom the princeps consulted from day to day, and in them, if their advice had been freely taken, he had spokesmen to commend their proposals to the Senate and to remind the House that they had not been framed without reference to that public opinion which senators were peculiarly qualified to express.

VII.

THE DEVELOPMENT OF THE CIVIL SERVICE