Roman litigation
Encyclopedia
The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extraordinarem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extraordinarem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.
would request, with reasons, that the defendant
come to court. If he failed to appear, the plaintiff
could call reasons and have him dragged to court. If the defendant
could not be brought to court, he would be regarded as indefensus, and the plaintiff
could, with the authorization of the praetor
, seize his property. The defendant may elect a representative to appear in his place, or seek a vadimonium - a promise to appear on a certain day with a threat of pecuniary penalty if he failed to appear.
, in order to agree the issue and appoint a judge
. This was conducted through exchanges of ritual words, the two different types being known as the declarative which were the legis actio sacramento (which could be in rem or in personam), legis actio per iudicis arbitrive postulationem and legis actio per condictionem and the executive type legis actio per pignoris capionem and legis actio per manus iniectionem. All of these involved, essentially, statements of claim by both parties, and the laying down of a wager
by the plaintiff
. Then, a judge
was appointed who was agreeable to both parties, the praetor
making a decision in the event of a disagreement. Judge
s were chosen from a list called the album iudicum, consisting of senators
, and in the later Republic
, men of equestrian rank
.
had been appointed, the full trial
could begin. This was fairly informal compared to the preliminary hearing, and was supposed under the Twelve Tables
to take place in public (the Forum Romanum was frequently used). While the witnesses could not be subpoena
ed, the dishonorable status of intestabilis would be conferred on a witness who refused to appear. There were few rules of evidence
(and both oral and written evidence was permitted, although the former was preferred), although the burden of proof lay upon the plaintiff
. The trial consisted of alternating speeches by the two advocate
s, after which the judge
gave his decision.
, and imprison him until he repaid the debt. After sixty days of imprisonment, the creditor
was entitled to dismember the debtor or sell him into slavery
, although after the Lex Poetelia of 326 BC
, the creditor could take no action other than continued imprisonment of the debtor.
(who was responsible for the affairs of foreigners in Rome) to deal with cases involving foreigners, which often involved substantial sums of money. This allowed the use of formulae, standardized written pleadings, to speed up cases. This was soon, by popular demand, adopted by the urban praetor for use by all Roman citizens. It should be noted here that the Lex Aebutia, of an uncertain date but somewhere between 199 BC and 126 BC, is connected with the reform of civil procedure, and it can be stated that it abolished the legis actiones and introduced the formulary procedure.The reform was completed by two statutes of Augustus under the name of leges Iuliae iudiciariae
. During the hearing, a formula was agreed on. It consisted of up to six parts: the nominatio, intentio, condemnatio, demonstratio, exceptio, and praescriptio.
claims, and stated the facts out of which the claim arose.
(such as self-defence), he would do so in an exceptio. However, if the plaintiff was desirous of refuting the defence, he could file a replicatio, explaining why the defence was not valid. The defendant could then file another exceptio, and so on. The last of these to be proved on the facts "won".
supporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, he had a third option - he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (he could not return the oath to the defendant). Justinian
had this to say about the taking of oaths:
While it may seem odd to a modern observer to decide a case merely through the taking of oaths, it is important to note that a solemn oath before the Gods
was regarded by the Romans as a serious matter, and even a rogue would be unwilling to perjure himself in such a fashion, and the penalties
for perjury
were severe.
for missio in possessionem ("sending into possession"). He would then publicise the bankruptcy, giving other creditors a chance to come forward, thirty days after which the creditors would meet to appoint an executor.
This executor would prepare an inventory of the debtor's estate, and then hold a public auction
, with the entire estate going to the bidder who was prepared to meet the greatest proportion of the debt. However, the debtor remained liable for any portion of the debt which was not met. The reason for this was probably that the bonorum vendito remedy could be used as a threat to encourage a debtor to pay up.
was available. In the cognitio, however, the State basically resolved the entire case, in the same manner as our current systems.
was served upon the defendant by the court. No longer did the plaintiff have to physically drag the defendant to court. Instead, he would lodge a libellus conventionis (a statement of claim), which would be served on the defendant by a court official, who could arrest him if he failed to appear. If he was unable to be brought to court on three separate occasions, Judgement-in-default could be entered against him. This highlights the philosophical difference between the cognitio and earlier systems—whereas before a trial required the consent of both parties, it could now be imposed by the state.
, rather than a lay judge. The process tended to be less adversarial than before, as the magistrate had sole control over the case, and could admit whatever evidence he pleased. Documentary evidence was now considered to be of vital importance (indeed, a rule was introduced to the effect that a document could not be defeated by oral testimony alone). The magistrate's decision was read out in court and given in writing to both parties. As he was not bound by a formula, the magistrate could hand down a more discretion
ary ruling than was possible before.
s to seize the defendant's property to be sold at auction.
himself.
----
Legis Actiones
The remarkable aspect of a trial of an action under the legis actio procedure (and also later under the formulary system) was characterized by the division of the proceedings into two stages, the first of which took place before a magistrate, under whose supervision all the preliminaries were arranged, the second, in which the issue was actually decided, was held before a judge. The magistrate in question taking part in the preliminary stage was typically the Consul or military tribune, almost exclusively the Praetor upon the creation of this office. The judge was neither a magistrate nor a private lawyer, but an individual agreed upon by both parties.Summons
Summons under the legis actiones system were conducted in ius vocate, that is, by voice. The plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
would request, with reasons, that the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
come to court. If he failed to appear, the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
could call reasons and have him dragged to court. If the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
could not be brought to court, he would be regarded as indefensus, and the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
could, with the authorization of the praetor
Praetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
, seize his property. The defendant may elect a representative to appear in his place, or seek a vadimonium - a promise to appear on a certain day with a threat of pecuniary penalty if he failed to appear.
Preliminary hearing
At the first stage of the case, a hearing took place before the praetorPraetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
, in order to agree the issue and appoint a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. This was conducted through exchanges of ritual words, the two different types being known as the declarative which were the legis actio sacramento (which could be in rem or in personam), legis actio per iudicis arbitrive postulationem and legis actio per condictionem and the executive type legis actio per pignoris capionem and legis actio per manus iniectionem. All of these involved, essentially, statements of claim by both parties, and the laying down of a wager
Legal wager
In the Roman litigation system, while the Legis Actiones procedure was in force, during the early Republic, both parties had to lay down a wager at the preliminary hearing, probably to discourage frivolous litigation. In some cases, if the party lost, the wager went to the other party, to...
by the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
. Then, a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
was appointed who was agreeable to both parties, the praetor
Praetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
making a decision in the event of a disagreement. Judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s were chosen from a list called the album iudicum, consisting of senators
Roman Senate
The Senate of the Roman Republic was a political institution in the ancient Roman Republic, however, it was not an elected body, but one whose members were appointed by the consuls, and later by the censors. After a magistrate served his term in office, it usually was followed with automatic...
, and in the later Republic
Roman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
, men of equestrian rank
Equestrian (Roman)
The Roman equestrian order constituted the lower of the two aristocratic classes of ancient Rome, ranking below the patricians , a hereditary caste that monopolised political power during the regal era and during the early Republic . A member of the equestrian order was known as an eques...
.
Full trial
Once the judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
had been appointed, the full trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
could begin. This was fairly informal compared to the preliminary hearing, and was supposed under the Twelve Tables
Twelve Tables
The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centrepiece of the constitution of the Roman Republic and the core of the mos maiorum...
to take place in public (the Forum Romanum was frequently used). While the witnesses could not be subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
ed, the dishonorable status of intestabilis would be conferred on a witness who refused to appear. There were few rules of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
(and both oral and written evidence was permitted, although the former was preferred), although the burden of proof lay upon the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
. The trial consisted of alternating speeches by the two advocate
Advocate
An advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...
s, after which the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
gave his decision.
Execution
Unlike in modern legal system, victorious parties had to enforce the verdict of the court themselves. However, they were entitled to seize the debtorDebtor
A debtor is an entity that owes a debt to someone else. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty is called a creditor...
, and imprison him until he repaid the debt. After sixty days of imprisonment, the creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
was entitled to dismember the debtor or sell him into slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, although after the Lex Poetelia of 326 BC
326 BC
Year 326 BC was a year of the pre-Julian Roman calendar. At the time, it was known as the Year of the Consulship of Visolus and Cursor...
, the creditor could take no action other than continued imprisonment of the debtor.
Formulary system
Due to the faults of the legis actiones system, namely its excessive formality, archaic nature, and limited effectiveness, a new system was introduced. This was known as the formulary system. The formula was a written document by which in a civil trial authorization was given to a judge to condemn the defendant if certain factual or legal circumstances appeared proved, or to absolve him if this was not the case.Origins
The formulary system was originally used by the peregrine praetorPraetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
(who was responsible for the affairs of foreigners in Rome) to deal with cases involving foreigners, which often involved substantial sums of money. This allowed the use of formulae, standardized written pleadings, to speed up cases. This was soon, by popular demand, adopted by the urban praetor for use by all Roman citizens. It should be noted here that the Lex Aebutia, of an uncertain date but somewhere between 199 BC and 126 BC, is connected with the reform of civil procedure, and it can be stated that it abolished the legis actiones and introduced the formulary procedure.The reform was completed by two statutes of Augustus under the name of leges Iuliae iudiciariae
Summons
Defendants were summoned under the formulary system in a similar manner to under the legis actiones. The defendant was still summoned orally, but had an extra option; rather than immediately going to court, he could make a vadimonium, or promise, to appear in court on a certain day, on pain of a pecuniary forfeit. Although the plaintiff could still physically drag his opponent to court, this was scarcely used. Instead, the plaintiff could be given permission by the praetor to take possession of the defendant's estate, with a possible right of sale.Preliminary hearing
Just like in the old legis actiones system, this took place before the praetorPraetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
. During the hearing, a formula was agreed on. It consisted of up to six parts: the nominatio, intentio, condemnatio, demonstratio, exceptio, and praescriptio.
Nominatio
This part appointed a judge, in a similar matter to before, with the plaintiff suggesting names from the official list until the defendant agreed. If there was no agreement, the praetor would decide. An example of a nominatio would be, "Let Claudius be judge."Intentio
This was the plaintiff's statement of claim, where he stated the allegation on which his claim was based. An example of an intentio could be, "If it appears that the property which is disputed belongs to Aulus Agerius at civil law,".Condemnatio
The condemnatio gave the judge authority to condemn the defendant to a certain sum or to absolve him. An example of a condemnatio could be, "[If it appears that he is guilty], Condemn Numerius Negidius to Aulus Agerius for 200 denarii; otherwise absolve him."Demonstratio
The demonstratio was used only in unliquidated, in personamIn personam
In personam is a Latin phrase meaning "directed toward a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called...
claims, and stated the facts out of which the claim arose.
Exceptio and replicatio
If the defendant wished to raise a specific defenseDefense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
(such as self-defence), he would do so in an exceptio. However, if the plaintiff was desirous of refuting the defence, he could file a replicatio, explaining why the defence was not valid. The defendant could then file another exceptio, and so on. The last of these to be proved on the facts "won".
Praescriptio
This somewhat legalistic clause limited the issue to the matter in hand, avoiding litis contestatio, where the plaintiff was prevented from bringing another case against the same defendant on a similar issue.Oath-taking
The case could sometimes be settled entirely through the preliminary hearing. The plaintiff could challenge the defendant to take an oathOath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
supporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, he had a third option - he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (he could not return the oath to the defendant). Justinian
Justinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...
had this to say about the taking of oaths:
While it may seem odd to a modern observer to decide a case merely through the taking of oaths, it is important to note that a solemn oath before the Gods
Deity
A deity is a recognized preternatural or supernatural immortal being, who may be thought of as holy, divine, or sacred, held in high regard, and respected by believers....
was regarded by the Romans as a serious matter, and even a rogue would be unwilling to perjure himself in such a fashion, and the penalties
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
for perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
were severe.
Full trial
Full trials under the formulary system were essentially the same as under legis actiones.Execution
While the creditor was still essentially responsible for executing the judgement, there was now a remedy he could look to. This was called bonorum vendito. Thirty days after the judgement, the creditor would apply for an actio iudicati, giving the debtor a last chance to pay. If he failed to meet the debt, the creditor could apply to the praetorPraetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
for missio in possessionem ("sending into possession"). He would then publicise the bankruptcy, giving other creditors a chance to come forward, thirty days after which the creditors would meet to appoint an executor.
This executor would prepare an inventory of the debtor's estate, and then hold a public auction
Auction
An auction is a process of buying and selling goods or services by offering them up for bid, taking bids, and then selling the item to the highest bidder...
, with the entire estate going to the bidder who was prepared to meet the greatest proportion of the debt. However, the debtor remained liable for any portion of the debt which was not met. The reason for this was probably that the bonorum vendito remedy could be used as a threat to encourage a debtor to pay up.
Cognitio
The cognitio system was introduced some time after the Republic was replaced by the Empire. The main philosophical difference between the cognitio systems and those that had gone before was that, whereas the previous two essentially consisted of the State providing a system under which the two parties could resolve disputes between themselves - the basis of the case was agreed, but the case was then handed over to a private judge, and no judgement in defaultFailure to appear
Failure to appear is the legal term for the failure of a defendant or respondent to appear at the stated time before a tribunal as directed in a summons. Where the conduct alleged in the summons or complaint is an infraction or summary offence, failure to appear is a crime for which a...
was available. In the cognitio, however, the State basically resolved the entire case, in the same manner as our current systems.
Summons
As in modern legal systems, the summonsSummons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
was served upon the defendant by the court. No longer did the plaintiff have to physically drag the defendant to court. Instead, he would lodge a libellus conventionis (a statement of claim), which would be served on the defendant by a court official, who could arrest him if he failed to appear. If he was unable to be brought to court on three separate occasions, Judgement-in-default could be entered against him. This highlights the philosophical difference between the cognitio and earlier systems—whereas before a trial required the consent of both parties, it could now be imposed by the state.
Trial
In the cognitio system, the trial took place before a magistrateMagistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
, rather than a lay judge. The process tended to be less adversarial than before, as the magistrate had sole control over the case, and could admit whatever evidence he pleased. Documentary evidence was now considered to be of vital importance (indeed, a rule was introduced to the effect that a document could not be defeated by oral testimony alone). The magistrate's decision was read out in court and given in writing to both parties. As he was not bound by a formula, the magistrate could hand down a more discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
ary ruling than was possible before.
Enforcement
Whereas before the victor was responsible for enforcing payment himself, he could now ask the court bailiffBailiff
A bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed...
s to seize the defendant's property to be sold at auction.
Appeals
Under the cognitio system, an appeals procedure was available for the parties. The appeals process was extremely complex, but essentially consisted of the progression of the case through higher and higher courts, possibly culminating in the EmperorEmperor
An emperor is a monarch, usually the sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife or a woman who rules in her own right...
himself.
----