Earlier Procedure: The Legis Actiones
The earliest form of procedure was the legis· actiones (‘statutory actions'). These were noteworthy for their inflexibility. The second-century jurist Gaius explains:
The actions in use among the ancient lawyers were called statutory actions [legis actiones], either because they were set out in statutes, since at that time the edicts of the praetor, in which numerous actions were introduced, were not yet in use, or else because they were adjusted to the very words of a statute and so had to be observed as immutably as statutes.
This is why the opinion was given, that one who raised an action about the cutting of vines, using in the action the word ‘vines', lost his case, because he should have called them trees, since the law of the Twelve Tables, on which the action for cutting down vines was available, spoke generally about cutting down trees.[101]Great care was therefore needed, to avoid the case being lost on technical grounds rather than being decided on its substantive merits.[102]
(1) Initiating the Action
Litigation began by the pursuer issuing a formal oral summons to the defender. This process was called in ius vocatio, which may be translated as ‘calling to law'. What if the defender refused to comply with the summons? In modern law, the solution here is just to continue with the litigation. Normally, if a modern defender makes no attempt to defend the claim, decree in absence will be granted against the defender, and the pursuer will win by default. This was not the case in early Roman litigation. In principle — and this remained the case throughout the Republic and into the early Empire — litigation depended on the consent and participation of both parties, rather like modern arbitration. The pursuer's action could not proceed in the absence of the defender.
It was permitted for the pursuer to use force to compel the defender's appearÂance, although as an alternative the defender could find someone to act as a vindex, a guarantor for future appearance, instead of appearing immediately.[103] Compelling appearance must often have been difficult or impossible, especially where the defender was physically stronger or had support from others.[104]
(2) The Preliminary Hearing
There were five legis actiones.[105] Three of these (sacramentum, postulatio and condictio) were used for initiating an action.
The other two were used for enforcement of judgments, and are considered below.(a) Sacramentum
Sacramentum was used where no other form of action was provided for.[106] The term sacramentum relates to a form of wager entered into by the parties. This was a promise to pay on the event of failure in the action, the money to be paid to the state rather than to the other party.[107] The amount of the sacramentum varied depending on the value of the action. If the subject matter of the action was worth at least 1,000 asses (a Roman coin), then the sacramentum was 500 asses; otherwise, or if the matter in dispute was the free or slave status of a person, the sacramentum was 50 asses.[108]
How matters proceeded depended on the nature of the claim, and more preÂcisely whether it was a claim to property or a claim against a particular person.[109] If the pursuer claimed to own the property in dispute or to have another right in the property, then the property had to be brought before the praetor. If it could not be brought to the hearing (eg because it was not portable, as with land) then a part could be brought, for example a clod of earth. The pursuer would hold a rod and take hold of the property and then assert his or her claim. For example, if the property in dispute was a slave, the pursuer said: ‘I declare that this man is mine according to his proper title. As I have said, look you, I have laid my staff.' The pursuer then laid the staff on the property. The defender then did the same things. The praetor then said: ‘Let the man go, both of you', and they did so. The pursuer then addressed the defender, and said: ‘I ask whether you will say on what title you have made a claim.' Then the defender said: ‘I have asserted my right by laying of a staff.' The pursuer said: ‘As you have claimed wrongfully, I challenge you to a sacramentum of 500 asses.’ The defender said: ‘And I you.' Then the praetor awarded interim possession to one of the parties, and ordered that party to give security for the property and its profits.
A judge would be appointed after a delay of thirty days.[110](b) Iudicis Postulatio
The iudicis postulatio was used when specially authorised by statute.[111] In this proÂcedure, the pursuer would begin by saying: ‘I state under sponsio that you ought to give me 10,000 sesterces', or whatever the subject matter of the action might have been. ‘I ask whether you affirm or deny this.' The defender then denied the claim. The pursuer then said: ‘As you deny, I ask you, Praetor, to give a judge or arbiter.' The judge would normally then be appointed immediately.[112]
(c) Condictio
The third of the legis actiones was the condictio. The term condictio has had a surÂprisingly long life, particularly in the law of unjustified enrichment, in which context it is still used today. Its use there is considered in Chapter 25.[113] The term condictio, though, as used in modern law, has long since lost any connection with the procedural form named after it. Even in classical law, its use is anachronistic: condictio is an archaic Latin word referring to the formal giving of notice initiating the action, and in classical law such notice was no longer given. In classical law, the word referred to a particular kind of action, by which an obligation to convey a specific piece of property or a specific sum of money was asserted. The jurist Gaius explains the use of the condictio in earlier law.[114]
Under the condictio, proceedings before the praetor began with the pursuer asserting the claim, like this: ‘I state that you ought to give me 10,000 sesterces. I ask whether you affirm or deny this.' If the defender denied the claim, the pursuer would then say: ‘As you deny, I give you notice to appear on the thirtieth day to take a judge.' As with the sacramentum procedure, but not the postulatio, there was then a delay of thirty days at the end of which, failing settlement by the parties, the proceedings before the judge would begin.
Nothing in the condictio prevented use of one of the other legis actiones as an alternative.[115]
(d) Litis Contestatio
Whichever of the legis actiones was used, once the formal exchange of words that is described above had happened, there occurred what is known as litis contestatio. This was the point of no return for the pursuer's claim: once matters had reached this stage, the cause of the pursuer's action was said to be ‘consumed'. If the action was abandoned after this point, it would not be possible to bring another action on the same facts.
(e) Selection of Judge
All that then remained to be done was the selection of the judge. For this figÂure, both iudex and arbiter are used. It is not clear whether there is a distinction between these terms, though it may be that an arbiter sat in cases where the judge had a wider discretion to exercise.[116] The normal approach was for a single judge to sit, but there were exceptions: some cases fell within thejurisdiction of the centumviri or decemviri, or were judged by a panel of recuperatores.[117]
In principle, the parties could choose their own judge, whether by mutual agreement or by one party suggesting names until the other accepted one. If they could not agree, as would no doubt often be the case, the selection might be made by drawing lots. In later times, the selection would be from an official list (the album iudicum), compiled from men of the wealthier classes, although it seems that it was always possible for the parties themselves to agree a name that was not on the list. It is not clear exactly when the album iudicum was first introduced.[118]
(3) The Hearing before the Judge
As has been noted already, the hearing before the judge was much less formal than that before the praetor. There was no special place, such as a courtroom, for this hearing to take place, and it was often held in the open air. The Forum, in the centre of Rome, was often chosen.
The parties normally had to appear personally, although a procurator could be appointed to act on a party's behalf in case of need, such as illness.[119] There were few formal rules of evidence. In principle, the burden of proof was seen as being on the pursuer, but in the absence of formal rules for relevance and admissibility of evidence, and with no system of appeals, it is hard to see how this could be relied upon.
(4) Enforcement of Judgments
A successful pursuer might be faced with a defender who was unwilling or unable to comply with the judge's decision. The next question to consider would be how the judgment could be enforced. Unlike the more normal situation in the modÂern world, though, there was no direct state involvement in the enforcement of judgments. Instead, if compliance could not be obtained by any other means, it was necessary for the pursuer to raise a further action on the judgment. There were two legis actiones for this, namely manus iniectio and pignoris capio.
(a) Manus Iniectio
Manus iniectio can be translated as ‘laying on of hands', and was a procedure laid down by the Twelve Tables[120] for judgment debts.[121] After thirty days from the date of judgment,[122] the creditor once more brought the debtor before the praetor. The creditor would then speak in the following format, laying hold of the debtor at the same time: ‘Whereas you have been adjudged liable [or condemned] to pay me 10,000 sesterces, as you have not paid, on that basis I lay my hand on you for the adjudged 10,000 sesterces.'[123] If the defender wished to dispute the validity of this procedure, for example by denying the existence of the debt, this could not be done personally. Instead, the defender had to find a third party, known as a vindex, to act instead.[124] If the defender failed to find a vindex, the defender was taken away and put in chains.[125] There then followed a period of sixty days' imprisonment, during which the parties could attempt to come to terms. If the parties did not come to terms during this period, the defender could be sold into slavery or (possibly) put to death.[126] This was altered by the lex Poetelia, legislation of 326 BC, by which the debtor could only be compelled to work off the debt, not sold into slavery or killed.
(b) Pignoris Capio
Pignoris capio means ‘taking of pledge'. By this procedure, a creditor was allowed to seize property belonging to the debtor to hold as security until the debtor performed whatever obligation it was that the debtor owed.[127] It is not clear what happened if the debtor did not perform, as there is no evidence of the creditor being allowed to sell the property.[128] Pignoris capio was not available in all cases, though it is unfortuÂnately not completely clear in what circumstances it was available.[129]
C.