iudex, the activity of the patronus could even at this time PART II, have been disallowed. made by tor with regard to tion. The praetor was careful about the dignity of his court, Rules and indiscriminate approach to the sanctity of the im- the praeperium was not allowed. Perfectly free access was permitted only to an integra persona, who, as the phrase postularan, was allowed by the edict to postulate (cui per edictum postulare licet). For the purpose of keeping away people who might voluntarily or involuntarily infringe the dignity of the court, the praetor framed three rules expressed in three edicta and posted up on his album. These edicts referred to three classes of individuals. The first class was composed of those to whom postulation of every kind was denied. Under it fell boys. under seventeen (the Roman age of manhood with respeci to the exercise of public rights), and those persons who were so deaf as to be unable to hear the praetor's rulings. If such persons had no representative of their own, the praetor assigned them an advocate 2. The second class consisted of people to whom postulation was allowed only in their own interest: they could never act as representatives. This partial disqualification was based on sex, physical infirmity or gross immorality: it included women, blind persons and a class of individuals branded in later times as in turpitudine notabiles: and it was clearly based, even in the first two cases, on a desire to protect the dignity of the praetor's court. The rule that women should not appear for others was, indeed, introduced during Cicero's lifetime, in consequence of the great annoyance caused in the civil courts by the ceaseless activity of a senator's wife named Gaia Afrania 3. The third class contained those who were allowed to postulate in all cases for them1 Paulus in Dig. xlvii. 23, 4. "Ait praetor "si non habebunt advocatum, ego dabo "' (Dig. 3, 1, 1, 4). Val. Max. viii. 3, 2; Juv. ii. 69. She was the wife of the senator Licinius Bucco, and died in 49 or 48 B. c. See Rudorff, in Zeitschr. f. Rechtsgesch. iv. p. 47. BOOK I. selves, but only in exceptional cases for others. In this third class was included a list of persons who are marked by the praetor's edict as infames1.' The praetor in making out this list had followed very closely the rulings of the censor; his edict merely added a new and permanent disability to disqualifications already incurred. tation by Represen- The other kind of representation, by means of a patronus, means of a although far more frequent than the first, was not regulated patronus. by any such rigorous rules. When the Bar had become Advocati. Objects sought by tion; a profession we find that the praetor or provincial governor could suspend a particular advocate from practice in his court either temporarily or permanently; but it had not yet reached this stage in Cicero's time, and, although the praetor could undoubtedly exclude every one, except the parties directly interested, from his court, we know of no general rules which gave or refused permission to advocacy. The assistance rendered to litigants by this semi-professional class was of two kinds. Eloquence and deep knowledge of the law were not always united in the same individuals; while the possessors of the first gift appeared as pleaders (patroni), those who had the second assisted with their advice on legal points (advocati)3: although the 'advocates' in the strict sense were sometimes merely influential men who gave weight to the litigant's case by their presence on his side. Postulation, except it was simplified by a previous the parties agreement between the parties, might be a lengthy and in postula controversial business. The disputed points which might discretion arise at this stage can only be discussed when we have of the considered the nature of the formula. It is sufficient to remark here that much depended upon the discretion of ary power praetor. 1 'Omnes qui edicto praetoris ut infames notantur' (Dig. 3, I, I, 8). 'Bethmann-Hollweg, ii. p. 206. Cic. pro Cluent. 40, 110 'quis eum unquam non modo in patroni, sed in laudatoris aut advocati loco viderat?' Ps. Asc. p. 104 'patronus dicitur si orator est . . . advocatus si aut ius suggerit aut praesentiam suam commodat amico.' the praetor: and to move him to take a different view of the law or to adopt a more equitable frame of mind were the objects of the patron's pleadings in iure. The complaints were sometimes long and querulous; but the praetor had good reasons for declining to listen to pleadings beyond a certain length. On the comparatively few court days the number of postulants was great, and the praetor could not dwell at length on one particular request. Complaints of his rulings were sometimes answered by the summary removal of the advocate from his court, and Cicero's client Quinctius had once seen his protesting friends hurried away from their place before the tribunal to give room to the next postulant 1. PART II. law re the prae tor for or for a Yet some of the questions raised by the lawyers could Points of not be dismissed in this summary manner. For these served by the praetor had a remedy which did not interfere with his activity in granting cases. He either reserved the cognizance point of law for his own cognitio or framed it as a formula praeiudito be settled as a praeiudicium by a iudex. A case of the latter kind is the one on which Cicero engaged in Quinctius' behalf. It is in the nature of a wager (sponsio) to determine whether the possessio claimed by the plaintiff against Quinctius' goods is valid or not 2. cium. not not always final. But even when the praetor had given a ruling and His rulings refused both cognizance and a case, this ruling was final. It might be indefinitely suspended by the veto of his colleague or of a higher magistrate: and the invalidation of his decree might lead him to alter his mind 3. Finally, if within the limits of time which he allowed to each case he professed himself uncertain of its merits, he might compel the litigants to conclude a vadimonium appear before him at some other time. to 1 Cic. pro Quinct. 8, 30-31 ‘A Cn. Dolabella... praetore postulat ut sibi Quinctius iudicatum solvi satisdet... Dolabella... aut satisdare aut sponsionem iubet facere, et interea recusantes nostros advocatos acerrime submoveri.' 'See Appendix on the pro Quinctio. See the section on the appeal. BOOK I. The for mula a conditional judgement. But the the iudex not confined to 'fact.' (d) The formula. The formula was a written statement of a case meant to be presented to a iudex; it was supposed to be an expression of the law applicable to this particular case and contained in a conditional form a judgement which the finding of the iudex was to make absolute. It was therefore expressed in the form of a conditional sentence, beginning with the words 'if it appears or should appear' and ending with the words 'give judgement in favour of A. against B.' The iudex by pronouncing 'it does' or does not appear' either condemns or acquits. But it finding of is a mistake to regard the function of the iwlex as confined to the decision of what we should call 'a point of fact.' The formula only states the law for the particular case, it does not state the law requisite for the very condition of the formula (the SI PARET) to be fulfilled. The legal validity of a stipulation, an obligation, a loan might lurk in those words; they might involve the raising of the whole question what was legal proof and what was not. By the formulary system the praetor removed quite half the burden of decisions in law from his own shoulders and laid them on those of the iudex; the latter must be, not a man of average enlightenment with a commonsense estimate of evidence, but a juristically trained man with a capacity for dealing with subtle points of law put before him by the pleaders. Cicero's pleadings for Quinctius, Caecina, Roscius and Tullius alone furnish sufficient proof of the amount of legal appreciation required of a judge; and additional evidence of the same fact is furnished by the practice of inviting trained jurists as assessors to the Bench 1. Analysis of the formula. But the relation between the facts and the law can best be estimated by glancing at the juristic analysis of the Cic. pro Quinct. 2, 5; 10, 36; pro Rosc. com. 4, 12; 5, 15; 8, 22. formula. Its structure differed so much with the different PART II. kinds of action that there was no such thing as a permanent type; yet the more constant materials out of which formulae were built, as opposed to the more accidental elements which might be embedded in them, might be tabulated and defined. The more essential parts were four in number: stratio. 1. The Demonstratio. This was a preliminary statement Demonof the matter in dispute; it by no means assumed the existence of the fact, but simply asserted the ground of action, as stated by the plaintiff, by its technical name, if it possessed one; if on the other hand the contractual relation was not technically recognized by the law but this nameless contract was yet made the source of a iudicium by the praetor, the place of the demonstratio was taken by a similar short preface (praescripta verba) of the ground of action. Gaius 2 takes as instances of the demonstratio cases arising from the contracts of sale and deposit. In the first instance it might run : 1 QUOD AULUS AGERIUS NUMERIO NEGIDIO HOMINEM VENDIDIT; in the second: QUOD AULUS AGERIUS APUD NUMERIUM NEGIDIUM HOMINEM DEPOSUIT. A similar statement might appear at the head of formulae which embraced compensation for a delict, e. g. when the ground of action was an assault by a box on the ear, the demonstratio might run : QUOD AULI AGERII PUGNO A NUMERIO NEGIDIO MALA PERCUSSA EST 3. The demonstratio, whether applied to contracts or delicts, states an assumed fact which is the basis of a claim and ''Contractus. . . quorum appellationes nullae iure civili proditae sunt' (Dig. 19, 5, 3). iv. 40. ' Collatio, ii. 6, 4; or with Lenel (Edictum Perpetuum, p. 321), QUOD DOLO MALO NUMERII NEGIDII AULO AGERIO PUGNO MALA PERCUSSA EST.' |