Rome, the Greek World, and the East, Vol. 3 - The Greek World, the Jews, and the East

 Epilogue

the issue of whether witnesses to a will were slaves or free should not (in this
instance) be raised, since at the relevant time it had been assumed univer-
sally that the persons concerned were free.^19 There are however relatively few
rulings from the rest of the second century, and a dense sequence of such de-
cisions only appears in the Severan period and after, for which the texts (that
is, those addressed to private persons) have been arranged in chronological
order, and analysed, in the ground-breaking work of Tony Honoré.^20
To point to this body of evidence is not to deny that, both as quoted
by jurists and as found in theCodex Justinianus, there may be problems in
understanding these texts, primarily because none is complete as originally
written, and all are in character extracts from rescripts which were origi-
nally longer. What is claimed here is simply that, as a genre, by their nature
as imperial rulings on specific cases, they potentially provide evidence of the
actual real-life application of ‘‘Roman law,’’ in a way which otherwise can
only be matched by papyri or other contemporary documents.
So, perhaps one example will serve to illustrate the significance of this
collection for the actual application of Roman law. This case comes from the
category of imperial rescript which was not studied by Honoré, namely the
reply to a query from an official. In a ruling quoted in theCodex, Severus
Alexander (..–) writes as follows to Iulianus, the proconsul of Nar-
bonensis, evidently in reply to a consultation about the application of the
Lex Iulia de adulteriis, passed under Augustus:

If Gracchus, whom Numerius caught in the act of adultery at night and

killed, was in such circumstances that under the Lex Iulia he could be

killed with impunity, as this act was committed legitimately, then he

[Numerius] deserves no punishment; and the same protection extends

to his sons, who acted in obedience to their father. But if, with the au-

thority of the law failing to apply, it was when rendered reckless by

outrage that he killed the adulterer, although a homicide was [in fact]

committed, because both the darkness and [his] justified outrage serve

to mitigate his action, he may be sent into exile [as opposed to a more

severe penalty].^21

Whether or not the Augustan law had originally been motivated primarily
by concern over the conduct of the upper classes in the Rome of his time,
as is often supposed, it still applied in the early third century, and it was still

.CJ...

. T. Honoré,Emperors and Lawyers^2 ().

.CJ, , . Iulianus is not otherwise known,PIR^2 I.