Roman Public Life

by A. H. J. Greenidge

Another method of appeal springs from the principle of delegated jurisdiction. Caesar, when he cares to exercise civil jurisdiction, can perform it either personally or through mandataries, and there is necessarily an appeal from the mandatary to the higher authority, unless this authority distinctly asserts that no appeal will lie.[1829] The appeal in such a case, if it is upheld, issues not merely in the veto but in the reform of the sentence of the mandatary. Caesar may, of course, employ such delegates as he pleases. Augustus used the praetor urbanus and consulares for home and foreign appellationes,[1830] a word which in this context probably means simply “requests for cognisance” made to the Princeps. The imperial jurisdiction in matters of trust (fidei commissa) was delegated to consuls or to praetors.[1831] But, apart from this regular delegation, the Emperor might instruct any one to be his judex extra ordinem, when he did not care to take the case himself.

The appeal from provincial governors was, so far as the public or senatorial provinces were concerned, the result of a conscious striving after unity of administration, although it was not wholly unconnected with Republican precedents; with respect to Caesar’s provinces, it was a direct consequence of the fact that the governors of these provinces were merely his legates, although the frequency with which the appeal was allowed shows the same striving for a centralised jurisdiction. The principle which in the early Principate regulated appeals from the public provinces was that these should come invariably to the Senate, and this principle of the dyarchy, which tended to be disregarded, was emphatically restated by Nero at the commencement of his reign.[1832] It was probably a development of a Republican custom in accordance with which certain important cases had been summoned from the provinces to Rome by the consuls and Senate (Romam revocatio);[1833] but this principle seems to have been now extended to include true cases of appeal as well as cases of denial of jurisdiction. When such appeals in civil matters came to Rome, it is probable that the Senate delegated the hearing of them to the consuls.

The fact that this principle of the appellate jurisdiction of the Senate required restatement in 54 A.D. prepares us for the ultimate neglect into which it fell. It is certain that by the close of the second and beginning of the third century, Caesar, or his great delegate the praefect of the praetorian guard, is the universal court of appeal for the whole provincial world. This result cannot be attached to any power possessed by the Princeps over the proconsuls of the public provinces; for the statement that he possessed maius imperium over such governors[1834] can only mean that in any collision of authority the Princeps is not inferior to the proconsul. The world-wide appellate jurisdiction of the Princeps was a thing of very gradual growth, and it originated, not from any idea of his prerogative, but from the irresistible tendency of provincial governors, senatorial as well as imperial, to refer their difficulties to the highest interpreting authority in the Roman world, the Princeps and his consilium of judicial advisers. It is no wonder that the man who became the central source of law should also become the universal authority for its interpretation in detail.

When we turn to criminal jurisdiction, we find that here too there are three sources of jus. The Republic is represented by the quaestiones perpetuae with their praetors and equestrian judices, and also by the new criminal jurisdiction which has been attached to the consuls and the Senate; the Principate is represented by the jurisdiction of the Princeps and his delegates. The jurisdiction of the quaestiones, so long as it continued,[1835] proceeded on the old lines. They judged except where the case, through a request of the parties accepted by a higher court, was exempted from their jurisdiction. The higher courts, which might stop their jurisdiction by accepting a case, were those of the Senate and the Princeps. Both of these were high courts of voluntary jurisdiction, and no appeal was permitted from one to the other.[1836] Voluntary jurisdiction is by its nature difficult to define; but custom tended to limit the Senate’s cognisance to certain classes of cases. These classes were determined either by the position of the accused or the nature of the offence. The Senate tried ordinary crimes, such as murder, adultery, incest, when they were committed by the members of the upper classes in society,[1837] and there was a growing feeling, which subsequently obtained something like legal recognition, that a senator should be tried by his peers.[1838] But the character of the offence was the chief determinant of the Senate’s jurisdiction. Any offence of a directly political character, even in the early Principate a breach of a treaty by a foreign prince,[1839] tended to come before it. It was the usual court for extortion or other misuse of powers by provincial governors;[1840] it judged offences against the majesty of the state;[1841] and when the majesty of the Princeps had become identified with that of the state, it might be employed as a convenient engine of judicial tyranny.[1842] Its utility was assisted by the unlimited and arbitrary character of its jurisdiction. It interpreted while it judged; it might extend the incidence of a law and frame new penalties; it might even punish in cases where no penalty was fixed by law;[1843] and the principle, forbidden in the quaestiones, of uniting several crimes in the same charge, was here admitted.[1844] This jurisdiction was technically, perhaps, a cognitio of the consuls.[1845] But the Senate was their constant advising body, and the sentence took the form of a senatus consultum. We shall soon see how the Emperor’s presence at the board enabled him to influence a jurisdiction which was technically independent of his control.

The voluntary jurisdiction of the Princeps in criminal matters was theoretically unlimited, and could be exercised at any time or in any place. It rested with him whether he would undertake the cognisance (cognitionem suscipere) at the request of one of the parties,[1846] or refer the case to the ordinary courts that is, to the quaestio competent to try it. The relations of the two high courts of voluntary jurisdiction to the ordinary court of necessary jurisdiction, are admirably exemplified by the procedure adopted in the trial of Piso for the murder of Germanicus (A.D. 19-20). It is at the outset assumed that the case, which is one of poisoning, will come before the special commission established by the lex Cornelia de veneficis. But the Emperor’s cognisance is sought by the prosecutor, and Tiberius and his consilium actually listen to the preliminaries of the trial. But the Emperor soon sees how invidious it will be to pronounce judgment in a case in which the murder of his own nephew and adopted son is the subject of investigation, and he, therefore, sends the matter unprejudiced to the Senate with a request that they should exercise their voluntary jurisdiction—a request which, coming from the Princeps, it was practically, although not legally, impossible for the Senate to decline.[1847]

But, although any request for cognisance might be listened to, the Princeps usually confined his personal jurisdiction to certain spheres. These included serious crimes committed by members of the upper ranks in society, but especially offences committed by imperial servants or by the officers of the army.[1848] The Emperor might, of course, delegate this jurisdiction, although the delegation of special cases seems to have been unusual.[1849] On the other hand, the regular delegation of certain kinds of offences is frequent enough, and is the basis of the criminal jurisdiction of the Emperor’s servants, the various praefects who presided over the city, the praetorian guard, the corn-supply, and the watch.[1850]

A peculiar right of the Princeps to try cases from the provinces in which the lives of Roman citizens were involved may, perhaps, have grown up during the Principate. It certainly does not exist during the early portion of this period. Instances of the maintenance of the Republican principle, that capital charges against Roman citizens should be sent to Rome, are indeed furnished by such cases as those of the Bithynian Christians in the reign of Trajan,[1851] and perhaps of St. Paul’s appeal in the reign of Nero;[1852] and perhaps such a demand for a trial at Rome was accompanied by a request, usually accepted, to be tried before the Princeps; but there are as many instances which prove the unlimited jurisdiction of the provincial governor, at least when dealing with ordinary crimes. Thus Marius Priscus scourged and strangled a Roman knight in the province of Africa, and Galba, when governor of Tarraconensis, crucified a guardian, who was a Roman citizen, for poisoning his ward.[1853] There are, however, signs that the right to kill (jus gladii), if this expression refers to ordinary as well as to military jurisdiction, was specially given by the Emperor at least to the administrators of his own provinces,[1854] which shows that the frequent requests of one who stood “before Caesar’s judgment seat” to be tried by Caesar had issued in some standing rule. At a later time, when the universal criminal appeal to Caesar had grown up, certain persons—senators, officers, and decurions—are exempted from capital or severe penalties pronounced by provincial governors,[1855] and this jurisdiction, reserved for the Princeps, was exercised by the praefectus praetorio without appeal.

The Princeps was (especially in the early Principate) by no means a universal court of criminal appeal for the whole Roman world. There was no appeal to him from the quaestiones perpetuae, although he may have had some right of rescinding the inequitable judgments of such courts (in integrum restitutio); nor is there theoretically any appeal from the Senate, although the Princeps possesses, through the tribunicia potestas, a practical power of rescinding the judgments of that body.[1856] In the matter of jurisdiction delegated to his praefects, the appeal lies unless he wills it away, as he does in favour of the praefectus praetorio. With respect to the provinces, the principle of the dual control, which we have illustrated with reference to civil jurisdiction,[1857] must have originally been supposed to hold good with reference to criminal jurisdiction as well; but the dyarchy was, in this particular, ultimately dissolved. By the end of the second century Caesar, represented in most cases by his inappellable praetorian praefect, was the highest court of criminal appeal for the whole Roman world.

Besides the right of appeal, there is in most political societies a power residing somewhere which is, or approximates to be, a power of pardon. It is sometimes regarded as a signal attribute of sovereignty, but somewhat improperly, since the power of rescinding sentences or of ordering a new trial may reside in a mere executive authority, such as a court of cassation, which possesses none of the other attributes which we usually associate with a sovereign. In the constitution of the Principate it is certainly not regarded as a sovereign right, for the power is limited and, like most of the manifestations of public life, is theoretically divided between the organs of the Republic and the Princeps.

The Senate possessed no general power of pardon beyond the right, inherited from the Republic, of annulling charges and thus releasing people, who are on their trial, on certain public and festal occasions.[1858] This right of declaring abolitiones publicae was one expression of its right of amnesty.[1859] But the Senate had besides, as a high court, the right of rescinding its own former sentences (in integrum restitutio).[1860] It might also be occasionally consulted by the Princeps on the advisability of his rescinding the sentences of the imperial courts—those, as a rule, which had been pronounced by former Emperors.[1861] But such consultation was not a right of the Senate, but merely a concession of the Emperor.