INTRODUCTION
The study of Roman civil procedure has benefited enormously from the discovery of the Murecine archive, a collection of first-century documents belonging to a banking family in Puteoli.1 Lawyers and historians are indebted to Giuseppe Camodeca for his exceptional care in editing and presenting the archive and interpreting its contents.
Opinions differ on questions of interpreÂtation, but this is inevitable: the sources on procedure available to date have not adequately prepared us to interpret the Murecine archive. The literary sources tend to mention rules of procedure only in passing, and the juristic sources (to recall perhaps Watson's “law in books”)[325] [326] usually follow their own currents: the real and the hypothetical are mixed together, and what is interÂesting or contentious gets more attention than what, for Roman litigants, was routine and unremarkable. These are the sources that have shaped our views of procedure, and we have no prior assurance that they will fully explain the events described in the Murecine archive.Some of the documents in the archive were prepared in the middle of litigation, and these are particularly rare and valuable. Yet identifying the “litigation documents” is more difficult than one might think. This is because, in Roman procedure, it is difficult to fix the moment at which the parties' acts cease to be “extra-judicial” (“outwith litigation”) and become “judicial”. Litigation ostensibly begins with a summons - and everything after that ought to be judicial - but the summons was a private act and did not necessarily lead to any real engagement between the parties (or even a meeting with the magistrate[327]). We therefore tend to take a narrower view and speak of a party's act as judicial if it takes place in iure.[328] This ought to make judicial acts easier to identify, but often it does not: some acts in iure are performed under the obvious direction or guidance of a judicial magistrate (iusiurandum, interroÂgatio, postulatio), but others are performed in ways in which the magistrate's participation, if indeed he does participate, is not obvious at all (editio). One matter in which the magistrate's participation is not obvious is the matter of postponements.
He orders the postponements, but the parties' “promises to reappear” that follow are substantially the object of their own private negotiaÂtion. These promises are in every respect judicial: they arise in the middle of litigation, in the magistrate's court, and are performed under the compulÂsion of the magistrate. Unfortunately their judicial character is easily missed, because information about practical matters like postponements is hard to recover from the ancient sources, and we have had, to date, only incomplete information about these promises.If we wrongly interpret these promises as extra-judicial, the cost is very great. A large number of documents in the Murecine archive record them, and many other documents in the archive refer to them in passing. All of these documents therefore provide, so to speak, first-hand information about various events in the magistrate's court. This kind of information is exceptionally hard to come by, and we lose this information if we misinterÂpret these promises as extra-judicial. The discussion below addresses two pre-trial matters, iusiurandum and the appointment of cognitores, which have been affected by a misinterpretation of these promises. Then follows a more general discussion of the postponement procedures, deduced with the considerable aid of the Murecine archive.
B.
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