Civil Procedure in the Late Imperial Age

In the fourth century ad, an edict of Emperors Constantius and Constans (ad 342) officially abolished the old per formulam procedure that had been wholly superseded by the cognitio extraordinaria in the later years of the Principate era.^[1295] The establishment of the cognitio extraordinaria was closely connected with the development of an extensive bureaucratic organization in the late imperial period, which required greater immediate control by officials.

The first step in a civil action was a declaration by the plaintiff or his representa­tive to a jurisdictional magistrate outlining the factual and legal basis of his case against his adversary, and requesting the start of a trial (postulatio simplex).''''¹ After a preliminary assessment of the plaintiff’s case, the magistrate served upon the defen­dant a summons accompanied by the plaintiff’s statement.

On the day of trial, the parties and their legal representatives swore oaths of good faith^[1303] and proceeded to present the vital facts, and the pro and contra arguments in a brief form.^[1304] As under the formulary system, the defendant could raise a defence (exceptio or praescriptio) to counter the plaintiff’s claim, for example on the grounds of fraud (exceptio doli). Pleas pertaining to jurisdiction or a party’s capacity to participate in the process could be treated as preliminary pleas, and interlocutory decisions on procedural and other matters were also possible.

In the next phase of the proceedings, evidence was presented and arguments delivered. Evidence might be oral or written, but the former was deemed to possess relatively little value.^[1306] The court summoned witnesses, who were often required to provide surety for their appearance. The presiding judge interrogated these witnesses and their answers were recorded. Generally, the evidence of a single witness did not carry any weight, while the credibility of the presented evidence was contingent on the social status of the witness.^[1307] In normal circumstances, hearsay evidence was not permissible and declarations issued under oath were now quite general.^[1308] The acknowledgement of the plaintiff’s claim by the defendant before the judge (confessio) carried special weight as a means of evidence, but did not necessarily entail the termination of the proceedings.^[1309] In general, the presid­ing magistrate had considerable freedom in assessing the evidence within the limits set by the statutory rules governing the trial process and by the instructions of his superiors. In this regard, the introduction of defeasible and indefeasible presumptions (praesumptiones) played an important role.^[1310]

The trial culminated in the magistrate’s judgment (sententia), embodied in writing and announced publicly in the presence of all the relevant parties at a formal sitting of the court.^[1311] In contrast to the formulary procedure, the judge in the cognitio procedure was free to sentence the defeated party to an atonement other than the payment of damages (condemnatio pecuniaria)—for example, he could order the defendant to deliver a specific object.

As noted earlier, a decision of a judge could be appealed against (appellation to a higher tribunal and then a superior tribunal until it reached the court of the praetorian prefect. An appeal to the emperor was only feasible in matters of importance and, in most cases, an appeal could not progress beyond two instances.^[1314] Moreover, during Justinian's reign appeals against interlocutory judgments were in normal circumstances no longer permitted. The relevant party had to issue notice of appeal (libellus appellationis) within 2 or 3 days^[1315] (or within 10 days, in Justinian's time)^[1316] of the judge's decision, and the appeal proceeded with little delay. The appellate court could confirm the decision, whereupon the appellant incurred penalties to the lower court and the other party. Alternatively, this court could quash or modify the decision but did not remit it for resentencing to the lower court.^[1317]

Execution under the cognitio procedure was simpler than under the formulary system. If the defendant was condemned, he had to comply with the judgment within a minimum period of 2 months (or 4 months, under Justinian) after the announcement of the decision or when the decision was rendered final on appeal.^[1318] If he failed to comply, the plaintiff could notify the authorities with a request for execution of the decision.

6.5.1 Resolving Private Disputes Through Arbitration

As an extra-judicial method for dealing with private controversies, arbitration (arbitrium) was based on a formal agreement (compromissum) between the relevant parties to submit their dispute to an arbitrator (arbiter) for resolution. The parties selected the arbitrator whose scope of authority was prescribed in the compromissum¹⁰ However, the decision of the arbitrator (pronuntiatio arbitri) was not binding unless the parties had assumed the obligation of abiding by the decision by means of reciprocal stipulations backed by penalties.^[1324] In Justinian's era the arbitrator's decision was binding if both parties had signed it, or if neither party expressed disapproval to the arbitrator or the other party within 10 days from the announcement of the decision.^[1325]