THE CON STI TUTI ON OF THE LATER ROMAN EMPI RE CAMBRI DGE UN I ' ERS I TY PRES S F TT R ibtmhnn : E E LANE , E . C. 0 . F. CLAY, MAN AGE R Wh in hn rgb : 100. PRINCES S TREET A AS HER AN D 35mm: . 00 . m an ia : F. A. B ROCKHAUS ’ m find : G . P. PUTNAM S S ONS M CM LL D C . B umba g nub a flm tta : A I AN AN O , LTD . All rights reserved THE CON STI TUTI ON O F THE LATER ROMAN EMPI RE CREIGHTON MEMORIAL LECTU RE DELI ' ERED A T UN I ' ERSI T L E E Y CO L G , LONDON 1 2 N O' EM BER 1 9 0 9 B BU RY J . REG I US PRO FES SO R O F MO DERN HI STO RY I N T HE U N I ' ERS I TY O F CA M BRI DG E Ca m bridge a t th e U n iversity Press THE CONSTITUTION OF THE LATER ROMAN EMPIRE THE forms of government which are common ly class ified as absolute monarchies have not received the same attention or been so carefu lly analysed as those forms which are known as republics and constitutional m i s i onarchies . There s a con iderable l tera ture on absolute monarchy consider ed i i t theoretically, n connex on with the ques ion of D i R iv ne ight, but the actual examples which history offers of this kind of govern ment have not been the subject of a detailed . M for in comparative study ontesquieu, e stance, treats them indiscriminat ly as despotisms . Probably the reason lies in the of i apparent simplicity a const tution, by which the supreme power is exclusively vested in one man . When we say that the ’ m m e onarch s will is supreme, we ay s em to B . 1 26 1 3 8 2 2 THE CONS TITUTION OF L say all there is to be said. The ater Roman of Empire is an example absolute monarchy, and I propose to shew that so fa r as it is concerned there is a good deal more to be said . The term absolute mon archy is applied in contradistinction to limited or con stitu i n l f t o a monarchy. I understand the ormer a l to mean that the whole legislative, judici , and executive powers of the state are vested in a in the monarch, and there is no other 1 dependent and concurrent authority . The latter means that besides the so-called mon arch there are other political bodies which possess an independent and effective of authority their own, and share in the sovran power . These terms, absolute and f con s titutional monarchy , are unsatis actory, f in t of . rom a logical pp / view For they group together these two forms of government as of subdivisions the class monarchy, implying or suggestin g that they have much more real affin ity to one another than either has to i : other constitutions . This s evidently untrue THE LA TER ROMA N EMPIRE 3 a constitutional monarchy is fa r more closely allied to a republic like France than to an R absolut e monarchy like ussia . The English for constitution, instance, in which legislation is effected by the consent of three in n L dependent orga s, the Crown, the ords, and the Commons, might be described more correctly a s a triarchy than as a monarchy ; and it seems to be unfortunate that monarchy n u should have come to be used, quite f i a or . necessarily, as synonym kingsh p “ L ' imited monarchy, as Austin said long “ 2 ago, is not monarchy monarchy properly so - called is, simply and solely, absolute monarchy. We have however an alternative “ ' a m term, autocracy, which involves no b i u ities a n d g , might, I venture to think , be advantageously adopted as the technical term for this form of government in con “ stitu tion a l discussions . And autocracy has “ ' a special advantage over absolute monarchy. Autocracies are not all alike, in respect to the power actually exercised by the autocrat . Al th ough not limited by any bodies pos 1—2 4 THE CONS TITUTION OF in m sess g an independent authority, he ay be ff limited e ectually in other ways . Now we can properly speak of more or less limited u im of a tocracies, whereas it is an propriety language to speak of more or less absolute “ ' m i m of onarch es, as absolute ad its no degrees . r Originally, and during the first th ee of centuries its existence, the Roman Empire was theoretically a republic . The Senate co - existed with the Emperor, as a body invested with an authority independent of his ; but the fu nctions which it exercised by virtue of that authority were su rrendered one by one ; it became more and more dependent on him ; and by the end of the third century the fiction of a second power i n the state was dropped altogether, although 3 the Senate was not abolished . From that f u time orward, nder the system established D th f by iocletian and Constantine, until e all of f the Empire in the fi teenth century, the government was simply and undisguisedly an autocracy. THE LA TER ROMA N EMPIRE 5 Now one broad distinction between auto oracies may be fou nd in the mode of m accession to the throne . The sovranty ay ' i m e I f it be hered ta ry or it ay be electiv . f is elective, the sovranty is derived rom the electors who, when the throne is vacant, exercise an independent and sovran authority I f in electing a new monarch . it is hereditary, if the right of the autocrat depends entirely f and inde easibly on his birth, then we may say that his sovranty is u nderived ; the su c cession is automatic , and there is no moment n at which any other person or persons tha . the monarch can perform a n act of sovran authority such as is implied in the election of r diff a s a sov an . This erence may involve, we shall see, important consequences . of In the case the Roman Empire, the i Imper al dignity continued to be elective, as f m n n i it had been ro the begi ng, and the o a method f election remained the s me . When the throne was vacant a new Emperor was chosen by the Senate and the army. The initiative might be taken either by the Senate 6 THE CONS TITUTION OF were l or by the army, and both methods recognised as equally valid. It was of course only a portion of the army that actually —for if chose an Emperor, instance, the choice n s were made in Co tantinople, the guard regiments ; but such a portion was regarded as for this purpose representing all the troops which were scattered over the Empire . The appointment did not take the formal shape of what we commonly understand by I f election . the soldiers took the initiative, they simply proclaimed the man they wanted . I f the choice was made by the Senate, the procedure might be more deliberate, but there seems to have been no formal casting of votes, and the essential act was the ' proclamation It sufficed that one of these bodies should proclaim an Emperor to establish his title to the sovranty ; it on ly remained for th e other body to concur ; and the inaugur ation was formally completed when th e people of Constantinople had also — acclaimed him in the Hippodrome a { formality always observed and reminiscent THE LA TER ROMA N EMPIRE 7 of the fact that the inhabitants of the new capital of Constantine had succeeded to 5 the position of the old p op u lu s R om a n u s . The part which the Senate played in the of appointment an Emperor, whether by choosing him or by ratifying the choice of the army, is constitutionally important . The ‘ Senate or S y n klétos of New Rome was a very ff f R di eren t body rom the old Senatu s omanus . It was a small coun cil cons isting of persons who belonged to it by virtue of administrative offices to which they were appointed by the . f Emperor In act, the old Senate had coalesced with the Con s isto riu m or Imperial a n d council, in consequence the new Senate had a double aspect . So long as there was n i con sistoriu m a reig ng Emperor, it acted as of or advisory council the sovran, but when i there was an interval between two reigns, t resumed the independent authority which had lai n in abeyance and performed functions which it had inherited from the early Senate . B u t it was not only when the throne was i ul f vacant that t co d per orm such fu nctions . 8 THE CONS TITUTION OF Th e right of election might be exercised by I the Senate and the army at any time . It was a principle of state -law in the Early Empire that the people which made the i Emperor could also unmake him, and th s principle continued in force under the wa s f of autocracy.