ORATIO´NES PRI´NCIPUM
ORATIO´NES PRI´NCIPUM Many of the
orationes of the Roman emperors, such as are quoted
by the
Augustae historiae scriptores, are
merely communications to the senate, e. g. the announcement of a victory
(Capitol.
Maxim. duo, 12, 13), but those which are the
subject of this note relate to legislation only. Under the earlier emperors
the orationes were
projets de loi submitted by the
princeps either personally or by memorandum (
epistola,
libellus: e.g.
Dig. 5,
3,
22;
24,
1,
32;
27,
9,
1) to the senate, which in appearance, though not in reality, still
possessed legislative power: the consuls, as presidents of the assembly,
would then open a discussion on the proposal (e. g.
Dig.
5,
3,
20,
6), which we cannot doubt was invariably embodied in a
senatusconsultum with little or no alteration, and so constitutionally
invested with the force of law. Instances are found in Gaius (2.285),
“ex oratione divi Hadriani senatusconsultum factum est;”
and in
Dig. 23,
2,
16 (Paulus), “oratione divi Marci . . . . quam
senatusconsultum secutum est.”
But the fact that, either through his
jus
edicendi, or in virtue of the Lex Curiata de Imperio, the
emperor's own ordinances had the force of law, and the ostentatious
unwillingness of the senate to make even a false show of independence by
pretending to discuss his legislative proposals, gradually led to the
recognition of the oratio as itself law, apart from the senatusconsultum
which was founded on it: so that the two are often cited indifferently by
the classical jurists--the oratio as containing the reason or grounds of the
law, the senatusconsultum for its particular terms and provisions (e. g.
Dig. 2,
15,
8;
23,
2,
60;
5,
3,
20,
22,
40;
11,
4,
3: so too “divi
Pertinacis oratione cautum est,”
Inst. 2.17, 7): and the actual consultation of the senate
gradually sank into a merely formal acclamation. As to the mode of
communication, unless the emperor delivered the oratio in person, which
seems not to have been very usual, it was embodied in an epistola or
libellus (
Dig. 5,
3,
20,
22), which was read to
the senate by one of the quaestors (
Dig. 1,
13): for instance, Suetonius (
Suet. Tit. 6) says that Titus sometimes read his father's
orationes in the senate “quaestoris vice,” and the practice is
frequently referred to: e. g.
Suet. Aug. 65;
Tac. Ann. 3.52,
16.7;
D. C. 54.25,
60.2. The mode of proceeding upon the receipt of
one of these orationes may be collected from the preamble of the
senatusconsultum in
Dig. 5,
3; and when it was drawn up with much regard to detail, the
subsequent senatusconsultum was clearly a simple reproduction of its terms.
It is not quite clear when the practice of formally giving the force of law
to orationes by embodying them in senatusconsulta went out of use.
Senatusconsulta originating in this manner
[p. 2.294]are
found in the reigns of Septimius Severus and his son Caracalla (e. g.
Dig. 24,
1,
32), but under the Christian emperors the oratio appears simply
as one of the modes of publishing or promulgating emperor-made law, by
addressing it to the senate ( “leges, quae missae ad venerabilem
coetum oratione conduntur,” Cod. 1, 14, 3: cf. Cod. Theod. 4, 1,
1): if addressed to a magistrate, it would rather be called mandatum or
rescriptum; if “ad populum” or “ad omnes populos,”
an edictum or edictalis constitutio. Genuine senatusconsulta now occur only
in relation to the senatorial games or other burdens which the senate had to
bear as a corporation (Symmach. 10.28, 10).
There has been much discussion on the amount of the influence exercised by
these orationes on the legislation of the senate. But it seems to be
tolerably clear, from the evidence that we have and from the nature of the
case, that the oratio might recommend generally some legislative measure and
leave the details to the senate, or it might contain all the details of the
proposed measure, and so be in substance, though not in form, a
senatusconsultum: and it would become a senatusconsultum on being adopted by
the senate, which, in the case supposed, would be merely a matter of form.
[
SENATUSCONSULTUM]
In the case of an oratio expressed in more general terms, there is no reason
to suppose that the emperor's recommendation was less of a command: it was
merely a command in more general terms. (See Dirksen,
Ueber die Reden
der ròm. Kaiser und deren Einfluss auf die
Gesetzgebung, in
Rhein. Mus. fùr
Jurisprudenz, vol. ii., and
Vermischte Schriften,
part i., No. vi.)
[
G.L] [
J.B.M]