Geschichte und System der Römischen Staatsverfassung. 11te Band. Die Kaiserzeit. I Abtheilung.

Geschichtliche Uebersicht.

Von E. HERZOG. Leipzig 1887. 10 Mks.

Ir is not easy to criticise this first instalment of Dr. Herzog's second volume on the Roman Constitution, pending the appearance of the promised second part dealing with the 'System'; for on several important points we are left in the dark either as to the author's views or as to his reasons for them, and the note, 'For this see my System,' recurs perhaps with necessary, certainly with a rather tantalising, frequency. Theoretically no doubt it is right that the analysis of a constitutional system should be kept in the closest possible relations with its historical genesis and with the general historical conditions which surrounded it. But we cannot help thinking that Dr. Herzog has written his preliminary historical sketch at unnecessary length, and with the double result of somewhat obscuring what is the real subject of his work, the main lines of constitutional development, and of giving a rather confused because overcrowded picture of the general situation. At the same time the volume will probably serve as a useful supplement to Prof. Mommsen's Staatsrecht. The style, though a little monotonous, and wanting in emphasis, is, except for a few passages in the notes, clear and readable; the authorities are fully given; and if there is little originality there is plenty of common sense, and no lack of learning.

Dr. Herzog's theory of the Principate' is, he tells us, in the main that of Mommsen himself (Introd. p. xiv.), but not without some important differences. He does not agree with Mommsen's view either of the significance of the 'tribunicia potestas' as an element in the imperial prerogative, or of the nature of the so-called 'lex de imperio'; but his own view on these points is not clearly stated in the present volume, though I gather that as regards the latter he holds, as I believe rightly, that the 'lex' conferred the 'impe

rium' as well as the tribunician power. But it is impossible to follow him in reasserting the old explanation of the title 'princeps' as an abbreviation of 'princeps senatus'; nor do his arguments (p. 134, note 2) prove his case. He does not get over the fact that in the Ciceronian age 'princeps' was already

used in a sense which almost exactly anticipated its use under the Empire. That Dio wrong in connecting princeps' and 'princeps senatus' (57, 8) is almost sufficiently proved by the words of Tiberius which he goes on to quote: “ τῶν δὲ δὴ λοιπῶν πрóκριτós eiμ,' i.e. of all the rest, of the mass of citizens, as distinct from slaves and soldiers, I am 'princeps'-words wholly inapplicable to a mere 'princeps senatus.' Nor does the Ancyran monument really help Dr. Herzog. Augustus, it is true, states the fact that he was first on the senatorial roll (prov åέiúμatos Tótov oxov), and also uses the phrase 'me principe' without mentioning any time at which he received this title, or any Act by which it was conferred upon him. But the inference from this is not that the latter title in its absolute form was gradually derived from the former; for 'princeps was never in strictness an official title at all, but only a title of courtesy derived from no other authority than popular usage, and as such never appearing as a part of the formal titulature of the emperors.

On one other point the author emphasises his dissent from Professor Mommsen. He declines to regard the 'salutation by the soldiery' as having been from the first an equally valid mode of conferring the imperium with the acclamation by the senate. This, he holds, was not the case until the third century. But the truth is that so far as concerned the designation of the princeps, i.e. the selection of the individual on whom the imperial prerogatives should be ferred, one method can hardly be said to have been more legitimate than another. Nothing in the constitution new or old prescribed any particular form of designation, just as there was nothing in the constitution requiring that there should be a princeps at all. Necessity made it clear that there must be a 'princeps'-a variety of circumstances decided how he should be selected; but once selected, he received his powers in the manner prescribed from ancient times-by a vote of senate and people. It is on this vote, and this alone, the force and scope of which Dr. Herzog recognises more fully than Mommsen, that the legality of the 'princeps' position depends.1

In Dr. Herzog's account of the Augustan 1 I have discussed this point more at length in the current number of the Journal of Philology.

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system, as it is conveniently called, there are several points which call for notice. difficulty has always been felt in defining Augustus' legal position between the expiry of the triumvirate and the inauguration of the new system in 27 B. C. Even if Herzog's suggestion (p. 94) that the triumvirate expired not in Dec. 33, but in Dec. 32, were more probable than it appears to me to be, it only postpones the difficulty for a year. Mommsen's view that Augustus remained vested with triumviral authority until he voluntarily laid it down in 28 Herzog rejects; but his own solution is at least not more satisfactory. He infers from Augustus' words, 'bella ubi civilia exstinxeram per consensum universorum potitus rerum omnium,' that after the victory at Actium there was some formal act conferring extraordinary powers upon Augustus and thus legalising his position (p. 132). But as he confesses, no such act is mentioned by any ancient authority, while Tacitus so far favours Mommsen's theory that he appears to connect the establishment of the principate immediately with the abolition of the triumviral régime. There is force too in Mommsen's remark that the phrase 'per consensum' (Gk. xarà ràs cixás) excludes rather than implies the supposition of a definite legalising and empowering act: on the whole the most probable view seems to be that during these few years of critical struggle there was neither time nor inclination to give any precise legal form to the authority which Augustus obviously possessed in fact, and in which every one was for the moment ready to acquiesce.

The importance of the enactments of the year 23, by which the outward form and legal basis of the principate were finally determined, is, I am glad to see, fully recognised by Dr. Herzog, who is almost certainly right in rejecting Mommsen's attempted distinction between 'referre' and 'relationem facere,' and in refusing to allow that the 'imperium' was not valid in Rome and Italy as much as in the provinces (pp. 169, 170). It is the more to be regretted that he should have fallen into an error against which Mommsen has by anticipation protested, and should speak of the principate as a 'magistracy' interpolated by Augustus into the midst of the old republican system (p. 164). For from the time when Augustus laid down his consulship in 23, the distinctive feature in the position of the 'princeps' is that technically he is not a magistrate. The principate was never an office, and the 'princeps' was only a citizen on whom certain powers had been conferred by senate and people.

If we

In the history of the principate from Augustus to Diocletian Dr. Herzog distinguishes three periods: The first, extending to the death of Domitian, is that in which 'the principate bears the marks of a tyranny in the Greek sense of the word' (p. 232), i.e. of a régime in which the personality of the ruler determines everything, and for good or evil forces into the background the constitutional machinery.' The second period is characterised by the 'bureaukratisch-konstitutionelle imperium' founded by Nerva and Trajan. In the third period, that of the soldier emperors, the military power asserts itself recklessly, in spite of intervals of constitutional government such as the reign of Severus Alexander. I cannot regard this division as in all respects a happy one. From the point of view of constitutional no less than of general history the first period should close with the accession not of Nerva, but of Vespasian, and the Flavian emperors should be placed where for instance Schiller rightly places them, in close and immediate connection with the emperors of the second century. In all essentials the period covered by the reigns of the emperors from Vespasian to Septimius Severus is one and indivisible. Nor are the reasons which the author gives for his own arrangement convincing. look to the differences in the birth and origin of the emperors, the line of division must surely be drawn not between Vespasian and Trajan, both of whom equally belonged to the 'nouvelles couches sociales,' but between Nero, the last of the patrician 'principes' of the blood of Julius and Augustus, and Vespasian, the son of a tax-collector and moneylender. Nor can the fact that under the Flavii the principate was again for a time 'unius familiae haereditas' justify us in ranking them with the Julio - Claudian emperors. The prestige which attached to descent from Julius was altogether wanting to the prosaic and plebeian Flavii. Mommsen has well said (Staatsrecht ii. 718), 'mit dem Aussterben der Julier und Claudier, erlosch dann jener besondere Göttersegen den der neue Romulus, gleich dem ersten als Erbtheil von seinem göttlichen Vater empfangen hatte. . . . der sacrale Schimmer der den Morgens des Principats umleuchtet hatte, wich von ihr in der vollen Tageshelle und in dem düstern Abendgrauen.' But if I understand him rightly the main ground on which Dr. Herzog bases his division of periods is the distinction between the tyrannical' or autocratic character of the principate down to the accession of Nerva and what he calls, as we have seen,

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the 'bureaucratic constitutional rule' of the emperors who followed. There is no doubt a certain element of truth in the distinction, for with the exception of Commodus, the second period can show no rulers of the type of Gaius and Nero; but nevertheless it is a distinction which is both superficial and misleading. In reality Vespasian and his successors were far more autocratic than their predecessors. The capricious self-will and insane excesses of some of the latter must not blind us to the fact that their personal control of the machinery of government was far less than that exercised by Trajan and Hadrian, or even by Vespasian. Under the Julio-Claudian emperors the magistrates and senate on the one hand, and the 'princeps' on the other, were still sufficiently on a level to be objects of jealous suspicion to each other. But the emperors of the second century, assured of their supremacy, were able to leave a senate and magistrature, now composed of new men, creatures of their own, to play undisturbed at government within the narrow limits to which they were restricted, and even to graciously use the senatorial machinery as an instrument of their own government. To men of the first century 'libertas' still meant the constitutional independence of the republican authorities as against the encroachments of the 'princeps'; to those of the second it meant only personal security for life and property. The distinguishing features of imperial rule in the age of the Antonines, the increasing personal activity of the 'princeps,' the elaboration of a purely imperial administrative system, the extension of imperial control over every department of public life, and along with this the half-contemptuous toleration extended to the powerless republican machinery, are features which first clearly appear under the rule of the Flavii.

The accession of Septimius Severus, as Dr. Herzog rightly holds, marks the commencement of a fresh stage. But all important as the third century is for the general history of the empire, it is not equally so for the development of the imperial system. Changes no doubt there were, but for the most part, following the lines laid down in the preceding century, they were in the direction of a further development of the imperial administrative service, and a more complete exclusion from imperial affairs of the senate and of the republican magistrates. The new position of the princeps as an absolute ruler was, as Dr. Herzog has admirably pointed out (p. 459), at once confirmed and justified by lawyers like Papinian and Ulpian,

Orientals by birth, who wrote up the imperial prerogative with Eastern zeal. The courtesy with which Severus Alexander treated the senate implies no change in policy; nor did the fact that the senate was on a few occasions allowed to select the 'princeps' result in any increase of its powers when the 'princeps' was once appointed. All this our author has clearly shown, and if we are to find any fault with this last portion of his work, it would be that he has not laid sufficient stress on the extent to which the system of government associated with the name of Diocletian was already in operation before Diocletian ascended the throne; for it is not only in details (p. 601), or only in the military system and, in the court life, that the system of the fourth century was anticipated in the third. We have already in principle the elaborate official hierarchy and the separation of the civil from the military career; already too the social structure has begun, under the action of government, to stiffen into that system of something like caste which meets us in the Codes of Justinian and Theodosius.

It only remains to notice briefly a few points of interest. I am glad to see that Dr. Herzog implicitly rejects Mommsen's suggestion that Julius seriously contemplated a revival of the old monarchy (pp. 3, 43), and holds on the contrary that we have no means of deciding what outward form and title the dictator intended to give to the power he had created. Nor does he accept Mommsen's conjectural completion of Caesar's title as dictator (reipublicae constituendae causa) (p. 4). But his own interpretation (p. 11) of Suetonius' words (Caes. 41), 'admisit ad honores et proscriptorum liberos,' as re ferring to the sons of men proscribed by Caesar himself, will scarcely hold good. The measure was a repeal of Sulla's law, a repeal for which Caesar had pleaded in earlier days, and affected the sons of those proscribed by Sulla in 81. On the difficult question of Agrippa's position before 18 B.C. there is plenty of room for difference of opinion; but on the whole Dr. Herzog has not improved upon Mommsen's view that Agrippa was possibly as early as 27 B.C. invested with 'imperium proconsulare' (p. 159). In his account of the reign of Claudius full justice is done to the administrative skill of the imperial freedmen, but the importance of the work they accomplished in developing an imperial as distinct from the public administrative service is not sufficiently emphasised. On the controversy between Mommsen and Schiller as to the original aims and intentions

of Vindex and Galba Dr. Herzog has a long note (pp. 239, 240), in which he decides that the insurgent generals were only 'adsertores libertatis' in so far as they wished at first to leave to the senate the choice of a new emperor. That the movement was really republican he denies. It is probably by a slip that (on p. 336) the statement in the Liber Coloniarum (s.v. Verulae) 'ager ab imperatore Nerva colonis est redditus,' is quoted as proving the colonisation of Verulae by that emperor. Pending the appearance of the second part of the work it is not possible to say what the author considers to have been the scope of Tiberius' transfer of

the elections to the senate, and in particular whether he considers that the change affected the consulship, though his language, 'die Uebertragung des Wahlrechts für die sämmtlichen ordentlichen Magistrate' (p. 243), would, but for the foot-note, imply that he does. I will conclude with a word of praise for the ingenious attempt to infer from the sketch of the imperial system which Dio attributes to Maecenas that historian's own attitude towards the policy of Severus Alexander and his adviser Ulpian (p. 496).

H. F. PELHAM.

HESIOD.

24.-BRIT. MUS. Burney MS. 109 (ff. 25—42). Paper: ff. 18. 117 inches. Minuscules. With other pieces by Theocritus, l'indar [No. 34], etc. Beginning of XV cent.

Belonged to Jo. Car. de Salviatis.

1. “ Ασπίς Ἡσιόδου.” f. 25.

Unfinished ending 1. 134.

2. « Ἡσιόδου ἔργα καὶ ἡμέραι.” f. 28.

25.-BRIT Mus. Arundel MS. 522 (ff. 1—58). Paper: ff. 58. 8 x 5 inches. Minuscules. Written in Italy. With plays of Euripides [No. 44], etc. A.D. 1489.

1. “ Ἡσιόδου ἔργα καὶ ἡμέραι.” f. 1.
With scholia and glosses.

2. “ Ἡσιόδου θεογονία.” f. 35.

26.-BRIT. MUS. Harley MS. 5724 (ff. 31—41). Paper: ff. 11. 8 x 5 inches. Minuscules. Written in Italy. With works of Euripides [No. 45], Xenophon, Demosthenes, Lucian, etc. Late XV cent. Belonged to the Jesuit College of Agen in France. « Ἡσιόδου ἀσπὶς.”

Paley's MS. O. Collated for Robinson's edition. 1737.

27.-BRIT. MUS. Harley MS. 6323 (ff. 39-68). Paper: ff. 30. 11 x 7 inches. Minuscules, in very rough writing. Written in Italy. XVI cent.

Ἔργα καὶ ἡμέραι : scholia and glosses in Latin.

28.-BRIT. MUS. Harley MS. 5663 (ff. 115, 116). Paper: ff. 2. 85 inches.

Written in Italy. XVI cent.

Ἔργα καὶ ἡμέραι, 11. 81-164.

29.-BRIT. MUS. Burney MS. 82.

ff. 28. 7×5 inches.

writing. XVI cent.

Minuscules.

Vellum:

Minuscules, in very rough

«Ησιόδου ἔργα καὶ ἡμέραι.”

PINDAR. 34.-BRIT. MUS. Burney MS. 109 (ff. 42b.— 142). Paper: ff. 101. Minuscules. With works of Hesiod [No. 24], and others. Beginning of XV cent. 1. « Πινδάρου Ολυμπιονίκαι.” f. 428. 2. “Αρχὴ Πυθίων.” f. 70.

3. “Αρχὴ τῶν Νεμέων.” f. 1056. 4. Ισθμιονίκαι. f. 129.

κλεινὸς

5. Fragment: "Kλewòs Alaкoù λóyos," etc. f. 142.

35.-BRIT. MUS. Harley MS. 1752 (ff. 82—191). Paper: ff. 103. 9 x 6 inches. Minuscules. Written in Italy. With Homeric Hymns [No. 18], etc. XV cent.

1. “ Στίχοι ἡρωικοὶ ”: verses on Pindar. f. 896.

2. “ Πινδάρου Ολυμπιονίκαι”: glosses in red, and scholia. f. 90.

3. “ Πινδάρου Πυθιονίκαι.” f. 1316.

4. “ Πινδάρου Νεμεονίκαι," iii. f. 184.

36.-BRIT. MUS. Harley MS. 5733. Paper: ff. 123. 8 × 5 inches. Minuscules. Written in Italy. A.D. 1492.

Belonged to the Jesuit College of Agen in France. 1. “ Πινδάρου Ολύμπια.” f. 1.

2. “ Πινδάρου Πύθια,” i—iv. f. 73. Glosses throughout, with a few scholia; and a few marginal notes in Latin.

37.-BRIT. MUS. Burney MS. 98 (ff. 1—41). Paper: ff. 41. 8x6 inches. Minuscules. XVI

cent.

4. “Υπόθεσις τοῦ δευτέρου δράματος.” f. 96. 5. Ηλέκτρα. f. 97.

Colophon : “ Τέλος Σοφοκλέους Κλι ταιμνήστρας σφαγή."

Glosses and scholia throughout.

With

41.—BRIT. MUS. Harley MS. 5743 (ff. 1—62). Paper: ff. 62. 8× 6 inches. Minuscules. Euripides [No. 48]. Beginning XVI cent.

"Librum hunc Tragoediarum Sophoclis et Euripidis acquisivit Ludovicus Bourguetus, Nemausensis, a doctore Antonio de Blanchis, Veronæ, d. 4 Octobris, A.D. 1702." Bought for the Harley Library, 1 May, 1729.

1. “ Σοφοκλέους Τραχινίων ὑπόθεσις.” f. 1. 2. " Σοφοκλέους Τραχίνιαι.” f. 26.

3. “Υπόθεσις Σοφοκλέους Φιλοκτήτου.” f. 296.

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1. “ Σοφοκλέους Αἴας μαστιγοφόρος.” f. 1. Colophon : “ Τέλος του πρώτου δράματος. 2. 'Hλékrpa: with argument. f. 26. 3. “ Σοφοκλέους Οἰδίπους τύραννος" : epigram of Aristophanes Grammaticus. f. 51. 4. Explanation of the title. f. 51b. 5. “Τὸ τῆς σφιγγός αἴνιγμα.” ibid. 6. Οἰδίπους τύραννος. f. 52.

7. Argument of Aristophanes Grammat. to the Antigone. f. 77.

8. 'Avτiyóvη: 11. 1—10. f. 776. Left unfinished.

See Cat. Arund. MSS.