Page:Montesquieu - The spirit of laws.djvu/300

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Book XI.
Chap. 18.
litary tribunes, the nomination of whom till then had belonged to the generals; and some time before the first Punic war they decreed that themselves only should have the right[1] of declaring war.

Of the judiciary Power in the Roman Government.

THE judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed; beginning with their civil affairs.

The consuls had[2] the power of judging after the expulsion of the kings, as the præstors were judges after the consuls. Servius Tullius had divested himself of the judgment of civil affairs, which was not resumed by the consuls, except in[3] some very rare cases, for that reason called extraordinary[4]. They were satisfied with naming the judges, and with forming the several tribunals. By a discourse of Apppius Claiudius, in Dionysius[5] Halicarnasseus, it appears, that as early as the 259th year of Rome, this was looked upon as an established custom among the Romans, and it is not tracing it very high to refer it to Servius Tullius.

  1. They extorted it from the senate, says Freinshemius, Dec. 2. Book 6.
  2. There is no manner of doubt but the consuls had the power of judging civil affairs before the creation of the praetors. See Livy Dec. 1. Book 2. p. 10. Dionys. Halicarn. Book 10. p. 627. and the same book p. 645.
  3. The tribunes frequently judged by themselves only, but nothing rendered them more odious, Dionys. Haiicarn. Book 11. p. 709.
  4. Judicia extraardinaria. See the Institutes Book 4.
  5. Book 6. p. 360.