§ 1. Justinian says in Novel 82 that some Judges possess a Magistracy and others do not: “Many Judges indeed were selected who did not possess command.”
The equity of judgments chiefly preserves the state; if it is neglected, not even war can be rightly administered. Just as a city cannot stand without justice, so justice cannot stand without a Judge. A Judge is animate law: ὁ δικαστὴς εἶναι βούλεται οἷον δίκαιον ἔμψυχον. He is a μεσίτης, a mediator who joins the parties by equality. He is a διχαστής, one who cuts disputes apart, as Aristotle says in book 5, chapter 7, of the Ethics. Some define a judgment as the explanation, through lawful paths, of another person’s obscure right; others, as the administration of justice in a cause heard by a Judge. The true definition is that a judgment is the lawful determination of a Judge possessing power of adjudication, so that the dispute receives an end through his sentence.
Jurisdiction extends very widely. π., title 1, law Ius: “The person who orders another to judge must be a Magistrate.” In appointing a Judge, however, the same thing must be observed as in taking a rule and standard for buildings: just as it must be as straight and entirely inflexible as possible, so the Judge ought to govern who is not easily impelled either to anger or desire; otherwise it would be just as if someone bent the rule to fit the wall.
§ 2. The practice of states teaches us that many Judges must be selected for various disputes. Aristotle judges thus in book 4, chapter 16, of the Politics: “The difference among courts is contained under three headings: from whom, concerning what, and how. ‘From whom’ means whether Judges are taken from all persons or from certain persons; ‘concerning what,’ how many kinds of courts there are; ‘how,’ whether Judges are made by lot or by vote. First, then, let us explain how many kinds of courts there are, so that the division of courts may be made clear. There are eight kinds of courts. One pertains to demanding accounts from Magistrates; another to public offenses and those unjustly committed against public persons; a third to offenses against the condition of the state; a fourth concerns disputes of both Magistrates and private persons when they dispute concerning the imposition of fines; a fifth concerns private contracts involving great things, and in addition killings, crimes among assassins, and the affairs of foreigners.
“Of offenses pertaining to killings, whether the matter is conducted before the same Judges or before others, some are committed willingly and deliberately, others without deliberation and unwillingly; some are acknowledged and the fact is agreed among the litigants, but the law is disputed. A fourth offense is that charged against persons who had gone into exile for an involuntary killing after they had been recalled from exile to plead a capital cause; at Athens, the court exercised at Phreatto is said to be of this kind. But throughout all time such cases happen rarely, and only in great cities. Of the courts which pertain to the affairs of foreigners, one kind is that in which a foreigner litigates with a foreigner, another that in which a foreigner litigates with a citizen. Besides all these there are also courts concerning small contracts, from one drachma to five and a little more. For these too must be judged, yet they do not fall to a multitude of Judges.”
§ 3. I intend, therefore, to follow the order of the Judges. At Rome the Praetors discharged this one office. For although Varro in book 4 of On the Latin Language thinks they were named from going before, and Justinian confirms this because they went before others both in war and in the prescription of laws, their function at Rome was nevertheless confined within the bounds of administering justice. The Consuls were frequently called away and could not attend those requesting justice; and therefore, for the purpose of administering justice, Spurius Furius Camillus, son of Marcus, was made Praetor in year 386 from the foundation of the city—the same year in which Lucius Sextius was the first Consul from the plebs. Yet, if we consider the internal struggles, that Magistracy seems to owe its origin not so much to justice as to ambition.
For the nobility conceded to the plebs that there should be a plebeian Consul, and the plebs conceded to the nobility that one Praetor, who would administer justice in the city, should be created from the Fathers. These are Livy’s words in book 6; in book 7 he adds: “This year was distinguished by the Consulship of a new man and distinguished by two new Magistracies, the Praetorship and Curule Aedileship. The patricians sought these honors for themselves in return for the other Consulship conceded to the plebs. The plebs gave the Consulship to Lucius Sextius, by whose law it had been acquired. By favor in the Field the Fathers gave the Praetorship to Spurius Furius Camillus, son of Marcus, and the Aedileship to Gnaeus Quinctius Capitolinus and Publius Cornelius Scipio, men of their own clans. Lucius Aemilius Mamercus was given to Lucius Sextius as a colleague from the Fathers.”
And a little afterwards: “Since all things were deliberately deferred so that nothing should be conducted through the plebeian Consul, there was silence in all affairs and a leisure similar to a cessation of justice. The Tribunes, however, did not suffer in silence the fact that, in return for one plebeian Consul, the nobility had taken for itself three patrician Magistrates seated on Curule chairs as though they were Consuls—the Praetor indeed administering justice, created as a colleague of the Consuls and with the same auspices. From this the Senate felt shame at ordering that the Curule Aediles be created from the Fathers.”
At first it was agreed that they should be created from the plebs in alternate years; afterwards the office was open indiscriminately. Then another Praetor was added to administer justice among foreigners; he was called the Peregrine and Lesser Praetor, while the former was called the Urban and Greater Praetor. Chosen in the Centuriate Assembly, they allotted the jurisdictions between them. Afterwards, as not only the city but fraud and crimes increased, four Praetors were created. Livy, book 20. Thereafter six were created, as Livy has in book 37. Finally Sulla added four so that there were ten. The first two exercised private judgments; the others, public judgments. And lest you marvel at the morals of the ancients, two administered justice among assassins, one concerning extortion, and others concerning other investigations.
§ 4. Although they were created to administer justice, they were nevertheless afterwards sent to wars. Thus in Livy, book 23, two are sent to Sicily and Sardinia. Afterwards usage established that Praetors no less than Consuls should obtain provinces by lot. Thus the Praetors were led from tribunals to camps.
§ 5. The contrary occurred in the case of the Praetorian Prefect. At first they were established to be ἔπαρχοι αὐλῆς, Prefects of the Court, according to Herodian; they are also called ὕπαρχοι (“subordinate prefects”) and ἔπαρχοι τῶν δορυφόρων τῆς στρατιᾶς, τῆς στρατιώτιδος (“prefects of the bodyguards of the army and of the soldiery”). Eusebius calls one τὸν καθ’ ὅλου ὕπαρχον (“the general prefect”). Augustus appointed two to preside over the Praetorian cohorts. But afterwards their power in judgments was great; indeed, Constantine the Great recalled them from war to tribunals and the care of revenues. Moreover, the authority of a judging Prefect was so great that appeal from him was not permitted. Thus π., title 11:
“It is necessary to recount briefly whence the origin of appointing the office of Praetorian Prefects flowed. Some writers have related that in ancient times Praetorian Prefects were established in place of Masters of Horse. For since among the ancients supreme power was entrusted to Dictators for a time, and they chose Masters of Horse for themselves, who, as associates sharing their care in military affairs, exercised the second power after them, when governance of the state was transferred to perpetual Emperors, Praetorian Prefects were chosen by the Princes in the likeness of Masters of Horse and given a fuller license for the correction of public discipline. The authority of the Prefects, begun from these cradles, deserved to be increased so far that appeal cannot be made from the Praetorian Prefects. For when it had formerly been asked whether it was permissible to appeal from the Praetorian Prefects, appeal was both lawful by right and supported by surviving examples of persons who had appealed. Afterwards, when an imperial sentence was read publicly, the faculty of appeal was forbidden. For the Prince believed that men employed in the greatness of that office because of singular diligence, after their fidelity and gravity had been tested, would judge no otherwise, in accordance with the wisdom and splendor of their dignity, than he himself would have judged. The Praetorian Prefects are also supported by another privilege: minors in age can be restored against their sentences by no other Magistrates, but only by the Prefects themselves.”
That dignity had grown excessively, so that one Prefect directed everything. Claudian says concerning Manlius:
Empire took you not in a part of itself, but throughout its whole body, And gave you governors to rule throughout the entire earth. The Spanish and German Tethys obeyed you, And Britain, severed from our world; Through different currents your utterances were honored By the slow Saône, swift Rhône, and wealthy Ebro. O how often the Rhine, where the barbarian went, Grieved that it did not enjoy you as Judge upon both banks. To the care of one man belonged whatever reddens At sunset, whatever the descending day encircles. So swiftly he again completed continuous honors. One lifetime came between the intervals of powers, And brought so many steps of fate into youthful years.
The great men of the palace in Francia taught how dangerous this was: the Sejani, Rufini, Stilichos, and others. But let us continue to speak of Judges. After the Praetor and Consul, a Legate administered justice in the provinces; in the city the Aediles and others also did so, of whom we shall speak in order. Here this must be admonished: the most ruinous system of all judgments was that in which a Magistrate referred public crimes to the people, concerning which every most wicked person was accustomed to deliver an opinion. Nowhere were judgments more shameful. The Roman people, despite the Senate’s resistance, converted to its own use land disputed between the Aricini and Ardeates. Thus in Livy, book 4, pity for his children acquitted Galba, who had killed many persons in Lusitania contrary to the faith he had pledged. Gabinius was acquitted because his son, lying upon the ground, was despised by the accuser. Rain liberated Claudius, who had lost a fleet. It more justly preserved Quintus Flavius the Augur. For when he had already been condemned by fourteen tribes, he exclaimed that he was perishing though innocent; the accuser violently replied that it made no difference to him whether Flavius perished guilty or innocent, provided that he perished. Offended by this atrocity, the people favored the defendant. Thus Aemilius Scaurus was acquitted when he could not name 120 persons in the province from whom he had taken nothing. Scipio Asiaticus was condemned through envy. But, to pass over others, we see Coriolanus, Camillus, and finally Cicero afflicted by the rashness of the people.
§ 6. Of all states, the Roman state was least able to provide for the citizenry in its judgments. It therefore changed the systems of judging very frequently. The Senate possessed the judgments down to year 630 of the city. Gracchus transferred them to the knights alone. In year 647, by the Servilian Law, the power of judging was again shared with the Senators, but in such a way that the number of knights was greater. Afterwards, when Caesar was Consul in year 662, Marcus Livius Drusus made the number of knights and Senators equal, so that there were three hundred of each order; those laws were abrogated in the same year because the unjust judgments of the knights oppressed the provinces and held the fortunes of Governors in their power. When Gaius Pompeius Strabo and Lucius Porcius Cato were Consuls, at the proposal of Silvanus 450 Judges were appointed who decided disputes in that year; they were taken from every order, including the plebeian, in year 683. Sulla restored the judgments entirely to the Senate. In year 673, Cotta again distributed the judgments among Senators, knights, and Tribunes of the Treasury. Julius Caesar as Consul abolished the Tribunes of the Treasury. In his second Consulship Pompey proposed and carried a law that Judges should be selected by property assessment from the Senate, equestrian order, and Tribunes of the Treasury. Antony was not content with these three decuries, but in place of Tribunes of the Treasury substituted Centurions, standard-bearers, Larks, and common soldiers. Augustus added a fourth decury from the ducenarii, to judge lighter matters. This great and sudden change of Judges is a sign that none were not only pleasing but even defensible. Appian reports that in the time of Lucius Drusus corruption by gifts ceased to be held among crimes; thus men plainly rubbed all shame from their brow.
§ 7. A Judge, arbiter, or recuperator was given by the Praetor.
For after the selected Judges had previously been chosen, the Praetor drew by lot from the selected men the number prescribed by the law. Both defendant and accuser could reject those whom they wished; in their place the Praetor or Judge of the investigation selected others by lot. Under the Servilian Law the plaintiff presented one hundred from 450 Judges; the defendant, 150. If the Judges did not excuse themselves, they swore to the laws and their names were recorded, lest substitutes be intruded. There was excessive freedom in that selection by lot. For who doubts that a man favoring an unjust cause would reject not only hostile men but all whom he judged to have integrity at heart? Therefore, in chapter 3, On Judgments, and other laws, that license of rejecting was restrained.
“It is of the most manifest law that litigants may reject delegated Judges before the suit is begun, since even by the general forms of your most sublime See it has been established that, when a Judge is rejected, a necessity is imposed upon the parties to come to the selection of arbiters and propose their rights at a hearing before them. For although the Judge has been delegated by imperial divinity, nevertheless, because it is our concern that all disputes proceed without suspicion, let the man who judges the Judge suspect be permitted to reject him before the suit is begun, after a petition of rejection has been presented to him, so that recourse may be had to another. Since we have already established that after joinder of issue neither may appeal be made before a definitive sentence nor may rejection occur, lest disputes be extended to infinity, the same executor shall impose upon the parties through the ordinary Judge and every civil aid the necessity both of selecting arbiters and coming before them, and of thus pursuing the suit as though the arbiters had been delegated by the imperial summit. But if the Judge was not delegated by the imperial Majesty, we decree that this be obtained from another summit.” Given on the fifth day before the Kalends of May at Constantinople, Lampadius and Orestes, most illustrious men, being Consuls. [9.]
For that reason a man is ordered to select an arbiter within three days. Today this is observed: after joinder of issue it is not lawful to reject the Judge. Indeed, even the cause why he is suspect must be judged. Thus all those things were afterwards changed for the better in law and reduced to a fixed order, so that to reject a Judge is not to reject at one’s pleasure but to adduce lawful causes why he is deservedly suspect. All these things must be done without calumny or defamation. I admit that slight causes are often admitted for rejecting a Judge, not only because several Judges are easily available but also because by the very fact that a Judge has been rejected he is judged an enemy.
If, therefore, he is a relative of the opposing party within the seventh degree, he can be rejected, because succession extends that far and the Judge can be believed more inclined toward a man whose heir he can become. This cause will also be valid in a more remote degree if he can be heir. If he is related by marriage, he will deservedly be rejected according to the degree of affinity. If he is a member of the opposing party’s household or his intimate, the other party will not entrust himself to him. The laws do not extend this to the Procurators or Advocates of the other party: although they may be very intimate with the Judge, it is nevertheless not permissible to reject him for that reason. Likewise, the lord or patron of the opposing party can be challenged. Other causes are added: if they are Canons in the same College; if they are from the same fatherland; if the Judge is the opposing party’s subject or vassal; if the Judge has a similar cause; if he was the opposing party’s Advocate or counselor; if he thrust himself into the cause; if he was surety for the opposing party; or if hostilities preceded. Indeed, an entire Consistory can be rejected if the presiding man can command the others and is suspect. Otherwise, only the suspect members are removed from a whole college, not the others also.
The removal of a deservedly suspect Judge belongs to natural law. But, as I admonished at the beginning, a penalty is imposed upon a man who makes a rash challenge. George of Toulouse writes excellently in book 49, chapter 4, of the Syntagma of Law: “These causes of rejection must moreover be presented in writing and comprehended in a petition, so that they may be proposed thoughtfully, not rashly, since a penalty also from the royal Constitutions threatens a person who proposes rashly: ten Tours pounds in the lower courts for each rash cause, and twenty pounds in the supreme courts. Thus they compel men either to pay the penalty or prove the proposed causes. Therefore, for the purpose of deciding the challenges, the litigants must select Judges or arbiters within a fixed period prescribed by the rejected Judge. If they do not agree concerning them, the Judge gives them ex officio, and before them proof of the causes is made, if those causes are not manifest and altogether notorious and the Judge denies them.”
For a defendant to wish no Judge at all to be selected, or selected in substitution, is the height of distrust; in an accuser it is an indication of calumny. Certainly it is altogether grave to challenge a Judge rashly. The fact that they rejected as Judge in their cause Cato, the man afterwards called Uticensis, contributed greatly to the condemnation of many. For they could not appear innocent—indeed, they sufficiently confessed concerning themselves—when they rejected the judgment of so upright and religious a Judge and so excellent and incorrupt a man. Nor today is Bartolus’s gloss, or the opinion of others on the law Apertissimi, Code, On Judgments, received; they establish that by civil law a Judge declared suspect may be rejected without cause. We instead follow pontifical law: the Judge does not cease to be Judge before the causes of suspicion have been proved.
§ 8. The Centumviral Court seems to have been established most excellently in the state. From thirty-five tribes 105 men were selected, who by a round number were called the Hundred Men; three were appointed from each tribe. Their number and jurisdiction were afterwards increased; Pliny, book 6, epistle 33, testifies that there were 180. There were four councils of them. They judged civil causes. Cicero, book 1 of On the Orator. The Urban Praetor presided over them; two spears were set up; four councils heard one and the same cause. Pliny, epistle 21 of book 5, and chapter 2.
§ 9. The Capital Triumvirs were selected in the Tribal Assembly. It belonged to them to judge persons of base and abject condition and wicked, criminal slaves. They were created when Curius Dentatus was Consul, in year 465 of the city. Among other things they also possessed the care of prisons and quarries. When the conspiracy of the Bacchanalia was discovered, the Capital Triumvirs were commanded to arrange watches through the city, to take care that no nocturnal assemblies occurred, and to guard against fires. Livy, book 39. The same men are accused by the Senate because they did not resist the superstitions of foreigners and the people. Livy, book 25: “The Aediles and Capital Triumvirs were gravely accused by the Senate because they did not prevent them. When they attempted to remove that multitude from the Forum and disperse the apparatus of the rites, they were not far from being assaulted. When it appeared that this evil was already more powerful than could be quieted by the lesser Magistrates, the Senate gave Marcus Aemilius, the Urban Praetor, the business of liberating the people from those religions. In an assembly he both read the decree of the Senate and declared that whoever possessed books of prophecies or prayers, or a written art of sacrificing, should deliver all those books and writings to him before the Kalends of April, and that no one should sacrifice by a new or foreign rite in a public or sacred place.” They seem to have presided over the execution of capital matters. Thus Sallust in Catiline and Plautus in the Amphitryon.
§ 10. The Duumvirs of Treason, created by Tullus, afterwards frequently judged treason outside the ordinary order. Labienus, Tribune of the plebs, restored the Magistracy after it had fallen into disuse. Cicero, in his speech for Rabirius, uses Labienus’s own act to excite hatred against the accuser: “The Porcian Law,” he says, “wrested the liberty of citizens from the Lictor; Labienus, a popular man, delivered it to the executioner. Gaius Gracchus carried a law that judgment concerning the life of a Roman citizen should not occur without your command;
this popular man, through the Duumvirs and without your command, compelled a Roman citizen not to be judged, but to be condemned to death without his cause being stated. Do you even make mention to me of the Porcian Law, of Gaius Gracchus, of these men’s liberty, or finally of any popular man—you who attempted not only by unaccustomed punishments but also by the unheard-of cruelty of your words to violate the liberty of this people, test its gentleness, and diminish its discipline?”
It is established from the trial of Rabirius that men of great dignity presided over these judgments, for the Duumvirs at that time were Julius and Lucius Caesar. Rabirius, condemned by them, appealed to the people.
§ 11. Quaestors of Capital Matters were appointed by the people and were called Quaestors, or Inquisitors, of parricide; for whoever killed a human being was called a parricide. These are the words of Numa’s law: “If anyone knowingly and by deceit gives a free human being over to death, let him be a parricide.”
The Five Men judged concerning exile, as Pliny testifies; they were selected from the best Senators. Afterwards it was established that they should be chosen by lot. Thus Honorius and Theodosius. This was nevertheless subsequently changed by other laws, since lot ought not readily to be admitted in so great a business.
§ 12. The Praetor who at Constantinople was called πραίτωρ τῶν δήμων, whom Simocatta calls τὸ θεματικὸν δικαστήν, “Judge of the Theme,” possessed only the functions of judging, as did the Juridicus of Alexandria. Judgments at Constantinople were customarily held at the sacred well of the church of St. Sophia, where a veil was extended. Nicetas, in Alexius, is authority that there were several βήλου (“of the Velum”) Judges. Others think that they were called Judges of the Velum because they judged at the Emperor’s Chamber. The Velarii, however, were those who stood by and guarded the places of the tribunals.
§ 13. The Decemvirs for Judging Lawsuits belonged to the Centumviral Court and convened the centumviral spear. Donatus thinks that they were not from the Hundred Men. Dio, book 54, calls them τοὺς δέκα, τοὺς ἐπὶ τῶν δικαστηρίων, τῶν εἰς τοὺς ἑκατὸν ἄνδρας κληρουμένων—“the ten men placed over the courts, from among those allotted to the Hundred Men.” Suetonius in Octavian says that, among other things, Augustus established “that the Decemvirs should convene the centumviral spear, which men who had discharged the Quaestorship had been accustomed to convene.” The Decemviral and Centumviral Court were therefore altogether the same. Thus Laevinus Torrentius on that passage of Suetonius.
Pomponius, in book 11, On the Origin of Law, relates that the Decemvirs for Judging Lawsuits, who presided over the Centumviral spear, were established at nearly the same time as the Peregrine Praetor was first created, as also were the Monetary and Capital Triumvirs, about year 512 from the foundation of the city. Did Augustus therefore create other men? I certainly do not think so. For they were the same men and, unless I am mistaken, were from the body of the Hundred Men, although they possessed the right to summon the others. The authority of Pomponius proves not only that they existed before Augustus, but so does the very manner of writing the name, since ancient marbles survive even today on which is written “X MEN FOR JUDGING STLITIBUS”; for the ancients said stlocum, stlatum, and stritavum. In the meantime it had happened that men who had discharged the Quaestorship were placed over their office. Augustus abolished this.
Dio, book 54: “For this reason it had previously been decreed, while Augustus was absent, that the Twenty Men should be created from the knights. Hence none of them was enrolled in the Senate without having discharged a Magistracy which furnished entrance into the Senate. Those Twenty Men were drawn from the Twenty-six Men: namely, three Capital Triumvirs, three Monetary Triumvirs, four Curators of the roads in the city, and the Decemvirs for Judging Lawsuits which are to be judged by lot by the Hundred Men. For the two Curators of roads outside the city and the four sent to the Prefectures in Campania had been abolished.”
I judged that these things should be transcribed because I see that nearly the same system of courts has pleased most states. Decemvirs were created every year. Twenty-six Men were created annually and afterwards distributed their offices so that there were Capital Triumvirs, Monetary Triumvirs, Four Men who were Curators of roads, Decemvirs for Judging Lawsuits, Duumvirs of roads outside the city, and Four Men to be sent to the Prefectures of Campania. They were taken from the Senate, and this was the beginning of honors. Augustus created the Twenty Men, omitting the six latter men, and took them from the knights, as Dio says in book 54. Nevertheless, it is established that the office also returned to the sons of Senators. For in Tacitus, Annals 3, Tiberius asks the Fathers that Nero, son of Germanicus, be released from the duty of undertaking the Twenty-man office. That function therefore belonged even to the sons of Princes.
§ 14. This too was provided most wisely: that Judges should render an account in the province. “Let Judges remain fifty days in the province,” chapter 1, title 49: “Let no Governor of Provinces from among the most illustrious men, whether Consular or Corrector, nor those who have merited the insignia of a higher administration—that is, the respectable men, Proconsuls, the Augustal Prefect, the Count of the East, the Vicar of any tract, any Duke or Count of any soldiers, or the Count of the Divine Houses—after a successor has been appointed for him, dare to depart from the places which he is known to have governed before the established number of fifty days is completed. But during that time let Governors, Consulars, and Correctors remain in the metropolis; let respectable Judges, both civil and military, remain publicly in the more illustrious cities of the diocese they administered—not hiding at home, within sacred precincts or regions, or in the houses of powerful persons, but moving in the most frequented places before the faces of all whom they lately governed—so that the free faculty of raising a complaint concerning thefts or crimes may lie open to all.
“Thus, defended from every injury by the provision of the succeeding administrator and by the peril of his office, and no less by that of the Curials and Defender of the City, once he has been summoned into complaint, and entrusted only to an oath-bound security, let him answer those wishing to accuse him according to the law, as has been said. Let no copy of an imperial utterance, codicils offered for another administration, command of your most ample See that he discharge the functions of the governor of another province, command of the aforesaid or of any other civil or military power that he conduct any public solicitude, or that he be produced or led away, grant him any excuse for departing from the province before the appointed time. Finally, let the craftiness of any art and devised cunning of any occasion be excluded, so that what we sanction for the safety of all provinces may by every means obtain its effect. But if anyone, with temerity worthy of punishment, believes that this most salutary law should be circumvented or violated, although he may deservedly be judged guilty even of treason, he shall nevertheless be compelled to pay a fine of fifty pounds of gold into the public accounts. The man who, after undertaking the administration after him, failed to take care that he was honorably detained or immediately to report his flight shall be punished by a similar penalty.”
§ 15. The mute, deaf, and underage are prohibited from judging. I would not prohibit a deaf and mute Prince from the power of judging, since he can sufficiently understand the cause through writings and judge a sentence in writing, except when certain things must be explained by voice. Our forefathers wished the Judge to be without infamy; hence they prohibited a man removed from the Senate from judging unless he had either been restored or the period of his condemnation had elapsed. Book Cum praetor, penultimate section, On Judgments. This golden passage is from Cicero: “For men condemned forever by a disgraceful judgment, there is neither any approach to an honor nor entrance into the Curia.”
If, therefore, anyone has accepted money and given testimony, made an accusation, rendered judgment, or refrained from judgment, bound or did not bind someone, the gates of dignity are closed to him. First: if anyone comes to honors by payment, not by the commendation of his life. A man charged with a crime cannot obtain honors in that year unless he has cleared himself; nevertheless, he does not lose those which he possesses, because he ought not to be condemned unheard. Merchants, especially those dealing in base wares, were formerly prohibited. I have shown elsewhere that this is to be approved in part but not universally, for wealthy and honorable merchants govern many great cities with praise.
§ 16. Gregory of Toulouse, book 47, chapter 10, of the Syntagma, teaches that this is nevertheless greatly to be lamented: men who have gathered money through interest, frauds, and circumventions purchase the offices of states and dignities, from which, again accustomed to profit, they conduct business to the wretched loss of their subjects. If the ancient Romans had admitted this, they would not marvel so greatly that Varro ascended from his father’s butcher-shop to the Consulship and obtained the twelve fasces and the Dictatorship by the most sordid bribery; that Titius Aufidius, formerly a publican of a small part of Asia, afterwards obtained the proconsular dignity of Asia with command; and that Publius Rutilius, who had formerly given service to the publicans in Sicily, when made Consul gave laws to all the Sicilians.
The chief condition of a Judge is that he be skilled in the causes which he judges; I have spoken of this knowledge in book 4. Another condition has been disputed in various laws: that no one should hold a Magistracy or judge in the province in which he was born. The Roman laws concerning this are not consonant with their own state, since at Rome only Romans judged. At one time the same thing seemed good to the French, so that Philip the Fair and Charles V carried a law concerning foreign Judges. It is also said to be customary in the kingdom of Castile; concerning the cities of Italy I have spoken above. Nevertheless, I think good men should be preferred; otherwise Kings and Princes would adopt foreigners for the same reasons—something which God condemned in his own state when he forbade the appointment of a King who was not a brother.
§ 17. The most learned Jurisconsult of Toulouse described the system of Judges in France in book 47, chapter 33, in the following manner. In France, because the idiom of speech is different and the manner of governing the state is different, we do not employ Governors of provinces altogether after the example of the Romans, although in part we agree with the Romans. In it jurisdictions and powers are distinguished according to the nod and will of the Prince. Especially in time of war there are Governors of provinces, whom we call Gouverneurs du pays: such is our Governor of the Tectosages, another of Aquitaine, of Picardy, and the like, who exist in place of Proconsuls. Certain men also, with delegated royal power, are Vicars of the King, whom they also call Viceroys, whose power can be compared with that of Praetorian Prefects. Yet I do not deny that Governors or Rulers also act in the King’s stead in military causes and in the provinces committed to them. Their authority was once great: for they granted pardon and abolition of crimes; ennobled fairs and markets; legitimated persons, or restored them to the rights of birth; and called causes away from ordinary Judges to themselves. All these powers were afterwards taken away and restored to royal power alone by an edict of Louis XII. Today the Governor of Dauphiné grants all offices and can do many things, excepting offices of the Supreme Court of Parlement and indulgences or pardons for crimes.
Those who think that the King’s Lieutenant-General, whom we call Lieutenant general pour sa Majesté, is so called because he is like the Proconsuls are mistaken. For this man, who acts in the King’s stead throughout all the provinces of France, would better be called Master of the Soldiers, such as existed under a Dictator; or Praetorian Prefect under the Emperors; or, in the time of the ancient Kings of the Franks, Meier or Mayor of the Palace: by his authority the whole military operation would be governed; in that power he would be second after the King and greater than the Proconsuls and Governors or Presidents of provinces. Certainly this office too is scarcely granted, nor ought it to be granted, to anyone other than the Prince’s brother or son, or to him who has been designated successor to the government. For there is danger lest the man invested with this dignity, enticed by the sweetness of ruling and seeing himself now armed with every military force, should seize the sovereignty of him whose vicariate he administers. At least so it happened formerly, when the Meieri and Mayors of the Palace of France usurped the government.
This Lieutenant-General of the King is therefore the greater man; he also has under him other Polemarchs of France, whom they call Maréchaux, the first syllables of Polemarch having been cut away. The Governors of provinces are also subject to him, and they have others under themselves, such as Toparchs, that is, Governors of definite places. These were sometimes added contrary to custom before the Senarchies and Bailiwicks, and sometimes Governors are added to a Seneschal and to a Seneschalry, and govern according to the Prince’s will. But the Senarchs are lawful Toparchs and are older there than the particular, supplementary Governors. For the Senarchs are, as it were, the proper and natural Governors of places, to be counted not only among Governors in military cloak but also among Governors in the toga. Thus even Philip VI, surnamed Valois, called them Governors of provinces in a constitution of the year 1344, when he said that, during the hearing of appeals on the ordinary days of their Seneschalry, they ought to be present in the Parlement—“so that,” he says, “their conduct, life, and morals may be manifest, and how worthily the provinces delivered under their governance are governed by them,” and so forth.
For they govern those committed to them by military operation and jurisdiction. In time of war they are the commanders of the nobles of their Toparchy, and the ban and arrière-ban fight under them alone as commanders, according to the Constitution of Henry II of 9 February 1547, article 3—provided that the Toparchs themselves are fit to govern and lead the soldiery. For when they are unfit, one man is selected from the nobles of the Toparchy by decree of the Governor of the province, if there is a Governor; if there is not, he is selected through a man delegated for that cause by the Prince in place of the Seneschal, to lead the ranks in time of military service for the Toparchy. For that reason I once saw at Cahors an assuredly vigorous Toparch or Senescharch complain because a particular Prefect had been made Governor by the Prince in his own Toparchy, as though he thought this a dishonor to himself. The grounds of that controversy even divided the citizens into various opinions and hostilities, so that I fear something more serious later arose from it.
Senarchia or Senescharchia, which by the common name we call a Seneschalry and Bailiwick—and hence Seneschal and Bailli, for Toparch and Prefect—derive their inflection from a single meaning. For Senarchia seems to be named from a compound of the Latin and Greek words senum and ἀρχία, “rule of the elders”; and the Senarchus or Senesarchus is the man placed over this council of elders. Or, if we prefer the whole compound to consist of Greek words, we shall say Cenarchia from the Greek κοινὸν καὶ ἀρχία, that is, “common rule,” as Perionius observed, and the Cenarchus will be called the prince of that administration. Seneschalcia can be said to come from the German idiom, from the words Seken and Schalk: the investigation and inquiry into, or censure of, a most wicked and crafty man, because in that seat judicial proceedings chiefly concern unjust men. Some also say that the old word Sen means justice and scalcus a prefect, and say that senescalci, prefects of justice, come from this; but Lupinus says that this is conjecture. It is also called a Bailliva, as if βουλή, that is, “council.”
For the Prince did not wish to entrust distinguished cities altogether to Toparchs alone without a council of prudent men to sit beside them, just as Severus, according to Spartian in his life, added an order of Decurions to the Juridicus of Alexandria. These Juridici certainly cannot be called Presidents of a province, because they are neither placed over one province nor is there only one Seneschal in the same province: in Aquitaine there are several among the Tectosages and several elsewhere likewise. Nor does the power of a President belong to them, for an appeal is made from them but by no means from Presidents. There also survives a constitution of Charles VI, surnamed the Pious, of the year of the Lord 1138, by which names other than the common ones and that of Provost are prohibited. For thus it provides: “We have willed that the governance of no Seneschalry, Bailiwick, or other judicature be administered under any name other than Seneschal, Bailli, or Provost, just as it was granted in ancient times.” Thus in France provinces have also been divided into these prefectures of places, so that both civil and military matters might be governed more easily, just as Pliny, book 5, chapter 9, relates that the Thebaid in Asia was divided into prefectures of towns which they called nomes.
Proof is supplied by the fact that the original institution of the Senarchs required them to execute their office in person and not employ vicars or Subprefects except because of a grave and necessary absence, according to the Constitution of Charles VII, article 86, in the Constitution of Philip the Fair of 1302. They are also commanded by the Constitution of Charles VI of the year 1388 and by several other Constitutions to be continually present—or, as they say, resident—in the prefecture, just as the necessity of continual presence and residence during juridical days has been imposed on the other established superior and inferior courts dependent upon the Prince, and even upon Senators and Presidents of the Senate. There survives the Constitution of Francis I, Sur la residence des officiers, conseilliers, Presidens, Baillifs, and so forth; also the Constitution of the year 1539, article 129; that of Charles VIII, articles 3 and 77; of Charles VII, article 2; and of Louis XII, articles 23 and 25. Indeed, they cannot even be of the Prince’s council so as to be absent while holding the prefecture, according to the Constitution of Charles VI of 1388.
The Senarchies sometimes have greater and lesser Judges, or Subprefects, if the tract of jurisdiction is somewhat wider and the place populous; they call them Lieutenans et sieges de Seneschaux. But the Subprefects are instituted and appointed by the Prince, not by the Senescharch, and are made not delegated but ordinary Judges, although under the dominion and power of the same Senescharch. Therefore their judgments are pronounced in the Senescharch’s name, and business is transacted in the same name, although he does not judge in person. For the Judges added to him perform the work in this respect, while he by the royal name and power confirms and protects the judgments and orders them to be carried into execution. Therefore Louis XII, in article 48 of his constitution, determined that no one should be placed over the governance of the Prefecture or Subprefecture of the judgments of a Senarchry unless he had obtained the degree of Prolyta or licentiate, or a doctorate, in some famous university.
It was at one time prohibited by Philip the Fair and by Charles V that anyone should become Juridicus in his own native country, as formerly among the Romans in the final law of the Code, On the Office of the Governor of a Province. There are also Constitutions of the Kings which establish the qualification of persons to be appointed and their examination, as well as that of other officials, such as the constitution of Henry II in the years 1547 and 1548. I also omit—perhaps because it has passed out of use—the constitution which forbids the trafficking in or purchase of offices of any greater or lesser court, that of King Charles VIII, article 68, published in the year 1463, with which another of Louis XII, article 40, agrees.
Concerning these courts, Senarchs, and their courts, I think it is sufficiently clear from the common constitutions of the Kings that their competence embraces the affairs of the King’s domain; lawsuits of nobles; the appointment of tutors or curators; the preservation or care of sacred buildings, that they be kept sound and whole; and the examination of privileged crimes, if the matter concerns injured or diminished majesty, public faith violated, armed force, investiture of fiefs to be delivered by vassals to the King, and the execution of obligations made under the binding force of a particular seal according to custom. They also make proclamations of arms, except in the lands of Barons and of others possessing this jurisdiction. They determine concerning the repair of bridges, roads, and walls if the proper Magistrates are negligent; concerning complaints over ecclesiastical benefices; and concerning matters of lordship, which formerly were handled in the Parlements at the first action or first instance, as Imbertus says in book 1 of the Forensic Institutes, section porro, and which they still handle now. They also take cognizance of other matters whose jurisdiction has been granted to them, concerning which the practice and the constitutions of the aforesaid Kings sufficiently admonish us, together with that of Francis V of 16 April 1537, articles 3, 4, 5, 6, 7, and so forth.
Before Senescharchs obtain possession of the prefecture, they are compelled in the Supreme Court of Parlement—from their judgments appeal lies to it—to swear in the prescribed words of this oath established concerning their administration: that they will preserve the right of the King and of the Domain; render to each his own without distinction of persons; accept neither gifts nor presents, nor even hospitality or food, from those committed to them; not permit their wives, servants, or companions to accept them; not burden their subjects; and take care that their own Judges do the same. Therefore, while on fixed days of the year the causes of ordinary appeal from each Senarchry are argued in the Parlement to which appeal lies from them, each Toparch must be present in the courtroom in the causes of his own Bailiwick, ready to render an account of his acts if there is need; to admonish and instruct the royal officers there about the rights of the King and of the Domain of his Senarchry and about abuses of royal officials; to take care that the records of business transacted and of matters pursued by appeal from his Toparchy be brought forward; and to perform other similar things prescribed by Charles VI in the year 1388 and Charles VII in 1453.
The Senarchries did not at one time possess a perpetual office or perpetual administration, nor were their Juridici always permanent, just as the other officials in France were not. Therefore, while holding the administration or office, it was not lawful for them—as is clear from the constitutions of the aforesaid recent Kings and others—to buy, contract, marry a wife, or obtain an ecclesiastical benefice without the Prince’s permission; to have or procure anything for themselves or their people, following the example of those who administered Roman provinces or provincial offices; or to borrow more than twenty pounds. Their juridical assemblies were not fixed as now, but were proclaimed throughout the Toparchy in the more distinguished places; they called them Assises, that is, Sessions, whence Sieges. Thus, following the example of Roman Magistrates, by the Constitution of Charles VI, after laying down the administration of a Senarchry and judicature, they were bound to remain in the Senarchry for fifty days, so that they might stand trial and answer before their successors to bills, petitions, and complaints lodged against them, which were to be judged summarily and without formal pleading.
Moreover, just as the cognizances of the Senarchs are subjected on appeal to examination by the Supreme Court, so there are also certain ordinary Judges from whom an appeal is brought to the Senarchry. For this reason each Senarchry knows its own boundaries. Along with these, in certain cities, there are Vicars whom at Toulouse and elsewhere we call Viguerios, whose jurisdiction, having once been suppressed, revived. In certain places the Viguerius holds concurrent jurisdiction with the Decurions and the Seneschal; he is nevertheless an ordinary Judge of the smallest causes and the smallest crimes. How ridiculously they have erred who think that Viguerii are so called as if they were Vergobreti! For the Vergobretus, according to Julius Caesar, was greater and possessed almost royal authority among the Aedui, from which the Viguerius is very far removed. However greatly the Viguerii enlarge their phylacteries, I think they are so called either from the compound expression Vices gerens, just as in the common idiom we say Vichancelier, Viroy, and Vigerand for Vice-Chancellor, Vicar of the King, and one acting in another’s stead; and that Viguerius should be taken for Vicar of the Seneschal. Thus I am admonished by the constitution of Philip IV, called the Fair, of the year 1302, when it says: “We further will and ordain that no Seneschal, Bailli, or Judge whatsoever shall have a Provost, Viguerius, or Judge bound to him by a bond of consanguinity, affinity, or nature, lest the aforesaid persons judge less faithfully in causes which ought to come to them by appeals.”
In some places those Viguerii say that they are adorned with the custody of citadels, whence those in the places of citadels are called Guardians, Castellans, and sometimes Keepers of the Seal and Provosts, Prevosts. Therefore their jurisdiction must be distinguished according to the nature defined by the Kings and Seneschals. For the most part they take cognizance of the tutorships of those who are not nobles; of suspect tutors and curators; of the dissipation of the food supply; of abuses by innkeepers, hosts, bakers, butchers, apothecaries, retailers, and merchants within the city or their jurisdiction; of agreements and obligations transacted under the binding force of a particular seal; and of other crimes of injuries and invasions, unless a contrary jurisdiction or custom prohibits it. I have elsewhere admonished that custom must be considered in forensic power, lest they transgress the boundaries which their fathers and forebears established and observed.
In most recent times Subprefects in military cloak have also been added to the Senarchs; in some places they call them Lieutenans de Seneschaux de robbe courte. They conduct the apprehension and trials of marauding brigands. Such were the Provosts of the Marshals or Subprefects, but they were called by the name Vice-Seneschals, Viceseneschaux, properly Brigand-catchers. Thus, as times changed, the King’s nod and judgment, according to the need of provincials, changed the names of things and increased or diminished the jurisdictions of Prefects. And so in place of the Governors of provinces permanent Senarchs were made; their Judges in the toga were increased; and permanent βῆλαι, or Councils, were established, as were fixed offices of Judges, conferred with a title by the Prince upon men who would judge in place of the Senarchs themselves and receive fees, armed force having been granted to the Senarchs. Prerogatives were also added to those councils: jurisdictions over all civil matters except the Prince’s domain affairs concerning his waters and forests; deciding finally, without appeal, matters of two hundred and fifty Tours pounds and of five hundred, whose execution they could pursue notwithstanding an appeal, yet without prejudice to it, as is contained in the Constitution of Henry II of March 1551, where their origin is treated.
At one time—τῶν stands here in the print—the highest extent of their jurisdiction was enlarged, when first a new Magistrate was created, called the Presiding President: namely, the first Magistrate in that Toparchical council, who was to preside over the Presidents or Judges introduced there—not, indeed, over the province, for that is utterly false, and under this false pretext certain men rashly arrogate to themselves the name and purple of President of a Province. Nor does the King call them Presidents of a Province, but Presidents and Presidial Judges. For the Presidial Judges, that is, Judges and Councillors, are and were formerly so called who presided over the other seats of the Seneschalry. Nearly every Seneschalry has two or more benches of the same Senarch in different places, but one seat was selected before and above the others to preside over the others by deciding their appeals. Hence those constituted in that seat, which is chief among the others, were called Presidial Judges insofar as they judge the appeals from inferior seats. The same men are also called ordinary Judges insofar as, in the first action and outside the cause of the edict by which appeal is prohibited, they judge those subject to themselves and to their jurisdiction. Therefore the same Judges are called both ordinary in causes outside the edict and Presidial and Superior in causes permitted to this jurisdiction by the edict.
Consequently the Presiding President is appointed there, not to preside over a province—for neither the Presidial Judges themselves nor the Seneschals possess a province, but a part of a province or a diocese—but rather to preside over the Presidial Judges and, in the Seneschal’s absence, to oversee the court committed to him, so that all things are duly done by the Judges according to law. The Senarch, as his Vicar, precedes him in honor. But the President of a province among the Romans had no superior in his province and was first after the Prince. That this man ought to preside over and judge the greater Judge is sufficiently indicated by the name and office. Although I have seen controversies concerning this matter, this is the more just opinion, free from partiality. Nor is it equitable that he who is constituted head of the council should follow a member subject to him, although the wretched ambition of certain Magistrates of this age resists it.
Thus, when the court was augmented by the new Magistrate and the Senarch was in a certain manner consulted, the Presidial jurisdiction grew in the matters which Rebuffus reports in the first volume of the Royal Constitutions, title 12, article 11. Nevertheless, because it afterwards seemed greatly diminished, the authority of the Senates then returned to its origin through the edict of Charles IX held at Moulins in 1566, article 15, and at Paris in March 1568. There were men who thought this office and this excessive jurisdiction superfluous, where so many—namely seven—Supreme Courts of Parlement exist; for the multiplication of Magistrates seems, as they say, to furnish an occasion for litigation. Men who in ordinary proceedings and first actions are compelled to grow old amid pettifoggers and baser business can scarcely become accustomed to Senatorial gravity.
I shall not linger over these matters, however. For at the assemblies at Orléans and Blois and elsewhere the Prince heard his subjects’ petitions on this matter; he will determine, I think, what appears conducive to the state and to the safety of the people committed to him by God, and will spare the treasury, which is nearly exhausted by so many salaries of duplicated offices. For he knows that the state is better governed by a few good men than by many bad men, of whom perhaps the greater part studies its own gain rather than the safety of the state. He understands that the forum ought to be treated so sacredly, as the seat of justice and of God, that plunder should not be sought from the place where plunderers and brigands are to receive the punishment due to their crimes. But thus far these things have been said concerning the provincial Magistrates of France. I omit many things concerning Dukes, Marquises, Counts, Barons, Castellans, and other Juridical Lords of places, because we have already spoken of them in the treatment of fiefs in book 6 of this Syntagma, chapters 7, 8, 9, 10, and 11.
§ 18. There are judgments and men who preside over them which, though variously different, are not dissimilar to the Roman ones. Hence there are Baillis, Castellans, Provosts, auditors of the Châtelet, Presidial Courts, Judges and Consuls of merchants, Inquisitors, Mayors, Schöffen, Secretaries of mandates, and Secretaries of the House of France or of the Chancery. Golden is the constitution of the Novel concerning Judges to be created without payment for influence, which instructs all states in such a way that, if any follows it, it will have made the best provision for itself concerning justice. Many have desired this; few have accomplished it. But let us hear the Novel, Novel 8, Collection 2, title 2, in the preface:
“The thought has therefore occurred to us that by a single common act we should move all those who administer all things in our provinces toward better things. For we believe that this will altogether come to pass if we take care that Governors of peoples—whoever hold the civil administrations of provinces—use clean hands and abstain from every taking, content for these things with those payments alone which are given them by the treasury. This will not happen otherwise unless they themselves also receive their belts without payment, giving absolutely nothing, either on the occasion of payments for influence, or to those who possess the belts, or to anyone else whatsoever.
“For we have considered that, although an excessive source of gain is diminished for the government, nevertheless our subjects will receive the greatest increase if they are preserved unharmed by the Judges; and the government and treasury, enjoying wealthy subjects, will abound. With this one order introduced, there will be a manifold and innumerable abundance of things. Or is it not assuredly manifest to all that the man who gives gold and thus buys an administration does not give only the amount contrived on the occasion of payments for influence, but adds more besides on the occasion of the advantage of the administration, either to those giving it or to those promising it? And so, after one unlawful payment has been given, it is necessary for many hands to surround the man who makes the gift; and perhaps he furnishes this not from his own property but from borrowed money, and, so that he may be able to borrow, suffers loss. He calculates with himself that it is fitting for him to receive from the province so much as will free him from the principal owed, the interest, and the losses incurred for the loan itself. He will also calculate among these things the more lavish expenses suitable both to a Judge and to those about him; and he will also store up for himself a certain profit for the time following, in which perhaps he will not administer.
“Wherefore what is exacted from our subjects will be three times what was given by him—or rather, if the truth must be stated, ten times. From this the treasury too is diminished. For the man who holds the administration, converting to his own advantage the things which ought to have been brought into the treasury by an administration using clean hands, and making the contributor poor for us, charges to us the poverty which is effected through him. And how many impious things of this kind are done because of the opportunity afforded by these thefts! Those holding provincial administrations, looking to this taking, release many guilty men by selling their offense to them; but they condemn many innocent men in order to favor the guilty. This is done not only in pecuniary causes but also in criminal ones, where a life is endangered. Flights therefore occur from the provinces, and all men stream hither groaning—priests, Curials, officials, possessors, peoples, and farmers—justly accusing the thefts and injustices of the Judges. Nor are only these things done: seditions of cities and public disturbances very frequently arise from the cause of money and are quieted by money. Altogether, this one thing is a certain cause of all evils: to accept a payment for influence from Judges is the beginning and end of every wickedness.
“There is also that admirable and true saying of the sacred utterances, that avarice is the mother of all evils, especially when it inheres not in the souls of private men but of Judges. For who will not steal without danger? Who will not commit robbery without liability, while looking to the administration? For seeing that man selling all things for gold and presuming that whatever unlawful thing he does he will redeem by giving money, men think that murder, adultery, invasions, wounds, the rape of virgins, the confusion of commerce, and contempt for the laws and Judges—all these things—have been offered for sale like some cheap slaves. Nor are we sufficient to consider and expound how many terrible evils arise from the theft of provincial Judges, since no one presumes to convict them with confidence, when they openly declare that they have bought their belts,” and so forth.
“Considering all these things among ourselves, taking here also as a partner in counsel our most reverend consort, given to us by God, and communicating the cause to your Highness, and also receiving certain things from your counsel, we have come to this sacred law. By it we ordain that neither any proconsular administration, nor the vicariate hitherto vacant, nor the Countship of the East, nor any other administration whatsoever—neither proconsular nor presidential, which they call consular and corrective—of which the schedule annexed to this our sacred law expressly makes mention, and which alone we determine to place under this law, shall give any payment for influence or any gift for an administration to any Judge, to any of those about the administration, or to another on the occasion of patronage; but that they shall indeed receive administrations gratis, while furnishing only a little on the occasion of those things which are given for the belts and papers. For we have also annexed to this our sacred law a schedule declaring what it belongs to each of our administrations to furnish in our sacred register or in the forum of your Highness on the occasion of codicils or commands, whereby that amount also has been reduced, lest it inflict the greatest loss upon him.”
§ 19. Justinian said that lawsuits must be decided within three years (chapter 3, title 1, On Judgments): “It has seemed good to us, lest lawsuits become almost immortal and exceed the measure of human lives—since our law has already concluded criminal causes within two years, while pecuniary causes are more frequent and they themselves are often known to furnish material for crimes—to establish the present law concerning these matters throughout the whole world, to be confined by no narrowness of places or times. We therefore decree that all lawsuits brought concerning money, of whatever quantity—whether concerning conditions, the right of cities or private persons, possession or ownership, mortgage, servitudes, or certain other causes for which men must litigate with one another, excepting only causes which belong to fiscal law or concern public functions—shall not be drawn beyond the bounds of three years after joinder of issue.
“Rather, all Judges, whether in this nurturing city or in the provinces they administer a greater or lesser administration, whether placed in Magistracies, given from our court, or delegated by our nobles, are not to be permitted to extend lawsuits beyond the space of three years. No one is ignorant that this is especially within judicial power. For if Judges themselves are unwilling, no one is found so audacious as to be able to prolong a lawsuit against the Judge’s will.
“If the plaintiff’s party has been inactive so that the defendant may be wearied by repeated delay, and the bounds of three years after joinder of issue are already approaching their end, so that only six months remain to him, the Judge shall have license to seek the plaintiff through the officers of the matter, with the one party fleeing, the other party charging the plaintiff with absence, and the Judges by every means opening their ears to questions of this kind. If this has followed three times, a period of ten days having been appointed for each appearance, and thus the plaintiff’s party has not been found and has arrived neither in person nor through an instructed procurator, then we decree that the Judge inspect the acts of the case completed before him. If nothing sufficient has been transacted from which a conjecture concerning the determination of a certain cause can be made, we will not only that the fleeing party be released from observance of the trial, but also that the plaintiff be condemned in all expenses customarily expended upon lawsuits, their true quantity to be manifested by the oath of the fleeing party, and that every security which he furnished in writing be returned; and if it remains, it shall be deprived of force.
“But if, from the records which he has before him, although the plaintiff’s party has by no means been found, the Judge can discover a way by which it becomes manifest to him what must be determined, and if he has perceived that the plaintiff possesses the better cause, let him not delay to pronounce sentence for him even though he is absent, and to condemn the defendant who is present in favor of the plaintiff who is absent. Only the expenses of the suit which the defendant shall swear that he lawfully expended are to be excepted from the condemnation, because we impose this penalty upon the plaintiff, even one possessing the better cause, because of the contumacy of his absence alone, preserving absolutely no return for him to the same lawsuit. But let a contumacious plaintiff fall altogether from the lawsuit if the defendant is acquitted.
“But if a condemnation is pronounced against the defendant for the absent plaintiff which the fugitive plaintiff perhaps thinks insufficient for himself, we in no way permit him to revive the same lawsuit, and let this penalty be imposed upon the plaintiff. But if the defendant has been absent and a similar search for him has proceeded, just as we said concerning the person of the plaintiff, even in his absence let judgment by default be undertaken. Let the Judge, according to what was provided by the ancient laws, investigate the cause from the one party with all exactness; and if the defendant is found liable, let him not cease to pronounce condemnation even against the absent man. Let it be carried into effect, and let satisfaction be made to the victor from the property and resources of the fugitive, whether the Judge himself can do this by his jurisdiction or the matter is referred by a report to a higher Judge, and from him a lawful route is opened against the property of the contumacious man. No license to contradict is to be granted to him or to another who puts forward only his person, when the plaintiff is sent into possession of this kind on account of the cause. Nor, if he himself returns and wishes to give sureties and recover possession, is he to be heard; for in cases of this kind we exclude every contradiction from him.”
But now everywhere among the nations lawsuits live much longer. Accordingly, by common consent so many Judges must be appointed that all old lawsuits may be concluded once for all and new ones quickly decided; for now many litigate because they hope that they will leave their lawsuit surviving them.
§ 20. It is of the highest importance that an examination of matters adjudged be instituted; it was customary formerly. They were called Examiners. Those men possessed an almost excessive power and the greatest license for sinning. They were sent into the provinces so that, under whatever title, they might exact and administer matters pertaining to the treasury and make up accounts. The law indeed says, “As often as,” chapter 10, title 30: “If in a dispute it is established that a false examination was completed, and the Examiner shall not be able to prove the truth of the act, let him himself immediately be compelled to pay under the same title and in the same manner in which he wrongly made another a debtor. Given on the day before the Ides of March, Valentinian, Most Noble Boy, and Victor being Consuls.”
Yet by law 4 under the same title he can give security to all: “Let no one be made an Examiner otherwise than by a command of the Prince which makes special mention of an Examiner—not by command of the Prefects, not by instruction of any other Judge; not of civil works or of monies assigned for purchasing grain; not of harbors or of those monies expended upon the construction of aqueducts and walls, the paving of roads, or the building of bridges and embankments; nor of monies assigned to baths or pertaining in any other manner to the civil account. But if the Prince has either sent monies from the treasury for construction of walls or another work, or has found monies left to cities by another, let him once or even more often, when it pleases him, send an Examiner who shall measure the work, calculate the accounts exactly, and report back to him, so that if the expenditures have certainly been made, a sacred security may be drawn up for those who made them, by whose protection neither they nor their heirs or possessors of their goods may afterwards suffer any inquiry. Let a security issued by the Examiner after examination of the accounts be valid and stand in need neither of a sacred receipt nor of any other security whatsoever.” Thus full faith is placed in the Examiner, wherefore he can be delegated by no Governor, but by the Emperor alone.
§ 21. The insignia of Judges—or, as they were called in the Greek Empire, τῶν δικαιοδοτῶν—was the δικανίκιον, a silver-gilt rod, or also ξύλον λεῖον, smooth and polished wood. It was an ancient custom that not only σκηπτοῦχοι, scepter-bearers, were βασιλεῖς, kings, but that δικασπόλοι, ministers of justice, were also Judges; and thus even the Centumvirs conducted judgments after the spear had been set up.