Trial Procedures under the Empire
Trial Procedures under the Empire
Cognitio. The republican procedures continued to be used in the early years of the empire. Over the course of the first two centuries C.E., however, they began to be displaced. Criminal trials of senators came to be held before the senate itself. Other cases, in both public and private law matters, came to be tried by a process generally called cognitio today. The case was heard directly by a state official. These were still not professional judges in the modern sense but were perhaps a step in that direction. The presiding official also had considerably more control over the direction of the case than under Republican rules. He could impose legal terms, compel persons to appear, and conduct independent inquiries without the advice of the parties. With the new procedure also came increased substantive flexibility. The presiding officer had freedom to accept claims of justification or impose nonstandard penalties. Cognitio coexisted for some time with the earlier procedures. There were perhaps still jury trials for adultery being held in the early third century C.E. Eventually, however, it displaced the earlier forms. Also, it was the sole procedure for some offenses, such as tampering with the grain supply, which were created only under the empire.
Provinces. The above procedures were viable only near the city of Rome, since they required access to the praetor there. Outside Rome, his role was taken up by governors in the respective provinces. However, there were other complications there. For most of the Republic and early Empire many people were subject to Rome but were not themselves citizens. From the Roman point of view (as in most ancient legal thinking) this situation meant that they were not, or not automatically, subject to Roman law. Thus suits between two Egyptians generally continued to be heard under Egyptian law even after the kingdom was annexed by Rome. While there was probably no circumstance in which a governor felt he had no right to intervene in a case within his province, he ordinarily saw no need to do so. And even if he did intervene, he might only order a case to be decided under a particular local law.
Extended Reach of Roman Law. Nonetheless, the reach of Roman law extended steadily over time for at least four reasons. First, from the end of the Republic, grants of Roman citizenship were made to individuals and whole communities. This automatically brought more people under the scope of Roman law, though some local jurisdiction persisted even after universal Roman citizenship was granted in 212 C.E. Second, Roman political authorities increasingly used their own law to settle disputes in which the two parties were not both from the same foreign state, e.g., cases between a Roman and a provincial, between provincials from two different cities, or including persons from outside the empire entirely. We also know of cities that decided smaller cases themselves, but had to refer more important matters to the Roman authorities. Third, even communities that retained formal judicial independence sometimes changed their laws to resemble those of Rome, especially in the western half of the empire. This conformity seems to have been encouraged but not required by the central government. Finally, the losing party in any dispute might appeal to Roman authority just to have a second chance to win. In these last two instances, subjects and subject states colluded in weakening their own legal systems.
Archaeologists have recently found a cache of legal documents stored by a woman named Bathaba in a cave near the Dead Sea in the early second century C.E. On the one hand, she was involved in a dispute with her husband’s other wife. Such a polygamous marriage was impossible under Roman law; it was an Indigenous phenomenon. Yet, when she wanted to appeal (or considered appealing) to the Roman governor in her disputes, she prepared documents in Roman form. Other documents were just similar to Roman types. This one archive shows both the continued coexistence of local and Roman law and their commingling.
Source: Andrew W. Lintott, Imperium Romanum: Politics and Administration (London & New York: Routledge, 1993), pp. 156–157.
Andrew W. Lintott, Imperium Romanum: Politics and Administration (London & New York: Routledge, 1993).
O. F. Robinson, The Criminal Law of Ancient Rome (Baltimore: Johns Hopkins University Press, 1995).
Robinson, The Sources of Roman Law: Problems and Methods for Ancient Historians (London & New York: Routledge, 1997).