a more refined jurisprudence or his own sense of what was right suggested to him. These formula, so flexible in their general character, yet couched in terms always precise and simple, furnish one of the many admirable instances of the power of the Romans to express correctly the subtlest legal ideas; and it was by this machinery that the prætors principally introduced their great legal changes. But it may be observed that, although the old actions of law became obsolete, traces of them are to be found in the prætorian system. Thus, in certain actions the parties entered into a wager, sponsio pœnalis, evidently a relic of the old actio sacramenti, by which each stipulated with the other for a sum of money to be paid as a penalty by the loser in the action to the successful party. 100. To show what these formula were, it will perhaps be Example of best to give at length one of those we find in Gaius, a formula. and then to explain its different parts. One which we may collect from different sections of the Fourth Book runs thus: Judex esto: Quod Aulus Agerius Numerio Negidio hominem vendidit; si paret Numerium Negidium Aulo Agerio sestertium X. millia dare oportere, judex Numerium Negidium Aulo Agerio sestertium X. millia condemnato, si non paret, absolvito. Judex esto is merely the order for the appointment of the judge, and is not, strictly speaking, a part of the formula. From 'quod' to 'vendidit' is what is called the demonstratio; from 'si paret' to 'dare oportere' is the intentio; and from 'judex' to the end is the condemnatio. The formula ordinarily consisted of these three parts-the demonstratio, the intentio, and the condemnatio. Demonstratio. 101. The demonstratio is the statement of the fact or facts which the plaintiff alleges as the ground of his case.† Aulus Agerius, the plaintiff, says that he has sold a slave to Numerius Negidius. The demonstratio varied, of course, with each particular case. 102. The intentio was the really important part of the formula. It was a precise statement of the demand which the plaintiff made against (tendebat in)‡ his adversary. It was necessary that it should exactly meet the law which would Intentio. GAIUS, iv. 40-43. † GAIUS, iv. 40. GAIUS, iv. 41. govern the facts alleged by the plaintiff, if true. Whether Aulus Agerius has sold this slave to Numerius Negidius at the price he alleges, and whether the debt is still owing, this is what the judex has to determine; if the judge thinks he has (si paret), then the judge is instructed to pronounce his judgment against him; if he thinks he has not (si non paret), he is to be absolved. 103. The condemnatio is the direction to condemn or absolve according to the true circumstances of the case. The Condemnatio. judex was only a private citizen, and, unless specially authorised by a magistrate, could have no power to pronounce a judicial sentence. It is to be observed that the condemnatio was, under the formulary system, always pecuniary; the judge was always directed to condemn to a payment of money, never to do or give a particular thing. In three particular actions, however, and perhaps in more, the judge was directed to 'adjudicate' a thing, in the sense of dividing it out among several litigants. These three actions were those brought to divide a family inheritance, to divide the property of partners, and to settle boundaries. In these actions there was a part of the formula running thus: quantum adjudicari oportet, judex Titio adjudicato. This was called the adjudicatio; so that in these actions the parts of the formula might be four-demonstratio, intentio, adjudicatio, and condemnatio. Of course when a thing, and not a sum of money, was claimed, it was not possible for the magistrate always to fix a precise sum in which the defendant was to be condemned. Sometimes, therefore, the condemnatio merely fixed a maximum sum, and ran duntaxat X. millia condemnato. Sometimes the direction was still more indefinite, and the sum was left to the discretion of the judge. Quanti ea res erit, tantam pecuniam, &c., condemnato. Sometimes, too, as when the action was real, i.e. brought to claim a thing, the actio was arbitraria, and the words nisi restituat were inserted in the condemnatio. The defendant was ordered to give up the thing, and then was condemned to pay the money if he did not restore the thing, in accordance with the order (arbitrium) of the judge, or if the thing was in his possession, he was forced to give it up. GAIUS, iv. 42. †The judge might think it right, in order to equalise the division, to order that some of the parties should, in receiving their share, make a money payment to others, and for this there would be a condemnatio. 104. The intentio sometimes stood quite alone, as in what was Præjudicialis called a præjudicialis formula;* when the object of formula. the action was merely to establish a point which it was necessary to have settled with a view to a future action. The decision of such a preliminary point was called a præjudicium. Of course the intentio took any form that best suited the case; and accordingly it was the intentiones that were so carefully preserved as precedents, and so keenly debated by the contending parties. Sometimes the grounds of the defence made part of the intentio. The defendant might admit the plaintiff's statement, but say that there were special circumstances to take this particular case out of the general rule of law under which it would naturally fall. He might own, for instance, that he had bought a slave at the price alleged, but say that he had been induced to do Exceptio. so by fraud. This plea was called an exceptio (i.e. a taking out), and was made to form part of the intentio, some such words as these being added: si in ea re nihil dolo malo Auli Agerii factum sit neque fiat. The plaintiff, again, Replicatio. might have something to urge as an exception in reply to this plea his answer was called replicatio; if the defendant had a further answer, it was called a duplicatio, the plaintiff's further reply a triplicatio, and so on. There was also sometimes an accessory part of the formula called the præscriptio, placed, as its name denotes, at the beginning of the whole formula for the purpose of limiting the inquiry. As employed by the defendant, it answered the purpose of the exceptio, and belongs, probably, to a time before the exceptio had its regular place in the formula. A well-known example of its use is that by which the defendant stopped an action for the possession of provincial lands, by raising the question whether he had not been in possession for a particular period, which is the origin of the familiar term 'prescription.' (See sec. 72.) But the plaintiff also might, in the early days of the formulary system, have occasion to resort to a præscriptio. He might, for instance, wish that, in enforcing a security on which payments were due from time to time, the action brought to try. whether this security was valid should only affect his claim to payments already due, so that if he failed he might have a further action for future payments. In such a case some such words as ea res agatur cujus rei dies fuit (let the inquiry only be made as to the sum for the payment of which the time has arrived) were GAIUS, iv. 44. 133. prefixed to the formula. Gradually, however, the præscriptio fell into disuse, and the intentio and exceptio were so constructed as to serve every purpose for which it had been employed. 105. In the Roman system of civil process the time when a contested right was to be considered as really made Litis contesthe subject of litigation, was very carefully marked. tatio. It was very necessary that this should be clearly ascertained. The claimant in whose favour the ultimate decision was given was entitled to all that accrued to the thing claimed from this moment; and when once a point had been submitted to litigation, it could not be again litigated, both parties surrendering all their interest into the hands of the court, which assigned to the successful claimant such a fresh interest in the thing claimed as might appear to be due to him. This time was marked by each party, at the end of the proceedings before the magistrate, calling bystanders to witness that they submitted the matter to the decision of the judge. This was called the litis In process of time the contestatio, as has been said (see sec. 93). ceremony might be omitted, or at any rate become a mere form, but the conclusion of the proceedings before the magistrate (in jure), i.e., in the formulary system, the time when the prætor delivered the formula, still formed the crisis at which the claims of the different parties were considered to be finally submitted to the decision of the law. Up to the litis contestatio, the proceedings in an action under the formulary system were as follows. The plaintiff applied to the prætor for a summons to make the defendant appear (in jus vocatio). If the defendant on appearing would not come to any compromise (transactio), the plaintiff announced that he would go on with legal proceedings. This was termed edere actionem. He had to announce the kind of action to which he proposed to resort. He then called on the defendant to give bail (vadari) that he would appear in court. The plaintiff on the day fixed submitted the formula as he thought it ought to be drawn up; the defendant proposed the exceptions on which he relied, and the prætor settled it. The plaintiff then asked for a judge (postulatio judicis), and when the prætor gave the judge the litis contestatio took place, and the proceedings in jure were finished.† FESTUS, sub voce Contestari.-Dig. xxviii. 1. 20. + See note in Appendix (page 453) to Abdy and Walker's Gaius. Meaning of the word action under 106. Actio meant, under the system of the actions of law, a particular form of procedure; under that of the formula, it meant the right granted to a plaintiff by the system of the magistrate to seek what was due to him before a formula. judge. Sometimes, however, the formula by which the judge was to determine the right, and sometimes the judicium, the proceedings by which the judge determined the right, were spoken of as if formula, judicium, and actio were synonymous terms. Of the divisions under which the formulary actions may be grouped, the following were the most important. 1. The Divisions of first division turns on the difference in the nature of actions. the thing claimed, and, according to this division, actions were in rem and in personam. If the object of the proceedings was to enforce a right to a thing, then the formula ran si paret hominem Auli Agerii esse; if to enforce an obligation, then the formula ran si paret Numerium Negidium Aulo Agerio dare, facere, præstare oportere; and it was according to this difference in the intentio that actions were said to be in rem or in personam. Vindicatio came to be used as a generic term for actions in rem, and condictio for aetions in personam. 2. Another division of actions refers to the modes in which the prætor extended or modified the law by the shape he gave to the formula. In shaping actions, the prætor introduced changes of two kinds: First, he gave actions for the enforcement of actions outside the old civil law, and this he principally effected by giving an actio in factum concepta, in which the demonstratio and intentio were blended, and the prætor directed that, if a given state of facts was found to be true, the defendant was to be condemned, the action being thus contrasted with one in jus concepta, i.e. given to try an issue by the rules of law. Secondly, the prætor extended existing actions (actiones directa) by giving actions (actiones utiles) to suit cases and persons outside the limits of the direct actions; and this he did either by means of actions in factum, which could be used for these purposes equally well as to give new remedies, or by giving a fictitious action, i.e. an action in which the plaintiff was allowed to feign that he was within the scope of the unextended action. When there was a contract not falling under the old heads, but executed on one side, the prætor enforced it by an action in factum præscriptis verbis, an action to meet the case with the circumstances set forth at the beginning; but such an action, as it was to try |