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an issue according to known rules of law, was in jus concepta. 3. A further division depended on the varying amount of latitude given to the judge. The actions depending on the old civil law were stricti juris, and the judge had merely to decide the question submitted to him, without taking into account considerations of equity. Other actions were bonæ fidei, i.e. the judges were allowed to take such considerations into account. In real actions, and in some few special actions, the judge had always a particular kind of latitude given him, as the action was arbitraria (see sec. 103), i.e. he could order the thing claimed to be given up, and, if it was not, could condemn the defendant in as much as he thought equitable; and if the thing was in the possession of the defendant he was made to give it up. Among personal actions which were arbitrario was one termed ad exhibendum, which was used in order to make a person in possession of a thing produce it, so that its existence in his hands and the state in which it was might be ascertained, or pay damages for not so producing it.
107. In connection with actions under the system of formulæ, we have to notice the interdicts of the prætor.* An
Interdicts. interdict was an order issued by the prætor, and was “ in fact an edict addressed to some person or persons with reference to a particular thing. Vim fieri veto, exhibeas, restituas, 'I forbid you to have recourse to violence; you are to produce, you are to restore;' such were the forms in which these commands were couched. Interdicts were granted where some danger was apprehended, or some injury was being done to something to which a public character attached, as, for instance, if a road was stopped up; but they were also granted to protect private interests, and especially to protect or regulate possession. If the person to whom the interdict was addressed acquiesced and obeyed the prætor's injunction, nothing remained to be done ; but if he refused to obey, the magistrate then referred to the decision of a judge, whether the terms of the interdict ought to be complied with. For instance, an interdict ordering a thing to be restored might bave been issued; but the person to whom it was directed might deny that by law he was bound to restore the thing. On his stating this to the magistrate, the magistrate would give an action to try the question, shaping the terms of the interdict into the intentio of the formula, si paret A. A. rem restituere opor
tere, &c. And it is thus that interdicts are connected with actions, as their validity depended on no action being brought to contest them, or the result of an action being to support them. Gradually the action superseded the interdict, which was no longer used as a preliminary step, and, by the time of Justinian, they had become obsolete.
108. There were under the system of formulæ certain cases Extraordina- which the magistrate decided without sending to a ria judicia. judge. In these cases the magistrate was said extra ordinem cognoscere, and the proceedings were termed extra ordinem cognitiones, judicia, or actiones. Among the cases in which the magistrate proceeded in a summary way, were restitutiones in integrum (that is, certain cases in which he restored a person suffering from something from which he ought not by law to suffer, to the same position as he bad occupied before the injury was sustained), and cases relating to fideicommissa. But he was called upon most frequently to proceed in this way in order to give Execution.
execution to the sentence of a judge. The proper
remedy of the creditors was still against the person of the debtor until a lex Julia, probably of the time of Augustus,* permitted a debtor to avoid arrest by giving up all his goods (cessio bonorum). If, however, the debtor could not be found, then the prætor protected the creditors by what was termed a venditio bonorum or compulsory sale. The creditors were placed in full possession of all that the debtor had belonging to him; his persona was, in fact, transferred to them. This was termed the missio in bonorum possessionem. After a certain delay, the creditors sold their interest in the debtor's property to the person who would offer to pay the largest proportion of the sums they claimed. He became the purchaser, and this emptio bonorum transferred to him the persona, or legal existence, of the debtor, who thereby suffered a capitis deminutio, and became, in the language of the law, "infamous. It was in the exercise of his
extraordinary' jurisdiction that the magistrate gave this mode of execution. In the times of the Republic there was no fixed tribunal
of appeal, but the authority of the prætors might be
suspended by the veto of other magistrates. Under the Empire the emperor acted as a supreme judge whenever he
chose to interfere; but Hadrian ordered that appeals might be brought to the Senate, and that the decision of the Senate should be final.
109. In the third period of the Roman system of civil process, the period of extraordinaria judicia, his summary Third period jurisdiction was the only jurisdiction the magistrate of the Roman
system of civil exercised. There was no longer any distinction between process.
The extraorjus and judicium; the magistrate and the judge dine were the same person, so that in the language of the cia. Institutes judex means a magistrate deciding a cause. By a constitution published A.D. 294, Diocletian directed all magistrates in the provinces to decide causes themselves. The practice was, in course of time, extended throughout the whole of the empire; and in the days of Justinian it was possible to speak of the ordinaria judicia as quite obsolete.*
110. In the days of the later emperors, the provinces were classed together into præfectures. Over each province
Judges. was a preses, who had a vicarius, or vice-president, under him, and who, either himself or by his vicarius, tried all cases above a certain amount, fixed by Justinian at 300 solidi ; cases below that amount were tried by inferior judges, called judices pedanei, or by the defensores of provincial towns. The great cities, such as Constantinople and Alexandria, were under a separate jurisdiction. The prætorian præfect was the head judge of appeal.
111. Under the system of extraordinaria judicia, an action was begun by the plaintiff announcing to a magistrate Mode of prothat he wished to bring an action, and furnishinge cedure. short statement of his case. No written statement was necessary, but one was often made, and then this statement, called the libellus conventionis, was sent by a bailiff of the court (executor) to the defendant. The parties or their procurators appeared before the magistrate, and the magistrate decided the case. Exceptio was still used as the term to express the plea of the defendant, which he often, but not necessarily, reduced to writing. There was no marked stage in the proceedings, like the conclusion of the proceedings in jure under the formulary system, to show when the action had really begun. But the beginning of the action, to describe which the term litis contestatio was still used, was said
* Inst. iv. 15.
to take place when the magistrate had heard the plaintiff open his case, at the time when, all preliminaries having been gone through, the real hearing began. The condemnation was no longer merely a pecuniary one, and the judge gave sentence for the thing asked for, and not for its equivalent. Constantine had abolished imprisonment for debt unless the debtor could pay, but would not. But already, before the system of extraordinaria judicia began, in the time of Antoninus Pius, the simple process of levying executions on so much of the debtor's property as was requisite had been introduced. So many of the rules of Roman law relating to evidence
which are known to us, date from the period in which
the extraordinaria judicia prevailed, that it may be convenient to give here a brief statement of what the chief of these rules were. Written evidence was not, as a rule, necessary, but when existing was alone admissible, unless the writing was lost. Two witnesses were necessary to prove a fact, and among those who could be witnesses great consideration was paid to the relative character and position of witnesses. But many persons could not be witnesses, such as persons below the age of puberty, criminals, women guilty of adultery, and, under Justinian, Pagans and some heretics. Slaves could only be admitted to complete other testimony. The parties to the suit and their near relations were excluded. The burden of proof rested, as a rule, on him who would fail if no evidence was given, and therefore on him who affirms, not on him who denies. Legal presumptions (præsumptiones juris) were recognised, such as that a formal transaction like emancipation has been properly carried through. Witnesses were made to appear by summons from the judge, and were put on their oath. The torture of slaves, even in civil cases, if they were supposed to be keeping back material evidence, was a very ancient practice, and appears to have been recognised in the time of Justinian. Each of the parties was
put on his oath that he was not bringing or defending
the action except on grounds that he believed to be good, and in the last resort either party could, as it were, compromise the action by challenging the other to swear to the true state of the facts, and was then bound by what was so deposed. Justinian also enacted that the costs, according to a fixed scale, should be determined by the oath of the successful litigant; and the advocates of the parties had to take a preliminary oath that they would not pervert justice.*
* HUNTER, 844. 858. 869, 889.
112. Although the subject of crimes and criminal procedure does not fall properly within the scope of the Insti- Crime tutes, which is a treatise on Private Law, yet as the subject is slightly noticed at the end of the Institutes, and is connected with the general history of Roman Law, it may be convenient to give some slight account of it here. Criminal jurisdiction was under the kings an attribute of the king himself, but there was an appeal in capital cases to the comitia curiata. After the establishment of the republic the comitia centuriata alone could judge capital cases. The comitia tributa exercised a criminal jurisdiction (but without the power of inflicting death) for political offences, such as those committed by a magistrate during his year of office. Before both these comitia the accusation had to be made by the presiding magistrate. The senate also exercised a special power of judging offenders in times of public danger, and sometimes under such circumstances inflicted death as punishment, but it did not properly belong to the senate to deal with capital cases, and the senate also exercised an ordinary jurisdiction and dealt with such crimes as it thought proper to notice. But all these authorities, the king, the comitia, and the senate, while they sometimes discharged themselves the functions of the judge, were in the habit of delegating their powers to others charged to make an investigation (quæstio of the crime. At first each delegatio was made to try one particular offence, and when the case had been tried the quæstio was at an end. These quæstiones, the term being transferred from the inquiry to the persons making it, were subsequently appointed to try all offences of a particular kind that it might be necessary to inquire into, while the delegated persons beld their authority. Lastly, the quæstiones began to be made perpetuæ (A.U.c. 605), and this change was accompanied by the introduction of something like a body of criminal law. When a quæstio was made perpetuu, the crimes it was to try were in some degree defined, and the punishment prescribed; whereas previously, the body exercising criminal jurisdiction or its delegates had been bound by no rules of law as to the nature of the crime or its punishment, except that the comitia centuriata could alone inflict death. Each quæstio consisted of a number of judges varying according to the regulations laid down in the law creating it; sometimes of thirty-two, or of fifty, or of a hundred—the judges being appointed for a year and taken from the same list as that from which judges in civil suits were selected, so that the