¹ Jones, A. H. M., Studies in Roman Law and Government, 1960, ch. IV, 53 ff.Google Scholar (‘I appeal unto Caesar’), and Ch. V, 69 ff. (‘Imperial and Senatorial Jurisdiction in the early Principate’). The theory is accepted by Kelly, J. M., Princeps ludex, 1957, 75Google Scholar, and by Sherwin-White, A. N., Roman Society and Roman Law in the New Testament 1963, e.g. 68–70, 115.Google Scholar

I should like to thank P. A. Brunt, M. W. Frederiksen, and, in particular, F. G. B. Millar, for their help in the preparation of this paper.

² Jones, o.c. 57; Sherwin-White, ibid.

³ Jones, o.c. 55, 69; cf. Sherwin-White, o.c. 63 ff.

⁴ Jones, o.c. 57 ff.

⁵ Kunkel, W., Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit, 1962, ch. XIII, 79 ff.Google Scholar Accepted by Sherwin-White (review of Kunkel, o.c.), JRS 1964, 208 ff.

⁶ cf. Mommsen, , Strafrecht, 1899, 149–150Google Scholar; cf. 25 (‘Hauszucht’).

⁷ Kunkel, o.c. 24.

⁸ Cic., de re pub. 2, 31, 54.

⁹ Livy X, 9, 4–5.

¹⁰ Ascon., in Cornel. 69

¹¹ e.g., Livy X, 9, 4: ‘Porcia tamen lex sola pro tergo civium lata videtur.’ cf. Sall., Cat. 51, 22; Festus 234, Müll.; Cic., pro Rab. ad pop. 12.

¹² Cic., pro Rab. ad pop. 12 might seem to imply that it is the lex Sempronia which is the real deterrent against the death penalty, while the lex Porcia protects a citizen from flogging. But I would not press this.

¹³ Mommsen, o.c. 31, n. 3, 47, n. 3 argues that the lex Porcia extended the right of provocatio militiae, that is, outside the walls of Rome. This is followed by Strachan-Davidson, , Problems of the Roman Criminal Law, 1912, 1, 125–6.Google ScholarBrunt, (reviewing Kunkel in Tijdschrift Voor Rechtsgeschiedenis, 1964, 441 ff.Google Scholar) argues conclusively (see 447–8) that the extension was not such as Mommsen envisaged—the deprivation of a general's right to put a soldier to death. What is left ? Provocatio was extended militiae at least to all civilian citizens. But Cicero's comment about the lack of novelty of the leges Porciae suggests that the only extension was in efficacy rather than in content of provocatio. His accuracy may of course be doubted. See Val. Max, 9, 5, 1; Plut., C. Gr. 4; Bruns, Fontes ⁷ 10, 11. 76–9; Cic., 2 Verr. 5, 163; Cic., pro Rab. ad pop. 8 and 12.

¹⁴ Mommsen's view (o.c. 47) that the verberatio of the lex Porcia is not the same as the verberatio of the lex Valeria (Cic., de re p. 2, 31, 54) and the XII Tables (ibid. 2, 37, 62) has little to commend it. Again, Cic., de re p. 2, 31, 54 contradicts; and see n. 26.

¹⁵ For a summary of his views, see Kunkel, o.c. ch. XVI, 30 ff.; cf. Mommsen, o.c. 38, n. 1; 462 ff.; etc.

¹⁶ See below, p. 187.

¹⁷ See below, p. 187.

¹⁸ Not only effectiveness of provocatio is involved. It is of course true that the sphere of provocatio had been reduced by the institution of quaestiones perpetuae for common crimes. Again, appeal is not automatic in the case of death sentences (see below, p. 188).

¹⁹ Sent. Pauli, V, 26, 1.

²⁰ Mr. Brunt has suggested to me that a text can only be shown to be reliable if it can be established that it contains elements which do not relate to current practice. This stringent condition is virtually impossible of fulfilment if his other assertion is true, that ‘lege … tenetur qui’ and ‘lege cavetur’ introduce a summary of the way in which the law was construed when the jurists (if not the compilers) wrote. We could expect very little to get through this net. It is true that in most cases we cannot know if ipsissima verba are being cited. But such knowledge, though ideal, is hardly indispensable. An accurate summary of a law is not to be spurned.

²¹ See below pp. 172–3.

²² It seems to be implied that humiliores are among those ‘aliqua potestate praediti’. This is odd. For late additions, cf. Dig. 48, 4, 1, 1 where ‘iniussu principis’ cannot have stood in the text of the lex Iulia maiestatis (cf. h.t. 3); and in Dig. 48, 8, 3, 5 deportatio cannot have been the ‘poena legis Corneliae’, if Levy, , Die Römische Kapitalstrafe, 1931, 14 ff.Google Scholar is right.

²³ Lex Valeria: (Cic., de re p. 2, 31, 54; cf. Val. Max. 4, 1, 1), ‘ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret.’ XII Tables: (ibid.), ‘non provocatione ad populum contra necem ac verbera relicta’. Lex Porcia: (Cic., pro Rab. ad pop. 8), ‘de civibus Romanis contra legem Porciam verberatis aut necatis’.

²⁴ It could be argued that the clause on torture cannot be pushed back before Ulpian. The clause ‘qui cum imperium potestatemve haberet’, which recurs in another reference to the same law (Dig. 48, 6, 10) and in Ulpian's citation (?) of the lex Iulia maiestatis (Dig. 48, 4, 1, 1), looks more technical and earlier than ‘qui aliqua potestate praeditus’; but it may simply be Ulpian's phrase.

²⁵ The ‘iusserit’ clause may have had a partner; cf. the association of ‘necaverit’ and ‘necari iusserit’; and perhaps ‘condemnaverit (in publica vincula)’ and ‘in publica vincula duci iusserit’ (see below, pp. 170–71).

²⁶ See Dig. 49, 1, 6; h.t. 8; 10, 4, etc.; cf. Tac., Ann. 14, 28; more examples of the synonymity of the words are given in Mommsen, o.c. 473, n. 4 (fin.).

²⁷ Buckland, W. W., The Roman Law of Slavery, 1908, 87 ff.Google Scholar

²⁸ See n. 14. Sall., Cat. 51, 22 shows that verberatio is detachable from death, but not that it can be inflicted as a separate penalty. Festus, p. 234, Müll., implies just this separateness (‘poena verberum’). For some crimes, a man could be beaten to death. By the time of Ulpian this was illegal (Dig. 48, 19, 8, 3). That the two are put separately in the laws is a supporting argument for separateness. On verberatio, see Brasiello, U., La repressione penale in diritto romano, 1937, 386 ff.Google Scholar

²⁹ Sherwin-White (o.c. 27) derives from Dig. 48, 19, 7 and 48, 19, 10 pr. ‘a gradation of beatings: fustes, flagella, verberatio.’ This is not a true progression, and cannot be derived from the texts cited. These and other texts give us three distinct contrasts: fustes (for free men) and flagella (for slaves), admonitio or castigatio (a light, corrective beating) and verberatio, and pulsatio (originally striking with a fist) and verberatio (striking with a rod or thong). Fustigatio (contra Sherwin-White, ibid.) is not a suitable word for a light beating, as a beating with fustes was not necessarily light.

³⁰ Mommsen, o.c. 242, n. 3; 663, n. 3. There is no obvious reason why ‘condemnaverit’ should have been interpolated. Further I can think of no likely candidate as a missing predicate. I am grateful to Prof. Fraenkel, Mr. A. M. Honoré and Dr. W. A. J. Watson for their helpful criticism of this section.

³¹ Sherwin-White, o.c. 116 (my italics); cf. 64, and Jones, o.c. 54 (‘condemn’). Neither author notices Mommsen's solution.

³² Sherwin-White's position is that governors cannot try cases which do not come under leges publicae (see below, pp. 174–6).

³³ This third view was suggested to me by Mr. A. M. Honoré, in correspondence.

³⁴ For the status of a governor's sententia after appeal has been lodged, see Dig. 48, 16, 1, 14: ‘reus condemnatus provocavit, deinde accusator destitit: … provocations remedio condemnationis extinguitur pronuntiatio.’ Note the juxtaposition of ‘reus’ and ‘condemnatus.’ The man has a sentence over his head, but is technically only ‘reus’. If no appeal was lodged, the sententia of the governor would be final. Otherwise, there was a gap between ‘damnare’ and ‘punire’, see Dig. 49, 1, 16 (an exception); 48, 19, 2, 2; cf. 48, 21, 2, 1, etc.). When ‘condemnare’ is used without qualification, it is used loosely (see Dig. 49, 1, 10 pr.; cf. 49, 7, 1, 5).

³⁵ ‘ve’ is also to be found introducing the last of a series of verbs or clauses. See lex agraria 7 (Rice. FIRA I, 104), and lex de Gallia Cisalpina XXII, 39 ff. (ibid. 1, 175); cf. Sent. Pauli I, 13a, 3; V, 23, 1; 26, 3; V, 6, 14. That there is elasticity in the use of connectives such as ‘ve’ is suggested by Paulus in Dig. 50, 16, 53.

³⁶ e.g., Suet., Tib. 51 (‘in antliam’); Dig. 48, 19, 8, 6 (‘in metallum’); 48, 19, 33 (‘in vincula’); cf. 48, 19, 28, 7 (‘in vincula publica coerceri’); etc.

³⁷ See Greenidge, , The Legal Procedure of Cicero's Time, 1901, 403, 513 ff.Google Scholar

³⁸ Slaves: Dig. 48, 3, 2; 48, 19, 33; Sent. Pauli V, 18, 1; Gai. Inst. 1, 13; Dig. 48, 19, 8, 13. Free: ‘in opus publicum damnati’ are ‘in vinculis’: Sent. Pauli V, 21, 1; Dig. 48, 19, 10 pr.; ‘perp. vinc.’: Dig. 48, 19, 35; CJ 9, 47, 6.

³⁹ Sent. Pauli V, 17, 2.

⁴⁰ Dig. 48, 19, 8, 9.

⁴¹ Dig. 48, 19, 35; CJ 9, 47, 6.

⁴² The syntactical clumsiness of ‘condemnaverit … vincula’ might be due to the addition of ‘condemnaverit’ at a late date. (Note that we have no early instance of ‘condemnare aliquem in aliquid’—but there is no Dig. for the first century, and a lack of suitable contexts in legal texts which survive.) It is also possible that the predicate originally attached to ‘condemnaverit’ has dropped out.

⁴³ Greenidge, o.c. 333, 467.

⁴⁴ Livy 3, 57, 5.

⁴⁵ Livy, epit. 61.

⁴⁶ Dig. 48, 3, 5.

⁴⁷ Dig. 48, 4, 4 pr. (fin.).

⁴⁸ ‘vincula publica’ seems roughly synonymous with ‘carcer’. But decurions are put into ‘carcer’ (Dig. 48, 19, 27, 2 (‘principales’); 49, 4, 1 pr.; 28, 3, 6, 7). Dig. 26, 10, 3, 16 looks inconsistent—men of dignitas are not to be ‘vinculis publicis contineri’. But this is Ulpian's opinion (‘opinor … non … oportere’). For ‘custodia’ in the broad sense, see Dig. 48, 3, 1; cf. 50, 16, 48 (‘in publico sine vinculis’); 50, 16, 216; 4, 6, 9; etc.

⁴⁹ ‘vinciri’, of course, is not equivalent to ‘in vincula publica duci’. Was Paul put in chains ? It is not clear from Acts 27, 1; 27, 42; 28, 15 ff.; Acts 27, 3 may indicate that he was not, but see 26, 29. cf. Cic. 2 Verr. V, 170: ‘facinus vincire civem Romanum; scelus verberare …’; and see n. 50.

⁵⁰ cf. Sherwin-White, o.c. 58 ff., for another view.

⁵¹ Sherwin-White, o.c. 58, 72.

⁵² Tac., Ann. 13, 28, 1.

⁵³ ibid. 1, 77.

⁵⁴ Suet., DA 45.

⁵⁵ Tac., Ann. 1, 54, 3.

⁵⁶ On Bathyllus, cf. Dio 54, 17, 5.

⁵⁷ Suet., DA 45, 4.

⁵⁸ For the power of the plebs, see Dio 56, 47, 2: an actor strikes for higher pay, and the people force the tribunes to convene the senate on the same day to authorize an increase.

⁵⁹ Tac., Ann. 4, 14, 4.

⁶⁰ ibid. 13, 25, 4.

⁶¹ ibid. 13, 28.

⁶² cf. ibid. 1, 77: decrees against ‘lascivia fautorum’; and the praetors get the power of punishing by exile ‘spectantium immodestiam’.

⁶³ Dig. 3, 2, 2, 5 (Ulp. ad ed.). On infames, see Buckland, W. W., A Text-Book of Roman Law from Augustus to Justinian 3rd Ed., 1963, 91 ff.Google Scholar

⁶⁴ Ulpian's quotation is followed by Labeo's definition of ‘scaena’, and then by responso of Pegasus and Nerva filius. Other first- and secondcentury lawyers discuss whether certain activities can be described as ‘artes ludicrae’ (Dig. 3, 2, 4; Ulpian quotes Sabinus and Cassius).

⁶⁵ Dig. 48, 2, 4 (from the lex Iulia iud. pub. ?).

⁶⁶ Tab. Her. 108 ff., and espec. 123.

⁶⁷ Dig. 23, 2, 44.

⁶⁸ This section owes much to Mr. Frederiksen.

⁶⁹ Dig. 42, 1, 1.

⁷⁰ Dig. 42, 2, 1; 42, 2, 3; 42, 2, 6, 3; 7; it is the ‘in iure confessus’, as Marcus shows in Dig. 42, 1, 56; cf. lex Rubria XXII. The problem in Dig. 48, 22, 6, 2 is due to the confession of Priscus ‘ante quaestionem’.

⁷¹ Sherwin-White (o.c. 72, n. 1) holds that ‘confessus’ is late because of the reference of the Christian confessors to Rome in A.D. 177. But Marcus was consulted on penalties. There is no question that they would be punished.

⁷² Add Sent. Pauli V, 35, 2: ‘moratorias appellationes et eas, quae ab exsecutoribus et confessis fiunt, recipi non placuit.’ cf. CTh. 11, 36, 1; 4; 7; 14; 18, 31, 33. See also CTh. 9, 21, 2; 3 (= CJ 9, 24, 1; 2) (forgery); CTH. 9, 10, 1 (= CJ 9, 12, 6); CTh. 11, 36, 14 (violence); 9, 24, 1, 3 (rape).

⁷³ Dig. 28, 3, 6, 9 (oratio Marci): appeal is disregarded in the event of violent stasis—‘punire permittitur, deinde scribere’. cf. 48, 8, 16 (decurione and tumultus).

⁷⁴ Dig. 42, 1, 53 pr. (Hermogenianus): ‘contumacia eorum, qui ius dicenti non obtemperant’. On the powers of junior officers to execute without appeal, see Jones, o.c. 60.

⁷⁵ Sherwin-White, o.c. 72; Jones, o.c. 90 ff.

⁷⁶ Jones, o.c. 92–3. The first explanation he gives for the origin of the imperial and senatorial right to try capital cases is unsatisfactory; if the second is accepted, there is no excuse left for thinking of the lex Iulia as a likely vehicle for the conveyance of such powers.

⁷⁷ Dig. I, 21, 1 pr. and Jones, o.c. 90 ff.

⁷⁸ See, e.g. Strachan-Davidson, o.c. ch. XIII.

⁷⁹ Coll. XIV, 3, 2–3.

⁸⁰ See below, p. 176.

⁸¹ Jones, o.c. 54 ff.

⁸² Pliny, Ep. 2, 11 (Marius Prisais); 10, 58–9 (Flavius Archippus); 10, 96–7 (Christians); Eus., HE V, 1 (Lugdunensian Christians); Acts 25–6 (St. Paul). See Jones, o.c. 59, for the view expressed in the last sentence.

⁸³ Sherwin-White, o.c. 61; criticized by Crook, , CR 1964, 199.Google Scholar Cf. Mommsen, o.c. 340 f., 364 f.

⁸⁴ Pliny's audience thought the defendant had already suffered enough (Pl., Ep. 2, 11, 13). Impeachment of a senator was unpopular and might be dangerous (Pl., Ep. 9, 13, 2; 3, 4, 6–7; 5, 13, 2, etc.).

⁸⁵ Pl., Ep. 2, 11, 14.

⁸⁶ cf. Gavius in Cic., 2 Verr. 5, 161 ff.

⁸⁷ Jones, o.c. 56.

⁸⁸ Sherwin-White, o.c. 61 ff.

⁸⁹ Suetonius, Galba 9, 1.

⁹⁰ Jos., BJ 2, 308; Jones, o.c. 56; Sherwin-White, o.c. 62.

⁹¹ Dio 63 (64), 2, 3, and Sherwin-White, o.c. 62, n. 1. This is an appeal after sentence, if ‘ἀπ΄ αὐτοῦ’ carries the same meaning as it does in Dio 59, 18, 2 (cf. 59, 8, 5 and 52, 33). See below, pp. 180–1.

⁹² Jones, o.c. 89: ‘one must postulate a law conferring capital jurisdiction on the consuls and the emperor.’

⁹³ Dio 52, 31, 3–4.

⁹⁴ Tac., Ann. 3, 12. I do not deny that senatorial jurisdiction rested legally on the imperium of the consuls. Mr. Brunt draws my attention also to the procedure prescribed by the SC Calvisianum for the magistrate who introduces the suit de repetundis. (See EJ 311, V, 97 ff.)

⁹⁵ Dig. 49, 2, 1.

⁹⁶ Kunkel, o.c. ch. XIII, 79 ff.

⁹⁷ Cicero, in the Catilinarian affair, did not try to protect himself against the lex Sempronia by arguing that he had used the senate as a consilium. cf. Cic., Sest. 61 (Cato endangers his caput in speaking for the execution of Lentulus, etc.); Dio 38, 14 (the lex Clodia strictly applied to the whole senate because of the part it had played in the events of Dec. 63). (These illustrations from Mr. Brunt.) For the idea of the joint responsibility of all senators, see Eprius Marcellus' comment in Tac., Hist. 4, 8: ‘non magis sua oratione Thraseam quam iudicio senatus adflictum.’

⁹⁸ Cic., Brut. 85 ff.

⁹⁹ cf. Dio 52, 33, of ‘Maecenas'’ advice to ‘Augustus’ (‘δίκαζε…αὐτός’). Maecenas is not likely to have suggested a policy for which Romulus (Dionys. 2, 16: ‘δίκην μόνος δικάσας’) and Tarquinius II (Livy 1, 49, 4 and Dio fr. 11, 6) were censured.

¹⁰⁰ But indemnatus equals indicta causa. See Brunt, o.c. 446, n. 12.

¹⁰¹ Cic., 2 Verr. 5, 12.

¹⁰² cf. Ascon., in Milon. (OCT p. 39), ch. 34, 11. 10 ff.: ‘ex sententia iudicum.’

¹⁰³ Liebenam, RE IV, 918, 11. 45 ff.–919 (top).

¹⁰⁴ e.g., CIL VI, 266, 1. 24; X, 3334, 1. 8; 11, 4125, 1. 11; Acts 25, 12; etc.

¹⁰⁵ Livy 29, 21, 12., and Kunkel, o.c. 84.

¹⁰⁶ Cic., 2 Verr. 2, 68 ff.

¹⁰⁷ ibid. 2, 42.

¹⁰⁸ This is the most favourable case for Kunkel. But we should beware of Cicero's exaggerations. cf. 2 Verr. 2, 74: Verres judges ‘sine consilio’. This is not strictly correct, as he had a council of three, even if they were taken from the cohors.

¹⁰⁹ Cic., 2 Verr. 5, 114.

¹¹⁰ cf. McCrum, and Woodhead, , Documents of the Principates of the Flavian Emperors, 1961, n. 455Google Scholar: the legate and quaestor of Sardinia sit ‘in consilio’ with the governor, in A.D. 69.

¹¹¹ Cic., 2 Verr. 2, 33 ff.

¹¹² ibid., 39 and 42.

¹¹³ ibid., 33.

¹¹⁴ Verres' villainy: see, e.g. Cic., 2 Verr. I, 158 (Verres tried a deal with the iudex quaestionis of his own court); cf. ibid. 2, 29–30 (bribery).

¹¹⁵ EJ 311, iv.

¹¹⁶ Cic., 2 Verr. I, 73 ff.; Cicero's praise: ibid. 1. 75–6.

¹¹⁷ An honour: Cic., pro Flacco 77; Fronto, ad Ant. Pium (169 Naber = Loeb 1, 236).

¹¹⁸ Mommsen, o.c. 26 and notes; Tac., Ann. 13, 32; Kriegsrecht: Mommsen, o.c. 33 ff.

¹¹⁹ Cic., 2 Verr. I, 75; cf. Kunkel, o.c. 79–80.

¹²⁰ ibid.

¹²¹ Experts: Cic., Top. 65; Gellius 12, 13, 2; 14, 2, 9. cf. Buckland, Text-Book, 635.

¹²² Gellius 14, 2, 9.

¹²³ ibid. 10–11.

¹²⁴ cf. Ricc., FIRA I, n. 7, 49 ff. (lex Acilia).

¹²⁵ See Crook, , Consilium Principis, 1955, 105 ff.Google Scholar, and esp. Dio 57, 7, 2–3; Suet., Nero 15, 1; Dio 52, 33, 4; Pl., Ep. 6, 22, 5; 4, 22, 3; 6, 31, 12 (‘ex consilii sententia’ occurs in the last reference).

¹²⁶ Mommsen, o.c. 25, 149–150.

¹²⁷ It may be helpful to think of ‘de consilii sententia’ as short for ‘de consilii tum etiam sua sententia’ (Val. Max. 5, 9, 1); i.e. it was the council's view and his own as well.

¹²⁸ Livy 3, 55, 4; cf. Kelly, o.c. 77: governors with the ius gladii are inappellable; otherwise there would have been a flood of appeals, and the whole purpose of the delegation of the ius gladii would have been lost. But if appeal is not automatic in the case of a death sentence, the argument falls to the ground. See below, p. 188 (criticism of Strachan-Davidson).

¹²⁹ Suet., DA 33, 3.

¹³⁰ Dio 59, 8, 5.

¹³¹ Another honour, that of voting first among the consuls, was granted Silanus, and for similar reasons: ‘διὰ τὴν ἡλικίαν καὶ διὰ τὸ ἀξίωμα’.

¹³² Suet., Caius 16, 2. This might be read beside the same author's words on Tiberius: ‘cetera quoque non nisi per magistratus et iure ordinario agebantur’ (Suet., Tib. 31, 2). But ‘cetera’ covers a wider field than appellate jurisdiction. cf. ibid. 32, where a proconsul is rebuked for not himself awarding prizes.

¹³³ Dio 59, 18, 2.

¹³⁴ Suet., Claud. 14.

¹³⁵ Tac., Ann. 14, 28.

¹³⁶ AÉ 1962, 288.

¹³⁷ Jones, o.c. 69.

¹³⁸ e.g. Dig. 49, 9, 1 (divi fr.); 5, 2 (Scaev.); 4, 2 (Macer); 13, 1 (Macer), and see Mommsen, o.c. 469.

¹³⁹ Dio 52, 33. For ‘ἀπ΄ αὐτοῦ’, see Dio 63 (64), 2, 3.

¹⁴⁰ Kelly, o.c. 78. On the dualism, see BGU 628R: ‘causae ad principalem notionem [vel] provocatae vel [rem]issae’. (For the date, see n. 209.) Other occurrences in Dio 52, 21, 2; 52, 22, 5 (ἐκκλητος/ἀναπόμπιμος)

¹⁴¹ e.g. Sherwin-White, o.c. 64.

¹⁴² Jones, o.c. 55; Pl., Ep. 10, 96.

¹⁴³ Pl., Ep. 10, 96, 1.

¹⁴⁴ Eus., HE 5, 1.

¹⁴⁵ There is no doubt that the governor consulted the emperor about how he should punish the citizens (and perhaps the recanters too).

¹⁴⁶ e.g., in rough chronological order, EJ 311, 11; Jos., AJ 17, 297 (cf. BJ 2, 78–9); ibid. 18, 88–9; Jos., BJ 2, 245–6 (cf. AJ 20, 136); Jos., BJ 2, 398; vita 408 ff.; Tac., Hist. 4, 13; Dio 67, 16, 2 (cf. 59, 29, 4); Pl., Ep. 10, 56–7 (cf. Acts 28, 16); Pl., Ep. 10, 74; perhaps Pl., Ep. 6, 31, 2, 4 ff., 7 ff.; and 4, 22, 1.

¹⁴⁷ At least we know of no new factors about the turn of the first century which might have changed the system. The rule that appeals must be lodged within three days after sententia was already in operation in the time of Julian (Hadrian/Pius): Dig. 49, 4, 1, 14; for other references, see Dig. 49, 4, 1, pass.; 49, 5, 3; 49, 5, 5, 5; CJ 7, 62, 6, 5. This is a mark of a fully developed system. We cannot assume it did not exist in the first century. On the origin of the rule, see Mommsen, o.c. 471, n. 9. The synonymity of provocatio and appellatio (see n. 26 above) is already present in Tacitus (Ann. 14, 28). It is due to the fact that the emperor both receives provocationes and gives tribunician auxilium in response to appellationes.

¹⁴⁸ Sherwin-White, o.c. 63.

¹⁴⁹ e.g. Cic., Phil. 12, 18; de fin. 2, 119. Other cases of reiectio: Cic., de Or. 2, 285; 2 Verr. 2, 60; pro Qu. Roscio 45; Tac., Or. 5; Pl., Pan. 36; senators could challenge more iudices: Cic., 2 Verr. 2,77.

¹⁵⁰ Cic., in Vat. II, 27; Greenidge, o.c. 451.

¹⁵¹ Scol. Bob. p. 323.

¹⁵² Ascon., in Or. in Tog. Cand. 75; cf. ‘iudicium recusavit’ below.

¹⁵³ Cic., 2 Verr. 2, 32; 34; 39; 42 (reiectio of iudices); 2, 28; 32; 3, 136; 139–140 (reiectio of recuperatores).

¹⁵⁴ Cic., 2 Verr. 2, 59.

¹⁵⁵ ibid. 2, 90.

¹⁵⁶ ibid. 3, 135–140.

¹⁵⁷ The sponsio runs: ‘NI TE APRONIUS SOCIUM IN DECUMIS ESSE DICAT.’

¹⁵⁸ In Asia and Cilicia (and therefore in the whole of the East ?), jurisdiction was not guaranteed to the cities by the lex provinciae. In Cyrene, the governor appears to have had the right to intervene in all cases. Cicero was generous in allowing ‘autonomy’ to Cilicia (see Cic., ad Att. 6, 1, 15). Governors nibbled at the special rights of free cities, e.g., Chios: IGR 943, A.D. 5–14.

¹⁵⁹ Abbott, and Johnson, , Municipal Administration in the Roman Empire, 1926, 17, 11. 47 ff.Google Scholar, 90 ff.; 16, 1. 11 (Stratonicea and Tabai, both c. 81 B.c.). cf. OGI 455 (39–35 B.C., Aphrodisias in Caria).

¹⁶⁰ SC de Asclepiade Clazomenio sociisque (78 B.C.): a choice between local laws and courts, Roman ‘ἄρχοντες’, Italian ‘κριταί’; they could be tried in a (another) free city of their choosing (see Ricc., FIRA 1, 255). cf. Ricc., FIRA 1, 308 and Roussel, , Syria XV, 1934Google Scholar: (Seleucos of Rhosos' trial) ‘τοῖς ἰδίοις νόμοις’, or in free cities, or ‘πρὸς ἄρχοντας ἢ ἀν[τάρχοντα]ς ἡμετέρους.’

¹⁶¹ e.g. Chios: IGR IV, 943.

¹⁶² Dio 56, 24, 7; cf. Ovid, Tristia 2, 131 ff.; etc. On the extent of the emperor's primary criminal jurisdiction, I support Mommsen (e.g. StR II³ 959 ff.) against Kelly, o.c. ch. 111, 24 ff. Kelly holds that the imperial court was used only for political trials under Augustus.

¹⁶³ The Words are ‘καὶ παρὰ τῷ Αὐγούστῳ δικασθῆναι μάτην ἐθέλησεν οὐ γὰρ ἐκράτησεν’. The position of ‘μάτην’ suggests that he failed; but the second clause suggests that he lost the case. Perhaps we should construe: he wished the case to be judged before Augustus; but he wished in vain; for he lost the case. cf. Kelly, o.c. 29 ff.

¹⁶⁴ Tac., Ann. I, 2.

¹⁶⁵ Ricc., o.c. 111, n. 185; 582 = EJ 312.

¹⁶⁶ Cic., 2 Verr. 2, 90 ff.

¹⁶⁷ EJ 311, 1.

¹⁶⁸ There is no question of a trial before a Jewish court. Some sort of hearing had been arranged by Claudius Lysias (Acts 22, 30–23, 30), but there is no indication that this could be regarded as a fullscale alternative to trial by the procurator, for a Roman defendant. The Jews who plan to ambush Paul on the route from Caesarea to Jerusalem are certainly not expecting to be able to pass judgement on him in their own court.

¹⁶⁹ Acts 26, 32.

¹⁷⁰ Perhaps Paul feared that the Sanhedrin would form at least part of the procurator's council at Jerusalem (see Sherwin-White, o.c. 67). But on or off the council, if the trial of Christ is any guide, they could exercise a strong influence over the procurator. Paul also knew that the Jews were plotting his death (Acts 23, 16 ff.).

¹⁷¹ This can be said even if we follow Sherwin-White (o.c. 64) in arguing that if he had rejected Paul's appeal, he would have broken the lex Iulia. This would not have been the first breach of the law. Gessius Florus, a few years later, broke it far more flagrantly. If it is held that to refuse such an appeal without breaking the law is nothing, the answer is that it means just as little or just as much as a breach of the law. And Nero was just as likely to pass over or care about either.

¹⁷² This is the clear implication of the whole passage. See, e.g. Acts 25, 6; 10; 11; espec. 26, 32.

¹⁷³ Trebonius Rufinus: Pl., Ep. 4, 22 (I do not, of course, regard this as a case of appeal). cf. Sthenius' friends in Rome (Cic., 2 Verr. 2, 95). For the position of Sthenius in Thermis, see 2, 83; 106; 112. Claudius Aristion: Pl., Ep. 6, 31.

¹⁷⁴ Suet., D. Vesp. 23; DA 33, 5.

¹⁷⁵ Dig. 48, 6, 6.

¹⁷⁶ Dio 63 (64), 2, 3. This is, in my opinion, an appeal after sentence (cf. n. 91, esp. Dio 59, 18, 2; and above, p. 181).

¹⁷⁷ Dio 52, 33.

¹⁷⁸ See Kelly, o.c. 62 ff., for a summary of the position up till 1957. Add J. Bleicken, Senatsgericht und Kaisergericht, 1962.

¹⁷⁹ Dio 51, 19, and cf. Kelly, o.c. 15 ff. My division would be unacceptable to Kelly, who takes ‘ἔκκλητον δικάζειν’ with what follows, and ties it closely to the quaestio courts (o.c. 18–22).

¹⁸⁰ Imperial intercession: Tac., Ann. I, 13; 4, 30; 13, 43, 7; 14, 45, 4; 14, 48, 3; 15, 74; 16, 11; etc.

¹⁸¹ Domitius Silvanus: Dig. 48, 6, 6; Tryphera: Syll. ³ 780 = EJ 312; Taurus: Dig. 8, 3, 35 (note the wording: ‘succurrendum his putavi’—cf. Phaedrus 3,10: ‘adiuvaret’).

¹⁸² Other magistrates could bestow auxilium. See Cic., 2 Verr. 2, 95 (consuls' sententiae in favour of Sthenius); cf. praetorian restitutio in integrum: see Buckland, Text-Book 719 ff.

¹⁸³ Livy 3, 20, 7.

¹⁸⁴ Suet., Tib. 11, 3.

¹⁸⁵ Kelly, o.c. 18 suggests (in a parenthesis) a colon after ‘ἀμὑνειν’ in which case ‘ὃ μηδ΄…ἐξῆν’ looks forward.

¹⁸⁶ Gellius 13, 12.

¹⁸⁷ Tac., Ann. 3, 75.

¹⁸⁸ ibid. 13, 28 (A.D. 56); Kübler, (Festschrift zu Otto Hirschfeld, 1903, 50–60Google Scholar) argues that by ‘lege agere’ Tacitus meant also ‘lege aut legitimo iudicio agere’. cf. Gaius, Inst. 1, 184.

¹⁸⁹ Varro, ap. Gell. 13, 12, 6: ‘vocationem, ut consules et ceteri, qui habent imperium’.

¹⁹⁰ Gellius 13, 12, 9. Originally: ‘tribuni antiquitus creati videntur….’

¹⁹¹ cf. Juv. 7, 228 (‘rara tamen merces, quae cognitione tribuni non egeat’); 11, 3 ff.; cf. CIL VI, 20863 (‘corporibus tralatis perm(issu) trib. pl.); see Dig. 47, 12, 3, 4 (Septimius and Marcus —no magistrate specified); cf. 11, 7, 38 (in provinces it is the job of the governor).

¹⁹² Sthenius: Cic., 2 Verr. 2, 100: ‘X tribunos plebis hoc statuisse, idque de omnium sententia pronuntiatum esse: NON VIDERI STHENIUM IMPEDIRI EDICTO QUO MINUS EI LICERET ROMAE ESSE’.

¹⁹³ Ascon., in Or. in Tog. cand. 75.

¹⁹⁴ Most recently, Jones, o.c. 77 ff.

¹⁹⁵ Livy 3, 45, 8.

¹⁹⁶ ibid. 3, 55, 6; 56, 5.

¹⁹⁷ ibid. 8, 33, 7.

¹⁹⁸ ibid. 1, 26, 8.

¹⁹⁹ Pliny, n.h. praef. 10; cf. Dig. 28, 8, 6 (‘iudicem provocare’) and see Mommsen, o.c. 473, n. 3.

²⁰⁰ Cic., de leg. 3, 6; 10; 27; cf. XII Tables (ibid. 3, 4, 11): ‘de capite civis nisi per maximum comitiatum … ne ferunto’. cf. ibid. 3, 19, 44; Cic., de re p. 2, 31, 54.

²⁰¹ With Frederiksen, contra Brunt, o.c. 441, n. 1, I believe the theoretical position is as Polyb. 6, 14, 6 describes, namely, that strictly the people ‘θανάτον κρίνει μόνος’. Thus, according to Polyb. 6, 16, 2, the senate cannot exact the death penalty without the sanction of the people. This is just because provocatio exists. Senatorial quaestiones enter the field outside Rome, that is, within the senate's provincia, but, until provocatio is extended militiae, outside the range of provocatio.

²⁰² Livy 10, 9, 4–5.

²⁰³ Cic., in Cat. 4, 5, 10; cf. pro Rab. 4, 12; Plut., C. Gr. 4.

²⁰⁴ Cic., de domo 13, 33.

²⁰⁵ Strachan-Davidson, o.c. 139 and 140. He appeals to Dig. 1, 2, 2, 16 (Pomponius), where, however, the two clauses ‘ut…esset’and ‘neve… populi’ are not synonymous; the language of the former is that of an appeal law, while the latter is a summary of the lex Sempronia. Pomponius seems to have confused the two (cf. 1, 2, 2, 23). Dionys. 5, 19 does not help Strachan-Davidson's case. It simply states that a defendant may (‘ἐξεῖναι ’) take the case before the people (‘προκαλεῖσθαι τἡν ἀρχὴν ἐπὶ τὴν τοῦ δήμου κρίσιν’).

²⁰⁶ e.g. Dig. 48, 22, 6; cf. 49, 4, 1; 48, 19, 27, 2; 28, 3, 6, 7; 49, 21, 2, 1; etc.

²⁰⁷ Dig. 48, 19, 15 (Hadrian).

²⁰⁸ See Brunt, o.c. 442.

²⁰⁹ The extent of our ignorance is emphasized by our inability to decide whether BGU 628 (Riccobono, o.c. 1, n. 91 = R. Cavenaile, Corpus Papyrorum Latinorum 237) belongs to Nero's reign or to that of an emperor of the third century. Some of the language looks late. Historical arguments such as those used by Sherwin-White (o.c. 115–6) are based on the very preconceptions which I have criticized. Col. II, 11. 13 ff. fits the second and third centuries best, when honores were tantamount to munera, and appeals against them frequent. But the late dating is not certain.

²¹⁰ Kunkel, o.c. 131.