Jurisdictional magistrates and courts
As was observed in chapter 2, during the Monarchy the king acted as a supreme judge, a role closely connected with his position as the community's chief priest. The king's jurisdiction co-existed with that of the head of the family (pater familias) who alone, or with the assistance of a family council, decided on matters concerning the affairs of his family.
When a case was brought before the king the latter could seek the assistance of an advisory body composed of members of the senate (consilium),[406] and, if he thought it proper, could appoint delegates to try the case in his stead. But it is unlikely that the king interfered in private disputes, unless he was appealed to by the parties concerned. In such a case the king stated the applicable norm and determined the method which should be used in obtaining evidence and arriving at the verdict.[407] After the evidence had been obtained the king, or a deputy acting in his name, rendered a decision which was then enforced by the winner of the suit. The later division of legal proceedings into two stages, the first before a magistrate (in iure) and the second before a judge (in iudicio, apud iudicem), probably had its origin in this early practice, although it is not clear how it emerged. After the fall of the Monarchy private disputes were dealt with by the consuls or, according to some scholars, by the pontiffs, who determined, on the basis of the applicable law, whether the plaintiff could take legal action and, if so, in what way. After the introduction of the praetorship in 367 BC all private disputes between Roman citizens fell within the jurisdiction of the praetor urbanus whilst, from 242 BC, cases involving disputes between foreigners, or between foreigners and Roman citizens were assigned to the praetor peregrinus. Besides the praetors, the curule aediles exercised limited jurisdiction over disputes arising from transactions in the market place. In very simple cases the praetor usually decided the matter himself {actio extraordinarid). But in most cases, if he decided that legal action was appropriate, he referred the matter to a judge (judex) who conducted the investigation and pronounced the verdict {actio ordinaria). Before the trial the praetor instructed the judge as to the point of law involved and laid down the legal principles on the basis of which the case was to be decided. Moreover, after a verdict had been obtained, it fell upon the praetor to ensure that the court's decision was properly implemented. In carrying out his judicial functions the praetor was often aided by an advisory body {consilium) consisting of jurists and other experts {adsessores, consiliarii).The lay judge who was to conduct the investigation in a civil case {index privatus, iudex unus) was usually nominated by the parties themselves.[408] In case of disagreement he was chosen, with the parties' consent, from the official list of citizens selected to serve as judges in civil and criminal trials which was drawn up every year by the praetor {album iudicum).[409] [410] If the dispute was such that it required, in addition to establishing certain facts, certain technical knowledge, the praetor could appoint an expert as a judge {arbiter) - in this case the trial was referred to as arbitrium. Most civil cases were decided by one judge sitting alone {index unus). But towards the end of the third century BC two courts were established to deal with cases of a more complex nature, the court of the centumviri and that of the decemviri stlitibus iudicandis. These courts were made up of several judges who were chosen by lot from the album iudicum. Both the plaintiff and the defendant were entitled to challenge one or more judges (reiectid) if they had reasons to believe that these would be prejudicial to their case. Moreover a court of at least three judges (recuperatores) was set up to deal with private disputes involving foreigners.[411] [412] [413]
More on the topic Jurisdictional magistrates and courts:
- Courts of other magistrates
- Magistrates’ courts
- The inhabitants of Rome lived with the reality of legal courts scattered throughout the public and private spaces of the city, and perhaps even came to resent, on occasion, the impact such courts made on traffic flow during the busy hours of the day.
- The Edicts of the Magistrates
- 2. EDICTS OF MAGISTRATES
- The criminal jurisdiction of the magistrates
- The edicts of the magistrates
- The edicts of the magistrates
- Other extraordinary magistrates
- Functions of the magistrates
- Republican magistrates
- Categories of Roman magistrates
- County Courts
- The Permanent Jury Courts
- The courts
- Binding precedent in relation to specific courts
- The distinction between types of courts
- The extraordinary courts: quaestiones extraordinariae