FISCUS
FISCUS In the republican period there was only one public
treasury, the Aerarium populi Romani, or Aerarium Saturni, as it was called.
On the establishment of the imperial power, there was a division of
government between the senate as the representative of the populus and the
emperor, and in consequence there was a division of the different branches
of the public revenue into two departments. The treasury of the senate
retained the name of Aerarium, while that of the emperor received the name
of Caesaris fiscus or Fiscus. Fiscus was the large basket in which the
Aerarium and great banks kept money (Lex repet. 5.67, 68;
Cic. Ver. 3.85, 197: cf. Mommsen,
Staatsr. 2.958): in this sense it
is opposed to the cista or chest in which private persons generally kept
their money. Hence in the time of Augustus the word
fiscus was applied to the central financial department of
each branch (
ratio) of imperial administration:
thus we have the phrases
fiscus Asiaticus
(Orelli,
Inscr. 2905),
Gallicus
(Henzen, 6651),
Judaicus (
Suet. Dom. 12),
frumentarius (Orelli, 790),
castrensis (Orelli, 2920), and so Suetonius opposes
fisci in the plural to
aerarium (
Suet. Aug. 101); the
word occurs in this sense as late as the time of Hadrian (
C. I.
L. 967). But the superior importance of the central imperial
treasury led to the practice of appropriating the word
fiscus to it. The first distinct use of
fiscus in this sense is found in the writings of the younger
Seneca (
de Ben. 4.39, 3; 7.6, 3: cf. Juv.
Sat. 4.54, “res fisci est” ):
fiscus is thus commonly opposed by Tacitus to
aerarium (e. g.
Tac. Ann.
2.47,
48;
6.2 and 17). It is a question whether a central imperial
treasury was established by Augustus, or whether it was not of later origin.
Hirschfeld maintains that there is no evidence of the existence of such an
institution under Augustus, but that there were only separate fisci at this
time. He even thinks that there was no fiscus under Tiberius in spite of the
language of Tacitus to the contrary, and attributes its establishment to
Claudius. The common opinion, which we have adopted, is that the institution
of a fiscus was an immediate consequence of the share in the government
which Augustus undertook. It is true that the emperor's financial
administration was not at first so centralised as it afterwards became,
which is the explanation of the fisci ceasing in course of time to be
mentioned.
The property of the fiscus was held by the emperor in his public capacity, to
be employed for the benefit of the state. The law, however, made no
distinction between the rights of the emperor over property intended for
public uses and that which he held as a private person ( “Res fiscales
quasi propriae et privatae principis sunt,” Ulp.
Dig. 43, 8, 2.4: cf. Sen.
de Ben. 7.6;
Tac. Ann. 4.6,
15). Accordingly it passed with the inheritance of a deceased
emperor to his
heredes; and was at first
administered by the emperor's freedmen and slaves, not by public officials:
so, too, the emperor was under no legal duty to render an account of it, as
would have been the case if it had been the property of the state. But as a
matter of fact the administration of the fiscus was kept quite distinct from
that of other imperial property, and was treated as public; accounts of it
being published by some of the earlier emperors. Hence the
res fisci are frequently opposed to the property
which the emperor had acquired for his own use, either by title of
inheritance (
patrimonium principis) or by some
other title (
res privatae principis). Thus
while the ownership of fiscal property was vested in the emperor, and not in
the state, it was incumbent on him to make use of his rights over
[p. 1.861]such property for the public good; and if his
office had terminated, he might have been made responsible by law for
failure of duty in this respect (cf.
Tac. Ann.
13.14). In accordance with the system of personal government
instituted by Augustus, the fiscus relieved the aerarium from many important
public charges. At first the army and navy and the imperial provinces were
its principal concern, but new burdens were gradually imposed on it, as of
the city corn and water supply, of sacred and public buildings, of the banks
and bed of the Tiber, the roads, bridges, and coinage (cf. Statius, 3.3).
The income of the fiscus was derived from the provinces which were assigned
to the emperor and from conquered territory, and especially from the land
which he held in his own domain, which included Egypt. [
PROVINCIA] The taxes of the
senatorial provinces were also to some extent appropriated to the fiscus,
and it was also augmented by contributions from the aerarium. Moreover
sources of revenue were assigned to it which had previously belonged to the
aerarium, as
legata caduca by a constitution of
Caracalla. (Ulp.
Fragm. 17.2.) Gifts from Italian and
provincial towns, penalties on account of frauds on the revenue, and
forfeitures were also sources of its supply. The emperor frequently
subsidised his treasury to a considerable extent from his own private
property (cf. e. g.
Tac. Ann. 15.18). The
distinction between the fiscus and the aerarium became merely formal, as the
republican treasury lost its independence. Augustus himself did not
interfere with the constitution of the Aerarium populi Romani, but he
created a special Aerarium militare to provide pensions for veterans, which
was supported by the 5 per cent. succession duty (
vicesima hereditatum), and the duty of 1 per cent. on sales
(
centesima rerum venalium). This
subordinate treasury was administered by imperial officers called
praefecti (
D. C.
55.25). Claudius was the first emperor who assumed the right of
nominating an officer to the Aerarium populi. Nero, A.D. 56, appointed two
praefecti aerarii Saturni. From the time of
this latter emperor the distinction between the two treasuries lost its
political importance, although the formal consent of the senate to grants of
money out of the aerarium was probably required till the time of Diocletian
(Frontinus,
de Aquaed. 115). So long as the formal
distinction existed, the law relating to each might be expressed by the
terms
jus populi and
jus
fisci respectively, as it is in Paulus (
Sent.
Rec. 5.12). From the time of Diocletian the word
fiscus signified generally the treasury of the state, the
emperor having concentrated in himself the sovereign power; and so the word
fiscus had the same wide signification as
aerarium in the republican period: accordingly the two words are sometimes
used in the Corpus Juris and in earlier writings as synonymous;
fiscus is, however, frequently interpolated in the
Digest for
aerarium. The administration of the
fiscus was similar in many respects to that of the aerarium. It was
conducted by imperial officers, called successively
procuratores a rationibus, rationales, and
comites, who had numerous assistants--
adjutores a rationibus, tabellarii, &c. Hadrian first
appointed its chief officers from the Equites instead of from his freedmen,
according to the previous practice. The fiscus was represented throughout
the empire by its procuratores, whose duties were regulated by imperial
mandates. Private persons were in the habit of giving information (
nuntiationes) to the fiscal officers of forfeitures
and other claims due to the fiscus, in order that they might obtain a
reward. Actions to which the fiscus was a party were maintained by means of
its procuratores. Under Augustus such actions were tried in the ordinary way
by a magistratus and a judex, like other suits of the same kind between
private persons (
Tac. Ann. 4.7,
15;
D. C. 57.23);
but this subjection of the fiscus to the ordinary tribunals was not of long
continuance. Tiberius in his later years began to remove fiscal causes from
their cognisance, and by a senatusconsultum of Claudius jurisdiction over
them was given to the imperial procuratores (
Suet.
Cl. 12;
Tac. Ann. 12.60), though
the governors of provinces also had a concurrent jurisdiction.. Each
procurator probably had cognisance of the cases arising within his own
department, and was competent to decide them himself, there being an appeal,
however, to the emperor. Thus the consequence of this change was to exempt
fiscal actions from the ordinary procedure of trial by judices, but the
Emperor Nerva deprived the procuratores in Rome and Italy of their
jurisdiction, and assigned it to a special praetor and judices. The office
of praetor fiscalis does not seem to have been of long continuance. The
fiscal procuratores had no power of inflicting fines or criminal
punishments, or of taking cognisance of ordinary actions; but, as is shown
by various imperial enactments and by notices of historians, they frequently
paid little attention to these restrictions. Their arbitrary conduct is to
be attributed, according to Mommsen, to the quasi-military position which
they were allowed to maintain, soldiers being put at their disposal for the
purpose of enabling them to enforce payment of taxes.
Hadrian instituted the office of
advocatus or
patronus fisci, whose duty was to act as
counsel for the fiscus. An appointment of those who were to fill this office
was made from the advocates attached to each court [
ADVOCATUS]. Under Diocletian
and his successors the fiscal procedure was altogether distinct from that of
ordinary actions, the position of the emperor being changed. The fiscus, as
the subject of certain rights, came to be legally regarded as a person, by
virtue of the same fiction of law which gave a personal existence to
corporations, and to the communities of cities and villages. But the fiscus
on account of its relation to the emperor differed in many respects from
other persons existing by fiction of law; and as an instance, it was never
under any incapacity as to taking an hereditas, which, for a long time, was
the case with corporations for the reason given by Ulpian. [
COLLEGIUM]
The fiscus was privileged in various ways. Thus the rule applicable to the
aerarium, that the time of usucapion or prescription did not run against it,
was extended to the fiscus, and the claims of the fiscus had priority over
those of other creditors. It was favoured, too, in being an exclusive right
of acquiring certain things, and otherwise. The various ways in which
property was acquired by the fiscus are enumerated in the Digest (
49,
14,
1), many of which may be
[p. 1.862]arranged under
penalties and forfeitures. Thus, if a man was led to commit suicide, in
consequence of having done some criminal act (
flagitium), or if a man made counterfeit coin, his property was
forfeited to the fiscus. Treasure trove (
thesaurus) which was found in certain places was also subject to
a claim on the part of the fiscus. (
Dig. 49,
15; Cod. 10, 1; Cod. Theod. 10, 1; Paul.
Sent.
Rec. 5.12;
Fragm. veteris Jurisc.
“
de jure Fisca,
” ap. Savigny,
System, vol. ii.; Mommsen,
Staatsr. 2.2, p. 957 ff., from which much of the
information in the above article has been taken; Hirschfeld,
Untersuchungen; Heimbach, art. Fiscus in Weiske's
Rechtslexicon.）
[
G.L] [
E.A.W]
