BOOK I.

Reasons

for the

made solemn and formal verbal requests, which were echoes of the preliminaries of the appropriate legis actio. These various suggestions may not be true alternatives after all. The law may-nay, it must-have exempted certain kinds of jurisdiction from the formula, e.g. that of the centumviral and decemviral courts; it may have given the praetor the power of substitution, and where, after the substitution had been effected, the praetor still allowed the legis actio and the formula to appear side by side in his album, it may have given the parties the alternative of action; while, lastly, custom may have maintained the fragments of some of the old formulae in the language of the

court.

The permission accorded by the lex Aebutia was probably introduc- due to the feeling that the procedure of the civil law was tion of the far behind that of honorary jurisdiction. It is probable formulary process. that the formula had first been used in cases in which the interests of peregrini were concerned, that from the foreign it had crept into the urban album, to be employed by the praetor urbanus, as the expression of the jurisdiction which rested on his imperium. Hence the formula would long have been the mark of every iudicium based on the imperium (quod imperio continetur), the legis actio the mark of every court based directly or indirectly on a lex (iudicium legitimum). But, when the formula had been applied to the sphere conception of legitimate' jurisdiction, a new definition of iudicium legitimum was required. It was defined no longer in legitimum; terms of the legis actio, but in terms of the conditions definition. of the application of the legis actio, which were transferred

Change

in the

of a iudicium

its new

to the formula in this sphere. A 'legitimate' court had the three main characteristics of the action at law1.

1 Gaius, iv. 103-104 ‘Omnia autem iudicia aut legitimo iure consistunt aut imperio continentur. Legitima sunt iudicia quae in urbe Roma vel intra primum urbis Romae miliarium inter omnes cives Romanos sub uno iudice accipiuntur.' Cf. Cic. pro Rosc. com. 5, 15 'omnia iudicia legitima, omnia arbitria honoraria.'

It was confined within the limits of the first milestone beyond Rome. Beyond this radius the true legis actio, as distinguished from reflexions of it which might be seen in the provinces, had never been applied1, except in Italian municipal jurisdiction; but jurisdiction between cives in the coloniae and municipia had always been regarded as a part of jurisdiction within the central state. All civil justice exercised beyond this limit-a limit marked after the social war by the bounds of Italy itself-rested on the imperium. Such was the civil jurisdiction of the governor over Romans and natives in the provinces, and of the general over the soldiers in his camp.

(2) It was established for the settlement of claims only between Roman citizens. The legis actio had never been extended to the foreigner, and the intervention of a peregrini persona as a litigant necessitated the establishment of a iudicium resting on the imperium. No court, therefore, organized by the praetor peregrinus, so long as he exercised his appropriate functions, could ever be legitimum.

(3) The iudicium must be represented by the unus iudex who is a Roman citizen. It may seem strange that this third part of the definition takes no account of the collegia of the centumviri and decemviri, for their jurisdiction was most certainly 'legitimate.' But iudicium legitimum is being defined in terms of the formula, not of the legis actio, which was the mode of procedure in those courts. The condition of the unus iudex is meant to exclude all recuperatorial iudicia; for the granting of

'A passage in the pro Murena seems to contain an implication that the actiones were purely Roman. Cicero says (13, 28) 'Sapiens existimari nemo potest in ea prudentia (i.e. chiefly knowledge of the forms of action) quae neque extra Romam usquam neque Romae, rebus prolatis, quicquam valet.' The proof of this fact, however, rests partly on the a priori ground given by Gaius' definition of a legitimum iudicium, partly on the empirical ground that there is no clear case of a legis actio applied to peregrini. For the legis actio sacramento in the early criminal procedure for extortion (repetundarum) see Part II.

PART II.

:

BOOK I. recuperatores was, in its later history as in its origin, a function of the imperium1.

Reasons for the

maintenance of

this con

ception.

Every iudicium which did not fulfil each of these three conditions was a iudicium quod imperio continetur.

There were two reasons why, in spite of the almost universal application of the formula, it was important to preserve the definition of the iudicium legitimum. One was the absolute finality of the judgement of such a court. In accordance with the traditions of the legis actio, an actio in personam under the formulary system,. if 'legitimate,' was ipso iure extinctive of the claim that had been urged: that is, the suit, if it had passed a certain stage, could not by any possibility be renewed 2. On the other hand, the renewal of an action which rested on the imperium could only be met by a plea in bar of suit to the effect that the case had already been adjudged or had entered on the stage of the iudicium (exceptio rei iudicatae vel in iudicium deductae 3).

A second reason was the different limits of pendency of the two kinds of actions. While a iudicium legitimum might last for ever, one resting on the imperium required to be renewed when the particular imperium which created it had become extinct 4.

But it scarcely required a definition, even one based

1 Gaius, iv. 105 'Imperio vero continentur recuperatoria (iudicia) et quae sub uno iudice accipiuntur interveniente peregrini persona iudicis aut litigatoris. In eadem causa sunt quaecumque extra primum urbis Romae miliarium tam inter cives Romanos quam inter peregrinos accipiuntur.' So recuperatores are given in the action for ris created by the praetor Lucullus (Cic. pro Tull. 10, 26).

2 Gaius, iv. 107 'At vero si legitimo iudicio in personam actum sit ea formula quae iuris civilis habet intentionem, postea ipso iure de eadem re agi non potest et ob id exceptio supervacua est.'

'Gaius, iv. 106 'Et si quidem imperio continenti iudicio peractum fuerit, sive in rem, sive in personam... postea nihilominus ipso iure de eadem re agi potest, et ideo necessaria est exceptio rei iudicatae vel in iudicium deductae.'

Gaius, iv. 105 'Ideo autem imperio contineri iudicia dicuntur, quia tamdiu valent quamdiu is qui ea praecepit imperium habebit.' Cf. p. 140.

on such important consequences, to show to the Roman PART II. world of Cicero's day what was a iudicium legitimum and what was not. If we are right in our view as to the structure of the praetor's album, and the separation in that document of the civil from the honorary formulae, the parties must have been fully aware when they were pursuing their rights iure civili and when by the assistance of the imperium.

(f) Dangers of the formulary system.

of the

danger.

One of the reasons assigned for the introduction of the formulary procedure into the domain of the civil law was the extreme danger of involuntary error threatened by the legis actio. As in the case of all systems that have grown up without the help of writing, verbal and even mechanical accuracy in every detail was necessary to the successful conduct of a case1. But a written system may have Precision similar danger for the litigant, and the rigidity of the formula its formula was often a source of injustice to the plaintiff and chief an undue restraint upon the judge. The danger might arise from undue specification of the facts or from an exaggerated statement of the claim. The first was sometimes guarded against by the repeated insertion in the endless parentheses of certain formulue of the phrase qua de re agitur in substitution for a renewed and accurate specification of the ground of the claim. Apart from verbal complications, the material specification of the facts, where necessary, resided in the demonstratio of the formula: the statement of the claim in the intentio. These were the only two ordinary parts of the formula for which the plaintiff was responsible; but an error in each led to very different results.

1 Gaius, iv. 30 'istae omnes legis actiones paulatim in odium venerunt; namque ex nimia subtilitate veterum qui tunc iura condiderunt, eo res perducta est ut vel qui minimum errasset litem perderet. Itaque... effectum. . . est ut per concepta verba, id est per formulas, litigaremus.' 2 Cic. Brut. 79, 275; cf. pro Mur. 13, 28; Top. 25, 95.

ΒΟΟΚ Ι.

Result

of error in the demonstratio;

in the intentio.

It is stated as a principle by Gaius that a false demonstration does not extinguish the plaintiff's claim, whether the falsity consists in stating too large or too small a ground for action', or we may conclude, in stating the wholly wrong ground. The loss of the claim in this particular case was, of course, necessary; but the action could immediately be renewed with an emended formula. There is no reason for doubting the application of this principle to Cicero's time, perhaps with a qualification mentioned by Gaius, which was expressed in the opinion of Labeo, a jurist of the next generation. Labeo held the possibility of the pursuit of too small a claim expressed in the demonstratio, the remainder of it to be pursued in another suit. The view was also held that in the case of actions which produced infamia on the condemned, an exaggerated demonstratio by the plaintiff, which in this case was calculated to injure the reputation of the defendant, should be punished by the loss of the case 3.

The intentio might also contain a statement of fact in the form of a specification of the thing in dispute. A misstatement in this connexion, the putting of one thing for another (aliud pro alio) was followed by the same consequences as a wrong demonstration. The immediate case was lost, but the action could be renewed 4. It was different if the defendant, whether in a claim to a thing or to money, had misstated the quantity of the amount Plus petere. which was owed. To demand too much (plus petere) was

for ever fatal to the claim. This was the case in the legis actio, if this was the sphere of a scene described by Cicero,

1 Gaius, iv. 58'Si in demonstratione plus aut minus positum sit, nihil in iudicium deducitur, et ideo res in integro manet; et hoc est quod dicitur falsa demonstratione rem non perimi.'

2 Gaius, iv. 59 'Sed sunt qui putant minus (i. e. less than the full claim) recte comprehendi, nam qui forte Stichum et Erotem emerit, recte videtur ita demonstrare QUOD EGO DE TE HOMINEM EROTEM EMI, et, si velit, de Sticho alia formula idem agat; quia verum est eum, qui duos emerit, singulos quoque emisse; idque ita maxime Labeoni visum est.'