half is the dead's part, which he may dispose of by testament, and which falls to his next of kin if he die intestate. When

the husband leaves children, one or more, but no widow, they get one-half as their legitim; the other half is the dead's part, which also goes to the children, if the father has not disposed of it otherwise by his will. If he leaves both widow and children, the widow takes one-third, jure relicta; another falls as legitim to the children, equally among them; the remaining third is the dead's part.1

If a wife die intestate, in Scotland, leaving separate personal property, not falling under the communion of goods, and excluded from the jus mariti, the succession does not devolve on the surviving husband, but falls to her children, or other next of kin, whoever they may be.

1 Ersk. 3. 9. 19.

U

PART V.

OF ACTIONS AND PROCEDURE.

CHAPTER I.

OF MAGISTRATES AND JUDGES IN CIVIL SUITS.

Jurisdic

tion.

JURISDICTION is a power conferred by the State on a magistrate or judge to take cognisance of and determine questions according to law, and to carry his sentences into execution. Among the Romans jurisdiction was divided into voluntary and contentious. The first was exercised in matters that admitted of no opposition; the second related to disputed questions, which required judicial discussion.

By civil jurisdiction, questions of private right are decided; by criminal, crimes are tried and punished. That jurisdiction is supreme from which there lies no appeal to a higher court.

Jurisdiction is either proper or delegated. Proper jurisdiction is that which belongs to a magistrate himself in virtue of his office; delegated, is that which is communicated by the magistrate to another who acts under his authority. By special commission persons are sometimes delegated to judge in a particular cause, after the decision of which their power

ceases.

When jurisdiction was conferred on a Roman magistrate, he acquired all the powers that were necessary to enable him to exercise it. In criminal law the imperium merum

was the power to inflict punishment upon offenders; and the imperium mixtum was the power to carry civil sentences or decrees into execution.1

tency.

From jurisdiction in general must be distinguished the Compecompetency of a tribunal. By that phrase is meant the right which a tribunal has to exercise in a particular case the jurisdiction which belongs to it. From the earliest period it was an established rule that the plaintiff should raise his action before the court of the defendant's domicile-Actor sequitur forum rei. At first, this principle was acted upon whether the action was real or personal.2 It was afterwards declared by an imperial constitution that a real action might be directed against the possessor in the territory where the subject in dispute was situated, ratione rei sita.3 Under Justinian this rule was followed in actions for vindicating property; but a petitio hereditatis was brought before the court of the defendant's domicile, because this related rather to the abstract right than to the objects of the succession. By a constitution of the same emperor the authors of a delict might be pursued wherever the unlawful act was committed, and all debtors in consequence of a contract, in the place where the contract was entered into.1

Sect. 1.-Judicial System during the Republic.

civil causes.

Among the Romans the power of determining civil causes Judges in belonged at first to the kings, and after their expulsion to the consuls. It then devolved on the prætor; and, in certain cases, on the curule and plebeian ediles, who were charged with the internal police of the city.5

prætor.

The prætor, a magistrate next in dignity to the consuls, Jurisdicwas elected annually by the Comitia Centuriata. His chief tion of the duty was to act as supreme judge in the civil court at Rome, and he was assisted by a council of jurisconsults in determining questions of law. At first there was only one prætor, A.R. 387.

1 D. 2. 1. 2 and 3.

2 De Fresquet, vol. ii. p. 401. 3 C. 3. 19. 3.

4 N. 69, ch. 1. De Fresquet, vol.

5

Ortolan, Institutes, § 1849.

ii. p. 519.

Proceedings

in jure.

but he was afterwards joined, in the year 508 of Rome, by a colleague, who was invested with power to decide all disputes in which foreigners were concerned.1

After the conquest of Sicily, Sardinia, and the two Spains, new prætors were chosen to administer justice in these provinces. Permanent courts, which were usually presided over by a prætor, were established for the trial of certain crimes.2 It became the practice for these magistrates to remain at Rome during their year of office, after which they proceeded to the provinces, where they dispensed justice as proprætors, the different departments assigned to each being determined by lot. The first among them was always the prætor urbanus. He performed the duties of the consuls in their absence, and his functions were considered so important that he was not permitted to leave Rome for more than ten days.

The prætor held his court in the Comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors. Ulpian informs us that his assessors at Rome were ten in number-five senators and five equestrians.3 These assessors are often called judges, but they did not pronounce the sentence, which was drawn up in the prætor's name by their advice. Beaufort is of opinion that they were the same as the decemviri litibus judicandis, so often mentioned by ancient authors.*

According to the judicial system long established at Rome, it was the duty of the prætor, or other magistrate exercising civil jurisdiction, to inquire into matters of law; and whatever business was transacted before him was said to be done in jure. When the magistrate took cognisance both of the law and the fact, and decided the whole cause himself, the judgment was called extraordinary. But in the great majority of cases, and particularly where the parties were at issue upon the facts, it was customary for the magistrate merely to fix the question of law upon which the action Delegated turned, and then to remit it to a delegate with power to hear judges.

1 D. 1. 2. 3. 27.

2 Ibid. § 32.

3 Ulp. 1. 13.

4 Beaufort, Rep. Rom., vol. ii. p. 35.

the cause, inquire into the facts, and pronounce sentence according to the result of the investigation.

There were three kinds of delegated judges, called respectively Judex, Arbiter, and Recuperatores.

The judex was not a magistrate holding jurisdiction; he Powers of the judex. was a private citizen invested by the magistrate with a judicial commission in each cause, and for that cause only.1 Originally he was chosen from the senators, and afterwards from the official list of the judices selecti, which was made up of persons whose qualification varied at different times. In the reign of Augustus, the number of judices was about 4000, and from that period at least the Album Judicum contained all the persons who were qualified to act as judices, both in civil suits and in criminal trials.

When the lawsuit was not one of those which fell to be determined by the centumvirs, or by the prætor himself, that magistrate referred the parties to a judex chosen by themselves from the official list; if they could not agree the prætor proposed a judex, or allowed one to be drawn by lot. Both parties had a right to object to the judex nominated by the magistrate; but we do not know precisely in what form and within what limits that right was exercised.2

As the function of the judex was a public one, he could not decline to act without a lawful excuse. After being sworn to do his duty he received from the prætor a formula containing a summary of all the points under litigation, from which he was not allowed to depart; he admitted the demand, or rejected it, purely and simply, and without having power to modify it. To suppose that the office of judex was limited to simple questions of fact would be a mistake. He required not only to investigate facts but to give sentence, and in doing so law was more or less mixed up with the case according to the extent of the powers committed to him. For this reason he was allowed to consult one or more jurisconsults to guide him in cases of difficulty; and, if the question appeared to him so obscure that he could not decide it, he 1 Ortolan, Institutes, vol. i. p. 147.

2 Ibid. vol. iii. p. 478. De Fresquet, vol. ii. p. 398.