IWlftitl u Ikw; dforn^ll Slam ^rtjcnl Cibratg KJA2700.H°6Tl877™""'"-'''"^^ * '^^ture upon Roman law procedure. 3 1924 021 226 430 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021226430 A LECTURE ROMAN LAW PROCEDURE GEORGE HOADLY, Professor in the Cincinnati Law School. CINCINNATI : ROBERT CLARKE & CO., PRINTERS. 1877. ^6iU TO THE STUDENTS CINCINNATI LAW SCHOOL. The following sketch of the history and character of legal procedure in the Roman Law was originally delivered in October, 1S75, as the opening lecture in my course of instruc- tion in Pleading. I now publish it for your use, in the hope that it may be found to -present, in brief outline and conve- nient form, the leading features of the several systems of pleading and procedure which obtained in that nation of an- tiquity, whose grozvth was tnost affected by legal processes and promoted by laiuyers, and whose jurisprudence has most influenced our own. Of course I claitn no other merit for these few pages than the industry which was intended to, and it is hoped may aid your labors in this field. If Mr. Abdy's little work upon this subject had been republished in this country, I should not have printed these pages ; but not knowing where else to refer you for a brief general sketch of this branch of the Civil Law, I have compiled these pages both as a pleasure and a duty. Cincinnati, October, 1877. ROMAN LAW PROCEDURE. To a course of instruction in the law of pleading and practice, as it now exists, I have thought that a brief sketch of the system, or systems, of civil pro- cedure among the Romans might not be an unsuitable introduction. The Roman processes for attaining right results in legal disputes have a deep interest for every student of comparative jurisprudence. Besides those striking analogies with our own methods, which some- times seem almost to establish the delusive phrase that " history repeats itself," we shall find that our own sys- tems have borrowed largely from Roman experience ; that pleading in equity and admiralty is derived from it ; and that the strong tendency or trend of modern innovation in procedure as evidenced by our own and similar codes, is in the same direction with the last, if not the best, results of Roman thought. I purpose to call your attention to three subjects : the organization of civil tribunals at Rome, and in her provinces, and their jurisdiction ; the methods of reach- ing and disposing of issues, or what we call pleading and practice; and the assistance aiforded to the admin- istration of justice by the bar. (5) A LECTURE UPON I. AS TO ROMAN COURTS AND THEIR JURISDICTION. In our law, jurisdiction, or the power to hear and determine controversies, eniibracing the settlement of the issues between the -parties, the solution of all legal questions arising in a cause, and the ascertaining of the real facts, together with the application of the. law to them, is generally confided to one tribunal. If is true, that in many, perhaps a numerical majority of cases, at common law, the intervention of a jury is had, to determine issues of fact. But the jury is not a sep- arate institution, or tribunal — it is a subordinate part of the court, subject to the instructions of the judge, and its verdict always liable to be set aside at his will. Not so at Rome. During the growth and maturity of the Roman republic, and until the final period of its jurisprudence, after the decline of the empire had be- come manifest, a sharp distinction was made between what was called the jus of the magistrate and the Judicium of the Judex (Ortolan's History, p. 674). The power was confided to the magistrate (usually the praetor), " eduere. Jus dicere" or, as we should say, to settle the issues arising in the action, add to refer the case to a Judex, that he might exevcxse Judicium, or, in other words, pronounce sentence or judgment, after hearing the proofs and arguments. Thus the magistrate adjudged the issues of law, and constructed what, without too great a strain upon the analogy, may perhaps be called an order of reference to the Judex to hear the evidence, and decide ROMAN LAW PROCEDURE. upon the fact. This distinction bears some resemblance to our own separation of the functions of judge and jury : the magistrate decided the law, the judex ascer- tained the facts. But until late in Roman history the same tribunal did not administer these different functions. In a rough way, Roman history may be divided into three periods : the regal, the republican, the im- perial. During the former, or earlier ages of the na- tion, the kings, afterwards the consuls, then the prsetors, and in some cases, the aediles, at Rome, and in the provinces, the proconsuls and propraetors, and finally the emperors themselves, with their representatives, the prefects, exercised the supreme judicial power as magis- trates. But as Rome did not pass from the republican to the imperial form of government by sensible, but rather by imperceptible steps, so we are not surprised to find that during the most glorious period of the empire, from the beginning of the reign of Trajan, a. d. 98, to that of Alexander Severus, ending a. d. 225, which was identical with the flourishing age of Roman jurisprudence, and after which no juridical work of valu^, other than that of compilation, was really done, the administration of law was conducted substantially by tribunals whose origin and functions were derived from the days of the republic. Of these the chief officer was the praetor. I have had occasion, at another time, and to another class, in this school, to trace in detail the surprising likeness between the growth of praetorian, or honorary law, in the civil law of Rome, to the changes 8 A LECTURE UPON made in our own system by the chancellors in the name of equity. Papinian, the greatest Roman lawyer, summed up this work in one sentence, which has been preserved to us in the Pandects, and which suggests much that we read in the literature of our own equity jurisprudence. " Praetorian law," said the Roman jurist, "is that which the prastors have introduced for the sake of assisting, or supplying the defects, or correcting the civil law, for purposes of public utility." (Dig. i, i, 7.) When Lord Bacon accepted the office of Lord Chancellor, he said : " Chancery is ordained to supply the law, and not to subvert the law." I'n a similar spirit. Sir John Trevor, Master of the Rolls, in deciding the case oi Dudley v. Dudley (i Prec. Ch. 244), thus explained the nature of equity : " Now, equity is no part of the law, but a moral virtue which qualifies, moderates, and reforms the rigor, hardness, and edge of the law, and is a universal truth. It does also assist the law where it is defective and weak in the constitution (which is the life of the law), and defends the law from crafty evasions, delusions, and mere subtleties, invented and contrived to evade and elude the common law, whereby such as have undoubted right are made remediless. And thus is the office of equity to protect and support the common law from shifts and contrivances against the justice of the law. Equity, therefore, does not destroy the law, nor creates it, but assists it." ROMAN LAW PROCEDURE. 9 The praetor held his court in the forum, though in cases of necessity he might sit elsewhere. He wore a robe bordered with purple, sat in a curule chair, and was attended by lictors. Ulpian informs us that his "assessors" (or legal advisers) "at Rome were ten in number — five senators and five equestrians." (Mac- kenzie's Roman Law, 308.) As the praetors were changed annually, and were not necessarily lawyers by profession, it follows that the success of the Roman system depended largely upon these assessors, who were "selected from the most skillful jurisconsults. At first the magistrate had the choice of his assessors ; under the empire they became public salaried officers. At all periods the assessors had only a consulting voice in judicial business: the magistrate was not bound to follow their advice ; but it can not be doubted that their opinions exercised the greatest influence upon his decisions." (Mackenzie, 312.) There is to be found in English history a practice which might, under other auspices, have proved the rudiment or beginning of a system of procedure some- what like that of Rome. I refer to the necessity at , common law of applying to the chancellor for the orig- inal writ. But the early English chancellors were ec- clesiastics, and politicians, rather than jurists, and they had not the aid of the most learned lawyers of the king- dom as assessors. And so the original writ became and was a mere notice to the defendant, or warrant for his arrest, describing in the most general terms the pur- poses of the action, which was then remitted to the 10 A LECTURE UPON proper tribunal to exercise jurisdiction, by compelling pleadings or the formal statement in detail by the par- ties of the ground or cause of action and defence, and ascertaining and adjudging their rights, while the Ro- mans, whose office oi prator urbanus was often, though not always, filled by the ablest jurisconsults of the re- public, with nothing like our system of pleadings, worked out, by the labors of the magistrate and his as- sessors, from the verbal representations of the parties, a formula^ or hypothetical statement of each case, the answer to or decision upon which by the judex was the judgment. This brings us to consider the second class of Roman tribunals, or those which exercised judicium, or, in other words, heard the proofs, the arguments upon the facts, and pronounced sentence. These were of four kinds — judices, arbitri, recuperatores, and the cen- tumviri. And in the days of the empire, we meet with a class of functionaries called judices pedanei, appointed by the governors of provinces, to decide upon affairs of small importance, and so called, as has been conjec- tured, because they stood at the "foot of the judicial ladder," (Mackenzie, 314,) — somewhat as the inferior tribunals of the English system were once known as courts of pie-poudre or dusty feet. The court o{ the centumviri was, or at least became, an exceptional tribunal. It originally consisted of one hundred and five members — three from each of the Ro- man tribes — afterward increased to one hundred and eighty. The hasta, or spear — the original quiritarian. ROMAN LAW PROCEDURE. 11 or, as we should say, common law emblem — was set up in their tribunal as the symbol of dominion. It was a permanent tribunal, of members annually elected, as- sembled in the forum, afterward in the Julian basilica, sitting in four sections or chambers. It had not Jus, hut Judicium only. In other words, it disposed of such cases, appropriate to its authority, as were sent to it by the magistrate, after performance before him of the ceremonies in Jure — viz., the religious ceremonial of the sacramentum, or action of the civil law applicable to matters within its cognizance (including actions in rem only), and of which more hereafter. There is evidence in Roman history that cases were sometimes tried be- fore two, and sometimes before all four of its chambers, sitting together, but voting separately. Why this was, or to what cases applicable, is not known. Cicero, in his treatise de Oratore, gives us a full statement of the matters or kinds of causes of which the centumviral court had cognizance ; and these have been classified as questions of status or personal right, of quiritarian property or property by strict civil law as distinguished from praetorian or equitable title, and of testamentary and intestate succession. As a common law court knows nothing of equities, so this tribunal took no no-, tice of the great body of rights and obligations which grew up under the edict of the prietor, and this although, when assembled in its four chambers, the prator urbanus, presided over it. (Pliny, Epist. 4, § 24.) The origin of this institution is uncertain, but it began to decline when the \egis actiones were abolished, 12 A LECTURE UPON B. c. 242, and continued until the days of the western empire, when we lose sight of it. Its power was lim- ited to Rome, or, at least to Italy. While the tribunals which sat in jure were ap- pointed by the state, those that exercised judicium were, from (he earliest days of Roman jurisprudence, with the exception of the centumviral court, selected by the parties themselves. They were private citizens, to whom, according to the circumstances, the praetor as- signed the office of judgment. Ortolan (History, p. 158) says that " the fact that the Romans in earlier times gave the name of reciperatores or recuperatores to officials appointed by virtue of international treaties to settle differences either between Rome itself and foreign cities or nations, or be- tween Roman citizens and foreigners, aifords general ground for the belief that the recuperatoresvisrt employed originally solely for the purpose of determining disputes between Romans and foreigners. This conjecture is corroborated by another circumstance, viz., that, at a later period, the judges in the provinces had no other title than that of recuperatores, so that the judex existed only in Rome, whereas the title of recuperator is found in connection with the provinces." This learned author also thinks that this institution, thus established for cases to which Roman law was in- applicable, viz., between Roman citizens and peregrini or foreigners, at a later period "developed into a regular system of procedure," and "ultimately extended to the citizens themselves, and that the determination of cases, generally of an urgent character, devolved upon these recuperatores." ROMAN LAW PROCEDURE. 13 They were distinguished from judices and arbitri by this, that whereas but one judex and usually one arbiter was selected for a case, and he, originally from the order of senators, and at a later day from the annual list of citizens liable to judicial duty, which, in the reign of Augustus, numbered about four thou- sand, the recuperatores numbered three and even five, and could be taken from the whole body of citizens indiscriminately, or even from the bystanders. They were not required to be unanimous, but acted by the majority of voices. I venture to suggest as not improbable, that the praetor, in cases which required speedy action, sought an equivalent for that carefulness of judgment, involving consumption of time, which the single selected judex or arbiter would exercise, in the choice of several recuperatores, and the advantage of concurring opinions ; and that it was for this reason that this institution, originally in use only in cases be- tween Romans and foreigners, became naturalized for domestic use. The judge {judex), it must not be forgotten, "was not a magistrate; he was a simple citizen, con- verted by the magistrate into a judicial officer in the individual case, at the conclusion of which his judicial functions ceased." (Ortolan's History, p. 156.) He was selected, or at least accepted by the parties, and only chosen by lot when they disagreed. He could not decline to act without a lawful excuse. He was allowed to consult one or more jurisconsults to guide him in cases of difficulty, and if too difficult for his 14 A LECTURE UPON powers, might decline judgment. As it is not possible so to prescribe in advance as to anticipate and solve every legal question connected with a case, even where the direct decision is limited to questions of fact, so it must have been the practice in Rome for the parties often to select a learned lawyer as judex or arbiter; for Pliny says (Ep. i, 20), " Often have I pleaded, often have I acted is, judex, often have I sat in the consilium^ The functions oi judex and arbiter differed only in the greater freedom of judgment the latter possessed. Festus says, '■'■Arbiter est qui totius ret arbitrium habet et potestatem;" whereas, as Tomkins and Lemon, in their notes upon Gaius (592), show, "The term judices was applied to those judges whose duty it was to decide according to t\\z jus strictum. In the limited sense in which the term judges was employed, no margin whatever was left for the individ- ual opinion of the judge. The law was definitely laid down for his guidance, and all th,at was required of him was that he should pronounce, after due investiga- tion, the sentence." . . . Cicero, fro Roscio, ca.p. z^., says, " Judicium is of a certain amount, arbitrium of an uncertain. To judicium we come with this view, to gain or lose the whole matter in controversy ; but we ap- proach «r^z7rm»? with the design of obtaining some part, and not necessarily all we have claimed." Thus it is clear that the judices were called to decide when the amount claimed was definite and certain. In a ju- dicium the amount of the claim was certain, and the words of the formula will prove that if the plaintiff did not obtain all that he claimed he got nothing. {Gaius, 4, 50.) When the dispute was submitted to an ROMAN LAW PROCEDURE. 15 arbitrium, as for example in matters relating to dower, the arbiter was permitted to use his own discretion, and such words were added to the formula as ex fide bona. Again, another point that is worthy of notice is that \vhen a matter under dispute was submitted to the de- cision of a judex, in the strict sense of the term, the judicium was constituted with a penalty," which was not the case with an arbitrium. " It was in \}n^ forum, under the eyes of every one, that the judge on his subsellium proceeded to the exam- ination, and to the decision of the suit {judicium) ; to him the evidence was submitted; before him the wit- nesses were examined, and the patrons or the advocates pleaded." (Ortolan's History, p. 677.) The judex might, however, try the case where the cause of action arose, or in any other place pointed out by the appointing magistrate. There were cases in which the intercession of cer- tain magistrates of high rank was had to modify sen- tences. Thus, when Scipio was condemned for pecu- lation by the praetor, the tribune allowed execution against his property, but interfered to prevent his being sent to prison. The first title of book 49 of the Digest treats of appeals. These were unknown during the republic. From the sentence of the judex, there was then no ap- peal. " From the time of Augustus a regular system of appeals wa:s established. At Rome there was an appeal from all the magistrates to the prefect of the city, and then from the prefect of the city to the praetorian pre- fect or the emperor, Marcus Aurelius, by a rescript, 16 A LECTURE UPON allowed an appeal from the judgment of a judex to the magistrate who appointed him. . . In Italy and the provinces, there was an appeal from the municipal magistrates in the first instance to the governors, and from them to the praetorian prefect or to the emperor." (Mackenzie, 239-) Constantine prohibited appeals before final judg- ment, except upon questions of competency. And from his time no appeal was allowed from the praetorian prefect, and therefore only by supplication to the emperor, and by favor and not of right, could his judgment be reviewed. Justinian required all appeals to be entered within ten days from the entry of judgment, and denied appeals to the imperial court in cases involving less than twenty pounds of gold. II. PROCEDURE IN ACTIONS, With regard to this, we find the history of Rome divided into three periods, in \yhich different sys- tems prevailed. During the first, from the establish- ment of the republic to the date of the Lex Mbutia, generally fixed at b. c. 234, but which Ortolan contends was passed about sixty years later (b. c. 177 or 171, Ortolan's History, p. 216), justice was administered by means of the actiones legis. Thereafter, and until A. D. 294, a period of about five hundred years, em- bracing the most flourishing age of Roman jurispru- dence, the formulary system prevailed, for which in its turn was substituted, by a constitution of Diocletian of that year, the system of extraordinaria judicia, under ROMAN LAW PROCEDURE. 17 which the same officer acted as both magistrate and judex, and the ancient characteristics of Roman proce- dure were obliterated. Of each of these in its order : The term "action" in the early history of Rome, "is a generic designation, which signifies a particular form of procedure, the procedure taken as a whole, in- cluding the ceremonies, the acts, and the words which constituted it." (Ortolan's History, p. 142.) There were five such actions, of which three were instituted to obtain the decision of disputes, the others being forms of execution only. The first and most important, the actio sacramenti, survived, in the court of the centumvirs, the abolition of the actiones legis by the Lex Mbutia. It was used in suits to enforce obligations, whether by contract or de- lict, or, as we say, tort, and in suits relating to real rights or rights of property. Its name was derived from the sacramentum, or sum of money each litigant was required to deposit in the hands of the pontiff, and which was forfeited by the unsuccessful party for the benefit of public worship. I will quote from Gaius, 4, 16, a brief description of the forms adopted in this action when in rem : "The claimant, having a wand in his hand, laid hold of the thing claimed, say, for instance, a slave, and uttered these words : ' I assert that this slave is mine, ex jure quiritium, in accordance with his status as I have declared it. Look you, I lay my wand upon him,' and at the same moment he laid his wand 18 A LECTURE UPON on the slave. Then his opponent spoke and acted in precisely the same way ; and each having made his claim, the praetor said ; ' Let go the slave, both of you.' On which they let him go, and he who was the ■first claimant thus interrogated the other: 'I ask you whether you can state the grounds of your claim.' To that his opponent replied : ' I have fully complied with the law, inasmuch as I have touched him with my wand.' Then the first claimant said: 'Inasmuch as you have made a claim without law to support it, I challenge you in a deposit of five hundred asses.' The as was one pound of copper.) 'And I, too, challenge you,' said his opponent. Then followed the rest of the proceedings exactly as in an action in perso- nam," described by the author previously — viz., the par- ties demanded & judex ; the prastor on the thirtieth day assigned one, before whom, on the next day but one, they appeared, and briefly stated their case before sub- mitting to trial. Ad interim possession of the subject matter of controversy was assigned by the praetor to one of the parties, upon his giving security for its re- turn with its increase. "The praetor also took other sureties," continues Gaius, "for the deposit from both parties, because that deposit went to the treasury. The litigants made use of a wand instead of a spear, which was the symbol of legal ownership, for men considered those things above all others to be their own which they took from the en- ?my ; and this is the reason why the spear is set up in front of the centumviral court." When the thing in dispute was too bulky, or otherwise impossible or inconvenient to be produced in court, some part was produced to represent all ; as, one goat ROMAN LAW PROCEDURE. 19 or sheep of a herd, or even a lock of wool, a piece broken from a ship or a column, a clod from a field, a tile from a house, etc. The defendant was originally brought into court in the manner described in the first three paragraphs of the first of the Twelve Tables, as follows ; " I. If you summon a man before the magistrate, and he refuses to go, take witnesses, and arrest him. " 2. If he attempts evasion or flight, lay hands on him. " 3. If he be prevented by sickness or old age, let him who summons him before the magistrate provide the means of transport, but not a covered vehicle, un- less as an act of benevolence." But it was not every one to whom these provisions of the Tables relative to the vocatio in jus, or sum- mons to trial, applied. There were exceptions, in favor of consuls, prefects, prastors, proconsuls, and all other magistrates possessing the imperium, or power to inflict punishment upon criminals, or carry civil sen- tences into execution, also magistrates who could incar- cerate, also of the pontiffs while engaged in the sacred rites, and those forbidden locomotion by the religio loci, also of any one transported on a public horse on public business, also of a bridegroom and his bride, of a judex while employed in a cause, of a party engaged in an action before the praetor, and of one conducting the funeral of a member of his family, or rendering religious rites for the dead. (Ulpian in Dig. 1. i, 4.) The manner of " taking witnesses " in the vocatio in jus, was by calling on them to b§ar witness to what 20 A LECTURE UPON the plaintiff was doing, touching them at the same time on the ear. What are known in English law as fines and com- mon recoveries originated in the actio sacramenti of the Roman law. The Twelve Tables speak of the cessio in jure. This was a fictitious action, used for the transfer of property not in the possession of the party making the transfer, also for the purpose of giving the effect of res judicata to transactions not allowed by the strict letter of the law. The party desirous of emancipating, for instance, was sued, made no defense, and judgment followed. The amount of the wager, or sacramentum, might be only fifty asses, if the value of the thing in dispute fell below one thousand asses. When the jW^;f reached his conclusion, he reported to the magistrate, who enforced the judgment with the power placed at his disposal. (Sandars' Introduction to Justinian's Institutes, p. 60.) Of the other actiones legis but little is to be said. The description by Gaius of the second of these, the judicis postulatio, was unfortunately missing when his great work was recovered by Niebuhr, in 18 16, and we only know that it was used to enforce obligations, and consisted substantially in an application to a magistrate to appoint a jWi?,?? without having recourse to \!^q sacra- mentum. The third, or condictio, was an (Gaius says, unnecessary) addition of later date. It was introduced by the lex Silia, about 244 b. c, under which it resem- bled the action of debt at common law, being employed ROMAN LAW PROCEDURE. 21 to recover a specific and certain (liquidated) sum of money, but, by the Lex Calpurnia not long after, it was extended to every species of obligation definite in char- acter. We know but little of its forms, except that its name was derived from the fact that the plaintiff an- nounced {condicebat) to his antagonist that he must ap- pear before a magistrate on the thirtieth day, in order that a judex might be appointed. The fourth and fifth of the actiones legis (the manus tnjectio, and pignoris capio) were rather forms of enforcing rights, than methods of judicial procedure. The manus tnjectio was the seizure of a debtor's person when con- demned by the judge, or surrendered in default, as the result of which the debtor was addictus, or adjudged to his creditor as a slave. This was, however, limited to those judgments upon which this particular remedy had been provided by some lex. Unless the defendant could meet his creditor's demands, or find a vindex, or protector (bail), responsible for his appearance, he was taken into the custody of the plaintiiF at once. If a right over a thing, in rem, were enforced, no such remedy was necessary, for the judgment was executed by the delivery of the thing. It, therefore, applied only to judgments in personam. The pignoris capio was generally considered an actk legis, but Gaius says (4, 29) that some authorities have dissented from this view, because it was a process trans- acted out of court, and generally in the absence of the opposite party, and because a pledge might be taken on a dies nefastus, or day when it was not allowed to trans- 22 A LECTURE UPON act court business. The general rule of Roman law being that the person, not the property, of the debtor was bound, an exception was made when the debt was due to the military service, the fund for sacrifice, or the public treasury. In such cases, the creditor might seize on any property of the debtor and hold it in pledge, and this seizure, called pignoris capio, was con- sidered an actio legis, only because it was conducted with certain solemnities, and accompanied with the repetition of a set form of words. The actiones legis fell not only into decay, but also into great disfavor. Gains gives as the reason for this, that " through the excessive refinements of those who at that time determined the law, matters got to such a pitch that a litigant who had made the very slightest error lost his cause."- {Gaius, 4, 30.) And he cites a remarkable instance, in these words U, 11): " Hence, when in an action for vines having been cut down, the plaintiff used the word vites in his plaint, it was held that he must lose the cause because he ought to have used the word ardores, inasmuch as the law of the Twelve Tables, on which lay the action for vines cut down, spoke generally of trees {arbores) cut down." Another cause of the unpopularity of the actiones legis grew out of the fact that their forms, and especially the sacred words essential to their successful use, as well as the dies fasti on which they might lawfully be com- menced, were secrets originally known only to few per- ROMAN LAW PROCEDURE. 23 sons, the forms and sacred words to the patricians, who had composed them or who were in the habit of using them, and the dies fasti to the pontiffs. But in the year b. c. 304, Flavius, who for this service was after- ward raised to the offices of tribune^ senator and curule sedile, coming into possession of the requisite infor- mation, either as secretary of Appius Claudius Csecus, or, as Pomponius says, by plagiary from a manu- script of Appius Claudius Csecus, promulgated the dies fasti, and published a work setting out in detail the steps necessary for conducting the actiones legis. The mystery which surrounded them having been dis- pelled, the practical inconveniences and injustice result- ing from the extreme accuracy required, led to their abolition by the iEbutian Law, and the two leges Julia, B. c. 46 and 25, except in cases of threatened damage from an adjoining building, and those within the centum- viral jurisdiction, and brought about the substitution of the formulary system, which we will next consider. The dominant idea of this system was, " that after the magistrate had heard the statement of the parties, briefly made before him injure, he organized the suit by delivering to the judge written instructions or 2, formula, by which the judge was appointed; the points to be decided between the litigants^ were defined, and the extent of his power determined." (Ortolan's History, p. 217.) Under this system, an " action " was the right granted by the magistrate in jure to proceed before the judex. 24 A LECTURE UPON During this period, legal proceedings began with the vocatio in jus, or notice to appear already described. " In course of time this rough and ready form of summons was got rid of, and at length the method of di- rect application to the prastor was adopted, by whom a fine was imposed in case his order for appearance were disobeyed." (Abdy & Walker's Gaius, Appendix L.) The next step was the editio actionis^ or allegation of the plaintiff's right and assertion of his claim, followed by the fixing of the vadimonium or bail for the defendant's appearance. It is curious to note, that bail having been thus given, if the plaintiff failed to appear, he became, as we should say, nonsuit — that is to say, lost his cause, not so, however, but that he might begin again. If the defendant failed, his bail was forfeited. Both having appeared, and the case been called by the praetor, the defendant, in answer to the citation, said : "Where art thou who hast put me to my bail; where art thou who hast cited me? See, here I^am, ready to meet thee; do thou on thy side be ready to meet me." The plaintiff to this replied: "Here I am." Then the defendant said : "What sayest thou ?" The plaintiff, • in an action in rem for example, rejoined : "I say that the goods, or lands, etc., which thou possessest are mine, and that thou shouldst make trans- fer of them to me." Thereupon the plaintiff made his ■postulatio or de- mand for ^formula and 2l judex. The praetor then heard both parties as to this demand. The defendant might ROMAN LAW PROCEDURE. 25 argue that there was no cause of action, or, as we should say, demur, and If he succeeded in this, the cause was dis- missed ; or he might urge the insertion into the formula of some particular defence, called exceptio, similar to our plea in confession and avoidance — as, for instance, an agreement not to sue for the cause of action — to which the plaintiff might ask for a replicatio, or exception to the exception, and then the defendant for a triplicatio, the plaintiff for a quadruplicatio, and so on. Recollect that the posiu/atio, or plaintiff's demand for a formula, the defendant's claim of an exceptio, etc., were oral, and consisted of statements intended to affect the contents of the formula as framed by the praetor to be given to the judex or recuperator es. The formula consisted of the appointment of the judex, a brief statement of the case, and a summary pre- scription or command allotting to the judex his duty in the premises. Gaius has preserved its exact terms (4, 34, et seq.) It began with the nomination o? the judex. " Let Octavius be judex." This was followed by the demonstratio, or description of the c^use of action, thus: " Inasmuch as Aulus Agerlus sold a slave to Nu- merius Negidius." This, however, did not form a necessary part of the formula, as it might be contained in the second or more important part, the intentio, or statement of the demand or claim of the plaintiff, thus : 26 A LECTURE UPON " If it appear that the slave Belongs to Aulus Ag- erius ex jure quiritium." Or, in a different case : " If it appear that Numerius Negidius ought to give to Aulus Agerius ten thousand sesterces." Then followed the condemnation or authority to the judex, thus : "Let him be condemned; if it do not so appear, let him be absolved ;" or-, " Judex, condemn Numerius Negidius to pay to Aulus Agerius ten thousand sesterces ; if it do not so appear, acquit him." In another class of cases, the formula would run thus : _ " Let Octavius be judex : whatever it appear that Titius ought to give to Flavius, condemn. Judex, Titius to pay, a sum not exceedirtg ten thousand sesterces, to Flavius ; if it do not appear, acquit him'.'' The condemnatio in the formulary system was always pecuniary. In a case in which Aulus Agerius prosecuted Nu- merius Negidius to recover a silver table deposited^ with the latter, and in default, to pay damages, the for- mula is giv£n thus (Gaius, 4, 47) ; "Let Octavius be judex. Because Aulus Ae- enus deposited a silver table with Numerius Negidius, ROMAN LAW PROCEDURE. 27 from which transaction this suit arises, whatever it appear that Numerius Negidius ought in good faith to give or do to Aulus Agerius on account of this matter, do thou, judex, condemn Numerius Negidius to give or do to Aulus Agerius, unless he restore the table ; but if it appear that he should do and give nothing, let him be acquit." This was called the formula in jus concepta, present- ing merely a question of duty or legal obligation, con- trasted with the formula in factum concepta, which ran thus: " Let Octavius be judex. Should it appear that Aulus Agerius has deposited with Numerius Negidius a silver table, and that this through the fraud of Numerius Negidius has not been restored, do th.o\i,judex, condemn Numerius Negidius to pay to Aulus Agerius as much money as the thing in dispute shall be worth; should it not so appear, acquit him." It is obvious that in the first of these cases, the fact was found in the formula, and the only question for the judex was to determine the extent of the defend- ant's liability ; whereas, in the other instance, the ques- tion of fact whether the table were deposited or not, as well as the consequence, was left open for the investi- gation of the judex. It remains only to be added th^t in what were known as the three divisory actions — viz., for partition among co-heirs, for division of effects between partners, and for settling boundaries between adjacent proprietors there was a fourth part of the formula, called the adju- dicatio, which ran thus: "Let xh^ judex adjudicate to 28 A LECTURE UPON Titius as much as ought to be adjudged." Sometimes the intentio was found alone, and then the formula was csWed prajudicialis, the object of the action being merely to establish a point for use in a future action, as in eq- uity we take testimony in perpetuam memoriam rei. The insertion of an exception was made in words like the fol- lowing (Gaius, 4, 119): " If it has not been agreed between Aulus Agerius and Numerius Negidius that that money shall not be sued for." The exceptio might be peremptory or merely dila- tory, depending upon whether it tended to, defeat or only delay the plaintiff's claim. Thus, the exception just repeated would be made dilatory by the addition of the words, "before the ides of March next." So' the replication rfiight be in these words; " If it have not been subsequently agreed that he may sue for the money." It is obvious that the formula had the merit of brevity and simplicity. It enabled the magistrates, by slight changes of language, to prescribe the duties of the judices in the vast variety of transactions, which, in the complex civilization of the empire, gave rise to controversy. The names of actions were, therefore, numerous, but they have been distributed in Justinian's Institutes, book 4, title 6, by their characteristic qual- ities, into nine classes, exclusive of interdicts ; I. Actions in rem, the judgment in which aifected the right itself; and in personam, which charged the de- ROMAN LAW PROCEDURE. 29 fendant himself — the former com monly known as vindi- cations, the latter as condictions. 2. Another division was between civil actions, or those founded on a lex, senatus consuUum, or the jus civile, or, as we should say, founded on a statute, or the com- mon law, and those which derived their force from the authority of the praetor. This division somewhat re- sembles our distinction between suits at law and inequity. 3. Actions to recover a thing {rem), or a penalty, and mixed actions, or those to recover both the thing and the penalty. 4. Actions distinguished by the value sought to be recovered, as the single, double, triple, or quadruple value, beyond which, say the Institutes (4, 6, 21), no action extends. 5. Those distinguished by the powers given to the judex or arbiter, as actiones stricti juris, in which he had no discretion, actiones bon<£ fidei, in which equitable con- siderations were taken into cognizance, without an ex- ception to that effect, and actiones arbitrarta, in which if the defendant did not, on the order of the judge, give the satisfaction awarded, and either restore, exhibit, or pya, or give up a slave that had committed an injury, he was condemned. In these the judex determined the amount. of satisfaction according to the circumstances of the case, and though the defendant seemed to have the option to comply or pay the amount of condemna- tion, the praetor really enforced compliance. Hence actions in rem were made arbitrarix, and so enforced. 6. Actions by which all that was due was recovered. 30 A LECTURE UPON were distinguished from those by which sometimes the whole, and sometimes less, were obtained, as in cases where the defendant claimed the privilege of being con- demned only in an amount which he could pay without being reduced to destitution, for instance, when sued for a marriage portion. 7. Actions direct, that is to say, brought against a party to enforce an act of his own, and indirect or those in which some act of another, by which it was claimed that the defendant was bound, was sought to be enforced. The actiones directoe, or direct actions, were also con- trasted with the actiones contrarice, because they were remedies by which the principal, as distinguished from the incidental, rights arising upon a contract were en- forced ; and also, as being given directly by the civil law, with the actiones utiles, in which analogous actions were allowed by the praetor, falling, not within the pro- visions of the law, but its principles. (See Abdy & Walker's Gaius, 2, 78, note 2.) 8. Actions perpetual -and temporary. Ordinarily praetorian actions were required to be brought within a year, such being the term of that oflice. But the term perpetual was limited in the year a. d. 424, by Theodo- sius II., by the rule that generally no action, real or per- sonal, should be brought after the lapse of thirty years. And subsequently, in some other. cases, the period was extended to forty years, as where property hypothecated remained in the creditor's possession. 9. Actions which died with the person, and those that survived to or against heirs. The ordinary rule ROMAN LAW PROCEDURE. 31 was that the action survived, but there were exceptions, as in cases of certain torts, some of which survived for but not against, and some neither for nor against.. After the formula had been delivered to the judex, the parties appeared, took the oath of calumnia that the suit was not prosecuted or defended vexatiously, briefly stated their case by an outline called causce collectio, ad- duced their proofs, and then followed full argument, after which the judex delivered his sentence. This sen- tence was required to be given within eighteen months from the time of the litis contestation in cases between Roman citizens, tried in Rome, or within the first mile stone from that city. All other causes depended on the imperium of the prastor, and had to be ended du- ring his term of office. To complete this sketch of Roman procedure in its best days, it only remains to describe the interdict, perhaps the original of our injunction : "An interdict was an order issued by the praetor, and was in fact an edict addressed to a particular individual with reference to a particular thing. '•Vim fieri veto, exhibeas, restituas.' 'I forbid you to have recourse to violence; you are to produce; you are to restore;' such were the forms in which these commands were couched. In- terdicts were granted generally where some danger was apprehended or some injury was being done to some- thing to which a public character attached ; as, for in- stance, if a road was stopped up ; but they were also granted to protect private interests, if the necessity for the interference of a magistrate were immediate. If the person to whom the interdict was addressed ac- quiesced and obeyed the praetor's injunction nothing remained to be done, but if he refused to obey, the 32 A LECTURE UPON magistrate then referred to the decision of a judex, whether the terms of the interdict ought to be com- plied with. For instance, the interdict rem restituas might have been issued, but the person to whom it was directed might deny that by law he was bound to restore the thing. On his stating this to the magistrate, the magistrate would give an action to try the question, shaping the terms of the interdict into the intentio of the formula, " If it shall appear that Aulus Agerius ought to make restitution of the thing {res)," etc. (Sandars' Introduction to the Institutes, § io8.) Interdicts were of three classes : Prohibitory, similar to our restraining orders and injunctions ; restitutory, like our mandatory injunctions, decrees for specific performance, etc. ; and exhibitory, of which a good illustration is the interdict de libera homine, similar to our habeas corpus, requiring one who detained a free man to produce him, Gaius (4, 40) says, "They are called decrees when he orders something to be done, as when he directs that a thing shall be pro- duced in court or be delivered up. They are called inter- dicts when he prohibits a thing being done; for instance, when he directs that no violence be done to one who is in possession innocently, or that something be not done on sacred ground." In another passage (4, 143) he says " there is another division, based on the fact that they are provided either for the purpose of obtaining, retain- ing, or recovering possession." Interdicts were ordinarily simple; that is, moving only the defendant, as is the case with most of our in- junctions, but there were interdicts, known as double, ROMAN LAW PROCEDURE. 33 addressed to both parties, and in which each party was both plaintiff and defendant. From this review of Roman procedure during the days of the formula, we may safely conclude that their system was more simple and direct, as well adapted to the ends of justice as ours, and much more saving of time. Certainly no such abuse could have come to pass in Rome as that of which the punishment is re- corded in Monro's Acta Cancellariae, page 692, where a solicitor, who, in the time of Queen Elizabeth, had filed a replication of sixscore sheets, was sentenced to have a hole cut in his masterpiece, and wearing it about his neck with the written side outward, to be exhibited in the courts of Westminster Hall, fined ten pounds, and imprisoned until it should be paid. The administration of law by the means of the formula received the title of ordinaria judicia, but there grew up by its side a system o? judicia extraordinaria, which in time supplanted it, and constituted the third and last system of Roman procedure. By a constitu- tion of Diocletian, a. d. 294, all magistrates in the provinces were directed to decide cases themselves. In time this became the rule of the empire, and a practice which, during the days of the formula, had prevailed only in comparatively few cases requiring, extraordinary action, became the universal law. The use of the for- mula was abolished by Constantius, a, d. 342. The cases of extraordinary actions were at first of summary hearings, in which the magistrate restored a 34 A LECTURE UPON party, suffering from something he ought not by law to bear, to the status quo ante injuria, of the enforcement of trusts or fidei commissa, and of judgments by sale of property to the purchaser who might offer the largest dividend to the creditors, with which sale passed the person of the debtor, who thereby became infamous. The characteristics of these "extraordinary" pro- ceedings were that they obliterated the distinction be- tween J«j and judicium, dispensed v/ith judices, and intro- duced written pleadings. As a general rule, tfie plaintiff furnished the magistrate with a written statement of his case, called libellus conventionis ; the defendant answered by a written exception. The cause was always heard before the same magistrate. The rules of evidence prevailing in our courts be- fore recent relaxations were to a large textent derived from the Roman law. Especially are we indebted to it for the doctrine of presumptions, and the distinction between conclusive and disputable legal presumptions, and between presumptions of law and of fact. The Roman lawyers admitted parol testimony, but consid- ered it secondary (as do we) when written evidence was accessible. They rejected the testimony of parties and their near relatives ; of one bearing a strong enmity to a party; of pupils, or infants of tender years (females under twelve, males under fourteen), under guardian- ship or tutelage; of lunatics; infamous persons ; and, with some exceptions, such as in cases of treason, fraud upon the treasury, and adultery, of slaves. ROMAN LAW PROCEDURE. 35 Witnesses were examined openly, and, after the age of Constantine, under oath. The burden of proof was upon the assertor of an affirmative, unless sup- ported by a presumption — the benefit of doubt was given against the party sustaining this burden. By the Roman maxim, witnesses were to be valued, not num- bered. In cases of the loss or destruction of goods while in the hands of mariners, innkeepers, or stablers, the owner was permitted to prove amount and value by his own oath, as was allowed by us also even before the abolition of the rule forbidding parties to testify. Upon failure of regular proof, the Roman law al- lowed a party to refer the facts to the oath of his ad- versary. A like rule prevailed for a short time in Ohio, before the adoption of the code, with its full permission to the parties to testify, viz.: from 1850 to 1853. But in Rome this evidence was conclusive. Judgments at the Roman law were interlocutory or final — were required under the empire to be in writ- ing, signed by the judge, and copies delivered to the parties. The twelve tables allowed thirty days for payment, after judgment. This grace the prastor ex- tended to two, and Justinian to four months, after which the debtor became liable to the manus injectio, and might be seized and sold, or if there were several cred- itors, cut into pieces in size proportioned to their debts, though Aulus Gellius says this was never done. A final judgment imported, as with us, absolute 36 A LECTURE UPON verity. Res judicata was a matter of peremptory ex- ception. (Gaius, 4, 121.) In the Roman system, the' time from which the right merged in the action, called litis contestatio, was of consequence. This was at the end of the proceedings \njure before the magistrate, when, originally, the par- ties called the bystanders to witness that they submitted the matter to the decision of the judex. To that time all subsequent proceedings related. From that time the successful party's rights by the judgment dated. III. OF THE ROMAN BAR. A brief reference to some facts relating to the Ro- man bar will conclude this lecture. It was a profession of great worth and high rank. If the bar do its duty, this will be the case in every age and country, for its office, to administer the laws, is of the highest. But the law was practiced at Rome for many generations by men of the greatest genius — Cato, Cicero, Hortensius, Pliny, Quintilian, Tacitus, Suetonius, were lawyers in active practice. Of Neratius Priscus, one of the leading jurists of the Proculian school, it is said, that Trajan thought so much that he at one time conceived the idea of appoint- ing him his successor. Wendell Phillips, in his oration called " Idols," imagines a Pantheon of great lawyers. " Rome," says he, " points to a colossal figure, ROMAN LAW PROCEDURE. 37 and saySj ' That is Papinian, who, when the Emperor Caracalla murdered his own brother, and ordered the lawyer to defend the deed, went cheerfully to death rather than sully his lips with the atrocious plea ; and that is Ulpian, who, aiding his prince to put the army below the law, was massacred at the foot of a weak but virtuous throne.' " But the fact which best proves the worth of the Roman bar is that our word "jurisprudence," mean- ing the science of law, in its best and highest significa- tion, which Aristotle calls the principal and most per- fect branch of ethics, is derived from jurisprudential signifying the work of the juris prudentes, or most em- inent lawyers, literally foreseers of the law. The responsa prudentum, or opinions of these sages, had the force of law. They had the right condere leges, or, as we shoul^ say, to make law. It was a well-paid profession. Cicero received from Sylla, while under impeachment, what is believed to have been a fee, though disguised as a secret loan, of a million sesterces, about forty thousand dollars of our money, and boasted of legacies from grateful clients (a not infrequent method of rewarding advocates, and con- sidered honorable when not obtained by solicitation), to the amount, in all, of more than twenty millions of sesterces, or eight hundred thousand dollars. The same feeling which led John Stuart Mill to describe the bar as the " exorbitantly-paid profession of lawyers" (Polit. Econ., vol. i, chap. 7, sec. 5) took a concrete form at various periods in Roman legislation. Thus, B. c. 204, the Cincian law prohibited compen- 38 A LECTURE UPON sation for arguing cases, but, as no penalty was af- fixed, it was disregarded. By a senatus consultum, Augustus attempted to re- vive the Cincian law, with the penalty of a return of fourfold the fee exacted ; and in the reign of Claudius, fees in any one case were limited to 10,000 sesterces, or about ^400. Trajan renewed this law, with an addition prohibiting compensation to advocates before final judgment, but this restriction was abolished by Con- stantine, who, as we should say, restored retainers and refreshers. The same emperor punished champerty^ by disbarring. Before the time of Alexander Severus, a fee was an honorarium, and not cognizable in a legal action, but from his reign it might be sued for by the process known as eoctraordinaria judicia. Candidates for the bar were required to be males of at least seventeen years of age. Originally, women were permitted to argue for others as well as themselves, but it is curious to note that the privilege of represent- ing others is said to have been lost by the impudence of a single woman--Caia Afrania — but it is difficult to believe that only one woman's bold tongue led to the prastor's edict forbidding women to plead for others. The advocate ordinarily spoke from a brief, drawn up by a jurisconsult. He wore a white toga, once the common Roman garment, but which became at last the uniform of this order. There prevails among us a very dangerous prac- tice, which in courts of last resort at least, is, I venture ROMAN LAW PROCEDURE. 39 to propose, only justified by necessity, ' viz., that of limiting the duration of arguments. The same necessity was found at Rome. Thus, Pompey limited the accu- ser's argument in criminal cases to two hours, allowing the accused three, and though relief was soon had from peremptory limit, it became common to allow time in these proportions, viz., fifty per cent, more to the accused. By a constitution of Valentinian and Valens, A. D. 368, advocates were authorized to speak as long as they wished, provided they did not abuse this liberty to swell fees. Quintilian tells us that it was a species of glory for an advocate to have spoken a whole day. The pro- secution of Marcus Priscus, proconsul of Africa, be- fore the senate, was conducted by Pliny and Tacitus, the former opening and the latter closing the argument, both opening and closing, as with us, being given to the accuser. Pliny spoke nearly five hours. On another occasion, he tells us that he spoke before the centum- viri for seven hours, with success equal to his great fatigue. It was customary to measure the advocate's time by a clepsydra or water glass, and when the judge con- sented to extend the limit he was said dare aquam, to give water. "As for myself," says Pliny (Ep. 6, 2), "when- ever I sit upon the bench (which is much oftener than I appear at the bar), I always give the advocates as much water as they require ; for I look upon it as the height of presumption to pretend to guess, before a cause is heard, what time it will require, and to set 40 A LECTURE UPON ROMAN LAW PROCEDURE. limits to the affair before one is acquainted with its ex- tent, especially as the first and most sacred duty of a judge is patience, which, indeed, is itself a very con- siderable part of justice. But the advocate will say many things that are useless. Granted. Yet is it not better to hear too much than not to hear enough ? Besides, how can you know that the things are useless till you have heard them?" a question which Pliny might not have asked had he lived in these days. In the same spirit, the Emperor Marcus Aurelius was accustomed to give a large measure of water to the advocates, and even to permit them to speak as long as they pleased, which privilege having on this occasion so fully exercised myself, I know you will not complain if I now bid you — Good Night. '■* il I