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were periods of vacation (Cic. ad Ait. i. 1 ; cum Romae a judiciis forum refrixerit) : in the provinces, the terms depended on the Conventus. A Judex was liable to a fine if he was not in attendance when he was required. In any given case, the litigant, parties agreed upon a judex or accepted him whom the magistratus proposed. A party had the power of rejecting a proposed judex, though there must have been some limit to this power. (Cic. pro Cluent. 43.) In cases where one of the litigant parties was a peregrinus, a pere-grinus might be judex. (Gains, iv. 105.) The judex was sworn to discharge his duty faithfully. (Cic. de Invent, i. 39.)
When Italy had received its organization from the Romans, the magistratus of the several cities had jurisdictio, and appointed a Judex as the praetor did at Rome (Lex Rubria de Gallia Cisalpina). In the provinces, the governors appointed a Judex or Recuperatores, as the case might be, at the Canventus which they held for the administration of justice ; and the Jttdex or Recuperatores were selected both from Roman citizens and natives.
When the Judex was appointed, the proceedings injure or before the praetor were terminated, which was sometimes expressed by tfoe term Litis Contestatio^ the phrases//.^ Confastata and Judicium acceptum or ordinatum^ being equivalent in the classical jurists. [litis ccxntestatio,] The parties appeared before the Judex on the third day (comperendinatio}) unless the praetor had deferred the judicium for some sufficient reason. The Judex was generally aided by advisers, (jurisconsulti) learned in the law, who, were said " in eonsilio adesse" (Cic. pro P. Quintio^ 2. 6, Top. 17) ; but the Judex alone was empowered to give judgment. The matter was first briefly stated to the Judex (causae conjectio, colleclio\ and the oratores or patroni of each party supported his cause in a speech. The evidence seems to have been given at the same time that the speeches weire made, and not to have been heard before the patroni made their address. (Cic. pro Rose. Com. 14, pro P. Quintio, 18.) But it is probable that the practice in this respect might vary in, different cases. Witnesses were produced on both sides and examined orally ; the witnesses on one side were also cross-examined by the othei?-.. (Cic. pro Caecina^ 10, pro Flacco, 10>.) Written documents, such as instruments and books of account, were also given in evidence ; and sometimes the deposition of an absent witness wa& read, when it was confirmed by an oath. (Cic.p?'o Rose. Com. 15, Cic. ad A tt. ii. 12, xiv. 15.) There were no direct means of compelling a person to give evidence before the legislation of Justinian, unless they were slaves, who in some cases might be put to the torture. As to the application of the oath in judicio, see
After all the evidence was given and the patroni had finished, the judex gave sentence: if there were several judices, a majority decided. If the matter was one of difficulty, the hearing might be adjourned as often as was necessary (ainpliatio} • and if the judex could not come to a satisfactory conclusion, he might declare this upon oath and so release himself from the difficulty. This was done by the form of words " non liquere " (N.L.). (Gell. xiv. 2.) The sentence was pronounced orally, and was sometimes first written on a tablet. If the
defendant did not make his appearance after being duly summoned, judgment might be given against him (judicium desertum, eremodicium), according to the proof which the plaintiff had made. If the plaintiff did not appear, the defendant could demand an acquittal. (Dig. 40. tit. 12. s. 27. § 1, 49. tit. 1. s. 28. pr.)
The sentence was either of Absolutio or Condemnatio. That part of the formula which was called the Condemnatio [AcTio, p. 12, b], empowered the Judex to condemn or acquit (condemnare, absolvere, Gains, iv. 43). The defendant might satisfy the plaintiff after the judicium had been constituted by the litis contestatio (post acceptum judieimn, Gains, iii. 180, iv. 114), and before judgment was given ; but in this case it was a disputed question between the two schools whether the judex should acquit, or whether he shou'd 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. The dispute accordingly involved one of those principles on which the schools were theoretically divided, — the following out of a legal principle to all its logical consequences ; but, like many other questions between the schools, this question was practically of no importance, as. the plaintiff would not be allowed to have satisfaction twice.
While theLegis actiones were in force, the judgment was for the restitution of a thing, if a given thing (corpus) was the object of the action ; but under the process of the formula, the Judex gave judgment, pursuant to the formula, in a sum of money, even when a piece of property was the object of dispute. 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 \vhachj was. not ascertained, the condemnatio was either limited to a sum named in the formula, andi which: the judex could not exceed except at his own peril (litem suam faciendo) : or, if the action was for the recovery of property from the possessor, or if it was an actio ad exhibendum, the condemnatio empowered the judex to condemn the defendant in the value of the thing. Generally, the term in the formula which expressed the value which was the object of the demand was, " quanti res est." Res 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 jndex was always bound to condemn in some definite sum, even though the forrmala did not contain a definite sum : the reason of which is obvious, for, unless the condemnatio wa& definite, there would be no judgment (Gains, iv. 48—52.)
The following is the distinction between an Arbitrium and Judicium, according to Cicero (pro Rose. Com^ 4) ; — In a judicium the demand was of a certain sum 01 definite amount (pecuniae certae) • in an arbitnum, the amount was not determined (iaeerta). In a judicium the plaintiff obtained all that he claimed or nothing, as the word's of the form.ula show r " Si paret H. S. 1000 dari oportercv" (Compare Gaius, iv» 50.) The corresponding words in the formula arb.itraria were: " Quantum aequius melius id dari ;*' and thels
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