a Roman jurist, who, as appears from Dig. 1
. tit. 19. s. 3.2, and from other passages in the Digest, wrote at least as late as the reign (A. D. 198-211) of Severus and Antoninus (i. e.
Septimius Severus and Caracalla).
In a passage of Lampridius (Alex. Sev.
68) which, either from interpolation or from the inaccuracy of the author, abounds with anachronisms, Callistratus is stated to have been a disciple of Papinian, and to have been one of the council of Alexander Severus.
This statement may be correct, notwithstanding the suspicious character of the source whence it is derived.
The numerous extracts from Callistratus in the Digest occupy eighteen pages in Hommel's Palingenesia Pandectarum ;
and the fact that he is cited by no other jurist in the Digest, may be accounted for by observing, that the Digest contains extracts from few jurists of importance subsequent to Callistratus.
The extracts from Callistratus are taken from works bearing the following titles :
The titles of the first three of these works require some explanation.
The treatise de Cognitionibus
relates to those causes which were heard, investigated, and decided by the emperor, the governor of a province, or other magistrate, without the intervention of judices.
This departure from the ordinary course of the civil law took place, even before Diocletian's generalabolition of the ordojudiciorum, sometimesby virtue of the imperial prerogative, and in some cases was regularly practised for the purpose of affording equitable relief where the strict civil law gave no remedy, instead of resorting to the more tortuous system of legal fictions and equitable actions. (Herm. Cannegieter, Observ. Jur. Rom.
lib. 1. c.9.)
What is meant by Edictum Monitorium
is by no means clear. Haubold (de Edictis Monitoriis ac Brevibus,
Lips. 1804), thinks, that monitory edicts are not special writs of notice or summons directed to the parties in the course of a cause, but those general clauses of the edictum perpetuum which relate to the law of procedure, giving actions and other remedies on certain conditions, and therefore, tacitly at least, containing warnings as to the consequences of irregularity or nonfulfilment of the prescribed conditions.
The fragments of Callistratus certainly afford much support to this view. Haubold distinguishes the edictum monitorium from the edictum breve, upon which Paulus wrote a treatise.
The latter he supposes to consist of those new clauses, which, in process of time, were added as an appendage to the edictum perpetuum, after the main body of it had acquired a constant form.
The phrase de Jure Fisci et Populi
appears anomalous, but it occurs elsewhere. (See Paulus. Recept. Sent.
5.12.) Lampridius also (Alex. Sev.
15) writes, that Alexander Severus "leges de jure populi et fisci moderatas et infinitas (?) sanxit." Probably under the phrase "jus populi" must here be understood the law relating to the aerarium, or to the area publica (which latter, practically as well as theoretically, was at the disposal of the senate) as distinguished from the fiscus, which was the emperor's own, not as res privata, but as property attached to the imperial dignity. (Vopisc. Aurelian.
The principal commentator on Callistratus is Edm. Merillius, whose Commentarius ad Libros duo Quaestionum Callistrati
is inserted in Otto's "Thesaurus," 3.613-634.
A dissertation by And. W. Cramer, de Juvenibus apud Callistratum JCtum,
appeared at Kiel, 8vo. 1814.
Confusion between Callistratus the Jurist and Callistratus of the Digest
Cujas (in his preface to his Latin translation of the 60th book of the Basilica, reprinted at the beginning of the 7th volume of Fabrot's edition) mentions among the commentators on the Basilica a jurist named Callistratus. Fabricius also supposes the Callistratus of the Basilica to have been different from the Callistratus of the Digest. Suarez naturally expresses strong doubts as to the existence of a later Callistratus; for there are many other asserted duplicate names, as Modestinus, Theophilus, Thalelaeus, Stephanus, Dorotheus, Cyrillus, Theodorus, Isidorus; but Reiz has shewn, in several instances, that the asserted later commentator, bearing the name of a prior jurist, is a fictitious entity.
The name of the prior jurist has perhaps been sometimes attributed to the scholiast who cites him; but we believe it would appear, upon examination, that the existence of two sets of jurists of the same names but different dates has gained credit partly from the mendacious inventions and supposititious citations of Nic. Comnenus Papadopoli, and partly from a very general misunderstanding of the mode in which the scholia on the Basilica were formed.
These scholia were really formed thus : extracts from ancient jurists and antecedent commentators on the collections of Justinian were appended to certain passages of the text of the Basilica which they served to elucidate.
These extracts were sometimes interpolated or otherwise altered, and were mingled with glosses posterior to the Basilica. Thus, they were confounded with the latter, and were not unnaturally supposed to be posterior in date to the work which they explained.
The determination of the question as to the existence of a duplicate Callistratus may be helped by the following list of the passages in the Basilica (ed. Fabrot), where the name is mentioned.
It is taken from Fabr. Bibl. Graec.
xii. p. 440, and the parentheses ( ) denote a reference not to the text, but to a Greek scholiast.
"Callistratus JCtus, 1.257, 2.36, 315, 512, 3.206, iv. (263), 292, 358, 507, (568,) 810, 833, 5.10, 734, 778, 788, vi. (158), 436, 468, 490, 677, 680, 702, 703, 7.439, 515, 537, 564, 585, 628, 687, 710, 715, 783, 803, 827, 833, 836, 837, 869, 871, 888." On reference to these passages, we find nothing to indicate a Graeco-Roman jurist Callistratus.
Bertrandus, de Jurisperitis,
1.100.27; Aug. Jenichen, Ep. Singular. de Callistrato JCto,
4to. Lips. 1742; Zimmern. R. R. G.
1.101; Suarez, Notitia Basilicorum,
ed. Pohl. Lips.1804,§§ 34, 41.