TITLE XVII.—OF THE DUTY (1) OF THE JUDEX. Pr. The first duty of the Judex is to give judgment according to the Law, the Senatus-consulta, the Constitutions, and the unwritten Law (moribus) (2). A judgment in direct violation of the Civil Law had no effect, it was ipso facto null, without any appeal. It was different if a judex merely committed a mistake, e.g., by taking an alleged fact to be true which was false, for then the judgment was valid, but subject to appeal (3). § 1. The form of judgment (condemnatio) which the judex was required to give in actiones noxales, when he was of opinion that the master should be condemned, was in the alternative either to pay the condemnatio, or to give up the slave or animal which had caused the damage; e.g., "I condemn Publius Mævius to pay Lucius Titius ten golden solidi, or to abandon the noxa." § 2. In the action in rem (for the property), if the judex pronounced against the demandant, he acquitted the possessor: if he pronounced against the possessor, it was his duty, before stating the condemnatio, to order him to restore the thing forthwith (4), along with the fruits thereof, and other incidents (accessoria), i.e., with whatever the demandant would have had, if the thing had been given to him at the litis contestatio. But if the possessor alleged his inability to give up the thing immediately, and demanded time, the judex, provided the demand appeared bonâ fide (sine frustratione), might grant the time, on receiving security by fidejussor (surety) sufficient to cover the value of the thing in dispute, in case it should not be given up within the time limited. (1) Officium, under the formula system, means the aggregate of the power and obligations of the judex. For (2) That is, according to the Civil Law, as contrasted with the prætorian law. whatever might be the authority of the prætorian edicts, it was not incumbent on the judex (directly, at least) to pay any regard to them. A judex could not take into consideration any grounds resting on the prætorian law, or equity, unless he was specially authorised to do so by the terms of the formula. But he might apply the Civil Law without any such formal authority. Hence, when the formula merely contained these words, si paret, dare oportere si paret hanc rem esse Sempronii, the question was to be decided by the principles of the Civil Law. When it was to be decided on other principles, the Prætor drew up the formula in factum, or inserted an exception. (3) The appeal had to be brought within the two days after the judgment given, or after the time when the party condemned knew of the judgment by default: and within three days if the party condemned had pleaded by procurator. By Nov. 23, Justinian allowed ten days. It seems that the appeal lay from the judex to the Prætor; thence to the senate, or, in later times, to the council of the emperor, with the prætorian prefect as head judge; finally to the emperor. (4) In personal actions four months were generally allowed to the debtor to pay the amount of the condemnatio. The action of vindicatio is an actio arbitraria (B. 4, t. 6, § 31-2). As to the fruits (fructus) to be accounted for by the possessor who had condemnatio awarded against him, a distinction must be taken between the bonâ fide and the malâ fide possessor. The latter (prædo) was bound to account for all fruits gathered, and all that he had failed from negligence to gather. The former was bound to restore only such fruits as had not been consumed: he was not bound to account for fruits which had been gathered and consumed (1), nor for fruits which he had failed to gather, at least before the litis contestatio; for, after action brought, all possessors are equal, that is to say, guilty of malâ fides. § 2. In case of petitio hæreditatis it was the duty of the judex to see that the condemnatio against the possessor included a return of the goods of the hæreditas and its fruits. Justinian says that, in regard to the bona fide possessor of an hæreditas, the same rules as to accounting for the fruits must be followed as in case of a claim by vindicatio for a particular thing: but this was not so, at least after the passing of a Sc. on the proposal of Adrian (post senatus consultum, D. v. 3, 20, 6); for after it, the bonâ fide possessor of an hæreditas was bound to account for the fruits, even though consumed, so far, at least, as such possessor had derived profit thereby (2). § 2. The malâ fide possessor of an hæreditas, like the malâ fide possessor of a res singularis, was bound to account for fruits consumed, or which such possessor had neglected to gather. Justinian says that in the petitio hæreditatis the fruits are to be accounted for by the malâ fide possessor, on very nearly (pene) the same principles as in the vindicatio of a res singularis. The Emperor does not explain the difference alluded to by the pene; but it appears to be this: in the petitio hæreditatis the fruits gathered, or which the possessor had failed to gather, even before the litis contestatio, were necessarily comprehended in the claim, as constituting part of the hæreditas (fructus augent hæreditatem, D. V. 3, 20, 31), and therefore formed part and parcel of the claim (3); (1) Observe, it is not correct to say that the bond fide possessor gained the fruits; that would be at variance with many texts, particularly D. 12, t. 6, 15, by which it seems that a person who bond fide received a Thing not due was bound to account for all fruits gathered, and consequently for all fruits consumed. But the acquisition by the bonâ fide possessor of fruits consumed was a consequence of the particular action brought against him. For when the only possible action was a vindicatio it was only the fruits not consumed which could be recovered, quiæ res extinctæ vindicari non possunt. Whereas by the condictio indebiti the demandant might recover the value of the fruits consumed, because though non-existent things could not be claimed by vindicatio, they might be claimed by a personal action: condici tamen possunt. Thus, the reason why the malá fide possessor was bound to account for fruits consumed, or for those which he had neglected to gather, was because he was liable in a personal action-an action, however, which was not allowed against the bona fide possessor. (2) It may be that this passage of Justinian (§ 2) is extracted from the writings of some jurist anterior to Adrian. (3) For the hæreditas was a universitas, which might be added to or diminished whereas in vindicating a res singularis the fruits gathered, or which the possessor had failed to gather before the litis contestatio, were not necessarily comprehended in the demand, and could only be recovered by a special action, which was real, if the fruits were still in existence; and personal, if they had been consumed by the malâ fide possessor. § 3. When an action ad exhibendum was brought, if the judex pronounced against the defendant, he was to command him instantly to produce the thing, with everything belonging to it (etiam rei causam) ; i.e., to put the demandant in possession of whatever he would have had if the thing had been produced at the very moment when the demand was made (1). It was his duty also to order the production of the fruits (fructus) gathered after the litis contestatio (post acceptum judicium). But if the defendant made a bona fide demand for a reasonable delay, in order to enable him to produce it, it was the duty of the judex to grant such delay, provided the restitution of the thing was guaranteed. If the defendant did not produce the thing on the instant, according to the order of the judex, or if he did not give security (cautio) to produce it within the time allowed for that purpose, it became the duty of the judex to pronounce condemnatio against him for all the damage suffered by the demandant in consequence of the thing not having been produced at once. In the action familiæ erciscundæ (for partitioning the hæreditas) it was the duty of the judex to adjudge to each hæres the separate things: and if any one hæres had more than his share adjudged to him, the judex was bound to condemn him to pay a certain sum to his cohæres. Again, it was the duty of the judex to pronounce condemnatio against that hæres who had gathered the fruits of the common undivided goods, or who had changed or destroyed the character of the things held in common, thus compelling such hæres to indemnify his cohæres. Again, it was the duty of the judex to condemn one hæres to indemnify his cohæres for sums expended by the latter on account of the common property of the hæreditas. § 5. It was the same in the action communi dividundo (for partitioning a thing held in joint property): at least when there were several Hence, without ceasing to be the same. est. (1) So, that, says the text, if title by usucapio was perfected during the suit, the defendant would not the less be bound to restore the thing, for the title by usucapio was rescinded by the judgment. Thus, by the old law, at least, usucapio was not interrupted by the demand, whereas the prescriptio longi temporis ceased from the time, and by the mere effect of the demand being made. distinct things, or a single thing which might be conveniently divided between the coproprietors; but when there was only a single thing which could not be divided with advantage-e.g., a horse, or a slave, held in joint property-the judex might adjudge it entire to one of the coproprietors, at the same time condemning him to pay to the others a certain sum by way of balancing the account (1). § 6. In the action finium regundorum (fixing the boundaries) it was the duty of the judex to examine whether the adjudication was imperatively required; which was only in one case, viz., when it was found requisite to mark out the lands by more definite boundaries: in such case the judex had to adjudge to the proprietor of one of the (heritages) estates a portion of the land belonging to the other (2), condemning the person to whom the land was adjudged to pay to his neighbour a certain sum as compensation. By the same action a party was condemned who had fraudulently interfered with the boundaries; e.g., by the removal of stones or the cutting down of trees which served as boundaries. By the same action a man might be condemned for unlawful resistance (contumacia), as where, in spite of the order of the judex, he refused to allow the land to be measured or surveyed. The effect of adjudicationes or judgments pronounced by the judices in the three actions familia erciscundæ, communi dividundo, finium regundorum, was to transfer immediately the property to the person in whose favour the adjudication was made (3). TITLE XVIII.-OF JUDICIA PUBLICA. § 1. Judicia publica are criminal prosecutions, which every citizen (4) is allowed by law to institute against any person who has been guilty of a wrongful act, in order that the penalty fixed by the law to such act may be inflicted upon him. The proceedings in judicia publica are not conducted like ordinary suits, for the procedure is not by action, but by accusation and inscriptio (5). (1) The same held good in a case of petitio hæreditatis, if, as was not very often the case, the hæreditas comprised only one indivisible thing. (2) Thus, for instance, the judex might adjudge to me a portion of my neighbour's land, in order that my land might extend to a stream or public road, so as to form a clearer or more natural boundary. (3) These three actions must therefore be personal, not real, for the demandant claims to have certain property transferred to him, which rests on the hypothesis that he is not proprietor. In truth the claimant exchanges his undivided share in the whole for a specific and definite portion. (4) Plerumque datur, i. e., unless excluded by some law; e. g., women, unless the injury was done to themselves, or their near relations; persons under age, or infamous, or not possessing fifty aurei. (5) The prosecutor of a public wrong § 2. Judicia publica are divided into capital and non-capital. The first were those involving natural or civil death (B. 1, t. 3); the second those which, besides infamia, involved only a pecuniary and corporeal penalty, without deprivation of the rights of liberty or citizenship. The laws authorising judicia publica were-1. Lex Julia Majestatis; 2. Lex Julia de Adulteriis; 3. Lex Cornelia de Sicariis; 4. Lex Pompeia de Parricidiis; 5. Lex Cornelia de Falsis; 6. Lex Julia de vi Publica vel Privata; 7. Lex Julia Peculatus; 8. Lex Fabia de Plagiariis; 9. Lex Julia de Ambitu; 10. Lex Julia Repetundarum ; 11. Lex Julia de Annona; 12. Lex Julia de Residuis. § 3. The crimes punished by the Lex Julia Majestatis were those of high treason and læsæ majestatis. A person convicted of having contrived aught against the emperor or against the state was punished with death his memory was condemned even after his death. : § 4. The Lex Julia de Adulteriis, passed B.c. 167, punished with death not merely those who defiled the bed of another, but those who committed abominable crimes. Moreover, it punished stuprum, when a girl or honourable widow was seduced without violence. The penalty was confiscation of half the goods of seducers in the higher ranks, and in those of the lower ranks corporal punishment, accompanied with relegatio (B. 1, t. 16). § 5. The Lex Cornelia de Sicariis, passed B.C. 80, punished with death assassins (sica; dagger), and those who carried any weapon for the purpose of vengeance. The same law punished with death poisoners, who, by their horrid machinations, put men to death either by poison or by magic charms, or who publicly vended dangerous drugs (§ 5). § 6. The Lex Pompeia de Parricidiis, passed B.C. 52, inflicted a novel punishment upon him who, either clandestinely or openly, put to death his father or mother, his son, or any relation (affectionis), whose murder would be parricide (c. ix. 17) (1). Moreover, the penalty denounced against parricides was inflicted on him by whose fraud the crime had been committed, or who had taken part in it, though not a relation of the deceased. The punishment consisted in the culprit being inclosed in a leathern sack with a dog, a cock, a viper, and a monkey, and thus (delictum) sent to the magistrate, who had cognisance thereof, a written document, in which he named himself accuser, and declared his readiness to submit to the penalty of the lex talionis, if he should be convicted of calumnia (false accusation). The cognisance of judicia publica did not belong to the Prætors: by the Pandects it devolved on the præfectus urbi and the governors of the provinces. Under the Republic it passed into the hands of different magisstrates but the people themselves took cognisance when the life of a citizen was in question. Observe, judicia publica were properly the trials conducted under the provisions of special laws, which prescribed the mode of trying a crime and the penalty attached to it. (1) I. e., the murder of any ancestor of husband or wife, of consobrini, of a stepfather or mother, father-in-law, &c., of a patron, and of a child if killed by the mother or grandfather, but not by the father (D. 48, 9, 1). |