customary law or of enactments which often accompanied this advice.[1] It has, indeed, been noted that the senatus consulta of the Principate, which prescribe general commands such as in the Republic would have been the subject of leges, are often expressed in this advisory form;[2] decrees of the Senate never attained the formal structure of a law;[3] they also lack its imperative mode of utterance, and for these two reasons they were never described as leges. The highest degree of validity which the jurist could give them was "the binding force of laws";[4] but this force was sufficient to make them sources of the jus civile,[5] and down to the third century such general commands as tended to alter the fundamental legal relations of Roman citizens to one another, were generally expressed in the form of senatus consulta.
The Princeps, on the other hand, is not credited directly with any power of legislation; but the faculty for making jus, which was inherent in the imperium of every Roman magistrate, and especially apparent in that of the praetor, was manifested by the Princeps in an unexampled degree. His methods of utterance are through the edict, the decree, and the rescript. The edictum is, like that of the praetor, technically an interpretation of law; but the creative power associated with interpretation is here pushed to its extremest limits, and statute law supplemented this faculty inherent in the imperium by explicitly declaring that whatever ordinances the Princeps might lay down should (with certain limitations fixed by precedents) be considered valid.[6] Whether the edict of one Princeps bound his successor must have depended to some extent on the degree of formality in the utterance. Tiberius professes respect even for the obiter dicta of
- ↑ p. 275.
- ↑ Thus the S. C. Velleianum, which limited the obligations which women might incur, begins, "Quod Marcus Silanus et Velleus Tutor consules verba fecerunt . . . quid de ea re fieri oportet, de ea re ita censuere" (Dig. 16, 1, 2, 1); cf. Dig. 36, 1, 1, 2 (S. C. Trebellianum), 14, 6, 1 (S. C. Macedonianum), and see Kipp Quellenkunde des röm. Rechts p. 27.
- ↑ The jurists refer to them by the names of their proposers; hence such designations as Velleianum, Trebellianum (see last note). But such designations are not official. The S. C. Macedonianum is called after the offender who had been the occasion of the decree.
- ↑ Gaius i. 4 "Senatus consultum est, quod senatus jubet atque constituit: idque legis vicem obtinet, quamvis fuerit quaesitum."
- ↑ Dig. 1, 1, 7; 1, 3, 9.
- ↑ Lex de imp. Vesp. 1. 17 "utique quaecunque ex usu rei publicae majestateque divinarum humanarum publicarum privatarumque rerum esse censebit, ei agere facere jus potestasque sit, ita uti divo Augusto . . . fuit."
