CHAPTER IL POPULUS AND FISCUS
The oldest, largest, and most powerful corporation known to Roman law was the sovereign populus Romanus itself. The People, the State, owned corporately, not as common owners, the aerarium^ the Republican and later the Senatorial treasury.
Nevertheless, it is irrelevant to the present subject; for the. populus never subjected itself to the private law. As Mitteis says,1 it could determine at any moment the extent of its capacity; it could claim unchallenged every right known or conceivable; but it never entered the courts reigned over by the private law. We need only say here that the populus and the aerarium steadily declined in importance under the Empire, and the aerarium probably ceased to exist about the time of Diocletian.The fiscus has a better, though still not a very good, claim to relevance. It appears often in the texts as a subject of the private law, but it is very doubtful indeed if it was ever really a Person. The orthodox view, clearly explained and defined by Mommsen,’ is that the fiscus was owned by Caesar, and that where the fiscus appears in the courts, that is only a short way of saying that an action is brought by or against an agent of Caesar’s in connection with his fiscal property.
In support of this view, Mommsen referred to D. 43. 8. 2. 4, 'res fiscales quasi propriae et privatae principis sunt', and the Life of Hadrian,3 which speaks of fiscus privates and of its debtors as privati debitores. So Tacitus speaks of fiscal affairs as Tiberius’ res suae-p and elsewhere as res familiarisf pecuniae familiar es.** The Emperors regularly made wills from which there is no sign that fiscal 52 property was excluded.1 Pius did indeed make over his private fortune to his daughter on his accession ;[42] [43] [44] but that was because it would otherwise have merged in his imperial fortune, which must, for political reasons, go to his successor.
The fisc gradually came to be considered less private: Caracalla distinguishes causa privata, publica and fiscalis Pertinax refuses to stamp fiscal property with his name, declaring it ούκ ίδια του βασιλεύοντος είναι, άλλα κοινά καί δημόσια της ‘Ρωμαίων άρχής.[45] New Roman">[46] But this is clearly an innovation, and in view of Pertinax* great deference to the Senate may be regarded as the exception that proves the rule.Mommsen’s view was attacked in 1876 by Hirschfeld,5 who attempted to prove that the fiscus belonged from the first to the State and not to the Emperor. He points out that Augustus, Tiberius and Caligula published their accounts, but does not show there was any obligation on them to do so. He quotes Tac. Ann. 13. 14, ‘sane pepigerat Pallas, ne cuius facti in praeteritum interrogaretur paresque rationes cum re publica haberet'. But ‘Pallas, as 11 a rationibus”, had administered the public revenues for his master with almost as much freedom as Augustus or Tiberius themselves. Hence, on his retirement, the State could challenge him to give account as representative of the Emperor: just as the Emperor himself might certainly have been called to account had he ever retired.’[47] [48] Hirschfeld also refers to D. 49. 14. 3. 10 (Callistratus, quoting the divifra ires'), where in locisfiscalibus velpublicis religiosisve is contrasted with in Caesaris possessione; but loca fiscalia seem to be distinct from publica, as both certainly are from religiosa, and Caesaris possessions! are probably the patrimonium whose existence in the second century no one disputes.1 We are told in h.
t. 6. I that ‘quodcumque privilegii fisco competit, hoc idem et Caesaris ratio et Augustae habere solet\ which clearly refers to these separate estates. Again, according to Hirschfeld, Mommsen’s references to the Emperors’ wills prove nothing, because they never in fact instituted as heir to the fisc anyone but their intended successor on the throne.[49] [50] The texts are certainly inconclusive, as they do not distinguish between fiscal and patrimonial property; and in any case, it would be absurd to expect a new Emperor to let a private citizen claim the revenues or even the palaces which were normally attributes of Caesar. Hirschfeld then quotes the story of Pertinax, which certainly shows that that very democratic prince waived his claim to ownership, but not that other Emperors did not assert theirs. And it does not at all follow, as Hirschfeld says, that if Pertinax in a.d. 193 could call the jiscus public, Augustus could not have called it his own. For the development was the other way round. Augustus was only the first servant of the State, and when he had exhausted his private fortune on its service, as he tells us himself, he was allowed to recoup himself by taxation. The ‘baskets’ (fact) in which he stored his revenues were no more ‘public’ than the manubiae of a general or the funds of an aedile, which were admittedly private property. The State kept its money as before in the aerarium Saturni·, Caesar could keep his where he liked. It is only gradually, as the aerarium declines in importance, that Caesar’s great basket comes to be regarded as public property, and no Emperor before Diocletian could plausibly have said ‘L’etat, c’est moi’.Mommsen published a conciliatory but firm reply in his second edition,1 the main points of which are reproduced above; and Hirschfeld returned to the charge in the second edition of his own book,[51] [52] [53] published in 1905 and dedicated to Mommsen’s memory.
He still maintained, with no fresh evidence, that the fisc became less public rather than more during the first two centuries of the Empire; and this strange idea, that as the Proconsul and First Citizen became more like a King his property was regarded less as official and more as private, seems to vitiate much of his argument.He quotes a passage of Seneca,3 saying: ‘ Caesar omnia habet, jiscus eius privata tantum ac sua, et universa in imperia eius sunt, in patrimonio propria.' This he admits favours Mommsen’s view, as the jiscus and patrimonium are clearly the same; but he would limit its application to the unconstitutional government of Nero. We must always be prepared for flattery in Seneca, but if there is any here it seems to lie not in the equation of Caesar’s two kinds of property, but in the statement ‘ Caesar omnia habet', which would have horrified Augustus, or in the parallel suggested by the next chapter: ‘omnia quidem deorum esse, sed non omnia diis dedicata'. We must not, however, deduce that the pa trimonium was not in practice separately administered ; Seneca speaks here as a philosopher, not as a Civil Servant.
Hirschfeld then refers to D. 43. 8. 2. 4 (Ulpian), which seems to tell strongly against him. The text says that the praetor’s edict ‘that nothing may be done in a public place’ does not apply to places 'quae sunt in fisci patrimonio' because 'resfiscales quasipropriae etprivataeprincipis sunt'. The word quasi alone supports Hirschfeld, and it is fully justified by the practical fact that the fiscus was not quite like other property: it can mean ‘in law, though not strictly in fact’ as easily as ‘in fact, though not strictly in law’. Apart from this the passage shows that there was a sharp distinction between fiscal and public property, and suggests that the separation between fiscus and patri- monium was purely a matter of administration which did not concern the public or the jurist.
Before attempting to give the resultant of these two divergent theories, it will be convenient to deal with a third, which would be of great interest for the study of juristic Personality if it was more plausible than it in fact seems to be.
Mitteis, a very great authority on Roman law, put forward in 1908 the view[54] that the fisc was owned neither by Caesar, nor by the populus? but by itself. If this was true, we should have, prominently placed in the private law, an entirely new kind of juristic Person, a non-human Function or Zweck, endowed with a body of property and clothed with rights and duties. But we may say at once, before considering Mitteis’ evidence in detail,56 that his theory does not fit the texts; no Roman ever conceived the idea of an Anstalt or a Stiftung, and to express their rules in such terms is an unprofitable exercise of an ingenious imagination.
We must quote Mitteis’ own words, or it may be thought he is misrepresented. He says: ‘Der Begriff des Fiskus wird in den Quellen nicht definiert. Eine von den realen Verhältnissen ausgehende Konstruktion kann ihn jedoch nur als eine vom Kaiser ressortierende Anstalt auffassen, welche die Bedürfnisse der kaiserlichen Verwaltung zu decken bestimmt ist. Selbst die römische Anschauung kann, wo sie den Dingen auf den Grund gehen und sich nicht hinter Worten verbergen wollte, unmöglich ernsthafterweise den Kaiser als das Subjekt des fiskalischen Vermögens betrachtet haben, obwohl im juristischen Curialstil stets vom fiscus Caesaris und ähnlichem gesprochen wird; wer sich den Sachverhalt klar machte, musste im Fiskus eine als selbständige juristische Persönlichkeit zu denkende Anstaltsperson erblicken. ’ This view, which seems almost equivalent to saying all intelligent Romans thought in German, he supports by a long note,1 which must be criticised in some detail.
The first danger signal in this note is the words ‘konsequent durchgedacht’. We are warned by the Romans themselves not to draw all the logically possible deductions from their statements: "quod contra rationem iuris re cep tum est, non est producendum ad consequential 'non omnium, quae a maioribus constituta sunt, ratio reddi potest',3 'omnis definitio in iure civili periculosa est't Even if the only theory that will fit all the rules is a theory made in Germany, it does not follow that it was present to the mind of Ulpian, still less of Augustus.
Mitteis then argues from the position in Egypt, never a safe thing to do, as Egypt has always been a peculiar and anomalous country.
He says nobody can have seriously1 Op. cit. p. 350, n. 7. 2 D. 50.17.141. 3 d. 1. 3. 20.
4 D. 50. 17. 202. Cf. D. 50. 17. 162; D. 50. 17. 1.
believed that when Augustus took over the Ptolemaic State property, it lost its State character, ‘staatlicheBestimmung’. This is no doubt true, but leads nowhere. For whatever distinctions might be drawn in practice between the Ptolemies’ various revenues and expenses, all Egyptian State property was certainly regarded as belonging to the King.1 The real question is not whether Augustus made his own what had been public, but whether he made public (or self-owning) what had been the Ptolemies’ own? That there was some tendency in this direction is shown by the use of the word δημόσιο$, always avoided by the Ptolemies? Wilcken says[55] [56] that thefiscus^ to which Augustus transferred the revenues of the old royal treasury, is sometimes called τό δημόσιον. But this suggests that Egyptians did not always distinguish sharply between the imperial and the senatorial treasuries, rather than that they attributed ownership of the fiscus to the remote, almost legendary, Senatus Pofiulusque Romanus.
There may be a more fundamental objection to Mitteis’ argument. Some scholars? believe that * the fiscus ’ was not created by Augustus, that there was no centralised imperial treasury till Claudius, and that the ‘public’ revenues of Egypt flowed, as Velleius Paterculus,[57] who knew Augustus personally, asserts, into the aerarium. Augustus certainly derived great wealth from Egypt, but this is supposed to have been the confiscated ‘private’ property of the Ptolemies and their supporters, included in the victorious general’s manubiae, or spoils of war. If this is true, what happened in Egypt was much the same as what had happened in all the kingdoms conquered by the generals of the Republic, and the process by which taxation was gradually diverted from aerarium to fiscus may have been essentially the same in Egypt and other provinces as in Italy itself.
Returning to Mittels’ note, we next find an assertion that when the Emperor is spoken of as owner of the fisc, this is only a personification of the ‘ Staatsidee’ represented in him. But the assertion is supported only by a quotation from the constitution of Saxony, which may illustrate but cannot prove a proposition about Roman law.
He then gets on to very delicate ground in D. 43. 8.2.4, already quoted.1 He says it is ‘nur ein Gleichnis und soll lediglich begründen, dass auf Fiskalgut das interdictum de loco publico nicht Anwendung findet’. No doubt Caesar’s relation to the fiscus is not quite the same as that of an ordinary citizen to his land and money. To call it his private property is not the whole truth, and the insertion of 'quasi' recognises the fact. But it is more nearly true than calling it ‘public’ would be. Ulpian gives it as his opinion that the interdict ne quid in loco publico vel itinere fiat does not apply to res fiscales, because they belong to the Emperor, and we must suppose him to mean what he says. Nor is it merely a question of words; Ulpian’s decision ousts the praetor from jurisdiction in cases where Hirschfeld or Mitteis would presumably have deemed him competent.
Of the passage already quoted from Seneca2 he says that by fiscus Seneca here means patrimonium; and classes ‘der Philosoph’ contemptuously among the ‘nichtjurist-
1 ‘Res fiscales quasi propriae et privatae principis sunt I See p. 5 5, supra.
2 De Beneficiis, 7. 6. 3; cf. p. 54, supra.
ische Quellen’ with such trash as the Pita Avidieni·, whereas Seneca, who was long first minister and almost regent, the tutor of Nero and the rival of Pallas, had probably more to do with the fiscus than any jurist of his time.
This ends Mitteis’ evidence, except for an attempt to rebut Mommsen’s argument from the references to imperial wills, which is not very successful, and could at best have only a negative value. It seems a very slender foundation on which to build a new and startling theory; and till someone brings fresh arguments in its support we may believe with Mommsen and Hirschfeld that whether the res fiscales belong to Caesar or \he.po-pulus or both or no one, there is no possible third owner.[58]
After this consideration of the various theories we may now try to reconstruct the Roman view. It seems clear that Augustus regarded as his all taxation, confiscated property and the like, which did not go into the aerarium; but he distinguished these revenues from his -patrimomum^ and recognised a moral obligation to spend them on the needs of the State. It is this moral obligation that forms the ‘Zweck’ which BrinzS has shown underlies every juristic Person but which is never personified or emphasised by Roman lawyers. Augustus’ successors made no great change in the position. Claudius seems to have reorganised the administration and separated the patrimonium more sharply from the fiscus. A bad Emperor disclaimed the moral obligation; a good Emperor laid stress on it and talked almost as if it was legally binding. While the Emperor lived, there was no practical check on his treatment of the fiscus or even the aerarium. When he died, if his heir could secure the throne he took the fiscus and everything else,1 but often had the grace to pay legacies. Whether a gift in a will was effective or not seems to have depended not on the fund out of which it was payable but on the amount of the gift and the inclination of the new Emperor. The change of Severus, like that of Claudius, seems to have been purely administrative, but by his day there were new ideas at work. Fiscal property came to be thought of as in a sense public, not because it was no longer Caesar’s, but because what had been public, aerarium, servi publici, and so forth, was now Caesar’s too; State and Emperor were destined soon to be interchangeable terms.
class=a4 style='text-indent:18.0pt'>The peculiarity of the Emperor’s position naturally led to peculiarities in his ownership. We need not discuss whether it can properly be called ‘private’, since that is a vague and controversial expression. His rights while alive were limited by the moral obligation referred to above: and if he spent too much on nightingales’ tongues, too little on donatives or provincial administration, there were the underlying sanctions of rebellion and the dagger. He could make a will; but his successor might construe 1 her es esto' as a gift of the throne and the fiscus, or of the patrimonium alone, or as the raving of a madman? But if his testamenti jactio was precarious, his privileges under the private law were many and important. This is not the place for a treatise de iure fisci'. we may refer to D. 49. 14 and to Mitteis, Römisches Privatrecht, pp. 349—75. But1 Including legacies to his predecessor, D. 31. 56.
1 Cf. Dio, 59. 1, for Caligula’s treatment of Tiberius’ will, and some very sound comments.
a privileged person need not be a juristic Person. The Romans always say, and must be presumed to have thought, that the fisc belonged to Caesar and its officials were his servants; and Caesar, with all his powers and privileges, is no juristic Person, but & persona, a man among men.