they must out of hand receaue iudgement For the right vnderstanding of these two words Ampliari Comperendinari we must consider the ancient customes and ceremonies vsed by the Romanes in handling their suits of law First there was In ius vocatio .i. a citation of one into the court Secondly postulatio .i. a request put vp vnto the Praetour that it might be lawfull for the Plaintiffe to enter his action against the DefendaÌ„t whence Postulare aliquem de hoc vel illo crimine is to accuse one of this or that crime Thirdly Nominis delatio .i. the taking of the defendants name into the court-booke and this was tearmed Intendere actionem vel Litem and Diem alicui dicere .i. to enter an actioÌ„ against one At which time the plaintiffe did Vadari reum .i. demaund sureties or bale froÌ„ the defendant that he would appeare vpon the day appointed by the Praetour which commoÌ„ly was the third day following called properly dies perendinus and sometimes dies tertius simply as it appeareth by those capitall letters I. D. T. S. P. vsed to be written in their actions which letters Probus expoundeth thus In diem tertium siue perendinum So that theÌ„ properly lis vel reus dicitur comperendinari when the giving of sentence is differred til the third day Moreover before the Praetor would suffer the Action to be entered he would sweare the Plaintiffe that he did not accuse the Defendant calumniandi causâ .i. falsely or maliciously and this kind of swearing was tearmed Calumniam iurare calumniam deiurare and In litem iurare Now if either party were absent from the court vpon the third day except he were sicke he was cast in his suit and the Praetor did graunt an executioÌ„ called Edictum peremptorium whereby he gaue autority to his adversary to seaze vpon his goods Sometimes there were two or three Edicts in manner of Processes or writs before the Edictum peremptorium could be obtained some times it was graunted at the first and then was it called vnum pro omnibus Now if both parties came into the court and did appeare then were they said se stitisse so that this word sisto amongst the lawyers did signifie to shew ones selfe in the court Vpon the third day the Praetor also with the whole bench of Iudges did meete and the Iudex Quaestionis whom Rosinus maketh a distinct officer differing from the Praetor did cause all the Select Iudges to pull out certaine lots out of an vrne or pitcher brought thither for that purpose those Iudges vpon whom the lot fell were to sit in iudgment This was called Sortitio Iudicum Now if either the Plaintiffe or Defendant did suspect any of those that they would be partiall then might he except against them and that was called Iudicum reiectio Then the Iudex quaestionis would in manner aforesaide choose other Iudges into their places and that was called subsortitio Which being ended those Iudges which were thus chosen received every one of them from the Praetor three tables the one having this letter A written in it betokening Absolution whence Tully calleth it literam salutarem The other having this letter C written in it betokening CondemnatioÌ„ the third having these two letters N. L. betokening Non liquet After the receipt of the tables then did the Praetor mittere vel dimittere iudices in coÌ„silium .i. send them to cast their tables into the vrnes there being three vrnes or little coffers purposely provided the one for those iudges which were chosen out of the Senators the other for those that were chosen out of the Gentlemen the third for those which were chosen â—ut of the Martiall Treasurers Now if they did cast the first sort of tables into the vrnes then the Praetor pronounced the defendaÌ„t absolued if the second then he pronounced him condemned if the thirde then hee pronounced Amplius cognoscendum that they must haue longer time to enquire And this is properly termed Ampliatio A repriue and in such maner it is said quod lis vel reus dicitur Ampliari The proofes for this manner of proceeding in law may bee collected out of Rosinus lib. antiq 9. cap. 19. 20. 24. and out of Sigonius according to the marginall quotations Lex Cornelia de Sicarijs Veneficio Parricidio Cornelius Sylla being Dictator ordained a law that the chiefe Iudge called Iudex Quaestionis with the whole beÌ„ch of Iudges should sit vpon life and death on such as had killed a man on such as had with an evill intent set any place on fire on such as should walke with any weapon either to kill or rob a man on such as had either made bought sold had or given any poyson thereby to kill a man on anie magistrate whosoever should cause any conventicle or secret assemblies or should giue their consent to the suborning of any man to accuse another falsely that thereby he being innocent might be oppressed condeÌ„ned by publique iudgement Moreover De eius capite quaerito c. .i. Let them sit vpon life and death on that man which shall beare false witnesse that another might be condemned to death on that magistrate or chiefe Iudge which shall take a bribe to condemne another to death Parricidium This word doth properly signifie onely a murthering of ones parents or kinsfolke but in Numa PoÌ„pilius his time it signified as much as homicidium .i. any maÌ„slaughter whatsoever CHAP. 20. Lex 12. tabularum de Vindicijs SI qui in iure manum conserunt vtreique superstitibus praesentibus vindicias sumunto Si qui in iure Here we must note that the custome among the Romanes in old time was that as often as any controversie did arise touching the possession of an house a field or any such like thing the Praetor did goe vnto the house field or the thing questioned being accompanyed thither with the Plainteiffe and the Defendant togither with others whom the law required to be present as witnesses This place wheresoever it were though in the open fielde during the time that the Praetor sate there to giue iudgement was tearmed in Latin Ius in English a Court Where in the presence of the Praetor and the witnesses the plaintiffe and Defendant did manum conserere that is as Camerarius supposeth argue and dispute the case pro and con in a solemne forme of wordes prescribed them by the law For this phrase is borrowed by the lawyers from the art military where souldiers are said manum vel manu conserere when they fight hand to hand Vâ—reique superstitibus praesentibus .i. let both parties in the presence of witnesses so Festus expoundeth superstites Vindicias sumunto .i. Let them take a turffe of the ground for so Sigonius expoundeth Vindiciae though properly as hee observeth it signified the possessioÌ„ of a thing rather then the thing possessed This turffe being taken vp was caryed to the Praetor
and iudgment was given vpon that as vpon the whole I do presume that in other cases as in taking the possession of an house c some other thing in maner of the â—urffe was presented vnto the Praetor vpon which as vpon the whole he gaue iudgement In Processe of time the Praetor by reason of the multitude of other imployments not finding convenient leasure to review every particular grouÌ„d or house called in question it was ordained contrarie to the twelue tables that the plaintiffe in such cases shoulde come into the court and challenge the defendant in this forme of words Ex iure manu consertum te voco .i. I challenge thee to goe out of the court into the field to vse one towards the other that solemne forme of words which the law enioyneth Then did the defendant either yeeld the possession of the ground or else he did reply Vnde tume ex iure manu consertum vocasti inde ibâ— ego te revoco TheÌ„ did they both taking witnesses with them without the company of the Praetor inire viam .i. goe into the ground bringing back a turffe thereof vpon the which as in maner shewne the Praetor gaue iudgement at their returne For the better vnderstanding of this that hath been spoken in the explanation of this law we must note that the action tearmed Vindicatio was twofold either the suit for the possession of a thing or the suit for the Lordship or right owning thereof The possessioÌ„ of any thing was recovered either by a true real violence or by a seeming violeÌ„ce This seeming violence was twofold either it was manus coÌ„sertio which was shewne immediately before or Moribus deductio .i. a customary leading the vnlawfull possessor out of the grouÌ„d thereby to enter possessioÌ„ Vis simulata altera à lege altera emanavit à moribus saith Sigon The first of these did arise from the Romane law the other from a custome amongst the Romanes the first of these is to bee seene in Tully his oration pro Muraena the other pro Caecinnâ To these Sigonius addeth a third kinde of seeming violence which how iustly he hath tearmed a violence I shal leaue to the indifferent iudgement of the vnpartial reader The right of the Lordship or owning any thing was sued for in this maner The plainteiffe did question with the defendant thus first An auctor esset .i. whether hee had not covertly made away the possession of the thing thereby to frustrate the action Secondly An sponderet .i. whether he woulde put in a gage of mony into the court which hee would forfeit if he were cast which being done the plaineteiffe did also vpon the demande of the defendant put in a gage of mony to be forfeited if he prevailed not in his suit This gage of mony was tearmed sacramentum and in this sense Tully pro Milone saith Iniustis vindicijs sacramentis alienos fundos petunt that is they sue for other mens grounds with vniust actions and gages of mony Thirdly An satisdaret that is whether hee woulde put in surety that during the triall in law the ground or house called in question should not be impaired The solemne forme of words vsed in the first demande is thus to be seene in Tully Quando in Iure te conspicio postulo annâ—e sies auctor If the defendant held his peace then was he adiudged to pay all costs damages if he professed himselfe the present possessor then did the plainteiffe proceed in maÌ„ner as he should for the possession thereof if he denyed it then did the Praetor say vnto the plainteiffe Quando negat sacramento quaerito Therevpon said the plainteiffe to the defendant Quando negas te sacrameÌ„to quinquagenario provoco spondesne te soluturum quinquaginta asses si auctor sis To whom the defendant replyed spondeo quinquaginta asses si auctor sim Tu verò spondesne idem ni sim The plaineteiffe answered Ego quoque spondeo Now in this kinde of stipulation the plainteiffe was said sponsione sacramento pro vocare sacramento rogare quaerere stipulari .i. to challenge one to pawn a summ of mony for the trial of a suit in law The defendant was said coÌ„tendere ex provocatione coÌ„tendere sacramento restipulari .i. to be sued in such manner This mony was tearmed sacramentuÌ„ because when it was forfeited it was bestowed in rebus sacris divinis Touching the last Interrogatory I reade no set forme of words but by the word satisdatio the intelligent reader may coniect that it did somwhat symbolize with our English custome of putting in bale Lib. 4. Rites and customes observed by the Romanes in their warres De Militiâ TOuching the art military vsed among the Romanes it will not be impertinent to consider first how warre was proclaimed and peace established by them Then to march on to the description of their bands or coÌ„panies where wee may first obserue the office of their chiefe captaine and their subordinate leaders togither with the severall wards into which the vniversall army was divided After this we may descend vnto the diversity of punishments vsed towards captiues likewise towards refractarious and disobedient souldiers Adding as a corollary or period to our whole discourse the severall rewards which the L. Generall with his souldiers after the performance of certaine noble atchieuements received CHAP. 1. De ritu quem Romani observârunt vel foedus ferientes vel bellum inferentes de triplici ratione consâ—ribendi milites VVe may remeÌ„ber that it hath been already shewn that both the proclaiming of warre peace belonged longed vnto a certaine order of Romane Priests called Foeciales whom by reason of their office I englished Heralds at armes The rites and ceremonies which they vsed when they proclaimed peace were as followeth vz. One of those Heralds having his commission from the state after that both sides had agreed vpon the truce league now to bee concluded tooke vp a stone in his hand vsing this soleÌ„ne forme of words Sirectè sine dolo malo hoc foedus atque hoc ius iurandum facio dij mihi cuncta felicia praestent sin aliter aut ago aut cogito caeteris omnibus saluis in proprijs patrijs in proprijs legibus in proprijs laribus in proprijs teplis in proprijs sepulchris solus ego peream vt hic lapis è manibus decidet and therwithal he cast the stone out of his hand which maner of oath was tearmed Iâ—â—are Iovem lapidem or per Iovem lapidem .i. as it hath been rendred by Festus to swear by Iupiter holding a stone in ones hand Many say that he did cast that stone at an hogge or porker brought thither purposely adding these words to the former Si prior populus Romanus defexit publico coÌ„silio tum ille Diespiter populuÌ„ Rom. sic ferito vt ego hunc porcum
Agere pro Tribunali but also if it were administred in a private house or in ones iourney so that it were by a lawfull Magistrate and out of the curule chaire and this was tearmed by the Lawyers Agere de Plano and hence is it that In ius vocare signifieth to cite one into the court Secondly Lex signifieth onely the written law but Ius signifieth equitie so that Ius permaneat sempèr nec vnquam mutetur Lex verò scripta saepiùs Notwithstanding these two words are vsed promiscuously one for the other therefore leaving all curious differences between those words whether the Romane lawes were truely Iura or Leges thus much wee may obserue that the laws vsed among them were of three sorts either they were such as were made by severall Romane kings and afterward collected digested into a method by Papirius from whom it was called Ius PapirianuÌ„ or they were such as the Decemviri brought froÌ„ Athens and were called Leges 12 tabularum or lastly they were such as the Consuls the Tribuni Plebis such Magistrates did preferre whence every severall law bore the name of him or them that preferred it My purpose is to explaine only this latter sort and that not all of them but such alone as I haue obserued in Tully and that chiefly in his orations My proceeding shall bee first to shew the divers kindes of iudgements and then to descend vnto the lawes theÌ„selues beginning with those which shall concerne the Romane religion and then proceeding to the others which concerne the common wealth CHAP. 2. De Iure publico privato THe Cases to be decided by the law were either publike or private accordingly were the iudgemeÌ„ts Velprivata in quibus ius suum privatus quisque persequebatur vel publica in quibus iniuria quae reip facta erat vindicabatur The private as we observed before beloÌ„ged vnto the Praetori vrbano peregrino .i. the L. chiefe Iustices who did either giue iudgement themselues and then were they said Iudicare or they did appoint others to sit in iudgement and then were they said Iudicium dare Yea in their absence there were ten called Decemviri Stlitibus iudicandis .i. Super lites iudicandas who in the same manner as the Praetor might either giue iudgement theÌ„selues or appoint others for they were even in one place and in steed of Praetors Those which either the Praetor or the Decemviri did appoint to debate the cases vnder them were taken out of the Centumviri .i. out of certaine Commissioners chosen for that purpose namely three out of every Tribe or warde so that in all the number of them amouÌ„ted vnto an hundred and fiue but in round reckoning they went for an hundred and from a certaine speare that was wont to be erected vp in token of this court hence was the Court called either Praetoria Decemviralis or Centumviralis hasta In some cases their forme of acquittance was thus secundum illum litem do whence Tully saith Quo minùs secundum eos lis detur non recusamus .i. wee doe not deny but they may be acquitted Those that were cast in their suit were said Lite vel causâ cadere The publique Cases belonged ordinarily except the Consuls the Senate or the people did interpose their authoritie vnto those whoÌ„ we called Praetores Quaesitores Some haue thought them to be the same with those whom Rosinus calleth Iudices Quaestionum and that I thinke not altogether vpon vnsure grounds first because most of these publique cases which they tearmed Quaestiones had their severall Praetors to enquire them whence they were called Quaesitores may in my opinion be called Iudices QuaestionuÌ„ especially seeing that those which would haue them bee different officers cannot well shew the difference of their offices Now as the Vrbane Praetor had an hundred coÌ„missioners vnder him so had these Praetores Quaesitores certaine Iudges chosen by the Vrban or forreigne Praetor when he tooke his oath and that not according to his pleasure as many as hee would or whom he would but sometimes more somtimes fewer sometimes only out of the Senators sometimes only out of the order of Romane Gentlemen sometimes out of both sometimes also out of other orders according as the law appointed which ofteÌ„ times varied in those points The Iudges how great soever the number was were called Iudices selecti and were divided into severall companies called Decuriae These iudges were vpon any citation froÌ„ any of the Praetors to giue their assistance in the Court vpon the day appointed by the Praetor Now the manner how they did proceed in their iudgement followeth in the exposition of one of the lawes and therefore I will referre the reader thither Only let him by the way vnderstand that whereas Tully is quoted in every law it is not so much for the proofe of the law as to signifie that he in that place maketh mention thereof For the proofe of the lawes I referre the Reader to Rosinus and Sigonius touching the expositions my marginall quotations doe proue sufficiently CHAP. 3. De Legibus religionem spectantibus Lex Papiria L. Papirius Trib. Pleb established a law touching the consecration or hallowing of places that it should be vnlawfull for any to consecrate either houses grounds altars or any other things Iniussu plebis .i. without the determination of the Roman people in their assemblies called Comitia Tributa which determination was alwaies tearmed Plebiscitum Roscia Lex L. Roscius Otho Trib. Pleb preferred a law that whereas heretofore the Romane Gentlemen did stand promiscuously with the Commons at their theatrall shewes now there should bee fourteene benches or seats built for those Romane Gentlemen which were worth H-S quadringenta .i. about 3000â— of our English mony As for other GentlemeÌ„ whose substance was vnder that rate they had a certaine place allotted them by themselues with a punishment imposed vpon them if they offered to come into any of those 14. benches Here we must note that this character H-S standeth for a silver coine in Rome called Sestertius and is by Rosinus in this place improperly vsed for Sestertium For this character H-S is by our Printers false printed the true character being LL-S signifying duas Libras as the the two LL doe intimate and Semissem which is intimated by the letter S. Where if Libra doth signify no more then the Romane coyne called AS then is this opinion touching the character LL-S easie to be confirmed For divers authors rendring a reason of the name Sestertius say it was so called quasi Semitertius .i. such a coyne as conteineth Duos solidos asses semissem This Sestertius was such a common coyne among the Romanes that Nummus and Sestertius became at length one to be vsed for the other Mille huiusmodi sesâ—ertij vel nummi faciunt vnum