Roman Public Life

by A. H. J. Greenidge

Non egeat—

words which almost certainly mean “it is seldom that such merces does not lead to a court of appeal.”

It may seem strange that the veto of these purely city magistrates should be thought of in connexion with municipal jurisdiction, until we remember the anomalous nature of the settlement made after the social war. By that settlement jurisdiction in Italy is a mere annexe to jurisdiction in Rome; technically it is jurisdiction in Rome, as is shown by Gaius (iv. 103-105), who recognises no interval between the jurisdiction of law intra primum miliarium and the jurisdiction of the imperium in the provinces. The praetor’s formula and the praetor’s writ run through the whole of Italy, although the praetor himself cannot quit Rome for more than ten days during his year of office (Cic. Phil. ii. 13, 31); and, if the appellate power of the tribune was to be preserved, it had to be regarded as coextensive with the imperium, of the magistrate whom he vetoed. The intercession of the tribune in municipal jurisdiction required no creation by law; it was still the veto of one city magistrate by another within the walls of Rome. If even the tribune’s ordinances and his coercitio were valid without the walls, it could be explained in accordance with the prevailing fiction; but the supposition of such an extension is not absolutely necessary, as the following pictures of what probably took place in a conflict between the central and the local courts will show.

Suppose Aulus Agerius brings an action against Numerius Negidius in the town of Arpinum. The local magistrate decides to take the case. Numerius Negidius denies the competence of the court and appeals; to whom? In the first instance, probably to the colleague of the local magistrate, for the lex Rubria (c. xx.) forbids the intercession only in the case where the local court is admittedly competent. This colleague pronounces the veto, the judicium is quashed; all that the local magistrate can now do is to compel the parties to enter into a vadimonium to appear before the praetor, and the case moves to Rome. But supposing, when it has got there, that the praetor decides that it was really within the competence of the municipal magistrate and issues an order that it shall go back? Now Numerius appeals to the tribune. The veto is issued and, if the case is to be tried at all, the praetor is bound to take it.

We can also imagine a case with the same preliminaries in which Numerius appeals to the colleague of the local magistrate against the competence of the local court, but in which this colleague declines to interfere. Is Numerius left stranded? Unquestionably there must have been in such a case a further appeal to Rome, whether to the praetor or perhaps, in this case, to his higher colleague the consul. But the praetor or consul now decides against Numerius. The appeal is made to the tribune, and the decree of the consul or praetor may be quashed. The case, if it is to be tried at all, must be tried at Rome.

In both these instances the tribune pronounces his veto within the city, and yet in both, if his decision is improper, his position is one of “vocare ex Italia cum quibus lege agi posset.” In both cases it is not a true use of magisterial vocatio, and thus one of the difficulties discovered by commentators in this passage is removed; it is simply an illustration of the positive effects of a negative power. Just as the tribune can by a persistent veto force the praetor to alter his formula (Cic. Acad. Prior. ii. 30, 97; pro Tullio 16, 38), so by a persistent denial of the praetor’s orders to the local magistrate he can force the praetor to judge. We do not know the method by which the positive effect of the veto was in this case secured, but it is clear that some means must have been provided for having a municipal action tried at Rome when the municipal court had been declared incompetent.

But, apart from the procedure springing from these rigid rules of competence, there is some evidence of a discretionary power of what is called Romam revocatio, which was exercised and abused by magistrates towards the close of the Republic. The Fragmentum Atestinum (perhaps a part of the lex Rubria) enacts (l. 16 sq.) with reference to municipal jurisdiction—“ejus rei pequn[iaeve] quo magis privato Romae revocatio sit ... ex hac lege nihilum rogatur,” i.e. this law does not permit (or imply) a revocatio to Rome in the specified cases. We do not know what magistrate effected this revocatio. With respect to criminal jurisdiction in the provinces, it was the duty of the consuls (Cic. in Verr. i. 33, 84); and, if they exercised this power in civil jurisdiction as well, the jus consulum praeripere of our passage may refer to tribunician interference with this consular prerogative. It may be worth noting that Plutarch (Caes. 4) associates the power with the tribunes; his narrative of this trial of P. Antonius is almost unquestionably wrong, but it may be taken to show that in his belief (i.e. in a belief current during the Principate) the tribunes had something to do with summoning cases to Rome.

Hitherto we have been dealing with the praetor and the judicia ordinaria. Is it possible that the tribune also interfered with the extraordinary jurisdiction created daring the Principate, and thus with the judicial powers of the consuls? The consular jurisdiction in fideicommissa had been given to praetors by Claudius (Dig. 1, 2, 2, 32), but not the whole of it. Quintilian shows that in greater matters it still belonged to the former (Inst. Or. iii. 6, 70 “non debes apud praetorem petere fideicommissum sed apud consules, major enim praetoria cognitione summa est”). If the consuls tried the case when the fideicommissum was very large and the praetors when it was smaller, it is not altogether impossible that the municipal magistrates might have tried local cases when the sum, which was the subject of the trust, was insignificant It is thus possible that questions of the competence of local and Roman magistrates may have cropped up in reference to this question; although I should prefer to explain the jus consulum praeripere of Tacitus on the already mentioned hypotheses of some consular right of vocatio or revocatio in matters of ordinary jurisdiction.