Formulary Procedure
The formulary procedure was marked by an improved system of pleading and the introduction of new, largely praetorian rules of enforcement.46
Pleading
Litigants were no longer required to plead the words of the civil law.
They were now allowed to plead the event which triggered the assistance of the law, and the law could be either civil or praetorian in origin. This new freedom was possible because the praetor, in his yearly edict, now announced in advance which events would win the right to bring an action. Thus, litigants knew that if they described to the praetor how, for example, they had created a contract, they would win the right to bring an action on the contract. The praetor simplified the task by setting out his intentions in plain language, and by providing model clauses - the actions and defences - from which the agenda for trial would eventually emerge.The agenda was expressed as a ‘formula’, a brief statement of perhaps a few dozen words, addressed to the judge or judges, and written down. It was assembled from model clauses (for example: a charging clause, a defence clause, a condemnation clause). It expressed a conditional injunction, informing the judge under what circumstance he should give judgment for the plaintiff or defendant. As such it served simultaneously as a set of instructions, a judicial commission, and a summation of the pleadings. It was also a very concise expression of a legal remedy, and formulae therefore became the objects of juristic study.
A formula awarded only monetary damages. This was not because the law lacked the imagination to do otherwise; more exotic remedies were available from magistrates in other proceedings.
The preference for monetary damages might conceivably reflect something deep in Roman legal thinking: that injuries created debts, and that legal process should locate and assess those debts.47 On the other hand, remedies such as performance would have been difficult to enforce in any event.48 The judge’s commission ended when he gave judgment, and enforcement was left to a second, wholly separate, proceeding. Roman magistrates had, over time, become expert in bringing pressure to bear on reluctant debtors, and a plaintiff seeking enforcement in a second proceeding could hardly do better than have in hand a judgment debt. In short, litigation at this period was particularly suited to the debt model.Praetorian Lawmaking
The praetor now had considerable powers to fashion remedies, and he used these powers to create new rules of procedure. He was in a unique position both to see and to cure procedural abuses, and used a range of ‘devices’ to enforce appropriate behaviour: actions, defences, oaths, and obligations. For example, he discouraged vexatious litigation over simple debts by allowing the creditor to demand an extra penalty if a stubborn debtor insisted on going to trial but then lost.49 He developed the old system of oaths (iusiurandum in iure), by which two parties could put any fact or legal conclusion out of contention; a system of actions and defences prevented parties from reopening these matters.50 He developed a range of praetorian stipulations by which defendants could be compelled to return after an interruption in iure.51 He created a punitive action against a defendant who, when summoned, neither came nor gave a vindex.52
Course of Proceedings
Aside from the use of formulae and the new procedural rules, the course of proceedings remained much as it was under the legis actio procedure.
As before, a plaintiff could use summons (in ius vocatio) to begin proceedings; he could also now use editio, a term which described one of several methods for informing a defendant about the nature of the impending lawsuit.53 Summons remained a private affair (now supported by the punitive action just mentioned). Ideally the two litigants would advance quickly to the selection of a formula and judge, and from there to litis contestatio, but when a magistrate concluded his business for the day there might well be litigants remaining to be heard. To ensure the return of the several defendants, the magistrate would order the pending matters to resume on the day after the next; this allowed a plaintiff, with the magistrate’s backing, to demand a promise (vadimonium) from his opponent that he would return on that day.54 The litigants’ ultimate goal was to secure a formula from the magistrate, and in many cases this will have been an uncontroversial event: the plaintiff selected an action, the defendant selected any defences, and if the magistrate were satisfied, for example, that the action would not be barred by res judicata, he would proceed to assemble the formula.Litigants could now appear through representatives; these representatives were often simply friends of the litigant: making appearances for your friends was among the duties of friendship.55 It was not, however, possible for the acts or statements of the representative to bind the principal.56 The representative ‘stood in for’ rather than ‘stood for’ the principal. This was particularly true of the more formal class of representative, the cognitor, who for the sake of his principal might allow his own name to be inserted in the condemnation clause of the formula. The gravity of the cognitor’s undertaking makes sense when we consider that the case might have to be prosecuted at a remote tribunal, where the principal cannot easily make a personal appearance at litis contestatio.57 The other class of representative, the procurator, was more generally a mouthpiece and negotiator for his principal, and because his actions alone (unlike the cognitor’s) could not give any assurance to his principal’s opponent that the matter was being disposed of once and for all, he was obliged to furnish security.
Joinder of issue (litis contestatio) was, as before, the final event in iure, and as before it served to consume the parties’ claims while substituting new claims.
The formula was now the expression of those new claims. It is a significant step to exchange irrevocably one’s present position for a new position with an uncertain outcome, and thus a defendant’s participation at litis contestatio continued to be voluntary.58 This is perhaps why the judicial selection procedures were so solicitous of the defendant.59 The names of prospective judges were displayed on an annual list (album iudicum), divided into a number of rosters (decuriae). By a process of alternating rejection (reiectio), the plaintiff and defendant would in turn strike out entire decuriae, the defendant making the final strike. From the decuria remaining, they would strike out the names of their less desired candidates, the defendant again making the final strike. If the parties so agreed, they might forgo reiectio and choose a candidate outright, whether from the list or not. The plaintiff would have the unilateral choice of candidate only if the defendant refused to participate in reiectio. The consensual nature of these selection procedures has many explanations: that it encourages settlement, that it lends decency to the office of the judge, that it helps to assure impartiality. The more cynical view is that with less consensual selection procedures, the defendant would not participate in litis contestatio.Some formulae in civil trials appointed a small panel of judges (usually three or five) called recuperatores.60 Their names were drawn from the same album iudicum, but the litigants had less freedom to choose. Apool of potential judges was chosen from the album either by lot (if they so agreed) or by reiectio (and again, a non-participating party would have to accede to his opponent’s selection). The panel was then selected from the pool by lot. Unlisted persons could not be selected by agreement, as in ordinary cases. As Norr points out, the magistrate had comparatively greater power over selection, and this fact (among others Norr enumerates) perhaps made recuperatorial trials particularly suited to provincial practice.
Another inference is that selection was less consensual because a defendant, for some unknown reason, required less persuasion to participate in a recuperatorial trial. This last inference ought to give some clue to the grounds on which recuperatorial trials were granted, but of all questions surrounding recuperatores, this is the most difficult. The trials may have their origin in disputes between nations, and may have been granted in private matters where a strong public interest underlay the suit. Judgments appear to have been speedier, but whether this was true of all recuperatorial trials, or whether speed was attendant on the type of case being heard, is unclear. The lex Irnitana, while giving many new details on the selection of recuperatores, gives up relatively little on their jurisdiction; we now know that at Rome there was a monetary threshold for granting these trials.The nature of the trial itself was discussed above (285-6). It remains to add that trials were very much a public affair, held out-of-doors or in basilicas; private homes might themselves have contained the open space to accommodate trials and attendant crowds.61 It was not necessary for both parties to be present at trial, though a judge risked liability if he gave judgment in the absence of a party who had a permissible reason for being absent.62 The form in which judgment was given is unknown, but it seems unavoidable that it should be written down.63 A plaintiff who prevails would (it seems) need a written judgment if he intended to bring an enforcement action, and a defendant who prevails would be equally eager to defend against any effort to reopen the matter.
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