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The ‘Fiscus’ and its Development

Published online by Cambridge University Press:  24 September 2012

P. A. Brunt
P. A. Brunt
Affiliation:
Oriel College, Oxford.
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Extract

In a recent article Mr. Fergus Millar has propounded the hypothesis that in the first two centuries of the Principate the term ‘fiscus’ always refers to the emperor's private wealth and is indistinguishable from such terms as ‘res familiaris’. In support of this view he has collected a great mass of useful material where the term ‘fiscus’ is actually used. Some of this evidence undoubtedly accords very well with his contention, and indeed no one can reasonably deny that the term is often employed in the sense stated. But many other texts which he cites only fortify his thesis if what he seeks to prove is already assumed, and can readily be interpreted in accordance with the view that ‘fiscus’ has more than one meaning. In my judgment he has failed to disprove Professor A. H. M. Jones' theory that ‘fiscus’ has diverse senses: it may mean

(1) in the Republic the private funds of an individual;

(2) in the Principate the private funds of the emperor ;

(3) in both the Republic and the Principate a chest, provincial or departmental, containing public monies ;

(4) in Jones' words, ‘the whole financial administration controlled by the emperor’ ; hence to say that property or income was fiscal may simply denote that it was under the emperor's administration and control, whether in strict law it was owned by the emperor in his private capacity or by the res publica. In this sense we may call the ‘fiscus’ the imperial treasury, without implying that it was ever a single chest in which coin or bullion was kept.

Type
Research Article
Information
The Journal of Roman Studies , Volume 56 , Issue 1-2 , November 1966 , pp. 75 - 91
Copyright
Copyright ©P. A. Brunt 1966. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

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References

1 Millar, F., The Fiscus in the First Two Centuries, JRS LIII, 1963, 29 ff.Google Scholar, cited as ‘M’. Unless otherwise stated Jones = A. H. M. Jones, St. in Roman Government and Law, 1960; KV = O. Hirschfeld, Die kaiserlichen Verwaltungsbeamten 2, 1905 (Rp. 1963); Pflaum = H–G. Pflaum, Les carrières procuratoriennes équestres sous le haut-empire romain, 1960. I am indebted for critical comments to Mr. J. P. V. D. Balsdon, Mrs. M. I. Henderson and Professor Alan Watson.

2 Jones ch. VI (= JRS XL, 1950, 22 ff.). In the end the public aerarium disappears, and ‘aerarium nostrum’ is equivalent to ‘fiscus’, the state treasury which the emperor controls (e.g. CJ X, 10, 4–5, cf. S. Bolla, Die Entwicklung des Fiscus, etc., 5, n. 10). Hence classical or post-classical jurists have often substituted ‘fiscus’ for ‘aerarium’ in earlier legal texts. One such example, contra Jones 104, is Dig. XLVIII, 13, 11 (9), 6, where Paul or the compilers have surely altered ‘aerarium’ in Labeo's text (though not consistently, in view of the later equivalence); I cannot believe that when a proconsul in Augustus' time had returned, but failed to pay in a balance due to the aerarium, a claim would have been made against him as a debtor to the local fiscus, or that if a local fiscus were meant, it would not be specified as ‘fiscus provinciae’.

3 Cic., Verr. I, 22; Tac., Ann. I, 37; Suet., Claud. 19.

4 Sen., ep. 119, 5.

5 Val. Max. VI, 2, 11.

6 Verr. 11, 3, 197.

7 Jones 101 ff.

8 See text to n. 94.

9 ILS 1514 = EJ 158.

10 ILS 1347 mentions an advocatus fisci of eleven provinces.

11 In the fourth century one could speak in differently of cursus publicus (ILS 5905–6) or cursus fiscalis (ib. 755).

12 cf. KV 141 and H. Dressel, CIL XV, 2, 491 f.; 560 ff. on the ‘fisci rationis patrimoni provinciae Baeticae’ (or ‘Tarraconensis’).

13 ILS 1430–1; cf. 5017 (= CIL IX, 2565; cf. VIII,1439).

14 KV 113 ff.

15 Jones 110 f. His own explanation is conjectural. Herodian 111, 13, 4; IV, 4, 7 (cf. KV 4) shows that by the Severan period, and probably much earlier (cf. perhaps ILS 309), there were actual treasuries at Rome, under the emperor's control, other than the aerarium Saturni and aerarium militare.

16 cf. ILS 7267 for ‘fiscus stationis annonae’ at Rome.

17 Jones 109. M.'s formulation (30) seems less accurate.

18 All Egyptian texts cited by M. in his nn. 32; 51; 53; 67; 124; 169 may thus be explained, as also texts cited in his nn. 46 and 119 (Achaea); 138 (Lycia); 143 (Crimea); so too the evidence cited by M. on ‘fines and penalties’ (37 f.).

19 Thus no juristic weight need be assigned to the evidence of Strabo (M., n. 91), Josephus (nn. 21; 56; 101; 113; 118), Dio Chrysostom (n. 41), Plutarch (n. 123) and Eusebius (ib.). Legal texts and documents, e.g. FIRA i2, no. 105 (where the procurator of Vipasca sells ‘nomine fisci’); 104 (I) and (3) (for share of products belonging to ‘fiscus’), speak of property going to the ‘fiscus’, not to Caesar; and where ‘fiscus Caesaris’ is used, the genitive need not denote ownership.

20 e.g. Ann. 11, 47 (cf. Jones 194); IV, 20; VI, 2; 17; Plin., Pan. 36; 42; cf. Front., de aqu. 118; Suet., Vesp. 16, 3.

21 Ann. XV, 35; XVI, 8. cf. Ps.-Quint., Declam. 353: ‘servum … supra rationes positum.’

22 See, e.g. Dig. XLIX, 14, 13 and 15. I doubt if we need assume that the texts of the classical jurists in these passages have been altered by the compilers, though either Callistratus or the compilers must have changed ‘populus’ into ‘fiscus’ in the fragment of Labeo in XLIX, 14, 1, 1: cf. n. 2.

23 For the facts, Rogers, R. S., TAPA 1947, 140 ffGoogle Scholar. For an attempted explanation in juristic terms, J. Gaudemet, St. Arangio-Ruiz III, 115 ff.

24 Ann. I, 8.

25 Suet., Gains 14; cf. Tib. 76.

26 Suet., Claud. 44; Ann. XII, 69; Dio LXI, 1.

27 Dio LXXIV, 7, 3; cf. SHA, Pert. II, 12.

28 SHA, Pius 7, 9; 12, 8; Marc. 4, 7; 7, 4. cf. Pius 4, 8.

29 Hdn. 11, 4, 7, on which cf. KV 12 against Mommsen, StR. 113, 999, 1.

30 e.g. Vedius Pollio's piscinae in Campania (Dio LIV, 23; Pliny, NH IX, 167; CIL VI, 8584); horti Serviliani (Ann. XV, 55; Hist. III, 38; Pliny, NH XXXVI, 23); horti Sallustiani (Ann. XIII, 47; Dig. XXX, 39, 8); cf. StR 113, 1007, 1, for Vibius Pansa's tile-works and for transfer of ‘ius patronatus’ to successive emperors.

31 StR 13, 241 (cf. Mommsen, Röm. Forsch. II, 443); see esp. Cic., de leg. agr. I, 12; II, 59.

32 cf. Papin. IX, resp. 13 (FIRA III, p. 443). But Julian, unless Dig. XXX, 96, 1, is interpolated, refers to ‘fiscus’.

33 So too a fine for selling or buying fugitive slaves; ‘hodie fisco vindicatur’ (fr. de iure fisci 11, 9).

34 Dig. XXXIV, 9; 10 pr.; XLIX, 14, 3 pr.; 14, 40.

35 See Dig. XLVIII, 20, 1; elsewhere it is cited as ‘de iure fisci’; to the compilers ‘fiscus’ comprised the public rights.

36 Pomponius, l.c., does not fail to note that Titus reduced the number of praetors who heard cases involving fideicommissa from two to one.

37 They are also concerned in fiscal suits in Dig. XL, 5, 4, 20, and XLIII, 8, 2, 4 (cf. StR II3, 1023, n. 4), which indeed refers to a different kind of case; probably in 11, 15, 8, 19, which suggests that procurators had similar jurisdiction (probably outside Italy).

38 Ann. IV, 20; Gallus' case (Dio LIII, 23) might also be so explained. The rules of private law under which donor (but not his heir) could recover gifts on grounds of ingratitude (see, e.g. Buckland, Textbook of Roman Law2 253 f.) are plainly inapplicable.

39 Ann. VI, 2; 19; cf. 17: ‘tot damnatis bonisque eorum divenditis, signatum argentum fisco vel aerario attinebatur’.

40 Philo, Flacc. 150 (M. 37) may also be thus explained.

41 Pliny, Pan. 42, 1; cf. 55, 5. SHA, Hadr. 4, 7; Marc. 24; Albin. 12 (but cf. Jones, Later Roman Empire 416); Alex. 46 allege continued sequestration for aerarium—unreliably (cf. below, n. 62).

42 See, e.g., Dig. XLVIII, 20, 7, 5; 20, 8; 21, 3, 8; ‘fisco vindicare’ is the usual expression.

43 M. 35.

44 The evidence is indeed meagre, KV 139 ff.

45 ‘Populus’ as well as ‘Caesar’ or ‘imp. n.’ owned estates in the territory of Veleia and the Ligures Baebiani, CIL IX, p. 229; long lease, Hyginus 116 L, cf. KV 139 ff.

46 M. n. 101 (cf. Suet., Dom. 9, 3; FIRA I, no. 75).

47 Hirschfeld, Kl. Schr. 544 ff.

48 ILS 1396 (see Pflaum 765 ff.). Cf. KV 142.

49 KV 15, n. 2; cf. Dig. XVIII, 1, 52.

50 M. n. 130.

51 On the legal puzzle see now de Visscher, F., Le Droit des Tombeaux rom., 1963, 112 ff.Google Scholar

52 M. n. 125.

53 M. 38 f.

54 No need to think that Suetonius is quoting Augustus verbally.

55 My impression is that the destination of taxes is rarely given in late texts; in CJ X, which abounds in references to taxes, a reference (19, 6) to revenues ‘qui ad arcam pertinent praefecturae’ is exceptional.

56 For the right to offset debts to the ‘fiscus’ with sums due from the ‘fiscus’, cf. Dig. XVI, 2, 12; CJ IV, 31, 1.

57 Jones ch. IX.

58 Hadrian ruled that a causa liberalis affecting fiscal interests should be decided ‘praesentibus et agentibus etiam his qui negotiis fisci solent intervenire’, evidently the adv. fisci, as Callistratus proceeds: ‘et huiusmodi liberates causae si, non interveniente fisci advocato, decisae sint, in integrum restituuntur’ (Dig. XLIX, 14, 3, 9); cf. ib. 14, 7: ‘si fiscus alicui status controversiam faciet, fisci advocatus adesse debet. Quare si sine fisci advocate pronuntiatum sit, divus Marcus rescripsit nihil esse actum et ideo ex integro cognosci oportet’. These texts do not warrant M.'s statement (text to n. 21) that adv. fisci could give judgment themselves. Cf. CJ II, 36 (37), 2 (A.D. 226); X, 11, 5 (335); CTh. X, 15 passim; X, 10, 32; XI, 30, 41.

59 Jones, Later Roman Empire I, 411; 427 ff.

60 Plin., Pan. 36; cf. Ann. IV, 6; 15, on Tiberius.

61 M. 33 f.

62 Jones 112 ff. But it is now known that the ratio privata is at least as early as Marcus and probably goes back to Pius (Pflaum 1005 f.). The reason for its institution, and the nature of its distinction from the ‘fiscus’, are still obscure. In the late empire it claimed bona caduca and damnatorum (Jones, Later Roman Empire 412 ff.). This marks the final stage in the process whereby the emperor came to be the state. The confusion of later writers is well exemplified in SHA, Sev. 12, which incorrectly ascribes to Severus the institution of the ratio privata; the author successively states that the properties of Severus' enemies were made public and ‘aerarium auxerunt’ and that Severus ‘magnam partem auri per Gallias, per Hispanias, per Italiam imperatoriam fecisset’. ‘Aerarium’ seems also to be used for ‘fiscus’ in the lives of Marcus 24, 9 (cf. Jones, op. cit. 416), and Alexander Severus 46.

63 Dig. XLIX, 14, 3, 10; 14, 6, 1; cf. Jones 113.

64 KV 17.

65 M. n. 176. But the distinction is one with hardly a difference in Dig. XLIX, 14, 3,10, and the same procurator manages ‘opera publica et fiscalia’ in AÈ 1945, 80. It had probably become a mere matter of history; some property, long administered by the emperor, was fiscal; what was only now being taken into his hands still counted as public.

66 In my view, developed in an article to appear in Latomus, Millar, , Historia 1964, 180 ff.Google Scholar, has unduly limited the extent of the procuratorial jurisdiction, in which the emperor's own fiscal agents determined fiscal claims, attested for Claudius by Ann. XII, 60, and for the Severan period by Dig. I, 16, 9 pr.; cf., for instance, Dig. 11, 15, 8, 19; XXXIX, 4, 16, 1; XLIX, 1; 4, 1; Cy 11, 36 (37), 2; VII, 73, 4; X, 1, 2–3; 3, 1, 8, 1; Paul., Sent. V, 12, 6; in Egypt the idiologus (who was a procurator) certainly had jurisdiction in certain fiscal cases. See also Dig. XLII, 1, 47, 1; XLIX, 14, 45, 7–8, for actions ‘apud fiscum’. But I conjecture that the Claudian and third-century practice was not that of all emperors.

67 ‘Fiscus’ and ‘res publica’ are distinguished in Dig. XXXVII, 1, 12. A rule in XLIX, 14, 37, that the ‘fiscus’ is not to lose ‘ius commune privatorum’ does not imply that it is merely ‘private’. It is contrasted with a private creditor in XXII, 1, 17, 5, cf. XL, 15, 1 pr.(‘neque privatim neque fisci nomine’); in XLIX, 14, 35 (Julian) the ‘ius fisci’ is equated with ‘publica causa’, cf. CJ VII, 49, 1 (Caracalla), where ‘causa privata’ is set against ‘causa publica sive fiscalis’. In Dig. XLVIII, 13, 1, peculatus is said to be embezzlement of ‘pecunia sacra religiosa publicave’; in the same title ‘fiscus’ is interpolated by Paul or the compilers in texts of Labeo (11 (9), 3 and 6) and occurs in words ascribed to Marcellus in 14 (12); in Paul, Sent. V, 27, the crime applies to fiscal property. I do not believe that this development is later than the Severan period.

68 F. Schulz, Principles of Roman Law ch. 11.

69 Common in Digest, cf. n. 19.

70 On this see Last, H. M., JRS XXXIV, 1944, 57–8Google Scholar. P. W. Duff, Personality in Roman Private Law 55, remarks that ‘quasi’ can mean ‘in law, though not strictly in fact’. This is clearly true; but other considerations set out above seem to show that it means ‘in fact, though not strictly in law’.

71 cf. Schulz, Class. Roman Law 71; 86 ff. Observe the anomalies in the treatment of municipia and collegia; neither public nor private law was applied purely and logically. Similarly the rules on societas were not fully applicable to the publicans, cf. L. Mitteis, Röm. Privatrecht 403 ff.

72 Tac, Ann. XIII, 50. The senate would not have dared reject a proposal formally made to it by Nero, and if it had, Tacitus would have stressed so remarkable an instance of libertas. But ‘senatores’ (unlike ‘patres’) is not a normal equivalent of ‘senatus’ and may be rendered ‘(some) senators’; I doubt if emendation to ‘seniores’ is required. Nero's eventual decision was, I presume, endorsed by a senatus consultum: Ann. XIII, 48–52, seem to depend on the acta.

73 Dio LV, 25, 6; LX, 10, 4; Tac. Ann. XV, 18, 3; Hist. IV, 40 (cf. 9); Pl., ep. II, 1, 9 and Pan. 62, 2; cf. Dio LXVIII, 2, 3. Tacitus and Dio, attentive to political realities, speak of action by the emperor; but Ann. XV, 18–22, I seem as a whole to depend on acta senatus, and Nero's commission was doubtless set up by SC, like Nerva's (as we know only from the lucky survival of Pliny's letters).

74 Petitions for relief to the senate from senatorial provinces, Ann. 1, 76; from imperial, 11, 42 (apparently from acta senatus). Remissions, 11, 47 (Tacitus speaks at first of action by Tiberius, but the appointment of a commissioner ex senatu proves that the senate was involved); IV, 13; XII, 58 (acta senatus); 62–3 (senate explicitly involved); these texts concern senatorial provinces, except for IV, 13 (Achaea—recently imperial).

75 Dio LV, 25; LVI, 28.

76 ILS 309; cf. SHA, Hadr. 7, 6; Dio LXIX, 8, 12 (cf. LXXXI, 32, 2, on Marcus' remissions). See M. 32.

77 Plin., Pan. 36, 3, on imperial control of aerarium.

78 Per. Livy 134; 138–9; Dio LIII, 22, 5; ILS 212, 35 ff. (Gaul); Jos., AJ XVII, 355; XVIII, 2 and 26; ILS 2683 (Syria and Judaea); CIL X, 680 (Lusitania); Luke 11, 1–3.

79 ILS 950; cf. 5955 with Stat., Silv. I, 4, 83 ff. (Africa); ILS 1395(Africa); 1046; 1395(Macedon); 9506 (Bithynia).

80 Ann. IV, 15, 2; Dio LVII, 23, 4–5. For the role of procuratores Asiae in the early Principate, cf. Ann. XIII, 1, 2: they are ‘rei familiari principis impositi’; this expression, unlike references to ‘fiscus’, unambiguously relates to the emperor's private fortune.

81 Dio LIII, 15, 3:

82 Dio LII, 28 (‘Maecenas’); LIV, 21, cf. last note; Str. III, 4, 21. The Hama inscription, now conveniently printed in McCrum and Woodhead, Docs. of Flavian Emperors n. 466, suggests that they were also responsible for military transport and supplies (cf. JRS 1956, 46 ff.), functions later sometimes discharged by praefecti vehiculorum and occasionally by special officers concerned with the annona for armies (Pflaum III, pp. 1040, 1052, 1064, 1080). Presidial procurators combined the general work of government with financial duties, cf. ILS 3528 (Graian Alps): ‘dum ius gubernor remque fungor Caesarum’; this is best attested for the prefect of Egypt.

83 e.g. Statius, Cic., ad Qu.fr. I, 2, 1.

84 Publicans, Plin., Pan. 37, 6; ep. VII, 14, 1. Procurators, first attested in Achaea under Claudius, ILS 1546 (freedman); in Rome from Domitian (Pflaum III, 1026), also in Italy (ib. 1036 ff.), and both imperial and senatorial provinces from the mid-second century (ib. 1048 f.; 1054 ff.; 1074; 1077; 1051; 1053; 1056; 1097). It should be stressed that the record for all posts is very fragmentary and that the first documentation of a post may be long after its creation.

85 Such equestrian procurators are found in Gaul and Africa from Hadrian (Pflaum 111, 1052; 1093), in Illyricum from Commodus (1065, cf. 1058 f.), in Asia only in the third century (1073; 1077); but some supervision by imperial freedmen and slaves is earlier, cf. S. J. de Laet, Portorium 373 ff.

86 M. 37. (I think he misinterprets Philo, Flacc. 150: the few parts of Flaccus' estate which did not go to the fiscus were probably left to him, cf. ib. 168.) Estates which had been ‘in formam patrimonii redacta’ were not usually sold (Dig. XXX, 39, 10), any more than ‘horti qui principalibus usibus deserviunt’ (ib.), which were doubtless assimilated to ‘(loca) publica, quae non in pecunia populi sed in publico usu habeantur, ut est campus Martius’ (XVIII, 1, 6 pr.). But there are many allusions to sales of fiscal property, e.g. XXII, 1, 16, 1; XXVII, 9, 2; XLIX, 14, 3, 5; 14, 5; 14, 22 pr.–1; 14, 36; 14, 50; CJ II, 36 (37), 3, 1; X, 1, 3; 3–5.

87 e.g. Dio LVI, 8, 4; Pliny, Pan. 50. Cf. ‘Maecenas'’ advice in Dio LII, 28.

88 So H. Dessau, Gesch. der röm. Kaiserzeit 1, 198. Hirschfeld plausibly argues that procuratores hereditatium took over bona vacantia (cf. Dig. XLIX, 14, 32), KV 114 ff.

89 Appendix to Res Gestae.

90 Plut., Pomp. 45, 3.

91 Ann. XIII, 31, 2; XV, 18, 3.

92 Suet., Gaius 37, 3; Dio LXXIII, 8, 3. No evidence that Vespasian accumulated 4000,000,000 HS, as he wished (Suet., Vesp. 16, 3 amended).

93 FIRA 12, no. 100, 1, 25 ff.; cf. 11, 8 (‘octonarium agrum’, probably land paying eighths, rather than 8 denarii per iugerum).

94 Dio LIII, 30; Suet., Aug. 101 with Ann. I, 11; Suet., Gains 16, 1, with Dio LIX, 9.

95 Weaver, P. R. C., Proc. Camb. Phil. Soc., 1964, 89, cf. 82.Google Scholar

96 CIL VI, 8409c = EJ 153, where ‘delat.’ = ‘delato ad aerarium’, on the public pay-roll because employed on public business, cf. Front., de aq. 100. I see no reason to think this merely honorific, contra Millar, , JRS 1964, 38.Google Scholar

97 Silv. III, 3, 85 ff.

98 Hist. I, 11, ‘domui retinere’ rightly indicates that it was administered by the emperor's own staff. Philo, Flacc. 158 looks at the realities. Neither text has anv juristic value.

99 Plut., Cato Min. 18, 5.

100 Contra Millar, , JRS 1964, 38.Google Scholar Given the nature of our evidence his argument from silence has no weight.

101 Jones 106.

102 Millar, , JRS 1964, 39Google Scholar; cf. also for payments out of aerarium Dio LIV, 2, 3; LV, 26, 5 (vigiles in Dio'sday); LVIII, 18, 3 (praetorians, A.D.32, obscure); LIX, 15, 5 (roads, cf. EJ 287); Frontinus, de aqu. 116; 118; Dio LXXI, 33, 2 (Marcus Aurelius). Payments into aerarium of damages in repetundae suits, Plin., ep. II, 11, 19–20 (cf. for Republic, FIRA 12, no. 7, VV. 59 ff.).

103 Millar, , JRS 1964, 36.Google Scholar

104 Dio LVI, 32, 1; LIX, 15, 1, cf. Ann. XII, 5–7; ILS 244, 22 ft. Dio LIII, 28, 2 (cf. 18, 1–2) is an anachronistic misconstruction of some special exemption, probably from the law de ambitu, based on the doctrine of his own time (Dig. I, 3, 31).

105 RG 27, 1; EJ 37 = Macrob. 1, 12, 35.

106 Dig. I, 17, 1, cf. Jones 121.

107 FIRA I2, no. 99, preamble. Cf. CJ IV, 31, 1, for senatorial regulations of fiscal rights.

108 Examples of δημόσιος in index to S. R. Wallace, Taxation in Egypt, cf. Wilcken, Grundz. 30 f.; 288; H. I. Bell, CAH X, 284 f., 292 f. In Egypt, as elsewhere, the emperor had private domains, ousiai, on which see Bell 293 f.

109 See VV. 18–25 (cf. 13, 30) of edict, with the comments of G. Chalon, L'Édit de Tiberius Julius Alexander, 1964. The various terms used— — seem indistinguishable.

110 Hist. 1, 20; cf. 90. On the view of fiscus taken here, Tacitus' words ‘reliquias Neroniarum sectionum nondum in fiscum conversas’ do not imply that the sums recovered were to go to the private cashbox of the emperor.

111 Frontinus, de aq. 118.

112 Jones 102–3.

113 Nero's account of his own subventions of the aerarium (n. 91) could hardly have been checked.

114 M.n. 171. If M. (n. 152) is right in preferring Suet., Vesp. 18, 1 to Dio LVI, 12, 1a, the latter's mistake illustrates his difficulties.