judices, on the other hand, were in many cases too numerous to judge well had they been so inclined, and having no legal remuneration, they paid themselves by the indirect sale of their votes. The commemorative and the coercive officers were, indeed, multiplied; but their pay was probably trifling and their conduct can hardly be supposed to have been more scrupulous than that of their superiors. Legal assistance was now amply afforded by the patroni, but they also were paid . indirectly and in a manner most injurious to the public, by the support of their clients, at elections, in tumults, and often. in sanguinary conflicts and acts of private vengeance. Advocati, it is true, were known in the time of Cicero; but they formed no part of a legal profession: they were merely private friends whom the suitor called upon (advocabat), for countenance and support in his cause, and sometimes to intimidate the judges by their weight and numbers. "Vellem adesset Antonius (says Cicero) modò sine advocatis" (Phil. 1. 7.), that is, without the armed myrmidons whom Antony had brought to surround and overawe the senate. The procurator, too, was known, in the general sense of one-"qui aliquid nostri negotii gerit;" but there was no professional or official "procurator ad lites." During the whole of this period, therefore, the administration of justice was apparently conducted at small expense; but in reality, it became, especially in the later years, an intolerable grievance to the country, and was one of the main causes of the downfal of the republic.

Under the emperors judicial order was first systematically established. Many new judicial offices were created. The emperor himself, aided by his great dignitaries, the præfectus prætorio, the magister libellorum, &c., not only declared or enacted the law in his consistorium, but formed in his auditorium the court of appeal, en dernier ressort, for the whole empire. The prætors were multiplied in number; but their decisions were rendered less arbitrary by the perpetual edict, and by the binding authority given as well to the responsa prudentum, as to the constitutiones principis. The judices became permanent officers, deciding both on the law and the fact, and were paid partly by a salarium, and partly by sportulæ. The salarium was an annual allowance made to

each judge by the state, and in the time of Justinian amounted to two pounds weight of gold. The sportula was a fee of one-tenth of a pound of gold received by the judge from each party, in cases where the value of the object in dispute exceeded two pounds and a half of gold, inferior cases being exempted from payment. By this arrangement the state provided a judge gratuitously for the lower classes of the people, while those who could more easily bear the burthen, contributed in part to the expense of the tribunals. The judicial establishments were now fully supplied, both with commemorative and coercive officers. The former, under the designations of tabelliones, notarii, exceptores, &c., were probably paid by sportulæ, in proportion either to the length or importance of the documents which they transcribed. The latter, called nuncii, viatores, apparitores, exactores, &c., also received sportula, which were fixed by law, at one time, according to the duty done, at half a solidus, a solidus, or two solidi for each act (Leo and Anthem. C. 1. 3. 33.); at another time, according to the value of the thing in litigation (Justin. I., 4. 6. 24.)

Nor was a less change effected in the mode of affording legal assistance to suitors. A legal profession now arose and took its due rank in society. The old hereditary patronus had disappeared, and the advocatus was recognised as the patronus causæ. Julianus, about A. D. 130., cites from the Pretorian edict,-"Si non habebunt advocatum, ego dabo" (Digest. 3. 1. 1.), and Antoninus Pius, about twenty years afterwards, speaks of persons interdicted from advocation (Digest. 3. 1. 8.), which shows that it had then become a lucrative employment. It still however retained so much of the dignity of the ancient patrocinium, that its remuneration could not be enforced by the jus civile in an actio locati, but by the jus honorarium, as a matter within the extraordinary cognizance of the prætor, whence the payment itself came to be called honorarium. The prætor, however, would not compel payment of more than two pounds and a half weight of gold in one cause. (Ulp. D. 50. 13. 1.) At a later period (A. D. 396.), we find the advocates spoken of as a "corpus togatorum" (Arc. and Hon. C. 2. 7. 3.) Procuratores also, answering to our attorneys and proctors, became gradually of

importance in a cause. Anciently, every man was obliged to litigate in person; afterwards he was allowed, in certain specified cases, to do so by a procurator; and at length the permission became general. Vexatious litigation was first treated as a crime, and punished with branding. Then it was subjected to the civil actio calumniæ. Condemnation in costs is mentioned by Ulpian, A. D. 212, and adopted by Justinian generally, A. D. 530, subject to the oath of the party, and to the taxation of the judge. (Cod. 3. 1. 13.) The rule of taxing was to allow "omnes expensas, quæ consueto modo circa lites expenduntur" (ib.): and these words, consueto modo," furnish a probable etymology of our modern term " costs;" for we find various law expenses termed, in barbarous Latin, consuetum, costuma, costagium, and in Norman French, coustage, which, in our old statutes, is rendered

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costs.

Having thus taken a hasty view of the rise and progress of the Roman procedure, so far as relates to its expense at different epochs, we must now turn to the German system, which, in its origin, is so graphically described by Tacitus. When the half-savage chiefs, and more than half-savage people, of a German tribe met, at the new and full moons, to consult on their common interests, causes were brought before them, which, in some rude manner, they tried. Their proceedings, like those of the early Romans, were rather of a criminal than civil nature, and mostly terminated in the imposition of a fine, divided between the community and the injured individual. Besides the attendance at these meetings, some head men of the tribe were sent round through the different districts to administer justice, accompanied by a number of followers to enforce their decisions. In these latter arrangements we see the embryo forms of a judicial establishment, so far as regards the decisorial and coercive functions; whilst the fines imposed may have furnished an indirect mode of compensating the services of the individuals employed in this branch of the public service. Of legal advice, or assistance to the suitors, there is, of course, no

trace.

At a later period, when the German tribes, under the various names of Lombards, Franks, Saxons, &c., had issued

from their woods, and laid the foundation of civilised states, the notions of jurisdiction and procedure began to develope themselves among the new communities. In imitation of the Roman system, judicial officers were formally appointed, under the designations of missus, grafio, tunginus, rachinburgus, and the like; of whose powers and duties the celebrated Savigny has given a full and accurate account in his History of the Roman Law during the Middle Ages. Their proceedings, however, for a long time, retained much of a criminal character; and most of their punishments still resolved themselves into fines; for, though the judgment might be amputation of a limb, or even death, it generally admitted of a pecuniary composition, which was divided, in certain proportions, between the complainant and the sovereign, or the judges. The offender was then said to have bought his fred, or peace, and thence a portion of the composition itself was called fredum, from which word is derived the modern French "frais du procès." It may suffice to cite the following instances: "Testes, qui falsi apparuerint, manus suas redimant, cujus compositionis duæ partes ei, contra quem testificati sunt, dentur; tertia pro freda solvatur. (Leg. Lougob. 2. 51. 11. circ. a. D. 640.) Rachinburgi — quantum debitum valuerit, de fortunâ illius tollant: et si freda anteà de ipsâ causâ non fuerat data, duas partes ille, cujus causa est, ad se revocet, et Grafio tertiam partem obtineat." (Lex Salic. 52. 3. A. D. 798.) The fredum, therefore, was one mode of remunerating a judge. Another mode in use among the Franks was by granting to him the decima sumptús litis, which was a due, otherwise levied to the use of the king. (Marculf. Formula, 1. 20. circ. A. D. 660.) At a later period, in France, certain payments were made by the suitors, which were called (as in a charter of the year 1047) judiciaria consuetudines (Ducange, voc. Consuetudo), which probably went (directly or indirectly) to the support of the judicial establishment. To these courts was generally attached a registrar, called scrinarius, exceptor, or tabellio; as the "exceptor civitatis Placentina," mentioned A.D. 721. (Savigny, 1. 422.), and the scrinarii of the judges palatine, about A.D. 1000. (Ib. 379.) In this latter court, also, were "Defensores, quos advocatos nominamus." (Ib.)

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We now approach a period, when the judicial systems of Europe underwent considerable changes. In the twelfth century, the study of the Roman Civil Law was revived by Irnerius, on the Continent, and taught by his scholar, Vacarius, at Oxford; and shortly afterwards the Canon Law began to be systematised by Gratian, and the Feudal Law by Obertus ab Orto. Each, and all of these events had a marked influence on the constitution and practice of the tribunals, under all the systems of law then in force.

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The canon law was administered in the ecclesiastical courts. Their general organisation and procedure were modelled on those of imperial Rome; but, in some instances, with manifest improvement. They had regular judicial establishments for exercising the decisorial, the commemorative, and the coercive functions; and moreover they recognised distinct bodies of advocates and procurators. At an early period we meet with a collegium judicum et advocatorum" in Bologna (Savigny, i. 295.), the members of which were probably doctors, either "legum" or "decretorum," the former presiding, or practising, in the lay tribunals; the latter in the ecclesiastical. By the canon law the judges, being ecclesiastics, were, as such, presumed to be competently provided for, and therefore were, in strictness, required to give their judicial services gratuitously; though this seems, in practice, to have been little attended to. They were indeed forbidden to exact from the litigants the "decima litis," or any other proportion of the matter in dispute (Decretal iii. 1. 10.); but they were allowed to receive expenses "victualium" (ib.), and “modica xenia" (ib. gloss.), and these afterwards seem to have been converted into Sportula; whence the rule was laid down "Ordinarius non debet habere nisi sportulas." (Ib.) By Sportulæ also, on their respective acts, were the tabelliones and nuncii paid. The advocates and procurators were left to settle their remuneration with the parties, not exceeding a certain sum. In the matter of costs, the canon law was very clear and explicit. It adopted, as a general proposition, the rule, “ut in fine litis, victus victori in expensis litis condemnetur" (Decretal 2. 14. 5.), but with several equitable modifications; for instance, that the party who had a "probabilis causa litigandi," should be exempted from paying costs (ib.);