Roman Public Life/Appendix 2
APPENDIX II
A LIMITATION OF THE TRIBUNATE IN THE REIGN OF NERO
Tacitus in the Annals (xiii. 28, 2), in describing certain limitations on the powers of tribunes and aediles which were introduced in the year 56 A.D., mentions one respecting the tribunate, the nature of which has never yet been explained. He expresses it in the words "prohibiti tribuni jus praetorum et consulum praeripere, aut vocare ex Italia cum quibus lege agi posset"—"the tribunes were forbidden to usurp the authority of praetors and consuls, or to summon out of Italy persons liable to legal proceedings." It seems generally to be agreed that the aut here is conjunctive, not disjunctive, i.e. that there is the closest connexion between "jus praetorum et consulum praeripere" and "vocare ex Italia," and it seems that this must be the case; for Tacitus, vague as his references are in this chapter, could never have referred to anything so indeterminate as a "usurpation of the authority of praetors and consuls," without some specification of the sphere or extent of this usurpation. I shall, therefore, assume that the second clause is explanatory of the first, and that the "summons from Italy" in some way defines the "usurpation"—although, as will be seen, this assumption is by no means necessary to my main argument, which will centre round the expression "vocare ex Italia."
The remarks of commentators on this passage have been for the most part confined to expressions of bewilderment at the constitutional anomalies it displays. They make the inevitable comment that the tribune had properly no right of vocatio, although he sometimes exercised it (Varro ap. Gell. xiii. 12), and that, if even he possessed this right, it ought not to have been exercised outside the city walls. The only positive fact to be elicited from such statements is that the vocatio here referred to is some kind of personal summons; who is summoned or for what purpose are questions which they seem to regard as incapable of an answer. The opinion of an eminent writer on Roman Law, who attempts to push his analysis deeper than this, exhibits only the desperate nature of the means which have to be applied to elicit a meaning from the passage. Karlowa (Röm. Rechtsgesch. i. p. 530) suggests that the tribunes had allowed accused persons to escape summonses in criminal trials which were to take place before the Senate—the initiation of such trials belonging properly only to the consuls and praetors. He does not seem to feel the obstacles that beset the path to this conclusion. He has to take lege agere in the unusual sense of the legal fulfilment of a penal law; he does not show why Tacitus should have written "vocare ex Italia" in place of the more natural "vocare a senatu"; he fails to remember that the tribunician intercession in a criminal trial before the Senate was, even in the reign of Tiberius, becoming a power of pardon vested in the Princeps, and that its use by an ordinary tribune might bring death to the rash interceder (Tac. Ann. vi. 47; cf. xvi 26).
To discover the true sense of the passage we must seek for some sphere in which the tribunician veto continued unimpaired during the Principate; but, before doing this, we must ask whether the words used by Tacitus offer any suggestions of such a sphere. It is possible to translate the words "vocare ex Italia" as meaning "to summon from any part of Italy," "to summon, i.e., from Rome and Italy"; but I venture to think that ex Italia excludes the idea of Rome, and that the meaning of the words is "to summon from a municipal town of Italy to Rome." On what grounds such a summons might be made is shown by the words "cum quibus lege agi posset." The sphere of the summons is civil jurisdiction in the municipia as divided between the Roman and the local authorities by statute on the settlement which gradually followed the close of the social war—a settlement known to us chiefly through the lex Rubria. The whole sentence, if literally though somewhat clumsily translated, would state that "the tribunes were prohibited from summoning litigants from an Italian town in cases where a civil action at law would have been possible in that town."
On this hypothesis, the sphere of the tribune's power referred to is the very familiar one of the veto on appeal in civil jurisdiction. How frequent the appellatio to the tribunes in matters of civil jurisdiction was during the later Republic is shown by the fact that, out of the four private orations of Cicero, two—those for Quinctius and for Tullius—record the use of this appeal (Cic. pro Quinct. 7, 29; pro Tullio 16, 38, 39); and that this appellate cognisance continued during the Principate is shown by the obvious interpretation of the well-known lines of Juvenal (vii. 228)—
Rara tamen merces quae cognitione tribuni
Non egeat—
words which almost certainly mean "it is seldom that such merces does not lead to a court of appeal."
It may seem strange that the veto of these purely city magistrates should be thought of in connexion with municipal jurisdiction, until we remember the anomalous nature of the settlement made after the social war. By that settlement jurisdiction in Italy is a mere annexe to jurisdiction in Rome; technically it is jurisdiction in Rome, as is shown by Gaius (iv. 103-105), who recognises no interval between the jurisdiction of law intra primum miliarium and the jurisdiction of the imperium in the provinces. The praetor's formula and the praetor's writ run through the whole of Italy, although the praetor himself cannot quit Rome for more than ten days during his year of office (Cic. Phil. ii. 13, 31); and, if the appellate power of the tribune was to be preserved, it had to be regarded as coextensive with the imperium, of the magistrate whom he vetoed. The intercession of the tribune in municipal jurisdiction required no creation by law; it was still the veto of one city magistrate by another within the walls of Rome. If even the tribune's ordinances and his coercitio were valid without the walls, it could be explained in accordance with the prevailing fiction; but the supposition of such an extension is not absolutely necessary, as the following pictures of what probably took place in a conflict between the central and the local courts will show.
Suppose Aulus Agerius brings an action against Numerius Negidius in the town of Arpinum. The local magistrate decides to take the case. Numerius Negidius denies the competence of the court and appeals; to whom? In the first instance, probably to the colleague of the local magistrate, for the lex Rubria (c. xx.) forbids the intercession only in the case where the local court is admittedly competent. This colleague pronounces the veto, the judicium is quashed; all that the local magistrate can now do is to compel the parties to enter into a vadimonium to appear before the praetor, and the case moves to Rome. But supposing, when it has got there, that the praetor decides that it was really within the competence of the municipal magistrate and issues an order that it shall go back? Now Numerius appeals to the tribune. The veto is issued and, if the case is to be tried at all, the praetor is bound to take it.
We can also imagine a case with the same preliminaries in which Numerius appeals to the colleague of the local magistrate against the competence of the local court, but in which this colleague declines to interfere. Is Numerius left stranded? Unquestionably there must have been in such a case a further appeal to Rome, whether to the praetor or perhaps, in this case, to his higher colleague the consul. But the praetor or consul now decides against Numerius. The appeal is made to the tribune, and the decree of the consul or praetor may be quashed. The case, if it is to be tried at all, must be tried at Rome.
In both these instances the tribune pronounces his veto within the city, and yet in both, if his decision is improper, his position is one of "vocare ex Italia cum quibus lege agi posset." In both cases it is not a true use of magisterial vocatio, and thus one of the difficulties discovered by commentators in this passage is removed; it is simply an illustration of the positive effects of a negative power. Just as the tribune can by a persistent veto force the praetor to alter his formula (Cic. Acad. Prior. ii. 30, 97; pro Tullio 16, 38), so by a persistent denial of the praetor's orders to the local magistrate he can force the praetor to judge. We do not know the method by which the positive effect of the veto was in this case secured, but it is clear that some means must have been provided for having a municipal action tried at Rome when the municipal court had been declared incompetent.
But, apart from the procedure springing from these rigid rules of competence, there is some evidence of a discretionary power of what is called Romam revocatio, which was exercised and abused by magistrates towards the close of the Republic. The Fragmentum Atestinum (perhaps a part of the lex Rubria) enacts (l. 16 sq.) with reference to municipal jurisdiction—"ejus rei pequn[iaeve] quo magis privato Romae revocatio sit . . . ex hac lege nihilum rogatur," i.e. this law does not permit (or imply) a revocatio to Rome in the specified cases. We do not know what magistrate effected this revocatio. With respect to criminal jurisdiction in the provinces, it was the duty of the consuls (Cic. in Verr. i. 33, 84); and, if they exercised this power in civil jurisdiction as well, the jus consulum praeripere of our passage may refer to tribunician interference with this consular prerogative. It may be worth noting that Plutarch (Caes. 4) associates the power with the tribunes; his narrative of this trial of P. Antonius is almost unquestionably wrong, but it may be taken to show that in his belief (i.e. in a belief current during the Principate) the tribunes had something to do with summoning cases to Rome.
Hitherto we have been dealing with the praetor and the judicia ordinaria. Is it possible that the tribune also interfered with the extraordinary jurisdiction created daring the Principate, and thus with the judicial powers of the consuls? The consular jurisdiction in fideicommissa had been given to praetors by Claudius (Dig. 1, 2, 2, 32), but not the whole of it. Quintilian shows that in greater matters it still belonged to the former (Inst. Or. iii. 6, 70 "non debes apud praetorem petere fideicommissum sed apud consules, major enim praetoria cognitione summa est"). If the consuls tried the case when the fideicommissum was very large and the praetors when it was smaller, it is not altogether impossible that the municipal magistrates might have tried local cases when the sum, which was the subject of the trust, was insignificant It is thus possible that questions of the competence of local and Roman magistrates may have cropped up in reference to this question; although I should prefer to explain the jus consulum praeripere of Tacitus on the already mentioned hypotheses of some consular right of vocatio or revocatio in matters of ordinary jurisdiction.
Much must remain obscure; we cannot get at the details of the procedure. All that we can do is to show that there is evidence for the tribune's interference with the rights of magistrates in matters of municipal jurisdiction, and to suggest methods of interference. Nor can we determine the precise limitations of his authority introduced by the change of A.D. 56. But it clearly took from the tribune the final decision as to when a civil case should be summoned from a municipal town to Rome. Either his intercessio in this matter of municipal jurisdiction was abolished, or his veto was made purely suspensory. In this very chapter of Tacitus we find that the enforcement of the tribunician multa is subjected to the decision of the consul. Similarly, with reference to the power which we have discussed, the urban praetor or the consul may have been declared absolutely competent to decide, after cognisance, when a case should be tried in the local courts and when it should be reserved for the tribunals at Rome.