Translated with the sanction of the author by William Purdie Dickson
Decay of the Judicial System
Certainly these innovations, the most important of which-- the general extension given to appeal--cannot even be reckoned absolutely an improvement, by no means healed thoroughly the evils from which the Roman administration of justice was suffering. Criminal procedure cannot be sound in any slave-state, inasmuch as the task of proceeding against slaves lies, if not de jure, at least de facto in the hands of the master. The Roman master, as may readily be conceived, punished throughout the crime of his serf, not as a crime, but only so far as it rendered the slave useless or disagreeable to him; slave criminals were merely drafted off somewhat like oxen addicted to goring, and, as the latter were sold to the butcher, so were the former sold to the fencing-booth.
But even the criminal procedure against free men, which had been from the outset and always in great part continued to be a political process, had amidst the disorder of the last generations become transformed from a grave legal proceeding into a faction- fight to be fought out by means of favour, money, and violence. The blame rested jointly on all that took part in it, on the magistrates, the jury, the parties, even the public who were spectators; but the most incurable wounds were inflicted on justice by the doings of the advocates. In proportion as the parasitic plant of Roman forensic eloquence flourished, all positive ideas of right became broken up; and the distinction, so difficult of apprehension by the public, between opinion and evidence was in reality expelled from the Roman criminal practice.
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