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Published online by Cambridge University Press: 11 February 2009
In an important recent article, A. Rodger expounded a cogent analysis of ch. 84 of the Lex Irnitana and especially of the logic of its account of the limits of the jurisdiction of the duumviri (lines 1–25). He sums up (p. 150) his analysis of the jurisdiction of the duumviri as follows: ‘the picture which emerges is coherent, as we should expect. The duumvir has jurisdiction in cases up to 1,000 sesterces. In such cases the plaintiff may insist on his case being heard locally unless it falls into one of the exempted categories. In that event, unless both parties agree, the duumvir will have jurisdiction only for vadimonium to be made to the governor who will in turn deal with vadimonium for a hearing before the praetor in Rome. If on the other hand both parties concur, the duumvir will have jurisdiction in exempted actions of up to 1,000 sesterces, the only exception being cases where an issue of free status arises. If such an issue does arise, the jurisdiction of the duumvir is restricted to dealing with vadimonium to the governor. In cases over 1,000 sesterces the duumvir has no jurisdiction unless both parties agree. If the parties do not agree, again the duumvir has jurisdiction only for vadimonium to the governor. If, however, the parties do agree, the duumvir has jurisdiction in all matters except again where an issue of free status arises. If that issue arises, he has jurisdiction only for the vadimonium to the governor.’
1 A. Rodger, ‘The jurisdiction of local magistrates: Chapter 84 of the Lex Irnitana’, ZPE 84 (1990), 147–61; a clear improvement on the original analysis of J. Gonzalez, ‘The Lex Irnitana: a new copy of the Flavian Municipal Law’, JRS 76, (1986), 147–243.
2 A. Rodger, 150: ‘finally we move on to line 20 et omnium rerum dumtaxat de vadimonio promittendo. This completes the picture by saying that the duumvir has jurisdiction for promises of vadimonium to the governor in all matters, i.e. even in cases involving free status. That vadimonium leads to a hearing before the governor where vadimonium will be made for appearance before the praetor in Rome’ (the paragraph preceding the one quoted in my text); cf. also pp. 152, 153, 157 and 159. In all the latter references the claim is made in the context of the categories of cases (fundamentally actiones famosae) which were exempt from the jurisdiction of a duumvir, whatever the sum at issue, unless both parties agreed to his jurisdiction.
3 Such a hypothesis is assumed, for example, by Lintott, A., Imperium Romanum (London, 1993), 143–4:‘those lawsuits which it was illegal to try locally⃛ would be referred to the Roman proconsul or his legatus, either for investigation themselves or for submission to a judge or panel of judges’Google Scholarcf. Galsterer, H., ‘Municipium Flavium Irnitanum: A Latin Town in Spain’, JRS 78 (1988), 78–90 at 87: ‘all cases which went beyond the competence of the magistrates of Irni belonged to the jurisdiction of the proconsul, a process facilitated by vadimonia, which the law considers in detail; there is a clear disposition on the part of the legislator to forestall as far as possible any direct appeals to Rome.’Google Scholar
4 D. Johnston, ‘Three Thoughts on the Lex Irnitana’ JRS 77 (1987), 62–77 at 65.
5 Perhaps Dig. 2. 11. 1 (from Gaius) may have a provincial context.
6 Dig. 1. 16. 7. 2.
7 Apuleius, Apologia, 1. Iff and 59 (for the site of the trial).
8 Aelius Aristides, Or. 50. 105ff.K.
9 IRT 304: ‘Mercurio et Minervae votum solvit Tullus sacerdos ex pecunia quam a Boccio Copone accepit ne cum eo ex decreto Marcelli proconsulis qui eum kalumniatorem cognoverat iniuriarum ageret’ (for the possible date and identity of Marcellus see R. Syme, Emperors and Biography [1971], 135 suggesting Q. Pomponius Marcellus, suff. 121); also see C.J. 2.11.5. (198) for a proconsul finding a decurion guilty of iniuria. It is noteworthy that the actio iniuriarum is one that Rodger (157) assumes had automatically to go to Rome from Irni, unless both parties agreed to accept the jurisdiction of a duumvir.
10 C.J. 3.31.1.
11 It is worth noting that the most recent account of the powers of late republican governors ascribes full powers of civil jurisdiction to them; so A. Lintott, op. cit. (n. 3), 54–69.
12 Thus M. Kaser, Das rÖmische Zivilprozessrecht (1966), p. 170, has only the briefest of comments on it.
13 As often in the Digest many of the relevant extracts lack the original context necessary to make them fully intelligible. It is noteworthy that none of the 21 extant extracts of Ulpian or of the 12 extant extracts of Paul use the term vadimonium. Nor, for example, is it clear how the extract of Ulpian (Dig. 1.12.3.) on the powers of the urban prefect is relevant.
14 Tabulae Herculaneae nos. 13–15 in La Parola del Passato 3 (1948), 165ff.; Puteoli: see generally L. Bove, Documenti processuali dalle Tabulae Pompeianae di Murecine, (1979).
15 Rodger, 152.
16 In general see P. D. Garnsey, ‘The Criminal Jurisdiction of Governors’, JRS 58 (1968), 51–9 for a clear analysis. The examples cited in my text are not exhaustive, but merely intended to be illustrative of the powers of a proconsul.
17 Pliny, Ep. 10.58.3.
18 Pliny, Ep. 2.11.
19 Apuleius. Apologia, passim
20 Dig. 28.3.6.8–9.
21 In general see the exposition of H. Galsterer, op. cit. (n. 3).
22 See my brief comments in ‘Proconsuls, Assizes and the Administration of Justice under the Empire’, JRS 65 (1975), 92–106, at 101–2.
23 It is perhaps pertinent that in the second century cases of judicial appeal from governors to the emperor were routinely mediated by letter rather than by the personal appearance of the appellant in Rome. Also if in this period analogous charters were issued to all the new Latin communities of Tarraconensis, Rodger's hypothesis becomes even more implausible.
24 I need to thank the anonymous referee for helpful comments.
