actio procedure. An act of writing was, in the eye of the early law, § 37. an informal act devoid of all solemnity, and was therefore, in the legal sense of the jus civile, really no actio at all, i. e. it was not an act by which a person's statutable right of action was, at the same time, exercised and exhausted (sup. p. 163). As far as its nature and the law were concerned, the formula could, ipso jure civili, be retracted, repeated, or amended, if the decree of the praetor so directed. For the civil law it had simply no existence, since it was a mere creation of the jus honorarium; at civil law therefore it was not a litis contestatio at all, so that there was legally speaking (ipso jure) nothing to prevent the identical claim being brought before the praetor by action and carried on to the judicium twice over. The lex Aebutia and the two leges Juliae made the formulary procedure as applied in the judicium legitimum (p. 169) the only exception. In this particular instance the civil law had given its recognition to the formulary procedure. If a suit were commenced in the judicium legitimum with an actio in personam (§ 39) and an intentio juris civilis (§ 38), the effect was ipso jure to consume the right of action and render any repetition of the proceedings impossible, just as had been the case with the old legis actio. In all other cases however— and they formed the great majority-the praetor was obliged, in each separate instance, to insert an explicit instruction, in the shape of an express 'exceptio rei judicatae vel in judicium deductae,' in order to prevent a cause which, under the formulary procedure, had already led to the institution of a judicium, or perhaps even been carried to the final judgment, from passing through every stage of the action a second time. From this it appears that it was not the action as 2 GAJ. Inst. IV § 106. 107: Et si quidem imperio continenti judicio actum fuerit, sive in rem, sive in personam, sive ea formula, quae in factum concepta est, sive ea, quae in jus habet intentionem, postea nihilominus ipso jure de eadem re agi potest; et ideo necessaria est exceptio rei judicatae vel in judicium deductae. Si vero legitimo judicio in personam actum sit ea formula, quae juris civilis habet intentionem, postea ipso jure de eadem re agi non potest, et ob id exceptio supervacua est; si vero vel in rem vel in factum actum fuerit, § 37. such (neither the institution of the judicium nor the sententia of the judex) which operated to consume the right of action in the early law of procedure, but solely that solemn legal act by means of which the party himself brought about the appointment of a judex, in other words, the legis actio in the strict sense of the term, the old formal litis contestatio. And this very act had been dropped in the formulary procedure. In contemplation of law, the operative force of the granting of the formula was-apart from the exception adverted toinferior to that of the old litis contestatio. Nevertheless this modest formula, this written notice so bald and succinct, which the praetor conveyed to the judex, contained potentially the entire future development not only of the law of Roman civil procedure, but also of Roman private law and, with it, of Roman law in general. The ancient legis actio procedure, with its litis contestatio tied to set traditional words, offered but an extremely limited choice of ways in which to formulate the legal issue. If none of these traditional forms was strictly appropriate, the only remedy supplied by the civil law was to have recourse to the so-called 'procedure by sponsio' (agere per sponsionem). A made a formal promise (sponsio) to his opponent B that, if the allegation of fact or law put forward by B were true, he (A) would pay a sum of money. This sponsio could be enforced by a legis actio sacramento in personam (sup. p. 161), and the judicium on the sponsio would involve a judicium and sententia on the question of law or fact which formed the basis of the promise. The amount of the sponsio was never actually paid, because a sponsio of this kind (a so-called 'sponsio praejudicialis ') was not designed for the recovery of a sum of money, but was merely intended to bring on an action; to serve, so to speak, as a device for forcing on legal proceedings3. right of action ope exceptionis, the rule 3 It was different with the so-called 'sponsio poenalis,' which was a sponsio on the result of an action, the parties themselves contemplating the payment of the money. On the defendant tendering a sponsio poenalis, the plaintiff had to reply with a 'repromissio,' i. e. a promise to pay the same amount if On the other hand, there was no tradition to fetter the formula of § 37. the praetor. In the old litis contestatio the issue was formulated in narrowly prescribed terms; in the new formula the terms used were informal and freely chosen by the magistrate. The formula was thus well adapted as a means for directly submitting to the decision of a judex in judicio any question, or complex of questions, which the praetor deemed actionable. The praetor himself was now in a position, while formulating the legal issue, to give the judex at the same time direct instructions in reference to the decision of such issue. For whether the judge condemned or acquitted depended now solely on the manner in which the praetor formulated the question in dispute. The formula was bound to become, and did in fact become, the instrument by means of which not only the wording, but also the decision of the legal issue was emancipated from the trammels of the ancient statute-law and the exclusive influence of the civil law. The formula, in a word, was the weapon by which the praetor and his jus honorarium were enabled to assert their dominant influence over the whole development of Roman law. The legis actio and everything connected with its development and interpretation was in the hands, not of the praetor, but of the pontifices. In the legis actio procedure the judex was independent of praetorian instructions. Officially he was only bound to abide by such instructions regarding his judicium as were contained in the solemn litis contestatio of the parties, and in giving his decision on the issue thus joined, he was obliged to act in accordance with the civil law, and more especially in accordance with the pontifical interpretatio. In jure the magisterial power was paramount; in judicio, however, the old civil law, preserved and handed down by statute and pontifical tradition, and operating through the judex as its organ, held absolute sway. But now the relation between praetor and judex and with it the relation between the jus praetorium and jus civile was altered. The praetorian decree of appointment (formula) had come to be binding even in civil law matters. That is to say, even in civil law cases, it defeated in the action. No repromissio was required in the case of the sponsio praejudicialis. GAJ. iv. §§ 13, 94, 171; N § 37. was now not enough that the judex should simply decide in accordance with the civil law; he was obliged, in the first instance, to decide on the basis of the praetorian formula, having regard always to such limitations and instructions as were conveyed in that formula. Thus within the domain of the civil as well as the praetorian law the judex became dependent on the praetor. He was bound by the instructions (formula) of the praetor to acquit the defendant even where, according to the civil law, he ought to have condemned him. In other cases he was bound conversely, in virtue of the praetor's instructions again, to condemn the defendant where the civil law would have required his acquittal (§§ 38, 40). With one stroke the judex had been converted from an organ of the civil law into an organ, in the first instance, of the praetorian law. Through the medium of the formula the praetor was now master of the whole legal procedure, including the procedure in civil law causes, and the edict began henceforth to dominate the practice and development of the law. Apart from the centumviral causes, the enforcement, in the courts, of the civil law was now entirely subject to the limitations which the praetor in his edict thought fit to impose on it. The lines are thus marked out upon which Roman law in the whole course of its subsequent development proceeded. It is certain that the formulary procedure obliterated, beyond recovery, the clear sharp line which had hitherto severed jus and judicium. The judex ceases to be, even for the jus civile, an independent private individual, bound by nothing but the positive law. He becomes an organ of the magisterial power and is already beginning to assume the character of a subordinate official. Thus the development of the formulary procedure was a decisive element in paving the way for the subsequent elimination of the distinction between jus and judicium (§ 44). And while thus securing full control over the judex, the praetor at the same time definitively appropriated to himself a predominant influence over the whole evolution of Roman law. The formulary procedure marks the beginning of that vigorous development of the jus honorarium, so momentous in its consequences, which resulted in the metamorphosis of the jus civile and the birth of classical Roman law. A reform of procedure was § 37. followed by a reform of the law itself. § 38. Intentio and Actio. Every formula commences with the appointment of the judge (Titius judex esto) or college of judges (Titius, Maevius et Lucius recuperatores sunto). This appointment-itself the origin of the formula-now only serves the purpose of an introduction to the real substance of the formula. The formula is generally framed as an order to condemn, and consists accordingly, as a rule, of two main parts: the 'intentio' and the 'condemnatio.' The form is, in outline, as follows: If you (judex) are satisfied that such and such a right exists, or such and such a fact is true (intentio), condemn the defendant (condemnatio); if not, acquit him: si paret-condemna; si non paret, absolve. The intentio specifies the condition on which the condemnatio is to take place. It formulates the question at issue, i. e. the question which, if answered affirmatively (si paret), carries with it a verdict in favour of the plaintiff. The nature of this question and consequently the contents of the intentio determine the nature of the action. There are as many different kinds of actions as there are different kinds of intentiones. Now the question at issue may be either one of law or of fact. Whether a thing belongs at civil law to the plaintiff, or whether the defendant is under a civil obligation to do something, is a question of law. In such cases the intentio is framed to include the words '... ejus esse ex jure Quiritium' or 'dare oportere,' and the actio is said to be an actio 'in jus concepta.' But the question at issue may be merely one of fact. Civil ownership is not alleged nor civil liability. All that is alleged is some particular fact, or group of facts, to which the praetor, and he alone, has annexed a right of action. For example, it is a question of fact whether A has pledged a thing by way of hypothec to B, and if B can prove his case, he can take a real action on the pledge, but it is only the praetor, not the civil law, that gives him such a right. Again, it |