The Ancient Library

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equivalents were, " Ex fide bona, Ut inter bones bene agier." (Top. 17.) In a dispute about dos, which Cicero calls " arbitriuin rei uxoriae," the words " Quod aequius, melius," were added. (Com­pare Gaius, iv. 47, 62.) If the matter was brought before a judex, properly so called, the judicium was constituted with a poena, that is, per spon-sionem ; there was no poena, when an arbiter was demanded, and the proceeding was by the formula arbitraria. The proceeding by the sponsio then was the strict one (angustissima formida sponsionis, Cic. pro Rose. Com. 14) : that of the arbitrium was ex fide bona, and the arbiter, though he was bound by the instructions of the formula, was al­lowed a greater latitude by its terms. The engage­ment between the parties who accepted an arbiter, by which they bound themselves to abide by his arbitrium, was Comprosiissum (pro Rose. Com. 4. 4) ; but this term was also employed, as it appears, to express the engagement by which parties agreed to settle their differences by arbitration, without the intervention of the praetor. Cicero appears to allude to this arbitration. (Pro P. Quintio, 5 ; compare Senec. de Benef, iii. 7.)

In the division of judicial functions between the Magistrates and Judex consisted what is called the Ordo Judiciorum Privatorum, which existed in the early periods of Rome, and continued till the time of Constantine. At the .same rtime with the Ordo Judiciorum Privatorum existed the proceed­ing extra ordinem or extraordinaria 'Cognitio, in which the magistrates made -a decision by a de-cretum, without letting the matter come to a judex. Finally, under the later empire the extraordinaria cognitio supplanted the old mode of proceeding.

According to Cicero (pro Caecina, 2) all Judicia liad for their object, either the settlement of dis­putes between individuals (controversial), or the punishment of crimes (maleficia). This passage refers to a division of Judicia, which appears in the Jurists, into Publica and Privata. The term Pri-vata Judicia occurs in Cicero (Top. 17), where it refers to the class of Judicia which he indicates in the Caecina by the term Controversiae. The term Publica Judicia might not then be in use, but the term Publica Causa is used by Cicero (pro Rose. Amer. c. 21) with reference to .-a Judicium. which by the Jurists would be called Publicum. In the Digest (48. tit. 1. s. 1) it is stated that all Judicia are not Publica in which a crimen was the matter in question, but only those in which the offence was prosecuted under some lex, such as the Julia Majestatis, Cornelia de Sicariia, and others there enumerated. The Judicia Popularia or Populares Actiones as they are called (Dig. 47. tit. 23. s. 1) are defined to be those by which " suum jus populus tuetur ;" and they agreed with the Pub­lica Judicia in this, that any person might be the prosecutor, who was not under some legal dis­qualification. The Judicia Populi (Cic. Brut. 27) were those in which the populus acted as judices ; and accordingly Cicero enumerates the Po.puli Ju­dicia among others when he says (pro Domo^ c, 13) that " nihil de capite civis, aut de bonis, sine judicio senates aut populi aut eorum qui de quaque re constituti judices sint, detrahi posse." As the Judicia Publica are defined by the jurists to be those in which crimina were tried by a special lex, it appears that the Judicia Populi, strictly so called, must have fallen into disuse or have gradu­ally become unnecessary after the Judicia Publica


were regulated by special leges ; :and thus the Judicia Publica of the later republican period re­present the Judicia Populi of the earlier times. The Judicia Populi were originally held in the Comitia Curiata and subsequently in the Centuriata and Tributa. A lex of P. Valerius Publicola (Liv. ii. 8 ; Cic. Rep. ii. 31) gave an appeal (provocatio) to the populus from the magistrates ; and a law of C. Sempronius Gracchus (Cic. pro Rabir. 4) 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. But after the passing of the Lex Valeria de Provoca-tione (b. c. 508) persons were appointed to preside at such trials as affected a citizen's caput, and they were accordingly called Quaesitores or Quae-stores Parricidii or Rerum Capitalium. In some cases (Liv. iv. 51) a plebiscitum was passed, by which a magistrate was appointed to preside at the judicial investigation. In the course of time, as cases were of more frequent occurrence, these Quaestiones were made Perpetuae, that is, particular magi­strates were appointed for the purpose. In the year 149 b; c. the tribune L. Calpurnius Piso Frugi carried a Lex De Pecuniis Repetundis, by which a Praetor presided at all such trials during his year of office, from which time the Quaestio Repetundarum became Perpetua. L. Sulla gave to one praetor the Quaestiones de Maj estate, and to others those of Peculates and Ambitus ; and he also added four other Quaestiones. Perpetuae. Thus he carried out the principle of the Lex Cal-purnia, by establishing permanent courts for the trial of various specified offences, and the praetors determined among themselves in which of these new courts they should severally preside. The ordinary functions of the praetor urbanus and peregrinus were not interfered with by these new arrange­ments. The Quaestiones of Sulla were, De Repe­tundis, Majestatis, De Sicariis et Veneficis, De Parricidio, Pe.culatus, Ambitus, De Nunimis Adul-terinis, De Falsis or Testamentaria, and De Vi P.ublica. But in special cases the senate still some­times by a decretum appointed the consuls as quaesitores, of which an example occurs in Cicero. (Brut. 22.)

Any person, not legally disqualified, might be an accuser (accusator) in a Judicium Publicum. On such an occasion a praetor generally presided as quaesitor, assisted by a judex quaestionis and a body of judices called his consilium. The judex quaestionis was a kind of assistant to the presiding magistrates, according to some opinions ; but others consider him to be a quaesitor, who was sometimes specially appointed to preside on the occasion of a quaestio. (Walter, GescMchte des Rom. Recht.^ p, 861.) The judices were generally chosen by lot out of those who were qualified to act. Both the accusator and the reus had the privilege of rejecting or challenging (rejicere) such judices as they did not like. (Cic. ad Att. i. 16.) The ju­dices appointed according to the provisions of the Lex Licinia de Ambitu, b. c. 55, were called edititii, and these were judices named by the ac­cuser, whom the accused (reus) could not chal­lenge. (Cic. pro Cn. Plancio^ 15, 17, ed. Wim-der, Prolegom. p. Ixxvi.) The judices were called editi, when they could be challenged by the reus. In many cases a lex was passed for the purpose of regulating the mode of procedure. In the matter

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