Trial by Jury of Roman Origin.

classes were chosen from the body of the Roman citizens; then (4th) were the centumviri, composed of three persons selected from each of the tribes, and these judged matters relating to testaments and inherit ances, and exercised their functions for a year; while the appointment of the judges, selected by the prajtor, expired with the decision of the particular cause. We do not pretend that the trial by jury, as modified and improved upon by succes sive generations, existed at Rome. But it is reasonably certain that we see in the in stitutions of the civil law the germ of this system, and in the authority of some of the judges functions similar to those of juries. From the functions of these Roman judges, the nature of the courts over which they presided and the proceedings in the actions before them, it is possible to trace the origin of jury trial to the civil law. Laws grow great and ennoble themselves like our rivers by running; but follow them upward to their source, 'tis but a little spring, scarcely discernible, that swells thus, and thus forti fies itself by growing old. From the nature of the institution of Roman judges it is inferable that they were composed of various orders; and that it was in the power of litigating parties to choose one or the other of them; that they came from the vicinage of the litigants to aid the pra:tor; and were selected from the different classes of the people. That these judges were inferior to the praetor is proved by the fact that while the prœtor sat on a tribunal, the judices sat on lower seats, called subscllia. The first steps of municipal justice in pri vate disputes consist, on the one hand, in subjecting rude strife to some conventional regulation, and investing the appeal to force in this regulated form to the solemn aid and ideal of trial by combat, thus introducing the conception of legal process; on the other hand, by the occasional intervention of neutral parties or bystanders as arbiters.

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With respect to the latter, the history of the Roman law furnishes an instructive and interesting parallel. " Very far," says Maine, "the most ancient judicial proceeding known to us is the Legis Actio Sacramentis of the Romans, out of which all the later Roman law of actions may be proved to have grown. In early and even in mature Roman life, the judges no more than the priests were a class distinct from the rest of the com munity. These were offices open to the whole body of citizens, and were filled by its most distinguished members, forming their title of honor and highest road to distinction. In the absence of our formal courts of jus tice, every contending claim, as it arose, was referred by the presiding magistrate for the year to the arbitration of one or more citi zens, who, on the facts presented to them, formed their decision, to which the author ity of the magistrate gave the force of law." "In Rome," says Forsyth, "we find a presiding judge who was either the praetor or judex questioiiis specially appointed by him, and a body of judices taken from a particular class, whose duty it was to deter mine the facts of the guilt or innocence of the accused." At the close of the evidence they were said to be inissi in consilitim by the judge, that is, told " to consider their verdict," and to each were given three tab lets marked respectively with the letters A for absolve, С for condemno, and N L for Non Liqiiet, one of which he threw into an urn, and the result of the trial was deter mined by the majority of the letters that appeared. The praetor referred many cases to a single judex; in many instances again they were sent to a number of judices who con stituted a sort of board or jury to look into the merits of the controversy, and under a formula — a brief technical expression of the disputed issues, constructed by the pra;tor — they proceeded to receive the evidence of the witnesses, to hear the arguments of the advocates, and finally to return their