lost; but the oration _pro Rabirio Postumo_ being a close continuation of the same arguments, we may form some notion of that _pro Gabinio_; he surely did not make out Gabinius to be innocent. The courts indeed at that time were not juries, whose business is only to find out whether the defendant is guilty or not guilty, and where a higher authority may step in and grant a pardon or commute the punishment; but the _quæstiones perpetuæ_ had come into the place of the former popular tribunals, and combined both of these functions: they gave a verdict as to innocence or guilt, and also had the right of pardoning. This latter power must not be wanting in any state, _summum jus_ being only too often _summa injuria_: as no one else had it in Rome, the courts of justice themselves had to be invested with it. This is the point of view from which we are to judge the tribunals and advocates of that time. When Kant in his _Kritik der Urtheilskraft_ (Critical Enquiry into the Faculty of Judgment) assails the eloquence and the profession of advocate, he is in some measure in contradiction with himself; for even on this occasion, he has written with the greatest eloquence when inveighing against political, and still more against forensic eloquence. Before our (German) tribunals, eloquence indeed is not allowable: the question in our mode of administering justice being “guilty or not guilty,” the Judge has to throw aside anything that might beguile or mislead him. If, as has been often proposed, but cannot be carried out, there were a board which had to inquire whether there be room for pardon, a generous orator pleading for mercy would be very much in his place.[4]