The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, assisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the limits of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.
[Sidenote: Other judges.]
The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence. And as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperatores heard and determined cases, but the number appointed for each case was usually three or five.
[Sidenote: The centumvirs.]
The centumvirs constituted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe, and this tribunal was presided over by the praetor, and divided into four chambers, which, under the republic, was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. [Footnote: Cicero de Orat., i. 38.] The Romans had no class of men like the judges of modern times. The superior magistrates were changed annually, and political duties were mixed with judicial. The evil was partially remedied by the institution of legal assessors, selected from the most learned jurisconsults. Under the empire, the praetors were greatly increased. Under Tiberius, there were sixteen who administered justice, beside the consuls, six ediles, and ten tribunes of the people. The emperor himself became the supreme judge, and he was assisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. The Praetorian prefects, although, at first, their duties were purely military, finally discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.
[Sidenote: Witnesses.]
In all cases brought before the courts, the burden of proof was with the party asserting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted. Pupils, lunatics, infamous persons, interested parties, near relations, and slaves, could not bear evidence, or any person who had a strong enmity against the party. The witnesses were required to give their testimony on oath. Two witnesses were enough to prove a fact, in most instances. When witnesses gave conflicting testimony, the judge regarded those who were worthy of credit rather than numbers. In the English courts, the custom used to be as with the Romans, of refusing testimony from those who were interested, but this has been removed. On the failure of regular proof, the Roman law allowed a party to refer the facts in a civil action to the oath of his adversary.
[Sidenote: Condition of debtors.]
Under the empire every judgment was reduced to writing and signed by the judge, and then entered upon a register. [Footnote: C. vii. 45, 12.] After the sentence, the debtor was allowed thirty days for the payment of his debt, after which he was assigned over to the creditor and kept in chains for sixty days, during which he was publicly exposed for three market days, and if no one released him by paying the debt, he could be sold as a slave. Justinian extended the period to four months for the payment of a judgment debt, after which, if the debt was not paid, the debtor could be imprisoned, but not, as formerly, in the creditor's house. At first the goods of the debtor were sold in favor of any one who offered to pay the largest dividend, but in process of time, the goods of the debtor were sold in detail, and all creditors were paid a ratable dividend. In no respect are modern codes superior to the Roman, so much as in reference to imprisonment for debt. In the United States it has practically ceased, and in England no one can be imprisoned for a debt under 20 pounds, and in France under 8 pounds.
[Sidenote: Appeal.]