THE MONARCHY AND EARLY REPUBLIC: THE ADMINISTRATION OF JUSTICE
Roman private law was closely connected with the law of civil procedure, otherwise recognized as the law relating to actions. In a sense, the law of actions may be construed as the most important part of the law. This mainly derives from the fact that the early jurists, the shapers of the ius civile, were concerned not so much with the formulation of general principles regarding the rights and duties of individuals, but with establishing the factual circumstances under which an aggrieved person should be granted a legal remedy. In other words, unlike modern lawyers, who tend to emphasize rights and duties, and regard remedies as merely their procedural shell, the Roman jurists attached significance to remedies rather than to rights, to forms of action rather than to causes of action. Thus, the law as a whole had little import for the Romans unless a recognized form of action existed whereby an individual could enforce a claim. As the evolution of Roman private law was greatly influenced by the development of legal procedure, the study of procedural law can illuminate the framework that cultivated substantive private law.
As noted previously, the early Romans used the term ius to denote a right or a form of conduct approved by the community. Before the formation of the state there was no comprehensive system of rules or remedies designed to assist an aggrieved person with the enforcement of his rights. The obvious course for an aggrieved person was self-help, for example, by forcibly evicting a trespasser or reclaiming property he was wrongly deprived of by another person. A general awareness existed of the circumstances where such demonstrations of hostile power were iura and this was established by custom. The development of the state was accompanied by the formation of rules that required the person aspiring to wield self-help to show actual infringement of his rights, and establishing this proof often necessitated a judicial decision. Only then was the wronged party allowed to execute the decision by means of self-help. The holder of imperium had a principal function of declaring the ius or identifying rights. In the earliest times, this function of identifying the ius was probably undifferentiated from the magistrate’s other functions. The exercise of his power to issue commands, which could be drastically enforced, assisted the aggrieved party in obtaining the ius that was declared as their entitlement. Therefore, if a person possessed or claimed a ius against another and secured that person’s appearance before the magistrate, he could have both his ius confirmed and its exercise protected by the suppression of any resistance. Initially, the magistrate’s law-finding activity must have been a relatively simple task as the circumstances where a ius was recognized were mainly presumed. But as social and economic conditions changed, magistrates were confronted with unfamiliar claims and forms of ius. We may surmise that they denied support for such cases, unless the new ius was adapted to resemble a recognized form. In the course of time, a more sophisticated system of rules and principles developed to provide remedies for a variety of infringements on the rights of Roman citizens.
The Roman law of procedure is generally distinguished by three stages of development: the period of the legis actio procedure, the period of the formulary system and the period of the cognitio extraordinaria. The legis actio procedure was used during the Republic, the formulary system featured in the second century BC to the third century AD and the cognitio extraordinaria prevailed during the Empire.
The legis actio procedure (literally, an action based on the law) is the earliest form of Roman legal procedure known to us. Its origin is not quite clear. It probably derived from the practice established by custom where contested claims were voluntarily submitted to arbitration, and must have been in habitual use before its formal adoption. We may assume that at some time a lex required or permitted a magistrate to enforce a ius that was demanded in a particular way, and this procedure was consequently termed legis actio. The legis actio was essentially a ritual and, as such, was elaborated by the pontiffs. It was conducted orally and divided into two stages. The first stage (in iure) proceeded before a consul (or a pontiff) and, after the enactment of the leges Liciniae Sextiae (367 BC), before the praetor.1 The second stage (in iudicio, apud iudicem) proceeded before a citizen appointed as the judge (iudex)by the magistrate and the parties concerned.2 In certain cases two or more judges were appointed and thus designated as recuperatores.3
Whenever a Roman citizen wished to raise a dispute and institute legal proceedings against another, he first had to approach a magistrate endowed with the power of iurisdictio. This magistrate would determine whether the case was sufficiently strong for referral to a judge for trial and, if so, stipulated the appropriate procedure. This formed the first phase of the legis actio procedure, called in iure,asthe magistrate declared the law (ius) applicable to the case.4 However, the case was only heard if both the plaintiff and the defendant were present at the opening of the proceedings in iure.5 According to the Law of the Twelve Tables (T. 1. 1.), the plaintiff could forcibly compel an absent defendant to appear before the magistrate. However, this action was averted if the defendant produced a guarantor (vindex) who would assure their appearance in court at a fixed later date. When both parties appeared before the magistrate, the plaintiff had to pronounce his claim in a set form of words attended by equally formal ritual acts prescribed by law for the relevant case. The defendant had to reply by also employing a mandated combination of words and gestures. The magistrate finally intervened in a prescribed manner so that the case might be sent for trial. The litis contestatio (joinder of issue)6 formed the final act in the proceedings in iure as it established the disputed issue. The most important effect of the litis contestatio precluded the plaintiff from instigating a fresh action against the defendant for the same claim.
The use of a formula with the solemn enunciation of prescribed formal words to request a magistrate to exercise his power on one’s behalf was an ancient, deeply rooted practice among the Romans, who attached great importance to the efficacy of ceremonial acts in most communal activities. As the legis actio was essentially a ritual any mistake, even a trivial one, was necessarily fatal. This is illustrated by a case reported by the jurist Gaius where a man sued another for chopping down his vines. The aggrieved party lost his suit because he used the words ‘vines’ (vites) instead of ‘trees’ (arbores) as prescribed by the Law of the Twelve Tables (T. 8. 11.).7 As previously elaborated, the pontiffs had knowledge of the formulas a magistrate would be likely to accept as efficacious. It was a customary practice to consult the pontiffs for some formula even before the legis actio became a well-defined and established system.
Five different types of legis actiones are mentioned in the sources: the legis actio sacramento, the legis actio per iudicis arbitrive postulationem, the legis actio per condictionem, the legis actio per manus iniectionem and the legis actio per pignoris capionem.8 The first three were applied to resolve a dispute, while the last two were used to enforce the execution of a judgment.
The legis actio sacramento (action in the law by oath) was the earliest and most important of the legis actiones. Gaius describes it as generalis (of general application),9 since it applied to any case where no other action was provided by law. This action could be used to enforce either a real or a personal right and was thus referred to respectively as legis actio sacramento in rem (action in the law by oath for a real right) and legis actio sacramento in personam (action in the law by oath for a personal right).10 The name of this legis actio derives from the fact that originally both litigant parties had to confirm the justification of their claim in the particular dispute under oath and before witnesses. Each party exhibited proof of their good faith by depositing a wager or stake (sacramentum) consisting of a monetary sum.11 The successful party in the subsequent trial retrieved his sacramentum