a court of justice; and, unless it was rescinded in a succeeding reign, its validity as a precedent seems to have been unquestioned. The Rescriptum was technically an answer to a letter by which the advice of the Princeps was sought; but the word soon came to be used for the Princeps’ letter (Epistola) itself. It contained instructions either on administrative or on judicial matters. In its first capacity, it was addressed to some public official subordinate to the emperor; in its second, it was addressed either to the judge or to the litigant. It was elicited either as an answer to the consultation (Consultatio) of an official or a judge who hesitated as to his course of procedure, or as a reply to a petition (Libellus, Supplicatio) of one of the parties to a suit. The Rescript which dealt with judicial matters might settle a doubtful point of law by showing, or extending, the application of an existing principle to a new case. The Rescript was the most powerful instrument of law-making wielded by the Princeps. The definiteness of its form gave the opinion an authority which, once accepted by a successor, could not easily be questioned; while the immense area over which these letters of advice were sent kept the Princeps in touch with the whole provincial world, and caused him to be regarded by the provincials as the greatest and most authentic interpreter of law. The Edicts, Decrees, and Rescripts came to be described by the collective name of ‘Imperial Constitutions’ (Constitutiones Principum), and by the time of Gaius they were held to possess, in a uniform degree, ‘the binding force of law Ref. 147.’ On a lower level, with respect to legal validity, stood the Mandatum. This was a general instruction given to subordinate officials, for the most part to governors of provinces, and dealt usually with administrative matters, although sometimes it had reference to a point of law. Such mandates might be, and often were, withdrawn by the Princeps who had issued them, or by his successor. Hence it was impossible to attach perpetual validity to their terms. But, when a mandate dealt with a precise point of law, and was renewed by successive emperors, it must have acquired the force of a Rescript Ref. 148.
§ 17.: Changes in Procedure under the Principate.
The creation of the office of Princeps, and the extension of the authority of the Senate, exercised an influence on jurisdiction as well as on legislation. The two new features of the judicial system were the growth of extraordinary jurisdiction and the growth of Courts of Appeal. The name ‘extraordinary’ (extra ordinem) was given to all jurisdiction other than that of the ordinary civil and criminal courts (Judicia Ordinaria) which had survived the Republic. It often dealt with cases not fully provided for by these courts; and its chief characteristic was that the cognizance (Cognitio), both on the question of law and on the question of fact, was undertaken solely by the magistrate or by a delegate nominated by him (judex extra ordinem datus) Ref. 149. In civil matters, the Princeps sat as such an extraordinary court, and either exercised, or delegated, jurisdiction in matters such as Trust or Guardianship. He might take other cases, if he willed; but his jurisdiction was always voluntary; and, if he declined to act, the case went before the Praetor. In criminal matters, two high courts of voluntary and extraordinary jurisdiction were created—that of the Princeps and that of the Senate. The Princeps might take any case, but often limited his intervention to crimes committed by imperial servants or by officers of the army. The jurisdiction of the Senate was especially concerned with offences committed by members of the upper ranks of society, or with crimes of a definitely political character.
The system of appeal introduced by the Principate was of a complicated character, and many of its features are imperfectly understood. It seems that, at Rome, the Princeps could in civil matters veto, and perhaps alter, the decision of a Praetor, but could not annul the verdict of a Judex, except by ordering a new trial Ref. 150. He could of course vary the decisions of his own delegates in matters of extraordinary jurisdiction. In criminal matters the Princeps does not seem to have had the power of altering the decisions of the Quaestiones Perpetuae; but he could probably order a new trial Ref. 151. There was technically no right of appeal from the Senate to the Princeps Ref. 152; but the Princeps could exercise what was practically a power of pardon by vetoing the decisions of the Senate in virtue of his Tribunicia Potestas. In the provincial world, the right of appeal was at first regulated in accordance with the distinction between Caesar’s provinces and the provinces of the Roman people. From Caesar’s provinces the appeal lay to Caesar; from the other provinces it came to the Consuls and, at least if it was concerned with a criminal matter, was by them transmitted to the Senate. But we know that this system of dual jurisdiction was breaking down even in the first century of the Principate, and that the appellate jurisdiction of the Princeps was tending to encroach on that of the Consuls and Senate Ref. 153. The extent to which it had broken down in the time of Gaius is unknown. But we know that, by the end of the second century a. d., the Princeps was the Court of Appeal for the whole provincial world. For this purpose he was usually represented by the Prefect of the Praetorian Guard.
§ 18.: The work of the Jurisconsults under the Principate.
The official organs which made Roman law were now, as under the Republic, assisted by the unofficial or semi-official activity of the jurisconsults. Some of these teachers were now given public recognition as authoritative sources of law. We are told that Augustus granted the right to certain jurisconsults to respond under imperial authority; and this practice was continued by his successors on the throne. Amongst the earlier of these patented jurisconsults was Masurius Sabinus, of the time of the Emperor Tiberius Ref. 154. The granting of this privilege did not diminish the activity of the unpatented lawyers Ref. 155, although it doubtless diminished their influence; but it gave the response of its possessor as authoritative a character as though it had proceeded from the emperor himself Ref. 156. The response was usually elicited by a party to the suit and presented to the Judex Ref. 157. He was bound by the decision Ref. 158; but naturally only on the assumption that the facts as stated in the petition which elicited the Rescript were the facts as exhibited in the course of the trial Ref. 159 It may have been understood that the opinion of only one patented counsellor was to be sought in any single case; for in the early Principate there seems to have been no provision determining the conduct of a Judex when the opinions of his advisers differed. Later it must have been possible to elicit the opinion of several patented jurists on a single issue; for the Emperor Hadrian framed the rule that, in the case of conflicting responses, a Judex should be entitled to use his own discretion Ref. 160.
§ 19.: Literary activity in the domain of Law to the time of Gaius.
The literary activity in the domain of law, during the period which intervened between the accession of Augustus and the time of Gaius, was of the most varied character Ref. 161. Religious law (Jus Pontificium) attracted the attention of Capito. Labeo wrote on the Twelve Tables. The Praetor’s Edict was the subject of studies by Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the Curule Aediles was commented on by Caelius Sabinus. Salvius Julianus, besides his redaction of the Edicts Ref. 162, produced a work known as Digesta, which perhaps assumed the form of detailed explanations of points of law systematically arranged. Comprehensive works on the Civil Law were furnished by Masurius Sabinus and Caius Cassius Longinus. Other jurists produced monographs on special branches of law, as the younger Nerva on Usucapion, Pedius on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote commentaries on the works of their predecessors. It was thus that Aristo dealt with Labeo, and Pomponius with Sabinus. Other works took the form of Epistolae, which furnished opinions on special cases which had been submitted to their author, and collections of Problems (Quaestiones). Nor was history neglected. There must have been much of it in Labeo’s commentary on the Twelve Tables; and Pomponius wrote a Handbook (Enchiridion), which contained a sketch of the legal history of Rome from the earliest times.
