According to Roman law, a defendant was impeached in his place of birth or domicile: actor sequitur forum rei.1
This rule existed both during the period under consideration, the classical age of Roman law, and the late Empire. However, a great deal more is known about the content of the rule and the way in which it operated in the later period than in the earlier.2 Excerpts from jurists of the Antonine and Severan period are cited in the chapter of the Digest entitled ‘On courts: where it is proper to sue or to be sued’, and the subject with which they are principally concerned is potentially significant.
It is the question whether forum rei, or the ius fori, applied in all circumstances.3 But the instances that are chosen for discussion are of limited interest, particularly to the legal historian.4 Moreover, the discussion is relevant only to the civil law. Were it not for a solitary citation of Severan date in Justinian’s Code, we should be unaware that defendants on criminal charges could be tried where their alleged crimes had been committed, rather than where they were domiciled.5 Finally, no attention is given in the Digest to a variation of the forum rei principle, praescriptio fori, according to which, in the fourth, fifth, and sixth centuries, at any rate, certain kinds of offences, and certain privileged categories of offenders (for example, palatines,’ Dig. 2. 8. 7 praef.; 5. 1. 65; 5. 2. 29. 4; vat.fr. 325-6 (a.d. 293-4); CJ 3.13.2 (a.d. 293); CTh 2.1. 4 (a.d. 364); CJ 3· 13· 5 (a.d. 397); etc. See Kipp, RE 7 (1912), 59 fl. s.v. forum.
1 This appears to be one case where the Justinianic compilers have been relatively successful in purging the treatises of the classical jurists of items of historical interest. ’ Dig.
5. 1; cf. CJ 2. 13-26; CTh 2. 1.4e.g. it is asked whether provincials involved in contract-disputes, where the contracts were entered into outside their province, possessed the ius revocandi domum or ius fori (Dig. 5. 1. 2. 4); and whether provincials in Rome as envoys or witnesses were obliged to appear before the praetor in response to a summons (ibid. 5). Such passages cannot be compared, either in subjectmatter or vitality, with the Imperial constitutions relevant to praescriptio fori which are preserved in the Codes of Theodosius and Justinian. See p. 14 n. 1 below.
5 CJ 3. 15. 1 (a.d. 196). The closing words, notum est, imply that Severus and Caracalla were referring to an established rule. Cf. CTk 9. 1. 1 (a.d. 316). senators, soldiers) were dealt with by special tribunals. It would be surprising if privileges of this type had no parallel in the first three centuries of the Empire.1
In the discussion that follows, an attempt is made to establish the existence in the classical period of the equivalent of the praescriptio fori of the late Empire. We can make a beginning by considering the situation that existed in Rome under the Empire where a legal contest between two residents of the city (to take the simplest case) could be decided by more than one court? In the Severan age (the floruit of most of the jurists from whose works the Digest title on courts was compiled), if the dispute was a civil one, it could in principle be heard and settled, on the one hand by praetor and private judge (through the two-stage formulary process), and on the other hand by one of a number of magistrates and officials, including even the Emperor (through the cognitio procedure). Crimes in the same period were dealt with in Rome by the urban prefect, curule magistrates, the Senate, and the Emperor (the quaestiones, or public jury-courts, were no longer active).
How were civil and criminal cases apportioned among the Imperial courts ? If the first initiative in choosing a court lay with the petitor, or accuser, it still remained for the official who had been approached to decide whether or not to take the case—and, perhaps, for the accused to ‘decline’ the court and opt for another, if he had any choice in the matter.3 An attempt is made below to discover which rules, if any, lay behind the distribution of cases,1size=1 face="Times New Roman"> The expression praescriptio fori occurs in Dig. 2. 8. 7 praef. (Ulpian, referring to a judgement of Pius). For the fourth century and later, see A. H. Μ. Jones, Later Roman Empire (1966), 484 ff.; Μ. Kaser, Das römische Zivilprozessrecht (1966), 474, n. 19; 478, n. 28; etc.
2 In the sphere of criminal justice under the Republic there was one set of courts, the quaestiones, or jury-courts, for all criminal offenders. In addition, claimants seeking redress for private injury or loss had no alternative but to approach the praetor and ask for an action according to the formulary procedure. The situation was transformed under the Empire with the emergence of courts and tribunals which administered justice by the cognitio procedure. These courts were competent to try cases in both areas in the law.
3 The phrase forum declinare occurs in CTh 9. 7. 9. For the verbs eiurare and reiicere seeyPS 56 (1966), 182-3. On reiectio Romam see pp. 263-4, below. This was a right of Roman citizens to defend themselves in litigation in Rome.
We learn from non-legal sources that Roman citizens may still have possessed this privilege towards the end of the Republic, and perhaps even as late as the age of the Julio-Claudian Emperors.and to ascertain whether the social position of the accused was one factor that was taken into consideration. It is also asked whether the social position of either party influenced the outcome of trials. Attention is concentrated on criminal jurisdiction, which is better documented than civil jurisdiction, and on courts in Rome and Italy, where the jurisdiction of courts overlapped to a greater degree than elsewhere, and to which the interest of most of the sources was directed.
The following courts tried criminal cases in Rome at some stage in the period from Augustus to the Severans, and receive some mention below: the courts of the Emperor, the Senate, the urban prefect, the praetorian prefect, and the curule magistrates, and the jury-courts. (The provincial governors’ courts are considered in conjunction with the Emperor’s jurisdiction, for reasons that will become apparent.) Not all the above courts merit lengthy consideration, and of some no detailed treatment is possible. The whole section revolves around the senatorial and Imperial courts, which are the best known to us and also of central interest and importance, both from a legal and a political viewpoint; courts such as that of the prefect of the city and the jury-courts play a minor role in the discussion. No attempt is made to describe in detail the rise or decline of any court. The history and character of a court are only investigated when they bear upon the problem of whether the court system in Rome gave unequal treatment to high-status and low-status defendants.