A-dictionary-of-greek-and-roman-antiquities-william-smith

had Jurisdictio. But with the growth and developement
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
magistratus, 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 how
ever ultimately re-united the civil and military
power in the same person. The governor who had
Civil power was called Rector, Judex, Judex Ordinarius
; 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 Comites, which was
originally a title of rank given to various function
aries 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 Con
stitutions before the Dux, whence we infer his
higher rank. (Cod. Theod. 8. tit. 7. s. 11. Ad
magistros militum, ft comites, et duces omnes.)
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 them
selves. 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 in
stance ; 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 De
fensor acquired a power, like that of the magis
tratus of the privileged towns, though more limited.
The old fonn of proceeding in civil matters has
been explained elsewhere [Judex] : the magis
tratus empowered the Judex to make a condemnatio
; and this institution was the Ordo Judiciorum
Privatorum. That which the magistratus
did without the aid of a Judex was Extra Ordinem.
[Intkrdictum.] The same institution pre
vailed in those towns which had a magistratus, for
it was of the essence of a Magistratus or of Juris
dictio to name a Judex. (Lex Gall. Civilp. c. 20.)
Under the emperors, it gradually became common ;
PROVINCIA. PROVINCIA.
069
the two great component parts of the Empire ; and for the magistratus to decide various cases without
one great distinction between them was this, that the aid of a Judex, and these are the Extraordjnariae
Cognitiones spoken of in the Digest (SO.
in Italia the towns had magistratus with Jurisdictio
; in the provinces, except in places which tit. 13). In the reign of Diocletian the Ordo Judi-
had received the Jus Italicum, the governor alone
ciorum, as a general rule, was abolished in the pro
vinces 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 Ibr some trifling matters [Judex
Pbdanbus] ; (Cod. 3. tit 3. s. 2) ; and in the
time of Justinian the institution had entirely dis
appeared (Inst. 4. tit 15. s. 8), and, as it is con
jectured, both in Rome and the Municipia.
By the aid of the Judices, two Praetors were
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
Judiciorum was abolished, the difficulty of trans
acting the business must have been apparent. How
this was managed, is explained by Savigny, by re
ferring 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 con
centrated in the Caesars, they were soon obliged
to form a kind of college, for the dispatch of busi
ness of various kinds and particularly judicial
matters which were referred to the Caesar. This
college was the Caesar's Consistorium or Audito
rium. The Provincial governors had their body of
assessors, which were like the Caesar's Audito
rium (Dig. 1. tit 22) ; 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, Eman
cipation, could only be transacted before the Magis
tratus Populi Romani, and, unless these powers
were specially given to them, the Municipal Magis
trates 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
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 llonorius,
Cod. Theod. 12. tit. 1. s. 151, and a Novel of
Valentinian, Nov. Theod. tit 23, with Savigny 'b
remarks on them.)
Though the general administration of the Roman
provinces is adequately understood, there are dif
ferences of opinion as to some matters of detail ;
one cause of which lies in the differences which
actually existed in the administration of the pro
vinces and which had their origin in the different
circumstances of their conquest and acquisition,
and in the diversity of the native customary law la