II. ceiver thereby became answerable for the safe CHAP. custody1; but in all these cases dolus, or culpa, must be proved against the carrier, or the inn-keeper himself. Consequently the Prætor established the actio quasi ex delicto, in which case it was only necessary to prove the reception of the property, and the subsequent loss or damage; the master being thus made liable for the acts of his servants. The pleas in answer to this action are either the culpa of the plaintiff, or damnum fatale2. IV. CHAPTER III. Actions. BOOK IN case of privation or infringement of a man's right, the jus civile of each particular society entitles the injured party to redress; and the means by which redress is to be obtained are suits or actions in a Court of Justice. Actio: definition. Actio nihil aliud est quam jus persequendi judicio quod sibi debetur1; the means which the law puts into a man's power of pursuing and recovering those rights, whether perfect or imperfect, of Double sig- which he is unjustly deprived. But the word nification. actio has a double signification. In its primary sense it means the jus persequendi, the right of recovery in its secondary, the modus persequendi, the forms necessary to accomplish the recovery. Actions, how classed. Actions are divided into two classes, real and personal; to which may be added a third class, called mixed actions; the first, where some specific thing is claimed, and sought to be recovered; the second, where the plaintiff declares the defendant is bound upon some obligation dare, facere or præstare; and the third, where the plaintiff claims his property, and a penalty besides Before we enter upon the examination of actions, it will be convenient to premise a few observations upon the courts in which they were brought, and those magistrates who were invested with the power of administering justice. earliest period of the Roman Commonwealth in this particular is involved in great obscurity, the The minute investigation of which would ill repay the CHAP. labour of the law student. III. in Justice was at first administered by the kings Adminis in person': Omnia manu a regibus gubernaban-tration of tur. Servius Tullius, the sixth king of Rome, the earliest established a particular tribunal for private suits3, period. On the establishment of the republic the authority of the kings passed to the consuls', who at first performed the office which afterwards devolved upon the Prætors. These magistrates received assistance in their functions in two ways,-first, from the centumviral court, which was a permanent tribunal; and, secondly, from the judges they themselves deputed to try particular causes. The jurisdiction of the centumviral court ap- Centumvipears to have extended to all questions of private ral court. property. The court is supposed to have consisted of 105, three from each of the 35 tribes. When it sat for business a spear was set up as the emblem of its authority in all quiritarian rights". Under the empire its number became 180o. It sat in the Basilica Julia, and was divided into four consilia, which formed separate tribunals; but some questions were tried before the whole body 10. The Prætor with the Decemviri litibus judicandis pre sided". litibus The Decemviri litibus judicandis formed a per- Decemviri manent court. Pomponius says, Cum esset neces- judicandis. sarius magistratus qui hasta præesset Decemviri stlitibus judicandis sunt constituti 2. Of their authority nothing more is known than that they were appointed to settle matters of freedom 13. The Judex was an officer appointed by the Prætor, datus a Prætore, whose province was to preside at the trial of matters of fact. He was 1 Cicero, de Rep. v. 2. 4 Liv. II. 57. 6 Colq. 232. 8 Gai. IV. 16. 10 Colq. 232. 12 D. 1. 2. 2. 29. 2 D. I. 2. I. 3 Cicero, de Rep. v. 2. 5 Liv. III. 55. 7 Cic. de Orat. I. 38. 9 Plin. Ep. VI. 33. 11 Hein. Ant. IV. 6. 9. 13 Colq. 1993. BOOK also called judex pedaneus, because he sat quasi IV. ad pedes Prætoris. Judex How ap pointed. The question as to how the selection of the pedaneus. Judices for the trial of causes was made, it is impossible to answer: any attempt to do so must fail, for we find between the year u. c. 605, the date of the Lex Calpurnia, which was the origin of the Quæstiones perpetuæ, and the year 729, no less than ten leges judiciaria were passed. The Lex Aurelia, passed A.U. c. 684, appears to have established three decuriæ judicum, consisting of the Senate, the Equites and the Tribunes. The Lex Julia, A. U. c. 708, excluded the Tribunes; and the Lex Antonia, two years afterwards, A. U. C. 710, restored them again'. There was, no doubt, an Album judicum, from which the Prætor selected the judices: further than this nothing has been ascertained with certainty. Arbiter. Recuperatores. The Arbiter was a judge of a res incerta, where an amount was to be assessed in cases bona fidei. He had the assessment of the value, the judex being rather confined to a res certa. Judices in the plural were only summoned in criminal cases, their duty being very different from that of the Judex, inasmuch as it resembled that of the English Jury, their verdict being the opinion of the majority. The Prætor sat as judge, and gave judgment, if they convicted. Recuperatores were named by the Prætor to assess damages and determine matters of fact generally. Instead of judex esto, the Prætor declared Recuperatores sunto; and the distinction between these and a single judge consisted in their plurality; and they were appointed whenever a peregrinus was a party to the suit, or where the cause was tried more than a mile from Rome3. Dr Colquhoun discusses their probable duties, but with no certain or definite conclusion1. 1 The reader is referred to Haub. Vol. II. pp. 39 to 47. 3 Gai. IV. 105. 4 Colq. 1996. III. It is not until the year u.c. 387, when the CHAP. office of Prætor was created, that we begin to see a regularly defined court of judicature, and Prætor. system of legal process1. The Prætor was in- His vested with the prerogatives of imperium and powers. jurisdictio, the former of which consisted of the power of summoning parties to his court, the in jus vocatio; the latter in the jus edicendi, whereby he first ascertained whether there was a cause of action; and if so, he sent it down to be tried by a judex, whose duty was set forth in a formula of this nature, Si paret condemna, si non paret absolve. This was to decide, an issue of fact, and was said to be secundum ordinem. If no fact were Secundum, disputed, and the Prætor decided at once on a point of law, it was said to be extra ordinem. His jus edicendi also applied to his power of changing and modifying the album at his discretion, which produced such remarkable results to the Roman jurisprudence3. or extra ordinem. The place where the Prætor sat in public to Tribunal. hear causes was called the Tribunal, which was an elevated seat in the Forum where he occupied a sella curulis. He also administered justice out of court, which was called de plano", i. e. at his house, De plano. or even in the street: the latter case being analogous to what with us is called a Judge "at Chambers." The Prætor might delegate his authority, mandare jurisdictionem, to a deputy, either wholly or in part; but the inferior magistrates were not invested with imperium. The imperium granted Imperium to the superior magistrates in civil cases did not necessarily include authority in criminal matters, which was called imperium merum, and was equivalent to potestas: if both were conferred, it was called mixtum7. 1 Book I. chap. 2. 3 Book I. chap. 2. 5 Id. 8. 2 Gai..IV. 86. 4 Hein. Ant. IV. 6. 7. merum and mixtum. 7 D. II. I. 3. |