Powers of the arbiter. Recupera tores. Centumviral court. might decline to give judgment, by declaring on oath sibi non liquere.1 There were two sorts of arbiters, those who were named by the parties extrajudicially in a reference or submission, and those who were assigned to them by the prætor in a lawsuit. Here it is only of the last that we are to speak. The arbiter, like the judex, could hear and determine all ordinary lawsuits, and received a formula from the prætor which enabled him to pronounce a sentence ex æquo et bono. Some discussion has arisen as to the difference between the duties of an arbiter and those of a judex; but these difficulties seem to be resolved by the definition of Festus:-Arbiter est qui totius rei arbitrium habet et potestatem.2 All the difference between them seems to have consisted in the formula and its consequences, so that the arbiter in substance was a judex with more extensive powers; and, like the judex, he could call in the aid of legal assessors. Besides the judex and the arbiter there were officers called recuperatores, to whom the prætor was in use to remit a certain class of cases to be heard and determined. This institution is involved in some obscurity. Beaufort is of opinion that when the prætor appointed one person to hear and decide a case he was called judex, but when three or more persons were named for the same suit they were called recuperatores.3 Zimmern has adopted this opinion, and he adds that the recuperatores might be chosen from the whole body of the citizens, and did not require to be taken from the list of judices selecti, and farther that they were only called upon to serve in summary affairs requiring extraordinary despatch. The number of recuperatores appointed for each case was usually three or five, and in the event of difference of opinion a majority had power to decide.* The centumvirs constituted a permanent tribunal, composed of members elected annually, in equal number, from each tribe, and to this court the decemvirs were attached. 1 De Fresquet, vol. ii. p. 476. 3 Beaufort, Rep. Rom., liv. v. c. 2. duit de l'Allemand, par M. Etienne, 1843, part ii. ch. 1, § 37. De Fresquet, vol. ii. p. 399. In the year of Rome 512, when there were thirty-five tribes, and each furnished three members to the centumviral court, the whole number was 105; at a later period, in the time of Pliny the Younger, the number appears to have been 180. This tribunal was presided over by the prætor. It was divided into four chambers, which, during the republic, were placed under the ancient questors, and after Augustus under the decemviri litibus judicandis. These sections gave judgment separately; but they were sometimes united, so as to form one tribunal in affairs of great importance. A spear, the symbol of Quiritarian ownership, was fixed in front of the audience-hall of the centumvirs. This court had not what the Romans call jurisdiction. All the proceedings in jure took place, in the first instance, before the prætor, or other magistrate, who remitted the case to be heard and determined by the centumvirs, if it was one falling within their cognisance.1 From a passage in Cicero we learn that the centumvirs were competent to decide questions of status, Roman property and succession, embracing a wide range of subjects, which gave great importance to this court.2 The date of the institution of the centumvirs is uncertain. Among other celebrated lawyers, Pliny the Younger, as we learn from his letters, was accustomed to plead before this tribunal. It is supposed to have subsisted till near the close of the Western empire; but it had entirely disappeared before the time of Justinian.3 ties of ju From this rapid sketch of the judicial system at Rome Peculiariduring the republic, it will be seen that it laboured under dicial sysconsiderable defects. The superior magistrates were changed tem, annually, and their political duties were mixed up with their judicial functions. They were not necessarily lawyers by profession; and the same objection applied to the subordinate officers, who, as judices or centumvirs, were intrusted with the power of hearing and deciding civil causes. There was at that period no class of men among the Romans like the judges in this country, who are appointed by the crown, hold their offices ad vitam aut culpam, and are trained to be De Fresquet, vol. ii. p. 393-5. 2 Cicero, De Orator., i. 38. 3 Maynz, § 36. Italy and provinces. New judi cial institutions. interpreters of the law, by making it the business of their lives. One thing, however, greatly contributed to the success of the Roman system-the institution of legal assessors, selected from the most skilful jurisconsults. At first the magistrate had the choice of his assessors; under the empire they became public salaried officers. At all periods the assessors had only a consulting voice in judicial business: the magistrate was not bound to follow their advice; but it cannot be doubted that their opinions exercised the greatest influence upon his decisions.1 After Italy was subjected to the Roman supremacy, the jurisdiction of each city and its territory was in the hands of the municipal magistrates. Justice was administered as it was at Rome. In the provinces the governors performed the functions of the prætor, holding circuit courts at stated periods at certain places within their territory, when they decided suits, either directly, or by remitting them to a judex, or to recuperatores. The circuit court was called conventus. The governors were accompanied by assessors, and they were assisted by legati chosen by themselves, or named by the senate. Sect. 2.-Judicial System under the Empire. Under the empire the consuls preserved some judicial power till the fourth century. The jurisdiction of the prætors endured still longer. Prætors were appointed to decide questions relating to trusts and guardianship, and exchequer cases; and the number of these magistrates varied considerably at different times. Augustus fixed their number at twelve; Tiberius raised them to sixteen; and Pomponius tells us that, in his time, the magistrates who dispensed justice at Rome were eighteen prætors, besides two consuls, six ediles, and ten tribunes of the people.2 The accession of Augustus led to some important changes in the judicial institutions of Rome, and new jurisdictions sprang up under the imperial government. 1 On the Office of Assessors, see D. 1. 22. 2 D. 1. 2. 34. the em peror. Among the magistrates the emperor himself became su- Powers of preme judge, and gave decisions in lawsuits by his decrees, sometimes directly, and sometimes by appeal. When the emperor dispensed justice, he was assisted by a council, which, under Augustus, was composed of the two consuls, a magistrate of each grade, and fifteen senators. Next in dignity to the emperor were the prætorian pre- Prætorian fects. At first their duties were purely military, but they prefects. afterwards discharged the most important judicial functions. Their jurisdiction was established in the reign of Alexander Severus. For a time their judgments might be reviewed by appeal to the emperor, but they afterwards became final, subject only to the condition, that they might be made the object of a supplication addressed to the prince. The prætorian prefects were chosen at first from the equestrian order, and afterwards from the senators. The jurisdiction of the emperor and the prætorian prefects extended over the whole empire. Under Augustus the prefect of the city became a permanent judicial officer, whose jurisdiction was gradually extended till it embraced appeals from decisions of the prætors. There had been eighteen prætors in the time of Alexander Severus; there were only three in the reign of Valentinian. Finally, all the important judicial functions of these ancient republican magistrates were withdrawn from them by little and little, and transferred to the prefect of the city and the prætorian prefect, till the prætors, who had formerly stood nearly on a level with the consuls, were reduced to little more than the insignificant duties of directing the public games.1 Prefect of the city. the prov Beyond Rome, in Italy and the provinces, jurisdiction con- Italy and tinued under the empire to be divided between the municipal inces. magistrates and the governors. But the competency of the municipal magistrates, which was formerly unlimited, was restricted to suits not exceeding the value of fifteen thousand sesterces, equal to about £125, and their criminal jurisdiction was in a great measure absorbed by that of the governors. 1 Maynz, § 50-53. Judices pedanei. Changes by tine. The judices pedanei were appointed by the governor of a province to decide upon affairs of small importance. Cases within their competency were brought directly before them as permanent judges; but an appeal lay from their decisions to the governor. It has been conjectured that the title pedaneus was given to those judges, qui negotia humiliora disceptant, because they were placed at the foot of the judicial ladder.1 To diminish the influence of the prætorian prefects, whose powers sometimes held in check that of the emperor, Constantine deprived them of their military prerogatives, and limited them to duties purely civil and political; and, while their number was increased to four, care was taken never to leave them in office for a longer period than a year. The empire was divided into four prefectures-the East; Illyria; Italy, which included Sicily, Sardinia, and Africa; and the Gauls, which comprehended Spain and England. Each of these four departments was administered by a prætorian prefect, who acted as supreme judge, almost always, of the last resort, in lawsuits raised within his prefecture. Under the prefect, vicarii, invested with judicial powers, were placed at the head of each diocese, which comprehended many provinces, each of the latter having a capital or metropolis. Finally, in the provinces which composed the diocese, the governor, called præses or rector, was judge-ordinary, acting sometimes in the first degree, and sometimes deciding appeals from the municipal magistrates and other inferior judges, such as the judices pedanei and the defensores civitatum.2 Originally the defensores civitatum had civil jurisdiction in suits not exceeding 50 solidi, but augmented by Justinian to 300 solidi; and they also had power to try for petty delinquencies.3 1 C. 3. 3. 5. Julian's Constitution. De Fresquet, vol. ii. p. 423. 2 Beaufort, Rep. Rom., vol. i. p. De Fresquet, vol. ii. p. 517. Dr reduced the weight of the aureus, and called it solidus. The value of the solidus or aureus of Justinian's age is said to have been about 11s. 6d. Summary of Roman Civil Law, vol. iii. p. 154-5. |