The Court System

In the bureaucratic state of the late Empire, imperial officials exercised practically all traditional powers and functions relating to the administration of justice.

At the lowest level of jurisdiction were the municipal courts (curiales), which possessed an extremely small sphere of competence. In the field of criminal law their powers were restricted to punishing minor offences and, in the case of other offences, to conducting the preliminaries of the trial that would normally proceed before the provincial governor.^[545] In both criminal and civil cases, the provincial governors functioned as the regular (i.e. normally competent) judges of the first instance (iudices ordinarii) and, in addition, dealt with appeals against sentences passed by municipal courts.^[546] According to the circumstances, appeals against the governor’s decisions were managed by the praefectus praetorio of the prefecture or by the vicarius of the diocese that encompassed the province in question.^[547] A further appeal from a vicarius to the emperor was feasible, but a judgment passed by a praefectus praetorio could not be contested on appeal as the latter was deemed the personal representative of the emperor.^{size=2 color=black face="Times New Roman">[548]} Under exceptional circumstances, the praefecti praetorio and the vicarii could hear cases as judges in the first instance such as when a litigant suspected that a powerful adversary would intimidate the provincial governor.

The system of courts outlined above dealt with the ordinary array of cases, whether of a criminal or civil nature. In addition to the ordinary courts, there existed many special courts that addressed particular types of cases (usually administrative) or cases involving individuals from a particular group or class. Most of these courts had their roots in the established principle that a magistrate had administrative jurisdiction over matters connected with his departmental tasks and a disciplinary jurisdiction over his subordinates. In the fourth century AD, the sphere of compe­tence of the special courts tended to expand at the expense of the regular courts and this provoked frequent clashes of jurisdiction. The category of special courts encompassed, for example, the court of the rationalis (the official who represented the public treasury in a diocese) that handled disputes relating to taxation and other fiscal matters.^[549] Furthermore, the praefectus urbi dealt with cases involving violations of public order and breaches of building regulations. Illustrations of special jurisdictions that applied to certain categories or classes of persons included the disciplinary jurisdictions of military commanders and heads of government departments over soldiers and members of the bureaucracy respectively.^[550] Mem­bers of the senatorial order fell within the exclusive jurisdiction of the praefectus urbi if they domiciled at Rome or Constantinople, or within the jurisdiction of their provincial governor.^[551] In such cases, the decisions of provincial governors were subject to review by the emperor or the urban or praetorian prefects.

4.5.2