THE PRAETOR

Underlang=EN-US> the Republic and early Empire most civil actions were covered by the formulary procedure, which was regulated by the ius ordinarium, based on the praetor’s edict.¹ A plaintiff approached a praetor at Rome (or a governor in the provinces) with a request for a suit.

It is clear that the key figure in the launching of judicial pro­ceedings was the praetor. Kelly has recently reopened the subject of the standards of the praetorship? His thesis is that a decline in standards set in about the beginning of the last century of the Republic: from that time praetors showed greater susceptibility to political pressure, and to improper influence generally. The subject of this section is different. I shall be concerned with the wider question of praetorian discretion, and its use, especially in the initial stages of a private suit, in the interests of members of the higher orders.

The granting of an action

A civil actio began with in ius vocatio, the summoning of one man by another before the praetor to answer a charge. The legal ^{[169] [170]} texts reveal that vocatio was not permitted against parents, patrons, magistrates, priests, and certain other categories, without the con­sent of the praetor (sine meo permissu).¹ Yet one wonders whether Modestinus had in mind these or only these categories of persons when he remarked:

generaliter eas personas, quibus reverentia praestanda est, sine iussu praetoris in ius vocare non possumus.[171]

It was Callistratus, an older contemporary of Modestinus, who said that reverentia was for honor, such honor as decurions, for example, possessed.³ This prompts the question: was there any guarantee that the praetor would view sympathetically an attempt by an ordinary citizen to impeach a man of high rank ? Here it is pertinent to refer to the jurist Labeo, whose comments on the action for fraud were cited by Modestinus’ teacher Ulpian:

et quibusdam personis non dabitur (actio), ut puta liberis vel liber­tis adversus parentes patronosve, cum sit famosa, sed nec humili ad­versus eum qui dignitate excellet debet dari: puta plebeio adversus consularem receptae auctoritatis, vel luxurioso atque prodigo aut alias vili adversus hominem vitae emendatioris, et ita Labeo.⁴

Μ.

Nor can it be shown that the actual illustrations come more appropriately from Ulpian. Labeo, in discussing iniuria, uses the examples of father and patron—and an illustration from politics.⁶ As for the two examples that illustrate the antithesis between the man of dignitas and the humilis, neither is precisely paralleled in other texts.⁷ But there is no special reason for denying them to Labeo.

However, the dignitaslhumilis clause is a stumbling-block, for ideological rather than linguistic reasons. Labeo seems to be credited with a conception of humilitas and dignitas which, for historical reasons, an Augustan lawyer could not have had. But this is not the inevitable consequence of ascribing the clause to Labeo.

^{face="Times New Roman">1}               Cic. de imp. Pomp. 41. For what it is worth, Labeo used the word dignitas in the course of his discussion of iniuria—if indeed the sentence in which it occurs is his and not Ulpian’s. See Dig. 47. 10. 1. 2.

²e.g. in aliqua dignitate positus, qui altioris dignitatis sunt, etc. See pp. 224-5.

³               Humilis in a moral sense is found in late texts, normally in company with another adjective with a moral sense, e.g. CJ 5. 27. 1 praef. (vel humili vel abiecta), and Cardascia, Studi in memoria di Emilio Albertario, ii. 663 ff. In Dig. 2. 13. 6. 1 (Ulp.) the clause containing humilis et deploratus is rightly rejected by Beseler as a late addition. The moral sense is not completely out of place in our text, but a word with a broader social reference plus moral over­tones is surely more apt in a generalization which covers two examples, only one of which is moral. Cardascia, ‘L’Apparition’, 467, thought et ita Labeo covered only the moral example.

⁴               Gaius, Inst. 3. 225; Dig. 48. 19. 28. 11 (Call.). Cf. Dig. 48. 5. 39. 8 {humilis loci)', PS 5. 4. 10 {humili loco natus).

³               See Lewis and Short, humilis, II A. ⁶ Dig. 47.10.7.8; cf. ibid. 7.2.

⁷ The Vocabularium does not contain entries for prodigus or luxuriosus.

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clause, did not have the same meaning for the two lawyers. It should be remembered that in Labeo’s day Roman citizenship was not the common property of the world, and thus the sphere of praetorian law was somewhat circumscribed; while Roman private law had more that a domestic significance for Ulpian, the lawyer of an empire. What did Labeo understand by ‘qui digni- tate excellet’? Labeo, a known political conservative of Roman or Italian stock, would probably have thought only of the aris­tocracy at Rome. For Ulpian, on the other hand, the Roman aristocracy was only part of a wider group, all members of which possessed dignitas.

To sum up, there are three possibilities: the ideas and expressions are all Labeo’s; the whole is Ulpian’s paraphrase of an original statement of Labeo; Ulpian transmitted Labeo’s thoughts and words, but made additions. No additions have been located. Even allowing for some rewriting by Ulpian—and this can be suspected rather than detected—it is reasonable to conclude that Labeo introduced a notion of status into his interpretation of the prae­torian edict.

A second conclusion follows almost automatically: as early as the Augustan period actions for fraud against certain types of people (fathers, patrons, magistrates, men of standing) were system­atically refused when they were brought by certain other types (children, freedmen, private citizens, men of low rank, re­spectively). Those protected performed certain social or political functions—or were simply members of the higher orders. This inference is justified by what is known about the purpose of the commentaries on the edicts, and about the status of those com­mentaries.

¹               lang=EN-US>On the ius honorarium see A. Berger, Encycl. Diet, of Rom. Law, 529. Emperors sometimes incorporated the sententiae of jurists in constitutions. See

fore it can be assumed that Labeo’s advice on the administration of the actio de dolo was heeded by praetors of later generations, if not his own. Yet the advice is not likely to have been startlingly original. Jurists’ comments were commonly based upon tenden­cies or norms already present in the legal system. That is to say, praetors already discriminated between parties on the basis of status in a quite open way.

No texts comparable to the passage of Labeo/Ulpian survive relating to other actions. Yet it is highly improbable that only the actio de dolo was regulated in this way. Labeo’s words leave no doubt that the granting of the actio was restricted, not because of the nature of the offence of dolus rnalus, but because of the con­sequences of conviction for dolus malus, which included infamia.

Infamia has been referred to as the ‘derogation of dignitas'.¹ The higher orders had good reason to fear infamia, having digni- tas to lose. Infamia (or the infamia which followed conviction in an actio famosa such as the actio de dolo) involved, in addition to various procedural disabilities, disqualification from office­holding.

In addition to the actio de dolo, the actions for iniuriae, furtum, and vi bona rapta (and certain non-delictual fiduciary actions) were famosae. These actions were not given against parents or patrons, apparently on the grounds that they were an insult to their good name (ppinionem apud bonos mores suggillet), and a denial of the respect (reverentia) to which they were entitled.² Praetors Dig. 42. 4. 7. 16. The works of jurists were not unknown in the provinces. Ulpian’s de officio (sc. proconsulis) is referred to in a Greek inscription from Ephesos: jQAl 43 (i960), Beiblatt 82-4, no. 8,11. 8-9.

* A. H. J. Greenidge, Infamia (1894), 4. On infamia see also M. Kaser, ZSS 73 (1956), 220-78; briefly, W. W. Buckland, op. cit. 91 ff.; A. Watson, Tijdschrift voor Rechtsgesckiedenis 31(1963), 76 ff. Infamia is a useful but not a technical term.

¹The principal texts relating to the immunity of parents and patrons are Dig. 37. 15. 2 praef.; ibid. 5 praef.-i; ibid. 7. 2; 44. 4. 4. 16. For the actiones famosae see Dig. 3. 2. 1; Gai. Inst. 4. 182; tab. Herac. io8ff.; Lenel, Das Edictum Perpetuum³ (1927), 77 ff. Watson (art. cit. in n. 1) argues that infamia as a result of condemnation in an actio famosa (mediate inf anna) had ceased to exist in classical law. For the defendant in such an action avoided infamia by appointing a representative, cognitor (or procurator), against whom the condemna- tio then lay. (The cognitor also escaped infamia if he lost the case, because he was acting alieno nomine.) This thesis seems to require qualification. Mediate could have blocked all such actions against men of high social and political position for the same reasons. That there is no direct statement to this effect in the Digest would suggest, at the most, that discrimination of this kind was not officially acknowledged (a questionable assumption, considering the haphazard way the Digest was compiled); it does not show it was not practised.

¹               On cessio bonorum, E. Woess, ZSS43 (1922), 485-529; M. W. Frederiksen, JRS 56 (1966), 128 if. with bibl. Those lacking substantial property-holdings would not have been able to escape venditio. Cessio could be accomplished extra-judicially merely per nuntium vel per epistulam (Dig. 42. 3. 9; cf. CJ 7.71. 6). This suggests that the ceders of property tended to be men with the high-status virtue of fides.

of status on the part of the owner. Distractio bonorum was available to clarae personae, especially members of the senatorial order. The pertinent text runs:

curator ex senatus consulto constituitur, cum clara persona, veluti senatoris vel uxoris eius, in ea causa sit, ut eius bona venire debeant: nam ut honestius ex bonis eius quantum potest creditoribus solveretur, curator constituitur distrahendorum bonorum gratia vel a praetore vel in provinciis a praeside.¹

Discriminatory rules or discriminatory practices, then, pro­tected members of the higher orders from being taken to law in some circumstances. From the time of Julius Caesar bankruptcy suits could be avoided. This was accomplished by direct legis­lation, an exceptional remedy. In normal circumstances the praetor was approached by the plaintiff and had the responsibility of deciding whether the plaintiff had a case. If the plaintiff failed to satisfy the praetor, no judge was appointed. The evidence shows that a humble prosecutor might be rejected merely because of the quality of his opponent. This was standard practice in cases of alleged fraud. The same rule may have applied whenever the defendant was in danger of loss of status or reputation.

The acceptance of an action

An action, once granted, could not proceed if the defendant did not obey a summons, in ius vocatio, or send a representative, vindex, to guarantee his appearance at a later date. Only the rich were admissible as vindices, presumably because a vindex was liable to the plaintiff in the event of the subsequent non-appearance of the defendant.² Thus, as a general rule, only defendants who were themselves rich would have been able to furnish them. For the average defendant of low status and small means there was

¹               'An agent is appointed by S,C. when a person of note, for example, a senator or his wife, is in the situation of having to sell his property. He is appointed by a praetor, or in the provinces by a governor, to divide up the property, so that as much of it as possible can be made over to the creditors in a relatively honourable fashion.’ Dig, 27, 10. 5 (Gaius). Distractio was known to the Trajanic jurist Neratius (ibid. 9).

^{size=2 color=black face="Times New Roman">2}               Gaius, Inst, 4, 46: 'qui in ius vocatus neque venerit neque vindicem dederit’. For the vindex of Gaius the Digest substitutes fideiussor iudicio sistendi causa datus. For the wealth of a vindex see Dig, 2, 6. 1; 2, 8. 5; ibid. 10; lex Urs. 61. probably no alternative to a personal appearance before the praetor in answer to a summons.¹

By the principle of self-help, laid down in the Twelve Tables, and apparently not revoked in the Republican or classical period of Roman law, it was for the plaintiff, by the use of persuasion or force, to ensure that the defendant appeared before the praetor.^{[172] [173]} Here he might strike trouble, if his opponent was stronger than he and disposed to ignore the summons.

The case of L. Calpurnius Piso (cos. suff. i B.c.) and Urgulania in the reign of Tiberius shows that the problem was not merely a theoretical one. Piso, of noble birth, proud and defiant, had once threatened to abandon politics because of the prevalence of judicial corruption and other abuses. Tiberius had persuaded him with difficulty to change his mind. Tacitus continues: ‘The same Piso before long gave just as vivid proof of his free and passionate spirit by summoning to court Urgulania, whose friendship with Augusta had lifted her beyond the reach of the law. Urgulania did not obey the summons, but, scorning Piso, rode in a carriage to the Emperor’s house and took sanctuary there.’^[174] More will be said later about the manner in which this dispute was resolved. It hardly needs saying that Piso did not pursue his opponent and seek to drag her before the praetor by force.

One might well wonder what attitude was taken up by the praetor towards a refractory defendant. In ius vocatio was in theory supported by certain legal sanctions.^[175] But, in the view of Kelly, these were paper remedies. In ius vocatio might be reinforced by the ordering of missio in possessionem. But a plaintiff who could not carry out vocatio (the argument runs) was not likely to be able to enforce missio. Both would founder because of the lack of ‘equal or greater power’ (par maiorve potestas). Missio in turn might be backed up by an interdict or an actio in factum. But these in­volved another in ius vocatio, which would presumably be just as ineffective as the first.

All this leads Kelly to the following conclusion: the institution of self-help was inequitable and one-sided, and the praetor could not but have been aware of this. If, as it appears, he consistently failed to act with force on the side of the weaker plaintiff, this could only mean that, as a member of his order, he accepted the advantages which the system gave to the strong and socially elevated.

However, it should be pointed out that a plaintiff.of low rank was not completely on his own.¹ In the first place, if he possessed a patron with greater influence and physical resources than himself, pressure could be brought to bear on an opponent who refused to go to court. The relationship between patron and client was a reciprocal one. The patron was expected to give both financial and legal aid when it was needed. A second ally of the plaintiff was the Roman social conscience. Romans in general considered it important to maintain their good name in the community, and their standing with the magistrates. Probably few men were prepared to flout convention and the law by refusing to obey a summons. There were exceptions: the Julian law on violence specifically provided for the indictment of those who resisted a summons with the aid of armed men?

What chance had the plaintiff, when social pressures failed to bring his opponent to heel ? The efficacy of the sanctions which were at the praetor’s disposal should not be underrated. For example, the responsibility for carrying out missio in possessionem lay with the plaintiff, but he could call upon auctioneers, coactores argentarii, for aid. These were often significant and powerful men, who had a financial interest in the sale of the property which would follow seizure.³ Again, the penalty of infamia was not to

¹               For some of the points which follow cf. M. W. Frederiksen, JRS 57 (1967), 254/1.; J. Crook, R. Stone, CR 17 (1967), 83 (reviews of Kelly, op. cit.).

³               Cic. pro Caec. 10 and 27. See Mommsen, Hermes 12 (1877), 94 ff., on the activities of argentarii at Pompeii; in general, RE 2, 708 if. (1896). Later, be despised, except perhaps by those who had little or nothing to lose.¹ There may have been a clause in the praetor’s edict stating that a defendant who resisted summons could be declared inf amis. Such a rule (as Kelly recognized) might easily have dropped out of the edict, together with other rules relating to infamia. Censorial infamia seems to have applied for this and similar offences, and praetorian rules on infamia were probably based on censorial rules.² Even if there was never any such clause in the edict, the resisting defendant might suffer restriction or suspension of his private and public rights. It was not beyond the praetor to refuse him access to the courts in the future, when he himself might wish to litigate. Thus a man who in one instance had considered him­self above the laws {supra leges) might be denied legal remedies indefinitely. Additional acts of defiance would worsen his pros­pects. Successful resistance to the edict ordering missio, for ex­ample, would expose him to the suspension of further rights. It is known that those whose property had been (or would be) seized and put up for auction were ineligible for membership of a municipal senate. The candidacy of someone who had held on to his property by force in defiance of a iniwio-order was not likely to be considered seriously by the electoral officers; while if such a man was already a councillor, his expulsion from the council was certain. The situation in Rome (with the substitution of Roman Senate for municipal senate and Roman senators for municipal senators) would presumably have been identical.³

Thus a recalcitrant defendant would forfeit his standing with the magistrates, and risk informal, if not formal, curtailment of his

intervention extra ordinem was regular to support a missio, See Dig, 43. 4. 3 praef.-i (Ulpian).

¹               Ulpian, Dig, 47. 10. 35, recognizes the possibility that some might ‘despise an injury-suit, because of their (sc. moral) infamia and poverty’ (‘si quis iniuriam atrocem fecerit, qui contemnere iniuriarum iudicium possit ob in- famiam suam et egestatem...’). The attitude of a man of means whose existi- matio was still intact would have been otherwise.

²               Kelly, op. cit. 24-7. On the relation of censorial to praetorian infamia see Greenidge, op. cit. ii4ff.

³               tab, Herac, 115 ff. Greenidge (ibid. 116) calls this section of the ‘Lex lulia Municipals ’ (= tab, Herac.) ‘a codification of the most permanent portions of the censorial infamia*, and notes that the grounds for disqualification in the Edict are closely comparable.

New Roman">prerogatives. But there was a further consequence: he would suffer loss of reputation in the community at large. His position may be compared with that of the unjust father or patron in Julian, who was immune from the penalty of infamy (arising out of conviction for dolus or iniuriae), but who could not escape a nota infamiae arising out of what he had done (re ipsa) and public disapproval of it (opinione hominum).¹

Lest the importance of public opinion in Rome and the cities of the Empire be underrated, some illustrations may be given of ways in which it could be actively harnessed in support of victims of injustice. A man threatened by injury or theft might seek help from the citizenry with the cry fidem imploro Quirites (Quiritium), or variants.² Those who heard the cry (quiritatio or comploratio) bore a moral obligation to prevent the wrong being done, or to pursue and apprehend the wrongdoer.³ Quiritatio was most suited to the small close-knit community, and was no answer to the more sophisticated and organized crimes of a large metropolis. But where crimes of violence or theft of movables were in ques­tion, it continued to be useful in late-Republican Rome. In any case, there were other ways of arousing popular support where an offence had not been witnessed, or where the offender was

¹               Dig. 37. 15. 2 praef. Cicero, de leg. 1. 19. 50-1, recognizes infamia of two kinds, that which results from condemnation from an offence, and ipsa infamia which springs from the committing of the offence. Cf. ad Att. i. 16. 2.

²               See Livy, 2. 23. 8; 3. 41. 4; 44. 7; 45. 9; Varro 6. 68; Sen. Ep. 15. 7. Those addressed include Quirites (texts above; Petr. 21; Apuh Met. 2. 27); cives (Plaut. Amph. 376; Men. 996ff.); populates (Plaut. Rud. 615; Ter. Ad. 155); populus (Apul. Met. 4. 27; Cic. Sext. Rose. Am. 29); plebs (Livy 2. 55. 7); neighbours (Plaut. Rud. 616; Cic. Tull. 50; Apul. Met. *j. 7); governor (ibid. 10. 28); consul and Senate (Cic. de dom. 12); Emperor (Apul. Met. 3. 29; 7. 7; 9. 42); gods (ibid. 8. 18; Livy 3. 45. 9; Cic. Sex. Rose. Am. 29); judges (ibid.). Words for the cry include implorare (above); plorare (leges regiae_> Servius Tullius 6; Plaut. Aul. 317-18); comploratio (Livy 3. 47. 6; 40. 8 ff.); endoplorato (Cic. Tull. 50 on XII T.\ Fest. p. 77); quiritare or quiritatio (Livy 33. 28. 2-3; 40. 9. 7; Vai. Max. 9. 2. 1; Varro 6.68; Pliny, Ep. 6. 20.14; Pan. 29; Apul. Met. 8. 6); convocare or invocare (Petr. 21; Apul. Met. 7. 7); clamor (Dig. 9. 2. 4. 1; Gaius on XII T.). See W. Schulze, KI. Schr. (1934), 160 ff.; Wieacker, Festschr. Wenger i. i29ff. On popular justice see G. Broggini, ludex Arbiterve (1957), 40 ff.; A. W. Lintott, Violence in Republican Rome (1968), 6ff. For the con· nection with provocation E. Staveley, Hist. 3 (1955), 418. For an example of an effective intervention by bystanders see Livy 3. 44 ff.

³               Here the parallel with the Germanic «geriichte’ and the early English «hue and cry’ breaks down. For a discussion of the evidence from comparative law see Schulze, art. cit.

apparently immune from indictment. If the victim was sure enough of the identity of his enemy, he might dog his footsteps, dressed in mourning clothes, with long hair and beard. That this practice was liable to punishment by an actio iniuriarum if entered upon maliciously is sufficient testimony to its effectiveness as a means of arousing at least the passive resentment, invidia, of citizens against the offender.¹ Alternatively, verbal defamation might be resorted to by the victim. The recital of defamatory songs (oc- centare) was recognized as a capital offence in the style='font-style:italic'>Twelve Tables, probably because such a procedure was likely to lead to a riot of the populace. From about the turn of the third century B.c. the offence was actionable as convicium under the actio iniuriarum. Our ‘power­ful and intractable defendant’ would have had nothing but brute strength to turn against either a silent protest or systematic abuse.²

The Romans, then, did not practise a system of naked self­help, in which the strong lorded it over the weak. In the first place, a wronged man, whether weak or strong, was required to seek recovery of alleged losses, or compensation for alleged injuries, by judicial processes. Private vengeance was ruled out except in special circumstances. Secondly, a plaintiff, even if weak, might have the support of public opinion and individual backers in the community. Moreover, if his stronger opponent turned his back on the courts, he might hope for praetorian remedies, which, even if they did not include the intervention on his side of a police force, could nevertheless be efficacious.

The situation of the weaker plaintiff improved with the end of the Republic and the coming of the Empire. We have been con­cerned above with the position that arose when the efforts of the plaintiff were frustrated by the superior force of the defendant. By a clause of the Julian law on violence (of Julius Caesar or Augustus) it was made a crime to resist a summons by force:

legis luliae de vi privata crimen committitur, cum coetum aliquis et concursum fecisse dicitur, quo minus quis in ius produceretur.

’ Dig. 47. 10. 15· 27.

²               Defamatory songs: ibid.; XII Tables 8. 1; cf. Cic. de rep. 4. 10. 12 fin Aug. de ci-trit. Dei 2. 9). Other vocal abuse: Tac. Ann. 3. 36 with Dig. 47. 10. 38. On the Roman law of defamation see D. Daube, Atti del Congr. int. di dir. rom. (1951), Hi· 413-56.

For the plaintiff this carried the important consequence that the summoning of a defendant who offered physical resistance was taken out of his hands.¹ For in the case of a criminal offence the state and not the individual was responsible for summonses. Meanwhile there were grounds for hope that the defendant would retreat from the greater risk of a public prosecution,² and would allow the plaintiff to institute civil proceedings.

The clause in the lex lulia had only a limited application. But there may have been ways of having a less violent kind of resistance to summons enrolled as a crime.³ The Emperors further supplemented the system of private summons by making it a criminal offence to disobey the injunctions of magistrates (a form of contumacia'). In addition, the cognitio procedure, which had its own method of summons, became more frequently employed for the settling of private disputes.⁴

When all this is said, it must be admitted that there were practi­cal difficulties about private summons, difficulties which might become almost insuperable if the praetor himself were un­cooperative. This is the crux. It cannot be assumed, for example, that the praetor was free with the grant of missio to plaintiffs of low standing. Of a man who hid to escape trial (qui fraudationis causa latitabit), the praetor stated in his edict that he would order his property to be confiscated and sold: ‘si boni viri arbitratu non defendetur’.⁵ That is to say, the intervention of men of good reputation and means on the side of the defendant was sufficient

¹               ‘A crime against the Julian law on private violence is committed when someone is said to have assembled a company to prevent a man from being led off to face the law.’ Dig. 48. 7. 4, quoted Kelly, op. cit. 11. Kelly dismisses the clause with the comment that the man of low status would find it exceedingly difficult to win his case anyway. This, however, is another point, and in making it Kelly has tacitly conceded that the vicious circle could be broken. On the lex lulia de vi see Kunkel, RE 24 (1963), 771-2.

²               Condemnation in a criminal case undoubtedly carried infamia (in addition to other penalties).

³               e.g. an indictment for iniuriae under the lex Cornelia is a possibility. This is suggested, though only indirectly, by Dig. 48. 7. 4 fin.

⁴               See pp. 170-1. On the punishment of contumacia see Dig. 48. 19. 5 praef.: ‘adversus contumaces vero. ·. secundum morem privatorum iudiciorum* (Trajan/Ulpian); cf. CJ 7. 43. 1 (Hadrian, Pius); Kipp, RE 4 (1901), 1165 ff. For civil measures against disobedience see Dig. 2. 3. 3 (praetor’s edict, Labeo).

⁵               Dig. 42. 4. 7. 1. See ibid. 2: Ulpian says that latitatio is the most common reason for the ordering of missio.

to hold up a missio. There was no more guarantee that a praetor would apply his sanction of infamia to a powerful defendant who would not obey summons (supposing that resistance to summons was not labelled famosum in the edict).¹ In short, the system of private summons might readily become in the hands of the prae­tor an instrument of status discrimination. While the praetor was well placed to assist the plaintiff who lacked the capacity to carry out a summons, it is unwise to assume that he did so.²

This section has been largely devoted to the problem of resistance to summons. It may conclude with a brief consideration of two ways of avoiding summons which did not involve flouting the law. Both took the form of extra-judicial agreements between the parties, normally before judicial proceedings began. The first was vadi­monium, the second transactio.

- A defendant who wished to avoid an immediate appearance before the praetor in response to a summons might bind himself by a promise, vadimonium, to appear in court at a future date.³ Vadimonium was not necessarily accompanied by the payment of security, satisdatio·, sometimes a verbal agreement, with or without an oath, was sufficient.⁴ But it is unlikely that vadimonium without satisdatio (which in the case of a money dispute might amount to as much as one half of the sum at issue) was acceptable in the case of a defendant whose financial resources were meagre.⁵ As a prac­tical matter, therefore, low-status defendants were in all likelihood

^x See p. 190, above.

* Problems did not vanish under cognitio. Missio was supported by extra ordinem intervention (Dig· 43. 4. 3 praef.; cf. ibid. 3. 1). But how readily was the intervention ordered by the judge? See also Dig· 5. 1. 72: a defendant who failed to respond to summons (evocatio) was sent a peremptorium edictum to inform him that the trial would go on in his absence. But up to three edicts might be sent, depending on the discretion of the judge. He made his decision after considering the ‘condicio causae vel personae vel temporis’. Delay could of course be very useful. See also 5. 1. 68-71; 73. 3; PS 5. 5a. 6 (7).

³               Cic. pro Quinctio 61. Vadimonium might also be made when proceedings in iure could not be concluded within the day. See Gaius, Inst, 4. 184.

⁴ Ibid. 185.

³               Exempted were men offides (Dig· 40. 5. 4. 8) and honestas (26. 4. 5. 1), and owners of immovable property (2. 8. 15 praef.: possessores immobilium rerum). These texts show the narrowness of Gaius, Inst. 4. 102 (suspectae personae were required to provide satisdatio).

barred from both of the two recognized ways of postponing court proceedings, the provision of a vindex, and the making of a vadimonium.

Transactio (transigere), or decisio {decidere), stands for a settle­ment out of court.¹ The class of defendants who sought transactio was probably quite substantial in number. Defendants of high rank, especially when their existimatio or dignitas ws at stake, might have been ready to strike a bargain with plaintiffs. If a plaintiff was unwilling (he may have to settle for a slightly smaller sum than he was claiming), he might perhaps be reminded of the anxieties and expense of a long-drawn-out battle in the courts, which might in any case end in his defeat. All the inconvenience and risk could be avoided by a quick settlement and an immediate composition payment.¹ He might not see reason. Cicero knew how stubborn provincial plaintiffs could be, even when their oppo­nents were senators, who were certain to demand and obtain a trial in Rome.^{[176] [177] [178]} Perhaps only the application of pressure of a dif­ferent kind would bring results, especially if the parties were of unequal strength.

Few plaintiffs could have been subjected to greater pressure than was L. Piso, who summoned Urgulania to appear before the praetor to recover a debt.^[179] It will be remembered that Ur­gulania refused to go to court and sought refuge in the palace, in the knowledge that Livia would protect her. The passage in the Annals goes on:

But Piso held his ground, despite Augusta’s complaint that her majesty was being dragged in the dust. Tiberius, thinking that he should so far gratify his mother as to say that he would go to the prae­tor’s tribunal and support Urgulania, set out from the Palatium. His sol­diers had orders to follow at a distance. The mob rushed up to look, as Tiberius, his face composed, and pausing every now and then for conversation, made his leisurely way, until, Piso’s relations being unable to restrain Piso, Augusta issued orders for the payment of the money he was claiming. This ended an affair from which Piso emerged with glory, and Caesar with an enhanced reputation.

Tacitus told the story to illustrate Piso’s courage and tenacity. He was not interested in procedural details. But it was surely an extra-judicial settlement which terminated the dispute. Of course the case was not a typical one, and the settlement differed from run-of-the-mill settlements. Here settlement was probably the aim of the prosecutor rather than of the defendant. For the defence was striving after nothing less than the outright with­drawal of the charge; while Piso probably realized that full judicial proceedings were out of the question, but would accept nothing less than a settlement. Tiberius’ role is ambiguous. He may have thought that Piso, though unmoved by the pleas of his relatives, would withdraw when he intervened. But Piso’s intransigence seems to have forced Tiberius to patch up a compromise.

Although there seems to have been little restriction on settle­ments (which indeed were permitted, if not encouraged, from the early Republic),¹ not all defendants were able to negotiate them with impunity. In the language of the lawyers, while transactiones (or decision.es) could be entered into without unhappy con­sequences for the defendant, pacta carried infamia, or disabilities analogous to infamia.^{[180] [181]}

Ulpian defines the two terms in this way:

qui transigit, quasi de re dubia et lite incerta neque finita transi- git. qui veto paciscitur, donationis causa rem certain et indubitatam liberalitate remittit.^[182]

The distinction presents no difficulties on paper. Transactio could take place only where the issue was unclear and the guilt of the defendant was contested; the defendant who paciscitur, on the other hand, declares ‘no contest’, and in such a way as openly or tacitly to acknowledge his guilt. But how important was the distinction in practice? If high-status defendants rather than low-status defendants tended to seek settlements because of their greater financial resources and their greater fear of infamia, one may wonder how many defendants were sufficiently ‘generous’ (liberalitate) to confess their guilt, where loss of status was a cer­tain consequence. It may be that Ulpian’s definition of pactum is over-simplified, and that transactio was not allowed to defendants whose guilt was ‘certain’. If this was so, it would not be sur­prising if the praetor’s concept of ‘certainty’ (for surely the de­cision lay with the praetor) turned out to be both vague and flexible; if his decision was made with reference not just to the facts of the case, but also to the person of the defendant; if praetorian discretion in this sphere as well as others was used to protect the dignitas of defendants of rank.¹

The Formula: ‘condemnatio’

Once the parties were in court the plaintiff announced the nature of his claim and requested a specific formula from the prae­tor. The proposed formula would then be debated by the parties and finally given approval, whether in its original or an amended form, by the praetor. After the appointment of a iudex who was acceptable to both parties, the proceedings in iure came to an end with the litis contestatio, or the final agreement of the parties on the formula.

All formulae apart from those of ‘prejudicial’ actions, in which the judge was required merely to settle a legal fact, contained a condemnatio. This might specify a definite sum of money, or a maximum, or no definite sum?

A clause of the first kind occurred in formulae for actiones certae creditae pecuniae, or actions for the recovery of a specific sum of money.

¹               In matters of inheritance and legacy transactio was allowed even to the poor, but only under the praetor’s strict supervision. In contrast, a man honesti- oris loci could do without a praetor, Dig, 2, 15. 8. 7-8; 11; 23.

²               On the parts of the formula see Gaius, Inst. 4. 39 ff.; on condemnatio, 4. 48-52.

In contrast, formulae petitoriae such as were used in actiones in rem, where what was at issue was ownership of a thing, stated that the defendant, if condemned, was to pay the cash equivalent (unspecified) of the thing disputed, unless the defendant restored it to the plaintiff to the satisfaction of the judge: ‘(si)... neque ea res arbitrio iudicis Aulo Agerio restituetur.’ It may be said in passing that the existence of this clausula arbitraria, with the opportunity it gave for avoiding condemnatio pecuniaria as well as actiones in rem, weakens the argument that the universal monetary penalty was instituted by the wealthy with the deliberate aim of oppressing the poor.¹

The second kind of condemnatio is most relevant to the present discussion. It is found in formulae of certain actiones in factum, in which the condemnatio contained a clause such as the following:

quantam pecuniam recuperatoribus [or iudici] bonum et aequum videbitur ob earn rem Numerium Negidium Aulo Agerio condemnari, tantam pecuniam dumtaxat sestertium [                                   ] milia.

The praetor, then, set a maximum figure for damages, and left the judge to determine the precise amount according to what was fair and equitable. It is important to decide how the sum which served as the maximum was arrived at. In investigating this we may take one of the more common of the actions under considera­tion, the actio iniuriarum.²

Gaius ends the third book of the Institutes with an account of the punishment of iniuriae. Excluding the case of membrum ruptum, where private vengeance in the form of talio was permitted, the Twelve Tables set a sum for os fractum (300 asses if a free man was injured, 150 if a slave) and for other injuries (25 asses, presumably

^x The argument of Kelly (op. cit. 69-84) that monetary prestation weighed more heavily on the poor than any other kind of prestation would is uncon­vincing. Any time that damages have to be paid the poor are in a worse position than the rich, but this is so whether money or services or goods have to be rendered. On the clausula arbitraria see, for example, Buckland, op. cit. 659- 61; cf. Kelly, op. cit. 81 n. 1.

² Iniuriae might involve physical injuries or offences against the good name of a person. Actions with formulae of a similar kind include actiones rei uxoriae, funeraria, sepulchri violati, and the action against the judge qui litem suam facit. See A. Berger, Encycl. Diet, of Rom. Law 346^7, with bibl. On {bonum et) aequum see, for example, M. Kaser, Das romische Privatrecht (1955), 172-3, 526, with bibl.; Berger, op. cit. 354-5.

for injury to a free man). These amounts, he explains, were once thought substantial. As for his own time (sed nunc alio iure utirnur), it seems that the praetor estimated the compensation due for an injury, and that the judge was not allowed to exceed that estimate (nor, in the case of severe injury, iniuria atrox, was he expected to reduce it).

However, Gaius does not explain the principles on which the praetor based his calculations. The Twelve Tables (above) bore a trace of a ‘wergeld’ system such as was operated in Western Europe in the Late Roman period and the Early Middle Ages, whereby differences between ranks were numerically calculated, and compensation payments for injury were graded accordingly. It is not out of the question that Romans of a later period main­tained a system of this kind, if a flexible and informal one. A text from the late third century lays down penalties for injury which were applicable when that offence was tried extra ordinem. Slaves were struck with whips, free men of low rank with rods, and ceteri, that is, presumably, men of high status, were banished for a time, or denied access to certain honours or exercise of certain rights.¹ These penalties were, of course, imprecise. The number of strokes of whip or rod, the time of banishment, and so on, could be regulated according to the gravity of the injury and the status of the injured party. A comparable text for injury as tried by the formulary process (which knew only pecuniary penalties) might have laid down for the same three social groups three maximum and minimum levels of composition. No such text survives, if it ever existed; Ulpian merely writes in his com­mentary on the edict that certain injuries are mild when inflicted by free men, and serious when inflicted by slaves.²

Be that as it may, the above texts at least indicate that the Romans had not abandoned the general principle that the gravity of the penalty inflicted on the agent or accused should depend, to a

¹               Dig. 47. 10. 45: de iniuria nunc extra ordinem ex causa et persona statui solet. et servi quidem flagellis caesi dominis restituuntur, liberi veto humilioris quidem loci fustibus subiciuntur, ceteri autem vel exilio temporal! vel inter- dictione certae rei coercentur’ (Hermogenianus).

²               Ibid. 17. 3: ‘quaedam iniuriae a liberis hominibus factae leves (non nullius momenti) videntur, enimvero a servis graves sunt, crescit enim contumelia ex persona eius qui contumeliam fecit.’ certain extent, on the social position of both the agent and the injured party. This point can be further documented from earlier texts, especially from passages which treat iniuria atrox.¹

Cicero in de inventione discussed the case of a Roman knight who lost his hand in a scuffle with armed men and brought an action for injury.² The plea of the defence for an exceptio (extra quam in reum capitispraeiudiciumfiat) was dismissed by the praetor, on the grounds that the crime was so serious (atrox) that the case had to be brought to trial as quickly as possible. Why was the injury judged to be atrox? Was it just because of the violence of the deed (qualitas rei), or also because of the status of the injured man (condicio personae)? Cicero gives no clue to the correct answer, and the matter may be disputed. At any rate, it is certain that in the early Empire the principle had won acceptance that the persona of the injured party might convert a mere action for injury into an action for ‘grave’ injury, iniuria atrox. The only point of issue is what the early jurists understood by persona.

When discussing iniuria atrox, Ulpian cited Labeo, the Augustan jurist:

atrocem autem iniuriam aut persona aut tempore aut re ipsa fieri Labeo ait.

Ulpian continued:

persona atrocior iniuria fit, ut cum magistratui, cum parenti patrono fiat.

¹               Non-legal literary texts have little to say on the subject of iniuriae. We have record of two cases tried extra ordinem^ both involving verbal injury. Vespasian’s decretum^ ‘non oportere maledici senatoribus, remaledici civile fasque esse’ (Suet. Vesp. 9. 2), may seem to imply that any citizen, of whatever rank, could return a senator’s abuse with impunity. But the context is the trial of an equestrian, not of a plebeian, and Vespasian may have had in mind only ex­changes between equestrians and senators (who, in his eyes, were not far apart in rank, see p. 89). See previous note, fin. The summary treatment given Annia Rufilla (Tac. Ann. 3. 36, and see pp. 31-2) has already been discussed. We can perhaps say that she would have been punished less precipitately if she had been a lady of higher rank.

²               Cic. de inv. 2. 20. 59-60. This is Cicero’s earliest work, written about 84 B.C. when he was 22. It is a rhetorical essay setting down the conventional forms and distinctions which he had been taught. The case before us is probably a type case, and not a historical event. But, if anything, this makes the choice of an equestrian as the injured party more significant. On atrocitas, Quint. Inst. Or. 6. 1. 15.

It would appear, then, that Labeo did not think beyond the conven­tional social relationships of father/son and patron/freedman, and the standard political relationship of magistrate/private citizen.¹

But a comparison of Labeo’s statement as reported by Ulpian with that of Claudius Saturninus, a jurist of the second half of the second century, should arouse our suspicions. Of persona, Saturninus wrote:

persona dupliciter spectatur, eius qui facit et eius qui passus est: aliter enim puniuntur ex isdem facinoribus servi quam liberi, et aliter, qui quid in dominum parentemve ausus est quam qui in extraneum, in magistratum vel in privatum.²

It will be seen that the examples chosen by Labeo and Saturninus are almost identical. Yet Saturninus, at any rate, might have fur­nished additional ones. He might, for instance, have followed Gaius, probably his older contemporary, who said that injury to a senator ab humili persona was atrox.³

Nor was Gaius’ account as full as it might have been. This will be seen if it is set beside two parallel passages from post-classical works. The text of Gaius runs as follows:

atrox autem iniuria aestimatur vel ex facto... vel ex loco. .. vel ex persona, veluti si magistratus iniuriam passus fuerit, vel senatori ab humili persona facta sit iniuria.

The author of the late third-century work Paul's Sentences wrote: atrox iniuria aestimatur aut loco aut tempore aut persona... persona, quotiens senatori vel equiti Romano decurionive vel alias

¹               Dig. 47. io. 7. 8: ‘Labeo says that an injury becomes grave because of the person injured, the time of the injury, and the nature of the injury itself. An injury is grave because of the person injured when, for instance, the victim is a magistrate, a parent, or a patron? Cf. I. 12. I. io (iniuriae by a freedman to his patron; the penalties given were castigatio or exilium temporarium or metal- lum); 37. 14. i. See also, for the criminal law, 48. 19. 28. 8: ‘omnia admissa in patronum patronive filium patrem propinquum maritum uxorem ceterasque necessitudines gravius vindicanda sunt quam in extraneos.’

²               Ibid. 16.3: ‘Person has a double reference, both to the agent and to the victim. Slaves and free men are punished differently for the same crimes; so are offenders against a master and a parent on the one hand and a stranger on the other, or against a magistrate on the one hand and a private citizen on the other.’

³               lang=EN-US>Gaius, Inst. 3. 225: ‘Injury is judged to be grave because of what is done, or the place where it is done, or the person to whom it is done... because of the person to whom it is done, as when a magistrate has suffered an injury, or a senator at the hands of a man of low status.’ spectatae auctoritatis viro: et si plebeius vel humili loco natus senatori vel equiti Romano, decurioni vel magistratui vel aedili vel iudici, quilibet horum, vel si his omnibus plebeius.¹

Finally, we read in the Institutes of Justinian:

atrox iniuria aestimatur... vel ex persona, veluti si magistratus iniuriam passus fuerit vel si senatori ab humili iniuria facta sit, aut pa­rent! patronoque fiat a liberis vel libertis: aliter enim senatoris et paren­tis patronique, aliter extranei et humilis personae iniuria aestimatur.^{[183] [184]}

Justinian’s account is quite derivative. His concept of persona is no advance on that of Gaius, who was probably his main source. Nor is his statement exhaustive. This is proved by the fact that he has ignored the more detailed treatment in Paul's Sentences. But even the list in that work is selective. This is shown by a rescript of Valerian and Gallienus, issued in a.d. 259. They judged injury to a provincial priest to be atrox

cum esses in sacerdotio et dignitatis habitum et ornamenta proferres.^[185] But the author of Paul's Sentences, in choosing his examples, does seem to have considered social status as well as social and political functions.

Justinian did not completely omit consideration of social status, for he took over Gaius’ example of an assault on a senator by a humilis persona. There is no reason for supposing that Gaius could not have produced as comprehensive an analysis as that of the author of Paul’s Sentences. He might, for example, have included the provincial aristocracy. Paul's Sentences does not contain the first reference to provincials in the context of injury. Apart from the rescript of A.D. 259 referred to above, there is an edict of Caracalla, partly preserved on papyrus.¹ The edict does not go very far, but it at least shows that injury to decurions was viewed seriously. If the accused was another decurion, he would lose his rank and suffer ignominia.^{[186] [187]} Presumably a non-decurion would have suffered a harsher penalty. There is good evidence that in Gaius’ day (the mid second century), not only senators (and equestrians), but also decurions as offenders, received milder punishments than ordinary citizens.^[188] It would have been strange if, in addition, injury to a decurion by a plebeian had not been regarded as more serious than injury to a plebeian by a plebeian.

If Gaius was not seeking to be exhaustive (as is obvious in any case from his exclusion of some conventional examples), no more was Claudius Saturninus. The latter might just as well have spoken of injury to a member of the higher orders (by one of low status) as of injury to a master (by a slave), to a father (by a son), or to a magistrate (by a private citizen). This brings us back to Labeo. I would regard Cicero’s illustration of the equestrian who lost his hand as an indication that Labeo’s account need not have been confined to conventional examples. But leaving this aside, and even supposing that Labeo had not himself encountered cases of unequal treatment of men of unequal status condemned for iniuriae (an unlikely assumption), there is still a strong proba­bility that Labeo’s view of persona was not a limited one. If we can be guided by his definition of iniuriae, as pertaining aut ad dignitatem aut ad infamiam,^{[189] [190]} and by the attitude he took over the prosecution of members of the aristocracy for fraud,® it seems reasonable to hold that he might have admitted into his discussion of iniuria atrox (and simple injury) the notion of social status.^[191]

lang=EN-US style='font-size:11.0pt;line-height: 115%;font-style:italic'>Execution of judgement

Execution of judgement followed the defendant’s condemnation in an actio iudicati.¹ Alternatively, if the candidate did not consent to co-operate in the actio iudicati, the praetor might order missio in possessionem as a preliminary to venditio bonorum.²

The weaker plaintiff was up against the same problems in executing judgement as he was in carrying out summons, that is, the likelihood of physical resistance to summons or refusal to obey summons (preparatory, on this occasion, to the actio iudicati), and physical resistance to missio. It may be that on isolated occasions praetors in Rome, or governors in the provinces, gave assistance, in the form of an armed troop, to successful plaintiffs for the execution of judgement. However, aid of this kind was probably granted only to influential individuals or their agents as a personal favour, and was not made available to plaintiffs of lesser significance.³ The weaker plaintiffs problems were eased as courts and tribunals became available which settled claims extra ordinem and he was relieved of the burden of execution as well as of summons. There is, to my knowledge, no direct evidence that the praetor was ever instructed to intervene in strength in support of a plaintiff who had won a civil suit by the formulary process.⁴

¹               On execution and the actio iudicati see, e.g., Buckland, op. cit. 642 ff. If the defendant disputed the validity of the judgement, litis contestatio and another trial would follow. This might gain the defendant additional time— but condemnation carried double damages.

²               Execution in personam (involving private imprisonment still, but probably no longer sale or death) persisted into the Empire (see lex Urs. 61; Gellius 20. 1. 51; E. Woess, ZSS 43 (1922), 485 ff.), but was presumably not within the capability of a weaker plaintiff whose stronger opponent was avoiding the actio iudicati. Hence it is disregarded here.

³               The M. Scaptius who secured a praefectura for debt collection from Appius, governor of Cilicia and Cyprus, and was refused one by the next governor, Cicero, was an agent of Brutus. Cic. ad Att. 5. 21. 10.

* Kelly (op. cit. 29) holds that such instructions were issued first by Anto­ninus Pius in a rescript to the magistrates of Rome: 'a divo Pio rescriptum est magistratibus populi Romani, ut iudicum a se datorum vel arbitrorum sen- ten tiam exsequantur hi qui eos dederunt’ (Dig. 42. 1. 15 praef.). But the rescript refers to civil disputes settled by cognitio by judges appointed (datus) by magis­trates, and especially by the consuls. The citation comes, in fact, from Ulpian’s de officio consults. The other texts cited by Kelly seem no more relevant to execution under the formulary process.

It is proper to ask whether the difficulties in the way of execu­tion were in fact insuperable before the Emperors introduced an alternative procedure in civil law. As with summons, so with execution, the weaker plaintiffs position might in reality have been less unfavourable than appearances would suggest. It is unlikely that more than a handful of desperate men were able to resist execution successfully and were prepared to accept the probable consequences of their actions, exclusion from public affairs, com­munity life, and, of course, the law courts.

It remains a fact that the law itself provided no mechanism for redressing the balance between two parties of unequal strength. The praetor played no active part in enforcing either the judge­ment of a court or his own edicts. If a stubborn defendant was brought to accept the judgement of a court, this was achieved by the combination of social pressures and the intervention of such private supporters as the plaintiff was fortunate enough to possess. It is also significant, though in no way remarkable, that the praetor, as a representative of the ruling oligarchy, did nothing to eradi­cate the undoubted structural weaknesses of the formulary system. It remained for the disguised monarchy, whose intolerance of disorder and extra-legal or illegal activity was at least as strong as its aristocratic prejudices, to supply in the cognitio procedure what was at least a partial remedy.

Conclusion

There is little recognition in the legal sources of the fact that the praetor had regard for status distinctions in his administration of the civil law. It stands to reason that only those distinctions which were overtly acknowledged by the legal authorities are ac­tually demonstrable. Less formal distinctions, that is, distinctions which were made, as far as we know, without official acknow­ledgement but at the praetor’s discretion, can be inferred from these, although naturally their prevalence cannot be accurately assessed. Finally, examples were found of de facto inequality; in such cases, advantages fell to those having the capacity to exploit inequitable aspects of the formulary system which successive praetors had allowed to stand.

No lengthy or sophisticated explanation is required of the praetor’s preferential treatment of members of the higher orders. He had the opportunity to discriminate against the weaker party as the controller of the sanctions behind in ius vocatio and execution, as the granter or withholder of actions, and as the magistrate who controlled the composition of the formula for the instruction of the judge. And he shared the feelings and prejudices of his rank.