42 ON THE PROBABLE ORIGIN 
testaments succeeded under the emperors a 
more compendious method of making out a 
protocol of the will in court, previously to the 
testator’s death, the magistrate and Curia acting 
the part of witnesses, besides which in the case 
of a solemn testament, not published till after 
the testator’s death, the Curia was the place of 
publication, and a protocol of the whole trans- 
action was drawn up under its sanction. Pro- 
bably many other acts of sale, barter, &c., to 
which the authority of the Curia was not requi- 
red, were voluntarily performed there, to obtain 
the double advantage of publicity and a perma- 
nent record. The participation of the Curia in 
the contentious jurisdiction is in itself not 
doubtful, although the manner in which it was 
acquired is not distinctly related. It is thus 
explained with great probability by Savigny, 
(p. 84, seq.) Originally a Roman magistrate 
decided only the law of a case brought before 
him, prescribed the mode of proceeding and 
pronounced a conditional judgment, remitting 
the investigation of the facts to a judex, who 
having ascertained them, pronounced an abso- 
lute decree, according to the instructions of 
the magistrate. In the imperial times the 
right of the magistrate to employ a judex was 
very much restricted, and he was required to | 
