Provincial and Provinces: The Basis of Provincial Jurisdiction

The provinciae (provinces) which made up the Roman Empire had not begun as territorial areas of administration or government, still less as areas of jurisdiction.

In the third century BC, when Roman expansion beyond Italy began, provincia was a task assigned to a holder of imperium (the power and authority held by an elected magistrate of the city), or a pro-magistrate (holding the power without the office). This task might be administrative or juridical (thus the provincia of the praetor urbanus, first elected in 367 BC, was the hearing of legal cases in the city of Rome), but was for most magistrates the command of an army. This was normally the case for the two consuls, as the senior executives of the city, and for the increasing number of praetors who were elected through the third, second, and first centuries BC, as Roman military activity expanded into the Mediterranean world. These praetors held an imperium described as ‘lesser’ than that of the consuls. By the time of the reforms of the dictator L. Cornelius Sulla in 81 BC, the number of praetors had grown to eight, and by this stage most of the provinciae held by consuls and praetors had geographical names and had increasingly become areas with determined boundaries.

While the responsibilities of imperium-holders within their provinciae remained essentially military, they had inevitably grown through the second century BC to include other relationships between the Roman military presence and the inhabitants of the areas concerned, including taxation and jurisdiction. These responsibilities formed the origins of Roman provincial government. From the reign of the first emperor, Augustus (31 BC to AD 14), the provinces were divided between those to which the senate continued to send former magistrates as proconsuls (called the ‘provinciae of the people’) and those more military areas (which were ‘Caesar’s provinciae’) to which the emperor sent his own nominees: senior men drawn from the senatorial order but holding propraetorian imperium, who were designated as the emperor’s legates (legati Augusti pro praetore).

In some areas (most importantly Egypt) the emperor appointed non-senators as praefecti (prefects) or as procuratores, a title which derived from the civil law term for an agent. The responsibilities which had developed under the Republic devolved onto these provincial governors; and by this stage the term provincia (although retaining its formal meaning of a task given to an imperium-holder) normally meant an area of the Roman Empire, organized in terms of the structures of Roman provincial government.¹ Under the Republic a governor was able to appoint a legatus to assist him in various parts of his work, including jurisdiction, and this continued in the people’s provinces; but in Caesar’s provinces the legatus Augusti did not have this power of delegation, and in some cases, such as Hispania Tarraconensis or Britannia, the governor was assisted in the work of jurisdiction by a legatus iuridicus, appointed by the emperor.

This was also the case in Egypt, where the praefectus Aegypti was assisted by a iuridicus, an official drawn from the equestrian order.² There also developed a parallel jurisdiction undertaken by other procuratores of the emperor, who were not in charge of provinces but who were responsible for the collection of taxes in the provinces of the emperor and for the management of imperial estates. These men are recorded as conducting trials concerning public finances and with having local jurisdiction in the case of imperial properties; this power was formally established in AD 53 when the emperor Claudius secured a decree to this effect from the senate.³ Appeal against decisions in procuratorial courts was usually only to the emperor, on whose behalf the procurator was acting.

In this context, it is not surprising that the basis of jurisdiction within the provinces through the period of the Republic, and to a great extent under the empire too, depended directly on the imperium of the governor. The only statutory provision relating to the administration of the provinces was concerned with the behaviour of the governor himself, in particular the series of laws de rebus repetundis, which set up a permanent commission of investigation (quaestio) as early as 149 BC under the lex Calpurnia de rebus reptundis.

It could be convened on demand to deal with accusations of improper seizure of money by holders of imperium. By 122 BC at the latest this process was available to non-Romans in the provinces, who could accuse a governor to a specified praetor. This statute, proposed by the radical tribune of the plebs, C. Gracchus, has survived in large part on a bronze inscription which has been known since the sixteenth century.⁴ The statute provides for a holder of imperium who is charged with wrongly seizing monies to be accused by his victim (or a Roman patronus acting on his behalf) to the praetor in the charge of the court, the case being heard by a quaestio made up of 50 men, who could not be senators or relations of senators, which first determined the guilt or innocence of the accused and then (in the case of a guilty verdict) the amount due to the plaintiffs. The level of restitution was double the amount wrongly taken. The importance of this court is clear from the fact that over the next hundred years there was a continuous political struggle over the composition of the quaestio (particularly with regard to membership of senators on the jury); the scope of the wrongs which were covered by the legislation was subsequently widened and refined, especially by laws passed by Sulla in 81 BC and by Julius Caesar, when consul in 59 BC.⁵

These courts could be used against governors who had misused their juridical power to their own benefit, as can be seen in Cicero’s speeches in the trial of C. Verres in 70 BC under Sulla’s law, following his governorship of Sicily from 73 to 71 BC. In his first speech (the only one actually delivered, because Verres went into exile as a result of it) Cicero undertakes to show how Verres systematically abused his control of the courts and the legal process to enrich himself; and, of the five speeches which he was unable to give but which he published subsequently, the first two are devoted to Verres’ jurisdiction - one to his time as praetor in charge of the court of the praetor urbanus in Rome in 74 BC and the second to his time in Sicily.⁶ However, accusations could only be brought once the governor had laid down his imperium at the end of his period of office.

Before that, the governor’s decisions were not open to challenge, and no appeal could be made against his judgments, not even by Roman citizens. Moreover, it was only to Roman citizens that the Roman ius civile applied. In cases solely concerning local inhabitants, who were, in Roman terms, peregrines (peregrini: foreigners), the governor had a much freer hand in determining not only the judgment but also the basis on which it was made. In either case, the governor was in a strong position with regard to jurisdiction: Cicero wrote a lengthy letter to his brother Quintus in late 60 or early 59 BC, which was in effect a commendation of Quintus’ governorship of the province of Asia, which he had held since his praetorship in 62 BC, combined with an essay on how to govern, in which he recommended a mild and courteous approach in conducting trials; this, he says, is appreciated in the courts in Rome, where the praetor is surrounded by other magistrates, appeal courts, and the power of popular assemblies and the senate, and is to be praised still more in a governor whose nod is awaited by all the Roman citizens in the province and all the cities and communities, and who is inhibited by no appeal, no protest, no popular assembly.⁷

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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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