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of ius. His interposition at first is merely for the purpose of effectuating an undoubted claim.
A asserts that N is depriving him of the use of a thing or is enjoying without A's consent that which A has an exclusive right to enjoy for himself. If A makes his claim in the right way, if he uses the right words and makes the right gestures, he can obtain redress at once. He can get back his property. He can oust N from the latter's unwarranted enjoyment. In somewhat later times, there is still a great stress on formal correctness of words and gestures, but a new point is involved. Precisely performed ritual does not establish a right but raises an issue. Allegations made correctly are as correctly denied. And then for the first time, a real court comes into existence, in our sense of the term,-a court which must determine the truth of the issue raised. This is the legisaction procedure of the Roman law, corresponding somewhat to the procedure before the old local English courts, except that it was much less barbarous. But the legisaction involved a splitting of the law-finder's function in a way that remained characteristic of Roman law until its latest period. The magistrate was not competent to decide which of two contradictory claims was really iustum, nor had he any wish to do so. That duty he promptly delegated to an arbitrator to whom he gave his ancient name of iudex, and contented himself with what soon became the simple task of determining the formal correctness of the application.
The inadequacy of the legisaction lay first in the restricted character of the litigants who could use it. Since it was a ritual, it was available only to Roman citizens. Secondly, the issues cognizable under it were limited in range. A certain measure of flexibility was later given to it, but not enough to meet the rapid commercial expansion of Roman life. During the last century of the Roman republic, the legisaction became superseded by a procedure of the utmost elasticity, the procedure by formula, in which the magistrate instructed the iudex so precisely and narrowly that the latter was reduced in most cases to pronouncing on certain issues of fact.
This change in the nature of the magistrate's intervention was momentous for the development of Roman law. We must remember that the magistrate, he was nearly always the praetor at this time— possessed imperium. The iudex whom he appointed was as a citizen as much subject to his authority as the litigants themselves. The praetor might conceivably be whimsical and arbitrary and order the iudex to decide accordingly. He might refuse altogether to institute a iudicium. But we may be pretty sure he was rarely tempted to
be arbitrary. He was a public official absorbed in political and military functions, and often of very imperfect education. He generally sought the advice of better-trained men, and these were, like himself, difficult to persuade that anything was ius which had not been called so before.
But, although with difficulty, they were sometimes so persuaded, and the ius which a litigant was fairly confident he could induce the praetor to give him, was as good for all practical purposes as the body of iura which from time immemorial had been the privileges of Roman citizens, the Quirites. And the public proclamation by edict of what sura a praetor would give in addition to the Quiritary ones, appreciably assisted a prospective litigant in discovering whether he had a ius or not. This new body of magisterial law grew apace until it quite overshadowed the ancient ius civile and usurped its name.
The historical fact that it grew in this way is less important than the new spirit which gradually came to inform it. Ius is still something which the claimant demands as his own, as his property, and for many centuries neither the praetor nor the men whose advice he followed were prepared to identify the ius which a given Roman citizen might properly claim as his, with the ideally equitable thing based upon a course of conduct for all civilized men. Yet finally the identification was made. In the famous dictum ius est ars boni et aequi, we have something more than a rhetorical commonplace or a pious hope. It was apparently first used by Celsus, about 100 A. D., who was no bland philospher but a lawyer as famous for his rudeness as for his keenness. Ius is no longer the means of securing iura. It is a technical device (ars) for the obtaining of equity, that which a good man's conscience will approve, (bonum et aequum).
Just what will constitute equity, the bonum et aequum, will vary with the time and place and person, but a new responsibility is placed upon the magistrate. He must in most cases examine the moral basis of the ius claimed. That is bonum et aequum which if generally and frequently applied will produce a maximum of advantage. In determining what would produce this result, the praetor was aided by a rapidly increasing mass of precedents, collected, discussed and annotated in published books. To disregard them would have been a psychical impossibility even for radical reformers, and radical reformers did not normally obtain imperium in the Roman Empire. The morality enforced by the praetor was a ius gentium, adapted to the needs of civilized society as his experience and imagi
nation taught him to believe that civilized society was in fact constituted.
For a time it is true, imperium, even the supreme imperium of the princeps, was actually possessed by men who ostensibly held extremely radical views concerning the constitution of society. These were the Stoics. But the Stoics were on the whole a rather muddleheaded group, and the clearer thinkers among them managed to push their troublesome and revolutionary conception of a perfect equality into the state of nature, which lay just outside—but after all quite outside the city of flesh and blood, of mortar and stones, in which men in fact were living.
Within that city the bonum et aequum, the right and proper thing, continued to depend on the character of the magistrate. But we may say that the most characteristic thing about most magistrates was a profound distrust of their capacity to pronounce without aid on what was equitable. The tendency to seek this aid from a body of professional experts existed from the first. It was long believed that from the time of Augustus, the magistrate could be compelled to seek this aid. This has been recently questioned, although, as it seems to me, for insufficient reasons. However, it is certain that such aid was available and was constantly used, that there was a large body of highly trained professional jurists from all quarters of the Roman Empire, that many of them were themselves magistrates.
The reception of large masses of Mediterranean common law into the Roman system was easily possible under such an organization. There was no need of the subterfuge of fictions. Indeed there was no point at which a desirable reform had to encounter any difficulty other than the task of establishing its desirability. It surely did not have to overcome the sheer inertia of a procedural system such as that of the old common law practice in England and America, and it did not have to wait for the inevitably hesitant process of legislation. That this did not result in an ideally perfect system of law will not surprise those who have ceased to suppose that ideally perfect systems are possible. It may be said that the Roman legal system was a little better than the Romans, just as it can be asserted without malice that Englishmen were a little finer and humaner than the legal system under which they made a shift to live.
The larger part of the doctrines which make up the Roman law were established in the frame of the formulary procedure. We can best see what that procedure was like by a concrete instance.
Let us assume we are dealing with a case of sale in which the vendor claims non-payment and the claim is resisted by an allega
tion of fraud in the contract. The formula in which these assertions and counter-assertions would result in iure might read somewhat as follows:
1. Let Titius be iudex (Nomination); 2. whereas A has sold and delivered to M, a slave, at the agreed price of a thousand hs., (Demonstration); 3. whatever it appears to you that N should by reason thereof in good faith pay to A (Intention); 3a. if nothing has been done in this matter by the wilful fault of A (Exception); 4. to that, do you, iudex condemn N, otherwise acquit him (Condemnation).
To this formula, there were other possible additions and modifications. In the place of the Condemnation, there might, in partition suits, be an Adjudication. A Prescription might precede even the Nomination and limit the range of the entire inquiry. The Exception might be followed by a Replication, a Duplication, or even a Triplication, which call to mind the corresponding pleas of the Common law. Further, the Condemnation might leave to the iudex a certain arbitrary power of taxing damages.
When the formula was complete, the praetor had no further function to perform and the proceeding in iure came to a close. The formal closing was given a technical name, litis contestatio. For a very long time in Roman history litis contestatio effected a complete novation, provided we understand novation in the sense of the Civil law. It extinguished whatever claim or counterclaim existed between the parties as the result of the facts stated in the Demonstration, and substituted for such claims a wholly new one, to-wit, that which the iudex in his judgment might grant in accordance with the Intention and the qualifying Exceptions.
The parties are now in iudicio, before the iudex. It must be remembered that the iudex was a private citizen, selected from a panel which was generally determined by property qualifications. He was in most cases not a lawyer. He could, however, secure the assistance and counsel of those who were trained lawyers and in most cases we may be sure that he did so, since the determination he was required to make demanded considerable legal knowledge. However, he was not obliged to go outside of his unaided discretion. If he chose to run the risk, which a wilful or negligently wrong decision entailed, there was nothing to prevent him. But the risk was a real one, since he was liable in tort for the consequences of an erroneous decision. Not only did the iudex have an opportunity of securing learned advice, but the parties themselves often furnished him with guidance. They might enlist the services of professional advocates or obtain the written opinions of eminent counsel. The iudex's
decision, moreover, even if he was corrupt or incompetent, was final. There was no appeal.
One can only regret that this admirable system was ever abolished. If proper provision were made for review, it is hard to imagine a more supple or successful instrument for effecting justice. However, in the undisguised monarchy, justice was less important than regularity and order. Bureaucracy replaces the formula with a procedure of great definiteness and rigidity which substituted paper pleadings and systematic registrations for the vitality and humanity of its predecessor. This new procedure was the cognitio.
At all times magistrates found it necessary to deal directly with certain issues brought before them. This reserved class of cases, originally exceptional and extraordinary, became more and more extended. In place of the magistrates themselves, subordinate officials were assigned to hear the increasing body of law suits, and well before the period of Diocletian the cognitio was universal.
The cognitio abolished the distinction between in iure and in iudicio. A written declaration (libellus conventionis) was made with a written plea, both duly filed and docketed. Fees marked every step of the suit, and the decision of the iudex-now become a bureaucratic clerk was subject to a review by a higher and more incrusted bureaucrat.
The legal development that went on under this new procedure preserved some of the forms of the older system. Changes in law were made by imperial ukase, but in nearly all instances these ordinances were avowedly based upon a specific application for redress. However, the emperor is consciously legislating and his tone and words show it plainly enough. The law of this period is not without its value. It removed a great many historical vestiges in property law and the law of succession. It simplified personal status somewhat. It performed an astounding feat of clarification in producing the Corpus. But it is not one of the great creative periods of the law, and one may be forgiven for contemplating it with little pleasure.
A Roman citizen standing before a magistrate of the Roman people called upon him to assist in securing his ius. What was the content of this demand? Generally it was a claim to be free to act as he chose in connection with some thing, or that some other person shall be compelled to act in a specific way in respect to the claimant. Either demand would be a ius. Mr. Hohfeld would have called the