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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 proceedings in a civil action were 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 at the actual trial of the issue (in judicio). The office of judex (judicandi munus) in private causes was either performed by public bodies of persons,--that is, by the decemviral or centumviral colleges,--or, as became the ordinary rule, by private persons selected by the magistratus, with the co-operation of the parties, from such classes of persons as were qualified to serve. The decemviri are probably to be identified with the decemviri stlitibus judicandis of the Twelve Tables, and may have been the judges instituted by Servius Tullius for determining private suits, when the principle of limiting magisterial power by the institution of private judges may have been first established. (Dionys. A. R. 4.25: but see Mommsen, Röm. Gesch. 566, 1; Lange, Röm. Alterth. 601, 903.) The centumviri were a body of one hundred and five members, three being chosen from each tribe (Festus, Epit. “centumviralia judicia” ). These two plebeian colleges came to be amalgamated for certain purposes, while in certain other cases they acted separately.
Cases concerning rights of freedom and citizenship were submitted to the decemviri (Cic. pro Caec. 33, 97; pro Domo, 29, 78). The centumviri decided cases relating to property and inheritance (Cic. de Or. 1.3. 8, 57; Plin. Ep. 5, 1;--V. Max. 7.7, 1, 2, 5; 8.2, 4). The constitution and practice of these judicial bodies were considerably changed by Augustus (Suet. Aug. 36; Plin. Ep. 5, 21; D. C. 54.26: cf. Lange, 906); but the whole subject is obscure.
Judex, arbitri, and recuperatores are the different terms used for private judices selected for the particular occasion. The recuperatores were perhaps an imitation of the courts established by treaty between Rome and neighbouring states for exercising jurisdiction, when a citizen of one state sought a legal remedy in another state (Festus, s. v. reciperatio: cf. Dionys. A. R. 6.95). Recuperatores might be peregrini, whereas only a civis could be a judex proper; and so the appointment of recuperatores, which was made under the imperium as distinct from the jurisdictio of the magistratus, was a means of securing an impartial tribunal in cases in which peregrini were concerned.
The distinctive characteristics of the procedure in actions tried by recuperatores cannot be clearly ascertained. It appears that of some actions they had exclusive cognisance, while in certain others they might be used concurrently with other kinds of judices. They were, it seems, more expeditious in their proceedings than other judices (cf. Cic. pro Tull. § 10, “ut quam primum de re judicaretur” ). A recuperator never acted alone, but was always associated with others, the maximum number in a case not exceeding five. Recuperatores could not try a judicium legitimum, but only unus judex (Gaius, 5.103-109).
Sometimes the judex was called arbiter ; thus judex and arbiter are named together in the Twelve Tables (Festus, s. v. reus; Gel. 20.1, 7). Arbiter (ar=ad and biter=ire), as opposed to judex, is a judge appointed to try a case according to the principles of bona fides, the case being of such a kind as is best left to the free discretion of an impartial person, whereas the province of a judex proper was defined by the magistratus. Either a single arbiter might be appointed or several might be associated together. Arbitri, who acted under a private agreement between the parties to a suit for the purpose of settling it (arbitri ex compromisso), are to be distinguished from arbitri appointed by a magistratus. The distinction between judex and arbiter led to a division of actions into arbitria and judicia, though judicium in a general sense includes arbitrium. The following is the distinction between an arbitrium and judicium according to Cicero (pro Rose. Com. 4, 10):--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. ccc. dari oportere.” The corresponding words in the arbitrium were “quantum aequius melius id dari,” and their equivalents were “ex fide bona, ut inter bonos bene agier” (Top. 17, 66). In a dispute about dos, which Cicero calls “arbitrium rei uxoriae,” the words “quod aequius melius” were added. (Cf. Gaius, 4.61, 62.)
From the arbitria the actions called bonae fidei were derived, while the actiones stricti juris were judicia in the strict sense [ACTIO]. The formula arbitraria was a combination of an arbitrium and judicium in one formula (Keller, § 28).
There was an idea of agreement between the plaintiff and defendant in the selection of a judex, though the actual appointment (judicis datio) was made by the magistratus. It was the rule for him to appoint the person or persons agreed on between the parties. If they were unable to agree, the plaintiff proposed some one ( “judicem ferre adversario,” Cic. pro Ros. Com. 14, 42; 15, 45; but the defendant, [p. 1.1027]by swearing that the person proposed was not impartial ( “iniquum ejurare,” Cic. de Or. 2.7. 0, 285; in Verr. 3.60, 137; Phil. 12.7, 18), could prevent his appointment. If the defendant abused his right of rejection with the object of preventing a trial, he was probably a defendant who made no defence (indefensus). The above was the mode of taking a judex or arbiter (sumere judicem) in the time of the republic: it was not, however, applicable to recuperatores, the practice of choosing these being for the magistratus to select a number of persons, either by lot (sortitiones from the conventus) or by special selection (decurias scribere); and for this list, which was larger than was necessary, to be reduced by rejections of the plaintiff and defendant to the number of judges required (Cic. in Verr. 2.13, 15, 16, 17; 3.11, 59;--C. I. L. 1.81). Under the empire the magistratus selected the judex in all cases, the parties having simply a right of challenge on certain grounds. (For an account of the effect of the leges judiciariae on the qualification and modes of appointment of judices, see below.)
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. 3.11). 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. 3.13). 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. 26.3). 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. 17, 45). 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 (18, 47). 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 later period of the republic were often Plebiscita.
The offences which were the chief subjects of Judicia Populi and Publica were Majestas, Adulteria and Stupra, Parricidium, Falsum, Vis Publica and Privata, Peculatus, Repetundae, and 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.
The Judicia Populi were originally held in the Comitia Curiath, and subsequently in the Centuriata and Tributa. A lex of P. Valerius Publicola (Liv. 2.8; Cic. Rep. 2.31) gave an appeal (provocatio) to the populus from the magistratus; and a law of C. Sempronius Gracchus (Cic. pro Rab. Perd. 4, 12) 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. For an account of later changes, see JUDICIUM PUBLICUM
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 (Liv. Epit. lx.; Appian, App. BC 1.22; Tac. Ann. 12.60; Cic. Act. i. in Verr. 13, 38; Ps.-Ascon. ad Div. in Caecil. p. 103 Or.; Vell. 2.6, 32). 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. Ver. 3.41, 94). The Lex Acilia repetundarum (formerly known as the Lex Servilia), B.C. 121, seems to have directed that the album for this quaestio should be composed of Equites; that is, of persons registered in the census as having a certain amount of property, other than senators. A Lex Servilia Caepionis, B.C. 106, seems to have associated senators with the Equites as judices. There is a passage in Tacitus (Tac. Ann. 12.60) in which he speaks of the Serviliae leges restoring the judicia to the senate; but the Lex Servilia Glauciae, B.C. 104, 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. The Lex Servilia of B.C. 104 excluded from the function of 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 [p. 1.1028]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 attempts of the tribune M. Livius Drusus the younger, B.C. 91, had no lasting result [LEGES LIVIAE].
A Lex Plautia, B.C. 89, enacted that the Judices should be chosen by the tribes, fifteen from each tribe, without any distinction of class, thereby putting the nomination of judges in the hands of the people. The Optimates triumphed under L. Cornelius Sulla, who by a Lex Cornelia, B.C. 80, enacted that the Judices should be taken from the senate and 300 Equites. But a Lex Aurelia (B.C. 70) enacted that the Judices should be chosen from the three classes--of Senators, Equites, and Tribuni Aerarii (Veil. 2.32; Liv. Epit. xcvii.; Cic. Clu. 47, 130). 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. Dio Cassius (38.8) 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. A 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.
A Lex Judiciaria of Julius Caesar (Suet. Jul. 41; Cic. Phil. 1.8, 19) took away the decuria of the Tribuni Aerarii, and thus reduced the Judices to two classes (genera, the γένη of Dio Cassius). A 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. 1.8, 20; 5.5, 12; Suet. Jul. 100.41). 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 smaller matters (de levioribus summis, Suet. Aug 32). Caligula (Suet. Calig. 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 33.30); 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 all citizens with any property were liable.
The judices in a quaestio were selected from an album in which the names of persons qualified to serve were inscribed by the praetor. According to the Lex Acilia repetundarum (1. 12-19), the praetor peregrinus in the first year, and subsequently the praetor to whom the quaestio was allotted, was bound to select 450 judices from the tribes, and to publish an album with their names inscribed on it ( “judices de quaque re constituti” ), from which he was bound to choose judices for this quaestio. The same practice probably obtained in respect of the other quaestiones. Whether the praetor urbanus or peregrinus were bound to make their choice from such lists is uncertain. According to Mommsen, the praetor urbanus was not, till after the enactment of the Lex Aurelia, and the praetor peregrinus was unrestricted in his choice till a later date. The Lex Aurelia for the first time required the praetor urbanus to make a general list for all trials which were not specially excepted; the judicia quae imperio continentur and recuperatoria--trials held under the jurisdiction of the praetor peregrinus, municipal magistrates, and governors of provinces--being, according to Mommsen, exempted from this limitation as to the choice of judices. The rules as to the selection of judices to form a consilium in a quaestio differed at different times and in different quaestiones.
In early times the notion that the parties to a trial should agree to select the judges who were to try the issue between them had some influence. Thus, according to the Lex Acilia repetundarum, the prosecutor proposed 100 judices out of the 450 in the album of this quaestio; the defendant then proposed a like number, and from the 100 of his opponent each party then chose 50. Under the Leges Judiciariae of Sulla, a decuria of the senate was chosen by the praetor by lot, from which each party might reject three, or, if they were senators, a greater number. The general rule which came to be established was, that the presiding praetor chose the judices for a quaestio by lot from an album, both the accusator and the reus having certain rights of rejecting or challenging (rejicere) such judices as they did not like (Cic. ad Att. 1.16). The exercise of the right of challenge might make a fresh ballot for judices (subsortitio) necessary (Cic. Ver. 1.61, 157). The judices appointed according to the provisions of the Lex Licinia de Sodalitiis, B.C. 55, were called edititii; in this case the prosecutor designated four tribes, of which the defendant could reject one, the prosecutor then nominating the judges from the remaining three without any challenge being allowed to the defendant.
Edititius or exlitius judex is properly a judex, [p. 1.1029]which one of the parties has allowed the other to select (cf. Serv. ad Verg. Ecl. 3.50: “nec quemquam fugio, id est consentio etiam ad edititium. Edititius autem judex est, quem una pars eligit.” Festus, p. 381 M.: “Exlitius judex, quem una pars eligit;” Cic. pro Planc. 15-17, § § 36-43).
In the matter 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 at his discretion, 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, and 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. 5.4), 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).
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 accused 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.
It will be noticed that the number of judices composing a consilium varied, and that it was always considerable.
As to the whole number of judices, included at any given time in the Album Judicum, it seems almost impossible to state anything 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 4,000, 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, with the exception perhaps of the persons who were to act as judges in the centumviral court. The fourth Decuria of Augustus was limited in its functions to the Judicia Privata in which the matter in dispute was of small value. There is much difference of opinion among modern writers of authority on the question whether the leges judiciariae previous to Augustus affected Judicia Privata; and if so, to what extent. It is probable that the Lex Sempronia and the succeeding enactments were only intended to apply to criminal trials, and that the praetor began to take judices privati from the Equites by his own authority (ad Att. 6.1, 15; pro Rosc. Com. 14; cf. Suet. Aug. 32), instead of confining his choice to the senate as had been the previous practice. But we may accept Mommsen's view that the Lex Aurelia extended to judicia legitima, so that the unus judex had to be taken from the general album which this law first established. Under the empire the quaestiones were gradually superseded by the judicia extraordinaria, by which change criminal justice was exclusively administered by officials, thus becoming inquisitorial in its character, with a procedure less like that of a private action.
A judex when appointed was bound to discharge the functions of the office, it being a munus publicum, unless he had some valid excuse (excusatio). A person might also be disqualified from being a judex on various grounds (Keller, § 11). There were certain seasons of the year when legal business was done at Rome ( “cum res aguntur,” Gaius, 2.279, and Mr. Poste's comm.), and at these times the services of the judices were required. These legal terms were regulated according to the festivals and seasons, so that there were periods of vacation (Cic. Att. 1, 1, “cum Romae a judiciis forum refrixerit” ); in the provinces the term depended on the conventus. A judex was liable to a fine if he was not in attendance when he was required. In the new organisation of the Italian towns [LEX RUBRIA DE GALLIA CISALPINA; LEX JULIA MUNICIPALIS] the magistrates had a power analogous to jurisdictio, and appointed a judex as the praetor did at Rome. The album decurionum, generally speaking, served as an album judicum, but Augustus allowed the plebs to share in the judicial office.
In the provinces the governors generally appointed judices at the conventus, which they held for the administration of justice (Cic. in Verr. 2.13, 32;--ad Att. 6.1, 15; 2, 4), but in some provinces there were special regulations respecting the mode of making such appointments.
The magistratus could fix the place and the time at which the trial was to take place. In the case of a judicium quod imperio continetur (Gaius, 4.105), judgment had to be given during the year of office of the praetor who granted the formula; a judicium legitimum, on the other hand, was not originally limited to any time, but by a Lex Julia it had to be concluded within a year and six months (Gaius, 4.104).
The magistratus could compel a judex to proceed in a case ( “judicium cogere,” Lex Rubria, 100.20, 1. 23; 100.21, 1. 24); he could also put a stop to the proceedings for a time or altogether, but he had no right of interfering with the actual conduct of the proceedings, though he could punish a judex for his misbehaviour. A judex who culpably gave a wrong decision was said to make the cause his own (Inst. 4.5, pr., “Judex qui litem suam facit;” Theoph. Paraphr. καθ᾽ ἑαυτοῦ δίκην ἤγειρε), and was liable to an action for the damage which the party injured by his decision had sustained. The judex on entering upon his duty (officium) had to take an oath that he would discharge it faithfully (Cic. de Invent. 1.3. 9, 70).
When the judex was appointed, the proceedings [p. 1.1030]in jure or before the praetor were terminated, which was sometimes expressed by the term litis contestatio, the phrases lis contestata and judicium acceptaum being equivalent in the classical jurists [LITIS CONTESTATIO]. The parties appeared in the forum before the judex and presented the formula to him in which he was named (editis formulis). The appearance before the judex took place according to Gaius (4.15) on the third day (comperendinum diem, ut ad judicem venirent, denuntiabant) after his appointment in the early procedure, and this may have continued to be the rule in subsequent times. The judex was generally aided by advisers learned in the law (jurisconsulti), who were said in consilio adesse (Cic. pro P. Quintio, 10, 30; Top. 17, 66; in Verr. 2.29, 72;--Suet. Dom. 8;--Plin. Ep. 1.20; 5.1;--Gel. 12.13, 2; V. Max. 8.2, 2), but the judex alone was empowered to give judgment. The case was first briefly stated to the judex by the parties (causae conjectio, collectio: Gaius, 4.15; cf. XII. Tab., “ante meridiem causam conjiciunto,” Gel. 5.10, 9), after which the judex fixed a day for hearing the cause. The proceedings, which were public, commenced with the speeches of the advocati or patroni of each party (continua oratio, peroratio: cf. Gell. l.c. “cum perorant ambo praesentes” ), the parties themselves being present or the persons who carried on the action in their stead (cognitor, procurator). It was an injunction of the law of the Twelve Tables that the trial should terminate in a day from sunrise to sunset (Gel. 17.2, 10); but owing to the lengthy speeches of the advocates, adjournments (ampliatio) became necessary, and in Cicero's time were common. The theory, however, was that on the day of adjournment a new action commenced. Hence the terms prima, secunda, and tertia actio. Accordingly the speech of an orator had to be continuous (continua, perpetua oratio); that is, it could not be interrupted by an adjournment, but another counsel on the same side took up the case when it commenced again. Under the empire an adjournment of a trial from day to day was freely allowed. In order to prevent speeches being prolonged with the object of procuring an adjournment ( “dicendo diem eximere;” cf. Cic. pro Quint. 10, 22), the duration of speeches in publica judicia was limited to a certain time by the Lex Pompeia A.U.C. 702, and this limit was probably extended to privata judicia by the Lex Julia (Plin. Ep. 1.23; 6.2). The argument of counsel in their speeches was directed to points of law as well as of fact, the judex differing from our jury in not being confined to questions of fact, but having also to decide such questions of law as were indicated in the formula.
The evidence was of various kinds. 1. It might consist of the confession of the defendant in court, the confession in judicio differing from the confession in jure in that it did not conclude the trial, but was only treated as evidence. 2. Sworn witnesses (jurati testimonium dicunt) might be examined and cross-examined (testium interrogatio) in open court as to what they had seen and heard (Cic. pro Rosc. Com. 15, 44, pro Flacc. 10, 22; Quint. Inst. 5.7; Paul. 5.15; Dig. 22, 5; Cod. 4, 21; cf. A. Escher, Diss. de testium ratione). The number of witnesses was generally unlimited, but in trials before recuperatores it was limited to ten (Or.-Henz. Inscr. 6428; Val, Prob. § 4, 8). In imperial times a judex might restrict the number of witnesses in order to expedite a trial. The giving of evidence in a private action was a voluntary act, except that witnesses to a mancipation, and those who had been ordered by a judex in a judicium publicum to give evidence, were bound to come forward. Testimony of absent witnesses by affidavit or otherwise (testimonium per tabulas) was allowed, but its evidentiary value was considered inferior to oral evidence (Quint. 5.7.2; Dig. 22, 5). 3. Documents (scripta, tabulae, instrumenta), whether public or private, could be put in, such as statutes, edicts, or account books (tabulae). (Cic. de Part. Or. 37, 130; Quint. 5.5; Gel. 14.2.7; Dig. 22, 4; Cod. 4, 21.) 4. The parties might produce objects as evidence for the inspection of the court. 5. As to the application of the oath in judicio, see JUSJURANDUM
After the evidence had been given, an argumentative discussion (altercatio) took place between the patroni or advocati of the parties (Quint. 6.4; Plin. Ep. 3.9). The ordinary course of the proceedings was changed if either the plaintiff or defendant failed to appear in the actio (judicium desertum, eremodicium). If the defendant when duly summoned was in default, the plaintiff might insist on being heard and on the case being decided. If the plaintiff did not appear, the defendant could demand absolution (Cod. 7.43). After the case had been fully heard, the judex proceeded to give judgment; if there were several judices, the majority decided. If the judex could not come to a satisfactory conclusion, he might declare this upon oath, and so make the proceedings abortive. This was done by the form of words “juravi mihi non liquere atque ita judicatu illo solutus sum” (Gel. 14.2). The sentence had to be pronounced orally in court, and in the presence of the parties. The sentence was either of absolutio or condemnatio [ACTIO]. The part of the formula which empowered the judex to condemn or acquit was called the condemnatio [ACTIO]. The defendant might satisfy the plaintiff after the judicium had been constituted by litis contestatio (post acceptum judicium, Gaius, 3.180; 4.114), and before judgment was given: in this case it was a disputed question between the Sabinians and Proculians [JURISCONSULTI] whether in case the action was one of strict law (stricti juris, judicii) 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. It was agreed that in case of a formula bonae fidei, or formula empowering the judex to decide according to bona fides, it was his duty under these circumstances to acquit; but the question was whether he could thus acquit in actions stricti juris as well as those bonae fidei ( “omnia judicia esse absolutoria,” Gaius, 4.114). The question was only of formal importance, as the plaintiff would be prevented by an in integrum restitutio from having double satisfaction.
While the legis actiones were in force, if a specific thing was vindicated, the judgment could only be for the restitution of the thing, [p. 1.1031]and a subsequent arbitrium liti aestimandae would be necessary to determine the damages (Gaius, 4.48); but under the process of the formula, the judex gave judgment in all cases pursuant to the formula, in a sum of money, even when a res was the object of a vindication (Gaius, l.c.). In a formula arbitraria the judex was ordered only to condemn in case the defendant refused to make proper satisfaction ( “nisi arbitratu tuo satisfaciat,” Inst. 4.6, 31), and so in this case a preliminary declaration by the judex of the rights of the parties called pronuntiatio was necessary; and if it was not obeyed by the defendant, a condemnatio followed.
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 fixed in the formula, the condemnatio was either limited to a sum named in the formula (taxatio), and which the judex could not exceed except at his own peril (litem suam faciendo); or the amount of damages might be left to the free discretion of the judex, as in an action for the recovery of property from the possessor, or in an action claiming the production of a particular thing (actio ad exhibendum). Generally the term in the formula which expressed the damages which was the object of the demand was “quanti res est.” This may mean either the market value of the thing, or the value of the thing to the particular claimant, id quod interest actoris or utilitas actoris (as to these two different measures of damages, see Poste's Gaius, 3. § § 210-219, comm.). Res, as thus used in the formula, 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 (Gaius, 4.48-52). In some judicia there might be an adjudicatio without a condemnatio [ADJUDICATIO]. 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 Diocletian. At the same time with the ordo judiciorum privatorum existed in exceptional cases the proceedings 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 Diocletian and his successors the extraordinaria cognitio supplanted the old mode of procedure, the function of judex and magistratus being combined in all cases. Thus the magistratus is frequently called judex. In the Theodosian Code the term judex is used to designate the governor of a province. [JUDEX PEDANEUS; ACTIO.]
(Cf. Cicero's three speeches in civil actions: pro P. Quintio, pro Q. Roscio Comoedo, pro A. Caecina, with Bethmann-Hollweg's description of them, C. P. ii. Appendix; Gaius, bk. iv.; Dig. 5, 1; Tigerstrom, de Judiciis apud Romanos; Keller, Der römische Civilprocess; Bethmann-Hollweg, Der römische Civilprocess; E. Hartmann, Der Ordo Judiciorum und die Judicia extraordinaria; O. Karlowa, Der römische Civilprocess; Zimmern, Rechtsgeschichte; Rudorff, Rechtsgeschichte.).
[E.A.W]
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