Roman Law in Practice:The Governor, The Conventus, and Local Courts
As the source of Roman jurisdiction, the governor, both in the later Republican period and under the empire (whether as a proconsul in the people’s provinciae or as legatus Augusti in Caesar’s), presided at courts within his province.
Cicero’s correspondence while he was proconsul in Cilicia in 51-50 BC shows that jurisdiction took up much of his attention; even Julius Caesar, in the midst of his military campaigns against the Gauls through the 50s BC, crossed the Alps at the end of each season to hear cases in Illyricum and Cisalpine Gaul.18 Strabo, writing about the province ofHispania Tarraconensis at the end of Augustus’ reign, states that the legatus Augusti spent the whole of the winter on such cases.19 Already in the Republican period, at least in more settled areas, a pattern had emerged of governors travelling to various parts of the province for the purpose of hearing cases, a process which, as appears from Cicero’s experience, was arranged by the governor himself. At least by the end of the first century AD, this had become formalized into an assize system, with annual visits to a number of designated centres, and in the eastern parts of the empire there was considerable competition among cities for this designation.20 Even so, the conduct of these assizes was very much in the hands of the governor: the day on which a particular case was to be heard might not be set until after the assize had begun, and although Ulpian recommended that proconsuls should pay attention to the order in which petitioners’ cases were heard in order to avoid problems of bias or corruption, this in itself indicated the freedom of the governor in the conduct of the hearings.21 The importance of the assizes was that it was only through the governor (or his or the emperor’s legatus iuridicus) that access could be gained to a Roman court, although in Egypt, where a more complex system was in place, there existed lower courts at a more local level, from which cases could be passed to the assize of the prefect of Egypt.22 Under the Republic there was no appeal from the governor’s court, but under the emperors there was always the possibility of an appeal to Caesar, whether from a legatus Augusti or from a proconsul. Suetonius, in his biography of Augustus, states that the emperor delegated appeals from litigants from Rome to the praetor and appointed a number of former consuls, one for each province, to hear those from provincials.23 In any case, it was to the emperor that appeals were made, even when the governor was not involved: in 6 BC the free city of Cnidos sent an embassy to Augustus to present an accusation concerning the alleged murder of one of its citizens by another and his wife. Since the accused man was dead and his widow was resident in Rome, in response the emperor appointed one of his ‘friendssize=2 face=Arial>’ (amici), Asinius Gallus, to investigate the matter. When Gallus concluded that the accused had suffered harassment from the dead man and were innocent of his murder, Augustus ordered that this verdict should be entered in the public records of the city of Cnidos.24 This was not an appeal as such, as there was no prior judgment by a Roman official, but it illustrates the way in which even from the beginning of the imperial period the emperor acted in a judicial capacity when cases were referred to him from those in the provinces.In practice, in civil cases which involved the members of one community, governors seem to have left much jurisdiction in the hands of that community, although they could intervene at any time. Cicero, writing from his province to his friend Atticus in 50 BC, reported with a certain smug self-satisfaction that he had allowed the Greek cities the autonomy which enabled them to use their own laws and law-courts.25 In cases where such intervention took place, it seems to have been structured in terms of the processes of Roman law, even when the substantive law was not Roman. An interesting early example of this may be found in the Tabula Contrebiensis, inscribed on a bronze tablet dated to 87 BC, which records the case of a water dispute between two peregrine communities in the Ebro valley in northern Spain, the Salluienses and the Allavonenses, about the purchase of land by the former despite the objections of the latter, from a third group, the Sosinestani.
The case is embodied on the inscription in a formula such as would be issued by a praetor in Rome, which was given by the governor in the province and which appoints the senate of a fourth local community, Contrebia Belaisca, to act as judges. The formula is of considerable legal sophistication - the governor concerned, C. Valerius Flaccus, had been praetor urbanus in 96 BC - and includes a fictio which assumes the existence of the Sosinestani as a civitas, a community capable of taking legal decisions. It is by no means clear that the Contrebian judges understood the significance of all these sophistications, since the formula presented two separate issues to be decided, but the judgment is presented simply in the form of agreement with the arguments of the Salluienses. They can be expected, however, to have understood the legal basis of the case since it is to be judged according to local law as it applied to the Salluvienses (iure suo), rather than according to Roman law (iure Quiritium), as would have been the case if the dispute had been between Roman citizens.26 Valerius Flaccus is using the process of the Roman courts to apply the local law of the area in a dispute between peregrine communities.Similar blendings of Roman and local law are frequent in evidence from Egypt in the imperial period, notably from the recently discovered dossier of a Nabataean Jewish woman named Babatha in the province of Arabia, which was found near the Dead Sea and had been deposited in the first half of the second century AD. Babatha was involved in a dispute with the guardians of her son, Jesus, after the death of the boy’s father. The documents include three copies of an outline of a formula, two in the same hand, which were presumably intended to be used by Babatha in presenting her case to the provincial governor.27 Although there is no way of knowing whether the governor used this formula, and indeed it is not at all clear that it was directly relevant to the case, it is interesting to see its inclusion in Babatha’s papers: although none of the individuals involved in the matter was a Roman citizen, she apparently believed (or was advised) that this part of the Roman process might be relevant to her case.
The expectation was that the Roman official would act as Valerius Flaccus had done in Spain, using the structures of the Roman civil law as the basis for a judgment in a non-Roman, peregrine context.The clearest picture of the way in which law was administered in a province of the Roman Empire in the early imperial period comes from the charters issued to towns in southern Spain under the Flavian emperors. These resulted from the grant to many Spanish communities of the Latin right (ius Latii) by the emperor Vespasian, probably in AD 73-74.28 They follow a standard form and seem to be based on a uniform model, lightly adapted for the individual communities to which they were granted. The most complete, discovered in 1981, relates to the hitherto unknown town of Irni, or, as it now became, the municipium Flavium Irnitanum. This small settlement, some 30 km south of Osuna in Andalucia, received its charter in the reign of Domitian in or shortly after AD 91.29 The document, originally on ten bronze tablets each approximately 57 cm by 90 cm, presents details on the ordering of the life of the municipium, its council of 63 decuriones and its magistrates, of whom the most important were 2 duoviri. A long section just before the end (chapters 84 to 93) provides for the jurisdiction that may be undertaken by the officials of the municipium.
The scope of the jurisdiction of the municipal magistrates was limited to those cases which did not concern a sum of more than 1,000 sesterces and which did not involve violence, the loss of freedom, or a breach of faith to someone to whom a special duty of trust was demanded under Roman law, such as a ward or a person to whom an explicit promise had been made.30 Such cases were to be referred to the provincial governor unless both parties to the dispute agreed that they might be heard locally. In any case, the conduct of cases took place in the context of the overall juridical oversight of the governor.
The edict which the governor issued on his entry into his province covered legal matters, including information about which cases could be heard and how proceedings should be handled. It was to be posted, written on a whitened board, at a place in the municipium from which it could be read with ease.31 However, within that general context, the duoviri (and to a lesser extent, the aediles) had a considerable amount of juridical work to do. Each year the duoviri had to select the people who were to act as judges (iudices) in private law cases, and to preside over the selection and assignment of a judge when cases arose; they had comparable responsibilities for those cases which were to be dealt with by the alternative process of reference to a group of recuperatores.32 Similarly, the grant of an adjournment in a case was within their competence.33 In all these matters, however, in addition to observance of the governor’s edict, there was another general requirement of which those responsible for jurisdiction had to take account. In these clauses of the statute, the local magistrates were enjoined to do everything just as it would be done in a similar case tried in Rome - that is to say, in the court of the urban praetor, who had jurisdiction between Roman citizens in private law cases. Most remarkable of all, the section on local jurisdiction ends with a catch-all clause, which states that for all matters about which members of the municipium shall go to law with one another and which are not specifically dealt with in the provisions of the statute, they should proceed as though the process was being carried on under Roman law and between Roman citizens.34 What the local magistrates are doing is applying the provisions of Roman private law to the members of the municipium, the majority of whom are not Roman citizens at all, but Latins - that is to say, peregrini. The form of the ius Latii which Vespasian had given to the Spanish towns provided for the grant of Roman citizenship to those who had held the senior magistracies in the municipium, but this did not apply to the population as a whole.4.