(ex morbo vel causâ sontica, Festus), in which case the day was put off, (DIFFISSUS EST, i. e. prolatus, Gell. xiv. 2.)

If the judge was present, he first took an oath that he would judge according to law, according to the best of his judgment, (EX ANIMI SENTENTIA), Cic. Acad. Q. 47. at the altar, (aram tenens, Cic. Flacc. 36.) called PUTEAL LIBONIS, or Scribonianum, because that place being struck with thunder, (fulmine attactus), had been expiated (procuratus) by Scribonius Libo, who raised over it a stone covering (suggestum lapideum cavum),. the covering of a well, (putei operculum, vel PUTEAL), open at the top, (superne apertum, Festus), in the Forum; near which the tribunal of the prætor used to be, Horat. Sat. ii. 6. v. 35. Ep. i. 19. 8. and where the usurers met, Cic. Sext. 8. Ovid. de Rem. Am. 561. It appears to have been different from the Puteal, under which the whetstone and razor of Attius Navius were deposited, Cic. de Divin. i. 17. in the comitium at the left side of the senate-house, Liv. i. 36.

The Romans in solemn oaths, used to hold a flint-stone in their right hand, saying, SI SCIENS FALLO, TUM ME Diespiter, salVA URBE ARCEQUE, BONIS EJICIAT, UT EGO HUNC LAPIDEM, Festus in LAPIS. Hence Jovem lapidem jurare, for per Jovem et lapidem, Cic. Fam. vii. 1. 12. Liv. xxi. 45. xxii. 53. Gell. i. 21. The formula of taking an oath we have in Plaut. Rud. v. 2. 45. &c. and an account of different forms, Cic. Acad. iv. 47. The most solemn oath of the Romans was by their faith or honour, Dionys. ix. 10. 8. 48. xi. 54.

The judex or judices after having sworn, took their seats in the subsellia, (quasi ad pedes prætoris); whence they were called JUDICES PEDANEI; and SEDERE is often put for COGNOSCERE, to judge, Plin. Ep. v. 1. vi. 33. sedere audiTURUS, Id. vi. 31. SEDERE is also applied to an advocate while not pleading, Plin. Ep. iii. 9. f.

The judex, especially if there was but one, assumed some lawyers to assist him with their counsel, (sibi advocavit, ut in consilio adessent, Cic. Quint. 2. in consilium rogavit, Gell. xiv. 2.) whence they were called CONSILIARII, Suet. Tib. 33. Claud. 12.

If any one of the parties were absent without a just excuse, he was summoned by an edict, (see p. 128.) or lost his cause, Cic. Quint. 6. If the prætor pronounced an unjust decree in the absence of any one, the assistance of the tribunes might be implored, ibid. 20.

If both parties were present, they first were obliged to swear, that they did not carry on the lawsuit from a desire of litiga

tion, (CALUMNIAM JURARE, vel de calumnia), Liv. xxxiii. 49. Cic. Fam. viii. 8.-1. 16. D. jurej. Quod injuratus in codicem referre noluit, sc. quia falsum erat, id jurare in litem non dubitet, i. e. id sibi deberi, jurejurando confirmare, litis obtinendæ causâ, Cic. in Rosc. Com. 1.

Then the advocates were ordered to plead the cause, which they did twice, one after another, in two different methods, Appian. de Bell. Civ. i. p. 663. first briefly, which was called CAUSE CONJECTIO, qua si causæ in breve COACTIO, Ascon. in Cic. and then in a formal oration, (justâ oratione perorabant, Gell. xvii. 2.) they explained the state of the cause, and proved their own charge (actionem) or defence (inficiationem vel exceptionem), by witnesses and writings, (testibus et tabulis), and by arguments drawn from the case itself, (ex ipsa re deductis) Cic. pro P. Quinct. et Rosc. Com.-Gell. xiv. 2. and here the orator chief ly displayed his art, Cic. de Orat. ii. 42. 43. 44. 79. 81. To prevent them, however, from being too tedious, (ne in immensum evagarentur), it was ordained by the Pompeian law, in imitation of the Greeks, that they should speak by an hour-glass, (ut ad CLEPSYDRAM dicerent, i. e. vas vitreum, graciliter fistulatum, in fundo cujus erat foramen, unde aqua gultatim efflueret, atque ita tempus metiretur; a water-glass, somewhat like our sand-glasses, Cic. de Orat. iii. 34). How many hours were to be allowed to each advocate, was left to the judices to determine, Cic. Quint. 9. Plin. Ep. i. 20. iv. 9. ii. 11. 14. i. 23. vi. 2. 5. Dial. de Caus. Corr. Elop. 38. These glasses were also used in the army, Veget. iii. 8. Cæs. de Bell. G. v. 13: Hence dare vel petere plurus clepsydras, to ask more time to speak: Quoties judico, quantum quis plurimum postulat aquæ do, I give the advocates as much time as they require, Plin. Ep. vi. 2. The clepsydra were of a different length; sometimes three of them in an hour, Plin. Ep.

ii. 11.

The advocate sometimes had a person by him to suggest (qui subjiceret) what he should say, who was called MINISTRATOR, Cic. de Orat. ii. 75. Flacc. 22. A forward noisy speaker was called RABULA, (a rabie, quasi LATRATOR), vel proclamator, a brawler or wrangler, Cic. de Orat. i. 46.

Under the emperors advocates used to keep persons in pay, (conducti et redempti MANCIPES), to procure for them an audience, or to collect hearers, (coronam colligere, auditores v. audituros corrogare), who attended them from court to court, (ex judicio in judicium), and applauded them, while they were pleading, as a man who stood in the middle of them gave the word, (quum HECOXOCOS dedit signum). Each of them for this service receivedhis dole, (sportula) or a certain hire, (par merces, usually three

2.

denarii, near 2s. sterling); bence they were called LAUDICANI, i. e. qui ob cœnam laudabant. This custom was introduced by one Largius Licinius, who flourished under Nero and Vespasian; and is greatly ridiculed by Pliny, Ep. ii. 14. See also, vi. When a client gained his cause, he used to fix a garland of green palm (virides palma) at his lawyer's door, Juvenal. vii. 118. When the judges heard the parties, they were said iis OPERAM DARE, l. 18. pr. D. de judic. How inattentive they sometimes were, we learn from Macrobius, Saturnal. ii. 12.

THE

VII. The MANNER of giving JUDGMENT.

HE pleadings being ended, (causâ utrinque peroratâ), judgment was given after mid-day, according to the law of the Twelve Tables, POST MERIDIEM PRESENTI, (etiamsi unus tantùm præsens sit,) LITEM ADDICITO, i. e. decidito, Gell. 17. 2.

If there was any difficulty in the cause, the judge sometimes took time to consider it, diem diffindi, i. e. differri jussit, UT AMPLIUS DELIBERARET (Ter. Phorm. ii. 4. 17.) if, after all, he remained uncertain, he said, (dixit vel juravit), MIHI NON LIQUET, I am not clear, Gell. xiv. 2. And thus the affair was either left undetermined (injudicata), Gell. v. 10. or the cause was again resumed, (secunda actio instituta est,) Cic. Cæcin. 2.

If there were several judges, judgment was given according to the opinion of the majority, sententia lata est de plurium sententia); but it was necessary that they should be all present. If their opinions were equal, it was left to the prætor to determine, l. 28. 36. & 38. D. de re jud. The judge commonly retired, (secessit,) with his assessors, to deliberate on the case, and pronounced judgment according to their opinion, (ex consilii sententiâ), Plin. Ep. v. 1. vi. 31.

The sentence was variously expressed; in an action of freedom, thus, VIDERI SIBI HUNC HOMINEM LIBERUM ; in an action of injuries, VIDERI JURE FECisse vel non fecISSE; in actions of contracts, if the cause was given in favour of the plaintiff, TITIUM SEIO CENTUM CONDEMNO; if in favour of the defendant, SECUNDUM ILLUM LITEM DO, Val. Max. ii. 8. 2.

An arbiter gave judgment, (arbitrium pronunciavit) thus; ARBITROR TE HOC MODO SATISFACERE ACTORI DEBERE: If the defendant did not submit to his decision, then the arbiter ordered the plaintiff to declare upon oath, at how much he estimated his damages, (quanti litem æstimaret), and then he passed sentence, (sententiam tulit), and condemned the defendant to pay him that sum; thus, CENTUM DE QUIBUS ACTOR IN LITEM JURAVIT, Redde, 1. 18. D. de dolo malo.

VIII. What followed, after JUDGMENT was given.

AFTER judgment was given, and the lawsuit was determined, (lite dijudicata), the conquered party was obliged to do or pay what was decreed, (JUDICATUM FACERE vel SOLVERE); and if he failed, or did not find securities, (sponsores vel vindices), within thirty days, he was given up, (JUDICATUS, i. e. damnatus et ADDICTUS est), by the prætor to his adversary, (to which custom Horace alludes, Od. iii. 3. 23.) and led away (ABDUCTUS) by him to servitude, Cic. Flacc. 19. Liv. vi. 14. 34. &c. Plaut. Pœn. iii. 3. 94. Asin. v. 2. 87. Gell. xx. 1. These thirty days are called in the Twelve Tables, DIES JUSTI; REBUS JURE JUDI

CATIS, XXX. DIES JUSTI SUNTO, POst deinde MANUS INJECTIO ESTO,

IN JUS DUCITO. See p. 58.

After sentence was passed, the matter could not be altered; hence agere ACTUM, to labour in vain, Cic. Amic. 22. Attic. ix. 18. Ter. Phorm. ii. 2. 72. Actum est; acta est res; perii, all is over, I am undone, Ter. Andr. iii. 1. 7. Adelph. iii. 2. 7. Cic. Fam. xiv. 3. Actum est de me, I am ruined, Plaut. Pseud. i. 1. 83. De Servio actum rati, that all was over with Servius; that he was slain, Liv. i. 47. So Suet. Ner. 42. Actum (i. e. ratum) habebo quod egeris, Cic. Tusc. iii. 21.

In certain cases, especially when any mistake or fraud had been committed, the prætor reversed the sentence of the judges, (rem judicatam rescidit), in which case he was said damnatos IN INTEGRUM RESTITUERE, Cic. Verr. v. 6. Cluent. 36. Ter. Phorm. ii. 4. 11. or JUDICIA RESTITUERE, Cic. Verr. ii. 28.

After the cause was decided, the defendant, when acquitted, might bring an action against the plaintiff for false accusation, (ACTOREM CALUMNIE POSTULARE), Cic. pro Cluent. 31. Hence CALUMNIA litium, i. e. lites per calumniam intenta, unjust lawsuits, Cic. Mil. 27. Calumniarum metum injicere, of false accusations, Suet. Cæs. 20. Vitel. 7. Domit. 9. Ferre calumniam, i. e. calumniæ convictum esse, vel calumniæ damnari aut de calumnia, Cic. Fam. viii. 8. Gell. xiv. 2. Calumniam non effugiet, he will not fail to be condemned for false accusation, Cic. Cluent. 59.Injuriæ existunt CALUMNIA, i. e. callidâ et malitiosâ juris interpretatione, Cic. Off. i. 10. CALUMNIA timoris, the misrepresentation of fear, which always imagines things worse than they are, Fam. vi. 7. Calumnia religionis, a false pretext of, ibid. i. 1. calumnia dicendi, speaking to waste the time, Att. iv. 3. CALUMNIA paucorum, detraction, Sall. Cat. 30. Cic. Acad. iv. 1. So CALUMNIARI, falsam litem intendere, et calumniator, &c.

There was also an action against a judge, if he was suspected

of having taken money from either of the parties, or to have wilfully given wrong judgment (dolo malo vel imperitia). Corruption in a judge was, by a law of the Twelve Tables, punished with death, but afterwards as a crime of extortion, (repetundarum).

If a judge from partiality or enmity (gratiâ vel inimicitiâ), evidently favoured either of the parties, he was said LITEM SUAM FACERE, Ulpian. Gell. x. 1. Cicero applies this phrase to an advocate too keenly interested for his client, de Orat. ii. 75.

In certain causes the assistance of the tribunes was asked, (TRIBUNI APPELLABANTUR), Cic. Quint. 7. 20.

As there was an appeal (APPELLATIO) from an inferior to a superior magistrate, Liv. iii. 56. so also from one court or judge to another, (ab inferiore ad superius tribunal, vel ex minore ad majorem judicem, prætextu iniqui gravaminis, of a grievance, vel injusta sententia), Ulpian. The appeal was said ADMITTI, REcipi, non recipi, REPUDIARI: He to whom the appeal was made, was said DE vel EX APPELLATIONE COGNOSCERE, JUDICARE, SENTENTIAM DICERE, PRONUNCIARE APPELLATIONEM JUSTAM vel INJUS

TAM ESSE.

After the subversion of the republic, a final appeal was made to the emperor, both in civil and criminal affairs, Suet. Aug. 33. Dio. lii. 33. Act. Apost. xxv. 11. as formerly (PROVOCATIO) to the people in criminal trials, Suet. Cæs. 12.

At first this might be done freely, (antea vacuum id solutumque pœnâ fuerat), but afterwards under a certain penalty, Tacit. Annal. xvi. 28. Caligula prohibited any appeal to him, (magistratibus liberam jurisdictionem, et sine sui provacatione concessit,) Suet. Cal. 16. Nero ordered all appeals to be made from private judges to the senate, Suet. Ner. 17. and under the same penalty as to the emperor, (ut ejusdem pecuniæ periculum facerent, cujus ii, qui imperatorem appellavere), Tacit. ibid. So Hadrian, Digest. xliv. 2. 2. Even the emperor might be requested, by a petition (LIBELLO) to review his own decree, (SENTENTIAM SUAM RETRACTARE).

II. CRIMINAL TRIALS, (PUBLICA JUDICIA.)

CRI

RIMINAL Trials were at first held (exercebantur) by the kings, Dionys. ii. 14. with the assistance of a council, (cum consilio), Liv. i. 49. The king judged of great crimes himself, and left smaller crimes to the judgment of the senators.

Tullus Hostilius appointed two persons (DUUMVIRI) to try Horatius for killing his sister, (qui Horatio perduellionem judicarent), and allowed an appeal from their sentence to the people,