previous next


AC´TIO An action or proceeding in the technical sense is the lawfully recognised mode of enforcing one's rights, and usually took place under the control of a magistrate and in forms prescribed by the law. Three principal systems of judicial procedure prevailed successively among the Romans, the first however continuing along with the second for certain classes of cases.

I. The first mode has to be collected principally from the fragments of the Twelve Tables and the mutilated account of Gaius, 4.11 foll., whose statements however may not be perfectly accurate respecting the early times. The sources are so meagre that a good deal of assumption is necessary, and there is no part of the history of Roman law which has given rise to more discussion and to greater divergences of opinion. A plaintiff summons his opponent into court: if he does not go, the plaintiff calls a bystander to witness the summons and refusal, and then takes the defendant by force if he shirks or resists. If illness or age prevents his going, the plaintiff has to provide a beast to carry (or draw?) him, but is not obliged to furnish a cushioned car if he does not choose. ( “Si in jus vocat, ito: ni it, antestamino: igitur em capito: si calvitur pedemve struit manum endo jacito. Si morbus aevitasve vitium escit qui in jus vocabit jumentum dato; si nolet arceram ne sternito.” XII. Tab.; cf. Gell. xx. i. “Pedem struit” was explained by Serv. Sulpicius as meaning fugit: perhaps “fixes his foot” was the real meaning; cp. Fest. p. 313.) The antestatio was accompanied by the plaintiff's touching the ear of the witness, as a symbolical way of bidding him listen to the summons (cf. Hor. Sat. 1.9, 76; Plaut. Pers. 747, 748). The defendant had two courses open to him in lieu of obedience ; viz., he might either find an adequate defender (vindex, Gai. 4.46 ; Lex Rubr. 21) to accept suit in his place, or he might settle the difference at once (Dig. 2, 4, 22). For a proletarius (i. e. a citizen assessed at not more than 1500 asses) any one might serve as vindex; a richer defendant required a richer vindex. ( “Assiduo vindex assiduus esto; proletario jam civi qui volet vindex esto,” XII. Tab.; cf. Gel. 16.10 ; Cic. Rep. 2.22 The words, however, are by some referred to a different stage of the proceedings ; cf. Demotius and Lenel in Zeitschrift für R. G. xv.) If no settlement was made, then, if we may trust the scanty fragments of the Twelve Tables, both parties before noon, either in the comitium or in the forum, stated their case (causam coiciunto). If one was present and the other not, the property in question was after noon assigned to the one present. The proceedings were not continued beyond sunset; and if the case was not concluded, bail (vades) was given for future appearance. Gaius (4.16, 17) gives us fuller though still imperfect information of the proceedings in court. If some piece of property was in dispute--e. g. a slave, an animal, or some other movable article--it was brought into court. If it was a flock of sheep, one sheep or a lock of wool was brought in; if it was land or a house or ship, a sod or brick or piece of the ship was brought in, and these were made the subjects of the formal acts just as if they were the whole of the property in dispute. Then the claimant, holding a rod (festuca), laid hold of the slave or other article claimed, and said, “Hunc ego hominem ex jure Quiritium meum esse aio secundum suam causam. Sicut dixi, ecce tibi vindictam imposui,” and at the same time put his rod upon the slave, thereby giving physical expression to the claim contained in his words, 4 “sicut dixi;” cf. Liv. 8.9.8. (Some connect “sicut dixi” with “suam causam,” and both are by some put with what precedes, by others with what follows.) “Ecce tibi” (See you there) is addressed to the defendant. The thing was claimed subject to special grounds or restrictions ( “secundum suam causam :” cf. Dig. 13, 7, 18.2; 44, 2, 11.2, &c.). The rod represented a spear, which was the symbol of the most absolute right of ownership, that acquired by conquest in war. A similar claim (vindicatio), with like words and gestures, was made by the other party, and there was thus a symbolical strife (manum conserebant) over the thing. The praetor bade them take their rods off; which being done, the first claimant demanded of his opponent on what ground he had made his claim; the other answered, “Jus feci sicut vindictam imposui.” The former then replied by denying the rightfulness of the other's claim, and challenging him to a trial by the devotion (sacramento) of fifty pounds of copper (asses), or, if the property was worth 1000 pounds or more, by the devotion of 500 pounds. The other claimant then went through the like forms and made the same challenge. The praetor assigned the possession of the disputed thing itself (not its representative in court) to one of the parties, and ordered him to give sureties to [p. 1.15]the other for the eventual delivery, if the possessor were defeated, of the thing itself, and of any profits which accrued before the final decision of the case. These sureties were called “praedes litis et vindiciarum, id est” (as Gaius says, § § 16, 94) “rei et fructuum.” Further bail was demanded by the praetor from both parties for the amount devoted, as that was forfeited by the losing party to the public treasury.

The next step was for a judge to be appointed to try the case. This before the Lex Primaria (A.U. 282? 322?) was done immediately, but by that law notice was given to come to court on the thirtieth day to have a judge appointed (ad judicem accipiundum). On the judge being appointed, notice was given of trial on the next day but one (comperendinum diem denuntiabant). They appeared before the judge and stated their case briefly, and then proceeded to the fuller statement. This causae conjectio, or brief statement, is spoken of by Gaius as occurring before the judge. How witnesses were summoned, and generally what was the procedure for supporting a case by evidence, is not told us. A fragment of the Twelve Tables, cuitestimonium defuerit is tertiis diebus ob portum obvagulatum ito, may perhaps belong here, but its purport is obscure. Serious illness (morbus sonticus), or an appointment for a trial with a foreigner (status condictus dies cum hoste), whether affecting judge or defendant (or plaintiff, Festus v. rem), was a good ground for adjournment (Cic. Off. 1.1. 2; Gel. 20.1.27).

Gellius (20.10) tells of a time when the praetor accompanied the parties to the place where the thing (e. g. a piece of land) was, and the formal claims at least were made on the spot. When the territory grew and the praetor became more occupied, the parties left the court and went to the place and brought a turf or piece of the disputed property into court. A still later stage is given us in Cicero's satirical attack on lawyers in the speech pro Murena, 12. After the claim is made to a field in the Sabine territory, the claimant proceeds, Inde ibi ego te ex jure manum consertum voco--“Thereupon (inde) I summon thee there (ibi, perhaps only an enclitic to inde: Karlowa, C. P. p. 79, note) to join hands in accordance with law.” (So Huschke, Z. R. G. 7.186; others generally take ex jure, “out of court.” ) The opponent retorts, Unde tu me ex jure manum consertum vocasti, inde ibi ego te revoco--“I in turn call you,” &c. The praetor then says, Suis utrisque superstitibus praesentibus istam viam dico: ite viam--“Each party having their witnesses present, I order you that way; go ye that way;” and immediately afterwards, “Come back that way.” The proceedings had then become a mere formality, the parties not leaving the court; and probably any article serving as dummy for the distant property, or even for the clod, its original representative.

But this sacramenti actio was applicable, not only to suits in which claims to the ownership of property were urged, but also to claims upon particular persons, e. g. to repay loans, or to pay compensation for injuries done by them, &c. Gaius' account is mutilated, but the ritual was probably as like the other as circumstances allowed. In Valerius Probus (ed. Kruger, p. 144) we have probably some of the phrases preserved, beginning with Aio te mihi dare oportere, and followed by a sacramental challenge. Different reconstructions may be seen in Huschke's edit. of Gaius, 4.5; Rudorff, Röm. Rechtsgesch. 2.21 (p. 78); Karlowa, Civil-Prozess, p. 110, &c.

The distinctions just referred to between actions in rem and in personam are of great importance. An action in rem is a suit to establish your right to a particular thing or animal, or to a share of a particular thing, or your right to use a road, or to take water, or enjoy uninterrupted light, or to establish a personal right, such as liberty. Such claims or suits are maintainable against all the world, though in practice they are brought only against those withholding the possession or enjoyment, or disputing the right. But an actio in personam is a right only against a certain person or persons who by some act or omission on their part have become bound (obligatus) to us. The obligation may have arisen from a contract, or from a tort (delictum), i. e. an injurious act for which they are bound to make reparation, or from some course of action or neglect which in the eye of the law is tantamount to a contract (quasi ex contractu), or tantamount to a tort (quasi ex delicto). By a real action (actio in rem) we claim rem nostram esse or jus aliquod nobis competere; by a personal action (actio in personam) we claim that some one dare oportere. If we sue for a field, we cannot say that the possessor ought to give it us, for we say it is ours (i. e. our property) already; if we sue for the repayment of a loan, we cannot say that the money is ours, for our money (i. e. our actual coins lent, cf. Lex Rubr. 21 n.) is spent, and what we claim is that a like amount be handed over to us, to become thereby our property. Real actions are called vindicationes; personal actions (at least of some kinds) were called condictiones in the wider sense of the term (Dig. 44, 7, 25, pr.).

The second legis actio named by Gaius is that per judicis postulationem, but his account of it is lost. It is reasonable to suppose that this was the proper proceeding when an inheritance was to be divided among co-heirs, or boundaries to be regulated between neighbours, or accounts to be taken between guardian and ward, or like matters required judicial administration (cf. Rudorff, Röm. R. G. 2.22). The ridicule of Cicero (Cic. Mur. 12), and the formula given by Valerius Probus, te praetor judicem arbitrumve postulo uti des, have led some to think that this proceeding was alternative to the actio sacramenti, and applicable whenever a party was in some uncertainty about the extent of his rights; and fearing the loss of his case, and consequently of his sacramentum, if he claimed too much, sought authoritative arbitration. An analogy for this view is found in proceedings for an injunction (Gai. 4.163 foil.). Or again, in many cases, whether of personal or real actions, an assessment of damages for the breach of contract or for the tort, or for the value of the property rightfully claimed but not duly restored, would be necessary, and an arbiter liti aestimandae (so in Valer. Prob.) might be demanded. But nothing is really known. (Gaius' criticism of the actio per condictionem (4.20) has been wrongly taken to imply that the process per judicis postulationem, as well as the sacramenti actio, was applicable to claims for sums of money certain, or other certain things. But Gaius has chosen [p. 1.16]to speak of the whole sphere of quod dari oportet, and this sphere comprises certain and uncertain claims, some of which are enforceable by actio sacramenti, some per judicis postulationem, some by both.)

The third legis actio is per condictionem. Apparently the first stage of the formal proceedings before the praetor was dispensed with, and the action was commenced by notice (condictio = denuntiatio) by the plaintiff to the defendant to appear on the thirtieth day to have a judge assigned. (Many writers, however, on account of Gai. 4.29, think unnecessarily that this notice and all proceedings took place in court.) This proceeding per condictionem was introduced by the Lex Silia for a claim to an amount of money certain, and extended by the Lex Calpurnia to a claim for any certain amount. Gaius (4.20) was ignorant of any good reason for introducing such special procedure. But besides the above-named shortening of the process, two other characteristics of the new procedure have been suggested with great probability, viz., (1) that either party might tender an oath to the other as to the truth of his contention, and thereby all further proof be saved; and (2) if this were not done, a wager to the amount of one-third of the sum in question should be entered into, and thus the risk to the wrongful party be increased. There can be no doubt that the actio de pecunia certa credita or si certum petitur is the continuation of the legis actio per condictionem lege Silia (cf. D. 12, 1, rubr. and 13, 3, 1). Then the position of the title de jurejurando in the Digest (D. 12, 2; cf. Paul. Sent. 2.1) and certain passages of Plautus (Rud. 14 sq.; Pers. 478; Curc. 496) go far to prove the first characteristic: and the use of legitimae in Cic. Rose. Com. 4.14, compared with ib. § 14; Gai. 4.171, go far to prove the second (Rudorff on Puchta, Curs. § 162 f; Huschke, Multa, p. 501). The condictio triticaria (D. 13, 3) is clearly the continuation of the action created by the Lex Calpurnia. The name condictio was afterwards applied to other personal actions, excepting bonae fidei actions, civil actions arising from torts, and praetorian actions on the case (cf. Savigny, Syst. v. p. 503 sqq.; Bethmann-Hollweg, ii. p. 274).

Of the fourth legis actio (per manus injectionem) we have a fuller account in Gaius, 4.21-25; Gel. 20.1.42 foil.; and the recently discovered Lex Ursonensis, cap. 61 (Bruns, pt. 1.3, 9). It was the early form of execution of a judgment, and was sanctioned by the Twelve Tables. If a man admitted the debt, or if judgment was given against (him, the plaintiff laid hold of him, stating in a recognised form the fact of the judgment or admission, and the amount thereby due. The defendant then had two courses only open to him, either to pay the amount, or to find a vindex who would take legal measures in his defence, and in fact assume entire responsibility in his stead. He was no longer allowed to defend himself. (The words of the Twelve Tables as to the sufficiency of the person coming forward as vindex would apply here also; according to some writers, here only.) If neither course was taken, he was assigned (addicebatur, Gell. l.c.) to the plaintiff, who led him off to the plaintiff's house (secum ducito), and bound him either in the stocks (nervo), or with shackles on his feet (commpedibus), the weight of the shackles to be not less (more?) than fifteen pounds. The prisoner might, if he chose, find his own provisions; if he did not, his creditor had to give him at least a pound of corn (far) a day. This position lasted, if debtor and creditor did not come to terms, for sixty days, during which he had to be produced on three market days in succession before the praetor in the comitium, and the amount of his debt declared. On the third occasion, if the debt was not paid, the final step was taken. Sext. Caecilius (Gell. l.c.) describes it thus, the debtors capite poenas dabant aut trans Tiberim peregre venum ibant. If there were more creditors than one, the Twelve Tables declared tertiis nundinis partes secanto: si plus minusve secuerunt se fraude esto, which was taken by Sext. Caecilius and Quintilian (3.6.84) to mean that the creditors might slice the debtor's body, without incurring any risk if they happened to cut more or less than their share. Sext. Caecilius says (so also Dio Cass. Fragm. 17.8) that he never read or heard of this actually taking place. This view has been adopted by most modern writers (Kuntze, Excurs. p. 140, ed. 2, quotes some analogies from old German law), but is opposed by Huschke (Nexum, p. 89), Schwegler (R. G. 3.38), Karlowa (Civ. Proc. p. 163), and Münderloh (Z. R. G. xii. p. 196). Comparing such expressions as sectio oppidi (Caes. Gal. 2.33), sector Pompeii (Cic. Phil. 2.26), sectio alicujus (Varr. L. L. 2.10.4), we may reasonably translate “they shall make a dividend,” and may apply the words to the proceeds of the sale of the debtor's person and his property. Münderloh gives as the meaning of the clause si plus, &c., that whether the dividend each creditor got came to more or less than the amount of his debt, there was no further responsibility of the debtor to him or of him to the debtor. In the case of a single creditor, the debtor would probably not be killed, but either be sold, or kept and made or allowed to work off his debt. At any rate the class of addicti are spoken of as numerous (Liv. 6.27, 9, &c.). Neither Gaius nor the Lex Ursonensis mentions any further proceedings after the debtor was vinctus by his creditor, the old procedure having been long altered--as is generally supposed, by a law passed in A.U. 428, commonly called Lex Poetelia. Savigny considered the manus injectio and its consequences to have been originally confined to debts for money borrowed (Verm. Schr. ii. p. 206 foll.).

Gaius states (4.22) that the procedure per manus injectionem was made by a Lex Publilia applicable against any one who had not within six months reimbursed his surety (sponsor) for money expended on his behalf, and by many other laws in other cases. Thus a recently discovered inscription at Luceria (Bruns, pt. 1.3) forbids defilement of a grove under penalty of manus injectio. Other laws made the procedure applicable, but in a modified form, to further cases. The words pro judicato were omitted in the formal declaration, and the effect was that the debtor was then not disabled from making his own defence. The same relaxation was by a Lex Vallia introduced in all cases, except only the case of a judgment-debtor, or of one who had not repaid his surety. For them the harshness of the old law continued as long as this legis actio lasted.

It thus appears that agere sacramento was [p. 1.17]probably the normal way of conducting a suit at law, and applicable generally to all disputed claims which admitted of being brought to a simple issue. The postulatio judicis was probably applicable to matters where several persons in common sought authoritative arrangement or distribution. The condictio was probably a summary method of enforcing a perfectly simple claim for a liquidated amount. The manus injectio was a mode, originally perhaps the only mode, of obtaining execution of a judgment. But lege agere is used also of surrender in court (in jure cessio) because the form of a real action is applied to effect an amicable conveyance (Gai. 2.24 foll.). Most lawyers, Gaius tells us (4.29), reckoned as a legis actio the old proceeding of seizing a pledge (pignoris capio), but only on the :ground of its being accompanied by a declaration in set words. Others objected to ranking it as a legis actio, because it was not done in court, it was often done in the absence of the debtor, and it might be done on any day, even on those when lege agere was not allowed. These objections seem decisive.

The rigour of the statutable actions is given by Gaius as the reason why they went out of use. The smallest error was fatal to a man's case (4.30). The very words of the statute had to be strictly followed (ib. 11); a suitor must appear in person, and could not be represented by any agent or attorney, except in certain cases (ib. 82). (What they were is much disputed, see Keller, Röm. C. P. 254, ed. Wach. The vindex was not so much the representative of the defendant as a new defendant in his room.) Whenever security had to be given, personal sureties were required (ib. 94). A suit once brought could not be brought again on the same matter, and there was no such use of equitable pleas against the strict technical right as was allowed in Gaius' time (ib. 108). Yet in some way it must have been possible for a defendant, e. g., to show that he was a minor, and by the Lex Plaetoria was not liable on a loan; or that the action had been tried and decided before; or that he had never received the loan which the stipulation on which the plaintiff was proceeding was intended to secure. The general view among modern lawyers is that such matters were urged before the magistrate, who, if he found them valid, refused to allow the legis actio; and that if investigation were needed, a wager (sponsio) to determine the point was entered into between the parties (cf. Sell. de exceptionum usu, 1875; B.-Hollweg, 1.338, citing Plaut. Rud. 5.3, 22 sqq.). Others maintain that all, or at least some, such grounds of defence were made the subject of a counter action, the possibility of which was often enough to deter the plaintiff from proceeding with his unjust claim (Ihering, Geist, 3.52; Karlowa, C. P. § 46). Huschke, but in a special way, favours the former view (Multa, p. 224). Be that as it may, the whole system of the legis actiones, as a form of contentious procedure, went out of general use under the influence of the Lex Aebutia (date quite uncertain; generally put between 150 and 250 years B.C.) and two leges Juliae (perhaps of Augustus). The actio sacramenti was retained in suits before the Court of the Hundred Men (centumvirt), and an action on the statute might be, but in practice was not, used in the case of damnum infectum (Gai. 4.30).

The non-contentious procedure on the statute remained, and could be exercised not only before the praetor, but also before a consul (D. 1, 10), a proconsul (ib. 16, 1. 1), a governor of a province (ib. 18,1. 10) and a juridicus (ib. 20). Adoption and emancipation were acts which could take place before those magistrates apud quos legis actio fuit (cf. D. 1, 7,1.4; 16,1.2; 1.3; Gel. 5.19.3), and hence are often regarded as themselves forms of non-contentious “proceeding on the statute.”

In Cicero lege agere or agi is used in Div. c. Caecil. § 19, of proceeding under the lex de provinciis repetundis, but in general appears to refer to the suits under the statute of the Twelve Tables, i. e. to the actio sacramenti (de Or. 1.36, 167; Verr. 1.45, 115; 2.16, 39; Caecin. 33, 97; Mur. 11, 25). So in Plautus (Mil. 453; Aut. 458; Ter. Phorm. 984). In Liv. 26.15, lege agito, addressed to a lictor, is probably merely equivalent to “execute the law.”

II. Per formulas litigare. The procedure on the statute was succeeded by a method more flexible, and better adapted to promote a judgment on the merits of a case. The change consisted in omitting the ancient ceremonial, and giving the praetor power to state the issue to be decided in a way which would enable the equitable claims of both parties to be duly regarded. The proceeding commenced as before by a summons given by the plaintiff to the defendant to appear in court, and non-appearance was visited by the praetor with a fine (D. 2, 5, 2, pr.). Future appearances after the first were secured by his being compelled to enter into a formal arrangement for this purpose. The defendant was said vadimonium facere, the plaintiff vadari reum. Such vadimonium was defined by the edict according to circumstances: either a simple promise (purum vad.), or a promise secured by bail (vadus), or an oath, or a forfeit, the amount of the forfeit being usually fixed by oath of the plaintiff, but in case of a judgment debt, or of money actually paid out, it was the value of the matter in dispute (Gai. 4.186). Persons of certain official dignity were exempt from liability to summons; so also parents and patrons, and any persons actually engaged in attending a funeral, or being married, or keeping close in their own house (D. 2, 4, s. 2; s. 4; s. 18; s. 19). On the parties appearing and stating the nature of their case the praetor appointed a judge or judges to determine the questions of fact, and gave him instructions which showed both the claim of the plaintiff, so far as it deserved legal recognition, and the duty of the judge if the facts were found to support or negative the claim. These instructions were comprised in a short formula, varied according to the equities and circumstances. The essential parts of it were two: the claim (intentio), and the judge's duty (adjudicatio or condemnatio). Frequently the matter in question required to be briefly stated: this was called demonstratio. Then came the claim. If the suit was one for partition of an inheritance or of any common property, or for defining the borders of neigbouring estates, the formula closed with a direction to the judge to adjudicate this or that thing or part to the claimant or to the defendant. In other cases it closed with a condemnatio or absolutio, i.e. with a direction to the judge, if certain things were found to be or not to be the fact, to [p. 1.18]order the defendant to pay so much money as damages to the plaintiff, or to acquit the defendant of all liability. Occasionally, where a preliminary question has to be decided (praejudicium) this question might be stated simply by itself, e.g. An A. Agerius libertus sit? or Quanta Marciae dos sit? Gaius (4.44) considers in these cases the formula to consist of the intentio only. As an example of a simple formula, we may take this.

L. Titius judex esto.

Quod A. Agerius N. Negidio hominem vendidit, (Demonstratio

Si paret N. Negidium A. Agerio sestertium x milia dare oportere, (Intentio

L. Titi, N. Negidium A. Agerio sestertium x milia condemna: si non paret, absolve. (Condemnatio.

As an example of a formula in a suit for partition may be taken this (which is partly hypothetical).

L. Titius judex esto.

Quod fundus Cornelianus A. Agerio et N. Numidio communis est, (Demonstratio

Quantum ejus fundi A. Agerio adjudicari oportet,

Tantum Titius A. Agerio adjudicato; reliquum N. Numidio adjudicato. (Adjudicatio.) Gai. 4.42.

A distinction of much importance in many respects is found in the issue raised by the claim (intentio). It may state a matter of fact, and then the formula is said to be in factum concepta; or it may state a question of law, formula in jus concepta. It is an issue merely of fact if, e. g., the plaintiff asserts that the defendant has been duly cited and has not appeared in court, nor produced an adequate representative (vindex, Gai. 4.46). An issue of law is raised if the plaintiff asserts, e. g., that anything is his property, or that something ought to he given to him; the first being a real action, the second a personal one, but both raising a question as to the legal right of the plaintiff. In the case of a deposit or a loan (commodatum), the formula might be shaped either way. If the complaint was merely of the refusal to restore a thing deposited with the defendant, or lent to him for use, the facts only of deposit (or loan) and non-restoration required to be proved to entitle the plaintiff to judgment in his favour. The formula then, in the case of a deposit, runs thus (Gai. 4.47):

L. Titius judex esto. Si paret A. Agerium apud N. Negidium mensam argenteam deposuisse, eamque dolo malo N. Negidii A. Agerio redditam non esse, quanti ea res erit, tantam pecuniam judex N. Negidium A. Agerio condemnato: si non paret, absolvito.

It is true that the second fact thus stated is not quite a simple one, for an article returned in a damaged condition was deemed to be not returned, and dolo malo “ maliciously ” is a qualification which both restricts and amplifies the conception of non-restoration. Still the question is one which, as we should say, is a question for the jury. Has the defendant restored, or honestly done his best to restore, the article deposited?

The formula in jus concepta has a wider range of considerations:--

L. Titius judex esto. Quod A. Agerius apud N. Negidium mensam argenteam deposuit, qua de re agitur, quidquid ob eam rem N. Negidium A. Agerio dare facere oportet ex fide bona, ejus judex N. Negidium A.Agerio condemnato; si non paret, absolvito. (We have omitted the words nisi restituat, given in many editions of Gaius, because they are very doubtful: cf. Keller, Inst. p. 115). Here the fact of deposit is not put in issue, presumably because it was not disputed. But by the formula so shaped the judge is directed to decide upon the whole of the mutual obligations created between the two parties by the deposit, and to give judgment, not for the value of the table, but for less or more according to circumstances.

In the case of all formulae the condemnation “sounds in damages” ; it directs not this or that act to be performed, but, if the sentence is against the defendant, a sum of money to be paid. The injury, be it what it may, is estimated at its money value, and this money value it is for the defendant to pay. Sometimes a fixed amount (certa pecunia) is stated in the formula as the damages; sometimes it is left uncertain and indefinite, and the judge has to ascertain it; sometimes a maximum is named (e.g. dumtaxat sestertium x milia). The judge is bound to give judgment for a specific sum of money, neither exceeding the amount if a maximum is named, nor varying at all from it if a specific sum is named, nor leaving the amount undetermined if the amount is left uncertain in the formula. In the first two cases, if he does so, he is said to make the suit his own (litem suam facit, Gai. 4.52; D. 4, 13, 6), i. e. he is responsible to the injured party for his malfeasance. In actions for a thing (in rem) or for the production of a thing (ad exhibendum) and in many bonae fidei actions, the judge might, and naturally often would, direct the restitution or production of the thing, or proper security for future action, and only in case this was refused condemn the defendant in damages, or at any rate in damages to the full amount otherwise proper. If a defendant maliciously or obstinately (dolo malo aut contumacia) refused compliance or put it out of his own power to comply, the judge had an additional weapon. He could, instead of assessing the damages himself, allow the plaintiff to assess them himself on oath (in litem jurare), and the assessment so sworn would as a rule be entered as judgment against the defendant (D. 8, 5, 7) unless indeed the judge, on proof being given, thought the amount excessive (D. 12, 3, 2; 4, § § 2, 3; s. 5). It does not appear that the judge ever forcibly executed his own order for restoration, as long as the formulary process was in use. The passage (D. 6, 1, 68) quoted from Ulpian, which speaks of forcible restorations, manu militari officio judicis ab eo possessio transfertur, is generally considered to contain words interpolated by the compilers of the Digest. (Cf. Savigny, Syst. 5.123; Wächter, Pand. 1.565.) Those actions in which the judge had the power to direct specific performance, and only in case this was refused to condemn in damages, were sometimes called arbitrariae (Just. Inst. 4, 31; Dig. 4, 2, 14.4. &c.). The formula would contain the words nisi restituat or the like (cf. Cic. Ver. 2.12, 31 Dig. l.c. § 11).

An error in the formula might have disastrous effect. If indeed the error was in the statement of circumstances (demonstratio), so as to make the statement really false, the matter which was really meant being thereby not brought forward, the proceeding was nugatory. The plaintiff was [p. 1.19]not however precluded from bringing on the case again with an amended formula (Gai. 4.58). An error in the allegation (intentio) was similar if the error consisted in claiming a different thing altogether from what the plaintiff was justified in claiming, as for instance if he claimed a slave Stichus instead of the slave Eros, or based his claim on a will instead of on a formal verbal contract. But if the allegation contained the right subject-matter, but the claim was excessive (plus or pluris petitio), the plaintiff must fail (causa cadit). It might be excessive from claiming either too large a sum, or payment in the wrong place, or before the due time, or by restricting the choice of payment which the defendant was entitled to. If the plaintiff's claim was specific, but less than he was entitled to, he was not thereby hindered from gaining so much as his allegation covered, but he could not, within the same praetor's term of office, claim the residue. Both these could obviously only occur where the allegation of claim was specific in quantity. If the terms were general (e.g. quidquid dare facere oportet), no excessive or defective claim was possible (Gai. 4.53-56).

The formula in bonae fidei suits was always general in terms, and it was the duty of the judge, though not expressed in the formula, to take account of any counter-claim and allow one to be set off against the other. The judgment was then only for the balance. In a banker's account with a customer all present debits and credits are taken as ipso facto neutralising one another; and therefore the banker cannot sue his debtor for all he has debited him, but only for the balance in account. The allegation in the formula is of this kind: si paret Titium argentario x milia dare oportere amplius quam ipse Titio debet (Gai. 4.64-68).

If the damages are put at an excessive amount, the defendant can claim annulment of the formula (restitutio in integrum), and the case must be brought anew. If the damages are put at too little, the plaintiff cannot recover more, nor can he bring another suit for the remainder. (Gai. 4.57.)

In some cases, where a similar danger might await the plaintiff, it was possible to obviate it by prefixing to the formula a limitation (praescriptio) of the matter to be put in issue. If a man entitled to an annuity brought an action to enforce payment of the sum actually due, he had to prefix the words ea res agatur cujus rei dies fuit, i.e. “that only is to be in suit of which the due time has already come.” Then the claims to the future payments remained unaffected, not having been brought into issue in this suit (cf. Cic. Orat. 1.37.168). So if a man sued for conveyance of an estate bought, unless he specified that he sued only for the formal conveyance (ea res agatur de fundo mancipando), he might be held to have no further right to sue for actual delivery of the thing (Gai. 4.130-132). Gaius says that at one time similar praescriptiones were prefixed in the interest of the defendant to prevent a minor issue being held to conclude a greater one, but in Gaius' day such limitations took the form of special pleas (exceptiones, ib. § 133).

A general denial by the defendant was outside of the formula; but any special plea which he might urge, if such as the praetor recognised to be good in itself, was by him inserted in the intentio of the formula in the shape of an exception or negative condition. That is to say, the allegation of the plaintiff was qualified in the formula so that it should hold good, only if the plea of the defendant was found to be untrue, or at any rate if the plea was not proved. Many such special pleas were set forth by the praetor in his edict; others were framed by the praetor to fit the particular circumstances which disclosed an equity on the side of the defendant. Pleas regularly in use are such as fraud, agreement, intimidation, &c. (D. 44, 4; 2, 14). For instance, if I sue a man on a stipulation which was entered into as a security for money lent him, and I have never paid him the money, the stipulation is still valid in strict law, but the praetor allows him to plead fraud on my part, and my claim is defeated. So an agreement not to sue for a debt does not nullify the obligation, for the regular maxim is obligatio pacto convento non tollitur; but the agreement may be pleaded (pacti conventi exceptio), and the suit is thus blocked. So intimidation or compulsion may be pleaded against any attempt to enforce an obligation entered into under them. The plea of fraud would take the form si in ea re nihil dolo malo A. Agerii factum sit neque fiat; that of agreement not to sue would be si inter A. Agerium et N. Negidium non convenit ne ea pecunia peteretur, and the claim of the plaintiff would succeed, only if these propositions (i. e. the absence of fraud or the absence of an agreement not to sue) were proved. Otherwise the judge would acquit the defendant (Gai. 4.115-119).

A plea might be absolute (peremptoria), or dilatory (dilatoria). Absolute pleas are valid without limitation, such as fraud, intimidation, contravention of a statute, previous decision of the same matter, agreement not to sue at all. Dilatory pleas are good only for a time or against certain persons, &c., such as agreement not to sue within five years. In this case if, on the plea being brought forward, I withdraw from the suit, I can bring it again after the period of five years has expired; but if I persist, the matter is then brought to trial, and the plea being proved defeats my suit. If I then on the expiration of the period bring the suit again, I may be met by a fresh plea (exceptio rei in judicium deductae) that the matter has been already decided, and my suit is thus again defeated. Another dilatory plea is litis dividuae, which is good against my suing for the rest of a sum of money of which I have already sued for part. The plea is good against the further suit within the same praetorship; after that I am free. (But for the later law see Just. Inst. 4.6.34.) Again, I may have appointed an attorney (cognitor) to sue for me; my suit may be defeated by a dilatory plea if I persist in suing, though I was not authorised to appoint an attorney at all (disgraced persons, infames, and women are in this plight, D. 3, 1, 5.5), or not authorised to appoint the persons whom I have appointed (some persons being not allowed to act as attorneys). Gai. 4.120-125.

The plea may admit of a replication (replicatio) on the part of the plaintiff: e. g. an agreement not to sue may be followed by another agreement allowing me to sue. Then the plea si non convenerit ne eam pecuniam peterem would be met by the replication si non postea convenit [p. 1.20]ut mihi eam pecuniam petere liceret, and both would be inserted in the formula. The defendant may however have a rejoinder (duplicatio), and to this the plaintiff may have a surrejoinder (triplicatio), and so on. (Gai. 4.126-129.)

A still further extension of the formulae was due to the praetor's bold recognition of equities requiring protection. A person whom the praetor had recognised as equitably entitled to a deceased's estate obtained the bonorum possessio, i.e. the de facto rights of an heir, but was not the heir de jure (Gai. 3.32). He could not in strict law claim any of the property as his, nor could he enforce payment of a debt due to the estate as due to him. The difficulty was got over by a fiction. The formula was made to apply to him, on condition that it would have applied if he had been heir. And this was stated in the formula: L. Seius judex esto. Si A. Agerius L. Titio heres esset (fictio), turn si eum fundum de quo agitur ex jure Quiritium ejus esse oporteret (intentio), L. Sei, N. Negidium, A. Agerio x milia condemna; si non oporteret (or paret oportere?) absolve (condemnatio).

A similar fiction was made in favour of the bonorum emptor, i.e. the person who bought the insolvent estate of a deceased. But here another frame, invented by P. Rutilius, was sometimes given to the formula, the object being achieved by allowing the intentio still to run in the name of the heir, but inserting in the condemnatory clause the name of the purchaser of the inheritance (as plaintiff), instead of that of the heir. Still more boldly, if a foreigner sued or was sued for theft or for injury under Aquilius' statute, it was feigned that he was a Roman citizen: e.g. si paret a Dione Hermaei filio furtum factum esse paterae aureae, quamobrem eum si civis Romanus esset pro fure damnum decidere oporteret, &c. (Gai. 4.34-38). In the Lex Rubria, cap. 20 (Corp. I. L. 1.115; Bruns, p. 91, ed. 4), prescribing analogous jurisdiction in the province to that which prevailed at Rome, we have an instance of a formula to be used in the case of a person who ought to have given security against possible damage to another from his buildings, but had not done so before the damage occurred. “Judex esto. Sei, antequam id judicium qua de re agitur factum est, Q. Licinius damnei infectei, eo nomine qua de re agitur, eam stipulationem, quam is quei Romae inter peregreinos jus deicet in albo propositam habet, L. Seio repromeisisset, tum quicquid eum Q. Licinium ex ea stipulatione L. Seio dare facere oporteret ex fide bona, dumtaxat H. S. . . . ejus judex Q. Licinium L. Seio, sei ex decreto IIvirei IIIIvirei praefecteive Mutinensis, quod ejus is IIvir IIIIvir praefectusve ex lege Rubria seive id plebeiscitum est decreverit, Q. Licinius eo nomine qua de re agitur L. Seio damnei infectei repromittere noluit, condemnato; sei non paret, absolvito.” “If before the present trial Q. Licinius had given L. Seius a guaranty against possible damage on account of the matter in question, the guaranty being couched in the standing form approved by the praetor at Rome who presides over cases between aliens (fiction), then whatsoever Q. Licinius ought to pay or do to L. Seius in accordance with the said guaranty, all equities being duly considered, and the amount not exceeding . . . sesterces (part of the intentio), so much shall the judge direct Q. Licinius to pay or do to L. Seius (condemnatio), if Q. Licinius has refused to give L. Seius a guaranty against possible damage on account of the matter in question, in compliance with a decree of the duumvir or quattuorvir or praefect of Mutina, so far as said decree is made in accordance with the statute, or Commons' resolution, proposed by Rubrius” (part of the intentio); “if this is not the case, acquit him.”

The proceedings before the judge are explained under JUDICIUM

Actions were brought or defended either by the parties in person or by attorneys. In the ante-Justinian Law an attorney was either a cognitor or procurator. A cognitor was an attorney appointed in set words by the party in person in presence of his opponent. Such words might be for the plaintiff: Quod ego tecum agere volo, in eam rem L. Titium cognitorem do; for the defendant: Quia tu mecum agere vis, in eam rem P. Maevium cognitorem do. Strict precision in the words, at any rate in Ulpian's time, was not necessary (Gai. 4.83; Vat. Fr. 318, 319). If the person so apppointed was absent, he did not become attorney until he undertook the business. A procurator might be appointed by simple mandate or even by his practically undertaking the business, and neither the presence nor knowledge of the adversary was necessary to his appointment. When persons were represented by others, the formula contained the name of the representative instead of the principal in the clause of condemnation, but not in that of allegation (intentio).

Persons under the age of 17 years, and deaf persons, were not allowed to plead their own cause. If they had no advocate of their own, the praetor gave them one (D. 3, 1, 1.4). Some persons were disqualified from acting as attorneys for others. Such were soldiers (D. 3, 3, 8.2), women, blind persons, and those who had been convicted of a capital offence or of dishonesty in suing or defending a suit (calumnia), or of hiring oneself out to fight beasts in the arena. Further, all persons who were infames, “disgraced,” were disqualified from acting for any others except for near relations, either by blood or marriage, or for a patron or patron's child. Under this head of infames came stage-players; persons who had had judgment against them or made a compromise in suits implying disgraceful conduct; persons dismissed ignominiously from the army; panders and persons who had married, or as fathers had consented to the marriage of, a widow before the expiration of the statutable period of mourning (which before 350 A.D. was ten months, afterwards a year: Cod. 5.9, 1. 2). Bankrupts were apparently in ante-Justinian times disqualified. (See under INFAMIA) Persons under guardianship were represented in suits by their guardians (tutores et curatores), and a disqualification for acting for others was waived in case of a guardian (Gai. 4.92 ; D. 3, 1, 1.6), as it was in some few other cases (D. ibid. s. 6; s. 10).

A plaintiff suing in his own person or by a cognitor was not required in any case to give security. But a plaintiff's procurator or guardian had to give security that his principal would ratify his acts (ratam rem dominum habiturum), otherwise the defendant might be exposed to a fresh suit by the principal, whereas a cognitor's acts bound his principal as much as his own acts would. A defendant was in a different [p. 1.21]position. If the action was in rem, whether he appeared himself or by others, the plaintiff was entitled to receive security for due restitution of the disputed property or its equivalent. If the action was in personam, and the defendant was represented by a cognitor, the defendant had to give security; if by a procurator or guardian, the representative had to give security for the due performance of the judgment (judicatum solvi). If he appeared in person, he might in special circumstances be required to give security, either on account of the nature of the action, as for instance an action on a judgment or for money paid out by a surety (depensi); or the old action de moribus mulieris (cf. Just. Cod. 5, 17, 11.2); or on account of his own character--if for instance he was insolvent or was an heir suspected by the praetor to have insufficient means (Gai. 4.88-102; D. 42, 5, 31).

Checks were provided in several ways against heedless litigation. The plaintiff was exposed to four risks. (1) To an action for caltumnia, in which he was condemned if he was shown to have consciously brought an unjust claim. The penalty was a tenth (of the claim?), excepting in a suit to prove a man free, in which case the penalty was a third (of the value of the slave?). (2) To a counter trial (contrarium judicium). This was allowed in a few cases only, viz. in an action for injuriae, the penalty being one tenth part, and in two other special actions, the penalty being one fifth part. The plaintiff in the former action, now defendant, was condemned if he had not succeeded in the action impugned. (3) In some actions a wager (sponsio) and counter-wager (restipulatio) used to be made for a third part in an action for a specific sum of money lent, and for a half in an action for an agreed debt (pecunia constituta), and this was dependent simply on success or failure in the action. (4) Moreover the defendant might put the plaintiff on his oath as to his honesty in bringing the suit. If the oath was executed, the plaintiff was no longer liable to the other risks; and generally a defendant might bring one only of the actions named (Gai. 4.174-181).

The defendant was similarly exposed to risk if he allowed the action to proceed. (1) In the case of actions on a judgment or on money paid out (depensi), or injury under Aquilius' statute, or legacies (per damnationem), if the defendant denied and judgment went against him, the damages were doubled. (2) In the cases of loan certain and of an agreed debt a wager was made, and the defendant had to pay if he lost the suit. (3) An oath might be tendered him on the honesty of his denial (Gai. is. 171-173). (4) Further, any one condemned in certain actions become disgraced (ignominiosus). These actions were theft, robbery with violence, insult (injuriae), actions of partnership, trust, guardianship, commission, deposit. And in the case of the first three ignominy was incurred by making a compromise as well as by condemnation (Gai. 4.182). Ignominia in Gaius appears to be identical with infamia in the Praetor's Edict (D. 3, 2, 1).

Many distinctions and divisions of actions are made. Some of the most important are the following.

Actio civilis and actio honoraria. The former is an action given by the civil law, the latter one created by the praetor. All actions belong to one or other of these classes (D. 44, 7, 25.2). As examples may be taken the ordinary actions in rem, as opposed to the Publiciana actio, which the praetor gave to protect one who, without formally valid conveyance, had had delivery on good ground fiom the owner, but had not yet held a thing long enough for usucapion to have taken effect (D. 6, 2, 1). So an action for a sum of money if founded on a formal verbal contract (stiepulatio) is civilis; if on informal agreement (e.g. pecunia constituta), is honoraria. The distinction was important, not merely historically but in practice, because as a rule honorary actions could be brought only within the period of the praetor's office, i. e. only within one year. Civil actions were not so limited; nor indeed were those honorary actions (e. g. actions on contract) which aimed at recovering one's property or what is due to one, rather than inflicting damage on another. These latter actions might be brought also against the heir of the person bound; others only so far as the heir was enriched by his predecessor's wrong act (D. 44, 7, 35).

Actio directa and actio contraria. Some relations are essentially two-sided, and an action to enforce the rights of the one party is as likely to be required as an action to enforce the rights of the other. Such for instance are the actions ex empto and ex vendito, the purchaser suing for the delivery of the thing purchased, the seller for the purchase money. But in other cases an action is more inherently likely on one side than on the other, but yet the relations may beget occasion for an action in the reverse direction. Thus for instance an actio commodati or depositi is usually directa, i.e. to enforce the rights of the person who has deposited or lent a thing; but circumstances may make the recall of the thing lent unfair to the borrower, and then he has an actio commodati contraria (D. 13, 6, 17); or the receiver may have had to incur expenses for the protection or other care of the deposit, and he has then an actio depositi contraria (D. 16, 3, 5, pr. See also Cic. Off. 3.1. 7, 30). This use of in factum must be carefully distinguished from actio in factum concepta.

Actio directa and actio utilis. The term directa, besides being opposed to contraria, is also opposed to utilis. Here the great sphere of the praetor's action is seen. The precise action granted by the civil law was not applicable to numerous cases which came within its spirit but not within its letter. The praetor allowed an action which was not the same in theory, but analogous to it, and this was called a serviceable action, or not infrequently an “action on the case” (actio in factum). The Aquillian statute was noticeably extended in this way by the praetor. A person who did not actually with his own person kill a slave did not come strictly within the statute; but if he pushed the horse or mare so that they killed the slave, an actio in factum was granted (D. 9, 2, 7.3). A usufructuary was not properly an owner: this statute gave the action to the owner; but the praetor extended it to the usufructuary, and he therefore had an actio utilis (D. 9, 2, 11.10). The incidents of such an action were of course conformable to those of the prototype, the actual case being by a fiction (see above) treated as identical in its [p. 1.22]claim to remedy with the statutable or original action. The name of the prototype was often used with quasi prefixed for that of the analogous action, e.g. quasi Serviana (D. 16, 1, 13).

Actio stricti juris and actio bonae fidei. The stern simplicity of the old law, which would hear of nothing but definite obligations created by precise words, had to give way before the complicated circumstances and countervailing equities of the business of the world. The actio ex stipulato was the type of the former; commercial intercourse gave rise to many instances of the latter. Gaius enumerates the latter as sale and purchase, letting and hiring, unasked agency (negotiorun gestorum), commission, deposit, trust (fiduciae, i.e. mortgage), partnership, guardianship (and here the passage is mutilated, but we may probably add) wife's property, loan, pledge, division of inheritance, partition, actions on the case (Gai. 4.62; Just. Inst. 4.6.28). In all these the judge was instructed to examine and estimate the rights of the parties in the matter so far as they were founded on good faith (Cic. Off. 3.1. 7, 30). And of course therefore any debt due from the plaintiff to the defendant might be set off against anything due to the plaintiff on his claim. Justinian in some degree broke down the distinction between those two classes of actions (Inst. 4.6, § § 29, 30).

The word actio itself is in some passages opposed to petitio and persecutio, as for instance by Papinian (D. 44, 7, 28) actio in personam infertur; petilio in rem ; persecutio in rem vel in personam rei persequendae gratia: and Ulpian (D. 5, 16, 178) refers persecutio to extraordinary proceedings, such as those for enforcing a trust (fidei commissum). But this must be regarded as only applicable to some particular uses; e. g. in the Aquillian stipulation (D. 46, 4, 18) and other places where the words are obviously to be distinguished from each other. Otherwise actio is general, and even includes interdicts (D. 44, 7, 37). Judicium is often found as equivalent to it, but there appears to have been an inclination to use the latter word in preference in cases where both parties might be regarded as indiscriminately plaintiff and defendant. Such are the judicia finium regundorum (D. 10, 1), familiae erciscundae (ib. 2), communi dividundo (ib. 3).

Poenalis actio was one where neither the recovery of a thing nor of damages proper (both of which were said to be rei persequendae causa) was the object, but the pecuniary penalty affixed by the law to certain acts (poenae persequendae causa). Such was the actio furti and the actio injuriarum (Gai. 4.7). In other actions, such as those in which denial exposed the defendant to the risk of double damages (see above), both damages and penalty were the object of the action (Gai. 4.9). A penal action did not lie against the heir, unless it had been commenced in the life of his predecessor (D. 44, 7, 26; s. 33).

The same fact often gave opportunity for several actions; sometimes the plaintiff had to choose between them, sometimes he might bring one, and then if his claim was not satisfied by that bring another action of a different class for the residue (D. 44, 7, 34; s. 31).

The plaintiff is usually called actor or is qui agit, sometimes agens or (especially in actions in <*>m) petitor. The defendant is reus, or is unde petitur, or cum quo agitur, or qui convenitur, or (in actions in rem) possessor. The plaintiff is said agere, petere, or actionem, intendere, experiri, convenire; the defendant convenire, suscipere, actionem or judicium, &c.

III. Beside this formulary procedure, in which the praetor gave instructions to a judge or judges, and this judge actually tried the issue so directed, there were other matters which the praetor himself heard and decided (causa cognita decrevit). From this hearing by the praetor himself, these trials were called cognitiones. These were partly of an executive character, such as issuing injunctions (interdicta) to stop apprehended wrong, or conferring security, or putting a party into possession of disputed property. But there were other matters which, on account of the delicacy of their character, were not passed through the usual forms. Of these the most important were trusts (fidei commissa), which, being regarded at first not as legal obligations, but as matters of honour and propriety, were not subjects for ordinary procedure, but required the special cognizance of a high officer of state (Gai. 2.278; Ulp. 25.12). Similarly claims for alimony by parents against children or the reverse (D. 25, 3, 5); questions of the proper remuneration of physicians, teachers, advocates, &c. (D. 5, 13, 1), and some other matters (e. g. Gai. 1.53) were also placed outside the rank of ordinary suits (extra ordinem). In the course of time, after the period of the classical jurists, this system became universal. The various officials of the empire heard and decided all suits themselves, and the distinction of praetor and judex, jus and judicium, ceased, the general principles of decision remaining the same. Exactly how and when this change in the form was brought about we do not know. A law of Diocletian A.D. 297 (Cod. 3.3, 2), which directed governors of provinces (praesides) to decide cases themselves, so far as their public duties allowed them, instead of appointing pedaneos judices, is regarded by most writers as the origin of the change, and Constantius (A.D. 342) abolished the formulae (Cod. 2.57 (58), 1). Justinian says, “all trials are now extra ordinem” (Inst. 4.15, 8 ; 3.12, pr.). But the power of delegating their jurisdiction, at least in less important cases, was still reserved to the governors (Cod. 3.3).

In the extraordinary trials by the praetor the defendant was summoned (evocatus), not by the plaintiff but by the praetor by notice (denuntiatio), either conveyed to him or affixed to the praetor's notice-board (cf. D. 42, 1, 53.1). The notice was repeated three times, and, if the defendant did not appear, the case was proceeded with in his absence (Paul. Sent. 5.52.7). In Justinian's time suits were begun generally by a written bill of complaint (libellus) delivered to the judge, and by him communicated to the defendant.

The checks against reckless litigation were simplified by Justinian, and these consisted (1) in an oath taken by each party of his bona fide action, and (2) in the costs of the suit being thrown on the loser (Cod. 3.1, 13.6), i. e. probably if he had no reasonable case (cf. Inst. 4.16.1, improbus litigator, D. 5, 1, 79; 31, 78.2).

For further details respecting the constitution of the courts and proceedings at trials, see JUDICIUM; for criminal procedure, see also [p. 1.23]CRIMEN The principal actions will be dealt with under their respective names.

The best treatises on the subject are Keller's Civil-Prozess (5th ed. edited by A. Wach, 1876), which gives references to the other writers ; and the elaborate work of Bethmann-Hollweg, Die römische Civil-Prozess, 1865, foll.


hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: