Curbs on rapacity: jurisdiction

Most of the rules regulating the repetundae process in the Principate were drawn, either directly or by interpretation, from Caesar’s lex Julia repetundarum of 59 BC.¹ That law was defined by the classical jurists as covering any improper receipt or acquisition of money by anyone occupying an official position or by any associate of such a person.²

It was, however, not only the law that the Principate inherited from the Republic.

In 4 BC the emperor Augustus took steps to rectify some of the problems, to put a more positive spin on humanitas Romana vis-à- vis non-Romans. He wanted to reinforce the welfare of the allies of the Roman people (= provincials), to ensure that â€?none of our subjects’ suffered any improper treatment or exactions.³ He therefore arranged for the senate to enact the senatus consultum Calvisianum.⁴

The primary purpose of the senatus consultum was to speed up the assessment part of a case.⁵ Provision was made for the selection of five senators to act as assessors. The selection process was triggered by provincials lodging claims with a magistrate⁶ for repayment of moneys that had been exacted.

One difficulty is raised by the new arrangements. What happened when all the witnesses were outside Italy? If we suppose that they were expected to attend voluntarily, we run up against the reasons for the reform as given in the preamble to the senate’s decree:

Although our ancestors passed repetundae laws, the senate wishes to make it easier for allies to prosecute wrongs done to them and to recover moneys exacted, since cases of this kind can be very expensive and troublesome, requiring witnesses, including the poor, the sick and the aged, to be dragged from distant places.

(FIRA 1.410-11, vv. 94-5)

Our first thought is that the limit on the number of subpoenas only applied to witnesses who were in Italy. But this negates the fine humanitarian sentiments expressed by the preamble, for it leaves the poor, sick and aged in distant places without the very relief that they were meant to receive. There is nothing to suggest that the five-man panel went out to the provinces to take evidence. The best guess seems to be that written depositions were taken by the governor’s staff and forwarded to the panel in Rome, reserving the more satisfactory procedure of viva voce evidence for witnesses in Italy who could come to court more easily.

The five-man panel carried out both phases of a repetundae trial, namely the finding on the merits and the assessment. But this was only where there was no question of a capital penalty for saevitia. At some point of time the senate began exercising jurisdiction on the capital aspect as well, but whether this was authorised by the Calvisianum or came about in some other way is a moot point.¹¹ The most that can be said is that from an early date the senate exercised all the functions that had hitherto been the exclusive preserve of the jury-court for repetundae. But contrary to a widespread belief, the jury-court was not supplanted by the senate.¹² It continued to operate at least until the early second century. The proof is supplied by Pliny. He speaks of â€?the praetor Nepos who holds court under the laws’ (qui legibus quaerit). Nepos had given notice of his intention to enforce the ban on the acceptance of fees by counsel. Advocacy was a munus, an official position for the purposes of the repetundae law, and Mommsen identified Nepos as president of the jury-court for that crime. An alternative possibility is that by this time a number of courts had been amalgamated under a single praetor. Either way Pliny’s evidence confirms the survival of the jury-court into Trajan’s reign.¹³

There was accordingly a twofold repetundae jurisdiction in the first and early second centuries. But it was not, strictly speaking, a concurrence of jurisdictions. It was more of a divided function. The jury-court was confined to offenders of sub-senatorial status.¹⁴ There were more than enough sub-senatorial pleaders whose acceptance of fees could have exposed them to Nepos’ edict.¹⁵ Offenders of senatorial status had their cases handled by the senate.¹⁶

This is as far as we need take the jurisdictional basis of repetundae trials in the Principate. We therefore move on to the cases and the principles to be extracted from them.