Statute was different from that which we find in the imperial period, as
well as from that which any modern jurist would naturally form. The word
_lex_ meant in early Latin simply a set form of words; and when applied
to an enactment by the _comitia_, it described, not a special kind of
legal rule, but merely the expression of the people’s will in set terms.
And the original conception of a statutory enactment was that of a
contract made between the Citizens in the _comitia_ and the Magistrate
representing the Corporate State. Hence the definition of _Lex_ which we
find given by Papinian (_Dig._ i. 3. 1), ‘the common covenant of the
republic’ (_communis reipublicae sponsio_), probably descends from the
old practice according to which the Consul or other presiding Magistrate
asked (_rogavit_) the _comitia_ whether such and such was their wish,
submitting to them the form of words whereby they were to agree to bind
themselves. Just as in the Roman _stipulatio_ the questioner asks the
promiser whether he promises to do such and such a thing, to which the
latter answers, ‘I promise’ (_spondeo_); so the Consul asks the Quirites
whether they wish and order that such and such a thing shall be done
(_Velitis, iubeatis, Quirites?_), whereto the citizens answer, ‘Be it as
you ask’ (_Uti rogas_). Thus the first (or at any rate a very early)
form in which the notion of a formally enacted, as distinct from that of
a Customary, Law emerges in Rome is that of a Contract.
The Romans were like the English in this, that they seldom did anything
formally till it had for a great while been done practically. Long after
the power of legislation had passed in substance from the king of
England to his subjects represented in his Great Council, the forms of
the Constitution continued to suggest that the monarch was still the
prime agent in legislation. To-day the so-called Royal Veto, which ought
rather to be called the right of the Crown to take further time to
consider the resolutions of the two Houses, subsists in theory
unimpaired, though it has not been exercised since 1707. So when actual
power passed from the _comitia_ to the Imperator in the days after
Julius Caesar and Augustus, the rights and functions of the Assembly
were not formally extinguished. Magistrates continued to be elected by
the _comitia_ till the accession of Tiberius, and the right of
legislation remained for a great while afterwards legally vested in
them. Statutes appear to have been passed by them as late as the time of
Nerva. The _comitia_ themselves died out by obsolescence, without being
ever formally abolished, and apparently they went on meeting
occasionally in a purely formal way long after they had ceased to be a
reality, just as the name _Respublica Romana_ survived in documents and
inscriptions when the old associations it evoked had been
forgotten[125]. And the popular assemblies died out all the more quietly
because they had never met of themselves, by simple operation of law.
Like the English Parliament, but unlike the American Congress and the
Chambers of some European countries, they needed to be convoked by the
Executive[126].
-----
Footnote 125:
I saw a few years ago, in the ruins of Salona in Dalmatia, a lately
uncovered inscription, dating apparently from the sixth or seventh
century A.D., in which the protection of God is asked for the
‘respublica Romana.’ It need hardly be said that the term has in
strictness nothing to do with the form of government, no more than has
our English term ‘Commonwealth.’
Footnote 126:
The Crown is now in England bound by statute to summon Parliament, but
should the Crown omit to do so, Parliament could not legally meet of
itself, save that upon the demise of the Crown it does forthwith come
together to swear allegiance to the new Sovereign.
-----
VII. DIRECT LEGISLATION AT ROME.
B. _The Senate._
When legislation by these assemblies ceased the turn of the Senate came.
This body, a Council of Elders as old as Rome itself, perhaps in its
original form corresponding to the Council which surrounded the Homeric
king, seems to have claimed, even during the Republic, the right of
general legislation, a right which the popular party denied, and which
was probably not well founded in law, although its undoubted competence
to issue administrative decrees for temporary purposes made the claim
plausible, and raised many questions of delicacy and difficulty
regarding the exact limits of its power. Moreover the Senate, whose
proper function was to advise the magistrates, came to have a sort of
ill-defined authority over them, and they often found it prudent to
shelter themselves under that authority; so sometimes a resolution
directing a magistrate to take such and such a course might be quoted as
possessing legal validity, especially if the course was one which lay
within the scope of his official discretion. The whole subject was full
of uncertainty, and a controversy seems to have gone on among
constitutional lawyers regarding the Senate’s powers, similar to that
which long raged in England over the so-called dispensing power of the
Crown[127]. When the _comitia_ ceased to be convoked, except
occasionally as a matter of form to give effect to the monarch’s will,
it was natural that the legislative functions of the Senate should win
full recognition, for they furnished exactly the method of legislation
which the Emperors desired. As the Roman State remained a republican
commonwealth in theory and in strict intendment of law long after it had
passed under the sway of a monarch, and as it was the object of the
monarch to keep up this theory, he found it easy and safe to act through
the Senate, which (though absolutely obedient to him) still wore the air
of an independent body, rather than in his own person, ample as was the
magisterial authority wherewith he was clothed. Thus the Senate at the
same moment acquired power and lost it. It became recognized as entitled
to make law, but it found itself the mere instrument of the Emperor for
that purpose. From the time of Tiberius down to that of Hadrian, many
laws were passed by the Senate; and though its action became
thenceforward less frequent and less important, its rights lasted as
long as it lasted itself, that is to say, till it died out in the
disorder of the seventh century. They are referred to by Justinian as if
still existing, but we do not hear of any practical use made of them in
his time. One of the latest measures ascribed to the Senate is, oddly
enough, a decree for regulating the election of Popes, and preventing
tumults thereat.
-----
Footnote 127:
This is illustrated by the words of Gaius, ‘Senatus consultum legis
vicem obtinet quamvis fuerit quaesitum’ (Gai _Inst._ i. 4). Ulpian
however says, ‘Non ambigitur senatum ius facere posse’ (_Dig._ i. 3.
9). It too exerted a sort of dispensing power: cf. Sallust, _Cat._ 29.
-----
The Senate was in most respects much better fitted for legislative work
than the popular assemblies had been, indeed than most assemblies have
been in any country. It was composed of men of mature age, versed in
affairs, many of them having filled high office, others having served as
judicial referees, if we may so render the term _iudices_; all
therefore, or nearly all, possessing some knowledge, and many a large
knowledge, of law and of administration. It was large enough to comprise
persons of very varied experience, while small enough (in normal times)
to be business-like, and to avoid the danger of degenerating into a
mob[128]. Like the _comitia_, it voted only once on a proposition, and
that one vote was sufficient to pass a law. Again like the _comitia_, it
could only deal with what the magistrate brought before it, private
members having no initiative. But, unlike the _comitia_, it could debate
a proposition and make amendments thereto; that is to say, when a
particular draft measure was submitted, it was able, being thereby
seized of the matter, to reject the proposition as drafted, and to pass
one containing different provisions. There does not seem to have been
anything analogous to our English system of going into Committee, and
afterwards making a report to the House; but, as the decrees submitted
were short and simple compared to those which the British legislature
deals with, the method of amending the proposal submitted, or debating
and passing an alternative proposal, was doubtless sufficient for the
needs of the case. What was lacking to the Senate was not machinery, but
force. It was a tool in the hands of the Emperor, and was used by him as
a means of formally enacting and promulgating measures on which he had
already decided. His influence soon came to be so fully recognized that
the later lawyers sometimes cite not the _Senatus consultum_ itself, but
the speech (_oratio_) in which the Emperor proposed it to the Senate,
although in these cases the legal validity of the law seems to be
attributed to the vote of the Senate. After Hadrian it would appear that
legislative decrees were always passed at the instance of the monarch.
-----
Footnote 128:
Though Augustus found over a thousand members in it, many of them
unworthy, and was obliged to purge it carefully down to a reasonable
strength (Sueton. _Octav._ 35). Whether there were senators with no
legal right to speak but only to vote—they voted, as in the English
Parliament, by dividing into two bodies—is matter of controversy.
There was no closure, so senators used to talk against time.
-----
Under an indulgent Emperor, and in matters of ordinary private law,
there might of course be no great reason why amendments should not be
suggested or even opposition made, by an active senator, to bills
proposed by the presiding magistrate, although the magistrate himself
was usually merely the mouthpiece of the monarch. But the habit of
servility grew so fast, that even this remnant of independence seems to
have soon become rare. Nothing was so dangerous as to give offence to a
sovereign whose power was restrained only by his good nature.
The checks which have been noted as existing in the case of the
_comitia_ on prolixity or obscurity in the terms of a statute, were
absent in the case of the Senate. Yet the good habits formed in earlier
centuries were not lost. The _Senatus consulta_ which remain to us are
favourably distinguished by their clearness and brevity. The ease with
which they could be passed, or repealed when passed, does not appear to
have led to their being drawn carelessly as regards either substance or
form. It may however be remarked that having been originally not so much
laws as resolutions of a body primarily advisory, intended to express
its opinion, and to guide or strengthen the hands of an executive
magistrate, they continued to be couched in language hardly so technical
as that of the old _leges_. They are less imperative in form, and often
express quite as much in their preamble, which contains the motives that
have suggested the decree, as through the more strictly enacting part.
Occasionally they approach dangerously near, as preambles are apt to do,
to becoming rhetorical declarations of policy.
The _Senatus consulta_ actually preserved, or known to us by name, are
less numerous than might have been expected. The same may be said of the
_leges_, or rather of such among them as were of general and permanent
effect, not mere acts of an executive nature. If we could suppose that
the legislative activity of the Roman State had manifested itself only
through _leges_ and _Senatus consulta_, it would be hard to understand
how that State, developing as it did, could have got on and attained its
amazing development in wealth and population with so few legislative
changes. The explanation, of course, is that the Praetor and the jurists
were doing the main part of the work, just as during the eighteenth
century in England the judges and text-writers were steadily developing
our private law, which was but little altered by statute through the
whole of that century. During the later Republic and the earlier Empire
direct legislation was (speaking generally) resorted to either to
abolish some deeply rooted rule or else to establish some new departure,
which a magistrate hesitated to undertake on his own responsibility.
VIII. DIRECT LEGISLATION AT ROME.
C. _The Emperor._
The third and last form of direct Roman legislation is that of imperial
ordinance. In one aspect it is the most important form, because nearly
all the law of statutory origin which has come down to us was enacted by
the Emperors, the number of _leges_ and _Senatus consulta_ being slight
in comparison. The Emperors, moreover, spoke the last word. It was their
legislation which gave to the Roman law the shape in which it descended
to the modern world both in the East and in the West.
The Emperor’s legislative authority grew up slowly and almost
imperceptibly out of the rights which he enjoyed as holder of several
great magistracies, or invested with the powers which belonged to them.
Although, in later times, the imperial function of legislation was
ascribed to a formal transfer made to him by the people of their own
authority[129], it is important to remember that its true parent is to
be sought, not in _leges_, nor even in _Senatus consulta_, not in any
representation by him, as the heir of the Assembly, of the ancient right
of popular sovereignty, but rather in the Edicts of the magistrates,
whether their formal enunciations on entering office of the rules by
which they proposed to act, or their less public instructions to their
subordinate officials.
-----
Footnote 129:
Cf. Just. _Inst._ i. 2. 6: cf. _Dig._ i. 4. 1.
-----
Even the action of the jurists, and the custom of issuing answers on
points of law (_responsa_), contributed something to the conception of
the Emperor as a source of law, for he was, as a magistrate, an
authoritative exponent of the contents of the customary law, and of the
interpretation of the statute law; and if an answer given under his
commission by an authorized jurist was binding on a _iudex_, how much
more weight was due to a declaration proceeding from himself, the
fountain-head of authority? That the imperial ordinances have not
preserved the outward forms and character of the republican statutes is
a consequence of these facts and of the conception I have described.
They are not expressed in the same strict and highly technical language
as the old statutes were. As regards some of them, and especially some
of those which belong to the first two centuries of the Empire, it is
hard to say whether they were originally intended to have a general
application, for they may have been mere instructions or declarations of
opinion, given for the special occasion and purpose only. In fact the
Emperors found it necessary to protest against the tendency to attach
legal weight to all their words. Trajan, for instance, who seems to have
left the character of being more indulgent than most of his predecessors
or successors—witness the story of the widow through whom and the
prayers of Pope Gregory he obtained salvation[130]—declares that when he
makes an answer to a particular request he by no means desires to be
taken as establishing a precedent. He felt, no doubt, that in many cases
the precedent would be of questionable value, according to the proverb
that hard cases make bad law. However, the tendency was too strong to be
resisted. All declarations emanating from the supreme authority in the
State were taken to be binding on its subjects: and we may imagine how
often a wily advocate, or an adulatory judge, would, with loud
professions of loyalty, insist on regarding as law what the Emperor had
intended to be merely a good-natured compliance with the petition of
some unlucky or importunate suppliant.
-----
Footnote 130:
Dante, _Purgat._ canto x.
-----
It is not necessary for our immediate purpose to describe the various
forms which the legislation of the Emperors took. They are classed as
Rescripts, answers to questions or petitions, Edicts or general
proclamations, Mandates or instructions to officials, Decrees
(_decreta_), decisions of the Emperor as being at first practically, and
at last legally also, a Supreme Court of Appeal[131]. In later times the
general name of Constitutions (_constitutio est quod imperator
constituit_), was given to them; and in what has to be said further,
minor differences between the above mentioned forms may be ignored, and
the various kinds of constitutions may be treated together as being all
of them enunciations by the sovereign power of those general rules of
law which it desired to have observed by its subjects—as being in fact
on the same footing as an imperial Ukase in Russia, or an Act of
Parliament in England.
-----
Footnote 131:
Sometimes the speeches delivered to the Senate are included, but in
these cases the law seems (as already observed) to have been deemed
rather senatorial than imperial.
-----
Such legislation by an irresponsible autocrat as that with which the
Roman State ended, stands at the opposite pole from that legislation by
a primary assembly with which the Roman State began. The latter organ
was a stiff, heavy, cumbrous machine, which it was hard to set in
motion, and which could work only under certain prescribed forms. The
former was not only immensely powerful, but so readily applicable,
playing so swiftly and so smoothly, that it was likely to be used too
often and to act too fast. The Roman Emperor occupied, it must be
remembered, a position different from that of any absolute sovereign in
modern times. The Czars in Russia now, the Prussian and French kings in
the last century, are, or were, the heads of their respective nations,
and therefore not only to some extent likely to participate in national
ideas and sentiments, but also largely amenable to national public
opinion. However complete their legal sovereignty and practical control,
the misuse of their legislative powers could not escape popular censure.
A national king is naturally restrained by the fear of displeasing his
fellow countrymen. But the monarch of the Roman world, a world where the
old Roman nationality had, before it expired, so far crushed the other
subject nationalities that none of them could offer any resistance to
the levelling pressure of the imperial authority, found himself unguided
and uncontrolled by any influence, except the dread of a palace
conspiracy or a military rising. Public opinion possessed then no voice,
such as it afterwards found in the church, or finds now in the press.
The various peoples who, from the second or third century A.D. onwards,
called themselves Romans, had not been sufficiently fused together to
have a common public opinion. It was not till the sixth or seventh or
eighth century that the greatly narrowed Eastern Empire began to have a
social and moral coherence, and developed into what might be called a
National power.
This unique position of the Roman Emperor made legislation a great deal
easier for him than for any modern monarch, easier than for the ruler of
China, because there was no vast body of ancient customs he might fear
to break through, easier than for a Turkish Sultan, because there was no
quasi-ecclesiastical authority like the Sheik-ul-Islam or the whole body
of Muslim doctors he might fear to offend. And the fact already noted
that the powers of the popular Assembly had not been formally vested in
him, worked in the same direction. Had there been any legal transference
of legislative functions, some of the old forms and methods would have
passed over with the transfer. There would have been at any rate a
pretty sharp line drawn between the officially promulgated ordinances of
the Emperor and the merely occasional and informal expressions of his
will. But (as has already been noted) the Emperor did not legislate as
the assignee of the popular power of legislation. His function of making
laws sprang from his authority as a magistrate, and the undefined
character of that authority remained with him, and helped to make his
exercise of it infinitely various in shape and expression. Accordingly
in later days no line was formally and technically drawn between the
more and the less solemn declarations of his sovereign will. He was not
bound by the laws. He made law as a part of his daily administrative and
juridical action. He legislated, one might almost say, as he talked and
wrote. He exhaled law. Whenever an idea occurred to him, or to the
minister authorized to speak in his name, he had only to sign, in the
purple ink reserved (in those later days) for the monarch, a few lines,
and therewith a law sprang at once into being.
This was the theory, and this was also to some extent the practice.
Still the exigencies of a position which threw on one man a prodigious
burden of toil and responsibility, compelled the Emperors to make
regular provision for the discharge of their legislative and judicial
work. A Council soon grew up, consisting at first chiefly of Senators,
afterwards largely of jurists, whose members acted as assessors to the
Emperor when he heard civil or criminal cases, and who also advised him
on projects of legal change. At first it was a fluctuating body,
composed of persons whom the monarch summoned for each particular
occasion, though doubtless some of the ablest and most trusted men would
be invariably summoned. But under Trajan and Hadrian it became a
regularly organized chamber of formally nominated and salaried
officials, in which, besides jurists, there sat some Senators and
Knights, and a few of the chief court officers, together with the
Praetorian Prefect, who seems after the second century to have held the
leading place. As it was numerous, we may suppose that particular
members were summoned for particular kinds of business, or that it often
worked by committees. In all these points it furnishes an interesting
parallel to the English Privy Council. And it was itself, under the name
of Consistorium, which it took in the time of Diocletian, the model on
which the papal Consistory was ultimately built up by the bishop of the
imperial city. Some of its chief members were the immediate ministers of
the sovereign, journeying with him, as Papinian accompanied Septimius
Severus to York, or directing legal and judicial business from Rome,
while he made progresses through the provinces, or warred against the
barbarians on the frontier. Among the duties of the Emperor’s legal
councillors, that of prompting, directing, and shaping legislation must
have been an important one. Probably there was a regular staff for the
purpose, a sort of Ministry of Justice, directed by the Praetorian
Prefect, and in later times by the Quaestor, with a body of draftsmen
and clerks. How much the Emperor himself contributed, or how far he
examined for himself what was submitted to him, would depend on his own
special knowledge and industry. Rude soldiers like Maximin, debauchees
like Commodus, would leave everything to their advisers, and if these
had been wisely selected by a preceding Emperor, things might go on
almost as well as under a capable administrator like Hadrian, or a
conscientious one like Severus Alexander[132]. The number of
constitutions enacted was enormous, judging not only from what the
Empire must have needed, but from the laws, or fragments of laws, which
remain to us in the Codes of Theodosius II and Justinian; and as the
legislative action, both of the Senate and of the Magistrates (other
than the Emperor), had almost wholly ceased after Hadrian’s time, while
the local rules and customs of the provinces tended to be more and more
superseded by the law of the ruling city, legislation may, at least for
a considerable period, have rather increased than diminished in volume.
-----
Footnote 132:
Of whom we are told that he never sanctioned any Constitution without
the advice of at least twenty jurisconsults. After Hadrian the
_Consiliarius Augusti_ had a position of recognized dignity.
-----