Introduction
What is civil procedure?
Civil procedure is made up of the rules and process that the courts follow to conduct civil trials. Civil trials focus on the "judicial resolution of claims by one individual or class against another".
What is civil procedure in Rome?
Civil procedure in Rome is the rules and process followed by courts in Rome’s “civil” courts, where the majority of the cases were heard.
How was civil procedure established?
Civil procedure was established in law as a very straightforward procedure with clear rules and boundaries. Although parts of it could have been derived from traditions from the kings, the formal civil procedure was established in law as an arbitrary process.
Formulary Procedure
Background
The name formulary procedure derives from the formula or set of instructions followed by the judge(s) hearing the case and how they should decide it. The exact origins of the formulary procedure are unclear, though it is known that it arose to settle disputes involving foreigners and around 242 BC a new magistracy was established to settle disputes involving foreigners. As time went on, it was adopted by the urban praetor to also settle disputes of Roman citizens. And by the end of the republic, the Formulary Procedure became the process for civil procedure.
Two Phases of Formulary Procedure
Formulary Procedure is made up of two phases:
in iure, at law - a preliminary hearing in which the two parties would consult with an elected magistrate to establish the ground rules for the hearing
The official in charge of the in iure was usually the urban praetor.
The praetor’s job was to make sure that there would be a judge or panel of judges and to create the directions for the judge, the formula.
apud iudice, before a judge - the presentation of arguments, evidence, and witnesses
At the end of the hearing, the judge or the panel of judges would deliver the verdict.
Formula of Formulary Procedure
The formula consists of four things:
The identity of the parties
The basic question to be decided (the intentio)
Special defenses and responses to these
The stakes to be decided
Many of the defenses and responses were extracted from a variety of different kinds of intentio.
The stakes were established on monetary damages and based on the issue of the case.
The praetor does not decide which side is right and the formula is very general on the terms.
The formula could consist of elements in the Edict, the praetor could create a new formula if a new situation occurred.
The Features
The judge (iudex)
The judge was not an elected official.
For most cases, there was a single judge. However, if the case was dealing with inheritances, then multiple judges would hear the case and the decision would come down to a majority vote. The rules were the same for every case, regardless of the number of judges.
When choosing the judge, the praetor had a list of adult men who met the qualifications- wealth, free birth, Roman citizenship, and “good character”- to serve, and the parties could take turns rejecting those they did not want as judges. At the end of this, whoever was left would become the iudex.
In addition, the parties could come to an agreement on a judge in advance or the praetor would choose an iudex himself, avoiding the process.
Division of labor
The jury would decide factual questions like: “Did he do it?” or “What was the deceased cow originally worth?”.
The judge would answer questions of the law like: “Does intention need to be proven to convict of murder?” or “Can certain kinds of evidence be mentioned at trial?”.
However, the praetor’s formula limited the questions that could be addressed.
Both sides of the case were represented by advocates and at times by legal experts.
The iudex could get legal advice from outside sources.
There were no objections to evidence or arguments during presentations. Due to this, irrelevant information and personal attacks were avoided in order to not waste time.
Once the judge delivered his verdict, there were no other “higher” courts to appeal to, and the decision was final. Because of this, the formulary procedure was designed to work best as a “state-sponsored form of arbitration”.
The Execution of Judgements
The debtor would get 30 days after the verdict before any action could be taken.
There were many options to make sure that the judgment was carried out:
Manus iniectio: meaning ‘laying of hands’, established by the Twelve Tables
After the 30 days passed, the creditor would bring the debtor to the praetor. Then he would state the amount he was owed, that he had not been paid, and proclaim that he was going to lay hands on him for the amount he was owed.
If the debtor wished to dispute the claim, he had to find a third party to help him. If not, then the debtor would be put in chains, taken away, and imprisoned for 60 days.
Both parties would then have those 60 days to try to come to terms if not the debtor would be sold into slavery or put to death. In 326 BC, the lex Poetelia, passed which stated that the debtor would work off the debt but could not be sold into slavery nor be put to death.
Banorum venditio: meaning ‘sale of [the debtor’s] property’, introduced in the late Republic
The praetor allowed the creditor to seize the debtor’s property. Afterwards, for 30 days, the property would be advertised for sale. During this time other creditors could come forward and make their own claims and the debtor would use this time to try and scrape money together to avoid the sale.
The creditors would meet up and appoint one person amongst them to act as manager and manage the sale. The property would then be sold to the highest bidder. Whatever debt was leftover from the sale would fall on the debtor to pay off.
Cessio Banorum: introduced under the rule of Emperor Augustus
This recourse was available to the debtor and not the creditor. In this, the debtor would voluntarily surrender his assets.
This was only available if the debtor had actual assets, like property, and had become bankrupt through misfortune. Through this method, the debtor could avoid harsher debt enforcement procedures and incurring infamia.
An important distinction that was made is that the bankruptcy had to have been incurred through misfortune and not as a result of someone’s selfish actions.
Legis actiones
Background
This was the earlier procedure before the Formulary Procedure. The legis actiones or action at law is infamous for its inflexibility. This is depicted by Gaius when he stated, “... because they were adjusted to the very words of a statute and so had to be observed as immutably as statutes”. In this, he demonstrates the rigidness of the earlier civil procedure. Therefore, a lot of attention was placed on not losing the case because of technical reasons than because of substantive reasons.
Similarity to Formulary Procedure
Both procedures began with the pursuer issuing a formal oral summons to the defender calling them to law, in ius vocatio.
Both procedures used formulas to guide the procedures. Formulas were introduced in legis actiones and continued on into the formulary procedure.
The litigation then depended on both of the parties agreeing and participating. However, the pursuer could use force to force the defender to appear.
Similar to the Formulary Procedure, there was usually one judge or a panel of judges, in which the two parties could disqualify the ones they did not want until they reached an agreement on who they wanted to be judged by.
Differences to Formulary Procedure
In the legis actiones the preliminary hearing consisted of five legis actiones. The first three were used to initiate the procedure, while the other two enforced the judgment.
Sacramentum: used when there was no other form of action to take place; a form of wager the two parties could agree to
This was a promise to pay in the event of failure of action. The money would be paid to the state, not to the other party. The value varied based on the value of the action. The following events would depend on whether the claim was to property or against a person.
Iudicis postulatio: only used when specially authorized by a statute.
The procedure would begin with the pursuer stating something along the lines of “I state under … that you ought to give me …”. Immediately afterwards, a judge was selected for the case.
Condictio: a kind of action in which there was an obligation to state the specific piece of property or a specific amount was stated
Similar to the procedure followed with sacramentum but not with iudicis postulatio , there was a 30-day delay. At the end of the 30 days, if a settlement was not reached, the proceedings to choose a judge began.
Litis contestatio: this event took place regardless of the legis actiones that took place
After the formal exchange of words occurred, this was “the point of no return”. The case would have to be “consumed” and if not then the case could not be brought up again at a later time.
Selection of the judge
For most cases, there would be only one judge, but there were certain cases where there would be a panel of judges.
Another difference was in the methods that were available to enforce the judgment decided on.
Although manus iniectio was an available course of action, banorum venditio and cessio banorum were not. However, there was pignoris capio.
Pignoris capio: ‘taking a pledge’
The creditor was allowed to seize the property that belonged to the debtor to hold as security until the debtor followed through on what they owed.
However, there is no clear evidence of what was the procedure if the debt was not paid or if the creditor was allowed to sell the property.
Examples
An example of the rigidness of legis actiones is illustrated by Gaius. In one case a man raised the case of cutting of vines but because he used the word vines instead of trees he lost the case. This is because the Twelve Tables mentioned cutting down trees but not vines, which is why he lost his case. This example shows how rigid the legis actiones procedure was in that because of one word the man lost his case regardless if the case was valid based on substantive merits.
Cognitio
Background
The cognitio procedure emerged in the early Empire. It comes from when the magistrate, or the emperor himself, would sometimes carry out an inquiry (cognitio) into the matter. Then the whole case would rest on the authority of the magistrate or of the emperor.
Before it became an official procedure, it was known as cognitio extraordinaria. As time passed, cognitio became the normal procedure until it was abolished in AD 342.
Differences to Formulary Procedure
Litigation was not divided into two phases in cognitio. Instead, the whole procedure occurred under the authority of the magistrate and not before the praetor and then the judge.
Because the procedure occurred under the authority of the empire, it was no longer a “state sponsored form of arbitration” and they would be able to appeal against the judges’ decisions.
Initiating the action
The pursuer began the procedure by submitting a written statement of claim with the magistrate. Then a copy of the written statement would be served to the defender. The defender would then be required to appear at a specific date in 10 days or less from when the statement was served to him. However, by the time of Justinian, this period was extended to 20 days.
The trial
The trial proceeded with advocates from each party presenting. The conduct of the trial was under the rule of the presiding magistrate or the deputy that was assigned to it.
Rules were developed over time relating to how trials should be conducted, which covered things like treatment of evidence.
A big difference is in the type of punishment the court could deliver. Under legis and formulary, the punishment usually involves some type of monetary punishment. However, under cognitio, the court could specify an obligation to hand over something specific instead.
Enforcement of Judgment
If the pursuer won the case, the defender would be given a specific amount of time in which he would have to comply with the magistrate’s verdict. If the defender did not comply during the allotted time, and he had been ordered to hand over property, the property would be seized by court officers and be given to the pursuer. If he owed money, the court officers would seize his goods for sale by auction or the pursuer could accept goods in place of money to satisfy the debt.
Appeals
Something that completely differentiates the cognitio procedure to its predecessors is that appeals became available as a whole new system was established.
The litigant could appeal to the emperor, or a judge could request a ruling from the emperor.
Then any decision from the emperor on certain points could be relied on by other magistrates or authorities for future similar cases. This is like modern day precedence of the Supreme Courts’ decisions.
Civil Procedure and Roman Society's Values
Civil procedure plays a big part in Roman law. The fact that the procedures are so established and clearly defined, from the act of initiating a procedure to making sure that each judgment was executed, demonstrates the huge trust Roman society placed in their legal system to protect them.
The fact that civil procedure in Roman society did not remain stagnant from the time of the kings to the empire shows that it was almost like a living organism that changed over time to suit the republic better. A clear example of these changes is the transition from legis actiones to the formulary procedure. As the Roman Empire expanded beyond Italy in the 3rd century they had to create a new procedure as legis actiones was only available for Roman citizens and there was a growing need for a method to settle disputes that involved non-citizens. Then as time went on it was implemented for disputes involving Roman citizens. In addition, the new format of cognitio became possible because of the institution of empires, which allowed for a system of appeal.
An interesting piece of information relates to the distinction between blameworthy and blameless bankruptcy associated with cessio banorum in the formulary procedure. This distinction was also adopted into the Scottish laws under the same name. However, this did not survive in their laws. Regardless, being able to notice this distinction allows us to reach a higher understanding of the reach and influence Roman Civil Procedure had in the ancient world.
Conclusion
Timeline of Civil Procedure
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