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 p646  Judex

Article by George Long, M.A., Fellow of Trinity College
on pp646‑651 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

JUDEX, JUDI′CIUM. A Roman magistratus generally did not investigate the facts in dispute in such matters as were brought before him: he appointed a Judex for that purpose, and gave him instructions. [Actio, Interdictum.] Accordingly, the whole of Civil procedure was expressed by the two phrases Jus and Judicium, of which the former comprehended all that took place before the magistratus (in jure), and the latter all that took place before the judex (in judicio). The meaning of the term Judices in a passage of Livy (Liv. III.55) is uncertain. In the Theodosian Code the term Judex designates the governor of a province. From the earlier periods to the time of Constantine it designated a person, whose functions may be generally understood from what follow.

In many cases a single Judex was appointed: in others, several were appointed, and they seem to have been sometimes called Recuperatores as opposed to the single Judex (Gaius, IV.104‑109). Under certain circumstances the Judex was called Arbiter: thus Judex and Arbiter are named together in the Twelve Tables (Dirksen, Uebersicht, &c. p725).

Judex when appointed was bound to discharge the functions of the office, unless he had some valid excuse (excusatio). A person might also be disqualified from being a Judex. There were certain seasons of the year when legal business was done at Rome (cum res agebantur, Gaius, II.279), and at these times the services of the judices were required. These legal terms were regulated according to the seasons, so that there  p647 were periods of vacation (Cic. ad Att. I.1; cum Romae a judiciis forum refrixerit): in the provinces, the terms depended on the Conventus. A Judex was liable to a fine if he was not in attendance when he was required. In any given case, the litigant parties agreed upon a judex or accepted him whom the magistrates proposed. A party had the power of rejecting a proposed judex, though there must have been some limit to this power (Cic. pro Cluent. 43). In cases where one of the litigant parties was a peregrinus, a peregrinus might be judex (Gaius, IV.105). The judex was sworn to discharge his duty faithfully (Cic. de Invent. I.39).

When Italy had received its organization from the Romans, the magistratus of the several cities had jurisdictio, and appointed a Judex as the praetor did at Rome (Lex Rubria de Gallia Cisalpina). In the provinces, the governors appointed a Judex or Recuperatores, as the case might be, at the Conventus which they held for the administration of Justice; and the Judex or Recuperatores were selected both from Roman citizens and natives.

When the Judex was appointed, the proceedings in jure or before the praetor were terminated, which was sometimes expressed by the term Litis Contestatio, the phrases Lis Contestata and Judicium acceptum or ordinatum, being equivalent in the classical jurists. [Litis Contestatio.] The parties appeared before the Judex on the third day (comperendinatio), unless the praetor had deferred the judicium for some sufficient reason. The Judex was generally aided by advisors (jurisconsulti) learned in the law, who were said "in consilio adesse" (Cic. pro P. Quintio, 2.6, Top. 17); but the Judex alone was empowered to give judgment. The matter was first briefly stated to the Judex (causae conjectio, collectio), and the oratores or patroni of each party supported his cause in a speech. The evidence seems to have been given at the same time that the speeches were made, and not to have been heard before the patroni made their address (Cic. pro Rosc. Com. 14, pro P. Quintio, 18). But it is probable that the practice in this respect might vary in different cases. Witnesses were produced on both sides and examined orally; the witnesses on one side were also cross-examined by the other (Cic. pro Caecina, 10, pro Flacco, 10). Written documents, such as instruments and books of account, were also given in evidence; and sometimes the deposition of an absent witness was read, when it was confirmed by an oath (Cic. pro Rosc. Com. 15, Cic. ad Att. II.12, XIV.15). There were no direct means of compelling a person to give evidence before the legislation of Justinian, unless they were slaves, who in some cases might be put to the torture. As to the application of the oath in judicio, see Jusjurandum.

After all the evidence was given and the patroni had finished, the judex gave sentence: if there were several judices, a majority decided. If the matter was one of difficulty, the hearing might be adjourned as often as was necessary (ampliatio); and if the judex could not come to a satisfactory conclusion, he might declare this upon oath and so release himself from the difficulty. This was done by the form of words "non liquere" (N.L.) (Gell. XIV.2). The sentence was pronounced orally, and was sometimes first written on a tablet. If the defendant did not make his appearance after being duly summoned, judgment might be given against him (judicium desertum, eremodicium), according to the proof which the plaintiff had made. If the plaintiff did not appear, the defendant could demand an acquittal (Dig. 40 tit. 12 s27 § 1, 49 tit. 1 s28, pr.).

The sentence was either of Absolutio or Condemnatio. That part of the formula which was called the Condemnatio [Actio, p12B], empowered the Judex to condemn or acquit (condemnare, absolvere, Gaius, IV.43). The defendant might satisfy the plaintiff after the judicium had been constituted by the litis contestatio (post acceptum judicium, Gaius, III.180, IV.114), and before judgment was given; but in this case it was a disputed question between the two schools whether the judex should acquit, or whether he should condemn on the ground that at the time when the judicium was constituted, the defendant was liable to be condemned and it was the business of the judex merely to follow his instructions. The dispute accordingly involved one of those principles on which the schools were theoretically divided, — the following out of a legal principle to all its logical consequences; but, like many other questions between the schools, this question was practically of no importance, as the plaintiff would not be allowed to have satisfaction twice.

While the Legis actiones were in force, the judgment was for the restitution of a thing, if a given thing (corpus) was the object of the action; but under the process of the formula, the Judex gave judgment, pursuant to the formula, in a sum of money, even when a piece of property was the object of dispute. The sum of money was either fixed or not fixed in the formula. If the claim was for a certain sum of money, the amount was inserted in the condemnatio, and the judex was bound to give that or nothing to the plaintiff. If the claim was for damages or satisfaction, the amount of which was not ascertained, the condemnatio was either limited to a sum named in the formula, and which the judex could not exceed except at his own peril (litem suam faciendo); or, if the action was for the recovery of property from the possessor, or if it was an actio ad exhibendum, the condemnatio empowered the judex to condemn the defendant in the value of the thing. Generally, the term in the formula which expressed the value which was the object of the demand was, "quanti res est." Res may mean either a thing in the limited sense of the word, or generally the claim or demand, and the fixing this at a money value, was equivalent to litis aestimatio. The judex was always bound to condemn in some definite sum, even though the formula did not contain a definite sum: the reason of which is obvious, for, unless the condemnatio was definite, there would be no judgment (Gaius, IV.48‑52).

The following is the distinction between an Arbitrium and Judicium, according to Cicero (pro Rosc. Com. 4):— In a judicium the demand was of a certain sum or definite amount (pecuniae certae); in an arbitrium, the amount was not determined (incerta). In a judicium the plaintiff obtained all that he claimed or nothing, as the words of the formula show: "Si paret H.S. ICCC dari oportere (cf.  Gaius, IV.50). The corresponding words in the formula arbitraria were: "Quantum aequius melius id dari;" and their  p648 equivalents were, "Ex fide bona, Ut inter bonos bene agier" (Top. 17). In a dispute about dos, which Cicero calls "arbitrium rei uxoriae," the words, "Quod aequius, melius," were added (cf. Gaius, IV.47, 62). If the matter was brought before a judex, properly so called, the judicium was constituted with a poena, that is, per sponsionem; there was no poena, when an arbiter was demanded, and the proceeding was by the formula arbitraria. The proceeding by the sponsio then was the strict one (angustissima formula sponsionis, Cic. pro Rosc. Com. 14): that of the arbitrium was ex fide bona, and the arbiter, though he was bound by the instructions of the formula, was allowed a greater latitude by its terms. The engagement between the parties who accepted an arbiter, by which they bound themselves to abide by his arbitrium, was Compromissum (pro Rosc. Com. 4.4); but this term was also employed, as it appears, to express the engagement by which parties agreed to settle their differences by arbitration, without the intervention of the praetor. Cicero appears to allude to this arbitration (Pro P. Quintio, 5; cf. Senec. de Benef. III.7).

In the division of judicial functions between the Magistratus and Judex consisted what is called the Ordo Judiciorum Privatorum, which existed in the early periods of Rome, and continued till the time of Constantine. At the same time with the Ordo Judiciorum Privatorum existed the proceeding extra ordinem or extraordinaria cognitio, in which the magistratus made a decision by a decretum, without letting the matter come to a judex. Finally, under the later empire the extraordinaria cognitio supplanted the old mode of proceeding.

According to Cicero (pro Caecina, 2) all Judicia had for their object, either the settlement of disputes between individuals (controversiae), or the punishment of crimes (maleficia). This passage refers to a division of Judicia, which appears in the Jurists, into Publica and Privata. The term Privata Judicia occurs in Cicero (Top. 17), where it refers to the class of Judicia which he indicates in the Caecina by the term Controversiae. The term Publica Judicia might not then be in use, but the term Publica Causa is used by Cicero (pro Rosc. Amer. c21) with reference to a Judicium, which by the Jurists would be called Publicum. In the Digest (48 tit. 1 s1) it is stated that all Judicia are not Publica in which a crimen was the matter in question, but only those in which the offence was prosecuted under some lex, such as the Julia Majestatis, Cornelia de Sicariis, and others there enumerated. The Judicia Popularia or Populares Actiones as they are called (Dig. 47 tit. 23 s1) are defined to be those by which "suum jus populus tuetur;" and they agreed with the Publica Judicia in this, that any person might be the prosecutor, who was not under some legal disqualification. The Judicia Populi (Cic. Brut. 27) were those in which the populus acted as judices; and accordingly Cicero enumerates the Populi Judicia among others when he says (pro Domo, c13) that "nihil de capite civis, aut de bonis, sine judicio senatus aut populi aut eorum qui de quaque re constituti judices sint, detrahi posse." As the Judicia Publica are defined by the jurists to be those in which crimina were tried by a special lex, it appears that the Judicia Populi, strictly so called, must have fallen into disuse or have gradually become unnecessary after the Judicia Publica were regulated by special leges; and thus the Judicia Publica of the later republican period represent the Judicia Populi of the earlier times. The Judicia Populi were originally held in the Comitia Curiata and subsequently in the Centuriata and Tributa. A lex of P. Valerius Publicola (Liv. II.8; Cic. Rep. II.31) gave an appeal (provocatio) to the populus from the magistratus; and a law of C. Sempronius Gracchus (Cic. pro Rabir. 4) declared to the same effect: "Ne de capite civium Romanorum injussu populi judicaretur."

The kings presided in the Judicia Populi, and the consuls succeeded to their authority. But after the passing of the Lex Valeria de Provocatione (B.C. 508) persons were appointed to preside at such trials as affected a citizen's caput, and they were accordingly called Quaesitores or Quaestores Parricidii or Rerum Capitalium. In some cases (Liv. IV.51) a plebiscitum was passed, by which a magistrate was appointed to preside at the judicial investigation. In the course of time, as cases were of more frequent occurrence, these Quaestiones were made Perpetuae, that is, particular magistrates were appointed for the purpose. In the year 149 B.C. the tribune L. Calpurnius Piso Frugi carried a Lex de Pecuniis Repetundis, by which a Praetor presided at all such trials during his year of office, from which time the Quaestio Repetundarum became Perpetua. L. Sulla gave to one praetor the Quaestiones de Majestate, and to others those of Peculatus and Ambitus; and he also added four other Quaestiones Perpetuae. Thus he carried out the principle of the Lex Calpurnia, by establishing permanent courts for the trial of various specified offences, and the praetors determined among themselves in which of these new courts they should severally preside. The ordinary functions of the praetor urbanus and peregrinus were not interfered with by these new arrangements. The Quaestiones of Sulla were, De Repetundis, Majestatis, De Sicariis et Veneficis, De Parricidio, De Falsis or Testamentaria, and De Vi Publica. But in special cases the senate still sometimes by a decretum appointed the consuls as quaesitores, of which an example occurs in Cicero (Brut. 22).

Any person, not legally disqualified, might be an accuser (accusator) in a Judicium Publicum. On such an occasion a praetor generally presided as quaesitor, assisted by a judex quaestionis and a body of judices called his consilium. The judex quaestionis was a kind of assistant to the presiding magistratus, according to some opinions; but others consider him to be a quaesitor, who was sometimes specially appointed to preside on the occasion of a quaestio (Walter, Geschichte des Röm. Rechts, p861). The judices were generally chosen by lot out of those who were qualified to act. Both the accusator and the reus had the privilege of rejecting or challenging (rejicere) such judices as they did not like (Cic. ad Att. I.16). The judices appointed according to the provisions of the Lex Licinia de AmbituB.C. 55, were called edititii, and these were judices named by the accuser, whom the accused (reus) could not challenge (Cic. pro Cn. Plancio, 15, 17, ed. Wunder, Prolegom. p. lxxvi). The judices were called editi, when they could be challenged by the reus. In many cases a lex was passed for the purpose of regulating the mode of procedure. In the matter  p649 of Clodius and the Bona Dea, the senate attempted to carry a lex by which the praetor who was to preside at the trial should be empowered to select the judices, the effect of which would have been to prevent their being challenged by Clodius. After a violent struggle, a lex for the regulation of the trial was proposed by the tribune Fufius and carried: it only differed from the lex recommended by the senate in the mode of determining who should be the judices (judicum genus): a difference however which was not unimportant, as it secured the acquittal of Clodius. The judices voted by ballot, a majority determined the acquittal or condemnation of the accused. If the votes were equal, there was an acquittal (Plut. Marius, 5). Each judex was provided with three tablets (tabulae), on one of which was marked A, Absolvo; on a second C, Condemno; and on a third, N.L., Non liquet. The judices voted by placing one of these tablets in the urn (urna, Juv. Sat. V.4), which was then examined for the purpose of ascertaining the votes. It was the duty of the magistratus to pronounce the sentence of the judices; in the case of condemnation, to adjudge the legal penalty; of acquittal, to declare him acquitted; and of doubt, to declare that the matter must be further investigated (amplius cognoscendum).

Mention is often made of the Judicia Populi in the Latin writers. A Judicium was commenced by the accuser, who must be a magistratus, declaring in a contio, that he would on a certain day accuse a certain person, whom he named, of some offence, which he also specified. This was expressed by the phrase "diem dicere" (Virginius Caesoni capitis diem dicit, Liv. III.11). If the offender held any high office, it was necessary to wait till his time of service had expired, before proceedings could be thus commenced against him. The accused was required to give security for his appearance on the day of trial; the security was called vades in a causa capitalis, and praedes when the penalty for the alleged offence was pecuniary. If such security was not given, the accused was kept in confinement (Liv. III.13). If nothing prevented the inquiry from taking place at the time fixed for it, the trial proceeded, and the accuser had to prove his case by evidence. The investigation of the facts was called Anquisitio with reference to the proposed penalty: accordingly, the phrases pecunia, capite or capitis anquirere, are used (Liv. XXVI.3). When the investigation was concluded, the magistratus promulgated a rogatio, which comprehended the charge and the punishment or fine. It was a rule of law that a fine should not be imposed together with another punishment in the same rogatio (Cic. pro Dom. c17). The rogatio was made public during three nundinae, like any other lex; and proposed at the comitia for adoption or rejection. The form of the rogatio, the effect of which was to drive Cicero into banishment, is given in the Oration Pro Domo, c18. The accused sometimes withdrew into exile before the votes were taken; or he might make his defence, of which we have an instance in the oration of Cicero for Rabirius. Though these were called Judicia Populi, and properly so in the early ages of the state, the leges passed in such judicia in the latter period of the republic were often Plebiscita.

The offences which were the chief subject of Judicia Populi and Publica were Majestas, Adulteria and Stupra, Parricidium, Falsum, Vis Publica and Privata, Peculatus, Repetundae, Ambitus, which are treated under their several heads.

With the passing of special enactments for the punishment of particular offences, was introduced the practice of forming a body of Judices for the trial of such offences as the enactments were directed against. Thus it is said that the Lex Calpurnia De Pecuniis Repetundis established the Album Judicum Selectorum, or the body out of which the Judices were to be chosen. It is not known what was the number of the body so constituted, but it has been conjectured that the number was 350, and that ten were chosen from each tribe, and thus the origin of the phrase Decuriae Judicum is explained. It is easy to conceive that the Judicia Populi, properly so called, would be less frequent as special leges were framed for particular offences, the circumstances of which could be better investigated by a smaller body of Judices than by the assembled people. It is affirmed that up to the passing of the Calpurnia Lex, the Judices were chosen from the senators only, but after this time they were not taken from that body exclusively; and further, that not only the Judices in the Quaestiones de Repetundis, but also the Judices in private matters were from the date of this lex taken from the Album Judicum which was annually made (Goettling, Geschichte der Röm. Staatsverfassung, p425); for which there appears to be no evidence. Some modern writers affirm that by the Lex Calpurnia the Judices were chosen by the Praetor annually out of the body of senators, and arranged according to their tribes; and that the necessary number for each trial was chosen out of this body by lot.

As many of those who were tried in the quaestiones perpetuae belonged to the class of the Optimates, it often happened that the Judices acquitted those members of their own body, who would have been convicted by impartial judices. Accordingly a struggle arose between the popular party and the Optimates, whom the popular party wished to exclude from the office of Judex. The laws which relate to the constitution of the body of Judices are called Judiciariae, whether these laws related only to this matter, or made rules about it and other things also. The first lex which excluded the Senators from the Album judicum selectorum was a Lex Sempronia of C. Gracchus, B.C. 123, in accordance with which the judices were taken only from the Equites. This arrangement lasted above forty years, and gave satisfaction to the popular party; but it did not work well in all respects, because the magistrates in the provinces favoured the rapacity of the Publicani, in order to keep on good terms with the Equites, to which class the Publicani belonged (Cic. Verr. III.41). Lex Servilia Caepionis B.C. 106 is said to have repealed the Sempronia Lex; but this Lex Servilia was itself repealed by a Lex Servilia Glauciae repetundarum, probably in B.C. 104. This Lex is said to have given the Judicia to the Equites, and consequently it either repealed the Lex of B.C. 106 indirectly, or it may merely have confirmed the Lex Sempronia; for the real nature of the Lex of B.C. 106 is hardly ascertainable. There is a passage in Tacitus (Ann. XII.60) in which he speaks of the Serviliae leges restoring the Judicia to the senate. The Lex Servilia of B.C. 104 excluded from the function of  p650 Judices every person who had been tribunus plebis, quaestor, triumvir capitalis, tribunus militum in one of the first four legions, triumvir agris dandis assignandis, who was or had been in the senate, who was infamis, every person who was under thirty or above sixty years of age, every person who did not live in Rome or in the immediate neighbourhood, every father, brother, or son of a person who was or had been in the senate, and every person who was beyond seas. The Praetor who presided in this Quaestio, was to choose 450 judices, from whom the Judices for the particular case were to be taken by lot (Fragmenta Legis Serviliae Repetundarum, &c. C. A. C. Klenze, Berlin, 1825, 4to.).

The attempts of the tribune M. Livius Drusus the younger had no result [Leges Liviae]. A Lex Plautia B.C. 89 enacted, that the Judices should be chosen by the tribes, five by each tribe, without any distinction of class. The Optimates triumphed under L. Cornelius Sulla, who by a Lex Cornelia B.C. 80 enacted that the Judices should be taken exclusively from the Senators. But a Lex Aurelia (B.C. 70) enacted that the Judices should be chosen from the three classes — of Senators, Equites, and Tribuni Aerarii (Vell. II.32). The Tribuni Aerarii were taken from the rest of the citizens, and were, or ought to have been, persons of some property. Thus the three decuriae of Judices were formed; and it was either in consequence of the Lex Aurelia or some other lex that, instead of one urn for all the tablets, the decuriae had severally their balloting urn, so that the votes of the three classes were known. Dion Cass. (XXXVIII.8) ascribes this regulation to a Lex Fufia, and he says that the object was that the votes of the decuriae (ἔθνη, γένη) might be known, though those of individuals could not, owing to the voting being secret. It is not known if the Lex Aurelia determined the number of Judices in any given case. Lex Pompeia passed in the second consulate of Pompey (B.C. 55), seems to have made some modifications in the Lex Aurelia, as to the qualification of the Judices; but the new provisions of this lex are only known from Asconius, who explains them in terms which are very far from being clear. The Lex Pompeia de Vi, and De Ambitu (B.C. 52) determined that eighty judices were to be selected by lot, out of whom the accuser and the accuser might reject thirty. In the case of Clodius (B.C. 61), in the matter of the Bona Dea, there were fifty-six judices. It is conjectured that the number fixed for a given case, by the Lex Aurelia, was seventy judices.

Lex Judiciaria of Julius Caesar (Sueton. Jul. 41; Cic. Philip. I.8) took away the decuria of the Tribuni Aerarii, and thus reduced the judices to two classes (genera, the γένη of Dion Cass.). Lex Judiciaria, passed after his death by M. Antonius, restored the decuria of the Tribuni Aerarii, but required no pecuniary qualification from them: the only qualification which this lex required was, that a person should have been a centurion or have served in the legions. It appears that the previous Lex Pompeia, Lex Aurelia, and a Lex of Caesar, had given to those who had been centurions (qui ordines duxerant) the privilege of being judices (judicatus), but still they required a pecuniary qualification (census). The Lex of Antonius, besides taking away the pecuniary qualification, opened the judicia to the soldiers (Cic. Phil. I.8, V.5; Sueton. J. Caes. c41). It seems probable that the expression ex centuriis, which is used by Asconius in speaking of the change introduced by this Lex Pompeia, had reference to the admission of the centurions into the third class of judices.

Augustus, who altered the whole constitution of the body of judices by his leges judiciorum publicorum et privatorum, added to the existing three Decuriae Judicum, a fourth Decuria, called that of the Ducenarii, who had a lower pecuniary qualification, and only decided in small matters (de levioribus summis, Sueton. Aug. 32). Caligula (Suet. Cal. 16) added a fifth Decuria, in order to diminish the labours of the judices. Augustus had already allowed each Decuria, in its turn, an exemption for one year, and had relieved them from sitting in the months of November and December. The whole number of judices was raised by Augustus to near 4000 (Plin. H. N. XXXIII.7); and the judices in civil cases were taken out of this body. They were chosen by the Praetors out of the persons who had the property qualification, and the duty of serving as a judex thus became one of the burdens to which citizens were liable.

As to the whole number of judices, included at any given time in the Album Judicum, it seems almost impossible to state any thing with precision; but it is obvious from what has been said, that the number must have varied with the various changes already mentioned. After the time of Augustus the number was about four thousand, and from this period, at least, there is no doubt that the Album Judicum contained the whole number of persons who were qualified to act as judices, both in Judicia Privata and Judicia Publica. The fourth Decuria of Augustus was limited in its functions to the Judicia Privata in which the matter in dispute was of small value. It is often stated by modern writers, without any qualification, that the various changes in the judiciary body from the time of the Lex Calpurnia to the end of the republic had reference both to the Judicia Publica and Privata; though it is also stated that the objects of these various enactments were to elevate or depress one of the great parties in the state, by extending or limiting the body out of which the judices in any given case were to be chosen. But it is obvious that these reasons do not apply to the matter of Judicia Privata, in which a single judex generally acted, and which mostly concerned matters of property and contract. Accordingly, a recent writer (Walter, Geschichte des Röm. Rechts, p716) has observed with more caution than some of his predecessors, that "there is no doubt that from the time of Augustus the Album Judicum had reference to the judices in civil matters, but that as to earlier times a difficulty arises from the fact that while the Lex Sempronia was in force, by which the senators were excluded from the Album Judicum, a Consularis is mentioned as a judex (Cic. de Off. III.19); and, on the other hand, an Eques is mentioned as a judex at a time when the Lex of Sulla was in force, and consequently senators only could be judices (Cic. Pro Rosc. Com. c14)." These instances certainly are inconsistent with the fact of the Judicia Privata being regulated by the various Leges Judiciariae; but they are of small weight, compared with the reasons derivable from the character of the two  p651 kinds of Judicia and the difference in the mode of procedure, which render it almost a matter of demonstration that the various changes in the judiciary body had reference to the Quaestiones and Judicia Publica. It is true that some of these leges may have contained provisions even as to Judicia Privata, for many of the Roman leges contained a great variety of legislative provisions, and it is also true that we are very imperfectly acquainted with the provisions of these Leges Judiciariae; but that the regulation of the Judicia Privata was included in their provisions, in the same form and to the same extent as that of the Judicia Publica, is an assertion totally unsupported by evidence, and one which leads to absurd conclusions. Two Leges Juliae together with a Lex Aebutia put an end to the Legis Actiones (Gaius, IV.30); and a Lex Julia Judiciaria limited the time of the Judicia Legitima (Gaius, IV.104); but it does not appear whether these leges were passed solely for these objects, or whether their provisions were part of some other leges.

Bethmann-Hollweg (Handbuch der Civilprozesses, p13) observes: "the establishment of a more limited body of judices out of the senatorial body (album judicum selectorum), A.V.C. 605, the transfer of this privilege to the equites, by C. Gracchus, the division of it between both classes after long struggles and changes, and even the giving of it to the third class, whereby three classes or decuriae of judices were established; all these changes, which were so important in a constitutional point of view, referred especially to the criminal proceedings which were politically so important."

The following works may be referred to:— Walter, Geschichte des Röm. Rechts; Goettling, Geschichte der Röm. Staatsverfassung; Heineccius, Syntagma, &c.; Tigerstrom, De Judicibus apud Romanos, Berl. 1826, valuable only for the collection of the original authorities; Keller, Ueber Litis Contestation und Urtheil, &c. Zürich, 1827; Bethmann-Hollweg, Handbuch des Civilprozesses, Bonn, 1834; P. Invernizii, De Publicis et Criminalibus Judiciis Romanorum, Libri Tres, Leipzig, 1846; Puchta, Inst. I. § 71, II. § 151, &c.; Gaius, IV.; Dig. 5. tit. 1 De Judiciis; Dig. 48 De Judiciis Publicis; Inst. 4 18).

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