eft to the arbitrary caprice of the magistrate, was subjected
gradually to legal rules; and, alongside of the law of property, a law
of possession was developed--another step, by which the magisterial
authority lost an important part of its powers. In criminal processes,
the tribunal of the people, which hitherto had exercised the
prerogative of mercy, became a court of legally secured appeal. If the
accused after hearing (-quaestio-) was condemned by the magistrate and
appealed to the burgesses, the magistrate proceeded in presence of
these to the further hearing (-anquisitio-) and, when he after three
times discussing the matter before the community had repeated his
decision, in the fourth diet the sentence was confirmed or rejected
by the burgesses. Modification was not allowed. A similar republican
spirit breathed in the principles, that the house protected the
burgess, and that an arrest could only take place out of doors; that
imprisonment during investigation was to be avoided; and that it
was allowable for every accused and not yet condemned burgess by
renouncing his citizenship to withdraw from the consequences of
condemnation, so far as they affected not his property but his
person-principles, which certainly were not embodied in formal laws
and accordingly did not legally bind the prosecuting magistrate, but
yet were by their moral weight of the greatest influence, particularly
in limiting capital punishment. But, if the Roman criminal law
furnishes a remarkable testimony to the strong public spirit and to
the increasing humanity of this epoch, it on the other hand suffered
in its practical working from the struggles between the orders, which
in this respect were specially baneful. The co-ordinate primary
jurisdiction of all the public magistrates in criminal cases, that
arose out of these conflicts,(16) led to the result, that there was
no longer any fixed authority for giving instructions, or any serious
preliminary investigation, in Roman criminal procedure. And, as the
ultimate criminal jurisdiction was exercised in the forms and by
the organs of legislation, and never disowned its origin from the
prerogative of mercy; as, moreover, the treatment of police fines had
an injurious reaction on the criminal procedure which was externally
very similar; the decision in criminal causes was pronounced--and that
not so much by way of abuse, as in some degree by virtue of the
constitution--not according to fi