Page:Montesquieu - The spirit of laws.djvu/301

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OF LAWS. 249

Every year the praetor made a lift * of fuch as B K he chofe to difcharge the office of judges during his c t ap. ,^ magiftracy. A fufficient number was pitched upon for each caufe ; a cuftom very near the fame as that which is now practifed in England. And what was extremely favourable to liberty j, was the pr?etor s fixing the judges with the J content of the parties. The great number of exceptions that can be made now in England, amounts precty near to this very cuftom.

The judges decided only the queftions ( a ) re- () Seneca lating to facts ; for example, whether a fum of <leBenefic - money had been paid or not, whether an act had ,! fajgJi been committed, or not. But as to queftions of ( b ) ( b ) See

j^\ * * i *

right, as they required fome fort of capacity, they H^ were always carried before the tribunal of the cen- 54. in fol. tumvirs [|. edit of

f)

The kings referved to themfelves the judgment ,.,, of criminal affairs, and in this they were fucceeded by the confuls. It was in confequence of this authority that Brutus the conful put his children and all thofe who were concerned in the Tar- quinian confpiracy to death. This was an exorbi tant power. The confuls already inverted with the military command, extended the exercife of it even to civil affairs ; and their procedures being

  • Album "Judicium.

\ " Our anceftors, fays Cicero fro Cluentio, would not fuffer " any man, whom the parties had not agreed to, to be judge of " the leaft pecuniary affair, much lefs of a citizen s reputation."

See in the fragments of the Servilian, Cornelian, and other laws, in what manner thefe laws appointed judges for the crimes they propofed to punifh. They were often by choice, fometimes by lot, or in fine by lot mixt together with choice.

|j Leg. 2. Jf. dc Orig. Jur. Magi/bates who were called de- Ccmvirs prefrded in court, the whole under a praetor s diredHon.

ftripped

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