An Outline of Roman Civil Procedure

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An Outline of Roman Civil Procedure Ernest Metzger * Abstract This is a broad discussion of the key feature of Roman civil procedure, including sources, lawmaking, and rules. It covers the three principal
An Outline of Roman Civil Procedure Ernest Metzger * Abstract This is a broad discussion of the key feature of Roman civil procedure, including sources, lawmaking, and rules. It covers the three principal models for procedure; special proceedings; appeals; magistrates; judges; and representation. It takes account of new evidence on procedure discovered in the last century, and introduces some of the newer arguments on familiar but controversial topics. Citations to the literature allow further study. Introduction... 1 Surviving evidence of civil procedure... 3 The scope of the law... 7 The two stages... 9 Challenges, reviews, appeals Principal models and special proceedings Interdict Legis actio Course of proceedings Iudex, arbiter, centumviri Formulary procedure Pleading Praetorian lawmaking Course of proceedings Cognitio Course of proceedings Legacy Legis actiones Formulary procedure Cognitio Introduction English readers have not had a single, article-length account of Roman civil procedure since Leopold Wenger s contribution to the Enzyklopädie der Rechts- und Staatswissenschaft (1927) appeared * Douglas Professor of Civil Law, University of Glasgow. Roman Legal Tradition, 9 (2013), ISSN Published by the Ames Foundation at the Harvard Law School and the University of Glasgow School of Law. This work may be reproduced and distributed for all non-commercial purposes. Copyright 2013 by Ernest Metzger. All rights reserved apart from those granted above. ROMANLEGALTRADITION.ORG 2 Roman Legal Tradition Vol. 9 in the 1930/31 Tulane Law Review, translated by A. Arthur Schiller of Columbia University. 1 The present article covers many of the same topics as Wenger had covered, but takes account of the enormous quantity of new evidence discovered in the last century, as well as new solutions to controversial topics. Ample literature is included to allow further study. Briefly: the Romans resolved civil disputes by recourse to litigation based on law. Litigation was guided by formal procedures which underwent reform by statute, praetorian innovation and imperial enactment. The earlier procedures depended to a high degree on the initiative of the plaintiff and the cooperation of the defendant. The later procedures depended to a greater degree on the power of the courts to compel obedience. 2 1 L. Wenger, The Roman Law of Civil Procedure, Tulane L. Rev., 5 (1930/31), Soon afterwards, an English translation of Wenger s textbook on civil procedure appeared: L. Wenger, Institutes of the Roman Law of Civil Procedure, rev. ed., trans. O. H. Fisk (New York 1940). Barry Nicholas once privately commented that this translation was unreadable. 2 The LEADING REFERENCE WORK on civil procedure is M. Kaser, Das römische Zivilprozessrecht, 2nd ed. K. Hackl (Munich 1996). OTHER GENERAL REFERENCE WORKS J. L. Murga, Derecho romano clasico. 2 El proceso (Zaragoza 1980); G. Pugliese, Il processo civile romano [1. Le legis actiones. 2. Il processo formulare] (Milan 1962/1963). REFERENCE WORKS ON NARROWER TOPICS B. Albanese, Il processo privato romano delle legis actiones (Palermo 1987); F. Bertoldi, La lex Iulia iudiciorum privatorum (Turin 2003); G. Cervenca, Il processo privato romano: le fonti (Bologna 1983); A. H. J. Greenidge, The Legal Procedure of Cicero s Time (Oxford 1901); K. Hackl, Der Zivilprozeß des frühen Prinzipats in den Provinzen, ZSS (RA), 114 (1997), ; Il processo civile nelle province, in F. Milazzo, ed., Gli ordinamenti giudiziari di Roma imperiale. Princeps e procedura dalle leggi Giulie ad Adriano (Naples 1999), ; M. Indra, Status Quaestio. Studien zum Freiheitsprozess im klassischen römischen Recht (Berlin 2011); W. Litewski, Der römisch-kanonische Zivilprozess nach den älteren ordines iudiciarii (Krakow 1999); D. Mantovani, Le formule del processo privato romano. Per la didattica delle Istituzioni di diritto romano, 2nd ed. (Padua 1999); K. W. Nörr, Romanischkanonisches Prozessrecht: Erkenntnisverfahren erster Instanz in civilibus (Heidelberg 2012); N. Palazzolo, Processo civile e politica giudiziaria nel principato, 2nd ed. (Turin 1991); G. Provera, Lezioni sul processo civile Giustinianeo (Turin 1989); D. Simon, Untersuchungen zum justinianischen Zivilprozess (Munich 1969); W. Simshäuser, Iuridici und Munizipalgerichtsbarkeit in Italien (Munich 1973); M. Talamanca, Il riordinamento Augusteo del processo privato, in F. Milazzo, ed., Gli ordinamenti giudiziari di Roma imperiale. Princeps e procedura dalle leggi Giulie ad Adriano (Naples 1999), ; U. Zilletti, Studi sul processo civile Giustinianeo (Milan 1965). SHORTER OR INTRODUCTORY WORKS V. Arangio-Ruiz, Corso di diritto romano. Il processo privato (Rome 1951); idem, Cours de droit romain: les actions [Antiqua, 2], ed L. Labruna (Naples 1980); A. Biscardi, Lezioni sul processo romano antico e classico 2013 An Outline of Roman Civil Procedure 3 Surviving evidence of civil procedure Our understanding of Roman procedure relies on diverse sources, none of which is satisfactory on its own, and even taken together are only adequate. 3 Physical evidence has been lost with time, but the problem is deeper. The Romans did not reflect on their procedural law in the way they reflected on their private law. 4 They did not linger over modes of pleading or representation. If a rule of procedure was unfair or inappropriate, it was mended without a view to the system of litigation as a whole. This prevented the Romans from appreciating that their procedural law had a tradition and an evolution, and that there was something to be learned from studying older law. The result is that the Romans treated old rules as if they were old newspapers. Justinian s compilation and the Theodosian Code are sources for the procedure of late antiquity, but for the earlier forms they are inadequate. Justinian was particularly ruthless: rules that had fallen out of use were often either discarded by the compilers or altered to be fit for re-promulgation. Occasionally the compilers performed these tasks clumsily and the shadow of some earlier law makes itself known through an artless interpolation. But what we miss in Justinian, in strong contrast to his treatment of (Turin 1968); W. W. Buckland, A Text-Book of Roman Law, 3rd ed. rev. P. Stein (Cambridge 1963), ; C. A. Cannata, Profilo istituzionale del processo privato romano (Turin 1982/1989); J. A. Crook, Law and Life of Rome, 90 B.C. A.D. 212 (Ithaca 1967), ch. 3; idem, The Development of Roman Private Law, in J. A. Crook, et al., eds., The Cambridge Ancient History, 9, 2nd ed. (Cambridge 1994), ( The law of actions ); D. Johnston, Roman Law in Context (Cambridge 1999), ch. 6; H. F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed. (Cambridge 1972), , , ; M. Kaser, The Changing Face of Roman Jurisdiction, IJ (n.s.), 2 (1967), ; G. I. Luzzatto, Procedura civile romana (Bologna 1945/1948); G. Nicosia, Il processo privato romano: corso di diritto romano (Turin 1986/2012); E. Seidl, Römische Rechtsgeschichte und römisches Zivilprozessrecht (Cologne 1962), ; A. A. Schiller, Roman Law: Mechanisms of Development (The Hague 1978), , ; M. Talamanca, Processo civile (diritto romano), in Enciclopedia del diritto, 36 (1987), 1 79; idem, Istituzioni di diritto romano (Milan 1990), ; O. Tellegen-Couperus, A Short History of Roman Law (London 1993), 21 24, 53 59, 89 93, ; J. A. C. Thomas, Textbook of Roman Law (Amsterdam 1976), chs Schiller (note 2), , , discusses (and translates into English) a handful of sources. More thorough, but now somewhat out of date, is Cervenca (note 2). 4 Rules of procedure could be found in many parts of the Corpus iuris but the Romans had never gathered them systematically or studied procedure as an autonomous subject. R. Feenstra, Law, in R. Jenkyns, ed., The Legacy of Rome: A New Appraisal (Oxford 1992), 410. 4 Roman Legal Tradition Vol. 9 private law, is even a cursory discussion of old and new rules side by side. The discovery of Gaius Institutes in the early nineteenth century partly answered the need. Gaius wrote in the middle second century AD, and the surviving portions of book four give us an overview of the legis actio and formulary procedures. 5 His treatment is brief but preserves many details. We are especially indebted to him for his discussion of the legis actio procedure, in which his interest was almost wholly historical, and which leaves only the barest traces in other sources. Yet even the formulary procedure was falling out of use when he wrote, so that what he gives us of that procedure is something like a potted account of the main features, rather than the description of an observer or the how-to manual of a practitioner. 6 Among literary authors Cicero ( BC) is the principal source. In certain speeches procedure is front and center (pro Caecina, pro Quinctio), while in others, details of procedure can be extrapolated from single passages or even passing remarks. 7 5 Additional portions of book four were uncovered in the last century, the first ( Oxford fragments ) among the Oxyrhynchus papyri, published in 1927, and the second ( Florentine [or Antinoite] fragments ) on parchment fragments discovered in Cairo and first published in The earlier known portions of the Institutes, preserved in the Digest and in the Epitome of Gaius, do not contain any of book four. A full account of the sources for the Institutes is given in H. L. W. Nelson, Überlieferung, Aufbau und Stil von Gai Institutiones (Leiden 1981), and a full account of the Veronese palimpsest the main source is given in F. Briguglio, Il Codice Veronese in trasparenza. Genesi e formazione del testo delle Istituzioni di Gaio (Bologna 2012), who reports also on new efforts to read the manuscript. The principal editions in English are W. M. Gordon and O. F. Robinson, eds., The Institutes of Gaius (London 1988), and F. de Zulueta, ed., The Institutes of Gaius (Oxford 1946/53), 2 vols. A new critical edition, published by Duncker and Humblot, is in preparation; recent volumes are edited by H. L. W. Hein and U. Manthe. A volume treating book four has not yet appeared. How this new critical text might be affected by the work Briguglio, cited above, is unclear. 6 Two authors with practical information on procedure are: Marcus Valerius Probus (latter first century AD), who gives a listing of abbreviations used in statutes, edicts, and other sources affecting procedure, and their meanings ( De notis iuris fragmenta, in J. Baviera, ed., Fontes Iuris Romani Antejustiniani, 2 (Florence 1968), ), and Sextus Pompeius Festus (latter second century AD), whose abridgment of Marcus Verrius Flaccus De verborum significatu preserves many terms used in litigation (W. M. Lindsay, ed., Sexti Pompei Festi de verborum significatu (Leipzig 1913)). 7 For the procedure in Cicero, Greenidge (note 2) is old but still valuable. See also A. Lintott, Legal Procedure in Cicero s Time, in J. Powell, et al., eds., Cicero the Advocate (Oxford 2004), 61 78; B. Frier, The 2013 An Outline of Roman Civil Procedure 5 Other important authors are Aulus Gellius (AD 125/8 ca. 180), who saw service as a judge and recorded thoughts and observations on the law, Horace (65 8 BC), Pliny the Younger (AD ca. 61 ca. 112), and Macrobius (fifth century AD). Plautus (third to second century BC) 8 is rich but requires special care, because the procedure he describes is not always Roman, and because he often uses a rule of procedure for humorous effect, requiring the reader to divine the law and the joke at the same time. Quintilian (first century AD) needs special mention as a source, because he was long underappreciated. Proceeding from the part truth, part conceit that Justinian s Corpus iuris is legislation, the natural lawyers and their equally enthusiastic systematisers in the nineteenth century gave special place to the legal sources that were, after all, the raw material for their systems. Literary sources were sidelined, and Quintilian s Institutio oratoria (and, for that matter, Cicero s rhetorical works) were seen to belong to another discipline altogether. We now appreciate far better that Quintilian is a valuable source for procedure; much of what took place in litigation was unwritten in the law and shaped by the work of advocates. 9 Statutes and records of private affairs survive in inscriptions: their value to the study of procedure is enormous. 10 Even imperfectly preserved, they come to us free from abbreviation, interpolation, etc. They convey rules and customs that were uninteresting to subsequent generations, and events that were ephemeral Rise of the Roman Jurists (Princeton 1985) (on the pro Caecina); J. Platschek, Studien zu Ciceros Rede für P. Quinctius (Munich 2005); J. Harries, Cicero and the Jurists: From Citizens Law to the Lawful State (London 2006), ch. 7; E. Metzger, Litigation in Roman Law (Oxford 2005), 19 44, (on the pro Quinctio). 8 See e.g. A. Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New Comedy (Cambridge 1997); L. Pellecchi, Per una lettura giuridica della Rudens di Plauto (Faenza 2012). 9 On the use of Quintilian, see O. Tellegen-Couperus, Introduction, in O. Tellegen-Couperus, ed., Quintilian and the Law: The Art of Persuasion and Politics (Leuven 2003), On the role of advocacy and its relation to law, see J. A. Crook, Legal Advocacy in the Roman World (London 1995), ch. 1; B. Frier, Finding a Place for Law in the High Empire, in F. de Angelis, ed., Spaces of Justice in the Roman World (Leiden 2010), For a study of Roman advocacy using Quintilian generously, see L. Bablitz, Actors and Audience in the Roman Courtroom (Abingdon 2007), The standard reference for statutes is M. H. Crawford, ed., Roman Statutes (London 1996), 2 vols. Many records of private affairs are collected in Fontes Iuris Romani Anteiustiniani, 3 [Negotia], 2nd ed. V. Arangio- Ruiz (Florence 1969), though this does not include the great majority of records discovered in the twentieth century, on which see below. 6 Roman Legal Tradition Vol. 9 even to contemporaries. As such they can give us a direct view of daily life in the courts and, substance aside, their drafting gives us clues to juristic practice. Many new and valuable inscriptions were discovered only in the last century. We now possess, for example, many Roman formulae and can compare them to Gaius description. 11 Among the 11 This group of sources divides into model formulae (essentially templates that litigants would complete) and completed formulae prepared for specific litigation. Of the former type: (1) the lex de Gallia Cisalpina (first century BC), c. 22, a statute prescribing laws for Cisalpine Gaul, and containing two model formulae to be used for trial when a person fails to make the required performance in a proceeding for damnum infectum: see Roman Statutes (note 10), no. 28; F. J. Bruna, Lex Rubria: Caesars Regelung für die Richterlichen Kompentenzen der Munizipalmagistrate in Gallia Cisalpina (Leiden 1972), 28 30, ; (2) the Tabula Contrebiensis (87 BC) from Botorrita in Spain, preserving on bronze the judgment in a border dispute: see CIL I a; B. Díaz Ariño, Epigrafía Latina Republicana de España (Barcelona 2008), 95 98; J. S. Richardson, The Tabula Contrebiensis: Roman Law in Spain in the Early First Century BC, JRS, 73 (1983), 33 41; P. Birks, A. Rodger, and J. S. Richardson, Further Aspects of the Tabula Contrebiensis, JRS, 74 (1984), 45 73; (3) Lex rivi Hiberiensis (AD ), an inscription containing a decree governing an irrigation community on the Ebro in Hispania Citerior, and including a formula for a trial on the imposition of a penalty: see M. H. Crawford and F. Beltrán Lloris, The Lex rivi Hiberiensis, JRS, 103 (2013), 233; F. Beltrán Lloris, An Irrigation Decree from Roman Spain: The Lex Rivi Hiberiensis, JRS, 96 (2006), ; D. Nörr, Prozessuales (und mehr) in der Lex Rivi Hiberiensis, ZSS (RA), 125 (2008), ; (4) a legal fragment from Egypt, PSI VII 743 recto fr. e (ca. AD 100), part of an instructional work used for teaching Greek, containing the condemnatio for a formula seeking an incertum, the formula translated into Greek and then presented in the Roman alphabet: see S. Ciriello and A. Stramaglia, PSI VII 743 recto (Pack ): Dialogo di Alessandro con i ginnosofisti e testo giuridico Romano non identificato, Archiv für Papyrusforschung, 44 (1998), ; D. Nörr, PSI VII 743r fr. e: Fragment einer römischen Prozesßformel? Bemerkungen zum vorhadrianischen Edikt und zu den Hermeneumata Pseudodositheana, ZSS (RA), 117 (2000), Of the latter type: (5) A formula in an action on a debt from Puteoli (first century AD), preserved on a waxed tablet: TPSulp. 31, in Camodeca, Tabulae pompeianae Sulpiciorum (cited below, note 12); (6) three formulae in papyri (P. Yadin. 28, 29, 30) from the province of Arabia (ca. AD 124), partly prepared in anticipation of a suit on guardianship to be tried before a panel of judges in Judaea: N. Lewis, ed., The Documents from the Bar Kokhba Period in the Cave of Letters: Greek Papyri (Jerusalem 1989), ; H. Cotton, The Guardianship of Jesus Son of Babatha: Roman and Local Law in the Province of Arabia, JRS, 83 (1993), ; D. Nörr, The Xenokritai in Babatha s Archive (Pap. Yadin 28 30), Israel L. Rev., 29 (1995), 83 94; idem, Prozessuales aus dem Babatha-Archiv, in Mélanges de droit romain et d histoire ancienne. Hommage à la mémoire de André Magdelain (Paris 1998), 2013 An Outline of Roman Civil Procedure 7 most valuable of the new discoveries are the collections of firstcentury waxed tablets from Herculaneum and Puteoli, both of which collections include documents prepared for litigation. 12 Another valuable new source is the lex Irnitana, a copy of a model town charter prepared for municipia in Spain. The lex Irnitana contains detailed rules on conducting lawsuits, and many of the rules directly reflect the practice in Rome. 13 The scope of the law Litigation was governed by law but the law was not comprehensive: litigants supplemented the law with practices that acknowledged but were not determined by the law, and advocates conducted trials based on rules and practices developed outside the operation of the law altogether. The present day owes its comprehensive laws of procedure to its enthusiasm for testing its systems against wider principles such as hear both sides and due process, and reforming the law to suit. Roman procedure was not deaf to these principles nor resistant to improvement, but there were no means to challenge the validity of questionable law in a way that might have led to wider reflection and a more 12 The Herculaneum tablets were discovered in the 1930s and texts were published in succeeding decades by Giovanni Pugliese Carratelli and Vincenzo Arangio-Ruiz. In the last two decades Giuseppe Camodeca has re-edited many of these texts, and a new edition is forthcoming. These tablets date to the late first century. The Puteoli tablets were discovered in 1959 near Pompeii, and date to the middle first century. Many of them relate to a family, the Sulpicii, that engaged in banking activities. The critical edition is Giuseppe Camodeca, ed., Tabulae Pompeianae Sulpiciorum (TPSulp.). Edizione critica dell archivio puteolano dei Sulpicii (Rome 1999). The two collections are introduced and discussed in P. Gröschler, Die tabellae-urkunden aus den pompejanischen und herkulanensischen Urkundenfunden (Berlin 1997). The Puteoli tablets are discussed in their economic context in J. Andreau, Banking and Business in the Roman World, trans. J. Lloyd (Cambridge 1999), 71 79, and there is a popular account in D. Jones, The Bankers of Puteoli: Finance, Trade, and Industry in the Roman World (Stroud 2006). For a fascinating and provocative treatment of Roman tablets generally, see E. A. Meyer, Legitimacy and Law in the Roman World (Cambridge 2004). 13 The critical texts are: J. Gonzáles, The Lex Irnitana: A New Copy of the Flavian Municipal Law, JRS, 76 (19
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