designation of an existing official, denotes a magistrate, superior or inferior, and not a judex privatus or juryman.

The judicial system in the middle of the sixth century was as follows: small litigations were tried by the municipal magistrates, from whom there was an appeal to the praeses provinciae (proconsul or legatus Caesaris): the praeses was himself the judge of first instance in important suits, and the appeal from his decisions was to the Praefectus Praetorio 2. Thus the contentious jurisdiction of the duumviri and defensores was but small; but their voluntary jurisdiction was of great extent and importance3.

And now comes theimportant question, How could the praeses discharge his onerous duties when he was deprived of the assistance of the judices privati, who under the formulary system had relieved him from the most tedious part of suits, viz. the examination into evidence? The same question may also be asked with reference to the duumviri and defensores. As to the praeses, whose case we will consider first, the answer is, that he was provided with two most valuable bodies of assistants, first, the assessores or conciliarii; second, the judices pedanei.

The assessores were a body of skilled lawyers, receiving a salary from the government, and assigned as assistants to the provincial governor. They were not to be natives of the province in which they acted; but this rule was applicable only to the assessors of a praeses, and not to those of a curator reipublicae, i.e. a duumvir or defensor. Their duties are summed up by Paulus in these words: "omne officium assessoris in his fere causis constat in cognitionibus, postulationibus, libellis, edictis, decretis, epistolis"." In the cognitiones and postulationes they do not seem to have sat apart from the praeses, but to have been present with him in his court, and to have aided him with their advice. In the other matters above-mentioned their assistance would be even more valuable, as they could draft the documents named and then present them to the governor for his signature, to which practice Constantine alludes: "praesides non per assessores sed per se subscribant libellis 8." Since the consiliarii were expressly forbidden to hear cases in the absence of the praeses, their aid, though important in preventing him from falling into mistakes, would not relieve him from the necessity of hearing causes personally, and so, when overburdened with business, he had recourse to the other class of assistants allowed him by law, viz. the judices pedanei,

A judex pedaneus was a person to whom the praeses delegated his jurisdiction; and in the time of Diocletian the praeses could only thus remit cases for hearing by another when he was oppressed by an actual accumulation of business 10; but afterwards under Julian delegation was allowed as a matter of course in certain actions of inferior importance 11, and could still be adopted as a measure of relief from overwork when larger causes were numerous in the provincial court.

11

1 The praeses of Egypt was styled praefectus Augustalis; D. 1. 17: the praesides of the four Italian provinces, and of Alexandria, were called juridici; D. 1. 20, Capitol. Marco, 2. Praeses is sometimes used as synonymous with legatus Caesaris and in opposition to proconsul; but more usually as a general appellation comprehending all varieties of provincial governors, and equivalent to judex ordinarius or rector. D. 1. 18. 1.

2 C. 7. 62. 32.

3 D. 50. 4. 18: C. Theod, 11. 31. 1. 3.
Savigny discusses the extent of the volun-
tary jurisdiction of the municipal magis-
trates at considerable length in his Histoire
du Droit Romain au Moyen Age, ch. II.
4 D. 1. 22. 1.

5 D. 1. 22. 4 and 6.
6 D. 1. 22.6.
7 D. 1. 22. I.

8 C. I. 51. 2.

C. 1. 51. 13: Nov. 60. 2.

10 C. 3. 3. 2.

11 C. 3. 3. 5.

And here we must make a short digression to explain precisely what is the nature of the jurisdiction which the praeses could either as of course or on emergency delegate.

Jurisdiction in its wider sense denotes the whole measure of a magistrate's authority; and may be subdivided into jurisdictio, properly so called, and imperium. Jurisdictio, in this narrower sense, is equivalent to notio, and denotes the right of hearing a suit; imperium, on the other hand, signifies jus coercitionis et coactionis, i.e. the power of punishing and restraining; and may be divided into merum and mixtum, the former being separable from notio, the latter inseparable1. Thus imperium merum is the ability to carry out a sentence pronounced in a court of justice; imperium mixtum is the right to compel attendance of the parties and their witnesses, to main. tain order in the court, &c., &c.2; and so also the ability to grant bonorum possessio, restitutio in integrum, &c., are instances of imperium mixtum, for these grants would be utterly nugatory if the magistrate himself could not at once enforce them".

The jurisdiction of a magistrate, taking "jurisdiction" in its widest sense, was either ordinary or extraordinary, i. e. either possessed jure magistratus or conferred on him by some special enactment.

These distinctions are important in their bearing on our present topic, for we find on referring to the Digest that the following rules were well recognized:

1. That jurisdictio extraordinaria could not be delegated1;

2. That merum judicium could not be delegated";

3. That notio might be delegated, either generally or with reference to certain persons and certain matters 6;

4. That imperium mixtum of necessity accompanied a lawful delegation

of notio".

In those cases where delegation of jurisdiction was allowed, it was conferred on a judex pedaneus, if conferred at all. Some writers have maintained that this judex pedaneus was but a variety of judex privatus, special to the Provinces; basing their conclusion on the fact that such a functionary is mentioned by jurists who lived before judicia extraordinaria became universal. We should rather suggest that as judicia extraorainaria were gradually becoming prevalent long before Diocletian's decree was issued, the necessity of deputy-judges was felt and the want supplied whilst the ordinary and extraordinary systems of judicature were co-existent. It is, at any rate, difficult to believe that the judex pedaneus was nothing but a private individual before the suppression of the ordo judiciorum, and a magistrate immediately afterwards. And yet it is perfectly clear he was a magistrate in later days, having some of the functions of the ancient

1 See Pothier's notes on D. 2. 1.

2 Although the words jurisdictio and imperium are generally thus defined when the jurists bring them into contrast: yet it is as well to call attention to the fact that Ulpian sometimes used imperium in the sense of plena jurisdictio, or the power of a superior magistrate to adjudicate in all suits; and jurisdictio in the sense of minus plena jurisdictio, or the power of the municipal magistrates to deal only with

suits of minor importance. See examples of this use in D. 2. 1. 4; D. 50. 1. 26.

3 See D. 2. 1. 3.
4 D. 1. 21. 1. pr.
5 D. 1. 21. I. I.

6 D. 2. 1. 16.

7 D. 1. 21. I. 1: D. 1. 21. 1. 5. To prevent misconception, we here mention that restitutio in integrum, and many varieties of bonorum possessio, could not be matters of delegation, because the notio thereof was extraordinaria,

praetor, as well as all those of the ancient judex: a postulatio, for instance, could be addressed to him1, a vocatio in jus be returnable in his court2; both of them under the old system appertaining to the Praetor and not to the judex, proceedings, that is to say, in jure and not in judicio. In fact the very few passages, in which the judex pedaneus is mentioned by authors who wrote before the suppression of the ordo judiciorum, either leave his functions altogether undefined, or indicate that they were in some sort magisterial; in one of them, for instance, he is spoken of as appointing a tutor, an act clearly not appertaining to a judex privatus3.

Zimmern is of opinion that the judices pedanei were appointed from amongst the curiales of the towns within the province: his argument being (1) that the curiales had cognizance of trifling matters, and that the judices pedanei are described as functionaries "qui humiliora negotia disceptant 4;" (2) that in D. 26. 5. 3 it is said that tutors can be given by all municipal magistrates, whilst in the very next sentence, D. 26. 5. 4, it is added that neither the Praetor nor a judex pedaneus can appoint himself tutor; the obvious conclusion being that a judex pedaneus is a municipal magistrate. The second proof seems most conclusive; and as to the first we would merely suggest that Zimmern should substitute duumviri for curiales; unless he means to advocate the view entertained by Savigny that the duumviri, like the praesides, were oppressed with the amount of business devolving on them, and occasionally deputed the curiales to act in their stead3. Still we must not suppose that when the praeses conferred a delegated jurisdiction (jurisdictionem mandavit) on the duumviri, they could in their turn delegate the business to the curiales; for we are told expressly that a delegate cannot sub-delegate; but they could delegate their own proper jurisdiction in minor matters, and act as deputies for the praesides in the more important cognizance of the latter. But though we scarcely agree with Zimmern that the curiales had any original cognizance of their own, we accept his statement that the judices pedanei, in the sense of deputy-judges, were not always duumviri or defensores, but occasionally ordinary members of the curia".

Hence, to sum up our conclusions, the rules of judicature in Justinian seem to have been these:

A. The praeses retained to himself the whole executive power, when the judicial and executive functions admitted of separation; i. e. the whole imperium merum was centred in him.

B. In suits of an important character, he could either judge personally with the help of his assessors, or could delegate the case to a duumvir, defensor, praefectus or curialis as judex pedaneus.

If he adopted the former plan, he must hear the case himself up to litis contestatio, but after that stage was reached he might allow his assessors to sit alone, provided only he reheard the case finally after the assessors had prepared it for him, and gave a decision in person. If he employed a judex pedaneus, the latter managed the business independently, judging

both as to law and fact, and pronouncing a definite sentence; from which, however, there was an appeal to the praeses1.

The judex pedaneus could not sub-delegate; neither could he call in the aid of assessors 2.

C. In less important suits the duumviri, praefectus or defensor had the original jurisdiction, which they could exert by the same methods which have been already described in the case of the praeses. Their assessors were the curiales, for the rule that assessors must be foreigners did not apply to municipalities; and their judices pedanei were also the curiales.

1 C. 3. 3. 3.

2 D. 2. 1.5: D. 1. 21. 5. pr.: D. 1. 21. 2. pr.

3 D. 1. 22. 3.

INDEX.