DEFENSOR CIVITA´TIS
DEFENSOR CIVITA´TIS The oppression of the lower
orders of the people by the more powerful, which was prevalent throughout
the Roman empire in the fourth century, owing to the general weakness and
corruption of local government, led to the institution of a new municipal
officer, called
defensor civitatis, plebis,
loci, in Greek
ἔκδικος, whose
function it was to defend the rights of the inhabitants of a civitas; the
regio or district of a civitas including all the vici within a certain
radius as well as the principal town.
An edict of the Emperor Valentinian I. issued in 364 A.D. to Probus,
praefectus praetorio, first established this office, but only for the
province of Illyricum. By this edict the governor of the province was
directed to choose a trustworthy person, not being a curialis, qualified by
high official rank or by practice as an advocate, for each city of the
dioceses subject to him, in order that the plebs of all Illyricum might be
protected by means of public guardians (
patroni) from injuries at the hands of the powerful (Cod. Theod.
1.29, 1).
In the next year, 365 A.D., Valentinian extended
the office of defensor to all parts of his empire, including Italy, but with
some changes in its constitution. Each civitas acquired the right of
choosing a defensor from its most eminent and independent citizens, who were
bound to serve the office in a prescribed order. Curiales or decuriones, the
class from which magistrates were taken, could not hold this office.
The election of a defensor was made by the whole civitas, and not, as in the
case of magistrates, by the curia alone, the choice of the township had to
be confirmed by the emperor or his deputy, the praefectus praetorio. At
first a defensor held office for five years, but the term was reduced by
Justinian to two years. The protection of the inhabitants of his district
from oppression of all kinds, and especially from that of the imperial
governor and local authorities, was always considered to be the main object
of a defensor civitatis ( “ut imprimis parentis vicem plebi
exhibeas,” Cod.
Just. 1.55,
5). Moreover it was his business to prevent the
taxes being made too burdensome. For the purpose of prosecuting oppressors,
he had free access to the court of the governor, and, if necessary, he could
bring his complaints against the governor or other officials before the
emperor or ministers of the imperial government. The defensor acted as judge
in civil cases of minor importance; his jurisdiction was first limited by
Justinian to fifty solidi, and afterwards extended by that emperor to three
hundred solidi. He had the right of appointing guardians and of registering
many formal proceedings: as,
e.g., the declaration
of gifts above a certain amount (
donatio) and
the making of wills. Justinian gave him an exceptor or clerk and executive
officials (
officiales).
Not being a magistrate, he had originally no power of inflicting any
punishment ( “nullas infligant multas, nullas exerceant
quaestiones,” Cod. Theod. 1.29, 7), but subsequently a petty
jurisdiction was conferred on him. In course of time, as new duties were
attached to the office, the position of a defensor came to resemble that of
a magistrate; in rank, however, he had precedence of magistrates.
The institution of defensor civitatis failed to effect the object for which
it was established and fell into contempt. The Emperor Majorian in 458 A.D., and the Emperor Justinian in 535 A.D., tried to revive its importance by
legislation, but unsuccessfully. (Cod. Theod. 1.29 (11); Cod.
Just. 1.55; Nov. Majoriani, 3; Nov.
Just. 15; Bethmann-Hollweg,
Römische
Civilprocess, 3.107; Savigny,
Geschichte des
röm. Rechts, 1.23; Schmid,
de Civit.
defensore; Desjardins,
de Civit.
defensore.）
[
E.A.W]
