Surviving Evidence of Civil Procedure
Our understanding of Roman procedure relies on diverse sources, none of which is satisfactory on its own, and even taken together are only adequate.2 Physical evidence has been lost with time, but the problem is deeper.
The Romans did not reflect on their procedural law in the way they reflected on their private law.3 They did not linger over modes of pleading or representation. If a rule of procedure was unfair or inappropriate, it was mended without a view to the system of litigation as a whole. This prevented the Romans from appreciating that their procedural law had a tradition and an evolution, and that there was something to be learned from studying older law. The result is that the Romans treated old rules as if they were old newspapers. Justinian’s compilation and the Theodosian Code are sources for the procedure of late antiquity, but scarcely for the earlier forms. Justinian was particularly ruthless: rules that had fallen out of use were either discarded by the compilers or altered to be fit for re-promulgation. Occasionally the compilers performed these tasks clumsily and the shadow of some earlier law makes itself known through an artless interpolation. But what we miss in Justinian, in strong contrast to his treatment of private law, is even a cursory discussion of old and new law side by side.The discovery of Gaius’ Institutes in the early nineteenth century partly answered this need. Gaius wrote in the middle second century AD, and the surviving portions of book 4 give us an overview of the legis actio and formulary procedures.4 His treatment is brief but preserves many details. We are especially indebted to him for his discussion of the legis actio procedure, in which his interest was almost wholly historical, and which leaves only the barest traces in other sources.
Even the formulary procedure was falling out of use when he wrote, so that what he gives us of that procedure is something like a ‘potted account’ of the main features, rather than the description of an observer or the ‘how-to’ manual of a practioner.5Among literary authors Cicero (106-43 BC) is the principal source. In certain speeches procedure is front and centre (pro Caecina, pro Quinctio), while in others, details of procedure can be extrapolated from single passages or even passing remarks.6 Other important authors are Aulus Gellius (AD 125/8-ca. 180), who saw service as a judge and recorded thoughts and observations on the law, Horace (65-8 BC), Pliny the Younger (AD c. 61-c. 112), and Macrobius (fifth century AD). Plautus (third-second century BC)7 is rich but requires special care, because the procedure he describes is not always Roman, and because he often uses a rule of procedure for humorous effect, requiring the reader to divine the law and the joke at the same time.
Quintilian needs special mention as a source, because he was long underappreciated. Proceeding from the part truth, part conceit that Justinian’s Corpus iuris is ‘legislation’, the natural lawyers and their equally enthusiastic systematizers in the nineteenth century gave special place to the legal sources that were, after all, the raw material for their systems. Literary sources were sidelined, and Quintilian’s Institutio oratoria (and, for that matter, Cicero’s rhetorical works) were seen to belong to another discipline altogether. We now appreciate far better that Quintilian is a valuable source for procedure; much of what took place in litigation was unwritten in the law and shaped by the work of advocates.8
Statutes and records of private affairs survive in inscriptions: their value to the study of procedure is enormous.9 Even imperfectly preserved, they come to us free from abbreviation, interpolation, and so forth.
They convey rules and customs that were uninteresting to subsequent generations, and events that were ephemeral even to contemporaries. As such they can give us a direct view of daily life in the courts and, substance aside, their drafting gives us clues to juristic practice.Many new and valuable inscriptions were discovered only in the last century. We now possess, for example, several Roman formulae and can compare them to Gaius’ description.10 Among the most valuable of the new discoveries are the collections of first-century waxed tablets from Herculaneum and Puteoli, both of which include documents prepared for litigation. 11 Another valuable new source is the lex Irnitana, a copy of a model ‘town charter’ prepared for municipia in Spain. The lex Irnitana contains detailed rules on conducting lawsuits, and many of the rules directly reflect the practice in Rome. 12
2.