N. 5 – 2006 – Memorie
“De cognitionibus” by Callistratus: the addressee and genre (revisiting
genre peculiarities of the public law treatises by lawyers of the Severus
period)
53 fragments (14.5 columns
according to the edition of O. Lenel) remain from the treatise “De cognitionibus” (in six books)
written by Callistratus during the reign of Septimius Severus. Interesting and
sometimes unique evidences that are found in it are widely used by contemporary
historians and romanists. In order to appreciate accordingly their credibility
and information capacity it is essential to have an understanding of the
context and, in particular, of the genre belonging and addressee of the famous
treatise. In this regard certain issues still remain unclear.
F. Shultz considered this
treatise among monographs on law of procedure without giving any reasoning to
support such a point of view[1].
In a monograph on this treatise
R. Bonini stated a certain similarity between the content of some of its
fragments with the Ulpian’s treatise “De officio proconsulis”. In his opinion, one shouldn’t
lay much emphasis on this similarity. Even though in a certain part of
Callistratus’s treatise the provincial magistrate comes into the
spotlight, nevertheless, this treatise is substantially different from the
“De officio…”
writings both in the system of material presentation and in its substance[2].
However R. Bonini didn’t show to what legal literature genre precisely
belongs this treatise and to whom is it addressed avoiding thereby giving a
general characteristic.
S. Puliatti, proving in his
monograph on the “De iure fisci”
treatise that Callistratus had a provincial background, described “De cognitionibus” as a writing
dedicated to judicial and administrative procedures typical for the province
and in its content generally coinciding with the treatises “De officio proconsulis”[3].
But S. Puliatti doesn’t use this observance to come to a conclusion on
the belonging of this treatise to a certain genre.
As I can see it, the treatise
“De cognitionibus” as well
as the Ulpian’s treatise “De
officio proconsulis” is a practical guide addressed to the province
governors of the Severus period. To prove this thesis, we shall compare the
characters of each of the treatises. To my knowledge, nobody has done this before.
109 fragments remain from
Ulpian’s treatise, written in ten books (24 columns according to the
edition of O. Lenel). Thus, the degree of integrity is quite the same for both
texts and is extremely substantial as compared to the integrity of the other legal
texts of the day, which gives us a possibility to compare them.
The Ulpian’s treatise may
by divided into three major parts: 1) an introduction contained in the first
two books is concentrated on a general characteristic of the governor’s
responsibilities and his jurisdiction. 2) A section in books three to six on
allocation of honorary posts and duties in the municipia and on private law. Apparently, their common point is
that in both cases disputable matters are considered according to procedures for
private persons (iudicia privata). 3)
A section on criminal procedure and law (ius
publicum) in books seven to ten.
The fact that the structure of
the main part of the treatise conforms fully to the main responsibilities of
the governor of a peaceful province (not situated on the border): provision for
regular tax and tribute revenues by care for the municipal finances and
equitable distribution of honorary posts and duties in municipia, as well as maintenance of the public order by means of
criminal procedure[4].
Several particular features may be deducted from this treatise that are typical
for practice guides and are addressed to the province governors. F. Schultz
pointed out such features as the exoteric style, intended for nonlegal readers,
and usage of the imperial constitution as the main source[5].
It should be noted that referring to the imperial constitutions, Ulpian quotes
most often those intended for the province governors: imperial mandates (three
quotes: Coll. 11.7.4; D. 1.16.6.3; 47.11.6pr.) and rescripts
addresses to certain governors. 61 rescripts are contained in Justinian’s
Digests and other surviving legal compellations and separate works[6].
30 of them, that is almost a half of the total quantity, are mentioned in
Ulpian’s treatise “De officio
proconsulis”[7].
The practical guides as were the
treatises “On the duties of governors” are also characterized by
special attention to most typical and frequently encountered in practice
situations and decisions. That is why such expressions as “governors use
to (solent)”, or “in most
cases (plerumque, magis est)
governors act that way”, or “there is a wealth of examples of
governors acting that way”, or “many governors (plerique presidium) act that way, or
“it is usual practice (frequens est)
in court of governor”, or “it is a custom (moris est) for the governor to act such way” can be found
quite often in Ulpian’s texts[8].
Since, as Ulpian notes in the
beginning of his treatise, “universal jurisdiction is vested in the
proconsul” (D. 1.16.7.2)
“there is no such case in province that he could not resolve
himself” (D. 1.16.9pr.), it is
sometimes specially indicated that this case lies in the sphere of cases that
governors use to resolve “ad
praesidis cognitionem spectat” and “ad executionem praesidis pertinet”.
In treatises addressed to the
province governors, Ulpian’s in the first place, a considerable attention
is paid to local customs and norms that cannot be set aside by the central
authorities[9].
Finally, Ulpian’s treatise
“De officio proconsulis”
is characterized not only by the attention to the content but also to the form
of activity of the governor – etiquette and rituals. The introduction to
his text is to a considerable extent dedicated to this matter, including two
books on the arrival in the province and general questions (procedural in the
first place).
Speaking about the structure of
the treatise “De cognitionibus”,
it is possible to point out (following O. Lenel) an introduction, then a
definition of the main four categories of cases considered in an exceptional
order (D. 50.13.5pr.), and a subsequent material presentation
in separate categories.
In the introduction the
governors are explained the meaning of the wording that constantly appears in
the imperial rescripts addressed to them (D.
1.18.9). After that the governors are told, with reference to the imperial mandata, how should they behave in order
to prevent impairment of their merits (D.
1.18.19). Recommendations of similar content and form may be found in
Ulpian’s treaties “De officio
proconsulis” (cf. D. 1.16.9.2
– relating to the behavior during court proceedings allowing the
proconsul to maintain his “dignity”).
It can readily be seen, the
Callistratus’s monograph is composed of the introduction and three main
sections: 1) Honorary posts and duties (first category of cases), as well as
civic honor (existimatio) (second category) 2) Proceedings in private cases and
private law (third category) and 3) Maintenance of the civic order connected to
the criminal proceedings and law (fourth category).
The first two sections of the
main part correspond to the second section of the Ulpian’s text,
dedicated to municipal cases and ius
privatum. The last section in Callistratus’s text almost entirely
corresponds to the last Ulpian’s section and even ends, if the
reconstruction by O. Lenel is to be trusted, by a title on the property of the
convicts. Only a short conclusion on the departure of the governor from the
province is lacking. The principle itself of material systematization
introduced by Callistratus, is in full accord with the hereinabove defined
structure of the main responsibilities of the governor.
Finally, the province
governor’s figure takes center in all Callistratus’s text and not
in a part thereof. This fact is confirmed by a multitude of direct and indirect
evidences, but not to the contrary where a judge would not be a governor.
At a later stage we can often
see recommendations to the governors (D.
1.18.9; 22.5.36; 50.1.37; 50.6.6.9; 48.19.27pr.; 48.19.28.3; 50.4.14.3), four
references to the imperial mandates (D.
48.19.27.1-2; 1.18.19; 50.10.7.1) (no other roman legal treatise has more than
four such references), as well as references to imperial rescripts addresses to
the governors. In a comparatively small Callistratus’s treatise, 10 such
rescripts are mentioned[10],
and moreover, no other roman legal treatise (excluding the Ulpian’s work)
has over two such allusions.
Further more, Callistratus pays much
more attention to the local customs and norms(D. 50.6.1; 50.2.11; 22.5.3.6; 50.9.5) and situations, most
frequently observed in governor’s practice[11].
There is an expression proper for treatises-instructions addressed: “praesidum provinciarum cognitio est…”
(D. 50.1.37).
All that gives us a possibility
to assert that both the treatises by Callistratus and Ulpian were a practical
guide for the governors.