Legis Actio

The legis actio procedure was a strict and formal method for identifying claims that deserved further prosecution.³⁴ By later Roman standards the claims were highly ‘unparticularized’.

Litigation by legis actiones had several obvious shortcomings. The off-the-peg claims required the most careful pleading (Gaius 4.11, 30) and it was not possible to include affirmative defences. A representative could not appear in a litigant’s place. Non-citizens did not participate: the entire process was, at bottom, a means to bring the authority of the civil law to Roman citizens. This last shortcoming is a serious one, and it is widely accepted that alternative methods of expressing claims must have existed when the peregrine praetorship was created in 242 BC.

Yet litigation by legis actiones continued alongside the use of formulae, and in the second century BC a lex Aebutia³⁵ appears to have adjusted the use of the two forms of procedure in some way. The tradi­tional view, set out by Moriz Wlassak, is that before the lex Aebutia, the only way to enforce a claim under the civil law was via the legis actiones. The formulary procedure, even if used in the court of the urban praetor, would adjudicate only praetorian, not civil, law. On this explanation the lex Aebutia first permitted formulae for civil law actions between Roman citizens. There are, however, other views.³⁶ The legis actiones were dealt a more serious blowby a lex Iulia de iudiciis privatis (17 BC),³⁷face=Arial> which seems to have abolished their use in most cases. They remained as an alternative form of proceeding in cases of damnum infectum (to forestall damage to one’s property by a neighbouring property), and in cases before the centumviral court (see below, 283).

Course of Proceedings

Though the forms of action eventually gave way to formulae, the under­lying procedures proved to be more lasting.³⁸ This is remarkable, given that these procedures are founded on a few terse provisions of the Twelve Tables.³⁹ A person who wished to bring a lawsuit was himself responsible for bringing the defendant physically to the magistrate. This summons (in ius vocatio) was purely private and, moreover, inadequately supported by state enforcement.⁴⁰ Until the later development of praetorian meas­ures against reluctant litigants, the law simply gave ‘cover’ to a plaintiff who used force against a refusing defendant.

Proceedings in iure were oral, and the main tasks were to obtain a claim in one of the permissible forms, and to receive a judge or judges. It might not be possible to achieve this on a single occasion and, in any event, certain legis actiones interposed a period of delay before the judge was selected. This created the problem of how to induce a defendant to return. The earlier law relied on sureties (vades).⁴² How the defendant gathered these vades on the spot, and how he satisfied the plaintiff that the vades were acceptably solvent, were two recurring problems which perhaps led to the later practice of using personal bonds (vadimonia).

The final event in iure was litis contestatio (‘joinder of issue’).⁴³ At this juncture the parties made declarations (apparently before witnesses), the effect of which was to erase any claims that arose from the matter being litigated, and replace them with the triable issue or issues described in the legis actio. It was not possible to relitigate those claims after litis contestatio, even if the matter did not reach judgment.

Index, Arbiter, Centumviri

Most lawsuits requiring a trial would pass to a iudex or arbiter. By the end of the republic the distinction between the two was all but lost, but originally, it appears, an arbiter was selected when a matter was essentially uncontested but something remained for decision, possibly requiring a wide power of discretion: for example, the division of an inheritance or the assessment of a sum owing.⁴⁴ The selection of a lay iudex, with full power to resolve and decide contested matters, was the more usual practice. A far smaller number of suits under the legis actiones passed to the centumviral court, comprising 105 members (often but not always sitting in panels) and led by magistrates, but drawn from elected representatives from each Roman tribus. This court, possibly of great antiquity, had a limited subject-matter jurisdiction whose boundaries are not wholly clear from the sources. Certain matters of inheritance certainly belonged to it, and perhaps also questions of status.⁴⁵

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