appear in the curia, a small senate was empowered to meet in his house and pass resolutions in the name of the whole senate. This body consisted of his son, his two grandsons, the consuls in office and the consuls designate, twenty senators chosen for a year, and other senators whom the Emperor himself selected for each sitting. This political consilium was no part of the constitution, and was in fact, under the early Principate, only adopted by Augustus himself and his successor Tiberius. It must be carefully distinguished from the judicial consilium, which will be mentioned below.
It has been already mentioned that the joint rule of the Empire by the Emperor and the senate is sometimes called a dyarchy. It was a dyarchy that might at any moment become openly, as it was virtually, a monarchy. For the Emperor possessed the actual power through his control of the army, and if he had chosen to exert force he might have destroyed the political existence of the senate. But the change of the dyarchy into a monarchy was wrought gradually, and was partly due to the incompetence of the senate, which invited the interference of the sovereigns. The maius imperium was changed by degrees into the direct rule of those provinces which were not part of the Emperor's proconsular province. But Augustus was thoroughly in earnest in giving to the senate a distinct political position and substantial powers. He carefully abstained from interfering in the provinces which were not within his Imperium. He was a man of compromise, and the constitution which he framed was intended to be a compromise between the democratic monarchy, which as the son of Julius he really represented, and the aristocracy. He was anxious to wipe out the memory of the civil wars and to have it forgotten that he had been the champion of the democracy. While he continued to bear the name of the divine Julius, he seems not to have cared to dwell on the acts of the great Dictator; and it has often been noticed how rarely the poets of the Augustan age celebrate the praises of Julius Caesar. We may safely say that no statesman has ever surpassed Augustus in the art of withholding from political facts their right names.
There are many points in the Augustan system which are not plain in their constitutional bearings. But the general lines are clear enough. The careful balancing between the rights and duties of the two political powers produced some artificial arrangements which could not last, and which were soon altered, either formally or tacitly, at the expense of the senate. But the main principle of the system founded by Augustus—the fiction of the independent and co-ordinate government of the senate—was not entirely abandoned for three centuries.
The division of the labors and privileges of government between the senate and the Emperor may be considered under five heads: administration, jurisdiction, election of magistrates, legislation, and finances.
(1) Most of the administrative functions, which the senate discharged under the Republic, especially in its later period, did not belong to that body by constitutional right, but were acquired at the expense of the supreme magistrates, to whom they truly belonged. Many of these powers were confirmed to it under the Empire.
a. The powers which the senate had exercised in the sphere of religion, such as the suppression of foreign or profane rites, it continued to exercise in the imperial period.
b. The rights of making war and peace, and negotiating with foreign powers, were taken away from the senate; but in unimportant cases the Emperor sometimes referred foreign embassies to that body.
c. The authority of the senate in the affairs of Italy continued unimpaired.
d. The affairs of Rome were at first entirely under the management of the senate, but the incompetent administration of that body soon demanded the intervention of the Emperor
e. The provinces were divided into imperial and senatorial; and the administration of the latter was in the hands of the senate. But the Emperor had certain powers in the senatorial provinces, as will be explained in a later chapter. On the other hand, the senate had a small hold on the imperial provinces (except Egypt), in so far as the Emperor appointed only senators as his governors.
(2) The senate, as the council of the chief magistrates, sometimes exercised judicial functions under the Republic, as for example in the case of the Bacchic orgies (186 B.C.). But such cases were only exceptional. Augustus made the senate a permanent court of justice, in which the consul acted as the presiding judge. This court could try all criminal cases; but in practice only important causes, in which people of high rank were involved, or in which no specific law was applicable, came before it. The Emperor could influence this court in two ways, (1) as he was himself a member of it, and (2) by the right of intercession, which he possessed in virtue of his tribunician power.
Besides the court of the consul, in which the senate acted as jury, there was the court of the Emperor. He could pass judgment without a jury, though he generally called in the aid of assessors, who were called his consilium, a distinct body from the political consilium mentioned above. Every case might come before his court as before that of the senate. But practically he only tried cases of political importance or in which persons of high position were involved.
It lay in the nature of things that in these two new courts only special and important causes were tried. Ordinary processes in Rome and Italy were decided, as in former days, by the ordinary courts of the praetors (quaestiones perpetuae), who still continued to exercise their judicial functions. But senators were now entirely excluded from the bench of indices who appear to have been nominated by the Emperor.
In the provinces justice was administered by the governors, but they had no jurisdiction over Roman citizens, unless it was specially delegated to them by the Emperor. Roman citizens could always appeal from the provincial courts to the higher courts at Rome. The appellatio to the Princeps seems to have been made legal by a measure of 30 B.C.. On the principle of the division of power between senate and Princeps, appeals from the decrees of the governors of senatorial provinces should have been exclusively directed to the senate. But on the strength of his imperium maius the Emperor often received appeals from senatorial as well as from imperial provinces. Appeal could only be made against the sentence of an official to whom judicial power had been delegated, it could not be made directly against a jury; but it could be made against the decree of the magistrate which appointed the jury.
(3) Under Augustus the senate had no voice in the election of magistrates. The Emperor was himself able to control the elections in the comitia in two ways. (1) He had the right to test the qualification of the candidates and conduct the proceedings of the election. This right regularly belonged to the consuls. But when Augustus set aside the consulate for the tribunician power in 23 B.C., it seems that he reserved this right by some special clause. He was thus able to publish a list of candidates, and so “nominate” those whom he wished to be elected. He used only to nominate as many as there were vacancies. (2) He had the right of commendation (commendatio or suffragatio). That is, he could name certain persons as suitable to fill certain offices; and these candidates recommended by the Emperor (candidati principis) were returned as a matter of course. The highest office, however, the consulate was excepted from the right of commendation.
(4) In regard to legislation the senate was theoretically in a better position under the Empire than under the Republic. Originally and strictly it had no power of legislation whatever. The decisions of the senate, embodied in senatesconsulta, did not constitutionally become law until they were approved and passed by an assembly of the people. But practically they came to have legal force. The confirmation of the people came to be a mere form, and sometimes the form was omitted. It is possible that it was omitted in the case of the decree which conferred the Imperium on Augustus.
Under Augustus the senate became a legislative body and in this respect took the place of the assembly of the people. From it and in its name issued the laws which the Emperors wished to enact; just as the laws (leges) proposed by the republican magistrates were made by the people.
The senate alone had the power of passing laws to dispense from the operation of other laws, and the Emperor himself, who was bound by the laws like any other citizen, had to resort to it for this purpose. For example, in 24 B.C. asenatus consultum freed Augustus from the Cincian law which fixed a maximum for donations. The special exception of particular persons from the law which defined a least age for holding the magistracies, was at first a prerogative of the senate, but the Princeps gradually usurped it. To the senate also belonged exclusively the