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because they continue in force during the Impe-rium of him who has granted them. Legitima judicia were those which were prosecuted in Rome or within the first miliarium, between Roman citizens*, and before a single judex. By a Lex Julia Judiciaria, such judicia expired, unless they were concluded within a year and six months. All other judicia were said Imperio contineri, whether conducted within the above limits before recuperatores, or before a single judex, when either the judex or one of the litigant parties was a peregrinus, or when conducted beyond the first miliarium either between Roman citizens or pere-grini. From this passage it follows that there were judicia quae Imperio continebantur, which were granted in Rome ; which is made clearer \)j what follows. There was a distinction between a judicium ex lege, that is, a judicium founded on a particular lex, and a judicium legitimum ; for instance, if a man sued in the provinces under a lex, the Aquilia for example, the judicium was not legitimum, but was said Imperio contineri, that is, the Imperium of the praeses or proconsul, who gave the judicium. The same was the case if a man sued at Rome ex lege, and the judicium was before recuperatores, or there was a peregrinus concerned. If a man sued under the praetor's edict, and consequently not ex lege, and a judicium was granted in Rome and the same was before one judex and no foreigner was concerned, it was legitimum. The judicia legitima are mentioned by Cicero (Pro Rose. Com. 5 ; Or. Part. 12) ; but it may perhaps be doubted if he uses the term in the sense in which Gaius does. It appears then, that in the time of Gaius, so long as a man had jurisdictio, so long was he said to have Imperium. Imperium is defined by Ulpian (Dig. 2. tit. 1. s. 3) to be either merum or mixtum. To have the merum Imperium is to have " gladii potestatem ad animadvertendum in facinorosos homines," a power that had no connection with jurisdictio: the mixtum Imperium is defined by him as that " cui etiam jurisdictio inest," or the power which a magistrate had for the purposes of administering the civil (not criminal) part of the law. It appears then that there was an Imperium which was incident to jurisdictio ; but the merum or pure Imperium was conferred by a lex (Dig. 1. tit. 21. s. 1). The mixtum Imperium was nothing more than the power necessary for giving effect to the Jurisdictio. There might therefore be Imperium without Jurisdictio, but there could be no Jurisdictio without Imperium. Accordingly, Imperium is sometimes used to express the authority of a magistratus, of which his Jurisdictio is a part. (Puchta, Zeitschrift fur Gesch. Rechtswissenschaft) vol. x. p. 201.)
Imperium is defined by Cicero (Phil. v. 16) to he that " sine quo res militaris administrari, teneri exercitus, bellum geri non potest." As opposed to Potestas, it is the power which was conferred by the state upon an individual who was appointed to command an army. The phrases Consularis Potestas and Consular© Imperium might both be properly used ; but the expression^ Tri-bunitia Potestas only could be used, as the Tribuni never received the Imperium. (Liv. vi. 37 ; in Veil. Paterc. ii. 2, Imperium is improperly used.) A consul could not act as commander of an army (atiin-yere rem militarem} unless he were empowered by a Lex Curiata, which i& expressed by Livy (v. 52)
thus:—" Comitia Curiata rem militarem continent." Though consuls were elected at the Comitia Cen-turiata, the Comitia Curiata only could give them Imperium. (Liv. v. 52.) This was in conformity with the ancient constitution, according to which the Imperium was conferred on the kings after they had been elected: "On the death of King Pompilius, the populus in the Comitia Curiata elected Tullus Hostilius king, upon the rogation of an interrex ; and the king, following the example of Pompilius, took the votes of the populus according to their curiae on the question of his Imperium." (Cic. Rep. ii. 17.) Both Nmna (ii. 13), and Ancus Marcius (ii. 18), the successor of Tullus, after their appointment as Reges, are severally said " De Imperio suo le'gem curiatam tulisse." It appears then that, from the kingly period to the time of Cicero, the Imperium, as such, was conferred by a Lex Curiata. On the kingly Imperium see Becker, Handbuch der Rom. Alterthumer, vol. i. part ii. p. 314, slc.
The Imperium of the kings is not defined by Cicero. It is declared by some modern writers to have been the military and the judicial power ; and it is said that the consuls also received the Imperium in the same sense ; and the reason why the Lex Curiata is specially said to confer the Imperium Militare, is that it specially referred to the consuls, and by the establishment of the prae-torship the jurisdictio was separated from the consulship. It may be conjectured that the division of Imperium, made by the jurists, was in accordance with the practice of the republican period: there was during the republican period an Imperium within the walls which was incident to jurisdictio, and an Imperium without the walls which was conferred by a lex curiata. There are no traces of this separation in the kingly period, and it is probable that the king received the Imperium in its full import, and that its separation into two parts belongs to the republican period. The Imperium, which was conferred by a lex under the republic, was limited, if not by the terms in which it was conferred, at least by usage : it could not be held or exercised within the city. It was sometimes specially conferred on an individual for the day of his triumph within the city ; and, at least in some cases, by a plebiseitum. (Liv. xxvi. 21, xlv. 35.)
The Imperium was as necessary for the governor of a province, as for a general who merely commanded the armies of the republic, as he could not without it exercise military authority (rem militarem attingere). (See Caes. B. C. \. 6.) So far as we can trace the strict practice of the Roman constitution, military command was given by a special lex, and was not incident to any office, and might be held without any other office than that of imperator. It appears that in the time;of Cicero there were doubts as to the necessity of the lex in some cases, which may have gradually arisen from the irregular practices of the civil wars, and from the gradual decay of the old institutions. Cicero, in a passage which is not very clear (Ad Fam. i. 9), refers to a Cornelia Lex according to which an individual who had received a Province ex Senatus-consulto thereby acquired the Imperium, without the formality of a Lex Curiata.
The Imperium (meruin) of the republic appears to have been (1), a power which was only exercised out of the city ; (2) a power which .