“De cognitionibus” by Callistratus: the addressee and genre (revisiting genre peculiarities of the public law treatises by lawyers of the Severus period)
53 fragments (14.5 columns according to the edition of O. Lenel) remain from the treatise “De cognitionibus” (in six books) written by Callistratus during the reign of Septimius Severus. Interesting and sometimes unique evidences that are found in it are widely used by contemporary historians and romanists. In order to appreciate accordingly their credibility and information capacity it is essential to have an understanding of the context and, in particular, of the genre belonging and addressee of the famous treatise. In this regard certain issues still remain unclear.
F. Shultz considered this treatise among monographs on law of procedure without giving any reasoning to support such a point of view.
In a monograph on this treatise R. Bonini stated a certain similarity between the content of some of its fragments with the Ulpian’s treatise “De officio proconsulis”. In his opinion, one shouldn’t lay much emphasis on this similarity. Even though in a certain part of Callistratus’s treatise the provincial magistrate comes into the spotlight, nevertheless, this treatise is substantially different from the “De officio…” writings both in the system of material presentation and in its substance. However R. Bonini didn’t show to what legal literature genre precisely belongs this treatise and to whom is it addressed avoiding thereby giving a general characteristic.
S. Puliatti, proving in his monograph on the “De iure fisci” treatise that Callistratus had a provincial background, described “De cognitionibus” as a writing dedicated to judicial and administrative procedures typical for the province and in its content generally coinciding with the treatises “De officio proconsulis”. But S. Puliatti doesn’t use this observance to come to a conclusion on the belonging of this treatise to a certain genre.
As I can see it, the treatise “De cognitionibus” as well as the Ulpian’s treatise “De officio proconsulis” is a practical guide addressed to the province governors of the Severus period. To prove this thesis, we shall compare the characters of each of the treatises. To my knowledge, nobody has done this before.
109 fragments remain from Ulpian’s treatise, written in ten books (24 columns according to the edition of O. Lenel). Thus, the degree of integrity is quite the same for both texts and is extremely substantial as compared to the integrity of the other legal texts of the day, which gives us a possibility to compare them.
The Ulpian’s treatise may by divided into three major parts: 1) an introduction contained in the first two books is concentrated on a general characteristic of the governor’s responsibilities and his jurisdiction. 2) A section in books three to six on allocation of honorary posts and duties in the municipia and on private law. Apparently, their common point is that in both cases disputable matters are considered according to procedures for private persons (iudicia privata). 3) A section on criminal procedure and law (ius publicum) in books seven to ten.
The fact that the structure of the main part of the treatise conforms fully to the main responsibilities of the governor of a peaceful province (not situated on the border): provision for regular tax and tribute revenues by care for the municipal finances and equitable distribution of honorary posts and duties in municipia, as well as maintenance of the public order by means of criminal procedure. Several particular features may be deducted from this treatise that are typical for practice guides and are addressed to the province governors. F. Schultz pointed out such features as the exoteric style, intended for nonlegal readers, and usage of the imperial constitution as the main source. It should be noted that referring to the imperial constitutions, Ulpian quotes most often those intended for the province governors: imperial mandates (three quotes: Coll. 11.7.4; D. 188.8.131.52; 47.11.6pr.) and rescripts addresses to certain governors. 61 rescripts are contained in Justinian’s Digests and other surviving legal compellations and separate works. 30 of them, that is almost a half of the total quantity, are mentioned in Ulpian’s treatise “De officio proconsulis”.
The practical guides as were the treatises “On the duties of governors” are also characterized by special attention to most typical and frequently encountered in practice situations and decisions. That is why such expressions as “governors use to (solent)”, or “in most cases (plerumque, magis est) governors act that way”, or “there is a wealth of examples of governors acting that way”, or “many governors (plerique presidium) act that way, or “it is usual practice (frequens est) in court of governor”, or “it is a custom (moris est) for the governor to act such way” can be found quite often in Ulpian’s texts.
Since, as Ulpian notes in the beginning of his treatise, “universal jurisdiction is vested in the proconsul” (D. 184.108.40.206) “there is no such case in province that he could not resolve himself” (D. 1.16.9pr.), it is sometimes specially indicated that this case lies in the sphere of cases that governors use to resolve “ad praesidis cognitionem spectat” and “ad executionem praesidis pertinet”.
In treatises addressed to the province governors, Ulpian’s in the first place, a considerable attention is paid to local customs and norms that cannot be set aside by the central authorities.
Finally, Ulpian’s treatise “De officio proconsulis” is characterized not only by the attention to the content but also to the form of activity of the governor – etiquette and rituals. The introduction to his text is to a considerable extent dedicated to this matter, including two books on the arrival in the province and general questions (procedural in the first place).
Speaking about the structure of the treatise “De cognitionibus”, it is possible to point out (following O. Lenel) an introduction, then a definition of the main four categories of cases considered in an exceptional order (D. 50.13.5pr.), and a subsequent material presentation in separate categories.
In the introduction the governors are explained the meaning of the wording that constantly appears in the imperial rescripts addressed to them (D. 1.18.9). After that the governors are told, with reference to the imperial mandata, how should they behave in order to prevent impairment of their merits (D. 1.18.19). Recommendations of similar content and form may be found in Ulpian’s treaties “De officio proconsulis” (cf. D. 220.127.116.11 – relating to the behavior during court proceedings allowing the proconsul to maintain his “dignity”).
It can readily be seen, the Callistratus’s monograph is composed of the introduction and three main sections: 1) Honorary posts and duties (first category of cases), as well as civic honor (existimatio) (second category) 2) Proceedings in private cases and private law (third category) and 3) Maintenance of the civic order connected to the criminal proceedings and law (fourth category).
The first two sections of the main part correspond to the second section of the Ulpian’s text, dedicated to municipal cases and ius privatum. The last section in Callistratus’s text almost entirely corresponds to the last Ulpian’s section and even ends, if the reconstruction by O. Lenel is to be trusted, by a title on the property of the convicts. Only a short conclusion on the departure of the governor from the province is lacking. The principle itself of material systematization introduced by Callistratus, is in full accord with the hereinabove defined structure of the main responsibilities of the governor.
Finally, the province governor’s figure takes center in all Callistratus’s text and not in a part thereof. This fact is confirmed by a multitude of direct and indirect evidences, but not to the contrary where a judge would not be a governor.
At a later stage we can often see recommendations to the governors (D. 1.18.9; 22.5.36; 50.1.37; 18.104.22.168; 48.19.27pr.; 22.214.171.124; 126.96.36.199), four references to the imperial mandates (D. 188.8.131.52-2; 1.18.19; 184.108.40.206) (no other roman legal treatise has more than four such references), as well as references to imperial rescripts addresses to the governors. In a comparatively small Callistratus’s treatise, 10 such rescripts are mentioned, and moreover, no other roman legal treatise (excluding the Ulpian’s work) has over two such allusions.
Further more, Callistratus pays much more attention to the local customs and norms(D. 50.6.1; 50.2.11; 220.127.116.11; 50.9.5) and situations, most frequently observed in governor’s practice. There is an expression proper for treatises-instructions addressed: “praesidum provinciarum cognitio est…” (D. 50.1.37).
All that gives us a possibility to assert that both the treatises by Callistratus and Ulpian were a practical guide for the governors.
 R. Bonini, I “Libri de cognitionibus” di Callistrato: ricerche sull’elaborazione prudenziale della “cognitio extra ordinem”, Milano 1964, 31 ss.
 S. Puliatti, Il “ De iure fisci” di Callistrato e il processo fiscale in eta severiana, Milano 1992, 24-34.
 On main duties of provincial
governor see G.P. Burton, The
 Traianus: D. 2.12.9; 18.104.22.168; 22.214.171.124; 48.19.5pr.; Hadrianus: Coll. 1.6.1-4; D. 126.96.36.199; Coll. 13.3.1-2; D. 188.8.131.52; D. 48.16.14; D. 48.18.1pr.-1 and 5; D. 184.108.40.206; D. 220.127.116.11; D. 48.20.6; Antoninus Pius: D. 1.6.2; D. 18.104.22.168; D. 22.214.171.124; D. 126.96.36.199; D. 188.8.131.52; D. 48.6.6; D. 184.108.40.206; Coll. 15.2.4; D. 37.5.7; Marcus Aurelius et Lucius Verus: D. 220.127.116.11; D. 47.18.1pr.; D. 18.104.22.168; D. 50.4.6pr.; D. 22.214.171.124; Marcus Aurelius et Commodus: D. 50.6.3; Vat. Frag. 119; Septimius Severus et Caracalla: D. 126.96.36.199.
 Solent: D. 1.16.6.pr.; 1.3.33; 48.3.1; 188.8.131.52; 184.108.40.206; 48.18.1pr.; 220.127.116.11; 18.104.22.168; 22.214.171.124; 126.96.36.199; Coll. 14.3.3; D. 188.8.131.52; 48.19.8-12; 184.108.40.206 et 17; 220.127.116.11; 18.104.22.168-7 et 10-11; 48.20.6; Plerumque: D. 16.9.5; 48.20.6; Magis est: D. 22.214.171.124; Multa extant exempla: D. 126.96.36.199; Multi: D. 48.13.7; Plerique presidum: D. 48.19.6 pr.; Frequens est: Coll. 14. 3.1; Moris est: D. 48.19.9pr.
 Diuturna consuetudo: D. 1.3.33; Moris est: D. 188.8.131.52; Mores et consuetudo: D. 16.7pr.; Lex municipalis: D. 50.3.1; Consuetudo civitatis vel provinciae: D. 1.3.34; Mos provinciae: D. 47.11.9-10.
 D. 184.108.40.206; 48.3.12pr. (two rescripts); 220.127.116.11; 18.104.22.168; 47.21.2; 22.214.171.124; 42.1.31; 126.96.36.199; 188.8.131.52.