last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.[1] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[2] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.
Civil jurisdiction is said to have been based on the king's judgment.[3] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the jus privatum, in so far as he and his pontiffs alone knew the formularies of action,[4] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (judex privatus, arbiter), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into jus and judicium. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.[5] Even in Republican times the judex was chosen by consent of the parties.[6] He was an arbitrator between the litigants agreed to by a mutual compact,[7] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms
- ↑ Provocatio seems to mean a challenge, i.e. a challenge by an accused to a magistrate to appear before another tribunal, on the ground that he is not acting within his own right; cf. Gaius iv. 93 (of the actio per sponsionem) "Provocamus adversarium tali sponsione."
- ↑ "In this conflict of competence the position of the king was far more favourable than that of the people, since the people could only be summoned by the king. Hence the share of the people in criminal jurisdiction was reduced to a minimum" (Ihering Geist des röm. Rechts i. p. 258).
- ↑ "Judiciis regiis" (Cic. de Rep. v. 2, 3).
- ↑ p. 56.
- ↑ Savigny System, vi. p. 287; Bernhöft Staat und Recht der Königszeit p. 230. The idea of its being an innovation has sometimes been associated with Dionysius's description (iv. 25, see p. 62) of a change in jurisdiction introduced by Servius Tullius.
- ↑ Cic. pro Cluent. 43, 120 "Neminem voluerunt majores nostri non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima esse judicem, nisi qui inter adversarios convenisset."
- ↑ Ihering Geist des röm. Rechts i. p. 169.
