The Cognitio Procedure

(1) The Emergence of the Cognitio Procedure

As we have seen, under the legis actiones and formulary procedures, the mag­istrate’s role was simply to oversee the initial stage of the litigation.

The changed approach had a number of consequences. The most obvious of these was that litigation was no longer divided into two stages, one before the praetor and one before the judge. Instead, the whole process was carried on under the authority of the magistrate. The parties could be compelled to submit to this process, and there was no longer even the theoretical idea of litigation as a private arbitration. The magistrate could appoint another person to act as judge, but in that case he was a delegate of the magistrate rather than a private individual appointed with the parties’ agreement, and the appointment could only be objected to on specific legal grounds. On the other hand, the fact that the whole litigation was now carried on under the authority of the state opened the way, for the first time, to appeal against judges’ decisions.

(2) Initiating the Action

This change in approach, to a process entirely under the control of the state, affected the whole process of litigation, from the raising of the action onwards.^[157] The pursuer initiated proceedings by lodging a written statement of claim with the magistrate.

(3) The Trial

The trial would then proceed, with advocates representing the parties. The con­duct of the trial was under the control of the presiding magistrate, or of a deputy appointed by him to hear the dispute. There developed in this period fairly exten­sive rules governing how the trial should be conducted, covering for example such matters as adjournments and the treatment of evidence. One important development related to the form of the remedy that could be offered. Under the formulary and legis actio procedures, condemnation was always for the defender to pay some specified sum of money. This was the case even where the action was to enforce a right in property: the defender would be ordered to hand over the value of the property rather than the property itself.^[160] In the cognitio procedure, however, it became possible for the court to order specific implement of obliga­tions, where that was an obligation to hand over something specific.^[161]

(4) Execution of Judgments

If the pursuer was successful, the defender could be given time to comply with whatever the court had ordered.^[162] If the defender did so comply, all was well and good. If not, what happened next depended on the nature of the defender’s obligation. If the defender had been ordered to hand over some specific item of property, that property could be seized by court officers and delivered to the pursuer.^[163] In the case of money debts, court officers could seize the defender’s goods for sale by auction,⁸⁶ or as an alternative the pursuer could simply accept these goods in satisfaction of the debt.⁸⁷ Any surplus on the sale was returned to the defender.⁸⁸

(5) Appeals

For the first time, under the cognitio system, a system of appeals developed.

Chapter Summary

Through Roman history, there were three different forms of procedure for litigation, beginning with the legis actiones, which were highly formal and rigid. During the second half of the Republic, this form of procedure was replaced with the more flexible formulary procedure. These two systems had in common a distinctive characteristic. In both, litigation was divided into two stages. In the first stage, the parties came before the praetor to settle what the legal question was that was to be determined. It was only in the second stage, before the judge, that evidence would be heard and the case decided. During the Empire, the formulary procedure was superseded by a single-stage procedure, the cognitio.

Further Reading

G.4

J.4.6-17

D.2; 3; 5.1; 11.1-2; 22.3-6; 42.1-2; 43.1; 44; 46.7; 47.23; 49.1-13

C.2.1-17; 3.1-27; 4.19-21; 7.43-75

J A Crook, Legal Advocacy in the Roman World (Duckworth 1995)

A H J Greenidge, The Legal Procedure of Cicero’s Time (Clarendon Press 1901)

J Harries, Cicero and the Jurists: From Citizens·’ Law to the Lawful State (Duckworth 2006) M Kaser, ‘The Changing Face of RomanJurisdiction' (1967) 2 IrishJurist (NS) 129 J M Kelly, Roman Litigation (Oxford University Press 1966)

⁸⁶ D.42.1.31; D.42.1.15.2.

⁸⁷ D.42.1.15.3.

⁸⁸ D.42.1.31.

⁸⁹ See 53-4.

D Liebs, ‘The History of the Roman Condictio up to Justinian' in N MacCormick and P Birks eds, The Legal Mind: Essays for Tony Honoré (Oxford University Press 1986)

E Metzger ed, A Companion to Justinian’s Institutes (Duckworth 1998) chapter 6

E Metzger, Litigation in Roman Law (Oxford 2005)

E Metzger, ‘An Outline of Roman Civil Procedure' (2013) 9 Roman Legal Tradition 1

J Powell and J Paterson eds, Cicero the Advocate (Oxford University Press 2004) W Turpin, ‘Formula, cognitio, and Proceedings extra ordinem’ (1999) 46 Revue Internationale des Droits de l'Antiquite (3rd series) 499