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Actio

In the widest sense, actio means right of action, and is nearly equivalent to ius in the sense of a private right. In the narrower and original sense, it means proceedings taken to enforce a right.


1.

The legis actiōnes were the forms of procedure proper to the old civil law. They were not all suits in the modern sense, i. e. they did not all imply the submission of the case to the judgment of a court: legis actio per pignoris capionem, the enforcement of a claim by distress, was wholly extrajudicial, and legis actio per manus iniectionem, enforcement of a claim by the arrest of the debtor, involved merely a formal recognition by the magistrate that the arrest was technically justified (addictio). The action by distress was admissible only in certain special and peculiar cases where sacral or public interests were involved (see Gaius , Inst. iv. 26-29), but the action by arrest was admissible wherever the defendant's right was technically clear, not only when judgment had actually been rendered—manus iniectio pro iudicato—but in other cases, e. g. against the nexal debtor (cf. Nexum). In such cases the arrested debtor could not himself dispute the creditor's right: a vindex must intervene in his behalf, who, if defeated, became liable for twice the amount of the debt (duplum). In the later Republic, however, the debtor, if not iudicatus, was regularly permitted to dispute the arrest and act as his own vindex (lex Vallia), so that arrest, except on a judgment-debt, became simply a method of opening a suit—manus iniectio pura. Cf. Gaius , Inst. iv. 21-25.

The legis actio sacramento (also sacramenti and per sacramentum), on the contrary, was from the outset a suit in the modern sense. It was the regular form of procedure (actio generalis) for obtaining a decision in a case of disputed right. (Cf. Gaius, Inst. iv. 13-17.) The plaintiff summoned the defendant to appear before the magistrate—in ius vocatio. If the latter refused to come he was treated as having confessed judgment, and the plaintiff might proceed to manus iniectio, a rule which insured prompt compliance with the plaintiff's summons. The litigants stated their case by the use of set and formal phrases, accompanied by ceremonial acts. The forms varied according to the nature of the suit. (a) If a property right is in dispute (actio in rem), the plaintiff asserted his right, and the defendant replied by a counter-assertion of right, the assertion in each case (and hence the action itself) being termed vindicatio. Cases of disputed right over wife or children, as over slaves, were treated as proceedings in rem (family rights not being distinguished from property rights); but here the vindicatio of one of the parties might be in libertatem, i. e. he might assert that the person claimed as slave or child or wife was really free from potestas or manus. In all these vindicatory proceedings each party held a staff (fistuca), which, according to Gaius , represented a spear (quasi hastae loco), and the entire ritual suggested an impending appeal to the ordeal of battle. But at this point the magistrate enjoined peace, and the antagonists challenged each other to wager a certain sum (sacramentum, 50 or 500 asses, according to the value of the object in dispute) on the truth of their respective assertions. Each party presented sureties (praedes) for the payment of the sum wagered. The magistrate then dabat vindicias—i. e. assigned the person or thing in dispute to the custody of one of the litigants, who presented sureties for its redelivery in case sentence should be rendered against him. Where a question of liberty was at stake, ancient usage, confirmed by the Twelve Tables, assigned the custody of the person secundum libertatem, i. e. to the party asserting liberty (cf. the case of Virginia, Livy, 344; Dig. 1, 2, 2.24); and provided that in such cases the smaller sacramentum of 50 asses should always be employed. (b) It is probable that where manus iniectio had been initiated against a debtor and a vindex intervened, the latter used the forms of the vindicatio in libertatem; and Brinz conjectures that there was originally no other means of testing a question of debt by actio sacramento (Grünhut's Zeitschr. i. 23). But according to the ordinary opinion, based on Gaius , Inst. iv. 13-15, 20, and Valer. De Iuris Not. Signif. iv. 1, 2, the sacramental action ran in personam, for the recovery of a definite sum owed, whether on contract or by reason of tort, and without vindicatory forms, the plaintiff asserting and the defendant denying the debt, and each then challenging the other to the customary wager. In both cases, whether the action was in rem or in personam, the proceedings in iure, i. e. before the magistrate, closed up with litis contestatio, i. e. the calling in of witnesses to attest the issue raised by the pleadings; and the case was then sent for trial to a iudex or body of iudices. These had only to find that the sacramentum of the one party was iustum, that of the other iniustum. The sum wagered by the defeated party fell into the public treasury.

Another true suit was the legis actio per iudicis arbitrive postulationem, which opens with a direct request for the appointment of a iudex or referee. This was probably the form of action used whenever the direct averment of a definite right was impossible, e. g. when the sum in dispute was uncertain, or when it was necessary to draw the line between opposing rights, e. g. to determine boundaries or to divide an inheritance.

The latest of the legis actiones, established by a special statute (lex Silia) was that per condietionem, called also simply condictio. It was simpler in form than the actio sacramento; ran for the recovery of any definite sum of money (certa pecunia), and later (by a lex Calpurnia) of any definite object (omnis certa res); and provided roughly for the payment of damages to the victorious party, each antagonist promising the other at the beginning of the suit to pay a penalty of one-third of the amount in litigation in case the division went against him (stipulatio et restipulatio tertiae partis).

The legis actiones were so called, according to Gaius , either because they were introduced by leges or because the pleadings were based upon the language of the leges, and were observed like laws ( Inst. iv. 11). The former explanation, at least, is untrue. All the legis actiones, except the condictio, are obviously older than the Twelve Tables. They were of customary origin, and the special forms employed were worked out by the pontifices. This is particularly clear in the case of the actio sacramento. Sacramentum is properly an oath, not a wager; and it is clear that in the original form of this action a religious issue was raised for priestly decision by the opposition of the oaths of the two parties. Even after the Twelve Tables, the pontifices controlled the forms of action, and all the details of procedure until a.u.c. 450, when a book of forms, drawn up by Appius Claudius Caecus, was published (populo traditus) by his client, the scribe Cn. Flavius. The law of civil pleadings then came to be known as ius Flavianum (Livy, ix. 46; Dig. 1, 2, 2.5, 6). A century later Aelius Paetus Sext. published, in his Tripertita, the text of the Twelve Tables, the established pontifical interpretatio, and a revised formulary of actions (ius Aelianum).

Procedure in Iudicio.—The legis actiones were really only forms of pleading. All that took place in iure before the magistrate served simply to define the issue. The actual trial of the suit took place before a special iudex selected by the parties or appointed by the magistrate, or before a standing body of elected iudices, where the case fell under the special competence of such a board (cf. Centumviri; Decemviri). Proceedings in iudicio were minutely regulated by the Twelve Tables. The parties were to appear before noon of the day set for trial. In case of the absence of either, sentence was rendered in favour of the party present. Both parties appearing, each briefly stated his case (causae coiectio), and then each submitted a fuller argument (peroratio) with evidence. The decision had to be reached by sunset.

Execution of Judgment.—The iudices were not magistrates, and they could issue no commands. They simply expressed an opinion (sententia) on the issue submitted to them. If the sententia sustained the plaintiff's claim and the defendant failed to satisfy judgment within 30 days, the plaintiff (his right being now clear) proceeded to arrest the debtor (manus iniectio pro iudicato). If no vindex intervened the creditor held the debtor in chains for 60 days, leading him out in comitium on three successive market-days (trinis nundinis continuis) and proclaiming the amount of the judgment. After this, judgment being still unsatisfied, the debtor was sold into foreign slavery (trans Tiberim). If there were several creditors they might cut him in pieces. This latter provision of the Twelve Tables, the ancients asserted, was never enforced; and some moderns have tried to explain it as referring to the estate, not the person, of the debtor. The right of selling the debtor was commuted, either by custom or law (lex Poetilia?) into a right of holding him to work off the debt, and ultimately into a simple right of imprisonment.

All the legis actiones were iuris civilis, and could not be brought by or against foreigners. Where the private rights of the latter were guaranteed by treaty a special form of action was provided for their protection—the recuperatio. As in the case of the civil actions, the preliminary pleadings took place before a magistrate, and the decision was referred to special judges called recuperatores.

For full description of the legis actiones, see Muirhead, Roman Law, pp. 181-235.


2.

The Praetorian Formula.—Towards the end of the Republic the legis actiones were almost wholly superseded by a new and freer system of pleading worked out by the praetors—the procedure by formula. It probably originated in the courts established for non-citizen subjects of Rome (peregrini dediticii), who could not proceed according to the ius civile of Rome, for they had no share in it; nor by their own civil laws, for they had lost these by the overthrow of their civitates; nor by recuperatio, for they enjoyed no treaty rights.

In fact, there was for them no law save that which the Roman magistrates—the praetor of the Peregrini at Rome and the Roman governors in the provinces—saw fit to make for them. It therefore became usual for the magistrate, after hearing what the parties had to say, to send the case to a iudex, with instructions to investigate such and such allegations of the parties, and if the allegations of the plaintiff appeared true, and those of the defendant untrue, to condemn the defendant. The advantage of this freer form of procedure proved so great that it was extended by a lex Aebutia and two leges Iuliae (Gaius , Inst. iv. 30) to suits between Romans. It then became possible for the city praetor either to instruct the iudex to decide according to the old civil law (formula in ius concepta) or according to the freer principles of the ius gentium (cf. Ius), in which case the formula was in factum concepta. The formula in factum concepta was thus in reality a law-making formula; it was the instrument by which the praetor carried through the reforms which were embodied in the edict. In proportion as the praetorian law came to be recognized as ius, this distinction faded; and in the earlier Empire actio in factum came to mean a special action, outside of the established forms (cf. below, actio utilis). The formula was always addressed in writing to the iudex, and was cast in hypothetical form. The essential allegations of the plaintiff—his statement of facts (demonstratio) and his assertion of right (intentio)— were set forth as supposititious; if they proved true, the iudex was to condemn the defendant (condemnatio). If the defence consisted in a general denial, no mention of it was necessary in the formula; but if the defendant alleged special reasons why the plaintiff's claim could not be legally or equitably enforced, these were submitted to the iudex in an exceptio. Counter-allegations by the plaintiff might also require mention (replicatio), and so on, possibly, to a triplicatio; the allegations of the plaintiff appearing regularly in the positive form, si, aut si, nec non, etc., and those of the defendant in the negative, nisi, nec, etc. Where, as in partition suits, it was desirable that the referee should assign certain pieces of property to one or the other of the parties, a power to do this was inserted (adiudicatio). The praetorian formula was equally applicable to actions in rem and in personam. It always ran, indeed, for condemnation in money damages; but where the plaintiff was suing to recover property, the iudex was empowered to advise restitution (arbitrium restituendi), and to condemn in exemplary damages if his advice was not obeyed. The written formula did away with the necessity of litis contestatio in the old sense, but the term was retained to designate the conclusion of proceedings in iure.

Procedure in iudicio remained substantially unchanged. Argument by professional advocates (oratores) became usual in important cases, and hearings might be continued from day to day. Execution of judgment still took place by the arrest and imprisonment of the debtor. Levy on the entire estate was introduced in cases of bankruptcy, but the seizure of single articles to satisfy judgment did not appear until the Imperial period. By voluntary cessio bonorum a debtor might escape the infamy which attached itself to forced bankruptcy, and by an oath of poverty (eiuratio bonae copiae) he freed himself from imprisonment.

In spite of the development of the formula, the legis actio sacramento was employed in the Imperial period in two classes of cases: (a) where the decision was to be rendered according to the ius civile and by the centumviral court (Gaius , Inst. iv. 31); (b) where a sham suit was employed for purposes of emancipation, adoption, etc. In the later Imperial period the use of legis actio was confined to this second class of cases, and the term came to mean the authority of a magistrate to preside over and legalize such transactions, being thus equivalent to iurisdictio voluntaria.

For fuller account of procedure by the formula, see Muirhead, Roman Law, pp. 357-377; Sohm, Institutes, pp. 163-212.


3.

Iudicia Extraordinaria, characteristic of Roman precedence, both by legis actio and by formula, was the separation of ius and iudicium, i. e. of the pleadings and the actual trial. This ordo iudiciorum (privatorum), which took the decision of the case out of the hands of the magistrate and placed it in those of a free and independent citizen, was regarded by the Romans of the Republic as one of the chief bulwarks of personal liberty. In the Empire this ordo iudiciorum was first undermined and then swept away. Procedure extra ordinem, where an imperial official hears the evidence as well as the pleadings and himself renders the decision, appeared at the beginning of the Imperial period, both in special cases where new remedies were granted, and for the more speedy decision of all sorts of cases. Later it became usual, even in the ordinary courts, to select persons attached to the court (assessors or advocates) for services as iudices, private citizens being excused from this duty. The presiding magistrate and those subaltern iudices hear the entire case together, both the pleadings and the evidence, and the iudices retire pro forma to render the decision.

The formula thus became unnecessary, the iudices having heard the pleadings. In other cases the hearing of pleadings and evidence was delegated from the outset to a iudex. Constantine forbade such delegation when the magistrate was able to try the case himself. With this implied recognition of the power of the magistrate to render sentence, the distinction between ius and iudicium disappeared; and in the time of Justinian all iudicia were declared to be extraordinaria.

Execution of judgment took place in the later Empire—manu militari, i. e. by officers of the court, and was always directed primarily against the estate and only in second instance against the person.


4.

Classification of Actions.—Through all the periods of Roman procedure a sharp distinction was drawn between actions in rem or petitiones, which are based on some right in the thing and run against all who interfere with this right, and actions in personam, which run against a particular person and his legal successors by reason of something which he has done to bind himself (se obligare), e. g. his contract or tort (delictum)—actions which logically ran in personam only, but which were made to run in rem (e. g. actio quod metus causa)—were termed actiones in rem scriptae. Actiones mixtae were such as ran at the same time for recovery of property and of a penalty, or for the recovery of debt and penalty; but the same term was also applied to cases in which both parties might be regarded as being at once plaintiff and defendant, and in which either or both parties might be condemned (e. g. actions of partition). Actio certa (condictio certi) ran for the recovery of a definite object or sum; incerta, for unliquidated damages. Actio directa is the action which regularly arises from a contract or other legal act; possible counter-claims, growing out of the same transaction, are enforced by actio contraria. Actio directa was also used to designate an established and familiar form of action, in distinction from actio utilis or in factum (cf. the English “action on the case”), which is given where no established action lies—ad exemplum actionis directae. The relation of an adapted and widened action to the earlier and narrower remedy was often expressed by quasi (e. g. actio Serviana, quasi-Serviana); actions in which the iudex was instructed to decide what was due on grounds of general equity (ex fide bona) were called bona fide actiones, in distinction from actiones strictae or stricti iuris. Actio civilis, legitima was one that lay at ius civili; actions created by the praetors or aediles were termed honorariae. Actiones temporales, temporariae, were such as must be brought within a certain time after the right of action arose. All others were perpetuae. In the later Empire all actions were subject to limitation or prescription, but those which ran for thirty or more years were still termed perpetuae. Actio popularis was one in which any citizen might appear as plaintiff. Such actions were designed to secure some public interest. They resembled the ordinary (private) actions only in that the penalty recovered usually went in whole or in part to the plaintiff. Actio praeiudicialis, cf. Praeiudicium.

The best manual of Roman civil procedure is Von Keller's Römischer Civilprocess (6th ed. by Wach, Leipzig, 1883; French translation by Capmas, Paris, 1876).

Also see Judicial Procedure. For Greek actions, see Diké.

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