JUDEX PEDA´NEUS
JUDEX PEDA´NEUS This term first occurs in the
writings of the Roman classical jurists, being used by Ulpian, Paulus, and
subsequent writers. It appears to have been introduced, not to denote a
particular species of judex, but to distinguish a judex privatus from a
magistratus, the magistratus being sometimes called judex, as the practice
of his deciding cases himself without the intervention of a judex proper
became more frequent. The word
pedarii or
pedanei was applied to senators or
decuriones who had not attained the office of magistratus, and hence the
expression
judex pedaneus may have been derived
(
Gel. 3.18; Orell.
Inscr. 3721
(Album Canusinum, 5.261), “duumviralicii, aedilicii, quaestoricii,
pedani, praetextati” ). When the formulary procedure came to an
end, and with it the institution of judices privati, the Praetor or Praeses,
who was sometimes designated as judex ordinarius or judex simply (Cod.
Theod. 1.7), generally decided civil actions himself; but in order to
prevent him being overburdened with judicial work, a body of paid official
judges, probably taken from the matriculated advocati of each court [
ADVOCATUS], was appointed to
assist him in trying such actions, who were called judices pedanei,
“hoc est qui negotia, humiliora disceptent” (Cod. 3, 3, 5).
Diocletian, A.D. 294, expressly allowed magisterial jurisdiction to be
delegated to these judices, but at the same time he enjoined praesides
generally to decide cases themselves, and only to make use of judices
pedanei when it was absolutely necessary (Cod. 3, 3, 2). Julian, A.D. 362,
prohibited praesides from appointing judices pedanei except in unimportant
cases (Cod.
Just. 3,
3,
5; Cod. Theod. 1.16, 8; Orelli-Henzen, 6431).
The proceedings before this new kind of judices pedanei were the same as
before the Praetor or Praeses. It would seem that they acted on each
occasion when they were employed under a special commission from the
magistrate, certain kinds of cases being delegated to them. The more general
terms--judex datus a magistratu, judex delegatus, judex specialis--are
sometimes used instead of judex pedaneus. These judges are also called
arbitri,
διαιτηταί. The Greek term for judex
pedaneus is
χαμαιδικαστής (Theoph. 4.15,
pr.; Lydus,
de Magistr. 3.8).
(Cod.
Just. 3,
3,
de
pedaneis judicibus; Nov. 82,
περὶ τῶν
δικαστῶν; Bethmann-Hollweg,
Der römische
Civilprocess, 2.71, 3.140; A. Pernice in
Der Zeitsch. d.
Sav. Stift. 103, &c.; Mommsen,
Röm.
Staatsrecht, ii.2 938).
[
E.A.W]
