PUBLISHING THE DAY

The effectiveness of the postponement regime, outlined above, depends on the ability of the magistrate to inform litigants of the day on which they ought to return. If the litigants cannot depend on obtaining a face-to-face meeting with the magistrate, then the day of return ought to be published in a way that permits the litigants to gain the information on their own.

Lex Irni, c 90, ll. 27-31. Quicumque in eo municipio duumvir iure dicundo praerit... intertium dato. Idque proscriptum in eo loco, in quo ius dicet, maiore parte cuiusque diei per omnes dies, per quos intertium dari debebit, habeto ita ut de plano recte legi possit.

Whichever duumvir in that municipium is in charge of administering justice shall grant three-day postponements. And he shall publish it, in the place where he administers justice, for the greater part of each day, throughout all days on which he is supposed to grant three-day postponements, so that it can be read from ground level.

The text does not say what exactly must be published, and no answer can be certain. Under the circumstances, one would expect the magistrate to make known the day of return in some way. There are many ways in which this could be done.^[377] The most straightforward way to make this known is to require the magistrate, each day, to publish the specific day on which parties are expected to return. This has the advantage of saving the parties from negotiating the judicial calendar for themselves.^[378] One can only guess at the specific language to be published. One possibility is for the day to be published as part of the vadimonium order, for example,

In VIII kalendas lulias vadimonia fieri iubebo.

If this statement, or something like it, were published for the greater part of each day on which justice was administered, waiting litigants would know precisely how to perform and record their vadimonia.

One last and somewhat obscure piece of evidence may help to complete the picture. In the first book of his commentary on the edict, Paul gives an isolated rule that, on its own, gives hardly a trace of its original context.

D 50.16.2.1 (Paul 1 ad edictum). “Cuiusque diei maior pars” est horarum septem primarum diei, non supremarum.

“The greater part of each day” means the first seven hours, not the last.

Our starting-point is the assumption that some part of the edict directed that something should be done for the greater part of each day, and that Paul's rule is attempting to explain precisely what this means.⁵⁸ Lenel noticed that similar, formulaic language is used in several texts to describe publication by a magistrate,⁵⁹ and this suggested that Paul was speaking about publica­tion.⁶⁰ The discovery of the lex Irnitana brought to light more examples of the formulaic language (including the one quoted above),⁶¹ each example relating to publication, and to that degree the lex Irnitana supports Lenel. Thus both Domingo and Rodger, with the benefit of the lex Irnitana, have followed Lenel and suggested that Paul is speaking about publication.⁶² Rodger has gone further and has tried to discover precisely where in Paul's commentary this fragment was found.

A fragment from the same book of Paul, placed in the Digest immediately before the fragment under discussion, considers the distinction between “urbs” and “Roma”.⁶³ Rodger makes a strong case that this fragment is dealing

58 Johnston has argued that a substantial amount of the commentary we read in the opening books of the edictal commentaries was not edictal commentary at all, but rather commentary on local jurisdictional limits set forth in statutes: see Johnston, “Vadimonium” (n 25) 115, 118, 123.

59 See Lex repetundarum, l. 65 (M Crawford (ed) Ro'man Statutes II (1996) no 1, 72: “maiore parte diei”); Tabula Heracleensis l. 16 (Ro'man Statutes no 24, 363: “maiorem partem diei”).

60 Lenel, Das Edictum Perpetuum (n 3) 54 note 13.

61 Lex Irnitana, c 85, tab IXB, ll. 36-37; c 86, tab IXC, ll. 22-23; c 90, tab XA, ll. 29-30.

62 Domingo, Estudios (n 25) 56; Rodger, �?“Vadimonium to Rome” (n 25) 173-175; see also Johnston, “Vadimonium” (n 25) 122 (citing Rodger). Domingo cites Paul's text as relevant both to the publication of intertium, as described in the lex Irnitana, and the publication of a vadimonium to Rome, as described in the lex de Gallia Cisalpina, col 2, ll. 21-22 (see Ro'man Statutes, no 28, 466). Though I argue below, like Domingo, that Paul's text is relevant to the publication of intertium, Domingo's understanding of intertium is utterly different from my own, and thus my understanding of what must be published “for the greater part of each day” differs from Domingo's also.

63 D 50.16.2pr (Paul, Edict 1): “Urbis” appellatio mur^, “Romae” autem continentibus aedificiis finitur, quod latius patet.

with the subject of vadimonium to Rome.⁶⁴ A fragment of Ulpian, placed in the Digest immediately after the fragment under discussion, also deals with vadimonium to Rome.⁶⁵ Assuming no rearrangement of fragments in the editing, the fragment under discussion ought to be discussing vadimonium to Rome, or more specifically, some aspect of publication relating to vadimo­nium to Rome.⁶⁶ But what exactly was to be published for “the greater part of each day”? Rodger suggests that the information to be published perhaps related in some way to the timing of the prospective appearance in Rome. The local magistrate might, for example, publish the day for which he would grant, on that particular day, a vadimonium to Rome, with due allowance for both the distance and the restrictions of the calendar.⁶⁷ This was conjecture on Rodger's part,⁶⁸ but we can see now that it is somewhat better than conjec­ture since, as was discussed above, the lex Irnitana, in analogous fashion, appears to require the publication of the day of return for those litigants who need to perform vadimonia.

For present purposes the question is whether Paul's “seven-hour rule” held also for postponements in iure, that is, whether a local magistrate was expected to publish the day of return in a conspicuous place for, at least, the first seven hours of the day.⁶⁹ Without evidence - and there is none - the most we can say is that this rule would be highly desirable. The reason is that litigants depend to a high degree on the existence of a regularised postpone­ment procedure. No litigants can be assured that a magistrate will attend to their business on a given day, and no plaintiff can be assured that his defen­dant will return voluntarily. The very lawsuit is at stake: we know this because the praetor offered restitutio for actions lost through the delays and inaction of local magistrates.⁷⁰ Given the uncertainties, what the litigants need, at

64 Rodger, “Vadimonium to Rome” (n 25) 169-173.

65 D 50.16.3 (Ulpian, Edict 2).

66 Rodger, “Vadimonium to Rome” (n 25) 173-175.

67 Rodger, “Vadimonium to Rome” (n 25) 174.

68 “There is, of course, no way in which we can know what matter relating to vadimo'niwm was to be published for the greater part of each day”: Rodger, “Vadimonium to Rome” (n 25) 174.

69 There is no reason to suspect that Paul, in D 5.16.2.1, might actually be speaking of the ordinary vadimonium, rather than the vadimonium to Rome. The opening title of the edict does contain a good deal of material about purely local matters, but even if one accepts that this part of the edict regulated the extent of local jurisdiction (see Domingo, Estudios (n 25) 26-54, 88), or that some of the material in this part of the edict was included purely for local consumption (i.e., in anticipation that the edict as a whole was republished in individual communities: Johnston, “Vadimonium” (n 25) 114, 123), an edict on publishing days of return in local courts probably belongs elsewhere. In the edictal commentaries, the ordinary vadimo'niwm is discussed in Ulpian 6, and Paul 6 and 7, ad edictum.

70 D 4.6.26.4 (Ulpian, Edict 12), quoted above.

the very least, is an assurance that the magistrate will order their return on another day, and thus perform the bare minimum needed to keep their lawsuit alive. The rule cited by Paul would assure them that, on days when justice is administered, they can count on the magistrate to perform this bare minimum for the first seven hours of the day.^[379] Therefore litigants who arrive to see an insurmountable crowd ahead of them, or who are simply impatient to wait, can read the magistrate's words, for example, In VIII kalendas Iulias vadimonia fieri iubebo, make their vadimonium, and leave. The magistrate would be present to administer justice, in at least this very minimal way, for the first seven hours of the day.^[380]

I.