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On Limited Public Power (Book 1, Chapter 33).

I have already spoken about highest or universal public power. Now I will turn to limited or special public power.

1. What Limited Public Power Is--Limited, special, or inferior public power is that where power is legally rendered for a particular, limited, and restricted territory and is undertaken on behalf of the highest power that it recognizes as its superior and to whom it is held accountable of its administration (Geil. Lib. 1. observ. 17. Ferand Vasqui. Illust. Controv. lib. 1. cap. 8. Mynsing. Cent. 5 obs. 8).

This limited public power, in turn, is either provincial (1) or official. (2)

2. What Provincial Power Is--Provincial power is that which the governor (3) of a province exercises in the territory of his own province with his own legal authority.

3. What a Province Is--A province (4) is something that in the scope of its own territory contains many villages, towns, castles, or cities under the community and administration of one legal authority (5) as united and closely allied. It is also called a region (6) or a district (7) (Hieronym. De monte, 3; De finib. Regun. Losaum de iure university. 1.2.7-8. 1.6. [section] Qui universas. i. congrui. 13. de office. Praesid). Today, any city having a distinct and separate government (8) and territory is called a province (Bart. In 1. unic. Num. 5. Cod. De metrop. Beryt. Li. 11. Marcus decis 366. num. 13.14. Vol. 1. Losa. De iure univ. part. 1. c. 2. Hieronm. De monte. De finib. Reg. c. 4. num. 7).

4. The Authority of a Provincial Governor in the Past and Present--The governor of a province at one time would administer and rule one or more provinces (Tit. Cod. De rect. Provinc. And toto sere lib. 1. C). In addition, its power and office was temporary. However, at the time of Charlemagne, these governorships became perpetual and hereditary, and the jurisdiction of them became hereditary (Geil. 1.97; Boer, 202; Heig. 1.2. Choppin, 1, de domane. reg. tit. 6.18; Paurmeist. 2.10.7-8. de iuris; Matth. Stophani.; Pet. Gregor. Syntagm. Iur. 6.9). Today, these governorships in the German states are of two types: Some are directly subject to the empire, like states are; others are indirectly (Paurmeist. d. loc; Andr. Knich. De iure Territorii. 4; Geil. 1.21).

5. What a Governor of Many Provinces Is Today--A governor of many provinces is called a prince, (9) a duke, (10) a marquis, (11) or a landgrave (12) (Wesenbe. Consil 27.28; Disentit Paurm. 2.ult.18; De Iurisd. See also Politica 18; Rosenthal, de feud 2.2; Geil, de arrest. 6.9; Matth. Steph. 2.1.6; de iurisd; Heig. D. loc.; Pacian 2.35ff.; de probat. Borch. De feud, quae sunt regal).

6. What Power a Provincial Governor Has--The governor of a province enjoys full jurisdiction and power within the territory of his own province in which he also exercises what are called the regalia (13) (Geil 1.6.19, de pac. Publica and 2.57.7-8; Wesenbec. Consil. 40.44 and 27.28; Donell. 17.22).

7. What Power Is Reserved for the Highest Magistrate--He enjoys this power with the exception of the following, which are reserved for the highest magistrate:

* Seniority, preeminence, and universal jurisdiction in each and every province of the kingdom (1 deprecation, 9; ad 1. rhod. de iact. 1. bene a Zenone. Cod. de quad. prescript. Wesenbec consil 97).

* The promulgation of universal legislation effective through the entire kingdom and each individual province.

* The right to summon assemblies and councils.

* The right to declare war and peace.

* The right to found universal studies and academies.

* The right to create princes, dukes, marquis, counts, barons, nobles, notaries, and the right to deprive one of such a title. (14)

* The right to assign rent on public land. (15)

* The right to grant traditional annual market days.

* The right to set up a postal service.

* The right to grant citizenship.

* The right to legitimize and restore parentage.

* The right to restore reputation and honor.

* The right to grant the privilege of age. (16)

* The right to grant immunities and privileges.

* The right of public safety.

* The right to coin money.

* The right of final appeal and diverting court cases.

* The right to judge the disputes of dukes, counts, and other dignitaries.

* The right of universal ban and proscription.

Each and every one of these powers is reserved for the highest magistrate and cannot be shared or passed down to a provincial power. They cannot be usurped or exercised by them (Rosenthal 1, de feud conclus. 10 and 13.5; Covarruv. Pract. Quast. 4; Roland a Valle Consil. 1.138.2 and 1.141ff. and 1.2.; Bossius de prinipe 92ffl. Matth. Stephani, de iurudict. To this list I add the right to inspect and to coerce, which the highest magistrate exercises over the governor of a province (Geil 1.17; Fern. Vasqui 1, illust. Controv. 8.17ff.; Boer. Decis. 304).

8. What Jurisdiction a Provincial Governor Has--The governor of this sort of province has the use-right (17) of jurisdiction (18) and command, (19) their personal use (20) and full exercise, (21) with a certain free administration (Digest, De Office. Praesid 11, 12, 13, 19, 6; De Office. Procons. 7-9; Solent. De Office. Procons. 6; Menoch. 1. 12. 8; Digest, Arb. Iudic and Quaest. 14 and 87; Gen. 41:40-41ff.; Deut. 1; Jer. 7:31; 31:5; 32:35; 1 Kings 9:22, 23; Ex. 18:21ff.). Although he cannot yield this use-right to another, and he cannot resign himself from it (Digest, De Offic. Prasid.; De Offic. Procurat. Casar. 1.), nevertheless, as long as the power to recall this right is maintained (Digest, De Offic. Praefect. Praetor, 1; More De Iurisdict. 5), he can impose the exercise of this command onto another person (Digest, De office. Eius Cui Est Mand. Iurisd. 1.1, 2, 3, 4). He does not, however, have lasting and full ownership of this jurisdiction; therefore, when the use-right of this power comes to an end, it is returned to the highest magistrate who gave it and is consolidated with his retained command (Digest, De Iurisdict. 6 and ff.; De Offic. Prafect. August. 1; De Offic. Eius Cui Est Mand. Iurisdict. Penult; Novell. 15). For this reason, it is often said that all jurisdictions flow from the highest magistrate and flow back to him.

9. What Limited Authority Is--The exercise of this power and command is appropriate when it is in accordance with the will (22) and direction (23) of the highest magistrate (Digest, De Offic. Eius, 1, 2; Codex, Com., Penult and Ult; Vel Epist. Vicar. Rei Iud. Non Hab.7.57), when it falls within the mandate that has granted this power (Digest, De Iursidict., 6) and when the accountability of its administration to the highest magistrate is guaranteed (1. unic. Codex, ut om. Iudic. tam civil. quam criminal post depos. adminstr; Petrus Gregorius 47, 21, 3-5; Mynsing. 5.8).

10. What Official Power Is--Official public power is that which is granted to someone without territorial rights in order to perform those things that must be done for the accounting of public office (Digest, De Iursidict., 1, 2; De Offic. Eius Cui Est Mand. Iurisd., 1, ult.).

Official public power is twofold: True public power or public power with some limit.

11. What Official Public Power Is--True official public power is that which is granted by reason of a political office or magistracy with jurisdiction or its own command (Digest, More. De Iurisdict., 5; De Offic Eius Cui Est Mandat. Iurisd., 1.3) in a foreign territory onto an individual and his cases and business (Digest, De Iurisdict. 1, 2, 3, 10, 11; Si Quis Ius Dic. Non Obtemp., 1; De Iudic. 58), and it is literally called a magistracy (Institutes, De Iur. Nat. Gen. and Civil.; Rom. 13:1; 1 Peter 2:13, 14; 2 Chron. 20:19).

12. What Authority and Its Types Is--Command (24) is the power to investigate, (25) enact, (26) order, (27) and punish (28) (Digest, De Iurisdict. 1-3); it is also called jurisdiction (Digest, De Iurisdict.; Matth. Stephani, De Iurisdict., 1.2).

This command is either mixed or pure (Digest, De Iurisd. 3); each is called jurisdiction (Digest, De Iurisd., tit; De Offic. Eius, 1, ult; De Offic. Prasid, 3; De Extraord. Cognit, 1; Stephan. De Iuris, 1.6).

13. What Mixed Authority Is--Mixed command is the power a magistrate has to investigate concerning the action of some business and to institute policy according to its justice and merit according to the prescribed manner and justice of the magistracy that he has (Digest, In fin. De Posiul; De Minor. 16; Robert, 4.22; Corasius 22. 17. 15; Alciatus 2 8; Cujac., Ad Papin, 2).

14. Its Titles and Members--In other places it is called not pure command (Digest, De Offic. Eius Cui Est. Ult.) but power inborn, (29) innate, (30) or interwoven with the magistracy, or something similar (Cujac. In Papin, 1; Digest, De office. Eius Cui Est Mand. Iurisd.). For this reason, it began to be called mixed, namely, because it is not only bare and separate, as pure command is, but it is also mixed with or joined to a magistracy, office, or service by a public injuction (Cujac. D. Loc.; Donell., 17.8).

Mixed command has two parts, the power of inquiry and the power of enacting law.

15. What the Power of Judicial Examination Is--The power of inquiry (31) is the judicial examination or investigation of someone's business (Digest, Notionem. Ubi Goedd. De Verb. Signific., 99; De Re Iud. 5). Even though judicial examination is often confused with jurisdiction (Digest, De Transact, 8; De Iurisdict., 11.2; De Praetor. Stipul., 5.1), this inquiry revolves most of all around the nature of an action so that it might learn its full information and instruction along with the attending circumstances from which law, the enactment of the action, may arise (Digest, De Iust. and Iur; Iudices, 9; Cod. De Iudic; John 7:51; Deut. 17). Therefore, there is a formal trial (32) and a judicial representative (33) (Auth, Iubemus; Codex, De Iudic.; Digest, De Recept. Arbit, 3.1). Some call this simple jurisdiction (34) (Duaren, in tit. De Iurd; Per 1. Si Idem De Iurisd; Digest, De Extr. Cognit., 1; Matth. Steph. De Iurisd. 1.5).

16. What the Power of Enacting Legislation Is--The power of enacting law (35) is that which determines a law and applies to an investigated action with the carrying out of a decreed law or with the power of execution (Digest, a Divo Pio, 15; De Re Iudic.; De Iurisdict., 2; De Officio Eius Cui Est Mand. Iurisdict., Ult.). A decreed law depends on a command; the execution of a decreed law is carried out through moderate coercion36 (Digest, De Offic. Eius Cui Est Mand, ult.; Novell., 15.1, 2, 3, 6).

17. What an Order Is--An order, (37) therefore, arises from the power of enacting, ordering, and commanding (Digest, De Re Iud., Ult., 14; De Iurisdict., 4.1, 2, 3; Institutes, De Interdict.; Ne Quid in loc. Publ., Ult.; Donell. 17.8). Included with it is the right to prohibit38 (Digest, De Aqua Quotid. and Ast., 1; De Re Iudic., 14; De rivis. 1).

18. Its Specific Title--In other places, it is listed, in kind, as jurisdiction, that is, as the right to settle, determine, and enact law (Digest, De Offic Eius Cui Est Mand., 1, ult; tit. Quod quisq. Iur. in al. Stat.; Si Quis Ius Dicent. Non obtemp., 1). Because of this, an edict of a praetor, in which he orders or prohibits, is often called jurisdiction (Digest, Iudicium. De Iudic., 58; Divus. De Sicar., 31; De Iurisd. 7; De in Ius Vocand., 11). Granted, order is said to pertain more to command (Digest, De Iurisd. 4).

19. The Authority to Defend Against Injury--The power to order and to prohibit includes also the right to defend oneself from violence and injury (Digest, Congruit. De Offic. Prasid., 13; Romans 13). It also includes the power to ordain and establish anything that pertains to the safety of the subjects (Argumn, Iudices, 9; Certi. Cod. De Iudic, 17).

20. What Moderate Restraint Is--Moderate coercion comes from the power of establishing law and carrying out decrees, by applying force or assessing fines (Digest, De Iud., 2.Ult.; Si Quis in Ius vocat., 2; Cod., De Mod. Mulct., 2, 3), or by announcing or inflicting any punishment not capital (Digest, De Iurisdict. Iussus non Obtemperanti, 12; Si Quis Ius Dicent. Non Obtemp, 1; De Offic Eius, cui est Mandat., Ult., 1, Ult.). This is called moderate coercion, with respect to pure command (d. 1. ult.), or it is called greater command in the same jurisdiction with respect to an order (Digest, Iudicium. De Iudic., 58); by no means does the fact that it is greater command make it absolute command (Digest Ad Municip., 26; De Iurisdict., 4).

21. Arbitrary Moderate Restraint and the Types of Mixed Authority--Moderate coercion, which ought to be assessed in accordance with the logic of the circumstances, is left to the decision of a judge (Digest, Respiciendum de Poen., 11; Duaren in 1. more., de Iurisd; Clar. Quast., 8, Pract. Crim., fin., Marant., 4.1.82).

There are two types of mixed command: First, that for which jurisdiction is included; second, that for which jurisdiction is added (Digest, De Iurisd. 3; De Offic. Eius Cui Mand. Iurisd.; Menoch. 1, Arb. Iudic., 74, 20).

22. Under Whose Jurisdiction Mixed Authority Is--Mixed command to which jurisdiction has been included and intermixed by its own nature occurs when the right or use of command is exercised primarily in the situation (Digest, de Iurisdict, 3, 4; Magis Imperii ad Municip., 26). In other words, it is that command in which the power and authority of command stands out more than that of jurisdiction (Menoch., d. cas. 74, num. 20, 21). Matthew Stephani incorrectly rejects this type.

23. How Mixed Authority Includes Jurisdiction--Mixed command for which jurisdiction is added is the term for a command that is exercised not primarily for its own sake but in order to exhibit jurisdiction or because of an order (Digest, De Offic. Eius Cui Est Mandat., 1, ult; De Iurisdict., 2; Cod. Ubi and apud quem cogn., ult.). With this limitation, jurisdiction or order eludes some situations and lacks an outlet (Digest, De Offic. Eius, Ult; Si Quis Ius Dicent Non Obtemp; De Iurisdict., 2; Menoch d. Cas. 74. num. 20.21). Therefore, in this case, jurisdiction prevails, as Donellus has explained.

24. Sole Jurisdiction Never Exists--From these ideas, it is the case that jurisdiction is never alone, but either it is attached to command or is a part of it (Digest, De Iurisdict., 3;4; De Offic. Eius, 1; Fachin. 9.95). Because of this inseparable association, it is rightly said that whatever things are attributed to jurisdiction are also rightly attributed to command (Digest, De Offic. Eius, 1.ult; 3; ult) so that command may be called jurisdiction and vice versa (Digest, Etsi. De office. Eius, 3; Cum Prator. De iudic. 12).

25. Why It Is Called Mixed Authority--Thus, from here it is also inferred why it is called mixed command, that is, because it is tied to jurisdiction (Cujac. 21.30; Duarenus 1.52; Digest, De Iurisdict., 3; Donellus 17.7, 8; Robert. 4.22; for opposing positions, see Anton. Faber 4.4; Zasius, De Iurisdict. 3). For examples of mixed command, see the following: Muscirdm De Iurisdict. 151; Longovall, De Iurisdict., 3; Zasium, 3; Alciat 2.7; Pet. Gregor. 47.21.13, 14; Donell 17.8; Hotoman 7.16.

26. What Pure Authority Is--Pure command (39) is what is given not by the right of a magistrate but specifically by a law to someone at any time, even to a private citizen (Digest, De Origin. Iur, 2; Solet. De office. Procons., 6; De Offic Eius cui est Mand. Iurisd., 1.1; 5; Ad L. Cornel. De Sicar., 1; De Verbor. Signific., 131.ult; De Offic. Proconsul., 7), with the power of inflicting capital punishment or of punishing criminals capitally (Digest, de Iurisd. 3; De Offic. Prasid. Nemo, 3; 13; De Regul. 70; Actor. 26.10, 11, 12; Francisc. De Claper., De Iurisdict. 4). Otherwise, it is defined as the power of preventing crime (Codex, Qui Non Poss. Ad Libert. Perven., 1; Cujac. 1; Papin; Digest, De Offic. Eius Cui Est Mand., 1; Donell. 17.8; Hotoman 3.4). For some magistrates, with the rights of the appropriate magistrate, taxes are collected as pure command (Digest, De Offic. Eius, 1; De Offic. Prasid; De Offic. Procons., 5, 6; De Poen., 1.1; Donell. 8; Covarruv. 3; Menoch 1.54.9; 74.44, 45; Clae. 41.fin.4; Muscornus, De Iurisdict., 135; Walter 2.9; Pet. Gregor 47.21.20-21). These dissenters think that here the custom40 of each place ought to be examined. Elsewhere, this is called punishment41 (Digest, De Offic. Eius Cui Est Mand., 1.pen.), or it is called a license for inflicting public discipline42 (Digest, De Offic. Prafect. Prator.).

27. Today There Is No Pure Authority--Today, according to our customs, there is no example of pure command because by a silent right vengeance and the power to inflict capital punishment follow a magistrate, and a magistrate by law exercises power (Donell. 17.8; Francisc. De Claper. De iurisdict. 2.8; Cujac. D. loc.; Pet. Gregor). In this instance, a magistrate ought to look at the limits and purposes of each command, that is, how long it lasts; to what extent does it stretch; in what business does it apply; or does this command come from custom, a statute, or the concession of a superior (Pet. Gregor; emancip. 1; Codex, Quand. Imp. Novell 1.15.2ff.; Digest, de office. Eius, 1; Ad LJul. De Amb., 1).

28. Why It Is Called Pure--Moreover, this command is called pure because by itself it is untainted, naked, alone, and separated from jurisdiction (Digest, In Fin. De Jur, Dot.; De Donat., 27), or because it exists in coercion alone--properly called command and not in order or investigation--which is called jurisdiction; it is called pure because this command is separate from a magistracy or from that power that is granted by law to a magistrate to whom this pure command is not included or entangled by its nature. With respect to mixed command, this is called pure command (Donell., 17, 8; Duaren. De Iurisdict., 3; Vacon., A Vacun., 6.2.7). In fact, canon lawyers have called it sole (43) command (Digest, De Verb. Oblig., 5), and Greek authors termed pure command, single (44) command. Thus, there are the terms pure rigidity, (45) pure condition (46) (Digest, Cum Servus. De Cond. and Demonst.), pure law of nations (Digest, De Poss., 31), pure judicial procedure (47) (Digest, De Solut.; Stipulio De Verb. Obl., 5), and pure punishment (48) (Digest, Si Quis Ius Dic. Non Obtemp, 1; Acliat. In De Verb. Sign., 215). Therefore, legislation enacts law in pure command, not a magistrate as in mixed command (Digest, Ordine. Ad Munici., 15; Ad SC. Turpill., 1).

29. The Different Terms for Pure Authority--This pure command is also called supreme power, (49) and punishment50 (Codex, De Iurisd., 5; De Offic. Prasid., 13; De Offic., Ult.), the command of one who has greater power (1. si quod. de off. procons.), power through excellence (1.3. de iurisd.), the power of the sword and the right of the sword (1.6. de office. procons. 1.6. [section] 8. de office. prasid.1.71. nemo. de reg. iur.), the fullest jurisdiction (1.7. si in [section] 2. de office. procons.), command (1.2. de in ius votand.). The symbol and sign of this command is the sword (Suet. In Vitell. c. 8. adde Josh. 5:13-14; Job 19; 1 Sam. 15:13; Ex. 18:4; 22:24; Deut. 13:15; 20:13, 16; 32:41, 42). In Rome, these symbols were the rods with the axes, as can be seen in Dionysius of Halicarnasus and Livy. Others call pure command high jurisdiction (51) (Bartol. Alciat. Zas. and Ias. In 1.3. de iurisd.). These authors think that it was called pure because it was removed from private use.

In addition, with regard to official public power, sometimes when it has been prescribed in a certain way, it is entrusted in particular certain circumstances without jurisdiction and coercion and without the power of prosecution (52) to a private citizen by that someone who has the right to concede and entrust this power.

There are two types of this: substitution (53) and arbitration (54) (tit. C. de offic. eius qui vicem alter. gerit. tit. de office. eius cui est mand. iurisd. tit. de recept. arb.).

30. Administrative Power--Substitution is when it is conceded from the specific and truly public power of an official to a private citizen (1. more 5. 1.16 1.17 de iurisdict. L.1 1.2 1.3. de offic. eius cui est mandate. iurisd. tit. C. de off. eius qui vicem alt gerit.), including those situations that do not require the knowledge of the transferring magistrate himself (1.2.C. de pedan. iudic.).

31. Authorized, Foreign, and Delegated Power--It is also called transferred jurisdiction (55) (1.1. [section] 1. 1.2. 1.5. de off. eius cui est mand. iurisd. 1.5. more. de iurisd.) or foreign jurisdiction56 (d. 1.1. [section] 1. 1.3. etsi de off. eius cui est mand. Iurisd.).

32. What an Ordinary Authorization Is--When it is given by a prince or the public provincial power, this power is called particular and ordinary jurisdiction, not foreign (1.ult. C. ubi senat. vel clariss. L.1. de const. pr. L.1. ad L. Iul. De amb. Novell. 15.c.3. Luke 10:16; 1 Pet. 2:14). Power that is regular, eternal, and universal (Paurmeist. Lib. 1. c. 10. n. 28. de iurisd.); has been allotted by a public authority to someone (d. c.10); or is given by the exercise of an ordinary right; or by which the totality of business is entrusted to someone (vide Menoch. Lib. 2. pras. 16. vide infra lib. 3. c. 4.), is also called delegated jurisdiction (57) (1.2. C. de dilat. 1.5. cum auth. seq. 1.16. C. de iudic.) or command separated from its magistrate and naked (l.5. 1.15. ubi gl. Bart. and Duar. de re iudicat. 1. a iudice 5. C. de iudic. 1. cognitionum. de var. and extraord. cognit.). In fact, the person, to whom this jurisdiction is transferred, is called the procurator, vicarius, substitute, or mandatarius, or even the trustee of an entrusting magistrate (1.. [section] 1. 1.2. 1.3. 1.6. de off. eius cui est mand. iurisd. Duar. de iurisd. c. 7. c. 8. Donell. lib. 17. c. 8. comment.). Donnellus calls him a magistrate without command and power (1.32. nec. de iur.), who, by use and exercise is considered to have the place of a magistrate even though he is not so by office and power. Elsewhere he is called an appointed judge (58) ( C. de pedan iud. 1.ult.C. ubi and apud quos. 1.4. prator. de tut. and curat. 1.38. de poenis.) who oversees the prosecution of lesser things (1.2. 1.ult. C. de peda. Iud. Novell. 82. ubi Cujac.) or a special judge (1.fin. de offic. prator. 1.5. de offic. prasid.) or a delegated judge (tit. C. qui pro sua iurisd. iudic. dar. poss. tit. de offic. delgat. extr.).

33. The Force of Authorized Jurisdiction--The ability to transfer jurisdiction exists as long as the person who holds this ability has only the power to investigate and make judgments (1.a Divo 15. ubi Duaren. de re iudic. 1.properandum. [section] fin autem. C. de re iudic. Menoch. lib. 1. arbitr. iudic. quast. 74. num. 3. Donell. lib. 17. comm. cap. 6. a se ipso dissentiens lib.17. cap. 23), and not also the power to order and prosecute (59) (d.l. 15. a Divo Pio. d. 1. properandum. [section] Fin. Autem. See Donell. d. loco. for a different opinion.). Therefore, he has sole power of investigation and judicial decision-making (1.5. ait. 1.15 a Divo. de re iudic. 1.99. notionem. de verb. sign. 1. penult. 1. de quare. de iudic. 1.8. de transact. 1. ult. C. ubi and apud quem in integr. restit. 1. cognitionum. de var. and extraordin. cognition.).

34. This Cannot Be Authorized or Yielded--He cannot transfer or yield it to another person (1.6. [section] and quia. de iurisdict. tit. C. de offic. eius qui vic. arg. [section] penult. ult. Instit. de usufruct. 1. nemo plus. de regulis iuris. Donellus d.c. 8. Menoch. Lib. 1. arb. Iud. quast. 54 and 74. num. 45ff.). This regulation is relaxed to the requirement that although he is unable to transfer it to another person, when an understanding of the case is required, he can (per 1. solet. de offic. procons. Novell. 134. c. Novell. 15 and 128. c. 19. c. 20. vide Menoch. Quast. 2. d. lib. 1. arbitr. iudic.).

35. Its Limit and Form--In the exercise and use of the concession of his jurisdiction, he follows the procedure prescribed to him and performs the duties of the one who is transferring it (1.16. .17. de iurisdict.) and administers that person's jurisdiction (1.1. [section] 1. de offic. eius cui est mandat.), while possessing no individual jurisdiction of his own (1.1. [section] 1. 1.3. de offic. eius). He does this in such a way that the execution of his decisions pertain to the transferred jursidiction only (Zas. late in 1.5. de iurisd. Hart. ab Epping. lib. 2. obs. 15. 17. tit. 15. Marant. part. 4. dist. 5. Menoch. lib. 1. arb. quast. 54 and 74).

36. When It Is Called Revoked--This transferred jurisdiction, once the will of the one who transfers it has come to an end, is considered returned (vide Menoch. lib. 1. quast. 79. 68. Covarruv. variar. resolute. lib. 3. cap. 5). Once returned, this jurisdiction is called not private but cumulative (Myns. cent. 6. obs. 99. Menoch. lib. 2. pras. 18. num. 31.32. Paurmeist. lib. 1. c. 29. de iurisd.).

37. It Is Not Possible That the Exercise of Authority Be Remitted or Abdicated--As for the naked use and exercise of command, a magistrate is able to yield and transfer it to another (1.pen. de offic.prasid. 1.cui muneris. de mun. and honor. atq. 1.16. solet. 1.17. 1.5. 1.6. de iurisd. 1.1. de offic. eius.), but he cannot renounce this command from himself (d.1.pen. de off. prasid.). This is because the command clings to the person and, therefore, cannot be fully yielded to another (d.1.pen.). He should not be quick to transfer his jurisdiction (1.2. C. de pedan. iudic.), and he will instead transfer from those things that by law he has as a magistrate, that is, those things that were obtained at one time by judicial decisions and lesser things (1.2. 1.ult. C. de pedan. iudic.), not those things that by the law of the magistracy were entrusted to him in order to be settled by his office (Donellus late lib. 17. comm. cap. 22. argum. Novell. 60. [section] illud. Authent. ad hac. C. de iudic.). From those things that at one time these magistrates were able to transfer, Donellus thought were extraordinary procedures involving honoraria (60) (1.1. de extraord. cogn.). For more information about these, see the following: 1. quod si. [section] ult. de minor. 1.3. [section] 1. de lib. exhib. 1.1. [section] 1. de rei vind. 1. pecunia. [section] actionis. de verb. sign. l. solent de offic. procons. 1.1 de offic. eius. 1. nec quicquam. [section] ubi de offi. procons. 1.2. C. de assessor. vide Menoch. lib. 1. quast. 2. arb. iudic.

38. What Cannot Be Authorized--However, it is not possible to transfer those things that do not pertain to one's own jurisdiction (tit. C. qui pro sua iurisd. iud. dar. poss. 1.4. [section] ult. de off. procons.). Here, I include those things that they have not by the law of their own magistracies but specifically by a statute or institution (1.1. de off. eius cui est mand. 1.cum hi 7. [section] sed nos. de transast. 1. penult. 1.12. [section] 1. 1.80. de iudic. 1.2. C. de pedan. iud. Novell. 15.).

39. When It Is Authorized Cumulatively or Individually--However, jurisdiction is transferred and yielded to another person cumulatively, not privately or totally when that person is not able to investigate and pronounce judgment alone but so that when he concedes this jurisdiction, he may retain the greater jurisdiction and be able to exercise it at the same time (Menoch. lib. 2. prasumpt. 18. and lib. 1. quast. 40. arb. iud. and quast.74. Myns. cent. 6. obs. 99. per 1.1. C. de defens. civit. Novell.15.c.3.), that is, unless a statute itself confers jurisdiction or the form of the concession is private and total and establishes distinct jurisdictions (Menoch. d.lib. 2. prasumpt. 18. and lib. 1. arbit. quast. 40. Covarr. pract. quast. c.1.c.2. late. Paurmeist. lib. 1. cap. 29. de iurisdict.). This differs among different time periods.

40. Paurmeister's Distinction--For, at one time, when jurisdiction was a part of state law (61) and existed in the possession of the Roman state alone, its use was entrusted for a time both in ordinary and extraordinary circumstances to the magistrates alone. At that time, it was always possible for a higher magistrate who yields power to exercise this power along with the other magistrates because he still would retain it among all the temporal and entrusted magistracies who would exercise the entrusted jurisdiction not in their name but in the name of the one who yielded the power. This opinion is attributed to Bartolus. According to the state of these times, every jurisdiction, whether it has been yielded by emperors; princes; (62) the leading citizens of the Empire, their inferiors, subjects, or individual people; or simply the entire population, are considered to have been granted not privately but consecutively. In other words, this jurisdiction should be understood to be imparted at all times in such a way that the person who yields the jurisdiction does not renounce his entire jurisdiction or, at least for legal pronouncements, there still exist the right to appeal to the higher authority or other legal possibilities so that, not only might the one who yields jurisdiction not be considered a private citizen by the highest law but also so that he might be able to work with those to whom the jurisdiction has been yielded by preparing the work for them, working together, or providing instruction (Menoch. lib. 2. pres. 17). As for use at this time, Paurmeister believes that there is a distinction between expressly yielded and tacitly yielded jurisdiction--universal, general, and individual entrusting, or exemption, (63) whether perpetual or called use-right--(64)--or allotment through the title of a fief, pledge, deed, lease.

In all transferred jurisdiction or in a certain type of jurisdiction when the magistrates have been appointed or delegated, the old law that I mentioned above still holds place. However, as long as those magistrates who by law maintain the jurisdiction whether it is their own by law or it has been acquired through agreement or exemption; whether they are princes, leading citizens, nobles, or citizens of the Empire; whether they are nobles and citizens among a subject people, some by the new constitution of the Empire of Camera (Constit. part. 2 tit. 1) and others by custom; or whether contrary to the logic introduced by the old law, we see that as for the first judicial proceedings, or higher magistrates do not work with their inferiors by preparing or anticipating the work for them and that jurisdiction returns to the higher magistrate not on its own but because of the action of claimants and inferior judges, excessive challenges, the denial or protraction of justice, or the commission or suspicion of injustice (Paurmeist. d. loc. per alleg. ibid).

41. The Old Magistrates of the Romans--Long ago among the Romans, some magistracies were Roman, some were municipal,65 some were provincial; (66) some were ordinary magistrates of various rank; (67) others were extraordinary. (68) Ordinary magistrates of higher rank were senators, consuls, plebian tribunes, censors, and urban prefects. Lesser ordinary magistrates were urban quaestors, aerarii, (69) plebian aediles, curulial aediles, (70) administers, (71) leaders of the different tribes, triumvirs, quatuorvirs, quinquevirs, decemvirs, (72) and the like. Extraordinary magistracies of higher rank include the interrex, dictator, master of the horse, centumviri, (73) military tribunes, and the like. Lesser extraordinary magistracies were duoviri investigating high treason, (74) quaestors investigating parricide or other capital offences, (75) the prefect in charge of the grain supply, quinqueviri in charge of the banking, (76) duoviri in charge of the fleet, (77) the prefect of the fire brigade, (78) and the like. Provincial magistracies included governors (79) of provinces and administrators, (80) such as a praetor, quaestor, prefect, juridicus, (81) proconsul, praetorian prefect, and the like (de quibus omnibus and singulis consulendus Johan. Rofinus lib. 7. antique. Roman. and Pravot. de magist. Roman. c. 4.and tit. 9. de Senator. tit. de officio consul. and seqq. Libri primi. D. and tit. C. de offic. Prafect. Prator. tit. C. de offic. prefect. Prator. Africa. Tit. seqq. usq. ad finem libri primi Codicus).

42. What Is the Power of Compromise--Compromise is the power that is granted to a private citizen by private citizens who have no public power for the purpose of investigating and rendering a decision for their own disputed situation without jurisdiction and without the previous decision of a public power (tot. tit. de recept. arb. Geil. lib. 1. obs. 40. per 1.privatorum. C. de iurisd.). It is called arbitration (82) because it does not happen against one's will but by the will, decision, and choice of both sides (1.1. de recept. arb. 1.14. 1.18. de iurisdict. Vide lib. 3. cap. 4).

For this section see D&C de iurisd., de offic. eius cui est mand. iurisd., si quis ius dicenti non obtemp., de offic. consul. and seqq. Usque ad finem. lib. 1 D & tit. C. de offic. praefect. Praetor. and seqq. Usque ad finem. lib. 1. C. tit. C. de offic. eius qui vices alter. Gerit. Tit. D. de recept. arbit. tit. C. de pedan. judic.

(1) Provincialis.

(2) Officialis.

(3) Praeses.

(4) Provincia.

(5) Ius.

(6) Regio.

(7) Districtus.

(8) Regimen.

(9) Princeps.

(10) Dux.

(11) Marchio.

(12) Landgravius.

(13) Regalia.

(14) Regalia.

(15) Vectigal.

(16) Veniam Aetatis, that is, Age of Majority.

(17) Ususfructus.

(18) Iurisdictio.

(19) Imperium.

(20) Usus.

(21) Exercitium.

(22) Voluntas.

(23) Praescriptum.

(24) Imperium.

(25) Cognoscendi.

(26) Statuendi.

(27) Iubendi.

(28) Puniendi.

(29) Potestas Ingenita.

(30) Innata.

(31) Potestas Cognoscendi.

(32) Causae Cognitio.

(33) Causae Cognitor.

(34) Iurisdictio Simplex.

(35) Statuendi Potestas.

(36) Coercitio Modica.

(37) Iussus.

(38) Prohibendi Ius.

(39) Merum Imperium.

(40) Consuetudo.

(41) Animadversio.

(42) Licentia Disciplinae Publicae Emendandae.

(43) Solus.


(45) Mera, Subtilitas.

(46) Mera Conditio.

(47) Merum Officium Iudicis.

(48) Mera Poena.

(49) Summa Potestas.

(50) Animadversio.

(51) Alta Iurisdictio.

(52) Potestas Exsequendi.

(53) Vicaria.

(54) Compromissaria.

(55) Iurisdictio Mandata.

(56) Iurisdictio Aliena.

(57) Iurisdictio Delegata.

(58) Iudex Padeneus.

(59) Iubendi and Exsequendi.

(60) Extraordinaria Honoraria Cognitio.

(61) Ius Publicum.

(62) Principes.

(63) Privilegium.

(64) Ususfructus.

(65) Municipales.

(66) Provinciales.

(67) Ordinarii.

(68) Extraordinarii.

(69) Aerarii, citizens excluded from the centuriate and tribal organization by the censors and subject to the payment of a special poll tax, that is, lowest class citizens.

(70) Aediles curules.

(71) Curatores.

(72) Members of boards comprised of three, four, five, or ten men.

(73) Member of a panel comprised of 105-80 jurors in trials concerning inheritances and property affairs of a higher value.

(74) Duoviri perduellionis.

(75) Quaestores parricidii rerumve capitalium.

(76) Quinqueviri mensarii.

(77) Duoviri Navales.

(78) Praefectus Vigilum.

(79) Rectores Provinciarum.

(80) Praeses.

(81) High officials with judicial authority in provinces.

(82) Arbitraria.
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Title Annotation:Selections from the Dicaeologicae
Author:Althusius, Johannes
Publication:Journal of Markets & Morality
Article Type:Excerpt
Geographic Code:1USA
Date:Sep 22, 2006
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