B. CONSTITUTIONES

Further particulars respecting edicts, such as their availability, their vali­dity in time and space, their normative force, are dealt with in later sections of this chapter?

2. Decreta

§ 165 Epistula domitiani ad falerienses (Bruns 255; FIRA I No. 75) (82 A.D.) Imperator Caesar Domitianus Augustus, son of divas Vespasianus, pontifex maximus. with tribunician power, imperator the lid (time), consul the VI11th, consul designate the IXth, father of his country, greetings (salutem didt) to the quattuorviri and decurions of the Falerians, from Picenum.

What I have determined concerning the parcels of land, after having heard the case between you and the Firmani, I have ordered to be appended to this letter (epistula), so that you shall have notice thereof

P. Valerius and... (erased name)... being consuls, July 19 th

Both the age of the controversy, which after so many years is again brought by the Firmani against the Falerians, inasmuch as fewer years at least ought to assure security to the possessors, as well as the epistula of divus Augustus, an emperor most careful and indulgent towards his IVth (legion), in which he admonished them that they should collect and sell all their parcels of land, strongly move me: I doubt not but that they have obeyed an admonition so sound. Wherefore I confirm the right of the possessors.

Farewell.

Given July 22nd. at Albanus, by the hand of T. Bovius Verus, to the representa- lives P. Bovius Sabinus, P. Petronius Achilles.

Publish by decree of the (local) decurions.

C ALLI stratus, Libro V de cognitionibus (D. 48.7.7)

Creditors who proceed against their debtors should demand back through a judge, that which they allege is due them. Otherwise, if they enter upon the property of the debtor without permission having been given them, divus Marcus decreed that they no longer had the rights of creditors. The words of thedecretum are these: 'It is best, if you think you have certain claims, that you seek them

1. Haencl, Corpus legwn, passim; Riccobono, FIRA I, cap. VILA, passim, with the anonymous description (by Berger) of further texts, 395-99; Rudorff, Rechtsgtsduchie I 133 n.2, and 134-36.

8. Sherwin-White, JRS 63 (1973) 86, 90; contra Schiller, Fcstidirift Stull 143, 154.

9. Further studies, see Kipp. s.v. Edictum, RE 5 (1905) 1940, 1947 f.

judicially by actions: in the mean time the other party ought to remain in posses­sion, for you are but a claimant.’ And when Mardanus declared: ’No force had been employed’, the emperor replied· 'Do you think there is force only if men are wounded? Force exists as often as anyone thinks he can take what is owing him without demanding it through a judge. Moreover, I do not think it con­formable to your character or dignity or respect to permit something illegal. Therefore, when it shall have been proved to me that any property of the debtor, not delivered by him to the creditor, has been unauthorizedly possessed without any trial, and it is alleged that he (creditor} has a right to that property, he shall not have the right (to sue) as a creditor.’

Cf. D. 4.2.13 (lex geminata), abbreviated and interpolated version of the above.

Paulus, Libro l decretorum (D. 4.4.38 pr.)

Aemilius Larianus bought the Rutilian plot from Ovinius subject to conditional avoidance for non-payment on the day fixed (lex commissoria) and paid part of the price on the understanding that if within two months from the purchase he shall not have paid half the balance of the price, the sale should be invalidated; and again, if within another two months he shall not have paid the remainder of the price, the sale should similarly be invalidated.

For the substance of the text, as interpolated, see Sanfilippo, Pauli decreto­rum 22-30.

Cognitio goharienorum apud caracallam1-13,25-32 (Syria23 [1942/43] 173; BIDR 49/50 [1948] 46) (216 A.D.)

In the consulship ofSabinus and Anulinus, on May 27 th, at Antioch, Imperator Caesar Marcus Aurelius Antoninus Pius Felix Augustus Part hicus Maximus Britannicus Maximus Germanicus Maximus, waited upon by the praetorian praefects, most illustrious men. similarly by his friends and the secretaries of the bureaus, (the emperor) opened court and ordered to be admitted Aurelius Carzeus (son of) Sergius, defender of the Goharieni, suing against Avidius Hadrianus, tax-farmer — which case the emperor had deigned to hear — (Carzeus) with his attorney Egnat ius [fulianus], and Avidius Hadrianus, tax-farmer, with his advocate [Lollianus] Aristaenetus.

Of whom Aristaenetus said: 7 would demur'

Lollianus said: 7 take it that you (emperor) have ordered this trial.

Aristaenetus (then) said: ‘Appeals are available on the basis of law. If an appeal is accepted by the governor, it can be made before your court. However. If the governor does not accept it, on what basis can the case be heard? After many Judgments and decisions you have been appealed to by a petition respect­ing the Goharieni. Neither a public advocate or a deputy but simply a private party has presented a petition to have you as Judge in place ofthe governor....'

(25) Antoninus Augustus said: 'Do you (Aristaenetus) say it cannot be ap­pealed?'

Aristaenetus said: 'They do not have an appeal because it is not permissible to have one'.

Antoninus Augustus said: 7. even, can say something of my own accord in this matter. He did not appeal nor bring an action nor has done anything before the governor on this matter. He merely says. "I summon you to the tribunal of the emperor". Aren't you willing for me to hear the case?'

Aristaenetus said: ‘I consent'.

Antoninus Augustus said: 7, if I were urged to rise up, I would say, "The demurrer has its place". And what have you to find fault with?'

Lollianus said: ‘I will speak less than half an hour', and he added, 'The case is a question of piety...

Note: The direct address is in Greek, the remainder in Latin.

The decisions of the emperor (decreta principis), in the narrow sense of the term, are the expression of the judicial activity of the emperor.’They

1. The judicial activity of the emperor per sc is outside the scope of this work. The point of departure for that field is Mommsen, Staatsrecht II 958-88, but modern scholarship has made significant departures from his concepts. Among important contributions are: Volkmann, Zur Rechtsprediung im Prinzipai des Augustus (1935); Kelly, Princeps iudex (1957); Bleicken, Senatsgericht und Kaisergericht (1962). A brief survey of the handling of civil cases before the emperor, Kaser, Zivilprozessrecht 349-53, with further refT.

are the decisions in cases tried before him either (1) in first instance, where decretum may indicate a final judgment or merely an intermediate decision (interlocutio), or (2) on appeal from a lower court. In one instance it is not even clear that there was litigation, but when the emperor learned of an apparent injustice being done under the guise of law, he handed down a judgment clearly inconsistent with the existing law.¹ Inasmuch as the emperor was not bound by the praetorian edict, the development of legal principles in his court was freer and more radical than in the ordinary pro­cess? In the cognitio procedure the emperor himself conducted the whole trial. After the case had been heard, the arguments of the attorneys pre­sented,^{[1147] [1148] [1149] [1150] [1151] [1152] [1153] [1154] the advice of the imperial council (consilium principis) considered, the emperor handed down his opinion (sententia) as the judgment (decre­tum) of the case.}

In the great majority of cases the decision was merely an application of existing law, but new law might be forthcoming in the event that the decre­tum presented a new formulation of earlier legal rules, or, more strikingly, if it accepted one or the other point of view in a controversial question of law? As the highest authority of the state, the emperor allowed himself considerable freedom of interpretation, and occasionally introduced new principles of law, quite contrary to the existing norms? According to Jolowicz, imperial decisions were authentic interpretation of the law and thus were recognized as binding statements of law for all future cases? Kaser is more reserved: at the start the decretum was only controlling upon the case which was decided, but because of the prestige accorded the emperor, by the age of the Severi it was taken as binding upon judges faced with similar cases in the future? Gaudemet speaks of a sort of "case law’ in which the imperial decisions were invoked by the classical jurists?

Apparently, stenographic notes were made during the course of the trial, probably by the staff a cognitionibus. From these a digest was made by the a commentariis (registrars) and filed in the archives.^{[1155] [1156] The decreta were normally made known to the parties at once, but copies of them could be later procured from the files?1 It is not known whether the particulars of the trial concerning the Goharieni, at Dmeir, were inscribed from the steno­graphic notes or from later access to the archives. The judgment of the emperor has been lost, as well as any particulars respecting the erection of the monument. But the prescript and the opening arguments of the attorneys in response to the emperor have afforded many scholars opportunity for further discussion of the nature of decreta.12 There was no particular form for the decisions of the emperors, but they may usually be recognized by the nature of their contents: the report of litigation in full or digested form, with the occasional reference to the imperial statement: ‘I have decided (pronuntiavi)’.”}

The encyclopedia reference by Hesky, s.v. Decretum,A£4(1901)2289-91, is somewhat antiquated, but does contain citation to all the decreta of the emperors which are discussed or mentioned in the Digest by the jurists.'*

3. Rescripta

§ 166 The type of imperial utterance that came in time to be the most significant

of all was the rescriptum principis (rescript of the emperor). Although a novel view as to the character and types of rescripts was advanced in 1920, a view that has gained general acceptance, the voluminous mass of materials has not been fully re-examined and re-evaluated in the light of this pre­sentation.¹ The study that led to the revision of the conception of rescripts was by the eminent papyrologist, Wilcken, and forms the basis of the dis­cussion herein.* Affirmation of Wilcken’s views during the last half century may be noted?

Seneca, Ad Polybium de consolatione 6.5

... There have to be audiences for all those thousands ofpeople, for the handling of all those petitions (libelli); all this mass of business flowing from every part of the world must be assembled so that it may be presented in due order for the consideration of our excellent emperor (Claudius)....

12. The first edition of the text with comment, Roussel-De Visschcr, ’ Les inscriptions du temple de Dmeir’, Syria 23 (1942/43) 173-200; further, Arangio-Ruiz, BIDR 49/50 (1948) 46-57; Wenger, Melanges Gregoire III (1951) 469-504; Kunkel, Festschrift Lewo/d 81-91.

13. For analysis of the texts of the judgments as presented in the two collections of imperial decisions by the jurist Paul, see Volterra, La critica del testo 11 821,981-92.

14. Hesky, j.v. Decretum RE 4 (1901) 2289-91.

1. The older discussions of rescripta include Mommsen, Schriften 11 172-92; Karlowa, Rechisgeschichte 1 650-52, Krüger, Geschichte 103-09; Brassloff, r.v. Epistula, RE 6(1909) 204-10; Prcisigke, Die Inschrift ran Skaptoparene (1917).

2. Wilcken, ‘Zu den Kaiaerreskriplcn', Hemes 55 (1920) 1-42.

3. Von Premerstcin, r.r. Libellus, RE 13 (1927) 30-44,48-49. CT. also Buckland, Text-Book 18 f.; De Frandsd, Storia II 392-94; Jolowic&-Nicholas, Introduction 368-70.

Justinianus, Institutionum liber ILI 1.1

Respecting the wills of soldiers the deified Trajan rescripted to Statilius Severus as follows; 'The privilege granted to soldiers of having their wills upheld in what­ever manner made is to be understood that first it has to be shown that a will indeed was made, for a will can be made without writing, even by civilians. Accordingly, that soldier whose inheritance is the subject of a suit before you, if he expressed his intention in the presence of witnesses collected for that pur­pose, in that he did declare whom he wished to be heir and upon whom (slaves} he wanted to confer freedom, it can be held that in this way he had made an unwritten testament and his wishes therein ought to be carried out...."

Note: Statilius Severus was apparently an imperial official, cf. RE 3A (1929)2195.

Lampridius, Commodus Antoninus XI1I.7 (SHA)

Commodus himself was so lazy and negligent in subscribing (rescripts) that he subscribed many petitions (libelli) with the same formula, while on many letters (epistulae) he merely wrote the word ‘Farewell'.

Capitolinus, Opilius Macrinus XIIL1 (SHA)

He (Macrinus) was not unwise in legal matters, and he even determined that all rescripts of earlier emperors be rescinded, in order that suit should be bylaw (ius) and not according to rescripts, saying that it would be wrong to consider as laws the wishes of Commodus and Caracalla and other untrained men, when Trajan never responded to petitions (libelli), so that rulings which might seem to have been made as favors might not be applied to other cases.

From the beginning of the Principate the emperor was the recipient of hundreds of petitions from both officials and private persons. In the former case the request was embodied in a letter which was dispatched to the emperor by official post, and the answer of the emperor would also be by letter, epistula (in Greek, epistole). For the most part favors were requested, such as the grant of citizenship to particular individuals, or a dispensation from required duties, and the like. * The correspondence between Pliny and Trajan in the 10th book of Pliny’s letters is made up of such matter? If a private person sought something from the emperor, or as a matter of fact from any official, the petition had to be delivered in person, or by an author* ized agent, and the written document embodying it was known as a libellus (in Greek: hypomnema, later, biblidion). Such, in general, was the practice up to the time of Hadrian; it is of less interest to the legal scholar than

4. A brief survey of epistulae on inscriptions and papyri, Wenger, Quetlen 463-65.

5. Cf. the analysis by Voltcrra, La criiioa del lesio II 821, 861-69. On tbe statement that Trajan ‘never responded to petitions', see Wenger, Quellen 447 f.

the following epoch, for the number of instances in which the petitions and answers dealt with private law was limited.

Paulus, Libro XIII ad edictum (D. 4.8.32.14)

Where a certain arbiter was dearly seen to be hostile on independent grounds and was called upon, by reason of testimony, not to pronounce an award, never­theless though no one pressed him, proceeded to pronounce one, the emperor Antoninus, petitioned by a libellus on the matter, subscribed that the petitioner might plead an affirmative defense (exceptio) offraud. [Accordingly, that defense is a certain type of appeal since a rehearing after the award of an arbiter is permitted. ]

See Index Interp. I 63, Supp. 181.

Callistratus, Libro I de cognitionibus (D. 1.18.9)

/15 a general rule, whenever the emperor removes matters to the governors of provinces by rescripts, for example, "you can apply to the person who is at the head of a province’, or with the addition, "he will consider what steps he will take ", the proconsul or the legate is not under the necessity of undertaking to hear the case, even if the words are not added, ‘he will consider what steps he will take’; he should consider whether he ought to hear it himself or appoint a judge.

Ulpianus, Libro I de officio proconsulis (D. 1.16.9.1)

Where a judicial decision (decretum) is required, the governor cannot dispose of a case by petition; for all matters which require trial ofa case (causae cognitio) cannot be disposed of by libellus.

Callistratus, Libro VI de cognitionibus (D. 48.15.6 pr.)

One who is liable to the crime of theft because of having abducted another’s slaves is not forthwith a kidnapper, divus Hadrianus rescripted in these words: ‘Whether one who has instigated (to flight) or has abducted another’s slaves is liable to the crime of kidnapping or not is a question (of fact) as to what was intended by him. Accordingly, I ought not to be consulted about this matter, but the judge ought to be guided by what is considered most likely in the case itself...'

Marcianus, Libro IV regularum (D. 22.1.32 pr.)

Laches is regarded as pertaining to the person, not to the thing, that is. if one has not paid enough even though reminded within a reasonable time, this shall be looked into by the iudex; for, as Pomponius, Libro XII epistularum, writes, it is difficult to define this concept. Moreover, divus Pius rescripted to Tullius Balbus, whether laches had occurred was not a question to be decided by any constitutio or opinion of the Jurists, since it was a question of fact rather than of law.

Calli stratus, Libro P cognitionum (D. 42.1.33)

Divus Hadrianus, petitioned by libellus from Julius Tarentinus, alleging that by false testimony the honor of the judge had been circumvented, the witnesses having been corrupted by bribery through a conspiracy of the adverse parties, rescripted that there should be a restitution to status quo, in these words: 7 ordered a copy of the libellus presented to me by Julius Tarentinus to be sent to you; you, ifyou shall have found that by conspiracy of the adverse parties and corruption of the witnesses by bribery something has been suppressed, you are to judge the matter severely, and if anything has been adjudged by the circum­vented judge in such a fraudulent case, restore to status quo’.

Ulpianus, Libro VII de officio proconsulis (D. 48.6.6)

Divus Pius rescripted that one who ravished a freeborn boy should be punished, in these words: 7 have ordered to be enclosed a copy of the libellus given me by Domitius Sylvanus, through the person ofDomitiusSylvanus. his uncle.... My dear brother, I wish you to hear him and if you find that these acts have been committed, inflict severe punishment therefor.'

Under Hadrian a distinct change takes place in the nature and handling of rescripts. The petitions, in ever-increasing number, contained queries with regard to legal points arising in the course of litigation, and a regular system of formulating the answers (rescripta) was developed. Just what was the reason for the change is uncertain. Karlowa suggested that it was due to the cessation of magisterial edicts, i.e., the edicts of the urban and the peregrine praetor were codified in the reign of Hadrian (supra, § 151)/ Therefore questions of law had now to be settled by the emperor rather than by the chief judicial magistrates.^{[1157] [1158] [1159] It is true that petitions could be employed only where suit leading to decretum was not possible, but Buck­land had pointed out that appellate procedure before the emperor was being replaced by petitions requesting the answer to the legal question involved, submitted by the judicial magistrate or the party litigant.* If the party has agreed to the statement of facts, there can be no appeal against the content of the rescript.’ In the course of time the so-called rescript pro­cedure developed out of this situation.1®}

At the start, according to Pernice, procedural rescripts were no more than the counterpart, as far as the provinces were concerned, of the advice given by the jurists at Rome, the responsa prudentium (supra, § 101 ).*' Wlassak also pointed out that referral and removal of the petitioner's case to the governor of the province was the normal method of procedure in the prov­inces from the 2nd century onward.¹² The rescript of the emperor was not the final decision, since it did not deal with the facts, but only presented a legal rule on the basis of the facts as alleged; the answer would apply only if the judge hearing the case found the facts to be as stated in the petition.¹² At any rate, rescripts other than those dealing with procedural matters tended to disappear, and naturally enough the process-rescript came to be increasingly important as far as the jurists were concerned, providing the most fruitful source of law during the late classical period, and with modi­fications into the post-classical epoch.¹⁴ In content, the rescripts for the most part applied existing law, but sometimes, like the decreta, the emperor took occasion in his answer to provide the guiding rule where there had been controversy, and occasionally he might formulate an entirely new rule.”

According to the definition of Wilcken, rescripta included 'all the imperial decrees to officials, corporate bodies or private individuals which were sent to the petitioner in reply to a petition or request’.’⁴ This definition excludes answers to third parties, as, for example, to a judge in a law suit where the petition derived from one of the litigants. Since the sources use rescribere in this connotation as well, Wilcken called these ’indirect’ rescripts, but he excluded them from his succeeding discussion. The major contribution of Wilcken was to establish a sharp differentiation between epistulae and sub­scriptiones, a distinction dependent upon the class of person from whom the petition came; the two types had, for the most part, been previously

9. Kipp, Geschichte 73 and n.38, citing D. 49.4.3 (Maccr 2 appcl.).

10. The true rescript procedure does not develop until post-classical times. The procedure instituted by imperial rescript is a precursor thereof, cf. Mittels, Zur Lehre von der Libellen und der Prozesseinleitung nach den Papyri der früheren Kaiserzeit (1910); briefly Kaser, Zivilprozess­recht 352 f., with further reff.

11, Pcrnicc, Festgabe Beseler 49, 69-74.

12, Wlassak, Provinzialprozess 16-20.

13. Kipp, Geschichte 74 f.; Kaser, Rechtsgeschichte 152 f.

14, Krilger, Geschichte 108 f.

15. Jolowicz-Nicholas, Introduction 370.

16, Wilcken, Hermes 55 (1920) 2 (translation of the author).

recognized,^{[1160] [1161] [1162] but Wilcken demonstrated conclusively that each had its own bureau practice.11 If the petition came from an official (variously termed relatio, consultatio, suggestio) then the reply would be in the form of a letter (epistula) drafted by the bureau ab epistulis, and signed by the emperor, ‘Farewell’ (Vale). If the petition came from a private party (called libellus, prex, supplicatio), then the reply would be appended to a re-drafted copy of the petition itself as a subscription (subscription prepared by the bureau a libcllis, and signed (scripsi) by the emperor.1*}

a. Epistulae

§ 167 Epistula vespasiani ad saborenses 1-18 (Bruns 255; FIRA I No. 74) (78 A.D.)

Imperator Caesar Vespasianus Augustus, pontifex maximus, with tribunician power for the IXth (year), Imperator for the XVlIIth (time), consul for the Vlllth, father of his country, sends greetings (salutem didt) to the quattuorviri and decurions of Sabora.

Since you inform me of your lack of resources and being pressed with many difficulties, I permit you to build the town in my name, on the plain as you wish. I affirm the revenues which you say had been granted by divus Augustus; if you wish to add any new ones you ought to apply to the governor for them, for with­out response (from him) 1 can set up nothing. I received your decree on July 25th; I dispatched your emissaries on July 29th.

Farewell

The duovirs Gaius Cornelius Severus and Marcus Septimius Severus had (this epistula) incised in copper with public moneys.

Epistula domitiani ad falerienses (82 A.D.)

Note: Set forth, supra, | 165.

Plinius, Epistulae X.65-66

C. Plinius to the emperor Trajan:

There is an important question, my lord, concerning the whole province, as to the condition and maintenance of those who are called 'exposed infants (in Greek, threptoi). In examining the constitutions of( earlier) emperors, because I have found nothing referring either to Bithynia in particular or of general application, I have thought it best to consult you as to what you wished to be observed. For I thought I could not be content with precedent apart from that which required your approval. There was died to me an edict which was said to be of A ugustus pertaining to < Asia > [Ë wna]; there were also read epistulae of divus Vespasianus to the Spartans, and of divus Titus to the same and to the Achaeans, and of Domitian to A vidius Nigrinus and Armemus Brooch us. the governors, also one to the Spartans. These, however, I have not transmitted to you because they appear both insufficiently corrected and some not reliable, and because J imagine there are true and corrected copies in your bureaus.

(66} Trajan to Pliny:

This question which relates to freeborn children who have been exposed and then brought up in slavery by those who rescued them has often been raised, but nothing is found in the records of those emperors who preceded me which was established for all provinces. Possibly the epistulae of Domitian to Avidius Nigrinus and to Armenius Brocchus ought to be observed, but Bithynia is not mentioned arming those provinces to which he rescripted Consequently, I hold that those who seek to be granted freedom for this reason should not be denied the opportunity of public notice (of their freedom) and that this freedom need not be re-purchased by the payment of their maintenance.

Note: Cf. Sherwin-White, Letters 542 f., 650-55.

Epistula hadriani de liberis meutum (BGUI 140; Bruns 421; FIRA I No. 78) (119 A.D.)

Copy of an imperial letter translated... in the Hird year of Traianus Hadrianus Augustus. Publius Aelius for the Illrdtime andRusticus being consuls. Posted not be placed In prison, unless it appears that he has admitted to such a grave crime that neither sureties nor soldiers ought to be involved, but. in fact, this same penalty of imprisonment suffered before punishment.

Ulpianus, Libro I ad edictum (D. 11.4.1.2)

... Moreover, there is a general epistula of the divi Marcus and Commodus by which it is declared that governors and magistrates and established police are bound to aid the owners in seeking out fugitive slaves and give up those found, and that those persons where they were hiding are to be punished if any unlawful behavior be connected with them.

Ulpianus, Libro singular! de officio praefecti urbi (D. 1.15.4)

The emperors Severus and Antoninus rescripted to Iunius Rufinus. praefectof the watch, as follows: 'If occupants of apartments or other persons carelessly watch fires they light, you can order them to be beaten with cudgels or whips. As for any who may have been found guilty of wilful arson, you may transfer them to our friend, Fabius Cilo. praefect of the city; fugitive slaves you ought to hunt up and return to their masters.

Note*. Cf. also, D. 1.12.1: epistula to Fabius Cilo.

Epistulae, letters from the imperial office in response to official requests, are numerous both before and after the reform in the handling of rescripts in the time of Hadrian. Instances in Latin are to be found among the inscrip­tions and in the Digest and Code, Greek are fairly numerous on inscriptions and among the papyri.¹ The reason both languages were employed is that epistulae were written in the same tongue as the petition answered? Before Hadrian — and to a lesser extent even afterwards — epistulae were con­cerned with administrative matters, and as such would always be of general application in the territory or locale to which they were directed? In fact, there exist exceptional cases where epistulae of administrative-legal content are termed generalis? This, presumably, may be the reason why Ktibler makes the striking statement that mandata (infra, § 169) are a sub-type of epistulae? There is no question but that some epistulae, particularly after the time of Hadrian, deal with matters of private law, and, as Wilcken holds, arc procedural rescripts in the full sense of the term? There is no full listing of known epistulae; that a list of epistulae in legal and non-legal literature, in inscriptions and papyri, would be particularly valuable for further study of the nature of this type of imperial enactment cannot be doubted?

That epistulae are clearly to be differentiated from subscriptiones in matter of form was demonstrated by Wilcken? The epistula (1) opens with a praescriptio or introduction, containing the emperor’s name in the nomi­native, that of the addressee in the dative, and usually adding a salutation (salutem or salutem dicit), (2) presents the text proper, and (3) closes with ‘Farewell’ (Vale, or Valete), in the emperor’s own hand, followed by date and place of execution. Epistulae were handled by the bureau ab epistulis? Upon the reception of the request from the official or public body a rough draft (periculum) of an answer was made in the bureau and submitted to the emperor for correction. Upon its return a final, authentic copy was pre­pared, which the emperor signed. According to von Premerstein, these authentic originals were filed in the archives, and a copy was sent by post ^{[1163] [1164] [1165] [1166] [1167] [1168] [1169] [1170] [1171] to the addressee;[1172] [1173] [1174] Jolowicz and Nicholas have it that the original went to the addressee, by post or through an agent.11 As we shall see (infra, § 171), there is no official publication of epistulae, though the official or body to whom they were addressed might publish them if so desired, or the emperor could call for their publication.11}

b. Subscriptiones

§ 168 Subscript™ antonini ph ad smyrnaeos 1-IV (Bruns 257; FIRA I No. 82) (139 A.D.)

(I) (Fragments of the conclusion of the petition ofS. Aculianus, representative of the Smymaeans)

(II) Imperator Caesar Titus Aelius Hadrianus Antoninus Augustus Pius to Sextilius Acutianus. I permit you to copy the opinion of my divus father, if he uttered anything like an opinion. I have rescripted. I (department official) have certified. The nineteenth (roll). Done the 8th of April, at Rome, the consuls being Caesar Antoninus for the find (lime) and Praesens for the Ilnd (time).

(III) Signed at Rome, the 5th of May, the consuls being Imperator Caesar Titus Aelianus Hadrianus Antoninus for the Ilnd (time) and Gaius Bruttius Praesens for the Ilnd (time). There were present T. FI. Macrinus... (and six other persons)...

(IP) Stasimus and Daphne, copy out the opinion or constitution (of Hadrian) from the original.

Note: I and III are in Greek, II and IV in Latin. Reff. to the discussion of this text by von Premerstein, s.v. Libellus, RE 13 (1927) 35, No. 2.

Subscript™ sever] et caracallab iulianae (BGV I 267) (Bruns 260;/7ßË I No. 84) (199 A.D.)

< Emperor > Caesar PertinaxAugustus < Ara­bicas > Adiabenicus and Emperor Caesar < Marcus > Aurelius Antoninus Augustus, to luliana, daughter of Sosthenianus, through Sosthenes her husband: 'A plea of long possession, made by those who have had la wful grounds for entering andhave remained in possession without any dispute, is established against claimants who live in a different city. by the lapse of twenty years, and against those in the same city, by the lapse of ten years'.

Posted in Alexandria, on the 3rd of Tubi. year 8.

Note: The identical subscript™ in the extract of minutes of proceedings before a praefect, P. Strass. I 22.1-9.

SlJBSCRI PTION ES SEVER! ET CARACALLAE ULPIO HERACLANO ET ALUS (P. Col. 123) (Westermann - Schiller, Apokrimata; Chr. d ‘Eg. 30 [ 1955 ] 327) (Mar. 14-16, 200 A.D.)

In A lexandria. Copies of decisions (apokrimata) posted in the Stoa of the Gym­nasium, year 8, Phamenoth 8.

Imperator Caesar Lucius Septimius Severus Pius Pertinax Arabians Adia- benicus Parthiats Maximus Augustus and Imperator Caesar Marcus Aurelius Antoninus Augustus.

f //) To the Aurelii Artemidorus and A nubion and others. Obey the findings made.

(IS) To... thalge, daughter of Ambrelus. through Abdomanchus, her son. Women are not forbidden to borrow money and to pay in behalf of others.

(28) To Produs, son of Apollonius. It is not right — even if the testament is said to be falsified — that heirs written (in the will) should be deprived of pos­session. Those entrusted with (the supervision of) cases shall take care to cite the accused persons if the matter is in the order of trials.

(35) To Cronius. son of Heraclides. Temporary sicknesses do not excuse from civic liturgies, and those physically side are subject to liturgical services if they are able to undertake the care of their own affairs.

(45) Tolsidorus, son ofDius. Fulvius Plautianus, His Excellency the Praetorian Praefect and our household companion, will investigate the audacious actions (emanat ing) from Comon. With respect to Apion, the tax farmer, if he is not involved in the charges against Comon. you will have the praefect of the prov­ince as judge.

(57) To... elatheus, son of Caerenus. If you take guardians for the orphans extra ordinem, a judge will be given with respect to their properties against those in possession.

Note: The editio princeps of the papyrus: Apokrimata; Decisions of Septi­mius Severus on Legal Matters. Text, Translation and Historical Analysis by W. L. Westermann; Legal Commentary by A. A. Schiller (1954), was revised by Youtic, in Youtic—Schiller, Chr. d'Eg. 30(1955)327-45.

Subscripts gordiani ad scaptoparenos I-IV (Bruns 263; FIRA I No. 106) (238 A.D.)

(I) Good fortune. Fulvius Pius and Pontius Proculus being consuls. Copied and confirmed from the book of petitions, rescripted by our emperor Caesar Marcus Antonius Gordianus Pius Felix Augustus, and posted at Rome on the portico of the Trajan baths, in words < which > are written below.

(II) (Petition) received through Aurelius Purrus, soldier of the Xth < praetorian > cohort of Gordianus,, < in the century > of Proculus, (Purrus) member and co-possessor.

(III)... (Lengthy complaint of the inhabitants of Scaptopara, in Thrace, of the abuses visited upon them by officials and soldiers, so that villagers have to flee their homes)...

(IV) Imperator Caesar Marcus Antonius Gordianus Pius Felix Augustus, to the villagers through Purrus. solider (and) co-possessor. This type of complaint you ought to first report by laying your requests before the justice of the gover­nor, particularly precise as to the matters which are alleged rather than apply in specific form for an imperial rescript. I have rescript ed. I (department official) have certified. Signatures.

Note: I, II and IV are in Latin, III in Greek.

IMPERATORES SEVERUS ET ANTONINUS AUGUSTl CAEC1LIAE (C. 3.32.1) (210 A.D.) It has been decided that anyone who possesses the slave of another in good faith is entitled to the ownership of what is acquired from the property he possesses or from the labor of such slave. Wherefore, if you possessed such a slave in good faith, and he purchased property with your money during that time, you can raise defenses in accordance with the rules of law.

Posted, the Sth of May, at York, Faustinas and Rufus being consuls.

Ulpianus, Liber XXXII ad edictum (D. 19.2.19.9)

IFAen a certain amanuensis had engaged his services, and then the person who had engaged them died, the emperor Antoninus with divus Severus rescripted to the petition of the amanuensis in these words: ‘Since you argue that it was through no fault of yours that you did not fulfil the services hired out to A ntonius Aquila, if you have not accepted wages from anyone else in that year, it is equi­table that the contract ought to be carried out in good faith'

Imperator antoninus Augustus basiliae (C. 2.3.6) (213 A.D.) It is unquestionably law that pacts which are contra to leges and constitutiones or contra bonos mores have no force whatsoever.

Posted the 29th of July, Antoninus for the IVth (time) and Balbinus being consuls.

Although the references are but few, petitions to the emperors of the early Principate were fairly numerous, and the existence of the special bureau known as a libellis make it certain that a procedure of answering libelli was established before the significant change in the process in the time of Had­rian.¹ From then on petitions from private persons are common and sub­scriptions to them are of prime legal importance, though full texts of petition plus subscript!© are relatively few.¹ It should be noted that the term ^{[1175] [1176]}

§ 168 subscriptio (subscription) is employed herein in the technical sense of answer to a petition (libellus), and thus including the emperor’s signature, the official’s certification, and notice of posting. Wilcken enumerates four inscriptions which reveal the emperor’s signature (scripsi),^[1177] but there are many more inscriptions and papyri which report the subscriptiones append­ed to petitions.^{[1178] [1179] [1180] [1181] [1182] The Digest and, more particularly, the Code are replete with the texts or abstracts of imperial subscriptions? In many cases the jurists note that a legal rule derives from the answer to the libellus of a private party?}

The form of subscriptiones, as they have come down to us, comprises: (1) the prescript containing the emperor’s name in the nominative, that of the addressee in the dative, but no salutation; (2) a brief text in response to the petition; (3) the emperor’s signature, ‘I have signed’ (scripsi or rescripsi); (4) the confirmation of a bureau official that the text of the petition and subscriptio are authoratitive, T have certified’ (recognovi), (5) sometimes followed by the date and place of execution, and also the date and place of posting (propositio). W e know very little of the preparation of the answers to private petitions before Hadrian, but it seems that the petitions with sub­scriptiones were handed back to the petitioners, copies only being filed in the archives.’ With Hadrian, reform of the whole process of providing responses to legal questions brought considerable change to the subscrip­tiones procedure.’ When the draft subscriptio had been settled upon, the bureau a libellis made an authentic transcription of the petition, below which the subscription was written, a department official noting that the document conformed to the petition and correctly presented the sub­scription which had been devised. The document was then submitted to the emperor, and if signed by him was pasted to a number of other tran­scribed petitions with subscriptions and temporarily posted at the place of residence of the emperor. The petitioner made his copy of the subscription

from this posted original, had it witnessed, for within a short time the batch of rescripts were taken down and glued together with others to form a roll, filed in the archives, at which site later copies and inquiries could be made. It was there, undoubtedly, that the jurists had access to such rescripts as were not personally supervised by them when they were employed in the bureau a libellis.* The practice described is that outlined by Wilcken, and his view has stood the test of time.^{[1183] [1184] [1185]}

Wilcken believed that all subscriptiones had to be posted, from the time of Hadrian on; Mommsen had thought that the posting of those relating to minor matters was exceptional." Dessau later argued that the petitioner made his copy from the example in the archives, but Wilcken answered this position, successfully it would seem.^{[1186] [1187] Wilcken’s view has been fully sub­stantiated by the evidence of the Columbia papyrus.'1 Though the petitions are not included with the answers in that case - and consequently render somewhat insecure the interpretation of many of the rescripts - there is no question but that the petitions with their subscriptions appended were posted in the Stoa of the Gymnasium, in Alexandria, while the emperor was in residence,’4 The scribe of the apokrimata merely copied the sub­scriptiones; why he limited himself to these is disputed, depending upon the purpose one assigns to the papyrus." In the case of petitions submitted to the emperor through the governor of Egypt, the original of the transcribed petition with its subscription was posted in Alexandria, and when taken down was made up into a roll destined for the archives there; certified copies of the rescripts were made to be filed in the archives at Rome.[1188] [1189] [1190]}

4. Mandata

§ 169 Dio cassius, Historia Romana LUI. 15.4 (27 B.C.)

The emperor gives certain instructions to the procurators, the proconsuls and the propraetors, in order that they may proceed to their offices with fixed con­ditions. Both this practice and that of giving salary to them and to the remaining officials of the government became customary at this period.

Ex mandatis domtiani 1-19 (Syria 34 [1957] 278; RIDA 15 [1968] 135) (81-96 A.D.)

From the instructions (entoiai)of Imperator Domitianus Caesar Augustus, son of Augustus (Vespasianus). To the procurator Claudius Athenodorus.

Among the select matters requiring great pains I am aware that the attention of my divus father Vespasianus Caesar was directed to the privileges of city­states, fixing upon which he ordered that provincial territories be oppressed neither by (forced) rentals of draft animals nor troublesome demands for lodgings. Nevertheless... that (order} has not been enforced. There remains to the present an old and vigorous custom which gradually would develop into law if it were not by force prevented from doing so. Therefore I enjoin you to take care that no one take a draft animal without having a requisition-order from me....

Paulus, Libro XIII ad Sabinum (D. 1.18.3)

The governor of a province has sovereign power over the men of his own prov­ince only, and this solely while he is in the province; for if he leaves it. he becomes a private person. Sometimes he has imperium even over outsiders, if they commit an active offense; for it is within the mandata (instructions) of the emperors that he who governs a province shall take measures to rid the province ofevil-disposed persons, without distinguishing whence they come.

Marcianus, Libro II de iudiciispublicis (D. 48.3.6 pr. -I)

Dims Hadrianus so rescripted to lulius Secundus and it was rescripted at other times that credence was not to be given in all cases to the letters of those(magis­trates) who remitted persons to the governor as already condemned. The same is enjoined with respect to the irenarchs (police magistrates) because not all of them have been found to write out the statement ofparticulars in all goodfaith. (I) But a chapter of the mandata is extant which divus Pius, when he was gover­nor of Asia, published in the form of an edict, that when irenarchs apprehended thieves they should question them with regard to their accomplices and as­sociates, and the interrogations sent with the letters and sealed to the magistrate for his investigation....

Ulpianus, Libro XL V ad edictum (D. 29.1.1 pr.)

Divus lulius Caesar was the first to grant to soldiers free power to make a will; but this concession was temporary. Divus Titus first after him gave it; and then Domitian. Later divus Nerva conceded the greatest indulgence to soldiers (in this matter); and Trajan followed this, and from then on such c ¹ ' ' to be inserted in the mandata. Chapter of the mandata·' Since it has come to my notice that wills left by soldiers are submitted, which can lead to controversy if they are subject to the careful attention and regard for the laws,... Therefore, they may make their wills in whatever way they wish, they may make them in whatever way they can and the bare intent of the testator suffices for the dis­tribution of their property to be made.

Placita collegii funeraticii Lanuvini 1.10-13 (Bruns 388; FIRA III No. 35) (136 A.D.)

Chapter from the senatus consultum of the Roman people: ‘Let it be permitted to them < to assemble >, convene and have a collegium (associat ion). Those who wish to make a monthly payment < towards > funeral expenses, let them as­semble into a collegium, but they may not assemble under such type ofcollegium except once a month for the purpose of collecting (money) with which deceased persons shall be buried.'

Marcianus, Libro III institutionum (D. 47.22.1 pr.-l)

By the mandata of the emperors it is prescribed for the governors of provinces not to allow collegia sodalicia (brotherhood associations) to exist nor to let soldiers have collegia in camps. But it is permitted to poorer persons to pay a monthly stipend, provided they meet only once a month, nor may an illegal collegium be formed on a pretext of any kind. Divus Severus rescripted, also, that this applied not only in the city (ofRome), but even in Italy and the provinces.

(I) But they are not prohibited from assembling for the purpose of religion pro­vided only that nothing is done thereby contra to the senatus consultum by which illicit collegia are forbidden.

Note: Mommsen, Digesta ad h.l, transposes as follows: ‘By the mandat a - once a month’, ‘But they are -forbidden*, ‘nor may an illicit - in the pro­vinces’.

Marcianus, Libro II iudiciorum publicorum (D. 47.22.3 pr.-l)

If any collegia shall have been found illicit, they shall be dissolved by reason ofthe mandata and constitutiones and senatus consulta....(l)Ina word, therefore, unless a collegium or other body of this type is formed upon the authority of a senatus consultum or of an emperor, the collegium assembles contra to the sena­tus consultum and the mandata and the constitutiones.

Despite the fact that the jurists do not include mandata (orders, instruc­tions, in Greek: entolai) among the types of imperial enactments defined as constitutiones, the majority of modern scholars have included them as such, and for a variety of reasons.^[1191] Krtlger attributes the omission by the jurists to the fact that they were notably imprecise in definitions, and were in the main solely interested with imperial edicts, judicial decisions and rescripts;¹ another view stresses the fact that mandata were administrative rulings rather than legal norms, and thus left out;¹ still another position is that mandata were directed to the provinces, and thus of no particular interest to city-Rome jurists? However, in an extensive study devoted to mandata, in 1934, Finkelstein came to the conclusion that the Roman jurists were justi­fied in omitting these imperial orders or instructions from the type of enact­ments comprised within constitutions.¹ According to this scholar, mandata were issued to provincial governors at the time they set out for their prov­inces and comprised no more than rules and regulations which ultimately derived from other legal sources, namely, from imperial edicts, judicial decisions or rescripts.^{[1192] [1193] [1194] [1195] [1196] [1197] [1198] [1199] Any modification of the mandata during the term of office of the governor would be accomplished by one of the three types of constitutions, never by mandata. The jurists preferred to cite the original form of the legal norm, and where the reference was to mandata, as in soldiers* wills or private associations, the jurists had particular reasons for such designation? In spite of the fact that mandata were not included within constitutiones, Finkelstein held that mandata had legal validity, for at times they were cited as the sole authority for a given rule, and further­more they applied throughout the provinces and were valid until abro­gated.’}

In 1960, in the second extensive study of mandata, Dell’Oro came to some of the same conclusions? In a major portion of his work, he analyzed the rules in some of the areas regulated by mandata, among others, the prohibition of marriage between the imperial official and a woman native to the province he governed, the regulation against acceptance of gifts from a provincial, certain restrictions on the imposition of punishment, the pro­visions respecting soldiers* wills and illicit associations.^[1200] Dell’Oro con­cluded that mandata were actually extensions to the provinces of rules already in effect by reason of other norms, were not innovative and hence did not fall within the scope of constitutiones. In a review of this work, Orestano disagreed with this position, for he argued that the jurists, as well as Pliny, spoke of imperial enactments, including mandata, as ‘constituting' the law;^[1201] there are instances, he pointed out, where rescripts are correlated with constitutions in the same way as mandata are correlated with consti­tutions.¹¹ Labrun a, also, in his review, took issue with DeH’Oro’s denial of innovative quality as respects some of the rulings in the mandata.⁰

A further point was made by Finkelstein that mandata were solely ad­dressed to provincial governors, eliminating from consideration what he termed non-technical mandata (messages), and a reference which Frontinus makes to an extract from a chapter of the mandata, addressed to the super­visor of water affairs, in Rome.¹* The latter he takes to be an error on the part of Frontinus in using the term mandata to cover all types of constitu­tions. Dell’Oro explained this passage on the view that Frontinus was referring to provincial matters.¹ * Orestano states that the passage unequivo­cally refers to Rome, showing that mandata might introduce novel rules in Rome as well as in the provinces. °

Augustus introduced the practice of dispatching instructions to accom­pany the official who was to administer an imperial province, and presum­ably, also, to the governors of senatorial provinces. ⁿThcpractice continued, but whether the instructions given by Domitian to the procurator Atheno­dorus - a portion of which was publicly posted by the procurator - were technically mandata cannot be said with any certainty. Entolai is the Greek term for mandata in the technical sense, but it is also used for informal instructions?¹ A crucial factor would be, in Finkelstein’s view, whether the entolai were dispatched with the procurator when he went to take over office. ” The exchange of letters between Pliny and Trajan offer instructive details on the employment of mandata by the emperor Trajan.²⁰ Pliny had his book of instructions with him in Bithynia, but in view of the fact that Trajan had introduced a number of novel instructions, Pliny was obliged to write the emperor frequently - fifteen letters according to Sherwin- White - seeking clarification of the terms of the mandata or requesting permission to depart therefrom for good reason.¹’

In the course of time a book of mandata became more or less established.

If needed, parts thereof would be made known to the inhabitants of a given territory by edicts of the governors or subordinate provincial officials. The so-called Gnomon (Directive) of the Idios Logos (Director of the Private Treasury, in Egypt), a papyrus document of the era of Marcus Aurelius, is a combination of extracts from a book of mandata, some of which extend back to the time of Augustus, together with provisions of statutes, senatus con­sulta, provincial edicts, etc., to furnish administrative regulations for the financial activities of the supervisor of imperial property in Egypt.²¹ Certain institutions came regularly to be attributed by the jurists to the mandata. Kreller classified five fields which were regulated by mandata: (1) questions of jurisdiction, (2) provisions upholding discipline, (3) regulations relating to military command, (4) rules pertaining to civil administration, and (5) the greatest number, provisions respecting the police and the penal activity of government officials.²² According to Finkelstein therewere two main groups: (1) general rulings regarding official conduct, and (2) matters of court pro­cedure and criminal law; there were also, (3) a few matters of wider impor­tance, such as soldiers’ wills and illicit associations.¹⁴ Of these, mandata respecting procedure, soldiers’ wills and private associations are illustrated above by extracts from the writings of jurists.²’

C.