CONSTITUTIO´NES
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.].
[
J.B.M]
