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from the Jews, that capital judgments were exercised by the sanhedrim after the Babylonish captivity through the grant of the kings of Persia 9. He might also have informed us, from authors of the same nation, that capital judgments were exercised by the sanhedrim under the Romans.


An answer to the first argument, taken from the civil law.

The learned gentlemen above named, who have professedly treated on this subject, use two sorts of arguments to prove that the Jews were deprived of the power of inflicting capital punishments by the Romans when Judæa was made a province; the one taken from the Roman laws, or nature of the Roman government, the other from certain passages of the New Testament. It is my intention first to answer these arguments, and then to offer the reasons which induce me to think that the Jews had the power of inflicting death on criminals continued to them by the Roman emperors, even after Judæa was annexed to the province of Syria.

That the arguments taken from the Roman law may be the better understood, it is necessary to premise that the judge who had the cognisance of criminal affairs was said to have imperium merum, and he who had the determination of civil causes, such as concerned matters of property and right, was said to have imperium mixtum. Jurisdiction belonged properly to each of these magistrates": the

9 Imo et judicia capitalia ab hoc senatu (i.e. LXX. in exsilio Babylonico) exercita concessu regum Persarum tradunt Hebræi. In Matt. v. 22. p. 44, b. fin.

L. 7. §. 2. 1. 8. et 9. ff. de Officio Proc. l. 1. ff. de Officio

imperium, or power, (for imperium and potestas in this case signify one and the same thing in the civil laws; the power, I say,) that belonged to the latter was no more than was necessary to enforce his orders, or see his sentence executed"; and even that power was in some cases, at least in part, separable from jurisdiction 4 Proconsuls and presidents of provinces had the whole of this power lodged with them : they had both imperium merum and imperium mixtum; had the cognisance of all criminal as well as civil affairs, and were next in power to the emperor himself, in those provinces over which they were placed *.

The first argument is taken from a law which says that the municipal magistrate cannot do those things which have more of imperium than of jurisdiction. This is one instance wherein imperiumi, or power, was in great part separated from jurisdiction : for the municipal magistrates had not the power of compelling persons by punishments to obey their orders 2. These magistrates had so very little power over their subjects, that they are described in the law as being without power a. It was permitted them, indeed, to chastise slaves, so they did it moderately; but this was the utmost length they were allowed to gob: and this was no more than was allowed to the master of the slaves, and seems at least to have been connived at in any other person That there may be any consequence in the reasoning founded upon this law, two things must be taken for granted: first, that this was part of the Roman law when Judæa was made a province; and, secondly, that the municipal and provincial magistrates were equally obliged by this law. I have seen nothing offered to clear up these two points,

ejus cui mand. est Jurisd. Vid. Voet. in Pand. tit. de Jurisd. S. 5. Ut proinde errare videantur, qui merum imperium dictum arbitrantur tanquam separatum ab omni jurisdictione, cum nullum omnino sive in republica sive sub imperatoribus tempus fuerit, quo assertionis istius veritas obtinuit, §.40.

* L. 215. ff. de V. S. + L. 2. et 3. ff. de Jurisdict. Vid. Voet. in Pand. tit. de Ju

risd. §. 42.

u The civilians will not allow that imperium and jurisdiction are ever separated. That they are never wholly separated may be a truth : but that they are sometimes in part separated is fully evident from 1. 26. ff. ad Municip. I. un. ff. Si quis jus dicenti non obtemp. I. 32. ff. de Injur. Vid. Voet. in Pand. tit. de Jurisdict. §. 43, 44. However, if they will not admit of the word separated, the phrases magis imperii and magis jurisdictionis (which, in my mind, signify a partial separation) will serve the purpose as well.

* L. 3. ff. de Jurisd. l. 1. pr. et §. 4. ff. de Off. Præf. Urbi, 1.7. §. 2. et 1. 8. et 9. ff. de Off. Proc. 1. 10, 11, 12. de Off. Præsidis.


y Huber. Diss. 1. I. 1. p. 11. Ea quæ magis imperii sunt quain jurisdictionis, facere non possunt magistratus municipales. L. 26. ff. ad Municip. Vid. not. Gothofr. ad locum.

1 Omnibus magistratibus, non tamen duuniviris, secundum jus potestatis suæ concessum est jurisdictionem suam defendere pænali judicio. L. un. ff. Si quis jus dicenti non obtemp.

a Si ex minoribus magistratibus erit, id est, qui sine imperio aut potestate sunt magistratus. L. 32. ff. de Injuriis. Vid. not. Goth. ad locum.

b Magistratibus municipalibus supplicium a servo sumere non licet; modica autem castigatio eis non est deneganda. L. 12. ff. de Jurisd. Vid. et l. 17. 9. 1. ff. Qui et a quibus manum. L. 15. $. 39. ff. de Injuriis.

L. un. C. de emend, serv. d Si quis corrigendi animo, aut si quis emendandi servum (alienum verberaverit) non tenetur. L. 15. $. 38. ff. de Injuriis.

which certainly ought to be fully proved before this argument can have any weight.

I very much doubt whether there was any such law as this in being at the time we are speaking ofe: and I believe every one who considers what is said of the Roman municipia, by Aulus Gellius and Festus, will be of my mind. Festus informs us that there were three sorts of municipia, which differed not a little the one from the other. Some of them had not the freedom of the city of Rome, so far as to vote for or be chosen magistrates of that city : others had, and were also governed by the Roman laws. Others, who had the same right, were wholly governed by their own laws, and had a republic of their own distinct from that of the Roman people'. It is very plain, I think, that this was not the case at the time the law we are speaking of was made; for that law includes all municipal magistrates without any distinction. Aulus Gellius not only tells us that the municipia were governed by their own laws, but adds further, that they were obliged by no law of the Roman people, unless it were adopted by their own voluntary consent 5. And Alexander ab Alexandro, representing the sense of the ancient authors upon this head, says that the municipia fol

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e Voet seems to express the same doubt when he


the nicipal magistrates are said to be without power, l. 32. ff. de Injuriis, non alia, ut opinor, de causa, quam quia Ulpiani et Pauli tempore ipsis denegabantur ea quæ magis imperii sunt quam jurisdictionis. In Pand. tit. de Jurisdict. §. 43. p. 104, b.

In voc. municipium et municeps. Vid. etiam Spanhem. Orbis Rom. Exerc. 1. cap. 13. p. 99, &c.

8 Neque ulla populi Romani lege adstricti, ni populus eorum fundus factus est. Noct. Att. I. 16. cap. 13. For the meaning of this phrase consult Cic. pro Balbo, et Spanh. Orb. Rom. p. 97, 98.

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lowed their own customs and laws sine imperio populi Romani h. They had a power, therefore, of their own to enforce their laws, and had no need to apply to the Roman magistrate to assist them herein. And indeed, had it not been so, how could it be said with any tolerable propriety, as it is by Festus, that they had republics separate or distinct from the Roman people i ? Livy tells us of several people conquered by the Romans that chose rather to be governed by their own laws than to have the freedom of the city of Romek. And Aulus Gellius relates from Adrian, that the inhabitants of Præneste besought the emperor Tiberius with great earnestness that of a colony they might be made a municipium, and obtained it'. The reason was, that they might be governed by their own laws, whereas, while a colony, they were under the Roman laws. Is it possible to imagine that a people should be so very desirous of being governed by their own laws, if at the same time their magistrates had not the power of putting those laws in execution ? Of what advantage could their laws be to them, if they were not able to enforce the observation of them by proper punishments? It is evident to me, therefore, that the law we are speaking of was made after the reign of Tiberius. The same thing appears also from the admiration expressed by the emperor Adrian that

h Genial. Dies, 1. 4. c. 10. p. 974.

i At Serfilius aiebat initio fuisse, qui ea conditione cives Romani fuissent, ut semper rempublicam separatim a populo Romano haberent. In voc. municeps. Vid. etiam Spanh. Or. R. Ex. 1. cap. 13. p. 105.

k L. 9. C. 43. 45. Maximo opere a Tiberio imperatore petîsse orâsseque ut ex colonia in municipii statum redigerentur. L. 16. c. 13.

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