EMPEROR, GOVERNORS, AND DELEGATED JURISDICTION

There was widespread dissatisfaction at the beginning of the Principate with the existing state of both the civil and the criminal law. The ius ordinar turn, built up by the praetor through edicts, was felt to be excessively formalistic and inflexible, and its delays were notorious; the criminal jury-courts, meanwhile, were slow- moving and corrupt.

Imperial jurisdiction, then, was less a conscious creation of Emperors than a response to popular needs and discontents. One consequence of this was that the Emperor’s field of interest in law was open-ended: of necessity it embraced the whole range of legal problems which were brought to him by large numbers of would-be litigants, all of whom in theory had some chance of gaining his attention.

The accessibility of the Emperor to his subjects is a remark­able phenomenon. But, of course, to gain access to the Emperor through a petition was not the same as to gain access to his tribunal. No Emperor, however hardworking, could hope to act as judge in all the disputes which were referred to him by subjects. Inevit­ably the great majority of requests for litigation were passed on to subordinate authorities, whether to individuals appointed to make ad hoc decisions in single cases, or to special officials em­powered to settle either single cases or whole classes of cases, or, finally, to officials whose jurisdictions were already competent to try cases of the type now sent down to them. Moreover, if the volume of cases was one problem, the sheer size of the Empire created another. It was plainly more difficult and expensive for a provincial than for an Italian or a Roman, and fora poor provincial than for a rich one, to bring his grievance in person to the Em­peror.

The discussion that follows seeks to establish the character of the Emperor’s judicial court. It is concerned in the main with the period from the Flavians to the Severans, not because the Imperial tribunal did not function earlier (evidence from the Julio-Claudian period will be drawn upon), but because the re­sponsibilities of the Emperor for criminal justice do not seem to have grown to any marked extent until about the Flavian period.²

¹               In the field of civil law (no systematic treatment of civil law is attempted here) little is known about whether the Emperor took disputes involving men of high rank as defendants. In general, the Emperor probably preferred ad hoc decision­making in a variety of cases to specializing within a narrow area. He took cases covered by the ius ordinarium (an early example, Vai. Max. 7. 7. 3-4; Augustus) and also cases outside it. Particular attention may have been paid to the latter, but the normal practice of Emperors seems to have been not to assume responsi­bility for specific problems themselves, but to pass them on to special officials.

²               At the close of Domitian’s reign, when Quintilian was writing, the Imperial tribunal was a fully-fledged court, existing side by side with the senatorial court:

67 The Emperor’s jurisdiction can be broken down into three main compartments: primary jursidiction, cases remitted from lower tribunals (especially the governor’s court) after a preliminary investigation, and criminal appeals.¹ The willingness of the new Flavian dynasty to extend and display its powers over a reorganized Senate and increasingly dependent governors led to a greater in­volvement in primary jurisdiction (especially as the activities of the jury-courts were further contracted) and a rise in the number of cases remitted from the provinces; while the volume of appeals to the Emperor from the ever-expanding body of citizens must have continued to swell.

Provincials

We may begin by examining in more detail the situation of the provincials, who of course formed the greater part of the popula­tion of the Empire.

The ordinary provincial with a grievance which he wanted the Emperor to investigate would send off a libellus or petition.

‘... et sunt re vera secundum forense ius duae lites. potest tamen hoc genus in cognitionem venire senatus aut principis.’ Inst. Or. y. 2. 20.

¹               Emperors also gave written replies, or rescripts, to queries about legal points. See p. 174.

²               Dig. 1. 18. 8 (Julian, an eyewitness): ‘saepe audivi Caesarem nostrum dicentem hac rescriptione: “eum qui provinciae praeest adire potes” non imponi necessitatem proconsuli vel legato eius vel praesidi provinciae suscipi- endae cognitionis, sed eum aestimare debere, ipse cognoscere an iudicem dare debeat. ’ Cf. FIRA² i, no. 74, p. 422 (Vespasian, a.d. 77): ‘de his proconsulem adire debebitis.’ See also Dig. 22. 5. 3. 3 (Hadrian). Trajan, when once ap­proached directly by letter, agreed to undertake a jalsum investigation. But the defendants were a freedman-procurator and an equestrian, and the plaintiffs

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Some litigants would have been satisfied if the Emperor, rather than consent to inquire into the case himself, was prepared to issue a ruling which could then be flourished in the face of an opponent in a local law-court.

On at least one occasion Pius broke his habit. Instead of merely referring one Domitius Silvanus to the governor of his province, he wrote to the governor, Geminus, a strong letter describing the substance of Silvanus’ complaint (a savage attack on his uncle’s son) and bidding him to listen to it, inquire into it, and punish the offender heavily. It is noteworthy that the libellus was actually handed over to the Emperor by Silvanus. To judge from the tone perhaps related to the ex-praetor whose codicil had allegedly been forged. See Pliny, Ep, 6. 31. 7 ff., and p. 87.

¹               SHA Macr. 13. 1: ‘fuit in iure non incallidus, adeo ut statuisset omnia rescripta veterum principum tollere, ut iure, non rescriptis ageretur, nefas esse dicens leges videri Commodi et Caracalli et hominum inperitorum voluntates, cum Traianus numquam libellis responderit, ne ad alias causas facta prae­ferrentur, quae ad gratiam conposita viderentur’; Fronto, ad Μ, Caes, 1.6.

²               e.g. CJ 2. 11. 1-3 and 5; 9. 47. 2 and 9; Dig. 1. 19· 3· 1-2; 42. 1. 33; 48. 19. 27praef. (2 cases). See also FIRA² i, no. 103, p. 4-95 (coloni of saltus Buruni- tanus; Commodus).

³               lang=EN-US style='font-style: italic'>CJ2, 12. 2; 5. 25. 2-3; 5. 62. 18; Dig. 1. 7. 39; i· 18. 8; 25. 3. 5. 9; 25. 3· 6 praef.; 35. 1. 50; 49. 1. 1. 3; 49. 9. 1; vat.fr. 168; 247. See Μ. Kaser, Das römische Zivilprozessrecht (1966), 352, with bibl.

69 and content of the Emperor’s letter, the personal approach by the representative of the injured party had paid dividends.¹

An early case of Imperial cognitio in a dispute involving pro­vincials followed the arrival of the prosecution, and probably also of the accused, in Rome.^{[81] [82]} In 6 B.C. two ambassadors from Cnidos in Asia brought to Augustus an accusation against a man (who died at some stage during the investigation) and his wife, both Cnidans, for the murder of another citizen of the place. Augustus conducted his own inquiry, with the assistance of the proconsul of Asia, Asinius Gallus, who had the slaves of the defendants interrogated. The woman was acquitted, and the city and its magistrates were castigated for persecuting the accused. The trial is interesting from several points of view. For present purposes what is relevant is that the Emperor conducted the investigation. It seems possible to infer that a plaintiff (or plaintiffs) would greatly improve his chances of obtaining a cognitio from the Emperor if he took his case to Rome either in person or through representa­tives.^[83] This point is confirmed by a later case. Herodes Atticus, the Athenian sophist, was thwarted in his attempt to indict his poli­tical enemies before a friendly proconsul in Athens, when the de­fendants escaped to Marcus at Sirmium. In the trial that followed, Herodes was less accuser than accused.^[84]

Two Trajanic trials may be considered next. It is uncertain how Claudius Aristion and Trebonius Rufinus, the defendants, came to be tried by Trajan.^[85] If it can be supposed that the two men were both accused ab initio before the Emperor,^[86] then two things seem to be relevant. First, we can assume that both the defendants

and the prosecutors could have paid for a journey to Rome, as the Domitii Silvani, Herodes’ rivals, and the city of Cnidos evi­dently could, and as the average provincial just as evidently could not.¹ The defendants were powerful and therefore wealthy men in their respective communities, Ephesos and Vienne.² Their opponents, who are unknown, are not likely to have been far behind in prominence. The indictments of both defendants prob­ably originated in the jealousy of their rivals, that is to say, of men strong enough to compete with them for pre-eminence. Second, both offences were of a serious kind. Aristion was probably charged with public violence (vis publica).* The second trial seems to have revolved around the prerogatives of local magistrates. Rufinus had suppressed the local gymnastic games in his capacity as chief magistrate, and he was accused of misusing his powers. It should be noted that the offences complained of by Domitius, Herodes, and the Cnidans were also serious.

A direct approach to the Emperor was apparently not out of the question for appellants.⁴ The regular procedure (in the An­tonine and Severan periods at any rate) by which the governor forwarded the appellant’s petition to Rome was of course con­siderably slower.⁵ Moreover, if an appellant merely sent a petition

¹One man who could certainly afford to go to Rome was a leading citizen of Cnossos in Crete, who on the way encountered Epictetus. The object of his journey was to win the position of patronus of his city by way of a lawsuit. See Epict. 3. 9. 1 ff. The financial position of theCnidan woman, Tryphera (sup­posing that she did in fact travel to Rome), is unknown. She was not a Roman citizen. Sicinius Aemilianus (below, p. 96) was a prosperous landowner in Tripoli- tania and well able to pay his way to Rome for a trial before the urban prefect.

²               Aristion was three times Asiarch and Archiereus of Asia, as well as a leading magistrate of Ephesos. PIR² C 788; AE 1898, no. 66; 1906, nos. 28-9; J0AI (1959), Beiblatt 23, 329-30\J0AI46 (i960),Beiblatt24, 83, no. 9; etc. Rufinus was duumvir at Vienna in Narbonese Gaul, and is described by Pliny as vir egregius, nobisque amicus.

³               The charge of vis publica is suggested by the words innoxie popularis in the text of Pliny. It is stated that the impeachment sprang from invidia. The description of the defendant as homo munificus hints at the reason for his un­popularity (in some quarters), and makes it likely that the trial was brought on by rivals for local honours and esteem.

⁴               See Dig. 49. 1. 25 (= P. Oxy. 2104): ottotc ϊζεστιν την ercpav οδόν τρνπόμ,ίνον ταύτό ποιαν (i.e. ίκκαλίΐσθαι) καί θαττον προς μ* άφι,κνζΐσθαι (Severus Alexander to the koinon of theBithynian Greeks). Also, Dig. 42. 1. 33 (Hadrian approached by a condemnatus seeking a restitutio).

⁵               See last note (Garrov). An appeal was lodged with the governor two or three days after he passed sentence, whether in civil or in criminal disputes. See Dig.

71 (libellus), and the governor in his accompanying letter (litterae) chose to twist the facts, the former was in no position to expose the latter’s mendacity. Proconsular distortion must have frequently gone undetected because unchallenged. Again, there was no guarantee that a governor would co-operate even to the extent of permitting a would-be appellant to lodge a formal appeal. It was commonly his judgement which was being disputed.¹

In practice few would have been able to bypass the governor. The problem was not simply the financial one of finding money for the journey. Most appellants would have been under some sort of restriction from the time of their arrest, and their situation would not have changed until the final judgement was handed down from the appellate court. Only a defendant who was a member of the higher orders had any freedom of movement. ‘Concerning the custody of defendants’, wrote Ulpian, ‘the proconsul usually de­cides whether someone should be put in prison or handed over to a soldier or entrusted to guarantors or to himself’. It turns out that the governor’s decision was normally influenced by such fac­tors as the gravity of the crime, and the wealth, position, and rank of the accused.²

To sum up: first, there is a strong supposition that a provincial plaintiff or defendant was much more likely to gain the Emperor’s effective intervention if he was ready and able to go to Rome and ask for it in person than if he stayed at home and merely sent off a libellus. Ordinary provincials would have found the way to Rome barred by obstacles of a physical or material kind.³ Second, the Emperor would not necessarily accept every request for 49. 4 pass. If accepted by the governor, it (i.e. the appellant’s libellus) was sent off with a letter from the governor including, no doubt, a full statement on the trial and a copy of the judgement. See Dig. 28. 3. 6. 9, etc.

¹               See Dig. 49. 1. 1. 1, for proconsular distortion; for a fuller discussion of defects of the appeal system see below, pp. 82 ff.

²               Dig. 48. 3. 1, cf. ibid. 3 (rescript of Pius). Severus Alexander (for the refer­ence see above, p. 70 n. 4) protested against the action of governors and procurators in preventing by force the departure of appellants for Rome. Perhaps he was defending the freedom of movement of just such high-status defendants. (The fact that his rescript is addressed to the koinon of Bithynian Greeks, that is, in effect, the leading men of the cities of Bithynia, perhaps supports this hypothesis.)

³               On the financial side, the litigant had to provide money for travel, board and lodging, and advocate’s fees. The burden would become heavier the longer the trial went on. Postponements were easy to obtain. See Fronto, adM. Caes. 1.6.3.

litigation which was brought to him by a provincial. It no doubt made a difference if the stakes were high. In criminal cases, they normally were.

As was indicated earlier, nothing is known about the preliminaries of the trials of Aristion and Rufinus. It is quite possible that they were examples not of cases brought to the Emperor in the first instance, but of cases remitted to the Emperor by a provincial governor. The question arises whether the latter class of cases provided for the average provincial, whether as plaintiff or as defendant, an alternative avenue of access to the Emperor. The evidence available suggests that this was not the case. The explana­tion is to be sought partly in the attitude of the governor, who in most cases must have been responsible for the dispatch of a prisoner to Rome; and partly in the attitude of the Emperor, who was normally in a position to dictate policy to the governor, and as time went on was more and more inclined to do so. There is no sign that any governor was ever persuaded by an ordinary pro­vincial plaintiff to send a case out of his jurisdiction to a higher tribunal. As for provincial defendants of low status, when they did appear before the Emperor’s judgement-seat, it was hardly by choice, and hardly in circumstances favourable to them. Again, when the governor lost some of his discretionary authority as a result of Imperial intervention, the situation may have improved for the provincial élite, but the condition of the mass of provin­cials remained the same.

The evidence for cases remitted may now be reviewed. I include in this category cases in which the governor surrendered final judgement to the Emperor, at first voluntarily and later under compulsion, while holding the defendants concerned in his province. This was probably a procedural change introduced deliberately in the course of the second century to take the pressure off the prisons and tribunals in Rome.

It seems that the bulk of the defendants sent to the Emperor by governors in the first century were charged with serious political crimes, rebellion or subversion, or offences against the Emperor.¹

¹               For a discussion of cases remitted see F. Millar, JRS 56 (1966), 159 and 165. The cases referred to in this section are from the first or early second

73 In 7 B.C., two citizens and a freedman were sent up to Augustus by one P. Sextius Scaeva, probably the governor of Cyrene. They were said to possess knowledge pertaining to the welfare of the Emperor and the safety of the state. Augustus investigated separately an allegedly treasonable offence committed by one of them.¹ Three years later Quinctilius Varus, as legate of Syria, quelled a Jewish revolt and sent off the leaders of one group of rebels to Augustus.² Later governors intervened in a similar way to send off leading rebels or leaders of opposing factions in Judaea (and even procurators accused of cruelty).³ At the close of Nero’s reign, Fonteius Capito, the legate of Lower Germany, arrested two leading Batavians of royal blood (regia stirpe), perhaps for suspected complicity with Vindex the rebel. One of them, lulius Civilis, was put in irons and sent to the Emperor.⁴ Finally, Apollonius and Larginus Proculus were sent to Rome for fore­telling the days of Gaius’ and Domi tian’s deaths, respectively.⁵ Of this group of prisoners it can be said that they were dispatched to Rome less because of their rank—they were representative of most sections of the provincial populations—than because of their crime. That such cases were set aside for the Emperor’s cognitio is easily explained. It seems to have been recognized from the century. But there were no doubt parallels in the later period. Cf. the first one listed (next note) with Dig. 48. 19. 6 praef. (Ulpian). Three cases are not dis­cussed in the account that follows: Tac. Ann. 16. 10. 2 (ob flagitia)*, Pliny, Ep, 10. 56-7 (illegally returned exile); ibid. 10. 74 (slave with information about the Dacian and Parthian kings).

¹               £7311. ii. 42-7. In Suet. Div. Aug. 51.2, the man from Corduba may have been sent to Augustus by the governor of Baetica. The two defendants of 51. 1 are perhaps plebeians from Rome.

²Jos. AJ 17. 297; cf. BJ 2. 77.

⁴               Tac. Hist. 4. 13, cf. Ann. 6. 40. 2 (Tigranes); ibid. 12. 21 (Mithri­dates).

⁵               Dio 59. 29. 4; 67. 16. 2. Domitian’s prisons were filled with prisoners charged with capital crimes (mostly alleged offences against the Emperor). The provincials among them may have been sent to Rome by governors. See Philostr. vita Ap. 7. 22 ff.; for Apollonius himself see ibid. 7. 10 ff. (Apollonius anticipated a summons from Domitian via the proconsul of Asia.)

beginning of the Principate that the Emperor had the right to protect himself and his rule.¹

A smaller group of cases involved religious offenders, speci­fically, Christians. Christianity, as Pliny discovered, had attained a position of some strength in the province of Bithynia by the reign of Trajan. Pliny had no sooner shown a willingness to accept criminal indictments against Christians than prosecutors began to come from all sides. The situation was not an easy one to handle. Pliny, as he confessed to Trajan, had never before at­tended a trial of Christians. Furthermore, his doubts, as expressed in his letter to the Emperor,^{[87] [88]} covered virtually everything: punishments, mitigating circumstances, pardons, the nature of the crime, and whether Christianity should be made the object of an official investigation. Pliny goes on to detail the steps he had taken to deal with those Christians who had been brought before him. The aliens had simply been led away and executed once their guilt was determined. The Roman citizens were treated differently. ‘I have put them down for dispatch to the city.’^[89]

Would it be accurate to say that the primary reason for the sending to Rome of the citizen Christians was their citizen­status?^[90] It was certainly their citizenship which separated them from their brethren in the first place and saved them from im­mediate execution. (Roman citizens, as distinct from aliens, were

75 not subject to execution without trial, unless they had been declared enemies of the state.) But it was not at all automatic that they should be sent to Rome for trial. Pliny had to decide whether he was sufficiently knowledgeable about Christianity and the sense in which it was a crime to sit in judgement over them. He did not think he was, and the men were sent to a higher authority. To sum up, these Roman citizens were guaranteed a full trial rather than the summary execution meted out to aliens, but not trial in Rome.¹

We come now to the case of St. Paul.² In the course of the investigation of his case by the prefect Festus at Caesarea, Festus proposed to try Paul at Jerusalem. At this stage Paul took the initiative and ‘appealed’ to be sent to Rome for trial by the Em­peror. The reference of Paul to Nero’s tribunal has usually been explained purely in terms of his status as a Roman citizen. This explanation might have been sufficient if an appeal had been lodged, and indeed this has been treated as a model case of criminal appeal.³ But the appeal was not an orthodox one if appeal was normally after sentence, for no sentence was passed by Festus on Paul.⁴ Again, Paul’s citizenship might have been decisive if there had existed a rule according to which a governor was required to send to Rome any citizen on a capital charge, or any citizen on one of a certain select group of capital charges. There were, how­ever, no such rules.⁵

^{1size=1 face="Times New Roman">}               Over sixty years later the governor of Gallia Lugdunensis was no better informed about the way Christians who were citizens should be punished, and he wrote to his Emperor, Marcus Aurelius, for instructions. He did not, how­ever, send the prisoners off to Rome, but in due course punished them in the way the Emperor directed him. (The Romans were beheaded and the aliens sent to the beasts. Attalus, however, although a citizen, was punished as if an alien.) See Eus. EH 5. i.

²               Acts 25: 9-10; 26: 32. See JRS 56 (1966), 182-5.

³               See Jones, op. cit. 55; A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (1963), 57 ff.

⁴               If Paul’s appeal is ‘provocatio-before-trial' in the sense assumed by Jones and Sherwin-White, there is no parallel which is of any use, and consequently the case has to be explained in the light of itself. Again, citizenship is not mentioned as a factor here, but only in connection with the earlier beating (Acts 22: 24, cf. 16: 37). It is pertinent to ask if the ‘appeal’ would have been refused automatically if it had not been known that Paul was a citizen.

³               The first position was held by Mommsen, G*S iii. 431 ff., cf. Strafr, 242 ff. See also Bleicken, op. cit. 178 ff. Was it illegal of Festus to invite Paul, a citizen

On the other hand, it can be agreed that the persona of Paul, his record and his status (including his possession of the citizen­ship), did influence Festus in reaching his decision. We may per­haps allow that the Roman citizenship was more highly regarded in Judaea in the mid first century than in Bithynia in the early second; further, that Paul, in comparison with the Bithynian citizen Christians, was a more prominent representative of his faith, and a greater danger in the eyes of the Roman authorities, both to the state religion and to the peace and order of the Empire. It may also be the case that Paul, in requesting trial before the Emperor, was exercising a little-used if not virtually obsolete prerogative of provincial citizens to choose between courts and seek to have their case referred to Rome (reiectio Romam).¹ How­ever, if, as I hold, Festus was under no obligation to grant Paul his request, then a complex of causes must be acknowledged to lie behind his decision. Festus’ personality and attitudes, his uncertainty about the basis of the allegations against Paul,² and the strain of Jewish pressure—as well as Paul’s status—were probably relevant factors.

Maiestas could easily be regarded by governors as primarily the Emperor’s affair. Christianity raised special problems, and it might be claimed that it fell to the Emperor, as Pontifex Maxi­mus and guardian of the state religion, to solve them. But the Emperor was also commander-in-chief, and as such was from time to time called upon to deal with offences committed in a military context. A consular legate sent Trajan an adultery case involving the wife of a military tribune laticlavius (that is, of senatorial rank) and a centurion.³

The adultery case was a flagrant breach of military discipline. However, it is doubtful if it would have been regarded as seriously

on a capital charge, to face trial under him at Jerusalem? See also Acts 26:32, where Agrippa’s comment seems to assume the feasibility of a trial. It is not difficult to show that governors did take capital cases involving citizens—only to give a convincing explanation of how this was possible. I have attempted this in JRS 58 (1968), 51 ff. The second alternative is favoured by Jones (op. cit. 56 ff. and 90 ff.) and Sherwin-White (op. cit. 60 ff.). It is criticized in JRS 56 (1966), 167 ff.

¹ On reiectio Romam see pp. 263-4.                 ² See Acts 25:19-20, 25-7.

3 Pliny, Ep. 6. 31. 4ff.

77 by the legate (and passed on to the Emperor at all) if the injured party had not been an officer, and one whose candidature for senatorial office was imminent. Thus, in seeking to explain why this case was referred to the Emperor, it would not be sufficient to talk merely in terms of the qualitas causae, the nature of the crime and its gravity. Condicio personae, the status of the persons involved, was also relevant. Condicio personae was equally impor­tant in the cases of Claudius Aristion and Trebonius Rufinus, as­suming for the moment that they did pass through the hands of their governors, and in that of Jason, a magnate of the province of Lycia.¹ As already stated, the opponents of Aristion and Rufinus are shadowy figures, but they are likely to have been their equals or near-equals in rank and wealth. Jason was accused of misusing the office of Lyciarch, and Pius considered and dismissed the charge. We have only the name of his attacker, Moles, and he too was probably a personal enemy and rival. The rank of either party or both parties in all these cases was one factor influencing the governor to transfer the trial to Rome.

There are two reasons why this might have been so. First, many governors would have admitted the social importance of the provincial elite, which, by the Trajanic period, had forged strong links of kinship, friendship, and common origin with the Roman aristocracy. We have seen that the novus homo Pliny approved of.the Senate’s maltreatment of those provincial envoys who pro­secuted ex-governors for extortion and other crimes.² But Pliny was not unwilling to ascribe dignitas to the provincial gentry, from which class the envoys were drawn, and to acknowledge that they merited privileged treatment. In a letter to his friend Calestrius Tiro, who was about to take up office as proconsul of Baetica in Spain (in succession to another governorship), he wrote as follows:

You have done splendidly—and I hope you will not rest on your laurels—in commending your administration of justice to the provincials

¹ Ibid. 6. 31. 3 (Aristion); 4. 22. iff. (Rufinus); IGRR iii. 704 (Jason). There is no positive evidence that Jason appeared before the Emperor Pius. The charge was brought against him in the first instance before an Imperial official, lunius Paetus, who was probably the legatus of the province. See W. Williams, Historia 16 (1967), 476-7, with nn.                                                                                                    » See p. 55.

by your great tact. 'Phis you reveal particularly in the consideration you show for the best men, yet in such a way as to win the reverence of the lower orders at the same time as you hold the affection of their superiors. Many men, in their anxiety to avoid seeming to show ex­cessive favour to men of influence, succeed only in gaining a reputa­tion for perversity and malice. I know there is no chance of your falling prey to that vice, but in praising you for the way you tread the middle course, I cannot help sounding as if I were offering you advice: namely, that you should maintain the distinctions between ranks and degrees of dignity. Nothing could be more unequal than that equality which results when those distinctions are confused or broken down.¹

Pliny’s position is only superficially inconsistent. He could both sincerely praise Tiro for respecting provincial dignitas above provincial vilitas (lack of status), and despise provincial dignitas for not only competing with but also attacking senatorial dignitas, on its home ground. A request for transference to Rome from a distinguished provincial, either as plaintiff or defendant, might have been given careful consideration by a governor such as Pliny or Tiro, out of respect for status.

Pliny’s notions were probably too advanced for some governors, who were less ready to admit that the provincial aristocracy had moved closer, socially, to the aristocracy of Rome. But even those governors who emphasized the traditional subservience and in­feriority of provincials could not be ignorant of the fact that the provincial aristocracy was a force to be reckoned with in their own provinces. Any governor who had been at all exposed to local power struggles, as had most governors, was aware of this.² It was well within the capabilities of individuals or factions to create trouble for a governor both during and after his term of office, and often this could be avoided only by skilful diplomacy. One effective way of avoiding odium (invidia), it may be proposed, was to refer a contentious lawsuit to the Emperor. Moreover, if either defendant or plaintiff had himself taken the initiative and requested trial before the Emperor, a governor, in granting this request, would be making a concession to one party without

¹  Pliny, Ep, 9. 5.

²               Speeches of Dio of Prusa, and, to a lesser extent, letters of Pliny, reveal the complexity of the relations which could pertain between a governor and rival factions within the provincial aristocracy. See espec. Dio, Or. 38. 33-8; 43. 11.

79 necessarily antagonizing the other. To sum up, one can envisage political considerations as well as private prejudices entering into a governor’s decision to remit a case involving a member of the provincial aristocracy to the Emperor.

Of the Emperor’s role little has been said. It was passive, in the sense that the cases came to him as a result of the initiative of others, the governor and/or the plaintiff (or defendant). It need hardly be said that the Emperor was under no obligation to try every case sent to him from the provinces. Equally obviously there were ways in which he could change the type of cases which were sent by issuing direct instructions to a governor or governors. This was probably only ever done in very modest ways. According to Pliny, Trajan hinted in his postscript to the sentence passed on the centurion and the tribune’s wife that he was not anxious to accept cases of this sort on a regular basis.? But there is no sign that Trajan or Pius was averse to judging distinguished provincials, and we may take it that they and other Emperors not infrequently did so.

By the Severan period the relationship between the Emperor and the provincial aristocracy had taken a new turn. A passage of Ulpian’s treatise on the duties of a proconsul indicates that in the early third century the Emperor’s ratification was required for any sentence of deportatio, or capital exile, passed by a governor.² Among provincials, only the aristocracy was punished with de­portation.³ Moreover, deportation was the only capital penalty to which the provincial aristocracy was subject.⁴ Thus what was required of a governor was, in effect, the reference to the Emperor of any capital case which involved a member of the pro­vincial aristocracy. The text of Ulpian is as follows:

The right to deport to an island is not granted to governors of pro­vinces, although it is granted to the urban prefect: for this is stated in a letter of the Divine Severus to Fabius Cilo the urban prefect. Thus

¹               ‘Caesar et nomen centurionis et commemorationem disciplinae militaris sententiae adiecit, ne omnes eius modi causas revocare ad se videretur.’ Pliny, Ep. 6. 31. 6. See also Fronto, ad M. Caes. i. 6 (ed. van den Hout, pp.

Here Pius is strongly advised to discourage governors from remitting cases of disputed wills to him.

²                                                                                                                                                                                                                                            Dig. 48. 22. 6. I.        ³ See p. 121.

♦ Dig. 48. 19. 15; 48. 22. 6. 2; and see p. 155.

whenever governors think that someone should be deported to an island, they should accordingly note this down, but then send his name to the Emperor in order to secure his deportation. They should write to the Emperor and include a full opinion, so that the Emperor may make up his mind as to whether the sentence passed should be executed and the man deported to an island. In the meantime, while the letter is being written, he should give orders for the imprisonment of the accused.¹

Two matters concern us here, the means by which the Emperors were able to introduce this change, and their motives for doing so.² It is plain that the governor’s judicial independence was far from complete even in the early days of the Principate, and that in the course of time Imperial interference in the governor’s sphere of influence mounted. What needs to be stressed is that governors bore part of the responsibility for their growing dependence on the Emperor, by their readiness, first, to pass on to him cases which they might have decided, and second, to consult him in matters which they nevertheless retained for their own juris­diction. The first point is illustrated by the four cases last con­sidered. The consular legate was fully competent to punish any offence against military discipline, and indeed Trajan indirectly reminded him of the fact. Similarly, the charges against Claudius Aristion, Trebonius Rufinus, and Jason at the least would not have lacked parallels, and for all we know formed part of the staple diet of governors in the preceding period.³ Meanwhile, sua sponte

¹               ‘Deportandi autem in insulam ius praesidibus provinciae non est datum, licet praefecto urbi detur: hoc enim epistula divi Severi ad Fabium Cilonem praefectum urbi expressum est. praesides itaque provinciae quotiens aliquem in insulam deportandum putent, hoc ipsum adnotare debeant, nomen vero eius scribendum principi ut in insulam deportetur: sic deinde principi scribere missa plena opinione, ut princeps aestimet, an sequenda sit eius sententia deportarique in insulam debeat, modo autem tempore, dum scribitur, iubere eum debet in carcere esse?

²               About the antecedents of the system little can be discovered. Callistratus quoted from and referred to mandata which instructed particular governors to follow the procedure outlined by Ulpian (see Dig, 48. 19. 27. 1-2). He did not connect the mandata with any particular Emperor, but the singular mihi points to Caracalla rather than to Severus and Caracalla, unless Callistratus quoted from mandata of a past Emperor (the de cognitionibus was written after A.D. 197. See Dig, 1. 19. 3. 2; 50. 2. 11; 50. 4. 14. 4; Bonini, I‘Libri de cognitionibus' di Callistrato (1964), 14-15). With this, the direct evidence seems to be at an end.

³               It is not possible to decide whether the cases of Aristion and Rufinus were sent to the Emperor by the governor, or whether the defendants were accused

81 (voluntary) consultation of Emperors by governors was regular, in judicial as in administrative matters, and this only facilitated and encouraged increased interference from the centre.¹ Such consultation by governors, in addition to the administrative and judicial activity of the Emperor² and his agents,³ led to a situation where detailed instructions, or mandata, were regularly given to all governors by the Emperor?. This made the climate even more ab initio before Trajan. The issue is not crucial, to the extent that the two alternative explanations illustrate in different ways the same fact, the subjection of the governor to the Emperor. For either the governors concerned passed the cases on to Trajan (supposing that the indictments were brought in the pro­vinces in the first instance), or Trajan chose not to remit them to the governor (supposing that the plaintiffs had bypassed the governors). Yet these governors were clearly competent to deal with the charges against the two men. For another case (civil) unnecessarily remitted to the Emperor, see Fronto, ad M. Caes. i. 6.

¹               The principle of consultation sua sponte is stated clearly by Aelius Aristides in his Roman Oration of a.d. 143 or 156, §32, ed. J. H. Oliver, Trans. Am. Phil. Soc. n.s. 43. 4 (1953), 871. The practice had a long history. Republican proconsuls may have consulted the Senate on ad hoc matters, especially in relation to war, peace, and treaties, although there is no echo of this in the sources. Nor is there any evidence that they sought advice in a judicial issue. The comparative independence of the governor could not last in a situation where one man controlled foreign policy and was pre-eminent in the field of justice.

²               e.g. his practice of advising and instructing governors in response to petitions from local communities and individuals. See F. Millar, JRS 56 (1966), espec. 163 if. In the legal sphere note the Emperor’s usurpation of the power of restitutio in integrum, the reinstatement of a condemned man to his former legal position. Rescripts of the divifratres show that by their reign governors did not and could not alter their sentences (Dig. 48. 19. 27 praef.). If a condemned man was shown later to be innocent, the governor had to write to the Emperor: ‘principi eum scribere oportet’ (48. 18. 1. 27 fin.). Again, the Emperor’s per­mission was required before a man awarded the wrong penalty could be freed or the penalty altered (48. 19.9. 11). But restitutio was originally an extraordinary praetorian remedy (W. W. Buckland, Textbook of Roman Law from Augustus to Justinian³ (1963),. 7i9ff.), and the Senate and proconsuls are found exercising the same power as late as Trajan’s reign (Pliny, Ep. 10. 56).

³               e.g. procurators, see F. Millar, Historia 13 (1964), 180if.; 14 (1965), 362 ff.; P. A. Brunt, Latomus 25 (1966), 461 ff. Cf. cur at ores, sent first to individual cities. The first known are in Italy and the West: Philostr., vita soph. 512 (p. 66, Loeb; Nero); ILS 1017 (Dom.); 5918a, 6725 (Traj., Hadr.). Their sphere was primarily financial administration, and their typical tasks were control of investment of city funds, management of city lands, enforcement of the payment of debts owed to the city or of promises made (Dig. 22. 1. 33; 50. 10. 5; etc,).

⁴               Mandata were certainly issued to proconsuls by A.D. 135-6 (Dig. 48. 3. 6. 1 and F. Millar, JRS 56 (1966) 158), and were presumably given to legates, at any rate, at a much earlier date. Dig. 29. 1. 1 praef. seems to take the practice back into pre-Trajanic times, and these mandata were not necessarily for legates alone.

favourable to requests and replies, or rescripts (which, probably from the early Empire, were intended and taken as orders).¹ Hence there followed a prohibition on action in specific areas without consultation (the system described by Ulpian). At the end of the process the governor had been relegated to the status of a functionary, whose reduced, but still substantial, punitive powers were held to be delegated to him by the Emperor.²·⁷

The development of the system of referring to the Emperor capital cases involving provincials of status can thus be placed in the general context of relations between Emperor and governor. The causes of the institution of the system are still to seek.

Part of the explanation of the Emperor’s intervention lies in the inadequacies of the legal remedies which were available to provincials. One might have thought that the institution of appeal would offer protection to high-status provincials, or at least to those among them who were citizens. The whole purpose of appeal, according to Ulpian, was to correct the injustice or inexperience of judges (iniquitatem iudicantium vel imperitiam).³ Ulpian wrote elsewhere that appeal was useful against a crafty judge (adversus iudicis calliditatem)* But an appeal could be held up or blocked. This possibility was envisaged by the Julian law on violence, as Maecianus indicated:

lege lulia de vi publica cavetur, ne quis reum vindat impediatve, quo minus Romae intra certum tempus adsit.^s

¹               Pliny displayed the mentality of a governor who operated on the basis of mandata. See, e.g., io. 96 (‘solemne est mihi, domine, omnia de quibus dubito ad te referre’). Cf. 10. 56 (Pliny fails to make even slight inferences from his mandata concerning relegati). Trajan did not encourage Pliny to be independent, and reacted unfavourably to a request only once (10. 117). Compare the exas­peration of Hadrian in a reply to a query relating to a kidnapping charge (Dig. 48. 15. 6 praef.: *non me consult de ea re oportet... plane autem scire debet ...*). See Eus. EH 5. 1. 44; 47, for a good example of consultation from the reign of Marcus.

²  SeeJRS 58 (1968), 51 ff.                                            ³ Dig. 49. 1. 1 praef.

⁴   Dig. 49. 4. 1 praef.

^{size=2 color=black face="Times New Roman">5}               Tn the Julian law on public violence it is stipulated that no one should put an accused man in bonds or prevent him from being present in Rome within the specified time.’ Dig. 48. 6. 8. According to a papyrus (dated variously to the reigns of Tiberius and Nero and to the third century), the certum tempus in capital cases was nine months for cases coming from Italy, and eighteen months for those coming from transalpine and transmarine areas. BGU 628 r (= FIRA² i, no. 91, p. 452). On the date see J RS 56 (1966), 189 n. 209.

83 A spirited letter of Severus Alexander to the koinon of the Bithy- nian Greeks condemned governors and procurators who prevented by force the departure of appellants for Rome.¹ Another danger was that misstatement or deception in the letter of the governor which accompanied the appellant’s petition would render that petition ineffective? Again, some governors would have denied the right of appeal outright. Gessius Florus, the Neronian prefect of Judaea, flogged and crucified equestrian Jews without trial. Appeals by his victims were obviously out of the question.³ To­wards the turn of the first century, the Senate was informed of the scandalous conduct of Marius Priscus, proconsul of Africa, towards African provincials.⁴ It was disclosed at his trial that he had exiled a Roman knight and executed seven of his friends for the price of 300,000 sesterces. Priscus obtained 700,000 sesterces for having another equestrian provincial beaten, sent to the mines, and finally strangled in prison. It is not known whether Priscus bothered to stage ‘trials’ on these occasions. It can be assumed that any appeals were swept aside.

Thus the ineffectiveness or breakdown of the system of appeal may have been one factor which led to the demand for the reference to the Emperor of every case in which a provincial of status was threatened with a capital penalty.

Appeal, however, was not even in theory a defence against all the injustices which provincials might suffer at the hands of governors. For instance, as far as can be ascertained, there was no provision for an appeal against an over-harsh penalty. The actions of Florus and Priscus were outrageous partly because their victims suffered penalties which were customarily inflicted on men of considerably lower status. Nor could there have been much room for doubt as to which punishments were appropriate for high-status criminals in the provinces, at least by the Hadrianic period. Hadrian himself made it clear that capital exile was the highest penalty that decurions should suffer for ordinary capital

¹ Dig. 49. 1. 25 (—P.Oxy. 2104).

¹ Dig. 49. 1. 1. 1, cf. Dig. 48. 19. 27 praef. For this aspect of the mechanism of appeal see Dig. 28. 3. 6. 9.

* Jos. 2. 308.

⁴ Pliny, Ep. 2. 11.

82610*7                                                                            G

crimes.¹ The institution of the new system suggests that abuses in the punishment of decurions (and other high-status provincials) for capital offences at least persisted in post-Hadrianic times.

If provincials of status were in need of protection against severe or arbitrary governors, the second-century Emperors also judged them to be worthy of protection. That Emperors were well disposed at least to individual representatives of the provincial gentry may perhaps be deduced from the sympathetic consideration that was given to Aristion and Rufinus by Trajan—provincials were not accustomed to such treatment from the senatorial court.² Pronouncements of later Emperors confirm Imperial favour and show that it was directed not merely towards individuals, but towards the whole curial order. Hadrian’s statement on the sub­ject of the death penalty is a good example.³ The later reform which we have been considering suggests that the desire of post- Hadrianic rulers to protect the privileged position of the curial order did not wane.

Finally, a brief comment is called for on the divergent attitudes of Emperors and governors to the curial order. The Emperors in general were more sharply aware than the Senate as a whole or many individual governors that the security of the Empire de­pended in large measure upon the prosperity and relative content­ment of the local gentry. Legal privileges such as the reference of capital cases to the Emperor were considered their due because of their status and the political and economic functions they were performing. Governors might minimize the differences between

^{style='font-size:9.5pt;line-height:92%'>1}               Dig, 48. 19. 15: ‘Divus Hadrianus eos, qui in numero decurionum essent, capite puniri prohibuit, nisi si qui parentem occidissent: verum poena legis Corneliae puniendos mandatis plenissime cautum est.’ On the interpretation of this text and the penal system in the Hadrianic period see pp. 155 ff.

² Senatorial trials of provincials were not unheard of in the early Empire

(see pp. 31-2), although after the Julio-Claudian period they seem to have occurred only as part of investigations into crimes of senators, in particular, senatorial governors (e.g. p. 53). It is clear that the Senate treated the appear­ance of a provincial defendant before it as an opportunity to reaffirm its tradi­tional supremacy over the ‘subject peoples’. Thus, e.g., Thrasea Paetus burned with self-righteous wrath at the arrogance (superbia) of the Cretan notable, Claudius Timarchus. For his offence see p. 32 above, and Tac. Ann. 15. 20. On Pliny’s attitude and that of Trajan’s Senate see p. 53. It is thus significant that capital cases involving decurions were referred to the Emperor and not to the Senate.                                                       ³ Dig. 48. 19. 15, cf. 48. 22. 6. 2 (divifr.).

85 decurions and other provincials. Emperors, however, needed to be more realistic, if they wanted co-operation in government.

To sum up the discussion so far: the accessibility of the Em­peror to all his provincial subjects was not a reality, if by this it is implied that all had equal access to his tribunal. The Emperor’s tribunal was in practice available to those plaintiffs (or defendants) who could afford the expense and the inconvenience of a journey to Rome, to those with friends and connections in high places in Rome, and to those capable of winning reference to Rome through their influence with governors. To point out the importance of the individual’s initiative and the governor’s discretion is not, of course, to make light of the Emperor’s own role. It was for him to decide whether to adjudicate or delegate or even return a case to its place of origin. The fact that he frequently, if not regularly, settled disputes involving members of the provincial aristocracy is itself an indication of his readiness to make special allowance for their status. Imperial respect for curial status was also re­flected in Imperial constitutions, and was strikingly advertised in the annunciation of the rule that final judgement in capital cases for which the appropriate penalty was deportation lay with the Emperor.

Equestrians

If it was primarily consideration of the conditio personae, the social status or official position of a party or parties, which led Emperors to involve themselves in lawsuits concerning members of the curial order, a similar explanation is appropriate for the Emperor’s primary jurisdiction over members of the equestrian order.

Two passages of Dio suggest that in Severan times defendants of equestrian rank were directly subject to the Emperor’s juris­diction, at least in serious criminal cases. Although almost no information which is relevant survives from the second century, there is just enough from the first century to suggest that the same principle might have operated in earlier times.¹

It can be inferred from words attributed to Marcus Aper in

¹       Dio 52. 33. 2; 53. 17. 6. See Dig. 47. 18. 1. 2 (Marcus).

the Dialogus of Tacitus that Imperial freedmen and Imperial procurators were regularly tried by the Emperor in Vespasian’s reign.¹ But the practice was older than the Flavian period. Licinus, whose conduct in Gaul was reported to and investigated by Augustus, and Pallas, who was tried by Nero, were Imperial freedmen; and lunius Cilo and P. Celer, who went before Claudius and Nero respectively, were procurators of equestrian rank.² In the Julio-Claudian age only one equestrian procurator is known to have been tried and sentenced by the Senate. This was Luci­lius Capito, Tiberius’ procurator in Asia. For Tacitus, writing in the early second century, the incident served to illustrate the extensive use which Tiberius made of the Senate. His words imply that the trial of Capito was without parallel in later reigns.³

Tiberius is also the only Emperor known to have sent to the Senate for trial an equestrian official who was not a procurator. The man, a prefect of a cavalry troop, was indicted for robbery and violence. The incident had for Suetonius the same significance as the senatorial trial of Capito had for Tacitus. It can be assumed that he knew of no analogous case from the later period.⁴ We have record of a few trials of equestrian officials (apart from procura­tors) by Emperors. Claudius punished a procurator (Cumanus) and a military tribune (Celer) for their crimes in Judaea, Nero ‘tried’ his praetorian prefect Afranius Burrus, and Gaius and Septimius Severus each tried and condemned a prefect of Egypt. The equestrian Sempronius Senecio who was charged before Trajan in company with the Imperial freedman Eurythmus may have been an official.⁵

¹               Tac. Dial. 7. 1: \. aut apud principem ipsos illos libertos et procuratores principum tueri et defendere datur.’

²               Dio 54. 21 (Licinus); Tac. Ann. 13. 23 (Pallas); Dio 60. 33. 5 (Cilo); Tac. Ann. 13. 33. i, cf. 13. 1. 3 (Celer).

³               Ibid. 4. 15: ‘patres decrevere, apud quos etiam tum cuncta tractabantur, adeo ut procurator Asiae Lucilius Capito accusante provincia causam dixerit.’ For possible exceptions involving procuratorial governors see ibid. 13. 30. 1; 14. 28. These trials belong to the period when Nero’s senatorial amici were still powerful. However, Tacitus may not have set out to record only trials held in the Senate in the relevant passages.

♦ Suet. Tib. 30. A doubtful case is the trial of Clodius Quirinalis, Tac. Ann. 13. 30. 2 (cf. previous note).

⁵               For Cumanus and Celer see p. 73 n. 3; Tac. Ann. 13. 23 (Burrus); Philo, in Flacc. 125 ff. (Avillius Flaccus); Dig. 48. 10. 1.4 (prefect of Egypt); Pliny, Ep.

It was predictable and natural that an Emperor would wish to deal with freedmen in his own employ and equestrian officials who were responsible to him. It is worth inquiring whether either category of defendant could hope or expect to receive preferential treatment from the Emperor as judge.

. Eurythmus and Senecio were accused of forging the codicil of the ex-praetor lulius Tiro.¹ Pliny’s account of the case is illuminating for what it reveals about the behaviour expected of an Emperor who sat in judgement over his own freedmen. The heirs of Tiro had lodged the accusation by a special approach to the Emperor, but later had second thoughts and tried to withdraw it. Trajan interpreted their reluctance to press the charge as due to an assumption on their part that he would inevitably decide for his freedman—as if he were a Nero and Eurythmus a Polyclitus. Yet even an Emperor of good reputation was capable of showing partiality to his freedman, as the affair of Licinus, the notorious freedman-procurator of Gaul under Augustus, had demonstrated. The whole incident seems to indicate that it was thought normal for an Emperor to show leniency to his freedman.

It may be doubted whether Emperors were more inclined to be generous to freedman officials than to officials of equestrian rank. One advantage which equestrian officials, and indeed the whole equestrian order, held over freedmen was their rank. Even the Senate gave equestrian dignitas some recognition, and this was probably reflected in judgements returned by the senatorial court.² For example, it is likely that equestrian defendants before the Senate received milder punishments than defendants of lower j rank. Direct evidence for this is lacking, but confirmation of a sort comes from an unexpected source. As we have seen, Marius Priscus as proconsul of Africa exiled a Roman knight and executed

Neroj.^7ff’ ^{(Senecio: forgery of a codicil}; ^cf· Tac. Ann. 14. 40-1, not before

’ Probably C. lulius Tiro Gaetulicus, PIR* I 603.

* ^Aftf^r reign of Tiberius equestrians seem to have been rarely subject to senatorial jurisdiction. When they did appear before the Senate it wal normally as accomplices in the crimes of senators. See Tac. Ann. 11 4. · 11 it 6 · ?· ’■ ^,8: «· "■ ^,off- -loub-M ii’s >« p. 86 nn. 3-4. For recognition of equestrian dignitas see pp. 237 ff. Imperial freedmen were without dignitas, but did not lack influence. seven of his friends for 300,000 sesterces. Priscus may be said to have had at least token regard for the status of the former, if, as is likely, the latter suffered a higher penalty because of inferior rank. Again, when another equestrian was beaten, sent to the mines, and strangled in prison, Priscus was rewarded with a considerably higher fee, 700,000 sesterces, presumably for the greater invidia which attended the punishment in ‘plebeian’ fashion of a man of rank.^[XCI] But if equestrians gained by comparison with plebeians, they suffered by comparison with senators. Senators obtained less severe penalties and more frequent acquittals.²

The view taken by Emperors of the equestrian order was, by and large, broader than that taken by the Senate.³ In the first place, Augustus and his successors saw the equestrian order as the source of army officers, jurymen, administrators—as well as of senators and magistrates. The membership of the order was subject to their regular review and scrutiny. As for equestrian officials, they were a particularly select group, who had caught the Emperor’s eye and gained posts in his service normally by merit. Their careers were watched and guided by the Emperor from their inception. Second, the social importance of the order was considerably enhanced by the Augustan reforms, which had transformed it into an aristocracy in its own right.⁴ By the Flavian period the social distance between the equestrian and senatorial orders had narrowed, following the eclipse of most of the illustrious Italian families which had dominated the Senate. In the years following the civil wars of a.d. 68-9 it would have been difficult to regard the Senate as a closed clique of superior families, even if the Flavian Emperors had sympathized with such an attitude. Suetonius records a judgement made by Vespasian, himself a first-generation senator, relevant to the comparative positions of the senatorial and equestrian orders. Vespasian refused to penalize an equestrian for returning a senator’s insults, while granting that

89 in principle it was wrong to abuse senators. As Suetonius inter­preted the decision, Vespasian did not repudiate the traditional status distinction between the two orders, but showed that he considered it of no great importance, because he pronounced their libertas, perhaps ‘privileges’, to be equal.¹ Suetonius reports this incident after briefly reviewing Vespasian’s activity as censor, when he reformed and rebuilt the senatorial and equestrian orders by drafting into their membership the most eminent of the Italian and provincial nobility. The demands of politics strengthened the conviction of this unpretentious soldier that the gap between the orders, in social terms, was insignificant.

Thus it is reasonable to suppose that, if Emperors as j’udges took into account the condicio of defendants, this would have worked to the advantage of equestrians, because of their vital administrative, political, and military functions, and because of their standing in Roman society.

It is of course not possible to make a positive statement, based on an empirical analysis, about the standards which the Emperors followed in their jurisdiction. Yet, allowing for considerable variation in their conduct,^{[92] [93]} it does seem likely that Imperial decision-making was characterized by the observance of principles which were particularistic rather than egalitarian. That is to say, the Emperors did not follow a general policy of prescribing like treatment for like offences irrespective of the status or position of the defendant. Rather, in general, their decisions were affected by their social prejudices; and, in particular, they showed a natural tendency to favour those defendants with whom they were acquainted, whose careers they had fostered, and who had

promoted their (the Emperors’) interests even if they had simul­taneously advanced their own.

This tentative conclusion is fully consistent with the central argument of this section. To say that the Emperor’s court operated on egalitarian principles would be to imply not only that the Em­peror inflicted like penalties for like offences, but also that he was concerned equally with the fortunes of all his peoples, and that this was reflected in the kind of defendants who came before his tribunal. But the criteria of selection for at least a proportion of the cases which he tried were evidently non-egalitarian—if he regularly heard charges against his own officials, equestrians in general, and members of the provincial aristocracy (and occasion­ally against senators¹)· Precisely how large a part of his judicial time was spent trying freedmen, equestrians, decurions, and senators is of course unknown. But considering the attention given to these cases, and to others against political² or religious offenders, not much provision could have been made for the settlement of disputes involving men of low status or little influence.³

Delegated jurisdiction: the urban prefect

The Emperor’s delegated jurisdiction is an important subject in its own right. In so far as it was exercised by new tribunals through a new procedure, cognitio, it made inevitable the gradual replacement of the jurisdictions and procedures which had flourished in Republican times; and in so far as it was exercised by older jurisdictions by Imperial sanction, it reduced the degree of their independence and separation from the power of the state.

Delegation of the second kind has been touched upon in connection with the relationship between the tribunals of the Emperor and the governor. It was pointed out that the Em­peror’s practice of referring provincial petitioners to their gover­nors, and of directing governors to hear complaints and to carry out investigations, were part of the process by which the governor

¹  See pp. 59 ff.

²               On the Emperor’s primary jurisdiction in maiestas cases, p. 74 n. 1; cases remitted, pp. 72 ff.

³               The status of some defendants is unknown. See, e.g., Suet. Div. Aug. 33 (parricide, falsum); Suet. Div. Cl. 15. zfjalsum).

91 was reduced to a functionary of the government at Rome, whose punitive powers were themselves held to be delegated. The other aspect of the subject of delegation has also been broached. The jurisdiction exercised by the Senate was delegated jurisdiction, both in the particular sense that individual cases were sometimes passed down by the Emperor to the Senate for trial, and in the general sense that the senatorial court was promoted by the Em­peror and remained under his direct or remote control. Of other delegated jurisdictions, that of the urban prefect was the most significant.¹ The courts of the Senate and urban prefect provide an interesting comparison. The senatorial court reached its zenith early. In Tiberius’ reign it was nothing less than the High Court of the Empire. Thereafter it fell into decline, and by the Severan period had no higher ambition than to protect the inter­ests of its own membership. At the time when the prestige of the senatorial court was at its highest, the urban prefect is not known to have handled offences more serious than a freedman’s petty theft of clothes from his patron.² However, within two centuries he had built up a wide jurisdiction and had emerged as the Em­peror’s deputy in judicial affairs.

Accounts of the development of the prefect’s jurisdiction usually begin with a citation of Annals 6. 11. 3. Here Tacitus appears to associate the office with the task of bringing order to a crowded city. This passage and the Tiberian case against the freedman are held to show that the prefect was appointed as an ‘urban chief of police’,³

1       A full study of jurisdiction delegated by the Emperor would have to include (amongst other things) the administrative or quasi-judicial courts of Imperial agents such as procurators (see p. 81 n. 3 above), the extra ordinem civil jurisdiction of magistrates at Rome (over trusts, guardianship, etc.; see Μ. Kaser, op. cit. (cited p. 68 n. 3), 350 ff.), and ad hoc tribunals of individuals appointed over particular cases (e.g. Pl. Ep. 7. 6. 8-10, a falsum case). On the urban prefect see E. Sachers, RE 22 (1954), 2521 ff., s.v. praefectus urbi; G. Vitucci, Ricerche sulla praefectura urbi in età imperiale (sec. Z-1Z7) (1956), 50ff.; T. J. Cadoux, JRS 49 (1959), 152ff. (review of Vitucci, op. cit.). The traditional debate over the origin of the office and the source of its powers may be passed over here. For the praetorian prefect see refs, on p. 97 n. 4.

2       Jos. AJ 18. 169. The patron was Herod Agrippa and the prefect Piso (a.d. 26-32).

3       See, e.g., W. Kunkel, Introduction to Roman Legal and Constitutional History (1966), 66; see also Kunkel, Zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (1962), 75-7. Kunkel sees the prefect as the official who took over the police responsibilities of the Republican tresviri capitales. But see

Perhaps something of Tacitus’ meaning has been missed. Augustus, he wrote, created the post of urban prefect because of the size of the populace (ob magnitudinem populi) and the slow- moving remedies of the law ((06) tarda legum auxilia}. The first phrase suggests that Augustus’ aim was to provide for the citizens of Rome on-the-spot protection against a vast and potentially unruly populace; the second may well contain an implied criti­cism of existing civil and criminal procedures. The securing of compensation for private injury or loss by the formulary process could be a long-drawn-out business, while interminable delays were an ever-present feature of the jury-court system.² The cogni- tio procedure which Augustus introduced made possible a more efficient and streamlined justice. The urban prefect was often ex­perienced in law as well as in government,³ and he was able to call upon men of like distinction and record for advice and assistance.⁴ It is not unlikely that Augustus from an early stage thought of the

P. A. Brunt, Tijdschrift voor Rechtsgeschiedenis 32 (1964), 445 (review of Kunkel, Zur Entwicklung).

¹  Tac. Ann. 14. 40-1, and see pp. 27 ff.

²               It may be that Augustus’ creation of the office of city prefect was motivated also by his disapproval of other aspects of praetorian justice, in particular, its susceptibility to corruption. J. M. Kelly, Roman Litigation (1966), 91 ffi, has argued that some of the changes in civil jurisdiction which were introduced at the beginning of the Principate were due to Augustus’ dissatisfaction with ‘low praetorian standards’. He suggests (94 ff.) that a similar motive lay behind the institution of the office of the city prefect. (For a brief discussion of some of the weaknesses of the quaestio system see Kunkel, RE 24. 777; Introduction, 66-7.) But to my mind what principally weighed with Augustus was not the alleged unreliability of a judicial magistrate, but the limitations of the legal procedures with which he was associated.

³               The jurist Pegasus was urban prefect under Domitian (PIR¹ P 164). He is the optimus atque interpres legum sanctissimus in Juv. 4. 78.

⁴               See Apul. Apol. 2. 11: de consilio consularium virorum (forgery of a will, before Lollius Urbicus, about a,d. 150).

93 prefect as rather more than the police-chief of Rome; and that he foresaw that the prefect would build up a criminal jurisdiction under Imperial direction which would supersede that of the public courts.

Be that as it may, the process of displacement of the public courts by the prefect was well under way by the reign of Nero. One is forced to ask whether there were not already in addition to falsum other crimes both statutory and non-statutory which the prefect was empowered to punish and which he punished with some regularity. It may be that only the political discretion of the Emperor and the private conscience of the holder of the office set limits to his jurisdiction.¹ The office was not universally approved of within the senatorial order in its early days at least, and this fact had to be weighed against the popularity it must have quickly acquired for swift and impartial judgement.

Septimius Severus informed his prefect Fabius Cilo, in a letter containing perhaps the first comprehensive statement on the powers of the urban prefect, that ‘all crimes’ (omnia crimina) were within his compass, so long as they were committed in Rome and Italy. Caracalla limited his jurisdiction to within one hundred miles from Rome.² Cases of falsum still went to the prefect;³ he may have tried adulterers;⁴ and it was his special prerogative to deal with kidnappers.⁵ Of these crimes falsum was, and kidnapping might be, capital. It is highly unlikely that the prefect was ex­cluded from trying other capital crimes which had received defini­tion by leges publicae, especially as these were all tried extra ordinem, at least in Severan times.⁶ Curule magistrates may also have dealt

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with some. But their tribunals were considered inferior to that of the urban prefect.¹

The non-capital quaestiones had also faded out by the Severan period.² One liability of those courts was the fact that they were wedded to a pecuniary penalty. It must have become obvious at an early stage that an alternative penalty was required, just because not all condemned men could pay a fine. Courts which operated extra ordinem could cope with this situation. The intru­sion of the prefect’s court into the sphere of pecuniariae causae dates at least from Hadrianic times. Paulus refers briefly to a letter of Hadrian in these words:

(praefectum urbi) adiri etiam ab argentariis vel adversus eos ex epistula divi Hadriani et in pecuniariis causis potest.³

A passage of Ulpian is more detailed and gives attention to the difficulty caused by the pecuniary penalty:

generaliter placet, in legibus publicorum indiciorum vel privatorum criminum qui extra ordinem cognoscunt praefecti vel praesides, ut eis, qui poenam pecuniariam egentes eludunt, coercitionem extraordinariam inducant.⁴

The text of Ulpian shows that the praetor had lost ground not only in the administration of the criminal law, but also in the sphere of ius ordinarium. Ulpian wrote in another passage that any offence which gave rise to a pecuniary actio could be treated as a crimen (as opposed to delictum) and brought before an extra ordinem court.⁵ Theft, for example, was mostly punished

1       See Dio 52. 20-1. The prefect tried cases remitted or sent on appeal from magistrates. For consular jurisdiction cf. JRS 57 (1967), 57-8.

2       Ibid. 56-60. For an opposing view see R. Bauman, Antichthon 2 (1968), 68 ff.

3       ‘The urban prefect may be approached by bankers or their opponents, according to a letter of Divine Hadrian, also in pecuniary cases.’ Dig, 1. 12. 2 (Paulus, de off. pr. urbi). Other civil jurisdiction: 1. 12. 1. 6; ibid. 1. 9; 27. 1. 45· 3; Z7 1· 20. 4 (ed. brackets praefectus urbis); 1. 23. 3; 1. 24. 4. The prefect’s involvement in manumission dates from the time of Marcus. See CJ 4. 57. 2; Dig. 4. 4. 11. 1; 26. 4. 3. 2; 40. 1. 20 praef. The sphere of the iuridici must have overlapped to a degree. See p. 97 n. 3, below; and Rosenberg, RE 10 (1919), 1147 ft, s.v. iuridicus.

5 Dig. 47. I. 3.

95 criminaliter in his day. None the less, si qui velit, poterit civiliter agere.¹

It is not known how the various extra ordinem courts divided the load of non-statutory crimes {privata or extraordinaria crimina). The prefect’s sanctions were the most potent, and a number of serious cases were referred to him from lower tribunals. For example, the prefect of the watch {praefectus vigilum) had general responsibility for the punishment of arson, theft, burglary, receiv­ing, and abduction, at least in the city of Rome, but particularly bad cases and particularly notorious criminals were sent to the urban prefect.¹ Similarly, the praetor in charge of providing guardians {praetor tutelaris) punished run-of-the-mill offences committed by guardians, but the more serious offenders were dispatched to the prefect for extra ordinem punishment.³ In cases of this kind the prefect was more like a higher policeman than a higher j'udge.⁴

We may now ask what was the status of the defendants who came before the urban prefect. To begin with the ‘private’ crimes: if the prefect exercised first-instance jurisdiction in this area, it is likely that he came in contact with men of means—those for instance who could pay a fine—and therefore some men of rank. As for those remitted to the prefect for harsh punishment, presumably honestiores were among them, if the prefect dealt with all serious offences committed in fields covered by such officials as the praefectus vigilum and the praetor tutelaris. A

¹ ‘If anyone wants it, he can sue according to the civil law.’ Dig. 47. 2. 93. Levy, ZSS 53 (1933), 166, considers criminaliter an interpolation, and Jolowicz, ed. of Digest XLVII. 2 (1940), 128-9, thinks the last sentence quoted to be an addition. For expilata her edit as, procedure by ius ordinarium is still a possibility. See Dig. 47. 19. 3 (cf. ibid. 1: an extra ordinem procedure goes back at least to the reign of Marcus). On iniuria see Dig. 47. 10. 45. See also 47. 9. 1 praef. ff. and ibid. 4. 1 (plundering a shipwreck, etc.). In the former text an actio and a fine is envisaged, in the latter the cognitio procedure. In Dig. 48. 19. 28. 12, fortuita incendia are to be treated civiliter or punished modice, sc. extra ordinem. The same principle might have operated in the case of theft.

¹ Dig. 1. 15. 3. 1-2; ibid. 5.

* The post of praetor tutelaris was created by Marcus and Verus. See SHA Marc. 10. 11. For reference of serious cases to the urban prefect see, e.g., Dig. 26. 10. 3. 15; and below. The urban prefect sometimes tried and condemned Christians. See Justin, Apol. 2. 1—2; Euseb. Eff 4. 17 (Lollius Urbicus).

⁴               Dig. 1. 12. 1 is mostly about the prefect’s police duties in the city. For the prefect as higher judge see Dig. 4. 4. 38 praef.; 45. 1. 122. 5; Dio 52. 21. 1-2.

passage of Ulpian relating to offences of guardians does not rule this out; it simply specifies that certain severe sanctions were not properly applied to honestiores-.

Those who stubbornly persist in their refusal to contribute or deposit money for the purchase of property until an opportunity for purchase is found are to be held in a public prison by order, and in addition are regarded as ‘suspect’. But it must be recognized that not all ought to be treated with such severity, but only men of low rank; it is my judgement that those of some standing should not be held in a public prison.¹

It may be conjectured that honestiores were punished with infamia and perhaps seizure of property.²

Next, the prefect inherited from the praetor the type of offender who in the past had gone before the non-capital quaestiones, which issued a monetary penalty. This group probably also con­tained some wealthy or comparatively wealthy men.

We saw that in Nero’s reign the urban prefect was competent to deal with high-status defendants as well as low-status defendants on falsum charges (and presumably other charges carrying a capital sentence).³ The defendants in the case of A.D. 61 included senators and equestrians. Later, the prefect drew falsum cases even from the provinces. Q. Lollius Urbicus, prefect of the city under Pius, heard and dismissed a charge of forgery of a will brought by Sicinius Aemilianus, the enemy of Apuleius, and a prosperous landowner of Oea in Tripolitania.⁴ It is likely that Urbicus was directly approached on this occasion, perhaps because falsum was an acknowledged speciality of the prefect. But some

1       Dig. 26. 10. 3. 16: ‘Qui pecuniam ad praediorum emptionem conferre neque pecuniam deponere pervicaciter perstant, quoad emptionis occasio inveniatur, vinculis publicis iubentur contineri, et insuper pro suspectis habentur, sed sciendum est non omnes hac severitate debere tractari, sed utique humiliores: ceterum eos, qui sunt in aliqua dignitate positi, non opinor vinculis publicis contineri oportere.’ In 26. 10. 1. 8 (cf. ibid. 2), Ulpian says that plebeians and freedmen were sent to the prefect ‘for grave punishment’. (For an early case of the reference of a freedman to the prefect see Jos. AJ 18. 169 (a.d. 26-32).) But no classes of defendants are specified in 1. 12. 1.7.

2       Ulpian (Dig. 26. 10. 7. 2) refers to a letter of Severus which rules ‘ut... pupillus in possessionem mittatur eius, qui suspectus sententia sua factus est...’. Perhaps this time Ulpian was thinking of men of property, who might have included honestiores. The sanctions in this case were directed against ‘qui ad alimenta pupillo praestanda copiam sui non faciat’.

3                                                                                               See pp. 27 ff.        ⁴ Apul. Apol. 2-3. 23-4.

97 capital cases involving provincials of status were probably passed on to the prefect by the Emperor, especially in the Severan period, when the Emperor reserved for himself final judgement over all such cases. It is significant that the prefect still possessed the ius deportandi under the Severans, retaining it when provincial governors lost it.¹ Deportation, or capital exile, was a penalty for defendants of rank in this period.²

Another isolated incident from the prefecture of Lollius Urbicus brings us back to Italy and further illustrates the prefect’s capacity to hear cases involving local gentry. A dispute came to Urbicus concerning eligibility for the senate of Concordia.³ The jurisdic­tion of the urban and praetorian prefects in Rome and Italy must indeed have been in some ways comparable with the jurisdiction of governors in the provinces.⁴ That governors were able to try members of the curial and equestrian orders can hardly be ques­tioned. Nor should it be assumed that the courts of the prefects, and in particular the court of the urban prefect, were exclusively for men of low status. It is essential to look beyond the prefect’s role as chief of police of Rome to his judicial activities, which were carried out under the Emperor’s supervision. He must have taken on or shared responsibility for passing sentence on prominent provincials on trial for capital crimes and on members of the hone- stiores nearer home for non-capital crimes as well. Nevertheless, the great majority of the defendants who passed through his hands were undoubtedly plebeian or servile. After all, honestiores were a small slice of the total population; and it is unlikely that he tried and sentenced senators and equestrian officials with any frequency.⁵

¹               Dig. 1. 12. 1. 3; 32. 1. 4; 48. 19. 2. 1 (iws deportandi'); cf. 1. 12. 1. 10 and 48. 19. 8. 5 (ius in metallum damnandi); cf. Dio 52. 21. The fact that the prefect was required to ask the Emperor to name a place of exile indicates that the ius deportandi was exercised under the Emperor’s supervision. See Dig. 1. 12. i. 3.

²               Seepp. n7ff.

³               Fronto, ad am. 2. 7. 12. The same case was later heard by a iuridicus, ibid. 2. 6 ff. For an earlier reference to litigation of the prefect in Italy see Statius, Silv. 1. 4. 11 ff.

⁴               On the praetorian prefect, StR ii. 968 ff., iii3ff., 1120 ff.; W. Ensslin, RE 22 (1954), 2391 ff., 2415 ff.; M. Kaser, op. cit. 365. We know little about his first-instance jurisdiction in the classical period, and not much more about his appellate jurisdiction.

⁵               Senators, from the fourth century, were tried by the urban prefect of their city (Rome or Constantinople). See CTh 2.1. 4, A.D. 364 (civil cases); 9. 40.10,

We cannot know whether high-status and low-status defendants were afforded different treatment by the prefect. Given the dual character of his court, there must have been considerable variation in his manner of handling cases. When patrons brought their freedmen to him for castigation, and masters their slaves, when acknowledged criminals or enemies of order were sent up to him, the prefect was expected to do little more than administer appro­priate sanctions. It was presumably only when he turned from the petty offences of an urban plebs to the more sophisticated crimes of the propertied that his adjudication was carried out in a truly judicial setting. The plaintiffs might still have looked to him for instant punishment of their opponents, but first they had to persuade him and his consilium., against opposition from a now coherent defence, of the justice of their case. (Sicinius Aemilianus utterly failed to convince Lollius Urbicus and his distinguished consular advisers that his uncle’s will had been forged.) A second suggestion should be no more controversial: when the prefect did proceed as a judge rather than as a policeman, he reached his verdict after considering the personae of the parties as well as the facts of the case.

a.d. 366; 9. 16. 10, a.d. 371 (criminal, examined by prefect, sentenced by Emp.); 9. 1. 13, a.d. 376; 2. 1. 12, a.d. 423 (criminal, prefect with quinque- viral court).