CONFES´SIO
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.)
[
E.A.W]
