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p964 Provincia

Article by George Long, M.A., Fellow of Trinity College
on pp964‑970 of

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

PROVINCIA. The original meaning of this word seems to be "a duty" or "matter entrusted to a person," as we see in various passages. The word is an abbreviated form of Providentia, as Hugo has suggested. All other proposed derivations ought to be rejected. In the Medicean MS. of Livy (XXI.17), the word is written Provintia, and also in Ulpian, Frag. XI.20, ed. Böcking. That the word originally had not the signification of a territory merely appears from such expressions as Urbana Provincia (Liv. XXXI.6); and the expression Urbana Provincia was still used, after the term Provincia was used to express a territory beyond Italy which had a regular organization and was under Roman administration. This is the ordinary sense of the word, that of a foreign territory in a certain relation of subordination to Rome. But the word was also used, before the establishment of any provincial governments, to denote a district or enemy's country which was assigned to a general as the field of his operations.

The Roman State in its complete development consisted of two parts with a distinct organization, Italia and the Provinciae. There were no Provinciae in this sense of the word till the Romans had extended their conquests beyond Italy; and Sicily (Cic. Verr. II.2) was the first country that was made a Roman Province, B.C. 241; Sardinia was made a Province B.C. 235. The Roman province of Gallia Ulterior in the time of Caesar was sometimes designated simply by the term Provincia (Caesar, Bell. Gall. I.1, 7, &c.).

A conquered country received its provincial organization either from the Roman commander, whose acts required the approval of the Senate; or the government was organized by the commander and a body of commissioners appointed by the Senate out of their own number (Plutarch, Lucull. 35, 36). The mode of dealing with a conquered country was not uniform. When constituted a Provincia, it did not become to all purposes an integral part of the Roman State; it retained its national existence, though it lost its sovereignty. The organization of Sicily was completed by P. Rupilius with the aid of ten legates, and his constitution is sometimes referred to under the name of Leges Rupiliae. The island was formed into two districts, with Syracusae for the chief town of the eastern and Lilybaeum of the western district: the whole island was administered by a governor p965annually sent from Rome. He was assisted by two Quaestors and was accompanied by a train of praecones, scribae, haruspices, and other persons, who formed his Cohors. The Quaestors received from the Roman aerarium the necessary sums for the administration of the island, and they also collected the taxes, except those which were let by the Censors at Rome. One quaestor resided at Lilybaeum, and the other with the governor or Praetor at Syracusae. The governor could dismiss the quaestors from the province, if they did not conform to his orders, and could appoint Legati to do their duties. The whole island was not treated exactly in the same way. Seventeen conquered towns forfeited their land, which was restored on condition of the payment of the decimae and the scriptura. But this restoration must not be understood as meaning that the ownership of the land was restored, for the Roman State became the owner of the land, and the occupiers had at most a Possessio. These taxes or duties were let to farm by the censors at Rome. Three cities, Messana, Tauromenium, and Netum, were made Foederatae Civitates and retained their land [Foederatae Civitates.] Five other cities, among which were Panormus and Segesta, were Liberae et Immunes, that is, they paid no decimae; but it does not appear whether they were far from the burdens to which the Foederatae Civitates as such were subject by virtue of their Foedus with Rome. Before the Roman conquest of Sicily, the island had been subject to a payment of the tenth of wine, oil, and other products, the collecting of which had been determined with great precision by a law or regulation of King Hiero (Lex Hieronica). The regulations of Hiero were preserved and these tenths were let to farm by the Quaestors in Sicily to Sicilians and Romans settle in Sicily: the tenths of the first-mentioned towns were let to farm to Romans in Rome. The towns which paid the tenths were called by the general name of Stipendiariae.

For the administration of justice the island was divided into Fora or Conventus, which were territorial divisions. Sicilians who belonged to the same town had their disputes settled according to its laws; citizens of different towns had their disputes decided by judices appointed by the governor; in case of disputes between an individual and a community, the Senate of any Sicilian town might act as judices, if the parties did not choose to have as judices the Senate of their own towns; if a Roman citizen sued a Sicilian, a Sicilian was judex; if a Sicilian sued a Roman citizen, a Roman was judex; but no person belonging to the Cohors of a Praetor could be judex. These were the provisions of the Rupiliae Leges. Disputes between the lessees of the tenths and the Aratores were decided according to the rules of Hiero (Cic. Verr. II.13). The settlement of the Municipal constitution of the towns was generally left to the citizens; but in some instances, as in the case of C. Claudius Marcellus and the town of Alesa, a constitution was given by some Roman at the request, as it appears, of the town. The Senate and the People still continued as the component parts of the old Greek cities. Cicero mentions a body of 130 men called censors who were appointed to take the census of Sicily every five years, after the fashion of the Roman census (in Verr. II.55, &c.). The island was also bound to furnish and maintain soldiers and sailors for the service of Rome, and to pay tributum for the carrying on of wars. The governor could take provisions for the use of himself and his cohors on condition of paying for them. The Roman State had also the Portoria which were let to farm to Romans at Rome.

The governor had complete Jurisdictio in the island with the Imperium and Potestas. He could delegate these powers to his quaestors, but there was always an appeal to him, and for this and other purposes he made circuits through the different Conventus.

Such was the organization of Sicilia as a province, which may be taken as a sample of the general character of Roman provincial government. Sicily obtained the Latinitas from C. Julius Caesar, and the Civitas was given after his death (Cic. ad Att. XIV.12); but notwithstanding this there remained some important distinctions between Sicily and Italy. The chief authority for this account of the Provincial organization of Sicily is the Verrine orations of Cicero.

Hispania was formed into two Provinces, Citerior or Tarraconensis between the Iberus and the Pyrenees, and Ulterior or Baetica south of the Iberus. Hispania Citerior was divided into seven Conventus, — Carthaginiensis, Tarraconensis, Caesaraugustanus, Cluniensis, Asturum, Lucensis, and Bracarum. The diversity of the condition of the several parts of the Province appears from the enumeration of Colonia, Oppida Civium Romanorum, Latini veteres, Foederati, Oppida stipendiaria. Hispania Baetica was divided into four Juridic conventus, — Gaditanus, Cordubensis, Astigitanus, Hispalensis. The oppida consisted of Coloniae, Municipia, Latio antiquitus donata, which appear to be equivalent to Latini veteres, Libera, Foederata, Stipendiaria (Plin. H. N. III.1, 3). The Provincia of Lusitania was divided into three Conventus, — Emeritensis, Pacensis, and Scalobitanus. The classes of Oppida enumerated are Coloniae, Municipia Civium Romanorum, Oppida Latii antiqui or veteris, Stipendiaria (Plin. H. N. IV.22). This example will give some idea of the Roman mode of administering a province for judicial purposes. All Hispania received the Latinitas from Vespasian (Plin. H. N. II.3). The province paid a fixed vectigal or land-tax in addition to the tributum which was collected by Praefecti, and in addition to being required to deliver a certain quantity of corn.º And the Praetor had originally the right to purchase a twentieth part at what price he pleased (Liv. XLIII.2; compare Tacit. Agric. 19; and Cic. in Verr. III.81, de aestimato frumento.)

This organization was not confined to the Western Provinces. In Asia, for instance, there was a Smyrnaeus Conventus which was frequented by a great part of Aeolia; the term conventus was applied both to the territorial division made for the administration of justice and also to the chief city or place "in quem conveniebant." Ephesus gave name to another Conventus. As the Conventus were mainly formed for judicial purposes, the term Jurisdictio is sometimesº used as an equivalent. Thus Pliny (H. N. V.29) speaks of the Sardiana Jurisdictio, which is the same as Sardianus conventus. The object of this division is further shown by such phrases as "eodem disceptant foro," "Tarracone disceptant populi XLIII."

Strabo remarks (XIII p629) that the boundaries p966of Phrygia, Lydia, Caria, and Mysia were confused, and that the Romans had added to the confusion, by not attending to the subsisting national divisions, but making the administrative divisions different (τὰς διοικήσεις), in which are the Fora (ἀγόρας MS.) and the administration of justice. The word ἀγόρα probably represents Conventus (as to the reading, see Casaubon's note). The Conventus, it appears, were sometimes held (conventus acti) in the winter (Caesar, Bell. Gall. I.54, VI.44); but in Caesar's case this might be a matter of convenience. Cicero proposed to do the same in his province (ad Att. V.14). The expression "forum agere" is equivalent to "conventum agere" (Praetor Romanus conventus agit, Liv. XXXI.29).

The Conventus were attended by the Romans who were resident in the province, among whom were the publicani, and generally by all persons who had any business to settle there. The judices for the decision of suits were chosen from the persons who attended the conventus. Other acts were also done there, which were not matters of litigation but which required certain forms in order to be legal. In the case of manumission by persons under thirty years of age certain forms were required by the Lex Aelia Sentia, and in the provinces it was effected on the last day of the Conventus (Gaius, I.20); from which it appears that Conventus means also the time during which business was transacted at the place "in quem conveniebant."

The governor upon entering upon his duties published an edict, which was often framed upon the Edictum Urbanum. Cicero when Proconsul of Cilicia says that as to some matters he framed an edict of his own, and as to others he referred to the Edicta Urbana (Ad Att. VI.1). Though the Romans did not formally introduce their law into the provinces, and so much of it as applied to land and the status of persons was inapplicable to Provincial land and Provincial persons, great changes were gradually introduced by the edictal power both as to the forms of procedure and all other matters to which the Roman Law was applicable; and also by special enactments (Gaius, I.183, 185, III.122).

There was one great distinction between Italy and the Provinces as to the nature and property in land. Provincial land could not be an object of Quiritarian ownership, and it was accordingly appropriately called Possessio. The ownership of Provincial land was either in the Populus or the Caesar: at least this was the doctrine in the time of Gaius (II.7). Provincial land could be transferred without the forms required in the case of Italian land, but it was subject to the payment of a land-tax (vectigal). Sometimes the Jus Italicum was given to certain provincial towns, by which their lands were assimilated to Italian land, for all legal purposes. With the Jus Italicum such towns received a free constitution like that of the towns of Italy, with magistrates, as decemviri, quinquennales (censores) and aediles; and also a jurisdictio. It was a ground of complaint against Piso that he exercised jurisdictio in a Libera Civitas (Cic. de Prov. Cons. 3). Towns possessing the Jus Italicum in Hispania, Gallia and other countries are enumerated. The Latinitas or Jus Latii also, which was conferred on many provincial towns, appears to have carried with it a certain jurisdictio; and those who filled certain magistratus in these towns thereby obtained the Roman Civitas (Strabo, p186, Casaub.). It is not easy to state what was the precise condition of the Coloniae Romanae and Latinae which were established in the Provinces: if the name is a certain indication of their political condition, that is pretty well ascertained.

It has been stated that the terms Italia and Provinciae are opposed to one another as the component parts of the Roman State, after it had received its complete development. Under the Emperors we find Gallia Cisalpina or Citerior an integral part of Italy and without a governor, the Provincial organization having entirely disappeared there. In the year B.C. 49 when Caesar crossed the Rubicon on his march towards Rome, it was a Province of which he was Proconsul, a circumstance which gives a distinct meaning to this event. Cicero still calls it Provincia Gallia at the epoch of the battle of Mutina. In the autumn of B.C. 43 D. Brutus the Proconsul of the Provincia Gallia was murdered, and from that time we hear of no more Proconsuls of this Province, and it is a reasonable conjecture that those who then had all the political power were unwilling to allow any person to have the command of an army in a district so near to Rome. The name Italia was however applied to this part of Italia before it became an integral portion of the Peninsula by ceasing to be a Provincia (Caesar, Bell. Gall. I.54, V.1, VI.44, &c.; Cic. Phil. V.12). On the determination of the Provincial form of government in Gallia Cisalpina, it was necessary to give to this part of Italy a new organization suited to the change of circumstances, particularly as regarded the administration of justice, which was effected by the Lex Rubria de Gallia Cisalpina. The Proconsul of Gallia Cisalpina had the Imperium, but on his functions ceasing, the Jurisdictio was placed in the hands of local magistrates who had not the Imperium. This magistratus could give a judex; in some cases their jurisdiction was unlimited; in others it did not extend to cases above a certain amount of money; they could remit a novi operis nuntiatio, require a Cautio in case of Damnum Infectum, and if it was not given, they could grant an action for damages.

The Roman provinces up to the battle of Actium as enumerated by Sigonius are: Sicilia; Sardinia et Corsica; Hispania Citerior et Ulterior; Gallia Citerior; Gallia Narbonensis et Comata; Illyricum; Macedonia; Achaia; Asia; Cilicia; Syria; Bithynia et Pontus; Cyprus; Africa; Cyrenaica et Creta; Numidia; Mauritania. Those of a subsequent date which were either new, or arose from division are according to Sigonius: Rhaetia; Noricum; Pannonia; Moesia; Dacia; Britannia; Mauritania Caesariensis and Tingitana; Aegyptus; Cappadocia; Galatia; Rhodus; Lycia; Commagene; Judaea; Arabia; Mesopotamia; Armenia; Assyria. The accuracy of this enumeration is not warranted. It will appear that it does not contain Lusitania, which is one of the two divisions of Hispania Ulterior, the other being Baetica: Lusitania may however not have had a separate governor. Originally the whole of Spain, so far as it was organized, was divided into the two provinces Citerior and Ulterior; the division of Ulterior into Baetica and Lusitania belonged to a later period. Under Augustus Gallia was divided p967into four provinces: Narbonensis, Celtica or Lugdunensis, Belgica, and Aquitania. The Provincia of Caesar's Commentaries, from which term the modern name Provence is derived, appears to have corresponded to the subsequent province Narbonensis. He had also the Province of Gallia Cisalpina, or Citerior (Caesar, Bell. Gall. I.54) which, as already explained, was subsequently incorporated with Italia as an integral part of it. Cicero speaks of the two Galliae, as then united in one Imperium under C. Julius Caesar, and he further distinguishes them by the names of Citerior and Ulterior (de Prov. Cons. II.15, 16). The same expressions are used by Caesar in his Commentaries (Bell. Gall. I.7, V.1, 2).

Strabo (XVII p840, Casaub.) gives the division into Provinces (ἐπάρχιαι) as constituted by Augustus. The provinces of the Populus (δῆμος) were two consular provinces (ὑπατικαί), and ten praetorian provinces (στρατηγίαι). The rest of the eparchies, he says, belong to the Caesar. Lusitania is not enumerated among the eparchies of the Populus, and if it was a distinct eparchy, it must have belonged to the Caesar according to the principle of the division of the provinces, as stated by Strabo. The list of provinces in the "Demonstratio Provinciarum" (Mythog. Vat. Bode) mentions the Province of Asturia et Galloeca Lusitania. Dion Cassius (LIII.12) states the distribution of the Provinces by Augustus as follows: the Provinces of Africa, Numidia, Asia, Hellas (Achaea) with Epirus, Dalmatia, Macedonia, Sicilia, Creta with the Cyrenaica, Bithynia with the adjacent Pontus, Sardinia, and Baetica belonged to the Senate and the people (δῆμος and γερουσία). Tarraconensis, Lusitania, all Gallia, Coele Syria, Phoenice, Cilicia, Cyprus, and Aegyptus, belonged to Augustus. He afterwards took Dalmatia from the Senate, and gave to them Cyprus and Gallia Narbonensis, and other changes were made subsequently.

At first Praetors were appointed as governors of provinces, but afterwards they were appointed to the government of provinces, upon the expiration of their year of office at Rome, and with the title of Propraetores. In the later times of the republic, the consuls also, after the expiration of their year of office, received the government of a province with the title of Proconsules: such provinces were called Consulares. Cicero was Proconsul of Cilicia B.C. 55, and his colleague in the consulship, C. Antonius, obtained the proconsulship of Macedonia immediately on the expiration of his consular office. The provinces were generally distributed by lot, but the distribution was sometimes arranged by agreement among the persons entitled to them. By a Sempronia Lex the proconsular provinces were annually determined before the election of the consuls, the object of which was to prevent all disputes. A Senatusconsultum of the year 55 B.C., provided that no consul or praetor should have a province till after the expiration of five years from the time of his consulship or praetorship. A province was generally held for a year, but the time was often prolonged. When a new governor arrived in his province, his predecessor was required to leave it within thirty days. A Lex Julia passed in the time of C. Julius Caesar limited the holding of a Praetoria Provincia to one year, and a Consularis Provincia to two years (Dion Cassius, XLIII.25; Cic. Phil. I.8, V.3). The governors of provinces had no pay as such, but certain expenses were provided for out of the Aerarium. Augustus first attached pay to the office of provincial governor ( Dion Cassius, LIII.15; Sueton. August. 36).

The governor of a province had originally to account at Rome (ad urbem) for his administration from his own books and those of his Quaestors; but after the passing of a Lex Julia B.C. 61, he was bound to deposit two copies of his accounts (rationes) in the two chief cities of his province and to forward one (totidem verbis) to the Aerarium (Cic. ad Fam. II.17, V.20, ad Attic. VI.7). If the governor misconducted himself in the administration of the province, the provincials applied to the Roman Senate, and to the powerful Romans who were their Patroni. The offences of Repetundae and Peculatus were the usual grounds of complaint by the provincials; and if a governor had betrayed the interests of the State, he was also liable to the penalties attached to Majestas. Quaestiones were established for inquiries into these offences; yet it was not always an easy matter to bring a guilty governor to the punishment that he deserved.

With the establishment of the Imperial power under Augustus, a considerable change was made in the administration of the provinces. Augustus took the charge of the provinces where a large military force was required; the rest were left to the care of the Senate and the Roman people (Strabo, XVII p840). Accordingly we find in the older jurists (Gaius, II.21) the division of provinciae into those which were "propriae Populi Romani," and those which were "propriae Caesaris," and this division with some modifications continued to the third century. The Senatorian provinces were distributed among consulares and those who had filled the office of Praetor, two provinces being given to the consulares and the rest to the Praetorii: these governors were called Proconsules, or Praesides, which latter is the usual term employed by the old jurists for a provincial governor. The Praesides had the jurisdictio of the Praetor Urbanus and the Praetor Peregrinus; and their Quaestors had the same jurisdiction that the Curule Aediles had at Rome (Gaius, I.6). The Imperial provinces were governed by Legati Caesaris with Praetorian power, the Proconsular power being in the Caesar himself, and the Legati being his deputies and representatives. The Legati were selected from those who had been consuls or praetors, or from the Senators. They held their office and their power at the pleasure of the Emperor; and he delegated to them both military command and jurisdictio, just as a Proconsul in the Republican period delegated this powers to his Legati. These Legati had also Legati under them. No quaestors were sent to the provinces of the Caesar, and for this reason observes Gaius, this edict (hoc edictum) is not published in those provinces, by which he appears, from the context, to mean the edict of the Curule Aediles. In place of the quaestors, there were Procuratores Caesaris, who were either Equites or freedmen of the Caesar. Egypt was governed by an Eques with the title of Praefectus. The Procuratores looked after the taxes, paid the troops, and generally were intrusted with the interests of the Fiscus. Judaea, which was a part of the province of Syria, was governed by a Procurator who had the powers of a Legatus. It appears that there were also Procuratores Caesaris p968in the Senatorian provinces, who collected certain dues of the Fiscus, which were independent of what was due to the Aerarium. The regular taxes, as in the republican period, were the poll-tax and land-tax. The taxation was founded on a census of persons and property, which was established by Augustus. The Portoria and other dues were farmed by the Publicani, as in the Republican period.

The governors of the Senatorial provinces and the legati of the Caesar received their instructions from him, and in all cases not thus provided for they had to apply to the Caesar for special directions. The Rescripta of the Emperors to the provincial governors are numerous. Justice was administered in the provinces according to the laws of the Provinces, and such Roman laws as were specially enacted for them, and according to Imperial Constitutiones, senatusconsulta and the Edict of the governors. In some instances the provisions of Roman laws were extended to the provinces (Gaius, I.47; Ulp. Frag. XI.20).

The organization of the Italian towns under the Empire has been already explained in the article Colonia; and the same observations apply in general to the Senates of Provincial towns which have been made with respect to the functions of the Senates of Italian towns. Even in the provinces the names Senate and Senator occur in the sense respectively of Curia and Decuriones. But there was a great distinction between the Magistratus of Provincial and those of Italian towns. The functions of these personages in the Provincial towns were generally Munera (burdens) and not Honores. [Honores.] Such Honores as have reference to religious functions they certainly had, and probably others also; but they had nothing corresponding to the Duumviri Juri dicundo of the Italian towns, that is, no functionary "qui jus dicebat." The only exception were such towns as had received the Jus Italicum, the effect of which, as elsewhere explained, appears to have been, in brief, to give to a certain city and district the same character that it would have had, if it had been a part of the Italic soil; but only so far as it affected the whole district; it did not affect the status of individuals. Freedom from the land-tax, and a free constitution in the Italian form, with Duumviri J. D., Quinquennales, Aediles, and Jurisdictio were essential ingredients of this Jus Italicum. Sicily received the Civitas after the death of C. Julius Caesar, and from the occurrence of the mention of Duumviri in the inscriptions of a Sicilian town, Savigny draws the probable inference that the Sicilian towns received the Jus Italicum also: at least if in any case, we can show that any provincial city had Duumviri, we may conclude that such city had the Jus Italicum and consequently Magistratus with Jurisdictio. The regular Jurisdictio in all the provinces was vested in the governor, who exercised it personally and by his legati: with reference to his circuits in the provincia the governor in the later ages of the Empire was called Judex Ordinarius and sometimes simply Judex. The towns which had the Jus Italicum were, as already observed, not under his immediate Jurisdictio, though a right of appeal to the governor from the judgment of the Duumviri must be considered as always existing. The provincial towns had the management of their own revenue; and some of the principal towns could coin money. It does not appear that the religion of the provincials was ever interfered with, nor had it been put under any restraint in the republican period.

The constitution of Caracalla, which gave the Civitas to all the provinces and towns of the Empire, merely affected the personal status of the people. The land remained Provincial land, when the Jus Italicum had not been communicated to it, and the cities which had not received the Jus Italicum, were immediately under the Jurisdictio of the governors. This constitution however must have made considerable changes in the condition of the provincials, for when they all became Roman citizens, the Roman incidents of marriage, such as the Patria Potestas, and the Roman Law of succession in case of intestacy would seem to be inseparable consequents of this change, at least so far as the want of the Jus Italicum did not render it inapplicable.

The constitution of the provincial towns was materially affected by the establishment of Defensores, whose complete title is "Defensores Civitatis Plebis Loci." Until about the time of Constantine, so far as the Pandect shows, Defensor was the title of persons who were merely employed in certain municipal matters of a temporary kind. In the year A.D. 365, the Defensores appear as regularly established functionaries (Cod. 1 tit. 55 De Defensoribus). They were elected by the Decuriones and all the city; but unlike the magistratus, they could not be elected out of the body of Decuriones. The office was originally for five years, but after the time of Justinian only for two years. The principal business of the Defensor was to protect his town against the oppression of the Governor (Cod. 1 tit. 55 s4). He had a limited Jurisdictio in civil matters, which Justinian extended from matters to the amount of 60 solidi to matters to the amount of 300 solidi. There was an appeal from him to the Governor (Nov. 15, c5). He could not impose a Multa; but he could appoint a Tutor. In criminal matters, he had only Jurisdictio in some of the less important cases.

The number of Senators both in the Italic and provincial towns seems to have been generally one hundred; and this was the number in Capua (Cic. in Rull. II.35). But the number was not in all places the same. Besides the actual members, the Album Decurionum comprised others who were merely honorary members. The Album of the town of Canusium, of the year A.D. 223, which has been preserved, consists of 148 members, of whom 30 were Patroni, Roman Senators, and 2 were Patroni, Roman Equites; the remainder were 7 quinquennalici, a term which is easily explained by referring to the meaning of the term Quinquennales [Colonia], 4 allecti inter quinquennales, 22 duumviralicii, 19 aedilicii, 21 pedani, 34 praetextati.º The distinction between Pedani and Praetextati Savigny professes himself unable to explain. In many towns the first persons in the list of actual senators were distinguished from the rest, and generally the first Ten, as Decemprimi; of which there is an example in Livy (XXXIX.15 magistratus denosque principes); and in the case of Ameria, and of Centuripae in Sicily (Cic. pro Ros. Amer., c9, In VerremII.67).

It has been previously shown that at the time when the Roman respublica had attained its complete developement, Italia and the Provinciae were p969the two great component parts of the Empire; and one great distinction between them was this, that in Italia the towns had magistratus with Jurisdictio; in the provinces, except in places which had received the Jus Italicum, the governor alone had Jurisdictio. But with the growth and developement of the Imperial power, a greater uniformity was introduced into the administration of all parts of the Empire; and ultimately Italy herself was under a Provincial form of government [Colonia]. As above shown, the relation of the Governor to the province was not the same, when a city had magistratus, and when it had not; and consequently it was in this respect not the same in Italy as in the Provinces.

The constitution of Constantine was based on a complete separation of the Civil and Military power, which were essentially united in the old system of provincial government: Justinian however ultimately re-united the civil and military power in the same person.a The governor who had civil power was called Rector, Judex, Judex Ordinarius; and of these governors there were three classes, Consulares, Correctores, Praesides, among whom the only distinction was in the extent and rank of their government. In the writings of the older jurists, which are excerpted in the Pandect, the Praeses is a general name for a Provincial governor (Dig. 8 tit. 18). The military power was given to Duces who were under the general superintendence of the Magistri Militum. Some of these Duces were called Comites, which was originally a title of rank given to various functionaries and among them to the Duces; and when the title of Comes was regularly given to certain Duces, who had important commands, the name Dux was dropped, and Comes became a title. This was more particularly the case with important commands on the frontier (Cod. Theod. 7 tit. 1 s9). The Comes is mentioned in Imperial Constitutions before the Dux, whence we infer his higher rank (Cod. Theod. 8 tit. 7 s11 Ad magistros militum, et comites, et duces omnes).

It remains to add a few remarks on the exercise of the Jurisdictio, so far as they have not been anticipated in speaking of the functionaries themselves. In Italy, and in the towns which had the privileges of Italian towns, all matters as a general rule came before the magistratus in the first instance; but in certain excepted matters, and in cases where the sum in question was above a certain sum (the precise amount of which is not known), the matter came before the governor of the province in fact in the first instance, or in Italy before the Roman Praetor. Until the middle of the fourth century A.D. all matters in the Provincial towns, which had not magistratus, came before the governor in the first instance; but about this time the Defensor acquired a power, like that of the magistratus of the privileged towns, though more limited. The old form of proceeding in civil matters has been explained elsewhere [Judex]: the magistratus empowered the Judex to make a condemnatio; and this institution was the Ordo Judiciorum Privatorum. That which the magistratus did without the aid of a Judex was Extra Ordinem [Interdictum]. The same institution prevailed in those towns which had a magistratus, for it was of the essence of a Magistratus or of Jurisdictio to name a Judex (Lex Gall. Cisalp. c20). Under the emperors, it gradually became common for the magistratus to decide various cases without the aid of a Judex, and these are the Extraordinariae Cognitiones spoken of in the Digest (50 tit. 13). In the reign of Diocletian the Ordo Judiciorum, as a general rule, was abolished in the provinces and the pedanei judices (hoc est qui negotia humiliora disceptent) were only appointed by the praeses when he was very much occurred with business, or for some trifling matters [Judex Pedaneus]; (Cod. 3 tit. 3 s2); and in the time of Justinian the institution had entirely disappeared (Inst. 4 tit. 15 s8), and, as it is conjectured, both in Rome and the Municipia.

By the aid of the Judices, two Praetors were able to conduct the whole judicial business between citizens and Peregrini at Rome; and by the aid of the same institution, the judicial business was conducted in the Jurisdictiones out of Rome. In no other way is it conceivable how the work could have been got through. Better when the Ordo Judiciorum was abolished, the difficulty of transacting the business must have been apparent. How this was managed, is explained by Savigny, by referring to the growth of another institution. Even in the time of the Republic, the Praetors had their legal advisers, especially if they were not jurists themselves; and when all the power became concentrated in the Caesars, they were soon obliged to form a kind of college, for the dispatch of business of various kinds and particularly judicial matters which were referred to the Caesar. This college was the Caesar's Consistorium or Auditorium. The Provincial governors had their body of assessors, which were like the Caesar's Auditorium (Dig. 1 tit. 22); and it is a conjecture of Savigny, which has the highest probability in its favour, that the new institution was established in the municipal towns and in the provincial towns, so that here also the magistratus and the Defensor had their assessors.

Besides the Jurisdictio, which had reference to Litigation, the so‑called Contentiosa Jurisdictio, there was the Voluntaria. Matters belonging to this Jurisdictio, as Manumission, Adoption, Emancipation, could only be transacted before the Magistratus Populi Romani, and, unless these powers were specially given to them, the Municipal Magistrates had no authority to give the legal sanction to such proceedings; though in the old Municipia it is probable that the power of the magistratus was as little limited in the Voluntaria as in the Contentiosa Jurisdictio. In the Imperial period it was usual to perform many acts before the public authorities, and in the three cases of large Gifts, the making of a Will, and the Opening of a Will, it was necessary for these acts to be done before a public authority. Such acts could be done before a provincial governor; and also before the Curia of a city in the presence of a Magistratus and other persons. (Compare the Constitution of Honorius, Cod. Theod. 12 tit. 1 s151, and a Novel of Valentinian, Nov. Theod. tit. 23, with Savigny's remarks on them.)

Though the general administration of the Roman provinces is adequately understood, there are differences of opinion as to some matters of detail; one cause of which lies in the differences which actually existed in the administration of the provinces and which had their origin in the different circumstances of their conquest and acquisition, and in the diversity of the native customary law in p970the different provinces, with a large part of which the Romans originally did not interfere. A general view of the Provinces should therefore be completed and corrected by a view of the several provinces.

The authorities for this view of the Provincial government have been generally referred to. They are, more particularly, Sigonius, De Antiquo Jure Provinciarum, Lib. I‑III; Goettling, Geschichte der Römischen Staatsverfassung; Walter, Geschichte des Römischen Rechts, where the authorities are very conveniently collected and arranged, and chap. xxxi Notes 76, 79, wherein he differs from Savigny as to the Jus Italicum; in chapter xxxvii Walter has described the provincial divisions of the Empire, which existed about the middle of the fifth century A.D.; Savigny, Geschichte des Röm. R. im Mittelalter, vol. I; Puchta, Ueber den Inhalt der Lex Rubria, Zeitschrift, &c., vol. X.


Thayer's Note:

a Justinian ultimately re-united the civil and military power in the same person: This is shorthand for a complex set of partial reforms, which continued under later emperors. For details, see J. B. Bury, History of the Later Roman Empire, Ch. 21.


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