of a judex to the magistrate who appointed him.1 By a constitution of Hadrian there was no appeal from the senate to the emperor, and from the emperor himself there was of course no appeal.

In Italy and the provinces there was an appeal from the municipal magistrates in the first instance to the governors, and from them to the prætorian prefect or to the emperor.

Constantine prohibited appeals before final judgment, except where a question of competency was raised. From his time no appeal was allowed from the decisions of the prætorian prefect; but redress might still be sought against his judgments in the form of supplication addressed to the

emperor.

2

Under Justinian all appeals were appointed to be entered within ten days from the date of the judgment. The same emperor directed that the imperial court (auditorium principis) should not entertain any appeal under the value of twenty pounds of gold, and all cases below that standard were remitted to one or more judges, whose decision was declared to be final.3

1 D. 49. 1. 1 and 21.

2 N. 23, ch. 1.

3 Walter, Procedure Civile, tra

duite par Laboulaye, Paris, 1841; ch. ix. p. 96.

CHAPTER IX.

OF INSOLVENCY AND CESSIO BONORUM.

bonorum.

By the Lex Julia, passed either in the time of Julius Cæsar Cessio or Augustus, and subsequently extended to the provinces, insolvent debtors were allowed the benefit of cessio bonorum, whereby they were freed from imprisonment on making a voluntary surrender of all their property to their creditors.1

lease of

This surrender was made by a solemn declaration, either Not a rejudicial or extrajudicial. The property thus given up was debts. sold, and the price was distributed among the creditors. The debtor was not released from his debts unless the creditors were fully paid, but he was protected from imprisonment at their instance. If the debtor subsequently acquired property, Future his creditors were entitled to attach it, except in so far as it attachable. was necessary for his own subsistence.2

property

France and
Scotland.

The cessio bonorum has been adopted in Frances as well Cessio in as in Scotland. By the ancient law of France, every debtor who sought the benefit of cessio was obliged by the sentence to wear in public a green bonnet (bonnet vert) furnished by his creditors, under the penalty of being imprisoned if he was found without it. According to Pothier, this was intended as a warning to all citizens to conduct their affairs with prudence, so as to avoid the risk of exposing themselves to such ignominy; but he explains that in his time, though the condition was inserted in the sentence, it was seldom 3 See Code de Proc. Civ., art. 898

C. 7. 71.

1 D. 42. 3.
2 I. 4. 6. 40.

acted on in practice, except at Bordeaux, where it is said to have been rigidly enforced.1

Formerly, a custom somewhat similar prevailed in Scotland. Every debtor who obtained the benefit of cessio was appointed to wear "the dyvours habit," which was a coat or upper garment, half yellow and half brown, with a cap of the same colours. In modern times this usage was discontinued. "According to the state of public feeling, it would be held a disgrace to the administration of justice. It would shock the innocent; it would render the guilty miserably profligate."2 For a considerable time it had become the practice in the judgment to dispense with the dyvours habit, and by the statute of Will. IV. it is utterly abolished.3

1 Pothier, Traité de la Procedure Civile, part v. ch. iii. § 5.

toire de la Procedure Civile chez les Romains, par Walter, traduite de

2 Per Lord Meadowbank in Smith, l'Allemand par M. Laboulaye, 1841; 6th Feb. 1813. F. C.

Traité des Actions, ou Théorie de la

3 6 & 7 Will. IV. c. 56. 2 Bell's Procedure Civile Privée chez les Ro

Com., 6th ed., 1102.

Since the discovery of the Institutes of Gaius at Verona, a considerable number of works have appeared on civil procedure among the Romans. Among the most useful to consult we may mention-His

mains, par Zimmern, traduite de l'Allemand par M. Etienne, 1843; Traité des Actions, ou Exposition Historique de l'Organisation Judiciaire et de la Procedure Civile chez les Romains, par M. Bonjean, 3d edit., 1846.

PART VI.

OF CRIMINAL LAW AND PROCEDURE.

CHAPTER I.

OF CRIMINAL COURTS.

THE Institutes of Gaius contain nothing on the criminal law of the Romans, and very little information can be gleaned from the title in Justinian's Institutes, de publicis judiciis.1 Our limits will not permit us to enter into the subject at much length; but a short account of the administration of criminal justice at Rome may not be without its use.

Sect. 1.-Criminal Jurisdiction of the Kings and Consuls.

consuls.

Though our sources of information as to the regal period Kings and are obscure, we have reason to believe that the kings were the supreme judges in criminal trials, and that they were assisted by a council.

Tullus Hostilius delegated his authority to two commissioners to try Horatius for killing his sister, and allowed an appeal from their sentence to the Comitia Curiata.2 Tarquin the Proud dispensed with the aid of a council in criminal trials; but this was considered irregular, and was made matter of complaint against him.

Senate as a criminal court.

After the expulsion of the kings, the consuls succeeded to their judicial authority as regards the trial and punishment of capital crimes, and they exercised the power of life and death, as shown in the proceedings against the sons of Brutus. But this power was of short duration. By the Valerian law, passed in the year of Rome 245, every Roman citizen had a right to appeal to the people against any criminal sentence pronounced by a magistrate; and the direct jurisdiction of the Comitia was afterwards recognised for the trial and punishment of all the more serious crimes. Further, by an express law of the Twelve Tables, no citizen was to be tried for any offence involving his life or his rights as a citizen, except before the Comitia of the Centuries.

By laws of this kind, which, though sometimes attempted to be evaded, were frequently renewed and confirmed, the criminal jurisdiction of the consuls and other magistrates was reduced within narrow limits. In times of civil commotion, however, when the liberties of the people were endangered, the senate, by a decree, invested a dictator or the consuls with extraordinary powers, in virtue of which they might put any dangerous citizen to death, and execute summary justice upon all offenders, without regard to the ordinary forms of law.

Sect. 2.-Criminal Jurisdiction of the Senate.

During the republic, the senate possessed no regular jurisdiction in criminal causes in so far as Roman citizens were concerned. If this body sometimes ordered criminal prosecutions, they did so, after a preliminary investigation, by the intervention of the magistrates, who prosecuted before the people according to established forms; and the trial took place before the ordinary courts, or a special tribunal created for the purpose.

When the senate was appointed to decide criminal causes, either by itself or by commissioners taken from its body, this power was derived from the express or tacit delegation of the people. On some extraordinary emergencies of extreme peril, the senate, along with the consuls, assumed the responsibility