the hearing of all causes, and give judgment themselves; but were empowered, and indeed, in many cases, obliged by law to appoint judges for the purpose. When the prætor tried causes he was said cognoscere, - either de tribunali, or de plano. The former term was used when he sat upon a raised seat or tribunal, and heard the case formally argued before him: the latter when, as was frequently the case, he administered the law in a more familiar manner conversing with the parties, and standing on the same level with themselves. Strange as this may appear, it was undoubtedly the custom at Rome. Suitors frequently addressed the prætor even in the street, or at his own house, for a redress of their grievances; and sometimes even in court he did not ascend the tribunal, but let the parties speak to him on the subject of their dispute, which he determined on the spot.1 In all these cases he was said cognoscere de plano. The thing most analogous to this amongst ourselves is the practice before a judge at chambers, where a vast amount of most important business connected with. litigation is transacted; but it is very certain that no such scene would be acted there, as we are told by Suetonius sometimes occurred, even when the imperial Cæsar himself disposed of causes in this manner. He says that the barristers ventured to presume so much upon the good nature of Claudius, that when he descended from the tribunal they used to call out to him to stop and pull him by his robe; or even catch hold of his leg, and im

Heinecc. Syntag, Lib. IV. tit. 6.

Polleti Hist. Fori Rom., Lib. I.

c. 5. Heineccius says that this mode of hearing causes must not be confounded with summary jurisdiction; for many cases which were to be disposed of summarily, were obliged to be determined de tribunali, It is impossible, however, not to consider it as a very summary mode of settling disputes.

CH. III.]

CRIMINAL TRIALS.

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portune him to attend to the motions which they had to make.1

When the prætor held his court de tribunali, he summoned to his aid a number of assessors, called judices, who sat on each side of him, a little behind his seat. These were selected on ordinary occasions out of the centumviral body, who formed a kind of judicial college at Rome; but very little is known of their constitution or peculiar functions. According to Festus, three were chosen out of each tribe,- and as there were thirty-five tribes, these would amount to 105, which may have been the origin of their name, as being in round numbers a hundred men. We know that in the courts of the centumviri were tried causes involving the most dry and technical points of law. Questions were there discussed relating to adverse possession 2, guardian and ward, pedigree, the law of debtor and creditor, party walls, ancient lights, easements, the validity of wills, and, in short, almost every thing connected with the rights and liabilities of parties.3

But let us now turn to the more important and interesting class of trials, those of a criminal nature. Although they are often confounded together, under the name of

A distinguished Equity Judge is said to have granted an injunction while he was bathing in the Thames; and, at another time, when his foot was in the stirrup.

2 Usucapio. This is sometimes incorrectly translated "prescription: but there is no such thing as a right to the possession of real property by prescription known to the English law. Usucapio means the title to property, which is conferred by length of adverse possession. A man cannot prescribe for an estate; but he may for an easement or servitus, i. e. a right to make use of the property of another in a particular manner, as, for instance, a right of way over his neighbour's field, or a right of common for his cattle.

judicia publica, this term, in strictness, applied only to a particular division of them. They consisted, in fact, of four different kinds : 1. Actiones populares; 2. Actiones extraordinariæ; 3. Judicia publica; 4. Judicia populi. The "actiones populares" were trials appointed at the instance of the prætor, for the punishment of a lesser kind of misdemeanors, and chiefly such as were offences against municipal and sanitary regulations; as, for instance, sacrilegious disturbance of graves, impeding the streets or sewers, or doing any thing whereby the public convenience was impaired. Any person might be the prosecutor in these cases, and the penalty of a fine was generally imposed. So far, we may compare them to qui tam actions amongst ourselves; but I am not aware that any portion of the fine went, in these actions at Rome, as in this country to the informer.

66

There has been much controversy as to the exact difference between the "actiones extraordinariæ," (called sometimes judicia extraordinaria), and the “ judicia publica; " but the better opinion seems to be, that the former embraced such crimes as were not specially provided against by any particular law, or to which no particular punishment was affixed, but it was left to the discretion of the tribunal. And the tribunal was of itself of a special nature, and appointed for the occasion, consisting sometimes of the whole senate, sometimes of the consuls, or other magistrates, as the case might be." For when crime occurred, the Romans dealt with it if necessary, by an ex post facto law, and had no idea

1 The use of these Latin terms in the text may appear pedantic; but they are not preserved from a wish to follow the example of a learned counsel, who, anxious to be classically correct, once spoke of applying to the court for two mandami.

* Heinecc. Syntag. IV. 18., Polleti Hist. Fori Rom. IV. 1.

CH. III.]

PRESIDENTS AT TRIALS.

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that a criminal should escape, because there did not happen to be a law specifically applicable to his offence. The judicia publica, on the contrary, were trials for the violation of some established and particular law; as, for instance, the Julian, against treasons, the Cornelian, against stabbing and poisoning, the Pompeian, against parricide, and a variety of laws against bribery and corruption in canvassing for public offices. And the judicia populi of the earlier times, where the burghers at large tried and judged the accused, were, when these special laws were enacted, supplanted by the judicia publica; and, as we shall see, the number of judges was limited, and chosen out of a particular class.

But there was another mode of trying offences anciently at Rome, by the appointment of commissioners called Quæsitores parricidii, or Quæsitores rerum capitalium. The tribunes of the commons used, in the first instance, to put the question to the people in one of the popular assemblies, — and ask them whether they willed and ordained that an inquiry should take place, — and that one of the prætors should refer it to the senate to determine who should conduct the trial. If the people voted for the accusation, the senate gave authority to some magistrate immediately to investigate the matter, and put the culprit upon his trial.1 But during the last century of the republic, this form was discontinued, and by various laws it became the province of the prætors to hold these trials themselves, without any special authority being delegated to them on each occasion. On entering their year of office it was determined by lot, what particular class of offences each of them should take cog

1 Liv. iv. 51. ix. 26. xxxviii. 54. See Heinecc. iv. 18. § 11. Hence they were called perpetuæ quæstiones or ordinary trials, as distinguished from the special commissions of former times.

nizance of during the ensuing twelve months. Thus Cicero assigns as one of the reasons why Sulpicius was beaten by Murena in the contest for the Consulship, that the former had as prætor obtained the unpopular office of quæstor peculatús, or "commissioner of embezzlement," which he calls, "stern and odious, threatening, on the one hand, tears and misery, and, on the other, trials and imprisonment."1

But the prætor did not sit as a judge, in our sense of the word, at these trials. He acted as the president of the court, under whose auspices and authority the proceedings were conducted; but he seems to have had no voice in the sentence pronounced. He had the imperium, but not the jurisdictio. This belonged to the Judices, who were summoned by him to sit upon the trial, and of whom we find such constant mention made in the speeches and other writings of Cicero. It was their province to determine the question of guilt or innocence; and they were taken out of a particular class of citizens which varied at different times. The importance of the functions which they had to discharge, made it a matter of vital interest that they should be men of pure and upright character; but nothing was more common at Rome, than to hear them charged with every kind of corruption and venality. Their names were inscribed on a list, or jury panel, called Album Judicum, which is supposed to have been first brought into use by the Calpurnian law. There is much doubt as to their number, which, however, varied at different times. Some imagine that ten were originally chosen from each tribe, which would make them amount to about 300, and hence they explain the term, Decuria judicum. At first they seem to have been confined exclusively to the senatorian body;

1 Pro Murena, 20.