The Civil Law, No. II [pp. 486-492]

ROMAN PLEADINGS.
to him who had reclaimed it. The common law student is again reminded of some of the fictions of his own system. From this fictitious
employment of the vindicatio, may be deduced the transfer of the
ownership, or title, of things corporeal and incorporeal; the transfer of tutelage; the manumission of slaves (rnanumissio vindicta);
the emancipation of children, and the adoption of sons of families.
The actions of the law, bearing, in the strongest degree, the marks
peculiar to the judicial acts of civilization in its infancy, soon experienced a change. Their character, sacerdotal, patrician, symbolic,
and dangerously technical (sacramentellement perilleux), became
more and more inconsistent with the manners and social constitution
of the Romans. Above all, they were to the Plebs, the remains of a
servitude, against which they had so long contended. We learn
from Gaius that they had become unpopular in the sixth century.
Abandoned, afterward, in actual practice, by a resort to the judicial
forms created for the foreigners, they were legislatively suppressed
by the law,Ebutia, and the two Julian laws. Their sole employ ment, at last, consisted in their fictitious use in the judicial sales, and
other similar cases.
Under the second system, the system of formulae, or ordinary pro cedure (judicia ordinaria), the distinction between the magistrate
and the judge became clearly marked. The magistrate is still sin gle for each jurisdiction, the judge for each cause. But the custom
of calling in the aid of skilful jurisconsults, by whose means to clear
up the difficulties of a cause, received a wonderful impetus during this
period, in which the law had become so beautiful a science. Those
who acted in the capacity of magistrates were: at Rome, the prae tors, gradually added to and increased to the number of eighteen (18)
in the time of Pomponius-the ediles, the prefect of the city, and
the Praetorian prefect;-in the provinces, divided by Augustus into
the provinces of the people or senate and the provinces of the prince,
the governors of each province, under the different titles of procon suls, proprietors, lieutenants of Caesar (legati Cesaris), presidents
(presides), or prefects. These latter, at stated times, held assizes
(conventus) in the principal towns of their province. Above all
these, was the emperor, the supreme magistrate, pronouncing the
decision as the court of last resort. The judges consisted of the
judex or arbiter given for each cause, the recuperatores, and the col lege of centumvirs, which retained their functions, although in a
declining condition, to the end of the second period. The most
remarkable change in relation to the judex grew out of the extension
of the right of acting in that capacity to all citizens. After having
been bitterly contested for half a century, from the time of the Grac chi to the age of Pompey, between the equites and the senators, the
judiciuam passed these orders, and extended to the people. Five
decuriwe, or lists of citizens called to be judges. were made out each
year by the proetor in the forum, in the midst of the people, and pub licly exposed. The first decuria composed of senators, the second
of equites, the third of soldiers, the fourth and fifth, the one added
by Augustus and the other by Caligula, of citizens paying an inferior
tax. These were the judices for the year, from these lists were they
chosen for each case. "La caste," says Ortolan, quite happily,
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