§ 16.: The Creation of the Principate—Changes in the Sources of Law.

The change from the Republic to the Principate introduced no very sudden alterations in the sources of law or the methods of procedure. Both, as we shall see, were supplemented by new creations; but up to the time of Gaius it was possible to appeal to the Republican system as the one that underlay the legal life and the judicial organization of Rome. All that was added by the Edition: current; Page: [xlii] Principate was in the nature of an excrescence—one that was probably healthy in its effects, in spite of the fact that it does seem to have limited to a certain extent the creative activities of juristic thought. The birth of the Principate was not conditioned by strictly legal necessities. There seems to have been little sense that a single controlling force was needed for the guidance of the law of Rome, Italy, and the provinces. The justification for the Principate was found in the fact that a single controlling power was necessary for the command of the army and the routine administration of the provinces. But it was impossible to create such a power without bringing it into some contact with every department of the State. The guidance of legislation and judicature by an individual will was a necessary outcome of the new order of things; and it is possible that this guidance was needed. There is a stage in the history of law where liberty of interpretation may lead to perplexing uncertainty, and there is a stage in the history of any national judicial organization where certain radical methods are necessary to adapt it to new needs. The Principate gave a definiteness to law, but a definiteness that was in no sense illiberal. On the contrary, it prevented law from being narrowly Roman as effectually as it checked it from recklessly absorbing foreign elements. It adapted law to provincial needs by expanding, but not impairing, its national character. At the same time it widened the scope of jurisdiction by methods which we shall soon describe—methods which seem to have increased the efficiency at least of the civil courts at Rome, and which brought the provincial world into closer judicial relations with the capital. The changes effected both in legislation and in jurisdiction were gradual and progressive; and, though they were from a formal point of view initiated by the will of individual monarchs, it is important to remember that, at Rome as elsewhere, monarchical power is the outcome of the concurrence of many individual wills. For the sake of convenience we are accustomed to treat the Princeps as the chief source of law and the chief influence on jurisdiction. Sometimes a purely personal power of this type may have been realized for a while, although when so realized it always had a flavour of tyranny. But as a rule, when we think of the Princeps as a source of law and justice, we should be thinking of his judicial advisers and assessors. The trained Edition: current; Page: [xliii] jurist still plays a leading part in legal progress. His control of the Princeps, and the Princeps’ control of him, must both be taken into account, although the actual extent of the respective influences—of the administrator over the jurist and of the jurist over the administrator—can never be determined for any given act or for any given moment of time.

A division of power of this type is perhaps common to all monarchies. But in the Roman Principate, which was not technically a monarchy, we find it expressed in yet another way—a way which is of more importance theoretically, although perhaps of less practical import. It is expressed in the form that the Princeps is merely the ‘extraordinary magistrate’ of a Republican Constitution. By an ‘extraordinary magistracy’ is meant a magistracy formed by an accumulation of functions, each of which is usually exercised by a particular magistrate. The chief powers with which the Princeps was invested were the Proconsulare Imperium conferred by the Senate, and the Tribunicia Potestas conferred on a recommendation of the Senate in a formal meeting of the People. The Proconsulare Imperium was technically valid only outside the limits of Italy; but, as it was absolutely necessary that the Princeps should possess Imperium within Rome, he was specially exempted from losing his Imperium by his presence within the city. The effect of this exemption probably was to create for the Princeps a kind of consular Imperium in Rome and Italy. But even this device was not sufficient to secure for him the authority which he required as a moderator of the whole State. The Proconsulare Imperium and the Tribunicia Potestas required to be supplemented by a number of separate powers conferred by special grants. These grants must originally have been made by special laws and decrees of the Senate that were passed at various times; but the practice seems soon to have been adopted of embodying them in a single enactment, which was submitted to the formal assent of the People at the time when the Proconsulare Imperium and the Tribunicia Potestas were conferred. A fragment of such an enactment is the extant Lex or Senatusconsultum which enumerates powers conferred on the Emperor Vespasian at his accession. The rights of the Princeps enumerated in this document are of a very heterogeneous kind—they include the powers of making treaties, extending the pomerium of the city, commending candidates Edition: current; Page: [xliv] for office, and issuing edicts as interpretations of law, human and divine; and, important as they are, they have no direct connexion with either the Proconsulare Imperium or the Tribunicia Potestas. Some of the most imposing powers of the Princeps were dependent on neither of these two sources, but were contained only in this general Lex; and as fresh prerogatives were added to the Principate, the Lex would grow in bulk and importance. Some development of this kind may account for the fact that Gaius and Ulpian both speak of the Princeps receiving his Imperium through a Lex. Such an expression could not have been used of the early Principes; for the Proconsulare Imperium was received through a decree of the Senate; but it is possible that in the course of time the general Lex, as enumerating the majority of the prerogatives of the Princeps, came to overshadow the other sources of his authority.

Since the authority of the Princeps was built up in this gradual and unsystematic way, it is quite impossible for the modern inquirer to determine with precision the sources of the exercise of his different powers. But a rough estimate may be made of five distinct kinds of prerogative and of the activities flowing from each. (1) With the Imperium were connected the control of the army and the provinces, the right of declaring war and of making treaties, the power of conferring Roman citizenship or Latin rights, civil and criminal jurisdiction, and the general power of legal interpretation. (2) The Tribunician Power, besides making the Princeps sacrosanct, gave him the right, exercised during the earlier period of the Principate but afterwards neglected, of initiating measures in the Assembly of the Plebs, and also the right of transacting business with the Senate, although this second right was extended by special grants. The power of veto, inherent in the Tribunicia Potestas, gave the Princeps a control over all the other magistrates of the State, enabled him to exercise over the jurisdiction of the Senate a power akin to that of pardon, and probably formed the basis of much of his appellate jurisdiction. (3) Two of the Principes, Claudius and Vespasian, were invested with the temporary office of censor, and Domitian declared himself censor for life. His example was not followed by succeeding rulers; but the most important of the functions of the censors—the revision of the lists of Senators and Knights—continued to be a part of the admitted prerogatives of the Princeps. Akin to this right was that of creating Patricians, which had been conferred Edition: current; Page: [xlv] by law on Caesar and Augustus, had been exercised by Claudius and Vespasian as censors, and finally became a right inherent in the Principate itself. (4) The Princeps, besides being a member of all the great religious colleges, was, as Pontifex Maximus, the official head of the state-religion, and was invested by law with the power of executing ordinances which were to the interest of the religious life of the community. (5) Supplementary powers, which cannot be described by a common name or connected with any definite office, were granted to the Princeps. Some of these were means by which his control over the magistrates and the Senate was increased. Such were the rights of securing the election of certain candidates for office by means of a recommendation (Commendatio), and of exercising powers in relation to the Senate superior to those possessed by the other magistrates.

An authority thus endowed could not fail to exercise a strong directing influence on the sources of law and the methods of procedure. The influence asserted itself from the first; yet for at least two centuries there was always a formal, and sometimes a real recognition of the theory on which the Principate was based—the theory of a dual control exercised by the Princeps on the one hand, by the usual organs of the Republic on the other. The chief organ by which the Republic was represented was now no longer the People, but the Senate; and the dual sovereignty—or ‘Dyarchy,’ as it has been called—can be illustrated chiefly by the division of authority between the Princeps and the Senate.

As regards the sources of law, even the utterances of the People were for some time elicited. Leges and Plebiscita—specimens of which are to be found in the Leges Juliae of Augustus, the Lex Aelia Sentia belonging to the reign of the same monarch, the Lex Junia Norbana of the reign of Tiberius, the Leges Claudiae of the Emperor Claudius — continued to be passed during the early Principate. The last trace of legislation belongs to the reign of Nerva (96-98 a. d.).

Even before legislative power had been surrendered by the Comitia, it had begun to pass to the Senate; and down to the third century a.d., such general ordinances as tended to alter the fundamental legal relations of Roman citizens to one another were generally expressed in the form of Senatusconsulta. The Senatusconsultum was a true source of the Jus Civile. Yet it did not attain the formal structure, or always adopt the imperative utterance, of a law. Its utterances are often couched in an advisory form, as though the Edition: current; Page: [xlvi] Senate of this period, like that of the Republic, were merely giving counsel to a magistrate. Gaius attributes to these decrees ‘the binding force of law’; and it does not seem that the early doubts as to whether the Senate could pass ordinances immediately binding on the community survived the beginning of the Principate.

The Praetor’s edict still continued to be issued; nor are we told that the edictal power was in any way infringed during the early Principate. But there are two considerations which would lead us to conclude that it was seriously weakened. The first is based on the fact that edictal power in the highest degree was conferred by law on the Princeps himself; and the existence of two interpreters of the civil law possessing equal authority is almost inconceivable. The second consideration rests on the probability that the Praetor’s rulings in detail were subject to the veto of the Princeps. A new ruling was often the basis for a new formula and a new edict, and if the first of these was inhibited, its successive developments could not be realized. Progressive legislation was effected elsewhere, in decrees of the Senate and in the imperial constitutions; and the final sign that the creative work of the Praetors was a thing of the past was given when, in the reign of Hadrian (117-138 a.d.), and therefore probably in the lifetime of Gaius, the work which Ofilius had begun was perfected by the jurist Salvius Julianus. He reduced the edict to a fixed and definite system; and from this time onward the Edictum Perpetuum was, in its essential features, unalterable. Absolute validity was given to the new redaction by a Senatusconsultum introduced by a speech from the Emperor Hadrian, who declared that any new point, not contemplated in the edict, should be decided by analogy with it. It is probable that such new points were still mentioned in successive edicts; for it is certain that the edict still continued to be issued annually. The work of Julian could, therefore, never have been meant to be unalterable in a literal sense. Such invariability would indeed have been impossible; for, though changes in law were now beginning to be made chiefly by ordinances of the emperor, yet these very changes would necessitate corresponding changes in the details of the edict. Edition: current; Page: [xlvii] The fixity of Julian’s edict was to be found both in its structure and in its leading principles; in the order in which the rules of law were marshalled and in the general significance of these rules. It has been supposed that Julian’s work was not confined to the edict of the Praetor Urbanus, but that he dealt also with the edicts of the Praetor Peregrinus and of the Curule Aediles. He may have treated these edicts separately; but the three may have been combined in a single comprehensive work which was spoken of as ‘The Edict.’

By the side of these sources of law which survived from the Republic stood the new authority, the Princeps. He was not regarded as, in the strict sense, a legislative authority; but he or his advisers exercised a profound influence on the growth and structure of law in virtue of his power of issuing Edicts, Decrees, Rescripts, and Mandates. The Edictum of the Princeps was, like that of the Praetor in the Republic, technically an interpretation of law, but, like the Praetor, the Princeps could supplement and alter under the guise of interpretation: and his creative power, as exercised by his edictal authority, was very great. An edict of an emperor did not necessarily bind his successors; but, if it had been accepted as valid by a series of emperors, it was considered to be a part of the law, and its subsequent abandonment had apparently to be specified by some definite act of repudiation. The Decretum was a judgment of the Princeps as a court of justice; and, unless it was rescinded in a succeeding reign, its validity as a precedent seems to have been unquestioned. The Rescriptum was technically an answer to a letter by which the advice of the Princeps was sought; but the word soon came to be used for the Princeps’ letter (Epistola) itself. It contained instructions either on administrative or on judicial matters. In its first capacity, it was addressed to some public official subordinate to the emperor; in its second, it was addressed either to the judge or to the litigant. It was elicited either as an answer to the consultation (Consultatio) of an official or a judge who hesitated as to his course of procedure, or as a reply to a petition (Libellus, Supplicatio) of one of the parties to a suit. The Rescript which dealt with judicial matters might settle a doubtful point of law by showing, or extending, the application of an existing principle to a new case. The Rescript was the most powerful instrument of law-making wielded by the Princeps. The definiteness of its form gave the opinion an authority Edition: current; Page: [xlviii] which, once accepted by a successor, could not easily be questioned; while the immense area over which these letters of advice were sent kept the Princeps in touch with the whole provincial world, and caused him to be regarded by the provincials as the greatest and most authentic interpreter of law. The Edicts, Decrees, and Rescripts came to be described by the collective name of ‘Imperial Constitutions’ (Constitutiones Principum), and by the time of Gaius they were held to possess, in a uniform degree, ‘the binding force of law.’ On a lower level, with respect to legal validity, stood the Mandatum. This was a general instruction given to subordinate officials, for the most part to governors of provinces, and dealt usually with administrative matters, although sometimes it had reference to a point of law. Such mandates might be, and often were, withdrawn by the Princeps who had issued them, or by his successor. Hence it was impossible to attach perpetual validity to their terms. But, when a mandate dealt with a precise point of law, and was renewed by successive emperors, it must have acquired the force of a Rescript.