THE COGNITIO PROCEDURE
In the Republic, during which these procedures developed, power was dispersed widely. However, we saw in Chapters 1 and 2 that, during the Empire, power increasingly became concentrated in the hands of the emperor and of officials answerable to him.
It was inconsistent with this for judges to be exercising authority outside the control of the emperor.The formulary system did continue into the Empire. However, inÂcreasingly the state took a direct interest in the administration ofjustice. It became common from the reign of Augustus onwards for magistrates to be given the task of dealing with whole cases themselves, including the hearing of evidence and the issuing of judgement. For example, Augustus gave to the consuls the role of enforcing fideicommissa, an institution analogous to modern trusts. Later emperors followed suit in other areas. This procedure was known as a cognitio (investigation), because the magistrate was to inÂvestigate the facts of the case as well as settling what the legal issues were. Because this was outside the normal procedure, such an investigation was called a cognitio extraordinaria, a name it kept even though it in fact became the normal procedure well before the abolition of the formulary procedure in ad 342.
The summons
In the cognitio procedure, the summons was now a written statement of claim, delivered by a court official. Getting the party against whom the action had been raised to come to court was now a matter for public officials rather than the party raising the action.
The hearing
Instead of having two hearings, one before a magistrate and one before a judge, there was now only a single hearing. The hearing was wholly under the control of the magistrate, an inquisitorial approach being adopted.
The increased formalisation of the process allowed for the development of appeals through a hierarchy of courts.
Sometimes the emperor would hear appeals and, even when this was not the case, magistrates would often request guidance on the law to apply in a particular case. As we saw in Chapter 2, the emperors’ responses to such requests were an important source of law in the Empire.Execution
Enforcement ofjudgements was also now in the hands of state officials. This normally involved the seizure of the debtor’s property for sale at auction.
Essential Facts
• In early law, litigation was seen as essentially a private arbitration process. Litigation involved three stages, only the second of which involved a state official, the praetor. At this stage, the legal issues to be decided were settled using one of three very formal types of claim, known as legis actiones. The first stage was an oral summons, and the third stage was a hearing before a judge.
• Enforcement ofjudgements under the legis actiones procedure could involve the death or enslavement of the debtor, reduced in the fourth century bc to enslavement until the debt had been worked off.
• Later in the Republic, a new procedure was adopted, the formulary procedure. The main difference was at the second stage, the hearing before the praetor. Instead of using the formalistic legis actiones, greater flexibility was allowed by the identification of the issues in standardised written pleadings known as formulas.
• Enforcement ofjudgements in the formulary system normally meant the seizure of the debtor’s property for auction.
• In the Empire, the formulary system was increasingly superseded by the cognitio procedure. In the cognitio procedure, the whole process was under the control of a magistrate, with only a single hearing, in contrast to the earlier view of litigation as a form of private arbitration.
Essential Cases
Gibbs v Ruxton 2000 JC 258; 2000 SLT 310: an accused objected to the validity of criminal proceedings on the basis that the temporary sheriff had not been validly appointed. An argument (described by the Lord Justice-General as a “welcome balm” following hours of consideration of a modern statute) was put forward based on a text by the jurist Ulpian (D.1.14.3) on the validity of the acts of a runaway slave appointed as praetor. The argument was that, even if invalidly appointed, the acts of the temporary sheriff should be treated as valid as being acts of a de facto judge.
Shields v Donnelly 2000 JC 46: an accused objected to criminal proceedings being moved outside the jurisdiction in which the offence was allegedly committed, arguing that this was incompeÂtent. This argument was accepted. Two Roman texts (Modestinus, D.48.14.1 pr, and Paul, D.2.1.20), cited by Erskine, were discussed in relation to this argument.
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