Hence arise the different modes ofpassing judgment. In monarchies
the judges choose the method of arbitration; they deliberate together,
they communicate their sentiments for the sake of unanimity; they
moderate their opinions, in order to render them conformable to those of
others: and the lesser number are obliged to give way to the majority.
But this is not agreeable to the nature of a republic. At Rome, and in
the cities of Greece, the judges never entered into a consultation; each
gave his opinion in one of these three ways: "I absolve," "I condemn,"
"It does not appear clear to me";
[3]
this was because the people judged, or were supposed to judge. But the people are far from being civilians;
all these restrictions and methods of arbitration are above their reach;
they must have only one object and one single fact set before them; and
then they have only to see whether they ought to condemn, to acquit, or
to suspend their judgment.
The Romans introduced set forms of actions,
[4]
after the example of the Greeks, and established a rule that each cause should be directed by
its proper action. This was necessary in their manner of judging; it was
necessary to fix the state of the question, that the people might have
it always before their eyes. Otherwise, in a long process, this state of
the question would continually change, and be no longer distinguished.
Hence it followed that the Roman judges granted only the simple
demand, without making any addition, deduction, or limitation. But the
prætors devised other forms of actions, which were called ex bona fide,
in which the method of pronouncing sentence was left to the disposition
of the judge. This was more agreeable to the spirit of monarchy. Hence
it is a saying among the French lawyers, that in France
[5]
all actions are ex bona fide.
