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.
