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Decreta Frontiana


Some observations on D. 29,2,99 and the ‘law reports’ of Titius Aristo


In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review
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This article is about Roman ‘law reports’ in general, and particularly about the so-called decreta frontiana mentioned in D. 29,2,99 and not infrequently attributed to Titius Aristo. It is contended that Aristo was indeed the author of a great number of notae, responsa and epistulae, compiled by Sextus Pomponius a generation after Aristo’s death, but that he was not the author of ‘law reports’ entitled decreta Frontoniana or Frontiniana. All he did, was compose an observation (nota) on an appeal case decided by one of six possible consuls, called either Fronto, or Frontonianus, or even Frontinus, that Aristo had found in the consular commentarii. There is only one genuine Roman ‘law report’, and that isthe collection of cases decided by Septimius Severus and Caracalla as compiled by Julius Paulus. In the history of Roman legal literature, it is only in the Byzantine period that anything similar appears again.


Abstract

This article is about Roman ‘law reports’ in general, and particularly about the so-called decreta frontiana mentioned in D. 29,2,99 and not infrequently attributed to Titius Aristo. It is contended that Aristo was indeed the author of a great number of notae, responsa and epistulae, compiled by Sextus Pomponius a generation after Aristo’s death, but that he was not the author of ‘law reports’ entitled decreta Frontoniana or Frontiniana. All he did, was compose an observation (nota) on an appeal case decided by one of six possible consuls, called either Fronto, or Frontonianus, or even Frontinus, that Aristo had found in the consular commentarii. There is only one genuine Roman ‘law report’, and that isthe collection of cases decided by Septimius Severus and Caracalla as compiled by Julius Paulus. In the history of Roman legal literature, it is only in the Byzantine period that anything similar appears again.


Introduction


Law reporting was not among the favorite activities of Roman lawyers. In fact, the ‘reports’ of imperial decreta collected by Julius Paulus are the only compilation worthy of that description1. Nevertheless, collecting judicial decisions, especially of the imperial high court, is usually alleged to have been a special, though not a popular, activity of Roman lawyers2. Yet, an embarassing shortage of examples supports this thesis. One of the works that is invariably mentioned in this context are the Decreta Frontiana attributed to Titius Aristo3. It is only mentioned once in Justinian’s Digest,in D. 29,2,99, a passage taken from Pomponius’s treatise on senatus consulta 4:


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In view of some current misinterpretations of the Latin text of D. 29,2,99, I have considered it sensible to provide my own English translation beforehand. The crucial part of the text is the passage beginning with sanctum Cassium praetorem (‘it was held that the praetor Cassius’), followed by a second5 accusativus cum infinitivo-construction (recte pollicitum (‘had rightly decided to grant’)). The passage indicates that Aristo’s report refers to a decision by a higher court on appeal from a decision (decretum) by the praetor Cassius. The verb sancire means ‘to approve’, or ‘to confirm’, especially by the emperor6 and that verb is used here as a participium perfectum passivum in an accusativus cum infinitivo-construction, and certainly not as an adjective7.


The case is about two daughters who, being heredes sui, were unable at law to renounce their interest in the estate of their father. In spite of this, the praetor offered the opportunity to heredes sui ac necessarii to abstain from the estate (se abstinere ab hereditate)8. In the case at hand there was a problem, since only one of the heirs wished to invoke the beneficium abstinendi, whereas the other was prepared to take over the entire estate, including the liability for all the outstanding debts of the deceased (totum onus). The problem here was that all debts and choses in action of the deceased had already been partitioned among the heirs by operation of law (‘nomina ipso iure divisa’)9 and the fact that one of the heirs had succesfully invoked her beneficium abstinendi could not alter this, as it would have done if she had been a heres voluntarius, since she remained an heir at law even after abstaining from her interest in the estate10. There was another conundrum on account of this: the sister who wished to abstain remained joint owner at law of all the proprietary interests (iura in re) of the deceased in spite of having invoked the beneficium. There was only one way out of this predicament for the other sister: she could file a request with the praetor to grant her bonorum possessio of all the proprietary interests of the estate, and I believe this is what has happened here (see the clause bona paterna vindicare). A grant of bonorum possessio was only conceded causa cognita, meaning that it involved a thorough investigation of all facts and circumstances by the praetor. Cassius granted bonorum possessio to the petitioner, adding that she was consequently entitled to enforce all debts owed to the deceased as if she were sole heir (actio hereditaria utilis), denying all claims to the sister who had surrendered her interest in the estate. It was this decision that was approved by a higher instance11.


Ever since some rather casual observations by Lenel12, it has been taken for granted that the case of D. 29,2,99 is in some way related to the SC Vellaeanum 13, since, by accepting the entire onus of the estate of her father, the sister who did so became liable for the debts the other sister had incurred as a heres suus by operation of law for half of the debts of her father. In other words, by accepting the entire onus of the estate, the sister doing so interceded on behalf of the sister who had abstained. It is odd, though, that the text does not refer to a transfer of liabilities at all, but only to the transfer of the right to sue the debtors of the estate beyond the interest that already belonged to the sister who accepted the entire onus by operation of law. The real issue seems not to have been about assuming liabilities on behalf of others (and the resulting possible applicability of the SC Vellaeanum) at all, but about the question how the transfer of rights was to be achieved without the assignment of all individual choses in action of the other sister separately, since there was, in the case of abstention by a heres suus, no such thing as an accrual (ius accrescendi) of these rights by operation of law14. Cassius solved it by granting actiones utiles (not actiones in factum) to the sister who wished to accept the entire estate, meaning actions with the fiction that she was the sole heir of the deceased15.


This is, says Pomponius, a case reported by Aristo ‘in decretis Frontianis’. As a matter of fact, this does not necessarily mean that Aristo was the author, or the compiler, of the decreta Frontiana. What then are these decreta Frontiana and what precisely is Aristo’s connection with it?


Aristo


Titius16 Aristo, a pupil of Cassius17, was a lawyer working in Rome in the days of Trajan, whom he assisted in a courtcase as a member of his consi-lium 18. He was a contemporary of the younger Pliny, who knew him well and held him in high esteem. It is worthwhile to cite Pliny’s praise of Aristo in a letter to his friend Lucius Catilius Severus in extenso, since it contains a psychological profile (extremely rare for a Roman lawyer), which may provide some information on Aristo’s professional attitude:


What a knowledge he has of the law, whether relating to the state or to individuals! What a quantity of matters, what a quantity of precedents, what a mass of ancient lore, does he hold in his head! There is nothing you want to learn which he is not able to teach you. To me assuredly, whenever I am searching for some out-of-the-way information, he is a treasury of knowledge. To begin with, how reliable are his observations, and how weighty too, how modest and becoming his caution! What is there that he does not know offhand? Yet he constantly hesitates and deliberates, owing to the conflict of reasons, which, with his keen and powerful judgment, he traces up to their sources and first principles, distinguishing between them and balancing them. Add to this his abstemiousness at table and the sobriety of his attire. His very chamber and his couch itself always seem to me, when I look at them, to present a kind of image of old-world simplicity. All these qualities are set off by the grandeur of his soul, which does nothing with a view to display, and everything with a view to conscience, and seeks for the reward of virtuous deeds not from the applause of the vulgar, but from the deeds themselves. In short, none of your philosophers, who advertise their love of wisdom by their external appearance, will easily stand a comparison with such a man as this. He does not, to be sure, haunt the gymnasia or the public arcades, nor amuse his own leisure and that of others with lengthy dissertations. His time is spent in his toga and in the transaction of business. Many he assists in court, many more in consultation. Yet to none of your philosophers will he yield even the first place in moral purity, loyalty, integrity, or fortitude19.


Pliny’s depiction of the character of Aristo, a genuine Stoic if ever there was one20, is of interest, since he emphasizes that Aristo did not spent his time ‘with lengthy dissertations’ (disputationibus longis). He was, so it appears, first and foremost a practical lawyer (in toga negotiisque versatur), meaning that he was, if need be, available as an advocate, but primarily occupied in counselling litigants and their advocates (multos advocatione plures consilio iuvat)21. These assessments are confirmed by his literary legacy. Aristo is cited 77 times in Justinian’s Digest, but never from one of his books. Justinian’s compilators, moreover, clearly did not have one of his books at hand: Aristo’s name is not in the Index of lawyers whose books were used in compiling the Digest. When taking a look at Aristo’s work in Lenel’s Palingenesia, it is striking that – leaving aside the quotes from the writings of Ulpianus and Paulus (on which more later) – the bulk of the quotes (19) comes from the writings of but one author, Sextus Pomponius.


Pomponius was active in the reigns of Hadrian, Antoninus Pius and the divi fratres, Marcus Aurelius and Lucius Verus, that is between c. 120 and c. 170 AD, which makes him a generation younger than Aristo. He may not have known Aristo personally, but Neratius Priscus certainly did22. Neratius cites Aristo four times and he does so not by quoting from one of his books, but merely by quoting an opinion of Aristo that Neratius may have heard from Aristo personally or may have found in his correspondence with Aristo23. From the quotes in Pomponius’s writings, the same picture emerges: there is a reference to a written text by Aristo (without mentioning its title) in but two of the 19 Aristo-quotes in Pomponius24, one of which is so indefinite (ita Aristo scripsit) that it may not even refer to a particular book by Aristo, but to one of his written responsa, or to one of his letters (epistulae). All the other Aristo-quotes in Pomponius are to Aristo’s opinions, that is, without reference to a particular written text25. The question is therefore to which book or other text by Aristo Pomponius may have referred to in the only quote extant26 where he actually refers to something like that.


Leaving aside the reference to Aristo in connection with the decreta Frontiana in D. 29,2,99 (on which more later), Aristo-quotes from other authors only refer to notae, meaning short critical annotations27, by Aristo which he had added to the writings of older authors: to Labeo’s Posteriora 28; to two writings by Sabinus, probably the latter’s Ius civile 29 and the Libri ad Vitellium 30; and to Cassius’s Ius civile 31. There is a slight possibility that Aristo’s notae to these works were published during his lifetime (or even later) in independent lemmatic commentaries, that is detached from the original works by Labeo, Masurius Sabinus and Cassius, but all the references to Aristo’s notae are from a single classical author, Ulpian, who surely must have found them inserted into the original works. This leaves us with only one book by Aristo that is sometimes32 mentioned as his own product, i.e. ‘his’ Digesta. On a closer look, this ascription is highly problematic. It is based on but one text, i.e. a passage in the fifth book of Paul’s Quaestiones:


D. 24,3,44pr. (Paulus, libro quinto Quaestionum):


Si socer a genero heres institutus adierit hereditatem, quandoque mortuo patre cum herede eius filiam de dote acturam Nerva et Cato responderunt, ut est relatum apud Sextum Pomponium digestorum ab Aristone libro quinto: ibidem Aristoni consensit: ergo dicerem et si emancipasset pater filiam, ipsum quoque conveniri posse.


The emphasized passage ‘in Sextus Pomponius in the fifth book of the Digests by Aristo’ (apud Sextum Pomponium digestorum ab Aristone libro quinto) is, to put it mildly, rather enigmatic and has given rise to a dispute between two nineteenth-century German scholars, Theodor Mommsen and Herbert Pernice, that is still undecided. Mommsen used the text to support his thesis that classical Roman lawyers employed the book title Digesta in order to designate the collected works of a particular author that were either published by the author himself during his lifetime, or later by another33. According to Mommsen, Aristo’s Digesta, teste D. 24,3,44pr., had been published by Pomponius, who had collected them from Aristo’s notae, epistulae and responsa. Pernice, on the other hand, contended that the text referred to a nota by Pomponius in Aristo’s Digesta 34, consequently insisting on the Digesta as an original work by Aristo himself. The debate is important, since if one follows Pernice in this (and leaving aside the decreta Frontiana for a moment), the Digesta would be the only work Aristo has had a hand in himself35. I consider this improbable, not only on account of Aristo’s professional attitude as sketched by Pliny, but also because of substantive considerations. I will illustrate this assessment with a concrete example.


Aristo’s contribution to doctrine


In the history of substantive Roman private law, Aristo’s reputation as an important lawyer rests primarily on his contribution to the doctrine of contractus innominati 36. He played a decisive role by introducing the possibility of an action based on contract, an actio civilis in factum, i.e. the actio praescriptis verbis, rather than just a condictio based on the idea of unjust enrichment, as was taught by the Proculiani 37. Our primary source for Aristo’s famous doctrine is a reference by Ulpian to a responsum of Aristo directed at (and probably provoked by) the Proculian Celsus (filius)38. Ulpian here stresses the original source of the doctrine, Aristo’s responsum, which, in his time, he can only have found in the Digesta that Pomponius had ‘digested’ from Aristo’s notae, epistulae and responsa. In support of this assessment, I refer to the following peculiarities.


In D. 7,8,6 (Ulp., 17 ad Sab.) Ulpian mentions a critical observation (nota) of Aristo, without mentioning his source: ‘Aristo notat ad Sabinum’. By coincidence this passage from Ulpian’s 17th book ad Sabinum has also come down to us in another source, older than Justinian’s Digest, to wit the Fragmenta Vaticana (§ 88). Instead of ‘Aristo notat ad Sabinum’ one finds ‘Pomponius ait Aristonem adnotare’. The reference to Pomponius as the intermediary through whom Aristo’s opinions were known to Ulpian has been deleted in D. 7,8,6 (as in D. 2,14,7,2), but has sometimes survived: D. 4,4,16,2 (Ulp., 11 ad Ed.): ‘Pomponius refert … Aristonem putasse … et ilud Pomponius adicit’; D. 36,1,3,2 (Ulp., 3 Fideic.): ‘Pomponius refert … Aristonem respondisse’ and D. 39,5,18pr.–2 (Ulp., 71 ad Ed.): ‘Aristo ait … et ita Pomponius eum existimare refert (1) denique refert (scl. Pomponius) Aristonem putare (2) idem Aristo ait … et Pomponius ait’. As was already surmised by Mommsen, it emerges that Pomponius compiled Aristo’s collected works from his notae, epistulae and responsa, adding notae of his own. Later lawyers knew that ‘Aristo’s’ Digesta were an anthology of that material by Pomponius and therefore refrain from citing it as such. Instead, Ulpianus (38 quotes), Paulus (11), Marcianus (2), Volusius Maecianus (1) and Marcellus (1) always refer to the original source they found in the anthology: the quotes are always to Aristo as an annotator (Aristo notat), an epistolar (Aristo scripsit or rescripsit), or a legal counsellor (Aristo respondit)39. The master who did not want to be involved in the debates of other lawyers and fully concentrated on his work as a practitioner was not a man to set himself at the tedious work of compiling his own collected opinions: there was work to be done40. The composition of a ‘Digest’ of Aristo’s opinions fits the learned Pomponius better.


Aristo and Pomponius


My conclusion is that the composition of Aristo’s Digesta is to be attributed to Pomponius41. The latter was an entirely different lawyer than Aristo. Pomponius’s productive pen has produced an imposing ‘oeuvre’42, demonstrating predominantly scholarly interests totally unlike Aristo’s. The main testimony to this is his famous Enchiridion (D. 1,2,2), the most important source for the history of Roman legal scholarship and, as such, unique in Roman legal literature43. By the sheer volume of it, Pomponius’s work also bears witness to his propensity to get involved ‘in long dissertations’ (disputationibus longis), quite unlike Aristo. The Digesta having been discarded as an original work by Aristo himself, there remains the question what is to be thought of that other work sometimes attributed to his authorship, the decreta Frontiana 44.


‘Was die Bezeichnung der decreta als Frontiana bedeutet, weiss ich nicht’, Theodor Mommsen wrote in 186845 and our knowledge about this mysterious work has not progressed much since then. The questions raised by this work and the passage in the Digest where it is mentioned (D. 29,2,99) start with the title itself: ‘in decretis Frontianis’. The famous ‘Codex Florentinus’ leaves no doubt about this reading46, but the predilection to emend this to FrontInianis is a clearly irresistible47. There is a good reason for this, since the reading of the ‘Florentinus’ cannot stand. The adjective frontianus occurs nowhere but here. If it refers to someone called ‘Fronto’ it cannot have been ‘frontianis’, but should be ‘FrontONianis’, since one cannot make the adjective ‘frontianus’ from the cognomen Fronto without corrupting that cognomen 48. Mommsen, following the Vulgate tradition for once, suggested the emendation FrontInianis, still defending it in his editio maior of Justinian’s Digest. According to Mommsen, the title decreta refers without a doubt (sine dubio) to a collection of imperial decreta. But there never was a Roman emperor called Frontinus, nor was there ever one called Fronto. So what to make of the title of this obscure work? Before going into this question, I think it is wise to pay some attention to the phenomenon of ‘law reports’, collections of judicial decisions, in Roman law in general.


On Roman ‘law reports’


There never existed a tradition of collecting judicial decisions in Roman law and there was a good reason for this. The dichotomy in Roman civil procedure, confirmed by the leges Juliae iudiciariae, implied preliminary hearings on the admission of a suit before a magistrate (usually the praetor urbanus), followed by a trial before a iudex privatus. Neither the magistrate nor the judge was a trained lawyer by definition. It is common knowledge that by the time of Nero a Roman praetor (a political functionary) was mostly completely ignorant of the law and consequently entirely in the hands of his assessores 49 who told him what to do and not to do50. The iudex privatus was a layman by definition who was guided by the advice of the learned members of his consilium. Even when, by sheer coincidence, an experienced lawyer was appointed as iudex privatus, he still had a consilium at hand51. No wonder, therefore, that in classical times it was the communis opinio of counsellors learned in the law (iuris periti), rather than the decisions of magistrates (decreta) and judges (res iudicatae), that counted as law binding on judges52. Decisions by a Roman court were, moreover, given orally and there was no official record or transcript of these decisions.


A nice illustration of this last assessment is to be found in the case of Gaius Fannius Chaerea against Quintus Roscius, the actor, who was defended by Cicero. One of the issues involved in this case was whether the plaintiff (Fannius) had or had not succesfully sued Quintus Flavius from Tarquinii, who had killed the slave Panurgus belonging to Fannius and Roscius jointly. There was no written evidence of this prior lawsuit ex lege Aquilia and consequently there was no one but the iudex privatus who had decided that case, a certain Cluvius, who could give information about its outcome. Cluvius, however, had died and so Cicero was forced to bring in the evidence of two senators who had heard from Cluvius that he had indeed decided that case53.


There were, however, considerable changes in the course of the Principate, due to the progressing professionalization of the judicial apparatus caused by the fact that more and more lawsuits were removed from courts acting under the traditional forms of the iudicium legitimum to courts dispensing justice extra ordinem. These courts were presided over by imperial officials who were appointed for an indefinite period at the emperor’s pleasure54. A good example is the praefectus urbi, who was even awarded an imperium concurrent with that of a praetor 55, which allowed him to remove the criminal jurisdiction in Rome (and Italy) from the old praetorial criminal courts (iudicia publica)56. He also took cognizance of civil cases, especially those relating to the manumission of slaves57. Another example is the important jurisdiction of the praefectus annonae who took cognizanze of civil cases related to transport over sea58. These officials appointed ‘sous le bon plaisir du prince’ stood in a hierarchical relation to the emperor, and their decisions were consequently open to appeal on the emperor59, as were the decisions of praetores dispensing justice extra ordinem, such as the praetor fideicommissarius, and the decisions of provincial governors, the legati Augusti in the imperial provinces, who were mere deputies of the emperor himself. It was the possibility of appeal first and foremost that made written decisions a matter of course60, since an appeal on the emperor presupposes a written request addressed to the imperial office a libellis, which was usually presided over by a lawyer61. In this department of the imperial court all relevant documents – including a copy of the decision a quo 62 – were collected by a special branch a cognitionibus of that department in pre­­-paration of the actual imperial hearing of the case63. We know that a verbatim record was kept of the hearing itself64. The parties involved were even able to obtain a copy of the final decision (decretum) by the emperor from the imperial chancery65. I draw attention to all this to emphasize that no obstacle existed for the preparation of genuine reports of cases heard by the emperor. They could even be edited from official transcripts; but Roman lawyers never had a heart for it.


Imperial decreta


The contemporaries of Aristo were well aware that cases heard and decided by the emperor (decreta) had an enormous practical impact as possible precedents. This perception is confirmed by a speech of the Roman orator Marcus Cornelius Fronto (c. 95-c. 167). Fronto speaks in his quality of advocate to the defendant in proceedings before the emperor (Hadrian or Antoninus Pius) insisting that the emperor ought to dismiss the suit since he has been requested to decide a case at first instance. The emperor would do well, argues Fronto, not to take cognizance of the case since the consequence of doing so would be disastrous: if the emperor did so, everyone would bring his case directly before the emperor, bypassing all courts of first instance. He does so in the following words:


In iis rebus et causis, quae a privatis iudicibus iudicantur, nullum inest periculum, quia sententiae eorum intra causarum demum terminos valent; tuis autem decreti<s, im>p(erator), exempla publice valitura in perpetuum sanciuntur. tanto maior tibi vis et potestas quam fatis adtributa est: fata quid singulis nostrum eveniat statuunt; tu, ubi quid in singulos decernis, ibi universa exemplo adstringis66.


Fronto67 was a very learned and famous orator (even princeps fori) and his speech confirms that imperial decisions were valued highly by orators, since they created, as Fronto says, ‘precedents to be adhered to perpetually’ (exempla valitura in perpetuum). It should be stressed, however, that the practical interest of forensic orators in decreta of any magistrate was not new and, therefore, not necessarily related to the doctrine that imperial decreta ought to be qualified as sources of law binding on the courts. Even in Republican times the (rhetorical) value of decreta magistratuum was emphasized in writings on forensic oratory68. Gaius counted imperial decreta (explicitly not those emanating from, for example, a praetor) among the sources of law binding on the courts69, but adds that ‘it has never been questioned that they have force of law’70, which is a sure sign that it had indeed been questioned. It seems to me that the doctrine that force of law (legis vicis) was to be attributed to imperial decreta developed slowly71: in the early Principate their inconsistency is sometimes stressed72, as was done with praetorial decreta in Republican times73. Be this as it may, it seems that in Gaius’s time and later imperial decreta had, indeed, force of law74. Consequently, one would expect them to have been collected assiduously, as indeed has happened with imperial rescripta since Marcus75. This is not what has happened though: imperial decreta were, indeed, incorporated in the writings of the classical Roman lawyers (though not as often as one might expect) 76, but not separately and systematically collected in the manner of imperial rescripta. Paulus’s collection is, as stated, the only exception. But what about the decreta Frontiana? Mommsen was convinced they contained a collection of imperial decreta: but, if so, of which emperor, and by whom were they collected?


Decreta Frontiana


Mommsen suggested that the collection contained decreta of Domitian. He suspected that Domitian’s name had been banished from the courtrooms after his damnatio memoriae of 96, convincing the creator of the collection (Aristo?) to choose the name of Sextus Iulius Frontinus instead, since he was the most eminent statesman of his time77 and belonged to the circle of imperial amici who advised Domitian in his consilium 78. This supposition is the sole basis of Mommsen’s suggestion to emend the reading of the Florentina (Frontianis) in Frontinianis 79. There is a decisive argument against this presumption though, concerning the very damnatio memoriae on which it is founded. If Domitian was subjected to a damnatio memoriae, it may also have implied an actorum rescissio, including his decreta. Consequently, collecting and editing Domitian’s decreta after his death seems a completely futile exercise. If, however, not every damnatio memoriae implied an actorum rescissio, as Mommsen (still practically the only authority on this subject) knew it did not80, then there seems no reason at all to attribute a collection of Domitian’s decreta to a hy­pothetical consiliarius rather than to the emperor himself81. This is, I think, a decisive argument82 against the presumption that the decreta Frontiana contained imperial decreta, leading back to the question what the collection did contain, if not imperial decreta.


Pomponius mentions the decreta Frontiana in a passage from the first book of his treatise De senatus consultis. This has led some scholars to surmise that the decreta Frontiana were a collection of ‘senatorial’ decreta 83. The senate was, indeed, at least since Nero84 a court of appeal for decisions of iudices privati, in competition, as it seems, with the emperor85. The senate did not decide appeal cases in plenary meeting though, but delegated the decision to its chairman, one of the acting consuls86. Dispensing justice in civil cases was not (and never had been) a senatorial privilege, but was fundamentally connected with imperium, a quality exclusively connected with superior magistrates, the praetors and the consuls87. Consequently, assigning appeal cases to the senate amounted to an assignment of the decision in these cases to the presiding consul 88. This means that the final decision on appeal was never per senatus consultum, let alone per senatus decretum 89, but always by a decision of the consul (per decretum consulis). It was not the senate, but the consul, supported by the authority of the senate (ex senatus consulto)90, who decided the case91. Consequently, it was logical to style these appellate decisions after the person responsible for them, i.e. the consul who had given them. These decisions were even preserved in writing, since it was usual, if not mandatory92, for consuls to keep an extensive record (commentarii) of their official activities, containing a record of the cases they had decided at the request of the senate, including the names of the members of the consilium they had employed in doing so93, and, of course, the decision they had taken at the advice of that consilium 94. Since Aristo was a consiliarius of Trajan, he will have had access to the aerarium where the consular commentarii were deposited in imperial times95, and he may well have consulted the commentarii of consuls whose decisions in civil cases interested him, if only because some of these cases may have inspired later senatus consulta 96. But what was his specific interest in consulting the commentarii of a consul called Fronto or Frontinus? In order to answer this question, it is necessary to go into the issue at hand in D. 29,2,99 once more.


Transferring rights of action and the SC Pegasianum


As stated, there is no compelling relation between the decision of the praetor Cassius reported in D. 29,2,99 and the SC Vellaeanum, since the text is concerned with the transfer of rights rather than debts. The problem to be dealt with was: how could all the rights of action that the abstainor had against the debtors of her father be transferred to her sister by one comprehensive act, without, that is, the necessity to assign all individual actions one by one? This was a problem Roman law had only recently been confronted with in the issue of fideicommissa of an entire estate (fideicommissum hereditatis). It had been the subject of the SC Trebellianum and of another senatus consultum in Aristo’s days, the SC Pegasianum. Here is the connection between the decision reported in D. 29,2,99 and Pomponius’s treatise De senatus consultis.


Writing commentaries on senatus consulta as a distinct literary type was, up to Pomponius, unusual, if not unheard of97. A model nevertheless existed, i.e.the second part (Books 59–90) of Julian’s Digesta 98, which also contained commentaries on individual leges and senatus consulta 99. Pomponius knew Julian’s Digesta well. He made extensive use of it100. His De senatus consultis libri v may probably have been a sort of appendix, after the model of the second part of Julian’s Digesta, to his edition of Aristo’s Digesta.


Senatorial legislation on matters concerning private law was something relatively new in Aristo’s time. Pomponius’s contemporary Gaius stresses this point by emphasizing that it had been doubted whether senatus consulta had force of law (legis vicis) at all: ‘de ea re fuerit quaesitum101. Pomponius himself circumvents the question by indicating that necessitas ipsa had forced the senate to encroach upon the competence of the comitia and the concilium plebis since it had become practically impossible to convene the plebs, let alone the entire populus, to decide upon important matters102. It is no coincidence that the last lex publica populi romani, the lex Cocceia agraria, was promulgated under Nerva, that is in Aristo’s lifetime, probably in an effort to propagate the impeccable constitutional credentials of the new emperor103, the direct descendant of two influential jurists (Marcus Cocceius Nerva, pater and filius, Nerva’s grandfather and father)104. But there were important problems to be dealt with, especially in an area that was dearest to Roman lawyers, the law of succession; matters, moreover, that were too complicated to be left to an obsolescent popular assembly105. These problems were primarily caused by the rise and increasing popularity of fideicommissa ever since their initial and official recognition by Augustus and Claudius respectively106. No wonder, that it is mainly in this and other succession-related matters that the senate intervened by means of legislation. The important SC Trebellianum of 56 AD107 is but one of these interventions108. As a matter of course, a practically oriented lawyer like Aristo had to cope with this relatively new field of law; and he did, as we know from some fragments from his work, referred to by Pomponius. D. 36,1,3,2 is particularly interesting from our point of view:


Ulpianus, libro tertio fideicommissorum:


Item Pomponius scribit, si deductis legatis restituere quis hereditatem rogatur, quaesitum est, utrum solida legata praestanda sint et quartam ex solo fideicommisso detrahere possit, an vero et ex legatis et ex fideicommisso quartam detrahere possit? Et refert Aristonem respondisse ex omnibus detrahendam, hoc est ex legatis et fideicommisso.


Here we have Ulpian citing Pomponius, who quotes Aristo on an important question relating to fideicommissa. To what extent did the lex Falcidia apply to fideicommissa? The SC Trebellianum had no provision deciding this important question and consequently many heirs who were instructed by a testator to leave an entire estate to a fideicommissarius (fideicommissum hereditatis) abstained from the inheritance, thus destroying the fideicommissum 109. The SC Pegasianum, issued under Vespasian110, was meant to deal with this issue by awarding heirs the benefit of the lex Falcidia, while at the same time granting beneficiaries of a fideicommissum (fideicommissarii) an injunction to force heirs to accept the inheritance. But what if an heir had been instructed to leave an entire estate to a beneficiary ‘deductis legatis’: was the quarta falcidia to be deducted from the legacies solely, leaving the fideicommissum intact, or could it be deducted from the fideicommissum as well? Aristo decided the quarta was to be deducted ‘ex legatis et fideicommissis’ and his opinion settled the matter once and for all111. The case illustrates that Aristo was one of the leading authorities on fideicommissa, which means he must have been aware of one of the major problems involved: the transfer to the beneficiary of the right to sue the debtors of an estate subject to a fideicommissum, a problem thoroughly complicated by the SC Pegasianum. There is no need to go into all the difficulties involved here, since it suffices to assess that the SC Trebellianum had left that problem for the praetor to decide112. It was solved (by subsequent praetores, that is after 56 AD) by granting rights of action to the beneficiary as if he were the heir (ac si heres esset) of the testator, i.e. by granting actiones utiles 113. Sadly however, the SC Pegasianum intervened by (partly) repealing the SC Trebellianum 114,thereby thoroughlycomplicating the matter of the transfer of the actionsto the fideicommissarius by putting the latter on par with an emptor hereditatis 115. The matter was still not settled in Aristo’s time, since it was only under Antoninus Pius that it was finally settled that an emptor hereditatis acquired actiones utiles, allowing him to sue the debtors of the estate in his own right; that is, without a specific grant of powers of attorney (procuratio in rem suam) by the seller to the buyer116. So, lawyers of Aristo’s generation were in the process of cleaning up the considerable mess the SC Pegasianum had left behind and, in doing so, were stressing cases like the one reported by Aristo in decretis Frontianis, where a praetor called Cassius had granted actiones utiles in a case similar to the situation under the SC Pegasianum. An appeal case like the one reported there, which was based on delegation by the senate itself, carried considerable authority. That leaves the question from the commentarii of which consul the decreta Frontiana were compiled?


Possible consuls responsible for ‘decreta Frontiana’ and the praetor Cassius


After the promulgation of the SC Pegasianum there had been four consuls to whom Aristo may have attributed decreta Frontiana: Q. Aurelius Pactumeius Fronto, consul suffectus in 80 (under Vespasian)117; Sex. Octavius Fronto, consul suffectus in 86 (under Domitian); C. Caristanius Fronto, consul suffectus in 90 (under Domitian) and Tib. Catius Caesius Fronto, consul suffectus in 96 (under Nerva). Pactumeius Fronto is an attractive candidate, since his brother Quintus Aurelius Pactumeius Clemens was a lawyer of considerable reputation whom he might have had on his consilium when deciding the case118 and who, by the way, is cited by Pomponius as an authority in matters relating to fideicommissa 119. Another strong candidate is Catius Fronto (no relation of Marcus Cornelius Fronto120), a senator and also a famous forensic orator who was able, as Pliny testifies, to move his audience to tears121. He was prominent as an advocate in at least three famous trials of the time, all of them about extortion (repetundae) by governors in senatorial provinces and therefore to be decided by the senate itself122. In one of them he was up against Pliny and Tacitus. His was a name that carried some weight. This is less so with the other two consuls bearing the cognomen Fronto: Sextus Octavius123 and Gaius Caristanius124, relatively undistinguished as they are compared to the famous orator Catius bearing that cognomen. There are two other possible candidates for Aristo’s decreta Frontiana though. One is A. Cornelius Palma Frontonianus, consul ­ordinarius in 99 (under Nerva/Trajan) and again under Trajan in 109. He was one of Trajan’s most prominent generals (and consequently executed shortly after Hadrian’s rise to power)125. The other is, of course, none other than Sextus ­Iulius Frontinus of aquaduct fame, one of the most prominent men of Aristo’s time to whom befell the singular honor of having been consul three times (in 73, 98 and 100). So the chances are two to one that the reading of D. 29,2,99 should be emended from ‘Frontianis’ to ‘FrontONianis, rather than ‘­FrontINianis’, but whichever one prefers is rather immaterial since it changes nothing to our understanding of the nature of the collection: it concerned decreta taken from, or rather found in, the commentarii of a consul named Fronto, Frontonianus or even Frontinus.


‘Cassius Longinus’


There is one last matter to be taken into account and this concerns the praetor Cassius mentioned in D. 29,2,99. If I am right in presuming that de decreta Frontiana are to be attributed to one of the six consuls mentioned above, none of them can have heard an appeal from Gaius Cassius Longinus, since this famous jurist had been praetor long before their tenure as consul (probably around 27 AD)126. This assessment rests on the true identity of the praetor ­Cassius in D. 29,2,99.


It is usually taken for granted that the praetor Cassius mentioned in D. 29,2,99 is to be identified with Gaius Cassius Longinus127. This is mere wishful thinking, which is mostly if not exclusively based on an erroneous interpretation of the passage in which the name of Cassius occurs128. There is no indication whatsoever that the Cassius mentioned in D. 29,2,99 is to be identified with the famous jurist. But even if he were, does this necessarily imply that the decreta Frontiana cannot have concerned decreta of any of the consuls just mentioned, since it contains an appeal from a decision of Cassius Longinus? I do not think so, as this supposition fails to take notice of Aristo’s usual modus operandi. He was interested in a particular point of law and searched the commentarii of recent consuls to find cases that could help him form his own opinion. In doing so, he may have been reminded of similar older cases like the one he reports in D. 29,2,99, and he may have written a nota about it, as was his habit. In this scenario we would have a nota by Aristo on an unidentified case in decretis Frontianis 129. Aristo was not the author, nor even the collector, of a work, let alone ‘law reports’, entitled decreta Frontoniana or Frontiniana, which would have been something quite unlike any lawyer before him had ever done, but he has made observations (notae) ‘relating to decisions’ (in decretis) of a consul called Fronto, Frontonianus or Frontinus130.


Conclusion


Iulius Paulus’s collection of reports of cases decided by the emperors Septimius Severus and Caracalla is unique in the history of classical Roman law. There is no other collection like it, not even the decreta Frontiana mentioned in D. 29,2,99131. One has to wait until the Byzantine period before anything similar appears again, i.e. the ‘Peira’, a collection of judicial decisions by a high-ranking Byzantine judge, Eustathius Romanus († c. 1050), collected by an anonymous person some time after his death132. Roman lawyers were not particularly interested in reporting judicial decisions, not even imperial decreta, but they were interested in the imperial contributions to ‘law in the making’ that were to be found in imperial rescripta, since it was here that the emperor presented himself as iuris peritus, thus endorsing the old and well-established tradition of the learned responsum. Interest in judicial precedents (exempla) is distinctive for the profession of a forensic orator, it is not characteristic of a genuine iuris peritus. This prejudice is still held by Justinian: non exemplis, sed legibus 133.


1 This is not the place to deal with Paulus’s ‘reports’. A new edition, with commentary and introduction by E. Daalder is in preparation and will be published by 2016.


2 See, for example, F. Schulz, Roman legal science, Oxford 1946, p. 154 and, more recently, J.-P. Coriat, Le prince législateur, Rome 1997, p. 95, and especially M. Rizzi, Imperator cognoscens decrevit, Profili e contenuti dell’attività giudizaria imperiale in età classica, Milaan 2012, p. 132–133 (Rizzi).


3 F. Schulz, Geschichte der römischen Rechtswissenschaft, Weimar 1961, p. 181, following Th. Mommsen, Juristische Schriften, II, Berlin 1905, p. 22 (= Sextus Pomponius, in: Zeitschrift für Rechtsgeschichte, 7 (1868), p. 475–476; further cited as Mommsen JS/ZfR); P. Krüger, Geschichte der Quellen und Literatur des römischen Rechts, 2nd ed., Munich–Leipzig 1912, p. 179; F. Wieacker, Römische Rechtsgeschichte, II, Munich 2006, p. 59 (‘möglicherweise’); Rizzi (supra, n. 2), p. 132–133 and especially Fr. Tamburi, I decreta Frontiana di Aristone, in: Studi in onore di Remo Martini, III, Milano 2010, p. 713–758.


4 D. 29,2,99 (Pomponius, libro primo senatus consultorum).


5 The first a.c.i. (‘sanctum Cassium praetorem’) is dependent on the main clause ‘Aristo refert’.


6 See C. 8,54,1: ‘principes in hoc casu sanxerunt’; C. 6,25,7 (‘ut, quod inter iustos liberos sanctum est,hoc et in naturales filios extendatur’) and C. 5,4,18 (‘placet … ut in virginum coniunctionibus sanctum est’).


7 As Tamburi (supra, n. 3), p. 746 ff., thinks (‘santo Cassio’). See for a similar blunder S.P. Scott’s translation (The civil law, Vol. 6, p. 305: ‘the venerable praetor Cassius’); the Dutch translation by Bongenaar and Spruit (‘de doorluchtige praetor Cassius’) and (even worse) Watson’s translation (‘Cassius ordained that the praetor rightly promised’). For the correct German translation see infra, n. 127.


8 Gaius 2,58.


9 C. 3,36,6, referring to the ancient Lex XII Tabularum.


10 D. 38,17,2,8.


11 Tamburi’s causae coniectio (supra, n. 3) on p. 744–745, is blurred by her failure to grasp the real issue at hand in D. 29,2,99, on which more shortly.


12Palingenesia, II, 149, n. 1.


13 See also (relying on Lenel) P. Voci, Diritto ereditario romano,i, Milan 1967, p. 583, n. 26; R. Vaccaro de Lugo, L’accrescimento nel diritto ereditario romano, Milan 1941, p. 23, n. 2.


14 For this point of view on D. 29,2,99 see also B. Biondi, Diritto ereditario romano, Milan 1954, p. 416.


15 See on this issue further infra, n. 113.


16 Aristo is always mentioned in the Digest with his cognomen; we know his gensnomen from the correspondence of the younger Pliny (Epistulae 1,22,1). See on Aristo’s background W. Kunkel, Herkunft und soziale Stellung der römischen Juristen, Graz–Cologne 1967, p. 141–144. See also G. Wesenberg in: PWRE, Suppl.B. VIII 857–859 (‘Titius’ 27a (Titius Aristo)), with a (redundant) correction by Th. Mayer-Maly in PWRE, Suppl.B. IX 1395–1397 (‘Titius Aristo’) and Tamburi (supra, n. 3), p. 713, n. 1 (with copious other references).


17 For this see D. 4,8,40. O. Karlowa, Römische Rechtsgeschichte, i, Leipzig 1885, p. 699, contended that Aristo did not belong to Cassius’s school, but to the Proculiani, as did R.A. Bauman, Lawyers and politics in the early Roman empire, Munich 1989, p. 218–221. But see infra, n. 37.


18 For this see D. 37,12,5 (Papinianus), mentioning Neratius Priscus as well. I noticed that this is the only place in the writings of Papinian where Aristo is mentioned explicitly. It may well have been that Papinian has extracted his information about this case from the imperial archives during his tenure as praefectus praetorio, or more likely as procurator a libellis (D. 20,5,12pr.). The phrasing of D. 37,12,5 seems to support this assumption. Kunkel (supra, n. 16) missed this detail. His doubts about the participation of Aristo in an imperial consilium may therefore be questioned. Kunkel, Herkunft (supra, n. 16), p. 142–143, believed that Aristo was of humble origins, a conviction only based on his Greek cognomen, supposedly indicating a freedman or a descendent of a freedman. According to Kunkel, Aristo’s lowborn status was incompatible with a senatorial career and a place in an imperial consilium. This is all very conjectural, if not circumstantial: see on this particular point also R.A. Bauman, Lawyers and politics (supra, n. 17), p. 216–217.


19 Plinius minor, Epistulae 1,22,2–7: ‘Quam peritus ille et privati iuris et publici! quantum rerum, quantum exemplorum, quantum antiquitatis tenet! Nihil est quod discere velis quod ille docere non possit; mihi certe quotiens aliquid abditum quaero, ille thesaurus est.3. Iam quanta sermonibus eius fides, quanta auctoritas, quam pressa et decora cunctatio! quid est quod non statim sciat? Et tamen plerumque haesitat dubitat, diversitate rationum, quas acri magnoque iudicio ab origine causisque primis repetit discernit expendit.4. Ad hoc quam parcus in victu, quam modicus in cultu! Soleo ipsum cubiculum illius ipsumque lectum ut imaginem quandam priscae frugalitatis adspicere.5. Ornat haec magnitudo animi, quae nihil ad ostentationem, omnia ad conscientiam refert recteque facti non ex populi sermone mercedem, sed ex facto petit.6. In summa non facile quemquam ex istis qui sapientiae studium habitu corporis praeferunt, huic viro comparabis. Non quidem gymnasia sectatur aut porticus, nec disputationibus longis aliorum otium suumque delectat, sed in toga negotiisque versatur, multos advocatione plures consilio iuvat.7. Nemini tamen istorum castitate pietate, iustitia, fortitudine etiam primo loco cesserit’. The translation is John Delaware Lewis’s (The letters of the younger Pliny, London 1879).


20 In the rest of the letter to Catilius Severus, Pliny writes of the ailing Aristo’s intention to commit suicide if his doctors are convinced he is mortally ill.


21 R. Martini, Pomponii Digesta ab Aristone?, in: Atti dell’Accademia Romanistica Costantiniana, IV, Perugia 1981, p. 795–806 (796–798) has a different appreciation of Pliny’s account by stressing what he considers to be the primarily scholarly interests of Aristo. See for a similar view (Mayer-Maly) infra, n. 43.


22 Neratius and Aristo corresponded: see D. 19,2,19,2: ‘est epistula Neratii ad Aristonem’ and D. 20,3,3: ‘Aristo Neratio Prisco scripsit’. I should add (in the age of SMS, WhatsApp and e-mails) that one should not think lightly of the ‘epistle’ (I use this word on purpose), rather than the book, as a medium of communicating in Roman times. Writing ‘epistles’ was an artform (as it was in the days of my grandparents) and these letters were often aimed at a wider audience to whom they were to be distributed. In fact, they frequently had the same purpose as our articles in learned journals. See: H. Peter, Der Brief in der römischen Literatur, Leipzig 1901, p. 216–225, especially p. 220 (on jurists and their epistulae). Anachronistically speaking, one might say that Aristo may never have written a book, but he certainly wrote a lot of articles (epistulae). The letters and notae of Aristo may have circulated among professionally interested circles, as privately composed term reports did in medieval England.


23 D. 2,14,7,2 (Neratius, 3 Membr.): ‘Aristo respondit’; 17,1,39 (Neratius, 7 Membr.): ‘Aristoni placuit’; 18,3,5 (Neratius, 5 Membr.): ‘Aristo existimabat’ and 36,3,13 (Neratius, 7 Membr.): ‘Aristoni placet’.


24 D. 26,7,61 (Pomp., 20 Epist.): ‘Apud Aristonem scriptum est’ and 38,1,4 (Pomp., 4 ad Sab.): ‘ita Aristo scripsit’.


25 D. 1,8,10 (Pomp., 6 ex Plautio): ‘Aristo ait’; 4,8,40 (Pomp., 11 Var. lect.): ‘Aristo ait’; 17,2,62 (Pomp., 13 ad Sab.): ‘Aristoni placebat’; 18,5,1 (Pomp., 15 ad Sab.): ‘Aristo dixit’; 23,2,40 (Pomp., 4 ex Plautio): ‘Aristo respondit’; 26,9,1 (Pomp., 29 ad Sab.): ‘Aristo ait’; D. 30,45pr. (Pomp., 6 ad Sab.): ‘Aristo probat’; 36,1,22 (Pomp., 22 ad Sab.): ‘Aristo ait’; 36,1,74 (Pomp., 4 Fideic.): ‘Aristo aiebat’; 40,40,46 (Pomp., 7 Var. lect.): ‘Aristo rescripsit’; 40,5,20 (Pomp., 7 Epist.): ‘Aristo putabat’; 40,7,5 pr. (Pomp., 8 ad Sab.): ‘Aristo putat’; 40,7,11 (Pomp., 14 ad Sab.): ‘Aristo ait’; 40,7,29,1 (Pomp., 18 ad Q. Muc.): ‘Aristo rescripsit’; 41,1,19 (Pomp., 3 ad Sab.): ‘Aristo ait’ and D. 46,3,16 (Pomp., 15 ad Sab.): ‘Aristo dicebat’.


26 D. 26,7,61 (Pomp., 20 epist.): ‘Apud Aristonem scriptum est’. (emphasis added)


27 See on this kind of literature: Schulz, Geschichte (supra, n.3), p. 226 ff.; L. Wenger, Die Quellen des römischen Rechts, Vienna 1953, p. 496; see also Wieacker, Römische Rechtsgeschichte (supra,n.3), II, p. 41–43.


28 D. 28,5,17,5 (Ulp., 7 ad Sab.): ‘Labeo quarto Posteriorum scripsit, nec Aristo vel Aulus(?) (probably Iavolenus (Lenel))notant’; see also D. 43,24,5pr. (Ulp., 70 ad Ed.): ‘ita Labeonem probare Aristo ait’.


29 D. 7,8,6 (Ulp., 17 ad Sab.): ‘Aristo notat ad Sabinum’. See about the corresponding passage in the Fragmenta Vaticana (§ 88) infra in the text.


30 D. 33,9,3pr.–1 (Ulp., 22 ad Sab.): ‘Sabinus libris ad Vitellium scribit … sed Aristo notat’.


31 D. 7,1,7,3 (Ulp., 17 ad Sab.): ‘Cassius scribit … Aristo notat haec vera esse’; see also D. 7,1,17,1 (Ulp., 18 ad Sab.): ‘Aristo apud Cassium notat’ and D. 39,2,28 (Ulp., 81 ad Ed.): ‘Cassius scribit … Aristo autem non male adicit’.


32 See Lenel, Palingenesia, i, 61, note 1; Schulz (supra, n.3), p. 288; Wenger (supra,n. 3), p. 505, n. 175; Wieacker, Römische Rechtsgeschichte (supra, n.3), II, p. 59.


33Sextus Pomponius, JS/ZfR, p. 23 (477): ‘Digesta heisst bei den römischen Juristen die Zusammenstellung der sämmtlichen wissenschaftlichen Arbeiten eines Rechtsgelehrten, sei es dass sie von ihm selbst oder von einem späteren herrührt’.


34Miscellanea zu Rechtsgeschichte und Texteskritik, i, Prague 1870, p. 35 ff.


35 Mayer-Maly, PWRE Suppl.B. IX 1395 (supra,n.16), but see Wesenberg, PWRE Suppl.B. VIII 858–859 (supra,n.16).


36 For this assessment see M. Kaser, Das römische Privatrecht, i, Munich 1971, p. 580 ff. and R. Zimmermann, The law of obligations,Capetown 1990, p. 532 ff. See also P. Collinet, L’invention du contrat innominé, in: Mnemosyna Pappoulia, Athens 1934, p. 93 ff., and my own contributions (in Dutch) in: Het offer, in: A.G. Castermans, Jac. Hijma e.a. (edd.), Ex libris Hans Nieuwenhuis, Deventer 2009, p. 403 ff.; see also ‘Tekst & Uitleg XIII (D. 45,1,126,2)’, in: GrOM, 29 (2012), p. 93–94.


37 Aristo’s idea was based on an essentially Sabinian doctrine, holding that permutatio (the quintessential contractus innominatus) had to be treated as a contract that could be dealt with by analogy with emptio-venditio, a doctrine sternly rejected by the Proculiani. See on this controversy Gaius 3,141 and D. 18,1,1. I therefore think that Aristo was indeed a Sabinian rather than a Proculian.


38 D. 2,14,7,2: ‘eleganter Aristo Celso respondit’.


39 I should add a remark on the references to Aristo in the Membrana of Neratius Priscus (see supra, n. 23). Neratius and Aristo knew each other well and Neratius must therefore have been thoroughly acquainted with Aristo’s work. He never refers to a book by Aristo (nor, by the way, does Pliny), a clear indication that Aristo never wrote one. It sometimes happens that Neratius and Aristo are bracketed together as authorities by lawyers later than Pomponius. In these cases the references to Aristo (see D. 20,3,3 (Paul); 23,3,20 (Paul); 35,1,7pr. (Ulpian)) may have been taken from Neratius, rather than from Pomponius/Aristo (for this see Krüger, Geschichte (supra,n.3), p. 188, n. 73).


40 There are many modern private lawyers on the European continent whose professional fame rests on their notae (critical annotations in law reports) exclusively.


41 R. Martini, Pomponii Digesta ab Aristone? (supra,n. 21), p. 801–806, has come to the same conclusion, largely along the same lines.


42 See the survey of his works in Krüger, Geschichte (supra,n.3),p. 191 ff.; Wenger, Quellen (supra,n.3), p. 505; G. Wesenberg, in PWRE XXI.2 (Pomponius 107) 2416–2420 (supra,n.3), and Wieacker, Römische Rechtsgeschichte (supra,n.3), II, p. 108–111.


43 There have been attempts to link Pomponius’s historical interests to Aristo’s deep knowledge of the roots of the law, as testified by Pliny’s letter cited supra, n. 19 (Mayer-Maly in PWRE Suppl.B. IX 1396). They are completely gratuitous.


44 There is one other ‘book by Aristo’ (liber Aristonis) mentioned by a non-legal source. Aulus Gellius refers to it in his Noctes Atticae (11,18,16), where he writes that he remembers to have read (memini legere me) some curiosities on the Egyptian law of theft ‘in a book by Aristo’ (in libro Aristonis). He does so in the context of his reading of Sabinus’s treatise De furtis (NA 11,18,12–13). Mommsen has correctly, I think, suggested that this liber Aristonis is really a nota by Aristo on a passage in this treatise of Sabinus (see on Aristo’s notae ad Sabinum supra, n. 29 and 30). But see Krüger, Geschichte (supra,n.3), p. 180, n. 161 and Wesenberg (supra,n.35), p. 858. The Aristonis libri mentioned by Marcus Aurelius in a letter to his teacher Cornelius Fronto (Ad. M. Caes. 4,13), are not books by the lawyer Titius Aristo (as E. Champlin, Fronto and Antonine Rome, Cambridge Ma. 1980, p. 77 thinks), but books by either the popular philosopher Ariston of Keos or, more likely, the Stoic Ariston of Chios (as C.R. Haines in the Loeb-edition of the correspondence of Fronto presumes): the writings of the latter were well-known to Cicero and may therefore have been recommended to Marcus by Fronto, who deeply admired Cicero.


45 Mommsen JS/ZfR, 22(476), n. 5.


46 A. Corbino and B. Santalucia (edd.), Justiniani Augusti Pandectarum Codex Florentinus, Florence 1988, i, fol. 431 verso, r. col., last line but one, at the end.


47 The tradition of this emendation starts with the Vulgate, since medieval manuscripts of the Digest usually have the reading in decretis FrontINianis: see the edition of Gebauer and Spangenberg ad D. 29,2,99, n. 69.


48 Comp. ‘pullum Frontonianum’ in Apicius, De re coquinaria 6,9,12(248) and the ‘regula Catoniana’ (D. 34,7). This is why Haloander suggested the emendation ‘Frontonianis’: see Gebauer and Spangenberg in the previous footnote. See on this emendation also infra, n. 117.


49 This function, exercised by iuris studiosi (D. 1,22,1 (Paulus)), had become so important in imperial times that Alexander Severus decided to pay salaries to assessores (SHA Severus Alexander 46,1).


50 Seneca, De tranquilitate animi 3,4: ‘qui inter peregrinos et cives aut urbanus praetor adeuntibus assessoris verba pronuntiat’.


51 Even Gaius Aquilius Gallus was assisted by a consilium in the case of Publius Quinctius against Sextus Naevius: Cicero, Pro Quinctio 30,91.


52 Gaius, 1,2 and 7. This point is stressed by M. Kaser, Das Urteil als Rechtsquelle im römischen Recht, in: Festschrift Fritz von Schwind, Vienna 1978, p. 115–130. This, by the way, is why, in the civilian tradition, legal scholarship (I strongly dislike the expression ‘legal science’) has until recently always prevailed over the decisions of the courts.


53 Cicero, Pro Quinto Roscio Comoedo 14,42 ff.


54 See for this development Kaser / Hackl, Das römische Zivilprozessrecht, Munich 1996, p. 451–466.


55 D. 2,4,2 (Ulpianus).


56 D. 1,12,1pr. (Ulpianus, libro singulari de officio praefecti urbi): ‘Omnia omnino crimina praefectura urbis sibi vindicavit, nec tantum ea, quae intra urbem admittuntur, verum ea quoque, quae extra urbem intra Italiam, epistula divi Severi ad Fabium Cilonem praefectum urbi missa declaratur’.


57 D. 1,12,1,1 (Ulpianus).


58 D. 14,1,1,18 and 14,5,8.


59 The phenomenon of ‘appeal’ as we know it (there is another, older, meaning connected with it, on which more infra, n. 66) is closely connected with the rise of imperial officials dispensing justice extra ordinem iudiciorum privatorum (et publicorum). See R. Orestano, L’appello civile in diritto romano, Turin 1953, p. 186 ff.


60 Orestano (previous note), p. 231ff. See also C. 7,44,3,1.


61 Papinianus was, at one time in his career, procurator a libellis (D. 20,5,12), and so was Volusius Maecianus (CIL 14, 5348). Ulpianus also seems to have held that office: SHA, Pescennius Niger 7,4, with T. Honoré, Ulpian, Oxford 1982, p. 191ff. See for Paulus’s and Herennius Modestinus’s possible tenure: Honoré, Ulpian, p. 19 and Emperors and lawyers, 2nd ed. Oxford 1994, p. 104 ff.


62 The presence of a copy of this decision is taken for granted in D. 49,1,1pr. (Ulpianus).


63 It is my impression that the department a cognitionibus was a special branch of the department a libellis and that the whole department was headed by one official, the procurator (later magister) libellis et cognitionibus. Aurelius Papirius Dionysius held this office, and had this double style, under Marcus (Inscriptiones Graecae ad Res Romanas Pertinentes i, Paris 1901, no 135 (p. 58): ἐπι βιβλειδίων καὶ διαγνώσεων). See also O. Hirsch­feld, Die kaiserlichen Verwaltungsbeamten bis auf Diocletian, Berlin 1905, p. 330, n. 1, who refers to another magister libellorum et cognitionum (CIL 6, 510).


64 See the traces of this record in a case heard by Marcus in D. 28,4,3.


65 See the famous Skaptoparene-inscription (CIL 3, 12336; also in FIRA I, no 106 (p. 508–509)); an inscription from Smyrna (CIL 3,411; FIRA i, no 82 (p. 435–436)), with an instruction to Stasimus and Dapenus, two slaves working in the chancery, to prepare a copy (edite ex forma sententiam vel constitutionem); and (even more spectacular) the inscription on the saltus burunitanus (CIL 8, 10570 = CIL 8,14464; FIRA I, no 103 (p. 495–498)): ‘et alia manu(!) scripsi recognovi’ (FIRA I, p. 498). Comp. F. Preisigke, Die Inschrift von Skaptoparene in ihrer Beziehung zur kaiserlichen Kanzlei in Rom, Strassburg 1917, and F. Millar, The emperor in the Roman world, London 1992, p. 240–252.


66 Fronto, ad M. Caes. 1,6,2. Fronto’s case illustrates that an appellatio ad principem did not yet, in his own time, presuppose a preceding decision a quo: everyone could still ‘call on’ (appellare) the emperor whenever he needed help, even when there was no preceding verdict against him: think of the apostle Paul. Appellatio (ad principem) only obtained the technical meaning we attach to it after the Roman emperors perceived that the normal ordo iudiciorum would be subverted if everyone were allowed to bring his case directly before the emperor rather than the normal courts of first instance. Fronto’s case bears witness to this development. See Orestano (supra, n. 59), p. 196 ff.


67 On Fronto: Brzoska in: PWRE IV.1 (‘Cornelius’ 157), 1312–1340 and E. Champlin, Fronto and Antonine Rome, Cambridge Ma. 1980.


68 See Rhetorica ad Herennium 2,13,19.


69 Gaius 1,5: ‘Constitutio principis est, quod imperator decreto … constituit’.


70 Gaius 1,5: ‘nec umquam dubitatum est, quin id legis uicem optineat’. For a later, more apodictic, assessment see D. 1,4,1,1 (Ulpianus): ‘Quodcumque igitur imperator … cognoscens decrevit … legem esse constat’.


71 See on this point also Kaser, Das Urteil (supra, n. 52), p. 122.


72 Suetonius, Divus Claudius 15,1: ‘In cognoscendo autem ac decernendo mira varietate animi fuit, modo circumspectus et sagax, interdum inconsultus ac praeceps, nonnumquam friuolus amentique similis’.


73Ad Herennium 2,13,19: ‘ut de eadem re saepe alius aliud decreuerit aut iudicarit’.


74 Doubts remained though, since even in Justinian’s time some lawyers contended that an imperial decretum was only binding on the parties concerned, thus denying it any further normative value: see Justinian’s censure of this contention in C. 1,14,12,2–3.


75 See infra, n. 131.


76 Cf. Coriat, Le prince législateur (supra, n. 2), p. 94: ‘C’est dans les sources non juridiques qu’il faut chercher des témoignages directs sur les cognitiones imperiales’ (emphasis added). See also Tamburi (supra, n. 3), p. 733: ‘Nel Digesto, i richiami a decreta sono scarsi’. Her statistical research here is sloppy though, and provides a good example of the quasi-precision that the careless use of databases affords. She forgot to feed her search-engine with declensions of the verb decernere. If she had done so, she would have found at least 15 more places with a reference to an imperial decretum than the 65 she found by just feeding it with the noun decretum.


77 Mommsen (JS/ZfR 22(476), n. 5) refers to Pliny, Epistulae 5,1,5: ‘Adhibui in consilium duos quos tunc civitas nostra spectatissimos habuit, Corellium et Frontinum’.


78 Mommsen, l.c. See also P. Southern, Domitian, Tragic Tyrant, Londen–New York 1997, p. 40.


79 Tamburi (supra, n. 3), p. 738 ff., goes even further by attributing the initiative to collect these decreta to Iulius Frontinus himself, who, as she supposes, composed it from the imperial archives. There is no direct indication for this supposition and I consider it to be rather unwarranted. If it were true and the collection was really composed by as famous a man as Frontinus certainly was, why then was it never mentioned by any other lawyer, for example by Pomponius in his Enchiridion? Making a comprehensive collection of law reports out of random, that is not topically arranged, material (‘the imperial archives’) presupposes a deep and thorough knowledge of the law and was, moreover, completely unprecedented in Frontinus’s time. The best Frontinus could have done was making a collection of cases De controversiis agrorum, but there is no reference to it in that part of his treatise De agri mensura libri II in the Corpus Agrimensorum, nor is it consistent with Frontinus’s own admission that ‘nosse quod suscepi’ (De Aquis, praef. 1) was the basic assumption in all his writings and that he consequently only wrote books ‘post experimenta et usum’ (De Aquis, praef. 2). There is no evidence of Iulius Frontinus having had the wide experience in the law he would have considered indispensable himself before entering into a project like the composition of ‘law reports’.


80 On actorum rescissio see Mommsen, Staatsrecht, II.2, p. 1129–1132, and F. Vittinghoff, Der Staatsfeind in der römischen Kaiserzeit, Untersuchungen zur damnatio memoriae’, Speyer 1936, p. 96–98, who refers to a constitutio of Domitian which had force of law in spite of the latter’s damnatio memoriae: D. 48,3,2,1 (Papinianus, edictum) and D. 48,16,16 (Paulus, rescriptum).


81 Karlowa, Römische Rechtsgeschichte, (supra, n. 17), i, p. 699. Given Domitian’s reign of fifteen years, it is hardly conceivable that all his decreta were annulled on account of his damnatio memoriae. Probably only criminal cases were concerned and even among those probably only cases with a clear political connection. Vittinghoff (p. 97) agrees and refers to a letter by Trajan to Pliny (Plinius, Epistulae 10,66,2) where the emperor, who was himself co-responsible for Domitian’s damnatio memoriae, says that ‘epistulae sunt Domitiani quae fortasse debeant observari’. It proves that, even in the highest circles in government, there was no hesitation to apply Domitian’s constitutiones whenever convenient. See on this issue also Krüger, Geschichte (supra, n. 3), p. 115.


82 So does Tamburi (supra, n. 3), p. 737.


83 Karlowa, Römische Rechtsgeschichte (supra, n. 17), i, p. 700 and Lenel, Palingenesia, i, 59, n. 1. Mayer-Maly, PWRE Suppl.B. IX 1396 (supra, n.16), prefers Mommsen’s suggestion, but see Bauman, Lawyers (supra, n. 17), p. 221: ‘the senatus consulta theory has a slight advantage’.


84 Suetonius, Nero 17: ‘cautum … ut omnes appellationes a iudicibus ad senatum fierent’. The function of the senate as a court of law in imperial times has drawn the attention of quite a few scholars since Mommsen’s exposé in his Staatsrecht (III.2, p. 1065, with the important reference to Staatsrecht II,1, p. 105 ff.). I mention in particular A.H.M. Jones, Imperial and senatorial jurisdiction in the early Principate, in: Historia,Zeitschrift für alte Geschichte, 4 (1955), p. 464–488; F. de Marini Avonzo, La funzione giurisdizionale del senato romano, Milan 1957, p. 36–60 (with the critical observations by O. Tellegen-Couperus, TvR, 53 (1985), p. 309–321); J. Bleicken, Senatsgericht und Kaisergericht, Eine Studie zur Entwicklung des Prozessrechtes im frühen Prinzipat, Göttingen 1962, p. 154 ff. (with the important review by J. Crook, Law courts in the Principate, in: The Classical Review, (NS) 14 (1964), p. 196–198) and R.J.A. Talbert, The Senate of Imperial Rome, Princeton 1984, p. 460–487. I should stress that in this article I am merely interested in the role of the senate as a court of appeal in civil cases, which is a rather awkward subject (‘eine precäre Anomalie’ (A.F. Rudorff, Römische Rechtsgeschichte,II,Leipzig 1859, p. 283, n. 13)), if only because our sources on it are but scarce (Tellegen-Couperus, p. 309; Talbert, p. 469). W. Kunkel, Über die Entstehung des Senatsgerichts, now in: Kleine Schriften zum römischen Strafverfahren und zur römischen Verfassungsgeschichte, Weimar 1974, p. 267–323 concerns appeal in criminal cases only.


85 Tacitus, Annales 14,28: ‘auxitque patrum honorem statuendo ut, qui a privatis iudicibus ad senatum provocavissent, eiusdem pecuniae periculum facerent, cuius si qui imperatorem appellare[nt]; nam antea vacuum id solutumque poena fuerat’.


86 Mommsen, Staatsrecht,II,1, p. 105–107; comp. Kaser / Hackl, Das römische Zivilprozessrecht (supra, n. 54), p. 504. Delegation of the actual appeal by the senate to a consul explains the absence in our souces of any judicial decretum in a civil appeal by the senate itself (as Tellegen-Couperus (supra,n. 84) p. 310 correctly states). See for the senatorial decisions in civil appeal cases identified as such by De Marini Avonzo (supra, n. 84), p. 45–52, infra n. 96.


87 In imperial times, the consuls exercised only a limited civil jurisdiction of first instance. Augustus assigned the decision in disputes over fideicommissa to a consul, a function later assigned (by Claudius) to a special praetor fideicommissarius (Inst. 2,23,1). Consular (later also praetorial) tutoris datio was an administrative, rather than a judicial act. There was no constitutional obstacle to a consul exercising any civil or capital jurisdiction though, since this power was immanent in his imperium.


88 See on this issue Jones, Imperial and senatorial jurisdiction (supra, n. 84), who also emphasizes that the power to take cognizance of an appeal is constitutionally based on imperium. He does so by ingeniously linking (p. 472) Suetonius, Nero 17 (‘ut omnes appellationes a iudicibus ad senatum fierent) to Tacitus, Annales 13,4 (‘consulum tribunalibus Italia et publicae provinciae adsisterent’).


89 Tamburi (supra, n. 3), p. 719–722, pays too much attention to the confusing distinction between senatus consulta and senatus decreta as advanced by Aelius Gallus in Festus’s De verborum significatu (ed. Lindsay, p. 454). It has long been rejected as untechnical: see Hesky in: PWRE IV (‘Decretum’), 2294–2295; O’Brien Moore in: PWRE Suppl.B. VI 801. Talbert, The Senate of Imperial Rome (supra, n. 84), rightly ignores it.


90 See the SC De Amphiarai Oropii Agris (FIRA 1, no 36 (p. 260–266)), from 73 BC which contains a decretum by two consuls (M. Terentius Lucullus and G. Cassius Longinus) in a fiscal dispute they were ordered to decide ex senatus consulto (‘κατὰ τὸ τῆς συνκλήτου δόγμα’ (v. 34 (p. 263)). 


91 It was Cicero alone and not anyone of the individual senators assenting to his senatus consultum ultimum, who was indicted for having illegally executed Roman citizens.


92Senatus consulta were registered by the quaestores and also included in the commentarii of the consuls, allowing for a double check on the contents of a senatus consultum. See Talbert, The Senate of Imperial Rome (supra, n. ), p. 303–337 and the highly interesting article by M. Coudry, Sénatus-consultes et Acta Senatus, in: La mémoire perdue, A la recherche des archives oubliées, publique et privées, de la Rome antique, Paris 1994, p. 65–102.


93 See the SC De Amphiarai Oropii Agris, FIRA I, no 36 (p. 260–266), at. p. 261. Mommsen (Staatsrecht II.1, p. 106) asserted that the senate operated as a consilium whenever a consul decided an appeal case that was brought to the attention of the senate. This contention is rejected by De Marini Avonzo (supra, n. 84), p. 43. I agree (as does Bleicken (supra in n. 84) p. 154), but not on account of the fact that, as she wrongly believes, the senate itself decided such cases, but because the deciding consul (or consuls) composed a consilium for each individual case.


94SC De Amphiarai Oropii Agris, at. p. 263: ‘ἀπο συμβουλίου γνώμης γνώμην ἀπεφηνάμεθα’.


95 Mommsen, Staatsrecht, II.1, p. 547.


96 It occurred to me that the well-known fact that many senatus consulta are of a rather ‘casuistic’ nature (the SC Iuventinianum (D. 5,3,20,6) is an obvious example) may be explained by supposing that they were instigated by an appeal case decided by a consul who brought the outcome of that case to the senate in order to have his ruling either ratified, or to have a possibly unsatisfactory outcome corrected, by subsequent legislation (per senatus consultum). This would account for the senatorial decisions in appeal cases identified as such by De Marini Avonzo (supra, 84), p. 45–52, but correctly recognized as legislative senatus consulta by Tellegen-Couperus (supra, n. 84).


97 Wieacker, Römische Rechtsgeschichte (supra, n. 3),. II, p. 111: ‘eine seltene Gattung’.


98 Wieacker (supra, n. 3), II, p. 111.


99 See the preface to this part of Julian’s Digesta in D. 1,3,10.


100 There are more than 10 references to Julian in the extant fragments of the works of Pomponius. There is but one by Julian to his contemporary Sextus Pomponius (D. 28,5,42).


101 Gaius 1,4.


102 D. 1,2,2,9.


103 J.D. Grainger, Nerva and the Roman succession crisis of AD 96–99, London 2003, p. 57: ‘another publicity stunt’.


104 See also an inscription found on the Capitol: ‘Libertati ab. Imp. Nerva … restitutae’ (CIL 6,426; ILS 274) and some of Nerva’s coins with the reading Libertas publica.


105 Comp. the reluctance of modern European parliaments to leave important constitutional changes brought about by complex European treaties to a vote of the people, since the matter is ‘too complicated for the people to understand’.


106Supra,n. 87.


107 D. 36,1,1,1 (Ulpianus): ‘Factum est enim senatus consultum temporibus Neronis octavo calendas septembres Annaeo Seneca et Trebellio Maximo consulibus’. See for the problems involved in dating this senatus consultum U. Manthe, Das SC Pegasianum, Berlin 1989, p. 35, n. 1.


108 See on the important role of the senate in the development of the law of fideicommissa also D. Johnston, The Roman law of trusts, Oxford 1988, p. 13–14, and see also Talbert The Senate of Imperial Rome (supra, n. 84), p. 459.


109 Gaius 2,254.


110 See for the problems involved in dating this senatus consultum which was, according to Gaius, 2,254, issued ‘Pegaso et Pusione consulibus’, to which Justinian’s Institutes add ‘Vespasiani temporibus’: Manthe (supra, n. 107), p. 41, n. 1.


111 Manthe, p. 110: ‘Aristos Auslegung wurde nicht mehr in Frage gestellt, sondern vorausgesetzt’.


112 Manthe (supra, n. 107), p. 35–39. See also D. Daube, Forms of Roman legislation, Oxford 1956, p. 78–86.


113 Gaius (2,253) stresses this point: ‘praetor utiles actiones ei … quasi heredi … dare coepit, et in edicto proponuntur’. See also Inst. 2,23,4: ‘post quod senatus consultum praetor utiles actiones ei et in eum … qui recepit hereditatem, quasi heredi et in heredem dare coepit’ (emphases added) and the clarification by Theophilus ad locum.


114 The SC Pegasianum did not apply when the testator had complied with the lex Falcidia by granting a fourth part of his estate to his heir and the rest (dodrans) to a fideicommissarius. In this case, the Trebellianum and its ‘Aktionentransfer’ (Manthe) as brought about by the intervention of subsequent praetores still applied: Gaius 2,255.


115 Gaius 2,257.


116 D. 2,14,16pr. (Ulpianus): ‘rescriptum est a divo Pio utiles actiones emptori hereditatis dandas’. On the relation of this text with fideicommissa: Manthe (supra, n. 107), p. 30, n. 16.


117 On Pactumeius Fronto see Hanslik, PWRE XVIII.2 (‘Pactumeius’ 4), 2155; Champlin, Fronto and Antonine Rome (supra, n. 44), p. 11 and PIR2 VI, no 38 (p. 12–13).


118 On Pactumeius Clemens see Hanslik, PWRE XVIII.2 (‘Pactumeius’ 2), 2154–2155; Champlin, Fronto and Antonine Rome (previous note), p. 11–14; Kunkel, Herkunft und soziale Stellung (supra, n. 16), p. 154–157; Bauman, Lawyers (supra, n. 17), p. 248–249 and PIR2 VI, no 37 (p. 11–12). The Pactumeius brothers were, if not kinsmen, closely related to the orator Marcus Cornelius Fronto, who, like them, came from Cirta in North Africa.


119 D. 40,7,21,1.


120 With whom he is erroneously identified by Karlowa (supra, n. 83).


121 Plinius, Epistulae 2,11,3: ‘Fronto Catius … vir movendarum lacrimarum peritissimus’. Fronto was a son of the poet Silius Italicus. See on Catius Fronto: Groag, PWRE III.2 (‘Catius’ 4); PIR II, no 194 (p. 39–40) and on his role in the downfall of Domitian, Grainger, Nerva (supra, n. 103), p. 7.


122 Talbert, The Senate of Imperial Rome (supra, n. 84), p. 464–466; 473–477.


123 Groag, PWRE XVII.2 (‘Octavius’ 54), 1829; PIR2 V, no 35 (p. 420–421).


124 Groag, PWRE III.2 (‘Caristanius’ 1), 1592; PIR II, no 423 (p. 100–101).


125 Groag, PWRE IV.1 (‘Cornelius’ 279), 1418–1419; PIR II, no 1412 (p. 346–348).


126 Tamburi (supra, n. 3), p. 745, with n. 80.


127 Tamburi (supra, n. 3), p. 745–746 (with further literature). In the German translation of D. 29,2,99 (R. Knütel e.a. (edd.), Corpus Iuris Civilis, Text und Übersetzung) the editors have even taken the bold decision to insert the full name of Gaius Cassius Longinus here. This is rather unlike their usual meticulousness in providing a translation, rather than an interpretation. They do deserve praise though for having avoided the blunder so many of their colleagues have made in the translation of this text (see supra, n. 7).


128 See supra, n. 7.


129 Tamburi (supra, n. 3), p. 748, comes close by suggesting a nota of Aristo on the ‘law reports’ collected, as she presumes, by Iulius Frontinus.


130 M. Rizzi, Imperator cognoscens decrevit (supra, n. 2), p. 132–133, n. 96, does not seem to have an opinion on the nature of the decreta Frontiana, but merely refers to the opposing views of Mommsen and Karlowa without taking sides.


131 Rizzi (previous note) contends that ‘ad eccezione di quelle paoline, sono note poche altre raccolte di costituzioni imperiali riconducibili all’epoca classica’ (emphasis added). The ‘altre raccolte’ she mentions are Papirius Iustus’s Constitutionum libri XX and Herennius Modestinus’s libri Excusationum. As the surviving fragments (Lenel, Palingenesia i, 947–949) demonstrate, the former is not a collection of imperial decreta at all, but of rescripta (probably the first of its kind). The same holds for Septimius Severus’s Apokrimata, mentioned in passing here by Rizzi. Modestinus’s libri Excusationum can certainly not be qualified as a collection of judicial decisions, as is made abundantly clear by the surviving preface by Modestinus himself in D. 27,1,1 pr.–2.


132 On the ‘Peira’ see N. van der Wal and J.H.A. Lokin, Historiae iuris graeci-romani delineatio, Les sources du droit byzantin de 300 à 1453, Groningen 1985, p. 101, and more recently B. Sirks, The Peira, Roman law in a Greek setting, in: Studi Remo Martini, III, p. 583–592, and Peira 45,11, a presumed succession pact, and the Peira as legal source’, in: C. Gastgeber (ed.), Quellen zur byzantinischen Rechtspraxis, Vienna 2010, p. 189 ff.


133 C. 7,45,13.

  • 2

     See, for example, F. Schulz, Roman legal science, Oxford 1946, p. 154 and, more recently, J.-P. Coriat, Le prince législateur, Rome 1997, p. 95, and especially M. Rizzi, Imperator cognoscens decrevit, Profili e contenuti dell’attività giudizaria imperiale in età classica, Milaan 2012, p. 132–133 (Rizzi).

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  • 3

     F. Schulz, Geschichte der römischen Rechtswissenschaft, Weimar 1961, p. 181, following Th. Mommsen, Juristische Schriften, II, Berlin 1905, p. 22 (= Sextus Pomponius, in: Zeitschrift für Rechtsgeschichte, 7 (1868), p. 475–476; further cited as Mommsen JS/ZfR); P. Krüger, Geschichte der Quellen und Literatur des römischen Rechts, 2nd ed., Munich–Leipzig 1912, p. 179; F. Wieacker, Römische Rechtsgeschichte, II, Munich 2006, p. 59 (‘möglicherweise’); Rizzi (supra, n. 2), p. 132–133 and especially Fr. Tamburi, I decreta Frontiana di Aristone, in: Studi in onore di Remo Martini, III, Milano 2010, p. 713–758.

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  • 66

     Fronto, ad M. Caes. 1,6,2. Fronto’s case illustrates that an appellatio ad principem did not yet, in his own time, presuppose a preceding decision a quo: everyone could still ‘call on’ (appellare) the emperor whenever he needed help, even when there was no preceding verdict against him: think of the apostle Paul. Appellatio (ad principem) only obtained the technical meaning we attach to it after the Roman emperors perceived that the normal ordo iudiciorum would be subverted if everyone were allowed to bring his case directly before the emperor rather than the normal courts of first instance. Fronto’s case bears witness to this development. See Orestano (supra, n. 59), p. 196 ff.

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  • 71

     See on this point also Kaser, Das Urteil (supra, n. 52), p. 122.

  • 122

     Talbert, The Senate of Imperial Rome (supra, n. 84), p. 464–466; 473–477.

  • 130

     M. Rizzi, Imperator cognoscens decrevit (supra, n. 2), p. 132–133, n. 96, does not seem to have an opinion on the nature of the decreta Frontiana, but merely refers to the opposing views of Mommsen and Karlowa without taking sides.

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