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PRAEJUDI´CIUM 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 than praejudicium ( “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. 40, 12, 27, 1): 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 in rem 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, 1, 1, 2; 44, 7, 37, praejudicia are opposed to vindicationes or real actions, and in Dig. 3, 3, 35, 2, to actiones in general.

Among the questions which were raised in the form of a praejudicium were whether a man was free or not (Inst. loc. cit.), or a libertus or not (Gaius, 4.44; Dig. 2, 4, 8, 1): whether he was the child of So-and-so (Dig. 25, 3, 3, 2): 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 actiones 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. 1, 2, 2, 24) was older than the Twelve Tables: the rest, according to him, were praetorian in origin.

The pronuntiatio 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, 5, 25; 25, 3, 2, 3, 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 (Dig. 40, 16), and by persons actually wronged by it at even a longer interval of time (Dig. 40, 12, 42).

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 (pro reo), but later was formulated as an exceptio (Gaius, 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. 3.65, 152; Dig. 47, 10, 7, 1): cf, also Plin. Ep. 7.6. This seems to be the signification of the term praejudicium from which has arisen our own legal phrase “without prejudice to other matters in the cause.” (Gaius, 3.123, 4.44; Paul. Sent. rec. 5.9, 1;--Dig. 22, 3, 8; 43, 30;--Inst. 4.6, 13; and Theophilus, Paraphr.

[G.L] [J.B.M]

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