； they were arbiters of the affairs of their allies； they determined war or peace； and directed in this respect the consuls； they fixed the number of the Roman and of the allied troops； disposed of the provinces and armies to the consuls or pr？tors； and upon the expiration of the year of command had the power of appointing successors； they decreed triumphs； received and sent embassies： they nominated； rewarded； punished； and were judges of kings； declared them allies of the Roman people； or stripped them of that title。
The consuls levied the troops which they were to carry into the field； had the command of the forces by sea and by land； disposed of the forces of the allies； were invested with the whole power of the republic in the provinces； gave peace to the vanquished nations； imposed conditions on them； or referred them to the senate。
In the earliest times； when the people had some share in the affairs relating to war or peace； they exercised rather their legislative than their executive power。 They scarcely did anything else but confirm the acts of the kings； and after their expulsion those of the consuls or senate。 So far were they from being the arbiters of war that we have instances of its having been often declared； notwithstanding the opposition of the tribunes。 But growing wanton in their prosperity； they increased their executive power。 Thus＇48＇ they created the military tribunes； the nomination of whom till then had belonged to the generals； and some time before the first Punic war； they decreed that only their own body should have the right of declaring war。＇49＇
18。 Of the judiciary Power in the Roman Government。 The judiciary power was given to the people； to the senate； to the magistrates； and to particular judges。 We must see in what manner it was distributed； beginning with their civil affairs。
The consuls had the judiciary power＇50＇ after the expulsion of the kings； as the pr？tors were judges after the consuls。 Servius Tullius had divested himself of the power of determining civil causes； which was not resumed by the consuls； except in some＇51＇ very rare cases； for that reason called extraordinary。＇52＇ They were satisfied with naming the judges； and establishing the several tribunals。 By a discourse of Appius Claudius； in Dionysius Halicarnassus；＇53＇ it appears that as early as the 259th year of Rome this was looked upon as a settled custom among the Romans； and it is not tracing it very high to refer it to Servius Tullius。
Every year the pr？tor made a list＇54＇ of such as he chose for the office of judges during his magistracy。 A sufficient number was pitched upon for each cause； a custom very nearly the same as that now practised in England。 And what was extremely favourable to liberty＇55＇ was the pr？tor's fixing the judges with the consent＇56＇ of the parties。 The great number of exceptions that can be made in England amounts pretty nearly to this very custom。
The judges decided only the questions relating to matter of fact；＇57＇ for example； whether a sum of money had been paid or not； whether an act had been committed or not。 But as to questions of law；＇58＇ as these required a certain capacity； they were always carried before the tribunal of the centumvirs。＇59＇
The kings reserved to themselves the judgment of criminal affairs； and in this were succeeded by the consuls。 It was in consequence of this authority that Brutus put his children and all those who were concerned in the Tarquinian conspiracy to death。 This was an exorbitant power。 The consuls already invested with the military command extended the exercise of it even to civil affairs； and their procedures； being stripped of all forms of justice； were rather exertions of violence than legal judgments。
This gave rise to the Valerian law； by which it was made lawful to appeal to the people from every decision of the consuls that endangered the life of a citizen。 The consuls had no longer the power of pronouncing sentence in capital cases against a Roman citizen； without the consent of the people。＇60＇
We see in the first conspiracy for the restoration of the Tarquins that the criminals were tried by Brutus the consul； in the second the senate and comitia were assembled to try them。＇61＇
The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes； whence was formed a body whose pretensions at first were immense。 It is hard to determine which was greater； the insolence of the plebeians in demanding； or the condescension of the senate in granting。 The Valerian law allowed appeals to the people； that is； to the people composed of senators； patricians； and plebeians。 The plebeians made a law that appeals should be brought before their own body。 A question was soon after started； whether the plebeians had a right to try a patrician； this was the subject of a dispute to which the impeachment of Coriolanus gave rise； and which ended with that affair。 When Coriolanus was accused by the tribunes before the people； he insisted； contrary to the spirit of the Valerian law； that as he was a patrician； none but the consuls had the power to try him； on the other hand； the plebeians； also contrary to the spirit of that same law； pretended that none but their body were empowered to be his judges； and accordingly they pronounced sentence upon him。
This was moderated by the law of the Twelve Tables； whereby it was ordained that none but the great assemblies of the people＇62＇ should try a citizen in capital cases。 Hence the body of the plebeians； or； which amounts to the very same； the comitia by tribes； had no longer any power of hearing criminal causes； except such as were punished with fines。 To inflict a capital punishment a law was requisite； but to condemn to a pecuniary mulct； there was occasion only for a plebiscitum。
This regulation of the law of the Twelve Tables was extremely prudent。 It produced an admirable balance between the body of the plebeians and the senate。 For as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime； it was necessary they should both agree。
The Valerian law abolished all the remains of the Roman government in any way relating to that of the kings of the heroic times of Greece。 The consuls were divested of the power to punish crimes。 Though all crimes are public； yet we must distinguish between those which more nearly concern the mutual intercourse of the citizens and those which more immediately interest the state in the relation it bears to its subjects。 The first are called private； the second public。 The latter were tried by the people； and in regard to the former； they named by particular commission a qu？stor for the prosecution of each crime。 The person chosen by the people was frequently one of the magistrates； sometimes a private man。 He was called the qu？stor of parricide； and is mentioned in the law of the Twelve Tables。＇63＇
The qu？stor nominated the judge of the question； who drew lots for the judges； and regulated the tribunal in which he presided。＇64＇
Here it is proper to observe what share the senate had in the nomination of the qu？stor； that we may see how far the two powers were balanced。 Sometimes the senate caused a dictator to be chosen； in order to exercise the office of qu？stor；＇65＇ at other times they ordained that the people should be convened by a tribune； with the view of proceeding to the nomination of a qu？stor；＇66＇ and； in fine； the people frequently appointed a magistrate to make his report to the senate concerning a particular crime； and to desire them to name a qu？stor； as may be seen in the judgment upon Lucius Scipio＇67＇ in Livy。＇68＇
In the year of Rome 604； some of these commissions were rendered permanent。＇69＇ All criminal causes were gradually divided into different parts； to which they gave the name of perpetual questions。 Different pr？tors were created； to each of whom some of those questions were assigned。 They had a power conferred upon them for the term of a year； of trying such criminal causes as bore any relation to those questions； and then they were sent to govern their province。
At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for life。＇70＇ But at Rome the pr？tors were annual； and the judges were not even for so long a term； but were nominated for each cause。 We have already shown in the sixth chapter of this book how favourable this regulation was to liberty in particular governments。
The judges were chosen from the order of senators； till the time of the Gracchi。 Tiberius Gracchus caused a law to pass that they should be taken from the equestrian order； a change so very considerable that the tribune boasted of having cut； by one rogation only； the sinews of the senatorial dignity。
It is necessary to observe that the three powers may be very well distributed in regard to the liberty of the constitution； though not so well in respect to the liberty of the subject。 At Rome the people had the greatest share of the legislative； a part of the executive； and part of the judiciary power； by which means they had so great a weight in the government as required some other power to balance it。 The senate indeed had part of the executive power； and some share of the legislative；＇71＇ but this was not sufficient to counterbalance the weight of the people。 It was necessary that they should partake of the judiciary power： and accordingly they had a share when the judges were chosen from among the senators。 But when the Gracchi deprived the senators of the judicial power；＇72＇ the senate were no longer able to withstand the people。 To favour； therefore； the liberty of the subject； they struck at that of the constitution； but the former perished with the latter。
Infinite were the mischiefs that thence arose。 The constitution was changed at a time when the fire of civil discord had scarcely left any such thing as a constitution。 The knights ceased to be that middle order which united the people to the senate； and the chain of the constitution was broken。
There were even particular reasons against transferring the judiciary power to the equestrian order。 The constitution of Rome was founded on this principle； that none should be enlisted as