The history ofRoman law can be divided into three systems of procedure: that oflegis actiones, theformulary system, andcognitio extra ordinem. Though the periods in which these systems were in use overlapped one another and did not have definitive breaks, thelegis actio system prevailed from the time of theXII Tables (c. 450 BC) until about the end of the 2nd century BC, the formulary procedure was primarily used from the last century of theRepublic until the end of the classical period (c. AD 200), andcognitio extra ordinem was in use in post-classical times.
The remarkable aspect of a trial of an action under thelegis actio procedure (and also later under the formulary system) was characterized by the division of the proceedings into two stages, the first of which took place before a magistrate, under whose supervision all the preliminaries were arranged, the second, in which the issue was actually decided, was held before a judge. The magistrate in question taking part in the preliminary stage was typically the consul or military tribune, almost exclusively thepraetor upon the creation of this office. The judge was neither a magistrate nor a private lawyer, but an individual agreed upon by both parties.[1]
Summons under thelegis actiones system were in the form ofin ius vocatio, conducted by voice. Theplaintiff would request, with reasons, that thedefendant come to court. If he failed to appear, the plaintiff could call reasons and have him dragged to court. If the defendant could not be brought to court, he would be regarded asindefensus, and the plaintiff could, with the authorization of the praetor, seize his property. The defendant may elect a representative to appear in his place, or seek avadimonium – a promise to appear on a certain day with a threat of pecuniary penalty if he failed to appear.
At the first stage of the case, a hearing took place before the praetor, in order to agree the issue and appoint ajudge. This was conducted through exchanges of ritual words, the two different types being known as the declarative which were thelegis actio sacramento (which could bein rem orin personam),legis actio per iudicis arbitrive postulationem andlegis actio per condictionem and the executive typelegis actio per pignoris capionem andlegis actio per manus iniectionem.[2] All of these involved, essentially, statements of claim by both parties, and the laying down of awager by the plaintiff. Then, a judge was appointed who was agreeable to both parties, the praetor making a decision in the event of a disagreement. Judges were chosen from a list called thealbum iudicum, consisting of senators, and in the laterRepublic, men ofequestrian rank.
Once the judge had been appointed, the fulltrial could begin. This was fairly informal compared to the preliminary hearing, and was supposed under theTwelve Tables to take place in public (theForum Romanum was frequently used). While the witnesses could not besubpoenaed, the dishonorable status ofintestabilis would be conferred on a witness who refused to appear. There were few rules ofevidence (and both oral and written evidence were permitted, although the former was preferred) aside from the plaintiff having theburden of proof. The trial consisted of alternating speeches by the twoadvocates, after which the judge gave his decision.
Unlike in the modern legal systems, victorious parties had to enforce the verdict of the court themselves.[citation needed] However, they were entitled to seize thedebtor and imprison him until he repaid the debt.[citation needed] After sixty days of imprisonment, thecreditor was entitled to dismember[citation needed] the debtor or sell him intoslavery,[citation needed] although after theLex Poetelia Papiria of 326 BC, the creditor could take no action other than continued imprisonment of the debtor.
Due to the faults of thelegis actiones system, namely its excessive formality, archaic nature, and limited effectiveness, a new system was introduced. This was known as the formulary system. The formula was a written document by which a civil trial authorization was given to a judge to either condemn the defendant if certain factual or legal circumstances appeared to be proved, or to absolve him if this was not the case.[3]
The formulary system was originally used by the peregrinepraetor (who was responsible for the affairs of foreigners in Rome) to deal with cases involving foreigners, which often involved substantial sums of money. This allowed the use offormulae, standardized written pleadings, to speed up cases. This was soon, by popular demand, adopted by theurban praetor for use by allRoman citizens. Thelex Aebutia, of an uncertain date but somewhere between 199 BC and 126 BC, is connected with the reform of civil procedure, and it can be stated that it abolished thelegis actiones and introduced the formulary procedure. The reform was completed by two statutes of Augustus under the name ofleges Iuliae iudiciariae.[3]
Defendants were summoned under the formulary system in a similar manner to under thelegis actiones. The defendant was still summoned orally, but had an extra option; rather than immediately going to court, he could make avadimonium, or promise, to appear in court on a certain day, on pain of a pecuniary forfeit. Although the plaintiff could still physically drag his opponent to court, this was scarcely used. Instead, the plaintiff could be given permission by the praetor to take possession of the defendant's estate, with a possible right of sale.
Just like in the oldlegis actiones system, this took place before thepraetor. During the hearing, a formula was agreed on. It consisted of up to six parts: thenominatio,intentio,condemnatio,demonstratio,exceptio, andpraescriptio.
This part appointed a judge, in a similar matter to before, with the plaintiff suggesting names from the official list until the defendant agreed. If there was no agreement, the praetor would decide.
This was the plaintiff's statement of claim, where he stated the allegation on which his claim was based. An example of anintentio could be, "If it appears that the property which is disputed belongs to Aulus Agerius at civil law,".
Thecondemnatio gave the judge authority to condemn the defendant to a certain sum or to absolve him. An example of acondemnatio could be, "[If it appears that he is guilty], Condemn Numerius Negidius to Aulus Agerius for 200denarii; otherwise absolve him."
Thedemonstratio was used only in unliquidated,in personam claims, and stated the facts out of which the claim arose.
If the defendant wished to raise a specificdefense (such as self-defence), he would do so in anexceptio. However, if the plaintiff was desirous of refuting the defence, he could file areplicatio, explaining why the defence was not valid. The defendant could then file anotherexceptio, and so on. The last of these to be proved on the facts "won".
This somewhat legalistic clause limited the issue to the matter in hand, avoidinglitis contestatio, where the plaintiff was prevented from bringing another case against the same defendant on a similar issue.
The case could sometimes be settled entirely through the preliminary hearing. The plaintiff could challenge the defendant to take anoath supporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, he had a third option - he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (he could not return the oath to the defendant).Justinian had this to say about the taking of oaths:
"(1) Where a party is sued in any kind of an action, if he makes oath it will be a benefit to him..."Source:Digesta ofJustinian, Book 12, Title 2.
While it may seem odd to a modern observer to decide a case merely through the taking of oaths, it is important to note that a solemn oath before theGods was regarded by the Romans as a serious matter, and even a rogue would be unwilling toperjure himself in such a fashion, and thepenalties forperjury were severe.
Full trials under the formulary system were essentially the same as underlegis actiones.
While the creditor was still essentially responsible for executing the judgement, there was now a remedy he could look to. This was calledbonorum vendito. Thirty days after the judgement, the creditor would apply for anactio iudicati, giving the debtor a last chance to pay. If he failed to meet the debt, the creditor could apply to thepraetor formissio in possessionem ("sending into possession"). He would then publicise the bankruptcy, giving other creditors a chance to come forward, thirty days after which the creditors would meet to appoint an executor.
This executor would prepare an inventory of the debtor's estate, and then hold a publicauction, with the entire estate going to the bidder who was prepared to meet the greatest proportion of the debt. However, the debtor remained liable for any portion of the debt which was not met. The reason for this was probably that thebonorum vendito remedy could be used as a threat to encourage a debtor to pay up.
Thecognitio system was introduced some time after the Republic was replaced by the Empire. The main philosophical difference between the cognitio systems and those that had gone before was that, whereas the previous two essentially consisted of the State providing a system under which the two parties could resolve disputes between themselves – the basis of the case was agreed, but the case was then handed over to a private judge, and nojudgement in default was available. In the cognitio, however, the State basically resolved the entire case, in the same manner as virually all modern systems.
As in modern legal systems, thesummons was served upon the defendant by the court. The plaintiff could not physically force the defendant to appear. Instead, he would lodge alibellus conventionis (a statement of claim), which would be served on the defendant by a court official, who could arrest him if he failed to appear. If he was unable to be brought to court on three separate occasions, a judgement-in-default could be entered against him. This highlights the philosophical difference between thecognitio and earlier systems—whereas before a trial required the consent of both parties, it could now be imposed by the state.
In the cognitio system, the trial took place before amagistrate, rather than a lay judge. The process tended to be lessadversarial than before, as the magistrate had sole control over the case, and could admit whatever evidence he pleased. Documentary evidence was now considered to be of vital importance (indeed, a rule was introduced to the effect that a document could not be defeated by oral testimony alone). The magistrate's decision was read out in court and given in writing to both parties. As he was not bound by a formula, the magistrate could hand down a morediscretionary ruling than was possible before.
Whereas before the victor was responsible for enforcing payment himself, he could now ask the courtbailiffs to seize the defendant's property to be sold at auction.
Under thecognitio system, anappeals procedure was available for the parties. The appeals process was extremely complex, but essentially consisted of the progression of the case through higher and higher courts, possibly culminating in theEmperor himself.