The Augustan Empire 43 BC

Augustus told the world how he wished it to think about this in the Res Gestae. Minimizing his formal powers, and insisting on his rejection of powers contrary to mos maiorum, he asserted that what he predomi­nated in was auctoritas,^xl the predicate of'being accepted as a top person' that the 'chief men' (principes virt) of the Republic had been said to possess, by which the things he commanded were done simply because it was he who commanded them. Some historians have tried to show that unofficial auctoritas was turned — by some step that has eluded us - into an official power of legislation, or that it replaced imperium as the formal statement of total power, or that by an edict of 28 B.C. Augustus received a formal 'Principate' that carried all else with it.¹⁸

There is no compatibility between the two pictures, and no com­promise will accommodate both; it is necessary to choose. The choice made in chapter 2 and in the present account, of the more old-fashioned, 'minimalist' - and at present heterodox - picture of the 'Augustan constitution' imposes some immediate caveats and clarifications. First, to repeat: neither picture is an account of de facto power; both are accounts of descriptions, justifications, legitimizations, of power. To choose the first is not, therefore, to imply that Augustus finished up any the less the de facto ruler of Rome; it is to say that he and his contempor­aries clothed his rule in concepts that were not yet of the monolithically monarchical kind familiar to the Severan emperors and their contempor­aries two hundred years later. Secondly it imposes the duty to offer an alternative account of at least three texts, but especially of the sixth clause of the lex de imperio Vespasiani, the so-called 'discretionary clause'.[248]

The difficulty about believing that clause to mean, baldly, what it seems to imply - that is, that Augustus already had total, formal power to act at will — is that it would have made otiose the whole of the rest of the document, including the grants of the major specific powers that presumably occupied the missing first tablet. Proper significance needs, instead, to be given to its position in the list of regulations: it belongs to a closing group, in which the seventh clause grants the new ruler exemption from certain statutes and the eighth validates retrospectively his actions before becoming ruler. That position establishes for the sixth clause its natural and appropriate role as a grant of residual emergency powers.[249] It is, in any case, erroneous to invoke the 'discretionary clause' as a prop for the ruler's legislative authority, for it gives him power to do things, whereas legislation is only in a truistic sense the 'doing' of things: it is the creation of rules, an altogether broader activity.

Gaius, writing an elementary law-book in the second century a.d., sounds uncomfortable in his protestation (if it is his) that 'no one has doubted' that a constitutio principis has the force of statute. Such was certainly correct doctrine in his own day, and perhaps we should simply infer from his embarrassment that he knew that earlier constitutional statements had not taken that form. But Gaius' passage is in a more parlous state still, for it continues by giving a reason for the principle that a constitutio principis has the force of statute which is deficient in logic:'... because the emperor receives his imperium by statute'. The поп sequitur is so blatant as to cast doubt whether Gaius could have penned such an absurdity. It bears, too, the marks of an unintelligent echo of Ulpian's account, quoted in Justinian's Digest, of what is there called the 'royal law', lex regia;[250] it is in all probability an intrusion into the real text of Gaius, which will simply have stated the rule about imperial pronounce­ments that prevailed in his day.

The third text is that of Strabo. He was a contemporary and a serious author; but his assertion that Augustus received 'headship of the hegemony' and 'the power of war and peace for life' comes at the end of his Geography. That is not a work of legal science, and he is not making a constitutional statement. (He is, in fact, detailing the division of the provinces into 'people's provinces' and 'Caesar's provinces'; and that was actually accomplished not by virtue of any great overriding power of Augustus, but, in all probability, in a senatorial debate.)²²

The case, then, for Augustus having been granted a formal 'consti­tutional monarchy' does not prevail over the account, derived from Dio and elsewhere, of his receiving at different stages a concatenation of particular powers; and when Dio himself says that it was from the beginning 'unalloyed monarchy'²³ he is not giving a description but making a comment.