Limits to the Governor’s Jurisdiction

Given the essentially military and unlimited nature of the imperium of the magistrate and pro-magistrate while in his province, the nature of provincial jurisdiction is best seen in the constraints which delimited it.

It used to be believed that each province had a statute of its own, known as the lex provinciae, which laid down the basic patterns by which the governor had to abide. It is now generally agreed that, although such leges provinciae existed for some provinces, they were usually decrees issued by individual commanders and subsequently ratified by the senate, and certainly were not laws passed by the Roman popular assemblies.⁸ In the Republican period, Cicero mentions a law which the Sicilians called the lex Rupilia.⁹ The younger Pliny, in his correspondence with the emperor Trajan in the early second century AD, refers to a lex Pompeia ‘given to the Bithynians’, presumably by Pompey in the late 60s BC, which regulated the age at which magistracies in the cities of the province of Bithynia could be taken up.¹⁰ A passing reference in a letter of Cicero’s mentions a law for Cyprus, given by P. Lentulus Spinther, who was the first governor there from 57 to 53 BC.11 A lex Cornelia which appears on an inscription from the Augustan period, and that regulated the date on which priesthoods were to be taken up in the province of Asia, may be part of a more general set of regulations given by Sulla. 12 However, most provinces do not seem to have had such ‘laws’, and, so far as juridical matters are concerned, even these seem to have been limited in scope. The lex Rupilia in Sicily is perhaps the best known because of Cicero’s references to it in his prosecution of Verres in 70 BC. It specified the circumstances in which a governor could hear cases brought to him by non-Roman inhabitants, and in particular the nationality (whether Roman or local Sicilian) of the iudices whom he could appoint to make decisions.¹³ It was the work of the consul P.

Rupilius, who in 132 BC was responsible for putting down a slave revolt in Sicily. By that date there had been praetors governing the province for nearly a century, and although Cicero several times mentions a lex Hieronica - named for the ruler of Syracuse in the third century BC, and which regulated the collection of tithes on grain — there is no indication of any more general law on the judicial powers of the governor before the last third of the second century. It is clear that a lex provinciae was not an essential part of the structure of a province under the Republic, and there is no indication that, even where they existed, they covered the whole of the juridical work of the governor.

The main external factors which constrained the jurisdiction of a governor were related to the statuses held by the various communities within the boundaries of his province. These consisted of three groups: those constituted by the senate and people of Rome as coloniae or municipia; those peregrine communities which had been given privileges which established them as free (civitates liberae), some of which had these privileges granted by a formal treaty (a foedus; hence their name, civitates foederatae); and those which had no special status (civitates peregrinae), which are sometimes referred to as civitates stipendiariae because they were liable to pay a regular contribution to the Romans (stipendium). The substantive law in these communities was different in each case, as was the locus standi of the governor. Of the first group, those which consisted of Roman citizens (coloniae civium Romanorum, which were usually settlements of Roman veteran soldiers, often based on pre-existing towns; and municipia avium Romanorum, which were already existing communities, granted municipal status) had access to the Roman civil law, while those of Latin status (coloniae Latinae and municipia Latina) had laws set out in their own charters. By the end of the face=Arial>first century AD, at least in the case of the Latin municipia of southern Spain, these charters prescribed that the substantive law to be used was to be based by default on the civil law as used in the civil courts in Rome.¹⁴ The peregrine communities of the other two categories would each have their own legal systems, but differed in that free communities and those with a treaty had a guarantee that they were not to be interfered with by the governor (in the case of the civitates foederatae, secured by formal treaty); the others had no such guarantee, and consequently the extent of Roman intervention depended entirely on the attitude of the governor.

The provincial governor was also constrained by the edict that he himself had issued before leaving Rome to go to his province.

It set out the matters on which he was prepared to hear cases and the principles on which he would make his judgments, in the same fashion as did the praetor urbanus and the praetor peregrinus in Rome (though it is not clear whether he was bound by the lex Cornelia of 67 BC, which required the city praetors to abide by their own edicts). The best evidence for a provincial edict under the Republic comes from a famous letter of Cicero to his friend Atticus, written while he was governor in Cilicia in 51 BC.1⁵ Cicero explains that the specifically provincial parts of his edicts covered administrative topics (including municipal finances, debts, interest, bonds, and relations with the publicani, who were representatives of private companies which had won the contracts to collect taxes), and matters concerned with property and inheritance, which it was convenient to collect together in the governor’s edict. For the rest, he kept his edict short by stating that he would follow the edicts of the city praetors. He is writing here about the content rather than the structure of his edict. 1⁶ He also mentions that he took several provisions from the edict of the famous lawyer, Q. Mucius Scaevola (governor of the province of Asia [western Asia Minor] in the 90s BC), including one which stated that cases between Greeks should be tried under their own laws. Scaevola’s governorship is said to have been so admirable that the senate decreed that his edict should be used as a norm for subsequent governors of that province. 1⁷ It appears, however, that Cicero, like other governors, constructed his edict as he himself saw fit, rather than using a standard form taken over from previous governors. In Cicero’s case that led to an acrimonious correspondence with his predecessor. In this respect, as in others, the governor had more freedom than the praetors in Rome.

In the imperial period, the provincial edict appears to have become more standardized, as might be expected when so many provinces were under the control of legates of the emperor. When in AD 131 (in the reign of the emperor Hadrian), Salvius Julianus fixed the content and structure of the edict of the praetor urbanus, he did the same for the provincial edict; and when some twenty years later Gaius wrote a commentary on the provincial edict in 30 books, it is clear that the edict was in many respects identical to that of the city praetor. Additional material relating to circumstances in particular provinces is likely to have been added as an appendix.

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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Limits to the Governor’s Jurisdiction

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