previous next


CONSTITUTIO´NES are the enactments of the Roman emperors, in the exercise of their legislative authority, which (Gaius, 1.5) “legis vicem obtinent,” have statutory force, “cum ipse imperator per legem imperium accipiat:” so, too, Justinian says (Inst. 1.2, 6) that they are binding because “populus ei et in eum omne imperium suum et potestatem concessit.” They comprise the following varieties:--

i. Orationes, by which, in the earlier imperial period, the emperor submitted a “bill” to the senate (Inst. 2.17, 7; Dig. 2, 12, 1, 1, &c.); they were regarded as law apart from the senatusconsulta by which, in theory, they received the character of “acts,” and are often cited as such in preference to the latter.

ii. Edicta or edictales constitutiones, general rules of law made by the emperor, at any rate at first, after the analogy of the edicts of the republican magistrates (for examples, see Gaius, 1.55, 93; 3.172; Inst. 2.6, 14).

iii. Mandata, by which the emperor delegated his authority to other magistrates, such as legati, praesides, and praefecti; in the main they were merely administrative regulations, but may be regarded as laws proper so far as they contained general instructions as to the exercise of the delegated authority (Dig. 1, 16, 6, 3; 1, 18, 3 and 19, &c.).

iv. Decreta and rescripta, issued by the emperor in his capacity as praetor, judge, or supreme jurisconsult: up to the time of Constantine they were by far the commonest kind of constitutio. Decreta were determinations of suits by the emperor either as sitting in a court of first instance or on appeal (Sueton. Octav. 33): rescripta (Tac. Ann. 6.9) were provisional decisions on the legal point at issue (as to which he had been consulted by a magistrate or a private individual, Pliny, Ep. x. 2), the facts being left to be inquired into, and a final judgment given, by another magistrate or judex. Technically rescripta were of two kinds, epistolae and subscriptiones or adnotationes. The first are independent replies on consultation (Dig. 1, 4, 1, 1; Inst. 3.20, 4); many issued by Hadrian, Severus, and Caracalla being extant in the Digest. The second are brief opinions on cases [p. 1.532]submitted to the emperor by petition, and written at the foot of the latter; this form being most commonly employed in answering private persons (Dig. 1, 4, 1, 1; Cod. 1, 23, 6, &c.). There has been much difference of opinion as to whether decreta and rescripta had (as precedents) the force of general law, which is denied them by Savigny (System, i. pp. 125-141), but the evidence seems strong the other way: e. g. Ulpian says (Dig. 1, 4, 1, pr.), “quodcunque imperator vel per epistolam constituit vel cognoscens decrevit legem esse constat;” cf. Cod. 1, 14, 12. In the Eastern empire a peculiar kind of rescripts acquired the name of “pragmatic sanctions:” they were drawn up in a peculiar and solemn form, and were more highly taxed than others. Zeno restricted their use to petitions preferred by corporations.

In framing constitutions of any kind the emperor was assisted by a council called consistorium (Cod. 1, 14, 8), of which the praefects of the city and praetorian guard and the most celebrated jurists were members, and which gradually assumed the character of a council of state. [CONSISTORIUM] It was regularly consulted by the emperor in the exercise of his supreme appellate jurisdiction, and the chamber in which such consultations were held was, as early as M. Aurelius, called auditorium principis. Many of the imperial constitutions are preserved in their original form in the extant codes [CODEX THEODOSIANUS &c.].


hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: