Cambridge Ancient Hi.. - Index of

sources of law and law making 243
not, however, accomplish this plan, but a century later it was taken up by
Justinian and carried through. The result is the Digest (see p. 249 below).
Law-making utterances of the emperor were not confined to the enactment
of leges generales. The absolute monarchy increased the tendency to
accord legislative authority to his other pronouncements in the fields of
both law and administration. These took many forms: official interpretations
of legislation (scripta ad edictum), instructions to imperial officials
(mandata), judgements of the emperor’s court (decreta, sententiae), imperial
answers (rescripta) to individual supplications (preces) or to questions from
office-holders engaged in some legal process (consultatio). Rescripts to individuals
(rescripta personalia) usually contained merely a ruling on the law and
did nothing but apply the existing law (rescripta simplicia). Frequently the
petitioner requested some special privilege, which, if granted to an individual,
was called an adnotatio or an adnotatio specialis (a marginal note, or a
special marginal note). They could only be granted by the emperor personally,
and the grant was originally made in the form of an entry on the margin
of the petition. A privilege for a province, town or other corporate body
was called a pragmaticum or pragmatica sanctio. Examples were remissions of
taxation, moratoria, immunities from compulsory labour and charters for
the Catholic church. The same term included ad hoc disqualifications, such
as the disabilities imposed on the Donatists in Africa.
Even oral utterances of the emperor (interlocutiones) could acquire statutory
authority, as for instance where he declared a principle during a session
of his court, or at a meeting of his consistorium, or indeed in any other imperial
speech. Although the absolute conception of the imperial office
simplified the business of legislation, it also entailed the danger that the legal
system would be subverted from within, for grants of imperial graces and
favours such as exemptions from a statute, or immunities, whether from the
emperor himself or in his name, claimed the same status as general legislation.
The system therefore had to cope not only with the ruler’s policy of
granting genuine graces and favours, but also with the corrupt multiplication
of such dispensations. For the emperor’s closest ministers knew every means
of procuring the imperial signature, and petitioners sought to obtain privileges
not only by laying out money but also by misrepresenting the facts.
Emperors made repeated assaults on abuse, especially of rescripts.
Rescripts contradictory to the general law were to be treated as invalid; privileges
were only to take effect if a petitioner had expressly applied to be
exempted from the force of a particular statute; imperial favours must not
encroach on the private rights of third parties. Further, rescripts were to be
used only in the case for which they had been issued, a rule which Justinian
abandoned, reverting to the earlier position. 20 Shortly afterwards Justinian
20 CJ i.14.12; vii.45.13.
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