Cognitio
The cognitio procedure has no single and identifiable origin.64 It is strongly identified with the authority of the princeps, though the power of republican magistrates to investigate and adjudge controversies was longstanding.
The praetor exercised cognitio-like powers when, for example, he conducted interrogatio or granted interdicts - arguably whenever he paused from the assembly-line granting of routine actions to consider a subsidiary matter with closer attention.65 But certain features of cognitio were genuinely different, the most profound difference being its (at least nominally) undivided nature: trials were not conducted by a lay judge chosen by the parties, but directly by the holder of imperium or his deputy. Accordingly, in the absence of any founding legislation, one looks for the origins of cognitio in instances of ‘direct adjudication’. For example: Augustus committed to the consuls the enforcement of testamentary trusts (fideicommissa), leading eventually to a dedicated court; municipalities were permitted special proceedings to enforce public gifts (pollicitationes); special proceedings were created for the disposition of property that would otherwise pass to unmarried or childless persons but, under Augustus’ lex Papia Poppaea, passed to the aerarium or fiscus.It is unclear how quickly cognitio became the usual procedure in civil cases. The formulary procedure is evident in first-century epigraphic sources from Italy and the provinces, and apparently thriving, and yet there is evidence from Suetonius (on Augustus) and Tacitus (on Nero) describing the management of appeals from the decisions of iudices in Italy and the provinces.66 It is disputed whether these are cognitiones or formulary. Even in Rome itself the picture is cloudy.
Frier has pointed to a passage in Tacitus’ Dialogus (39.1) where Maternus, describing the state ofFlavian oratory, states that fere plurimae causae are decided in conditions which, to us, strongly suggest cognitio.67 The statement is surprising, given that the lex lulia that reformed the formulary procedure was relatively new and very much in force. It is conceivable the lex lulia made the use of lay judges in some way undesirable and thus drove litigants, where possible, to use professional judges, but this is only a guess.
Course of Proceedings
Summons under the formulary procedure had been a private act. Under the cognitio procedure both the execution and enforcement of summons was supported by the administrative machinery.68 The forms of summons evolved; of the earlier forms, litis denuntiatio was the most usual. The plaintiff (so it appears) prepared and delivered to the defendant a notice to appear which in some way evidenced the authority of the court. A stronger form of written summons (litterae69) was prepared by the tribunal and delivered by the plaintiff to a defendant who resided at a distance. Defendants who were otherwise unreachable could be ‘summoned’ by public notice (edictum). All of these methods of summons were enforced by means of a contempt procedure (contumacia).
The contempt procedure is a hallmark of cognitio and needs special mention because it marks an abrupt change from the formulary proce- dure.70 Under the formulary procedure, as already noted, the defendant’s participation was voluntary. A magistrate had used his edict to bring pressure to bear where he could, but its effect was limited, and the edictal manner of expression, offering remedies against opponents who acted in such-and-such a way, required the aggrieved party to take the first steps.
The contempt procedure was more plainly a means to punish disobedience to the command of a magistrate or judge. Its role in the summons of the defendant is the most striking. A defendant could be summoned, and fail to appear, three times without consequence, but at that point a ‘peremptory summons’ was issued, and if this were ignored the matter could proceed to disposition in the defendant’s absence. If the plaintiff presented proof in support of his claim, he could receive judgment in his favour, and the defendant was closely restricted in his ability to appeal against the judgment.The proceedings under cognitio were much changed.71 Litigants did not frame their claims as specific actions and exceptions as in the formulae, but set them out as rights supported by the law. Litis contestatio still existed but its principal effects were gone: it was no longer a ‘novated obligation’, and the event itself did not consume the right to claim. Aspects of a trial that were handled somewhat clumsily under the formulary procedure, such as the summoning of witnesses, adjournments, and examination by interrogatio, were handled effilang=EN-US>ciently by direct order, usually supported by the power of the contempt procedure. Judgments were no longer restricted to monetary damages.
The procedure developed further in the dominate under aggressive legislation.72 From the middle of the fifth century, a lawsuit was begun with a so-called libellus conventionis, a written complaint prepared by the plaintiff and delivered to the judge, setting out the facts on which the plaintiff based his claim, along with a request for the defendant to be summoned. The ‘libellary process’ gave the judge an opportunity to scrutinize the claim before issuing the summons. This period also saw changes to the rules of evidence (some rather retrograde), and the closer control of judges to prevent abuses of their office. This period as a whole shows a less thoughtful system of procedure and an imperial bureaucracy more jealous of its power.
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