THE LEGIS ACTIONES PROCEDURE

The legis actiones (actions in law) procedure was the original form of procedure in Roman law. It had three stages, namely an oral summons, a preliminary hearing before a magistrate and a full trial before a judge.

It is a notable feature of Roman litigation at this time that the state was seen as having little role in the process. As we shall see, litigation was seen essentially as a process of private arbitration.

The oral summons

When one wanted to initiate litigation, one had first to get one’s opponent into court. To do this, one began with an oral summons (in ius vocatio). The one receiving the summons could then go to court, or alternatively could find someone to act as a vindex, guaranteeing that party’s appearance at some later date.

Consistent with the view that litigation was a private affair, it was up to the person raising the action to get his opponent to the court. In modern law, there might be various consequences for failure to respond to a summons to court, the most common being a decree granted in favour of the pursuer by default. In the legis actiones procedure, however, there were no such consequences. If the party against whom the action was raised refused to cooperate, the action could not proceed in his absence. His attendance could, however, be compelled by physical force.

The preliminary hearing

The next stage was a hearing before a magistrate, who would be the urban praetor after the creation of that office in 367 bc. It was from this stage that the legis actiones procedure took its name, for it was here that the relevant action had to be selected. To initiate litigation, there were three actions available. The precise procedure followed would depend on which action was selected, but in each case there would be some formal process to which the parties had to adhere strictly. Failure to comply with the appropriate procedure (for example by selecting the wrong form of action) meant that the action was lost there and then.

The standard action was the sacramentum, used when no other was pre­scribed by statute. This action involved the parties making formal oaths, and each depositing a sum of money as a wager on the outcome of the case. The wager was 50 asses (the as being a Roman coin), or 500 asses if the subject matter of the litigation was worth more than 1,000 asses. The winner had his money returned, but the loser forfeited his to the state. What happened next depended on whether the action was in rem or in personam (i.e. whether it concerned a real right or a personal right — see Chapter 4). Where the action was in rem, the property concerned was brought to court. In the case of land, a symbol in the form of earth would be brought. The parties then each made formal claims to the property and then touched it with a ceremonial rod to symbolise their claim. A decision would also have to be taken on the matter of who was to have possession of the property in the interim. As we saw in Chapter 4, this would normally be the party presently in possession. In the case of an action in personam, however, there was no property being claimed, and so this part could be omitted. In either case, the completion of the hearing before the praetor was followed by a thirty-day period before the appointment of a judge to hear the merits of the case. The purpose of the thirty-day delay was to give the parties an opportunity to settle the matter out of court, which no doubt was a common outcome then as today.

Another legis actio, the postulatio, was introduced as an alternative to the sacramentum for certain types of action in personam. It was less formal, involving no wagers or formal oaths. The judge could be appointed imme­diately, so there was no need to wait thirty days before the next stage in the litigation could begin.

The third legis actio, the condictio, was also less formal. It was introduced in the third century bc for claims for the recovery of a specific thing or sum of money.

With all three of these legis actiones, the completion of the stage before the praetor, when the form of the action had been decided, was known as litis contestatio. At this point, the claim of the party raising the action was “consumed”, meaning that no further action could be raised on the same facts.

The hearing before the judge

In the preliminary hearing, the form of the action was settled. The praetor would not, however, involve himself with the merits of the case. The next stage was a full hearing, where the case would be decided on its merits. This hearing normally took place before a single judge (judex). However, in some types of case the law required that the matter be considered by a panel.

Whereas the hearing before the praetor was marked by considerable formality, this stage of litigation went to the opposite extreme. There were very few rules governing the conduct of this hearing and, in accordance with the view that litigation was a private matter, there was little effort made to regulate proceedings.

The conduct of the hearing was a matter for the judge’s discretion. However, the normal procedure was for the parties’ advocates each to make speeches in support of his client’s case. Oral testimony would also be taken from witnesses.

At the end of this, the judge would issue his decision, normally having taken advice from jurists if a difficult legal point had been raised. It was noted in Chapter 2 that the advocates acting in court cases were not normally experts in the law. The jurists mostly restricted themselves to providing advice on cases rather than acting themselves. The same was the case with judges. The judge would be a man drawn from the upper levels of society, acting either out of social duty or for reasons of patronage. These factors naturally affected the way in which the hearing was conducted. Advocates freely attacked the character of the opposing party. They brought in matters with no legal relevance but which were likely to bring success by lowering the opposing party in the eyes of the judge. Striking examples of this can be seen in the career of the most famous of all advocates, the late-Republican orator and politician Cicero. As an example, in 70 bc Cicero acted in a prosecution of Gaius Verres for alleged corruption in his governorship of Sicily. However, his speeches contained matter of little or no direct relevance to the matter at hand, such as allegations of promiscuity, effeminacy and inadequacy as a military commander, apparently on the basis that bad character was suggestive of guilt. Nor did he, or other advocates, hesitate to use rhetorical flourishes to distract attention from weak points in his case.

Execution

A decision by the court in one’s favour will be of little use without some mechanism for its enforcement.

If the dispute concerned property, one of the parties would, as we have seen, have been awarded interim possession. If that party won the case, there would be no difficulty: he could simply keep the property. In other cases, though, it was essential to be able to compel performance. There were two further legis actiones for this purpose.

For the first of these, manus iniectio (putting in power), the debtor had thirty days from the date of the judgement to comply with it. Failing com­pliance within that time, the creditor was entitled to seize the debtor and take him before the magistrate. The debtor was released only if he complied with the judgement, or managed to get a vindex to take his place to dispute the validity of the judgement. If neither of these things happened, the creditor could imprison the debtor for sixty days, during which he would be displayed in the marketplace for three consecutive days in the hope that someone would pay on his behalf. If no payment was made, the debtor could be put to death or sold into slavery abroad. This was, however, reduced by the lex Poetelia of326 bc to a requirement that the debtor be enslaved by the creditor until he had worked off the debt.

The law also allowed in certain cases an alternative legis actio, pignoris capio (taking of a pledge). Instead of seizure of the debtor’s person, this meant seizure of the debtor’s property. The creditor was allowed to retain the property until the debtor complied with the judgement.