and formal

law;

slower development of the latter.

almost nugatory the possession of rights which are at least tolerable. Amongst undeveloped systems we may cite Germanic Law as an instance of a highly developed legal sense, more ethical because more individualistic in character than that possessed by either Roman or Greek, associated with the barbarisms of ordeal and trial by battle. In truth the growth of Jurisprudence in a country is always Material, two-fold, never simple. It is, firstly, the growth of its material law, and, secondly, the growth of the forms by which it is asserted. And the march of the two systems is by no means made with equal step. As a rule perfection in procedure-the happy mean that lies somewhere between the over-conscientious complexity of the old and the cheerful simplicity of the infant state-comes far later in a nation's history than perfection in legal relations. The laws of Romulus, who lived, as Cicero tells us, in a literary and enlightened age 1, show a nice respect for the rights of women, but punish the husband who has sold his wife, by having him sacrificed to the infernal gods 2'; and at a much later date the elegantia of the language and laws of the Twelve Tables was combined with an extraordinary complexity of procedure. In the particular case of Rome various reasons can be assigned for this inequality of development. The earliest movements of plebeian agitation took the form of a demand for the publication of a code, not for a reform of the official hierarchy. The code when produced embodied the simpler plebeian law, but the ordinances of procedure were still the clumsy acts of patrician ceremonial; the military heads of the State, on whom had devolved the judicial duties of the king, were almost wholly dependent for their knowledge of the

.

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1 Cic. de Rep. ii. 10, 18 'Romuli autem aetatem . . . iam inveteratis literis atque doctrinis, omnique illo antiquo ex inculta hominum vita errore sublato, fuisse cernimus.'

Plut. Rom. 22.

Cic. de Rep. iv. 8, 8 'Admiror, nec rerum solum, sed verborum etiam elegantiam.'

forms of action on the rulings of the pontifical college, while the petrifying influence of religion and the pride of exclusive knowledge kept the members of the guild from relaxing the rigour of these ancient rules. Again, stiffness of form gives security in an age when written documents are scarce; the formalism of business transactions naturally found its counterpart in the courts, and the song of the legis actio must have been as sacred to the ears of the litigant as the carmen of the Twelve Tables. The general thesis that formalism haunts the law-courts long after it has quitted the market and the hearth is too obviously true of early states of society to need further illustration; but yet, when the initial difficulties have been overcomewhen religion has been relegated to its proper place, when fas has a sphere distinct from ius, when the exclusive privileges of the legal guild or other interpreter have been broken down, and writing can be used for documentary evidence and for instruction-then the development of A developprocedure is one of the surest signs of the development due the of law. We shall have ample illustration of this when we true test come to deal with the praetor's edict-a compendium of veloped legal judge-made law expressed through rules of procedure. At system. present a simple negative example may suffice. Criminal procedure at Rome long lagged far behind the civil, and this rudeness of procedure was but an expression of the vagueness of the law. There were exceedingly good and sound reasons, which we shall examine elsewhere, for keeping the criminal law in this vague condition, as long as Rome remained a city state. But the fact remains that the chaotic nature of the law was reflected in the procedure and that, at the time of the institution of the quaestiones perpetuae, the codification of the former was followed by a regulation of the latter.

So far we have touched on procedure as the reflection of the aggregate of rights known as law. But the second idea that every step in procedure is the assertion of a right,

ed proce

of a de

Differ

ences in

from

:

and that the completion of the steps perfects the right was equally familiar to the Romans. Right' and 'court' are with them synonymous; ius petere is to seek what is 'right' or 'fitting'1; in ius ire is to go before the magistrate 2. We shall find a still more perfect exemplification of this view in the theory evolved by the jurists, that the definite appearance before a court and submission to its will is the renewal (novatio) of the obligation out of which the case has arisen.

The most strongly marked differences in procedure spring procedure naturally from the varying character of the rights to be spring enforced. One class of rights consists of those possessed differences by individuals in a private capacity; they are enforced rights to be by the organs of state, but only on the motion of the enforced. individual. This-the sphere of the Roman ius privatumwas the subject of what we should now call civil pro

in the

་

、

、

differences

cedure. A second class of rights are those enforced by the State on individuals; when the enforcement of these rights possesses a penal character, or when the activity of State is called forth in consequence of wrongs done by individuals to one another which it is its recognized duty to repair,

we have the subject of what we generally call criminal Material procedure. But it is hardly necessary to remark that the between spheres of civil and criminal jurisdiction of no modern the civil state correspond exactly to those of Rome, nor indeed were minal law. the spheres marked out in precisely the same manner at

and cri

different periods of Roman history. The variations in forms of procedure in different countries, or at different times in the same country, may be either material or formal. Material differences are furnished by the classes

1 Ius is perhaps connected with the Sanskrit ju (to join), and has the same root as iubere. For the meanings of the word see Nettleship, Contributions to Latin Lexicography, p. 497; Clark, Pract. Jurisprudence, pp. 16-20; Bréal, Sur l'origine des mots designant le droit en Latin in Nouvelle Revue Historique de Droit, vol. vii (1883), p. 604 ff.

Nep. Attic. 6; Ter. Ph. v. 7, 43 'in ius ambula.' Cf. the phrase 'in ius vocare' (Cic. in Verr. ii. 76, 187).

་

differences

civil and

criminal

of cases which are brought respectively before the civil and criminal courts. In Rome, for instance, the neglect of family obligations was in the earliest times a matter for the criminal jurisdiction of the religious courts; theft was, throughout the whole of the Republican period, treated, not as a subject for criminal cognisance, but as a delict for which compensation was to be recovered by civil process; adultery, on the other hand, was not a subject for action but for criminal prosecution1. Such material differences are part of the general legal history of nations or ages; they are based on ethical conceptions which alter from land to land or from time to time. In a history of procedure we must assume them, but it is not our business to examine into their causes. Far more important are the Formal formal differences exhibited by the structure of the courts between themselves. This structure changes from time to time in a nation's history, sometimes in obedience to a change procedure. in the conceptions of material law, but oftener still from considerations of pure convenience or from alterations in the administrative machinery of government directed by wholly political, often external, considerations. The civil and criminal courts may at one moment be kept widely apart, at another they may seem almost to be merged into one another. The Romans grasped, as few nations have done, the fundamental distinction between public and private law, and they regarded criminal law as a part of the former. Had a fixed and lasting constitution been given · them by a legislator of the Greek type, the spheres might have been kept permanently apart. But, as it was, their procedure like their law was made by the 'genius of many,' - not of one 2. Symmetry was sacrificed to convenience, and a series of experimental improvements resulted in In early times before a family court; by the lex Iulia (perhaps of 17 B.C.), before a quaestio.

2 Cic. de Rep. ii. .1, 2 nostra autem res publica (in contrast with the Greek polities) non unius esset ingenio sed multorum, non una hominis vita sed aliquot constituta saeculis et aetatibus.'

Sketch of procedure at Rome.

First period : Early religious law.

Early

military

law.

:

a composite structure in which the lines of civil and criminal procedure were ever, crossing. So closely interwoven were the two that it is difficult to study one branch intelligently without a considerable knowledge of the other. A brief anticipatory sketch of the chief epochs in the history of procedure at Rome may furnish a justification for the choice of the Ciceronian period as the best available standpoint from which to view the changes. In the earliest times the appeal to religious law is almost universal. The Roman State was nearer a theocracy than any European community of which we possess records. The king may have been himself the head of the religious guild of pontiffs; but, whether he was or not, the pontifical college was at least his judicial council. With them rested the knowledge of 'divine' or 'family' law (ius divinum), and of the mode in which retribution (poena, nowń) should be exacted for sin. The ordinary civil and the ordinary criminal law are entrusted to the same hands; yet it appears that from the first a clear distinction was drawn between the procedure meant to secure the adjustment of private claims and the process by which penal pronouncements were made in consequence of such a violation of private and religious right as could be looked on as a sin. Civil and criminal procedure are even now distinct, and there was a third department of the judicial organization of the State which emphasized still further this distinction. A strict discipline is enforced by the king as the military head of the community; the pontiffs have no authoritative voice on such conceptions as those of treason (perduellio). They are for the king and his delegates alone. He may, if he pleases, submit such charges on appeal to the people, and in such references we have at least some of the germs 、of the late popular jurisdiction. But, whether the jurisdiction be the king's or the people's, the important fact is that from the first we have evidences of a court whose proceedings are untainted by religious law.

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