BOOK IV. • § 30. Gai. iv. 106-7. Cf. ib. iii. 83; i. 184; Ulp. xi. 27; § 78; and Vat. fgm. 47. In the judicial authority of the magistrates entrusted with the administration of the Law (officium ius dicentis) are distinguished (a) 'iurisdictio' in the narrower sense, that is, the ordinary administration of the Law, as a rule amounting to arrangement of a iudicium in formal suits under Private Law (iudicem iudicare iubere); (3) 'imperium' (mixtum), that is, the higher magisterial arbitrary authority of command and executive - cautiones, missiones (including the bonorum possessio), in integrum restitutio"-which belongs to the municipal magistrates only in a limited degree; (y) legis actio s. iurisdictio voluntaria,' that is, formal magisterial co-operation for legalisation of certain transactions (manumissio, adoptio, in iure cessio), which the municipal magistrates do not as a rule possess. In respect of their significance and operation in Procedure, the Courts presided over by a Roman magistrate in formulary proceedings are divided into: 'legitima iudicia,' Courts conformable to the purposes of the old ius civile, and dependent upon the old Roman procedure, and 'iudicia imperio continentia,' which were Courts resting upon the absolute power of magistrates. The practical significance of this consists principally: (1) in the latter iudicia being naturally determined with the office (year of office) of the magistrate who had instituted them, whilst the originally unlimited continuance of the legitima iudicia was first limited by the lex Iulia iudiciaria (so-called Limitation of Actions); (2) In their different operation as regards the litis contestatio. Gai. iv. §§ 104-5: Legitima sunt iudicia, quae in urbe Roma vel intra primum urbis Romae miliarium inter omnes sives Romanos sub uno BOOK IV. iudice accipiuntur; eaque e lege Iulia iudiciaria, ... The The competence of the Court in the particular case is governed by the personality of the defendant. personal competence of the Court is decided (1) by the muncipal Law of the person in a 1 Iudicia are legitima which are heard before a single iudex in the city of Rome, or within the first milestone from the city of Rome, being between Roman citizens; and these, according to the l. Iulia iudiciaria, come to an end unless they have been decided within a year and six months. This is what is meant by the common saying, that by the l. Iulia iudiciaria an action dies in a year and six months. § Depending upon the imperium (of the Praetor) are those before recuperatores, and those which are heard before a single iudex, in which the iudex or a litigant is a foreigner. In the same position are all actions which are heard beyond the first milestone from the city of Rome. The actions are said to depend upon the imperium, because they are effectual only so long as the Praetor who authorised them shall retain office.-§ Moreover, an action may indeed be derived from a lex and yet not be legitimum, and conversely, it may not be derived from a lex and yet be legitimum; for . . . if in a case where an action is allowed us by the Praetor's edict the trial be at Rome before a single iudex and all the parties are Roman citizens, the action is legitimum. 'legitimum 'almost nntranslatable': Muirhead on Gai. iii. § 180. BOOK IV. a Sce Westlake, pp. 25, 192, 8QQ. Ibid. pp. 259, sqq. • Cf. Bluntschli, Theory of the State,' pp. 195, sqq. (E. Tr.). community (forum originis); after conferment of citizenship upon all Italy the citizens of the municipia had a double forum originis, at home and in Rome, where however an action could alone be maintained in the case of absence (ius revocandi domum).a Ulp. : Municipem aut nativitas facit, aut manumissio, aut adoptio.-1. I pr., ad munic. 50, 1.' Mod. Roma communis nostra patria est.1. 33 eod.2 (2) By continuous residence in a community (forum domicilii).Þ Imp. Diocl.: Cives quidem origo manumissio adlectio adoptio, incolas vero domicilium facit. Et in eo loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus, si nihil avocet, unde cum profectus est, peregrinari videtur, quo si rediit, peregrinari iam destitit.-C. 10, 40 (39), 7.3 Gai. Incola et his magistratibus parere debet apud quos incola est, et illis apud quos civis est; . . . municipali iurisdictioni in utroque municipio subiectus est.-1. 29, ad munic. 1 A man is made a burgher either by birth, or enfranchisement, or adoption. 2 Rome is our common fatherland. 3 Citizens are constituted by origin, manumission, election or adoption, but inhabitants by residence. And there is no doubt that every one has his residence where he has set up his altar and his establishment, with the intention of not again departing therefrom, if nothing call him away; and when he has left such place, he is considered to be a foreigner, and when he has returned, he has ceased to be a foreigner. An inhabitant must both render obedience to that magistracy amidst which he is an inhabitant, and to that amidst which he is a citizen; and in both municipalities he is subject to the municipal jurisdiction. § 189. IUDICES. In Rome either standing colleges of judges, or, as was the rule, single judges whom the magistrate appointed as jurors for the particular suit, acted as judges in iudicio.a are The former are BOOK IV. Chapter 1. a § 187. (1) The 'Decemviri iudices s. litibus iudicandis magistratus' (since the seventh century elected by the People) who were originally competent for actions of freedom, but to whom was transferred by § Augustus the conduct of the Centumviral court (centumviralem hastam cogere). (2) The primeval Court of the Centumviri had in republican times consisted of 105 persons, three chosen out of each of the 35 tribes. It is questionable whether in the most ancient time it was not out of the 30 curiae, to which had to be added 10 members of the Senate, by lot as decemviri, and at the same time 'decem primi' of the collegium. From the time of Augustus, however, it consists of 180 members, and is divided into four independent sections (hasta, consilium, tribunal, iudicium). They were at first competent for the Vindicationes but Perhaps with principally, and later on exclusively, for suits of inheritance, especially upon the validity or affirmation of testaments.d с The single judges appointed by the magistrate (1) IUDICES (privati) or ARBITRI. These were in the beginning taken from the Senators, then indeed from the Knights; but in civil causes a list of jurors had to be set up by the Praetor (album iudicum selectorum) from the time of Augustus, who by his leges Iuliae iudiciariae transferred the judicial office (munus iudicandi) to three decuriae iudicum,' formed for criminal and civil causes, possessed of an equestrian fortune (quatringenarii), and a fourth decuria of the 'ducenarii' appointed for minor restriction to res mancipi. d Querela inofficiosi; § 169. BOOK IV. Chapter 1. § 7. civil causes, to which Caligula further added a fifth decuria. The selection of jurors in the particular case as a rule was effected by agreement of the parties, in which the proposal (iudicem ferre) belonged to the plaintiff, whilst the defendant possessed the rejection upon oath of the person proposed (iniquum eiurare). The person chosen was appointed judge by the magistrate (iudicis datio s. addictio) and was sworn. (2) RECUPERATORES are originally the arbitrators in courts of foreigners a constituted by international agreement; later on they appear in the most diverse legal matters of Roman citizens amongst themselves. Three or five were regularly appointed, and in the particular case were chosen by lot (sortitio) and presentation by the magistrate, rejection (reiectio) by the parties being permitted. Fest. h. v. (p. 274"): Reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitates peregrinas lex convenit, quomodo per reciperatores reddantur res reciperenturque, resque privatas inter se persequantur.' In the Provinces the judges were chosen by the governor, as a rule, from the Roman citizens domiciled at the place of the Court (conventus civium Romanorum), but also in certain cases, according to the provincial constitution, from the provincials. $ 190. COURT-DAYS. As regards the days appointed in Rome for judicial proceedings, we have to distinguish for republican times 1 A reciperatio, according to G. A., is when a lex is agreed upon between a people and kings and nations and foreign States, as to the manner in which things shall be given and received back through reciperatores, and how they shall conduct private matters between themselves. |