MANDATA PRINCIPUM *) ay MOSES I. FINKELSTEIN (New Yorx Ciry). It is customary for most modern scholars, when enumerating the types of imperial constitutions, to include mandata along with edicta, decreta and rescripta *). This classification is made despite the fact that no classical jurist did so. The available material on the subject is unfortunately very limited, and the arguments on both sides display considerable doubt and uncer- tainty, One sentence from Buckland will suffice to indicate the confusion. He says that mandata “operated only for the life of the issuing emperor and only in the region to which they were addressed, but in fact they were renewed and often addressed to many districts.” *) No thorough examination of all the available references, 2) The author wishes to thank Prof. A. Arthur Schiller of the Cotumbie University Schoo! of Law, in whose seminar in Roman Low this atudy was begun, Prof, Dr. Ernst Rabel of Borlin for unpublished materials from the Index Interpolationum, and Herrn Paul Abraham for unpublished materials from the Vocabularium Turiaprudentiae Romanae. *) M. Wiassak, Kritische Studien zur ‘Theorie der Reohtsquellen im Zeitaltor der Klsssischon Turiston (Graz 1884). Contra Otto Karlowa, Rémischo Rechtsgeschichte (2 vols. Leipzig 1886), vol. I, p. 662—53 Paul Kruger, Geschichte der Quelten und Litteratur dea romischen Rechts (2 ed. Miinchen and Leipzig 1912), pp. 109—110, holds the view that although mandata wore never considered presisely as constitutiones, such distinctions in classification aro moaningless anyway. B. Kubler, Geschichte des rémischon Rechts (Leipzig and Erlangen 1925), p. 264, would consider mandata ua a type of epistolac. 2) W. W. Buckland, A Text-book of Roman Law from Augustus to Justinian (2 ed. Cambridge, Eng. 1932), p. 20.MANDATA PRINCIPUM. 151 juristic and non-juristic, to mandata in the classical period has ever been made, to my knowledge 4). It has been my opinion for some time that such a study would throw considerable light on the still clouded probiems of the general classification of imperial constitutiones and their validity as sources of Inw. In accordance with this plan, we must first discuss the method of enactment of mandata (addressce, form, publication), and secondly their contents. We will then be able to attempt a solution of the larger problems of the relation of mandata to constitutiones, and of their validity as a source of law. Dio Cassius states that in 27 B.C. Augustus instituted the practice of issuing mandata (!vrolal) to the procurators (Eireoror), proconsuls (dvOvmaro:) and propraetora (avrarearyyol) %). This is our starting-point, chronologically. Wlassak has indicated that the Roman jurists, and the ancients in general, were often inexact in their legal terminology and frequently used the same technical term to mean several different things *). In the case of mandata this linguistic confusion has led to considerable misunderstanding, and has been one of the main factors in clouding the entire situation *). We must carefully distinguish between two different usages of the term mandate *): technical mandate. by means of which the princeps laid down a ruling of law or administration (not necessarily a new ruling), and non-technical mandata which contained instructions regarding an official’s conduct in one particular situation or group of situations, and which in no way set a binding precedent (in 4) The fullest discussion is that of Wlassak, op. cit., pp. 114—47; he also gives a good summary of the earlier literature. See also Kriigor, op. eit., pp. 109—10; Egon Woiss, Studien zu den rémischen Rechts- quellen (Leipzig 1914), pp. 66—79 (includes an oxoellent discussion ef the Republican forerunners of imperial mandata). The article by HL. Kreller in Puuly-Wissowa-Igroll, vol. 14 (Slutigure 1990), vols. 1023—25 is unsatisfactory. 2) Dio Cass. 58.15.4. ®) Wlassal, op. cit., p- 135. The well-lmown careless use of decreta is @ very good case in point. 4) Note tho incorroot use of mandata for senatus consultum by Callistra- tus in D. 50,10.7.1, and Ulpian’s use of mandare edictum in D. 47.12.3.4. ®) Of course, private law mandata do notenter into this discussion at all.152 MANDATA PRINCIPUM. other words, somewhat in the nature of a message). This dis- tinction hes long been known, but has never received proper emyhasis, and was generally disregarded by ancient writers, even among the jurists. It ia, of course, only the first type of mandata which properly belongs in any discussion of consti tutiones and “imperial legislation” +), Etymologically, the term mandata has the meaning of “command” or “order” as well as “something entrusted’. In the technical mandata, both elements appear *). Non-technical mandata may also have this dual meaning *), or they may be merely messages *). It is clear that during the principate mendata were issued solely by the emperor). But a question ecemingly so simple as that of the recipients of the mandata has never yet been treated successfully by modern scholars. ‘The usual statement, is that mandata could be issued to any imperial provincial official including governors of senatorial provinces®). It seems to me, +) A similar double usage, which I call technical and non-technical for want. of better terms, may be seen in both epistulae and decrota, particularly the former. 2) It is to bo noted that imperial mandate thus imply the entrusting of the powers of the omperor to the pracsos. Cf, Trajan’s letter to Pliny (Bp. X 18,2), written to the latter immediately upon his arrival in Bithynia; provineiales, eredo, prospectum sibi m mo intellegent. nam et tu dabis operam ut manifestum sit iMlis electurn te esse, qui ad ecsdem mei loco mittereria. Note also 1D. 4.6.35.2 item procurator Cacsaris, non solumn cui rerum provinciae culusque procuratio mandate erit... OF. Script. Hist, Aug. Aurelian 38.3. 2)'So, for example, the secret orders ‘Tiberius is supposed to have given Gn. Piso to murder Germanicus, Suet. Tib. 52.3; Tac. Ann. 2.43; 3.16. Cf. the froquent use of mandare iuri V2LApr.; 21.6 et al). *) eg. Pliny Ep. X 2 can be multiplied ind ) In republican timen the senate issued mandate. Saa, for example, OGIS 441 (SC do Stratonicensibus) of the time of Sulla, lines 59—60 4 AéyJedlves wir delyort[+ xin 12e “Alin mogrvonlrun dveode di. Sexar praeses, and ésolui is the regular Greek word for mandata, as in Dio 53.15.4. See Weiss, op. cit., p. 66—T1 and the works cited there. In D.60.10.7.1 there ia @ reference to senatorial mandate during the empire, but a senatus consultun is clearly meant. *) So Wlassak, op. cit. p. 1403 Panl Jor, Geschichte und SystemMANDATA PRINCIPUM. 153 however, that true mandata were issued only to governors of provinces, senatorial or imperial), and to no other officials. Both “definitions” of mandata now extant clearly refer them to praesides exclusively: D.1.18.8 (Paulus) nam ot in mandatis principum est, ut curet is, qui provinciae praeest . . . ., and D.48.19.35 (Callistratus) mandatis principalibus, quae praesidibus dantur.... Furthermore, the contents of most of the mandata which we now have indicate quite clearly that they were issued to pracsides alone *). Another small group of mandata contains rulings which applied to all provincial officials, high and low *). The enactments of this group do not refer to any specific problem of official duty, either legal or administrative, but merely to general matters of proper conduct in office. Since the “omnibus” mandata *) were addressed to the praesides specifically (Paulus D. 1.18.3 nam et in mandatis principum est, ut curet is, qui provinciae praeest, malis hominibus provinciam purgare...) though much more general in their des rémischen Privatrechts (Berlin 1927), p. 14; ‘Th. Kipp, Geschichte dor Quellen dea rimixchen Rechts (4 ed. Leipzig and Frlangen 1919), Pp. 69. Ed. Cug, Manuel des institutions juridiques des romains (2 ed. Paris 1928), p. 28, seems to believe that their issuance was limited to praesides, but his language is rathor vague on this point. 3) The pnsnage in Dio 53.16.4, citod abovo, implies that in 27 B.C. Augustus issued mandata to governors of senatorial provinces, as wel as imperial. This ix impossible since Augustus did not receive imperium maius until 23 B.C. But, unless Dio is projecting back into the reign of Augustus @ procedure current in his own time, we must assume that, Augustus did eventually issue mandate to senatorial provinces. In that case, we have here one more bit of evidence against the so-called diarchy theory. 4) Thus D.1.18.3; 1.18.19.pr.; 2.5.25; 87.14.7.1; 47.11.6.pr.; 47.22. pry 47.22.8. pris 48.3.6.15 48.3.10; 48.13.4.2; 48.10.16; 48.19.27. 48.19.35; 49.5.6; Pliny, Ep. X 9 content alone doce not suffice definitely to establ recipiont: Coll. 11.7.4; D. 23.2.65. pr. -1; 29.1.1. p prs Pliny, Ep. X 110—111. 6.3 et quod mandatis continetur, ne donum vel munus 1 vel qui in lio officio erit nccipiat -. .;D. 24.1.3.1 nupserit, i provineiam regit. vel qui ibi meret, contra In the following pascagea the ish the pracses as $ 48,18.5.3; 48.17.5.164 MANDATA PRINCIPUM. application, wo may conclude that the similas mandata regarding marriage and the taking of gifts while in office were also issued directly to the praesides and by them were made known to their subordinates *). Further, in the ease of one of the man- data *), which contains instructions for the itenarchae and clearly refers to them alone, we are told that it was issued to the governor and made public by him by means of an edict *). ‘That leaves only two passages to be accounted for. Pliny (Ep. X. 29) writes to Trajan that Sempronius Caelianus (other- wise unknown, but probably a military tribune *) has reported to him the discovery of two slaves enrolled among the tirones. ‘Trajan replies (Ep. X 30) secundum mandata mea fecit Sem- pronius Caelianus mittendo ad te eos... It seems obvious from the wording of this reply that the mandata referred to had not been issued to Pliny, and that the latter was unaware of their existence. The solution of the passage is to admit that the mandata bad been issued directly to Sempronius Caclianus, and to class them as non-technical. The second passage (Fron- tinus, de aquaed. 110—1115) presents greater difficulty, for Frontinus seemingly quotes ex capite mandatorum. Tt is im- possible to accept, with Frontinus, the issuance of imperial mandata to an official of the city of Rome; every other authority indicates clearly that mandata were limited entirely to the provinces. Nor is it possible to assume thst Frontinus merely 4) Dimilarly D. 48.21.3.7, which could apply to procuratores as well 85 pracsides. *) ‘The singular form, mandatum, is never used i . perhaps: in order to avoid confusion with the private law term. When one provision of the mandata is referred to, the jurists generally used et ita mandatis continetur, or some similar expression. Otherwise, caput ex mandatis was used, to which cf. Kaput (sic) ex SC... in CLL XIV 2112, T 10—11. °) D.98.3.6. *) Soe B. G, Hardy in this edition of the tenth book of Pliny, p. 123. °) Sed fraudibus aquariorumn obnoxium ost, quibus prohibendis quanta cure dobeatur, ex capite mandatorum manifestum erit quod subieci. ‘Caducam neminem volo ducere nisi gui meo beneficio aut pricrum principum habent. Nam necesse est ex castellis aliquam partom aquee effluere, cum hoc pertineat non solum ad urbis nostrae salubri- tater, ged etiam ad utilitatem cloacarum abluendarum,’MANDATA PRINCIPUM. 155 borrowed a provineial ruling, for the quotation contains the phrase urbis nostrae, which can only mean the city of Rome. ‘The solution of the difficulty, it seems to me, lies in Frontinus’ inaccuracy. In the beginning of his work he says (§ 3) that he will discuss quod ius ducendarum tuendarumque sit earum, quae id sanciant poenae lege, senatus consulto et mandatis prineipum inrogutae. Yet in the course of the book he refers to mandata just this once, and once to an edict of Augustus (§ 99). Apparently Frontinus used the term mandata to cover all imperial enactments, and we must throw his quotation ex capite mandatorum out of consideration in our discussion. From the above discussion, it seems to be a necessary conclusion that technical mandata were issued exclusively to provincial governors *). There is no positive indication as to the time when technical mandata were issued, but all indications seem to point to the very beginning of the governors’ tenure, or, more correctly, before they set out for their provinces. Pliny quite clearly had his mandata before he left Rome for Bithynia. Cortain of the mandata mentioned in the Digest, such as the “omnibus” one %), the ruling against accepting gifts*), against marrying a pro- vincial woman 4), or the mandata regarding collegin ®) are of such a nature as to indicate unquestionably that they were issued to the praesides at the commencement of their office- In the absence of any evidence to the contrary, then, we must assume that all mandata were received by the governors at 1) Note that in Pliny, Ep. X 21—22, mandata were apparently given to Pliny for Gavius (not Gabius as in the text) Bassus, praofectus orae Ponticas, specifying the make-up of the latter's bodyguurd. These are non-technical mandata, yet they also were sent to the pracses. *) D, 47.22.1. pri; 47.22.8. pr. -1; Pliny, Ep. X 96.7; Tertul. de Teiuniis 13. Proof that collegia mandata were ismed to the governor at the very beginning of bie term appours in Pliny, Ep. X 33, one of the earliest in the Pliny-Trajan correspondence. Though Pliny does not mention his mandata by name in that lotter, it is quite clear that he already had them at that timo.156 MANDATA PRINCIPUM, this time. The importance of this point will be brought out, later). ‘The form in which mandata were couched can fortunately be determined rather exactly. There are now extant five reputedly exact quotations of mandata. However, one (Frontinus, de aquaed. 111) must be discarded, we have already concluded. Of the other four, three are direct orders to an individual ex- prossed in the second singular imperative *), and very similar in form to reseripta, as in the Pliny-Trajan correspondence, for example. The fourth, by contrast, is a general statement of the will of the emperor, addressed to no one individual *). Insofar as we can judge from this dangerously small number of cases, then, mandata could be expressed in two distinct forms — general and particular *). Mandata which affected lower officials or the inhabitants of the provinces, as, for example, the ruling against the burial of money *), were made public (and derived their authority) by an edict of the governor ®). This is olearly indicated by Marcianus (D. 48.3.6.1) sed et caput mandatorum exstat, quod divus Pius, cum provinciae Asiae praeerat, sub edicto propostiit..., and by Pliny (Ep. X 96.7) quod ipsum facere desisse post edictum meum, quo secundum mandata tua hetaerias esse vetueram Many mandata undoubtedly required no publication, since they could only interest the praeses or one of his subordinates’). 4) See below, p. 164—166, 2) D.47.11.6.pr. preoterea debebis custodire; D.48.8.10 _vineiri iubebie; D.48.19.27.2 vinetos eos custedies et mihi scribes. 5) D.29.1.1.pr. existimavi, ut quoquomodo testati fuissent, rata esset corum voluntas. 4) On an inscription found at Pergamum (IGRR IV 336 = CIL HIT 7086) thore appears a quotation honded [sgaluzor ix r]ér Katougos fvredey regurding Uhe slertaerexéy in Pergusuin, Chix ivieig is limited to that apecifie contest, and heneo is non-technical. Note that even in this caso the mandata were sent to the proconsul of Asia and by him transmitted to the Pergamenes. *) D.48.18.6.3. *) Cf. Weiss, op. cit., p. 77. 7) Both Jora, op. cit.,p. 14, and Kriiger, op. cit., p. 110, say that private persons could also refer to mandata. In my opinion this is too broadMANDATA PRINCIPUM, 187 The great majority of technical mandata now extant may be divided, by content, into two main groups: 1) general rulings segarding official conduct, and 2) matters of court procedure and criminal law, The striking preponderance of these two groups of rulings among the mandate has led several modern scholars to declare that they were the customary subject matter for mandata +). Three arguments may be brought forth, in my judgment, against any such dictum. In the first place, we have far too few examples of mandata to permit one safely to draw any general rule about their content. Secondly, the reason or reasons for the selection of individual mandata by the jurists for purposes of citation must be taken into account *). Finally, a few mandata contain matters of much more far-reaching importance than more administrative and somi-administrative police regulations; and I can see no reason for assuming that many more of this type could not have been issued %). On the whole, it seems to me that we may not safely attempt any generalizations on the matter, but must limit ourselves entirely to an analysis of the content of the now extant texts. Of group one, we have the following rulings: 1) ‘Ihe province must be cleared of all evil-docrs, regardless of their origo *) This caput ex mandatis was apparently an omnibus ruling fa statement. It seoms to me that only those mandata were available to the people as a whole which the governor chose to make public by means of an edict. I ean hurdly conceive of the existence of an archive in the various provinces where tho mandata would be available for public reference. 1) So Karlowa, op. cits, vol. I, p. 653. 2) See below, p. 165—167. 3) We know that the body of mandata gradually grew to enormous size. By the end of the second century there was ® special pro @ mandatis (CHL TEL 930, VI 8813, 8814), wad in Sustiniun's body of mandata was so unwieldy as to be uscless (Nov. 17, prolog.) 4) D. 1.18.3 nam et in mandatis principum est, ut curet is, qui provin- ciae praeest, malis hominibus provincia purgero, nee distinguuntur unde sint. Apparently at some later date this was supplemented by now mandata that pracsides should seek out sacrilegi, latrones and plagiarii and mete out punishment to them in accordance with their crimes (D.48.13.4.2),158 MANDATA PRINCIPUM. issued to every provincial governor from an early time (perhaps even in republican days), and applying to all provincial officials. Wt is perhaps the enactment Tertullian had in mind when he wrote nisi fallor enim, leges malos erui iubent, non abscondi, confessos damnari pracscribunt, non absolui. hoe senatus con- sulta, hoe principum mandata definiunt +). 2) Provincial officials shall not accept sizable gifts *). 3) No provincial shall contract a marriage with a woman from the province in which he on duty 5). By later mandate soldiers fighting in their own patria were exempted from this ruling *). 4) Provincial governors shall maintain a proper distance between themselves and the provincials *). There were undoubtedly many more sueh general mandata issued to all the provincial governors, but they have not come down to us‘). Tt will even be noted that one of those now extant has been retained only by accident, for ruling N°. 3, which dealt with marriage, was cited by the jurists only incidentally 1) Tertul. Apolog..2.14. It is possible that Tertullian here used man- date when he meant constitutiones se did Bson nis, de aquacd. 3. 2) D.1.16.6.8 et quod mandatis continetur, ne donum vel munus ipso proconsul vel qui in alio officio erit accipiat ematvo quid nisi vietus cottidiani causa -.. ®) D.24.1.3.1 nupserit, vel provincialis mulier ei, qui provinciam regit vel qui ibi moret, contra mandate... This ruling is also referred to in D. 25.2.17.pr. and D.34. *) D.23.2.65.pr. cos, qui in patria sua militant, non videri contra mandata ex eadem provincia uxorem ducere idque etiam a mandatis contineri. +) D. 1.18.19.pr. undo mandatia adicitur, ne pracsides provinciarum ulteriorem familiaritatem provinciales admittant. *) D. 1.17.1 presents a serious problem. It reads: Praofectus Aegypti non prius deponit praefecturam et imperium... quam Alexandriam. ingressus sit successor eius, licet in provinciam venerit: et ita mandatis eis continetur. We muxt either class this ax non-technical because of its limited applicability, or we must consider the passage corrupt. S. Solazzi, in Aogyptus, vol. 9 (1928), p. 296—302, thinks this passago is corrupt, and that a phrase which originally appeared before ‘et ita mandatis oius eontinetur has dropped out. Solazzi’s remark that Ulpian must have written mandatis divi Augusti is incorrect, for imperial names are never attached to mandata. The eius clearly means the praefectus Acgypti and net the emperor who issued the mandata. masdamMANDATA PRINCIPUM. 159 to a discussion of other matters: namely, gifts between husband and wife), the actio rerum amotarum ®), and succession *), ‘The question arises how much of Bc 1,18 (de officio praesidis), in which two of the above rolings appoar, contains material to be found in mandata, even though they are not so cited. ‘The answer is simple — we cannot tell. For, as we shall soon see, the subject matter of imperial “legislation” was not divided up in stereotyped fashion among the various types of enactments. In fact, the very contrary was true — upon a great majority of the subjects dealt with by the emperor, the various types of enactment were all used at one time or another, senatus consulta as well as constitutiones and mandata. Henoe, in no case can we say with certainty that there were no mandata, on a particular matter, and further, 1 shall show that mandata were never the sole authority for any ruling « ‘The second group of technical mandata must also be treated in catalogue fashion: 1) No one shall be condemned to life imprisonment *). 2) Parricide by decuriones is to be punished poena legis Corneliae *). 3) If a defendant dies before judgment is rendered, his property shall not be confiscated ’). 4) Anyone condemned ad gladium must be put to death within one year *). 5) Patroni must not be allowed to testify in cases in which ») p24... 3) D.25.2.17. pr. 9) 1D.94.9.2. 4) See below, p. 165. When a man like Pliny was sent out to a province, the emperor was constantly being annoyed with requests for further elucidation of the instructions contained in the mandata, Note Trajan’s tone of annoyance in several of tho letters in the Pliny correspondence at Pliny’s apparent inability to make decisions for himself. 5) D.48.19.35 mandatis principalibus, quue praesidibus dantur, cavetnr, ne quis perpetuis vineulis daranotur. *)D.48.10.18 Divas Hadrianus cos, qui in numoro docuri essen’, eapite puniri prohibuit, nisi si qui parontem oecidissent: verum pocna logis Comeliae puniendos mandatis pleniasime cautum est. 7) DA8.21.3.7 si ‘autem sub incerto eausae event in vinculis vel sub fideiusoribus decesserint, horum bona non ose confiscunda mandatis eavotur. *) Coll.21.7.4 nam ad gladium damnati confestim gonsumuntur, vel certo intra annum debent eonsumi; hoc enim mandatis continetur.160 MANDATA PRINCIPUM. they appear in their capacity of patroni 1). 6) Freedmen shall be punished according to their delicts *), 7) Ironarchae should question latrones about their accomplices and fences, and then send a sealed report to the triul magistrate *). 8) Magistrates shall be fined for releasing prisoners without cause *). 9) Goods of requirendi shall be kept sealed for one year, so that if they return within that time and clear themselves, they may receive their property back intact; if they fail to return within one year, their property is confiscated by the fiscus *). 10) A magis- trate who refuses to grant an appeal must write up his reasons and send a copy thereof to the litigant *), 11) If a decurion or a principalis civitatis is exiled in insulam, a copy of the decision shall be sent to the emperor 7). 1) D.22.5.25 mandatis cavetur, ut pracsidos attendant, ne patroni in causa cui patrocinium praestiterunt tostimonium dican #) D. 37.14.71 mandatis imperatorum cavetur, ut etiam in provinci preesides de quorellis patronorum ius dicentos secundum delictum admissum libertis poonas irrogont. 5) D.48.3.6.1 sed ot caput mandatorum exstat... ut irenarchae, cum adprehenderint tatrones, interrogent eos de sociis et receptatoribus et interrogationes litteris inclusas atque obsignatas ad cognitionem magistratua mittant. 4) D. 48.3.10 mandatis ita cavetur: ‘Si quos ex his, qui in civitatibus sunt, coleriter ot sine causa eolutos a magistratibus cognoveris, vinciri iubebis et his, qui solverint, multam dices. nam cum scierint sibi quoque molestiae futurum mugistratus, si facilo solverint vinetos, non indiffe- renter de cetero facient.’ 5) D.48.17.5.pr. mandatis cavetur intra annum requirendorurn bona obsignari, ut, si redierine et se purgaverint, integram rem suam hhabeant: si neque responderint neque qui se defendant habuerint, tunc post annum bona in fiscum coguntur. *) D.49.5.6 oumque, qui appellationem non receperit, opinionem suam confestim por rolationom manifestarc ot causam, pro qua non rocepit appellationom, ciuaque exemplum litigator! odere debore mandatia, cavetur. 1) D.48.19.27.1 do decurionibus ot principalibus civitatium, qui capitale admiserunt, mandatis cavetur, ut, si quis id admisisse videatur, propter quod relegandus extre provinciam in insulam sit, imperatori scribatur adjocta sententia a praosido. Lonel, Paling., thinks qui capitale admiserint to be a gloss, Note further D. 48.19.27.2 alio quoque mandatorumMANDATA PRINCIPUM. 161 It is to be noted that this group of mandata, like group one, contains no provisions which could not apply to all provinces equally, or at least to a large group of provinces, and that was apparently the case *). True, ruling N°. 7 is cited by Marcianus as having been issued to Antoninus Pius when he was governor of the province of Asia, In no other case is the praeses named, and it scoms to me that Marcianus added his name here merely because a future emperor was involved, and not because the ruling was in force only in Asia. The matter discussed was certainly one of much wider applicability, though limited to the eastern provinces. ‘There still remain a few technical mandata, which deserve separate treatment. They are also, as a matter of fact, rulings which can be classified under the general heading of the gover- nor’s police power, but their importance was so much more fi reaching than any of the provisions of group two, that they seem to me to be worthy of being set apart from the latter collection, Of primary importance in thi group are the mandata relating to collegia, ordering the praesides to dissolve all illicit collegia, including vollegia uf soldiers in the cuimps %). Another caput ex mandatis granted soldiers the right to draw up their testaments in whatever manner they desired *). Finally, there cinium fecorint aliudve quod facinus, ut capitate poonam meruisse videantur, commiserint, vinctos eos custodies ot mihi scribes ot adicies, quid quisque commisorit.' The connection between these two passages is not quite clear, but is probably chronological. 2) See the discussion below, p. 188—169. 2) D.47.22.L.pr.; 47.22.8. pel; Pliny, Hp. X 96.7; ‘ortul. do Teiuniie 13. 4) D. 29.1.1. pr. Caput ox mandatia: ‘Cum in notitiam meom prolatum de tostamenta @ commilitionibus relicta proferri, quae posaint i, si ad diligentiam legum revocentur et obser- sooutus anim moi integritudinem orga optimos fidolissimosque commilitiones simplicitati corum consulondum existimavi, ut quoquo- modo testati fuissent, rata esset eorum voluntas. faciant igitur tosta- menta quo modo volont, faciant quo modo poterint sufficiatque ad bonorun suorum divisionom fociondam nuda voluntes tostatoris.” A fragment of this passage bas boon found in Baypt (P. Fay. 10) and was identified by O. Plasberg in Woch. f. kel. Phil., vol. 18 (1001), cols. 14142. wn162 MANDATA PRINCIPUM. are three economic mandata: 1) money may not be buried +); 2) praesides shall prevent dardanarii (speculators in grain) from. cornering the grain markets and hence forcing up the price of the annona *); and 3) large grants of public money as gifts to individuals are forbidden °). ‘We are now in a position to discuss the various problems projected at the beginning of this article. That there was con- siderable overlapping among the various constitutiones is clear. It is equally clear that both mandata and constitutiones were frequently issued on the same point of law §). But is this sufficiont reason for including mandata among the constitutiones? I believe not. In not a single instance did a Roman jurist of the classical 4) D. 48.13.53 at pecunia sopeliri non potest, ut ot mandatis princi- palibus cavetur. Note Appleton’s emendations of this whole passage in Nouv. Rey. Hist., vol. 40 (1916), p. 51. 3) D.47.11.6. pr. mandatis donique ita cavetur: ‘Praeterea debobis eustodire, no dardanarii ullius mereis sint, ne aut ab his, qui coerptas merces aupprimunt. aut a locupletioribus, qui fructus suos acquis pretiis vendero nollent, dum minus uberes proventua exspectant, annona. oneretur.” °) Pliny, Ep. X 110—111. In this group also belongs D.18.7.6 cui pacto vonditoris pomerio cuiuslibet civitatis interdictum est, Urbo otiam jinterdietum esse videtur. qued quidem alias cum principum mandatis prasciperotur, ctiam naturalom habet intollectam, ne scilicet qui careret minoribus, fruatur maioribus. This toxt is apparently corrupt. Beeeler, in his Romantische Studien in SZ 60 (1930) p. 21-22 reconstructs. it as follows: , cui pacto venditoris pomerio [cuiuslibet civitatis] interdietum est, urbe otiam , interdictum esse videtur. Cet ita prineipum. mandatis continetur> [quod quidem .... maioribus]. This attempt is incorrect for two reasons: 1) pomerio is not ,,natiirlich urbis Romac", and 2) if we accept Bescler’s reading, the mandata were se of the city of Rame an impossibility, *) Mandata and rescripta: D.1.16.6.3; 47.2.1. p 48.17.5. pr.-2; 48.19.35; Pliny, Ep. X 56—57, 98—97. Mo edicta: D. 47.1.6. pr.-1. Mandata and econstitutiones (type not specified): D.29.1.1. pr; 48.13.42; 48.13.5.3—4; 48.19.15, Mandate and SC and constitutiones: D. 47.22.3. pr. -1. These lists are by no means complete, It is important to note that apparently in tho majority of casos tho overlapping is botwoen mandate and reseripta.MANDATA PRINCIPUM. 163 Period allocate mandata to the constitutiones. The argument of those scholars who omit mandata from the catalogue of the constitutiones is based primarily on the following passages: Gaius I 5 constitutio principis est, quod imperator decreto vel edicto vel epistula constituit. ‘Ulpianus D.1.4.1.1 (= Inst. 1.2.6) quodeumque igitur imperator per epistulam et subseriptionom statuit vel cognoscens decrevit crlocutus oat vol adioto praseepit, logom exse constat. vel do plane hace sunt quas vulgo constitutiones appollamus 1). Marcianus D.47.22.3, pr.-L collegia. si qua fuerint illicita, man- datis ot constitutionibus et senatus consultis dissolvuntur... in summa autem, nisi ex senatus consulti auetoritate vel Casraris collegium vel quodcumque tale corpus eoierit, contra senatus con- sultum et mandate eb constitutiones collegium celebrat. Marcienus D.48.13.4.2 mandatia autom cavetur do sacrilegiis, ut pracsides sacrilegos latrones plagiarios conquirant et ut, prout quisque doliquerit, in eum animadvertant. ot sie constitutionibus eavetur, ut sacrilegi extra ordinem digna poena puniantur 9), Ulpianus D. 47.11.6. pr. quorum avaritiae obviam itum ost tam mandatis quam constitutionibus *). We may also udd to this group, though it sages from Suetonins of little value as evidence, two ‘Titus 6.1 receptaque ad se propre omnium officiorum cura, eum, Patris nomine ot cpistulus ipse dictaret et edicta conscriberot ora- tionesque in senatu recitaret etiam quaestoria vi : 3) On D.L44.1 and Gaius I 6 see H. Kxeller, ,,Zar Lote der klessi- schen Juriston tiber das Gesotzgobungerocht des Prinzeps” in SZ 41 (1920), p. 262—72. We need not go into the question of interpolations in connection with these two passages, since enough unquestioned material remains to make the argument: valid. 2) Both Solazzi in Archivio Giuridico, vol. 94 (1925), p- 68, note 2, and Niedormeyer in Studi Bonfante, vol. IT (Milano 1930), p- 385, note 13, consider the senten - ptiniantur to be interpolated. See the remazka in the preceding note. *) Rudorff, Rémische Rochtsgoschichte (2 vols. Leipzig 1837-59), vol. I, p. 137, note 18, suggests that this passage, with its uso of tam mandatis quam constitutionibus, may be eliminated as a stylistic form similar to Vat. Fr. 126 tam ox rescriptis divoram, quam ex constitutio- nibus imperatoram nostrorum. ‘This argument is invalid, since in the Jattor case Papinian was distinguishing between reseripta of preceding emperors and other constitutiones of the then existing emperors, not ‘Dotwoen reseripta and eonstitutiones az such. et 5164 MANDATA PRINOIPUM, Domi ingoni ‘The opposing school, who would include mandata among the constitutiones, base their argument on the similarity in content of the various imperial enactments. Kriiger, as has been indi- cated +), states that it makes little difference whether we call mandata constitutiones or not, since they contained valid legal rulings, and thus had equal force with the constitutione: It seems evident from an examination of the above materials that the Roman jurists, insofar as they considered problems of classification at all, did not regard mandata as constitutiones. But the further question arises: was thcir classification a good one? In other words, should we assign mandata to the constitu- tiones despite the failure of the Roman jurists ta do so? The burden of proof lies with those who would answer this question in the affirmative, and, in my judgment, they have failed to make their point good. In addition to the strong argument presented by the juristic classification, I wish to prosent another factor leading to the same conclusion, which has, to my know- ledge, been completely neglected by modern scholars. To this end, we start with the conclusion arrived at earlier in the discussion *), that mandata were issued to the praesides at the time they set out for the provinces, and at that tinie only. ‘The mandata would be prepared by one of the bureaus in the imperial service, according to a more or less standardized form °). After a governor had arrived in his province, he would receive 20 epistulas orationesque ot edicta alieno formabat 4) Seo above, p. 150, note 2. 2) See above, p. 155. 8) It is true that wo have but one certain referonce to a procurator 4 mandatis, and that from the time of Alex. Severus (CTL III 536). Rit by analogy with constitutions and similar mattors, wa muat assume the existence of such an official early in the imperial period. For a long time mandata may have beon propared, not by a special official, but ‘by one of the other bureaus, but that in no way affects our problem. ‘The nature and scope of the emperor's responsibilities makes it necessary to conclude, a priori, thet he could not personally have prepared the mandata. If any proof is necessary, seo Suet. Titus 6.1 and Dorit. 20, quoted above.MANDATA PRINCIFUM. 165 all new imperial rulings in the form of one of the three types of constitutiones, but never by additional mandata. Primarily, then, the body of mandata made up a sort of code for the gover- nor, embodying many or all of the then existing enactments which applied to his office. It is possible, by coincidence, that at the very moment that a set of mandata was being issued to & praeses, the emperor had promulgated a new ruling, which ‘would immediately make its appearance in that set of mandata. But only in such exceptional cases, if ever, were mandata new rulings. Now, if we define a constitutio as the enactment by the emperor of a new rule of law, or a re-interpretation of an existing principle, and I believe that we must define it in this fashion }), then it follows that mandata were not constitu- tiones 2). ‘We are now able to explain the paucity of citations of mandata in the Digest. It is not due, in my judgment, to the comparative unimportance of this type of enactment, as some scholars would have it). The more correct explanation, I believe, is that the jurists preferred to cite the original source of each legal principle, land hence quoted the various constitutioncs rather than the mandata which followed later‘). It is hard to determine just why the jurists did cite those mandate. which are now extant, though in a few cases a reasonably certain explanation can be given. Thus, in the case of free military testament 5), Ulpian 1) A discussion of tho legislative powers of the emperor would be out of place here. *) One other point presenta some proof, namely, that constitutiones were invariably identified by the name of an emperor, mandata never, 3) ©. g. Karlowa, op. cit., vol. I, p. 652. *) Tho fact that, barring further innovations, mandate were always preceded by constitutiones clears up another troublesome question. In discussing 1D.48.19.25, Wlassuk, op. cit... p. 141—42, was puzzled by the problom of chrondlogy. He concluded that if the reseript cited in D.48.19.35 was older, then the mandata merely re-apecified for the provinces what Hadrian had already ruled in general, but if the caput ex mandatis was older, then the rescript extended the ruling to Italy. Actually, no problem exists, for I have shown that the mandata followed the reseript, and universalized the ruling found in the earlier enactment. *) D.29.1.1. pre166 MANDATA FRINCIPUM, quotes the full caput ex mandatis because it was the final imperial statement on the subject, following a long line of imperial “legislation” from Julius Caesar to Trajan. In this ease, where the matter had been treated over and over again, undoubtedly in varying forms, it was only logical that the doctrine should have been presented by Ulpian in the form in which it was finally fixed 1). The linguage of other passages seems to indicate that other jurists also considered this caput ex mandatis as the final authority on military testament %). . ‘The enactments on collegia present a somewhat different 4) Wlassak’s suggestion, op. cit., p. 145, thut the reference to mandata, might be explained on the ground that a collection of mandata was more readily available to the jurists than any other, is inadmissible in the face of the overwhelming proponderance of constitutiones over mandata in the Digest. ®) Thus of. D. 29.1.1. pr. faciant igitur testamenta quo modo volent, faciant quo modo poterint with Gaius II 114 militibus, quibus propter nimiam inpetiriem, ut diximus, quomodo velint vel quomodo possint, Permittitur testamentur facere; and with D.29.1.40. pr. (Paulus) respondi militibus, quequo modo velint et quo modo possunt. testamen- tum facere concessum esse. Besoler, Beitr. IT 10 considers ot quo modo possunt in the leat passage interpolated, but Buckland has pointed out [Yale Law Journal, vol. 33, (1924) p. 362—63], correctly I think, that tho similarity in language with D. 29.1.1. pr. makes Boseler’s view impossible; s0 also F. Pringshoim, Der Kauf mit fromdem Gold (Leipzig 1916), p. 149, note 3. See also Ulpian, Reg. 23.10 and D. 29.1.44 for other uses of the same expression. Note that in Trajan’s rescript to Statilius Severus (D.20.1.24 = Inst. 2.11.1), which by my thoory must have preceded the mandate, slightly different language is used, viz., quoquo modo facta ab his testamenta rate sint (the phrase quo modo poterint is nowehere in evidence). As a last point, note Ulpien, Reg. 23.10 nam principalibus constitu- tionibus permissum est illis, quo modo cumque vellent, que modo cumque Ppossent, testari, und Gaius (D. 29.1.2) de militia testamento ideo sepura- tim proconsul odicit, quod optime novit ex constitutionibua principalibua propria atque singularia jure in tostamenta corum observari (cf. Gaius IL 109). Those passages by no means indicate that Ulpian and Gaius con- sidered mandate to be constitutiones, even though whilo their language seems to be borrowed from the caput ox mandatia on military testament, they rofer to constitutiones. The answer lies in the fact that the source of theso rulings was in constitutiones, not in the mandata (seo tho toxt below), Wlaseal, op. cit., p. 146—47 contra,MANDATA PRINCIPUM. 167 situation from military testament. It is important to realize that Marcianus, the source of the two leading passages on col- legia, wrote his treatises for the use of the provincials, espe- cially in the Orient +). It was only natural, then, that his interest, should center about the enactments which applied specifically to the provinces, and further, about the mundata which all the provincial governors carried with them from Rome, and which contained so many laws of vital importance to the pro- vincials *). On the subject of collegia, as with military testament, there had also been a long line of imperial and senatorial legis- lation, beginning with Augustus *). In one passage (D.47.22.3. pr.-1), Marcianus groups these various enactmonts together and says collegia si qua fuerint illicita, mandatis et constitu- tionibus et senatus consultis dissolvuntur. In the other passage (D. 47.22.1. pr.), he follows the example of Ulpian in D. 29.1.1. pr. and cites the mandata alone, viz., mandatis principalibus praecipitur praesidibus provinciarum, ne patiantur esse collegia sodalicia. neve milites collegia in castris habeant. The reason for this singling out of mandata is twofold: 1) because this form of citation indicates the universality of the ruling, and 2) because of Marcianus’ special interest in the provinces *). Finally, we come to the problem of the “Gesetzeskraft” of mandata. It seems to mo that the preceding materials casily Jend themselves to a solution of this question, a solution which @iffers from any yet suggested, to my knowledge 5). It is 4) Seo C. Ferrini, “Intorno alle Istituzioni di Marciano”, in Rend, Ist. Lomb., sor. IL, vol. 34 (1903), p. 736—41 [reprinted in his Opere, vol. II (Milano 1929), p. 285—90], 2) Yot oven Marcianus cites mandata but soven times, oftener than. any other jurist but Ulpian, — a furthor indication of the jurists? proferonce for vonstitutiones. *) Seo J. P. Waltzing, Etude historique sur les corporations profes- sionelloa chez les rornains (2 vols. Louvain 189596), vol. I, p. 114—135. 4) Note that Gaius, in referring to the same matter in D. 3.4.1 saya nam ot legibus et sonatus consultis et prineipalibus constitutionibus en Tes cocrestur, omitting all reference to mandata: *) Most modern scholars are very ovasive in their comments, e.g. Buckland as cited on p. 150. Wlassak, op. cit., p. 140, thinks that mandata wero only temporary measures, and that they applied ordinarily168 MANDATA PRINCIPUM. necessary to differentiate between the two problems of 1) whether mandata were a source of law, and 2) whether or not they applied universally. I think that I have clearly shown that mandate were nat a source of law in the sense of originating new legal doctrines. Nevertheless, they did have “Gesetzeskraft” 1), as is clearly indicated by the fact that they were at times cited by both jurists and non-jurists, such as Pliny the Younger, as the sole authority for some legal principle. The fact that in ihose cases the original source of the law was not the mandata, tn no way affects their validity 2): ‘There can only be one answer to the second question in the light of what has already been said regarding the method of enacting mandata, namely, that they applied to all the provinces of the Roman empire and remained valid until specifically abrogated *), Further proof appears in our discussion of military testament — Ulpian’s quotation of the caput ex mandatis in D. 29.1.1. pr. clearly indicates, in my judgment, that the validity of mandata could not have been limited to one province *) Again, the fact that in no instance are mandata coupled with the name of any emperor 5), shows that their validity was not. only to the district under the official addressed. Most other scholars, ©. g. Kriiger, op. cit., p. 110, Weiss, op. cit., p. 77—79, and Kipp, op. cit, p. 68, hold the view that originally this was true, but that before long mandate became tralaticia and applied to all provinces. 1) So Winsaak, op. oit., p. 13738. *) So Wlassak, op. oit., p. 138, Kriiger, op. cit., p. 110, and Jora, op. cit., p. 14. Kuntze, Excurse tiber rémisches Recht (2 ed. Leipzig 1880), p. 315, holds the peculiar view that it is in the mandata that the emperor most fully expresios his wish, independently of comivia and senate, and is truly lawgivert 4) It ia impossible to dotormine when this devolopmont occurred, but Trajan's reign is the terminus ante quem, es is indicated by D. 29.1.1. pr. and Pliny, Ep. X 96.7. 4) Te is possible thot, thoorotically, mandate only applied in the province under the praeses to whom they wore issued. But since the same mandata were issued to all the pracaides, this distinction would have no value. Special, temporary mandate such os in Pliny Ep. X 38.2—3 are non-technical and hence excluded from the discussion +) Constitutiones wore always identified by the names of the emperors who issued them.MANDATA PRINCIPUM. 169 limited to the reign of the issuing princeps). Finally, since in all but one case no praeses is named #), in contrast to the frequent citation of tho recipients of rescripta, we must accept the view of the geographical universality of the application of mandata. Italy, of course, is to be excepted, since mandata, could only be issued to provincial governors 8). In certain cases, also, mandata may -have applied only to the eastern group of provinces, or only to the western group. Since we have but one example of such a ruling, however 4), T consider it be an exceptional situation. Before closing I should like to present two problems in con- nection with imperial legislation which I think merit further study in the light of this discussion: 1) the translatio of con- stitutions, and the relation of mandata to this question, and 2) the subject matter of the imperial rulings as it was divided up among the various forms of enactment). 2) So aleo Kriiger, op. cit., p. 110. *) The exceptional nature of that caso has already been discussed above, p. 161. *) 1.52.14 & pracfectis vero practorio vel 0, qui vio practectis ox mundatis prineipis cognoacet.... has two possible expla anations. Either it is corrupt, or tho reference is to mandata in their non-technical sense. I prefer the latter. There can be no doubt that technical mandata are in no way involved here, 4) D. 48.3.6.1 quoted above, p. 160, note 3, and discussed p. 161. +) It may be noted here that Wengor, in Stroux-Wonger, “Dic Augustus Inschrift auf dem Marktplatz. von Ryreno” in Abh. der Bay. Ak. der Wiss., vol. 34, N°. 2 (1928), p. 69, considers the first and fourth Cyronion edicts of Augustus to be mandata. Tho form (use of iéyes) dotinitely argues against this point [A. v. Premerstein in SZ 48 (1928), p. 434], but Wenger thinks that the content “ist doch dor typische Tnhalt eines Mandate.” I have already indicated that thie argument is valueless, and I find no other reason for not accepting the Cyronian group to Be dicts.