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any ancient municipia, more particularly Italica and Utica, when they might use their own customs and laws, should gladly be made colonies m. Most certainly it could be no manner of wonder that the municipia should be greatly pleased with such a change, if their own laws were but a dead letter, and their magistrates had not the power to see them put in execution. Italica and Utica were muni. cipia during the reign of Tiberius, as is evident from his coin yet extant". We may therefore firmly conclude that this law had no being in his time. It is not improbable it was the invention of some succeeding emperor, who was for spreading the observation of the Roman laws every where through his dominions, at least among those who had the freedom of the city of Rome. In order to make those cities of Romans which had the privilege of living according to their own laws weary of that government, and the more easy and ready to receive the Roman laws, he by this law deprived their magistrates of the power of enforcing their decrees and putting their laws in execution. This, it is likely, had in a great measure attained the end designed by the time Aulus Gellius flourished, which was, I think, in the reign of Antoninus Pius; for he says, that the colonies, though less free, had the preference given them of the municipia because of the majesty of the Roman people, of which those colo
m Mirarique se ostendit, quod et ipsi Italicenses, et quædam item alia municipia antiqua, in quibus Uticenses nominat, cum suis moribus legibusque uti possent, in jus coloniarum mutare gestiverint. L. 16. c. 13.
n Vid. Cellarium, N. 0. A. v. 1. p. 53. et v. 2. Afr. p. 102. et Spanb. Orb. Rom. Ex. 1. C. 16. p. 130, 131.
nies were, as it were, small images and representations; and also because the laws of the municipia were obscure and obliterated, and not capable of being used through the want of knowing them o. The municipia lying under the disadvantage of such a law as this, it seems their laws, as it is natural to suppose they would soon, fell into disuse for want of a power to enforce them, and through neglect and disuse were obliterated; i. e. the knowledge of them was wholly lost, and the Roman law obtained in their stead; insomuch that Gellius complains that the difference between the colonies and municipia was unknown in his time, and had occasioned no small confusion in their language P. But that which gave the finishing stroke to this work, and brought the provinces, as well as municipia, into the same state with the colonies, was the law of Antoninus Caracalla, which gave the freedom of the city of Rome to all the freeborn subjects of the Roman empire 4. From this time all cities subject to Rome
• Coloniarum alia necessitudo est jura institutaque omnia populi Romani non sui arbitrii habent; quæ tamen conditio quum sit magis obnoxia et minus libera, potior tamen et præstabilior existimatur propter amplitudinem majestatemque populi Romani, cujus istæ coloniæ quasi effigies parvæ simulacraque esse quædam videntur ; et simul quia obscura obliterataque sunt municipiorum jura, quibus uti jam per innotitiam non queunt. L. 16.
p Quotus enim fere nostrum est, qui quum ex colonia ex populo Romano sit, non et se municipem esse, et populares suos municipes esse dicat -Sic adeo et municipia quid et quo jure sint, quantumque a colonia differant, ignoramus. Ibid. pr.
9 In orbe Romano qui sunt, ex constitutione imperatoris Antonini cives Romani effecti sunt. L. 17. ff. de Statu Hom. Nov.78, pr. et cap. I. Dio tells us that Mæcenas advised Augustus to do this, 1.51. p. 370. But Suetonius says that Augustus was very
were called municipia", which, as it has occasioned a confusion in the expression, has added to the difficulty of understanding some parts of the civil law s.
Having given the reasons why I cannot prevail with myself to think that the law we are speaking of had a being at the time Judæa was made a province, I further proceed to shew, that although it were never so clear that this law is as ancient as the argument supposes it, yet the other thing here taken for granted is by no means supportable ; and that is, that the municipes and provincials were, at the time we are speaking of, upon the same footing, and equally obliged by this law. That they were so after the freedom of the city of Rome was communicated to all the members of the Roman empire by Antoninus Caracalla, is easily granted: but to assert that they were so two hundred years before this, is to contradict all that has been said upon this subject by ancient writers, and to confound things which are most distinct. The municipes were Roman citizens, the provincials were not. Supposing therefore that this law had a being at the time we have mentioned, which I am persuaded it had not, is there no reason to be assigned why it should be confined to the municipes, why not extended to the sparing in granting to any the freedom of the city, and set his heart much upon keeping the Roman people pure from corrupt and servile mixtures, in Aug. c. 40. And Dionys. Hal. says, he gave it in his last commands to Tiberius not to confer the freedom of the city on many, l. 56. p. 541.
"Nunc abusive municipes dicimus suæ cujusque civitatis cives; ut puta Campanos, Puteolanos. L. 1. . 1. ff. ad municipalem. Vid. Schulting. Jurisprud. vet. p. 402. n. 12, b.
* Vid. Spanheim. Orb. Rom. Ex. 1. cap. 13. p. 106, 107. et Ex. 2. c. ult. p. 575, 576.
provincials ? Might not the senate and people of Rome, or the emperor Augustus, judge it beneath the dignity of Roman citizens to be tried and punished by any but magistrates of the first rank? or to have even the municipal laws of Roman citizens enforced by persons of a lower degree than those who enforced the Roman laws ? Might they not also be desirous that all such who were made partakers of the Roman citizenship should be governed by the Roman laws, and hope by this method the more easily to bring them to it? But as the provincials did not stand in the same relation to them, it is natural to suppose they might not have the same concern for them, and therefore might leave them more under the power of their own magistrates.
SECT. II. An answer to the second and third arguments, taken from
the civil law.
ANOTHER argument taken from the Roman law is, that merum imperium (or the power of judging and punishing criminals) belonged to no magistrate, unless it were given him by some special law or constitution t; insomuch that this power could by no means be transferred to those magistrates who had a delegated jurisdiction. Now if this power was not lodged in the Roman magistrates themselves, without an express law, it is not reasonable to judge that the Jews should have it, forasmuch as it is nowhere mentioned that such a law was made in their faI readily acknowledge that the cognisance of criminal causes belonged to none among the Romans unless granted them by some special law, or by the constitution of the prince. And I hope to make it fully appear, when I come to lay down the reasons why I believe the Jews did retain among them the power of trying and executing in capital causes, that it is highly probable at least that this power was granted them by the express constitution of the Roman emperors.
1 L. 1. ff. de Offic. ejus cui mandata est Jurisd. u Huber. Diss. I. 1. p. 11, 12.
A third argument taken from the civil law is, that merum imperium (or the power of sitting in judgment on and executing criminals) was with the presidents alone in those provinces over which they were placed *.
That the cognisance of criminal as well as civil causes was with the president of every province I have already acknowledged; but to assert that it was with him alone, is taking the thing in dispute for granted. I am very sure the laws referred to y say no such thing; and if they did, what would be the consequence? This argument would prove far more than the persons who make use of it intend. They acknowledge that the power of inflicting lesser punishments, such as scourging and the like, was lodged in Jewish magistrates 2: but how could this be, if the cognisance of all criminal causes was solely in the president ? Merum imperium includes the hearing and determining all sorts of crimes, and inflicting lesser as well as greater punishments 4, and
Huber. ibid. p. 13.
L. 6. §. 8. ff. de Offic. Præsidis ; 1. 4. ff. eodem; l. 3. V. 13. ff. eod.
z Huber. Diss. 1. 1. p. 13, 35-38. Lardner's Cred. vol. i. p. 65, 66. 151. ff. de Jurisd. l. 1. pr. g. 1-4, 13. ff. de Offic. Præf. Urbi, 1.7.
* L. 3.