What were the legis actiones? How did they work? Why and when were they abolished?

The trial was separated into two stages, the first being the preliminary hearing before the magistrate who from 367BC was the Praetor, and the second stage being held before the iudex (a judge). At the preliminary hearing the two parties appeared together before the Praetor, this first stage was in iure. The object of which was to define exactly what type of action the plaintiff was requiring. The plaintiff was required to set out his claim in specific terms or words. The defendant (providing he was in dispute of the claim)  then replied in specific terms. These claims and counter-claims in specific words constituted the legis actiones themselves. The plaintiff’s and defendants had to be very careful in their usage of the specific words as Gaius emphasised stating  

“it was held that a man who, when suing for the cutting down of his vines had used the words ‘vines’, had lost his claim because he ought to have said ‘trees’, seeing that the law of the Twelve Tables, on which his action for the cutting down of his vines lay, spoke of cutting down trees in general”

The legis actiones appear to have been statutes on which claims were based on although it has been suggested that some legis actio’s were based on customary law. Gaius identified five forms of procedure by way of the legis actio. However, Jolowicz has agreed that these forms of procedure were not specific procedures, rather they were defined areas into which these specific procedures could be placed.

The first form identified by Gaius is sacramentum, which was of a general nature and was applied where no other relevant statute was found. The form differed if the action was in rem or in personam. Gauis details more about actions in rem and it is to this that we turn. Where possible the parties brought before the magistrate the piece of property that was in dispute and stated their claims over it. Following this the plaintiff laid down a wager (sacramentum), dependant on the level of importance of the property to him as did the defendant. The party who eventually lost the claim forfeited the money to the public purse, the idea being that this would prevent frivolous actions. The magistrate would then give interim possession to one of the parties, who had to lay down security for the property in the event of them losing the claim. If the action was in personam the parties made their claims and laid down similar wagers, although there was no physical property to hand over. At this point parties taking part in both in rem and in personam actions were left for thirty days in the hope that they would resolve the action themselves. After the thirty days had passed they appeared before the magistrate and a iduex was decided upon. It appears that while the parties did not necessarily choose their judge they could prevent someone they did not want.

The second procedure is that of iudias postulatio which was available for claims of  stipulatio (a form of contract) and property and inheritance disputes. This procedure was more convienient and the plaintiff could often choose between it and sacramentum. This was more efficient, if the defendant denied the claim, the judge could be appointed immediately without waiting a month. In this form there were no requirements of formal language other than stating the claim, and there was no wager to put down, making this action less risky for both parties. Often in these cases a iudex or arbiter was appointed, the iudex deciding on matters of liability whereas the arbiter had more flexibility to use his discretion.

Of the remaining three procedures, two are held to have been involved in the execution of an action following a completed litigation procedure and the third, the condictio  was established in the third century BC as a more convenient procedure compared to the sacramentum reflecting the growing importance of consensual contracts, for example those of the hire of an object.

Progressing to the full trial before the iudex, or arbiter  there were clear differences. This second stage was informal and often heard outside. Following speeches made by advocates, the judge would deliver his opinion orally. If he could not decide, the action was sent back to the magistrate to re-appoint another judge. The judge had to give his judgement to both parties, as the judgement was not binding on any absent party.

Execution of the judgement was at that time regarded as being the responsibility of the plaintiff, with the authorisation coming from the judgement. It is at this point that the remaining two legis actiones identified by Gaius are introduced. The first manus infectio gave the debtor thirty days to comply with the judgement after which the creditor could take the debtor before the magistrate and ceremonially seize him. This was applied to actions in personam and allowed the creditor to imprison the debtor; if he did not pay; for up to sixty days. If nothing was done by the end of the sixty days the debtor could be sold into slavery or killed, although this was ended by the Lex Poetelia 326 BC whereby the creditor could keep the debtor until he had worked off the debt.

The second execution legis actiones was that of pignoris capio, the taking of a pledge, and allowed the creditor to take a piece of the debtors property, to pressurise him into paying the debt. This procedure required a set of words but they did not have to be spoken in front of the magistrate. It appears that the legis actiones were basically the procedures through which civil litigation took place in the period 450 BC to 200 BC. Generally, they invoked a set form of words based on a  statute or custom and involved the two parties to the claim as well as the magistrate although the pignoris capio did not.

However, the legis actiones were decreasing in use around 200 BC as their popularity declined and were largely abolished by the Lex Aebutia  and  Lex Luliaes  around 145-120 BC. The system declined in popularity as Rome developed from a small city-state to the centre of an Empire. This resulted in the law developing and becoming more complex at the same time as the population was increasing and becoming more diversified. The legis acitones were only relevant to Roman citizens, this led to a separate formulary system being created by the peregrine praetor. The formulae system was less formal and applied to non-Roman citizens  and eventually the Roman people demanded that the formulae system be introduced for them. The lex Aebutia formally recognised the formula system and Augustus abolished the legis actiones. While there had been improvements made to the legis actiones system, the increasing size and diversity of Rome made the system unworkable.

In conclusion, it appears that the legis actiones were the set procedures through which civil litigation progressed. They in general were very formal and often required statements to be made formally in the required language in front of the magistrate. According to Gaius they included procedure for the summons, the trial and the execution of the civil litigation procedure of Rome and were applied from the time of the Twelve Tables to around 200 BC. They were abolished by Augustus formally during the principate but were effectively abolished by the Lex Aebutia which recognised the formula system for civil litigation.

BIBLIOGRAPHY

Borowski A.         Textbook on Roman Law 2nd Edition, London, Blackstone Press, 1997

Institutes of Gaius, Oxford, Clarendon Press, 1946

Jolowicz H.F.        Historical Introduction to study of Roman Law, Cambridge,

Cambridge University Press, 1972

Robinson O.F.        Sources of Roman Law, London, Routledge, 1997

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