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

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249
OF LAWS.

Book XI.
Chap. 18.
Every year the prætor made a list[1] of such as he chose to discharge the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very near the same as that which is now practised in England. And what was extremely favourable to liberty[2], was the prætor's fixing the judges with the[3] content of the parties. The great number of exceptions that can be made now in England, amounts pretty near to this very custom.

The judges decided only the questions[4] relating to facts; for example, whether a sum of money had been paid or not, whether an act had been committed, or not. But as to questions of[5] right, as they required some sort of capacity, they were always carried before the tribunal of the centumvirs[6].

The kings reserved to themselves the judgment of criminal affairs, and in this they were succeeded by the consuls. It was in consequence of this authority that Brutus the consul put his children and all those who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command, extended the exercise of it even to civil affairs; and their procedures being

  1. Album Judicium.
  2. "Our ancestors, says Cicero pro Cluentio, would not suffer any man, whom the parties had not agreed to, to be judge of the least pecuniary affair, much less of a citizen's reputation."
  3. See in the fragments of the Servilian, Cornelian, and other laws, in what manner these laws appointed judges for the crimes they proposed to punish. They were often by choice, sometimes by lot, or in fine by lot mixt together with choice.
  4. Seneca de Benesic. lib. 3. cap. 7. in fine.
  5. See Quintilian lib. 4. in soL edit of Paris, 1541.
  6. Leg. 2. ff. de Orig. Jur. Magistrates who were called decemvirs pressed in court, the whole under a prætor's direction.
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