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RUPSIT, i. e. ruperit), he was punished by retaliation (talione), if the person injured would not accept of any other satisfaction. (See p. 171.) If he only dislocated or broke a bone, QUI OS EX GENITALI (i. e. ex loco ubi gignitur), FUDIT, he paid 300 asses, if the sufferer was a freeman, and 150, if a slave, Gell. xx. i. If any one slandered another by defamatory verses, (si quis aliquem publicè diffamasset, eique adversus bonos mores convicium fecisset, affronted him, vel carmen famosum in eum condidisset,) he was beaten with a club, Hor. Sat. ii. 1. v. 82., Ep. ii. 1. v. 154., Cornut. ad Pers. Sat. 1., as some say to death, Cic. apud Augustin. de Civit. Dei, ii. 9. 12.

But these laws gradually fell into disuse, Gell. xx. 1., and by the edicts of the prætor an action was granted on account of all personal injuries and affronts only for a fine, which was proportioned to the dignity of the person, and the nature of the injury. This, however, being found insufficient to check licentiousness and insolence, Sulla made a law concerning injuries, by which, not only a civil action, but also a criminal prosecution was appointed for certain injuries, with the punishment of exile, or working in the mines. Tiberius ordered one who had written defamatory verses against him to be thrown from the Tarpeian rock, Dio. lvii. 22.

An action might also be raised against a person for an injury done by those under his power, which was called ACTIO NOXALIS; as, if a slave committed theft, or did any damage without his master's knowledge, he was to be given up to the injured person (SI SERVUS, INSCIENTE DOMINO, FURTUM FAXIT, NOXIAMVE NOXIT (nocuerit, i. e. damnum fecerit), NOXE DEDITOR): And so if a beast did any damage, the owner was obliged to offer a compensation, or give up the beast, (SI QUADRUPES PAUPERIEM (damnum) FAXIT, DOMINUS NOXÆ ÆSTIMIAM (damni æstimationem) OFFERTO: SI NOLIT, QUOD NOXIT, Dato.)

There was no action for ingratitude (actio ingrati) as among the Macedonians, or rather Persians; because, says Seneca, all the courts at Rome (omnia fora, sc. tria, de Ir. ii. 9.) would scarcely have been sufficient for trying it, Senec. Benef. iii. 6. He adds a better reason; quia hoc crimen in legem cadere non debet, c. 7.

4. MIXED AND ARBITRARY ACTIONS.

ACTIONS by which one sued for a thing (rem persequebatur), were called Actiones REI PERSECUTORIÆ; but actions

merely

merely for a penalty or punishment were called PENALES; for both, MIXTÆ.

Actions in which the judge was obliged to determine strictly, according to the convention of parties, were called Actiones STRICTI JURIS: actions which were determined by the rules of equity (ex æquo et bono), were called ARBITRARIÆ, or BONA FIDEI. In the former a certain thing, or the performance of a certain thing (certa præstatio), was required; a sponsio was made, and the judge was restricted to a certain form; in the latter, the contrary of all this was the case. Hence in the form of actions bona fidei about contracts, these words were added, EX BONA FIDE; in those trusts called fiduciæ, UT INTER BONOS BENE AGIER OPORTET, ET SINE FRAUDATIONE; and in a question about recovering a wife's portion after a divorce (in arbitrio rei uxoria), and in all arbitrary actions, QUANTUM vel QUID EQUIUS, MELIUS, Cic. de Offic. iii. 15. Q. Rosc. 4. Topic. 17.

IV. DIFFERENT KINDS OF JUDGES; JUDICES, ARBITRI, RECUPERATORES, ET CENTUMVIRI.

A

FTER the form of the writ was made out (conceptá actionis intentione), and shewn to the defendant, the plaintiff requested of the prætor to appoint one person or more to judge of it (judicem vel judicium in eam a prætore postulabat). If he only asked one, he asked a judex, properly so called, or an arbiter: If he asked more than one (judicium), he asked either those who were called Recuperatores or Centumviri.

1. A JUDEX judged both of fact and of law, but only in such cases as were easy and of smaller importance, and which he was obliged to determine according to an express law or a certain form prescribed to him by the prætor.

2. An ARBITER judged in those causes which were called bona fidei, and arbitrary, and was not restricted by any law or form (totius rei arbitrium habuit et potestatem, he determined what seemed equitable in a thing not sufficiently defined by law, Festus), Cic. pro Rosc. Com. 4, 5., Off. iii. 16. Topic. 10. Senec. de Benef. iii. 3. 7. Hence he is called HONORARIUS, Cic. Tusc. v. 41. de Fato, 17. Ad arbitrum vel judicem ire, adire, confugere, Cic. pro Rosc. Com. 4., ar bitrum sumere, ibid. capere, Ter. Heaut. iii. 1. 94., Adelph. i. 2. 43. ARBITRUM ADIGERE, i. e. ad arbitrum agere vel cogere, to force one to submit to an arbitration, Cic. Off. iii. 16. Top. 10. Ad arbitrum vocare vel appellere, Plaut. Rud. iv. 3.99. 104. AD vel APUD JUDICEM, agere, experiri, litigare, petere. But arbiter and judex, arbitrium and judicium

are sometimes confounded, Cic. Rosc. Com. 4. 9. Am. 39. Mur. 12. Quint. 3. Arbiter is also sometimes put for TESTIS, Flacc. 36. Sallust. Cat. 20. Liv. ii. 4., or for the master or director of a feast, arbiter bibendi, Hor. Od. ii. 7. 23., arbiter Adria, ruler, Id. i. 3. maris, having a prospect of, Id. Epist. i. 11. 26.

A person chosen by two parties by compromise (ex compromisso), to determine a difference without the appointment of the prætor, was also called arbiter, but more properly COMPROMISSARIUS.

3. RECUPERATORES were so called, because by them every one recovered his own, Theophil. ad Inst. This name at first was given to those who judged between the Roman people and foreign states about recovering and restoring private things, Festus in RECIPERATIO; and hence it was transferred to those judges who were appointed by the prætor for a similar purpose in private controversies, Plaut. Bacch. ii. 3. v. 36. Cic. in Cacin. 1, &c. Cæcil. 17. But afterwards they judged also about other matters, Liv. xxvi. 48. Suet. Ner. 17. Domit. 8. Gell. xx. I. They were chosen from Roman citizens at large, according to some, but more properly, according to others, from the JUDICES SELECTI, (ex albo judicum, from the list of judges,) Plin. Ep. iii. 20., and in some cases only from the senate, Liv. xliii. 2. So in the provinces (ex conventu Romanorum civium, i. e. ex Romanis civibus qui juris et judiciorum causâ in certum locum CONVENIRE solebant. See p. 149.) Cic. Verr. ii. 13. v. 5. 36. 59. 69. Cæs. de Bell. Civ. ii. 20. 36. iii. 21. 29., where they seem to have judged of the same causes as the Centumviri at Rome, Cic. Verr. iii. 11. 13. 28. 59. A trial before the Recuperatores was called JUDICIUM RECUPERATORIUM, Cic. de Invent. ii. 20. Suet. Vespas. 3., cum aliquo recuperatores sumere, vel eum ad recuperatores adducere, to bring one to such a trial, Liv. xliii. 2.

4. CENTUMVIRI were judges chosen from the thirtyfive tribes, three from each; so that properly there were 105, but they were always named by a round number, CENTUMVIRI, Festus. The causes which came before them (cause centumvirales) are enumerated by Cicero, de Orat. i. 38. They seem to have been first instituted soon after the creation of the prætor Peregrinus. They judged chiefly concerning testaments and inheritances, Cic. ibid.-pro Cæcin. 18. Valer. Max. vii. 7. Quinctil. iv. 1. 7. Plin. iv. 8. 32.

After the time of Augustus they formed the Council of the prætor, and judged in the most important causes, Tacit. de Orat. 38., whence trials before them (JUDICIA CENTUMVIRALIA) are sometimes distinguished from private trials, Plin. Ep. 1. 18. vi. 4. 33. Quinctil. iv. 1. v. 10.; but

those

these were not criminal trials, as some have thought, Suet. Vesp. 10., for in a certain sense all trials were public (JUDICIA PUBLICA), Cic. pro Arch. 2.

The number of the Centumviri was increased to 180, and they were divided into four councils, Plin. Ep. 1. 18. iv. 24. vi. 33. Quinctil. xii. 5.; hence QUADRUPLEX JUDICIUM, is the same as CENTUMVIRALE, ibid.: sometimes only into two, Quinctil. v. 2. xi. 1.; and sometimes in important causes they judged all together, l'aler. Max. vii. 8. 1. Plin. Ep. vi. 33. A cause before the Centumviri could not be adjourned, Plin. Ep. 1. 18.

Ten men (DECEMVIRI), see p. 136., were appointed, five senators and five equites, to assemble these councils, and preside in them in the absence of the prætor, Suet. Aug. 36.

Trials before the centumviri were held usually in the Basilica Julia, Plin. Ep. ii. 24. Quintil. xii. 5., sometimes in the Forum. They had a spear set upright before them, Quinctil. v. 2. Hence judicium hasta, for CENTUMVIRALE, Valer. Max. vii. 8. 4., Centumviralem hastam cogere, to assemble the courts of the Centumviri, and preside in them, Suet. Aug. 36. So CENTUM GRAVIS HASTA VIRORUM, Mart. Epig. vii. 62. Cessat centeni moderatrix judicis hasta, Stat. Sylv. iv. 4. 43.

The centumviri continued to act as judges for a whole year, but the other judices only till the particular cause was determined for which they were appointed.

The DECEMVIRI also judged in certain causes, Cie. Cacin. 33. Dom. 29., and it is thought that in particular cases they previously took cognizance of the causes which were to come before the centumviri, and their decisions were called PRÆJUDICIA, Sigonius de Judic.

V. THE APPOINTMENT OF A JUDGE OR

JUDGES.

OF the above-mentioned judges the plaintiff proposed to the defendant (adversario FEREBAT), such judge or judges as he thought proper according to the words of the sponsio, NI ITA ESSET: Hence JUDICEM vel -es FERRE ALICUI, NI ITA ESSET, to undertake to prove before a judge, or jury, that it was so, Liv. iii. 24. 57. viii. 33. Cic. Quint. 215. de Orat. ii. 65., and asked that the defendant would be content with the judge or judges whom he named, and not ask another (ne alium PROCARET, i. e. posceret, Festus). If he approved, then the judge was said to be agreed on, CONVENIRE, Cic. pro Q. Rosc. 15. Cluent. 43. Valer. Max. ii. 8. 2., and the plaintiff requested of the prætor to appoint him, in these words, PRE

TOR, JUDICEM ARBITRUMVE POSTULO, UT DES IN DIEM TERTIUM SIVE PERENDINUM, Cic. pro Mur. 12. Valer. Prob. in Notis, and in the same manner recuperatores were asked, Cic. Verr. iii. 58. Hence judices dare, to appoint one to take his trial before the ordinary judices, Plin. Ep. iv. 9. But centumviri were not asked, unless both parties subscribed to them, Plin. Ep. v. 1.

If the defendant disapproved of the judge proposed by the plaintiff, he said, HUNC EJERO vel NOLO, Cic. de Orat. ii. 70. Plin. Paneg. 36. Sometimes the plaintiff desired the defendant to name the judge (UT JUDICEM DICERET), Liv. iii. 56.

The judge or judges agreed on by the parties, were appointed (DABANTUR vel ADDICEBANTUR) by the prætor with a certain form answering to the nature of the action. In these forms the prætor always used the words, SI PARET, i. e. apparet: thus, C. ACQUILLI; JUDEX ESTO, SI PARET, FUNDUM CAPENATEM, DE QUO SERVILIUS AGIT CUM CATULO, SERVILII ESSE EX JURE QUIRITIUM, NEQUE IS SERVILIO A CATULO RESTITUATUR, TUM CATULUM CONdemna. But if the defendant made an exception, it was added to the form, thus: EXTRA QUAM SI TESTAMENTUM PRODATUR, QUO APPAREAT CATULI ESSÉ. If the prætor refused to admit the exception, an appeal might be made to the tribunes, Cic. Acad. Quæst. iv. 30. The prætor, if he thought proper, might appoint different judges from those chosen by the parties, although he seldom did so; and no one could refuse to act as a judex, when required, without a just cause, Suet. Claud. 15. Plin. Ep. iii. 20. x. 66.

The prætor next prescribed the number of witnesses to be called (quibus denunciaretur testimonium), which commonly did not exceed ten. Then the parties, or their agents (PROCURATORES), gave security (SATISDABANT) that what was decreed would be paid, and the sentence of the judge held ratified (JUDICATUM SOLVI et REM RATAM HABERI).

In arbitrary causes a sum of money was deposited by both parties, called COMPROMISSUM, Cic. pro Rosc. Com. 4. Verr. ii. 27. ad Q. Fratr. ii. 15., which word is also used for a mutual agreement, Cic. Fam. xii. 30.

In a personal action the procuratores only gave security; those of the plaintiff, to stand to the sentence of the judge; and those of the defendant, to pay what was decreed, Cic. Quint. 7. Att. xvi. 15.

In certain actions the plaintiff gave security to the defendant that no more demands should be made upon him on the same account (eo nomine a se NEMINEM AMPLIUS vel postea petiTURUM), Cic. Brut. 5. Rosc. Com. 12. Fam. xiii. 29.

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