name=bookmark1757>Jurisdiction in the Empire

Originally the Mediterranean city-states had their own jurisdictions; their incorporation into the empire did not change this as such, except for criminal and administrative law where the Roman authorities, in the form of the provincial governor, exercised jurisdiction.

If the town was not a Roman one, the governor would also handle civil cases between Romans; after the constitutio Antoniniana of AD 212, which granted Roman citizenship to almost all non-Romans, this applied to everybody. But it did not have to end there. The function of emperor also included a judicial aspect, namely that of judge. He might, like any other respectable citizen, act as a judge in private matters, but in addition we see that Tiberius admonished judges, while Claudius liked to sit as a judge himself.¹¹ Later on appeals were also lodged with the emperor. The appeal as an institution most likely developed from the fact that one could appeal from an agent or delegate to his principal. In the first century AD procuratores fisci were introduced, representing the emperor, and in general the emperors appointed the governors as their representatives. Thus, it will have been natural to appeal from them to their principal, the emperor. Further, in criminal law there existed the provocatio ad populum in capital cases: if a magistrate had condemned a citizen to death, the condemned could appeal to the plebs or populus. Since the emperor exercised the tribunicia potestas, it is easy to understand how this became provocatio ad principem. The result of all of this was that in the second century the emperor was the supreme and ultimate judge in almost all legal cases. This was primarily exercised by him in person, in his council (consilium).^I2 The exceptions were small cases at the local level, and cases of extortion and treason, in which the senate acted as a separate court. The procedure followed on appeal was that of extraordinary cognitio.

In other words, the formulary procedure did not apply.¹³ The cognitio was rather formless and characterized by the fact that the entire procedure (examination of the plea, acceptance, examination of the case, and judgment) took place before one and the same magistrate; by contrast, the two stages of the formulary procedure were divided between magistrate and judge. Cognitio was used for private, criminal, and administrative processes alike, which were distinguished only by special rules and the substantive law applicable. Military commanders judged military cases at first instance. In criminal and civil cases one could appeal the judgment from a local council or court or magistrate to the provincial governor; similarly in military cases. From him one could appeal again to the emperor or to his representative. If the latter had been given delegated power to judge (vice sacra iudicans), no final appeal to the emperor was possible (as with the comes sacrarum largitionum: see Section 9). Citizens could also file a petition. Both litigants in a case and officials could submit a petition to the emperor for advice on interpretation and would receive an answer (rescriptum) which again, if of general purport, would be valid in other cases. Private collections were made (such as the Apokrimata, during Septimius Severus’ visit to Egypt in 200). 1⁴ The Gregorian and Hermogenian Codes were collections of rescripts most likely made from imperial records which gained universal acceptance.¹⁵ A work of the fourth century, the Fragmenta Vaticana, combines extracts from legal authors with rescripts and other constitutions, arranged under headings according to subject matter. 1

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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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