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JURISDI´CTIO is the technical term to denote the power which belonged to a Roman king and magistratus of administering justice in suits between private persons (inter privatos); that is, in civil as opposed to criminal causes. This right was part of the imperium or supreme executive power of a Roman magistratus (cf. Dig. 2, 1, 3: “imperium cui jurisdictio in est” ); accordingly jurisdictio (jus dicere) belonged to the officium of all the higher magistrates, who were invested with imperium, and was confined to these magistrates [IMPERIUM]. Thus the plebeian magistrates and the inferior magistrates of the Roman people, as the quaestor, did not possess it. An exception, however, was made to this principle in the case of the curule aediles, who were given jurisdictio in matters relating to the market [AEDILES]. Moreover municipal magistrates had jurisdictio without imperium (cf. Dig. 50, 1, 26: “quae magis imperil sunt quam jurisdictionis magistratus municipalis facere non potest” ), and it was perhaps for the purpose of defining the [p. 1.1040]power of such magistrates that the term jurisdictio had a confined as well as a more general sense. The origin of the word jurisdictio is to be traced to the legis actio procedure of early times, the function of the magistratus in an action under it consisting in (1) jus dicere, i.e. defining the issue between the parties, and declaring it in formal words, which was jurisdictio in its earliest sense (Voigt, Zwölf Taf. 1.54); (2) judicium dare, or addicere, the appointing of a judex for the purpose of inquiring into the facts in dispute between the parties; (3) rem addicere. Addictio belongs to that part of jurisdictio by which the magistratus himself makes a decree or judgment, by which he assigns. a right to one of the parties to a suit: thus in the case of in jure cessio he is said rein addicere (Gaius, 2.24). It is with reference to the three words do, dico, addico, that Varro (L. L. 6.30) remarks that the praetor must use one of these words, “cum lege quid peragitur,” i. e. when a legis actio is being carried on. (As to these tria verba solemnia, see E. Hartmann, Der Ordo Judiciorum, p. 17; Huschke, Das alte römische Jahr, p. 197; Karlowa, Der röm. Civilprocess, p. 275, &c., cited by Keller, Civilpr. ed. Wach.) Accordingly those days are called nefasti in which jurisdiction could not be executed, because the words of legal force could not be used (compare Ovid, Ov. Fast. 1.47; Macrob. Saturn. 1.16). The place of jurisdiction at Rome was the forum.

When the term jurisdictio is used in a strict sense, it signifies the judicis datio, or right of a magistratus to appoint a judex (cf. Dig. 2, 1, 3: “jurisdictio est etiam judicis dandi licentia” ). The appointment of a judex was, however, only an act of jurisdictio in this strict sense, when it was done according to the regular course of procedure, as is illustrated by the division of actions into judicia legitima and judicia quae imperio continentur (Gaius, 4.103, Poste's comm.). Judicia legitima, which belonged to jurisdictio, were actions prosecuted within Rome or within the first miliarium before a single judge (unus judex). Actions tried before recuperatores [JUDICIUM], or even before a single judex, if the judex or one of the parties was an alien, or beyond the first milestone, whether the parties were citizens or aliens, were judicia quae imperio continentur. Thus, while imperium when used in a general sense includes jurisdictio, every act of jurisdictio being an act of imperium, that part of the imperium which is not jurisdictio is imperium in the narrower sense in which it is opposed to jurisdictio. This opposition between jurisdictio and imperium relates to the formal character of the acts of a magistratus, and not to the subjects with which he dealt. If he took cognisance of a civil cause acting according to established principles and forms, he exercised his jurisdiction while, on the other hand, if he interfered in a more arbitrary way simply by virtue of his supreme power of command, it was an act of imperium. When he gave interdicts and other legal remedies by this latter means, he was said to be exercising imperium mixtum, which is of the same nature as jurisdictio; when the exercise of imperium had no relation to jurisdictio, it was imperium merum. Some acts of the magistratus were not attributed either to his imperium or jurisdictio, but to some special lex, senatusconsultum, or imperial constitution, as the tutoris datio (cf. Dig. 26,. 1, 6.2: “Tutoris datio neque imperii est: neque jurisdictionis, sed ei soli competit, cui nominatim hoc dedit, vel lex vel SS.C. vel princeps” ). The term jurisdictio is, however, very commonly used in a wide sense, so as to signify the power of the magistratus to grant civil remedies of any kind. Ulpian notices that the term is improperly used in the edict in reference to the cognitio extraordinaria, whereby the magistratus decided certain cases himself by a decretum (Dig. 42, 1, 5, pr.: “melius scripsisset: cujus de ea re notio est” ).

The jus edicendi was used by the praetor for the purpose of administering his jurisdictio, and by this means he created many new remedies. Hence jurisdictio sometimes signifies the right of the praetor to declare law, and so, to establish rights by his edict (cf. Inst. 4.6, § § 7, 8: “actiones, quae praetor ex sua jurisdictione introduxit” ). Praetoria jurisdictio, i.e. edictal law, is found in opposition to jus legitimum (Cod. 6, 58, 15, pr.).

Jurisdictio was either voluntaria or contentiosa (Dig. 1, 6, 2). Jurisdictio voluntaria rendered valid certain acts done before the magistratus, such as adoption, emancipation, and manumission which involved a collusive action [CESSIO IN JURE], of the form of early procedure called legis actio; hence the phrase, magistratus apud quem legis actio est for a magistrate with jurisdictio (Gel. 5.19, 3; Dig. 1,. 7, 4, 16, 3; Cod. 8, 48, 1). Jurisdictio contentiosa had reference to contentious proceedings before a magistratus, which were said to be in jure as opposed to proceedings before a judex, which were said to be in judicio.

Magistratus appointed especially for military purposes, such as the dictator and magister equitum, could only exercise jurisdictio voluntaria, nor could jurisdictio contentiosa be exercised by a Roman magistratus outside Rome (cf. the phrase qui Romae jus dicit, which is equivalent to magistratus: Cic. Fam. 13.1. 4); and thus, as Mommsen remarks, jurisdictio was separated from imperium militiae. The province of exercising jurisdictio in contentious proceedings was assigned to the office of praetor, when this magistrate was instituted; the consuls being prevented by statute from interfering in matters relating to jurisdictio, except in the negative form of intercession [PRAETOR]. Jurisdictio contentiosa could be the subject of delegation (mandate jurisdictio); thus the praetor delegated jurisdictio to praefecti. The propraetores and pro-consules exercised an independent jurisdiction in the provinces. (Dig. 2, 1; Bethmann-Hollweg, Civilprocess, 2.70; Mommsen, Staatsr. 1.182 ff., 2.1, 210 if.)


hide References (4 total)
  • Cross-references from this page (4):
    • Cicero, Letters to his Friends, 13.1.4
    • Gellius, Noctes Atticae, 5.19
    • Gellius, Noctes Atticae, 5.3
    • Ovid, Fasti, 1
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