Judicial Intervention
Aside from the praetor's military duties in a provincia , which officially consisted not only in pursuing the interests of the Republic but also in maintaining the territorial integrity and security of the friends and allies of the Roman people,[2] provincial "administration" consisted above all in jurisdiction. In Asia in the 50s, for example, the absence of any military component of the job meant that the praetor's chief administrative task was jurisdiction.[3] Jurisdiction, therefore, will be the chief object of our attention in this chapter, by reason of both its prominence among a proconsul's duties and, to be sure, its relative prominence in our scattered evidence.
A Roman commander had comprehensive judicial powers that flowed out of his imperium: imperium gave coercitio , that is, the power to initiate and execute judicial proceedings of both a criminal and a civil nature.[4] A passage from the Greek copy of a Roman law recently discovered at Cnidos both confirms this doctrine and, for the first time in our evidence, specifies these powers: a commander who has resigned or been relieved of his duty has the power to initiate judicial proceedings of all types; to judge, give sentence, and punish; to refer the case to external judges, including foreigners; to authorize the seizure of property for compensation (apparently); and to manumit slaves, just as he had while holding his magistracy, until he reaches the city of Rome.[5] Arrival at the city of Rome terminates these powers precisely because only there does the commander lose his imperium . It is obvious, then, but must nevertheless be stressed, that a praetor's judicial powers, inasmuch as they were founded on his imperium , did not depend on positive legal acts, such as the leges provinciae , that are regularly postulated. Put simply, no formal rules were required to establish a provincial commander's judicial authority in his provincia .
Whether a provincial commander enjoyed full criminal jurisdiction over Roman citizens is a controversial matter, but the balance of evidence seems to indicate that he did, although he was in practice limited here by customary respect for the person of Roman citizens and the pressures of expediency.[6] The provincial commander had equally sweeping powers, as imperator , over foreign peoples, although here he had to take into account
any privileges or guarantees recognized by the Roman Senate and People.[7] Thus, as we have seen, when Q. Fabius Maximus Servilianus put to death two men he had found guilty of firing the archives of the city of Dyme in Achaea in 144, this in no way suggests that this part of the Peloponnese had been reduced to the status of a "province," or that the proconsuls of Macedonia exercised some formal Spruchrecht over it, any more than do the executions ordered by L. Aemilius Paulus after the war with Perseus in 167 or M. Fulvius Nobilior's hunt for the murderers of some Delphian ambassadors in 189/188.[8]
On the other hand, an illuminating example of how vigorously a "free" city might defend its judicial autonomy has now come to light in the recently published inscriptions from Claros in honor of Polemaeus and Menippus of Colophon, dating not much after 120. Menippus especially had exerted himself on behalf of his city's judicial autonomy: when the proconsuls of Asia had begun to usurp judicial authority over citizens of Colophon and in particular forced a Colophonian accused before them to give bail to them, Menippus had undertaken an embassy to Rome (his fourth) and obtained from the Senate a decree that freed the inhabitants of the city from the requirement to give bail to the proconsuls, indeed exempting them from their power altogether, inasmuch as the provincia was now distinguished from the autonomous area.[9] Later a Colophonian was accused of murdering a Roman and summoned by order of the consuls to a trial in Rome; Menippus took a fifth trip to Rome and secured the quashing of the prospective trial on the grounds that the Senate had decreed that Colophonian plaintiffs and defendants were entitled to a trial at home even in cases involving Romans.[10] The decree honoring Menippus
celebrates this success as an act by which he "maintained the force of the laws regarding every kind of charge even in cases involving the Romans themselves";[11] that is, Menippus did not even allow a charge of murdering a Roman—very likely in Colophonian territory itself, for the city itself was under suspicion, as the text tells us[12] —to lead to the diminution of Colophon's judicial autonomy. Another great man of the city, Polemaeus, was able to prevail upon a proconsul to set aside his conviction of a Colophonian on an unknown charge before his own tribunal in contravention of the rule that Colophonians be tried in their own city; Polemaeus, like Menippus, is said thus to have "preserved the integrity of the laws."[13] On another, rather obscure occasion Menippus managed to obtain from the Senate an explicit statement that the proconsul had no fights, judicial or otherwise, outside the province (i.e., in Colophon)—"a fine response most befitting the democracy."[14]
This precious evidence conveys very dearly the ideological framework of the struggle now to be carried on by "free" poleis for the integrity of their laws against proconsular intervention and meddling. But the very recurrence of such instances shows that this objective required constant vigilance and repeated efforts. The judicial autonomy of a "free" city was not something simply granted but continually won and rewon; the actual fights of a city would be defined by its success in this struggle. We can justifiably assume that not all "free" cities enjoyed the success of Colophon.[15] Much depended on the availability, wealth, and rhetorical capacity of local great men like Menippus and Polemaeus, who were able to prove themselves worthy of the friendship of Roman senators and, by establishing relations of patronage between leading Romans and their city, trans-
ferred to their fellow citizens the profit derived from this friendship.[16] Cicero happens to mention in the context of Verres' alleged depredations in Asia Minor an incident that took place at Ephesus, a "free" city before the Mithridatic wars, probably in the 90s, which provides a contrary example of a less successful outcome. A Roman quaestor, M. Aurelius Scaurus, was forcibly barred from entering the shrine of Artemis to recover a slave who had sought sanctuary there; a leading citizen of Ephesus, one Pericles, was regarded as responsible for this insulting treatment and summoned to Rome, apparently by means of a letter from the consuls.[17] We do not hear of a Menippus coming to Pericles' rescue in this case, and it would have been embarrassing for Cicero, here concerned to contrast Verres' actions with the appropriate procedure that he should have followed, to bring up a case that gave no satisfaction to the accuser. On the other hand, to judge from the evidence of the Claros inscriptions the Roman Senate tended to be rather an ally than an adversary in this struggle (as also in the friction with the publicani , to be considered later): the corporate body, far removed from the province itself, was not so subject to the pressures or temptations offered by friends and other interested parties as was the lonely proconsul on the spot.
A praetor faced no such limits on his powers when dealing with unprivileged communities, civitates stipendiariae . But we must not deduce the constant or pervasive use of a wide-ranging legal power from its mere existence, any more than the social historian assumes that the notorious patria potestas implies that Roman fathers regularly put their children
to death. In actual practice, then, to what extent were the judicial powers of Roman commanders actually exercised over provincials and local authorities?
It has long been recognized that under normal circumstances local judiciaries maintained their autonomy; even had he wished to, the proconsul, before whom personally judicial business came as a rule, simply had a limited capacity to meddle, and for the most part he had neither the time nor the inclination to usurp functions of local government that were performed quite satisfactorily by the cities themselves.[18] This is, admittedly, an a priori argument, although a strong one, and it has been held that it is contradicted by one important piece of evidence that dates to Cicero's proconsulship in Cilicia but may have relevance to Roman Asia Minor before the Mithridatic wars. Cicero writes to Atticus from Cilicia that he has taken over and included in his provincial edict a provision of the edict of Q. Mucius Scaevola Pontifex, commander in Asia ca. 98-97, that suits between Greeks should be held according to their own laws, that is, without reference to the proconsular tribunal.[19] If this was an innovation in practice by Scaevola rather than simply in the provincial edict of Asia, the implication would seem to be that before Scaevola the proconsuls in Asia Minor had actually usurped all functions of jurisdiction in their provinces except those of the "free cities," or, alternatively, that all local jurisdiction was "precarious," wholly dependent on its protection in the governor's edict.[20] In Cilicia in 51-50 the ruling was regarded by the delighted dries as tantamount to autonomy;[21] how far this was true for Scaevola's Asia is unclear. But, rather than leaping to the conclusion that before Scaevola pro-
consuls of Asia had been buried under all the judicial business of their province—and that it was now swept away with a mere stroke of the pen—we should regard this clause of Scaevola's edict as a guarantee only: namely, that the praetor would not intervene in cases that did not involve Romans. This hypothesis brings with it the inference that former commanders had indeed been known to do just this on occasion at least. If so, it would not be difficult to excogitate likely scenarios that would lead to this result. Bribery or friendship might induce a praetor to offer his own court as a refuge for those who doubted the outcome of a local trial or indeed despaired of the endemic delays. Evidence from the period of the Mithridatic wars (78) shows that noncitizen friends of Rome might well find it in their interest to resort to the praetor's court;[22] there is no reason to suppose that this possibility had never been raised or exploited before. Certainly the eagerness of those Greeks who could boast of long friendship with Rome to seek advantage by taking their disputes before Roman authorities for mediation or arbitration was not a recent phenomenon.[23] A proconsul might feel particularly well justified in considering such a case when the plaintiff and defendant were from different cities, which, in the absence of a federal league or a judicial compact between the cities concerned, might have no other fixed framework for resolution: the lex Rupilia in Sicily gave the praetor the power to appoint judges for such cases, while if both parties belonged to one city, jurisdiction remained local (Cic. Verr . 2.2.32).
In this context we might speculate for a moment, although it may be of only marginal relevance for our period, upon the puzzling question of what Cicero's use of this clause had to do with the use of "foreign judges" (peregrini iudices ), which he presents as the result greeted most enthusiastically by the Greeks in his province.[24] Whether these "foreign judges" are judges summoned from abroad to settle local suits (
, an important Hellenistic institution), local judges for suits between citizens and foreigners (as was the praetor peregrinus in Rome), or some other as yet unexplored alternative is controversial.[25] The lex Cnidia ,
published in 1974, may offer a third possibility, for it refers explicitly to a praetor's right to institute
, a word that ought to reflect peregrinos iudices in the Latin original.[26]Peregrini iudices may then be a Roman technical term; and if we interpret Cicero in light of the epigraphic passage, we may suppose that peregrini iudices were non-Roman judges assigned by the proconsul in cases that came before him that did not involve Romans, a procedure that can be paralleled by that laid down by Augustus for Cyrene in the Fourth Edict of 7/6 B.C.[27] Being judged according to local law (suis legibus ) by a jury of fellow Greeks, rather than foreigners, will have seemed, at least by the time of Cicero, virtually tantamount to autonomy. We do indeed possess some evidence from our period that such a procedure might be followed by the Asian proconsul. In an inscription of the late second or early first century we hear that a panel of visiting judges (, "foreign judges" in the usual Hellenistic sense) at Adramyttium had successfully judged not only the cases that emerged from local jurisdiction but also "the cases referred [to Adramyttium?] by the propraetor Gnaeus Aufidius, son of Gnaeus."[28] Whether Aufidius took "advantage of the presence of a competent commission in Adramyttium to send down a batch of cases more suited to their arbitral treatment,"[29] or Adramyttium itself took advantage of the presence of "foreign judges" to clear up cases remanded to them by Aufidius, this is an example of the judgment by locally constituted juries of a case that had first come before a Roman authority but presumably did not involve Romans. An inscription from Priene reveals that one of its citizens was sent to one C. Egnatius, presumably a proconsul, as "judge."[30] If the
suggestion offered above is on the right track, this Prienean may have been a "foreign judge" (peregrinus iudex ) nominated by the proconsul to hear a case involving non-Romans.
The role of proconsuls as arbitrators or mediators of international disputes between Greek communities or societies will be considered below. To anticipate somewhat we may simply note at this point that the arbitral role of proconsuls was minor in comparison with that of the Senate.[31]
So far we have considered mainly the limitations, either formal or practical, upon a proconsul's degree of judicial intervention in the affairs of the local communities. To gain a proper perspective on his judicial activity, and to understand why such limitations were allowed or even welcomed, we need to invert the question: that is, why should a proconsul have intervened at all in local jurisdiction? We have already given a hint in this direction by mentioning the likelihood that some provincials will have had something to gain by applying to the praetor's court rather than to their local judiciaries. Far more so will this incentive have worked to attract to the praetor's court Roman citizens resident or conducting business in the provinces.
In Cicero's time, certainly, a basic judicial duty of a provincial commander was to provide a court of justice for Romans in the provinces (Cic. Att . 5.21.6; cf. QFr . 1.1.20). Indeed, a glance at Cicero's letters from Cilicia, supplemented by his speech for Murena and other letters to provincial commanders urging them to bring their influence to bear in behalf of friends doing business in their province, gives the clear impression that this was indeed a proconsul's primary judicial responsibility.[32] A significant example is provided by Cicero's reference in a letter to Atticus to his sending of a member of his staff to conduct jurisdiction in his place in Cyprus, a part of his provincia : had he altogether neglected Cyprus "the few Roman citizens who do business there" might have claimed that they were denied justice (Att . 5.21.6).[33] Cicero could hardly have written these words if he had had judicial responsibilities in Cyprus beyond the provision of justice for Roman citizens alone. There is reason to believe that this had always been the case: as a rule, from which Fabius Maximus's trial of three Dymaeans (Sherk 43) in exceptional circumstances is the sole apparent
deviation, known examples of Roman judicial intervention in Eastern communities involve Roman citizens.[34] Even matters well within the competency of the local courts, if they concerned Romans, will have occasionally been brought by an interested party before the proconsul. Romans were expected to obey the local laws,[35] but they naturally might seek to override them by an appeal to a friendly proconsul when difficulties arose; and the proconsul's readiness to intervene depended more on his personal inclinations than on any set procedure.[36] Badian has aptly commented:
It is dear that even the most elementary principles of protection and justice for the provincial depended on the whim (and probity) of the governor. . . . It is not often recognized how unsystematic and how dependent on the character and purposes of the individual the whole of provincial administration under the Republic really was.[37]
It is not necessary to surmise that locals were barred from bringing disputes with others before the proconsul's court (some such activity is surely implied by the clause of Scaevola's edict examined above) to accept as a sound hypothesis that, as for Cicero later, the proconsul's central judicial duty was to provide justice for Roman citizens in the provinces whether among themselves or against provincials. The proconsul was, indeed, a combination of praetor urbanus and peregrinus in Rome itself—from which officials his edict was largely derived.
The provision of justice for Roman citizens will have required some structure as their numbers in the provinces increased, for as Cicero's reference to jurisdiction in Cyprus shows, the proconsul had to make himself broadly available lest there be complaints at Rome of his neglect of judicial duties. This is surely the origin of the assize system (best attested in Asia
Minor): the division of a province into districts called conventus , the center of each of which the proconsul would visit in succession to conduct local jurisdiction in the course of a judicial tour.[38] Its creation or development into a form like that in which we finally encounter it is variously dated. It certainly existed in a developed form by the time of Cicero, but we have no evidence for how much earlier its origin may be. Although some scholars have attempted on weak grounds to place its genesis quite early, even as early as Aquillius, and to attribute its institution to individuals, it is surely best to assume a process of evolution more or less in step with the increase in the number of Romans in Asia Minor that made such judicial tours necessary.[39] There were many thousands of Roman citizens in Asia Minor by the end of the 90s, who will have provided the proconsul with plenty of judicial business at his assizes.[40] But the extraordinary expansion of Roman revenues from Asia Minor after the First Mithridatic War and the debt crisis that accompanied it must have caused a quantum leap in the number of Romans resident or doing business there and in the amount of judicial work they generated.[41] The maturation, if not the genesis, of the system of assizes in Asia Minor should probably be placed after 84. Very likely the practice of judicial "tours" was also followed in Macedonia during the winters between the campaigning seasons, although we should imagine far fewer Roman residents or businessmen there than in Asia Minor, inasmuch as publicani apparently did not collect the Macedonian fixed tribute (stipendium ), in contrast to the arrangement in Asia. If so, however, it is evident that the proconsul did not normally travel into Greece for this purpose even shortly after the First Mithridatic War.[42]
Taken as a whole, then, our evidence strongly implies that proconsular jurisdiction was largely a matter of providing a court of justice for Roman citizens: this much was required of the proconsul, but he hardly had time for much else besides, and he was unable to exert dose supervision over details where he was not present. It is a reasonable and economic hypothesis that where a proconsul is seen to have intervened in local jurisdiction it was for the most part in response either to appeals from interested parties (mostly Romans, sometimes Greeks) who saw some advantage in applying to his court. Much, however, ultimately depended on the proconsul's whim, and the arbitrary exertion of power, whether or not for the sake of personal gain, will probably not have been too unusual under such circumstances. The proconsul's judicial authority, which was based above all on his coercive power, had no explicit limitations except those he chose to adhere to in his edict when he chose to exercise it in communities that did not possess special privileges or guarantees from the Roman Senate and People. On the other hand, infringing upon the judicial sovereignty of "free" cities might lead to some embarrassment if a local citizen of the means and authority of Menippus of Colophon was at hand to bring the matter to the attention of the Senate, which for its part appears to have been a consistent defender of the rights of the "free" cities.
It is important to keep in mind that most of the Greek cities of western Asia Minor, as well as those of mainland Greece, appear at this rime to have been "free" (see chap. 4). Before the First Mithridatic War, too, the presence of Roman residents and traders, who provided the chief incentives and opportunities for proconsular intervention in local judiciaries, was on a far smaller scale than after. Our evidence, even if it were more copious, is not of the type to allow us to gauge the degree of Roman intrusion into local judicial structures, but the hypothesis toward which it points is that outside of coastal Macedonia and the interior core of the old Attalid kingdom (i.e., Mysia and Lydia) proconsular intervention can have been only sporadic at this time and of limited lasting effect. The "free" cities of western Asia Minor were in an anomalous position, for the proconsuls of Asia clearly spent much time in their midst (especially in Pergamum and Ephesus), and this must have exposed them, as we have seen in the case of Colophon, to repeated, though not necessarily systematic or extensive, infringements of their judicial autonomy. Yet once again Colophon's fight for its judicial sovereignty, and epigraphic evidence of the continuation of international diplomatic exchanges,[43] show that the Greek poleis did not
simply yield themselves to the imperium Romanum upon the establishment of a permanent Roman presence in Asia Minor.