This relates to the period during which the sharply defined distinction between proceedings in jure and those in judielo was strictly observed. If, for example; the dispute concerned property it was assigned temporarily to the possession of ' one par ty, who gave security for its restoration If requir and the judex simply decided which litigant was right ; Morey, R. L. 18, 389. The growth of the proceeding by formula during the next period was doubtless largely due to its convenience as a meth od of conveying to the judex the instructions of the magistrate with respect to the case referred to him. The new proceeding tended very much to increase the flexibility of the law in its application to particular cases, as It has been said there was no tradition to fetter the formula of the praetor. In the old Pitts contestatio the issue was formulated in 'narrowly prescribed terms ; in the new formula the terms used were informal and, freely chosen by the magistrate. "The formula was thus well adapted as a means for directly submitting to the decisions of a judex in judiniO any question, or complex of questions, which the praetor deemed actionable. The prcetor himself was now in a position, while for mulating the legal issue, to glve the judex at the same time direct instructions in reference to the decision of such issue. For whether the Judge con demned or acquitted depended now solely on the manner in which the pastor formulated the ques tion in dispute." Sohm, Inst. Rom. L. 177. It was now for the first time that the judex became in effect . an official, he ceased to be an' independent private person bound only by the positive law, and his action was dominated by the limitations of the praetor's edict. Thus the latter became a dominat ing force in legal procedure, and the judex in some sense a subordinate official, and the result was "that the formulary procedure obliterated beyond recovery the clear sharp line which had hitherto severed jus and.ludicium..", This naturally resulted from the fact that by the formula the judex was converted into an organ or Instrument not only of civil, but also of the prcetor, made law, and the proceedings In judicio and those in jure were con trolled by the same authority; id. 178, 220. In the last period of Roman procedure during the later empire the prcetor lost his former power of directing the administration of the law, and when the edict came to be fixed by the will of the emperor the prcetor and the presses were bound by it equally with the judex and in the same way that the latter had before been limited by their own edict. Its publication by the protor was merely formal, and he became a mere instrument for the law, and his duties became more and more ministerial in proportion as, on the one hand, scientific juris prudence developed and defined the contents of the existing law and, on the other hand, the imperial power, superseding all other agencies, appropriated to itself the function of developing the law. Thus the judex gradually became an official whose duty it was to assist the prestor, and, in the same way, the prcetor became in reality an official whose duty it was to assist the emperor ; id. ,220.
For a long period senators alone were qualified act as judges, and during that time any member of the senate could act, if justified, by mutual consent of the. parties, or if they could not agree by law. There were also plebian judges called centumviri elected by the comitia constituting a collegium di vided into sections and having special jurisdiction of citizenship and successions; their jurisdiction was exclusive where it existed. As to the duties of the judex see also Inst. 4a17. 1-7; Sand. Introd.
xxi., lx1., lxxiv.; Bohm, Inst. Rom. L. §§ 34 37; PR2ETOR ; RECUPERATORES ; JUDICIUM; IN JURE.
index Ordinarius (Lat.). In Civil Law. A judge who had jurisdiction by his own right, not by another's appointment. Calvinus, Lex.; Vicat, Voc. Jur. Blackstone says that judices ordinary decided only questions of fact, while questions of law were referred to the emitunvviri; but this would seem to be rather the definition of judices selecti; and not all questions of law referred to the centumviri, but particular actions: e. g. querela inofficiosi testaments. See 2 Bla. Com. 315; Vicat, V0e. Jur. Utr. Centum cfri.
J udex Pedaneus. Inferior judges; deputy judges; "petit judges that try only trilling cases (so-called because they had only a low seat and no tribunal)." Harper's Lat. Diet.; Dig. 3. 1. 1. 6.
The name was given to the judex who was dele gated to hear the whole cause. Their appointment is said to have been due, in the first instance, to the great increase in the volume of judicial business, Which led the emperor Diocletian to authorize the provincial governors to refer cases of minor im portance to them. They were not judices in the old sense' of the word, but, according to the opinion of Ortolan, permanent magistrates entrusted with the special duty of conducting such cases as the might see fit to refer to them. No other view of the character of these officers seems con with, the autocratic spirit which permeated the whole imperial system ;" Morey, Rom. L. 142. "About the end of the third century, the prcesides provinciarum were in the habit of proceeding extra ordinem in civil actions, i. e. they were in the habit of either giving judgment themselves or of dele gating the whole. cause to' a deputy judge, a judex pedaneus. This deputy judge (who is also called judex datus or judex delegatus) is now in form as well as in substance an official who acts in lieu of the magistrate ; he is not merely entrusted, like the old judex privatus, with the conduct of the proceed ipgs in judicio, but is deputed—and this is the rea eon why no formula is used—to hear and determine the whole cause, including the proceedings in jure. Like the proceedings before the proses himself, the proceedings before this subordinate Judge are extra ordinem;" Sohm, Inst. Rom. L. 222. It has been said with respect to these judges that the prNtors and other great magistrates did not themselves de cide the actions which arose between private indi viduals: these were submitted to judges chosen by the parties, and these judges were called judices pedanei. In Choosing them, the plaintiff had the right to nominate, and the defendant to accept or reject those nominated ; Heineccius, Antic'. lib. 4, tit. b. n. 40 ;, 7 Touillier, n. 353. As to judices ped anei, generally, see Zimmern, Ges. Rom. Priv. § 18.
J udex Ilumstionis. A magistrate who de cided the law of a criminal case, when the prcetor himself did not sit as a magistrate. Morey, Rom. L. 88.
The director of the criminal court under the presidency of the prcetor. Harper's Lat. Diet.; Cic. Brut. 76, 264.
J udex Seleetus. A select or selected judeiv or judge.
The judges in criminal suits selected by the prcetor. Harper's Lat. Diet.; Cic. Vert'. 2, 2, 13, § 32.
These judices selecti were used in criminal causes, and between them and modern jurors many points of resemblance have been noticed ; 3 Bla. Corn. 366. They were first returned by the prcetor, then drawn by lot, subject to challenge; they were sworn and talesmen 'were struck. So many points of re semblance were thought to exist between them and the oucaorai. of the Greeks and our juries that the English institution has' been thought to be derived from the former ones ; id. note (n). But the root idea of both systems is sufficiently natural and logi cal to have indigenous in both countries. See