Hostname: page-component-77c89778f8-rkxrd Total loading time: 0 Render date: 2024-07-16T17:00:40.608Z Has data issue: false hasContentIssue false
  • English
  • Français

The Criminal Jurisdiction of Governors

Published online by Cambridge University Press:  24 September 2012

Peter Garnsey
Peter Garnsey
Affiliation:
University of California, Berkeley
Get access Rights & Permissions [Opens in a new window]

Extract

I will begin this investigation by summarising Mommsen's views on the powers of governors, as I understand them. According to Mommsen, the task of the Republican governor was to administer civil justice and to maintain the obedience of subjects and slaves. He was as little a criminal judge as the Roman praetor, whose title he originally bore. His capacity to employ coercitio against non-citizens (and citizens also, until the appeal laws and the Sempronian law were issued) was derived from his military imperium and was quite distinct from criminal jurisdiction. Criminal justice was dispensed for aliens by the local communities and for Roman citizens in the provinces by the courts in Rome.

With the Empire came two innovations (Mommsen thought). First, local autonomy was restricted. Subject cities lost to the governor their prerogative of imposing serious penalties; even Roman municipia surrendered much of their criminal jurisdiction. Secondly, military imperium, already checked by Republican laws (above), was further limited by the Augustan law on public violence. This development, implying in itself that the governor had become a fully-fledged criminal judge, ensured that capital jurisdiction over citizens was concentrated, as before, in Rome.

Type
Research Article
Information
The Journal of Roman Studies , Volume 58 , Issue 1-2 , November 1968 , pp. 51 - 59
Copyright
Copyright © Peter Garnsey 1968. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Strafrecht 229 ff.; Staatsrecht II3, 262 ff.

2 Dig. 1, 18, 6, 8.

3 Studies in Roman Government and Law (1960) 58–65; see also Pflaum, H. G., Les Procurateurs équestres sous le Haut Empire romain (1950), 117–125Google Scholar; Strachan-Davidson, J. L., Problems of the Roman Criminal Law (1912) II, 166–169Google Scholar; A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (1963), 9 ff. F. Leifer questioned some of Mommsen's assumptions, but his work has been unjustly neglected. See Die Einheit des Gewaltgedankens im römischen Staatsrecht (1914), and below, pp. 57 f. On the work of W. Kunkel, see below.

4 Contra, Millar, F., JEA 48 (1962), 124Google Scholar.

5 cf. Strafrecht 243 ff.

6 Jones, o.c. 63; Passio S. Perp. 6. The official was in fact a procurator.

7 Jones, o.c. 56 ff., 92 ff.; 60.

8 Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (Munich 1962), 29Google Scholar, n. 90; 79; 82; 85; 88, n. 328; 90, n. 331; 93–4; 136. Mommsen's doctrine of the automatic reference of citizens to Rome is never directly or systematically combated by Kunkel. On his p. 90, n. 331, suspicion is cast on it, but the discussion there relates to jurisdiction over citizen-soldiers alone. On Kunkel's views of provocatio and consilium, see JRS 56 (1966), 167 ff.Google Scholar, esp. 177–80. Cf. also Brunt, P. A., Tijdschrift voor Rechtsgeschiedenis 32 (1964), 440 ffCrossRefGoogle Scholar.

9 Dio 53, 13, 6–7.

10 Dio 53, 14, 5; cf. 52, 22: the legatus legionis lacks the power to disfranchise or execute.

11 ILS 1111, 1356, 1368, 1372, 2770, 9200 (= AÉ 1903, 368); IGR IV, 1057.

12 Jones, o.c. 61.

13 Josephus, , BJ 2, 117Google Scholar; AJ 18, 2.

14 Philostratus, , vita soph. 1, 25Google Scholar, 2 (p. 532). Pace Sherwin-White (o.c. 76) the magistrates of Smyrna were not exceeding their powers. Polemo was stating two things: first, Smyrnaeans should try their own petty disputes and not call in higher powers (cf. Plutarch, Mor. 814 F–815 A); secondly, they should send away the other cases—or rather, this was necessary, because the city-authorities lacked the power to decide them. But such cases should not arise in Smyrna at all. That is, Polemo was moralising, not giving legal information to magistrates, or advising them how to get on well with governors (or whatever).

15 Dig. 1, 16, 11.

16 Dig. 48, 19, 15.

17 I hope to argue this in detail at a later stage. Among the important texts are: Dig. 47, 21, 2; CJ 2, 11, 5 (flogging); Dig. 48, 3, 1; 3 (imprisonment); Dig. 48, 13, 8, 1; 48, 19, 9, 11; 49, 18, 3; CJ 9, 47, 3; 5 (forced labour); Dig. 48, 19, 15; 48, 22, 6, 2 (execution); 48, 19, 28, 11 (burning alive); 48, 19, 9, 11; 49, 16, 3, 10 (crucifixion); 28, 3, 6, 10; 47, 9, 12, 1; 49, 16, 3, 10; 49, 18, 1, 3 (exposure to beasts).

18 Dig. 49, 1–13, passim. Note 49, 4, 1, 14, which indicates that Julian, the Hadrianic jurist, knew of appeal after sentence.

19 Dig. 48, 22, 6, 2.

20 Eusebius, , EH 5, 1, 47Google Scholar (see p. 54, below).

21 See pp. 52 f., above.

22 Strafrecht 243, n. 5; Jones, o.c. 61. On Suet., Galba 9 and Dio 63 (64), 2, 3, see JRS 56 (1966), 175–6Google Scholar.

23 Pliny, , Ep. 10, 96Google Scholar.

24 The remitting of cases to the emperor was not a rare occurrence. For other instances, see Millar, F., JRS 56 (1966), 156Google Scholar.

25 Jones, o.c. 61.

26 The emperor wrote that some (τοὺς μέν) were to be ἀποτυμπανισθῆναι (the meaning of which is unclear), while recanters were to be released (§ 47).

27 JRS 56 (1966), 167 ff.Google Scholar, passim. Appeal after sentence: Dig. 28, 3, 6, 9; 48, 19, 2, 2; 49, 1, 6; etc.

28 Dig. 48, 19, 15; 48, 22, 6, 2 (quoted text to n.19).

29 e.g. Dig. 48, 22, 6, 1.

30 Strafrecht 245.

31 Jones, o.c. 65.

32 Mandata to proconsuls were certainly issued by A.D. 135–6. See Dig. 48, 3, 6, 1 and Millar, F., JRS 56 (1966), 158Google Scholar. They were presumably given to legates (at any rate) at a much earlier date. Dig. 29, 1, 1 pr. seems to take the practice back before Trajan. The mandata referred to in that text were not necessarily for legates alone.

33 Pliny, , Ep. 10, 56Google Scholar.

34 Dig. 48, 19, 27 pr.; cf. 48, 18, 1, 27 fin.; 48, 19, 9, 11; etc. On restitutio, see Buckland, W. W., Textbook of Roman Law (ed. 2, 1963), 719 ff.Google Scholar

35 Dig. 48, 19, 15; 48, 22, 6, 1. For further indications that proconsuls were losing power, see e.g. Dig. 1, 16, 6, 1; 48, 19, 6 pr.; 48, 22, 7, 10; 50, 10, 6.

36 JRS 56 (1966), 174 ffGoogle Scholar.

37 2 Verr. 1, 71 ff.

38 ibid. 2, 68 ff.

39 ibid. 2, 83 ff.

40 ad Q.fr. 1, 2, 5: ‘quern adductum in iudicium.’ Parricides were tied up in a sack with a dog, a cock, a snake and an ape, and then cast into the sea.

41 V. Ehrenberg and A. H. M. Jones, Documents nr. 311, iv (7–6 B.C.). F. de Visscher, Les Édits d'Auguste découverts à Cyrène (1940), 20, 118 ff.

42 ad Q.fr. 1, 2, 6.

43 Pace Strachan-Davidson, o.c. 123–4. Further, the fact that Quintus had already treated the father of Catienus harshly, in some way unspecified, suggests that he was not all bombast.

44 2 Verr., 5, 162 ff.

45 ibid. 5, 168.

46 Riccobono, , Fontes 2 I, nr. 55, p. 308Google Scholar. See de Visscher, F., Ant. Class. 13 (1944), 11CrossRefGoogle Scholar; 14 (1945). 29; G. I. Luzzatto, Epigrafia giuridica greca e romana (1942), 285.

47 2 Verr. 3, 135 ff.

48 Acts 25 and 26. See JRS 56 (1966), 182 ffGoogle Scholar.

49 ad fam. 13, 26.

50 It is strange that Seleucos' legal rights were spelled out in the way that they were if they formed an integral part of the Roman citizenship. See Luzzatto, o.c. 310–11.

51 F. Leifer, o.c. (n.5, above).

52 Strafrecht 244.

53 Dig. 1, 21, 1 pr.–1.

54 Dig. 2, 1, 3.

55 Dig. 1, 16, 6 pr. cf. 50, 17, 70.

56 Leifer, o.c. ch.2, 68–143, espec. 89 ff.

57 ibid., e.g. 117.

58 See n. 35, above. With respect to the jurisdiction of municipal magistrates, we are fortunate in having the lex Rubria of the first century B.C. as well as statements of Severan jurists, e.g. Dig. 50, 1, 26 (Paulus). The latter text clashes with Dig. 2, 1, 2 (Iavolenus). The discrepancy is resolved if we realise that the imperium/iurisdictio distinction was in Paulus' mind but not Iavolenus'—the latter nourished in Trajan's reign. Taken together, the three passages are good evidence for the decline of the municipal magistrates' powers (even though Iavolenus may not have had municipal magistrates specifically in mind). On the lex Rubria, see Leifer, o.c. 63–4.

59 We may compare the legal fiction invented by the classical jurists that the emperor's power to issue edicts and constitutions derived from the law which conferred his imperium. See Gaius, , Inst. I, 5Google Scholar; Dig. I, 4, 1 pr. (Ulpian).