Principal Models and Special Proceedings

From the monarchy to the dominate, civil procedure evolved through three periods:

Legis actiones.

Ordo iudiciorum, or formulary procedure. A procedure guided by a brief written statement, assembled from model clauses ultimately founded on the law. The statement consti­tuted the question to be adjudicated. The procedure’s origins may lie in the peregrine praetorship (242 BC), and its use declined through the principate.

Cognitio ²⁵ A procedure marked by an official’s undertaking to investigate and adjudicate a claim according to the law. Its origins are in the power of the emperor, and it became the usual form of procedure from some undetermined time in the principate.

This account is accurate, though incomplete. The three periods describe the different frameworks within which a civil lawsuit passed from summons to execution. Within each of these frameworks, however, narrow and limited proceedings could take place. Such proceedings had a short duration and followed a unique procedure; each was used to resolve one or more type of controversy. For example, a specific proceeding might be necessary to determine the ownership of a slave or its servile status, a litigant’s disobedience, or the genuineness of a debt. Such proceedings met certain needs that the main forms of action could not adequately meet. The most important of these was the need to enforce the magistrate’s authority. For whatever reason, the power to enforce obedience to magistral orders came slowly to civil litigation, reaching a measure of efficiency only with the contempt procedure of the later principate and dominate.

An important example is missio in possessionem: a magistrate with imperium gives the possession of another’s goods and allows their sale.² Among other uses, it was a procedural instrument used to enforce judgment debts and also, significantly, used against those who resisted the magistrate’s authority by concealing themselves or otherwise leaving themselves unde­fended. A current of opinion holds that missio was available even against a person who resisted private summons (in ius vocatio, discussed below, 282), but there are reasons to doubt that this was the case.²⁷

A second example is the praetorian stipulation.²⁸ This belonged to the formulary procedure, though it followed a sequence of events at least partly familiar to the legis actio procedure. The praetor, instead of ordering a party to perform at the risk of penalty, would order a party to make a conditional promise to his opponent. The transaction was therefore a compulsory stipulation, creating a conditional debt. Diverse matters were handled in this way, including operis novi nuntiatio (a stipulation for assurance from a neighbour who is contemplating hazardous work), cautio damni infecti (a stipulation against impending damage), and vadimonium (a stipulation to return after proceedings in iure have been interrupted). There are interesting examples of the latter in the finds from Herculaneum and Puteoli. Local magistrates sometimes lacked the jurisdiction to hear a case locally, and were charged with deciding whether the case ought to be heard in Rome or by a provincial governor. But this required a special evidentiary proceeding to determine whether the subject matter of the case, or the amount in con­troversy, did indeed make a local trial impossible. If the case could not be heard locally, the proceeding would conclude with a praetorian stipulation.

Interdict

The most important of these special proceedings, however, was the interdictal proceeding.^{face=Arial>30} Interdicts are attested from the second century BC and were perhaps the earliest form of praetorian intervention. An interdict was a command that issued from a magistrate with imperium and was aimed either at bringing order to a disorderly (and perhaps unpeaceful) state of affairs, or at forestalling some undesirable event. The magistrate, on application, ordered a person to do something or to refrain from doing something. An inquiry of the facts was not needed for an order to issue, and there were even instances where it issued ex parte. This seems remarkable until we appreciate that the order was not directed against a person per se, but against a person who was, in fact, as he was alleged to be. What this means in practice is that a magistrate, considering an interdict, need not decide whether the plaintiff had a valid claim in law, but only whether the plaintiff was in a deserving position relative to the alleged position of the defendant. If, for example, a person had allowed another the use of his property for some indefinite period (a so-called precarium), and the grantee refused to return it on demand, it was enough for the magistrate to appreciate that the greater possessory right would lie with the grantor if the grantor’s story were true. The magistrate would then order the grantee to restore, not ‘the property’, but ‘that which he holds precario’.³¹ In inserting the proviso, the magistrate is hedging: the grantor may in fact have no such right. A second example: if a person believed that another had done something injurious on his land, such as erecting a structure, and had done so ‘by force or stealth’ (vi aut clam), the magistrate would not simply order restoration, as he did not have the facts before him; he would instead order the restoration of ‘that which was performed vi aut clam.32 Again, the magistrate is hedging.

Speed was the principal advantage in the interdictal procedure: small and uncontested affairs could be disposed of without trial; possession could be quickly secured when ownership was disputed; a ‘new posses­sion’ could be obtained, for the sake of equity, when time was of the essence.³³ But the advantage of speed was at the defendant’s expense.

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