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Judicium Judex

judices, pro, cicero, law, party and judicia

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JUDEX, JUDICIUM. It is of some importance to form a correct notion of the terms jades and judicium in the Ro man writers. The judicia private were those in which one party claimed some thing of or against another party, and must be distinguished from the judicia publica. The former had relation to actions, and may be generally described as Civil actions; the latter were of the nature of Criminal prosecutions.

In the Judicia Privets the party com plainant (actor) came before the praetor or other magistrate who had jurisdiction (jurisdictio), and made his claim or com plaint, to which the defendant (revs) might put in a plea (exceptio). The praetor then made an order by which he referred the matter to Judices, or Recupe ratores, or Arbitri, whose chief office was to ascertain the facts in dispute. The formula, or order of the praetor, was of the nature of a provisional decree : it stated the matter at issue between the parties and the judgment that was to fol low upon the determination of the facts. The plaintiff had to prove his case, or the defendant to prove his plea, before the judices. Sometimes there was only one judex. The speech of Cicero Pro Pub lio Quintio' was made before a single judex, aided by assessors (consilium).

The patron or orators appeared before the judices to support the cause of their clients. The judices were sworn to act impartially. Witnesses were produced on each side and examined orally ; and it is clear from the remarks of Cicero (Pro Cecina, c. 10), where he is commenting on the evidence in the case of Ctecina, that he had cross-examined and put to confusion an impudent witness on the other side (see also the Oration Pro Flacco, c. 10). It is clear also from the oration ' Pro Csacina,' that the inquiry before the judices was public. Written documents, such as letters and books of accounts, were produced before the judi ces by way of evidence. (Cicero, Pro Q. Roscio.) When the orators had finished their speeches, the judices de cided by a majority. The sentence was, if necessary, perhaps in some cases car ried into effect by the lictors of the ma gistrate who appointed the judices. The

form in which the judices pronounced their decision was that of a judgment or decree.

The difference between the judicium and arbitrium was this: in the judicium the claim, demand, or damages was a sum fixed ; in the arbitrium it was a sum uncertain ; and this difference was at tended with certain variations in the pro cedure. This is very clearly expressed by Cicero (Pro Q. Roscio, c. 4).

The judices must to some extent have settled questions of law, inasmuch as the determination of the facts sometimes in volved the interpretation of the law. They were accordingly allowed to have assessors (consilium) learned in the law (jurisconsulti), but the jurisconsulti merely advised the judices, who alone delivered the decision. In case of doubt as to the law, the judices might consult the magistrate under whom they were acting ; but as to the matters of fact, the judices were the sole judges, and could take no advice from the magistrate (Dig., v. 1. 79). Gellius (xiv. 2) gives an amusing account of the difficulty which he felt on being appointed a judex, and how he got rid of the business by de claring on oath, as the judex always might do, that he could not come to any decision. The difficulty which he ex perienced was exactly one of those which a person not practically acquainted with legal proceedings would experience.

We may presume that the judices were generally persons qualified by a sufficient education, though they were not neces sarily lawyers ; but it does not appear that tUy were named out of any deter minate class, and there is good reason for thinking that both parties generally agreed upon the judices, or at least had the power of rejecting them. It would seem as if every Roman citizen was con sidered competent to discharge the fune. tions of a judex in civil actions, at least under the emperors : but this part of the subject is not free from difficulty.

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