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p351 Constitutiones

Article by George Long, M.A., Fellow of Trinity College
on p351 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CONSTITUTIO′NES. "Constitutio principis," says Gaius (I.5), " is that which the imperator has constituted by decretum, edictum, or epistola; nor has it ever been doubted that such constitutio has the force of law, inasmuch as by law the imperator receives the imperium." Hence such laws were often called principales constitutiones. The word constitutio is used in the Digest (4 tit. 2 s9 §3) to signify an interlocutory of the praetor.

An imperial constitutio in its widest sense might mean everything by which the head of the state declared his pleasure, either in a matter of legislation, administration, or jurisdiction. A decretum was a judgment in a matter in dispute between two parties which came before him, either in the way of appeal or in the first instance. Edicta, so called from their analogy to the old edict (Gaius, I.93), edictales leges, generales leges, leges perpetuae, &c. were laws binding on all the emperor's subjects. Under the general head of rescripta (Gaius, I.72, 73, &c.) were contained epistolae, subscriptiones, and annotationes (Gaius, I. 94, 96, 104), which were the answers of the emperor to those who consulted him either as public functionaries or individuals (Plin. Ep. X.2). The epistola, as the name implies, was in the form of a letter: subscriptiones and annotationes were short answers to questions propounded to the emperor, and written at the foot or margin of the paper which contained the questions. In the time of Tiberius, the word rescriptum had hardly obtained the legal signification of the time of Gaius (Tacit. Ann. VI.9). It is evident that decreta and rescripta could not from their nature have the force of leges generales, but inasmuch as these determinations in particular cases might be of general application, they might gradually obtain the force of law.

Under the early emperors, at least in the time of Augustus, many leges were enacted, and in his time, and that of his successors, to about the time of Hadrian, we find mention of numerous senatusconsulta. In fact the emperor, in whom the supreme power was vested from the time of Augustus, exercised his power through the medium of a senatus-consultum, which he introduced by an oratio or libellus, and the senatus-consultum was said to be made "imperatore auctore." Probably, about the time of Hadrian, senatus-consulta became less common, and finally imperial constitutiones became the common form in which a law was made.

At a later period, in the Institutes, it is declared that whatever the imperator determined (constituit) by epistola, or decided judicially (cognoscens decrevit), or declared by edict, was law; with this limitation, that those constitutions were not laws which in their nature were limited to special cases.

Under the general head of constitutiones we also read of mandata, or instructions by the Caesar to his officers.

Many of these constitutions are preserved in their original form in the extant codes. [Codex Theodosianus, &c.].


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