PUBLICLY ORDERED, PRIVATELY PERFORMED
During the last century there were several important discoveries that improved our knowledge of Roman procedure, and this new evidence has helped us to make better sense of what Gaius is describing.
Briefly, we can now see that when Gaius discusses postponements and vadimonia, he does not assume that every vadimonium is preceded by a face-to-face meeting between the litigants and the magistrate. Instead, postponements can be ordered en masse, for the benefit of all litigants who have come to the magistrate's court. These are litigants who either cannot gain an audience, or do not wish for an audience on that day. The postponement procedure, moreover, is sufficiently regularized to permit the litigants to fashion their own promise, though the performance of the promise is indeed compelled by the magistrate.This is what Gaius says:[354]
Gai Inst 4.184. Cum autem in ius vocatus fuerit adversarius neque eo die finiri potuerit negotium, vadimonium ei faciendum est, id est, ut promittat se certo die sisti. 185. Fiunt autem vadimonia quibusdam ex causis pura, id est sine satisdaÂtione, quibusdam cum satisdatione, quibusdam iureiurando, quibusdam recuperÂatoribus suppositis, id est, ut qui non steterit, is protinus a recuperatoribus in summam vadimonii condemnetur. Eaque singula diligenter praetoris edicto signiÂficantur. 186. Et siquidem iudicati depensive agetur, tanti fit vadimonium quanti ea res erit; si vero ex ceteris causis, quanti actor iuraverit non calumniae causa postulare sibi vadimonium promitti. Nec tamen pluribus quam sestertium CM fit vadimonium. Itaque, si centum milium res erit, nec iudicati depensive agetur, non plus quam sestertium quinquaginta milium fit vadimonium.
184. However, when the defendant has been called in ius, but matters cannot be completed on that day, “a vadimonium must be made to him”, that is, so that he promises to be present on a particular day. 185.
In some cases, moreover, vadimonia are plain, that is, without security, sometimes with security, sometimes with an oath, sometimes with recuperatores anticipated, in other words, so that if someone does not appear, he is condemned immediately for the summa vadimonii. These are all individually set out in detail in the praetor's edict. 186. Now if it is the case that one is suing on a judgment or for a sponsor’s payment, a vadimonium is made for as much as the matter is worth, but in all other cases it is made for as much as the plaintiff swears is being demanded him by vadimonium nonvexatiously. But a vadimonium is also made for not more than 100,000 sesterces. So for example if the matter is worth 100,000 and it is not an action on a judgment or for a sponsor’s payment, a vadimonium is made for not more than 50,000.Gaius is accurately describing, in barest outline, how litigants with unfinished business made engagements to reappear; how the defendant promised to appear on a certain day in the future; and how he promised in addition to pay the plaintiff a certain penalty if he did not appear. When we try to picture for ourselves precisely how these vadimonia were ordered and performed, two details in Gaius' account become important: the penalty, and the day of return. The amount of the penalty and the choice of day ought to vary from case to case, and it is not immediately obvious how a magistrate could order an engagement to take place on such specific terms without having seen the litigants personally.[355]
F.
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