THE DOMINATE: THE ADMINISTRATION OF JUSTICE
The court system
In the bureaucratic state of the late Roman Empire, imperial officials exercised practically all traditional powers and functions relating to the administration of justice. Most officials had little or no legal training, and therefore were often assisted by legal assessors (adsessores) who had received legal education and had usually belonged to the legal profession.1 Moreover, it was quite common for senior officials to perform their judicial functions through delegates (iudices dati or pedanei); the latter were usually low-ranking officers and their decisions could be appealed against before the officials who appointed them. In general, the system of appeals corresponded directly to the hierarchical structure that was observed with regard to the administrative tasks performed by the various state officials.
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. In civil matters, these courts could only tackle cases where the amount of money at stake was trivial, unless their jurisdiction was extended by agreement between the relevant parties. In civil and criminal 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.2 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.3 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.4 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. As regards Rome and Constantinople, the praefectus urbi was the highest judge within the city and the surrounding territory enveloped by his authority, and he heard appeals from ordinary judges officiating within these bounds. In theory, the emperor could exercise jurisdiction in all kinds of civil or criminal cases as a judge of first instance and on appeal. However, in practice he rarely tried cases in person as the nature of the imperial office during this period did not permit close contact between him and his subjects (cases submitted to him were usually managed by the praefectus praetorio or another state official authorized to act in the emperor’s stead).
The system of courts outlined above dealt with the ordinary array of cases, whether of a civil or criminal 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. A decision issued by the court of the rationalis could be appealed against before the comes sacrarum largitionum, the minister in charge of state finances. Cases regarding disputes over crown property could be tackled by provincial governors or be referred to the comes rei privatae (or comes rerum privatarum), the official responsible for the administration and management of the emperor’s private property. The special jurisdiction of the praefecti annonae captured matters such as claims to bread rations in Rome and Constantinople, disputes over membership in the bakers’ guilds and claims of merchants for loss of corn by shipwreck. 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.5 Members of the senatorial order fell within the exclusive jurisdiction of the praefectus urbi if they were domiciled at Rome or Constantinople, or within the jurisdiction of their provincial governor.6 In such cases, the decisions of provincial governors were subject to review by the emperor or the urban or praetorian prefects. Members of the clergy also enjoyed certain jurisdictional privileges in the sphere of civil law, although in criminal cases they remained subject to the jurisdiction of the secular courts. In the middle of the fourth century AD, Emperor Constantius decreed that bishops accused of criminal offences could be tried before a council of bishops with an appeal to the imperial appellate courts.7 However, this privilege seems to have been revoked in later years.8
Judicial protection of the lower classes
As noted previously, the society of the late Empire was a non-egalitarian and rigidly stratified society where the mass of the common people (humiliores) were exposed to the arbitrariness of an all-powerful and deeply corrupt administrative apparatus that favoured the upper classes. Yet members of the lower classes were not entirely bereft of protection against the abuses of an arrogant officialdom. The defensor civitatis or plebis was one of the institutions established by the state for the redress of grievances suffered by the poor and lowly. The office first appeared in the diocese of the Oriens during the early fourth century AD and by the end of that century it had been extended throughout the whole empire.9 The defensores were probably chosen initially by the citizens from among persons with a high social status (honorati) deemed sufficiently qualified to contest their peers’ excesses, and this selection then awaited confirmation by the praetorian prefect or the emperor. These individuals were entrusted with the special duty of protecting the common people in a municipality against acts of extortion and oppression committed by the bureaucracy and the mighty landowners (potentiores, possessores). This authority enabled them, for example, to prevent torture in criminal proceedings, veto the arrest of a person suspected of a crime and intercede against unfair fiscal exactions and enforced military service. Moreover, they were endowed with a minor jurisdiction in civil and criminal matters that was subject to an appeal to the provincial governor, and could arrest and transfer to the governor those accused of serious crimes.10 For a phase, the defensor and his court were apparently successful in providing cheap and swift justice to members of the lower classes. However, in the long term the institution failed to achieve its goal of alleviating the conditions of the poor and the underprivileged. Probably the greatest difficulty was to locate, in this degenerate age, strong and upright men willing to undertake the burdens of the office and capable of resisting the pressures of the powerful. Hence, different methods for appointing holders of the said office were engaged now and then. Ultimately, the defensor civitatis became simply another extraordinary magistrate and an instrument of the bureaucracy and the land-owning elite whose abuses he was originally destined to curb.
As the institution of the defensor civitatis proved short-lived, oppressed people increasingly sought protection from the Christian Bishops whose influence in the administration of secular justice tended to intensify. From the perspective of the civilian population, the operation of the administration became increasingly oppressive and Christianity assuaged this situation. The faith embodied an egalitarian ideology that viewed all humans as equal before God and it exercised a mitigating influence in several fields on the conditions of the oppressed classes and groups. For example, bishops had no direct criminal jurisdiction but could frequently defend refugees who sought sanctuary in churches, or intervene in favour of the accused or the convicted in criminal trials. Moreover, these bishops as religious heads of their towns were more effective than the defensores in protecting impoverished citizens against the unfair demands of imperial officials. As regards the administration of justice, Christians generally adhered to the exhortation of Apostle Paul not to submit their disputes to the secular courts11 and thus they would normally present their private law disputes before local bishops. This practice occurred even before the recognition of Christianity as the official state religion. Constantine the Great formally recognized this kind of jurisdiction (episcopalis audientia) and proclaimed that the decisions of Church authorities were legally binding.12 The power of bishops to decide a civil case was later restricted to cases submitted to them by agreement of both parties concerned.13 Although a sentence passed by the episcopalis audientia could not be appealed against, this form of procedure became very popular as it was simpler, more expeditious and less costly than that of the regular courts.14 One may declare in conclusion that, during a period featuring the worst lawlessness thus far in Roman history, the influence of the Church constituted an important element of civil stability and protective justice.
The civil procedure
In the fourth century AD, an edict of Emperors Constantius and Constans (AD 342) officially abolished the old per formulam procedure that had been wholly superseded by the cognitio extraordinaria in the later years of the Principate era.15 The establishment of the cognitio extraordinaria