vero infecti nemo vult lege agere, sed potius stipulatione § 49. § 50. The Formula. The formula (i. e. the decree appointing the judex or the several § 50. recuperatores) had now become the medium through which the litis contestatio was effected, through which, in other words, the processual agreement was concluded whereby the legal issue was formulated for the purpose of a decision in judicio'. The written formula of the magistrate superseded the oral formula of the parties. In point of legal force this new kind of litis contestatio was theoretically inferior to the solemn act of the parties in the legis actio procedure. An act of writing was, in the eye of the early law, an informal act devoid of all solemnity, and was therefore in itself, in the legal sense of the jus civile, no actio at all, i. e. it was not an act by which a person's statutory right of action was, at the same time, exercised and exhausted (supra, p. 253). There was nothing in the nature of the formula itself or in law (ipso jure civili) to prevent the formula from being retracted, repeated, or amended, if the decree of the praetor so directed. Being a mere creation of the jus honorarium, it did not, according to the civil law, operate as a litis contestatio at all, so that there was legally speaking (ipso jure) no reason why the identical claim should not be brought before the praetor by action and carried to a judicium twice over. The lex Aebutia and the Julian legislation made the judicium legitimum (p. 260) the only exception; that is to say, the civil law had given its recognition to the formulary procedure only in cases of actions instituted between Roman citizens within the first milestone from Rome. If the plaintiff in a judicium legitimum sued by actio in personam (§ 52) with an intentio juris civilis (§ 51), the effect of the formula, like that of the old legis actio, was ipso jure to consume 1 As to the form of the litis contestatio in the formulary procedure, v. supra, p. 238, n. 2. The formula granted by the praetor was either handed to, or $ 50. the right of action and render any repetition of the proceedings impossible. 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 matter which, under the formulary procedure, had already led to the institution of a judicium and had perhaps even been carried to final judgment, from passing through every stage of an action a second time. From this it appears that it was not the action as 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 processual agreement as embodied in the formula was-apart from the exception adverted to-inferior 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 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, ipso jure nihilominus postea agi potest, et ob id exceptio necessaria est rei judicatae vel in judicium deductae.-In the case of a judicium legitimum however (if the plaintiff sued by actio in rem or in factum) the praetor was, ex officio, under a statutory obligation to grant the exceptio (which belonged in this instance to the class known as 'civil' exceptiones, infra, p. 293), whereas in an action brought imperio continenti judicio it was within the discretion of the praetor whether he would grant the exceptio or not. Cp. Wlassak, Cognitur, p. 67; Processgesetze, vol. ii. P. 356. in which to formulate the legal issue. If none of these traditional $ 50. 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 (supra, p. 251), 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, being simply a device for forcing on legal proceedings ". On the other hand, there was no tradition to fetter the formula of 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. Through the medium of the formula, therefore, any question, or complex of questions, which the praetor deemed actionable, could, by virtue of the processual agreement of the parties, be d ectly submitted to a judex for decision in judicio. 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 for purposes of the processual agreement between the parties. 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. It was different with the so-called 'sponsio poenalis,' which was a sponsio as to 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 § 50. 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 praetor had had no control over the legis actio. Its development and interpretation were entirely in the hands 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 interpretation. 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 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 formula as drawn up by the praetor and accepted in due form by the parties, 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 an acquittal (§§ 51, 53). At 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 now controlled the processual agreement between the parties, and, through it, the entire procedure even in civil law matters. The edict began henceforth to dominate legal procedure and the general development of the law. Apart from the centumviral causes, the enforcement, in the § 50. courts, of the civil law was now entirely subject to the limitations which the praetor by 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 sharp distinction which had hitherto existed between 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 antithesis between jus and judicium (§ 57). And while thus securing 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 followed by a reform of the law itself. § 51. Intentio and Actio. Every formula commences with the appointment of the judge § 51. (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 |