.§106.

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.

ciently disproved by the omission of all allusion to it in the corresponding passage of Gaius's InstiGaius i. 5. tutes, in which he alludes to the fact that the emperor received his right of supreme command (imperium) by force of law (per legem).

Nevertheless there seems no reason to doubt that by a Tacitus, Hist. Senatum consultum, followed, so long as the iv. 3. 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.

Gaius i. 5.

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 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

6, J. (i. 2).

of Ulpian, reported in the Digest, and which partially L. 1, D. (i. 4). appears in the Institutes of Justinian, expounds in rather more detail what was comprehended under a constitutio. "Whatever the emperor has determined (constituit) by his letter and signature, or has decreed as a judge, or has responded in an interlocutory fashion at an informal session (de plano interlocutus), or has given as instruction by an edict, is undoubtedly a law; and all these (acts of legislation) are vulgarly comprised under the term constitutiones."

The leading classes of constitutiones were (1) edicts, (2) decrees, (3) rescripts, and (4) mandates. These must be described in order.

(1) The Edict was naturally evolved, by the laws of historical continuity, out of the edicts of the Prætor and ædile known to the republic. It was issued by the later emperors, no longer merely, as at first, in the exercise of a magisterial and executive authority, but, ostensibly, as law for the whole empire. The significance of the emperor's edict thus made it important to distinguish between imperative rules intended to be personal or partial in their application, and those intended to be general laws. The tests of a law in the form of an edict are thus given in an edict of Theodosius II. and Valentinian III. L. 3, C. (i. 14). It must either bear the name of an edictum, or generalis constitutio; or must be communicated to the Senate by an oratio; or must be circulated throughout the provinces as a generally binding law; or must contain expressions on the face of it which point to its being of general and not of only individual obligation (expressius continere quod principes censuerint ea quæ in certis negotiis statuta sunt similium quoque causarum fata componere). Thus it did not invalidate the generality of the obligatory force attaching to an edict that it was issued in compliance with a request proceeding from some special quarter, or by way of guiding a court of justice with reference to some pending litigation (quod lis mota legis occasionem postulaverit). Savigny notices that,

Savigny System, chap. iii. §23.

"by far the most numerous imperial laws, namely those of Justinian, were addressed to some functionary," as, for instance, the “præfectus prætorio."

(2) Decrees. The decrees of the emperor sitting as supreme judge of appeal, or as deciding by interlocutory order a point referred to him during the progress of a cause, were influential as sources of written legislation in two ways. In the first place, the judicial decisions of a high court were at all times proofs of what the law was. For this reason collections of imperial decrees were made by jurisconsults. Such were the three books of decrees by Paulus; and Savigny further instances the collection by Dositheus of the decrees of Hadrian. Similarly, simple decrees gave occasion for the formation and recognition of new legal positions. Thus the jurist Callistratus is quoted in the Digest as basing on a decree of Marcus Antoninus, in reference to a special case, the general rule that a creditor loses his right of action if he makes an illegal entry on his debtors' property instead of L. 7, D. bringing an action in the usual way.

(xlviii. 7).

In the second place, legal force was expressly given to imperial decrees by Justinian, before whose L. 12, p. 1, C. time a decree had only force directly in the (i. 14). special case. The limits of this process are marked in the following passage, from a constitution of Justinian's, taken in connection with an earlier law. "If his L. 12, C. (i. majesty, the emperor, examines a cause judi- 14). cially, and, with the parties both before him, delivers judgment, all inferior judges should take notice that the decision settles the law, not only for the particular case which called it forth, but for all analogous cases." In a previous passage of the Code, citing a constitution of Theodosius II. and Valentinian III., it is said L. 3, C. (i. 14). that where the decision is, as it were, one-sided, that is, without the presence, actual or implied, of both the parties as formal suitors, the law applied in the special case is not to be extended to any parallel case. This marks the limit of the law of Justinian.

G