JURISDI´CTIO
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.)
[
E.A.W]
