Roman litigation

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.^[1]

Summons

Summons under the legis actiones system were in the form of in ius vocatio, conducted 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.

Preliminary hearing

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.^[2] 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.

Full trial

Once the judge had been appointed, the full trial could begin. This was fairly informal compared to the preliminary hearing, and was supposed under the Twelve Tables to take place in public (the Forum Romanum was frequently used). While the witnesses could not be subpoenaed, the dishonorable status of intestabilis would be conferred on a witness who refused to appear. There were few rules of evidence (and both oral and written evidence were permitted, although the former was preferred) aside from the plaintiff having the burden of proof. The trial consisted of alternating speeches by the two advocates, after which the judge gave his decision.

Execution

Unlike in the modern legal systems, victorious parties had to enforce the verdict of the court themselves. However, they were entitled to seize the debtor and imprison him until he repaid the debt. After sixty days of imprisonment, the creditor was entitled to dismember the debtor or sell him into slavery, although after the Lex Poetelia of 326 BC, the creditor could take no action other than continued imprisonment of the debtor.

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Praetor

Praetor

Praetor, also pretor, was the title granted by the government of Ancient Rome to a man acting in one of two official capacities: (i) the commander of an army, and (ii) as an elected magistratus (magistrate), assigned to discharge various duties. The functions of the magistracy, the praetura (praetorship), are described by the adjective: the praetoria potestas, the praetorium imperium, and the praetorium ius, the legal precedents established by the praetores (praetors). Praetorium, as a substantive, denoted the location from which the praetor exercised his authority, either the headquarters of his castra, the courthouse (tribunal) of his judiciary, or the city hall of his provincial governorship.

Plaintiff

Plaintiff

A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order. "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exceptions being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant" and Scotland, where the party has always been known as the "pursuer". In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

Defendant

Defendant

In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.

Judge

Judge

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility and arguments of the parties, and then issues a ruling in the case based on their interpretation of the law and their own personal judgment. A judge is expected to conduct the trial impartially and, typically, in an open court.

Legal wager

Legal wager

In the Roman litigation system, while the Legis Actiones procedure was in force during the early Republic, both parties had to lay down a wager at the preliminary hearing, probably to discourage frivolous litigation. In some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs. There were three different types of legis actiones, and the wager differed in each one.

Roman Senate

Roman Senate

The Roman Senate was a governing and advisory assembly in ancient Rome. It was one of the most enduring institutions in Roman history, being established in the first days of the city of Rome. It survived the overthrow of the Roman monarchy in 509 BC; the fall of the Roman Republic in the 1st century BC; the division of the Roman Empire in AD 395; and the fall of the Western Roman Empire in 476; Justinian's attempted reconquest of the west in the 6th century, and lasted well into the Eastern Roman Empire's history.

Roman Republic

Roman Republic

The Roman Republic was a form of government of Rome and the era of the classical Roman civilization when it was run through public representation of the Roman people. Beginning with the overthrow of the Roman Kingdom and ending in 27 BC with the establishment of the Roman Empire, Rome's control rapidly expanded during this period—from the city's immediate surroundings to hegemony over the entire Mediterranean world.

Twelve Tables

Twelve Tables

The Laws of the Twelve Tables was the legislation that stood at the foundation of Roman law. Formally promulgated in 449 BC, the Tables consolidated earlier traditions into an enduring set of laws.

Subpoena

Subpoena

A subpoena or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoenas:subpoena ad testificandum orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person. subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.

Evidence (law)

Evidence (law)

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

Advocate

Advocate

An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, in Scottish, Manx, South African, Italian, French, Spanish, Portuguese, Scandinavian, Polish, Israeli, South Asian and South American jurisdictions, "Advocate" indicates a lawyer of superior classification.

Due to the faults of the legis actiones system, namely its excessive formality, archaic nature, and limited effectiveness, a new system was introduced. This was known as the formulary system. The formula was a written document by which in a civil trial authorization was given to a judge to condemn the defendant if certain factual or legal circumstances appeared proved, or to absolve him if this was not the case.^[3]

Origins

The formulary system was originally used by the peregrine praetor (who was responsible for the affairs of foreigners in Rome) to deal with cases involving foreigners, which often involved substantial sums of money. This allowed the use of formulae, standardized written pleadings, to speed up cases. This was soon, by popular demand, adopted by the urban praetor for use by all Roman citizens. The lex Aebutia, of an uncertain date but somewhere between 199 BC and 126 BC, is connected with the reform of civil procedure, and it can be stated that it abolished the legis actiones and introduced the formulary procedure. The reform was completed by two statutes of Augustus under the name of leges Iuliae iudiciariae.^[3]

Summons

Defendants were summoned under the formulary system in a similar manner to under the legis actiones. The defendant was still summoned orally, but had an extra option; rather than immediately going to court, he could make a vadimonium, or promise, to appear in court on a certain day, on pain of a pecuniary forfeit. Although the plaintiff could still physically drag his opponent to court, this was scarcely used. Instead, the plaintiff could be given permission by the praetor to take possession of the defendant's estate, with a possible right of sale.

Preliminary hearing

Just like in the old legis actiones system, this took place before the praetor. During the hearing, a formula was agreed on. It consisted of up to six parts: the nominatio, intentio, condemnatio, demonstratio, exceptio, and praescriptio.

Nominatio

This part appointed a judge, in a similar matter to before, with the plaintiff suggesting names from the official list until the defendant agreed. If there was no agreement, the praetor would decide.

Intentio

This was the plaintiff's statement of claim, where he stated the allegation on which his claim was based. An example of an intentio could be, "If it appears that the property which is disputed belongs to Aulus Agerius at civil law,".

Condemnatio

The condemnatio gave the judge authority to condemn the defendant to a certain sum or to absolve him. An example of a condemnatio could be, "[If it appears that he is guilty], Condemn Numerius Negidius to Aulus Agerius for 200 denarii; otherwise absolve him."

Demonstratio

The demonstratio was used only in unliquidated, in personam claims, and stated the facts out of which the claim arose.

Exceptio and replicatio

If the defendant wished to raise a specific defense (such as self-defence), he would do so in an exceptio. However, if the plaintiff was desirous of refuting the defence, he could file a replicatio, explaining why the defence was not valid. The defendant could then file another exceptio, and so on. The last of these to be proved on the facts "won".

Praescriptio

This somewhat legalistic clause limited the issue to the matter in hand, avoiding litis contestatio, where the plaintiff was prevented from bringing another case against the same defendant on a similar issue.

Oath-taking

The case could sometimes be settled entirely through the preliminary hearing. The plaintiff could challenge the defendant to take an oath supporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, he had a third option - he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (he could not return the oath to the defendant). Justinian had this to say about the taking of oaths:

"(1) Where a party is sued in any kind of an action, if he makes oath it will be a benefit to him..." Source: Digesta of Justinian, Book 12, Title 2.

While it may seem odd to a modern observer to decide a case merely through the taking of oaths, it is important to note that a solemn oath before the Gods was regarded by the Romans as a serious matter, and even a rogue would be unwilling to perjure himself in such a fashion, and the penalties for perjury were severe.

Full trial

Full trials under the formulary system were essentially the same as under legis actiones.

Execution

While the creditor was still essentially responsible for executing the judgement, there was now a remedy he could look to. This was called bonorum vendito. Thirty days after the judgement, the creditor would apply for an actio iudicati, giving the debtor a last chance to pay. If he failed to meet the debt, the creditor could apply to the praetor for missio in possessionem ("sending into possession"). He would then publicise the bankruptcy, giving other creditors a chance to come forward, thirty days after which the creditors would meet to appoint an executor.

This executor would prepare an inventory of the debtor's estate, and then hold a public auction, with the entire estate going to the bidder who was prepared to meet the greatest proportion of the debt. However, the debtor remained liable for any portion of the debt which was not met. The reason for this was probably that the bonorum vendito remedy could be used as a threat to encourage a debtor to pay up.

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Praetor

Praetor

Praetor, also pretor, was the title granted by the government of Ancient Rome to a man acting in one of two official capacities: (i) the commander of an army, and (ii) as an elected magistratus (magistrate), assigned to discharge various duties. The functions of the magistracy, the praetura (praetorship), are described by the adjective: the praetoria potestas, the praetorium imperium, and the praetorium ius, the legal precedents established by the praetores (praetors). Praetorium, as a substantive, denoted the location from which the praetor exercised his authority, either the headquarters of his castra, the courthouse (tribunal) of his judiciary, or the city hall of his provincial governorship.

Lex Aebutia de formulis

Lex Aebutia de formulis

Lex Aebutia de formulis was a law established in ancient Rome in around 150 BC, though the date is quite uncertain.

In personam

In personam

In personam is a Latin phrase meaning "against a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint (E&W known as Particulars of Claim to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment".

Defense (legal)

Defense (legal)

In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.

Oath

Oath

Traditionally an oath is either a statement of fact or a promise taken by a sacrality as a sign of verity. A common legal substitute for those who conscientiously object to making sacred oaths is to give an affirmation instead. Nowadays, even when there is no notion of sanctity involved, certain promises said out loud in ceremonial or juridical purpose are referred to as oaths. "To swear" is a verb used to describe the taking of an oath, to making a solemn vow.

Justinian I

Justinian I

Justinian I, also known as Justinian the Great, was the Eastern Roman emperor from 527 to 565.

Deity

Deity

A deity or god is a supernatural being who is considered divine or sacred. The Oxford Dictionary of English defines deity as a god or goddess, or anything revered as divine. C. Scott Littleton defines a deity as "a being with powers greater than those of ordinary humans, but who interacts with humans, positively or negatively, in ways that carry humans to new levels of consciousness, beyond the grounded preoccupations of ordinary life".

Sentence (law)

Sentence (law)

In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for multiple crimes may be a concurrent sentence, where sentences of imprisonment are all served together at the same time, or a consecutive sentence, in which the period of imprisonment is the sum of all sentences served one after the other. Additional sentences include intermediate, which allows an inmate to be free for about 8 hours a day for work purposes; determinate, which is fixed on a number of days, months, or years; and indeterminate or bifurcated, which mandates the minimum period be served in an institutional setting such as a prison followed by street time period of parole, supervised release or probation until the total sentence is completed.

Perjury

Perjury

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

Auction

Auction

An auction is usually a process of buying and selling goods or services by offering them up for bids, taking bids, and then selling the item to the highest bidder or buying the item from the lowest bidder. Some exceptions to this definition exist and are described in the section about different types. The branch of economic theory dealing with auction types and participants' behavior in auctions is called auction theory.

The cognitio system was introduced some time after the Republic was replaced by the Empire. The main philosophical difference between the cognitio systems and those that had gone before was that, whereas the previous two essentially consisted of the State providing a system under which the two parties could resolve disputes between themselves - the basis of the case was agreed, but the case was then handed over to a private judge, and no judgement in default was available. In the cognitio, however, the State basically resolved the entire case, in the same manner as our current systems.

Summons

As in modern legal systems, the summons was served upon the defendant by the court. No longer did the plaintiff have to physically drag the defendant to court. Instead, he would lodge a libellus conventionis (a statement of claim), which would be served on the defendant by a court official, who could arrest him if he failed to appear. If he was unable to be brought to court on three separate occasions, Judgement-in-default could be entered against him. This highlights the philosophical difference between the cognitio and earlier systems—whereas before a trial required the consent of both parties, it could now be imposed by the state.

Trial

In the cognitio system, the trial took place before a magistrate, rather than a lay judge. The process tended to be less adversarial than before, as the magistrate had sole control over the case, and could admit whatever evidence he pleased. Documentary evidence was now considered to be of vital importance (indeed, a rule was introduced to the effect that a document could not be defeated by oral testimony alone). The magistrate's decision was read out in court and given in writing to both parties. As he was not bound by a formula, the magistrate could hand down a more discretionary ruling than was possible before.

Enforcement

Whereas before the victor was responsible for enforcing payment himself, he could now ask the court bailiffs to seize the defendant's property to be sold at auction.

Appeals

Under the cognitio system, an appeals procedure was available for the parties. The appeals process was extremely complex, but essentially consisted of the progression of the case through higher and higher courts, possibly culminating in the Emperor himself.

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Failure to appear

Failure to appear

A "failure to appear" (FTA) occurs when a defendant or respondent does not come before a tribunal as directed in a summons. FTAs are also known as "bail jumping." In the United States, FTAs are punishable by fines, incarceration, or both when committed by a criminal defendant. The severity of the punishment depends on the seriousness of the criminal charges that were the subject of the missed proceeding. An FTA may trigger a bench warrant for the defendant's arrest and impair their eligibility for bail and pretrial release in subsequent proceedings.

Summons

Summons

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

Magistrate

Magistrate

The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a magistratus was one of the highest ranking government officers, and possessed both judicial and executive powers. In other parts of the world, such as China, a magistrate was responsible for administration over a particular geographic area. Today, in some jurisdictions, a magistrate is a judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters. In other jurisdictions, magistrates are typically trained volunteers appointed to deal with criminal and civil matters in their local areas.

Adversarial system

Adversarial system

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems where a judge investigates the case.

Discretion

Discretion

Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it positively. Discretion exists at all levels of law enforcement and in many types of front-line bureaucrats. Discretion has been called "the Art of suiting the action to particular circumstances". Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power. The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed.

Bailiff

Bailiff

A bailiff is a manager, overseer or custodian – a legal officer to whom some degree of authority or jurisdiction is given. Bailiffs are of various kinds and their offices and duties vary greatly.

Emperor

Emperor

An emperor is a monarch, and usually the sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife, mother/grandmother, or a woman who rules in her own right and name. Emperors are generally recognized to be of the highest monarchic honor and rank, surpassing kings. In Europe, the title of Emperor has been used since the Middle Ages, considered in those times equal or almost equal in dignity to that of Pope due to the latter's position as visible head of the Church and spiritual leader of the Catholic part of Western Europe. The Emperor of Japan is the only currently reigning monarch whose title is translated into English as "Emperor".