CHAPTER III.

THE JUDICES OF ROME.

The judicial procedure of Rome, though scientifically elaborated at an early date, and far more restricted by ceremonial forms and addicted to nice technicalities than that of the Greeks, "was, to a great extent, derived from and formed by that of Athens. We are accustomed to translate the word 'judex' by 'judge,' but there was no officer or magistrate known to the Romans who discharged precisely the duties which with us belong to the judge; the prætor came nearest to it; but judex' will be much better translated by the word 'juryThis view coincides in a general way with that advanced long since by Dr. Pettingal,' who maintained that among the Romans the judices originally never signified judges or presidents of the court, but “a body of men quite distinct from the prætor or judex questionis, who corresponded to our judge of the bench and was equivalent to the archon, ἡγεμων δικάστεριων.”

man.'" a

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A brief historical and analytical study of Roman jurisprudence is requisite for the proper understanding of of the institution under consideration, aside from its instructiveness for the student of law generally.

1 The term is derived from jus (right, law) and dico (I tell, declare)— the judices, therefore, being those who determined or laid down the right. This corresponds to the derivation of 'dikast,' ante.

? Cooley, Am. Cycl. IX. art. Jury.

8 cf. ante, p. 11.

4 The magistrate last mentioned officiated at criminal trials only.-See post, page 37.

"In Rome," writes a modern German jurist of eminence", "the administration of justice between man and man constituted an attribute of sovereignty, and as such was exercised originally by the kings and subsequently by the consuls. The sharp demarcation between what we distinguish as executive and judicial functions was not a part of Roman civil polity." In course of time, it became customary for the consuls to delegate this civil jurisdiction to two prætors as their peculiar sphere of utility, which designation, however, in nowise excluded the latter from participation in affairs of state, nor the other prætors—or the consuls-from the exercise of judicial authority. With the acquisition of new provinces, additional prætors were appointed to administer justice in each, so that at the fall of the republic their number was sixteen.

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"It appears, moreover, as a very ancient institution, that the functions of the officiating [rechts sprechenden] magistrate did not comprise the complete control of the proceeding from first to last, but were limited to its initiation and orderly disposition; the proceeding, accordingly, did not terminate in a final decree or sententia [judgment], but in a judicium [verdict], which-depending on the direction of the magistrate as to what, and by whom, questions shall be adjudged-was a determination either by some standing tribunal or by (one or more) judices specially assigned. . . . Hence every lawsuit consisted of two successive divisions, the pro

5 Von Keller, Römischer Civil-Process (5th ed.) § 1.

6 These were respectively the prætor urbanus (qui inter cives jusdicit), and the prætor peregrinus (qui inter cives et peregrinos jusdicit). Id. § 2 (p. 6).

ceeding in jure' and that in judicio [the former being conducted before the magistrate, the latter before a private citizen acting as judex or arbiter]; which systematic partition constituted the so-called ordo judiciorum privatorum or the ordinary civil procedure."

The permanent tribunals above referred to were the Decemviri (litibus judicandis or Judices Xviri) and the Centumviri. As 'judges' of the second class, the Judices privati proper, are mentioned judices, arbitri and recuperatores; of whom the former two (except at a very ancient period the arbitri) were never more numerous

1 Every place where the court according to law and custom pronounces judgment, is termed jus; and what is there transacted by or before it, is done in jure. 1d., § 3, (p. 12).

8 Our authority then proceeds to state that various exceptions to this method of procedure were recognized in the course of time, chiefly in cases [vide 1d. § 81] of trusts or fidei commissa, questions of manumission and emancipation, guardianship, funereal regulations and testamentary dispositions, and some others "wherein the court would conduct the proceeding from first to last without any judicium, and pronounce final judgment. This was the so-called extraordinaria cognitio or the procedure extra ordinem"-which term is also, in another and more comprehensive sense, applied to the court's jurisdiction in granting relief analogous to our 'Provisional Remedies.'

"These exceptions became more and more extended in the first centuries of the empire, till finally at the end of the third century the old system was wholly abrogated, the distinction between jus and judicium abolished, and the ordinary merged in the extraordinary procedure." Röm. Civ. Proc., § 1 (pp. 5, 6).

Of the centumviral court (Judices Cviri), Prof. Morey writes that, "although it seems to have existed from very early times down to the later empire, very little is definitely known. It was a permanent tribunal made up of over a hundred members (from 105 to 180) presided over by the prætor, and exercising the same kind of authority as that exercised by the judices. The causes that came under its cognizance were probably those more closely related to the old jus civile, as questions regarding Quiritarian ownership [as to which see ibid, pp. 74 and 283, f], and certain questions relating to status and inheritance. The antiquity of this court is evident from the fact that a spear, the ancient symbol of ownership, continued (as Gaius declares) to be set up in its place of meeting."-Outlines Roman Law, p. 390 (N. Y. 1884).

than one, while the last class always consisted of a larger number, for each case tried by them.20

It is with the "judex" that we are more particularly concerned, and it may here be premised that the term varies in meaning at different periods of Roman history, besides designating a variety of 'triers' at any one period. In this connection an able American authority," which succinctly embodies the results of the most recent researches, may be advantageously followed.

"An important feature of the judicial system of Rome during the time of the republic and the empire was the fact that the pronouncing of judgment was not, as a general thing, left to the magistrate, but to private persons invested by the magistrate with a judicial commission to try the case in hand. Such persons were generally called judices. They bore some resemblance to the English jurors in being chosen from the non-official class of citizens and in dealing more especially with the facts of the case. But in Rome there was generally one judex only, who was appointed in a civil case and to whom was left the whole investigation and decision, after the issue had been joined before the magistrate. The person to whom the case was referred was sometimes called an arbiter," when a greater degree of latitude was al

10 Röm. Civ. Proc., § 4 (p. 20).

11 Morey, Outl. Rom. Law, pp. 390, 391.

12" When the judex was directed to decide according to equity and good conscience, without strict reference to the instructions of the magistrate,"-viz, in actions bonæ fidei (as contradistinguished from the ordinary actions stricti juris), which were suits of a quasi-equitable character and adapted to the enforcement of obligations mutual or reciprocal in their nature-"he was called an arbiter." Pomeroy, Munic. Law, § 108. These arbitri must not be confounded with arbitrators (arbitri ex compromiso), which, in our law, "are judges chosen by the parties to decide the matters submitted to them, finally and without appeal." Per Grier, J., Burchell v. March, 58 U. S. 17 How. 344, 15 L. ed. 96.

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lowed in pronouncing the sentence. When several persons were commissioned to decide a case, they were called recuperatores." " Hence (until the reign of Diocletian) there prevailed the distinction between those who exercised jurisdiction (jus dicere) and those who pronounced judgment (judicium)—which "proceeding in judicio was simply a private investigation, conducted by the person appointed as judex with a view to ascertain whether the claims of the plaintiff were well founded." " With the judex there was originally always—and subsequently, probably at the option of the prætor or the judex, upon the suggestion of the parties-joined a consilium of "assessors, who gave legal advice and assistance to those administering justice," as the intricacies of a case required.

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The form, development, and final extinction of the system of judices, in the progress of Roman jurisprudence, may be considered in three stages, and the same authority will be followed. "The most ancient mode of procedure was the actio sacramenti. [which] represents a mock combat followed by a reference of the case to arbitration.

"The feigned quarrel was followed by the interference of the magistrate, who called out to both disputants to

18 As to Recuperatores, cf. post, note 24.

14 Morey, Outl. Rom. Law, 28.

15 Thus Cicero delivered his oration Pro Quintio-in a suit which concerned a sponsio prejudicialis or bail bond-before a single judex assisted by a consilium.

So Aulus Gellius (Noctes Atticae, XII. 13, refers to the addition of 'persons learned in the law' to the panel:

Denique ut tanto minus esset periculi ne imperiti judicarent, solebant aliquando iis unus aut plures judicii socii jurisperiti adjungi, quorum consilio omnia agerent."