Chapter VI: Direct Legislation at Rome

A. _The Popular Assembly._

We have now compared the organs and the methods of legislation which existed in the Roman Republic and Empire with those of England, so far as relates to the action of the jurists, magistrates, and judges. Taking first the Roman jurisconsults and authors of legal treatises, it was suggested that their English analogues were rather to be found not so much in text-writers as in the judges, the result of whose labours is preserved in the vast storehouse of the Reports; while in considering the action of the Roman Magistrates, especially of the Praetor, in the creation of law, stress was laid on the advantages which the peculiar position of this great head of the whole judicial system presented for the gradual and harmonious development of legal rules, an advantage which the disconnexion of the Chancellor from the Common Law Courts did not permit in England. This led to an examination of the English method of developing and amending of the law by the decisions of the Courts, a method which, if it loses something in point of symmetry, has the advantage of providing an unrivalled abundance of materials for the determination of every question that can arise, and of subjecting each disputable point to the test of close and acute scrutiny.

We may now go on to examine another mode of creating law, that namely which proceeds immediately from the supreme power in the State, and which may, as contrasted with the indirect creation of law by jurists, or magistrates, be called Direct Legislation.

The organ of such direct legislation is the supreme authority in the State, whether such authority be a Person or a Body, whether such body be the council of an oligarchy or a popular assembly, and whether such popular assembly be primary or representative.

The method whereby Direct Legislation is enacted is the public proclamation (usually, and now invariably, but of course not necessarily) in writing by the Supreme Authority, of its will as intended to bind the citizens and guide their action. And the result is what we call Statute Law as opposed to Common Law. The distinction is a familiar one to both nations. The later Romans contrast _Ius_ and _Lex_[122]: we contrast Common Law and Statute.

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Footnote 122:

By the time of Justinian the distinction had come to be between _Ius_
as the old Law, including republican statutes, Senatus consulta, the
Edicts of magistrates and the writings of the jurists, and the new
Law, which consisted of imperial ordinances, and was called sometimes
_Ius Novum_, sometimes _Leges_.

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Let us first inquire what were, at different periods in the long annals of the Roman State, its various organs of direct legislation, and how each of them worked. It is of course only in outline that so large a subject can be treated.

The Roman State lasted 2,206 years—from the unauthenticated ‘founding of the city’ (for which I assume the traditional date of B.C. 753) down to the well authenticated capture of Constantinople by the Turks in A.D. 1453. Some would carry it down to 1806, and thus give it a life of 2,559 years, but the feudal Romano-Germanic Empire is such a totally different thing in substance from the Empire at Rome or at Constantinople, that although its sovereigns often claimed to legislate after the manner of Constantine and Justinian, nothing would be gained by bringing it and them within the scope of our inquiry. Now during this long period of two and twenty centuries, from Romulus to Constantine the Sixteenth, three such organs were successively developed. The first was the popular assembly of the citizens; the second, the administrative council of magnates and ex-officials; the third, the autocratic monarch. The first co-existed for a certain time with the second, the second with the third. The rights of the first and the second seem to have never been formally extinguished, even when the third had become in practice the sole source of law. Still we may, with substantial accuracy, limit the action of the first to the republican period, that of the second (so far as properly legislative) to the earlier two centuries of the imperial monarchy, while in later ages the third alone need be regarded.

As I am not drawing a historical sketch, but merely attempting to point out how each organ acted in producing law, I shall not stop to discuss any constitutional questions as to the rights or powers at various times of these organs respectively, but shall assume each to have been in its own day duly recognized as competent to legislate. That is the view presented to us by Gaius (writing in the second century A.D.) and in the _Digest_ and _Institutes_ of Justinian enacted in the sixth century A.D. The Emperor says, ‘The written law consists of statutes, resolutions of the _plebs_, decrees of the Senate, the ordinances of emperors, the edicts of magistrates, the answers of jurisconsults[123].’ We have already considered the two latter, and have now the four former kinds of legislation to examine, all of which may be called, in a wide sense of the term, Statutes, _i.e._ declarations of the will of the State formally promulgated as law.

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Footnote 123:

‘Scriptum ius est lex, plebiscita, senatus consulta, principum
placita, magistratuum edicta, responsa prudentium. Lex est quod
populus Romanus senatore magistratu interrogante, veluti consule,
constituebat: plebiscitum est quod plebs plebeio magistratu
interrogante, veluti tribuno, constituebat’ (_Inst._ i. 2. 3, 4).

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The legislative power of the Roman people was exercised, during the Republic, through three assemblies, those of the curies (this soon lost all practical importance), the centuries, and the tribes. Passing by the interesting and difficult questions as to the composition of these bodies, their respective functions, and the time when each may be said to have acquired or lost its authority, we may remark several features which they had in common, and which impressed a peculiar character on the laws that emanated from them. The differences between them do not affect the points to which I am going to call attention. All these _comitia_ (literally, meetings) are Primary assemblies, that is to say, they are not representative bodies, but consist of the whole body of citizens, just like a Homeric ἀγορά, an Athenian or Syracusan ἐκκλησία, Frankish _mallum_, an Old English Gemot, an English seventeenth-century Vestry, a New England Town Meeting, an English Parish Meeting under the Local Government Act of 1894, an Icelandic Thing, a Basuto Pitso. The Roman assemblies are, therefore, large bodies consisting of thousands, often many thousands, of persons, and fluctuating bodies, in which not always the same persons will be present, and in which those who live near the place of meeting will tend to preponderate. Further, they are—and this is a remarkable feature of the Roman system—bodies composed of minor bodies, and determining their decision by a system of double voting. Each individual votes in the group to which he belongs, _curia_, _centuria_, or _tribus_, as the case may be; and it is by the majority of curies, centuries, or tribes that the decision of the assembly as a whole is given, the collective voice of each of these groups being reckoned as one vote, and a small group having as much weight as a large one. Thus there may be a majority of group votes for a proposition while the majority of votes of individuals is against it. This mode of voting, unfamiliar to modern political constitutions, survives in the Rectorial elections of two (Glasgow and Aberdeen) of the four Scottish Universities, where the students vote by ‘nations’; and it has sometimes happened that a person is on this method chosen to be Lord Rector against whom a majority of the votes given by the individual electors has been recorded[124]. So under the Constitution of the United States, when no candidate for President has received a majority of the votes given, the House of Representatives chooses one of the five candidates who has received most votes, and in doing so the House votes by States, _i.e._ the majority of the Representatives from each State determine the vote of that State, and the majority of States (not of individual Representatives) prevails. Thirdly, these assemblies can be convoked and presided over only by a Magistrate, and their action may be stopped by another Magistrate. Fourthly, no discussion takes place in them. They meet only to vote on propositions submitted by the presiding Magistrate, who alone speaks, and who speaks only to put the question. Fifthly, they vote once only, and that vote is final and supreme, requiring no assent of or confirmation by any other body, but operating directly to create a rule binding all members or subjects of the State.

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Footnote 124:

See 52 & 53 Vict. c. 55, § 14, subs. 4.

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Such a machinery seems almost as if calculated either to check legislation by throwing obstacles in its way, or else to make legislation hasty and imprudent. The passing of a long measure or a complex measure might be thought scarcely possible under it; while at the same time it secures no opportunities for criticism and revision, and for the reconsideration at a future stage of decisions too hastily taken when the measure was first submitted. Thus there would appear to be a double danger involved in such a system, the danger of not moving at all, and the danger, when the people do move, of going too fast and too far. It must be remembered, however, that not very much direct legislation was needed. The improvement of ordinary private law was for the most part left to the Praetor and the jurists, while one great branch of modern legislation lay almost untouched during the Roman Republic, that of the regulation of powers and functions of administrative departments. There was comparatively little general administrative law in our modern sense in Italy, because in Rome the magistrates and Senate had a pretty wide discretion, and through the rest of Italy the local communities managed their own affairs. So too in the provinces administration was left either to the local municipalities or to the Roman governors, proconsuls, or propraetors.

Even if the method of legislating which these assemblies followed be deemed ill fitted to secure that the merits of any change in the substance of the law should be carefully weighed, it need not have been equally deficient in making it excellent in point of form, _i.e._ clear, consistent, symmetrical. In this respect the absence of means for discussion and amendment may have worked for good. Statutes enacted in the form in which they have been originally proposed are more likely to be plain and simple than those which have been cut about, pared down, and added to by the action of some revising Committee or of a Second Chamber, probably dissimilar in opinion from the First Chamber, possibly disposed to differ for the sake of differing. The volume of direct legislation may, under a system like that of Rome, be comparatively small. But the fewer changes in the law are made by statute so much the better for the harmonious development and inner consistency of the whole body of law, which suffers far less often from permitting the survival of an occasional anomaly or absurdity than from frequent tinkering, that is to say, from the introduction of exceptions to general rules, or the multiplying of provisions for special cases. So far, therefore, as quantity is concerned, the small amount of legislative work which the Roman _comitia_ turned out was a matter for satisfaction, not for regret.

As respects the quality of that work, the character of the Assembly produced some remarkable consequences. That it might be understood and approved by the ordinary citizens, the bill proposed must be comparatively short, terse, clear. In many cases it would have been previously discussed at public meetings, which the magistrate could summon; but those who would attend the meetings might be but a small proportion of those called upon to vote in the _comitia_. As it could not be amended by the Assembly, and would reflect credit or discredit on the name of the proposing Magistrate who was responsible for it, it must be prepared with scrupulous care. As it would become operative immediately on its being approved by the single vote of the Assembly, with no opportunity of correcting it at any later stage or in any other legislative body, an error would be serious to the community, and specially damaging to the proposer. Moreover, as it could not be amended in the Assembly, it escaped all risk of having its drafting spoiled and of losing what original merits of breadth, lucidity, logical arrangement, and conciseness of expression it might possess. No one could move to add or to omit a clause. No large principle could be qualified by the insertion of limiting words. No savings for particular cases could be suggested, and possibly accepted in order to buy off opposition. ‘Yes’ or ‘No’ to the whole bill—these were the only alternatives. And the simpler the bill, so much more probable the ‘Yes’; whereas in assemblies with power to amend, a ‘Yes’ has to be purchased by compromises and concessions, which, whatever effect they may have on the substance of a measure, destroy the elegance of its form. The statutes passed by the Roman people had, therefore, owing to these causes, three great merits. There were few of them. They were brief. They were clear. We possess fragments, in some cases pretty large fragments, of a good many; and in all the drafting is excellent. The sharp, stern, almost grim conciseness and precision of the Twelve Tables seem to have been always present to the mind of the Roman draftsman as the model he ought to follow.

It is worth remarking that the earliest Roman conception of a _Lex_ or Statute was different from that which we find in the imperial period, as well as from that which any modern jurist would naturally form. The word _lex_ meant in early Latin simply a set form of words; and when applied to an enactment by the _comitia_, it described, not a special kind of legal rule, but merely the expression of the people’s will in set terms. And the original conception of a statutory enactment was that of a contract made between the Citizens in the _comitia_ and the Magistrate representing the Corporate State. Hence the definition of _Lex_ which we find given by Papinian (_Dig._ i. 3. 1), ‘the common covenant of the republic’ (_communis reipublicae sponsio_), probably descends from the old practice according to which the Consul or other presiding Magistrate asked (_rogavit_) the _comitia_ whether such and such was their wish, submitting to them the form of words whereby they were to agree to bind themselves. Just as in the Roman _stipulatio_ the questioner asks the promiser whether he promises to do such and such a thing, to which the latter answers, ‘I promise’ (_spondeo_); so the Consul asks the Quirites whether they wish and order that such and such a thing shall be done (_Velitis, iubeatis, Quirites?_), whereto the citizens answer, ‘Be it as you ask’ (_Uti rogas_). Thus the first (or at any rate a very early) form in which the notion of a formally enacted, as distinct from that of a Customary, Law emerges in Rome is that of a Contract.

The Romans were like the English in this, that they seldom did anything formally till it had for a great while been done practically. Long after the power of legislation had passed in substance from the king of England to his subjects represented in his Great Council, the forms of the Constitution continued to suggest that the monarch was still the prime agent in legislation. To-day the so-called Royal Veto, which ought rather to be called the right of the Crown to take further time to consider the resolutions of the two Houses, subsists in theory unimpaired, though it has not been exercised since 1707. So when actual power passed from the _comitia_ to the Imperator in the days after Julius Caesar and Augustus, the rights and functions of the Assembly were not formally extinguished. Magistrates continued to be elected by the _comitia_ till the accession of Tiberius, and the right of legislation remained for a great while afterwards legally vested in them. Statutes appear to have been passed by them as late as the time of Nerva. The _comitia_ themselves died out by obsolescence, without being ever formally abolished, and apparently they went on meeting occasionally in a purely formal way long after they had ceased to be a reality, just as the name _Respublica Romana_ survived in documents and inscriptions when the old associations it evoked had been forgotten[125]. And the popular assemblies died out all the more quietly because they had never met of themselves, by simple operation of law. Like the English Parliament, but unlike the American Congress and the Chambers of some European countries, they needed to be convoked by the Executive[126].

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Footnote 125:

I saw a few years ago, in the ruins of Salona in Dalmatia, a lately
uncovered inscription, dating apparently from the sixth or seventh
century A.D., in which the protection of God is asked for the
‘respublica Romana.’ It need hardly be said that the term has in
strictness nothing to do with the form of government, no more than has
our English term ‘Commonwealth.’

Footnote 126:

The Crown is now in England bound by statute to summon Parliament, but
should the Crown omit to do so, Parliament could not legally meet of
itself, save that upon the demise of the Crown it does forthwith come
together to swear allegiance to the new Sovereign.

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