Page images
PDF
EPUB

litigation was tolerably scanty, we may believe that the praetor decided most suits in person, and perhaps it may be doubted whether he might constitutionally refer them to a single iudex before the enactment of the lex Pinaria. The lex Silia made such reference obligatory in a large class of actions, and an impulse must also have been given to the practice by the introduction of iudicis arbitrive postulatio. But after the lex Aebutia, the distinction between ius and iudicium is strongly emphasised, the latter acquiring more prominence as the former became less formal. The main object of the proceedings in iure, as of the pleadings in an English action, was to determine the issues to be tried; their actual trial took place in iudicio. The other and more characteristic feature of the new system is the commencement of the action, after summons and appearance, by a written document (formula, concepta verba) addressed by the praetor to the iudex who was to try the action, and containing his authority, and a brief statement of the issues along with the principle upon which he was to decide them. The praetor stated in his edict the circumstances under which he would grant an action, e. g. 'if Aulus assaults Titius, or if Titius refuses to repay a loan given him by Seius, iudicium dabo;' and the skeleton of the formula was taken from the edict, or from some special department of it known as the album, and filled out with flesh and muscle from the allegations of the parties. It was no part of the praetor's duty to construct the formula. It was incumbent on the plaintiff to see that it contained every word and letter which was essential to his case; it was the defendant's business to see that any defence which he had, and which by technical rules of pleading was required to be referred to in the formula, should there be alluded to accordingly. In a word, the skilful 'building up' of a perfect formula was a task of much nicety, in which a litigant frequently required considerable technical assistance. When the parties had finally agreed upon its structure, it was 'settled' by the praetor, and the business in iure was over. Thus, the formula might, and usually did, contain a number of clauses, some of them due to and containing, as it were, the case of the plaintiff; others due to and to a certain extent containing the defence of the defendant.

At the head of the formula stood the appointment of the iudex; e. g. Aulus Agerius iudex esto1. The other possible portions, though

1 For purposes of convenience it is assumed that the case is sent for trial before a single iudex. Often, however, it was heard by a number of iudices sitting together, who were then called recuperatores; though it is quite uncertain what kinds of cases were usually treated in this manner. It is hardly necessary to warn the

never all found together, usually followed in much the same relative order. We will first examine those inserted in the interest of the plaintiff.

[ocr errors]
[ocr errors]

The Demonstratio, when found in a formula, immediately follows the appointment of the iudex, and contains the allegation of fact upon which the plaintiff bases his claim. It invariably begins with quod,' 'whereas ;' e. g. in Gaius iv. 39 'quod Aulus Agerius Numerio Negidio hominem vendidit;' or apud Numerium Negidium hominem deposuit.' Occasionally the place of the demonstratio is taken by a praescriptio (pro actore), and sometimes even the latter is prefixed to or worked into the former; its use is confined to formulae upon actions in which the plaintiff is entitled from the defendant to a number or variety of acts prima facie hanging together, but of which one only, or at least not all, are claimed in the present action. By the praescriptio, beginning ea res agatur, let the present trial relate exclusively to so and so,' the plaintiff reserved his right of action upon the other acts, or those subsequently to fall due, which would otherwise have been consumed; it being a presumption of Roman law (capable, however, of being rebutted by the insertion of a praescriptio in the formula) that when a man instituted an action, it comprised all his claims against the defendant, prospective no less than present, so far at least as they related to the present ground of action, and already had at least a potential existence. Two examples are given by Gaius. In the one, a man to whom an annuity is payable, say, every six months, sues for a half year's instalment, using the praescriptio 'ea res agatur cuius rei dies fuit ;' in the other, the purchaser of an estate, claiming that it shall be conveyed to him by mancipation, reserves to himself the right of subsequently demanding its mere traditio by a praescriptio in the form ea res agatur de fundo mancipando.'

The Intentio, which follows the Demonstratio if there be one, is the part of the formula 'qua actor desiderium suum concludit,' in which the plaintiff either affirms the legal right which he claims against the defendant, or else states a fact or facts (in which latter case there is never a demonstratio) from which the right is to be inferred. It is easily to

The former was

reader against confusing the Roman iudex with an English judge. merely a private citizen, appointed by the praetor after amicable selection by the parties, to determine certain issues of law and fact in accordance with the evidence laid before him. Towards the end of the republican period the office, which had previously been thought an honour, came to be regarded as a burden; and this led to the institution by Augustus of an 'album iudicum selectorum,' from whom the judge had to be chosen, and who were compellable to hear cases sent to them by the praetor.

be distinguished from the other parts of the formula by the term paret (si paret, quicquid paret); and if it affirms a right, it is said to be in ius concepta,' if it merely implies a right by directing the judge to decide for or against the plaintiff according as he finds certain alleged facts to be true or untrue, it is said to be in factum concepta.' The numerous divisions of Roman actions found in the fourth book of Gaius are based almost entirely on the structure of the intentio; for this being the part of the formula in which we find, expressly or impliedly, the right alleged by the plaintiff, it is by reference to it that we are enabled to distinguish actions according to the rights which they are designed to protect. If the intentio of one formula differs substantially in structure from that of another, we know at once that the actions themselves, and the rights which they respectively protect, are substantially different as well.

The principal divisions of actions, so far as they arise from differences of structure in the intentio, are as follow.

i. The intentio is either directed against the person of the defendant, and names him (e. g. si paret Aulum Agerium Numerio Negidio sestertium x millia dare oportere), or it merely specifies the object to which the plaintiff's claim relates (e. g. si paret Auli Agerii hominem, fundum, hereditatem, ius utendi fruendi, esse). In the first case the action is in personam, and brought to enforce an obligation; it is called 'actio' Kaт' ¿§oxýν (p. 332 supr.). In the second case it is in rem, and asserts either ownership or a ius in re aliena as belonging to the plaintiff ; its specific name is vindicatio or petitio. A real action claiming a servitude was called actio (in rem) confessoria; one denying the right of another person was called negativa or negatoria.

ii. Certain actions in personam are divided into certae and incertae, according as the act claimed by the plaintiff relates to a certum (res or pecunia) or an incertum. In the former case-if, that is to say, the obligation of the defendant was to pay an ascertained sum of money, or to transfer a res or a definite amount of some res, such as corn, wine, or oil, the intentio ran 'si paret (reum). . . dare oportere;' and if the certum were money, the action was substantially identical with the old condictio under the lex Silia, and involved a penal sponsio and restipulatio of a third of the sum in dispute. In the latter case-if, that is to say, the obligation of the defendant was incertum, i. e. not to transfer such or such res or pecunia, but to perform some other personal act or service-the proper word for the intentio was not dare, but facere, though the two were here usually combined, so that the intentio ran 'quicquid paret N. N. : A. A. dare facere oportere.'

Personal actions on delict which were not penal, but reparatory (e. g.
condictio furtiva) claimed an incertum, and had a peculiar intentio
(e. g. si paret A. A: N. N. pro fure damnum decidere oportere). These
three forms of intentio in personal actions-dare, dare facere, and pro
damno decidere correspond to the common Roman division of
obligations according as they consist in dando, faciendo, or praestando:
and the two first, when standing alone, without the addition ex fide
bona' to be shortly noticed, are characteristic of the action known in
the formulary system as condictio. Condictio is either certi, triticaria,
or incerti. (1) Condictio certi corresponds to the old legis actio
introduced by the lex Silia; it is the appropriate action for the re-
covery of certa pecunia, and its intentio runs si paret A. A. : N. N.
x milia sestertium dare oportere.' (2) Condictio triticaria corresponds
to the legis actio as extended by the lex Calpurnia, and lies for the
recovery of certa res : its intentio runs 'si paret A. A. : N. N. fundum,
hominem, tritici x modios dare oportere.' (3) Condictio incerti is the
remedy where the obligation is to perform some personal act other
than a conveyance, and is usually brought upon a stipulation; hence
its more common name is actio ex stipulatu; the form of the intentio
is 'quicquid dare facere ... oportet.'

6

iii. Condictiones are called stricti iuris iudicia. Contrasted with them is another class of actions in personam, descended from iudicis arbitrive postulatio, and called sometimes arbitria, but more properly bonae fidei iudicia1. They are enumerated in Gaius iv. 62, Bk. iv. 6. 28 supr., the commonest of them being the actions on contracts iuris gentium exclusive of mutuum. The name is derived from the addition of the words 'ex fide bona' in the Intentio (e. g. quicquid ob eam rem A. A.: N. N. ex fide bona dare facere oportet), which indicate that the plaintiff's demand is of something more 'incertum' even than in condictio incerti; its value is to be ascertained only by a careful balancing and adjustment of conflicting claims, and consequently the judge is here allowed a far greater latitude of discretion; the procedure is that of equity rather than of law 2.

iv. Another division of actions based upon structural difference of Intentio is that into actio directa and actio utilis, which grew out of the practice of extending an action to cases which did not come within

1 The term arbitrium in Roman law, in the sense of an action, means either an actio arbitraria, p. 545 supr., or a bonae fidei iudicium; and the person who tries an action of either of these classes is called arbiter as often as iudex.

2 For the principal specific points of difference between stricti iuris and bonae fidei iudicia see on Bk. iv. 6. 28 supr.

1

its original scope by the introduction of a fiction into the Intentio, whereby the iudex was instructed to decide the case as if the conditions under which (in ordinary circumstances) the action would lie existed, whereas in point of fact they did not. Such an action was called actio fictitia, and is described by Gaius as one 'quae ad aliam actionem exprimitur, which is moulded upon a pre-existing and independent remedy,' the latter being said 'sua vi ac potestate constare.' Of fictitious real actions an example may be found in the actio Publiciana', in which it was feigned that the period of usucapio had run its full course; personal actions containing some similar fiction may be illustrated by the actio Serviana (Gaius iv. 35), in which the bonorum emptor fictitiously represented himself as the insolvent's heir, and by the condictio furtiva against a peregrinus, where the latter was represented as a civis (ib. 37). Where there was no fiction whatever, nor the slightest trace of one, the action was said to be directa; where there either was a fiction or some covert reference in the intentio showed that the action lay on the case in question in virtue not of the substantive law, but of the praetor's quasi-legislative authority as exercised through the edict, it was said to be utilis. An actio utilis was thus always modelled on an actio directa; where this was clear upon the face of the formula, it was actio fictitia ; where not, but the derivation was less patent, it was actio utilis pure and simple. As examples of the latter may be cited the actions brought by the fidei commissarius under the SC. Trebellianum, by the principal on contracts made for him by his agent, and that referred to in Gaius iii. 219.

v. The difference between an intentio in ius and one in factum concepta has already been pointed out. The one affirms hypothetically or indefinitely a right belonging to the plaintiff by the civil law 2, though (in actiones fictitiae) belonging to him thus only by a fiction. By the other, the iudex is directed to inquire, not, whether so and so belongs, as of right, to the plaintiff, or whether the defendant is under a civil obligation to do so and so for him; but whether certain allegedfacts are true, and (if so) to find for the plaintiff; and such an Intentio is said to be in factum concepta because it does not directly affirm a right, but only a state of facts, though, if the affirmation is found to be

1 Gaius iv. 36. Cf. the description of this action given in Bk. iv. 6. 4 supr. 2 E. g. si paret fundum... Auli Agerii esse, if it be proved that the title to the estate is in Aulus Agerius; si paret... Aulum dare oportere, if it be proved that he is under an obligation to convey; quicquid paret . . . dare facere oportere, whatever it be proved is the content of his obligation.

« PreviousContinue »