Chapter 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.

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Footnote 129:

Cf. Just. _Inst._ i. 2. 6: cf. _Dig._ i. 4. 1.

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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.

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Footnote 130:

Dante, _Purgat._ canto x.

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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.

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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.

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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.

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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.

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The good and bad points of a system which commits the making of laws to an absolute sovereign are easily summed up. Autocratic power is the most swift and efficient of all instruments for effecting reforms. Used with skill, tact, and moderation, it can confer incalculable benefits on a country. To be able at your pleasure to abolish obsolete institutions, to curtail the offensive privileges of a class, to override vested interests, to remove needless anomalies and antiquated forms of procedure, to simplify the law by condensing a confused mass of statutory provisions, or expressing the result of a long series of cases in a single enactment, and to do all this without the trouble of justifying your enlightened purposes to the dull and the ignorant, or of mitigating hostility by concessions and compromises which ruin the symmetry and reduce the effectiveness of your scheme—this is indeed a delightful prospect for the law reformer. The power of trying experiments is seductive to the philanthropist or the philosopher, for there are many problems which ought to be attacked by experimental methods, since nothing but an experiment can test the merit of a promising plan. Yet experiments are just the things which in popularly governed countries it is rarely possible to try, because the bulk of mankind, being unscientific, will seldom permit a thing to be tried till it has been proved to be not merely worth trying but absolutely necessary, while when it has been tried, and has not worked well, it is almost as hard to persuade them either to vary it or to drop it altogether. To tell the multitude that the scheme you propose may fail, though you think it worth trying, is to discredit it in their eyes. To admit that it has failed is to destroy your own credit for the future.

So again, if it is a question of improving the form and expression of the law, an absolute monarch evidently enjoys the finest possible opportunities of creating a perfect system. He can command all the highest legal ability of the State. He can bestow upon his commission of legislators or codifiers the widest discretion. When they have finished their work he can subject it to any criticism he pleases before enacting it as law. When he enacts it, he can abolish all pre-existing law by a stroke of the pen. Even afterwards he can readily correct any faults that may have been discovered, can suppress old editions, can provide means by which the law shall be regularly from time to time amended, so that all new statutes and all interpreting decisions shall be incorporated with it or appended as supplements to it. Few are the philanthropic enthusiasts, few are the theoretical codifiers, who have not sighed for an Autocrat to carry out their large designs.

According to that law of compensation which obtains in all human affairs these advantages are beset by corresponding dangers. Ease begets confidence, confidence degenerates into laxity and recklessness. As the laws of metre and rhyme help the versifier by forcing him to study and polish his diction, so he who is not now and then stopped by obstacles is apt to advance too quickly, and may not consider whither he is going. If an error can be readily recalled it is lightly ventured, and the hasty legislator discovers too late that it is not the same thing to recall an error as never to have committed it. In the field of legislation the danger of doing too much is a serious danger, not only because the chances of error are manifold[133], but because the law ought to undergo as few bold and sudden changes as possible. The natural process whereby the new circumstances, new conditions, new commercial and social relations that are always springing up become recognized in custom and dealt with by juridical science before direct legislation impresses a definite form upon the rules that are to fix them—this process is the best, and indeed the only safe way by which a nation can create a refined and harmonious legal system. Even the certainty of the law is apt to suffer if legislation becomes too easy, for the impatient autocrat may well be tempted, when some defect has been discovered, to change it forthwith, and then to find that the change has been too sweeping, so that steps must be taken backward, with the result of rendering doubtful or invalid transactions which have occurred in the meantime. If these dangers are to be avoided, it must be by entrusting legislation to the hands of advisers not only learned and skilful but also of a conservative spirit. In war and politics boldness is quite as needful as caution, but in reforming the law of a country the risk of going too slow is less serious than that of going too fast.

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Footnote 133:

Τὸ μὲν γὰρ ἁμαρτάνειν πολλαχῶς ἐστι, τὸ δὲ κατορθοῦν μοναχῶς, says
Aristotle: ‘You can hit only in one way, but you may miss in many.’

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These observations are illustrated by the course of events at Rome. At first, while the magistrates were still hard at work in building up the law by their Edicts, and the jurists no less active in developing it on conservative lines by their _responsa_ and treatises, the Emperors used their legislative power sparingly because they were guided by accomplished lawyers. Comparatively few constitutions are cited from the days of Trajan and Hadrian, and even from those of the Antonines. These constitutions are short, clear, precise, introducing only those new rules or deciding only those questions which it was necessary to establish or deal with. After the time of Diocletian[134], when the powers of the old magistrates had withered away and the fountain of juristic genius had dried up, direct legislation became far more copious, and began to range more widely over all sorts of subjects. Serviceable it certainly was in the way of abolition, for there was much to be abolished. But it tended to become always more and more rash and heedless in its dealings with the pre-existing law. Apart from the harshness or bad economics which frequently marred its provisions, it was often injudicious in matters of pure legal science. If in some cases it cleared the ground of antiquated rules and forms, in others it merely shore away abruptly and inartistically the more conspicuously inconvenient applications of an old doctrine, while leaving the doctrine itself to create future difficulty. It acted too much with reference to the particular evil dealt with, too little with a view to the law as a whole. It was, in a word, too unmindful of that _elegantia_, that inner harmony and consistency with principle which had been always before the eyes of the elder jurists. Legal style and diction experienced a similar declension. From and after the days of Diocletian, the language of imperial ordinances grows more and more rhetorical, pompous, and turgid. The imperial utterances had never emulated the scrupulous exactitude and technicality of the republican _leges_. But they were, during the first two centuries of the Empire, simple and concise. Afterwards, while becoming more prolix they became also less exact. These faults are, to be sure, not mainly due to the more palpably despotic position of the Emperor, but rather to the steady deterioration of juridical and literary capacity which mark these later centuries. That the decline was less evident in the department of law than in most other branches of intellectual life may be ascribed, partly to the nature of the subject, which does not invite florid treatment, partly to the absence of Greek rhetorical models, Greek being eminently the language of rhetoric, partly, perhaps, also to the influence of the two great law schools of Beyrut and Constantinople, and to the fact that the writings by which the lawyer’s mind was formed were still the admirable works of the luminaries of the early Empire. Still the fall is a great one. How much more repellent is the extreme of over-ripe laxity than the extreme of primitive stiffness may be felt by any one who will compare the weak and wordy ‘New Constitutions’ (_Novels_ ) of Justinian with the crabbed strength of the Twelve Tables, abrogated by Justinian himself after a thousand years of reverence. There is, in fact, only one fault which the later imperial legislation may appear to have avoided when we compare it with that of modern England or America. It goes much less into detail. It does not seek to exhaust possible cases, and provide for every one of them. This merit, however, is due, not so much to skill on the part of the Roman draftsmen, as to the range of power allowed to Roman officials and judges, and to the faint recognition of the rights of the individual subject. The tedious minuteness of modern English and American statutes, if it grieves the scientific lawyer, is after all a laudable recognition and expression of that respect for personal liberty and jealousy of the action of the executive which have distinguished the English race on both sides of the Atlantic. Thus that which might appear to be an excellence of the later imperial legislation in point of form is seen to be an evil in point of substance, for it is due, not to any superiority of legal skill, but to the existence of an autocracy which did not care to limit the discretion of its subordinate officers.

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Footnote 134:

Many of Diocletian’s rescripts are well expressed and show a mastery
of the old legal principles.

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