Roman litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.

The remarkable aspect of a trial of an action under the legis actio procedure (and also later under the formulary system) was characterized by the division of the proceedings into two stages, the first of which took place before a magistrate, under whose supervision all the preliminaries were arranged, the second, in which the issue was actually decided, was held before a judge. The magistrate in question taking part in the preliminary stage was typically the consul or military tribune, almost exclusively the praetor upon the creation of this office. The judge was neither a magistrate nor a private lawyer, but an individual agreed upon by both parties.

Summons under the legis actiones system were conducted in ius vocate, that is, by voice. The plaintiff would request, with reasons, that the defendant come to court. If he failed to appear, the plaintiff could call reasons and have him dragged to court. If the defendant could not be brought to court, he would be regarded as indefensus, and the plaintiff could, with the authorization of the praetor, seize his property. The defendant may elect a representative to appear in his place, or seek a vadimonium - a promise to appear on a certain day with a threat of pecuniary penalty if he failed to appear.

At the first stage of the case, a hearing took place before the praetor, in order to agree the issue and appoint a judge. This was conducted through exchanges of ritual words, the two different types being known as the declarative which were the legis actio sacramento (which could be in rem or in personam), legis actio per iudicis arbitrive postulationem and legis actio per condictionem and the executive type legis actio per pignoris capionem and legis actio per manus iniectionem. All of these involved, essentially, statements of claim by both parties, and the laying down of a wager by the plaintiff. Then, a judge was appointed who was agreeable to both parties, the praetor making a decision in the event of a disagreement. Judges were chosen from a list called the album iudicum, consisting of senators, and in the later Republic, men of equestrian rank.

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