On the Proceedings in a Roman Civil Action.

361

to appear when the Praetor directed their case to be called on (citavit), the result, in case the plaintiff were in fault, was that he lost his case, (causa cadebat,) but the judgment was not final and in bar of all further proceedings. In case the defendant were in fault, his vadimonium was said to be desertum, and the plaintiff was authorized to sue him or his bail (which he pleased) ex stipulatu, for the amount stated in the vadimonial formula. Another means of securing attendance in court was a sponsio, entered into by the parties themselves without the intervention of sureties; and then on default of appearance a missio in possessionem was granted. This was given by the Praetor's edict, and enabled the plaintiff to be put in possession of the defendant's goods1.

Such was the process by which care was taken on the one hand to prevent frivolous and vexatious actions, and on the other to bring the parties to joinder of issue, or to that stage where a formula could be granted. For this purpose the forms were these.-The Praetor having taken his seat in court, ordered the list of all the actions that had been entered and demanded two days back to be gone through, and the parties to them to be called into court. His object in doing this was to dispose of the vadimonia and to fix the different judicia. The case, therefore, being called on, supposing both parties were ready, the defendant, in reply to the citation, said, "Where art thou who hast put me to my bail, where art thou who hast cited me: see here I am ready to meet thee; do thou on thy side be ready to meet me." The plaintiff to this replied, "Here I am:" then the defendant said, "What sayest thou?" The plaintiff rejoined, "I say that the goods which thou possessest are mine and that thou shouldest make transfer of them to me." This colloquy being ended, the next step was for the plaintiff to make his postulatio to the Praetor for a formula and a judex. These the Praetor could refuse, in some cases at once, in others upon cause shown. Supposing he assented to the postulatio, he granted a formula, but first heard both parties upon the application. At this stage the defendant was allowed either to argue that there was no cause of action, or to urge the insertion of some particular plea; the plaintiff on the other hand was entitled to ask for a judicium purum, that is, a simple issue without any special plea, or to press for a replication to such plea as was granted, and to this the defendant might rebut (triplicare) and the plaintiff sur-rebut (quadruplicare), and so on. These preliminary arguments took place pro tribunali, the technical term for them being constitutio judicii2. On their conclusion the formula was settled, and the postulatio judicis having been made, the final act followed by which an end was put to the pleadings, the issue of fact being drawn and sent in the formula to the judex or to recuperatores. If the issue had proved to be one of law, the matter would have never gone to a judex at all, but have been settled in jure by the Praetor. The formula itself and its component parts are so fully and clearly described in the text of Gaius that it is needless to do more than refer to that for explanation of them 3.

We have now arrived at the period of the proceedings when the parties were in a position to have the real question between them settled; that is to say, when they were before a judex whose business it was to try the point

1 This missio in possessionem was granted against any one who was to blame for preventing a suit from going on regularly. Its consequences were so severe in their effect upon the defendant's property and character that Cicero denounced in strong language the hardship of granting

a sponsio in case of Quinctius. See Pro Quinct. 8, 9, and 27.

2 See Cic. Oratoriae Partitiones, 28, "Ante judicium de constituendo ipso judicio solet esse contentio;" and Cic. de Inv. II. 19.

3 IV. 39.

remitted to him in the formula'. A few words, then, upon the nature and extent of the jurisdiction of the judex will not be out of place. The judex was a private person, not a trained lawyer 2; his position with reference to the parties was a combination of arbitrator and juryman; arbitrator, because he was entrusted with what in effect was the settlement of the matter in dispute between the parties; juryman, because his action was confined simply to announcing his decision. If he had been able to complete the inquiry by giving a decisive judgment and enforcing it himself, his powers would have been very similar to those of an English county court judge. These, however, were more limited. Yet, though he was bound by the terms of the formula to try the question of fact, he was not so completely confined to it as to be unable to examine and decide upon such matters of law as were incidentally connected therewith. To protect him against the chance of mistakes in law he was allowed to claim and receive the advice of the Praetor or Praeses3: and in later times, if not in the days of Cicero, he was also able to obtain advice from a consilium who sat on benches near him. (Aul. Gell. Noct. Att. XIV. c. 2.) And, further, his decisions upon legal points were subject to the control and review of the Praetor, who might annul the sentence, and either refuse to execute it or, if necessary, send it for a further hearing.

In the trial itself his authority was strictly confined to the facts specially laid before him; in other words, he had no power to travel out of the record and decide upon collateral matters of fact, at least in actions stricti juris, for he was able to add pleas in equitable actions (actiones bonae fidei). The intentio and the condemnatio were his guiding lights; from them he learned the real nature of the inquiry, and by them he was strictly limited. From the one he knew what the plaintiff was to establish; by means of the other he was at little or no difficulty in making his decision.

The cause then was called on, and the parties were summoned into court, in judicium. On their appearance, the oath of calumnia was administered to them 5, and when that had been taken, the advocates (patroni) were expected to open the cases of their clients. This they did with a very short outline of the facts. After this brief narrative, called causae collectioế,

1 The matter was now in judicio, as opposed to the previous enquiries, which were in jure. Were it necessary to try to find corresponding English terms, one might apply those of "sittings at Nisi Prius and in Banco."

It is beyond the scope of this note to dwell at full length on the important subject of Roman Pleading. There are therefore many matters which cannot now be explained; such as the consequences resulting from the litis contestatio; the novation effected by the litis contestatio III. 176, 180, and D. 46. 2. 29); the plaintiff's power of interrogating in jure, (not very unlike our own common law interrogatories); confessions and acknowledgments; the oath tendered by the parties each to the other before the Praetor; the prima and secunda actio and the causae ampliatio; the law terms and times of trial at Rome and in the Provinces; and other matters of a similar nature, which would fill the pages of a more exhaustive commentary on the Roman Law than this assumes to be.

2 A list of Judices selected from the

body of cives was drawn up by each Praetor on the commencement of his year of office, and entered in his Album. From this list the litigants made their own selection (cf. pro Cluentio, 43). Strictly speaking, the plaintiff nominated the Judex, but the defendant's acceptance was necessary. Cic. de Orat. II. 70.

3 This assistance was confined entirely to questions of law; for as to matters of fact, the Judex was to rely upon his own judgment and to decide". prout relligio suggerit." D. 5. 1. 79. 1. The importance and varied work of the judices are evidenced by the fact that the title of a book of the Digest, containing upwards of 80 laws, is devoted to the Judicia, D. 5. 1.

4 "Ultra id quod in judicium deductum est excedere potestas judicis non potest.' D. 10. 3. 18.

5 IV. 172, 176. The judex himself, on taking his seat, had to swear to do his duty faithfully and legally. This he did in a set form of words, and with his hand on the altar (the puteal Libonis).

6 IV. 15. In the Digest it is called causae conjectio. D. 50. 17. I.

On the Legis Actio per Judicis Postulationem.

363

the evidence was adduced, and at the close of the evidence each advocate made a second speech, urging all that could be said in his client's favour and commenting on the evidence that had been brought forward. The time occupied by these speeches was not left to the discretion of the advocates, but limited to so many clepsydrae1. When the cause had thus been fairly gone through, the last stage in the judicium was the sentence. Here the judex was, as we have mentioned above, strictly limited by the formula, and if he travelled out of it, and either assumed to decide upon what was not before him or touched upon collateral matter, he was said litem suam facere, and was liable to a penalty for his mistake. With the announcement of his sentence his power and authority in the suit ended. The execution of the sentence rested with the Praetor, but a delay of 30 days was allowed between the sentence and its execution. When that time had expired the sentence became what was called a res judicata, and upon it the successful party could bring his action for twice the amount of money awarded by the judex, and could also obtain a missio in possessionem until his opponent's property was sold to pay the judgment-debt. All this part of the cause was in the hands of the Praetor, whose imperium enabled him to direct proceedings against the party refusing to comply with the decision of a judex.

(M). On the Legis Actio per Judicis Postulationem.

The strict nature of the actio sacramenti and the serious risk attaching to it of losing the amount deposited by way of sacramentum must have led to devices for withdrawing the settlement of litigious matters from that action and getting them tried in a less strict form, in fact, to the introduction of a process in which equitable constructions might be permitted. It is here then that we may find the germ of those equitable actions that under the name of actiones bonae fidei formed so important and valuable an adjunct to the Roman system of procedure.

That the custom of demanding a judex was a very ancient one even in Cicero's time we learn from a passage in the de Officiis (III. 10), where he speaks of it as "that excellent custom handed down from the practice of our forefathers.

Various well-established facts show not only the early efforts made to mitigate the severity of the old common-law forms by equitable expedients, but the direction that those efforts took, viz. the withdrawal of suits from the common-law judges and from the trammels of common-law forms.

Hence we may reasonably conclude in the first place, that all actions which might by any possibility be treated equitably were allowed to be heard by a judex or an arbiter, and next with equal reason infer that all such actions as would be settled in a clearer and safer manner by some process not so narrow or so unsuited to the question at issue as that of the actio sacramenti, such as suits about boundaries, about injuries caused by rainfalls and waterflows, all matters requiring technical knowledge and skilled witnesses, or, as in the case of the actio familiae erciscundae, careful and detailed treatment, and all actions requiring an adjustment and rateable allotment of claim, or an equitable division of damages and interest instead of an assignment of the thing itself, were referred to a judex, withdrawn from the sacramental process and handed over to that called judicis postulatio. See Cic. de Legg. III. 21, D. 43. 8. 5, D. 39. 3. 24, D. 10. 2. I.

1 Pliny, Ep. II. 11, IV. 9, VI. 2. 8 IV. 52.

3 Cic. de Legib. 1. 21. D. 43. 8. 5. D. 39. 3. 24. D. 10. 2. I.

INDEX.