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with the remark that "the most celebrated system of jurisprudence known to the world begins, as it ends, with a code." In theory the Roman system descended from the Twelve Tables, and the principles embodied in them were considered the source of all later Roman law. These tables were the most famous specimen of ancient codes, and their promulgation, about 450 B. C. marks an important epoch in the progress of Roman civilization. The principles of substantive law, as well as the rules of practice stated in them, are probably merely the enunciation in words of the existing customs of the Roman people. Those customs, thus crystalized in written law, have, in many instances, been preserved, and we find them, after nearly twenty-four centuries, stated in modern law in almost, if not quite, the identical language used by the early Roman compilers. The Romans steadfastly maintained the integrity of their judicial system, and firmly resisted all attempts to amalgamate with other systems. Their law readily adjusted itself to the internal changes that were constantly at work in Rome. "It was by a judicious mixture of the permanent or conservative, and the progressive reformatory spirit, that she was enabled to establish and frame laws that in time gave her the empire of

the world."

The absolute sovereignty of the State is so clearly recognized and so freely conceded in modern times, that it is difficult for us to comprehend the condition of society in the early Roman period, when even the authority of the State to bring an alleged wrongdoer before its tribunal was denied. Even at the time of the Twelve Tables the State did not as yet claim to decide civil disputes, and only assumed to furnish arbitrators, to whom controversies might be submitted for decision.

The first three of the Twelve Tables cover the early law of procedure, embracing proceedings prelimiminary to trial, including the commencement of the action, the trial itself and the execution. These ancient actions were of a rude sort, and were not commenced by the service of a written summons, as in later times; but the complainant summoned the defendant before the magistrate, and if he refused to go, the complainant might take him by force, or "by the neck "; afterwards the complainant summoned the defendant, by touching his ear, before the magistrate who had jurisdiction. The magistrate was sort of umpire, whose duty it was to see fair play, and the use of force was sanctioned to bring an alleged wrongdoer before the tribunal, Mr. Hunter, in his work on Roman Law, says that the development of the subject of procedure in Rome marks three distinct stages.

a

time the summons is a private act of the complainant, and disobedience to the summons is not an offense against the law. The whole length that the Twelve Tables go, is to legalize the exercise of force by a complainant to drag an unwilling defendant before the court.

"Second, the Edict of the Prætors. The summons is still the private act of the complainant, but disobedience is made a wrong, and the principle is now established that it is the duty of a citizen to be ready to answer in the courts of justice any complaint brought against him.

"Third, the Imperial Constitutions. The summons is issued on the application of a complainant by officers of a courr of justice. This change was also made the means of giving notice to the person sued, of the wrong alleged to be done by him."

The procedure under these three divisions is in many respects very like the procedure of to-day. Many of the forms and methods adopted and instituted by Justinian are still preserved in our prac

tice.

The early mode of summons "continued down to the golden age of literature, and the classical age of jurisprudence." If he were able, the defendant could resist arrest without exposing himself to any danger of punishment, and the complainant could not use force to take him before the magistrate, unless his refusal to go was in the presence of witnesses. The prætor changed this rule by making it an offense for a person duly summoned to refuse to obey, and a plea to the jurisdiction of the court could be listened to only before the court itself.

It seems that even in this primitive period the defendant sometimes kept out of the way to avoid a summons, and the Twelve Tables provided no remedy for such a case. This was, doubtless, due to the peculiar attitude of the law, which recog nized no litigants until they were actually in court, and invoked the interference of the magistrate. Another reason why a complainant had no remedy against the defendant who kept himself concealed, probably was that the early Roman law did not assume to seize the defendant's property, but only to punish him personally. The prætor introduced execution against property, and inserted in his edict

a notice to the effect that if a defendant concealed himself to evade the summons, he would order his The next step was a goods to be seized and sold. public summons, which, in the reign of Justinian, became an act of public authority, and gave the defendant formal notice of the claim made against

him.

By the Twelve Tables a judgment debtor was given thirty days to pay the judgment, and after

that time he could be arrested and taken before

"First, the law of the Twelve Tables. At this the magistrate; and, upon failure to pay the debt,

could be kept in bond sixty days. After a certain period a judgment debtor might be sold beyond the Tiber, or punished with death, and his creditors were permitted to cut out their several portions of his body. From this method of collecting judgments by execution against the person, there was a natural transition to execution by the sale of the "universal succession" of a debtor, and last of all by the sale of particular pieces of property. When the Romans finally resorted to the property of the judgment debtor for the collection of the judgment, the practice was instituted, which has come down to our day, of taking first the personal property before resorting to the land, and the sale was conducted by officers of the court.

Another peculiarity of the early Roman procedure was that it required the actual presence of the parties. No attorney or agent was admitted, and only a Roman citizen could take part in actions. Aliens dwelling in Rome were wholly shut off. The length of time given to the defendant to answer a summons was at first five days, afterwards ten days, and it was finally established by Justinian at twenty days, which is the present rule in our courts of record.

The early Roman law contained no provision for costs; in the "sacramentum" each party deposited a "stake," which went, however, not to the winner, but to the State, to pay the expenses of the court, and it was only by a very slow development that the Romans arrived at a system which recognized the principle so familiar to us, that a person who makes an unjust claim, or resists a just claim, is regarded as inflicting a distinct wrong, and is bound to make compensation, the measure of which is well described by the term "costs." In A. D. 530, Justinian enacted that the defeated litigant should pay costs to the victor, according to established allowance, and if the judges neglected to impose costs they could be compelled to pay the costs

themselves.

In the early days the Roman magistrates were independent of each other, representing theoretically the sovereign power of the people; consequently there were no appeals from their judgments; but as the system developed, an appellate tribunal was provided, and appeals were allowed. Costs on appeal were in the discretion of the court. So much of the later Roman law has become a part of modern systems of jurisprudence, and is therefore so familiar to the modern lawyer, that it is unnecessary at this time to discuss other important features, such as evidence, equity, special proceedings, real and personal actions, and damages. The purpose of this sketch is to show the pioneer conditions of procedure, rather than law in its maturer form; and it is important to remember that the

Twelve Tables did not contain all the law, but that there was a body of customary law, in part unwritten, which was not abrogated, but was evaded or amplified by persons acting under the ideas of later times; "using, however, the Twelve Tables as a firm foundation for the structure of private law." In the great development of Roman law, from the Twelve Tables to the institutes of Justinian (A. D. 533), there was a remarkable change in arrangement and classification. In the Twelve Tables procedure stands first, while in the Institutes it comes last. Substantive law takes precedence in the later classification, and the principle is recognized that procedure is only a means to an end. It is also worth while to remember that the Romans understood and applied the essential features of jury trial. There were "judges of the law" and also "judges of the facts, who answered to our jurors, and it was a fundamental principle of Roman law that no citizen could be condemned except upon the judgment of his fellow citizens, or his "peers."

Trial by jury is not an institution of exclusively English origin. The essential principle of the jury, which involves the selection of judges unknown beforehand, from a particular body, with the power of deciding within certain limitations, and under the direction of certain rules, on questions of fact, is to be found in the institutions of many other countries already noted. It was a peculiar characteristic of the laws of the northern barbarians, and was the cornerstone of the Athenian constitution, whence it was probably borrowed by the Romans; and during the middle and later period of Roman law, the suitor was entitled to submit his cause to judges of the facts, drawn by lot from annual lists prepared for that purpose. The functions of the magistrate and of the judex were kept almost entirely apart. For many centuries the Senators alone were judges, but afterwards this power was transferred to the Knights. After a series of contests the right was shared by the two orders, and extended to persons even of inferior rank; so that the 300 of the Senatorial times had become 4,000 by the time of Augustus, Although several centuries later, this body quite strongly resembled the Greek dicastery, for which a list of 5,000 names was prepared, divided into ten sections. Cases involving the rights of foreigners were at first determined by a tribunal, composed of three or more persons, called "recuperatores," acting as jurors, which at a later period had jurisdiction in cases between citizens.

We possess very little reliable knowledge of the laws and customs of the ancient Britons. The conquest of Britain by the Romans about 55 B. C. and their occupancy for five centuries, necessarily im

pressed the Roman system upon the early institutions of that country, notwithstanding the general rule of Roman policy to leave the legal systems of conquered nations undisturbed as far as practicable -imposing only such part of Roman law as the exigencies of government might seem to demand but the presence of a superior civilization in early Britain could hardly fail to have its effect in modifying legal institutions. This effect was not wholly destroyed by the later Danish and Saxon invasions. Traditional laws naturally suffer insensible variations in practice, so that while it is easier to

discover the differences between an ancient and a

modern usage, it is impossible, as Sir William Blackstone points out, to define the precise time at which the alteration accrued before the period of

written law.

weeks.

The great tribunal among the Saxons for civil business was the county court, held once every four Here the sheriff presided, but the suitors of the court, as they were called, that is, freemen or landowners of the county, were the judges, and the sheriff was to execute the judgment, assisted, if need be, by the bishop. "In this county court the people formed a sort of tribunal composed of the neighbors, who heard the testimony of the witnesses and settled the disputes among themselves by discussion, or perhaps by acclamation, somewhat like the Athenian dicasteries, without any form of regular justice or the rules of a legal tribunal. It was a mere rough arbitration by the neighbors, and gradually gave place to a more orderly system." The Saxons introduced into early English institutions a spirit of freedom and equity that has never wholly departed from them. We derived from these barbarians a spirit of freedom, infusing life and vigor and energy into all their institutions, and their broad principles of popular government and especially their popular courts, cultivated a spirit of freedom which was the foundation of our modern institutions. As originally organized, the only jurisdiction the king had in the county court was to issue a writ, requiring the sheriff to hear the case; and the king took no other part in the administration of the law. The first step in improvement was the appointment by the crown of a special justiciary to hoid the county court. By a later development all judicial proceedings were commenced by the "King's writ." This grew out of the idea that the king was the source and fountain of justice, and was perhaps a direct result of the feudal system, by which the king was recognized as the paramount lord, and he had sole authority to appoint judges, who acted in his place in the administration of justice. Out of this practice, and from this theory, developed the notion of sovereign or superior tribunals, to which ap peals could be brought from inferior courts.

An examination of the English system of trial by jury shows that jurors were at first witnesses, and that the development of the system to its present condition was very slow. No one was competent to sit as a juror, unless he had some knowledge of the facts, and if upon being summoned the jurors made oath that they had no such knowledge, they were rejected and others were summoned in their places and it took centuries to develop the idea of trying questions of fact before a jury upon evidence, and before men who knew nothing of the facts, but decided the controversy upon the testimony of witnesses; and yet trial by jury involves the essential duty of "deciding upon contradictory testimony and discriminating the balance of credibility." The old practice of arbitration, originating with the Saxon county court, was still retained, even after trial by jury was well established. The old rule of trying cases before a jury "from the vicinage," has come down to us, and is so firmly established that it is not likely to be soon disturbed, for it is based upon the familiar principle that the matter in dispute should be tried where it arose, by neighbors of the parties, with such knowledge of them and of the subject matter as might either assist them in forming a correct judgment, or serve to test the credibility of the witnesses brought before them.

The popular character of the administration of justice among the Goths was particularly noticeable in the early Swedish tribunals. The defendant had five days from the summons to the trial, and on the fifth day the complainant and defendant met at the village assembly, which was held in the open air, and before the trial commenced each party "abjured all falsehood and deceit." Afterwards this simple system gave way to a more regular and technical form, and the country was divided into districts, in each of which was appointed a law-man" and a jury of twelve men.

The early Irish or Brehon law illustrates the weakness of the State, and the imperfect conception of its authority in matters of private litigation, already noted. The complainant seized the property of the defendant by a violent "distress," and the judicial power was exercised to compel the defendant to give satisfaction to the complainant as a condition of receiving the aid of the court in restoring his property. The aid of the court was invoked, not to begin the litigation, but to settle a quarrel already going on.

We also find here a custom, which was still more firmly established among the Hindus, of invoking the aid of religion to compel debtors to discharge their obligations. This was only another form of "Distress."

Many codes were adopted during the Middle Ages, several of which were based upon Roman law,

modified by local customs; but judicial procedure had become tolerably well-settled, and the history of its development during this period is not within the province of this sketch; but we cannot fail to observe that the administrative tribunals of the European barbarians were popular, as distinguished from the early Roman system, in which the magistrate was the sole dispenser of justice. In these popular forms, founded not upon law, but upon custom anterior to the date of law, consisted the proverbial freedom of the Gothic people, which we have received as an Anglo-Saxon inheritance.

nation of the New York procedure, that our present method of commencing actions in courts of record is based upon the early Roman custom.

(Continued in next issue.)

Abstracts of Recent Decisions.

ADMIRALTY MARITIME

LIENS

AND

WAIVER. A

ADMIRALTY-MARITIME LIENS-SUPPLIES MATERIALS.—Persons having the entire possession of a vessel, under a contract of purchase, and using her for the transportation of merchandise and pasMr. Smith, in his essay on the "Assize of Jeru- sengers, are to be regarded as her owners, so that salem," says that it was the most important code of the port of their residence will be her home port, the Middle Ages; and that it was a body of laws com- notwithstanding that, by the contract of sale, title posed for the use of a new kingdom destitute of was not to pass until full payment of the purchase customary and traditional authority, full, minute money, and that the vessel was still enrolled at the and complete, defining every franchise and estab-port of the sellers. (The Shrewsbury, U. S. D. C. lishing by special enactment the nature and juris- | [Ohio], 69 Fed. Rep. 1017.) diction of the courts. He points out that it was partly borrowed from Rome, partly founded on pre-maritime lien is waived by accepting notes or other scriptive society, and embodied in large part the securities extending the time of payment beyond the customs of France. It exhibits the manner in time within which, by the general maritime law or which the personal laws introduced by Gothic conby statute, the lienor is allowed to enforce the quests have become amalgamated with the civil law, lien. (The Nebraska, U. S. C. C. of App., 69 Fed. and shows the gradual assimilation of public law Rep. 1009.) in France to the principles of Roman jurisprudence. It was compiled by Godfrey of Bouillon, first King of Jerusalem, after its conquest by the Crusaders, at the beginning of the twelfth century. It embraced a complete scheme for the administration of justice, with judges and jury composed of twelve men, substantially on the English model.

Arbitration in some form seems to have been the earliest method of settling disputes, and was probably the basis of actual judicial procedure. Later, litigants attempted to settle controversies in their own way, and the State only interfered to keep the peace. By a still later development the State assumed jurisdiction at the outset of a controversy, by requiring its permission to begin a suit, and there is a striking similarity in the practice in this respect in different nations widely separated, as the Swedish Goths, the Greeks and the Hindus. In all these widely distant nations, almost at the dawn of judicial history, the complainant was required to obtain the permission of the tribunal, by a sort of ex parte motion, for leave to begin a suit, and he was obliged to satisfy the magistrates that he had a just cause of action before the defendant could be summoned or brought into court.

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CONSTITUTIONAL LAW-JURISDICTION OF FEDERAL COURTS.- The equity of jurisdiction of the Federal courts cannot take cognizance of a suit by a colored person, on behalf of himself and others similarly situated, against the officers of the State of which he and such others are citizens, to retain such officers from acting under a statute of that State, claimed to violate Amend. Const. U. S., articles 14, 15, by abridging or denying his right to vote, since he has an adequate remedy at law. (Gowdy v. Green, U. S. C. C. [S. Car.], 69 Fed. Rep. 865.)

CRIMINAL PRACTICE-INDICTMENT-JOINDER OF OFFENSES.- Under Rev. St., § 1024, providing that where there are several charges against a person for the same act, or for two or more acts connected together, or for two or more acts of the same class of crimes, which may be properly joined, the whole may be joined in one indictment in separate counts, an indictment may contain a count under sectiou 5456 referring to the felonious taking away by any one of anything belonging to the United States, from any place, and a count under section 5460, referring to the felonious taking and embezzlement of the metals at the United States mint by a person to whose charge they were committed; and it is immaterial that one might be classed as larceny, and the other as embezzlement, or that the punishment is different. (United States v. Jones, U. S. D. C. [Nev.], 69 Fed. Rep. 973.)

JURISDICTION

PUBLIC

LAND.

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EQUITY Equity has jurisdiction of a bill brought by the United States, as trustee for the Indians to whom lands have beeen allotted in severalty, pursuant to the treaties and acts of congress providing that the United States will hold the land so allotted in trust for the benefit of the allottees, against persons who have illegally secured leases of such lands and taken possession thereof,- such bill seeking to oust such intruders, and to restrain them from inducing the Indians to make further leases, and from interfering with the Indian agent in the performance of his duties, since the remedy by action of ejectment, even if such action could be maintained, would be inadequate. (United States v. Flournoy Live Stock & Real Estate Co., U. S. C. C. [Neb.], 69 Fed. Rep. 886.

EQUITY-JURISDICTION.-Complainant, the holder of a judgment against a drainage district of Illinois, recovered upon its bonds and coupons, brought suit against the district and the commissioners and treasurer thereof, alleging that the commissioners | had collected assessments, and failed to apply them on complainant's judgment; that they had received in payment of assessments coupons cut from bonds held by parties who had consented to a compromise agreement, and bought below par, and that the commissioners were chargeable with considerable sums collected, this allegation being based on the theory that coupons re-received for taxes were to be treated as cash. The bill prayed that the commissioners be held personally responsible for taxes discharged under their direction, and enjoined from receiving anything but money for taxes: Held, that the bill should be dismissed, since, if there was any personal liability of the commissioners, there was an adequate remedy at law, and that, for the failure to collect the taxes in money, the remedy was mandamus. (Coquard v. Indian Grave Drain

also raised whether the case was one of equitable cognizance, the court would take jurisdiction, and, being of opinion that the case was not of equity cognizance, would dissolve the injunction, and order the bill dismissed. (Green v. Mills, U. S. C. C. of App., 69 Fed. Rep. 852.)

AUTHORITY TO SIGN

PRINCIPAL AND AGENT NOTES. The G Co., a manufacturing and trading corporation located in Ohio, had a branch in Missouri, which was conducted by onc D, as general agent and manager, and at which a large business was carried on, in the purchase and working up of raw material, and the sale of the finished product over a large territory. D was left in full control of all departments of this business conducted in Missouri and managed all its affairs, financial and other, with the knowledge and consent of the officers of the G Co., and generally without directions or oversight by them. He reported to the G Co., from time to time, and some of his reports showed entries of "bills payable. Upon the trial of an action against the G Co., upon notes signed in its name by D, as treasurer, the president of the G Co., testified that he knew that D was signing all the bills payable made by the Missouri concern for goods purchased; that he supposed it was the natural order of things for D to procure the discount of bills receivable by indorsing them as treasurer of the G Co.; and that, if money were required in an emergency, he supposed D would be expected to make and procure the discount of the company's notes. Held that D, being left in the absolute control and management of the whole business of the G Co., in Missouri, to act on his discretion, had authority to do whatever a reasonably prudent merchant or manufacturer would do, and accordingly, to sign promissory notes in the name of the G. Co. (Glidden & Joy Varnish Co. of Ohio v. Interstate Nat. Bank of Kansas City, U. S.

age Dist., [U. S. C. C. of App.,] 59 Fed. Rep. 867.) C. C. of App., 69 Fed. Rep. 912.)

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TRIAL BY Where a case has been tried by the court upon waiver of a jury, and the court has decided it, and made special findings covering the ultimate facts of the case, additional findings cannot afterwards be made upon the request of a party. (Lang v. Baxter, U. S. C. C. [Me.], 69 Fed. Rep. 905).

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PEALS. The mere fact that the validity of a State law under the constitution of the United States is drawn in question will not, of itself, deprive the circuit court of appeals of jurisdiction to decide other questions involved in the case, although the judiciary act of March 3, 1891, provides, in section 5, for direct appeals from the circuit to the Supreme TRUSTS MONOPOLIES. The act of July 2, 1890, Court, when constitutional questions are involved. to protect trade and commerce against unlawful reAnd, if it appears that the case may be disposed of strainst and monopolies, is not applicable to the case upon grounds independent of the constitutional of a State which, by its laws, assumes an entire monquestion, the court will take jurisdiction and dis-opoly of the traffic in intoxicating liquors (Act S. C. pose of it accordingly : Held, therefore, that Jan. 2, 1895). A State is neither a person nor a where, on appeal from an interlocutory injunction,"corporation," within the meaning of the act of it appeared that, while the bill challenged the con- Congress. (Lowenstein v. Evens, U. S. C. C. [S.stutionality of a State law, the further question was Car.], 69 Fed. Rep. 908).

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