Roman Public Life

by A. H. J. Greenidge

The origin of this senatorial legislation is doubtless to be sought in the advice on legal points which the Republican Senate had often tendered to the magistrate, and in the interpretation of customary law or of enactments which often accompanied this advice.[1805] It has, indeed, been noted that the senatus consulta of the Principate, which prescribe general commands such as in the Republic would have been the subject of leges, are often expressed in this advisory form;[1806] decrees of the Senate never attained the formal structure of a law;[1807] they also lack its imperative mode of utterance, and for these two reasons they were never described as leges. The highest degree of validity which the jurist could give them was “the binding force of laws”;[1808] but this force was sufficient to make them sources of the jus civile,[1809] and down to the third century such general commands as tended to alter the fundamental legal relations of Roman citizens to one another, were generally expressed in the form of senatus consulta.

The Princeps, on the other hand, is not credited directly with any power of legislation; but the faculty for making jus, which was inherent in the imperium of every Roman magistrate, and especially apparent in that of the praetor, was manifested by the Princeps in an unexampled degree. His methods of utterance are through the edict, the decree, and the rescript. The edictum is, like that of the praetor, technically an interpretation of law; but the creative power associated with interpretation is here pushed to its extremest limits, and statute law supplemented this faculty inherent in the imperium by explicitly declaring that whatever ordinances the Princeps might lay down should (with certain limitations fixed by precedents) be considered valid.[1810] Whether the edict of one Princeps bound his successor must have depended to some extent on the degree of formality in the utterance. Tiberius professes respect even for the obiter dicta of Augustus;[1811] but this reverence was exaggerated, and none but the formal edicts expressed in written form could, as a rule, have been included in the acta. It is by no means certain that even these were always included in the acta to which the oath was taken;[1812] but if an edict had been recognised as valid by several succeeding Principes and was then abandoned, some formal method of repudiation seems to have been necessary.[1813]

The decretum was, in its strict sense, the sentence of the Princeps when sitting as a high court of justice;[1814] as a res judicata it necessarily possessed absolutely binding force for the case in which it was issued, and prevented any renewal of this process; but, unless formally rescinded in a succeeding reign, its validity as a precedent seems not to have been questioned, and the words Caesar dixit appeal to the jurists almost with the force of law.[1815]

The third mode of utterance is by means of the letter (epistola) or rescript (rescriptum).[1816] These letters contained instructions either on administrative or on judicial matters. In their first character they might be addressed either to individual officials subordinate to the Emperor or to the provincial diet,[1817] the scope of their application depending on the Emperor’s discretion at the time of the issue, and on the interpretation of the rescript after his death. In matters of justice, whether addressed to the judge or to the litigant, they might settle doubtful points of law or extend a principle to new cases. The power of interpretation is at least as great in the rescript as in the edict; but the rescript was the more powerful vehicle for law-making. It kept the Princeps in constant touch with the provincial world, and was the chief mode in which the uniformity of its administration and its law was moulded. The rescripts also had, on account of the precision and permanence of their form, a more unquestioned validity, as perpetual enactments, than either the edict or the decree. When the acta of an emperor are referred to, it is chiefly these, together with the charters or privileges (leges datae, beneficia) that he may have conferred on states, that are intended. The rescripts might be elicited either by the consultatio of a doubtful official who was subordinated, either as an administrator or as a judge, to the Emperor, or they might be written in answer to the petition (libellus, supplicatio) of one of the parties to a suit. In the latter case they were often a convenient substitute for the personal appearance of the appellant in the Emperor’s court.

The edicts, decrees, and rescripts came eventually to be described as “imperial constitutions” (constitutiones principum), and although, as we have seen, different degrees of permanence might attach to each of these methods of utterance, to a jurist of the second century they all had the force of law.[1818] From this category of enactments with binding force one important class of imperial ordinances seems formally to have been exempted. This class consisted of the mandata, or general instructions which the Princeps gave to officials subordinate to himself. In the early Principate they were for the most part issued to the governors of Caesar’s provinces, but the gradual encroachment of the Emperor’s powers on senatorial administration led to the mandates being issued to proconsuls as well. When the mandate dealt with a precise point of the jus civile and was repeated by successive emperors, it doubtless came to have the force of a rescript;[1819] but it was more often concerned with the general administrative duties of subordinates, directing them in the doubtful cases of the moment, and, therefore, not necessarily laying down rules of perpetual validity. In one sense the mandate stands higher than the rescript, for it is as a rule more general in form, and a mandatum may be the result of a series of rescripta on the same point; but in another sense it stands lower, since it was understood that it might be recalled at any moment by the Princeps who had issued it, and that it might not be observed by his successor. The remarkable differences of treatment to which the Christians were subjected during the Principate was due chiefly to the fact that, so far as this treatment was a concern of the central government at all, it was one directed by mandate.

A review of the powers of the Princeps as exercised through his “constitutions” and his mandates shows that he was not regarded as a true legislative authority, and that the binding force of his ordinances was technically inferior to that possessed by decrees of the Senate. But the theory of legislation was never of much practical importance at Rome. The Romans had lived for centuries mainly under the rule of interpreted or judge-made law, and now the Roman world, enlarged and unified, looked for guidance, not to the comitia, which were in decay, or to the Senate, whose contact with the provinces was ever becoming less, but to the one interpreter who was known to every judge and every litigant, and whose utterances could be heard at the farthest ends of the earth. It was the force of circumstances, not any constitutional theory, which made the Princeps the highest of all legislative, because the greatest of all interpreting, authorities.

(ii.) Jurisdiction.—If we turn from the legislative to the judicial sphere, we find the same theoretical assertion of a dual control. But it is complicated in this instance by the fact that the Senate is not the sole representative of the Republican side of the administration. The state still asserts itself through old organs such as the praetors and the judices, while it has acquired a new organ in the joint activity of consuls and Senate. In a sphere parallel to theirs the Princeps works, sometimes exercising a jurisdiction that is all his own, at other times infringing on their powers, but always occupying a position that exhibits him to the provincial mind as the highest court in the Roman world. The jurisdiction of these several courts must be treated in its separate aspects of civil and criminal, of jurisdiction in the first instance and by way of appeal. The power of reversing sentences and the right to pardon must also be considered.

The civil jurisdiction of the Republic, with its division into jus and judicium, continued during the greater part of the period of the Principate, and the praetor still gave his legal rulings in the shape of a formula which he submitted to a judex. But these judicia ordinaria tended gradually to be replaced by the personal cognisance (cognitio) of the magistrate, which, exercised on a limited scale by the praetor during the Republic, became a feature of the Emperor’s own jurisdiction from the very beginning of the Principate, and was soon extended to provincial governors and to his great delegates, the praefects. This jurisdiction was described as extra ordinem, and, like the other form, it admitted of a distinction between magistrate and judex. But the new judex extra ordinem datus[1820] is wholly different in character from the judex ordinarius of the older form of process. The new procedure does not admit the distinction between jus and judicium; the judex is a true delegate, is appointed without a formula, and decides on the law as well as on the facts of the case. The sphere of the cognitio of the Princeps was probably unlimited in theory, and may have been conferred on the first Emperor by statute.[1821] It was a voluntary jurisdiction which any one might request and which the Emperor might refuse. In case of such refusal the case was taken by the praetor. The early Principes, however, showed an unwillingness to interfere with the common-law jurisdiction of the ordinary courts, and confined their attention to cases of equity, such as those springing from matters of trust (fidei commissum) and guardianship (tutela). But the number even of these cases soon became too vast for the cognisance of the Emperor and his occasional delegates, and we have seen how special praetors were successively appointed to share in this equitable jurisdiction.[1822]

The civil courts of appeal existing under the Principate are partly due to a survival of the Republican principle of appellatio to a magistrate with the right of veto, partly to the principle (new for Rome, though not for the provinces) of delegated jurisdiction, and partly to a wholly novel principle of an appeal which can completely reverse the decisions of a lower court, which has its origin mainly in an attempt at centralising the higher provincial jurisdiction in Rome. From the decision of a judex in the judicia ordinaria there is now, as formerly, no appeal to any authority, although, as we shall see, the sentences of judices might, under certain conditions, be reversed by the authority either of the praetor or the Princeps. From the decision of the praetor in jure an appeal lies as before to an equal or higher authority,[1823] and the veto in virtue of the major potestas or majus imperium is naturally possessed by the Princeps. When we find Tiberius present in the praetor’s court, he may be there for the purpose of over-ruling that magistrate’s decisions.[1824] His presence seems to show that the limitations of the old auxilium—which must be offered in person[1825]—were preserved. Whether the veto was pronounced in virtue of the imperium or in virtue of the tribunicia potestas is a matter of indifference; how the veto operated is the really important point. On the analogy of the Republican intercession its effects should have been purely cassatory, and perhaps in the early Principate this principle was observed. But it must be remembered that the Princeps is in a very different position to the vetoing consul or tribune of the Republic, or even to the Republican praetor who presides over a department other than that which he controls by his veto. These magistrates can negative a decision of a lower court, but they cannot replace this negatived decision by a positive judgment of their own. The Princeps, on the other hand, has a theoretically unlimited power of civil jurisdiction.[1826] He can, therefore, supplement his negative by a positive judgment, and this unique combination of the power of vetoing and the power of judging is almost unquestionably the basis of that appeal to Caesar which leads to the reformation of a sentence. It is not improbable that the appeal came to operate in this way even against the praetor, although, even if it did not, the effect of Caesar’s veto would really be reformatory. Even the tribunes of the Republic could put pressure on a praetor to induce him to alter his formula,[1827] and we can hardly imagine the praetor withstanding the suggestion accompanying a veto pronounced by the holder of the tribunicia potestas. The jurisdiction of the municipal towns of Italy was, so far as it was “ordinary” jurisdiction, still under the control of consuls, praetors, and tribunes, at least as late as the reign of Nero.[1828] These municipal courts were technically those of the praetor urbanus, and the Princeps probably interfered (if at all) with their jurisdiction only through his control of the rulings of the praetor in Rome. We shall trace elsewhere the mode in which the extraordinary jurisdiction of one of Caesar’s delegates, the praefect of the city, came to encroach on the ordinary jurisdiction of the Roman courts.