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CONFES´SIO The ordinary course of a civil action was summarily interrupted if the defendant, while the case was before the praetor (in jure), made an acknowledgment (confessio) of the plaintiff's claim instead of disputing it (infitiari). From an early time a confession thus made was considered to have the same effect as judgment (confessus pro judicato est); [p. 1.527]the defendant, by condemning himself, dispensed with the necessity of a trial (judicium), and gave the plaintiff a right to execution. This rule is frequently asserted and referred to in our sources.

It was, as we are informed by Gellius (Noct. Att. 20.1), a provision of the law of the XII. Tables that those who confessed money debts (aeris confessi) and also judgment debtors (judicati) should be liable to personal execution by manus injectio (cf. Muirhead, Hist. Intr. to the Law of Rome, 203-205). When a claim was of uncertain value and the defendant confessed to it, or was adjudged liable, execution could not follow at once, because an ascertained money debt (certa pecunia) was necessary for execution. Hence under the legis actio procedure such a confession or judgment was supplemented by a judicial proceeding for the assessment of damages (litis aestimatio).

The principle of the formulary procedure, which required that a condemnation should be pecuniary in all cases, made it difficult to give the same effect to the confession of an uncertain claim as to condemnation. So the principle that confession is equivalent to judgment seems at first only to have been applicable in this procedure, in case of the acknowledgment of a money debt. If a defendant admitted a claim of uncertain value, pressure was put upon him to make him further acknowledge a liquidated debt (Dig. 42, 2, pr. 1). But in course of time full effect was given to confessio in all cases by means of a formula arbitraria, which was called in some cases actio confessoria (Dig. 9, 2, 23.11). This change, which may have begun as a practice of procedure, was fully recognised by an oratio divi Marci (Dig. 42, 1, 56; 2, 6.2). In the actiones quae infitiando crescunt, such as the Aquilian action and the action on account or a legatum per damnationem, a defendant who did not confess was condemned to pay double damages if he lost the action. The formula for the assessment of damages may have been first introduced in respect to these actions. A confessio had to be made before the praetor in the presence of the plaintiff; impossibility or mistake made confession nugatory. The silence of the defendant was treated as equivalent to admission ( “in jure nihil respondere,” Lex Rubric, 100.21, 22). Confessio when made at a trial in a civil case before a judex (in judicio) or out of court did not do away with the necessity of judgment, but was only evidence against the defendant. Some writers maintain that confession in criminal cases had also, under certain circumstances, the same effect as confessio in jure in an action; but the better opinion seems to be that confession of a crime at whatever stage in a trial it occurred was only evidence of guilt, though such as would in most cases be conclusive. (Cic. in Verr. 3.56, § 130; Sal. Cat. 52; Suet. Aug. 33.)

The main object of the inquisitorial criminal procedure which grew up under the empire was to discover either by means of torture, by interrogatories or otherwise, whether the defendant could be induced to confess the charge made against him. (Lex Rubria, 100.21, 22; Paul. 5.5 a, § § 2-5; Dig. 42, 2; Cod. Just. 7.59; Savigny, System, vii. § § 303, &c.; Keller, Civilprocess, § 63; Bethmann-Hollweg, Civilprocess, § 105; G. Demelius, Die Confessio in röm. Civilprocess; Geib, De Confessionis effectu, and Röm. Crim. Proc. pp. 137, 328, 612.)


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  • Cross-references from this page (2):
    • Sallust, Catilinae Coniuratio, 52
    • Suetonius, Divus Augustus, 33
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