The EUROPEAN LEGISLATURES, tg 



mem, to decide on the propriety of inflicting it * ; whereas,' if 

 it was their bufinefs to apprehend and accufe, 'to take the judg- 

 ment of the judges, and to carry it into execution, the fine was 

 no more than a neceflary reward to ftimulate their activity in 

 repreffing wrongs, and coinpenfate the rifk, as well as labour, 

 which, in the infancy of government, muft attend this duty. 

 Independently, however, of this general prefumption, the hifto- 

 ry of all the ancient judicatures in Europe affords every where 

 the moft convincing evidence, that the chiefs of the German 

 and other conquering tribes exercifed only minifterial powers 

 in matters of judicature. I can, however, but juft touch on it. 

 In the firft ages after the German conqueft, we find the flaves of 

 the kings, and of the provincial chiefs, exercifing moft fre- 

 quently, in the adminiftration of juftice, the functions of their 

 mafters. Thefe functions then nmft have been purely mini- 

 fterial ; for we know that no flave, nor even an emancipated per- 

 fon, could bear witnefs where a freeman was concerned ; and * - 

 moft certainly, therefore, could never have been his judge. Ac- 

 cordingly, the effects of this ftate of the judicial power are 

 equally confpicuous and extenfive. The functions of the king 

 in the trial of peers in a bed of juftice in France ; the functions 

 of the high fteward of England, the reprefentative of the king 

 in the trial of Britifh peers ; the functions of every baron, or 

 deputy of a baron, in the court of the barony, of the bans and 

 vayvodes in Hungary and Poland, of the lagmen in Sweden, 

 of the fherifF and hundreder in England f ; in fhort, the di- 



c 2 ftinction 



* IN the eaft, where the priefthood has ftripped the people of the judicial power, no 

 part of the fines for delinquencies are paid to the judges. 



f I QUOTE the following ftatute as evidence, not only of the diftin&ion being obferved 

 in Scotland, but of the anxiety of our anceftors to feparate the judicial and minifterial 

 functions : " Statuit dominus rex quod nullus juftitiarius vicecomes vel ballivus, fedeat 

 " ad judicium faciendum fuper appellatione et refponfione coram eis facia. Sed cum ad 

 " judicium venerint ; exeant de curia ; et libere tenentes de curia judicium faciant ; et re- 

 " vocato jufticiario, vicecomite vel ballivo, in curiam, judicium penes eos faftum coram 

 " ipfo judice reddatur." 3>uon. attach, cap. 66. There is a fimilar regulation in the 

 eftablifhments of St LEWIS, from which, no doubt, the law of the Scottilh barons was 

 borrowed. 



