This word, as appears from its
etymology, has a certain relation to Judicium, to which it is opposed by
Cicero ( “de quo non praejudicium, sed plane jam judicium factum,”
Div. in Caecil.
4, 12) and P. Syrus, 248, 249: “grave
judicium est, quod praejudicium non habet: grave praejudicium est, quod
judicium non habet.” The commentator who goes by the name of
Asconius observes on the words cited from Cicero, that a praejudicium is
something which when established becomes an exemplum
for following judges (judicaturi,
to be guided by): but this leaves us in doubt whether he
means something established in the same cause, by way of preliminary
inquiry, or something established in a different but similar cause, which
would be what we call a precedent. Quintilian (Inst. Orat.
5.1, 2) states that the word is used in two senses: in that of a precedent,
in which case it is rather exemplum
( “res ex paribus causis
judicata” ); and in that of a preliminary inquiry and
determination about something which belongs to the matter in dispute (
“judiciis ad ipsam causam pertinentibus” ), whence also
comes the name Praejudicium. This latter signification, which [p. 2.479]
is in conformity with the meaning of praejudicialis actio or formula
(Inst. 4.6, 13;
Gaius, 4.44), appears to be that which the term properly bears in Roman
legal language. A “prejudicial” action was one whose object was
merely to judicially ascertain facts which were of legal importance, or the
existence of alleged legal relations, and whose formula (in the formulary
period of Roman civil procedure) consisted consequently simply of an
Intentio, by which the judex was instructed to inquire into the truth of the
alleged fact, or the existence of the alleged legal relation (Gaius, l.c.
): there was no condemnation or absolution, as
in other actions, but the judge simply declared his conclusion on the matter
in a pronuntiatio
(e. g. Dig.
): cf. Aurel. Victor. Ars rhet.
3.5, “simplex petitio, cum quaeritur, in quo jure sit res aut
persona.” The name of the action was derived from the fact that the
decision of the judge formed, or might form, the basis of subsequent
litigation (e. g. it having been ascertained by praejudicium that So-and-so
is the illegitimate child of A, the mother can proceed by action against A
for its maintenance); as to its legal character, the lawyers seem to have
doubted. Justinian says (Inst. 4.6, 13), “praejudiciales actiones
esse videntur” : they are
real, not personal, because there is no obligatio
between the person who sets the law in motion and his
adversary, or, as Gaius would perhaps have said, because the latter is not
named in the Intentio: but in Dig. 6
, praejudicia are opposed to vindicationes
or real actions, and in Dig.
, to actiones
Among the questions which were raised in the form of a praejudicium were
whether a man was free or not (Inst. loc. cit.
a libertus or not (Gaius, 4.44; Dig. 2
): whether he was the child of So-and-so (Dig.
): whether he had given to the sureties he was taking
for such and such a debt the information required by the Lex Cicereia
(Gaius, 3.123): what was the amount of So-and-so's dos,
&c. Some praejudiciales
belonged to the civil law, though Justinian says, in the
paragraph already referred to, that perhaps the only one in his time which
had a legitima cause
was that in which a man's
freedom was in question, and which we know (from Dig.
) was older than the Twelve Tables: the rest,
according to him, were praetorian in origin.
of the judge in a prejudicial
action was binding on, and conclusive against, not merely the person who in
it played the rôle
of defendant, but on
all persons generally (Dig. 1
, pr.): but (at any rate in those relating to status) the decision
could be disputed by any one within five years on the ground of collusion
), and by
persons actually wronged by it at even a longer interval of time (Dig. 40
The reason why praejudicium is sometimes opposed to actio
is probably that sometimes the term was used in the sense
of a defence, the defendant pleading that the suit ought not to be proceeded
with because its decision would prejudge a more important cause. Such a plea
was originally expressed in the form of a PRAESCRIPTIO
but later was formulated as an exceptio
4.133). Examples may be found in the allegation that a single judex is
trying a suit which ought to go before the centumviri (Cod. 3, 31, 12, pr.),
or recuperatores trying a matter which ought to be made the subject of a
criminal prosecution (Cic. de
Invent. 2.2. 0
, 59; in Verr.
): cf, also Plin. Ep. 7.6
. This seems to be the
signification of the term praejudicium
which has arisen our own legal phrase “without prejudice to other
matters in the cause.” (Gaius, 3.123, 4.44; Paul. Sent.
5.9, 1;--Dig. 22
;--Inst. 4.6, 13; and Theophilus,