§ 34. granting of the litis contestatio by the magistrate is tantamount to a decision (decretum) on his part, that the plaintiff's claim is admissible in itself and must be enforced, subject to such limitations as result from the contents of the litis contestatio.

The proceedings in jure however can never lead to a 'sententia,' i. e. a judgment, in the legal sense of the term. The issue having been formulated and declared primâ facie admissible by means of the litis contestatio, it is necessary, for the purpose of obtaining judgment, that the proceedings should pass out of the hands of the magistrate into those of a private individual, or, in some cases, of several private individuals adjudicating as a collegiate body. A sententia, in other words, a judgment, in the legal sense, can only be pronounced by a private person who cannot exercise any

this was done by pronouncing the
solemn words of the legis actio. In
the formulary procedure it was probably
done (as Wlassak, ibid., has shown) by
the delivery, to the defendant, of the
written formula, which the praetor had
drawn up. It appears, then, that in the
formulary procedure there was also a
definite act by which, as in the earlier
procedure, the parties themselves joined
in formulating the issue in a manner
agreed upon, the plaintiff, as it were,
uttering, and the defendant accepting,
the formula and, with it, the judicium.
In the formulary procedure this act of
the parties was also at the outset coupled
with an appeal to the witnesses (Wlas-
sak, ibid. p. 70 ff.), but the fact that the
formula was written deprived this cere-
mony of the practical meaning it had
possessed at the time of the oral for-
mulae of the legis actio, so that it
gradually fell into disuse during the
empire.

All actions touching the liberty of
a person were, during the republic, tried
by a standing college of ten sworn
judges (decemviri stlitibus judicandis).
Actions concerning vindicationes, especi-
ally the hereditatis vindicatio, were re-
ferred to the college of centumviri
consisting of 105, and later of 180
members, who were grouped in several
committees (consilia). If the praetor
wished to have a matter speedily de-
cided, he was able, by virtue of his

imperium, to appoint an extraordinary college of, usually, three or five 'recuperatores' who were directed to find a verdict within a specified time. Such cases of urgency arose especially in actions concerning personal liberty (vindicatio in libertatem), with the result that the jurisdiction of the decemviri was de facto displaced by the court of recuperatores-a circumstance which explains why, since Augustus, the decemviri ceased to act in this capacity. Recuperatores were also appointed in actions to which aliens were parties. Like the single judges, the recuperatores (who were always appointed for the nonce) and the centumviri were, as such, private persons. Although three centumviri were selected from each of the thirty-five tribes, there is nothing to show that they were chosen by the comitia tributa. The decemviri however had, towards the close of the republic, to be elected by the comitia tributa, so that formally they belonged to the magistratus (minores) populi Romani, a fact which however did not alter their position as against the litigant parties. All sworn judges whatsoever, including the decemviri, stand to the parties solely in the position of private individuals (judex privatus), and not in the position of magistrates equipped with compulsory powers; v. Pernice, ZS. der Sav. St. vol. v. P. 48.

sovereign discretion, because he in no way represents the absolute § 34. power of the state, but is bound, by the oath under which he is acting, to adjudicate in strict conformity to the law as already established. Thus no one but a private person can be a judex in the true sense of the term, i. e. an organ of the positive law. For every decision of a magistrate is formally (even in civil cases) an assertion of his sovereign imperium (a decretum or interdictum). It is, legally speaking, not a verdict, but an imperative order. On the other hand, the decision of a judex, i. e. of a private person acting under oath and under an authority based, not on imperium, but on officium,-such a decision, and it alone, is a judgment, a verdict, a 'sententia,' and not an order, an imperative command. And this is the reason why the law of civil procedure in Rome required that the magistrate should abstain from deciding the legal issue, and should refer such decision to a private person who is thereby appointed judex for purposes of the action. The principle of the division of all civil procedure into the two stages of proceedings in jure and proceedings in judicio is the elimination of the magisterial power from the domain of private law.

Cp. pr. I. de off. jud. (4, 17): Superest, ut de officio judicis dispiciamus, et quidem in primis illud observare debet judex, ne aliter judicet quam legibus aut constitutionibus aut moribus proditum est. Unlike the magistrate (sup. p. 28) the judex is absolutely bound by customary as well as other law. He is only allowed to depart from the law on the express instructions of the praetor (exceptio, actio in factum, &c.), and the responsibility for such a departure rests not on him, but on the magistrate alone. In applying the customary law the judex becomes, at the same time, an unconscious instrument for developing it. Bekker, Die Actionen, &c., vol. ii. p. 145 ff., is right in pointing out this fact, but he formulates his statement in a misleading manner, which would lead one to suppose, quite erroneously, that the judex had a right to develop the positive law similar to that exercised by the magistrate.

This is the reason why a magis

The

terial decision, even in civil matters,
could be annulled by the intercession of
a co-ordinate or a superior magistrate,
i. e. by means of a counter-order of equal
imperative force (imperium). One order
simply annulled the other. It was this
fact that gave rise to the system of
appeal as developed in the older Roman
law, one magistrate being 'appealed to
to intercede against the other.
practice of appealing to the emperor,
who was authorized to withdraw any
suit in the empire from the ordinary
courts for the purpose of bringing it
before his own court, led, during the
principatus, to the development of the
modern system of appeals, under which
(as in the old 'provocatio') the courts
are ranged in a series of higher and
lower instance, a higher court trying the
case over again with a view to pronoun-
cing a new judgment. Cp. J. Merkel,
Abhandlungen aus dem Gebiete des
römischen Rechts, Heft 2: Über die
Geschichte der classischen Appellation
(1883).

§ 34.

$ 35.

The issue, then, having been admitted and formulated in jure (litis contestatio), the next step is to pass it on for trial to a private judge, or judges, acting under oath. The proceedings before the judex are called the proceedings in judicio.' The object of these proceedings is, as we have already stated, to obtain a decision of the legal issue by means of the judgment (sententia) of the judex. The judge's first business will be to ascertain the facts of the case and receive such evidence as he deems necessary; after which he will proceed, according to the best of his knowledge and good faith (ex animi sententia), to pronounce judgment, i. e. to give his verdict on the legal relationship submitted to him.

While the procedure in judicio did not, as far as we can see, undergo any material alteration from the time of the Twelve Tables down to the end of the classical epoch, an important reform had been effected in the procedure in jure towards the close of the republic. The system of legis actiones was superseded by the formulary procedure.

$35. The Legis Actio.

The litis contestatio, with which the proceedings in jure terminated, was, in the early Roman procedure, a solemn act of the parties. When the arguments before the magistrate had concluded and the latter was about to grant a judicium, both parties, having solemnly called upon witnesses to testify to the issue between them, proceeded, in the presence of these witnesses, to formulate the issue in an unequivocal manner by means of their own formal act, using for this purpose, certain fixed traditional terms (litis contestatio, sup. p. 149). The formulae to be pronounced were determined either by the wording of a popular statute, the statute namely on which the action was based, or by old traditional custom which was regarded as possessing the same force as a law (lex). Hence it was that the act of performing the litis contestatio, nay, even the entire procedure of which the litis contestatio was the centre and pivot, was called a 'legis actio,' i. e. a proceeding according to the law. And

1 The litis contestatio itself is also called actio, as in Gajus iv. § 11: in

actione vites nominaret. And, in a formal sense, it is the real legis actio,

by an action, in the true, the normal, the proper sense of the term, § 35. was understood a proceeding which led to a litis contestatio of this kind, and, through it, to a judicium and the judgment of a sworn judge, as opposed to the decision of a magistrate, But there was yet another sense in which such a procedure could be called a 'legis actio,' in the sense namely that not only the form of the litis contestatio, but the very right of the party to claim a judicium in any such case on the ground of the litis contestatio, was determined by the lex, or custom having the force of lex. The Roman actio, in other words, represents a right of the plaintiff not only as against the defendant, but also as against the magistrate, a right, namely, to have a judicium, i. e. a right to have the judicial, as opposed to the administrative machinery, placed at his disposal, in a word, a right to have a private individual appointed for the purpose of deciding by his judgment the question at issue between him and his adversary. This title to a judicium, i. e. the actio, rests in early times on lex, or custom with the force of lex. And for this reason it was called legis actio.

Of legis actiones we have five-(1) the L. A. sacramento, (2) the L. A. per judicis postulationem, (3) the L. A. per condictionem, (4) the L. A. per manus injectionem, (5) the L. A. per pignoris capionem.

I. The Legis Actio sacramento.

The ordinary and most important form of the legis actio procedure was the so-called 'legis actio sacramento.' Both parties, with a view to the litis contestatio, solemnly affirm their legal claim. The plaintiff declares: 'ajo hanc rem meam esse ex jure Quiritium,' &c., and the defendant answers with the same formula. Thereupon both deposit a sum by way of wager, the so-called 'sacramentum,' which amounted, according to the matter in dispute, either to 50 or 500 asses, and which each party declares shall be forfeited, if his contention proves to be false. This wager supplied the formal basis for the judicium, i. e. the formulating of the issue, and, when once entered upon, may be presumed to have, at the

the solemn raising and opening of the legal issue in the ordinary course,

coupled with an application for a
judicium (sup. p. 149, note 2).

§ 35. same time, formally established, as regards the magistrate, the right to a judicium (i. e. the actio). If a man challenged another to a wager (sacramentum) in reference to some legal claim primâ facie possible, he was thereby enabled not only to compel his opponent to lay a counter-wager, but also to require the magistrate to appoint a judex. This legis actio was thus, in the truest sense, a legis actio sacramento, for the judicial wager was the basis both of the decision of the judicium and of the formal title to the judicium. The private right secured its actio by means of the sacramentum 2.

II. Legis Actio per judicis postulationem.

There were, however, some particular cases where the law annexed to the existence of certain facts, facts, namely, constituting contracts and delicts of a specified kind, an immediate actio or right to a judicium. There was no need to lay a wager (sacramentum) and incur the consequent perils of a law-suit. In order to compel the magistrate to direct a judicium, all that was required was that the plaintiff should affirm in jure the existence of the particular facts, whether a contract or a delict, and should, on the ground of such facts, in solemn words claim to have a judex appointed. But it was indispensable that the facts of the case should tally precisely with those indicated by the verba legis, and that therefore, in setting

It is probable that the compulsory force of the sacramentum as against the magistrate is based on the fact that, originally, it was not merely a matter of money laid against money, but oath against oath (i. e. sacramentum, in the ordinary sense of the word). The person tendering the oath pledges, for the truth of his oath, either his own person (i. e. he consecrates himself to the gods), or he only pledges some portion of his property which he thereby consecrates to the gods, which he, in other words, agrees shall be forfeited to the gods, if the decision goes against him. In civil proceedings, the latter kind of oath, where a man merely stakes some portion of his property (the 'Vieh-Eid' of German law), is sufficient. Even it, moreover, was enough to raise a question which required to be decided by an objective judgment; in

other words, was enough to deprive the magistrate of all power to reserve the matter for his own decision (decretum), and to compel him to appoint a sworn judge (judex), or a college of sworn judges (e. g. the centumviri), to decide it by means of a verdict, or sententia. The oath, in a word, establishes the actio, i e. the claim to a judicium. Subsequently the oath was dropped, and the consecrated sum of money (sacramentum, in this sense) alone remained, though, as a matter of fact, the actual depositing was, in later times, dispensed with, the money being merely promised. Schultze (loc. cit. P. 455 ff.) regards the sacramentum as a judgment given by the party on his oath. Of course it is a judgment in the logical sense of the term, but scarcely a judgment in the sense of civil procedure, i. e. in the sense of deciding the question at issue.