3.2 Early procedure: the legis actiones

Pomponius, Manual, sole book·. Then about the same time actions-at-law whereby people could litigate among themselves were composed out of these statutes [the laws of the Twelve Tables], To prevent the citizenry from initiating litigation any old how, the lawmakers' will was that the actions-at-law be in fixed and solemn terms.

Pomponius' account of the formulation of the legis actiones, the five early forms of action in Roman law, masks the antiquity of some of the actions. They did not all emerge as a result of the Twelve Tables. At least two of the actions predated the Twelve Tables; another dated most probably from the later Republic, see Watson, A., 'The Law of Actions and the Development of Substantive Law in the Early Roman Republic' (1973) 89 LQR, 387-92 (a controversial article about the relationship between substance and procedure in archaic Roman law). All the legis actiones were characterized by strict formalism and were only available to Roman citizens. As Metzger puts it: 'By later Roman standards the claims were highly "unparticular­ized". The specific grievance was unacknowledged, the litigant receiving instead an off-the-peg statement that he had been aggrieved in one of the limited permissible ways, along with the state's approval to seek redress, whether by trail or execution' ('Litigation', 281). The actions-at-law were the foundation of early civil procedure. The operation of that procedure comprised three main stages—summons, trial, and execution.

3.2.1 Summons

The plaintiff was responsible for getting the defendant into court.

Where was the action to be brought? The general principle was that the action had to be brought in the forum of the defendant. It is not clear, however, how rigidly this principle was applied: it could obviously cause considerable inconven­ience, even to both parties in some circumstances. It seems that the parties were therefore allowed to agree a different forum, but this may not have been possible until classical law (see Crook, Law and Life of Rome, 75 and 96).

3.2.2 Trial

For the greater part of Roman legal history, the trial stage in civil proceedings was divided into two—a preliminary hearing, followed by a full trial.

3.2.2.1 Preliminary hearing

A hearing took place before a magistrate (the praetor after 367 BC), in order to settle the issues between the parties (who had to be present) and to appoint a judge.

(a) Sacramentum (Legis actio Sacramento) This was the standard action-at-law in the early Republic. Gaius described it as the 'general' way of starting a case, to be used when no other way was prescribed by statute (Inst.Gai.4.13.). It is probable that sacramentum signified the oath made to the gods by the parties when asserting the justice of their claims, and that originally the trial consisted of the exchange of oaths, the issue being decided by ordeal or supernatural invocation, not by a judge.

The procedure in sacramentum required the parties to make formal oaths and to deposit a sum of money as a wager on the outcome. The usual requirement was for fifty asses (units of early Roman currency) to be staked, but 500 if the matter at issue was worth 1,000 or more. The successful party recovered the deposit, but the loser's was forfeited to the State. The reasons for requiring a deposit from the parties probably lay in the religious origins of sacramentum—the deposit was an offering to the gods—rather than in any deliberate attempt to oppress the poorer members of the community. Despite its drawbacks, the requirement of a deposit had the practical consequence of inhibiting frivolous litigation. The sum of 500 asses was substantial, and fifty was not a trifling amount.

The procedure in sacramentum depended on whether the action was in rem or in personam. An action in rem was an assertion of ownership in a thing, whereas an action in personam lay for the enforcement of an obligation owed to the plaintiff by a particular person. Where the action was in rem, the disputed thing was normally brought before the magistrate—if it was land, a symbolic sod of earth sufficed.

(b) ludicis arbitrive postulatio (Legis actio per iudicis arbitrive postulationem) ('The complaint before the judge or arbiter') This procedure, introduced after sacramen­tum, was intended as a more convenient form of action for certain types of case (only available for actions in personam). It was available when specifically allowed by statute, and then only as an alternative to sacramentum, the choice of procedure lying (most probably) with the plaintiff. Postulatio was used mainly for claims aris­ing from stipulatio (a type of formal contract) and for disputes concerning the divi­sion of inheritances and common property. The procedure required the plaintiff to make his claim and to state the grounds for the action, the defendant conceding or denying the claim. This was much simpler than sacramentum, no formal oaths, wagers or security being required. With no possibility of forfeiture, postulatio was a less risky procedure for the litigants. And it was relatively speedy—a judge was normally appointed forthwith rather than after the lapse of a month.

(c) Condictio (Legis actio per condictionem) The origins of this procedure are to be found in statutes of the third century BC, thus somewhat later than the pre­vious two actions-at-law. (See St. Tomulescu, C., 'Origin of the Legis Actio per Condictionem' (1969) 4 I], 180-6, where the author argues that this action-at-law was created in the third century BC when the position of the plebeian debtor had become stronger than that of the patrician creditor.) The introduction of condictio at that time reflected the growing importance of commercial transactions (such as sale and hire) and the need for a more convenient procedure than sacramentum. The interchange of claims and assertions was much less formal than in sacramentum, formal oaths not being required. If the defendant denied the claim, the plain­tiff gave notice (the condictio) that the defendant should appear in thirty days for the appointment of a judge. The action lay for the recovery of a specific thing or specific sum of money. The denial of a claim for a sum of money necessitated an exchange of promises, whereby the successful party was additionally entitled to one-third of the disputed sum, i.e. a plaintiff would recover one and one-third times the sum claimed; a winning defendant would receive one third of the plain­tiff's claim.

3.2.2.2 Joinder of issue

Whatever the form of procedure used in the preliminary stage, the critical moment was reached when issue was joined (litis contestatio). This occurred on the comple­tion of the parties' assertions, i.e. on the formulation of the issues between them. As seen already, there could not be litis contestatio unless both parties submitted to the process: litigation could be pursued only though the consent of the parties. The effect of joinder was to 'consume' the plaintiff's right of action: it could not be brought again on the same facts. But joinder gave the plaintiff a new right—that a trial should be held by a judge, the defendant to be 'condemned', i.e.

3.2.2.3 Appointment of judges

The final stage of the preliminary hearing required the appointment of a judge. Who were the judges, and how were they appointed? Many cases were decided by a single lay judge, the index or arbiter. The terms appear synonymous but it is more likely that there was a distinction, the arbiter tending to hear cases involv­ing a considerable use of discretion, e.g. the division of common property. Several arbitri might be appointed in important cases. Or a case could go before the centu- mviri (‘the hundred men’), a court usually consisting of some thirty members cho­sen from a panel that originally contained about a hundred representatives of the ancient tribes of Rome (but which later nearly doubled in size). Their jurisdiction lay primarily over inheritance cases, especially those involving large estates. The importance of such cases made the centumviri court a prestigious forum. Although the most famous cases brought before the court dated from the late Republic, its origins probably lay much earlier. Another possible forum was the court of the decemviri ('the ten men'), minor magistrates of whom little is known other than that they originally heard claims to personal freedom, and that they pre­sided over the centumviri court from the time of Augustus (see Tellegen-Couperus, Short History, s. 6.4.3). And cases could be heard by recuperatores (‘recoverers’), a speedy tribunal of lay jurors appointed by a magistrate, which exercised jurisdic­tion mainly over crime but also over some civil cases, particularly those involving delicts, e.g. robbery and insulting behaviour (see Frier, Roman Jurists, 197-268 and Bablitz, Actors and Audience, ch. 2).

Judges were normally chosen from an official list (the album iudicum) consisting of senators authorized to judge cases. In the late Republic, members of the equestrian order and other classes were included. The judge was appointed by the magistrate involved in the preliminary hearing, following consultation with the parties. If the parties agreed, the magistrate normally followed their choice; if they disagreed, he imposed his choice or settled the matter by drawing lots (see Birks, P., 'New Light on the Roman Legal System: The Appointment of Judges' (1988) 47 Cambridge LJ, 36-60, where the author argues, using the information brought to light by the Lex Irnitana, that the practice for the appointment of judges explained in this Spanish municipal charter reflects the practice in Rome during the first century AD). The latter procedure lacked sophistication, but it had its points. A magistrate, faced by two powerful disputants, would be anxious to avoid upsetting either of them by having to make a personal decision.

3.2.2.4 Full trial

The trial before the judge was remarkably informal compared to the strict formal­ity of the preliminary hearing. According to the Twelve Tables, the judge was to hear the case in a public place. The trial was often held in the open air. The Forum Romanum was frequently chosen. The parties normally had to be present, but in exceptional cases, (e.g. sickness) could appoint a representative (procurator) to take their place. It was presumably through a wider recognition of this practice that the profession of the advocate (orator) was born.

The trial proceeded by means of alternate speeches from the advocates, the judge acting as an umpire. There were very few rules of evidence to guide him (see Meyer, E. A., 'Evidence and Argument: The Truth of Prestige', in OHRLS, 270-82, for an account of the use of the conventions of rhetoric as a form of 'rules of evidence'). Written and oral testimony was allowed, the latter being preferred due to its imme­diacy. Witnesses were generally not compellable, but refusal to appear as a wit­ness could bring social opprobrium and the status of intestabilis (see 4.4.2.6). The burden of proof was regarded as being on the plaintiff. The hearing was supposed to finish at sunset but occasionally would last into the night. Adjournments were not uncommon, the presence of the parties for the resumption of the case being secured by a vadimonium, a formal promise originally made by sureties for the par­ties (later, the parties themselves made the promise). It seems that the vadimonium procedure was used for all adjournments, at whatever stage of proceedings they arose. The judge was often assisted by a body of advisers, consisting mainly of men learned in the law. The judgment—sententia, strictly an 'opinion'— was delivered orally in the presence of the parties or their representatives. If the case had been brought as a sacramentum, the judgment declared that the oath of one of the par­ties was 'just'. There was no system of appeals. If the judge was unable to reach a decision, the case was remitted to the original magistrate for the appointment of another judge.

The division of proceedings into preliminary hearing and full trial remained a cardinal feature of Roman civil litigation until well into the Empire. Why the divi­sion? The answer lies in the notion of civil litigation as a form of private arbitration where judgment must be the preserve of the layman, the State's role being to police the preliminary stage only:

[F]rom the outset, the Romans regarded the deciding of a dispute not as the function of one who bore authority in the State, but as a task for persons from whom the parties could anticipate an impartial decision. It is the function of authority to supervise the institution and continuation of the action, to issue directions and orders for the course of the proceedings and to prevent their failure; but it is not the magistrate's task to decide the case. Giving judg­ment is not an act of will like the commands and orders which constitute the everyday activity of the magistrate. It is a decision from knowledge on the rights of a given dispute, an opinion which the Romans call sententia'. (See Kaser, M., 'The Changing Face of Roman Jurisdiction' (1967) 2IJ, 129-43 at 132.)

3.2.3 Execution

In modern legal systems, we take for granted that judgments will be effectively enforced ('executed') with the full authority and backing of the State. But for much of Rome's history, the State took only an indirect role in the execution of judg­ments. It authorized the successful plaintiff to pressurize the defendant into com­plying with the judgment—a form of regulated self-help, the onus being firmly on the plaintiff to obtain satisfaction.

The method of execution depended on whether the action had been in rem or in personam. If in rem, there was no problem if the party who had been granted temporary possession of the disputed property won the case. The question of execu­tion did not arise: the successful party simply kept the property that he already possessed. But if he lost, he had to surrender it. What if he refused to comply? The person entitled to the property could enforce the security that had been promised when the temporary possession was originally granted. If the security was unforth­coming or insufficient, further proceedings could be brought to assess the compen­sation payable for the loser's failure to satisfy the judgment. When the amount had been assessed, execution of the judgment proceeded along the lines of a case in per­sonam (see 3.2.3.1 and 3.2.3.2). This convoluted procedure was necessary because of the absence in the early Roman legal system of an effective State sanction for failure to comply with a court decision.

Two actions-at-law were available for the execution of judgments in personam: manus iniectio ('the laying on of the hand') and pignoris capio ('the taking of a pledge').

3.2.3.1 Manus iniectio

This was the standard form of execution in early (i.e. archaic and pre-classical) law. It consisted of the authorized physical seizure of the judgment debtor, i.e. the party failing to comply with the judgment. Under the Twelve Tables, an interval of thirty days was allowed for the payment of the debt from the pronouncement of the judgment. If the debt was not paid within that period, the judgment creditor was entitled to seize and take the debtor before a magistrate. The debtor was released only if he paid the debt or if a vindex intervened to take his place. The function of the vindex was to protect the debtor from private imprisonment by the creditor by disputing the formal validity of the original judgment. Such intervention was risky, since he became liable for double if he failed to contest the debt successfully. The original judgment could not be opposed on its merits; only its validity could be questioned. It seems that intervention by the vindex, even if unsuccessful, freed the debtor.

If the debtor failed to pay and a vindex did not come forward, the magistrate would authorize the creditor to imprison the debtor for sixty days. During that time, the creditor had to display the prisoner on three consecutive market days in the hope that someone would pay the debt. If no one did so within the sixty days, the debtor could be sold into foreign slavery or be put to death. There was little economic purpose in executing a debtor except where the body could be sold, as was some­times done. This may explain the macabre rule (of the Twelve Tables) which permit­ted the dismemberment of a debtor's body by joint creditors—aptly named in this instance. Alternatively, and more plausibly, the dismembering of the creditor's body and its distribution between the creditors exerted a form of religious pressure on the family to pay the debt for fear of being haunted, since the soul of the deceased creditor could not rest without a proper Roman funeral, see MacCormack, G., 'Partes Secanto' (1968) 36 TR, 509-18.

These harsh rules were radically altered by the lex Poetelia 326 BC, which took away the creditor's rights to sell the debtor into slavery or to kill him, see MacCormack, G., 'The Lex Poetilia' (1973) 19 Labeo, 306-17. Instead, the credi­tor could keep the debtor for as long beyond the sixty days' limit as it took for the latter to work off the debt. Since the value of labour could be calculated quite easily, there was little problem (in theory) in assessing when the debtor was to be released. Reforms continued to be made in the later Republic. The debtor was given the personal right to impugn the validity of a judgment (but not the mer­its) when hauled before the magistrate on the lapse of the thirty days' period. However, if the debtor failed to contest the judgment successfully, he was liable for double the debt.

3.2.3.2 Pignoris capio

This ancient action-at-law, predating the Twelve Tables, was similar to the English remedy of distraint. The person trying to enforce the performance of an obligation was allowed, in limited circumstances, to seize the property of the other party in order to pressurize him into performing the obligation. Pignoris capio means 'the taking of a pledge’—the pledge was the property that was seized as security for the performance of the obligation. What could the distrainor do with the property seized? Very little. His hope was that the other party would perform his obligation, in which case the property would be returned. It is not clear what the position was if the obligation was not satisfied. The distrainor probably could retain the seized property, but could not sell or dispose of it.

The circumstances in which distraint was allowed were a mixture of statutory and customary rules. For example, the Twelve Tables allowed seizure against a buyer of an animal for religious sacrifice who had failed to pay the price; and a soldier had a customary right of seizure against his paymaster for unpaid wages. The common link in such cases appears to have been that the State's interests were involved in the enforcement of the obligations incurred.

3.3