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p655 Jurisdictio

Article by George Long, M.A., Fellow of Trinity College
on p655 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

JURISDICTIO. The "officium" of him "qui jus dicit" is defined as follows (Dig. 2 tit. 1 De Jurisdictione):— "Bonorum possessionem dare potest, et in possessionem mittere, pupillis non habentibus tutores constituere, judices litigantibus dare." This is the general signification of the word Jurisdictio, which expresses the whole "officium jus dicentis". The functions which are included in the "officium jus dicentis" belong either to the Jurisdictio (in its special sense), or to the Imperium Mixtum, or they are those which are exercised by virtue of some lex, senatusconsultum, or authority delegated by the princeps, as the "Tutoris datio" (Dig. 26 tit. 1 s6). The Jurisdictio of those magistratus who had no Imperium, was limited in consequence of not having the Imperium, and therefore was not Jurisdictio in the full meaning of that term [Imperium, Magistratus.] Inasmuch as Jurisdictio in its special sense, and the Imperium Mixtum, are component parts of Jurisdictio in its wider sense, Imperium may be said to be contained in or incident to Jurisdictio (imperium quod jurisdictioni cohaeret, Dig. 1 tit. 21 s1). Sometimes Imperium is viewed as the term which designates the full power of the magistratus; and when so viewed, it may be considered as equivalent to Jurisdictio, in its wider sense, or as comprehending Jurisdictio in its narrowest sense. Thus Imperium may be considered as containing or as contained in Jurisdictio, according as we give to each term respectively its wider or its narrower meaning (Puchta, Ueber den Inhalt der Lex Rubria, Zeitschrift, vol. X p195). The Jurisdictio was either Voluntaria or Contentiosa (Dig. 1 tit. 1.6 s2). The Jurisdictio Voluntaria rendered valid certain acts done before the magistratus, for which certain forms were required, as adoption and manumission. Thus adoption, properly so called, could take place before the praeses of a provincia (Gaius, I.100); but in Rome it took place before the praetor, and was said to be effected "imperio magistratus". The Jurisdictio Contentiosa had reference to legal proceedings before a magistratus, which were said to be in jure as opposed to the proceedings before a judex, which were said to be in judicio. The parties were said "Lege agere": the magistratus was said jus dicere or reddere. Accordingly "magistratus" and "qui Romae jus dicit" are equivalent (Cic. ad Fam. XIII.14). The functions included in Jurisdictio in this, its special sense, were the addictio in the legis actiones, the giving of the formula in proceedings conducted according to the newer process, and the appointment of a judex. The appointing of a judex, "judicis datio," was for the purpose of inquiring into the facts in dispute between the parties. The words of the formula are "Judex esto," &c. (Gaius, IV.47); and the terms of the edict in which the praetor declares that he will give a judex, that is, will recognise a right of action, are "Judicium dabo" (Cic. pro Flacc. 35). Addictio belongs to that part of jurisdictio by which the magistratus himself makes a decree or gives a judgment; thus in the case of the In Jure Cessio, he is said "rem addicere" (Gaius, II.24). Addicere is to adjudge a thing or the possession of a thing to one of the litigant parties. In the case of furtum manifestum, inasmuch as the facts would be certain, there was an addictio (Gaius, IV.189).

Other uses of the word addictio are collected in Facciolati.

It is with reference to the three terms, Do, Dico, Addico that Varro (de Ling. Lat. VI.30) remarks that the praetor must use one of these words "cum lege quid peragitur." Accordingly, those days were called Nefasti on which no legal business could be done, because the words of legal force could not be used (compare Ovid, Fast. I.47; Macrobius, Saturn. I.16).

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