The formulary system

As we saw in chapter 6, in the later Republic the per formulam procedure gradually replaced the earlier system of the legis actiones and finally became the main form of civil procedure in Rome (after the enactment of the lex Julia iudiciorum privatorum in 17 BC).^[1000] As has been explained, the procedure by formula consisted of two distinct phases.

a part in the administration of private law well after the formulary system had fallen into abeyance in the third century AD.

The cognitio extra ordinem

From the early years of the Principate period a new type of legal procedure, known as cognitio extra ordinem or cognitio extraordinaria, began to be used alongside the per formulam procedure. The cognitio procedure was used to settle private disputes, but was also employed in criminal cases and in disputes between private citizens and state organs. Under the new system magistrates and imperial officials acting on behalf of the emperor used their administrative authority to cut through the formalities that had to be observed in regular court proceedings. In Rome and Italy the magistrates concerned were the special praetors (such as the praetor de liberalibus causis, the praetor tutelarius and the praetor fireicommissarius), the consuls, and various imperial officials (such as the praefectus praetorio, the praefectus urbi and the procuratores fisci). In the provinces justice was administered by the governors (praesides) and other high-ranking provincial magistrates. Often these magistrates exercised their judicial functions through delegates. However, unlike the iudices appointed by the praetor under the formulary system who were private citizens chosen by the parties, these delegates were lower state officials (iudices dati or pedanei) appointed by their superiors.^[1002] As in the cognitio extra ordinem proceedings were based largely on written communications, the magistrates were assisted by secretaries (scribae) and, like the judicial magistrates of the Republic, they often relied on the advice of panels of experts (consilia).

The cognitio extra ordinem was based on the idea that the administration of justice is primarily a function of the state and probably originated in the early practice which allowed magistrates to try certain cases directly and on their own initiative.^[1003] It was first introduced in the provinces during the later republican period and was usually employed in criminal cases, in cases involving private disputes between foreigners and in cases involving disputes between Romans when not enough Roman citizens were available who could serve as judges. Such cases were dealt with by the provincial governor either directly or through a delegate (iudex pedaneus) without observing the rules governing the ordinary per formulam procedure.

In the cognitio extra ordinem there was no division of the proceedings into two distinct phases {in iure and apud iudicem) nor a formula, and the term litis contestatio came to denote simply the moment at which the trial began before the magistrate.^[1006] The summons was now issued by the plaintiff to the defendant with the backing of the jurisdictional magistrate {denuntiatio ex auctoritate), or by the magistrate himself on the plaintiffs request.^[1007] [1008] If the defendant failed to appear in court the judge could condemn him by default {contumaciaf^>(1 By contrast, under the formulary system it was up to the plaintiff to ensure that the defendant appeared before the magistrate and a judgement by default was impossible since there could be no trial without the agreement of both parties. Under the new system the term praescriptio (or exceptio) came to signify any defence raised by the defendant against the plaintiffs claim. As to the means of evidence, these were the same as under the formulary system, although now written evidence carried much more weight than oral testimony. All the relevant evidence was assessed freely by the magistrate in charge, but the burden of production was bom by the litigating parties.

The magistrate's decision had to be given in writing and announced in the presence of the parties concerned.^[1009] Unlike the formulary system, under which the judgement of the iudex was regarded as final, in the cognitio extra ordinem the party who lost the case could appeal from the original decision of the magistrate to have his case brought before the emperor or a higher magistrate.^[1010] [1011] A more detailed description of the cognitio procedure, as it applied during the later imperial period, is given in chapter 10 below.