Imperial Jurisdiction

Since the era of Augustus, the operation of the emperor’s domestic tribunal started to resemble a public criminal court. In time, the emperor assumed jurisdiction not only over matters affecting him personally, such as conspiracies, but also over common-law crimes.

He possessed the power to withdraw at his discretion any criminal case from the ordinary judicial authorities. In the early years of the Principate, this seems to have occurred on rare occasions. Despite any endeavours of an individual princeps to avoid determining cases directly as a judge, he was inevitably drawn into this activity by the appeals against court decisions and the increasing number of citizens’ petitions for justice. Moreover, juristically inclined emperors, like Claudius, always sought to extend the imperial court’s radius of competence by introducing cases to this court and determining them in the final instance.^{^[503]} However, a long time passed before the jurisdiction of the jury-courts and the senate was superseded by the imperial cognitio, especially in cases involving capital charges.

In the exercise of his criminal jurisdiction, the princeps-emperor was not bound by the general rules governing ordinary criminal law proceedings and had complete freedom in the composition of his council of advisors (consilium). He also had a free hand in the definition of offences, the choice of penalty, the mode of punishment and the degree of its severity. As the decisions of the imperial court gradually acquired the status and force of laws, criminal law evolved from its static form to broaden in scope and complexity. However, criminal law was never the subject of scientific study to the same extent as private law. As a result, the administration of criminal justice was pervaded by an element of arbitrariness that easily rendered it an instrument of oppression.^{^[504]}

In Italy, the highest criminal jurisdiction under the emperor was assigned to the city prefect (praefectus urbi) and the praetorian prefect (praefectus praetorio).

By the late second century AD, the former had jurisdiction over all crimes committed in Rome and in a zone within a radius of 100 miles from the city^{^[505]}; offences committed outside that delineated area fell within the jurisdiction of the latter. These two high-ranking imperial officials had the unrestricted power to inflict any recognized form of punishment, capital or otherwise, on any offender. They could try any case in the first instance, but they also dealt with appeals against sentences of lower magistrates (central or local) endowed with an inferior criminal jurisdiction. In principle, a judgment of the praefectus urbi or the praefectus praetorio could be appealed against before the emperor. Of course, the latter could refuse to entertain such an appeal and deem the judgment in question as final. By the Severan period (late second century AD), the magistrate responsible for the maintenance of security in the capital (praefectus vigilum) had acquired jurisdiction in criminal matters such as arson, burglary, robbery and theft, though he probably referred particularly grave cases to the city prefect.^{^[506]} A specialized jurisdiction over offences connected with the food supply of Rome was assigned to the praefectus annonae^{^[507]} Moreover, some criminal jurisdiction was assigned by decree of the senate or imperial constitution to the consuls and praetors who tried cases extra ordinem assisted by a body of assessors (consilium).

As regards the senatorial provinces, the governor was the highest criminal (as well as civil) judge in the province. He could attend to cases either in the first instance or on appeal from lower courts. With respect to non-Roman citizens (peregrini), his power to inflict punishment was unfettered and no appeal against his sentences was allowed. However, his authority was fairly limited in cases involving Roman citizens: he was not entitled to pronounce the death sentence on citizens unless the latter were first granted the opportunity to have their case judged in Rome.

In the imperial provinces, criminal justice was administered by imperial officials acting as representatives of the emperor (legati Augusti). From as early as the first century ad, the emperors started to grant those legati who commanded troops in their province the power to execute soldiers (Roman citizens). The latter did not possess the right to present their case before a court in Rome. In the course of time, the mass of Roman citizens living in the provinces greatly increased and it was practically impossible to send all those charged with capital offences to Rome for trial. As a result, this power (ius gladii) was granted to all provincial governors and was made applicable to civilians as well. However, whether or not a governor was also entitled to execute a death sentence without first applying for and receiving special authority from the emperor to do so seems for a long period to have depended on the precise terms of the particular grant. After the constitutio Antoniniana of ad 212 extended the Roman citizenship to all the free inhabitants of the empire, all provincial governors could wield their own authority to order the death of Roman citizens. This action was averted if a condemned person successfully appealed against the sentence. Indeed, whenever a provincial governor had duly pronounced a capital or non-capital sentence on a Roman citizen it was always theoretically possible for the latter to appeal to the emperor despite the great practical difficulties that this could entail.^{^[508]} If provincial appeals were allowed, they were usually delegated by the emperor to either the praefectus urbi or the praefectus praetorio whose decision in most cases was regarded as final.

In trials before extraordinary criminal tribunals the adopted procedure differed from that engaged under the system of the quaestiones perpetuae in some important respects. As we have discerned, proceedings in the latter system were set in motion

by a private citizen (not a state organ) who assumed the role of the accuser by filing a charge against the alleged offender with the magistrate presiding over the competent jury-court.

The cognitio extraordinaria, on the other hand, had a predominantly inquisitorial character. A criminal prosecution was initiated by a state organ (such as a police official or other public official) acting on information provided by the injured party or a private informer, so no formal accusation by a citizen was necessary. The magistrate in charge of the proceedings had a more active part in the trial than the president of a jury-court. The former could resort to inquisitorial methods at any time if the supposed interests of justice so demanded. Moreover, in contrast to the system of the quaestiones perpetuae where the guilt or innocence of the accused was determined by a panel of jurors, both the verdict and the sentence were now determined by the magistrate at his discretion. As there were no fixed penalties, the magistrate was in principle free to impose any penalty he deemed appropriate by considering the nature of the offence, the particular circumstances, and the offender’s personal and social position. Over time, a body of norms developed from imperial enactments, juristic opinions and the practice of the courts. These norms more definitely fixed the scope of offences and matters relating to criminal liability and punishment. Some norms were concerned with procedural matters while others pertained to the requirements of criminal responsibility, such as conduct, intent and defences.^{^[509]}

4.4.3

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Imperial Jurisdiction

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