Roman Public LifeGreenidge, A. H. J. (Abel Hendy Jones)
History
Roman Public Life
Greenidge, A. H. J. (Abel Hendy Jones)
Constitutional history -- Rome; Rome -- Politics and government
The civil courts of appeal existing under the Principate are partly
due to a survival of the Republican principle of _appellatio_ to a
magistrate with the right of veto, partly to the principle (new for
Rome, though not for the provinces) of delegated jurisdiction, and
partly to a wholly novel principle of an appeal which can completely
reverse the decisions of a lower court, which has its origin mainly in
an attempt at centralising the higher provincial jurisdiction in Rome.
From the decision of a _judex_ in the _judicia ordinaria_ there is now,
as formerly, no appeal to any authority, although, as we shall see, the
sentences of _judices_ might, under certain conditions, be reversed by
the authority either of the praetor or the Princeps. From the decision
of the praetor _in jure_ an appeal lies as before to an equal or higher
authority,[1823] and the veto in virtue of the _major potestas_ or
_majus imperium_ is naturally possessed by the Princeps. When we find
Tiberius present in the praetor’s court, he may be there for the purpose
of over-ruling that magistrate’s decisions.[1824] His presence seems to
show that the limitations of the old _auxilium_—which must be offered in
person[1825]—were preserved. Whether the veto was pronounced in virtue
of the _imperium_ or in virtue of the _tribunicia potestas_ is a matter
of indifference; how the veto operated is the really important point. On
the analogy of the Republican intercession its effects should have been
purely cassatory, and perhaps in the early Principate this principle
was observed. But it must be remembered that the Princeps is in a very
different position to the vetoing consul or tribune of the Republic,
or even to the Republican praetor who presides over a department other
than that which he controls by his veto. These magistrates can negative
a decision of a lower court, but they cannot replace this negatived
decision by a positive judgment of their own. The Princeps, on the other
hand, has a theoretically unlimited power of civil jurisdiction.[1826] He
can, therefore, supplement his negative by a positive judgment, and this
unique combination of the power of vetoing and the power of judging is
almost unquestionably the basis of that appeal to Caesar which leads to
the reformation of a sentence. It is not improbable that the appeal came
to operate in this way even against the praetor, although, even if it
did not, the effect of Caesar’s veto would really be reformatory. Even
the tribunes of the Republic could put pressure on a praetor to induce
him to alter his formula,[1827] and we can hardly imagine the praetor
withstanding the suggestion accompanying a veto pronounced by the holder
of the _tribunicia potestas_. The jurisdiction of the municipal towns
of Italy was, so far as it was “ordinary” jurisdiction, still under the
control of consuls, praetors, and tribunes, at least as late as the reign
of Nero.[1828] These municipal courts were technically those of the
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account