Helleins, Fred, B. , R. 
 Lex De Imperio Vespasian!
 
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 LEX I)E IMPERIO VESPA8IAKL 
 
 BY FRED B. R. HELLEMS 
 
 PBOKHS80R OF LATIN IN THE UNIVERSITY OF COLORADO 
 
 CHICAGO 
 SCOTT, FORESMAN AND COMPANY 
 
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 PARIS: H. LE SOUDIER
 
 Classical philology 
 
 H W JOHNSTON, Ph.D.. 
 
 .:iiiTY or 
 
 BT De Imperio Vespasianl. By FRED B. R. HSLMMS. 
 Doctor of Philosophy of the University of Chicago ; 
 Professor of I^tin in the University of Colorado, 50c. 
 
 L\' PRESS 
 
 Contraction in the Case Forms of the Latin -to and 
 
 8, and idem. By EDOAE H<- 
 Doctor of Philosophy of the 
 
 ;aatructor in Latin in the 
 
 Indiana Univi-- 
 
 The (lenitive of Value in Lat 
 
 r of Philosophy of 
 
 .versity; Instructor in Latin in the Uuive 
 of Cliicago 

 
 LEX DE IMPERIO VESPASIANI 
 
 A CONSIDERATION OF SOME OF THE CON- 
 STITUTIONAL ASPECTS OF THE 
 PEINCIPATE AT ROME 
 
 A THESIS 
 
 SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL 
 OF ARTS AND LITERATURE OF 
 
 THE UNIVERSITY OF CHICAGO 
 FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 
 
 BY 
 
 y>-\ 
 FRED B:-' WHELLEMS 
 
 SOMETIME FELLOW OF UNIVERSITY COLLEGE, TORONTO; SOMETIME FELLOW OF 
 THE UNIVERSITY OF CHICAGO 
 
 CHICAGO 
 
 SCOTT, FORESMAN AND COMPANY 
 1902
 
 COPYRIGHT, 1902, BY 
 SCOTT, PORESMAN AND COMPANY 
 
 TYPOGRAPHY BY 
 If AKSH, AITKKN A CURTIS COMPANY
 
 LEX DE IMPERIO YESPASIANI 
 
 The so-called Lex de Imperio is inscribed on a large bronze 
 tablet now in the Capitoline museum at Kome. Of its history 
 nothing definite 1 is known until the fourteenth century, when it 
 was set up by Cola di Bienzi 8 in the wall of St. John Lateran. 
 Thence it was transferred to the Capitol in 1576 by Gregory 
 XIII, and its present home was assigned it by Clement XII. 3 
 
 The text* may be found in convenient form in C. . I. L. VI, 
 930; Eushforth, Latin Historical Inscriptions, 70; Brans 
 Fontes luris Romani, p. 128; Orelli-Henzen, I, p. 567; Wil- 
 manns, 917. 
 
 I 
 
 foedusve cum quibus volet facere liceat, ita uti licuit divo 
 Aug(usto), | Ti(berio) Inlio Caesari Aug(usto) Tiberioque 
 Claudio Caesari Aug(usto) Germanico; 
 
 1 For a discussion of the question whether the inscription was known to the 
 scholars of the 12th century, see Cantarelli, La Lex de Imperio Vespasiani, Bulletino 
 comunale, 1890, 202 seq. 
 
 4 The record of this and also of the use made of the document by the archaeol- 
 ogiziug revolutionary is found in a passage of the contemporary Vita Anonyma 
 (Mur. Antiq. Ital. vol. Ill, 405, or Vita scritta da incerto autore nel secolo XIV, 
 ed. Re, 26 seq.) and a letter of Rienzi himself, written in 1350 (Epistolario di Cola 
 di Rienzo, ed. a cura di A. Gabrielli, 105). According to this evidence and I see 
 no adequate reason for distrusting it when one keeps in mind the political situation 
 of the day the inscription had been concealed by Boniface VIII, and was brought 
 to light by Rienzi. It was then used by him in a " bello sermone vulgare" delivered 
 in St. John Lateran before he entered upon his tribunate in 1347. Apparently he 
 interpreted the terms of the Lex to the people, emphasizing the fact that the 
 emperor received his investiture of power from the people. Cf. Cantarelli, 1. c., 
 194 seq. and 205 seq. 
 
 3 Henzen's description under C.I.L. VI, 930, where is also given an exhaustive 
 list of references for the earlier literature on the Lex. Rein, under Lex Regia in 
 Pauly's Encyclopadie, and Cramer, Vespasian, published at Jena, 1785, also have 
 many references. 
 
 4 There have been no doubts as to the genuineness of the inscription since the 
 appearance of Gravina's De Ortu et Progressu luris Civilis in 1758. 
 
 3 
 
 History of 
 the inscrip- 
 tion. 
 
 Convenient 
 references 
 for the text. 
 
 Of making 
 treaties 
 
 Ricnzt and the 
 inscription.
 
 LEX DE IMPERIO VESPASIANI 
 
 Of convoking 
 ordinary 
 meeting* of 
 the senate 
 and proceed- 
 ing therein. 
 
 Of commen- 
 dation of 
 candidates. 
 
 Qf extending 
 the pomerium. 
 
 Of doing what- 
 ever he Khali 
 think in. .in to 
 primate the 
 welfare of the 
 state, etc. 
 
 Of exemption 
 from certain 
 tawn and 
 plebiscites. 
 
 Ratification of 
 previous acts. 
 
 II. utique ei senatum habere, relationem facere, remittere, 
 senatus | consults per relationem discessionemque facere 
 liceat, | ita uti licuit divo Aug (usto), Ti(berio) lulio Caesari 
 Ang(usto), Ti(berio) Claudio Caesari [ Augusto Germanico; 
 
 III. utique, cum ex voluntate auctoritateve iussu mandatuve 
 eius | praesenteve eo senatus habebitur, omnium rerum ius 
 perinde | habeatur, servetur, ac si e lege senatus edictus esset 
 habereturqne; 
 
 IV. utiqne, quos magistratum, potestatem, imperium 
 curationemve | cuius rei petentes senatui populoque Romano 
 commendaverit, | quibusque suffragationem suam dederit, 
 promiserit, eorum | comitis quibusque extra ordinem ratio 
 habeatur ; 
 
 V. utique ei fines pomerii proferre, promovere, cum ex 
 re publica | censebit esse, liceat, ita uti licuit Ti(berio) Claudio 
 Caesari Aug(usto) | Germanico; 
 
 VI. utique, quaecunque ex usu rei publicae, maiestate 
 divinarum, | huma[na]rum, publicarum privatarumque rerum 
 esse e (sic) \ censebit, ei agere, facere ius potestasque sit, ita uti 
 divo Aug(usto), | Tiberioque lulio Caesari Aug (usto) Tiberioque 
 Claudio Caesari | Aug (usto) Germanico fuit; 
 
 VII. utique, quibus legibus plebeive scitis scriptum fuit ne 
 divus Aug(ustus), | Tiberiusve lulius Caesar Aug(ustus) 
 Tiberiusque Claudius Caesar Aug(ustus) | Germanicus teneren- 
 tur, iis legibus plebisque scitis Imp(erator) 1 Caesar | Vespasianus 
 solutus sit, quaeque ex quaque lege, rogatione | divum 
 Aug(ustum), Tiberiumve lulium Caesarem Aug(ustum) 
 Tiberiumve | Claudium Caesarem Aug(ustum) Germanicum 
 facere oportuit, | ea omnia Imp(eratori) Caesari Vespasiano 
 Aug (usto) facere liceat; 
 
 VIII. utique, quae ante hanc legem rogatam acta, gesta, | 
 decreta, imperata ab Imperatore Caesare Vespasiano Aug- 
 (usto), | iussu mandatuve eius a quoque sunt, ea perinde 
 iusta rataq(ue) | sint, ac si populi plebisve iussu acta essent. 
 
 th 
 
 is e Law ty " f P^bisve scita, 
 
 SANCTIO 
 
 huiusce legis ergo adversus leges, rogationes, 
 senatusve consnlta fecit, f ecerit, sive, quod eum 
 
 1 The transcription should be Imperator rather than imperator. The use of 
 Imperator in relation to Vespasian will come up for discussion later. See 23. 
 
 4
 
 LEX DE IMPERIO VESPASIANI 5 
 
 ex lege, rogatione, | plebisve scito, s(enatus)ve c(onsulto) facere 
 oportebit, non fecerit huius legis | ergo, id ei ne fraud! esto, 
 neve quit ob earn rem populo dare debeto, | neve cui de ea re 
 actio neve iudicatio esto, neve quis de ea re apud | [sje 1 agi 
 sinito. 
 
 The following translation is given without comment; the Translation 
 points that it necessarily leaves unsettled will come up for dis- comment, 
 cussion under the separate provisions. 
 
 I. [It is hereby enacted] that it shall be lawful for OfmaUng 
 [Imperator Caesar Vespasian Augustus] to 
 
 and to conclude treaties with whomsoever he shall wish, as it 
 was lawful for the deified Augustus, for Tiberius Julius Caesar 
 Augustus and for Tiberius Claudius Caesar Augustus Ger- 
 manicus ; 
 
 II. And that it shall be lawful for him to convoke the Of convoking 
 
 ,. . . ordinary meet 
 
 senate, to propose a matter for discussion, to transmit to it a ings of the 
 question submitted to him and to procure a decree of the proceeding 
 senate by the proposal of a bill and a division of the house; 
 
 III. And that, when a meeting of the senate shall be held in Of holding ex- 
 accordance with his pleasure or authority, by his order or meetings of 
 injunction, or in his presence, all proceedings at such a meeting 
 
 shall be accounted valid and observance shall be due them, just 
 as if the meeting of the senate had been announced and held in 
 accordance with ordinary procedure ; 
 
 IV. And that, whatsoever candidates for office, power, Qfcommen- 
 
 ' r ' dationof 
 
 authority, or charge of any matter he shall have recommended candidates. 
 to the Roman senate and people, and to whomsoever he shall 
 have given or promised his support, account shall be taken 
 extraordinarily of them at any comitia whatsoever; 
 
 V. And that it shall be lawful for him to advance and pro- pfextendiw 
 
 r thepomerium. 
 
 mote the boundaries of the pomerium whenever he shall think 
 it advantageous for the state, as it was lawful for Tiberius 
 Claudius Caesar Augustus Germanicus; 
 
 VI. And that, whatsoever he shall think likely to promote of doing what- 
 the welfare of the state, the dignity of sacred and profane, pub- think itheiy to 
 lie and private, interests, he shall have full right and authority Welfare of the 
 to do and execute ; as had the deified Augustus, Tiberius Julius 
 
 1 About the reading '' there is, of course, no doubt; it was given as early 
 as Smetius and Panvinius. 
 
 5
 
 LEX DE IMPERIO VESPASIANI 
 
 Of exemption 
 from certain 
 laws and 
 plebiscites. 
 
 Ratification 
 of previous 
 acu. 
 
 Formal 
 declaration 
 of the superi- 
 ority of this 
 law. 
 
 The separate 
 CtOHttt. 
 
 First clause 
 in it* entirety 
 probably con- 
 ferred supreme 
 authority in 
 matters of war 
 and peace. 
 
 Some 
 
 illtcwuioni of 
 the Lex. 
 
 Caesar Augustus, and Tiberius Claudius Caesar Augustus Ger- 
 manicus ; 
 
 VII. And that, whatsoever laws and plebiscites were 
 declared not to be binding on the deified Augustus, Tiberius 
 Julius Caesar Augustus, or Tiberius Claudius Caesar Augustus 
 Germanicns, from these laws and plebiscites Imperator Caesar 
 Vespasian shall be exempt, and that, whatsoever things it was 
 allowed the deified Augustus, or Tiberius Julius Caesar Augus- 
 tus, or Tiberius Claudius Caesar Augustus Germanicus to do by 
 any law or bill, it shall be lawful for Imperator Caesar Vespasian 
 Augustus to do all those things; 
 
 VIII. And that, whatsoever has been done, executed, 
 decreed, or commanded by Imperator Caesar Vespasian Augus- 
 tus, or by any person on his order or injunction, before the 
 passage of this law, shall be legal and valid, just as if it had 
 been done by the people or plebs. 
 
 Sanction 
 
 IX. If any person has done or shall have done anything on 
 account of this law contrary to the provisions of any law, bill, 
 plebiscite, or decree cf the senate, or if, on account of this law, 
 he shall have left undone what, in accordance with any law, 
 bill, plebiscite, or decree of the senate, he should do, it shall 
 not be a crime on his part, nor shall he be liable to pay any 
 penalty to the people on that account, nor shall any person have 
 the right of entering suit or proceeding judicially on that 
 ground, nor shall any person allow suit concerning it to be 
 carried on before him. 
 
 It has seemed to me better to consider first the separate 
 clauses of the law, noting with some care the prerogatives men- 
 tioned, and only then to venture on a consideration of its gen- 
 eral character. 1 
 
 The first clause in its remains confers on Vespasian the 
 power of making treaties with whomsoever he shall wish. In its 
 entirety it almost certainly conferred supreme power in what we 
 
 > Before proceeding to a discussion of the law, I should mention some of the 
 best and most accessible treatments to which references are most commonly made: 
 Pelham, Journal of Philology, XVII, 27 seq. ; Willems, Droit public romain, 413 
 seq. ; Mommsen, Staatsrecht, II, 876 seq. et al. ; Karlowa, Romlsche Rechtsgeschichte, 
 I, 494 seq. ; Mlspoulet, Les institutions politlques des Remains, I, 374 seq., with a 
 good translation; and particularly Cantarelli, Bulletino comunale, 1890, 194 seq. 
 and 235 seq. 
 
 6
 
 LEX DE IMPERIO VESPASIANI 7 
 
 roughly call affairs of war and peace ; for it is expressly stated 
 at the end of the clause that the authority conferred is to place 
 Vespasian in the same position that Augustus 1 had held with ref- 
 erence to the same issues, and the position held by Augustus we 
 know in at least a general way from two much quoted passages. 
 Strabo, 2 speaking of the division of the Eoman provinces, says: 
 "For when the senate committed to him (Augustus) the head- 
 ship of the empire and made him supreme over war and peace 
 during his lifetime, he made a division, etc." So Dio Cassius, 3 
 speaking of the position of the emperors: "From these names 
 they get the power to ... and to begin war and conclude 
 peace." 
 
 Would such a power be an absolutely unlimited one, or 
 would it be one that could be reconciled with the constitutional 
 powers of the consul, strictly considered or interpreted with 
 some latitude? With the history of the competent treaty- 
 making power at Kome 4 before the time of Sulla we need not 
 seriously concern ourselves; but we should remember that it 
 constitutionally belongs to the senate and popular assemblies. 
 Neither is it necessary to consider the question of the relative 
 weight of the senate and people, 5 further than to keep clearly 
 in mind the power of the senate after the supremacy of Sulla. 
 But, facing in a way this authority at home, there must always 
 be a certain power in the hands of the military commander-in- 
 chief. When it came to the matter of a foreign war, with 
 immense distances between the operating army and the legis- 
 lative body, there could be no doubt as to the desirability of 
 having practically'plenary powers in the hands of the leader of 
 the army. And it is with reference to the military side of the 
 work of Augustus that such a power must have been conferred. 
 
 1 The reason for the omission of the names of the intervening emperors, to Reason for the 
 whose powers no reference is made, is rather obvious. Galba, Otho, and Vitellius omission of 
 with their ephemeral reigns were really never settled in the supreme authority ; tain emperors. 
 Nero had been legally declared damnatae memoriae; and Caligula had been prac- 
 tically so treated, although the intervention of Claudius had rescued his mad prede- 
 cessor from formal dishonoring at the hands of the senate. Mommsen, Staatsrecht, 
 
 II, 1129. Dio Cassius LX, 4, 5: rijs yepowias dTijuwcrai TOP Td'iov efleATjeraoT)? v//;0icr0j)i<ai 
 fiev avrbs cKuAvo-cp, iSia Se T etitoVas avrou VVKTOS a^acra? ^aricrt K. T. A. 
 
 2 StrabO XVII, 3, 25: Ai &' fcrcpguu 5iT)'p*)'' Tat aAAore /ley dAAco;, ev Se T<j> irapoi'Ti 
 <us Kaicrap 6 Se/ScuTTOS SieTafep. firei&rf yap rj irarpis tirirpf^/fv aural rr\v Ttpouratria-v rijs 
 tj-ye/uopta?, icai iroAe'/nov (tat eipiji/i)? Korean) Kiipios Sid t'ou, 6i\a SteiAe K. T. A. 
 
 3 Dio CassiUS LJII, 17, 5: Kal ex pifv rovriav rliiv bvonariav , . . iroAe/xov? T avaiptl- 
 <70ai (cal t'if>rjvt\v trircVo'ea'dat . . . Aa/t/Sacovaiv K. r. A. 
 
 4 See Mommsen, Staatsrecht, I, 246 seq. ; in, 343. 
 
 5 Ibid., Ill, 1170. 
 
 7
 
 LEX DE IMPERIO VESPASIANI 
 
 Thctte&md 
 clause con- 
 tains four 
 
 The first, of 
 
 iiiMing 
 
 teiMte. 
 
 At the famous partition of the provinces, already referred to, 
 between Augustus and the senate, it must have been clear that if 
 he was to face the problems involved in the administration of 
 every province likely to be a scene of disturbance, if he was to 
 accomplish any permanent results, he must be entirely untram- 
 meled in his decisions as to when he should send the sword and 
 when the olive branch. To meet these needs authority was 
 delegated to him as it might constitutionally be delegated 
 by the senate and people. Constitutionally this would naturally 
 be connected with the imperium consulare 1 or proconsular, as 
 Pelham has pointed out. 
 
 The second 8 clause conveys four distinct rights touching 
 Vespasian's dealings with the senate. 
 
 The first right, senatum habere, is usually regarded as a 
 special one, entirely apart from the right of holding a meeting 
 of the senate implied in the tribunicia potestas. It is then 
 identified with the right conferred on Augustus in 22 B.C., 
 and reported by Dio Cassius 3 in the words- "So that he 
 received the power to convoke the senate whenever he should 
 wish." By this, according to Pelham,* Augustus was made 
 independent of the old established order of precedence, which 
 gave the right in the first instance to the consuls and praetors, 
 and only after them to the tribunes. Mommsen 5 understands 
 Dio Cassius to mean that the "power of convoking the senate 
 under special circumstances was conferred on Augustus as a 
 special right," and believes that this then passed on to his suc- 
 cessors. He and Pelham are agreed in identifying the power 
 mentioned by Dio Cassius with the senatum habere of the 
 Lex. They are agreed, furthermore, that the tribunicia 
 potestas implied the power of convoking the senate, but in the 
 old order of precedence. I would note that it is by no means 
 certain that the tribune's right is not practically supreme even 
 
 >I use throughout the expression " proconsular imperium," although I do so 
 without emphasis. The gulf between' Mommsen's " proconsular 'e imperium" and 
 Pelham's " consulare imperium held pro consuls " exists mainly in perspective, for 
 both are thinking of the same powers conferred. 
 
 5 The second and third clauses might, perhaps, have been better taken as parts 
 of one clause; but the division here followed is very convenient. It should be men- 
 tioned, perhaps, that a discussion of these clauses by the present writer has ap- 
 peared in the Journal of Philology, L.V (1901), 122 seq. 
 
 ' Dio Cassius, LIV, 3, 3 : eiri ovv TOUTOIS UTTO fiec rtav eu <f>povovvr<av iiryveiTo, tatrre itai 
 TO T7)> f}ov\r)v a.0poi(iv, oeraKis at> i0\TJ<rj) Aa/3eii> K. r. A. 
 
 Journ. of PhUr^VnT42i "Mommsen, Staatsrecht, II, 896-7. 
 
 8
 
 LEX DE IMPERIO VESPASIANI 9 
 
 if one gives due weight to the old order of precedence, for the 
 tribune's convoking can not be hindered by the intercession of a 
 patrician magistrate. Furthermore, the expression before us is 
 senatum habere without any qualifying words. 
 
 The second right is that of laying a measure before the The second 
 house. By Mommsen 1 the relationem facere of this clause posing a meas 
 
 i wre/or consid- 
 
 seems to have been first understood to mean the proposal of a eraiion by the 
 measure in writing, as opposed to the regular oral proposal ; but 
 he subsequently concludes that his previous position was ques- 
 tionable to this extent: "In this clause senatum habere" 
 which of course is used of presiding in, as well as of convoking 
 the senate "appears to be the more general expression, and 
 relationem facere only to be placed for referre in order to offer 
 something to which the following relationem remittere might 
 be appended." His reluctance to identify relationem facere 
 with the common referre is due to the assumption he has made 
 with reference to a passage of Dio Cassius. 2 The passage runs: 
 
 17 yepovtna . . . e^^titraTO, /cat xprjfjuiTi&iv aurw Tre/ot evos Ttvos 
 OTOU av e6tXrja"rj KO.$' e/cacrr^v flovXrjv, KO.V (JW] VTTO.T every, eStoKCV. 
 
 Mommsen assumes that ^^yuari^civ meant "to propose in writing, ' ' 
 and a difficulty is inevitable if, after that assumption, one iden- 
 tifies the privilege mentioned by Dio with that conferred 
 by the Lex, and does not then give a very special meaning 
 to relationem facere. Pelham 8 is sure that relationem facere 
 is quite synonymous with referre^ and of this there can be 
 little doubt. In connection with this he considers the ius 
 tertiae, quartae, guintae relationis* of the later emperors, and 
 rejects Mommsen 's theory of a written as opposed to an oral 
 proposal. His view is that the passage in Dio recorded the 
 restoration to Augustus of the right of priority of reference 
 attached to the office of consul, with the proviso, however, that 
 this priority was not to extend to all the relationes he might 
 make, but only to one. He then identifies the privilege of Dio 
 Cassius and the provision of the Lex. Like Mommsen, but 
 with the same difference as here, he concludes that in the 
 cases cited from the later emperors we have an extension of the 
 
 1 Mommsen, Staatsrecht, II, 899. 
 Dio Cassius LIII, 32, 5. 
 Journ. of Phil. XVII, 39. 
 
 Vit. Pertin. 5, 6, Sever! Alexandri 1, 3, Probi 12, 8. 
 
 9
 
 10 
 
 LEX DE IMPERIO VESPASIANI 
 
 "Relationem 
 
 remittere." 
 
 The writer's 
 view. 
 
 privilege. Cantarelli 1 follows Mispoulet* in his view that 
 relationem facere is equivalent to referre, and includes 
 both oral and written propositions. What I am personally 
 inclined to think may better be taken up in connection with the 
 following clause. 
 
 The third provision has been the victim of many interpreta- 
 tions. Karlowa 3 understands the words relationem remittere 
 as meaning "to withcfraJw a matter submitted to the senate." 
 Madvig* has practically the same view, and Cantarelli 5 accepts 
 this explanation. Pick 6 and Mispoulet 7 hold other views, but 
 they have been indisputably disposed of by Cantarelli. 8 
 Mommsen 9 takes the expression to refer to the handing over to 
 the senate by the emperor of a matter that may fall within the 
 competence of that body but has come before him. His treat- 
 ment has the merit of dealing with the literary evidence, which 
 I append in a note. 10 It will be noticed that these passages 
 refer mostly to criminal processes, although they are not 
 numerous enough to justify a limitation to that field. 
 
 But of the growth of the right and its connection with the 
 other provisions of the clause I believe a consistent account can 
 be given on only one basis, viz : the whole second clause defines 
 the rights of the emperor in his dealings with the senate as 
 connected with the tribunicia potestas. This will cover the 
 senatum habere of the first provision, the relationem facere 
 
 Cantarelli, I.e. 196-7. 
 
 > Mispoulet, op. c. I, 265. 
 
 Karlowa, Geschichte des rom. Rechts, I, 498. 
 
 <Madvig, Die<Verfassung und Verwaltung des rbm. Staates, I, 538. 
 
 4 Cantarelli, l.c. 197-9. 
 
 B. Pick, De Senatus Consultis Romanorum, 8, n. 4. 
 ' Mispoulet, op.c. I, 265. 
 
 Cantarelli, 1. c., 196 seq. 
 
 Staatsrecbt II, 896-900. 
 
 10 Pliny, Ep., 4, 9, 1: lulius Bassus . . . accusatus est sub Vespasiano a 
 privatis duobus; ad senatum remissus, diu pependit, tandem absolutus vindi- 
 catusque. 
 
 Ibid., 9, 13, 22: Publicius Certus has been attacked in the senate on serious 
 charges, and the consuls have apparently been instructed to institute proceedings 
 against him . . . et relationem quidem de eo Caesar ad senatum non remisit. 
 
 Tac., An., 3, 10: Fulcinius Trio had brought charges against Piso before the 
 consuls; Tiberius had been asked to conduct the investigation: igitur paucis 
 familiarium adhibit is, minas accusantium et hincpreces audit iutegramquecausam 
 ad senatum remlttit. 
 
 Add Tac., An., 1, 8: Conclamant patres corpus ad rogum umeris senatorum 
 r> Triiilu m. Remisit Caesar adroganti moderatione, where remisit probably means 
 "left it to their decision on a second consideration," Although many editors, 
 Including Furneaux, note ad loc., hold that it means "excuse them from the duty." 
 
 10
 
 LEX DE IMPERIO VESPASIANI 11 
 
 of the second, and the arrangements as to taking a vote in 
 the fourth. On this basis, relationem remitter -e is a by no 
 means difficult expression of the form in which the old interces- 
 sion of the tribune has come to be conceived of with relation to 
 the emperor and his dealing with measures before the senate. 
 He may either drop the relatio or "send it back" for further 
 consideration. This understands remittere in a sense per- 
 fectly consistent with the passages quoted. Again, it gives to 
 the provision an importance that justifies its appearance with 
 the other important prerogatives in the clause. Furthermore, 
 after the mention of the right to propose a motion, the right to 
 veto a bill or return it for discussion would very naturally fol- 
 low. Finally, the fact that such a large proportion of the few 
 uses we have of the expression in contemporary writers referred 
 to criminal cases would suggest a connection with the tribu- 
 nicia potestas and its power of intercession. 
 
 The fourth proviso covers the procuring of a decree of the 
 senate on a division. The wording raises no difficulty. There decreeb 
 is no reference to the two ways of taking a vote known to the 
 Romans, 1 that is, by a simple and literal division into parts of 
 the chamber, or by actually asking for the individual votes ; the 
 relatio was a necessary preliminary to any decree. 8 
 
 This right is also held to have been exercised by the 
 emperors in virtue of a special empowering act, although it is 
 not mentioned by Dio Cassius. It really brings us back to the *jj% i 
 first and second provisions of the clause, and involves the same 
 difficulties; for, of course, the president of the meeting had 
 full power to proceed to a division. The explanation of Pelham 
 
 1 Mommsen, Staatsrecht, III, 983-4. 
 
 Varro, ap. Aul. Gell. 14, 7, 9: . . . senatus consultum fieri duobus modis: On the turn ways 
 ant per discessionem, si consentiretur, aut, si res dubia esset, per singulorum ^detret^ n 
 sententias exquisitas. Another passage in Gellius (14, 7, 12), which seems to 
 contradict this, runs: Nam Tuberonem dicere (Ateius Capito) ait, nullum 
 senatus consultum fieri posse non discessione facta, quia in omnibus sena- 
 tus consultis etiam in iis quae per relationem (mss. elationem & lationem) fierent 
 discessio esset necessaria. Mommsen thinks that Gellius would not involve him- 
 self in a contradiction, and that he wrote perlatione, or better, perrogatlone. Such 
 a mistake, however, presents strong palaeographical difficulties, whereas per ela- 
 tionem is a very easy mistake for per relationem. I fancy, rather, that Gellius had 
 not followed Tubero closely, and that the latter did not mean by his per relationem 
 the same that Varro meant by his per singulorum sententias exquisitas, but was 
 rather speaking of votes where there was no need of proceeding even to a discessio, 
 and was pointing out that even there the discessio theoretically and legally took 
 place. / / 
 
 a For a discussion of this and the advocacy of a different opinion see Cantarelli 
 
 In the Bulletino comunale for 1890, 196-201. 
 
 11
 
 12 
 
 LEX DE IMPERIO VESPASIANI 
 
 The third 
 clause, legaliz- 
 ing the pro- 
 ceeding* at 
 extraordinary 
 meeting* of 
 the senate. 
 
 is along the line of his general theory, 1 and he states that 
 probably at the same time as the conferring of the ius sena- 
 tum liabendi and with the same right of precedence Augustus 
 was given authority senatus consulta facere. Mommsen, unfor- 
 tunately, gives no explicit statement of his views as to the 
 reasons for such provisions, although he recognizes them as con- 
 ferred by special legislation. He does state, 8 indeed, "It can 
 not be directly proved that when the princeps convoked the 
 senate on the strength of his special competency his relationes 
 took precedence, but, considered theoretically or practically, it 
 is very probable." But in the same place he also states that 
 the tribunician relationes probably had legal precedence over 
 those of the patrician magistracies; by implication the imperial 
 relatio, based on the tribunicia potestas, would need no special 
 legislation to insure its precedence. On the basis of the expla- 
 nation suggested above this provision presents no difficulty. 
 
 The third clause insures the validity of all proceedings at 
 any extraordinary meeting of the senate convoked at Ves- 
 pasian's pleasure. This much is certain; but are we to say 
 that the meetings covered by this clause are the same as those 
 authorized by the preceding clause? This I regard as impos- 
 sible. Even if the provisions of the former did not refer to 
 rights naturally implied in the tribunicia potestas, we must 
 assume that the f ramers of the present Lex had come to regard 
 them as so naturally pertinent to the imperial power, and as so 
 naturally applying to ordinary meetings, that they proceeded to 
 make provisions for all extraordinary meetings of any nature. 
 If one keeps before one's mind the very formal and comprehen- 
 sive expressions of clause two, I do not see how he can conceive 
 that there was any need to make special provision for the 
 legality of the proceedings at such meetings as are there implied. 
 Furthermore, even if one could reconcile the expressions 
 voluntate, auctoritate, iussu, mandatu with the provisions 
 understood in the ways I have discussed, it could only be the 
 most misplaced ingenuity to proceed to the same task with 
 praesente eo. To me it seems much more probable, even cer- 
 tain, that clause three had not lost sight of the provisions of 
 clause two even if one assumes they were special, as I can 
 not but was intended to provide for the validity of any method 
 
 1 Pelham, I.e., 42 seq. 
 Mommsen, Staatsrecht, II, 897, note 5. 
 
 12
 
 LEX DE IMPERIO VESPASIANI 13 
 
 of holding a meeting of the senate adopted at the convenience 
 of the emperor, by providing for the validity of all transactions 
 at such meetings. 
 
 The question as to the form of meeting implied in the words on the form 
 praesente eo is attended by considerable difficulty. The solu- implied in 
 
 *. . , , , T ,1 . , . --I. . praeaenteeo 
 
 tion is to be found, I think, in a comparison with certain 
 
 meetings that were authorized towards the close of the reign of 
 Augustus. At the time when Augustus was regulating his 
 general relations with the senate, there had been instituted 1 a 
 council with which he might discuss questions which were then 
 to be referred to a full senate. This earlier council 2 seems to 
 have been made up of the two consuls, or the holder of the 
 other consulate when Augustus himself held one, one member 
 from each of the other magistracies, and fifteen senators elected 
 by lot for a period of six months. Subsequently, when the 
 pressure of old age prevented his frequent attendance at meet- 
 ings held in other places than the palace, he asked for a new 
 council. 8 This is evidently a development of the earlier council,* 
 although it legally possesses far wider powers. This new council 
 was made up of Tiberius, the acting and designate consuls, the 
 grandsons of Augustus, twenty senators chosen for a year, tak- 
 ing the place of the fifteen previously chosen for six months, 
 and such other persons as Augustus might care to introduce. 
 When this body, meeting with the emperor, was duly author- 
 
 1 Suet., Aug., 35: Sibique instituit consilia sortiri semenstria, cum quibus 
 de negotiis ad frequentem senatum referendis ante tractaret. Cuq, Le Conseil 
 des Empereurs, has a long discussion on the subject, which is reviewed in 
 Bursian's Jahresbericht XLIV, p. 284. 
 
 8 Dio Cassius LIII, 21, 4: TO Se ii) ir\fl<rrov TOV<S Tt viroVovs i) TOV vrrarov, biroTt ical 
 avrbs virarevoi, KCLK T(i>v aAAcoi' dp\6vT<av eVa Trap' eKatmav, etc re TOV AoiTroO TU>V /SovAevTiov 
 irATJflovs TrevTfKOiiSeKa rovs icA/p<o Aa^dvras, <rv/i/}ovAovs es ifdnrivov jrapeAa/m/Sacei', !a<nt SC 
 avTioy KO.\ TOIS aAAois iratri Koivovadai, Tpoirov Tivd Ta vofiodfTov^fva vonic<rda.i. f<re<t>epe 
 ftiv yap TLVO. Ka.1 es na<rav ri}V yfpovyiav f}e\nov /xeVroi vofj.i<av elvai fter' 6Ai'ya>i' Ka.9' 
 ri<rvxia.v TO. Tf TrAeuu <cal TO. jnet^ai Trpoo-xoireicrflat, TOUTO re STroi'ei Kai f(TTii> ore <cai eSt'ieafc 
 
 /XT* O.VT&V. 
 
 3 Dio Cassius LVI, 28, 2-3: (tol <nifi/3ouAous vnb roG Y^pws, v<* ovirfp ov&' es Tb 
 jSovAevTTJpiov en TrATji/ <nra.vi.u3Ta.Ta. <rvv e^ot'ra, fiK.o<ri.v eT7)<n'ovs TJT^(ra.TO' irporepov yap Ka.9' 
 fKTov nr/va. irevTeKaiSexa. irpo<reri0fTO. KCU 7rpo<re\l>ri<i>t<r9r), irav9' ova av aiiry /oiTa re TOV 
 Ti/3epiou (cat jner' fxeiviav, T<av Te aei viTrareuoi'Tcoi', Kai riav es TOUTO a.rrooeSeiyiJ.ei'jiv. T<av Tt 
 fyyovwv avTOv Ttav TTOUJTUJV SijAoi'OTt, TU>V TS d\\iav ocrovi av eKdUrroTe 7rpo<r7rapaAaj3]7, ^ou- 
 Aeuo^ieVo) S6 jj, Kvpia, cos xal irdtrj) TJJ yepovaiq ope<racTa, flvai. 
 
 4 Mommsen, Staatsrecht, II, 902-3, probably from his desire clearly to differ- 
 entiate the place of the first and second councils, has either missed or disregarded 
 the very natural deduction from Dio Cassius that this new body is, after all, merely 
 a development of the older consilium, a view in itself very probable and not con- 
 tradicted by any evidence. 
 
 13
 
 14 LEX DE IMPERIO VESPASIANI 
 
 ized to pass decrees that should be equally binding with those 
 passed by a full senate, there practically comes into being a 
 smaller senate, really depending for its validity on nothing else 
 than the presence of the emperor. Some such smaller senate, 
 even if it were not permanent, must have been at times a great 
 practical convenience to the ruler. Whether it were frequently 
 utilized or not its utility and desirability would be very clear, 
 and it is to some such body that the words praesente eo must 
 apply. The position and authority of the emperor and this 
 body would naturally be defined in connection with his relations 
 to the regular senate, and this clause is very closely connected 
 with the second. 
 
 The fourth clause is unmistakable in its force; the right of 
 the formal commendation for all the elective offices in the state is formally 
 
 right of com- a -rr i ... , . 
 
 mendatton conferred on Vespasian, without limitation. The history of 
 
 irithout Umita- . J 
 
 the commendatio up to the reign of Nero 1 is so well agreed 
 upon that I practically pass it over. In republican times the 
 active canvassing for a candidate might naturally be called 
 either commendatio or suffragatio. The right of such commen- 
 datio or suffragatio belonged alike to all, and, of course, had no 
 legal status. The transformation from this support by a lead- 
 ing citizen into the legally valid commendation by the princeps 
 is one of the signs of the transition from the republic to the 
 monarchy. Such a right of commendation was conferred on 
 Augustus in 27 B.C. as a permanent prerogative, and it per- 
 sisted in this or an enlarged form throughout the empire. The 
 only office not included in the right as exercised up to the time 
 of Nero was the consulate, as Mommsen 2 has conclusively 
 shown. As there is no mention of precedents in our clause 
 there must be some feature that has been introduced since 
 Claudius, and this is probably the extension of the right to 
 include the consuls. When did this extension take place? 
 Mommsen is surely right in saying that under Tiberius there 
 was no formal right of commendation for the highest magis- 
 tracy; but I can not accept his view that at the close of Nero's 
 
 1 See any of the better works on the history of the period, or on Roman con- 
 stitutional law; best, perhaps, Mommsen, Staatsrecht, II, 921 ,seq. Stobbe, Philol- 
 ogus, XXVII, 88-112, XXVIII, 648-700, has an amazing collection of material on the 
 "candidati Caetaris." 
 
 a Mommsen, Staatsrecht, II, 923 seq. 
 
 14
 
 LEX DE IMPERIO VESPASIANI 15 
 
 reign such a formal right appears, and that, therefore, the 
 change must have taken place before 1 or under Nero. The 
 passages of Tacitus 2 on which he bases his theory must rather The passages 
 
 r , i f , . , . , , , from Tacitus 
 
 refer to the same sort of arbitrary appointment as he has on which 
 
 , ., , , -. ,, . TTT-j.1 ,1 i ,-, Mommsen 
 
 admitted under other prmcipes. With these passages rightly bases his view. 
 understood, there is positively no evidence for the appearance of 
 the extended right before the passing of the Lex ; and we may, Extension of 
 with great probability, assign it to the beginning of Vespasian's commendation 
 
 /' , . *? to the consul* 
 
 reign, when the anxiety to honor the new emperor might easily to be assigned 
 appear in the legalization of a power that had been arrogated to ning o/ve#pa- 
 themselves by preceding rulers. From this time on the consul- 
 ship was regularly subject to the commendatio. 
 
 The fifth clause 3 makes it clear that the right of advancing Fifth clause 
 the pomerium* now attaches definitely to the office of the prin- advancing the 
 ceps. The enactment, we may safely infer, was first passed in belamuto the 
 favor of Claudius, who extended the pomerinm in the year 49. l 
 The theory of Detlefsen, 5 that the enactment may have been 
 intended to settle the constitutional questions as to the circum- 
 stances under which it was legal to enlarge the ideal boundary, 
 seems to me rather probable inasmuch as the enactment was 
 quite along the line of the archaeological interest for which also important 
 Claudius is so noted. The clause is also important for the con- Augustusdid 
 elusive evidence it throws into the scales against the statement 
 
 1 It assuredly could not have been before. If the right had been given to Caligula 
 it would have been given to Claudius, and if it had been given to Claudius it would 
 have appeared in the Lex. 
 
 3 Tac., Hist., I, 77: Consul cum Titiano fratre in kalendas Martias ipse (Otho); 
 proximos menses Verginio destinat, etc. . . . Ceteri consulatus ex destinatione 
 Neronis aut Galbae mansere etc. 
 
 Ibid., II, 71: Ut (Vitellius) Valenti et Caecinae'vacuos honoris menses aperi- 
 ret, coartati aliorum consulatus, dissimulatus Marci Maori tamquam Othonia- 
 narum partium ducis; et.ValeriumMarinumdestinatuma Galba consulem distulit, 
 etc. . . . Both of these passages refer to the notorious year of 69, which saw no 
 fewer than fifteen consuls. 
 
 3 We are not now concerned with the much discussed technical difficulties 
 pertaining to the pomerium. References might be given without end, but the fol- 
 lowing will afford a view of the various sides of the question : Mommsen, Rbmische 
 Forschungen, II, 23-41, and the "numerous references there given; Mommsen, 
 Staatsrecht, passim; Detlefsen, Das Pomerium Roms und die Grenzen Italiens, 
 Hermes, XXI, 497-562; Nissen, Beitrage zum romischen Staatsrecht, Strassburg, 
 1885; the various works on Roman topography. 
 
 4 Cantarelli, 1. c., 202-4, has a very interesting discussion about the misunder- 
 standing of pomerium, and the question as to whether some well-known lines In 
 Italian poetry indicate a knowledge of our inscription. 
 
 * Detlefsen, Das Pomerium Roms und die Grenzen Italiens, Hermes, XXI, 50& 
 
 15
 
 16 
 
 LEX DE IMPERIO VESPASIANI 
 
 The right wa 
 utilized by 
 Vespasian 
 in 76. 
 
 Sixth clause 
 recognizes 
 validity of all 
 measures 
 emanating 
 from the em- 
 peror. Pre- 
 sents no diffi- 
 outtftt. 
 
 of Tacitus, Dio Cassius, and the biographer of Aurelian, 1 that 
 Augustus also enlarged the pomerium. The right here con- 
 ferred was utilized by Vespasian in the year 75, 2 and we are 
 fortunately in possession of two of the boundary stones then set 
 up. 
 
 The sixth clause recognizes the validity of all measures 
 emanating from the emperor. With it we come to the part of 
 the Lex which confronts us with no special difficulties, and 
 gives rise to no such variety of opinion as attaches to the pre- 
 ceding part. In this clause we should note the sweeping char- 
 acter of the provisions and should recall that they belong to the 
 principate from its establishment. In fact, legislation of some 
 such spirit must have been found, I am sure, as early as Sulla; 3 
 it is agreed that a similar enactment was issued in favor of the 
 triumvirs, and Mommsen* even suggests that the clause was 
 simply transferred from the bill that gave the triumvirs their 
 legal status. 6 
 
 1 Tac., An., 12,23; Dio Cassius LV, 6; Vita Aureliani,21,ll. The evidence contra is 
 this inscription, the silence of the Monutnentum Ancyranum, and Seneca, De Brev- 
 Vltae, 13, 8. The confusion is explained by Mommsen, Staatsrecht, II, 1035, note 2, 
 as due to a misunderstanding of the changes introduced in connection with the divi- 
 sion of the city into regions. 
 
 1 C. I. L. VI, 1232; Bull. com. di Roma, 1899, p. 270. Mommsen has surely made 
 a mistake of one year, as Mr. Newton, formerly of the University of Colorado, has 
 shown. The date is between March 1st and July 1st, 75 A.D; Cornell Studies in 
 Classical Philology, No. XVI, page 4. This extending of the pomerium is discussed 
 at some length by A. Merlin, Melanges d'Arche'ologie et d'Histoire, XXI, 1-2. 
 
 Padeletti, Romische Rechtsgeschichte, 707; Mommsen, Staatsrecht, II, 662. 
 
 4 Mommsen, Staatsrecht, II, 909, quoting Appianus V, 75: tlvai xvpia. 6<ro (Anto- 
 
 niUS) ejrpafe Tt (cat Trpafeief. 
 
 * The passages bearing upon this clause are so well known, and so well agreed 
 upon, that I merely give them in this note without comment: 
 
 Dio CaSSiUS LJII, 28, 2, Of Augustus: ira<rT) O.VTOV TTJS riav voiiiav 01/07*1)? airrjAAafai', 
 i>'', iaenrep eipijrat ftot. Koi avroreAi)? OPTIO? KOI avrOKpdriap xai cavroC xai run- vo^iav, vavra. 
 Tc 6<7a ^ouAoiro TTOIOI'I), Kal TTiii'O' o<ra fir) /SoiiAoiTO fx>7 TrpaTTOi. 
 
 Cf. XLIV, 6, 1. Of Julius: <col irpoaeri KOI tv\t<r9ai turep ovToO ^rjjaoo-ia KO.T' troy 
 xaaTOf, TTJV Tt rv\r)v avrou bnvvvai, Kai TO itpa\9i}<j6it.fva. avrcu irai/ra xvpia. eeiv evonurav. 
 
 Suetonius, Gaius, 14: ius arbitriumque omnium rerum illi permissum est. 
 
 Gaius I, 5: Constitutio principis est quod imperator decreto vel edicto vel 
 eplstula constituit : nee umquam dubitatum est, quin id legis vicem obtineat, cum 
 ipse imperator per legem imperium accipiat. 
 
 Ulpian, Digest, I, 4, 1 : Quod principi placuit, legis habet vigorem, utpote cum 
 lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium 
 et po testa tern conferat: quodcumque igitur imperator per epistulam et subscrip- 
 tionem statuit vel cognoscens decrevit vel de piano interlocutus est vel edicto prae- 
 cepit, legem esse constat: haec sunt quas vulgo const! tutiones appellamus. 
 
 On the legal difference between constitutio and lex see Mommsen, Staatsrecht, 
 II, 909 seq. Pomponius, Digest, I, 2, 2, 11-12: constitute principe datum est ei ius 
 ut quod constituisset ratum esset. 
 
 16
 
 LEX DE IMPERIO VESPASIANI 17 
 
 The seventh clause in its first section passes on to Vespasian of exemption 
 
 from the law 
 
 all exemptions from legal liability that had been conferred by by special en- 
 
 . J actments. 
 
 special legislation on his predecessors; the second section states 
 the positive side. They shade off very easily into each other, 
 and the thought was rather on their complementing each other 
 than on their difference. The two were intended primarily to 
 insure the emperor's personal position with regard to legal pro- 
 cedure. 1 Naturally, such laws as they cover would not be 
 important enough to demand separate enumeration. While the Theciame 
 
 -..,,., . ,\ .. . .. . , . moreimpor- 
 
 clause looks like a privilege, it is, after all, more important for taut for m 
 
 . . ., ,. ,, implication 
 
 its implication that the emperor is normally subordinate to the that the em- 
 
 i T i i ii n i i- peror is sub- 
 
 law. Accordingly, we have the well-known exemptions 111 ardtnateto 
 favor of Augustus 3 and Caligula.* Asa matter of fact, how- 
 ever, this subordination is so entirely theoretical that subse- 
 quently the very law that should give the emperor his 
 constitutional position is regarded as setting him above the 
 laws. 5 
 
 The eighth clause ratifies all the official acts of Vespasian in Ratification of 
 
 ,,..,,, ., , ,,. .,, . actsof Vespa- 
 
 the interval 6 between the formulation of these measures at stem m the 
 Eome and his salutation by the soldiery of the East about six after his saiu- 
 
 . . , , tationby the 
 
 months previous. The enumeration, acta, gesta, decreta, soldiers of the 
 
 imperata is evidently intended to be completely inclusive 
 
 of all that had been done in his name, and I do not fancy 
 
 that there is any insistence on the technical differences. 7 
 
 Ada might technically mean all magisterial acts outside of 
 
 the military sphere ; gesta, those within that sphere ; decreta 
 
 1 Cf. Mommsen, Staatsrecht, II, 750 seq., where lie quotes in Illustration from 
 Paulus, Dig. 40, 1, 14, 1 : imperator cum servum manumittit non vindictam imponit, 
 sed cum voluit, fit liber is qui manumittitur ex lege Augusti. 
 
 8 Rushforth, 87; Mommsen, Staatsrecht, II, 750 seq. 
 
 3 DiO CaSSiUS LVI, 33, 1 : icaTaAe'AeurTo fie ev aural? TO. /j.ev Svo /xepr; TOV K\rjpov Tif 
 Ttj3ept'u>, TO 6e AOITTOJ' Trj Aiovta, <iis Tive<! X'yov<rci'. iva. yap ri Kai fKfivy TJJS ovcrias aiiroO 
 a>rd>'7)Tai, irapa TI)S /SovXJjs })T^<raTO TOGOVTOV avrfj <cai irapd TOV vo^ov Ka.Ta.\nrelv Svnjfljji'ai. 
 
 4 DiO CaSSiUS LIX, 15, 1: 'ivayap&ri KOI irapa TOV; vo/xov? Kai K\ripovoiJ.elv Ka.l8iaprjii.tLTa. 
 TOiavTa Aa/ti/3ai'ctv(oTifX)JTe yvvatKa TOTeye nrJTfiraiSa.sflx f )&v > ' a <TQ ai & K fii Soy/na Tt npoidfTO. 
 
 6 This is evident from the passages referred to in note 5, 18. 
 
 Cagnat, Cours d'Epigraphie la tine, 179; Egbert, Latin Inscriptions, 129; 
 Rushforth, Latin Historical Inscriptions, 87; Dio Cassius LXVI, 1,1. 
 
 Tac., Histories, IV, 3: Isdem diebus (following the death of Vitellius, Dec. 20th) 
 . . At Romae senatus cuncta principibus solita Vespasiano decernit. 
 
 Suet., Vesp., 6: Ceterum divulgato facto (of the choice made by the army) Tibe- 
 rius Alexander, praefectus Aegypti, primus in verba Vespasiani legiones adegit 
 Kalendis luliis, qui principatus dies in posterum observatus est. ludaicus deinde 
 exercitus V Idus lulias apud ipsum iuravit. 
 
 7 For technical differences of this kind cf. Mommsen, Staatsrecht, II, 906 seq., 
 Willems, Le droit public remain, 415. 
 
 17
 
 18 
 
 LEX DE IMPERIO VESPASIANI 
 
 Sanctio, 
 formal decla- 
 ration of the 
 superiority of 
 thin law. 
 
 General dte- 
 
 en. >.-! i i/i. 
 Difficulties. 
 
 should refer to decisions with regard to criminal or civil ques- 
 tions; imperata is, of course, a very general word. In the 
 interval mentioned above very many things 1 had been done by 
 Vespasian or by his deputies, and the formal recognition of 
 their validity was a political necessity. Just what weight the 
 old soldier attached to this recognition is shown by the fact 
 that he always dated his accession from the day on which the 
 eastern soldiery took the oath in his name. 
 
 The sanctio is such a formal declaration as we might 
 naturally expect at the conclusion of the inscription. 2 Its sig- 
 nificance lies rather in the evidence it affords with line twenty- 
 four, that we have before us a Lex. The clauses are 
 regularly in the form of a decree of the senate, with the cus- 
 tomary uti. And, indeed, the senate is commonly mentioned 
 as conferring the powers, owing to the fact that the proceedings 
 therein came earlier than the action of the comitia, and that, 
 while the senate had only a theoretical power, the comitia 
 seemed a still emptier form. But with this is closely connected 
 the question of the general character of the measure, and to 
 that we may now turn. 
 
 The whole inscription, then, incorporated the legislation 
 which conferred on Vespasian the headship of the Roman state. 
 But the moment you leave this general statement you enter on 
 disputed ground. To begin with, it has often been maintained 
 that this was a piece of special legislation applying to Vespasian 
 and not "an example of a general law." But this view is no 
 longer tenable, and we may simply refer to the convenient dis- 
 cussion in Cantarelli's second article. 8 Then, what did the 
 missing part of the inscription contain? Did it record the con- 
 ferring of the tribunicia potestas, or along with that the im- 
 perium proconsulare? 4 What was the general spirit of the law? 
 When it was passed, was it thought of as conferring a number 
 of separate prerogatives, or as being a general empowering enact- 
 ment? 
 
 For an excellent general view of the attitude of English 
 
 1 Schiller, Geschichte der rbmischen Kaiserzelt, II Buch, I Kapltel; Merivale, 
 History of the Romans under the Empire, Chap. LVII. 
 
 Mommsen, Staatsrecht, HI, 362. Add Cicero, In Verrem, IV, 66, Pro Balbo, 14, 
 De Re Publica, 31; Papinian, Digest, XL VIII, 19, 41. 
 
 Bull, com., 1890, 235 seq. 
 
 4 For the term coneulare or proconsular imperium see Pelhain, Journ. of Phil. 
 XVII, 42 seq. 
 
 18
 
 LEX DE IMPERIO VESPASIANI 19 
 
 scholars on the question, I quote from Pelham: 1 "But as to 
 the extent of ground covered by this law, 'and as to its bearing 
 on the constitutional position of the emperor, there is some 
 difference of opinion. The theory of Merivale, 2 that it was a 
 senatorial decree conferring the imperium, which represented 
 the ancient law of the curies, and preceded the decree or 
 decrees conferring special prerogatives, has deservedly found 
 little acceptance with recent writers, though it has the 
 authority of Niebuhr in its favor. For our purpose the issue 
 lies between those who, with Mommsen, ** would exclude the 
 consular e imperium from the operation of the statute, and 
 those 36 " 9 who regard it as a general empowering law, though the 
 latter, as a rule, fail to make clear its relation to such acts as 
 the salutation by the soldiery, which, in a sense, qualified the 
 man saluted to act as emperor." The difference between 
 Mommsen and Pelham, again, is this. The former* holds that 
 the "imperium oder proTconsularische Gewalt" could be com- 
 petently conferred by either the army or the senate, and while it 
 gave the recipient his supreme military authority, was quite dis- 
 tinct from the Lex which gave him his legal status ; that apart 
 from his military position the power of the princeps may be 
 described as a tribunicia potestas, regulated and extended by 
 special clauses ; and that this became translatitious, of course 
 without exclusion of changes in its provisions. Our Lex would 
 
 1 Journal of Philology, XVII, p. 45 
 
 * History of the Romans, III, 468 (388 in some editions). The lex curiata was 
 concerned only with the old patrician magistrates. Nor is it likely that the ancient 
 form was galvanized into life in order to confer an extraordinary imperium, and still 
 less to confer the tribunicia potestas. 
 
 3 a. Mommsen, Staatsrecht, II, 877; 6 Madvig, Verfassung, I, 546; c. Walter, 
 Gesch. des rom. Rechts, I, 333; d. Karlowa, I, 493; e. Schiller, in MuUer's Hand- 
 biicher, IV, 576, /. Hirschfeld, Untersuch., I, 289; g. Mispoulet, I, 379. 
 
 One might multiply authors and theories without end ; but it would be to little 
 advantage. The most striking contribution to the controversy is perhaps that of J. 
 Kaerst, Alexander der Grosse und der Hellenismus, in von Sybel's Historische 
 Zeitschrift, 74, N.F. 38(1895) 226 seq. He maintains that the empire in its inception, 
 as in its later development, is under the influence of the system founded by the great 
 Macedonian; Augustus thus becomes the founder of an oriental despotism. This 
 theory is important only as showing how far the pendulum might swing from Momm- 
 sen's view of the scrupulous constitutional observance in the establishing of the 
 principate. Between these views there may be very many, and there are as many as 
 there may be. Kaerst's position does not, of course, stand examination, and he 
 has probably taken it under the influence of his subject. For a dismissal of it, see 
 Gardthausen, Augustus, VI, 2, 288. The respect in which Mommsen's views are 
 widely held can not be more easily shown than by a note from Schiller, Geschichte 
 der romischen Kaiserzeit, 1, 150: "In my account of the Augustan constitution I 
 follow Mommsen, often verbatim. " 
 
 Staatsrecht, II, 840 seq. 
 
 19
 
 20 
 
 LEX DE IMPERIO VESPASIANI 
 
 Beginning of 
 the Lex. 
 
 Treating the 
 law directly. 
 
 The writer's 
 view. 
 
 then have nothing to do with the bestowal of the imperium pro- 
 consiilare. Pelham 1 differs, in that he believes that from the 
 beginning of the principate the consiilare imperium was con- 
 ferred with the tribunicia potestas. 
 
 Cantarelli, 8 after an examination of the current views, comes 
 to the conclusion that the Lex was not intended to transmit the 
 principate, but to determine the imperial prerogatives. This is 
 implied in Hirschfeld's 3 theory and had been refuted by 
 Mommsen. A perusal of Cantarelli's attempt to answer 
 Mommsen's arguments will convince one of its futility. He 
 rests it on the "clausola transitoria," or ratification clause, 
 which he maintains makes good the acts of Vespasian between 
 his investiture with the regular imperium by the senate, and 
 the passing of the present law. 
 
 After the publication of PelhamV very able argument I do 
 not see how we can refuse to accept the view that the law con- 
 ferred the imperium as well as the potestas. Accordingly, we 
 may rather confidently assert that our Lex began with some- 
 thing like: 
 
 Imp. Vespasianus imperio proconsulari, tribhnicia potestate 5 
 esto, ita uti divus Augustus (etc.) fuit; 
 
 Before going further into the question of the general char- 
 acter of the Law, I should like to point out that the considera- 
 tion of the constitutional position of the earlier emperors has 
 very often begun with the literary evidence for Augustus, and 
 has treated the Lex de Imperio as collateral. This, I conceive, 
 probably led to the misunderstanding of the aspect of the very 
 important provisions of clauses one and two ; and the misunder- 
 standing was often repeated. Mommsen and Pelham, for 
 instance, both insist on these clauses as bundles of special 
 prerogatives. But, as has been seen, I do not believe that the 
 clauses can be so explained. Whatever may have been the exact 
 feeling with reference to Augustus, there can be little doubt 
 that the framers of our Lex conceived of the measure as first 
 conferring the dignities above referred to, both the imperium 
 
 1 Journal of Philology, XVII, 27, seq. 
 Cantarelli, I.e., 242 seq. 
 1 Hirschfeld, I, 289. 
 
 * Journal of Philology, XVII, 42, seq. The only thing to make one suspicious is 
 his handling of the use of imperium in the later juristic writers; but his conten- 
 tion is in noway invalidated by this minor slip. 
 
 Cf . Mommseu, Staatsrecht, II, 878, not* 2. 
 
 20
 
 LEX DE IMPERIO VESPASIANI 21 
 
 proconsulare and the tribunicia potestas^ then generally 
 defining them, and as finally adding special provisions not 
 so closely connected with the conferred offices. Thus, the 
 first clause is closely connected with the proconsulare 
 imperium and the second can be given a consistent explanation 
 only in connection with the tribunicia potestas. It is, after 
 all, very natural that the powers conferred by the imperium 
 proconsulare and tribunicia potestas should be generally 
 defined, for these powers differ very widely from those of the 
 mere consul or proconsul, and of the tribune. In connection 
 with the former, the emperor had supreme power in matters of 
 war and foreign polity; the latter gave him a unique status in 
 relation to home affairs, and along these lines they are both 
 described. These would be the essential part of every Lex de 
 Imperio passed in favor of successive emperors. This comes 
 dangerously near being a law conferring a general authority 
 that is therein explained; and the ordinary way of thinking 
 about such legislation would be to regard it as a general 
 empowering measure, even when it would technically be a col- 
 lection of separate prerogatives. Tacitus, for instance, says in 
 one place 1 that the senate decreed to Vespasian all the prerog- 
 atives it was customary to confer on the princeps, and then in 
 another, 8 speaking of the same event, he says: "But on that 
 day of the senate when the house was considering the imperium 
 of Vespasian." Again, touching the accession of Otho, he 
 says: 3 "The senate runs together and decrees to him the tribu- 
 nicia potestas, the name of Augustus, and all the honors of the 
 princeps." And yet Tacitus refers* to Galba's holding comitia 
 imperil. In these cases the use of imperium is to be explained 
 as carrying the general meaning I have referred to. This 
 would be true, even if one resorts to the rather heroic explana- 
 tion that the expression comitia imperil is a "blosse Meta- 
 pher." 5 The only other possible explanation, which Mommsen 
 can not admit, since it would be fatal to his theory that the 
 imperium was excluded from the Lex, is that Tacitus is here 
 
 1 Hist., IV, 3 : At Romae senatus cuncta principibus solita Vespasiano decernit. 
 
 2 Hist., IV, 6: Ceterum eo senatus die quo de imperio Vespasian! censebant. 
 
 8 Hist., I, 47: Accurrunt patres; decernitur Othoni tribunicia potestas, et 
 nomen Augustl, et omnes principum honores. 
 
 4 Hist., I, 44: Sed Galba . . . quod remedium unicum rebatur, comitia imperil 
 transigit. 
 
 8 Staatsrecht, II, 841, note 4. 
 
 21
 
 22 LEX DE IMPERIO VESPASIANI 
 
 thinking of the proconsular imperium as being just as 
 important a part of the power as the tribuniciapotestas, although 
 the latter is the name most often used in this connection. But, 
 from the manner in which Tacitus uses the word, the former 
 interpretation, i.e., that imperium carries a general meaning, 
 is almost inevitable. Granting that men's thoughts had pre- 
 viously turned a little more to the constitutionally separate 
 prerogatives, we must still feel it intrinsically very probable 
 that the conception of the general power must always have 
 existed in spite of the specious forms of the principate. Nor 
 would it be strange that this should crystallize in the heated 
 activity of the year 69, when any day seemed likely to require 
 the legal and constitutional recognition of a new emperor. 
 Furthermore, I regard it as not impossible that with the more 
 clearly recognized character of the imperium we should connect 
 the fact that from the time of Vespasian the name of Imperator 
 ordinarily attaches to the reigning monarch as a praenomen. 
 Daie of the It remains for me to date the inscription and for this we can 
 
 find a very close approximation. The measure was first passed 
 in the form of a decree by the senate as soon as it received the 
 news of the death of Vitellius, 1 which occurred about December 
 20th, 69 A.D.* It was then brought by a magistrate before 
 the comitia, probably by one of the consuls before the comitia 
 centuriata. 3 Just how many days elapsed between the two 
 stages we can not state, owing to a gap in the Acta Arvalium, 4 
 which give the interval as twelve days in the case of Vitellius 
 and as seventeen in the case of Domitian ; but we shall prob- 
 ably not err seriously in assuming a similar interval for 
 Vespasian. Accordingly, our Lex ought to have been pub- 
 lished officially early in January of the year 70. 
 
 > Cf. Chambalu, De Magistratibus Flavlorum, 7-9, where the date is arrived at 
 by a method entirely different from the writer's and much more picturesque. 
 
 Cagnat, op. c. 179; Schiller, I, 398; Tac., Hist., Ill, 84 86; Josephus, B. I., IV, 
 11, 4 ; Dio Cassius LXV, 20-21 ; Zon, 11, 16; Oros. 7, 8, 7-9; Eutrop. 7, 18, 4-6; Aur, Viet., 
 Caes., 8, 6; Aur. Viet., Ep., 8, 5. 
 
 Mommsen, Staatsrecht, II, 875, note 1. 
 
 4 Acta Arvalium, Henzen, 64-66. 
 
 22
 
 LEX DE IMPERIO VESPASIANI 23 
 
 BIBLIOGKAPHY * 
 
 I. EPIGRAPHICAL 
 
 Acta Arvalium, Henzen. Berlin, Orelli-Henzen, Inscriptionum La- 
 
 1874. tinarum Collectio. Zurich, 
 
 Cagnat, Cours d'Epigraphie la- 1828-56. 
 
 tine. Paris, 1890. Rushforth, Latin Historical In- 
 
 Corpus Inscriptionum Latinarum. scriptions. Oxford, 1893. 
 
 Egbert, Latin Inscriptions. New Wilmanns, Exempla Inscriptio- 
 
 York, 1896. num Latinarum. Berlin, 1873. 
 
 II. GREEK AND LATIN AUTHORS 
 
 Appianus, Mendelssohn. Pomponius, Digest, Momm- 
 
 Aurelius Victor, Harles. sen, in Corpus luris 
 
 Cicero, Muller. Civilis. 
 
 Dio Cassius, Bekker. Scriptores Historiae Au- 
 
 Eutropius, Dietsch. gustae, Peter. 
 
 Gellius, Hertz. Strabo, Meineke. 
 
 Josephus, Niese. Suetonius, De Vita Caesa- 
 
 Orosius, Zangemeister. rum, Roth. 
 
 Papinianus, Digest, Moriim- Tacitus, Annals and His- 
 
 sen, in Corpus luris Civilis. tories, Halm. 
 
 Paulus, Digest, Mommsen, Ulpianus, Digest, Momm- 
 
 in Corpus luris Civilis. sen, in Corpus luris 
 
 Philostratus, Westermann. Civilis. 
 
 Plinius, Epistles, Keil. Zouaras, Dindorf. 
 
 III. LATER WRITERS 
 
 Abbott, Roman Political Institu- Auguste a Diocletien. Paris, 
 
 tions. Boston, 1901. 1884 
 
 Bruns, Fontes luris Romani An- Detlefsen, Das Pomerium Roms 
 tiqui. Sixth edition, Frei- und die Grenzen Italiens, 
 
 burg, 1893. Hermes, XXI ( 1886), 497 
 
 Cantarelli, La Lex de Imperio seq. 
 
 Vespasiani, Bulletino com- Gardthausen, Augustus und seine 
 
 unale XVIII (1890), 194 seq. Zeit. Leipzig, 1891-96. 
 
 and 235 seq. Greenidge, Roman Public Life. 
 
 Chambalu, De Magistratibus Fla- London, 1901. 
 
 viorum. Bonn, 1882. Gravina, De Ortu et Progressu 
 
 Cola di Rienzi, Epistolario di-, luris Civilis. Venice, 1758. 
 
 A. Gdbrielli; Vita Anonyma Hirschfeld, Untersuchungen auf 
 di-, Re. dem Gebiete der romischen 
 
 Cramer, Vespasian. Jena, 1785. Verwaltungsgeschichte. Ber- 
 
 Cuq, Le Conseil des Empereurs d' lin, 1877. 
 
 * The Bibliography could have been enlarged to almost any extent, but I have 
 chosen to make it less cumbersome at the natural expense of making it less Impos- 
 ing. 
 
 23
 
 24 
 
 LEX DE IMPERIO VESPASIANI 
 
 Karlowa, Romische Rechtsge- 
 schichte. Leipzig, 1885. 
 
 Madvig, Die Verfassung und Ver- 
 waltung des romischen 
 Staates. Leipzig, 1881-82. 
 
 Merivale, History of the Ro- 
 mans under the Empire- 
 London, 1875-76. 
 
 Merlin, Melanges d'Archeologie et 
 Histoire, XXI, 1-2. 
 
 Mispoulet, Les Institutions poli- 
 tiques des Romains. Paris, 
 1882-83. 
 
 Mommsen, Staatsrecht. Third 
 edition, Leipzig, 1887. 
 
 Nissen, Beitrage zum romischen 
 Staatsrecht. Strassburg, 1885. 
 
 Padeletti, Romische Rechtsge- 
 schichte. Berlin, 1879. 
 
 Pelham, On some disputed Points 
 connected with thelmperium 
 
 of Augustus and his Succes- 
 sors, Journal of Philology, 
 XVII (1888), 27seq. 
 
 Pick, De Senatus Consultis Ro- 
 manorum. Berlin, 1884. 
 
 Rein, art. "Lex Regia," in Pauly's 
 Encyclopadie. 
 
 Schiller, Geschichte der romi- 
 schen Kaiserzeit. Gotha, 
 1883-87. 
 
 Schiller, Romischen Staatsalter- 
 thumer, vol. IV of I. Muller's 
 Handbiicher. 
 
 Stobbe, Die Candidati Caesaris, 
 Philologus XXVII (1868), 88 
 seq. and XXVIII (1869), 648 
 seq. 
 
 Walter, Geschichte des romi- 
 schen Rechts. Bonn, 1845. 
 
 Willems, Droit public romain. 
 Sixth edition. Paris, 1888. 
 
 24
 
 VITA 
 
 I, FRED B. R. HELLEMS, was born in Welland, Ontario, on the first 
 of September in the year 1872. From 1883 to 1889 I attended the high 
 school in that town. From 1889 to 1893 I was working in University 
 College, Toronto, for my bachelor's degree, and was Fellow in Latin of 
 the same institution from 1893 until the dismissal of the honored head 
 of my department, Professor William Dale, in 1895. From 1895 to 
 1898 I was the holder of a Fellowship in the University of Chicago, 
 spending two years in residence and one in Italy and Greece as a 
 member of the American School for Classical Studies at Rome. 
 
 At the University of Toronto it was under Professors Maurice 
 Hutton and William Dale, each an incorporation of his subject, that 
 most of my work was done, although I also spent many pleasant hours 
 with Mr. H. R. Fairclough and Mr. W. S. Milner. From Toronto I 
 went to the American School for Classical Studies at Rome, which was 
 being guided through the countless and insidious dangers of its initial 
 year by Professor W. G. Hale with a vigorous hand and a refined skill 
 that can only be valued rightly by those who actually saw the difficul- 
 ties and the solutions. Courses in the School were given by Professor 
 Hale and Mr. A. L. Frothingham, and in addition to these I was 
 enabled by the efforts of the Director of the School to take regular 
 work under Professor Hiilsen in Topography, Professor Petersen 
 in Archaeology, Professor Mau in Pompeian Antiquities, Professor 
 Milampo in Palaeography, and Professor Stevenson in Numismatics. 
 At the University of Chicago I attended courses given by Professors 
 Hale, Shorey, Abbott, Hendrickson, Buck, and Tarbell. To all of 
 these I am deeply indebted, although not to each for the same sort of 
 benefit. 
 
 In connection with this paper I should like to state that nobody 
 could appreciate more than I the most patient and kindly efforts made 
 by Professor F. F. Abbott of the University of Chicago to save it from 
 errors. All that accurate and scholarly supervision could do, Professor 
 Abbott has done; but even his kindness could not be expected to 
 bestow merits of a positive sort on a thesis for which the writer must 
 be solely responsible. 
 
 Readers who have struggled with the Capricious proof sheet will 
 recognize my indebtedness to Mr. H. C. Newton of Cornell University, 
 who has favored me with the aid of a most accurate eye and mind. 
 
 There remains a debt of a different sort to Mr. Alfred T. DeLury 
 of the University of Toronto and Professor Edward Capps of the Uni- 
 versity of Chicago. Inasmuch as this debt will be understood at once 
 by those who have been fortunate enough to enjoy the friendship of 
 either of these men and cannot be explained to others, I must content 
 myself with this acknowledgment, as sincere as it is vague. 
 
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