Augustus told the world how he wished it to think about this in the Res Gestae. Minimizing his formal powers, and insisting on his rejection of powers contrary to mos maiorum, he asserted that what he predominated in was auctoritas,xl the predicate of'being accepted as a top person' that the 'chief men' (principes virt) of the Republic had been said to possess, by which the things he commanded were done simply because it was he who commanded them. Some historians have tried to show that unofficial auctoritas was turned — by some step that has eluded us - into an official power of legislation, or that it replaced imperium as the formal statement of total power, or that by an edict of 28 B.C. Augustus received a formal 'Principate' that carried all else with it.18
There is no compatibility between the two pictures, and no compromise will accommodate both; it is necessary to choose. The choice made in chapter 2 and in the present account, of the more old-fashioned, 'minimalist' - and at present heterodox - picture of the 'Augustan constitution' imposes some immediate caveats and clarifications. First, to repeat: neither picture is an account of de facto power; both are accounts of descriptions, justifications, legitimizations, of power. To choose the first is not, therefore, to imply that Augustus finished up any the less the de facto ruler of Rome; it is to say that he and his contemporaries clothed his rule in concepts that were not yet of the monolithically monarchical kind familiar to the Severan emperors and their contemporaries two hundred years later. Secondly it imposes the duty to offer an alternative account of at least three texts, but especially of the sixth clause of the lex de imperio Vespasiani, the so-called 'discretionary clause'.[248]
The difficulty about believing that clause to mean, baldly, what it seems to imply - that is, that Augustus already had total, formal power to act at will — is that it would have made otiose the whole of the rest of the document, including the grants of the major specific powers that presumably occupied the missing first tablet. Proper significance needs, instead, to be given to its position in the list of regulations: it belongs to a closing group, in which the seventh clause grants the new ruler exemption from certain statutes and the eighth validates retrospectively his actions before becoming ruler. That position establishes for the sixth clause its natural and appropriate role as a grant of residual emergency powers.[249] It is, in any case, erroneous to invoke the 'discretionary clause' as a prop for the ruler's legislative authority, for it gives him power to do things, whereas legislation is only in a truistic sense the 'doing' of things: it is the creation of rules, an altogether broader activity.
Gaius, writing an elementary law-book in the second century a.d., sounds uncomfortable in his protestation (if it is his) that 'no one has doubted' that a constitutio principis has the force of statute. Such was certainly correct doctrine in his own day, and perhaps we should simply infer from his embarrassment that he knew that earlier constitutional statements had not taken that form. But Gaius' passage is in a more parlous state still, for it continues by giving a reason for the principle that a constitutio principis has the force of statute which is deficient in logic:'... because the emperor receives his imperium by statute'. The поп sequitur is so blatant as to cast doubt whether Gaius could have penned such an absurdity. It bears, too, the marks of an unintelligent echo of Ulpian's account, quoted in Justinian's Digest, of what is there called the 'royal law', lex regia;[250] it is in all probability an intrusion into the real text of Gaius, which will simply have stated the rule about imperial pronouncements that prevailed in his day.
The third text is that of Strabo. He was a contemporary and a serious author; but his assertion that Augustus received 'headship of the hegemony' and 'the power of war and peace for life' comes at the end of his Geography. That is not a work of legal science, and he is not making a constitutional statement. (He is, in fact, detailing the division of the provinces into 'people's provinces' and 'Caesar's provinces'; and that was actually accomplished not by virtue of any great overriding power of Augustus, but, in all probability, in a senatorial debate.)22
The case, then, for Augustus having been granted a formal 'constitutional monarchy' does not prevail over the account, derived from Dio and elsewhere, of his receiving at different stages a concatenation of particular powers; and when Dio himself says that it was from the beginning 'unalloyed monarchy'23 he is not giving a description but making a comment.
In any case, there is still more to be said about the constitutional forms in which the ruler's power was expressed. They interacted with the 'brute realities' by creating boundaries of normal conduct: the clothing helped to define the role. And the separate powers had a further usefulness: they could be applied piecemeal in the gradual promotion of the ruler's principal collaborator to the position of collega imperii. The pedantic precision of their use in that way can be observed in the papyrus fragment of a Greek translation of Augustus' funeral laudation of Agrippa:'... tribunician power for five years in 18 в.с. on the basis of a senatus consultum, and again in 13 B.C., plus, in a statute, that no man's authority should be greater than yours in any province to which the public weal of Rome might hale you'.24 That careful formulation helps to corroborate the case that has been argued here, that the ruler's own powers were described in terms of a concatenation rather than by some global formula.
Auctoritas is the aspect of the forms (in the sense that it could be given a name and is appealed to in the R« Gestae) that lay closest to the actuality. It was personal to the individual ruler, and if he lacked or lost it his rule was in peril. He possessed it partly by force of personality, partly by the 'brute fact' that he held the reins of power; yet at the same time it was by possessing auctoritas that he held those reins, for, insofar as he possessed it, he had only to command to be obeyed. Inscriptions recording that things were done 'by order of Augustus', iussu Augusti,25 ought not to cause perplexity: they are the reflection of auctoritas, for the people concerned were content to state that they had done things because Augustus told them to. Auctoritas was, furthermore, the link between the conformity to mos maiorum (for it had been predicated of republican principes viri) and the creation of 'charisma' (because it was predicated of the ruler as an individual): it could pave the way for the insertion of the ruler's personality in the permanent, extra-constitutional consciousness of the people.
But legal historians are quite right, that it is above all for the ruler's role as an issuer of norms, regulations to be obeyed generally and for the future, that we need to seek the constitutional basis, because that role is
22 Lacey 1974 (c 146). a Dio ui.i.i. 24 ej2 ,66. « ep tgj. j6g