The Ancient Library

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the two great component parts of the Empire ; and one great distinction between them was this, that in Italia the towns had magi stratus with Juris-dictio ; in the provinces, except in places which had received the Jus Italicum, the governor alone had Jurisdictio. But with the growth and develope-ment of the Imperial power, a greater uniformity was introduced into the administration of all parts of the Empire ; and ultimately Italy itself was under a Provincial form of government. [CoLo-nia.] As above shown, the relation of the Governor to the province was not the same, when a city had magistrates, and when it had not; and consequently it was in this respect not the same in Italy as in the Provinces.

The constitution of Constantine was based on a complete separation of the Civil and Military power, which were essentially united in the old system of provincial government: Justinian how­ever ultimately re-united the civil and military power in the same person. The governor who had Civil power was called Rector, Judex, Jtidex Ordi-narius ; and of these governors there were three classes, Consulares, Correctores, Praesides, among whom the only distinction was in the extent and rank of their government. In the writings of the older jurists, which are excerpted in the Pandect, the Praeses is a general name for a Provincial governor. (Dig. 8. tit. 18.) The military power was given to Duces who were under the general superintendence of the Magistri Militum. Some of these Duces were called Cornites, which was originally a title of rank given to various function­aries and among them to the Duces ; and when the title of Comes was regularly given to certain Duces, who had important commands, the name Dux was dropped, and Comes became a title. This was more particularly the case with important commands on the frontier. (Cod. Theod. 7. tit. 1. s. 9.) The Comes is mentioned in Imperial Con­stitutions before the Dux, whence we infer his higher rank. (Cod. Theod. 8. tit. 7. s. 11. Ad magistros miiitum, et comites^ et duces onmes.)

It remains to add a few remarks on the exercise of the Jurisdictio, so far as they have not been anticipated in speaking of the functionaries them­selves. In Italy, and in the towns which had the privileges of Italian towns, all matters as a general rule came before the magistratus in the first in­stance ; but in certain excepted matters, and in cases where the amount in question was above a certain sum (the precise amount of which is not known), the matter came before the governor of the province in the first instance, or in Italy before the Roman Praetor. Until the middle of the fourth century A. D. all matters in the Provincial towns, which had not magistratus, came before the governor in the first instance ; but about this time the Da-fensor acquired a power, like that of the magis­tratus of the privileged towns, though more limited. The old form of proceeding in civil matters has been explained elsewhere [JuDEx] : the magis­tratus empowered the Judex to make a condem-natio ; and this institution was the Ordo Judi-ciorum Privatorum. That which the magistratus did without the aid of a Judex was Extra Ordi-nem. [!ntehdictum.] The same institution pre­vailed in those towns which had a magistratus, for it was of the essence of a Magistratus or of Juris­dictio to name a Judex. (Lex Gall. Cisalp. c. 20.) Under the emperors, it gradually became common



for the magistratus to decide various cases without the aid of a Judex, and these are the Extraordi-nariae Cognitiones spoken of in the Digest (50. tit. 13). In the reign of Diocletian the Ordo Judi-ciorum, as a general rule, was abolished in the pro­vinces and the pedanei judices (hoc est qui negotia humiliora disceptent) were only appointed by the praeses when he was very much occupied with business, or for some trifling matters [judex pedaneus] ; (Cod. 3. tit. 3. s. 2) ; and in the time of Justinian the institution had entirely dis­appeared (Inst. 4. tit. 15. s. 8), and, as it is con­jectured, both in Rome and the Municipia.

Bv the aid of the Judicos, two Praetors were

v "

able to conduct the whole judicial business between citizens and Peregrini at Rome ; and by the aid of the same institution, the judicial business was conducted in the Jurisdictiones out of Rome. In no other way is it conceivable how the work could have been got through. But when the Ordo Jiidiciorum was abolished, the difficulty of trans­acting the business must have been apparent. How this was managed, is explained by Savigny, by re­ferring to the growth of another institution. Even in the time of the Republic, the Praetors had their legal advisers, especially if they were not jurists themselves ; and when all the power became con­centrated in the Caesars, they were soon obliged to form a kind of college, for the dispatch of busi­ness of various kinds and particularly judicial matters which were referred to the Caesar. This college was the Caesar's Consistorium or Audito­rium. The Provincial governors had their body of assessors, which were like the Caesar's Audito­rium (Dig. 1. tit. 2*2) ; and it is a conjecture of Savigny, which has the highest probability in its favour, that the new institution was established in the municipal towns and in the provincial towns, so that here also the magistratus and the Defensor had their assessors.

Besides the Jurisdictio, which had reference to Litigation, the so-called Contentiosa Jurisdictio, there was the Voluntaria. Matters belonging to this Jurisdictio, as Manumission, Adoption, Eman­cipation, could only be transacted before the Magis­tratus Populi Romani, and, unless these powers were specially given to them, the Municipal Magis­trates had no authority to give the legal sanction to such proceedings ; though in the old Municipia it is probable that the power of the magistratus was as little limited in the Voluntaria as in the Contentiosa Jurisdictio. In the Imperial period it was usual to perform many acts before the public authorities, and in the three cases of large Gifts, the making of a Will, and the Opening of a Will, it was necessary for these acts to be done before a public authority. Such acts could be done before a provincial governor ; and also before the Curia of a city in the presence of a Magistratus and other persons. (Compare the Constitution of Hono -rius, Cod. Theod. 12. tit. 1. s. 151, and a Novel ol' Valentinian, Nov. Theod. tit. 23, with Savigny's remarks on them.)

Though the general administration of the Roman provinces is adequately understood, there are dif­ferences of opinion as to some matters of detail ; one cause of which lies in the differences which actually existed in the administration of the pro­vinces and which had their origin in the different circumstances of their conquest and acquisition, and in the diversity of the native customary law in

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