The History of Rome: Rise and Fall of the Empire. John Bagnell Bury
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important causes, in which people of high rank were involved, or in which no specific law was applicable, came before it. The Emperor could influence this court in two ways, (1) as he was himself a member of it, and (2) by the right of intercession, which he possessed in virtue of his tribunician power.
Besides the court of the consul, in which the senate acted as jury, there was the court of the Emperor. He could pass judgment without a jury, though he generally called in the aid of assessors, who were called his consilium, a distinct body from the political consilium mentioned above. Every case might come before his court as before that of the senate. But practically he only tried cases of political importance or in which persons of high position were involved.
It lay in the nature of things that in these two new courts only special and important causes were tried. Ordinary processes in Rome and Italy were decided, as in former days, by the ordinary courts of the praetors (quaestiones perpetuae), who still continued to exercise their judicial functions. But senators were now entirely excluded from the bench of indices who appear to have been nominated by the Emperor.
In the provinces justice was administered by the governors, but they had no jurisdiction over Roman citizens, unless it was specially delegated to them by the Emperor. Roman citizens could always appeal from the provincial courts to the higher courts at Rome. The appellatio to the Princeps seems to have been made legal by a measure of 30 B.C.. On the principle of the division of power between senate and Princeps, appeals from the decrees of the governors of senatorial provinces should have been exclusively directed to the senate. But on the strength of his imperium maius the Emperor often received appeals from senatorial as well as from imperial provinces. Appeal could only be made against the sentence of an official to whom judicial power had been delegated, it could not be made directly against a jury; but it could be made against the decree of the magistrate which appointed the jury.
(3) Under Augustus the senate had no voice in the election of magistrates. The Emperor was himself able to control the elections in the comitia in two ways. (1) He had the right to test the qualification of the candidates and conduct the proceedings of the election. This right regularly belonged to the consuls. But when Augustus set aside the consulate for the tribunician power in 23 B.C., it seems that he reserved this right by some special clause. He was thus able to publish a list of candidates, and so “nominate” those whom he wished to be elected. He used only to nominate as many as there were vacancies. (2) He had the right of commendation (commendatio or suffragatio). That is, he could name certain persons as suitable to fill certain offices; and these candidates recommended by the Emperor (candidati principis) were returned as a matter of course. The highest office, however, the consulate was excepted from the right of commendation.
(4) In regard to legislation the senate was theoretically in a better position under the Empire than under the Republic. Originally and strictly it had no power of legislation whatever. The decisions of the senate, embodied in senatesconsulta, did not constitutionally become law until they were approved and passed by an assembly of the people. But practically they came to have legal force. The confirmation of the people came to be a mere form, and sometimes the form was omitted. It is possible that it was omitted in the case of the decree which conferred the Imperium on Augustus.
Under Augustus the senate became a legislative body and in this respect took the place of the assembly of the people. From it and in its name issued the laws which the Emperors wished to enact; just as the laws (leges) proposed by the republican magistrates were made by the people.
The senate alone had the power of passing laws to dispense from the operation of other laws, and the Emperor himself, who was bound by the laws like any other citizen, had to resort to it for this purpose. For example, in 24 B.C. asenatus consultum freed Augustus from the Cincian law which fixed a maximum for donations. The special exception of particular persons from the law which defined a least age for holding the magistracies, was at first a prerogative of the senate, but the Princeps gradually usurped it. To the senate also belonged exclusively the right of decreeing a triumph, of consecrating or condemning the Princeps after death, and of licensing collegia.
The Princeps had no direct right to make laws, more than a consul or a tribune. Like these magistrates, he had by virtue of his tribunician power the right to propose or introduce a law at the comitia, for the people to pass. But this form of initiating legislation was little used, and was entirely given up by the successor of Augustus. It would seem that it did not harmonize with the monarchical essence of the Principate. It placed the Princeps on a level with the other magistrates, and perhaps it recognized too openly the sovereign right of the people, which, in point of fact, the Emperor had usurped. But formally the Princeps had no right to make laws himself, and thus Augustus as Princeps was less powerful than Caesar as triumvir. But the restraint was evaded in several ways, and as a matter of fact the Emperor was the lawgiver. By special enactments he was authorized to grant to both corporations and individuals rights which were properly only conferred by the comitia. It was the Princeps who founded colonies and gave them Roman citizenship. It was he who bestowed upon a subject community the dignity of ius Latinum or a Latin community to full Roman citizenship. It was quite logical that these powers should be transferred to the Princeps, in his capacity of Imperator, as sovereign over the provinces and dispenser of peace and war, and maker of treaties. He also used to define the local statutes for a new colony. He had the right to want Roman citizenship to soldiers at all events, perhaps also to others.
Apart from these leges datae, which were properly comitial laws, the most important mode of imperial legislation was by “constitutions”, which did not require the assistance of either senate or comitia. These imperial measures took the form either of (1) edicts, which as a magistrate the Princeps was specially empowered to issue; or of (2) acta (decreta or epistolae), decisions and regulations of the Emperor which primarily applied only to special cases, but were generalized and adopted as universally binding laws. The validity of the imperial acta was recognized in a special clause of the lex de imperio, and the oath taken by senators and magistrates included a recognition of their validity. But their validity ceased on the death of the Princeps, and this fact illustrates the important constitutional difference between the Principate and monarchy.
The financial system of the state was modified by the division of the government between the Emperor and the senate. There were now two treasuries instead of one. The old aerarium Saturni was retained by the senate. Under the Republic the aerarium was under the charge of the quaestors, but by Augustus the duty was transferred to two praetors, 23 B.C. (praetores aerarii). The Emperor’s treasury was called the fiscus; and from it he had to defray the costs of the provincial administration, the maintenance of the army and fleets, the corn-supply, &c. It is to be observed that provincial territory in the imperial provinces was now regarded as the property, not of the state, but of the Emperor; and therefore the proceeds derived from the land-taxes went into the fiscus. From a strictly legal point of view the fiscus was as much the private property of the Emperor as the personal property which he inherited (patrimonium) or acquired as a private citizen (res privata). But at first the latter was kept apart from the fiscus, which belonged to him in his political capacity. His personal property, however, soon became looked upon, not indeed as fiscal, but as in a certain sense imperial (crown-property, as we should say), and devolving by right on his successor.
The expenses which the aerarium was called upon to defray under the Principate were chiefly (1) public religious worship, (2) public festivals, (3) maintenance of public buildings, (4) occasional erection of new buildings, and (5) construction of public roads in Rome and Italy, to which, however, the fisc also contributed. Indeed it is impossible to distinguish accurately the division between the two treasuries.
In the senatorial provinces the taxes were at first collected on the farming system, which had prevailed under the Republic, but this system was abandoned before long, and finally the collection of the taxes in the senatorial as well as the imperial provinces was conducted by imperial officers. But the tendency was toconsign the duty of collecting the taxes to the communities themselves, and in later times this became the system universally.
In the arrangements for minting money also a division was made by Augustus between Emperor and senate. At first (27 B.C.) both senate and Emperor could issue gold and silver coinage, at the expense of the aerarium and the