The Dark Ages Collection. David Hume
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conferred legally on a woman or that she could have borne the title Imperator. It is said, and may possibly be true, that Caligula, when he was ill, designated his favourite sister Drusilla as his successor;20 but this does not prove that she could legally have acted as Princeps. Several Empresses virtually shared the exercise of the Imperial authority, bore themselves as co-regents, and enjoyed more power than male co-regents; but their power was de facto, not de jure. Some were virtually sovrans, but they were acting as regents for minors.21 Not till the end of the eighth century do we find a woman, the Empress Irene, exercising sovranty alone and in her own name.22 This was a constitutional innovation. The experiment was only once repeated,23 and only in exceptional circumstances would it have been tolerated. There was a general feeling against a female reign, both as inexpedient and as a violation of tradition.24 Between the fourth and eighth centuries, however, two circumstances may have combined to make it appear no longer illegal. The Greek official term for Imperator was Autokrator, and in the course of time, when Latin was superseded by Greek, and Imperator fell out of use and memory, Autokrator ceased to have the military associations which were attached to its Latin equivalent, and the constitutional incompatibility of the office with the female sex is no longer apparent. In the second place, female regencies prepared the way for Irene’s audacious step. When a new Emperor was a minor, the regency might be entrusted to his mother or an elder sister, whether acting alone or in conjunction with other regents. Irene was regent for her son before she grasped the sole power for herself.
The title of Augusta was always conferred25 on the wife of the Emperor and the wife of the co-regent, and from the seventh century it was frequently conferred on some or all of the Emperor’s daughters. The reigning Augusta might have great political power. In the sixth century, Justinian and Theodora, and Justin II and Sophia, exercised what was virtually a joint rule, but in neither case did the constitutional position of the Empress differ from that of any other consort.
The diadem was definitely introduced by Constantine,26 and it may be considered the supreme symbol of the autocratic sovranty which replaced the magistracy of the earlier Empire. Hitherto the distinguishing mark of the Emperor’s costume had been the purple cloak of the Imperator; and “to assume the purple” continued to be the common expression for elevation to the throne. The crown was an importation from Persia, and it invested the Roman ruler with the same external dignity as the Persian king. In Persia it was placed on the king’s head by the High Priest of the Magian religion.27 In theory the Imperial crown should be imposed by a representative of those who conferred the sovran authority that it symbolised. And in the fourth century we find the Prefect Sallustius Secundus crowning Valentinian I, in whose election he had taken the most prominent part. But the Emperor seems to have felt some hesitation in receiving the diadem from the hands of a subject, and the selection of one magnate for the office was likely to cause jealousy. Yet a formality was necessary. In the fifth century the difficulty was overcome in an ingenious and tactful way. The duty of coronation was assigned to the Patriarch of Constantinople. In discharging this office the Patriarch was not envied by the secular magnates because he could not be their rival, and his ecclesiastical position relieved the Emperor from all embarrassment in receiving the diadem from a subject. There is, as we shall see, some evidence that this plan was adopted in A.D. 450 at the coronation of Marcian, but it seems certain that his successor Leo was crowned by the Patriarch in A.D. 457. Henceforward this was the regular practice. But it was only the practice. It was the regular and desirable mode of coronation, but was never legally indispensable for the autocrat’s inauguration. The last of the East Roman Emperors, Constantine Palaeologus, was not crowned by the Patriarch; he was crowned by a layman.28 This fact that coronation by the Patriarch was not constitutionally necessary is important. It shows that the Patriarch in performing the ceremony was not representing the Church. It is possible that the idea of committing the office to him was suggested by the Persian coronations by the High Priest. But the significance was not the same. The chief of the Magians acted as representative of the Persian religion, the Patriarch acted as representative of the State. If he had specially represented the Church, his co-operation could never have been dispensed with. The consent of the Church was not formally necessary to the inauguration of a sovran.
This point is further illustrated by the fact that when the Emperor appointed a colleague, the junior Augustus was crowned not by the Patriarch but by the Emperor who created him.29
When Augustus founded the Empire, he derived his Imperial authority from the sovranty of the people; and the essence of this principle was retained throughout the duration not only of the Principate but also of the Monarchy; for the Imperial office remained elective, and the electors had the right of deposing the Emperor. But though these rights were never abrogated, there was a tendency, as time went on, to regard the majesty and power of the monarch as resting on something higher than the will of the people. The suggestion of divinity has constantly been the device of autocrats to strengthen and enhance their power; and modern theories of Divine Right are merely a substitute for the old pagan practice of deifying kings. Augustus attempted to throw a sort of halo round his authority by designating himself officially Divi Filius consecration faded, and disappeared entirely with the fall of the Julio-Claudian dynasty. With Aurelian, who foreshadows the new Monarchy, the suggestion of divinity again appears.30 Diocletian and his colleague Maximian are designated as gods and parents of gods.31 The official deification of the Emperor, which seemed in sight at the beginning of the fourth century, was precluded by Christianity; but the consecration of the ruler’s person was maintained in the epithets sacred and divine; and the Emperors came to regard themselves rather as vicegerents of God than as rulers set up by their people. Justinian, in one of his laws, speaks of the Emperor as sent down by God to be a living law.32 In the ninth century Basil I tells his son, “You received the Empire from God.”33
Under the Monarchy, the Emperor appropriated the full right of direct legislation, which had not belonged to him under the Principate.34 The Princeps possessed the right of initiating laws to be passed by the comitia of the people, but from the time of Tiberius legislation was seldom effected in this way, and after the first century it was exclusively in the hands of the Senate. The Emperor, communicating his instructions in the form of an oratio to the Senate, could have his wishes embodied in senatorial decrees (senatus consulta). But indirectly he possessed virtual powers of legislation by means of edicts and constitutions, which, though technically they were not laws, were for practical purposes equivalent.35 The edict, unlike a law, did not necessarily contain a command; it was properly a public communication made by a magistrate to the people. But the legislative activity of the early Emperors was chiefly exercised in the form of constitutions, a term which in the stricter sense applied to decisions which were only brought to the notice of the persons concerned.36 This term included the Imperial correspondence and especially the mandates, or instructions addressed to officials. These “acts” had full validity, and the magistrates every year swore to observe them.37 But when an act required a dispensation from an existing law, the Imperial constitution was valid only during the lifetime of its author.
The power of dispensing from a law properly belonged to the Senate, and the earlier Emperors sought from the Senate a dispensation when necessary. Domitian began to encroach on this privilege. But the principle remained that the Princeps, who was constitutionally a magistrate, was bound by the laws; and when lawyers of the third century speak of the Princeps as legibus solutus, they refer to laws from which Augustus had formally obtained dispensation by the Senate.38
Under the Monarchy the Emperors assumed full powers of legislation, and their laws took the form occasionally of an oratio to the Senate, but almost always of an edict. The term edict covered all the decisions which were formerly called constitutions, mandates, or rescripts, provided they had a general application.39 And the Emperor not only legislated; he was the sole legislator, and reserved to himself the sole right of interpreting the laws.40 He possessed the dispensing power. But he always considered himself bound by the laws. An edict of A.D. 429 expresses the spirit of reverence for law, as something superior to the throne itself, which always animated