THE ROLE OF THE PRAETOR AS JUDICIAL MAGISTRATE

Gellius, IVoctes Atticae XVI. 10.8

For when prolelarii (poorer citizens) and adsidui (wealthy citizens) and senates (clients ?) and vades (sureties) and subvades (subsureties) and viginti quinque asses (twenty-five asses [money]) and taliones (retaliations) and the trial for thieves cum lance et lido (with plate and girdle) have disappeared and all this antiquity of the Twelve Tables, except for centumviral cases by legis actiones, has been made obsolete by the enactment of the lexAebutia, I ought only engage in the study and knowledge of the law and of the statutes and their terms which we (now) use.

Gaius, Institutionum commentarius 1V.3O-31

But gradually all these legis actiones came into disrepute.

For conjectured interpolation, see Solazzi, Festschrift Wenger II 49-55.

The praetor played a much greater role in the development of the formu­lary procedure than he did in the legis actio process. The formulary process, which in the course of the classical epoch eventually replaced the earlier procedure, largely owes its predominant position to the enterprise of the judicial magistrate. The origin of the new process is a matter of dispute among Romanists, which it is not necessary to dwell upon here ^{[986] [987] [988] [989] [990] But most scholars arc agreed that the employment of written formulae antedated the enactment of the lex Aebutia. Inasmuch as foreigners could not employ the legis actio procedure in civil litigation, another way of proceeding must have been made available in the tribunal of the peregrine praetor, and pos­sibly in that of the urban praetor, in times before the creation of the praetor peregrinus. Similarly, for causes of action that could not be brought by legis actio process - the so-called indicia bonae fidei - the praetor provided forms of action on the basis of his authority as jurisdiction magistrate/}

Gaius tells us that the legis actio process ceased as a result of the lex Aebutia coupled with two leges luliae.

If the lex Aebutia was instrumental, in part at least, in rendering the legis actiones obsolete, in just what way was this accomplished? Early scholars maintained that the statute provided the constitutional basis for the praetor to modify the jus civile.’ Wlassak pointed out, however, that the law devel­oped by the praetor’s office - the ius honorarium - remained quite distinct from the ius civile, and further that prior to the lex Aebutia, the praetor exercised creative effort in granting new causes of action.¹⁶ It was the lex Aebutia, he held, which legalized the useof formulary procedure by citizens as an alternative to legis actio process in the praetor’s court. Not until the Augustan legislation of the leges luliac was the use of legis actio procedure abolished, except in the two cases specified.¹¹ The Wlassakian theory of the lex Aebutia and leges luliae was accepted for decades without question, but recently has met with strong opposition.¹’ Kaser has argued that the evi­dence shows that the lex Aebutia merely gave citizens the right to employ a process with written formulae in actions to recover specific sums of money or specific property, in lieu of the legis actio per condictionemJ’It was only after the lex Aebutia that the praetor provided formulary procedure along­side of legis actio process in other causes of action. Serrao is unwilling to accept Kaser’s idea that the lex Aebutia was directed solely to replacing the legis actio per condictionem by formulary process.¹⁴ Pugliese suggests that the lex Aebutia may have provided the legislative sanction which enabled the praetor to deny legis actio process after a suit on the same cause (de eadem re) had been brought under formulary procedure.

Cicero, De oratore 1.38.173

For to wander about the forum, to loiter in a court and in the tribunals of the praetors, to attend private trials of important matters in which it is debated often not on the facts but on equity and law, to hurl oneself into centumviral cases in which the laws of usucaptions, guardianships, kindred (gentilitates), agnations, alluvions, drcumluvions, nexa (bondages}, mandpia (formal delive­ries}. party walls, easements of lights, gutters, testaments invalidated or valid,

9. Reif, by Pugliese, op. di., 53 n.73.

10. Wlassak, Processgesetze I and II, passim, and in monographic studies, particularly ‘Judikationsbefehl der ronuschen Prozcsse’, and ‘Die Idassischen Ptozessformer, Sitzb, Wien 197 (1921) No. 4, and 202 (1924) No. 3.

11. Girard, SZ 34 (1913) 295, 353 ff., established the date of the leges luliac, 17 B.C.

12. Cf. Schdnbaucr, ‘Wlassaks rdmische Prozcsslchre in der Kritik der Gegenwart', Anz, Htoi99(1962) 130-52,

13. Kaser, Studi Albertario 1 25-59; accord Paoli, Festgabe Simonitis 273, 280 ff. Cf. also Tomulescu, Ir Jur 6 (1971) 136-41.

14. Serrao. iursdiclio 126 ff. Cf. also Bellocci, Genest 118-23.

15. Pugliese, Pracerso II. 1 57-65.

and other innumerable matters are discussed, when one is utterly ignorant of what is ones own. what is another's, why anyone is a citizen or a foreigner, oris a slave or a free man, is the mark of extraordinary impudence.

CT. Cic. de nat. deor. 330.74.

Festus, De verborum significatu ‘centumviralia’

Centumviral trials are so termedfrom the centumviri (hundred men). For when there were at Rome thirty-five tribes, which were also called curiae, three from each tribe were selected for judging, who were called centumviri, and although there were five more than a hundred, they were termed centumviri that they might be more easily named.

Cicero, In Verrem actio secunda 1.45.115

If anyone thought himself to be heir by a testament which did not then exist, he might sue by legis actio for the inheritance, or when he had received security for the interim possession of the claim, he might make a sponsio (promise) and so litigate for the inheritance.

Gaius, Institutionum commentarius IV.93-95.

FPe proceed per sponsionem (by a promise) as follows: we challenge our adver­sary by a promise running,⁴ if the slave on whom there is suit is mine by the ius Quiritium (law of the Romans), do you promise to give me twenty-five sesterces?' Then we propose a formula in which we claim that the sum of the sponsio ought to be given to us. Under this formula we are victorious only if we prove that the property is ours. (94) This sum of the sponsio is not, however, exacted; for it is not a penal but a preliminary (praeludidalis) promise and is made only for the purpose of getting a judgment on the property itself. Hence it is that the defend­ant does not put a counter-stipulation. Moreover, this stipulation is termed “for surety of the thing and its profits', because it was substituted for sureties who formerly, when the suit was hy legis actio, were given the possessor to the claimant for the thing in controversy and interim possession, that is, for the thing and its profits. (95) But when the action is tried before the centumvirs, we do not sue for the amount of the sponsio by formula, but by a legis actio. For we challenge the defendant by sacramentum, and the sponsio is for the amount of one hundred twenty-five sesterces, so according to the lex Creperia.

Nothing more is known of the lex Creperia, even its name has been doubted, see Berger, s.v. Lex Creperia, RE Supp 7 (1940) 384 f.

Cicero, Pro Roscio comoedo oratio VIII.24

... There are laws, there are formulae establishedfor every type ofcase, so that no one can be mistaken as to the kind of injury or the mode ofaction. Based on the loss, on the distress, on the inconvenience, on the ruin, or on the wrong suf­fered by anyone, public formulae have been set forth by the praetor, to which private controversy may be adapted.

Tacitus, De oratoribus dialogus 38

I pass on to the organization and the practice of the ancient law courts. Although it may have become more appropriate nowadays, the court (in those times}gave more opportunity for exercising eloquence since nobody was compelled to finish his argument in a few hours, adjournments were permitted (to all}, nobody imposed a limit on his speech and the number of days and counsel were not specified.

Plinius, Epistulae 11.14

You were right; I am busy with pleading centumviral cases, which annoy me more than please me. Most of the cases are trivial and meagre, and it is rare for them to be significant either by reason of the rank of the persons or the import­ance of the question.

Gaius, Institutionum commentarius IV. 103-05

All actions are either statutable (legitima) or dependent on imperium (imperio continens}. (104} Actions are statutable which take place in Rome and before a single iudex. And such (actions} lapse by reason of the lex Julia iudidaria if they shall not have been carried to judgment within a year and six months.... (105)... Actions are said to be dependent on imperium because they remain valid only so long as the magistrate who authorized them retains imperium.

The sources clearly reveal that in the time of Cicero citizens had available leg is actio process or, alternatively, an action within the formulary proce­dure. Why legis actio should have persisted when it would seem that the formulary procedure was more satisfactory for the litigation of the complex cases of the advanced Roman society is uncertain. There had been develop­ment in the legis actio process, the legis actio in rempersponsionem, which allowed direct litigation of questions of ownership by exchange of promises

(sponsiones or stipulationes) between the parties. This process continued in the centumviral court, even when a simpler and probably more effective formulary process, the formula pctitoria, had been made available by the praetor.“

It is possible that the legis actio procedure persisted in that the second half of the trial before a division of the centumviri gave the trial lawyers, the orators, a chance to display their skills in these causes cdldbres and gain public favor before the large crowds who attended these sessions. ” It is also likely that there were certain advantages to the plaintiff in choosing the legis actio process. How far the plaintiff could avail himself of this choice cannot be answered with any degree of certainty.¹* But as long as it was permissible, some plaintiffs would prefer a process which required the defendant either to admit or deny liability, while the formulary procedure gave the latter the opportunity of requesting from the praetor the pleading of a special, affirmative defense rather than a simple denial.” Birks has recently argued, accordingly, that prior to the lex Aebutia the praetor had granted formulary actions for civil law claims, but these actions were de­pendent upon the imperium of the praetor, with the consequent disadvan­tages of actions of this type.” The lex Aebutia converted these formulary actions to statutable suits, and thus could be brought at any time.

It took positive actions, the two leges luliae, to do away with legis actiones, save in the two situations mentioned in Gaius. The leges luliae are generally thought to be the two statutes of Augustus, one dealing with private suits, the other with trials in which the slate was involved.¹' Why, then, does Gaius refer to two statutes for private cases? Wlassak conjectured one law for public actions, two laws for private cases, but there is no evidence for the second of these.¹¹ More likely, most scholars hold, the two statutes were considered a unit, and cited as such.” Kunkel has recently suggested that originally murder and other wrongs were tried by legis actio sacramento leading to the addictio of the wrongdoer, a process that was only for-

16. A detailed description of the concurrent processes by Greenidge, Procedure 182-94. Specifically, on legis actio in rem per sponsionem, see Luzzatto, Studi Albertario I 167-93; briefly, Jolowicz-Nicholas, Introduaion 193 f., and Kaser, Zivilprotesirecht 76 L, with further reff. Now, see Kelly, Studies in the Civil Judicature qf the Roman Republic (Oxford 1976).

17. Jolowicz-Nicholas. op. at., 198 f.; Kaser, op. at., 40. For the centumviral courts, see Greenidge, Procedure 40-44; Marrone, j.k Centumviri, NND1 3 (1959) 114-15, with further reff.; add La Rosa, Labeo 4 (1958) 14, 24-40; Kelly, op di., chap. 1.

18. Kaser, op. at., 53 n.9, gives reff, to the pros and cons.

19. Nicholas, in Jolowicz-Nicholas, op. at., 224 if.

20. Birks, 'From Legis Actio to Formula’, Ir. Jur. 4 (1969) 356-67.

21. Text and comment thereon, Aaa DM Augusti 1 142-51.

22. Wlassak, Processgesetze I 173 f.

23. Reff, by Kaser, op. dr., 115 n.69.

mally abolished by Augustus.^{[991] [992] [993] Hence, the suppression of this legis actio would be accomplished by the lex lulia de iudiciis publicis (Julian law on public trials), that of the remaining legis actiones by the lex lulia de iudiciis privatis (Julian law on private trials).}

The formulary procedure in the sphere of statutable trials was legally recognized for all types of claims by the Julian law.³⁵ The statute likewise abolished legis actio process save in the two cases mentioned. The centum­viral actions persisted into the 3rd century of our era, but the guaranty against anticipated damage (cautio damni infecti) ordered by the praetor replaced the suit by legis actio.²⁴

At the opening of this section it was noted that the third area of praetorian activity in the development of the law flowed from the exercise of his sover­eign power (imperium) as a magistrate. He had the right to issue orders in order to carry out the functions of his office, i.e., to assure the proper admin­istration of justice. Among the earliest of these was the so-called possessory interdict which was issued at the behest of one of the parties to a dispute over the possession of land, which forbade any interference with the existing state of possession.^[994] In the course of time the praetor provided other interdicts, prohibitory as well as restitutory and exhibitory. Eventually, the extraordinary remedies in aid of the ordinary procedure were incorporated in the edict of the praetor. Reference will be made to these orders of the magistrate in the following sections of this chapter.

C.