Montesquieu

From this fol­low the dif­fe­rent man­ners of arri­ving at judg­ments. In monar­chies, jud­ges assume the man­ner of arbi­ters : they deli­be­rate toge­ther, share their thoughts, and come to an agree­ment ; one modi­fies his opi­nion to make it conform to that of ano­ther ; the least sup­por­ted opi­nions are assi­mi­la­ted to the two lea­ding ones. This is not in the nature of the repu­blic. In Rome and in the Greek cities, jud­ges did not confer : each one gave his opi­nion in one of these three ways : I absolve, I condemn, It is not pro­ven,1 because the peo­ple were jud­ging, or assu­med to be jud­ging. But the peo­ple are not a juris­consult ; they are unin­te­res­ted in all those modi­fi­ca­tions and accom­mo­da­tions of arbi­ters ; they must be pre­sen­ted with a sin­gle object, one act and one act only, and requi­red only to see whe­ther they must condemn, absolve, or defer judg­ment.

The Romans, on the Greek model, intro­du­ced for­mu­las of actions,2 and esta­bli­shed the neces­sity of direc­ting each cause by the action sui­ted to it. This was neces­sary in their man­ner of jud­ging : the state of the ques­tion had to be fixed so the peo­ple would always be focu­sed on it. Otherwise, in the course of an impor­tant trial, this state of the ques­tion would be conti­nually chan­ging, and would cease to be reco­gni­za­ble.

Whence it fol­lo­wed that jud­ges, among the Romans, gran­ted only the pre­cise request, increa­sing, decrea­sing, and modi­fying nothing. But the præ­tors thought up other for­mu­las of actions that were cal­led in good faith,3 where the man­ner of pro­noun­cing was more within the judge’s dis­cre­tion. This was more in kee­ping with the spi­rit of monar­chy. And so it is that French juris­consults say : In France all actions are in good faith.4

Non liquet.

Quas actiones ne populus prout vellet institueret, certas solemnesque esse voluerunt [’They wanted these actions tp be solemnly instituted so the people could not change them at their whim’] (book II, §6, Digest de origine juris) [in fact Book I, title II, §6 (= D, I.2.6) ; “De origine juris” is the title of Book I, title II].

In which were included these words : ex bona fide.

They even the individual who is asked for more than he owes order to pay costs, if he has not offered and deposited what he owes.