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That the power of the Kings had somehow been transferred to the Consuls was a fable convenue, a part of the familiar panorama of Roman history as a recurrent translatio of power from one nomen to the next. It was not a serious analysis of this power, unless Greek philosophy was anticipated by Valerius Publicola. Polybius, on the analogy of the two kings of Sparta, had cast the consuls for the academic rôle of τὸβασιλικόν in a Mixed Polity of which no element was absolute. In Roman antiquarian theory, accordingly, the kingship is approximated to a limited magistracy, and the two consuls are jointly reduced to that due limit by the symbolic alternation of twelve fasces. Cicero can concede them the courtesy title of potestas regia while affirming, in the same breath, the supremacy of the Senate—as Livy concedes it while affirming the superiority of the Dictator. No inconsistency was felt. ‘Potestas tempore dumtaxat annua, genere ipso et iure regia’—in its context and in Roman minds—was a resonant but abstract cliché, connoting neither a real βασυλεία nor the regnum (antithetic to ius) of political rhetoric—still less the theoretically boundless Befehlsrecht attributed to imperium by Mommsen.
1 Livy III 33; Tac., Ann. I, I.
2 Cic., De re pub. II, 55. ‘Haec … tam vetera vobis et tam obsoleta decanto’ proves that there was no actual exchange of fasces in the historical period of the Republic, although the consuls probably arranged to take monthly turns for routine presidential business (Taylor and Broughton, Mem. Amer. Acad. Rome 1949, 3 ff.). Suet., Div. Jul. 20, 1 appears to be a confused variant of antiquarian theory.
3 Cic., De re. pub. II, 56; Liv. VIII, 32.
4 Vell, II, 89; RGDA 34. The over-discussed phrase, ‘potestatis autem nihilo amplius habui quam ceteri,’ etc., is meaningless except as a formal bow to the principle that true imperium was a limited power (stressing the collegiate limit for obvious apologetic reasons).
5 Dio LIII, 1: if true, a piece of Augustan play acting. But it may be a weak attempt to explain away the fact that both consuls really had twelve fasces each all the time.
6 Ascon. 20, not specifying the number of fasces, but twelve was the most commonly accepted version, although Appian's twenty-four (BC 1 100) shows that the number of the regal fasces was not definitively known. De Sanctis' hypothesis that each consul originally had six (Riv. fil. 1929) cannot, therefore, be confirmed. For Roman topographical legendry, cf. Augustus Hare and Giovanni Belli passim.
7 Livy XXIV, 45. The Fabii are prominent in such parables. Lex Rubria XX shows how easily literal minds were misled by the Roman juristic habit of expressing principles by fictitious examples.
8 ap. Gell. 11, 2, 13.
9 JRS XXXVII (1947), 160Google Scholar.
10 Cic., Ad Att. VIII, 15, 3 (cf. JRS XLI (1951), 113Google Scholar). Cicero is snatching at an excuse for not joining the Pompeians in 49.
11 Cic., Phil. IV, 9 For Brutus' appointment, cf. Phil. in, 37; but Cicero, speaking in a contio, prefers the argument that Antonius is practically a hostis and therefore not consul.
12 Ad fam. XIII, 26.
13 This would evidently have been untenable, so Cicero hastens to assure Sulpicius that it is not being maintained. The exact conditions of revocatio Romae are none too clear (cf. Ad Fam. XIII, 56). A. H. M. Jones' theory of provocatio (Historia III, 1954–5, 483 ff.), whatever be thought of it on other grounds, does not depend on an imperium maius of consuls, since provocatio could also be made to a par potestas.
14 Dion. Hal. XVII–XVIII. Dionysius merely says that Postumius was condemned for all his misdeeds. For other and discrepant versions see Livy X, 37.
15 Cassius Dio, fr. 90.
16 Livy XXVI, 9, 10. On the divergence of the sources see De Sanctis, Storia dei Romani III, 2, 301 f., 336–340. Flaccus' march to Rome is usually rejected altogether.
17 Livy XLI, 10 (cf. the unadorned facts in Polyb. XXV, 4).
18 Val. Max. 11, 6, 18 (cf. JRS XXXVII (1947) 160Google Scholar).
19 It will not be inferred from the description of a proconsul as a consul's adiutor (Livy X, 22, 9; cf. 26, 3), nor from the verb iubere, of a consul to a proconsul in normal military co-operation (Livy XXXIX, 54). At the most, these words could only suggest that Livy or his source believed the consul's imperium to be maius: we cannot argue to facts.
20 Livy IV, 19 f.—not exactly the same theory, but the whole concept of consular imperium maius was vaguely and variously defined (see above). Jones, A. H. M. (JRS XLI (1951), 113Google Scholar, n. 7) rightly refuses to argue it from Jos., AJ XVI, 166 (cf. 171), and Philo, Leg. ad Gaium 40, §315; even if they referred to a date after 27 B.C., verbal discrepancies cast doubt on the accuracy of transcription, and the ‘documents’ cited by these authors are notoriously suspect.
21 ‘Adapted’ rather than translated (A. H. McDonald in Ox. Class. Dict., s.v. ‘Claudius Quadrigarius’; see also s.v. ‘Acilius’).
22 Caesar, BC 1, 6, 6 (ibid. 85, 9, shows that Caesar is referring to the arrangements of the Lex Pompeia of 52).
23 BC 1, 6, 6: ‘quod superioribus temporibus acciderat’ (i.e. before 52: cf. n. 22): Caesar, if he could, would have said ‘ut semper’ (cf. ibid. 85, 9, and 6, 7, ‘quod ante id tempus accidit numquam’).
24 De prov. cons. 36. Balsdon, J. P. V. D. (JRS XXIX (1939), 168Google Scholar) rightly perceives that this is not a very serious argument, but still, in my view, treats it too seriously.
25 Friends of Metellus will not have missed the obvious debating-point that the plebiscitum passed for Marius directly violated the plebiscitum of C. Gracchus himself (cf. Cic., De domo 24), to which there was no rational answer, but the consul's direct election by the People might have served (then or later) as a feeble counterthrust.
26 Polyb. XXVIII, 13: the SC μηδένα προσέχειν τοῖς ὑπὸ τῶν στρατηγῶν (sc. magistratus generally: Livy XLIII, 17) γραφομένοις, ἐὰν μὴ τοῦτο ποιῶσι κατὰ τὸ δόγμα τῆς συγκλήτου. Such express instructions had never, presumably, been necessary before.
27 Staatsrecht ( = Sr) III 1024–5 (cf. II3 94–5), on purely a priori grounds.
28 Livy 11, 56 f.; XLI, 10 ff.; VIII, 3; X, 37 (cf. Dion. Hal. XVII–XVIII); XXI, 63; XLII, 9 ff.; XLI, 7; XXIX, 19; XXVIIi, 45. How much truth there may be in some or all of these records is immaterial: the presentation or elaboration is certainly stylized.
29 Concordia Ordinum (Inaugural-Dissertation Frankfurt Univ., Borna-Leipzig, 1931), 37 ff. Not many will now dispute the neo-popularis orientation of these annalists (plain enough in Claudius Quadrigarius and Valerius of Antium, also visible in Sisenna, and doubtless common to all); but a detailed reassessment is much needed. Coming after revolution and civil war, they represent an acclimatized branch of late-Hellenistic historiography rather than a stable tradition of Roman political life.
30 Sr III, 1022 ff. In this chapter, it is no longer necessary to discuss Mommsen's attempt to distinguish the Senate from a true consilium of the consuls, nor his more successful proof that that illustrious body failed to satisfy the nineteenth-century German definition of a Corporation (although this, as well as the argument from grammatical forms of address, is still repeated by H. Siber, Romisches Verfassungsrecht (1952), 239 ff.).
31 Livy 11, 56–7.
32 Cic., Pro Balbo 35–6.
33 Forms of Roman Legislation (Oxford, 1956), 37 ffGoogle Scholar.
34 In Pis. 50.
35 Some reformulation by annalists is certain: without primary sources we cannot tell how much; but the extent to which Roman state archives were preserved has been much exaggerated (cf. Cic., De legg. III, 48—misunderstood in Mommsen, Sr 3 II, 546, n. 1; see H. Stuart Jones in CAH VII, 328). It is possible to conjecture (but not to prove) that the imperial formulation uti (subjunctive) in the rogatio of Heba and the Lex de imperio Vespasiani (see, however, D. Daube, o.c. 90) was a deliberate reversion to early legislative forms of a period when the People merely acclaimed senatus consulta as law or were requested to scire (cf. the Bacchanalian documents, … ‘ubei facilumed gnoscier potisit’— although this being addressed to socii, cannot be pressed for Roman legal forms).
36 Livy IV, 26 (431 B.C. !): the tribunes act at the Senate's request and use the formula placet … (The question of the origin of tribunician powers against a patrician ordo need not here be raised, since our sources had no understanding of it.)
37 Livy X, 9, 6—a famous but still telling instance. So few knew the constitution—so soon could its language become unintelligible. The constitutional history of nineteenth-century England is now, according to Sir Lewis Namier, an obscure subject.
38 Philologus LXXXV, 1930, p. 355Google Scholar. See Plautus, Epid. 263 f.; Hor., Ep., VI, 67; Tab. Lugd. col. 111, 10; Dio LV, 4, 1; Mommsen, Sr III, 963 f.; SEG IX, 8 (= E & J 311), 13 f.
39 Anderson, J. G. C., JRS XVII (1927), 42Google Scholar. Augustus says: ‘Until the Senate decrees or I think of a better way.’ Claudius says: ‘If you (patres conscripti) like this … if you do not like it, think of another way.’ I do not find the difference politically significant, in view of the other instances of a variable formula (see n. 41).
40 Cic., De or. III, 2–4.
41 Cael., Ad fam. VIII, 4, 4; cf. ib. 8, 9; Cic., In Verr. V, 85; Phil. VII, 2. Slight variants are usual in this easy and semi-formal senatorial style, never frozen stiff by written statutory jargon.
42 Cael., Ad fam. VIII, 8, 9: the point is the same, whichever way we interpret ‘quam clementer’. I do not understand those who interpret ‘negotium’, in the context, as some sort of entente; but I do not think that the point is affected by this question.
43 BC 1, 1. Whether Lentulus Crus really said so or not (this section of BC 1, in my opinion, is among Caesar's rare departures from the candour of a phenomenal egoism), Caesar mentioned it because it was a highly unconstitutional thing to say.
44 Phil. IV, 14 (contio): contrast Phil. III and V for the Senate's reassumption of its constitutional right. R. Syme's brilliant account in Roman Revolution seems to me to have succumbed, at this point, to the influence of a doctrinaire ideology most unusual in his book, and alien (though, at the time, a formidably competitive import) to Roman political tradition—i.e. to the Res Publica.
45 Polybius' μικτὴ πολιτεία does at least avoid (by force of academic tradition rather than by any practical observation) the modern academic postulate of a Unitarian ‘sovereignty’ (whether of imperium or of the People) which is even further from the reality of Republican Rome.
46 Augustus ap. Suet., Div. Aug. 28. Cic., De repub., has distracted attention, in Augustan studies, from far more relevant echoes of the Philippics (e.g. 1, 1), which the young man actually heard.
47 The strange idea that Augustus dissimulates his military imperium in RGDA has been sufficiently contradicted by Chilver, G. E. F. in Historia 1, 1950, 427 ff.Google Scholar (cf. also Salmon, E. T. in Historia V, 1956, 464 fGoogle Scholar.). To have mentioned the official grant would only have been an added constitutional justification, but Augustus did not think it necessary.
48 Phil. XI, 30. I accept the imperium maius of 23 B.C. I do not know if those who accept an imperium consulare of 19 B.C. would say that Augustus then governed by consulare imperium maius. Personally I do not think that Romans would have understood the idea of being allowed to hold an imperium inside the pomerium without being allowed to exercise it there. To argue that only consular imperium (as heir to the kings) could appoint a praefectus urbi (a shadowy office with no fixed traditions) is in my view to accept a too literal interpretation of potestas regia.
