CORTOCIRCUITOS

In the late republic there were no longer any clear-cut distinctions between the various types of assemblies and even the concilium plebis hardly differed from the comitia. In this period plebiscites were often formulated at the suggestion of the tribunes; these plebiscites were then referred to as leges.

As mentioned earlier, the tribunida potestas was one of the main pillars on which Augustus—at least formally—based his power; he, and after him in particular also Emperor Claudius (41–

54) used their authority as tribunes to make a number of important innovations. Their laws, just like those of the republic, had a political character. In 18 BC, for instance, laws were formulated relating to marriage and divorce (lex Iulia de maritandis ordinibus) and to bribery during elections (lex Iulia de ambitu); in the leges Iuliae iudiciorum publicorum et privatorum of 17 BC the administration of justice was reorganised. In 9 BC the above-mentioned lex Iulia de senatu habendo came into being;

it regulated the way in which the senate was to meet. Because the law relating to marriage encountered a great deal of resistance Augustus suggested to the consuls M.Papius and Q.Poppaeus that they should propose a new law, so they did. The content of this lex Papia Poppaea, which dates from 9 AD, is difficult to distinguish from that of the lex Iulia de maritandis ordinibus and often they are referred to in one breath as the leges Iulia et Papia Poppaea.² Both laws show, however, that Augustus wanted to encourage the

THE PRINCIPATE (27 BC–284)

marriage and procreation of Roman citizens and that he wanted to protect the senatorial élite.

Emperor Claudius, who is known to have been rather fond of old republican forms, abolished the agnatic tutela of women by means of a lex, i.e. the lex Claudia.³ The last lex, referred to as such in the sources, is a lex agraria of Emperor Nerva (96–98), which assigned land to poor Romans.

9.2.2. The senatorial decrees

In the first century BC, as mentioned earlier, it did occasionally happen that a proposal put forward by one of the magistrates, which had been ratified by the senate, was no longer put to the comitia but came into effect immediately. One reason for this was that the comitia functioned so badly. At the beginning of the principate more and more laws originated in this way, the senate replacing the comitia in this respect. Just as under the republic, a senatorial decree could result from a question put by a magistrate.

From now on, however, the senatorial decrees were in most cases drawn up on the initiative of the emperor. It is known, for instance, that Augustus on occasion charged the consuls to ask the senate’s opinion on a specific point. From the time of Emperor Claudius the senatorial decrees on juridical matters were usually prepared by the emperor’s officials and the proposal concerned was read out in the senate by or in the name of the emperor (oratio principis); various senators then expressed their opinions and a vote was taken. Because the emperor exerted so much influence in the senate, the senate never failed to agree to the main lines of the proposal. In the second century the senatorial decrees became a formality whose sole purpose was to ratify the emperor’s proposal. The juridical literature of the time often referred only to the proposal. A well-known example is the oratio Severi from the year 206, which includes a relaxation of the ban on the exchange of gifts between husband and wife.⁴

At first the senatorial decrees mainly concerned problems pertaining to criminal law. A famous or rather infamous example is the SC Silanianum of 10 AD; this decree aimed to repress the frequent killing of masters by their slaves. It stated that when the identity of the murderer (s) was unknown, all the slaves who had lived in the same house as their master had to be tortured and condemned to death; if the victim’s heir omitted to have the

murder investigated, he would no longer be entitled to the inheritance.⁵

In the middle of the first century the senate started to introduce innovations into private law: the first known decree of this kind is the SC Velleianum which forbade women to stand surety for debts of others, including their husbands.⁶ The number of innovations brought about in this way increased in the middle of the second century and reached a maximum by the end of the century. The senate introduced for instance a legal right of succession between mothers and children.⁷

In the third century emperors no longer submitted their proposals for approval by the senate and in this way the senatorial decrees disappeared formally as a source of law.

9.2.3. Imperial legislation

Not only did the emperors contribute indirectly to legislation by way of leges and senatorial decrees, but they themselves also created new law. Because in a formal sense they had no legislative power, at first the emperors had to base this power on the magisterial functions they performed. One of them, the imperium proconsulare maius, was particularly suited for this purpose, because it authorised the emperor to issue edicta (general pronouncements) and mandata (instructions given by the emperor to his officials). The emperors also created new law in another way: whenever citizens put legal problems to the emperor relating to private or criminal matters, the (written) answers, the rescripta, were binding because they were given by the emperor. This was also the case when the emperor or his representative acted as judge: the sentences, decreta, had the force of law because they were given by the emperor. The edicts, rescripts and decrees are referred to in the sources by the collective name constitutio.

Nowadays it is normal to add the mandates as a fourth category, because they too sometimes contained new rules of law. Because the decrees and rescripts did not originate within the framework of legislation and at first were not of general validity, they need not be discussed here. They will be treated in sections 9.3.3 and 9.4.1. We will now look more closely at the edicts and mandates.

The edicts of the emperors resembled those of the magistrates with regard to form but differed from them considerably with regard to content. The difference was due to the fact that the

THE PRINCIPATE (27 BC–284)

emperor held various magisterial functions simultaneously for life whereas the magistrates usually fulfilled only one function for a year and therefore their power was much more limited.

Consequently edicts of magistrates were only valid during the period they were in office, whereas the imperial edicts did not lapse at the end of the emperor’s reign, which generally coincided with his death: the latter were of unlimited validity and did not have to be constantly renewed. Another difference between the edicts of the magistrates and those of the emperors was that the magistrates could only issue edicts within their own sphere of power; the imperial edicts referred to everything that had to do with the state. In practice the emperors primarily issued edicts in the field of public law. The most well-known edict is the above-mentioned constitutio Antoniniana in which Emperor Caracalla granted Roman citizenship to all free inhabitants of the empire.

The mandates were instructions issued by the emperor to his officials and especially to provincial governors. Because originally the instruction was strictly personal it resembled the contract of mandate in private law. Like the contract it lapsed upon the disappearance of either the principal or the delegate; therefore when the emperor died or the official was replaced, the instruction had to be renewed. In this way gradually a whole body of instructions developed (corpus mandatorum) which were more or less of general validity. These mandates mainly concerned the provincial administration and particularly its financial side, and in addition some dealt with matters pertaining to private and criminal law. New rules were introduced particularly in connection with soldiers and administrators; because mandates could be relied upon by other citizens as well, they began to be regarded as a form of legislation. A good example of a mandate is the so-called soldiers’ will. Julius Caesar had already allowed soldiers to make a will without being bound by the regulations that applied to the wills of ordinary citizens. In the first century various emperors (e.g. Titus and Nerva) renewed this privilege.

Finally Emperor Trajan allowed this informal type of will to retain its validity for a year after the soldier had been honourably discharged from the army. Thereafter the privilege was not renewed, but the soldiers’ wills continued to exist.⁸ This indicates that in the second century the mandate was regarded as forming part of imperial legislation.

9.3. THE ADMINISTRATION OF JUSTICE