Monarchy asserted, or, The state of monarchicall & popular government in vindication of the consideration upon Mr. Harrington's Oceana / by M. Wren.

CHAP. VI.

Whether the Senatusconsulta, or Decrees of the Roman Senate had the Power of Lawes?

IN discussing this Question it will in the first Place be necessary to make known what is to be understood by the Word Lawes. And though it be easy to take up severall Definitions of Law, none is so appropriate to the present Subject as that of Justinian. Lex est quod Populus Roma∣nus Senatorio Magistratu interrogante (veluti * 1.1 Consule) constituebat. This Definition puts a difference between Leges and Plebiscita, which having not been attended to by Ateius Capito in Gellius, He involves himself; For the Plebis∣cita were such Constitutions as without the Senate or the Intervention of any Senatorian Magistrate were framed by the Common People under the Authority of their Tribunes. At first Obedience was due from the Romans only to such Lawes as were establish't by the Votes of the People (including the Senate,) and had been proposed by some of the greater Magistrates: But after that the Plebs or Common People had by their Seditions gained ground so far upon the Senate, as to obtain the Tribunes a Magi∣stracy elected out of their own Body, They soon began to frame Orders called Plebiscita, which at the beginning obliged only their own Order, and concerned not the Nobility, but

were after a while improved to the full Autho∣rity of Lawes. whether this were enacted by the Lex Horatia, the Lex Publilia, or the Lex Hortensia, as is by various Authors variously reported, Or Whether the later of these Lawes were any more then a reviving of the former, We shall not be concerned to inquire; It will be enough to take notice that the Plebiscita having attained the Power of Lawes, Pomponius had * 1.2 very good Reason to observe Quod inter Plebis∣cita & Legem species constituendi interessent, Po∣testas eadem esset.

As the Plebiscita or Decrees of the Common People were not Lawes, nor ever so called, and yet had the whole Power of Lawes, So the Senatusconsulta or Decrees of the Senate had the same Power. Senatusconsultum est quod * 1.3 Senatus jubet atque constituit. Nam cùm auctus esset Populus Romanus in eum modum, ut diffi∣cile esset in unum eum convocari, Legis sanci∣endae causâ; aequum visum est, Senatum vice Po∣puli consuli. And least Justinian should be thought to have lived in too remote an Age, to be a Witness in this Case, We have a much earlier Testimony of Pomponius to the same Purpose. Quia difficilè Plebs convenire coepit, Populus multò difficiliùs in tantâ turbâ hominum, Necessitas ipsa curam Reipublicae ad Senatum de∣duxit. * 1.4 Ita coepit Senatus se interponere: & quic∣quid instituisset observabatur. Idque jus appellaba∣tur Senatusconsultum. With which agrees that of * 1.5 Ʋlpian, Non ambigitur Senatum jus facere posse.

To determine at what time the Senatuscon∣sulta

attained to the Power of Lawes, is more then I will undertake; It is very probable that this was not establish't at Once, but grew on by insensible Degrees. But for Mr Harrington without the least profer of any Probation to affirm, That the Senatusconsulta were not Lawes in that they were Senatusconsula, or proposed by * 1.6 the Senate, but in that They were allowed by Justinian or the Prince, in whom was now the Right of the People, is to take to himself grea∣ter Authority then ever was given to the Di∣ctator. For in the first Place it is manifest by the order of the Discourse both in the Institu∣tions and the Digests, That the Senatuscon∣sulta had attained the Power there affirmed to belong to them before the time of the Empe∣rors. And then the Occasion by which the Senatusconsulta are said to have grown into that Power, was the Difficulty of Assembling the People for making of Lawes, by which it is ne∣cessarily inferred, That the People had not then passed away the Right of making Lawes, nor by the Lex Regia invested the Emperour with it.

I need not conceale that Mr Harrington in this Point walkes in a Path traced out for him by Hotoman; Who indeed accuses Tribo∣nian of Error or Assentation, And saies that the Senatusconsulta had not the Power of Lawes before it was given them by the Empe∣rours, who by that thought to fortifie the Power they had usurped over the People. But We must be cautious in admitting Hotoman's Judgment in these Matters; For He was

not only a professed Condemner of Tribonian's Labours in compiling that Body of Civill Law which is at present extant in the World, but having been during the Civill Wars of France ingaged in a Popular Faction, He acquired there some Bitterness of Spirit against Kings, which He frequently discovers in his Writings. If it be Hotoman's Authority which must beare Me down in this Point, I shall cover my self with the Authority of Cujacius, Connanus, Rivallius, Tholosanus, Gothofred, Calvin, Schardius, and the whole stream of Interpreters who run on the o∣ther side: If Hotoman's Arguments are thought strong enough to carry it, I must desire they may be examined, and then they will appeare to prove no more then this, That whereas Caesar had left the Election of halfe the Magi∣strates, with some other small Remaines of Pow∣er in the Peoples hands, Tiberius transferred all to the Senate: Which is so far from making good his Assertion, that it is a strong Presump∣tion of the Contrary, Seeing it is not likely that by such an Innovation in Favour of the Senate, Tiberius would have incurred the Discontent of the People, if they had not been habituated in other Cases to see such Power in the Senate's Possession.

It was not then by any new Power conferred by the Emperours, but only by their Permis∣sion to retain an Antient One, that the Decrees of the Roman Senate had the Power of Lawes, and as such found place in the Compilement of the Roman Lawes by Justinian. That the

S C. Macedonianum (which I wonder so great a Master as Mr Harrington should call Mace∣donicum, and not have skill enough to distin∣gnish the Adjective derived of Macedonia, One of the Noblest Provinces in Greece, from that other which sprang of Macedo an infamous U∣surer at Rome in the time of Vespasian) is of a younger Date then the first Roman Emperour I willingly allow, and make no difficulty in con∣fessing as much of almost all the S C. mentio∣ned in the Body of the Law: For the more an∣tient Ones having from time to time been whol∣ly repealed, or in part reformed by succeeding Constitutions, they were omitted by Justinian in his Compilement, whose Design it was to cut off all antiquated and useless Lawes, and leave only such new Ones as continued in Force. We are deprived of the accurate knowledge of * 1.7 these Antient Senatusconsulta by the loss of that Instrument into which both They and the Ple∣biscita, from the time of their first Institution, were collected by Vespasian: Yet it is not very hard to pick out considerable Footsteps of them, As the two Senatusconsulta against the passing of Rubicon by any Roman Generall with an Army, still extant upon old Marbles; The S C. Antonianum, Fannianum, and others men∣tioned by Gellius; The Form of the SC. Sum∣mum or Supremum, by which the whole Com∣monwealth was put into the Hands of One or both the Consuls, from whom after that lay no Appeale to the People; The severall Sena∣tusconsulta so frequently spoken of by Cicero,

both in his Epistles and Orations; And finally in the Body of the Law it self (not to hunt af∣ter other Places) Digest. de Colleg. & Corp. l. 3. The Senatusconsulta there referred to were One of them made A. Ʋ. C. 685. L. Caecilio & Q. Marcio COSS. And the other A. U. C. 697. Lentulo & Metello COSS. (both before Caesar's second Consulate from which the Roman Empire beares Date) as is out of Cicero and Asconius proved by the learned Go∣thofred.

The Solution of this Question may give Birth to a New One, Whether Mr Harrington be the better Civill Lawyer or Mathematician?

Notes

• * 1.1

  Instit. de jur. nat. Parag. •• 4.
• * 1.2

  Digest. de Orig. Juris leg. 9.
• * 1.3

  Instit. de jur. nat. Parag. 5.
• * 1.4

  Digest. sup. eod.
• * 1.5

  Digest. inf. de Leg. & SC.
• * 1.6

  H. p. 31.
• * 1.7

  Aymar. Ri∣vall. Hist. Jur. Civ. lib. 3.