JUDEX
JUDEX,
JUDI´CIUM. A Roman magistratus
generally did not investigate the facts in dispute in such matters as were
brought before him: he appointed a judex for that purpose, and gave him
instructions [ACTIO; INTERDICTUM]. Accordingly,
the whole proceedings in a civil action were expressed by the two phrases
jus and
judicium, of which the former comprehended all that took place
before the magistratus (
in jure); and the
latter, all that took place before the judex at the actual trial of the
issue (
in judicio). The office of judex
(
judicandi munus) in private causes was
either performed by public bodies of persons,--that is, by the decemviral or
centumviral colleges,--or, as became the ordinary rule, by private persons
selected by the magistratus, with the co-operation of the parties, from such
classes of persons as were qualified to serve. The decemviri are probably to
be identified with the
decemviri stlitibus
judicandis of the Twelve Tables, and may have been the judges
instituted by Servius Tullius for determining private suits, when the
principle of limiting magisterial power by the institution of private judges
may have been first established. (
Dionys. A. R.
4.25: but see Mommsen,
Röm. Gesch. 566,
1; Lange,
Röm.
Alterth. 601, 903.) The centumviri were a body of one hundred
and five members, three being chosen from each tribe (Festus,
Epit.
“centumviralia judicia” ). These two plebeian colleges came to
be amalgamated for certain purposes, while in certain other cases they acted
separately.
Cases concerning rights of freedom and citizenship were submitted to the
decemviri (
Cic. pro Caec. 33,
97;
pro Domo, 29, 78). The centumviri decided
cases relating to property and inheritance (
Cic. de Or. 1.3. 8, 57;
Plin. Ep. 5,
1;--
V. Max. 7.7,
1,
2,
5;
8.2,
4). The
constitution and practice of these judicial bodies were considerably changed
by Augustus (
Suet. Aug. 36;
Plin. Ep. 5,
21;
D. C. 54.26: cf. Lange, 906); but the whole
subject is obscure.
Judex, arbitri, and
recuperatores are the different terms used for private
judices selected for the particular occasion. The recuperatores were perhaps
an imitation of the courts established by treaty between Rome and
neighbouring states for exercising jurisdiction, when a citizen of one state
sought a legal remedy in another state (Festus, s. v.
reciperatio: cf.
Dionys. A. R.
6.95). Recuperatores might be peregrini, whereas only a civis
could be a judex proper; and so the appointment of recuperatores, which was
made under the imperium as distinct from the jurisdictio of the magistratus,
was a means of securing an impartial tribunal in cases in which peregrini
were concerned.
The distinctive characteristics of the procedure in actions tried by
recuperatores cannot be clearly ascertained. It appears that of some actions
they had exclusive cognisance, while in certain others they might be used
concurrently with other kinds of judices. They were, it seems, more
expeditious in their proceedings than other judices (cf. Cic.
pro
Tull. § 10, “ut quam primum de re
judicaretur” ). A recuperator never acted alone, but was always
associated with others, the maximum number in a case not exceeding five.
Recuperatores could not try a
judicium
legitimum, but only
unus judex
(Gaius, 5.103-109).
Sometimes the judex was called
arbiter ; thus
judex and arbiter are named together in the Twelve Tables (Festus, s. v.
reus;
Gel. 20.1,
7). Arbiter
(ar=
ad and biter=
ire), as opposed to judex, is a judge appointed to try a case
according to the principles of
bona fides, the
case being of such a kind as is best left to the free discretion of an
impartial person, whereas the province of a judex proper was defined by the
magistratus. Either a single arbiter might be appointed or several might be
associated together. Arbitri, who acted under a private agreement between
the parties to a suit for the purpose of settling it (
arbitri ex compromisso), are to be distinguished from arbitri
appointed by a magistratus. The distinction between judex and arbiter led to
a division of actions into
arbitria and
judicia, though judicium in a general sense
includes arbitrium. The following is the distinction between an arbitrium
and judicium according to Cicero (
pro Rose.
Com. 4, 10):--In a judicium the demand was of a certain sum or
definite amount (
pecuniae certae); in an
arbitrium the amount was not determined (
incerta). In a judicium the plaintiff obtained all that he
claimed or nothing, as the words of the formula show: “Si paret H. S.
ccc. dari oportere.” The corresponding words in the arbitrium
were “quantum aequius melius id dari,” and their equivalents
were “ex fide bona, ut inter bonos bene agier”
(
Top. 17, 66). In a dispute about dos, which Cicero calls
“arbitrium rei uxoriae,” the words “quod aequius
melius” were added. (Cf. Gaius, 4.61, 62.)
From the arbitria the actions called
bonae
fidei were derived, while the actiones
stricti juris were judicia in the strict sense [
ACTIO]. The formula arbitraria was
a combination of an arbitrium and judicium in one formula (Keller,
§ 28).
There was an idea of agreement between the plaintiff and defendant in the
selection of a judex, though the actual appointment (
judicis datio) was made by the magistratus. It was the rule
for him to appoint the person or persons agreed on between the parties. If
they were unable to agree, the plaintiff proposed some one ( “judicem
ferre adversario,” Cic.
pro Ros.
Com. 14, 42; 15, 45; but the defendant,
[p. 1.1027]by swearing that the person proposed was not impartial ( “iniquum
ejurare,”
Cic. de Or. 2.7. 0, 285;
in Verr. 3.60, 137;
Phil. 12.7, 18), could
prevent his appointment. If the defendant abused his right of rejection with
the object of preventing a trial, he was probably a defendant who made no
defence (
indefensus). The above was the mode of
taking a judex or arbiter (
sumere judicem) in
the time of the republic: it was not, however, applicable to recuperatores,
the practice of choosing these being for the magistratus to select a number
of persons, either by lot (
sortitiones from the
conventus) or by special selection (
decurias
scribere); and for this list, which was larger than was necessary,
to be reduced by rejections of the plaintiff and defendant to the number of
judges required (
Cic. in Verr.
2.13, 15, 16, 17; 3.11, 59;--C.
I. L. 1.81). Under the
empire the magistratus selected the judex in all cases, the parties having
simply a right of challenge on certain grounds. (For an account of the
effect of the leges judiciariae on the qualification and modes of
appointment of judices, see below.)
Mention is often made of the Judicia Populi in the Latin writers. A judicium
was commenced by the accuser, who must be a magistratus, declaring in a
contio, that he would on a certain day accuse a certain person, whom he
named, of some offence, which he also specified. This was expressed by the
phrase
diem dicere ( “Virginius Caesoni
capitis diem dicit,”
Liv. 3.11). If the offender held any high office,
it was necessary to wait till his time of service had expired, before
proceedings could be thus commenced against him. The accused was required to
give security for his appearance on the day of trial; the security was
called
vades in a causa capitalis, and
praedes when the penalty for the alleged offence was
pecuniary. If such security was not given, the accused was kept in
confinement (
Liv. 3.13). If nothing prevented the
inquiry from taking place at the time fixed for it, the trial proceeded, and
the accuser had to prove his case by evidence. The investigation of the
facts was called
anquisitio with reference to
the proposed penalty: accordingly, the phrases
pecunia,
capite or
capitis anquirere, are
used (
Liv. 26.3). When the investigation was
concluded, the magistratus promulgated a rogatio, which comprehended the
charge and the punishment or fine. It was a rule of law that a fine should
not be imposed together with another punishment in the same rogatio (
Cic. pro Dom. 17, 45). The
rogatio was made public during three nundinae, like any other lex; and
proposed at the Comitia for adoption or rejection. The form of the rogatio,
the effect of which was to drive Cicero into banishment, is given in the
oration
pro Domo (18, 47). The accused
sometimes withdrew into exile before the votes were taken; or he might make
his defence, of which we have an instance in the oration of Cicero for
Rabirius. Though these were called Judicia Populi, and properly so in the
early ages of the state, the leges passed in such judicia in the later
period of the republic were often Plebiscita.
The offences which were the chief subjects of Judicia Populi and Publica were
Majestas, Adulteria and Stupra, Parricidium, Falsum, Vis Publica and
Privata, Peculatus, Repetundae, and Ambitus, which are treated under their
several heads.
With the passing of special enactments for the punishment of particular
offences, was introduced the practice of forming a body of Judices for the
trial of such offences as the enactments were directed against.
The Judicia Populi were originally held in the Comitia Curiath, and
subsequently in the Centuriata and Tributa. A lex of P. Valerius Publicola
(
Liv. 2.8;
Cic.
Rep. 2.31) gave an appeal (
provocatio) to the populus from the magistratus; and a law of
C. Sempronius Gracchus (
Cic. pro Rab.
Perd. 4, 12) declared to the same effect: “Ne
de capite civium Romanorum injussu populi judicaretur.”
The kings presided in the Judicia Populi, and the consuls succeeded to their
authority. For an account of later changes, see
JUDICIUM PUBLICUM
As many of those who were tried in the quaestiones perpetuae belonged to the
class of the Optimates, it often happened that the judices acquitted those
members of their own body who would have been convicted by impartial
judices. Accordingly a struggle arose between the popular party and the
Optimates, whom the popular party wished to exclude from the office of
Judex. The laws which relate to the constitution of the body of Judices are
called Judiciariae, whether these laws related only to this matter, or made
rules about it and other things also. The first lex which excluded the
Senators from the Album judicum selectorum was a Lex Sempronia of C.
Gracchus, B.C. 123, in accordance with which the judices were taken only
from the Equites (Liv.
Epit. lx.; Appian,
App. BC 1.22;
Tac.
Ann. 12.60; Cic.
Act. i.
in Verr.
13, 38; Ps.-Ascon.
ad Div. in Caecil. p. 103 Or.;
Vell. 2.6,
32). This
arrangement lasted above forty years, and gave satisfaction to the popular
party; but it did not work well in all respects, because the magistrates in
the provinces favoured the rapacity of the Publicani, in order to keep on
good terms with the Equites, to which class the Publicani belonged (
Cic. Ver. 3.41, 94). The Lex Acilia repetundarum (formerly known as the Lex
Servilia), B.C. 121, seems to have directed that the album for this quaestio
should be composed of Equites; that is, of persons registered in the census
as having a certain amount of property, other than senators. A Lex Servilia
Caepionis, B.C. 106, seems to have associated senators with the Equites as
judices. There is a passage in Tacitus (
Tac. Ann.
12.60) in which he speaks of the Serviliae leges restoring the
judicia to the senate; but the Lex Servilia Glauciae, B.C. 104, is said to
have given the judicia to the Equites, and consequently it either repealed
the Lex of B.C. 106 indirectly, or it may merely have confirmed the Lex
Sempronia; for the real nature of the Lex of B.C. 106 is hardly
ascertainable. The Lex Servilia of B.C. 104 excluded from the function of
Judices every person who had been tribunus plebis, quaestor, triumvir
capitalis, tribunus militum in one of the first four legions, triumvir agris
dandis assignandis, who was or had been in the senate, who was infamis,
every person who was under thirty or above sixty years of age, every person
who did not live in Rome or
[p. 1.1028]in the immediate
neighbourhood, every father, brother, or son of a person who was or had been
in the senate, and every person who was beyond seas. The attempts of the
tribune M. Livius Drusus the younger, B.C. 91, had no lasting result [LEGES LIVIAE].
A Lex Plautia, B.C. 89, enacted that the Judices should be chosen by the
tribes, fifteen from each tribe, without any distinction of class, thereby
putting the nomination of judges in the hands of the people. The Optimates
triumphed under L. Cornelius Sulla, who by a Lex Cornelia, B.C. 80, enacted
that the Judices should be taken from the senate and 300 Equites. But a Lex
Aurelia (B.C. 70) enacted that the Judices should be chosen from the three
classes--of Senators, Equites, and Tribuni Aerarii (Veil. 2.32; Liv.
Epit. xcvii.;
Cic. Clu. 47,
130). The Tribuni Aerarii were taken from
the rest of the citizens, and were, or ought to have been, persons of some
property. Thus the three decuriae of Judices were formed; and it was either
in consequence of the Lex Aurelia or some other lex that, instead of one urn
for all the tablets, the decuriae had severally their balloting urn, so that
the votes of the three classes were known. Dio Cassius (38.8) ascribes this
regulation to a Lex Fufia, and he says that the object was that the votes of
the decuriae (
ἔθνη, γένη) might be known,
though those of individuals could not, owing to the voting being secret. It
is not known if the Lex Aurelia determined the number of Judices in any
given case. A Lex Pompeia, passed in the second consulate of Pompey (B.C.
55), seems to have made some modifications in the Lex Aurelia as to the
qualification of the Judices; but the new provisions of this lex are only
known from Asconius, who explains them in terms which are very far from
being clear.
A Lex Judiciaria of Julius Caesar (
Suet. Jul.
41;
Cic. Phil. 1.8,
19) took away the decuria of the Tribuni
Aerarii, and thus reduced the Judices to two classes (
genera, the
γένη of Dio
Cassius). A Lex Judiciaria, passed after his death by M. Antonius, restored
the decuria of the Tribuni Aerarii, but required no pecuniary qualification
from them: the only qualification which this lex required was, that a person
should have been a centurion or have served in the legions. It appears that
the previous Lex Pompeia, Lex Aurelia, and a Lex of Caesar had given to
those who had been centurions (
qui ordines
duxerant) the privilege of being judices (
judicatus), but still they required a pecuniary qualification
(
census). The Lex of Antonius, besides
taking away the pecuniary qualification, opened the judicia to the soldiers
(
Cic. Phil. 1.8,
20;
5.5,
12;
Suet.
Jul. 100.41). It seems probable that the expression
ex centuriis, which is used by Asconius in speaking
of the change introduced by this Lex Pompeia, had reference to the admission
of the centurions into the third class of judices.
Augustus, who altered the whole constitution of the body of judices by his
leges judiciorum publicorum et privatorum, added to the existing three
Decuriae Judicum, a fourth Decuria, called that of the Ducenarii, who had a
lower pecuniary qualification, and only decided in smaller matters (
de levioribus summis, Suet.
Aug 32).
Caligula (Suet.
Calig. 16) added a fifth Decuria, in order to
diminish the labours of the judices. Augustus had already allowed each
Decuria in its turn, an exemption for one year, and had relieved them from
sitting in the months of November and December. The whole number of judices
was raised by Augustus to near 4000 (Plin.
H. N 33.30); and
the judices in civil cases were taken out of this body. They were chosen by
the praetors out of the persons who had the property qualification, and the
duty of serving as a judex thus became one of the burdens to which all
citizens with any property were liable.
The judices in a quaestio were selected from an album in which the names of
persons qualified to serve were inscribed by the praetor. According to the
Lex Acilia repetundarum (1. 12-19), the praetor peregrinus in the first
year, and subsequently the praetor to whom the quaestio was allotted, was
bound to select 450 judices from the tribes, and to publish an album with
their names inscribed on it ( “judices de quaque re constituti”
), from which he was bound to choose judices for this quaestio. The same
practice probably obtained in respect of the other quaestiones. Whether the
praetor urbanus or peregrinus were bound to make their choice from such
lists is uncertain. According to Mommsen, the praetor urbanus was not, till
after the enactment of the Lex Aurelia, and the praetor peregrinus was
unrestricted in his choice till a later date. The Lex Aurelia for the first
time required the praetor urbanus to make a general list for all trials
which were not specially excepted; the judicia quae imperio continentur and
recuperatoria--trials held under the jurisdiction of the praetor peregrinus,
municipal magistrates, and governors of provinces--being, according to
Mommsen, exempted from this limitation as to the choice of judices. The
rules as to the selection of judices to form a consilium in a quaestio
differed at different times and in different quaestiones.
In early times the notion that the parties to a trial should agree to select
the judges who were to try the issue between them had some influence. Thus,
according to the Lex Acilia repetundarum, the prosecutor proposed 100
judices out of the 450 in the album of this quaestio; the defendant then
proposed a like number, and from the 100 of his opponent each party then
chose 50. Under the Leges Judiciariae of Sulla, a decuria of the senate was
chosen by the praetor by lot, from which each party might reject three, or,
if they were senators, a greater number. The general rule which came to be
established was, that the presiding praetor chose the judices for a quaestio
by lot from an album, both the accusator and the reus having certain rights
of rejecting or challenging (
rejicere) such judices
as they did not like (
Cic. ad Att. 1.16). The exercise of the
right of challenge might make a fresh ballot for judices (
subsortitio) necessary (
Cic. Ver.
1.61, 157). The judices
appointed according to the provisions of the Lex Licinia de Sodalitiis, B.C.
55, were called
edititii; in this case the
prosecutor designated four tribes, of which the defendant could reject one,
the prosecutor then nominating the judges from the remaining three without
any challenge being allowed to the defendant.
Edititius or
exlitius judex is
properly a judex,
[p. 1.1029]which one of the parties has
allowed the other to select (cf. Serv.
ad
Verg. Ecl. 3.50: “nec quemquam fugio,
id est consentio etiam ad edititium. Edititius autem judex est, quem una
pars eligit.” Festus, p. 381 M.: “Exlitius judex, quem una
pars eligit;”
Cic. pro Planc. 15-17,
§ § 36-43).
In the matter of Clodius and the Bona Dea, the senate attempted to carry a
lex by which the praetor who was to preside at the trial should be empowered
to select the judices at his discretion, the effect of which would have been
to prevent their being challenged by Clodius. After a violent struggle, a
lex for the regulation of the trial was proposed by the tribune Fufius and
carried: it only differed from the lex recommended by the senate in the mode
of determining who should be the judices (
judicum
genus): a difference, however, which was not unimportant, as it
secured the acquittal of Clodius. The judices voted by ballot, and a
majority determined the acquittal or condemnation of the accused. If the
votes were equal, there was an acquittal (Plut.
Marius, 5). Each judex was provided with three tablets (
tabulae), on one of which was marked A, Absolvo; on
a second C, Condemno; and on a third N. L., Non liquet. The judices voted by
placing one of these tablets in the urn (
urna,
Juv.
Sat. 5.4), which was then examined for the
purpose of ascertaining the votes. It was the duty of the magistratus to
pronounce the sentence of the Judices; in the case of condemnation, to
adjudge the legal penalty; of acquittal, to declare him acquitted; and of
doubt, to declare that the matter must be further investigated (
amplius cognoscendum).
The Lex Pompeia de vi and de ambitu (B.C. 52) determined that eighty judices
were to be selected by lot, out of whom the accuser and the accused might
reject thirty. In the case of Clodius (B.C. 61), in the matter of the Bona
Dea, there were fifty-six judices. It is conjectured that the number fixed
for a given case by the Lex Aurelia was seventy judices.
It will be noticed that the number of judices composing a consilium varied,
and that it was always considerable.
As to the whole number of judices, included at any given time in the Album
Judicum, it seems almost impossible to state anything with precision; but it
is obvious from what has been said, that the number must have varied with
the various changes already mentioned. After the time of Augustus the number
was about 4,000, and from this period, at least, there is no doubt that the
Album Judicum contained the whole number of persons who were qualified to
act as judices, both in Judicia Privata and Judicia Publica, with the
exception perhaps of the persons who were to act as judges in the
centumviral court. The fourth Decuria of Augustus was limited in its
functions to the Judicia Privata in which the matter in dispute was of small
value. There is much difference of opinion among modern writers of authority
on the question whether the leges judiciariae previous to Augustus affected
Judicia Privata; and if so, to what extent. It is probable that the Lex
Sempronia and the succeeding enactments were only intended to apply to
criminal trials, and that the praetor began to take judices privati from the
Equites by his own authority (
ad Att. 6.1, 15;
pro
Rosc. Com. 14; cf.
Suet. Aug.
32), instead of confining his choice to the senate as had been the
previous practice. But we may accept Mommsen's view that the Lex Aurelia
extended to judicia legitima, so that the unus judex had to be taken from
the general album which this law first established. Under the empire the
quaestiones were gradually superseded by the judicia extraordinaria, by
which change criminal justice was exclusively administered by officials,
thus becoming inquisitorial in its character, with a procedure less like
that of a private action.
A judex when appointed was bound to discharge the functions of the office, it
being a
munus publicum, unless he had some
valid excuse (
excusatio). A person might also
be disqualified from being a judex on various grounds (Keller, §
11). There were certain seasons of the year when legal business was done at
Rome ( “cum res aguntur,” Gaius, 2.279, and Mr. Poste's comm.),
and at these times the services of the judices were required. These legal
terms were regulated according to the festivals and seasons, so that there
were periods of vacation (
Cic. Att. 1,
1, “cum Romae a judiciis forum
refrixerit” ); in the provinces the term depended on the conventus. A
judex was liable to a fine if he was not in attendance when he was required.
In the new organisation of the Italian towns [LEX
RUBRIA DE GALLIA CISALPINA; LEX JULIA MUNICIPALIS] the magistrates
had a power analogous to jurisdictio, and appointed a judex as the praetor
did at Rome. The album decurionum, generally speaking, served as an album
judicum, but Augustus allowed the plebs to share in the judicial office.
In the provinces the governors generally appointed judices at the conventus,
which they held for the administration of justice (
Cic. in Verr. 2.13, 32;--
ad Att.
6.1, 15; 2, 4), but in some provinces there were special regulations
respecting the mode of making such appointments.
The magistratus could fix the place and the time at which the trial was to
take place. In the case of a
judicium quod imperio
continetur (Gaius, 4.105), judgment had to be given during the
year of office of the praetor who granted the formula; a
judicium legitimum, on the other hand, was not originally
limited to any time, but by a Lex Julia it had to be concluded within a year
and six months (Gaius, 4.104).
The magistratus could compel a judex to proceed in a case ( “judicium
cogere,” Lex Rubria, 100.20, 1. 23; 100.21, 1. 24); he could also
put a stop to the proceedings for a time or altogether, but he had no right
of interfering with the actual conduct of the proceedings, though he could
punish a judex for his misbehaviour. A judex who culpably gave a wrong
decision was said to make the cause his own (Inst. 4.5, pr., “Judex
qui litem suam facit;” Theoph.
Paraphr.
καθ᾽ ἑαυτοῦ δίκην ἤγειρε), and was
liable to an action for the damage which the party injured by his decision
had sustained. The judex on entering upon his duty (
officium) had to take an oath that he would discharge it
faithfully (
Cic. de Invent. 1.3.
9, 70).
When the judex was appointed, the proceedings
[p. 1.1030]in jure or before the praetor were
terminated, which was sometimes expressed by the term
litis contestatio, the phrases
lis
contestata and
judicium acceptaum being
equivalent in the classical jurists [
LITIS CONTESTATIO]. The parties appeared in the
forum before the judex and presented the formula to him in which he was
named (
editis formulis). The appearance before
the judex took place according to Gaius (4.15) on the third day (
comperendinum diem, ut ad judicem venirent,
denuntiabant) after his appointment in the early procedure, and
this may have continued to be the rule in subsequent times. The judex was
generally aided by advisers learned in the law (
jurisconsulti), who were said
in consilio
adesse (
Cic. pro P.
Quintio, 10, 30;
Top. 17, 66;
in
Verr. 2.29, 72;--
Suet. Dom.
8;--
Plin. Ep. 1.20;
5.1;--
Gel. 12.13,
2;
V. Max. 8.2,
2), but the judex alone was empowered to
give judgment. The case was first briefly stated to the judex by the parties
(
causae conjectio, collectio: Gaius, 4.15;
cf. XII. Tab., “ante meridiem causam conjiciunto,”
Gel. 5.10,
9), after
which the judex fixed a day for hearing the cause. The proceedings, which
were public, commenced with the speeches of the advocati or patroni of each
party (
continua oratio, peroratio: cf. Gell.
l.c.
“cum perorant ambo praesentes” ), the parties themselves being
present or the persons who carried on the action in their stead (
cognitor, procurator). It was an injunction of the
law of the Twelve Tables that the trial should terminate in a day from
sunrise to sunset (
Gel. 17.2,
10); but owing to the lengthy speeches of the
advocates, adjournments (
ampliatio) became
necessary, and in Cicero's time were common. The theory, however, was that
on the day of adjournment a new action commenced. Hence the terms
prima, secunda, and
tertia
actio. Accordingly the speech of an orator had to be continuous
(
continua, perpetua oratio); that is, it
could not be interrupted by an adjournment, but another counsel on the same
side took up the case when it commenced again. Under the empire an
adjournment of a trial from day to day was freely allowed. In order to
prevent speeches being prolonged with the object of procuring an adjournment
( “dicendo diem eximere;” cf.
Cic.
pro Quint. 10, 22), the duration of speeches
in publica judicia was limited to a certain time by the Lex Pompeia A.U.C. 702, and this limit was probably extended
to privata judicia by the Lex Julia (
Plin. Ep.
1.23;
6.2). The argument of counsel in
their speeches was directed to points of law as well as of fact, the judex
differing from our jury in not being confined to questions of fact, but
having also to decide such questions of law as were indicated in the
formula.
The evidence was of various kinds. 1. It might consist of the confession of
the defendant in court, the confession
in
judicio differing from the confession
in
jure in that it did not conclude the trial, but was only treated
as evidence. 2. Sworn witnesses (
jurati testimonium
dicunt) might be examined and cross-examined (
testium interrogatio) in open court as to what they
had seen and heard (
Cic. pro Rosc.
Com. 15, 44,
pro Flacc. 10, 22;
Quint. Inst. 5.7; Paul. 5.15;
Dig. 22,
5; Cod. 4, 21; cf.
A. Escher,
Diss. de testium ratione). The number of witnesses
was generally unlimited, but in trials before recuperatores it was limited
to ten (Or.-Henz.
Inscr. 6428; Val, Prob. § 4, 8).
In imperial times a judex might restrict the number of witnesses in order to
expedite a trial. The giving of evidence in a private action was a voluntary
act, except that witnesses to a mancipation, and those who had been ordered
by a judex in a judicium publicum to give evidence, were bound to come
forward. Testimony of absent witnesses by affidavit or otherwise (
testimonium per tabulas) was allowed, but its
evidentiary value was considered inferior to oral evidence (Quint. 5.7.2;
Dig. 22,
5). 3.
Documents (
scripta, tabulae, instrumenta),
whether public or private, could be put in, such as statutes, edicts, or
account books (
tabulae). (
Cic. de Part. Or. 37, 130;
Quint. 5.5;
Gel. 14.2.7;
Dig.
22,
4; Cod. 4, 21.) 4. The parties might
produce objects as evidence for the inspection of the court. 5. As to the
application of the oath
in judicio, see
JUSJURANDUM
After the evidence had been given, an argumentative discussion (
altercatio) took place between the patroni or
advocati of the parties (Quint. 6.4;
Plin. Ep.
3.9). The ordinary course of the proceedings was changed if either
the plaintiff or defendant failed to appear in the actio (
judicium desertum, eremodicium). If the defendant when duly
summoned was in default, the plaintiff might insist on being heard and on
the case being decided. If the plaintiff did not appear, the defendant could
demand absolution (Cod. 7.43). After the case had been fully heard, the
judex proceeded to give judgment; if there were several judices, the
majority decided. If the judex could not come to a satisfactory conclusion,
he might declare this upon oath, and so make the proceedings abortive. This
was done by the form of words “juravi mihi non liquere atque ita
judicatu illo solutus sum” (
Gel.
14.2). The sentence had to be pronounced orally in court, and in the
presence of the parties. The sentence was either of
absolutio or
condemnatio [
ACTIO]. The part of the formula
which empowered the judex to condemn or acquit was called the condemnatio
[
ACTIO]. The defendant might
satisfy the plaintiff after the judicium had been constituted by
litis contestatio (
post acceptum
judicium, Gaius, 3.180; 4.114), and before judgment was given:
in this case it was a disputed question between the Sabinians and Proculians
[
JURISCONSULTI]
whether in case the action was one of strict law (
stricti
juris, judicii) the judex should acquit or whether he should
condemn, on the ground that, at the time when the judicium was constituted,
the defendant was liable to be condemned, and it was the business of the
judex merely to follow his instructions. It was agreed that in case of a
formula
bonae fidei, or formula empowering the
judex to decide according to
bona fides, it was
his duty under these circumstances to acquit; but the question was whether
he could thus acquit in actions
stricti juris
as well as those
bonae fidei ( “omnia
judicia esse absolutoria,” Gaius, 4.114). The question was only
of formal importance, as the plaintiff would be prevented by an
in integrum restitutio from having double
satisfaction.
While the
legis actiones were in force, if a
specific thing was vindicated, the judgment could only be for the
restitution of the thing,
[p. 1.1031]and a subsequent
arbitrium liti aestimandae would be necessary to
determine the damages (Gaius, 4.48); but under the process of the formula,
the judex gave judgment in all cases pursuant to the formula, in a sum of
money, even when a res was the object of a vindication (Gaius,
l.c.). In a formula arbitraria the judex was ordered
only to condemn in case the defendant refused to make proper satisfaction (
“nisi arbitratu tuo satisfaciat,” Inst. 4.6, 31), and so in
this case a preliminary declaration by the judex of the rights of the
parties called
pronuntiatio was necessary; and
if it was not obeyed by the defendant, a
condemnatio followed.
The sum of money was either fixed or not fixed in the formula. If the claim
was for a certain sum of money, the amount was inserted in the
condemnatio, and the judex was bound to give that or
nothing to the plaintiff. If the claim was for damages or satisfaction, the
amount of which was not fixed in the formula, the
condemnatio was either limited to a sum named in the formula
(
taxatio), and which the judex could not
exceed except at his own peril (
litem suam
faciendo); or the amount of damages might be left to the free
discretion of the judex, as in an action for the recovery of property from
the possessor, or in an action claiming the production of a particular thing
(
actio ad exhibendum). Generally the term
in the formula which expressed the damages which was the object of the
demand was “quanti res est.” This may mean either the market
value of the thing, or the value of the thing to the particular claimant,
id quod interest actoris or
utilitas actoris (as to these two different measures
of damages, see Poste's Gaius, 3. § § 210-219, comm.).
Res, as thus used in the formula, may mean either a thing in the limited
sense of the word, or generally the claim or demand, and the fixing this at
a money value was equivalent to
litis aestimatio.
The judex was always bound to condemn in some definite sum, even though the
formula did not contain a definite sum (Gaius, 4.48-52). In some judicia
there might be an
adjudicatio without a
condemnatio [
ADJUDICATIO]. In the division of judicial functions
between the magistratus and judex consisted what is called the
ordo judiciorum privatorum, which existed in the
early periods of Rome, and continued till the time of Diocletian. At the
same time with the
ordo judiciorum privatorum
existed in exceptional cases the proceedings
extra
ordinem or
extraordinaria
cognitio, in which the magistratus made a decision by a
decretum, without letting the matter come to a
judex. Finally, under Diocletian and his successors the
extraordinaria cognitio supplanted the old mode of procedure,
the function of judex and magistratus being combined in all cases. Thus the
magistratus is frequently called judex. In the Theodosian Code the term
judex is used to designate the governor of
a province. [JUDEX PEDANEUS; ACTIO.]
(Cf. Cicero's three speeches in civil actions:
pro P. Quintio, pro Q.
Roscio Comoedo, pro A. Caecina, with Bethmann-Hollweg's
description of them,
C. P. ii. Appendix; Gaius, bk. iv.;
Dig. 5,
1; Tigerstrom,
de Judiciis apud Romanos; Keller,
Der römische Civilprocess; Bethmann-Hollweg,
Der römische Civilprocess; E. Hartmann,
Der Ordo Judiciorum und die Judicia extraordinaria; O.
Karlowa,
Der römische Civilprocess; Zimmern,
Rechtsgeschichte; Rudorff,
Rechtsgeschichte.).
[
E.A.W]