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cause_n	action_n	judgement_n	plaintiff_n	2,011	5	10.8617	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47252	Romæ antiquæ notitia, or, The antiquities of Rome in two parts ... : an account of the religion, civil government, and art of war, with the remarkable customs and ceremonies, publick and private : with copper cuts of the principal buildings, &c. : to which are prefix'd two essays : concerning the Roman learning, and the Roman education / by Basil Kennett ...	Kennett, Basil, 1674-1715.	1696 (1696)	Wing K298; ESTC R18884	301,193	437

Rome and though he constituted at that time only Three yet as the State encreas'd in Power and the City in number of Inhabitants they rose by degrees to Five and Thirty The distinction of Tribus Vrbanae and Rusticae was at first taken up for a difference between those People who inhabited the City and those who dwelt in other parts But at last the Country-Tribes being esteem'd the most Honourable engross'd the whole number except Four The first Assembly of the Tribes we meet with is about the Year of Rome 263. conven'd by Sp. Picinius Tribune of the Commons upon account of the Trial of Coriolanus Soon after the Tribunes of the Commons were order'd to be elected here and at last all the inferiour Magistrates and the Collegiate Priests The same Comitia serv'd for the enacting of Laws relating to War and Peace and all others propos'd by the Tribunes and Plebeian Officers though they had not properly the Name of Leges but Plebiscita They were generally conven'd by the Tribunes of the Commons but the same Privilege was allow'd to all the Magistrates (b) Hor. de Arte Poet They were confin'd to no place and therefore sometimes we find them held in the Comitium sometimes in the Campus Martius and now and then in the Capitol The Proceedings were in most respects answerable to those already describ'd in the account of the other Comitia and therefore need not be insisted on only we may farther observe of the Comitia in general that when any Candidate was found to have most Tablets for a Magistracy he was declar'd to be design'd or elected by the President of the Assembly and this they term'd renunciari Consul Praetor or the like And that the last sort of the Comitia only could be held without the Consent and Approbation of the Senate which was necessary to the convening of the other two (m) Dionys lib. 9. CHAP. XVII Of the Roman Judgments and first of Private Judgments A Judgment according to Aristotle's definition is no more than 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the decision of Right and Wrong The whole subject of the Roman Judgments is admirably explain'd by Sigonius in his Three Books de Judiciis from whom the following Account is for the most part extracted Judgments or Determinations of a proper Judge were made either by a competent number of select Judges or by the whole People in a General Assembly Judgments made by one or more select Judges may be divided into publick and private the first relating to Controversies the second to Crimes The former will be sufficiently describ'd if we consider the Matter or Subject of these Judgments the Persons concern'd in them and the manner of proceeding The matter of private Judgments takes in all sort of Causes that can happen between Man and Man which being so vastly extended and belonging more immediately to the Civil Law need not here be insisted on The Persons concern'd were the Parties the Assistants and the Judges The Parties were the Actor and Reus the Plaintiff and Defendant The Assistants were the Procurâtores and the Advocati of whom tho' they are often confounded yet the first were properly such Lawyers as assisted the Plaintiff in proving or the Defendant in clearing himself from the matter of Fact The other who were likewise call'd Patroni were to defend their Clients Cause in matters of Law (a) Zouch Element Jurisprud p. 5. Sect. 3. Both these were selected out of the ablest Lawyers and had their Names entred in the Matriculation-Book of the Forum This was one Condition requisite to give them the liberty of Pleading the other was the being retain'd by one Party or the receiving a Fee which they term'd Mandatum (b) Ibid. The Judges besides the Praetor or supreme Magistrate who presided in the Court and allow'd and confirm'd them were of three sorts Arbitri Recuperatores and Centumviri litibus judicandis Arbitri whom they call'd simply judices were appointed to determine in some private Causes of no great Consequence and of very easie decision Recuperatores were assign'd to decide the Controversies about receiving or recovering things which had been lost or taken away But the usual Judges in private Causes were the Centumviri three of which were taken out of every Tribe so that their number was five more than their Name imported 'T is probable that the Arbitri and Recuperatores were assign'd out of this Body by the Praetor The manner of carrying on the private Suits was of this nature The difference failing to be made up between Friends the injur'd Person proceeded in jus reum vocare to summon or cite the offending Party to the Court who was oblig'd immediately to go with him or else to give Bond for his appearance according to the common Maxim In jus vocatus aut eat aut satisdet Both Parties being met before the Praetor or other supreme Magistrate presiding in the Court the Plaintiff propos'd the Action to the Defendant in which he design'd to sue him This they term'd Edere actionem being perform'd commonly by writing it in a Tablet and offering it to the Defendant that he might see whether he had best compound or stand the Suit In the next place came the postulatio actionis or the Plaintiff's desiring leave of the Praetor to prosecute the Defendant in such an Action This being granted the Plaintiff vadabatur reum oblig'd him to give Sureties for his appearance on such a Day in the Court and this was all that was done in publick before the prefix'd Day for the Tryal In the mean time the difference us'd very often to be made up either Transactionc or Pacto by letting the Cause fall as dubious and uncertain or by composition for so much damage to be ascertain'd by an equal number of Friends On the Day appointed for the hearing the Praetor order'd the several Bills to be read and the Parties to be summon'd by an Accensus or Beadle Upon the default of either Party the Defaulter lost his Cause The appearing of both they term'd se stitisse and then the Plaintiff proceeded litem sive actionem intendere to prefer the Suit which was perform'd in a set Form of Words varying according to the difference of the Actions After this the Plaintiff desir'd Judgment of the Praetor that is to be allow'd a Judex or Arbiter or else the Recuperatores or Centumviri for the hearing and deciding the business but none of these could be desir'd unless both Parties agreed The Praetor when he assign'd them their Judges at the same time defin'd the number of Witnesses to hinder the protracting of the Suit and then the Parties proceeded to give caution that the Judgment whatever it was should stand and be perform'd on both sides The Judges always took a solemn Oath to be impartial and the Parties swore they did not go to Law with a design to abuse one another This they call'd Juramentum calumniae Then began the Disceptatio

causae or disputing the Case manag'd by the Lawyers on both sides with the assistance of Witnesses Writings and the like the use of which is so admirably taught in their Books of Oratory In giving Sentence the major part of the Judges was requir'd to overthrow the Defendant If the number was equally divided the Defendant was actually clear'd and if half condemn'd him in one Sum to be paid and half in another the least Sum always stood good (a) Z●uch Element p. 5. Sect. 10. The consequence of the Sentence was either in integrum restitutio addictio judicium calumniae or judicium falsi The first was when upon Petition of the Party who was overthrown the Praetor gave him leave to have the Suit come on again and allow him another full hearing Addictio was when the Party who had been cast in such a Sum unless he gave Surety to pay it in a little time was brought by the Plaintiff before the Praetor who deliver'd him into his disposal to be committed to Prison or otherwise secur'd 'till satisfaction were made Judicium Calumniae was an Action brought against the Plaintiff for false Accusation Judicium falsi was an Action which laid against the Judges for Corruption and unjust Proceedings CHAP. XVII Of Publick Judgments FOR the knowledge of Publick Judgments we may take notice of the Crimes of the Punishments of the Quaesitors and Judges of the method of proceeding and of the consequences of the Tryal The Crimes or the matter of the Publick Judgments were such Actions as tended either mediately or immediately to the prejudice of the State and were forbid by the Laws As if any Person had derogated from the Honour and Majesty of the Commonwealth had imbezzel'd or put to ill uses the publick Money or any Treasure consecrated to Religion or had corrupted the Peoples Votes in an Election or had extorted Contributions from the Allies or received Money in any Judgment or had us'd any violent Compulsion to a Member of the Common-wealth These they term'd Crimina Majestatis peculatûs ambitûs repetundarum and vis publicae Or if any Person had kill'd another with a Weapon or effected the same with Poyson or laid violent Hands on his Parents or had forg'd a Will or counterfeited the publick Coin or had corrupted another Man's Wife or had bought bound or conceal'd a Servant without the knowledge of his Master Whence these Crimes took the Names inter sicarios veneficii parricidii falsi adulterii plagii Besides these any private Cause by virtue of a new Law might be made of publick Cognizance As to the Punishments they may be allow'd a Chapter by themselves hereafter The Inquisition of Criminal Matters belong'd at first to the Kings and after the abrogation of that Government for some time to the Consuls But being taken from them by the Valerian Law it was conferr'd as Occasions happen'd upon Officers deputed by the People with the Title of Quaesitores Parricidii But about the Year of the City 604. this power was made perpetual and appropriated to the Praetors by virtue of an Order of the People at their annual Election the Inquisition of such and such Crimes being committed to such and such Praetors Yet upon extraordinary Occasions the People could appoint other Quaesitores if they thought convenient Next to the Quaesitor was the Judex quaestionis who tho' he is sometimes confounded with the Praetor yet was properly a Person of Note deputed by the Praetor to manage the Tryal of which he himself perform'd only the main business After him were the Judices selecti who were summon'd by the Praetor to give their Verdict in Criminal Matters in the same manner as our Juries They were chose every Year to a set number desin'd by the Laws which by reason of the preferring of new Laws often varied As to the method of the Proceedings the first Action which they term'd in jus vocatio was much the same in publick as in private Causes But then as the Postulatio of the Plaintiff consisted in desiring leave of the Praetor to enter a Suit against the Desendant so here the Accuser desir'd permission to enter the Name of the Offender with the Crime which he objected to him This they call'd Nomiras delatio being perform'd first vivâ in a set Form of Words according to the nature of the Crime and then offer'd to the Praetor being wrot in a Tablet if approv'd by the Praetor the accus'd Party's Name was entred in the Roll of Criminals both Persons having taken the Oath of Calum●● already spoken of At the entrance of the Name the Praetor appointed a set Day for the Tryal And from that time the accus'd Person chang'd his Habit going in Black 'till the Tryal was over and using in his Dress and Carriage all Tokens of Sorrow and Concern Upon the appointed Day the Court being met and both Parties appearing the first thing that was done was the sortitio judicum or impannelling the Jury perform'd commonly by the Judex Quaestionis who took by Lot such a number out of the Body of the Judices selecti as the particular Law on which the Accusation was founded had determin'd Liberty being given to both Parties to reject or as we call it to challenge any that they pleas'd the Praetor or Judex Quaestionis substituting others in their Places The Jury being thus chose was cited by the publick Servants of the Court and when the proper number appear'd they were sworn and then took their places in the Subsellia and heard the Tryal In this we may reckon four Parts Accusatio Defensio Laudatie and Latio sententiae Accusatio is desin'd perpetua●oratio ad crimina inferenda atque augenda artificiose composita A continu'd Oration artificially compos'd for the making out and heightning the Crimes alledg'd For it did not only consist in giving a plain Narration of the matter of Fact and confirming it by Witnesses and other Evidences but in bringing of other Arguments too drawn from the nature of the thing from the Character of the accus'd Person and his former course of Life from the circumstances of the Fact and several other Topicks which the Orators teach us to enlarge upon Nor was the Accuser limited in respect of time being allow'd commonly as many Days as he pleas'd to make good his Charge Defensio belong'd to the Lawyers or Advocates retain'd by the accus'd Party who in like manner were allow'd to speak as many Days as they pleas'd toward the clearing of their Client The three common Methods they took were Facti negatio negatio nominis facti or probatio jure factum either plainly to deny the matter of Fact and endeavour to evince the contrary or else to acknowledge the Fact and yet to deny that it fell under the nature of the Crime objected Or lastly to prove the Fact lawful The first way of Defence was generally us'd when the Person stood indicted of what they call'd crimen repetundarum

to be heard in open Senate before they entred the City as when they petition'd for a Triumph and the like cases Pliny too has a very remarkable Observation that whenever the Augurs reported that an Ox had spoke which we often meet with among the ancient Prodigies the Senate were presently to sit sub Dio or in the open Air (g) Plin. Nat. Hist lib. 8. cap. 45. As for the time of their Sitting we must have recourse to the common distinction of Senatus legitimus and Senatus indictus The former was when the Senate met of course upon such Days as the Laws or Custom oblig'd them to These were the Kalends Nones and Ides in every Month 'till the time of Augustus who confin'd them to the Kalends and Ides In the Months of September and October by an Order of the same Emperour no Obligation was laid upon the Senators to appear only so many of them as were requir'd by Law to compose a fit number for the Management of any Business and therefore all that time they took their Fortunes by Lott as Suetonius informs us (h) In Octav. cap. 35. We may observe from the same Author that the Ides of March call'd Parricidium from the Murther of Julius Caesar which happen'd on it was particularly excepted and a Decree pass'd That the Senate shou'd never meet on that Day for the future (i) Idem in Jul. Cas cap. 88. Senatus indictus was a Senate call'd for the dispatch of any Business upon any other Day except the Dies Comitiales when the Senators were oblig'd to be present at the Comitia As soon as the Senate was set the Consul or other supreme Magistrate in the first place perform'd some Divine Service and then propos'd the Business to the House Both which Actions they call'd referre ad Senatum (k) P. Manut. de Senat. Rom. When he had open'd the Cause he went round in order beginning with the Princeps Senatûs or the Design'd Consuls and ask'd every body's Opinion upon which all that pleas'd stood up and gave their Judgment upon the Point 'T is very remarkable that when any Senator was ask'd his Opinion he had the privilege of Speaking as long as he pleas'd as well about other Concerns as about the Matter in hand And therefore when any particular Member had a Design to hinder the passing of any Decree 't was a common practice to protract his Speech 'till 't was too late to make any determination in the House When as many as thought fit had given their Judgements at large the supreme Magistrate made a short Report of their several Opinions and then in order to passing the Decree order'd the Senators to divide one Party to one side of the House and the opposite to the other The number being now told the major part determin'd the Case and a Senatus-consultum was accordingly wrote by the publick Notaries at the feet of the Chief Magistrate being subscrib'd by the principal Members that promoted it But in Cases of little Concern or such as requir'd expedition the formality of asking Opinions and debating the Business was laid aside and a Decree pass'd upon the bare Division of the House and the counting of the Numbers on both Sides This was call'd Senatus-consultum per discessionem factum the former simply Senatus-consultum (l) P. Manu● de Sen. Julius Capitolinus speaks of a sort of Senatus-consulta not describ'd by any other Author which he calls Senatus-consulta tacita and tells us they were made in reference to Affairs of great Secrecy without the admittance of the very Publick Servants but all the Business was done by the Senators themselves after the passing of an Oath of Secresie 'till their Design shou'd be effected (m) Jul. Capitolin in Gordian There were several things that might hinder the passing of a Decree in Senate as in case of an intercessio or interposing This was commonly put in practice by the Tribunes of the Commons who reckon'd it their Privilege But it might be done too by any Magistrate of equal Authority with him that propos'd the Business to the House Or else when the Number requir'd by Law for the passing of any Bill was not present For that there was such a fix'd Number is very evident though nothing of certainty can be determin'd any farther about it In both these cases the Opinion of the major Part of the Senators was not call'd Senatus-consultum but Authoritas Senatus their Judgment not their Command and signified little unless it was afterwards ratified and turn'd into a Senatus-consultum as usually happen'd (n) P. Manut. de Sen. Besides these two Impediments a Decree of Senate cou'd not pass after Sun-set but was deferr'd 'till another Meeting All along 'till the Year of the City 304. the written Decrees were in the custody of the Consul who might dispose of them as he thought proper and either suppress or preserve them But then a Law pass'd that they should be carried always for the future to the Aediles Plebis to be laid up in the Temple of Ceres (o) Livy lib. 3. Yet we find that afterwards they were for the most part preserv'd in the Publick Treasury (p) Vide Ciceron Philipp 5. Sueton. in August Tacitum Annal. 3. It may be farther observ'd that besides the proper Senators any Magistrate might come into the House during their Honour and they who had born any Curule Office after its expiration But then none of those who came into the House purely upon account of their Magistracy were allow'd the Privilege of giving their Judgments upon any matter or being numbred among the Persons who had Votes Yet they tacitly express'd their Mind by going over to those Senators whose Opinions they embrac'd and upon this account they had the Name of Senatores Pedarii There was an old Custom too in the Commonwealth That the Sons of Senators might come into the House and hear the Proceedings This after it had been abrogated by a Law and long disus'd was at last reviv'd by Augustus who in order to bringing the young Noblemen the sooner to the Management of Affairs order'd that any Senator's Son at the time of his putting on the Toga Virilis shou'd have the Privilege of using the Latus Clavus and of coming into the Senate (q) Sueton in August cap. 38. CHAP. III. Of the general Divisions of the Magistrates and of the Candidates for Offices NOT to speak of the different Forms of Government which obtain'd among the Romans or to decide the case of Preeminency between them we may in the next place take a short view of the Chief Magistrates under them all Of these we meet with many general Divisions as in respect of Time Magistratus ordinarii and extraordinarii with reference to the Persons Patricii Plebeii and Mixti from their Quality Majores and Minores from their manner of appearing in Publick Curules and Non Curules and lastly from the place

taken from the Consuls by the Valerian Law and liberty given for an Appeal from them to the People they could not compel any body to take up Arms. Upon this account they found it necessary to create a Magistrate who for Six Months should rule with absolute Authority even above the Laws themselves The first Person pitch'd upon for this Honour was Titus Largius Flavus about A. V. C. 253 or 255. (a) Dionys Antiq. lib. 5. Livy lib 2. This supreme Officer was call'd Dictator either because he was Dictus named of the Consul or else from Dictating and Commanding what should be done (b) Ibid. Tho' we sometimes meet with the naming of a Dictator upon a smaller Account as the holding the Comitia for the Election of Consuls the Celebration of Publick Games and the like yet the true and proper Dictator was he who had been invested with this Honour upon the occasion of dangerous War Sedition or any such Emergency as requir'd a sudden and absolute Command (c) Lips de Magistrat cap. 17. And therefore he was not chose with the usual Formalities but only named in the Night vivâ voce by the Consul (d) Livy lib. 4. and confirm'd by the Divination from Birds (e) Cicero de Leg. lib. 3. The time assign'd for the disration of the Office was never lengthned except out of meer necessity And as for the perpetual Dictatorships of Sylia and Julius Caesar they are confess'd to have been notorious Violations of the Laws of their Country There were Two other Confinements which the Dictator was oblig'd to observe First he was never to stir out of Italy for fear he should take advantage of the distance of the place to attempt any thing against the common Liberty (f) Div. Hist lib. 36. Besides this he was always to march on foot only upon account of a tedious or sudden Expedition he formally ask'd leave of the People to ride (g) Plutarch in Fab. Max. But setting aside these Restraints his Power was most absolute He might proclaim War levy Forces lead them out or disband them without any cousultation had with the Senate He could punish as he pleas'd and from his Judgment lay no Appeal (h) Dienys Antiq. lib. 8. at least not till in later times To make the Authority of his Charge more awful he had always Twenty four bundles of Rods and as many Axes carried before him in Publick if we will believe Plutarch (i) In Fab. Max. and Polybius (k) Hist lib 3. Tho' Livy attributes the first rise of this custom to Sylla (l) Epitom lib. 89. Nor was he only invested with the joynt Authority of both the Consuls whence the Grecians call'd him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Double Consul but during his Administration all other Magistrates ceas'd except the Tribunes and left the whole Government intrusted in his Hands (m) Pint. in Fab. Max. This Office had the repute to be the only Safeguard of the Commonwealth in times of danger Four hundred Years together 'Till Sylla and Caesar having converted it into a Tyranny and rendred the very Name odious Upon the murder of the last a Decree pass'd in Senate to forbid the use of it upon any account whatever for the future (n) Dio lib. 44. Appian lib. 3. The first thing the Dictator did was to chuse a Magister Eguitum or Master of the Horse who was to be his Lieutenant-General in the Army but could act nothing without his express Order Yet in the War with Hannibal when the slow Proceedings of Fabius Maximus created a Suspicion in the Commons they voted that Minutius his Master of the House should have an equal Authority with Fabius himself and be as it were another Dictator (o) Plutarch in Fab. Max. Polybius lib. 3. The like was afterwards practis'd in the same War upon the Defeat at Cannae when the Dictator M. Junius being with the Army Fabius Buteo was chose a second Dictator at Rome to create new Senators for the supplying of their places who had been kill'd in the Battel Though as soon as ever the Ceremony was over he immediately laid down his Command and acted as a private Person (p) Plutarch ibid. CHAP. VI. Of the Praetors THE Original of this Office instituted in the Year of the City 389. is owing to two occasions Partly because the Consuls being very often wholly taken up with foreign Wars found the want of some Person to administer Justice in the City and partly because the Nobility having lost their appropriation of the Consulship were ambitious of procuring to themselves some new Honour in its room (a) Vide Liv. lib. 7. circa princip At the first only one was created taking his Name à praeeundo and for the same reason most of the old Latins call'd their Commanders Praetores And the Consuls are suppos'd to have us'd that Title at their first institution A. V. C. 501 another Praetor was added and then one of them applied himself wholly to the preserving of Justice among the Citizens with the Name of Praetor Vrbanus while the other appointed Judges in all Matters relating to Foreigners But upon the taking in of Sicily and Sardinia A. V. C. 520. two more Praetors were created to assist the Consuls in the Government of the Provinces and as many more upon the entire conquest of Spain A. V. C. 551. Sylla encreas'd the number to Eight Julius Caesar first to Ten and then to Sixteen the second Triumviri after an extravagant manner to Sixty four After this sometimes we meet with Twelve Praetors sometimes Sixteen or Eighteen but in the Declension of the Empire they fell as low again as Three When the number of the Praetors was thus increas'd and the Quaestiones or Enquiries into Crimes made perpetual and not committed to Officers chose upon such occasions the Praetor Vrbanus and as Lipsius thinks the Praetor Peregrinus undertook the Cognizance of private Causes and the other Praetors of Crimes The latter therefore were sometimes call'd Quaesitores quia quaerebant de crimine the first barely jus dicebat Here we must observe the difference between jus dicere and judicare the former relates to the Praetor and signifies no more than the allowing an Action and granting Judges for determining the Controversie the other is the proper Office of the Judices allow'd by the Praetor and denotes the actual hearing and deciding of a Cause (a) P. Manut. de legibus p. 826. CHAP. VII Of the Censors THE Census or Survey of the Roman Citizens and their Estates from Censco to rate or value was introduc'd by Servius Tullius the sixth King but without the Assignment of any particular Officer to manage it And therefore he took the trouble upon himself and made it a part of the Regal Duty Upon the expulsion of the Tarquins the Business fell to the Consuls and continu'd in their care 'till their Dominions grew so large as to