THE ALBUM

Introductory Note

§ 152 Lex acilia repetundarum 14,65 (Bruns 55; FIRA I No. 7) (122 B.C.)

< The praetor... shall registers in accord with this law al! the names of the 450 men chosen (as the jury panel) for the year, to be written down on a sign· board (tabula) painted white (album) in blade letters....

Quintiuanus, Institutio oratorio XII.3.11

Many of those (weary of the difficulty in the study of law) turn to the album (of the praetor) and the rubrics (thereof) and choose to become formulae specialists or, as Cicero says, a kind of pettifogger, on the pretext of choosing a more useful branch (of the law) whereas they pursued them only because they were easier.

Ulpjanus, Libro IV ad edictum (D. 2.13.1.1)

... Labeo says that he also 'states' (edere) (the nature of his action) when he takes his opponent to the album and points out the formula which he is going to dictate....

The edicts of the praetor and the formulae for actions and other reme­dies a vailable during his term of office were set forth on signboards painted white (album), erected in the forum, legible from ground level and thus readily available for prospective litigants? Unlike other edicts which, as the term indicates, were originally delivered orally, the edicts and formulae in-

27. Jolowicz-Nicholas, Introduction 35B.

1. Wenger, Quelten 57 n.19, states that, like ether posted edicts, the signs were not per­manent but only exposed during the greater part of the day.

eluded in the praetor’s album were written down and posted when the magistrate entered upon his term of office.¹ Normally the terms album and edictum were distinguished, but occasionally the most significant material of the album, the edictum element, was employed to designate the whole?

The album, as finally fashioned by the jurist Julian, comprised: (1) the edicts of the praetor, i.e., the rulings setting forth the actions which would be entertained during his term of office, to which were appended (a) the formulae to be employed in the praetorian actions falling within the particu­lar rubric, and 0?) the formulae of such civil actions which appeared to relate to the context of the ruling; and (2) a supplementary portion, including (a) the interdicts, i.e., the forms employed by the praetor setting forth the prohibitory or exhibitory injunctions which he was prepared to offer, (b)the exceptiones, i.e,, the affirmative defenses which were made available to defendants, and (c) the praetorian stipulations, i.e., guarantees which the praetor could exact from the parties before granting an action or other relief.⁴ It was early recognized that the internal arrangement of the individ­ual edicts with their appended formulae and the supplementary interdicts, affirmative defenses and praetorian stipulations could be reconstituted on the basis of the edictal commentaries of the late classical jurists.

2. Weiss, Studien 120 if.

3. E.g., G. 4.118. Cf. Greenidge, Procedure 87 f.

4. A general discussion of the edict and its major subdivisions by Lend, Edictum 14-48.

5. Rudorff, De iurisdictione ediaum. Edicti perpetui reliqua sunt (1869). Cf. also Walker,

The Fragments of the Perpetual Ediet of SaMus Julianas, Collected, arranged and annotated (1877). ■

6. Lend, Das Edictum Perpetuum. Ein Pemch tu seiner WiederhersteHtmg, 3d cd., 1927, reprinted 1956.

7. The sequence of materials, as related to juristic commentaries, is set forth by Lenel, £ttaum XV1-XX1V; the conjectured titles, rubrics, wording of the edicts and formulae, to­gether with comment thereon, occupying the bulk of the volume, Edictum 51-568. The rubrics and the words of the edicts, interdicts and exceptiones, where avaiJable-but not the formulae of the actions - are reproduced in Bruns, Fontes No. 65; FIRA I No. 65 (335-89),

8. D’Ors, AHDE 23 (1953) 495-513, and Derecho priv. rwn. 44 and n. 13,

1. Edicta and formulae

§ 153 The language of the edicts and formulae is the language of the jurists who framed the rulings at the behest of the praetors and drafted the for­mulae to set forth precisely, yet succinctly, the issues involved in an action or other procedural relief. As snch the style is 'elegant, idiomatic Latin, weighty, unadorned, correct, and terse’? In a study devoted to edictal style, Kaser points to the sharp contrast between the diffuse, clumsy and pedantic wording of leges, drafted by scribes who had no special training for the law, and the expert legal phraseology of the jurists? A number of extracts from the Edictum Perpetuum, as reconstructed by Lend, plus further hypo­thetical formulae, are introduced in literal translation to illustrate both content and style.

Edictum de pactis et conventibus (Lend, EP 64, Tit. IV § 10, based on D. 2.14,7.7 [Ulp. 4 ad ed.])

Pacts agreed upon which shall have been made neither fraudulently nor contrary to statutes, plebiscites, senatus consulta, decisions or edicts of the emperors, nor in order to fraudulently evade one of these (Enactments), I will uphold.

The praetor grants an affirmative defense (exceptio) to enforce informal agreements which the ius civile would not uphold?

Edictum in ius vocati ut eant (Lend, EP 68, Tit. V § 11, based on D. 2.4.4.1 [Ulp. 5 ad ed.])

The praetor says: 'No one is to summon to appear in court without my per· mission a parent, a patron or patroness, or the children or parents of a patron or patroness.'

Formula, actio in factum (Lend, EP 70, idem)

If it appear that that patron has been summoned to court by that freedman contra to the edict of such-and-such praetor, index, condemn that freedman to that patron for 10,000 sesterces; if it does not appear, dismiss.

The typical formula of an action on the case (actio in factum) available for the violation of a praetor’s edict?

1. Schulz, History 98.

2. Kaser. Fesftchrift Schuh II 21-70, particularly 22 ff.

3. Cf. Wenger, Institutes 157.

4. Wenger, institutes 162 f.

Edictum de noxalibus actionibus (Lend, EP 159 ff., Tit. XIV § 58, based on D. 9.4.21.2 [Ulp. 23 ad ed.])

If the person in whose power a slave is said to be denies that he has the slave in his power I shall either order him to swear that the slave is not in his power and that he did not contrive fraudulently that he should not be, or else I will grant an action without the opportunity of noxal surrender; whichever of these two the plaintiff prefers.

Formula, actio civilis noxalis (Lend, EP 165, idem)

If it appear that by the act and design of the slave Stichus theft has been com­mitted. for which reason Numerius Negidius ought either to settle the damage or to give the slave in noxaf surrender), do you, iudex, condemn Numerius Negidius ofsuch amount as the matter will be worth or to give the slave in noxa; if it does not appear, dismiss.

The ius civile provided for noxal surrender of a slave who committed a delict;¹ if the owner alleged that the slave was not in his power when the delict was committed, the praetor provided relief in his edict, as above. Lenel conjectured a formula for the praetorian action.* but it is generally held that the formula cannot be reconstructed.^{[1039] [1040] [1041] [1042] The formula of the civil action is given above; Numerius Negidius is the catch-name for the defendant, as Aulus Agerius is that for the plaintiff.}

Formuia, rei vindicatio (Lenel, EP 185, Tit. XV § 69, based on D. 6.1.1.1 ff. [Ulp. 16 ad ed.])

If it appear that the property on which there is suit belongs to Aulus Agerius by the ius Quiritium, and the property be not restored to Aulus Agerius at tie award of the iudex, do you, iudex, condemn Numerius Negidius to Aulus Agerius for so much of his property as the thing will be worth; if it does not appear, dismiss.

This is the formula for the civil action of recovery of property (vindicatio rei) containing the so-called restitution clause (clausula arbitraria), ac­cording to which the iudex is permitted to give the defendant the opportunity of restoring the property in dispute and thus escaping monetary damages, in this case the highest value up to the time of judgment.*

Formula, actio certae creditae pecuniae, exceptio pacti (Lend, EP 237, Tit. XVII | 95, based on G. 4.41, 49 f.)

If it appear that Numerius Negidius ought to give 100 (sesterces) to Aulus Agerius, if there is no agreement between Aulus Agerius and Numerius Negidius that that sum be not sued for, index, condemn Numerius Negidius to Aulus Agerius for 100 (sesterces); if it does not appear, dismiss.

The formula of the civil action for sum certain, with the affirmative defense of the pact not to sue introduced.

Edictum depositi (Lend, EP 288 f-, Tit, XIX § 106, from D. 16.3.1.1 [Ulp. 30 ad ed.])

For whatever has been deposited not in time of riot.

Formula, actio praetoria in factum concepta (Lend, EP 288, idem)

If it appear that Aulus Agerius has deposited a silver table with Numerius Negidius, and by the fraud of Numerius Negidius it has not been returned to Aulus Agerius, do you, iudex, condemn Numerius Negidius to Aulus Agerius for as much as that property will be worth; if it does not appear, dismiss.

Formula, actio dvilis depositi bonae fidei in ius concepta (Lend, EP 289, idem)

Whereas Aulus Agerius has deposited a silver table with Numerius Negidius. which is the object of suit, whatever for this reason Numerius Negidius ought to give or do according to good faith, do you. iudex. condemn Numerius Negidius of his property to Aulus Agerius; if it does not appear, dismiss.

The praetorian action antedated the civil action, for an earlier penal action for breach of faith in the case of deposit, provided by the Twelve Tables, had lapsed in the late republic; the civil action arose when deposit was recognized as a contract bona tides.* In addition to the praetorian formula and the civil formula given above, there was further provided (1) praetorian action for double damages in case of denial or fraud in the event of emergency deposit; (2) praetorian action for denial or fraud in case of deposit with third person (sequestraria); and possibly (3) an edict and formula for the contrary action by the depositee vs. depositor.

Formula, actio civilis pro socio, condemnatio cum taxations (Lenel, EP 297, Tit. XIX § 109, based on D. 17.2.52 pr.-l [Ulp. 31 ad cd.])

Whereas A ulus Agerius has entered into partnership with Numerius Negidius, whatever for this reason Numerius Negidius ought in good faith to give or do to Aulus Agerius, provided that Numerius Negidius can do this, do you, iudex, condemn him of his property: if it does not appear, formulae of the classical formulary procedure, like the forms of action of early English procedure, constituted the very basis of the adjective law, and, as the sources above indicate, are vital elements in any considera­tion of the substantive law.¹⁴ Further discussion of formulae is to be found in the early mimeographed editions of this work and in texts on civil pro­cedure? ^T

16. For comparative study, see Peter, Actio 61 if.

17. Schiller, Texts and Commenia/y, book IV, chap. XVI B. E-g„ Wenger, Institutes 140-75; Kaser. Zivilprozessrechi 235—68.