The cognitio procedure

The formulary system remained the operative system of civil procedure well into the Empire. It was not formally abolished until AD 342, although it had become obsolete before then.

3.4.1 The development of cognitio

The beginnings of cognitio fan investigation') are traditionally ascribed to the reign of Augustus. It began as a procedure created by order of the Emperor under impe­rial law. T he distinctive feature of cognitio, the adjudication of the whole case by a magistrate (at this point a salaried bureaucrat), was present in certain aspects of the formulary procedure, notably in the praetorian use of interdicts. The opportunity for magistrates to dispose of the whole case was extended by Augustus. He gave jurisdiction to the consuls to enforce trusts (.fideicommissa)·, previously trusts had not been legally binding (see 8.9.2.1). Claudius created a new praetorship specially to deal with trusts, and vested the supervision of guardians in the consuls. Other new magistracies were created, (e.g. the city and praetorian prefects) vested with important legal powers. Moreover, the emperors contributed to the development of cognitio by occasionally hearing cases themselves. When they did so, they were acting outside the normal system of civil procedure under the formulary system, i.e.

The eventual formal abolition of the formulary system reflected the profound change which had emerged in the previous centuries. Virtually all aspects of civil procedure were now firmly in the hands of the State, and subject to increasingly detailed regulation, as has tended to occur in modern legal systems. Since the cognitio procedure evolved over a period of some 500 years, its operation can best be considered in its developed form in the later Empire. For a good survey of the origins, development, and main features of this form of procedure, see now Rtifner, T., 'Imperial Cognitio Process', in OHRLS, 257-69.

3.4.2 Summons

Proceedings began with the plaintiff lodging a written statement of claim (.libellus conventionis) with the magistrate, who sent a copy (normally delivered by a court official) to the defendant ordering him to enter a defence and to appear in court on a fixed date. (The formida in its classical form did not exist in the cognitio proce­dure.) Gone were the days of plaintiffs dragging reluctant defendants to court. The defendant had to undertake to appear in court and had to provide security for his appearance.

3.4.3 Trial

The old system, comprising a preliminary hearing and full trial, was abandoned. The case now consisted of a cognitio—an investigation by the magistrate, who conducted the whole trial and made the decision himself. The use of courthouses became increasingly frequent as a venue for trials. The parties took an oath at the beginning of the trial that they would tell the truth. Joinder of issue occurred at this stage, but with less serious consequences than before, e.g. it no longer consumed the plaintiff's action. Only the judgment could now have the effect of barring the bringing of a fresh case based on the same facts.

The magistrate had complete control over the conduct of the case, especially over questions of evidence. Witnesses could now be compelled to attend by the magis­trate's order, the subpoena, and were subject to thorough interrogation. The inquisi­torial character of the cognitio trial procedure became one of the most distinctive features of late Roman civil process (see Rtifner, as previously mentioned, 264-65). Documentary evidence was by now regarded as of crucial importance: indeed, a rule was introduced that a document could not be defeated by oral testimony alone. The judgment was delivered in writing, read out in court in the presence of the par­ties (each of whom received a copy). As the procedure was no longer governed by a formula, the magistrate had a wider discretion in reaching a decision than the judge under the formulary system. He did not have to 'condemn' or 'absolve', or to frame the judgment in money terms.

3.4.4 Execution

The thirty-days rule for the satisfaction of judgments was no longer strictly fol­lowed—the period could be adjusted according to circumstances. Justinian even­tually fixed the period at four months. What happened if the judgment was not satisfied? There was a fundamental change in the procedure for enforcement since the State was now in control through its delegate, the magistrate. He had a discre­tion as to how the judgment should be enforced. The usual procedure under the developed cognitio system involved the seizure of the debtor's property by court bailiffs. If the judgment was for a sum of money, the property seized was sold at auction to raise the required amount, further seizures being made if necessary. The plaintiff could accept property in lieu of a sum of money, thus avoiding the need for an auction. Personal imprisonment of the debtor by the creditor had become obsolete, although imprisonment was occasionally ordered by a magistrate, the debtor being confined in a public prison. Execution against property was very much the preferred option.

3.4.5 Appeals

A systematic appeals procedure was developed under the cognitio system—the first in Roman legal history. The bureaucratic tendency of the age contributed to the emergence of a hierarchy of courts, which made an appeals system possible. In the capitals of the Empire, appeals were heard by the courts of the city prefect and the chief of the praetorian guard (the praetorian prefect). In the provinces, gover­nors often appointed subordinates to hear cases at first instance; the governor would hear appeals. Appeals could then be taken through the hierarchy of the urban system, if necessary. Emperors still heard appeals occasionally but their jurisdiction was more clearly delineated than before. The possibility of multiple appeals through the extensive hierarchy of courts resulted in the imposition of curbs in the late Empire, e.g. Justinian ruled that a decision could not be appealed more than twice.

Apart from hearing appeals, emperors were sometimes asked to give written rul­ings in cases where the magistrate was unsure of what decision to make. The answer of the Emperor normally constituted the final judgment in the case. Further, any­one could petition the Emperor for a ruling in a matter that had not yet gone to court, if the petitioner feared that he would not be dealt with justly. The ruling would guide the court that subsequently tried the issue.

By the late Empire, the Romans had developed a civil procedure that in many respects was to provide a model for later legal systems. But the cognitio system had drawbacks. A mass of rules, the result of bureaucratic over-regulation, clogged the system, and delays became acute. Theodosius II decreed that there should be a general limitation period of thirty years for actions that had previously been unlimited, i.e. perpetual. This was a step in the right direction, but a tiny step. Justinian was forced to rule that no case was to continue for more than three years after joinder of issue. Moreover, the introduction of an official fee system meant that litigation became much more expensive than before. Litigants now had to pay for every official act by an officer of the court. Not surprisingly, those offic­ers amassed fortunes, as their counterparts did in the pre-Victorian Chancery. Nevertheless, the cognitio system can be regarded as a notable product of the Roman genius for structure and order. And its drawbacks—expense, delay, and bureaucracy-—were features which modern lawyers will readily recognize in their own system.

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FURTHER READING

On Roman civil procedure, see the dated, yet indispensable, Greenidge, A. H. J. (1901), The Legal Procedure of Cicero's Time, Oxford: Clarendon Press; and Kelly, J. M. (1966), Roman Litigation, Oxford: Clarendon Press, for a comprehensive survey of the Roman law of procedure. These works should be read in conjunction with more recent contributions by Rodger, A., ‘The Lex Irnitana and Procedure in the Civil Courts’ (1991) 81JRS, 74-90 (on the jurisdiction of local magistrates and the civil procedure in municipal courts in light of ch. 90 of the Lex Imitana); and Metzger, E. (1997), A New Outline of the Roman Civil Trial, Oxford: Clarendon Press. Turpin, W., 'Formula, Cognitio and Proceedings Extra Ordinem' (1999) 46 RIDA 3, 499-574, presents an interesting argument on the three phases of the transformation of Roman civil procedure from the formula to the cognitio extra ordinem. For the use of documents in Roman courts, see Meyer, E. A. (2004), Legitimacy and Law in the Roman World, Cambridge: Cambridge University Press, chs 8 and 9. For an interesting, if controversial account of Cicero's influence on the development of Roman law, see Harries, J. (2006), Cicero and the Jurists—From Citizens' Law to the Lawful State, London: Duckworth.

On the physical location of Roman courts, see De Angelis, F. (2010), Spaces of Justice in the Roman World, Leiden/Boston: Brill (Columbia Studies in the Classical Tradition, volume 35).

On the Roman advocate, see Kennedy, G. A. (1972), The Art of Rhetoric in the Roman World 300 B.C.-300 A.D., Princeton: Princeton University Press; and Crook, J. A. (1995), Legal Advocacy in the Roman World, London: Duckworth, on the rhetorical aspects of Roman advocacy. A recent study by Powell, J. (ed.) (2004), Cicero the Advocate, Oxford: Oxford University Press, also contains excellent contributions on Roman advocacy in the context of Cicero’s works.

On the development of Roman legal practice in late Antiquity, see Humfress, C. (2007), Orthodoxy and the Courts in Late Antiquity, Oxford: Oxford University Press.

On the Roman influences on the development of the legal profession in the middle ages, see Brundage, J. A. (2008), The Medieval Origins of the Legal Profession, Chicago: University of Chicago Press.