From the Gracchi to Nero: A History of Rome from 133 B.C. to A.D. 68 (32 page)

Roman legal science, no less than other branches of Roman thought, was compelled during this period to come to terms with Hellenism, but as its roots went down deep into Italian soil, it was not overwhelmed by Greek influences: rather, it accepted or rejected at will. Roman sacred law had originally been exclusively in the hands of priests, especially the college of pontiffs, who had gradually encroached into the realm of private law. During the third century secular jurisconsults increasingly helped in the development of private law alongside the pontifical jurists, and before the end of the
Republic laymen were beginning to concern themselves with sacral law. But all this is less surprising when it is realized that all these men enjoyed the same social background: they were all members of the governing nobility, and many of the priests held public magistracies. But although the three famous members of the Mucian
gens
who all held the office of Pontifex Maximus, P. Mucius Scaevola, P. Crassus Mucianus and Q. Mucius Scaevola the ‘Pontifex’ (p. 22), all acted as consultants in private law, after their time the pontiffs began to withdraw from this activity. Later in the Ciceronian age the jurisconsults began to come from a different social class; some were of equestrian stock, others of even humbler origin, while a few men even broke off a public career to dedicate themselves to the law.

In addition to their practice some legal experts turned to writing. The publication of the Annales Maximi by the Pontifex Maximus P. Scaevola (p. 167), provided much material for legal, religious and secular history, and his son Q. Scaevola (
cos.
95) published the first systematic treatise on the Ius Civile, an exposition of the whole private law. Q. Fabius (
cos.
142) had published a large work on pontifical law, and in the late Republic at least four augurs wrote on augural law. Cicero’s friend Servius Sulpicius Rufus (
cos.
51), who was a jurisconsult of the older traditional type, wrote on the praetorian edict and on sacral law.

Nothing can be said here about the content of Roman law, which was one of the finest achievements of the human mind, but it is noteworthy that in the last century or so of the Republic civil procedure was being adapted to new needs. The old stereotyped procedure (
legis actio
), by which the issues to be tried were settled before a praetor, had proved too rigid and was modified under a
lex Aebutia
(
c.
150) by the introduction of an alternative formulary system under which the praetor could allow formulas that were drafted to meet the requirements of the specific case: the
legis actiones
virtually disappeared under Augustus. At the same time Rome’s own
ius civile
, which had proved inadequate in dealing with foreigners, had been adapted for this purpose to the
ius gentium
(i.e. Roman law as applied to foreigners). Beside the old
ius civile
there also gradually grew up a whole body of law arising from the edicts of magistrates, especially praetors (
ius honorarium
); the two systems combined, much as common law and equity have united to make up the English legal system. With the growing mass of statutory provisions, actions and the interpretations often embodied in the
responsa
of jurisconsults, Q. Scaevola was clearly undertaking a very necessary task in publishing a systematic account of the
ius civile
. The main development in criminal law in the period was the establishment of various
quaestiones perpetuae
and their development by Sulla and Caesar. The different
leges
which created them, however, dealt with single crimes and little attempt was made to produce a coherent code of criminal law.

The two philosophic systems that appealed most to educated Romans, and whose study in fact formed part of their education, were Stoicism and Epicureanism.
¹⁵
Something has already been said about the reception of the former at Rome by the Scipionic circle, which was joined by the Stoic Panaetius (p. 10 f.). His influence and that of his creed were profound; it was later reinforced by the teaching of Posidonius, whose contribution to historiography has been mentioned above (p. 167). Beside revising further the system of the early Stoics, he displayed wide scientific interests (e.g. he calculated the circumference of the earth), and through his natural philosophy Stoicism influenced many scientists (e.g. astronomers and the geographer Strabo). By identifying political and ethical activities, sanctioned by religious duty, he further enhanced the influence of his creed on Roman life; not least among its followers were Cato and M. Brutus. The rival creed of Epicureanism, proclaimed with such religious fervour by Lucretius, gave solace to many, but its impact on public life will have been negative in that it withdrew men from politics. Only once did some of its adherents desert their philosophic scruples and turn to action: it was the tyranny of Caesar that stirred them. Though some Epicureans remained consistently loyal to the dictator, Cassius, who turned Epicurean in 46, and the majority of his fellow-philosophers decided that liberty and Republicanism demanded violent political action.

Between the claims of rival philosophies Cicero steered a middle course.
¹⁶
He was attracted on the theoretical level by the Scepticism of Carneades, the founder of the New Academy, and a visitor to Rome in 156/5, who disbelieved in the possibility of certain knowledge and argued that probability was the only guide. Disliking the inactivity of the Epicureans, Cicero was drawn to the practical morality of the Stoics, with their emphasis on humanity and the social virtues, though he would not go all the way with them. He was thus an eclectic, an interested inquirer rather than an original thinker. Yet his influence was profound, because as a distraction from the grief he felt at the death of his daughter Tullia in 45, he decided, as he says, to make philosophy accessible to his fellow-countrymen. This was almost pioneer work and in his task of adapting his Greek originals to his Latin medium he practically had to invent a vocabulary in which to express simply some of the Greek technical terms. The result was a series of works, written in lucid and graceful Latin which both enhanced Latin literature and popularized Greek thought. They include
De Officiis, De Finibus, Academica, Tusculanae Disputationes, De Natura Deorum, De Senectute
and
De Amicitia
. But Cicero did not enrich merely his fellowcountrymen: he put the whole world in his debt, Fathers of the Church, Italian humanists of the Renaissance, and French Revolutionaries alike.

The official cults had long been empty of any deep religious meaning for most of those that attended them: provided that their formal celebration maintained the
pax deorum
they need inspire no personal feelings, though they would offer at least a spectacle, if not a belief, to the poor. While some priesthoods were less regarded, membership of the great priestly colleges was increasingly sought for political ends. No doubt the simple worship of the household continued to retain real meaning for the more old-fashioned, and in the countryside the older cults must have flourished. But if official cults meant little to the educated classes, it must not be supposed that Lucretius and the philosophers had caused them to abandon all superstition, which must also have been rampant among the poor. The teaching of Pythagoras, with its belief in the transmigration of souls, appeared in Rome in the first century, and the learned praetor of 58 B.C., P. Nigidius Figulus, was a follower of this Neopythagoreanism. He also wrote a treatise to expose astrology, which despite the expulsion of ‘Chaldeans’ from Rome in 139, had become popular.
¹⁷
The way had been paved by Posidonius, whom Augustine described as a ‘philosopher-astrologer’. He regarded astrology as a branch of applied astronomy and believed that an all-embracing power (‘sympatheia’) linked up all the parts of the universe both large and small. This belief in cosmic sympathy and the linking of a fatalistic astrology to Stoicism helped to spread the doctrine widely among the upper classes. But beside rationalists, who found in astrology a link between human causality and the cosmic laws that governed the movement of the stars (and its exponents included Varro), many more were attracted by its emotional and mystic, rather than by its ‘scientific, appeal. Such ‘religious’ believers in its powers of revelation practised various forms of star-cults. Despite the scepticism preached by men like Lucretius, Cicero and Caesar, astrological beliefs received something like official recognition when the comet that appeared during the games in honour of Caesar was thought to be his soul received in heaven and he was officially included among the gods of the State.

It is impossible to establish how widespread was belief in life after death. Among the philosophers it was denied by Academics and Epicureans and in any fully personal sense by the Stoics, but it seems to have revived somewhat in the first century. Cicero, for instance, who after the death of his beloved daughter, decided to erect to her not a tomb but a shrine (
fanum
) as for a divine being, seems to have had some intimations of immortality. To what extent the thunderings of Lucretius against popular fears of future punishments attest widespread belief in some kind of Hell can only be conjectured.

As an outlet for emotional and religious feelings the Romans had long turned to the more popular ceremonies and cults of Greece and the East.
¹⁸
The ‘enthusiastic’ cults of the Thracian Bacchus and the Phrygian Magna Mater, which gave rise to emotional frenzy through intoxication from wine
and blood, had reached Italy with disastrous results, but their excesses were quickly curbed (see p. 8). The cult of Bacchus is not heard of again until the time of Caesar when it appears as a more respectable mystery-religion. The cult of the Great Mother Cybele was carefully regulated by the Roman authorities: Romans, for instance, must not serve as her priests or take part in her processions. If, however, Lucretius’ famous description of these wild ecstatic processions reflects contemporary practice in the streets of Rome, the cult will have attracted Roman attention if not direct participation. Other eastern religions, as that of Cappadocian Ma and Persian Mithras reached Italy in the late Republic, but only gained importance later. From Egypt the worship of Isis and Sarapis had reached some cities of Italy by the second century, and traditionally was established at Rome by Sulla’s day, no doubt at first as a private and secret cult. In 58 B.C. altars to Isis on the Capitol were destroyed by the consuls; though temporarily recognized by the triumvirs in 43, the cult was again suppressed by Augustus. Thus in the later Republic the authorities made constant attempts to regulate, restrain or expel these foreign religions, but in the long run, especially as the population of Rome was becoming more cosmopolitan, they failed. But before the eastern cults took deep root, the battle against them was to be fought by a doughty champion of the Italian tradition, Augustus. To this cause he was committed while he was still Octavian: were not Isis and the deities of Egypt ranged on the side of Antony and Cleopatra at Actium against the ancestral gods of Rome? ‘Monstrous gods of every shape’, wrote Virgil, ‘and Anubis, the yelping dog, bear arms against Neptune and Venus and against Minerva.’ The battle was on.

Octavian, who had emerged as the heir of Caesar and the leader of a faction, had successfully led his followers to a victory in a civil war that had eliminated all rivals: his faction could now be identified with the State. ‘Per consensum universorum potitus rerum omnium’: in these words he proclaimed his unchallenged and universal sovereignty, and the moral basis upon which he claimed that it rested.
²
As long as this
consensus
continued to include the loyal support of the armies, Octavian was secure. But now that peace was established, how was he to act? If, like Sulla, he retired, civil war would flare up once more; if he retained autocratic power, naked and unshamed, he might suffer the fate of Julius Caesar. He was thus faced with a most perplexing problem. In order to prevent the outbreak of internal disorders and to safeguard the empire against barbarian incursions, he must retain a unified military command in his own hands: to allow provincial commanders too much independence in the protection of the frontiers, would be to invite a repetition of the use that ambitious Republican proconsuls had made of their provincial commands to turn against the central government in Rome. Yet an autocratic military despotism would so outrage a five-hundred-year-old tradition of Republican government that it must lead ultimately to an explosion.

Faced by this dilemma, Octavian must seek a compromise. In the event he produced a solution so successful that it gave the world a large measure of peace and stable government for over two hundred years. But he did not sit down and draft an ideal solution on paper and then try to implement it. Rather, he proceeded by a slow process of trial and error, feeling his way forward with patient care; by thus testing and responding to public opinion
he was enabled to create the Principate and establish it on a secure basis. In considering his achievement it is all too easy to concentrate on the result and to overlook the length of time devoted to it: a process that takes many years may appear as a sudden revolutionary adjustment in the eyes of later ages, but to men who lived through it year by year it may seem a far more gradual and natural development.

Until he moved to a new definition of his position in 27, Octavian was content to hold the consulship every year from 31 onwards while he attempted to ease the transition from war to peace and to restore confidence. While still absent from Rome in 30 B.C., he had been granted various honours (prayers and libations), and had also been offered
tribunicia potestas
(he had received tribunician sacrosanctity in 36), but he probably did not accept the offer; if he did, he made little practical use of this power before 23 B.C.
³
He was granted the right to create new patrician families, whose numbers had been depleted in the civil wars, and he officially used the
praenomen
Imperator which he had employed unofficially for some ten years. At the beginning of 29 all his
acta
were confirmed by the Senate.

By August of 29 Octavian was back in Rome and celebrated his triumph, at which his colleague and the other magistrates followed behind him instead of preceding him in the normal position. He used part of the treasures of Egypt to make lavish distributions of money to the people, for various shows and for starting a great building programme of public works. Thanks to some financial measures (e.g. the overlooking of some debts to the State) confidence was restored and the rate of interest dropped by two-thirds. The closing of the temple of Janus, which symbolized the re-establishment of peace, was followed by demobilization on a large scale: not only were there to be no proscriptions, but Octavian’s military backing was to be significantly lessened. He reduced his sixty legions ultimately to twenty-eight, which he judged would suffice for purposes of defence. Some 100,000 veterans received gratuities and were settled in colonies, either old or new settlements, in Italy or in the provinces; twenty-eight were founded in Italy, while those abroad included Carthage, Pisidian Antioch and Berytus in Syria. As the land was bought, the settlement cost hundreds of millions of sesterces. Returning stability and normality were seen when Octavian held his sixth consulship in 28 with his friend Agrippa as colleague, and both consuls for the first time in twenty years remained in Rome throughout the year. They turned their hands to a necessary task, a census of the whole people (neglected since 70 B.C.) and a revision of the Senate. To have sought the censorship might have given offence to the nobility, and so they received a grant of
censoria potestas
(or else permission to act
qua
consuls); this would appear quite natural to any historically-minded Romans who might recall that in the fifth century before the institution of the censorship the consuls had exercised these functions.
Their
lectio
(perhaps in 29, before the census of 28) reduced the senators from 1000 to 800, and Octavian’s name was placed at the head of the list as Princeps Senatus. Further, by edict he proclaimed an amnesty and annulled any illegal and unjust orders that he had given during the civil wars. In short, by all these means life was in many ways brought back to normal, and it was time for Octavian to make clearer his own position and intentions.

Although he was now probably ready for a settlement, Octavian was perhaps hurried to a decision by the sudden realization that time might otherwise confront him with rivals in the military field; at all cost this must be avoided. M. Licinius Crassus, the triumvir’s grandson, had as proconsul of Macedonia pacified Thrace and defeated the Bastarnae: he required a triumph and the exceptional honour of the
spolia opima
, granted to only two Romans since Romulus, for having killed the enemy leader in single combat. Octavian demurred: Crassus was granted his triumph, but not the
spolia opima
, nor even the title of
imperator
which other proconsuls had received since Actium. Again C. Cornelius Gallus, the ambitious prefect of Egypt, lost Octavian’s favour; recalled, perhaps in 28, he was prosecuted for high treason and committed suicide (27). His precise offence is not known, but he had set up at Philae a grandiloquent trilingual inscription, claiming to have led his victorious troops farther south in Egypt than any other Roman or ruler of Egypt.

After Octavian had doubtless consulted his friends and thus paved his way, in a meeting of the Senate on 13 January 27 B.C. he suddenly renounced all his powers and provinces and placed them at the free disposal of the Senate and Roman People. When this statement was greeted with cries of protest, he agreed with apparent reluctance to undertake the administration of a large
provincia
, comprising Spain, Gaul and Syria, for a period of ten years, possibly with proconsular authority.
⁵
He was also, and continued to be, consul in Rome, but that need cause no difficulty, since Pompey had been in a similar position in 52 (p. 103). The rest of the provinces would be governed by promagistrates, responsible to the Senate, as earlier. Three days later a grateful Senate voted him further honours. His doorposts were decorated with laurel and his door-lintel with oak because he had saved the lives of Roman citizens (‘ob cives servatos’, as the coins declared). A golden shield was set up in the Senate-house, commemorating his ‘valour, clemency, justice and piety’, and proclaiming the virtues of the ideal ruler, about which philosophers had long contended.
⁶
More important still, he was given the name Augustus, and the month Sextilis was also so renamed. Thus, to all appearances, a plain settlement was reached on traditional lines: Octavian became Augustus, the first citizen (
princeps
) because of his services to his country, and he was given a
large province with no more theoretical powers than any other consul or proconsul, in a restored Republic.
⁷

But was it all as simple as it seemed? What was the real meaning? The answer is by no means unambiguous. In the first place, however, it is clear that Augustus, though not made commander-in-chief of the armies, did in fact exercise a predominant military power and that the ultimate sanction of his authority was force, however much the fact was disguised. It is often said that in effect he and the Senate divided control of the provinces between them, Augustus taking the military ones where the armies were stationed, and the Senate retaining the more peaceful ones. As a general statement that may not be an unfair summary of the position later in his reign, but in 27 the situation was rather different. While he took over Spain, Gaul and Syria, three proconsuls with armies under their command still governed Illyricum, Macedonia and Africa; but he had under the settlement eliminated proconsuls from three large areas which he would administer through his own
legati
, who would be newer men loyal to himself. And whereas he commanded some twenty legions in his
provincia
, the three proconsuls had only some five or six. Thus, provided his officers remained loyal, his grip on the military position was secure: and that should mean peace in place of civil war.

A further break with the revolutionary past is indicated by his new name and title; Octavian, the former triumvir, is forgotten in the presence of Augustus the Princeps. The use of Princeps (First Citizen), which was not an official constitutional term but rather a general form of address, was a happy choice. The word had been applied to outstanding statesmen in the Republic (e.g. Pompey), and it was not strictly limited to Augustus; Horace could hail him as ‘maxime principum’.
⁸
His new name Augustus, which was preferred to that of Romulus for the new founder of Rome, had semi-religious connotations, and many men would recall that Ennius had described how Romulus himself had originally founded Rome ‘augusto augurio’. Another word that derived from the same root as
augustus
is
auctoritas
, and in a very famous passage of the
Res Gestae
Augustus claimed that ‘post id tempus [i.e. 27 B.C.] auctoriate omnibus praestiti’. The precise meaning of his
auctoritas
has been the subject of prolonged discussion. In all probability it had no strict constitutional significance and did not provide any legal basis for his power; rather, it only meant that he had more prestige, more moral authority, than any other individual in the State; the
principes viri
of the Republic had enjoyed
auctoritas
, and it was only the method by which men had secured the carrying out of their wishes without having to resort to direct orders or the use of their
imperium
. And few would dispute that Augustus enjoyed that kind of prestige.
⁹

In another well-known passage of the
Res Gestae
Augustus emphasized the
link with the past: in his sixth and seventh consulships (28–27 B.C.) ‘rempublicam ex mea potestate in senatus populique Romani arbitrium transtuli’. This was in fact the official version of the settlement, and such phrases as ‘restituta republica’ occur in other writers. It appeared to be true: the Republican machinery of government was working again after the civil wars, with Augustus holding successive consulships, which in fact gave him civil control in Rome and Italy; if this
imperium
was limited to Italy, then he enjoyed a proconsular authority in a group of provinces. But there was little trace of autocracy, and none of dictatorship or tyranny. Yet when a phrase as ‘rem publicam restituit’ appears in an official document (such as the Fasti from Praeneste) it would be better to say that he restored ‘constitutional government’ rather than ‘the Republic’. Few men could doubt that they were overshadowed by a new master, who was in fact to develop into a constitutional monarch.

For nearly three years Augustus absented himself from Rome, thinking perhaps that it would be wise to allow the New State time to settle down and adjust its outlook. About the middle of 27 he set off for his western provinces; from Gaul he passed to Spain where there was trouble in the north-west. In 26 he conducted a campaign against the Cantabrians, but was taken ill and had to leave others to finish it. His position at Rome in the meantime remained unshaken: he was duly elected consul again each year, and his colleagues in the city were loyal: his friend Agrippa in 27, and Statilius Taurus, who had supported him in many a campaign in the civil wars, in 26. Nevertheless, when he returned in 24, he soon ran into troubles and the following year proved of crucial importance. M. Primus, the governor of Macedonia and one of the independent proconsuls still left, was charged with having made war against Thrace without orders; Augustus denied in court that he had issued any such order and Primus was condemned for treason. More serious, a conspiracy was discovered, led by a Republican named Fannius Caepio; a Varro Murena, perhaps Augustus’ colleague in the consulship, was implicated and was among the conspirators that were condemned in their absence and killed on capture.
¹⁰
This crisis was quickly followed by another: Augustus was taken seriously ill. He handed his signet-ring to Agrippa, and some state documents to his fellow-consul Piso, who had succeeded the unfortunate Murena: these gave little evidence of his hopes for the empire, which was not however to be left without his guidance. Thanks to some drastic cold-water treatment, prescribed by his doctor, he recovered.

It was clearly time for Augustus to make a fresh start. He resigned his consulship on 1 July. Whether Murena’s plot or his own illness was the more
important factor in this decision, the abandonment of the consulship had obvious advantages: it would relieve him of a certain amount of routine business; it would remove the opprobrium of keeping one of the nobles out of a consulship each year, and of holding an un-Republican series of consulships; at the same time it would increase the number of ex-consuls available for administration. By way of compensation the Senate voted that his
imperium
should be enhanced in two important ways: it should not lapse when he entered the
pomerium
(the sacred boundary of the city) as did that of any other proconsul, and secondly it should be
maius imperium proconsulare
. The fact that it was made greater than that of any other proconsul meant that if Augustus disagreed with the governor of any senatorial province, he could exercise his own over-riding
imperium
there, or in other words he had a potential
imperium
over the whole empire and could issue orders to any army. In practice however he was most restrained and tactful, and interfered outside his own province very seldom and only when asked.
¹¹

But this was not enough: he needed some compensation for the loss of the oversight of civilian affairs that the consulship had given him. In practice he might have found consuls and tribunes willing to implement his wishes (and many of his major laws were in fact sponsored by consuls), but he needed direct authority. This he obtained when he was given
tribunicia potestas
, probably for the first time, in 23 (p. 177). He made much display of this new power: he numbered the years of his reign by it, and Tacitus described it as ‘summi fastigii vocabulum’. It was popular and it gave him such rights as bringing measures before the People, and exercising a veto (
intercessio
), together with the
iura
of
coercitio
and
auxilium
. He could also summon and consult the Senate, but here consuls and other magistrates took precedence over tribunes; he was therefore given a special additional right, the
ius primae relationis
, by which he could bring forward the first motion at any meeting. Though the initiative in granting these honours came from the Senate, all his powers were probably sanctioned by the People, who will have passed a
lex de imperio
.
¹²

Thus the authority of Augustus was re-established on two foundations:
tribunicia potestas
which gave him civil authority in Rome itself, and proconsular
imperium maius
which gave him control of the armies and provinces. Of the two he discreetly kept the latter in the background (he did not even mention it in his
Res Gestae
), while he paraded the former before all men’s eyes. And these two powers remained the constitutional basis of the Principate throughout its history.