92 



unrelenting band in all the subordinates b}' his never flagging watch- 

 fulness, it is to be presumed, that in all civil litigation justice would 

 be unfettered. 



But a question may arise, if the same iudependence was granted to 

 criminal tribunals, at least in all those cases, where the safety, security, 

 or even the interest of the Emperor were concerned, in all cases there- 

 fore which more or less directly had a political character. This ques- 

 tion is of such importance, that it will be necessary to investigate it 

 carefully. 



Whatever merits we may assign to the Eomau law as a nicely and 

 scientifically elaborated system of jurisprudence, the administration of 

 that part of it, which we should call the criminal, and which the Eomaus 

 called the public law (jus publicum), was most defective. Its principal 

 fault was this, that it was not detached from, and independent of the 

 political powers of the state. The great officers of state were the 

 judges, the people at large were the jury. It was necessary that 

 the administration of justice should thus assume a political character, 

 that party feeling should intrude itself into the place of judicial im- 

 partiality, and that the right to distribute justice should become a 

 hotly contested object of political warfare. The separation of the 

 jurisdiction from the administration of the state, the creation of an 

 independent judicial bench, is an idea of modern date, which 

 never entered the consciousness of the ancients. Every civil officer 

 was by them invested with jurisdiction. In Rome the consul was at 

 first the chief judge; and though since the establishment of the praetor- 

 ship this office was considered as principally judicial, every other officer 

 of state had jurisdiction in matters connected with his peculiar functions. 

 If we would wish to realize the bearing of such an arrangement, we must 

 fancy the Chancellor of the Exchequer to be the chief judge, deciding 

 in aU matters relating to the revenue — the President of the Board of 

 Trade in all mercantile affairs, town dues, &c. If we added to such an 

 arrangement as this the annual change of these chief officers connected 

 vnth the most violent electioneering struggles, we should soon be able 

 to appreciate the value of a bench of judges, elevated above all party 

 feeling, independent of the issue of party contests, and devoted to no other 

 intei'ests but the purity and sanctity of the courts, in which they preside. 



To remedy such a great evil as this the Romans had recourse to a 

 measure, which was a greater evil still. This was the transfer of 

 all capital cases to the decision of the people at large. A popular 

 assembly is the worst of all tribunals. There is an end of every 

 feeling of personal responsibility, when thousands share it among 

 them ; there is no cool reflection in a great crowd ; impulse supersedes 



