Lex de Imperio Vespasiani

Lex de Imperio Vespasiani
Author(s): P. A. Brunt
Source: The Journal of Roman Studies, Vol. 67 (1977), pp. 95-116
Published by: Society for the Promotion of Roman Studies
Stable URL: http://www.jstor.org/stable/299922
Accessed: 24-08-2015 21:04 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content
in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.
For more information about JSTOR, please contact support@jstor.org.
Society for the Promotion of Roman Studies is collaborating with JSTOR to digitize, preserve and extend access to The
Journal of Roman Studies.
http://www.jstor.org
This content downloaded from 193.198.212.4 on Mon, 24 Aug 2015 21:04:19 UTC
All use subject to JSTOR Terms and Conditions
LEX DE IMPERIO VESPASIANI

By P. A. BRUNT
Few Roman documentshave been more discussed than the greatbronze tablet1 which
Cola di Rienzo discovered and erected in the Church of St. John Lateran, and which
preservesthe latterpart of a grant of powers made to Vespasian by senate and people.2
Does it relateto his tribunicianpower or to his imperium,
or does it merelyconferon him
supplementaryrights? Is the granttralaticianin character,or is it specificallydesigned to
enlarge, or to limit,the imperial power of Vespasian? Does it explain the later juristic
doctrinesthatthe emperorcould himselfmake law and was not bound to obey the existing
laws? I shall argue that the documentpreservespart of the senatusconsultum
passed wheni
Vespasian was firstrecognizedat Rome in December 69; thatwith one possible exception
in the finalclause it is tralatician,probablygoingback to A.D. 37 but incorporatingadditional
prerogativesconferredon Claudius and emperorsbetweenClaudius and Vespasian (Part I);
and that it is indeed the basis of the juristic doctrinesmentioned(Part ii). A few remarks
are appended on its relevanceto the politicaltheoryby which imperialautocracycould be
justified(PartIII).
I. 'CUNCTA SOLITA
The words of our document expresslydescribe it as a lex, and its final section is a
sanctio in the enacting imperativesproper to comitial legislation. Yet all the preceding
clauses are in the advisoryformcharacteristicof senatusconsulta,implyingthe senatorial
' censuere ' before' ut ' withthe subjunctive. Since I947 we have had an exact parallelto
this in the Tabula Hebana, a comitial enactmentof A.D. I9-20 (it is explicitlytermed a
rogatio),which is also drafted,so faras extant,in senatorial' ut' clauses.3 The explanation
is simple. Evidently the comitial proceedings were so perfunctorythat it was thought
enough to embody the recommendationsof the senate without change in a lex, which
presumablycontained a suitable enactingpreamble, as well as a sanctiosuch as that preserved in the tablet. The draftsmenof the senatorialdecree did not scruple to referto the
documentas a lex not merelyin the sanctiobut in the finalclause ofthe decree itself(v. 30).
Historians in antiquityseldom cared much about legal forms,4and in recordingthe
accession of a new emperorthey naturallyignore the routine of comitial procedure, and
mentiononly his recognitionby the senate. Of course, as the senate itselfwas oftennot a
freeagent,this too could be a formality.Still it symbolizedsomethingof importance: the
emperoractuallyneeded the co-operationof senatorsto carryon the government,whereas
the comitia,whichhad long since ceased to representthe whole citizenbody,had no effective
role at all: its votes could hardly be said to convey the endorsementof public opinion.
However, the institutionsof the Principate had developed from those of the late
Republic, and it was thereforeproper forthe ' people ' to participatein the creationof an
I CIL VI, 930 = ILS
244. Theories advanced
down to 1956 are reviewed by G. Barbieri,Diz. Ep.
s.v. ' lex ', 750 f., endorsing H. M. Last, CAH xi
(I936), 404 f., and later discussions by B. Grenzheuser, Kaiser und Senat in der Zeit von Nero bis
Nerva (Diss. Muinster,I964), 227 f., cf 70 f.; see also
F. de Martino, St.d. Cost. rom. IV2 (I974), ch. xx
(particularlyforPart ii). The studies most accessible
to the English student, those of Last and M.
Hammond, The Antonine Monarchy (I959) (see
index under lex), are in my view in part erroneous,
thoughtheyavoid the absurditiesof M. A. Levi, Riv.
Fil. LXVI (I938), I f. and Athen.XVI(I938), 85 f., and
his followers. There is much good sense in B. Parsi,
D6signationet investiture
de I'Empereurrom.(I963)the relevant criticisms of J. Bleicken, ZSS LXXXI
(I964), 395 f. seem to be mistaken-and in Grenzheuser. Obiterdicta are countless. L. Homo briefly
suggestedin Les instit.polit. rom.(1970), 26o f., that
a lex in A.D. 37 was the prototype,as I argue here.
The conclusions and most of the arguments propounded below have been anticipatedby individual
scholars,but no full discussion known to me seems
entirelysatisfying.I have not burdened the notes by
arrayingeminenitnames who have taken this side or

that, and have probably failed to express all my
obligations to earlier work, of some of which I am
doubtless unconscious; in general testimony and
argument are to speak for themselves. Oswyn
Murray helped me by criticizingan earlier draft.
Mommsen, StR, is cited from the latest edition,
reprinted
in I952.
2 Rienzo's paraphrase of the tabula, which shows,

e.g. in his confusionof' pomerium'and' pomarium ',
that he did not understandit, has suggested to some
scholars (most recently M. Sordi, St. Volterra ii,
303 f.) that he had before him another tablet,
comprisingthe earlierpartof the law and listingother
imperialprerogatives,convenientlylistedby Karlowa,
Rom. Rechtsgesch.I (i885), 496 f.; but see de
Martino, op. cit. (n. I), 562 f.
3 EY 94 a (vv. 14; I7; 46; 49); 94 b.
4 H. Siber, Das Fiihreramtdes Augustus (I940),
I3 f.; 6I; 67, collected evidence forhistorianssuch
as Dio ignoring the formal part played by comitia
and sometimes by senate in ratifyingdecisions
Augustus took in acquiring or conferringimperial
powers, legislatingand ' appointing' magistrates.
96
P. A. BRUNT
emperor. Accordingto Cicero ' omnis potestates,imperia, curationesab universo populo

Romano proficisciconvenit' (de leg. agr. II, I7). In the Republic it was the people that
had elected the magistratesinvestedwith imperiumand that had conferredimperiumextra
ordinemon persons who held no office,like Pompey in 67 and 66. The Gabinian and
Manilian laws of those years had also allotted to him a large province with additional,
specificprerogatives.Similarly,the people could assign such a provinceto a magistratefor
a termof years. Caesar was consul in 59 when underthe Vatinianlaw he receivedCisalpine
Gaul and Illyricumforfiveyears: he would automaticallygovernthese provinces,retaining
as proconsul,once his year of officehad expired,forthe durationof the term,or
imperium,
indeed tillthe arrivalof a successor(cf. Cic., Fam. I, 9, 25). In theseparticularinstancesthe
priorapproval of the senate had not been obtained,as constitutionalconventiondemanded.
Augustus and his successors could count on the compliance of the senate and affordto be
more correct.
The tribunicianpower was grantedto Augustus forlife ' per legem ' (RG io); we can
assume senatorialconsent. He says that on fiveoccasions he sought and secured fromthe
in the revolutionaryconditionsof
senate a colleague in this power.5 As for his imperium,
43 B.C. he firstobtaineditpropraetorefromthe senatealone, and thenfromthe people under
the Lex Titia constitutingthe triumvirate.6From 3 I to 23 he was continuouslyconsul. No
grant of consular or proconsularimperiumto him in January27 was then necessary or
conceivable. What he must have received was the administrationof certainprovincesand
the command of the armies stationedin them forten years,and it was thisgrantthatwas
laterrenewedforfurtherperiods of fiveor ten years; like Caesar in 59, he initiallyhad the
imperiumrequired in virtueof his consular office,but his provincial command indirectly
and automaticallyensured the continuance of this imperium,whenever he ceased to be
consul. Dio records that the grant in 27 was made by senate and people, i.e. by a lex
and he observesthatAugustusconductedpublic affairswiththe
ratifying
a senatusconsultum,
morezeal, since he had now receivedthegovernmentfromall the Romans (LIII, 12, I; 2I, x).
(Dio had good reason forregardingthe lex de provinciisof 27 as the legal basis forthe new
monarchy,since it placed Augustus in command of the greaterpart of the army.) In 23,
when he ceased to hold the consulship each year, Augustus' ' proconsular' imperium,to
use the termthat came into use in the Principate(n. 7), was made ' maius ' as againstthat
of proconsuls; and he was relievedof the necessityto have it renewedwhen he crossed the
pomerium.8 This may have meantfromthe firstthat he was entitledto use it withinRome
itself,a rightthat is certainlyimplied by the authoritygrantedhim in i9 to have the rods
carriedbeforehim everywhere; and it is evidentthatforcertainpurposes he exercisedhis
in the city,as did his successors.9 It may be thatthe senate alone voted him such
imperium
5 RG 6, 2; similarlythe laudatio Agrippae(EJ 366
- Zeitsch.Pap. Epigr.v (1I970),
21I7
f.and VI (1I970),
f.) distinguishesthe SC under which Agrippa

received tr. pot. from the lex which defined his
imperium. Suet., Aug. 37 says that Augustus coopted his colleagues in tr.pot. So Mommsen StR I,
220;
II, ii6i = DPR 1, 251;
V, 476 must be rightin
holding that the emperorcould co-opt a colleague in
tr. pot., though Augustus sought the consent of the
227
senate(cf.n. I2).
6RG i. Augustus' possession of imperiumfrom

43 B.C. is not veiled from the reader but almost
everywherepatentlyimplicit.
7
Brunt,JRS LI
(I961),
237;
Zeitschr.
Pap. Epigr.
XIII (1974), I65 f. Cicero refers to the consular

imperiumof proconsuls (Flacc. 85; Pis. 38; 55); the
adjective ' proconsulare' is firstattestedin Livy. It
would have been absurd fora consul to be grantedthe
imperiumhe already possessed.
8 Dio LIII, 32, 5, oftenmisconstruedas a grant of
lifelongimperium.
9 Dio LIV, 10, 5, which may mean only that he was
now authorizedto bear in Rome and Italy the insignia
of the imperiumhe could already exercise there; in
any event afteri9q it is inconceivablethat he had the
insignia without the power. For his command and
levying of soldiers see Zeitschr. cited in n. 7. EJ
282 f. illustratehis rightto give commands in Italy.
For his exercise of civil and criminaljurisdiction in

the firstinstance and not only on appeal see W.
Kunkel, ZSS LXXXI (I964),
360 f., reviewing
J. Bleicken, Senatsgerichtu. KCaisergericht
(I962);
Kunkel may well be correctin tracingthis jurisdiction back to his right,grantedin 30 and distinctfrom
51K&ceiv(Dio LI, 19),
tribunician power, ?KKTOS
cf. Dio LII, 33, I (Tat yE'aipa), i.e. to assume jurisdiction on the request of eitherparty; however, could
the right have been fully effective,if its holder
ceased to have the executive power of consular
imperiumwhich in 30 Augustus had as consul?
Suet., Tib. 17, suggests that Tiberius' imperiumwas
alreadyvalid in Rome on Augustus' death, cf. Ann. I,
7, 5. However, possession of consular imperiumdid
not mean that the holder could performfunctions
properto a magisterialoffice,e.g. conductof elections,
cf. B. M. Levick, Historia XVI (I967), 207 f. and
A. E. Astin, Latomus XXVIII (I 969), 863 f. on the
so-called ' nominatio' of emperors; thus Claudius
had to assume a specificconsular function,in order
to preside over games (Dio LX, 23, 4. cf. StR Ii, 136
f. = DPR III, 157). So perhapsin A.D. 14 Tiberius
could only convene the senate ' tribuniciaepotestatis
praescriptione' (Ann. I, 7; Suet., Tib. 23).
97
extensionsof the normalpower of a proconsul,thoughthe silence of our sources is no proof

thatthe people did not formallyendorsethem,and it was certainlythe senate whichgranted
him some supplementaryrights,for instance that of nominatingcuratoresaquarum.10
However, he owed his tribunicianpower,his imperiumand the grantof his provincial and
militarycommandsto the suffragesof the people as well as of the senate.
When Augustus designated coadjutors and future successors, they too received
imperium,though not tribunicianpower, fromthe people. The laudatio Agrippae refers
in any provincehe visited(cf. n. 5).
expresslyto a law which vested Agrippa withimperium
Tiberius must have received similargrantsboth beforehis exile and in A.D. 4, and we are
making
expresslytold of a consularlaw of A.D. I2, which evidentlyenhanced his imperium,
it equal with that of Augustus in all the provinces and armies."1 On Augustus' death he
alreadypossessed in law as well as in realitythe means to controlthe state. There was no
immediate need to pass a lex de imperioon his behalf. Still, his position was not in all
respectsequal to that of Augustus. He had perhaps obtained tribunicianpower only fora
term,whereas Augustus had been grantedit forlife.12 It had perhaps never been granted
him by the people (but cf. n. I2). He must surely have lacked various supplementary
privilegesAugustus had enjoyed,such as the so-called ius primaerelationis(n. 42). He was
not PontifexMaximus (n. 25), and as yet lacked the appellations of Augustus and pater
patriae, as well as thepraenomenimperatoris.13 Moreover,he enjoyedthe powershe already
had by Augustus' favourratherthanin his own right. Tacitus plausiblysays thathe wished
to seem to have been called and chosen by the commonwealthto the succession (Ann. I, 7).
The ' relatio consulum ' (ibid. I3, 4), which must ultimatelyhave been approved by the
senate afterthe prolonged debate in September I4, was surely intended to give him the
same positionas Augustus. By extendinghis tribunicianpower forlife(if this had not been
done previously),by conferringon him various supplementaryrightsthat Augustus alone
had possessed,14by calling him Augustus (n. I3), and by electinghim PontifexMaximus,
senate and people would recognizehim as the new Princeps.15
It may be said that thereis no hint of any lex confirmingwhateverdecrees the senate
passed. Perhaps this is not quite true: Tacitus, in describingwhat he regardsas Tiberius'
hypocriticalhesitationin assuming his role as Princeps, speaks of him as ' triflingwith
senate and plebs' (Ann. I, 46). There is perhaps another argument. Augustus had never
accepted his provincesformorethanlimitedperiodsoffiveor ten years. Tiberius' ' aequum
ius in omnibus provinciisexercitibusque' (n. i i) cannot have been intended to outlast
Augustus' own ' ius '. This was renewedforthe last time in A.D. 14. But in 24 and again
in 34 Tiberius asked forno renewal,thoughthe lapse ofthe decenniumwas on each occasion
thoughtappropriatefor celebrations(Dio LVII, 24, I; LVIII, 24, I, cf. LIII, i6, 3). Yet he
was much too addicted to constitutionalcorrectnessto have dispensed with due authorization. If he did not seek an extension,the explanation must be that it was not required.
Hence, he musthave takenhis provincesin 14 withoutlimitin time. Accordingto Suetonius
(Tib. 24), when he at last ' accepted imperium'-the word here mustsignifythe government
of the empire16-he did so with the reservation,apparentlyrecorded verbatim: ' dum
10 EJ 278 B = Front., Aqu. 104, cf. Dio LIV, 8, 4
(cura viarum). In 211 the senate had authorized a
proconsul to command in the city,having 'par cum
consulibus imperium' (Livy xxvi, 9, io). Cf. the
authoritygranted to Pompey as proconsul in early
he actually received criminal charges (Ascon.
52;
34 C). Tiberius at least was associated with Aug. in
takingthe census of A.D. 14 by a lex. (Suet., Tib. 21).
Some sort of authorization to perform censorial
duties may lie behind Suet., Aug. 27 and Dio LIV, 10,
which cannot be accepted as they stand (cf. RG 6).
EJ 311, III shows that Augustus was empowered by
lex or S.C. to grantcitizenshipand immunity.
"I Vell. II, 121, I; Suet., Tib. 21, i, cf. Zeitschr.
cited in n. 7.
12 Mommsen on RG 6 noted that the last renewal
in A.D. 13 was perhaps for life. As it was still valid
afterAugustus' death (n. 9), it had perhaps thenbeen
confirmedby the comitia,and the text of RG 6 not
revised to take account of this (n. 5).
13 He never took the last two, but coins and

inscriptions(ILS III p. 262) show that Suet., Tib.
26, 2 was wrong in statingthat he used the title of
Augustus only to foreignprinces.
14 Dio LIX, 3, i quoted in n. i8, which is only true
about Gaius if we assume that Dio's 6v6pacra
includes prerogatives as well as mere titles, as
probably does in LIII, i8, 4.
-rrpoallyopfat
15 Contra B. M. Levick, Tiberius the Politician
(1976), ch. v, it seems to me incrediblethat a formal
' relatio' should have vaguely recognized Tiberius'
succession to a ' statio paterna ', a Stoic metaphor
(Brunt, PBSR XLIII (I975), 2I).
16 Oxf. Lat. Dict. s.v., I c, cf. n. 23 and the similar
use of 'imperator' attested by Vitruv. III pr., 4.
Contra Grenzheuser, op. cit. (n. I), 242, this wide
meaning could have developed early,few remembering the Republic (Ann. I, 3, 7), cf. perhaps Vell. II,
I26, 5; 13I, 2.
98
P. A. BRUNT
veniamad id tempus,quo vobis aequum possitvideridare vos aliquam senectutimeae

requiem'. In otherwordshe wouldnot commithimselfto the burdenforany specified
to hope,thathe mightretireearly.It seemsprobablethat
period,buthoped,or pretended
no renewaleverbecame
as a consequenceno limitwas fixedto histenure,andthattherefore
and amendthe
necessary.Butthisin turnimpliesthatanotherlaw was requiredto confirm
law of I2 underwhichhe can onlyhavereceiveda limitedtenure.
Thus it maybe thatas earlyas A.D. I4 senateand people,forthefirsttime,conferred
(in so faras Tiberiusdid notrefusethem)
thetotality
ofimperialpowersand prerogatives
and
confirmed,
on a new ruler; thosewhichhe alreadypossessedwere simultaneously
extendedin time. I shallsuggestlater(p. I09) thatclauseVII ofour documentgoesback
ornotthisbe so,itis plainthatinA.D. 37 Gaiusneededa comprehensive
to A.D. 14. Whether
grantoflegalpowers,sincehe was a privatusat thetimeofTiberius'death. Indeed,ofthe
succeedingemperorsup to theaccessionof Titus,Nero alonehad anysortoflegalpower
to an emperor,
priorto the deathofhis predecessor.
appropriate
yearand in 39 the ArvalBrethren
Tiberiusdied on i6 March 37. In the following
appellatusest]'.17
commemorated
i8 Marchas thedayon whichGaius' a senatuimpera[tor
by the Brethren
we mustassumethatsacrifices
In the lightof thisexplicitformulation
' ob imperium' in otherreignscelebratean emperor'srecognition
bythesenate. We know
also fromtheirActa thatGaius enteredRomeon z8 March; it was doubtlesson thenext
votedhimhis powersin detail: 'ingressoqueurbem,statim
day thatthe senateformally
omniumrerumilli
in curiamturbae... ius arbitriumque
consensusenatuset irrumpentis
permissumest' (Suet., Gaius 14, i). Accordingto Dio, afteran early display of
' Republicanism',in whichhe was carefulnotto assumeanyoftheimperialtitles,he soon
at the sessionof the senate
becamemost' monarchical',takingon one day,presumably
thatAugustushad gradually
Suetoniusdescribes,all thetitles,or rathertheprerogatives,
some of whichTiberiushad neveraccepted.'8Withno precedentto guide
accumulated,
the senatewas slowerthanit was to
themoutsidethelongueursof Tiberius'recognition,
be on all lateroccasionsto do morethanacclaimthenewemperor;tendayspassedbefore
decreedto Gaius theplenitudeofimperialpowers,but at leastit is certainthat
it formally
Gaiusreceivedthemall enbloc,whether
ornotanysimilargranthad beenmadeto Tiberius.
This wasthenormalpracticein Dio's time(LIII, i8, 4, cf.n. 14), and seemsto be attestedon
clause(VI)
everysubsequentoccasion.I shallarguein Partii thattheso-calleddiscretionary
goes backto 37, butnotto I4.
ofour documentin particular
Claudiustoowas a privatuson theeve ofhis accession.Proclaimedbythepraetorians
tookas his dies
on the day of Gaius' assassination,
4I, whichhe apparently
24 January
says
by the senateon the 25th. Dio briefly
imperii(Suet., Cl. ii), he was acknowledged
acceptance
thatthesenatevotedhimall thepowersproperto his supremacy;he deferred
' (LX, I, 4; 3, 2).
ofthetitle' paterpatriae
', somewhat
On Claudius'death(I3 October,54), Nerowas at oncesaluted' imperator
militumsecutapatrum
afternoon,by the praetorians;Tacitus drylyadds: ' sententiam
consulta'(Ann. xii, 69). FromSuetonius(Nero8) we learnthatitwasalreadyeveningwhen
thesessionofthesenateendedat which' immensehonours'wereloadedon him,and that
thetitleof' paterpatriae' (whichhe tooklater).'9Obviously
pleadinghisyouth,he refused
he obtainedat leastthe rightsthatClaudiushad acquiredin 4I or thereafter.
The Arval
See edition by A. Pasoli, Studi e RicercheVII
the relevant extracts are conveniently
printed by E. M. Smallwood, Documentsillustrating
the Principatesof Gaius, Claudius and Nero (I967),
ch. ii and Documentsillustratingthe Principates of
Nerva, Trajan and Hadrian (I966), ch. ii, and by
M. McCrum and A. G. Woodhead, Select Documents
of the Principates of the Flavian Emperors (I96I),
ch. In.
18 Dio LIX, 3, I: 8rloKpa-ruKbrTaorrosEy&p ETvai-r& rp6-ra
17
(I 950);
i
yE povA~jyp&yat -rtpiT-re
-r(v
56gaS,&ca,-rE
pT TCp8pcp -rf
6vop&-rcv T-&V &pXnK<V1Tpocreiaea ri, povapXnKbrTaros
ybvE-ro,(2) c7a-re ir&vTa 6aa 6 AOyOvarTOs iv roao*Tcp -rfiS
&pXis Xp6vcp p6Ats Kai Kmc' ?V &KaaTov ypqpitaevra ot iigaro,
&v gvia 6 Tipiplos o*5' 6Acs wpOa1KArO, iV vtQ hpkpc ?apETv.
In fact Gaius no more than Tiberius assumed the

praenomen imperatoris,and as Dio himself notes
(ibid. 3, 2), it was a little later that he accepted the
titleofpaterpatriae, not attestedon coins or inscriptions before39. It seems thenthatit was not so much
titles as prerogatives,possessed by Augustus but in
some cases rejectedby Tiberius, that Gaius accepted
on 28 March. Contra Bleicken, op. cit. (n. i), the
significanceof Suetonius' ' ius arbitriumqueomnium
rerum' is not exhaustedby referenceto the exclusion
of Tiberius Gemellus fromany share in power.
19 This titleappears on occasional coin issues from
55/6(RIC i, 146 f.), but is only commonlyused after
64/5 (I 56 f.)
99
Acts,lost forthisyear,are fullypreservedfor6 Novemberto I5 December57 and for

12 October58 to i i January
6o, and theyshowthattheBrethren
weresacrificing
annually
the grantof
on I3 October(as againin 66) 'ob imperium'. They thuscommemorated
imperium
to Nerobythesenate. Thereis no mentionofcomitia
imperii.On theotherhand,
they also sacrificedannuallyon 4 December ' ob tribuniciampotestatem'. This was
evidently
the anniversary
ofthe day of Nero's ' comitiatribuniciae
potestatis',whichthe
Acta mentionin connectionwithOtho,Vitelliusand Domitian. Now underRepublican
practicea periodincludingthreemarketdays(trinum
nundinum)
had to elapsebetweenthe
promulgation
of a legislativeproposaland the votingthereon.This has been variously
construedas a minimumintervalof either24 or 17 days;20 whichever
is correct,it could
havebeen amplyobservedon thisoccasion.
Thus primafacieNero receivedimperium
fromthe senateon I3 October,whichwas
neverconfirmed
by the comitia,and tribunician
powerfromthe comitiaon 4 December
undera priorproposalwhoseadoptionbythesenateis notrecorded.Can thisbe correct?
It would certainlyhave infringed
the Republicanprinciplesobservedby Augustusand
Tiberius.2' Some scholarshave therefore
suggestedthatthe comitiaactuallymet on I3
Octoberto ratify
the senate'sgrantof imperium.22 But to say nothingof violationof the
itwouldhavebeensimplyimpossible
thatday: the
trinum
nundinum,
to convenethecomitia
senateitselfdid not breakup till evening. Now it should be notedthatNero already
undera grantof5I, whichhad investedhimwithproconsular
possessedimperium
imperium
outsidethe city(Ann. XII, 41). Hence Nero did not requirea grantof imperiumin its
technicalsense,thoughhe did need its extension,if he was to enjoythe powerof his
predecessors,
whoseimperium
had beenvalidwithinthecityand had beenmaiusthroughout
the empire: he also neededthetotality
ofimperialrights.It mustthensurelybe in this
thesamesense
sense(n. I6) that'imperium' is alreadyemployedby theArvalBrethren,
as in laterofficial
references
to ' diesimperii'.23 This shouldincludethetribunician
power.
Andjust as thesenatevotedall thetitlesand prerogatives
ofan emperorto Nero at once,
called
so we maysupposethatthepeopleratified
theirdecreesatwhatwerestilltraditionally
' (cf.p. ioo).
'comitiatribuniciae
potestatis
Accordingto Plutarch(Galba 7) Icelus broughtnewsto Galba ofhis proclamation
by
thepraetorians,
senateand people. Sincehe reachedCluniafromRomein onlysevendays
afterNero'sdeposition,
thisallusionto thepeoplemustreferto a merepopulardemonstration,not to comitialproceedings.Dio-Xiphilinus(LXIII, 29, i) describesscenesof wild
enthusiasm.He alsospeaksofthepeoplevotingGalba imperialprerogatives.
But Dio does
not usuallymentioncomitialformalities,
and Zonaras(xi, I3) has probablygivena more
accurateaccountofwhathe wrotein statingthatthesenatedecreedto Galba the powers
to an emperor.
appropriate
Othoni
On theverydayofGalba's murder(I 5 January
69) thesenatemet;' decernitur
tribunicia
potestasetnomenAugustietomnesprincipum
honores' (Hist.I, 47).2 That day
' ob imperium
' (thereis a lacunain thetext).
or thenexttheArvalssacrificed,
presumably
They celebratedOtho's consularcomitiaon 26 January,
comitia tribuniciaepotestatison
on
electionto all thepriestly
28 February,
collegeson 5 Marchand to thechiefpontificate
9 March. (The trinum
nundinum
could thushave been observedon all occasionsbut the
A. W. Lintott,CQ xv (I965), 28I f.

It is needless to discuss Mommsen's aberration
in supposing that eithersenate or army could legitimate the imperiumof the Princeps. Ed. Meyer, Hist.
20
21
Zeitschr.
XCI,
417,
thoughtthatno emperorrequired
comitial confirmationfor his powers afterTiberius

had transferredelections from people to senate.
But even after I4 candidates ' destined' by the
senate stillhad to be formallyreturnedby the comitia
(n. 48); nor is a lex conferringpowers on a named
individual the same as an election to a magistracy.
Parsi, op. cit. (n. I), 125 rightlyviews the lex curiata
of the Republic, confirmingthe imperiumof an
already elected magistrate,as irrelevant.
22 e.g. Hammond, op. cit. (n. I), 7.
23
Thus Trajan's dies imperiiwas z8 January 98,
thatof Pius IO July137, thatof Marcus 7 March I6i:
in
see Feriale Duranum, Yale Cl. St. VII (1940);
each case the date is that of ' succession ', and each
had possessed imperiumunder his predecessor(Parsi,
127 f.). Cf. n. i6.
24 Dio-Xiph. LXIV, 8, I says that the senate voted
Otho all that pertained to arche (imperium),Plut.,
Galba 28 that they took an oath to Otho and gave
him the names of Caesar and Augustus; in the Arval
Acta he is 'imperator Otho Caesar Augustus
(Galba too had been 'imperator', Caesar and
Augustus, as coins show; Caesar had become an
imperial name with Claudius, who had no family
claim to it.)
100
P. A. BRUNT
first.) Consulship and priesthoodswere no essentialpartsof the Princeps' position,and the

fact that the comitiamet separatelyto conferthem does not show that ' imperium' in its
wide sense was not grantedalong withtribunicianpower.25
The news of Otho's suicide on I7 April (Jos., By IV, 548) reached Rome on i9 April,
when the senate voted Vitelliusimperium.That date is attestedby the Arval Acts, though
the Brethrendeferredthe appropriatesacrificetill i May; at this time only one of their
number(L. Maecius Postumus) was at Rome; 26 probablya young and inexperiencedman
(he was not suffectconsul until 98), he may well have lacked the prompt decisiveness to
sacrificeas required. Tacitus says that ' in senatu cuncta longis aliorum principatibus
composita statim decernuntur' (Hist. II, 55).27 Again we know from the Arval Acts of
comitiatribuniciaepotestatis,
held withoutregardto the trinumnundinum
as earlyas 30 April;
only part of the record of theirsacrificesfor May and June is extant,and nothingforthe
restof the year,and this is probablywhy we are not informedof othercomitiaforVitellius
like those for Otho.
Nor do theyprovide any particularsof the accession of Vespasian. Unfortunatelyfor
us, fromhis reignthe Brethrenseem to have given up the practiceadopted in Nero's time
of celebratinganniversariesof the grant of imperiumor tribunicianpower. In 8i they
sacrificedon Domitian's accession 'ob imperium' on I4 September (the day afterTitus'
death) and ' ob comitiatribunicia' on 30 September (on one view of the trinumnundinum
the properintervalcould just have been kept), but the completerecordof theirproceedings
for September 87 and 9I shows that anniversarieswere not commemorated. Similarly
Trajan's dies imperii,28 January98 (the record in that year is lost), was not celebratedin
Januaryof the yearsforwhich it survives(ioi, I05 and I I7). Vespasian was recognizedat
Rome in late December 69, and we mightexpecthis ' comitiatribuniciaepotestatis' to have
followedin Januaryor (at latest) February70; in the lightofthe subsequent practiceof the
Arvals, the factthat no anniversaryof the latterevent was celebratedearlyin 78, the only
year of his reignwhen we have theirActa forthe relevantmonths,has no significance.
Vitellius was killed probably on zo or 2I December.28 The magistratesand senators
had scatteredin terror,and the senate could not be convened that veryday (Tacitus, Hist.
III, 86), nor perhaps, in view of the licence allowed to the Flavian troops (xv, i), for some
days thereafter;but it was certainlybefore i January70 (IV, 39) that it met and ' cuncta
principibussolita Vespasiano decernit' (Iv, 3, 3). On the same day it voted thatVespasian
and Titus should be consuls for 70 and that Domitian should be praetor with consular
imperium(3, 4), and it decided to send ambassadors to congratulatethe new emperor; in
this connectionTacitus refersto its decrees ' de imperio', where ' imperium' may properly
be takenin its widestsense (nn. i6 and 23), denotingthe totalityof imperialpowers (6, 3).29
As we have seen, Tacitus had recordedon Otho's accession the vote of the tribunician
power,the nomenAugustiand all the honoursof emperors,and on thatof Vitelliusthe grant
25 Contra Grenzheuser,op. cit.(n. I), 240. Strictly,

Otho acquired imperiumas consul, but since 23 B.C.
the consulate had come to be seen as purely ornamental for the emperor. Otho had to be chosen
pontifexbefore he could become pontifexmaximus;
the electing body (I7 of the 35 tribes) and the
presidingofficer(a pontifex)were not the same as at
the other elections. Augustus' comitia pontificatus
maximi(RG io) were as late as I2 B.C., Tiberius' on
I5 March IS (EJ, p. 47).
26 This tendsto confirmTac., Hist. I, 88. Maecius:
RE XIV, 237.
27 No doubt the senate voted him the names Caesar
and Augustus which both Galba and Otho had had,
but he declined the firsttill almost the end of his
reign,and postponed acceptance of the second (Hist.
I, 62; II, 62; 90; III, 58); hence neitherappears in
the Arval Acta; 'Augustus' figureson some of his
coin issues. Neither he nor Otho (unlike Galba) is
known to have been ' pater patriae ', a titlenormally
offeredbut deferred. Unlike both Galba and Otho,
Vitellius did not assume the praenomenimperatoris

(ILS 243 need not reflecthis wishes), which Nero
had been the firstemperorsinceAugustusto bear,and
only from66; again we must surelysuppose thatthe
senate had voted it to him. His novel titleof 'consul
perpetuus ' (ILS 242 f.) illustrated, according to
Suet., Vit. i i, his disregardforius.
28 M. Hammond, Mem. Amer. Acad. Rome xv
(1938), 33.
29 Dio-Xiph. LxVI,
i, i says that Vespasian was
recognizedas imperatorby the senate, that Titus and
Domitian were called Caesar and that Vespasian and
Titus were designated consuls. The soldiers had
already given Domitian the name of Caesar (Hist.
III, 86); Dio here preservesa decision of the senate
which Tacitus omits. Equally Tacitus does not
expresslysay that Vespasian received the nominaof
clauses VII and VIII-' imperator Caesar Vespasianus Augustus', which he had in fact already
usurped (p. io6).
IOI
of ' cuncta longis aliorumprincipatibuscomposita'. He surelymeans to recordthe vote of

more or less identicaltitles and powers on each occasion, and his new formula-' cuncta
solita '-is chosen merelyforliteraryvariety. It indicates,however,that in Tacitus' view,
each of the prerogativesconferredon Vespasian conformedto precedent. Like Vitellius,
he received the powers that had been accumulated in successive reigns,just as Gaius too
had receivedon one day all those which Augustus had graduallysecured; the formulathat
Tacitus employs for the grant to Vitellius implies that he was also invested with rights
which emperorslaterthan Augustus had been the firstto obtain. We may compare Dio's
statementthatin his own day the appellationsof Caesar, Augustus and paterpatriae, which
had been voted separatelyto earlieremperors,had come to be voted en bloc,and his description of the grantmade to Gaius in 37.
Given the circumstancesof December 69 we can believe Tacitus' statementthat the
powers accorded to Vespasian were all 'solita', though perhaps we should not deny the
possibilitythatminoradjustmentswere made of a kindthathe could regardas ofno political
significance(p. io6). The alternativesare to suppose that the senate sought either to
restrictor to enlargeVespasian's powers. The firstofthese objectiveswould no doubt have
been congenial to Helvidius Priscus, who took an importantpart in other debates of late
December 69.30 But the senate did not dare to assume the independentrole that Helvidius
advocated. Moreover not even Helvidius is recordedas having urged any limitationof the
imperial authority. Ever since January69 the senate had been at the mercy of military
force,31and the conduct of the Flavian soldieryafterthey enteredthe citycould not have
encouraged it to tryto restrictVespasian's legal rights; nor is it conceivable that Tacitus
would have failed to notice such an attempt.
Perhaps it is somewhatmore plausible to imaginethatthe senate was disposed to heap
new powers and honours on Vespasian. His pronunciamentowas surelyless objectionable
thanthatofVitellius: he had risenagainstan usurper,Vitelliusagainsta legitimateemperor.
Accordingto Tacitus the senate and politicallyconscious equites had detested and despised
both Otho and Vitellius; though Otho inspired greaterfear, Vitellius too appeared unworthyof the Principate; it had only seemed certain' deterioremfore qui vicisset'.32 It
is true that Vitellius' briefrule had not been oppressive,and that he had manifestedsomethingof the civilitasthat the higherorders valued in an emperor.33But there had been a
more or less prolonged honeymoonperiod in the reignsof Tiberius, Gaius, Claudius and
Nero, all of whom had, from the senatorial standpoint,degeneratedinto tyrants.34The
power of Vitellius' freedman,Asiaticus,and his admirationforNero augured ill; so did his
personal extravagance; to fillemptycoffers,rapacitycould be predicted.35He had proved
unable to controlhis troops in Italy and Rome.36 The readiness of his formerpartisans,
Caecina and Lucilius Bassus, to betrayhis cause suggeststhat theysensed that he had too
littlesupportto survive. Vespasian's own reputationwas indeed dubious, and in retrospect
Tacitus could say thathe was the firstemperorto change forthe betterafteraccession. Yet
it cannothave been in doubt thathe had alreadyshown more of the qualities required in a
30 On Helvidius see Brunt, PBSR

XLIII (I975),
esp. 28 f. The debate recorded in Hist. IV, 7 f. but
took
at the same
those
of
place
perhaps not
9 f.,
session as the decree de imperio(6, 3). It is perfectly
clear from4, 3 thatHelvidius formallyand no doubt,
given his character,sincerelyapproved of Vespasian's
recognition.
31 Tacitus delineatesthe impotenceand servilityof
the senate with some acerbity,Hist. I, 19; 35; 45;
47;
II, 7I;
87;
IOI;
III, 37;
55.
8I.
32 Hist. I, 50;
II, 31. On Otho see also I, 7I;
It was, none the less, of great value to Otho that in
the provinceshe was believed to have the authorityof
the senate on his side (x, 76; 84); as late as z38 the
senate commanded greatinfluence.
33 Hist. II, gI;
92, 2 f.; Dio LXV, 7. Cf. also n. 27.
His coins celebrateLIBERTAS and CLEMENTIA
(RIC I, p. 224 f.); for clemency cf. Hist. I, 75; II,
6o; 62; III, 59; 75; Dio LXv, 6; Otho too had
shownit (I, 45; 71 ; 88) and forthe same reasons: not

only did it make a good impression,but each could
reckonthathis rivalhad few,ifany,devoted partisans
whom it mightbe prudentto eliminate(cf. Hist. I, 77;
iI, 6o). Suet., Vit. I3 f. presents a very hostile
picture, perhaps from biassed Flavian sources, cf.
also Hist. ii, 63 f.;
III,
38 f.
34Hence Otho's moderation also inspired no
Hist.I,
credence,
7I.
Hist. ii, 62; 94 f. Asiaticus: II, 57; 95. Cf.

Suet., Vit. Io f.; Dio LXV, 2-5; Hist. II, 7I; 95;
Suet., Vit. I I, cf. 4; Dio LXV, 7 (cf. Hist. I, 78 for
Otho). Tacitus allows him some merit only for
', III, 86.
simplicitas'and ' liberalitas
" Hist. II, 56; 6z; 68; 93 f. (Their demoralization is evidentlyexaggerated by Tacitus, following
pro-Flavian writers,cf. Jos., BJ IV, 585 f.; so much
is proved by the courage they displayed, though
leaderless,in the second civil war.)
35
I02
P. A. BRUNT
to his cause ofcitiesin NorthItalyis perhapsa

rulerthanhis rival.37 The earlydefection
municipalaffairs.38
It
clueto thesentiments
ofthebetterclasses,whoofcoursecontrolled
is somewhatless significant
that afterthe battleof Cremonaall and sundryopenlyor
secretlyespousedtheside ofthevictor.39Butthisbehaviourneed notbe ascribedto selfofVitelliuscouldnowrestore
sense. Onlytheelimination
interest
viewedin thenarrowest
peace and order. In December69 the senatewas ' laetus et spei certus', because the
triumphofVespasianwas likelyto end civilwar(IV,3, 3).
by a letterhe wrote' tamquam
Tacitusadds thatitszeal in hisfavourwas augmented
manentebelloscriptae', in which,nonetheless,he spoke' ut princeps'. This lettermust
of coursehave beenwritten
by Vespasianwhenhe was quiteuncertainoftheissueofthe
forwarded
by Mucianuswithhis own despatchto the senate
war,and was presumably
(ibid. 4, I). Both documentsmusthave been read to the senate,if not beforeit voted
' cunctasolita', at anyratebeforea drafting
could throwits decreesintothe
committee
Is it thenpossiblethatVespasian,or
preserved
in ourinscription.40
preciselegalformulae
Mucianuson his behalf,askedforpowersexceedingthosewhichany previousrulerhad
possessed,or thatevenin theabsenceofsucha requestthesenatevotedsuchpowersofits
accordingto
ownvolition?The answeris surely' No'. Vespasian'sownlettercontained,
Tacitus, ' civiliade se et rei publicaeegregia'; givenTacitus' own bias, this seemsto
ofhisauthority.
Bycontrast,
Mucianus'
excludethepossibility
thatitsoughtan enlargement
butapparently
becauseitexaltedhisownservicesto Vespasian;there
despatchgaveoffence,
is not a hintthathe demandednovel powersforthe new ruler. Tacitus castigatesthe
' adulatio' thatthe senatedisplayedto Mucianusand otherFlavianofficers,
and praises
Helvidiusforconfining
himself
to sincerepraiseofVespasian(iv, 4), butthereare noneof
and
we shouldexpectfromhimifthesenate,whosepowerlessness
theironicalcomments
in 69 he is fondofrevealing,
had respondedto Vespasian'sstudiedmoderation
servility
by
honoursand prerogatives.
loadinghimwithunprecedented
We maythenconcludethatin December69 thesenatedid no moreor less thanvote
Vespasianat one strokeall theusual powersof a Princeps,just as it votedsuch powersto
aboutthe
Gaius,Nero,Othoand Vitellius,and,as we mayinferfromTacitus' statement
thatthesepowersincludednotonlythosewhichhad beenbestowed
recognition
ofVitellius,
at one timeor anotheron Augustusbut otherswhichhad firstbeen grantedto one ofhis
thesenatorial
decreeembodied
we canidentify
successors.The questionthenariseswhether
somelatergrant
in our tabulawiththe decreeof December69, or whetherit represents
to transcribe
forreference
enlarging
Vespasian'srights.At thispointit willbe convenient
thesurviving
on details,but some
clauses. It is notmypurposeto commentexhaustively
remarkson the particularprerogatives
will be foundin the notes,wheretheyare not
discussedin thetext.
37 Hist. I, 50.
Though contemptuous of timeservers and traitorswhom pro-Flavian writershad
praised (ii, Ioi; iii, 86, 2), critical of Vespasian's
chief agents (esp. It, 84, 2; 95, 3) and not naturally
biassed to the Flavian house afterhis experience of
Domitian, Tacitus admittedthat Vespasian's victory
benefited the state and that some of his partisans
had had the public welfare at heart, see II, 5, I;
7, 2; cf. Ann. xxi,55. His alleged bad conduct as
proconsul of Africa (It, 97, 2, contraSuet., Vesp. 4)
hardlycounted at Rome; it was perhaps remembered
against him thathe had been a prot6gdof Narcissus,
but he had been inconspicuous between Agrippina's
gainingpower (ibid.) and his appointmentin Judaea,
and such reportsas reached Rome thence may have
at least confirmedhis merits as general. Otho and
Vitellius had both been favouritesof Nero, and both
had been disloyal to Galba.
38 Hist. III, 6 and 8.
39 III, 57 and 59; there was indeed no unanimity
among Italian towns. For the ' primores civitatis'
see Ill, 64. The consular legates in the Balkans at
least evinced little zeal in the Flavian cause (x, 96;
IIl, 4; IO f.; 50), and provincial governorsin the
west did not declare forit untiltheyhad heard of the

victoryat Cremona (II, 97; IlU, 35; 44; IV, 31); still,
the honours that Vespasian was to bestow on
Tampius Flavianus in Pannonia, Aponius Saturninus
in Moesia, Pompeius Silvanus in Dalmatia, C.
Calpetanus Rantius Quirinalis Valerius Festus in
Africa and Vettius Bolanus in Britain shows that he
did not regard any of them as his opponents; for
their careers after 69 see W. Eck, Senatoren von
VespasianbisHadrian (I970); A. B. Bosworth,Athen.
LI (I973), 49 f. Hordeonius Flaccus and his legionary
legates on the Rhine were suspected fromthe firstof
Flavian sympathies (Hist. iv, 13; i9 etc.). The
behaviour of senators in posts outside Italy is some
guide to the sentimentsof the order, hesitantlyand
unenthusiasticallypreferringVespasian.
40On the draftingof senatus consulta after the
senate had been dissolved see Monamsen, StR III,
f. = DPR VII, 202 f. The interval is not
104
recorded; the statement by O'Brien Moore (RE
Suppl. vi, 8oi) that it was usual in the Republic to
draftan SC during or immediatelyafterthe session
is probable, but not warranted by the texts cited
(Plut., Mar. 4; Cic., Cat. iiI, I3).
103
I Lbellum
pacem?]foedusvecumquibusvoletfacereliceat,itautilicuitdivoAug.,Ti. JulioCaesari
Aug.,TiberioqueClaudioCaesariAug. Germanico;41
senatusconsultaper relationem
discesII utiqueei senatumhabere,relationem
facere,remittere,
sionemquefacereliceat,ita utilicuitdivoAug. (et cet.); 42
iussumandatuveeius praeseniteve
eo senatushabebitur,
III utique,cumex voluntateauctoritate
43
ac si e legesenatusedictusessethabereturque;
omniumrerumius perindehabeaturservetur,
IV utique quos magistratum
potestatemimperiumcurationemvecuius rei petentessenatui
eorumcomitis
suamdederitpromiserit,
populoqueRomanocommendaverit,
quibusvesuffragationem
quibusqueextraordinemratiohabeatur;44
V utiqueei finespomeriiproferre
cumex republicacensebitesse,liceat,itautilicuitTi.
promovere,
ClaudioCaesariAug. Germanico(cf.n. 47).
publicarum
VI utiquequaecunqueex usu reipublicaemaiestatedivinarum
privatahum<an>arum,
rumquererumesse eCnsebit,
ei agerefacereius potestasquesit,ita uti divoAug. (et cet.)fuit:
iis
VII utique quibus legibusplebeivescitisscriptumfuit,ne divus Aug. (et cet.) tenerentur,
divum
legibusplebisquescitisimp. CaesarVespasianussolutussit,quaequeex quaquelegerogatione
Aug. (et cet.) facereoportuit,ea omnia imp. Caesari Vespasiano Aug. facerelicCat;
VIII utique quae ante hanc legemrogatamacta gesta decretaimperataab imperatoreCaesare
VespasianoAug. iussu mandatuveeius a quoque sunt,ea perindeiustarataq(ue)sintac si populi
plebisveiussuactaessent.
No precedentsare cited in three of the clauses. In VIII it would indeed have been
hard to drafta formof words to statethat Vespasian's acts priorto the date of the lex were
to be as valid as the acts of Augustus etc. priorto such leges as had formallyconferredlike
powers upon them; and, indeed, seeing that Augustus had possessed a series of legal
powers from43 B.C. onwards,it is doubtfulwhethertherewas ever any momentwhen such
a provision would have been requisite in his case. But clauses III and IV are another
matter. As no precedentis cited, does it not followthatthe rightstheyconveywere novel
forVespasian?
This inferenceis not warranted. The documentmakes no mentionof Gaius, although
there can be no doubt that he had enjoyed the plenitude of Augustus' powers. It must
followfromthis that his memory,thoughnever formallycondemned,had been allowed to
lapse into oblivion.45 But Nero, and his short-livedsuccessors, had been formallycondemned,and it was thereforealtogetherinappropriateto mentionany of them,at least until
his memoryhad been restored.46Hence, no precedentcould be cited in clauses III and IV
41 Strictlythe people alone could make treatiesin
the Republic, but fromthe second centuryB.C. the
senate arrogated the power; magistrates and
promagistratescontinued to require confirmationfor
such pacts as theymade in the field(see Mommsen,
StR iii, 1158 f. DPR VII, 378 f.). The lex Iulia de
repetundisof 59 B.C. (Cic., Pis. 50) and the lex Iulia
mnajestatis,
enacted by Caesar (J. E. Allison and J. D.
Cloud, Latomus xxI (i962), 711 f.), repeating a
provision of the Sullan law (Cic., loc. cit.), forbade
them to make wars without sanction by senate and
people ('iniussu principis' in Dig. XLVIII, 4, 3
representsa later development); hence the charge
againstPrimus (Dio LIV, 3, 2). But Strabo xVII, 3, 25
says that Augustus rroAipou Kal dipivnS Kxa-rq
K*pt0S 81'a piov,and Dio LIII,
17, 5 ascribes these
rightsto all emperors. Our documentoffersconfirmation; ' foedusve' implies a supplement of the kind
printed above. It is true that its historicstatements
could be ill-informed,but thisis at least unlikelyfora
reignso recentas Claudius '. Hence, Dio's statement
(LX, 23, 6) that in 44 the senate confirmedthe pacts
made with Britishpeoples by Claudius and his legati
(the latterwould perhaps not be covered in any grant
to the emperorhimself)should not be taken to mean
that they required such confirmation. Just as
Claudius chose to obtain the senate's agreementto
his adlection of Gauls into the senate, though he
was entitledto admit them on his own authority,so
he may have welcomed endorsementof arrangements
in Britainwhich did not legallyrequire theirconsent.
There is other evidence for emperorsconsultingthe

senate on wars and treaties: they wanted public
approval. See Mommsen, StR II, 954 f. = DPR v,
24I f.
42 Cf.
Dio LIII, 32, 5; LIV, 3, 3 for extensions of

Augustus' tribunicianrightto do business with the
senate; see StR ii, 896 f. == DPR v, I75 f. The
precise technical meaning of the terms 'per relationem discessionemque facere' is controversial,but
not relevantto this article,see StR III, 983. = DPR
VII, 172 f.; Karlowa, R6m. Rechtsgesch.I, 498; B. L.
Cantarelli,Bull. Comm.Arch. III (I89o), I96 f.
43 StR III 9I9 f. -DPR
vii 98 f. assembles the
evidence for restrictionson the senate meeting.
44 See Levick and Astin, cited in n. 9.;
Grenzheuser (n. I), 73 f.
45 Claudius vetoed abolitio memoriae,but Gaius'
name, like thatof Tiberius, was omittedfromthe list
of emperorsnamed in 'oaths and prayers' (Dio LX,
4, 5 f,cf.LIX, 9, i); his acta were graduallyrescinded
(ibid. 4, i correcting Suet., Cl. 14). His name,
however,remainedin the officiallist of emperorswho
made grants of Roman citizenship, as did those of
laterrulerswhose memorywas condemned,Otho and
Vitelliusalone excepted; see JRS LXIII (1973), 86 for
the Tabula Banasitana. It may be inferredthat such
grants remained valid, unlike those recorded by
Tacitus, Hist. I, 78, I; III, 55, 2.
4" Suet., Nero 49; Tac., Hist. IV, 40; cf. last note
for Otho and Vitellius.
104
P. A. BRUNT
on the assumptionthat no predecessorof Vespasian earlierthan Nero possessed the rights

thattheyconveyed. None could have been invokedforclause V, if Claudius had also been
consignedto oblivion. Thus we have at least an alternativeexplanationforthe lack of any
precedentin these clauses. But can this alternativeexplanationbe confirmed?
thereis no actual recordof any specificgrantof the rightsconcernedto
Unfortunately,
any emperorafter54. For that matterthe inscriptionalone tells us that Claudius acquired
a rightto extend the pomeriumwhich, by implication,Augustus and Tiberius had lacked.
From Tacitus and otherwriterswe know only that he did in factextend it, ' auctis populi
Romani finibus', as one of his inscriptionsboasts (ILS 2I3).47 They were not interested
in the grantof formalauthority. Our inscriptionalso implies that no emperorearlierthan
Nero had a legal rightto select magistratesby commendationor suffragatio.48
However, it
is well-knownthat all fromAugustus onwards had backed candidates for office,who were
then in practicebound to be elected (n. 44). Probably it appeared of verylittlesignificance
when this power,which had once derivedfromauctoritas,was given formalvalidityby law.
It is still less surprisingthat there is no record of the prerogativeconveyed in clause III,
which simplyenabled the emperorto set aside technicalobstaclesto the senate meetingand
reachingdecisions. Thus it is not significantthat there is no record that the prerogatives
conveyedto Vespasian in clauses III and IV had been grantedto Nero or to a successor.
However, we cannot confirmthat these particularprerogativeswere in fact ' solita'.
On the other hand, those grantedin the other clauses were certainly,in the views of the
draftsmen,based on grantsmade to earlieremperors. If the senate voted ' cuncta solita ' in
December 69, could it have failed to include these powers, and if it included them then,
what reason was thereto vote them once more at a laterstage? Further,the finalclause, in
validatingVespasian's acta prior to the lex, implies that all his subsequent acta will owe
theirvalidityto the lex; hence it is the lex, and the senatusconsultum
incorporatedtherein,
whichhas givenhim the totalityofimperialauthority; yetthatwas surelyconferredon him
in December 69.49 This argumentis not conclusive againstthe hypothesisthat it was later
feltthatinsufficient
authorityhad been voted to him; a clause thatvalidatedhis earlieracta
could then have been thoughtnecessaryto provide for the contingencythat he had outstepped the powers firstconferredon him; but why on this view repeat grants already
made?
There remainsanotherconsideration. Some scholars continueto assertthat the date
of our document cannot be determined.50But others have rightlyrecognized that it is
almostcertainlydateable veryclose to December 69.51 The omissionof Galba's name surely
shows that the senate's decree was passed before the restorationof his memory. Now
Tacitus recordsthat the senate was convened on i Januaryby Frontinusas praetor; after
certainbusiness had been transacted-among other things Tettius lulianus was deprived
of his praetorshipon the groundthathe had deserteda Flavian legion-Frontinus resigned
in favourof Domitian. We then hear that on the day when Domitian enteredthe senate, a
motion was passed ' eo referente' to restore Galba's memory.52Apparentlyat the same
session Tettius Iulianus was restoredto office,as news had come in that he had actually
fled from Moesia to Vespasian. This certainlyimplies that it was not on i Januarythat
Domitian assumed the presidencyofthe senate,but he would hardlyhave deferreddoing so
beyond its next appointed meeting,which should have been held on 9, or less probably,
I3 January;53 and there is no reason to think that even in this short intervalTettius'
47 Ann. XII, 23;
Gell. XIII, I4. Augustus' silence
in RG shows that he did not extend the pomerium,
cf. Sen., Brev. Vitae I3, 8, fromwhich it probably
followsthat Claudius obtained special authorization,
because he had not fulfilledthe conventional precondition for an extension,' Italico agro adquisito'.
See StR ii, I072 f. = DPR V, 376 f.
48 However, the fact that Nero and his successors
commended all holders of the consulship,at least for
the year 69 (Hist. I, 77, 2; II, 7I), shows only that
theywere carryingthe practicefurtherthan Tiberius
had done at first(Ann. i, 8i), not that they acted in
virtueof a legal rightwhich he had lacked. Clause IV
implies that the imperial candidates like others still
needed the votes of the comitia. Such formalities

survivedin Trajan's time (Pliny,Paneg. 63, I; 92, 3),
and Dio's (LVIII, 20, 4).
49 L. Lesuisse, Rev. Belge XL (i962), 5I f.
50 e.g. Parsi, op. cit. (n. I), I20.
51 e.g. J. Gage, RJRAiv (1952),
290 f. I am not
persuaded by his suggestionthatsome of Vespasian's
coins attesthis respect for Galba's memory. But he
has anticipatedthe argumentin this paragraph.
52 Tac., Hist. IV, 39; 40, I.
-- DPR vii, I04 on
53 Mommsen, StR III, 924
Suet., Aug. 35 (cf. Dio LV, 3), to be correctedfrom
the Calendar of Philocalus (CIL I, p. 374).
105
friendshad not received informationof his movementsand destination.54But since the

and Domitian
senatewas evidentlywarmlyin favourofthe restorationof Galba's memory,55
had himselftaken the initiative,his name must have appeared in any list drawn up thereafterof those emperorswhose rightswere to be the model forVespasian's.
An objectionarises. Suetonius tells us thatthe senate,as soon as it was allowed, voted
thata statueshould be set up to Galba in the forum,but thatVespasian annulledthe decree,
believingthatGalba had sent assassinsfromSpain to take his life.56It could thenbe argued
that Vespasian would not have allowed any mentionof Galba to be made in our senatus
consultum,
or at any ratein the copy publiclyinscribed,perhaps at some later date. On this
view our documentmightindeed have been draftedafterthe restorationof Galba's memory
9 January,but was only enacted, or published, aftersubmission to Vespasian, who could
the
then of course have deleted Galba's name and required otheralterations; alternatively,
enactmentwe have was much later,followingVespasian's returnto Rome, and took into
account his views on Galba fromthe first. However, it must be noted that it refersto
Claudius withoutcalling him ' divus '; this was certainlynot in accord with Vespasian's
settledpolicy; he actuallyrebuiltthe templeto Claudius which Nero had allowed to fallinto
ruins.57Though we do not knowjust when Vespasian began to revivethe cult of Claudius,
it is awkwardto assume that the inscribeddraftof our senatusconsultumbelongs precisely
to a point in time when he had formedan adverse opinion on Galba, which was not known
to Domitian and Mucianus in early January70, and had not yet resolved to venerate
Claudius. It may be said that, if due regard was paid to the trinumnundinum,a lex that
embodied the senatusconsultumof December would have been passed afterthe restoration
of Galba's memory,and that thereforethe senatusconsultumof our inscriptioncannot be
that of December. But it would not have been proper to alter the terms of the senatus
consultum,
northatofthe lex once promulgated,in the intervalbeforeits enactment. On this
antedates9 January.
groundalone it seems to me nearlycertainthatour senatusconsultum
Thus it was passed at just about the time of the decree Tacitus records. Tacitus'
decree comprised ' cuncta solita': in our document precedentsare cited for some of the
powers conferredand theymay well have existedforthe rest; the factthatnot all of them
go back to Augustus correspondsexactlywith Tacitus' account of the grantof powers to
Vitellius and (with one possible exception to be considered below) Vespasian surely
receiveda preciselysimilargrant. Some have supposed thatour documentlistsprerogatives
supplementaryto imperiumand tribunicianpower, but thereis no record anywhereof any
such supplementarygranton the accesssion of an emperor,and thoughclause IV confersa
prerogativepeculiarto the Princeps,and VII in part concernsdispensationsfromlaws such
as could be conferredeven on privatepersons(Part II), clauses II and III can be interpreted
as enlargingthe emperor's tribunicianpower, and I, V and VI are connected with his
imperium.If Vespasian received ' cuncta solita' in December 69, there was no need to
make him a later grantof prerogativeswhich are explicitlyattributedto his predecessors
(I, II, V, VI, VII); furtheranalysisof clauses VI and VII in Part II will show thatthereis
no reasonto thinkthat,contraryto theirexpresslanguage,theyeitherenlargedor restricted
the rightsof Vespasian in comparisonwiththose of earlieremperors. 'Entities should not
be multipliedwithoutnecessity'. Our documentis the text of part of the decree Tacitus
mentions, which granted simultaneouslyimperium,tribunician power and every other
imperial prerogativeto Vespasian. This decree would have been ratifiedat the imperial
' comitiatribuniciaepotestatis', the only comitialmeetingever mentionedat an emperor's
accession. As we shall see (Part II), thejurists,whose language mustsurelybe correct,speak
of a ' lex de imperio'. Hence the ' comitiatribuniciaepotestatis' also conveyedimperium
to him. We can explain this divergencein the descriptionof a single comitial act, if we
54 Tettius' journey to Vespasian was slow (Hist. ii,
85, 2) and he may well not yet have reached the
emperor, but 'cognitus est ad Vespasianum confugisse' does not implythat he had.
55 They also voted ' ut Pisonis quoque memoria
celebraretur'; Tacitus' remark that this proved
' inritum' (IV, 40) shows that,whateverVespasian's
laterattitudeto Galba proved to be (n. 56), he did not
annul the restorationof Galba's memory.
56 Suet., Galba 23, cf. n. 55. Naturally Antonius

Primus, legate of the legion Galba had raised, had
acted on his own initiative in re-erectingGalba's
statues in Italian towns (Hist. III, 7).
5 Suet., Vesp. 9, i. Cf. ' divom Claudium' in lex
Salpensana xxv.
io6
P. A. BRUNT
remember
on theone handthatAugustushad treatedthetribunician
poweras the' summi
fastigii
vocabulum' (Tac., Ann.III, 56)-the practiceoftheArvalBrethren
mayreflect
this
in its old technicalsense,the powerto
conception-andon the otherhandthatimperium
commandarmiesand exercisethehighest
jurisdiction,
was so muchtherealbasisin law of
to denotethetotality
imperialauthority
thatit cameto be employedstillmoreextensively,
oftheemperor'spowers,whatone mightperhapscall his sovereignty
(nn. i6, 23).
It is, however,conceivablethatclauseVIII had neverappearedin anyprevioussenatorialdecreeon an emperor'saccession.It validateshis acta ' antehanclegemrogatam'.
it musthave been originally
If it was tralatician,
intendedto validateimperialacta in the
intervalbetweena new ruler'sassumptionof powerand the comitiallex. No such clause
was requiredin A.D. I4, whenTiberiuswas amplyarmedwithlegalpowerson thedeathof
Augustus,and wouldno doubthavebeencarefulnotto exceedthem. Butofhissuccessors
downto 69, Neroalonehad evenan inadequateshareintheimperialprerogatives
beforehis
havethoughtit necessaryto covereach ofthem
accession.A legalpuristmighttherefore
in the exerciseof imperialauthority
in the briefintervalbetweenthe day when it was
assumedand the comitialproceedings.It maybe observedthatthe firstof these terminin
was until69 the same or almostthe same as thatof recognition
by the senate. Gaius
did notactas Princepsat all beforesuchrecognition;Claudius'positionwas in
apparently
disputeforlessthantwodays; Neroand Othowereeach acknowledged
on theverydayof
to be onlylegateof senateand
the precedingemperor'sdeath; and Galba had purported
at Rome(Suet.,Galba I0, z; ii, i). I cannothelpdoubting
peopleuntilhe was proclaimed
ifanynecessity
was seenforsucha clausebeforethereignofVitellius.
Vitelliuswas proclaimedon the Rhineon 3 January
69 and at Romenottill I9 April.
In the interimhe had been actingas emperor,and his acta duringthisperiodobviously
requiredconfirmation.
If itwas alreadynormalforthe' lex de imperio' to containa clause
likeVIII, originally
to coverthe periodbetweenrecognition
at Romeand comitialenactment,itwouldofcourse(as drafted)
equallyhavecoveredtheperiodofVitellius'usurpation.
in theeaston i July
So too clauseVIII coverstheacta ofVespasiansincehisproclamation
had notintroduced
sucha clauseintothe ' lex de
69. If on theotherhandlegalpedantry
forVitelliuscouldhavebecomeclearat somedateafterhis
imperio' before69,itsnecessity
at Rome,and it is easyto believethat,givenhis outwardrespectforthe law
recognition
(textto nn. 27 and 33), he wishedto havehisacta ratified.This wouldhavebeena technito Tacitus,whoofcoursedoesnotmentionit. Butifthisprovisionhad
calityofno interest
madeforVitellius,itwouldhavebeenevidentfromthestartthatit mustalso
beenrecently
be madeforVespasian,anda precedent
first
createdinthecaseofVitelliusafterhisrecognitionon i9 Aprilwouldhave been followedwithoutdelayat the verytimeof Vespasian's
in December.
recognition
This hypothesis
wouldexplainthefactthat,whereasVitelliuscountedI9 Aprilas his
diesimperii,
Vespasianback-datedhisto i July.Vitellius'diesimperii
had already,we may
ofhis previousacta gavehis
think,been officially
fixed(' statutum
') beforetheratification
positiona retrospective
legitimacy
fromthe momentof his proclamation
by the legions.
ButunderclauseVIII thelegitimacy
ofVespasian'sproclamation
was implicitly
recognized
in his investiture
at Rome.
It has alwaysbeen a puzzlethatVespasiantooki Julyas his diesimperii.Primafacie
it commemorates
the factthathe owed his powerto the troops. Yet it was his gravest
problem,and mostremarkable
achievement,
to restoredisciplinein thearmy;58 forthis
purposetheless he seemedto be thecreature
ofthesoldiers,thebetter.In generalhe was
carefulto showtraditional
respectto thesenate. Of coursehe had neverconcealedfromthe
first
thathe was actingas emperor.He had written
to thesenatebeforeVitellius'death' ut
princeps' (Hist. IV, 3). He had assumedthe styleof ' ImperatorCaesar Vespasianus
Augustus'whichhis soldiershad offered
him (Tac., Hist. II, 8o) and whichthe last two
clausesof our senatusconsultum
accordto him. This is now attestedin a milestonefrom
makesno mentionoftribunician
Judaeadatedto 69. Butthesameinscription
power.59That
58 Suet., Vesp.8, i f., cf. Tac., luist.iI, 82, 2.
59JRS LXVI (1976), 5 f.; the editors note that
Vespasian's coins of 69 also omit the tribunician
title. His firstyear of tr.pot. is attestedin a diploma

ofMarch70 (ILS I989).
I07
most civilian of imperial powers could only be granted at Rome. We now know what
Suetonius had in mind when he says that Vespasian was late in takingit; obviously he
receivedit in December 69, but he had not usurpedit earlier.60But now thathe did assume
it, he back-dated it to I July. The retroactiveclause VIII could be held to mean that he
had reallybeen the legitimatePrinceps fromthe verymomentof his pronunciamento,and
no disrespectfor the constitutionalrightsof senate and people was involved. Officially,
Vitelliuslike Otho had neverbeen a legitimateemperor; even theirbeneficiawere expunged
fromthe record (n. 45).
Perhaps it may be thoughtthatthe factthatno documentsimilarto our tabletsurvives
forany reignbut Vespasian's makes againstthe conclusionthatthe lex we possess is wholly,
or almostwholly,tralatician. It is enough to recall thatnot one of the bronze tabletsset up
at Rome, to which scores of militarydiplomata refer,is still extant.
The datingof our documentin my view excludes any theorywhich presumesthat its
provisions,withthe possible exceptionof the last, had been devised forthe special case of
Vespasian's accession. But'evenifthisis not conceded, even ifit was draftedmuch laterthan
December, it can still not have been intended (as some scholars have argued) to limit
Vespasian's powers by definingthem. Vespasian himselfhad no interestin encouraging
or permittingsuch limitation,and it is an entiremisconceptionofthe characterofthe senate
to suppose that eitherin his reignor at any time since A.D. 4I it was capable of seekingto
of
impose restrictionson the dominance of its masters. Moreover,any such interpretation
of the meaningof clause VI, which by implicationset the
the lex involvesa misconstruction
emperorabove the laws. Even this clause in my view probablygoes back to A.D. 37. This
requiresfurthertreatment.
II.
' Quod principiplacuit ...'
Domitian's are the last comitiatribuniciaepotestatisof which we hear. The literary

sources stillmentionat most the partof the senate in makingan emperorduringthe second
centuryand thereafter.Pliny's vague referenceto the 'senatus populique consensus',
which had confirmedby 'electio' the 'iudicium' of Nerva in designatingTrajan as his
partnerand successor (Paneg. IO, 2), does not necessarilyor probably allude to comitial
proceedings. At the same time the comitiastillmet under Trajan to vote forthe single list
of candidates destinedforthe various magistracies(n. 48). Nerva seems to have passed his
agrarianlaw throughthe comitia.A It is thereforeunlikelythatthe comitialritualwas as yet
neglected in the investitureof a new emperor. Nor can one divine any reason why this
harmlessceremonyshould have been abandoned at any point in the second century. The
factthat both Gaius, writingin the middle of the century,and Ulpian, early in the third
century,base the emperor'squasi-legislativeauthorityon his' lex de imperio' (infra)surely
thatit continued,whateverbe thoughtoftheirexplanationof
providesdecisiveconfirmation
that authority. Gaius, in particular,sharply contrastsa lex or plebiscitumwith a senatus
and regardsthe rightof the emperorto issue rules which ' legis vicem optinent'
consultum,
as more secure than the rightof the senate to do so, just because it is grounded in a ' lex ';
this argumentcould not even have been advanced, if it had become the practice for the
emperorto receive his imperiumfromthe senate alone. Some scholars have indeed maintained thatthe textsof both Gaius and Ulpian have been alteredextensivelyin or beforethe
the interpolatorswould
time ofJustinian.But even ifthisgeneraltheorycan be sustained,62
hardlyhave insertedallusions to an obsolete ' lex de imperio'; theirpurpose would have
been to bringolder legal writingsup to date. Long beforeJustinianthe people had certainly
ceased to take any part, however formal,in the election of a' new emperor.63 Ulpian's
' ac ne tribuniciam quidem
60 Suet., Vesp. I2:
potestatem... patris patriae appellationemnisi sero
recepit'; in the lacuna leftby most MSS, one inserts
'nnec '; some editors read ' aut', and Hirschfeld,
probablyrightly,inserted' statimnec '. There is not
sufficientlyprecise evidence to show whether
emperors from Gaius onwards had taken the same
day as 'dies imperii' and 'dies trib. pot.', see M.
Hammond, op. cit. (n. z8), 23 ff.
"i Dig. XLVII, 21, 3, I, cf. Dio LXVIII 2, I (who

ignoresthe factthattherewas a lex).
characteristically
62 See contra E. Diosdi, Proc. XII Int. Congress
Pap. (I970), I5I53 f.
63A. H. M. Jones, Later Roman Empire (x964) I,
322.
io8
P. A. BRUNT
statementof the matteris merelyfossilizedin the Institutesof Justinian(see n. 73). It may

be said that if that is true for Justinian'swork,it may also be true for Ulpian's (though
to see whyany rulerbeforeUlpian's day should
hardlyforthat of Gaius). But it is difficult
have let the comitialceremonyfallinto disuse; this is much more likelyto have occurredin
or afterthe anarchyof the mid-thirdcentury,when some emperorsnever or seldom visited
Rome, and when Rome ceased in all but name to be the capital of the empire. Dio, a
contemporaryof Ulpian, shows how Augustus received his powers frompeople as well as
senate(p. 96), and remarksthat the authorityof emperorsin his own time derivedfromthe
laws and tradition(LIII, I8, 4); at least he failsto note thatthe formsof popular assenthad
ever falleninto desuetude.
From all thisit does not followthatthe termsof the lex de imperioin the time of Gaius
or Ulpian were exactly the same as those enacted in 69. The jurists, as we have seen,
ascribeto the emperora quasi-legislativeauthority; theyalso assertthathe was not subject
to the laws. Could these imperialprerogativesbe derivedfromthe Vespasianic law, or have
theysome otherorigin,perhaps a change in the lex de imperioitself?
Clause VII of our documentfreesVespasian fromthe obligationto observethose laws
fromwhich his predecessorshad been freed. He was bound (it would seem) by all other
laws. We actually know of particulardispensationsthat Augustus or his successors had
obtainedfromthe senate,whose rightto grantthem,usurped in the late Republic,had been
regulated and implicitlyconfirmedby a Lex Cornelia of 67 B.C. In the early Principate
emperorssometimesobtainedlike dispensationsformembersoftheirfamily.64By contrast,
Domitian and Trajan were already conferringprivilegeson others,which earlieremperors
had soughtfromthe senate, and the emperorwas now regardedas the only authorityfrom
whom theywere to be obtained.65
Ulpian in his commentaryon the Lex Juliaet Papia writes: ' Princeps legibus solutus
est: Augusta autem licet legibus soluta non est, principes tamen eadem illi privilegia
tribuunt,quae ipsi habent'. It has been observedthatUlpian's firststatementneed not have
had a general applicability: he may have been concerned only with the marriagelaws.
However, Justiniancites a pronouncementof Severus and Caracalla that they would not
take inheritancesunderwills in whichthe Princepshad been institutedas heir ' litis causa ',
or which were defectivein otherways, and quotes theirwords: 'licet enim legibus soluti
sumus, attamenlegibus vivamur'. Paul says that it was dishonourablefor an emperorto
undera defectivewill: ' decet enimtantaemaiestatieas servare
takelegacies orfideicommissa
leges, quibus ipse solutusesse videtur.' Severus Alexanderstatesthe same principlehimself:
' ex imperfectotestamentonec imperatoremhereditatemvindicaresaepe constitutumest.
Licet enim lex imperii sollemnibusiuris imperatoremsolverit,nihil tamen tam proprium
thatin his day the Princepswas
imperiiest,ut legibus vivere .66 Dio providesconfirmation
' legibus solutus '; he refersto the Latin formula. He actuallydated this to 24 B.C., when
Augustus on his returnfromSpain wished to give the plebs 400 HS apiece, but awaited the
senate's approval; the senate then 'freed him fromall compulsion of the laws, in order,as
I have stated,that he mightbe in realityindependentand supreme over both himselfand
the laws, and so mightdo everythinghe wished and refrainfromdoing anythinghe did not
avUTOr doubtless means that the emperorwas not to be
wish '.67 (The phrase CaYroKp6c-rcop
bound ' ius dicere ex suis edictis ', as the praetorshad been by Lex Cornelia of 67,68and
thathis judicial decisionsand rescripts,which had become bindingon othercourts,so faras
generallyapplicable (n. 8i), were not to be binding on him,just as the Supreme Court in
64 Asconius 58 c f., cf. Mommsen, StR III, I228 f.
(= DPR VII, 456 f.); ii, 883 f. (= DPR v i6o f.),
esp. 888 (= DPR v, I65 f.), citing Dio LV, 2; 32;
LIX, 15.
Ep. ii, I3, 8; X, 94; Dig.
B5 Martialii, 9I f.; Pliny,
I, 3, 3'. Martial III, 95 and ix, 97 suggeststhatTitus,
perhaps Vespasian, had grantedsuch dispensations.

66 Inst. II, 17, 8; Dig. XXXII, 23; CJ VI, 23, 3.
Neither these textsnor the more limitedformulation
of cl. VII suggestthatthe ' leges ' concernedare only
those affectingthe Princeps in private law (so
Arangio-Ruiz, St. del Diritto Rom.7 (I968), 240 f.);
it is indeed in this connectionthat emperorsprofess
' legibus vivere ', whereas in criminal jurisdiction

theycertainlywere unfetteredby the laws.
67 Dio LIII, i8, I:
UAwvTaty&p 8i rc6v v6o,cov,cbs
aIJTa ra Aariva Ojaccra MEysi, and 28, 2 (I have
quoted the Loeb translation).
68 Ascon. 59 c. The law provided that ' praetores
ex edictis suis perpetuis ius dicerent'. It does not
seem to have applied expresslyto othermagistratesor
promagistrates,but they were doubtless under a
moral obligation to conform (e.g. Cic., Fam. xiii,
56, 3), which may have hardened into a rule under
the Principate.
I9
the U.S.A. and, latterly,our own House of Lords are not bound by theirformerdecisions.)
However, our documentimpliesthatAugustus had no such generaldispensation. In Z4 he
was a candidateforthe consulshipof23 and presumablysoughtrelieffromthelaw of ambitus
which barred him fromdistributingmoney to the whole plebs.69 Dio has evidentlymisconstruedthis reliefas a general dispensation,the more easily because in his own day the
Princeps was ' legibus solutus'.
Must we theninferthatin some laterredactionof the lex de imperioa generaldispensation fromthe laws had been substitutedforthe limiteddispensationwe have in clause VII?
And if so, when was the change probablymade? One mightdoubt ifthe powers grantedto
Domitian at his accessionwould have exceeded thoseofhis father,and the emperorsbetween
Nerva and Commodus are most unlikelyto have soughtand obtained any formalextension
of theirrights. P. de Francisci (see n. 70) conjecturedthat Septimius Severus was the first
to be formally' legibus solutus' withoutqualification. However, it may not be necessary
to assume thatthe clause was everrewritten.Paul saysthatthe emperor' seems ' (' videtur')
to be dispensedfromthe laws (n. 66). That mightmean thatthe principlewas not expressly
statedin, but only deduced from,the ' lex imperii' to which Severus Alexander appealed.
In factthe principlewas not advanced forthe firsttime in the Severan period. ContrastingTrajan with Domitian, Pliny says: 'Quod ego nunc primumaudio, nunc primum
disco, non est " princepssuper leges ", sed " leges super principem" ' (Paneg. 65, i). This
implies not merelythat Domitian had in practiceset the laws at nought(so Pliny held) but
that he had been heard to say, or othershad said on his behalf,that he stood above them.
There would indeed be somethingodd in his dispensingothers fromtheir prescriptions
(as Trajan also did), if he were subject to them himself. Furthermore,under Claudius
Seneca had already written: ' Caesari . . . omnia licent' (ad Polyb. 7, Z); under Nero he
had expatiatedon the absolute authorityof the emperor(de clem.I, i).
Now clause VI of our documentappears to authorizeVespasian to act as he thinksbest
in the public interest. I shall argue thatthis is not onlythe immediatelynaturalinterpretation of the clause but that it is correct. The sanctio also indemnifiesany person for any
action he performs' huius legis ergo '. Clause VI by implicationauthorizesthe emperorto
act at his discretioneven ifthis involvesviolationof existinglaws, and the sanctioexpressly
entitleshis agentsto obey his commandsthoughtheymay be contraryto such laws. Hence
the emperor' legibus solutus esse videtur'. And if this clause goes back to the investiture
at which Gaius received' ius arbitriumqueomniumrerum', it is not surprisingthat Seneca
could avow that ' Caesar can do what he chooses '. In normal practice indeed a good
emperor might prefer' legibus vivere', as emperors claim to do long afterthe Severan
period; 70 it was no doubt in this sense that Trajan let it be understoodthat he would act
on the principle'leges super principem'.
But if this total dispensationfromthe laws could be deduced fromclause VI, as early
as Claudius and Nero, whyappend the morelimiteddispensationof clause VII? That clause
of clause VI Vespasian
is puzzling in anotherway too. On the most limitedinterpretation
was entitledto act in such ways as Augustus had had a rightto act. But clause VII then
adds that he is entitledto do whateverit was proper forAugustus to do under any lex or
rogatio. This provisionappears to be, and is, otiose.71 I conjecturethat clause VII represents part of the enactmentwhich assimilated Tiberius' rightsin A.D. I4 to those which
Augustushad enjoyed,and thatwhen the much wider authoritycomprisedin clause VI was
added, probablyin 37, it was retainedwith characteristicRoman conservatism,though it
had become unnecessary.
69 Mommsen, Strafr.865 f. (= Dr. pin. III, I94 f.);
the prohibitionis assumed, not expresslyattested.
70 P. de Francisci,
BIDR xxxiv (I925), 32I f.,has
collected numerous texts of the fourthcenturyand
later, which state the imperial policy of abiding by
the laws; as he says, such statements are quite
compatiblewith theirhaving the right(to be used in
special circumstances) to disregard them. He also
notes that in Trajan's time Dio Chrysostom had
presenteda model of monarchy as &vuTrreuOuvos
6cpx'
(II, 9 f.; 42 f.; LXII, 3). Justinian (Nov. cv, 4)
actually explains why the emperor is set above the

laws by the conception of the monarch as nomos
empsychos.I doubt if this had much to do with the
development of the principle 'princeps legibus
solutus est' in Roman public law.
71 Augustus of course had in addition such iura as
flowed from his imperiumand tr. pot. as such, and
these could be fortifiedby senatusconsulta,which it
would have been easy to mentionin clause VII. The
ius conferredin clause VI is wider still.
110
P. A. BRUNT
We maynow turnto thejuristicstatementswhichderivethe emperor'squasi-legislative

authorityfromthe lex de imperio.
i. Gaius I, 2: ' Constant autem iura populi Romani ex legibus, plebiscitis,senatusconsultis, constitutionibusprincipum, edictis eorum qui ius edicendi habent, responsis
leges and plebiscita (3), he proceeds (4):
prudentium.' After correctlydifferentiating
' Senatusconsultum est quod senatus iubet atque constituit,idque legis vicem optinet,
quamvis fueritquaesitum. (5) Constitutioprincipisest quod imperatordecreto vel edicto
vel epistula constituit.Nec umquam dubitatumest, quin id legis vicem optineat,cum ipse
imperatorper legem imperiumaccipiat.' He then describesthe magisterialedicta,of which
he mightclearlyhave said, though he does not, that they too ' vicem legis optinent' (6),
and adds thatunder a rescriptof Hadrian the ' responsa prudentium... quibus permissum
est iura condere ' also ' takethe place of law ', iftheyagree; otherwisethe iudexmay follow
his own judgement (7)*
2. Pomponius in his encheiridion
ap. Dig. I, 2, 2, afterreviewingothersources of law,
notably leges and plebiscita,holds that as it became hard to convene popular assemblies,
' coepitsenatusse interponereet quidquid constituissetobservabatur,idque ius appellabatur
senatus consultum' (g); he then refersto the magisterialedicts (Io) and adds that finally
(' novissime') ' constitutoprincipe datum est ei ius, ut quod constituisset,ratum esset'
(iI), withthe effet(I2) that ' quod ipse princeps constituitpro lege servetur'.
3. Ulpian, Dig. I, 4, I pr.: ' Quod principiplacuit legis habet vigorem: utpote cum
lege regia,72quae de imperio eius lata est, populus ei et in eum omne suum imperiumet
potestatemconferat. (I) Quodcumque igiturimperatorper epistulam et subscriptionem
statuitvel cognoscensdecrevitvel de plano interlocutusest vel edicto praecepit,legem esse
constat. (2) Plane ex his quaedam sunt personalesnec ad exemplumtrahuntur; nam quae
princeps alicui ob merita indulsit vel si quam poenam irrogavitvel si cui sine exemplo
subvenit,personam non egreditur.'
4. Justinian,Inst. i, 2, 3 f. followsGaius' enumerationofthe sources of ' scriptumius',
but apartfromverbalchangeshe adopts Pomponius' explanationofthe reasonwhy' aequum
visum est senatum vice populi consuli ' (5),73 and substitutes Ulpian's words (' quod
principiplacuit ' etc.) for Gaius' on imperialconstitutions.
S. More vaguely,Papinian had written(Dig. i, I, 7): 'ius autem civile est, quod ex
legibus, plebis scitis,senatus consultis,decretisprincipum,auctoritateprudentiumvenit'.
Here ' decreta' is evidentlyused genericallyof all imperialconstitutions;74 it can, however,
be contrastedwith ' edicta ' or proclamations(cf. n. 76), or be still more narrowlyconfined
to the emperor'sjudicial decisions,thus excludingboth the ' epistulae ' he wrote in reply
to those who had the status that entitledthem to correspondwith him, and the minutes
('subscriptiones ') thathe appended to petitions(' libelli '), bothofwhich maybe designated
rescripta.75
72 Most scholars thinkthis word is interpolatedin

accordance with later usage (e.g. Cy I, I4, 5, 2 and
IZ, I); Mommsen suggestedthatit mightbe genuine,
reflectingthe effectof Greek usage on a jurist from
Berytus(StR ii, 876, n. 2 = DPR v, I12, n. 2). For
hypercriticalexaminationof all the textsquoted, not
accepted by most scholars, see Kruger, ZSS XLI
i, 89 f.
(1920),
262 f.; Perozzi, St. Bonfante(1930)
Perozzi inter alia objects to the use of the verb
' constituere' in the text of Gaius with referenceto
statutes and senatorial decrees, but perhaps it was
deliberatelyinserted to assimilate them to imperial
'constitutiones'.
73Perhaps Justinian claims that the senate had
takenthe place of thepopulus,in orderto suggestthat
the emperorstillin effectreceiveshis power fromthe
populus throughthe medium of a senatorial decree,
which is as good as a lex.
74 On constitutionssee Jolowicz-Nicholas, Hist.
Introd. to the Study of Roman Law3 (1972), 365 f.
The collection of constitutions down to 234 in
G. Gualandi, LegislazioneImperialee Giurisprudenza
I (I963) does not include those in CJ, for which see
index to Kruger's edition,p. 489 f., nor those known
from non-juristic sources, for which see P. de

Francisci, Anz. Stor. Dir. XII-XIII (I968/9), I f.; he
seeks to explain the facts that fromHadrian (a) the
volume of constitutionsgreatlyincreases and (b) they
seem to have seldom taken the form of edicts.
Constantine was to rule: ' contra ius rescriptanon
valeant, quocumque modo fuerintimpetrata. Quod
enim publica iura perscribunt,magis sequi iudices
debent ' (CTh. I, 2, 2); de Francisci, op. cit. (n. 70),
explains this as referringto rescriptsissued by his
rivals for power. But might it be an abbreviated
disclaimer of the general validityof rescriptswhich
were only intended to conferprivilegesin particular
cases, cf. CJ I, 14, a (A.D. 42o) and nn. 77 and 8i?
75 Imperial mandata are never classed expressly
though they are cited by
among the constitutiones,
jurists at times as evidence of the law; see e.g. Dig.
xxix, I, I pr. for the militarywill; however, in my
view the section of Trajan's mandata quoted merely
circulatesto officialsthe rules made in anotherform,
probably by edict. Mandata as such could hardlybe
regardedas 'takingtheplace ofa lex', as theymusthave
to a single
oftenreferring
been mainlyadministrative,
province,and were sometimessecret(Sen., Ep. 83, I4).
III
The praetorianedict, as stereotypedunder Hadrian, already implies the validity of

senatus consultaand imperial edicts and decreta,placing them on a par with leges and
plebiscita.76The classical jurists continuallycite the constitutionsor rescriptsof emperors
as decidingthe law; Justinianrightlyclaimed that they ' constitutiones,quae ex imperiali
decretoprocesserunt,legis vicem obtinereaperte dilucideque definiunt' (CJ I, I4, I2, I).77
Fronto,in a speech whichearned approvalat least forits stylefromPius, was able to say that
by the judicial decisions (decreta)of the emperor,unlikethose of privateiudices,' exempla
publice valiturain perpetuumsanciuntur'.78 However, it was still proper to distinguish
'constitutiones' from' leges '.79 Gaius assertsonlythatthe former' take the place of law'
and Pomponius that they are to be observed ' pro lege ', while Ulpian allows them ' the
force of law '. It was a much later usage when a constitutio
was described as a lex,80 and
' legem esse constat' in our textof Ulpian can hardlybe verballyauthentic. None the less,
the later usage correspondedto what was the realityeven in the second century.
Ulpian's dictumthat the pleasure of the prince has the forceof law did not of course
mean that his everyutterancehad this effect.They mightbe lacking (as Ulpian notes) in
81 Even edictsmightconcernonlyparticularpersons,82 or particular
the necessarygenerality.
provinces.83On the otherhand constitutionsmightexpresslystate principlesof universal
validity,84or the jurists mightsee in them implicationswhich warrantedwide extension.85
If theywere to be generallyapplicable,theyhad of course to become generallyknown; and
the necessary publicity could be secured particularlythroughtheir incorporationin the
writingsof the jurists or throughtheirinclusionin the mandatathat officialsreceivedfrom
the emperor,appropriateextractsfromwhich they mightpublish.
Many, perhaps most,of the imperialconstitutionscould be regardedas no more than
authoritativeinterpretations
of the existinglaw.87 But otherspatentlycreated entirelynew
rules.88 It was once orthodoxto hold that the latterat least had no validitybeyond the
lifetimeof theirauthors,unless renewed by succeeding emperors. This doctrinehas been
refuted.89Unless an emperor'smemorywas condemned, or his acts rescinded or allowed
to lapse, and sometimeseven then (n. 93), his constitutions,howeverinnovatory,remained
in forceuntil such time as they were abrogated. Thus Paul refersto the abrogationof an
edict of Augustus forbiddingpaterfamiliasto disinheritfiliusfamiliasservingin the army,
and edicts of Trajan and Hadrian had to be repealed by Diocletian and Justinian.90More
often,we hear of constitutionsthatremainedin force.91 Some oftheseissued fromemperors
of the firstcentury. For instance, Claudius and Nero, as well as Trajan, established new
ways in which JunianLatins could obtain citizenship.92(It is to be noted that Nero's rule
76 Dig. II, I4, 7, 7; iII, i, i, 8; iv, 6, i, I; XLIII,
8, 2 pr. Edicts alone are mentionedin XXVIII, 7, 14.
7 But CJ i, 14, 12, 2 (where ' legibus ' refersto
jurists) shows that there had been doubts, perhaps

over the generalityof some constitutions; Justinian
here does not distinguish those which were
'personales' fromthe rest.
78 Fronto, ad M. Caes. i, 6 (Naber, p. 13 f.). Cf.
Pliny,Ep. x, II2,
VI,
3;
Dig. xxxvi,
I, 52
(Hadrian).
e.g. Gaius I, z6; Ulpian, Dig. x, 2, 2 pr.; Paul,

2, 12, 4 and XXII, 3, 5; Gordian, CY x, 46, I.
79
80
e.g. Justinian,
CY I, I4,
Papin., Dig. I, 3,
81 Cf.
12
I:
Pr.
'lex est commune
praeceptum'; Ulp., ibid. 8: 'iura non in singulas

personas sed generaliterconstituuntur'.
82 e.g. FIRA2 I 68, Ii;
71.
83
e.g. FIRA2 i 68, i, in and Iv; Pliny,Ep. x, 65 f.;
79, I.
84
e.g. Dig. XXVI, 4, I, 3 (Pius); in such cases
jurists say that emperors' generaliterrescripserunt',
when theyshould ' in omni loco valere ' (Ulpian, Dig.
XLVII, 12, 3, 5).
86 Thus a rescriptof Pius to the koinonof Asia is
taken to be of universal validity because it is not
expresslylimited to Asia, Dig. xxvii, i, 6, 2. Similarly Trajan's ruling on the treatmentof Christians,
despite the initial reservationin Pliny, Ep. x, 97, I,
seems to have been applied everywhere in later
reigns. Note the dictum of Javolenusunder Trajan,
Dig. I, 4, 3: 'beneficium imperatoris... quam
plenissime interpretaridebemus.' Coll. III 3, 3 (cf.

Gaius I, 52 f.) illustrateshow jurists generalizedfrom
particular imperial decisions. Gualandi (n. 74)
furnishescountless instances in all branches of the
and of the ' ius
law. The validation offideicommissa
codicillorum' under Augustus (Inst. II, 23, I; 25 Pr.)
are early examples of the development of general
rules out of particularcases.
87 e.g. Gaius II, 195 (Pius). It was also constantly
necessaryforemperorsto repeat existingrules of the
law: ' saepe rescriptumest ' is a juristic refrain.
88 e.g. the decretum
of Marcus makinga new rule of
law on the occasion of a particular case in Dig. iv,
7, 7. For 'novum ius' made by
2, 13 = XLVIII,
senatusconsultaand constitutionssee e.g. Gaius, Dig.
V, 3, 3. And note Julian,Dig. I, 3, I I: ' aut interpretatione aut constitutioneoptimi principis'.
89 Orestano, Gli Editti Imperiali, extract from
BIDR XLIV (i937), cf.n. II5.
90Dig. xxviii, z, z6; CY VI, 33, 3; vii, 6, i, I2;
VIII, IO, 5; Inst. III, 7, 4. I would not cite here the
cancellationof some of Gaius' measures by Claudius
(Dio LX, 4, i), since we cannot be sure that these
measures were not senatusconsulta.
I1 Orestano (n. 89) lists them, e.g. edicts of
Augustus in Fr. de iurefisci8; Dig. XLVIII, I8, 8 pr.,
both of universalapplication.
92 Other concessions to Junian Latins were made
by senatus consulta or (under Tiberius) by the lex
Visellia,see Gaius I, 28 f.; Ulpian, Tit. III.
P. A. BRUNT
II2
remained valid, despite his condemnation; it was evidentlyimpracticalto reverseall the

acta of a 'tyrant', and unnecessary,as some mightbe universallyapproved.) 93 Claudius
too amended the Cornelianlaw on will-makingby edict. This is one instanceof a common
practicewherebyRepublican statuteswere broughtup to date. When the classical jurists
summarizethe prescriptionsof such statutes,theyfrequentlyascribeto themrules which in
formor substance representimperialamendments.94It is clear that the quasi-legislative
authorityof the Princeps was held to go back to Augustus (n. 9I) althoughit was far more
extensivelyused, to judge fromour sources, fromthe reignof Hadrian (n. 74).
Gaius shows that the authorityof jurists to develop the law by interpretationalso
rested on imperialfiat. Augustus had begun the practice of selectingjurists who were
authorized' ex auctoritateprincipisrespondere'; 95 it is clearlythesewhom Gaius describes
as persons ' quibus permissumest iura condere', and whose agreementon a point of law
was made decisive by a rescriptof Hadrian.96
It is not always observed that the validityof senatusconsultaas a source of law under
the Principate also derived fromthe emperor's will. In forma senatusconsultumwas no
more than a piece of advice to the magistrates. Thus in the SC Velleianum,probably of
Nero's reign,the senate resolved ' arbitrarisenatumrecteatque ordine facturosad quos de
ea re in iure aditum erit,si dederintoperam, ut in ea re senatus voluntas servetur'.9 In
the Republic tribunes could veto decrees of the senate and deprive them of effect; and
even if they were passed withoutveto, magistratescould on occasion neglect to observe
them. But in the Principateall senatorialdecrees of substance were eitherinitiatedby the
emperoror at least required his sanction; 98 and given his support,neitherveto nor disobedience was practicable. In the same way it was the emperor's authoritythat made it
possible forthe senate to assume jurisdictionover life and death with no regardto the old
ius provocationisor to the Republican statuteswhich had set up courts to try particular
offences,and to deprivethe comitiaof freechoice at electionsby submittingto them a single
list of candidates.
Even in the Republic senatorialdecrees had had greatweight. We have seen that the
senate actuallyusurped the rightto grantprivilegia; in 67 B.C. the tribuneCornelius had to
give up the attemptto deny this and contenthimselfwith regulatingthe procedure. Very
likelyoptimatesargued that senatorialdecrees should be observed like statutes; if so, this
would certainlyhave been contested,and rightly; the veryformof the decrees shows that
the contentionwas incorrect.99Gaius was surelyrightthat it was long questioned whether
they 'took the place of laws', thoughone may doubt if this argumentcontinued,or at any
rate if it had any practical importance,once decrees were passed ' auctore principe'.
Scholars have, on the other hand, taken offenceat Gaius' statementthat the validityof
imperialconstitutionshad never been in doubt. So faras the formof imperialedicts goes,
theywere also sometimescouched in the senatoriallanguage of advice.100 But even if they
issued directcommands and prohibitions,by what rightdid the Princeps act? Gaius' own
answerhas been pronouncedunsatisfactory.Let this be so: it is stillnaive to suppose that
93 For Domitian cf. Pliny,Ep. x, 6o; 66; 72; Dig.
XLVIII, 3, 2, I;
i6, i6. On abolitio memoriaeand
rescissio
actorum
see StR ii, 1129I-33 = DPR v,441 f.
They would not affect senatus consulta passed

' auctoreCaesare '. The condemnationof Domitian's
memoryis implicitin Dio
LXVIII,
i,
and indeedin
Nerva's letterap. Pliny, Ep. X, 58, IO: ' cum rerum

omnium ordinatio,quae prioribus temporibusincohatae consummataesunt,observandasit,tumepistulis
etiam Domitiani standum est '.
94 Dig. XLVIII, 10, 15 pr. Cf. forinstance 8, I, 3-5;
8, 4, 2; 8, 5; 8, II; 8, 14 for extensionsof the law
on murder; otherswere made by SC e.g. 8, 3, 2 f.;
8, 6; 8, II, 2; 8, 13. Cf. n. 41.
5 Dig. I, 2, 2, 49. What this meant at firstis far
fromclear, see de Martino, 492 for bibliography.
"6 Naturally imperial constitutionswere normally
based on juristicadvice; fora clear instancesee Dig.
XXXVII, 14, 17.

9 Dig. XVI, I, 2, i;
desSC Vell.(I957)
date: D. Medicus, Zur. Gesch.
13
98 The SC Calvisianum,which in effectamended

the lex lulia de repetundisand is a veryearlyinstance
of senatorial ' legislation' (4 B.C.), was promoted by
Augustus (FIRA 2 I, 68, v). For imperial sanction
Tac., Ann. III, 52-5; XV, 20-2 are significant.
99 Ascon. 58 C f. For other quasi-legislative
activitiesof the post-Sullan senate see StR III, 1228 f.
-DPR
VII, 458 f. A. Watson, Law Making in the
Later Roman Republic (i974), ch. 2 iS clearly right
that senatus consulta did not possess legal force as
such, but they could be just as effective,if the
magistrateswere disposed to obey and enforcethem,
and Cicero held this to be theirduty (Sest. 139). Cf
Cicero's ideal set of laws in Leg. III, 6; ' (magistratus)
quodcumque senatus crevit, agunto ', and i O:
'(senatus) decreta rata sunto '.
100 e.g. '
placet' in FIRA2 I, 67, cf. 68, I,
III
and
iv, but in III Augustus also says xeMuca,cf. the

language of Claudius, ibid. 7I and Vespasian, ibid. 73.
f.
II3
any jurist or layman would have dared to impugn the validityof imperial orders. 'Nec
umquam dubitatumest '; at least no doubts will ever have been expressed.
Gaius justifies imperial authorityby the words 'cum ipse imperator per legem
imperium accipit'. It has often been objected that Republican magistratesreceived
imperiumfromthe people by election,and some privati like Pompey by statute,but that
this had never been taken to convey to them quasi-legislativepower. But what if Gaius
means ' imperium' to be construednot in its technicalsense but as the totalityof imperial
power grantedto him by 'lex' on his accession (nn. i6, 23)? Certainlythis must be the
meaning of the word in Ulpian's similar statement: the 'populus' did not possess
'imperium' in the narrow sense,10' which belonged to magistratesand promagistrates;
what it could transfer
to the Princeps was its sovereignty,manifestinteralia in the rightto
make laws. Ulpian has in factimprovedon Gaius' drafting,and this may be whyJustinian
preferredto adopt his formulation.
Thus Gaius and Ulpian found the source of the emperor's rightto make law in the
statutepassed at his accession. I would accept the view that theyare referring
to clause VI
of our document. Various objectionshave been offered.
Some thinkthat the verbs ' agere facere' relate only to executive acts of administration.102 But how can the connotationof ' agere ' be narrowerthan that of ' acta ', which in
its application to holders of imperiumin the Republic certainlyincludes their general
rulings? It would be absurd to suppose that the imperial acta, which senators swore to
observe(n. I I4) and which on the death of a tyrantwere sometimesrescinded,excluded the
edicta and decreta.
Otherssuppose thatclause VI merelyauthorizesVespasian to act at his discretionin an
emergency.103One could think of Cicero's doctrinethat for the consuls ' salus populi '
was to be ' supremalex ', and ofthe extraordinary
powerthatthe senate purportedto vestin
magistratesby decreeingin crisesthattheyshould see to it thatthe commonwealthsuffered
no harm.104 But if this was the draftsmen'sintention,they have failed to express it.105
Vespasian is to be entitledto act as he thinksbest in the interest(' ex usu ') not only of the
state but of privateindividuals. The phrase ' ex usu ' may remindus that ' utilitas', both
public and private,was sometimesadduced to justifyinnovationsin the law,106and also of
the allusion to privateinterestsin Tiberius' avowal thatit was his duty' servireet universis
civibus saepe et plerumque etiam singulis' (Suet., Tib. 29); most imperial constitutions
were in fact concernedwith the protectionof privaterightsand interests.
But can its scope be limitedby the phrase ' ita uti divo Augusto (et ceteris)fuit'? Here
there may seem to be an ambiguity. Were the draftsmenfirstconferringa power on
Vespasian, and then claiming,whethertrulyor falsely,that the same power had belonged
to Augustus, Tiberius and Claudius? Or were they conferringon Vespasian only such
power as those emperorshad legallypossessed? In the firstcase the referenceto Augustus
etc. is merelyhistorical,but in the second it is part of the very definitionof Vespasian's
rights. In clause III at least the intentionof the words ' ita uti licuit . . .' must surelybe of
the second kind. In virtueofthe tribunicianpower an emperorhad the rightto summonthe
senate and lay business beforeit, leading to a senatusconsultum.There was thereforeno
101StR I, 22 = DPR I 24. I do not, however,
agree with Mommsen that where 'imperium' is
used of thepopulus,it eitherhas a geographicalsense
or is ' politicalspeculation '; it is simply' dominion '
or 'sovereignty' over subject peoples (Oxf. Latin
Dict. s.v., 5), though the usage is not indeed
'technical' as when applied to a magistrate.
102 e.g. Arangio-Ruiz(n. 66). For ' acta ' cf. StR II,
906 = DPR v i86; Cic., Dom. 40 illustrates the
equation of a magistrate'sacta with ' quae egisset'.
The ' acta' of Bassus in Bithyniacertainlyincluded
judicial decisions (Plin. Ep. x, 56, 4). Hence in cl.
VIII of our document ' acta gesta decreta imperata'
is unnecessarily full, cf. the pleonasms in cl. IT.
'Facere ': cf. Ann. IV, 37.
103 So de Martino, 502 and othershe cites.
104 Cic., Leg. III, 8; Phil. XI, 27; Sall., Cat. 29 etc.
105 One might rather think of senatus consulta
which had inviteda magistrateto take such and such

action ' si ei e republica fideque sua videretur' (e.g.
FIRA2
132).
106 The phrasingof the clause is odd. Strictly' ex

usu ' relates only to ' reipublicae ' and ' maiestate'
to all that follows. But 'maiestate', while more
appropriate than ' usu ' to things divine, and well
suited to things public, is nonsense for things
private; ' ex usu ' was surelystillin the minds of the
draftsmen.See Heumann-Seckel,Handlexikonzu den
Quellendes ram.Rechts9, s.v. 'utilis', 'utilitas', fora
common motivin explainingthe originof legal rules,
esp. innovations,e.g. Ulp., Dig. I, 4, 2: ' in rebus novis
constituendisevidens esse utilitasdebet, ut recedatur
ab eo iure, quod diu aequum visum est '. The
I novum ius ' that emperors made could be so
justified.
II4
P. A. BRUNT
necessityto grant this rightspecificallyin addition to the tribunicianpower itself,and

more mustbe intended: the clause vestsin Vespasian the enlargedrightsof doing business
to Augustus'
withthe senate whichhad been voted to Augustus (n. 42), simplyby referring
rights. Clause VII is an even more obvious example of the way in which Vespasian's rights
are defined by referenceto those of Augustus. However, Clause VII itself empowers
Vespasian to exerciseall the powers which laws had vested in Augustus; somethingmore
must be designedin VI. And thatis to be foundin the word ' censebit'. It is at Vespasian's
discretion
to do what he thinksbest, and it is added in the words ' ita uti. . .' that Augustus
had had a like discretion; the addition cannot limitVespasian's.
If Vespasian was freeto do what he thoughtbest, he was an autocratwhose power was
theoreticallyrestrictedonly by his own judgement. (In practice,of course, any autocrat
had to bear in mindwhathis subjectswould tolerate.) The draftsmenallege that Augustus,
Tiberius and Claudius had not merelyenjoyed power no less absolute but thattheyhad the
same legal authority(ius). This historicalstatementis not to be believed. Overtassumption
of the rightto act as he pleased would have been incompatiblewith Augustus' scrupulous
care to offendRepublican susceptibilitiesas littleas was consonant with his retentionof
controlover the state; he could get his way withoutit. His refusalof the dictatorshipand
of the 'cura legum et morum summa potestate', both offeredby senate and people,
illustratehis caution. It is clear thatthis ' cura ' would have enabled him to legislate,since
he adds that he took the measures the senate thoughtnecessary ' per tribuniciampotestatem', thatis by initiatingcomitiallegislation.'07 Dio, who loves to recordand sometimes
to exaggeratethe powers voted to Augustus, mentionsno grant of a rightto do what he
deemed best forpublic and privateinterests.108
But whateversuccess withcontemporariesAugustus' Republican moderationachieved,
he appeared as the founder of a monarchy to Dio (LIII, 17), Suetonius (Aug. 28)
and Tacitus 109 and, still earlier,to Seneca."10 Tacitus indeed makes out that this was
recognizedin A.D. 14, and by Augustus' apologists."' It cannot then be supposed that by
citingthe precedentof Augustus the draftsmenwere hoping to suggestthatthe power of a
new emperorwould be restrained,as that of Augustus had been; it is relevant,for that
matter,that Claudius too is cited, and he was detested for furtherencroachmentson the
authorityof the old Republican organs of government."12
We may indeed ask how the draftsmencame to impute to Augustus a discretionary
authoritywhich in strict law he had never possessed. It is apparent that they were
scrupulous elsewherenot to ascribe to previous emperorsspecificprerogativesfor which
there was no precise warrant. Augustus, Tiberius and Claudius had all commended
candidatesto magistracies,who were inevitablyreturned. But theyhad evidentlyprevailed
'auctoritate '; if, as seems probable, the prerogativewas firstformallygrantedto Nero, it
was withinthe recollectionof the draftsmenthat no earlier emperorhad possessed it in
law. On the otherhand, theyalso knew or believed thatAugustus had done much thatwas
or tribunician
at least not normallydone by a man merelyin virtueof proconsularimperium
power, and they thoughtit proper to grantto a new emperorthe formalrightto act as
Augustus had acted.
of the discretionaryclause that he
It was the undoubted meritof Last's interpretation
saw thatitgave legalsanctionto theactivityofan emperorin matterswhereAugustushad been
able to operatefreelywithoutsuch sanction,merelyin virtueof his pre-eminentauctoritas.
He noted that accordingto Suetonius Vespasian at his accession was deficientin maiestas
and auctoritas,and he supposed thatthe clause was tailor-madeforVespasian. Suetonius,
however,adds that Vespasian's reputed miraclesin Egypt supplied the deficiency; be this
107 RG
5 f. For Augustus' ' Republicanism'
(which comes out in his own designation of his
position as 'princeps ' and reference to other
notables as 'principes ', RG IX, i) see Velleius ii,
89, 3 f.
108 Contra Herzog, Gesch. u. System der rJm.
Verfassungii, I5i, nothing in Dio LIV, 10 (I9 B.C.)
can be relevant; consular power did not give the
holder such discretionas cl. VI, and Dio's account of
the cura morumis wrong.
109 Hist. I, I; Ann. I, I, I; 2, 2; 3, I; 4, i etc.

110 e.g. Benef.VI, 32, cf. II, 20, wherehe argues that
libertyand the Republic were irretrievablylost by

44 B.C.
11 Ann. I,
9, 4: 'non aliud discordantis patriae

remediumfuisse quam ut ab uno regeretur'. Ovid's
'res est publica Caesar' (Tr. IV, 4, x5) shows that
contemporariescould have been so clearsighted.
112 Ann. xi,
5, i (cf. forAug. I, 2, I); xiii, 4.
I15
rightor wrong (and one might doubt if they impressed Romans as much as Egyptians,
'dedita superstitionibusgens '), he knows nothingof a grantof extra legal power."3 No
ancient writerdoes. Last's thesis fails, if our document comprises the grant of ' cuncta
solita '. Nor was Vespasian the firstemperorto lack the auctoritasof Augustus,or even of
Tiberius, whose personal services to the state made him indisputablythe firstcitizen on
Augustus' death. On accession Gaius, Claudius and Nero each possessed onlythatprestige
whichaccrued to themas membersofthe imperialdynasty; none had any personalachievementsto show, and theircapacityto rule could be doubted. If it was ever feltthat lack of
auctoritaswas a ground forvestinga new rulerwith compensatinig
legal power,thatfeeling
could have existedin A.D. 37. But it is not in the least necessaryto suppose thatat any time
there was a conscious intent to ' institutionalize' auctoritas,or supply its absence by
additionalpotestas. The popular enthusiasmthat accompanied Gaius' accession and the
in themselvesto explain the confermentof legal
servilityof the senate would be sufficient
power more sweeping than that which Augustus had obtained, and whichTiberius would
certainlyhave rejected. It is truethatclause VI legalizes autocracy,but afterthe oppression
of Tiberius' lateryears,no matterwherethe responsibilitylies forthe development,no one
could be in doubt thatthe Princeps could be as autocraticas he chose, and the best course
mighthave seemed to be thatof winningthe good-willof the new Princepsby an unlimited
expressionof confidencein his wisdom and benevolence. Nothingforbidsus to date clause
VI to A.D. 37.114
No doubt on this interpretation
clause VI made everyotherclause in the lex logically
redundant,and whereasit may seem naturalthatspecificpowers vested in emperorsbefore
the date at whichthe discretionaryclause was firstembodied in the ' lex de imperio' should
have been repeated,however unnecessary,one mightask why additional specificprerogatives were insertedlater,e.g. clauses III, IV and (if the discretionaryclause goes back to
37) V. We may recall,however,thatthe generalprohibitionin repetundaelegislationagainst
the enrichmentof officials(except as specificallysanctioned) was not thoughtto make it
unnecessaryto set out with increasingprecisionthe principalmodes of illegal enrichment
forwhich chargeswould lie. Similarlyan emperorcould still be specificallyauthorizedto
exercisehis discretionin certainways. These authorizationswere of politicalvalue to him
in that they conveyed,or purportedto convey,public approval for his takingactions of a
given kind.
The hypothesisthat the prototypeof our document dates to 37 may explain why the
name of Tiberius appears in it, though he was not among the divi. Althoughthere were
hostile demonstrationsagainst his memoryon his death (Suet., Tib. 75) and his will was
immediatelyset aside (idem., Gaius I4; Dio LIX, I, 2), and althoughfrom38 the senate
ceased to swear observance of his acta (Dio LIX, 9, i), Gaius initiallyprofessedto honour
him (Suet., Gaius I5; Dio LVIII, 28, 5; LIX, 3, 7); his name could then not have been
omittedfroma ' lex de imperio' passed in 37; it would have been naturalifit had thenbeen
transcribedin each successive act of investiture.
Clause VI is in itselfsufficient
justificationforthe juristic doctrinesthat the emperor
was ' legibus solutus ' and that his constitutions' took the place of lex '. None of his
actionscould be questioned,so long as he was emperor,even thoughtheymightbe contrary
to existinglaws. Clause VIII also suggeststhe kind of formulathat could have been used
when the senate swore to observethe acta of a past emperor.115Together these provisions
explain why imperial constitutionsmade law and why unlike, for instance,the edicts of
"' Suet., Vesp. 7, 2; Tac., Hist. iv, 8i. The
Flavian quasi-monopoly of the ordinaryconsulship,
and the absurd numberof theirimperatorialacclamations,no doubt reflectVespasian's desire to compensate forhis ' novitas'.
114
Dio XLVII, I8, 3; LVII, 8, 4; LIX, 9, I; LX, I0, I.
115 For magisterialedicts see StR i, 634 f. = DPR
II 306 f. Orestano, op. cit. (n. 89), was rightthatthis
limitationcame not to apply to imperial edicts (nor
constitutionsin general),but the explanationis surely
not thattheywere not magisterialin principle(as he
thinks) but that given above. Orestano maintains
thatmagisterialedictsonly announced rulesby which
the magistratewould be guided in exercisinghis own

powers,whereas emperorsprescribedrules forothers
to follow. But rules of the first kind indirectly
determinedthe proper conduct of the citizens, and
not all magisterialedicts consistentlyconformedto
Orestano's model. Cf. the aedilician edict, esp. 5 f.
(FIRA 2 I, p. 390 f.), and occasional formulaein the
praetorian edict like ' ne quid in loco publico vel
itinere fiat' (ibid. 377); also Cic., Quinct. 84 with
his paraphrase, 89. See also for instance Cic., Verr.
II, 3, 36; Qu. fr. I, i, 26; Fam. III, 8, 3 f.; Livy
XLIII, 14, 5. f.; FIRA2
XXXIX,14, 7 f.; XLI, 9, 9-I2;
I, no. 52-4.
ii6
magistrates,they remained valid after their authors had ceased to hold office.116The
confirmation
of an emperor'sacta by oaths providedan additionalsanction.
On the views here advanced, no such clause justified legislation by Augustus or
Tiberius. However,the oath taken by senatorsto observethe acta of Augustus would have
given posthumousvalidityto any legislativechanges he made; duringhis own life-timewe
can assume thatno one venturedto challengethem. The attitudeof Tiberius, who avowed
thathe respectedall Augustus' deeds and words ' vice legis ', musthave reinforcedthe oath,
but perhapsit can also be connectedwithit. Tiberius, at least in the earlypart of his reign,
was scrupulous in observing constitutionalforms,and this strong statement,which he
made in the senate, was only unobjectionableif the senate was bound by oath to regard
Augustus' acta as ' perindeiusta rataque ac si populi plebisve iussu acta essent '.117 In any
case the long lapse oftime in whichAugustus' acta were enforced,duringhis own reignand
that of Tiberius, would have tended to give them the sanctionof custom.118Tiberius' acta
were not confirmedin the same way, and in factare hardlyever cited later. But, as we have
seen, even when the acta of an emperorwere allowed to lapse or actuallyrescinded,this did
not mean in practicethat those rules he had made which were acceptable were treatedas
altogetherdevoid of authority:they might stand on their merits and on the force of
custom; the verylengthof time forwhich Nero and Domitian ruled was relevant.
III.
Emperor and Res Publica
'Deo auctorenostrumgubernantesimperium,quod nobis a caelestimaiestatetraditum

est': these are the openingwords ofthe constitutionin whichJustinianexplainshis project
of compilingthe Digest. He is emperorby the grace of God. It would be easy to trace this
conceptof monarchyback to Hellenisticphilosophy(cf. n. 70), and to point out its influence
in the adulatory language of Roman poets and panegyrists(e.g. Sen., Clem. I, i) or in
imperialpropaganda. Yet at the same time therepersistedthe concept of the state as ' res
publica ',119which,as Cicero rightlyheld (Rep. I, 39), was equivalent to 'res populi', the
property,affairsand interestsof its citizens. In the second centuryJulian,in discussingthe
validityof custom,can write: ' inveterataconsuetudo pro lege non immeritocustoditur,et
hoc est ius quod diciturmoribusconstitutum; nam, cum ipsae leges nulla alia ex causa nos
teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto
populus probavit, tenebunt omnes.' Similarly statutes can fall into desuetude 'tacito
consensu omnium'. This doctrinewas reconciled by jurists with the absolute power of
the emperorby referenceto the ' lex de imperio'. Even in the late empirethe emperorwas
in principleelective,just as the kingshad been, and at his electionthe people, or eventually
the senate as its representative,invested him with all its own sovereignty. Magisterial
imperiumhad always had a discretionaryelement, but in the Republic the right of its
holdershad been limitednot only by the moral obligationto act ' e republica fideque sua '
(n. I05) but by the equal powers of othermagistrates,and by the prospectthaton demitting
officetheymightbe broughtto account. The emperorhad no equals, and he could only be
broughtto account by assassinationor insurrection. Still, his powers had theirlineage in
Republican precedents,not in Hellenistic practice or theory. King Ptolemy was himself
the state: Imperator Caesar was the representativeof the respublica. His authoritywas
unlimited,but he was supposed to exerciseit ' ex usu reipublicae'. In theoryat least he was
not irresponsible;he could be condemned,ifhe misbehavedand had been overthrown.How
much difference
theserefineddistinctionsmade tothewelfareofhissubjectsis anothermatter.
BrasenoseCollege,Oxford
116 Ann. IV, 37. The substantialauthenticity
of this
speech is guaranteed by its incompatibilitywith
Tacitus' comments (38, 5). Cf. generally Syme
Tacitus (1958), 700 f.
"I" For custom making law see Watson, op. cit.
(n. 99), ch. I3; Jolowicz-Nicholas,op. cit. (n. 74),
353 f. upholdingDig. I, 3, 3I as genuine. (It is surely
wrong to say that 'the Romans do not invoke the
idea of custom ' in constitutionallaw, see e.g. Cic.,
Sest. I37; Rep. III, 41. Dio LIII, i8, 4 rightlybased

the position of the Princeps on custom. Like Great
Britain,Rome never had a writtenconstitution,and
any distinction between ' constitutional' and
'customary' is unsound.)
118 Justinian says: 'statum rei publicae sustentamus ' (Deo Auct. i).
119 Dig. I, 3, 31 (n. II7).

Lex de Imperio Vespasiani

Încărcat de

Informații document

Descriere originală:

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Lex de Imperio Vespasiani

Încărcat de

Drepturi de autor:

Formate disponibile

Lex de Imperio Vespasiani

LEX DE IMPERIO VESPASIANI

arrayingeminenitnames who have taken this side or

2 Rienzo's paraphrase of the tabula, which shows,

emperor. Accordingto Cicero ' omnis potestates,imperia, curationesab universo populo

- Zeitsch.Pap. Epigr.v (1I970),

f.) distinguishesthe SC under which Agrippa

6RG i. Augustus' possession of imperiumfrom

XIII (1974), I65 f. Cicero refers to the consular

282 f. illustratehis rightto give commands in Italy.

For his exercise of civil and criminaljurisdiction in

LEX DE IMPERIO VESPASIANI

extensionsof the normalpower of a proconsul,thoughthe silence of our sources is no proof

13 He never took the last two, but coins and

veniamad id tempus,quo vobis aequum possitvideridare vos aliquam senectutimeae

In fact Gaius no more than Tiberius assumed the

LEX DE IMPERIO VESPASIANI

Acts,lost forthisyear,are fullypreservedfor6 Novemberto I5 December57 and for

A. W. Lintott,CQ xv (I965), 28I f.

comitial confirmationfor his powers afterTiberius

first.) Consulship and priesthoodswere no essentialpartsof the Princeps' position,and the

25 Contra Grenzheuser,op. cit.(n. I), 240. Strictly,

Vitellius did not assume the praenomenimperatoris

LEX DE IMPERIO VESPASIANI

of ' cuncta longis aliorumprincipatibuscomposita'. He surelymeans to recordthe vote of

30 On Helvidius see Brunt, PBSR

shownit (I, 45; 71 ; 88) and forthe same reasons: not

also Hist. ii, 63 f.;

34Hence Otho's moderation also inspired no

Hist. ii, 62; 94 f. Asiaticus: II, 57; 95. Cf.

to his cause ofcitiesin NorthItalyis perhapsa

west did not declare forit untiltheyhad heard of the

LEX DE IMPERIO VESPASIANI

There is other evidence for emperorsconsultingthe

Dio LIII, 32, 5; LIV, 3, 3 for extensions of

on the assumptionthat no predecessorof Vespasian earlierthan Nero possessed the rights

needed the votes of the comitia. Such formalities

LEX DE IMPERIO VESPASIANI

friendshad not received informationof his movementsand destination.54But since the

56 Suet., Galba 23, cf. n. 55. Naturally Antonius

title. His firstyear of tr.pot. is attestedin a diploma

LEX DE IMPERIO VESPASIANI

' Quod principiplacuit ...'

Domitian's are the last comitiatribuniciaepotestatisof which we hear. The literary

"i Dig. XLVII, 21, 3, I, cf. Dio LXVIII 2, I (who

statementof the matteris merelyfossilizedin the Institutesof Justinian(see n. 73). It may

perhaps Vespasian, had grantedsuch dispensations.

' legibus vivere ', whereas in criminal jurisdiction

LEX DE IMPERIO VESPASIANI

actually explains why the emperor is set above the

We maynow turnto thejuristicstatementswhichderivethe emperor'squasi-legislative

72 Most scholars thinkthis word is interpolatedin

from non-juristic sources, for which see P. de

LEX DE IMPERIO VESPASIANI

The praetorianedict, as stereotypedunder Hadrian, already implies the validity of

jurists) shows that there had been doubts, perhaps

e.g. Gaius I, z6; Ulpian, Dig. x, 2, 2 pr.; Paul,

praeceptum'; Ulp., ibid. 8: 'iura non in singulas

plenissime interpretaridebemus.' Coll. III 3, 3 (cf.

remained valid, despite his condemnation; it was evidentlyimpracticalto reverseall the

They would not affect senatus consulta passed

memoryis implicitin Dio