citizens themselves. And, next, there was, as regarded those who had the privileges of Roman citizens in the provinces, the benefit of a regular system of judicature, and a settled administration of justice, by skilled judges and sworn jurors. It is this which is the essence of our own system of judicature, and it is of Roman origin.

Nor was this all. There was an intelligent and effective system of procedure. It was a first principle of the Roman law in the administration of justice that it was in vain to proceed to a trial until the question in dispute was ascertained and defined, a principle the result of reason, instructed by experience, which would not suggest itself to the untutored and unlettered minds of barbarians.

Guizot thus describes the system: "He to whom the jurisdiction appertained, prætor, provincial governor, or municipal magistrate, on a case being submitted to him, merely determined the rule of law, the legal principle according to which it ought to be adjudged. He decided, that is to say, the question of law involved in the case, and then appointed a private citizen, called the judex, the veritable juror, to examine and decide the question of fact. The legal principle laid down by the magistrate was applied to the fact found by the judex, and so the case was determined" (Lect. sur la Civiliz, en France, Lect. ii.) Thus the principle of the Roman system was the separation of the law from the fact, which is essential to anything like a science of law, or any regular procedure.

The system of trial under the Roman law2 was the original of trial by jury, with which, in all essential respects, it was identical. The essence of it was trial by sworn judges taken from the people, and open to objection by either party. And in criminal cases

1 "Res in judicium deducta non videtur, si tantum postulatio simplex celebrata sit, vel actionis species ante judicium reo cognita. Inter litem enim contestatam et editam actionem permultum interest. Lis enim tunc contestata videtur, cum judex per narrationem negotii, causam audire cœperit" (Cod. Just., lib. iii. tit. ix., de litis contestatione). The litis contestatio marked the time when the suit was deemed to have really commenced.

2 Montesquieu thus describes it: "Chaque année le préteur formait une liste, ou tableau de ceux qu'il choisissait pour faire la fonction de jugés pendant l'année de sa magistrature. On en prenait le nombre suffisant pour chaque affaire. Ce se pratique à peu près de meme en Angleterre. Et ce qui était très favorable à la liberté c'est que le preteur prenait les juges du consentement des parties. Le grand nombre des recusations qui l'on peut faire aujourd'hui en Angleterre revient à peu près à cet usage. Ces juges ne decidaient que des questions de fait, par example si une somme avait été payée ou non, si une action avait été commise ou non, mais pour les questions de droit, commes elles demandaient une certaine capacité, elles étaient portées au tribunal des centumviri. Les rois se réserverènt le jugement des affaires criminelles, et les consuls leur succedèrent en cela. Cela fit faire la loi

which were capital, there could be no sentence without an appeal to the people.

Another eminent writer on the subject says, " And the distinction between the magistratus, the person under whose jurisdiction a particular cause arose, and particular parties contended-and the judge or judges to whom the investigation of the facts in dispute was referred, is to be traced throughout the changes of Roman jurisprudence. The duty of the magistrate in matters of contentious jurisdictions, was to conduct the preliminary proceedings, to ascertain the points really in dispute between the parties, to instruct the judges, and sanction their appointment" (Phillimore's Introduc. to Roman Law, 19). When the question was ascertained, then it would be remitted for trial (a). In short, under the Roman system, there were the judices legis and judices facti, who answered to our jurors. And in criminal matters, it was a fundamental principle of Roman law that a free citizen could not be condemned without the judgment of his fellow-citizens.

At all events, trial by jury, so often supposed to be essentially of English origin, was part of the Roman system. It has been well said by a learned and talented writer, whose untimely loss in this country all lovers of learning and genius deeply deplore, "It is hardly possible to conceive a stronger proof of that ignorance of the most ordinary topics connected with general jurisprudence which has been so long the characteristic of the most eminent lawyers in this country, than the notion so vehemently entertained and so popularly received, that the jury is of peculiarly English origin. The principle and essence of a jury-which involves the selection of judges unknown beforehand from a particular body, and gives to those judges the power of deciding, with certain restrictions, and under the direction of certain rules, on the question in dispute is to be found in the institutions of many other counValerienne, qui permit d'appeler au peuple de toutes les ordonnances des consuls qui mettraient en peril la vie d'un citoyen. Les consuls ne purent plus prononcer une peine capitale contre un citoyen romain que par la volonté du peuple" (De l'Esprit des Lois, 1. xi. c. 18).

(a) "Quas actiones, ne populus prout vellet, institueret, certas solemnesque esse voluerunt" (Dig. de orig. Jur. leg. ii. sec. 6). The object was, to fix the question. "Les Romains introduisirent des formules d'actions, et établirent la necessité de diriger chaque affaire par l'action qui lui était propre. Cela était necessaire dans leur manière de juger; il fallait fixer l'état de la question, pour que le peuple l'eut toujours devant les yeux. Autrement, dans le cours d'une grande affaire, cet état de la question changerait continuellement, et on ne le reconnaitrait plus" (Montesquieu, de l'Esprit des Lois, 1. vi. c. 4).

tries. The trial of a citizen by other citizens and a judicial authority, in causes civil as well as criminal, inherent in every freeman, was the corner-stone of the Athenian constitution, and was thence restored to the Roman" (Phillimore's Intro. to Roman Law, p. 17).

The Roman law treated very carefully the functions and duties of the magistrates or officers to whom were entrusted the exercise of criminal jurisdiction in the provinces of the empire, 1 which was subject to supreme control; and, when allowed to be exercised by delegates, was in cases of conviction submitted to the revision of the superior ruler. And, more particularly, in the Roman law are to be found all the principles of a just and intelligent system of criminal procedure; a fair opportunity for defence, and a just examination into the truth. 2

It cannot but be observed that a just and rational system such as this was well calculated to attract the respect and confidence of provincial subjects among whom it was established; and all who were Roman citizens were entitled to the benefit of it. But, further, so well fitted for imperial sway was the Roman law, that it made careful provision for the administration of justice, not only as between Roman citizens, or foreign subjects entitled to the rights and privileges of Roman citizens, but also as between them and foreigners, or foreign subjects, not entitled to those privileges. And this jurisdiction was found so excellent, that it was afterwards adopted for the whole body of the Roman citizens. "As there was intercourse, without community of law, between the Roman civis and the peregrinus, particular magistrates were required to adjust litigation that arose between them, and these were the recuperatores. It was usual for the Romans, in their treaties, to stipulate expressly that a tribunal should be constituted to determine the differences of individuals belonging to the foreign nation and to their own. The judges, therefore, were not to proceed according to the strict

1 The pro-consuls had legates who could decide civil or criminal causes subject as to criminal sentences to the revision of the pro-consul. "Legati non solum civiles sed etiam criminales causas audiant, ita ut si sententiam in reos ferendam providerint ad pro-consules eos transmittere non morentur" (Cod. Just. lib. i. tit. xxxv., de officio pro-consulis et legati). This is an instance of the careful regulation of these offices.

2 "Defensionis facultas danda est his quibus aliquam inquietudinem fiscus infert" (Lib. 7, co. de Jur. fisc.) So Paulus: "Ne hi qui defendendi sunt subitis accusatorum criminibus opprimantur; quam vis defensionem quocunque tempore, postulante reo, negare non oportet; adeo ut propterea et differantur et proferantur custodiæ” (L. 18, sec. 19, Dig. de Quest.) "Sciant cuncti accusatores eam se rem deferre in publicam notionem debere, quæ munita sit idoneis testibus, vel instructa apertissimis documentis vel indiciis ad probationem indubitatis, et luce clarioribus expedita" (L. 25, co. de probat).

rules of Roman law, but according to substantial equity. The recuperatores were not at first included in the list of judges between Roman citizens (de curia judices). The term was confined to those here mentioned, and to the judges in the provinces, who were called peregrini recuperatores, in the same sense as one of the prætors was called peregrinus. The proceeding before recuperatores was afterwards extended to the deputes of Roman citizens, and the matter was thus brought to a more speedy conclusion” (Phillimore's Study of the Roman Law, p. 30). Thus, therefore, the jurisdiction provided for foreign subjects was so good that it was afterwards adopted for citizens.

In order to provide every possible security against injustice, appeals 1 were allowed from the provinces to the supreme tribunal of the empire, and the appellate jurisdiction was protected by numerous edicts.

Nor was this all. For in every city there was special provision made, by means of a particular public officer,2 for the protection of

1 Thus, as to judicial functionaries in the provinces, and appeals allowed from them to the imperial city, there is an edict, "Ad Universos Provinciales:" "A proconsulibus, et comitibus, et his qui vice præfectorum cognoscunt, sive ex appellatione, sive ex delegatione, sive ex ordine judicaverint, provocari permittemus, &c. A præfectis autem prætorio, provocare non sinimus" (Cod. Just. lib. vii. tit. 62, s. 19). And again, "De provinciis ex quibus appellatur ad præfectum urbi." "Cum appellatio interposita fuerit per Europam, &c., præfecturæ hujus urbis judicium sacrum appellator observet" (Ibid. s. 23). The judicial and equitable functions of the governor of a province were recognised: "Si residuum debti paratus es solvere, præses provinciæ dabit tibi arbitrum, apud quem quantum sit, quod superest ex debito, examinabitur," &c. (Cod. Just. lib. viii. tit. 27, s. 5).

* The "defensor," a functionary whose office was peculiar to the Roman system, and, if its duties were in any degree carried out, it must have been of infinite service. In the Cod. Just. lib. i. tit. lv., there is a distinct head, "De Defensoribus Civitatum," and under this head an edict, s. 4, "De Officio Defensorum," applying to all the provinces. "In defensoribus universarum provinciarum erit administrationis hæc forma; scilicit, ut in primis parentis vicem plebi exhibeas; descriptionibus rusticos urbanosque non patiaris adflige; officialium insolentiæ, et judicum procacitate occuras, ingrediendi, cum voles, ad judicem liberam habeas facultatem," &c. (Ibid.) And there is a special edict in favour of the husbandmen, s. 3, "De Rusticis:" "Utili ratione perspectum est, ut innocens et quieta rusticitas, peculiaris patrocinii, id est defensoris locorum beneficio, perfruatur." Another edict is remarkable: it runs thus -"Si qui eorum qui provinciarum rectoribus obsequuntur, quique in diversis agunt officiis principatus, et qui sub quocunque prætextu publici muneris possunt esse terribiles, rusticano cupiam necessitatem obsequii quasi mancipio sui juris imponant, aut servum ejus vel forte bovem in usus proprios necessitatesque converterint; ablatis omnibus facultatibus perpetuò subjugentur exilio" (Cod. Just. lib. xi. tit. 53, 8. 2). This shows that the coloni were capable of property, though, as they them. selves were attached to the estates of their lords, so was their property, and hence it could not legally be employed for the advantage of others, off the estates. The

the provincial subjects from oppressive abuse, and it was his peculiar duty and function to interpose for their protection; and repeated edicts were issued to enforce the observance of this duty, especially in regard to the weaker and humbler classes of the community.

Nor was this all. For the Roman system, as established under the emperors, made provision for obtaining, by means of provincial councils or assemblies, the general sense of the community, and thus ascertaining their wants and wishes, as a means of assisting the judgment, either of the provincial ruler or of the emperor, as to the measures to be adopted for their welfare.

And although it is true that, under the Roman rule, the provincial subjects of the empire were embraced in a comprehensive and elaborate system of taxation, it was administered by regular officers, carefully regulated and controlled by law. And as the revenue was mainly levied by contributions in kind,2 analogous to those derived by private owners of estates from the coloni or cultivators, the combined effect of both systems was rather, by enforcing in

language of the edict, it will be observed, is extremely expressive as to the possibility of oppression on the part of the officers of the provincial governors, and shows a sincere desire to prevent it.

1 Thus there was an edict of Theodosius: "Si quid extraordinarium consilium postulatur, cum vel ad nos est mittenda legatis, vel nostræ sedi aliquid intimandum; id quod inter omnes communi consilio tractatuque convenerit, minime in examen cognitoris ordinarii referatur, provincialium enim desideria, quibus necessaria sæpe fortuitis casibus remedia deposcuntur, vobis a cognoscere atque explorare permittimus; ut sint examinis tui, quæ ex his, auxilio tuo protinus implenda sint, et quæ clementiæ nostræ auribus intimanda videantur. In loco autem publico, de commune utilitate provincialium sententia proferatur; atque id quod majoris partis probaverit ad sensus, solennis firmet auctoritas." This was in the year 395, some time before the abandonment of Britain by the Romans, and it contains the whole principle of popular councils, not as mere turbulent assemblies, but for the intelligent purpose of ascertaining the wishes and views of the people. Montesquieu therefore did injustice to the Roman rule in the provinces when he described it as a Turkish despotism, "La liberté était dans le centre, et la tyrannie aux extrémités" (De l'Esprit des Lois, liv. xi. c. 19). He forgot that the provincial subjects, in a large proportion, had the rights of Roman citizens.

2 The tenth book of the Code is most copious upon these subjects. The revenue was collected by the "procurator." It was in a great degree from impositions of a certain proportion of the produce of the earth-corn, hay, &c.—which was paid in kind or in money, according to arrangement. In some provinces a tenth was exacted (frumentum decimarum); in others--those which were conquered—an arbitrary quantity (frumentum stipendiarum). Besides this, the natives supplied the corn wanted for the army at a fixed price (frumentum emptum), and a certain quantity for the use of the governor, for which a compensation was usually paid in money (frumentum æstimatum). This was on a principle similar to that on which the coloni were bound to supply their lords a certain proportion of the produce of their farms. Allusions to these services or impositions are frequent in the Code.