before the community without, or in opposition to, the Senate's opinion. Administration, war, peace, alliances, founding of colonies, assignation of lands, building and finance, execution of laws, and absolution in urgent cases, and even the elections, as depending on the magistrates, belonged theoretically or practically to the Senate." § 2.-Legislation under the Empire. It was in great measure the thorough disorganization of the comitia and the Senate which, after severe struggles of rival factions and candidates for supreme dominion, gave the empire to the Cæsars, who, on the whole, were the most effective representatives of combined military strength and political astuteness. Consequently, when Augustus had firmly settled himself in his imperial seat, it was necessary for him either to reconstitute the Senate and decomposed assemblies and conduct the legislative and executive tasks of government with their help, or finally to dispense with all the republican institutions and to create new organs of government more or less directly dependent on himself as best suited to the new era. Augustus and his successors up to Justinian gradually passed from the first of these methods to the last. At first the republican organs of legislation were merely controlled and reduced to an orderly condition, the only difference being the fact of the inordinate influence of the anomalous personage who, as "imperator," was for the present content to personate some of the old republican magistrates. Afterwards the republican institutions gradually fell away or expired from the effects of patronage and inanition, and the emperor, through the medium of a highly organized bureaucracy, undertook the whole task of legislation himself. It was to the Senate, as the standing, though now effete and demoralized, representative of the exccutive authority, that the emperor at first mainly looked for co-operation in the work of government. At first Augustus declined Hist. of Rom. under the Empire, iii. ch. 31. Smith's Senatus. to be either consul or tribune, either of which offices would have entitled him to propose laws in one or other of the comitia. But, as Merivale says, "he retained the substance of either office by the anomalous potestas which he had caused to be Dict. of Antiq. conferred upon him." Augustus indeed confined himself to a permission to propose only one single measure at any sitting of the Senate. But at a later period this right was expressly conferred upon the emperor under the name of jus relationis, and accordingly as the right entitled him to introduce three or more subjects, it was called jus tertiæ, quarta, relationis. The emperor introduced his proposals to the Senate in writing Smith's Dict. (oratio, libellus, epistola principis), which was Orationes read in the Senate by one of the quæstors. L. 1, § 1, D. The latter were styled, for the purpose of dis(i. 13). charging this function, candidati principis. Gaius alludes to the influence of the emperor on the laws enacted by the Senate when he says, "In consequence of a communication received (ex oratione) from the Emperor Hadrian, a senatus consultum was passed." So also Paulus is cited in the Digest as referring to a communication (oratio) of the Emperor Marcus Antoninus on which a senatus consultum was based (senatus consultum secutum est). Gaius ii. 285. From the time of Augustus to that of Septimius Severus, at the end of the second century, the Senate gradually assumed, under the emperor's control as just described, the position of the supreme and exclusive legislative authority; so much so, that not only were senatus consulta frequently named, like the old formal leges, after the proposer of them (as, for instance, in the case of the senatus consultum Silanianum), but the names of lex and senatus consultum seem to have been used interchangeably. Thus Gaius, after describing the purport of the senatus consultum Claudianum, refers to it a few lines further on as ea lex. Indeed, it has been noticed that there is no instance of a lex formally passed later than Nerva, at the end of the first century; though Gaius i. 84. this has been controverted in favour of an alleged law of Trajan's mentioned in a rescript of Diocle- Puchta .§106. tian. The most frequent recorded use of senatus L. 3, C. (vii. consulta is between the reigns of Claudius and 9). Septimius Severus; that is, between the middle of the first and the end of the second century. No senatus consultum is mentioned as passed after the time of Septimius Severus. The question as to what was the source of the exclusive legislative authority of the emperor is one which has excited some controversy, and the presumed answer to it has gone some way to associate in many people's minds the idea of the civil law with that of absolutism. In fact, Fortescue in his work, "De Laudibus Legum Angliæ," has a special chapter devoted to proving that, whereas by the civil law the king is above the law according to the doctrine, Quod principi placuit legis habet vigorem, in England the law is above the king. Of course it is true that by Justinian's time, and even long before, the old republican and early imperial organs of statutory legislation, the comitia and the Senate, had been absorbed by the centralized executive machinery of the empire. But the very complication of this machinery, and the enormous administrative organization through which it worked, rendered the task of legislation something very different from that of merely recording the capricious changes of mind of a succession of individual men. however exalted. A passage of Justinian's Institutes, written in an over-courtly spirit, is the origin of the misconception. This passage refers to an alleged lex regia, which the author of the clause says was carried with reference to the emperor's supreme executive authority, and by which the people conferred upon him all the supreme right of command (imperium et potestatem) which belonged to themselves. The existence in imperial times of any so-called lex regia, in the sense of a law reproducing the ancient lex curiata (called "vetus lex Regia" by Livy), which invested each king in succession with his kingly authority, is mythical. It is almost suffi Liv. xxxiv, c. 6. Gaius i. 5. ciently disproved by the omission of all allusion to it in the corresponding passage of Gaius's Institutes, in which he alludes to the fact that the emperor received his right of supreme command (imperium) by force of law (per legem). iv. 3. Nevertheless there seems no reason to doubt that by a Tacitus, Hist. Senatum consultum, followed,—so long as the comitia existed,—by a formal law, a variety of powers and exemptions were specially conferred on the reigning emperor. It is to this that the celebrated passage in the Code from a constitution of Alexander Severus L. 3, § 1, C. refers, which says, "Although the law relating (vi. 23). to the supreme executive command (lex imperii) discharges the emperor from the duty of complying with legal formalities (solemnibus juris), yet nothing is so suitable an attribute of the imperial authority as to live in compliance with law." An interesting light upon this law (lex imperii) was thrown by the discovery of the terms of it, as it would seem, on a brazen tablet, at Rome, in 1342, during the pontificate of Clement VI. From the terms of the law as written on this tablet, it would seem that it was customary to re-enact the law in almost, but not quite, identical terms at the outset of each reign. Thus it resembled in some measure the English Treason statutes, and statutes relating to the civil list and coronation oath, which have often been passed on a king's or queen's accession, in a special form peculiar to the reign, but in close conformity to precedent, and worded according to a familiar type. The purport of the law in question is to confer on the emperor Vespasian all the powers, prerogatives, privileges, and exemptions which had been previously conferred on the emperors Augustus and Tiberius, and on his other predecessors. Among the rights conferred are those of bringing a matter before the Senate and having it put to the vote (relatio, discessio), and among the exemptions is that of being released from the obligation to Ortolan i. 354. Orelli Inscrip. obey the same laws and plebiscita as his preLat. i. p. 507. decessors. If this remarkable document, the genuineness of which can hardly be disputed, was, even in Vespasian's day, an antiquarian curiosity, and did anything more than preserve a fast dying out reminiscence of a time when all authority, legislation, and executive, proceeded directly from the people, it throws a flood of light on the mode in which the legislative functions of the emperor progressed from point to point, and on the place they took in the constitution of Vespasian's time. It appears at once that the notion of the emperor being above the law is repudiated rather than admitted. The people represented in the comitia are still regarded as the only source of law and as the supreme political authority. Each emperor in turn is individually and particularly exempted from the obligation to obey specified laws. The same expression (legibus solutus) Hist. i. xxxi. had been used, as Merivale notices, when a candidate for public honours was allowed to compete for a magistracy before the legal age; when a general obtained leave to enter the city before the day appointed for his triumph; or when a prætor requested permission to absent himself more than ten days from the city. No doubt, however, the term "solutus" was a perilously loose one, and soon lent itself to indefinite constitutional extension. This topic naturally leads on to the consideration of the various modes in which the emperor exercised his legislative power, as he became freed from restraint or competition on the part of the Senate and the popular assemblies. The law which proceeded directly from the imperial. authority, without the interposition, even of a formal kind, of any constitutional assembly, was comprised in a general class styled constitutiones. Thus Gaius defines Gaius i. 5. a constitutio principis to be "what the emperor has enacted (constituit) either by his decree, by his edict, or by his letter." He goes on to say that it has never been doubted but that that obtains the force of law. A passage |