CHA P. XVIII.

Of the Judiciary Power in the Roman Government.

THE judiciary power was given to the people, to

the fenate, to the magiftrates and to particular judges. We' muft fee in what manner it was diftributed; beginning

with their civil affairs.

The confuls had the power of judging after the expulfion of the kings, as the prætors were judges after the confuls. Servius Tullius had divefted himself of the judgment of civil affairs, which was not refumed by the confuls, except int fome very rare cafes, for that reason called extraordinary. They were fatisfied with naming the judges, and with forming the feveral tribunals. By a difcourfe of Appius Claudius, in Dionyfius Halicarnaf fus, it appears, that as early as the 259th year of Rome, this was looked upon as an established cuftom among the Romans, and it is not tracing it very high to refer it to' Servius Tullius.

Every year the prætor made a lift of fuch as he chofe to discharge the office of judges during his magiftracy. A fufficient number was pitched upon for each caufe; a cuffom very near the fame as that which is now practised in England. And what was extremely favorable to liberty, was the prætors fixing the judges with the* confent of the parties. The great number of exceptions that

can

There is no manner of doubt, but the confuls had the power of judging civils affairs before the creation of the prætors. See Livy, dec. 1. book 2. p. 19. Dionyf. Halicarn. book 10, p. 627, and the fame book p. 645.

The tribunes frequently judged by themselves only, but nothing rendered them more odious. Dionyf. Halicarn. book xi. p. 709.

Judicia extraordinaria. See the Institutes, book iv.

Book 6. p. 360.

Album judicum.

"Our ancestors," fays Cicero pro Cluentio, would not fuffer any man, "whom the parties had not agreed to, to be judge of the leaft pecuniary affair, much lefs of a citizen's reputation."

See in the fragments of the Servillian, Cornelian and other laws, in what manner thefe laws appointed judges for the crimes they propofed to punish. They were often by choice, fometimes by lot, or, in fine, by lot mixed together with choice.

can be made now in England, amounts pretty near to this very cuftom.

The judges decided only the questions relating to facts, for example, whether a fum of money had been paid or not, whether an act had been committed or not. But as to questions of right, as they required fome fort of capacity, they were always carried before the tribunal of the cen tumvirs.+

The kings referved to themselves the judgment of criminal affairs, and in this they were fucceeded by the confuls. It was in confequence of this authority that Brutus the conful put his children and all thofe who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The confuls, already invefted with the military command, extended the exercise of it even to civil affairs; and their procedures being ftripped of all forms of juftice, were rather exertions of violenc legal judgments.

'an

This gave rife to the Valerian law, by which it was made lawful to appeal to the people from every ordinance of the confuls that endangered the life of a citizen. The confuls after this had no longer power of pronouncing fentence in capital cafes against a Roman citizen without the confent of the people.§

We see in the first confpiracy for the restoration of the Tarquins, that the criminals were tried by Brutus the conful; in the fecond the fenate and comitia were affembled to try them.

The laws diftinguished by the name of Sacred, allowed the plebeians the privilege of choofing tribunes; by this means a body was formed, whofe pretenfions at firft were immenfe. It is hard to determine which was greater, the infolence of the plebeians in demanding, or the condefcenfion of the fenate in granting. The Valerian law allowed of appeals to the people, that is, to the people composed of fenators, patricians and plebeians. The plebeians made a law that appeals fhould be brought before themselves. A question

* Seneca de benefic. lib, iii. cap. 7. in fine. + See Quintillian, lib. 4. p. 45 .in fol. edit. of Paris, 1541. Leg. 2. ff. de orig. jur. Magiftrates who were called decemvirs prefid

ed in court, the whole under a prætor's direction.

Quoniam de capite civis Romani, injussu populi Romani, non erat permishum confulibus jus dicere. See Pomponius, leg. 2. ff. de orig. jur.

Dionyf. Halicarn. book 5. P. 3&

A queftion was foon after started, whether the plebeians had a right to judge a patrician; this was the fubject of a difpute, which the affair of Coriolanus gave rife to, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he infifted contrary to the spirit of the Valerian law, that as he was a patrician, none but the confuls had a power to judge him; on the other hand, the plebeians, alfo contrary to the spirit of that very fame law, pretended that none but themfelves had a power to judge him, and they judged him accordingly.

This was moderated by the law of the twelve tables; whereby it was ordained, that none but the great affemblies of the people fhould pronounce fentence against a citizen in capital cafes. Hence the body of the plebeians, or which amounts to the very fame, the comitia by tribes had no longer any power of judging crimes, except fuch as were punished with a pecuniary mulet. To inflict a capital punishment a law was requifite; but to condemn to a pecuniary fine, there was occafion only for a plebifcitum.

This regulation of the law of the twelve tables was very prudent. It produced an admirable reconciliation be tween the body of the plebeians and the fenate. For as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime, it was neceffary they should both agree.

The Valerian law abolifhed all the remains of the Roman government, which were any way relative to that of the kings of the heroic times of Greece. The confuls were divefted of the power to punish crimes. Though all crimes are public, yet we muft diftinguish between thofe which more nearly concern the mutual communication of citizens, and thofe which more nearly intereft the flate in the relation it has to its fubjects. The firft are called private, the fecond public. The latter were judged by the people; and in regard to the former, they named by particular commiffion, a quæftor for the profecution of each crime. The perfon chofen by the people was frequently one of the magiftrates, and fometimes a private man. He

was

The comitia by centuries. Thus Manlius Capitolinus was judged in thefe comitia. Livy, dec. . book vi, p. 60.

was called the quæftor of parricide, and is mentioned in the law of the twelve tables.*

The quæftor nominated the judge of the queftion, who drew lots for the judges, and formed the tribunal, under which he prefided.+

Here it is proper to obferve what share the fenate had in the nomination of the quæftor, that we may fee how far the two powers were balanced in this refpect. Sometimes the fenate caufed a dictator to be chosen in order to exercife the office of quæftor,+ fometimes they ordained that the people fhould be convened by a tribune in order to proceed to the nomination of a quæftor: And in fine, the people fometimes appointed a magiftrate to make his report to the fenate concerning a particular crime, and to defire them to name a quæftor, as may be seen in the judgment of Lucius Scipio in Livy.¶

In the year of Rome 604, fome of thofe commiffions were rendered permanent. * All criminal caufes were gradually divided into different parts, to which they gave the name of perpetual queftions. Different prætors were created, to each of whom fome of those questions were affigned. They had a power conferred upon them for the term of a year, of judging fuch crimes as were any way relative to thofe queftions, and then they were fent to gov ern their province.

At Carthage, the fenate of the hundred was compofed of judges that enjoyed that dignity for life. But at Rome, the prætors were annual, and the judges were not even for fo long a term, but were nominated for each cause. We have already fhewn in the fixth chapter of this book, how favorable this regulation was to liberty in particular governments.

VOL. I.

N

*Pomponius, in the fecond law digeft. de orig. jur.

The

+ See a fragment of Ulpian, who gives another of the Cornelian law; it is to be met with in the collection of the Mosaic and Roman laws, tit. 1. de fuariis & homicidiis.

This took place efpecially in regard to crimes committed in Italy, which were subject chiefly to the infpection of the fenate. See Livy, dec. 1. book ix. concerning the confpiracies of Capua.

This was the cafe in the profecution for the murder of Pofthumius, in

the year 340 of Rome. See Livy.

This judgment was given in the year of Rome 567.

I Book viii.

Cicero in Bruto.

This is proved, from Livy, book 43, who fays that Hannibal rendered

their magiftracy annual,

The judges were chosen from the order of fenators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass, that they fhould be taken from the equestrian order; a change fo very confiderable, that the tribune boasted of having cut, by one rogation only, the finews of the fenatorial dignity.

It is neceflary to obferve, that the three powers may be very well diftributed in regard to the liberty of the conftitution, though not fo well in refpect to the liberty of the fubject. At Rome, the people had the greatest share of the legislative, part of the executive, and part of the judiciary power; by which means they had fo great a weight in the government, as required fome other power to balance it. The fenate indeed had part of the executive power, and fome fhare of the legislative; but this was not fufficient to counterbalance the weight of the people. It was neceffary that they should have a fhare in the judiciary power; and accordingly they had a fhare, when the judges were chofen from among the fenators. But when the Gracchi deprived the fenators of the power of judging, the fenate were no longer able to withstand the people. To favor therefore the liberty of the fubject, they ftruck at the liberty of the conftitution: But the former perished with the latter.

Infinite were the mischiefs that from thence arofe. The conftitution was changed at a time when the fire of civil difcords had fcarce left any fuch thing as a conftitution. The knights were no longer that middle order which united the people to the fenate; the chain of the conftitution was broke.

There were even particular reafons against transferring the judiciary power to the equeftrian order. The conftitution of Rome was founded on this principle, that none fhould be enlifted as foldiers, but fuch as were men of fufficient property to answer for their conduct to the republic. The knights, as perfons of the greatelt property, formed the cavalry of the legions. But when their dignity encreased, they refused to serve in that capacity; and an other kind of cavalry was obliged to be raised: Thus Ma

rius

• The fenatufconfulta were of force for the space of a year, though not confirmed by the people. Dionyf. Halicarn. 1. 9. p. 595. & l. 11. p. 735. In the year 630.