CH. III.]

PRESIDENTS AT TRIALS.

91

that a criminal should escape, because there did not happen to be a law specifically applicable to his offence. The judicia publica, on the contrary, were trials for the violation of some established and particular law; as, for instance, the Julian, against treasons, the Cornelian, against stabbing and poisoning, the Pompeian, against parricide, and a variety of laws against bribery and corruption in canvassing for public offices. And the judicia populi of the earlier times, where the burghers at large tried and judged the accused, were, when these special laws were enacted, supplanted by the judicia publica; and, as we shall see, the number of judges was limited, and chosen out of a particular class.

But there was another mode of trying offences anciently at Rome, by the appointment of commissioners called Quæsitores parricidii, or Quæsitores rerum capitalium. The tribunes of the commons used, in the first instance, to put the question to the people in one of the popular assemblies, and ask them whether they willed and ordained that an inquiry should take place, and that one of the prætors should refer it to the senate to determine who should conduct the trial. If the people voted for the accusation, the senate gave authority to some magistrate immediately to investigate the matter, and put the culprit upon his trial.1 But during the last century of the republic, this form was discontinued, and by various laws it became the province of the prætors to hold these trials themselves, without any special authority being delegated to them on each occasion. On entering their year of office it was determined by lot, what particular class of offences each of them should take cog

1 Liv. iv. 51. ix. 26. xxxviii. 54. See Heinecc. iv. 18. § 11.

* Hence they were called perpetuæ quæstiones or ordinary trials, as distinguished from the special commissions of former times.

nizance of during the ensuing twelve months. Thus Cicero assigns as one of the reasons why Sulpicius was beaten by Murena in the contest for the Consulship, that the former had as prætor obtained the unpopular office of quæstor peculatûs, or "commissioner of embezzlement," which he calls, "stern and odious, threatening, on the one hand, tears and misery, and, on the other, trials and imprisonment." 1

But the prætor did not sit as a judge, in our sense of the word, at these trials. He acted as the president of the court, under whose auspices and authority the proceedings were conducted; but he seems to have had no voice in the sentence pronounced. He had the imperium, but not the jurisdictio. This belonged to the Judices, who were summoned by him to sit upon the trial, and of whom we find such constant mention made in the speeches and other writings of Cicero. It was their province to determine the question of guilt or innocence; and they were taken out of a particular class of citizens which varied at different times. The importance of the functions which they had to discharge, made it a matter of vital interest that they should be men of pure and upright character; but nothing was more common at Rome, than to hear them charged with every kind of corruption and venality. Their names were inscribed on a list, or jury panel, called Album Judicum, which is supposed to have been first brought into use by the Calpurnian law. There is much doubt as to their number, which, however, varied at different times. Some imagine that ten were originally chosen from each tribe, which would make them amount to about 300, and hence they explain the term, Decuria judicum. At first they seem to have been confined exclusively to the senatorian body;

1 Pro Murena, 20.

CH. III.]

THE JUDICES.

93

but by the Sempronian law, B. C. 123, of which Tiberius Gracchus was the author, this right or privilege was transferred from the senators to the equestrian order; and the latter enjoyed it for nearly fifty years, until Sylla, B. C. 80, deprived them of it, and restored it to the senators. By a later law, the Aurelia Lex, passed B. C. 70, it was enacted that the judices should be chosen from the senators, the knights, and the tribuni ærarii; the last of whom were taken from the body of the people. These formed the three decuriæ of judges, which existed until Julius Cæsar reduced them to two, by removing the decuriæ of the tribuni ærarii. The number that sat at a trial is uncertain; but it seems to have varied from fifty to seventy. After the reign of Augustus, the album judicum contained the names of all who were qualified to serve either on civil or criminal trials, and these amounted to not less than four thousand.1

Such, then, was the nature of the Roman law, and such were the tribunals before which the advocate had to practise. The account has perhaps been tedious; but we shall find more to interest us, as we proceed to consider some of the peculiarities attending the exercise of his profession in the Eternal City.

On the difficult and perplexing question of the judices at Rome, see the able article headed Judex in Smith's Dict. of Greek and Rom. Antiq. by Mr. George Long.

CHAPTER IV.

ADVOCACY IN ANCIENT ROME.

Hi clientelis etiam exterarum nationum redundabant; hos ituri in provincias magistratus reverebantur; hos reversi colebant; hos et Præturæ et Consulatus vocare ultro videbantur; hi ne privati quidem sine potestate erant, cum et populum et senatum consilio et auctoritate regerent. TACITUS.

THE word Orator in the Latin language had a more extensive application than with us. We generally confine it to those who pre-eminently excel in eloquence; whereas the Romans spoke of all as oratores, who accustomed themselves to public speaking, either in the popular assemblies or in the courts of law. Therefore all advocates were orators in this sense, and Cicero constantly speaks of them as such. When he wishes to express a contemptuous opinion of a speaker, he calls him mediocris, or sane tolerabilis, or even malus, O. And the reason why he so seldom uses any other term than this, seems to be owing to one of the most remarkable points of difference between the profession of the bar in ancient and in modern times.

For we must not forget that at Rome there was no line of demarcation drawn between the advocate and the statesman. While appearing in the cause of his client, the eloquent speaker was, in fact, acquiring that popularity and influence which placed all public honours within his grasp. He was not, as with us, obliged to devote himself for years exclusively to legal studies, and endeavour to approve himself by success in his profession a sound and able lawyer, before he dared to enter upon

CH. IV.]

PATRON AND CLIENT.

95

public life. In England a man does not emerge from the courts until he is of mature age, and his habits of thought and powers of speaking have been exercised and moulded there for so long a time, that he is almost unfit to contend in the new arena into which he is suddenly introduced. This is the chief reason why lawyers are so often said to fail in parliament, and why so few of them deserve the praise which Horace bestowed upon Asinius Pollio

But the more technical name given to those who practised in the courts at Rome was that of Patroni Causarum, or simply Patroni; and the parties whom they there represented were called their Clientes. For the origin of these terms we must refer to one of the most peculiar of the political, or rather social, usages amongst the Roman people. This was the relation that subsisted between the patron and client, which may be traced back to the earliest times, and was founded upon a theory of reciprocal obligation and support.

2

"How the clientship arose," says Niebuhr, "admits as little of an historical exposition as the origin of Rome." 3 These lines are better than the couplet in which Pope complimented Murray, afterwards Lord Mansfield, when at the bar :

"Grac'd as thou art with all the power of words,

So known, so honour'd at the House of Lords."

The last line referred to a successful speech made by Murray at the bar of the House of Lords, after which he said that his income rose from nothing to three thousand a year.

The parody, by Colly Cibber, is well known :

"Persuasion tips his tongue whene'er he talks,

And he has chamhers in the King's Bench walks."

See Heineccii Syntagma; Brumerii ad legem Cinciam comment.; Polleti, Historia Fori Romani.

History of Rome, i. 277.