consideration of the judge, but only a question of fact, proof of
which was to be followed by a condemnation. That of the actio
de dolo, for example, ran thus: “Titius be judge. Should it appear
that, through the fraud of N. N., A. A. was induced to convey
and cede possession to him of his farm (describing it), then, unless
on your order N. N. restores it, you will condemn him in damages to
A. A.; if it shall not so appear, you will acquit him.” Actions in
factum might be utiles as well as direct; e.g. actio quasi-Serviana
or hypothecaria was utilis, being based on analogy to the actio
Serviana.
Our limits do not admit of any explanation of the purpose, form, or effect of the prescriptions, exceptions, replications, &c., that were en grafted on a formula when required; or of the ways in which the “condemnation” was occasionally “taxed” by the praetor, so as to prevent the award of extravagant damages; or of the consequences of defects in the formula; or of the procedure in jure before it was adjusted, or in judicio afterwards; or of appeal for review of the judgment by a higher tribunal; or of execution (which was against the éstate of the judgment-debtor, and took the form of incarceration only when his goods could not be attached). Our main object has been to show how elastic was this procedure, and how the praetorian formulae, in conjunction with the relative announcements in the edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine. The system was fully developed before Julian's consolidation of the Edict; and the statutory recognition which the latter then obtained, though it stopped the praetor's power of amending the law, did nothing to impair the efficiency of the existing procedure.
Procedure extra Ordinem.[1]—The two-staged procedure, first in jure and then in judicio, constituted the ordo judiciorum Procedure extra ordinem. privatorum. Early in the Empire, however, it became the practice in certain cases to abstain from adjusting a formula and making a remit to a judex, and to leave the cause in the hands of the magistrate from beginning to end. In these cases, speaking generally, the magistrate acted as an administrative official. Such cases did not necessarily come before the ordinary judicial praetors; on the contrary, they were committed as a rule to special officials (e.g. consuls) who were appointed to decide them by the emperors. This kind of procedure was adopted sometimes because the claim that was being made rested rather on moral than on legal right, and sometimes in order to avoid unnecessary disclosure of family misunderstandings. Thus, the earliest questions that were raised about testamentary trusts were sent for consideration and disposal to the consuls, apparently because, in the existing state of jurisprudence, it was thought incompetent for a beneficiary to maintain in reference to the heir (who had only been requested to comply with the testator's wishes) that he was bound in law to pay him (dare oportere) his bequest. Had the difficulty arisen at an earlier period, and in the heyday of the constructive energy of the praetors, they would probably have solved it with an actio in factum. As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it,—the praetor fidei commissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tutelaris; while fiscal questions in which a private party was interested went to a praetor fisci, whose creation was due to Nerva. Claims for aliment between parent and child or patron and freedman rested on natural duty rather than on legal right; the could not therefore well be made the subject-matter of a judicium, and consequently went for disposal to the consuls or the city prefect, and in the provinces to the governor. Questions of status, especially of freedom or slavery, at least from the time of Marcus Aurelius, were also disposed of extra ordinem; and so were claims by physicians, advocates and public teachers for their honoraria, and by officials for their salaries, the Romans refusing to admit that these could be recovered by an ordinary action of location. In all those extraordinary cognition's the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party complained against; it was for the magistrate to require the attendance of the latter (evocatio) if he thought the complaint relevant. The decision was a judicatum or decretum according to circumstances.
Jural Remedies flowing directly from the Magistrate's Imperium.[2]—Great Direct magisterial intervention. as were the results for the law of the multiplication and simplification of judicia through the formular system, it may be questioned whether it did not benefit quite as much from the direct intervention of the praetors and other magistrates in certain cases in virtue of the imperium with which the were invested. This manifested itself principally in the form of (1) interdicts; (2) praetorian stipulations; (3) missio in possessionem; and (4) in integrum restitutio. All these had been in common use during the Republic.
1. The interdicts[3] have already been referred to as in use under the régime of the jus civile; but their number and scope were vastly Interdicts. increased under that of the jus praetorium. The characteristic of the developed procedure by interdict was this—that in it the praetor reversed the ordinary course of things, and, instead of waiting for an inquiry into the facts alleged by a complainer, provisionally assumed them to be true and pronounced an order upon the respondent, which he was bound either to obey or show to be unjustified. The order pronounced might be either restitutory, exhibitory (in both cases usually spoken of in the texts as a decretum), or prohibitory:—restitutory, when, for example, the respondent was ordained to restore something he was alleged to have taken possession of by violent means, to remove impediments he had placed in the channel of a river, and the like; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g. the body of a freeman he was holding as his slave, or a will in which the complainer alleged that he had an interest; prohibitory, as, for example, that he should not disturb the status quo of possession as between the complainer and himself, that he should not interfere with a highway, a watercourse, the access to a sepulchre, and so forth. If the respondent obeyed the order renounced in a restitutory or exhibitory decree, there was an end of the matter. But frequently, and perhaps more often than not, the interdict was only the commencement of a litigation; facilitated by sponsions and restipulations, in which the questions had to be tried (1) whether the interdict or injunction was justified, (2) whether there had been breach of it, and, (3) 'if so, what damages were due in consequence. The procedure therefore was often anything but summary.
In the possessory interdicts uti possidetis and utrubi in particular it was extremely involved, due to some extent to the fact that they were double interdicts (iuterdicta duplicia), i.e. addressed indifferently to both parties. Gaius says, but, as most modern writers think, erroneously, that they had been devised as ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as possessor; was to have'the advantage of standing on the defensive in the rei vindicatio.[4] That they were so used in his time, as in that of Justinian, cannot be doubted. But it is amazing that they should have been, for they were much more cumbrous than the vindicatio to which they led up. Take the interdict uti possidetis, which applied to immovables, as utrubi did to movables. Both parties being present, the praetor addressed them to this effect: “I forbid that one of you two who does not possess the house in question to use force in order to prevent the other who is in possession, provided he is so neither by clandestine or violent exclusion of the first, nor in virtue of a grant from him during pleasure, from continuing, to possess as at presents.” It is manifest that this decided nothing; it was no more than a prohibition of disturbance of the status quo; it left the question entirely open which of the parties it was that was in possession, and which that was forbidden to interfere. The manner of its explication was somewhat singular. Each of the parties was bound at once to commit what in the case of one of, them must have been a breach of the interdict, by a pretence of violence offered to the other (vis ex conventu);[5] each of them was thus in a position to say to the other: “We have both used force; but it was you alone that did it in defiance of the interdict, for it is I that am in possession.” The interim enjoyment of the house was then awarded to the highest bidder, who gave his stipulatory promise to pay rent to his adversary in the event of the latter being successful in the long-run; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict; and on these, four in number, formulae were adjusted and sent to a judex for trial. If the procedure could not thus be explicated, because either of the parties declined to take part in the vis ex conventu, or the bidding, or the sponsions and restipulations, he was assumed to be in the wrong, and by what was called a secondary interdict, required to yield up his possession or detention and to abstain from disturbing the other “in all time coming.” Whatever we may think of the action system of the Romans in the period of the classical jurisprudence, one cannot help wondering at a
- ↑ See Keller-Wach, Civilprocess, § 81; Bethmann-Hollweg, Röm. Civilprocess, vol. ii. § 122; Bekker, Aktionen, vol. ii. chap. 23; Baron, Gesch. d. röm. Rechts, vol. i. § 220.
- ↑ Keller-Wach, Röm. Civilprocess, §§ 74-80; Bethmann-Hollweg, Röm. Civilprocess, vol. ii. §§ 98, 119-121; Bekker, Akt. vol. ii. chaps. 16-18; Baron, vol. i. §§ 216-219. Procedure in these cases is also sometimes included under the term cognitio extraordinaria.
- ↑ In addition to the authorities in last note, see K. A. Schmidt, Das Interdiktenverfahren d. Röm. in geschichtl. Entwickelung (Leipzig, 1853); Machélard, Théorie des interdits en droit romain (Paris, 1864); Karlowa, Röm. R. G. ii. pp. 313 seq.; Ubbelohde, Die Interdicte d. röm Rechts, 1889-96 (in Gluck's Pandecten Serie d. Bücher, 43 and 44); Jobbé-Duval, La Procédure civile chez les Romains (1896) i. pp. 207 seq.
- ↑ If that had been their original purpose, they must have been unknown as long as a rei vindicatio proceeded per sacramentum; for in the sacramental real action both parties vindicated, and both consequently were at once plaintiffs and defendants.
- ↑ So Gaius calls it; it was probably the same thing as the vis moribus facta referred to by Cicero, Pro Caec. 1, § 2, 8, § 22.
