give his reasons, reduced it to writing and sent it to the court
under seal. Augustus does not seem to have contemplated the
possibility of conflicting responses being tendered from two or more
jurists equally privileged. It was an awkward predicament for a
judge to be placed in. Hadrian solved the difficulty by declaring
that in such a case the judge should be entitled to use his own
discretion.[1] That on receiving a response with which he was
dissatisfied he could go on calling for others until he got one to his
mind, and then pronounce judgment in accordance with it on the
round that there was difference of opinion, is extremely unlikely.
The more probable explanation of Hadrian's rescript is, that the
number of patented responding counsel was very limited; that a
judge, if he desired their assistance, was required by this rescript
to consult them all (quorum omnium si, &c.); that, if they were
unanimous, but only then, their opinion had force of statute (legis
vicem optinet); and that when they differed the judge must decide
for himself.
Constitutions of the Emperors.[2]—Gaius and Ulpian concur in holding that every imperial constitution, whether in the shape of Edicts of Emperors. rescript, decree or edict, had the force of statute. It may be that by the time of Ulpian that was the prevailing opinion; but modern criticism is disposed to regard the dictum of Gaius, written in the time of Antoninus Pius, as coloured by his Asiatic notions, and not quite accurate so far at least as the edicts were concerned. Apart from executive laws (leges datae), the early imperial edicts were theoretically rather part of the jus honorarium. As supreme magistrate the emperor had the same jus edicendi that consuls and praetors had had before him, and used it as they did to indicate some course of action he meant to adopt and follow or some relief he proposed to grant. His edicts were as a rule drawn up in writing in the imperial council and publicly notified in all parts of the Empire. His range, of course in respect of his imperium, was much greater than that of the praetors had been; for his authority endured for life, and extended over the whole Empire and every department of government. But in principle, it is thought, his successor on the throne was no more bound to adopt any of his edicts than a praetor was to adopt those of his predecessors. That it was not unusual for an edict to be renewed, and that it occasionally happened that the renewal was not by the immediate successor of its original author, are manifest from various passages in the texts. Sometimes, when its utility had stood the test of years, it was transmuted into a senatusconsult; this fact proves of itself that an edict per se had not the effect of statute. But their adoption by a succession of two or three sovereigns, whose reigns were of average duration, may have been held sufficient to give them the character of consuetudinary law; and, by a not unnatural process, unreflecting public opinion may have come to impute force of statute to the edict itself rather than to the longa consuetudo that followed on it, thus paving the way for the assertion by the sovereigns of the later Empire of an absolute right of legislation, and for the recognition of the lex edictalis as the only form of statute.
The imperial rescripts and decrees (rescripta, decreta) apparently acquired force of law (legis vicem obtinet) pretty early in Rescripts and Decrees. the Empire, and their operation was not theoretically limited to the lifetime of the prince from whom they had proceeded. But they were not directly acts of legislation. In both the emperor theoretically did no more than authoritatively interpret existing law, although the boundary between interpretation and new law, sometimes difficult to define, was not always closely adhered to. Thus the decretum Marci, penalizing procedure by self-help, and the epistula Hadriani, introducing the beneficium divisionis among co-sureties, are notable instances of authoritative interpretation. The rescript was strictly a written answer by the emperor to a petition, either by an official or a private party, for an instruction as to how the law was to be applied in any particular case to the facts set forth: when the answer was in a separate writing it was usually spoken of as an epistula; when noted at the foot of the application its technical name was subscriptio. But sometimes also general orders of the emperors addressed to some official and intended for a province or particular community were classed under the head of rescripts. The decree was the emperor's ruling, orally announced, in a case submitted to him judicially; it might be when it had been brought before him in the first instance extra ordinem, or when it had been removed by supplicatio from an inferior court in its earliest stage, or when it came before him by appeal. Such decrees were duly recorded and kept apud acta. .It was theoretically as a judge that the emperor pronounced his decree, though in practice he sometimes went beyond the case in hand, evolving new doctrines. Proceeding as it did from the fountain of authoritative interpretation, the decree had a value far beyond that of the sentence of an inferior court (which was law only as between the parties), and formed a precedent which governed all future cases involving the same question. Those rescripts and decrees constituted one of the most important sources of the law during the first three centuries of the Empire, and were elaborated with the assistance of the most eminent jurists of the day, the rescripts being the special charge of the magister libellorum, From the time of the Gordians to that of the abdication of Diocletian they were almost the only channel of the jus scriptum that remained.
A fourth class of imperial constitutions were the so-called mandata. Mandata. These, however, were mainly of the nature of instructions by the/emperors to individual imperial, officials, similar to edicts, and dealt with public law for the most part.
Professional Jurisprudence.—The present period of legal history is by modern writers sometimes called “the classical age of The Jurists. jurisprudence,” though that term is more usually and correctly restricted to the years between Hadrian and the close of Severus Alexander's reign. It has been called “classical,” on the analogy of the Augustan age of literature, from the celebrity of the jurists who flourished during it and the scientific pre-eminence of their works. For accounts of the great jurists, see articles Gaius, &c., and also H. J. Roby's Introduction to the Study of Justinian's Digest[3] and Professor Karlowa's Rechtsgeschichte.[4] For an account of the extant remains of their writings, such as the Institutes of Gaius, the Rules of Ulpian, the Sentences of Paul and a variety of other works, reference may be made to Muirhead's Historical Introduction to the Private Law of Rome, where a brief account of the jurists is also given.[5]
ii. Substantive Changes in the Law.
Concession of Peculiar Privileges to Soldiers.—While the period with which we are dealing saw the substantial disappearance of the distinction between citizen and peregrin, it witnessed the expansion of another—that between soldiers and civilians (milites, pagani). The most remarkable effluxes of the jus militare (as it is sometimes called) were the military testament Military Testaments. and the castrense peculium; The first was practically exempted from all the rules of the jus civile and the praetors' edict alike as to the form and substance of last wills. It might be in writing, by word of mouth, by the unspoken signs perhaps of a dying man; all that was required was the voluntas so manifested as not to be mistaken. More extraordinary still—it was sustained even though its provisions ran counter to the most cherished rules of the common law. Contrary to the maxim that no man could dispense with the institution of an heir or die partly testate and partly intestate, a soldier might dispose of part of his estate by testament with or without nomination of an heir, and, leave the rest to descend to his heirs ab intestato. Contrary also to the maxim semel heres semper heres, he might give his estate to A for life or for a term of years, or until the occurrence of some event, with remainder to B. Contrary to the general rule, a Latin or peregrin, or an unmarried or married but childless person, might take an inheritance or a bequest from a soldier as freely as could a citizen with children. His testament, in so far as it disposed only of bona castrensia, was not affected by capitis deminutio minima. It was not invalidated by praeterition of sui heredes, nor could they challenge it because they had less under it than their “legitim”; nor could the instituted heir claim a Falcidian fourth, even though nine-tenths of the succession had been assigned to legatees. Finally, a later testament did not nullify an earlier one, if it appeared to be the intention of the soldier testator that they should be read together.
- ↑ Gaius, i. 7; Justinian, Inst. i. 2, § 8. The passages from Pomponius in Dig. i. 2, 2, §§ 48, 49 are of doubtful meaning, and different interpretations of them have been given. Cf. Sohm. Institutionen (translation by Ledlie, 2nd ed.), p. 97; Girard, Manuel, p. 70; Kipp, Geschichte d. Quellen, p. 99.
- ↑ Gai. i. 5; Ulp., in Dig., i. 4, fr. 1, § 1; Mommsen, Röm. Staatsrecht, ii. 843 seq.; Wlassak, Krit. Studien zur Theorie der Rechtsquellen im Zeitalter d. klass. Juristen (Gratz, 1884); A. Pernice (crit. Wlassak), in Zeitschr. d. Sav. Stift. (1885), vi. Röm. Abtheil. 293 seq.; Karlowa, Röm. Rechtsgesch. i. § 85; Kipp, Quellen. 59 seq.
- ↑ Cambridge, 1884, chaps. ix.-xv.
- ↑ Leipzig, 1885, i. §§ 87-92. See also Krüger, Geschichte d. Quellen, §§ 18-27, and, for the period from Augustus to Hadrian, Bremer, Jurisprudentia Antehadriana, ii.
- ↑ Edited by Goudy, 1889, §§ 61-65. See also Krüger, Geschichte d. Quellen, §§ 18-27; Lenel, Palingenesia Juris Civilis (2 vols., Leipzig, 1888-89), a work which contains all the texts of the ante-Justinian jurists, as contained in the Digest and other sources, arranged systematically, with valuable critical and explanatory notes, but excluding the Institutes of Gaius, Paul's Sentences and Ulpian's Rules.
