In civil cases, the principal form of action was the Leqii nrtio sacramcnlo, a survival of the trial by oath before the ixmtili's. Proceedings were in- variably begun by the plaintill', who found his man, summoned him by word of mouth to accompany him before the magistrate, haling him by force [mamis iniec.tio) if he refused, or poinding his goods (piqnoris cnpio) if he shut himself up in his house. The plaintiti" stateil his ground of com- plaint before the magistrate (king, consul, or prajtor), and a date was li.xed for further procedure.
both parties engaging to present themselves, and the defendant ollering securities {rni/cs). On the day a|ipointed, each appeared in court with a stall" (fcstiicu), the symbol of ownership, by which he laid claim (vindiiiitio) to the person or jiroperty in question. Issue being thus joined, both took the sacramentum (now secularized into a mere staking of money against defeat), and the case was referred to a special index or arbiter, before whom proceedings passed tn iudicium. The fornuil ques- tion to be here decided was, ' Is the sacrnmoitiim of N. N. just or unjust?' This, however, raised the whole question afresh. According to ancient custom, the persona or res in dispute must be present in court. If the res were immoveable, the court adjourned to the place, and vindim/io was made there, though at a later date some turf or stone taken from the siiot was accepted in lieu of the property. The claim being made and dis- puted, probation was led before the index, and judgment given always in view of the spccilic charge, any failure to make good the full claim being regarded as a ground for acquittal.
The cumbrous methods and insecurity of the sacr.amental process led to the gradual adoption of the ' formular ' system so widely in vogue during the Ciceronian age. Under thissvstem the prajtor (who from 367 B.C. presided over Itoman justice as a whole), on hearing the claims of both parties in iure, drew up a judicial formula, embodying a brief statement of the case in dispute {demon- stratio), the plaintiffs claim (intentio), a request to the judge to adjudicate the jierson or property as he thought most fitting (adjudieatio), and in- structions to condemn the accused or dismiss the case as the evidence warranted (condenmatio). The formula being accepted by bolih parties and their respective witnesses (litis contestatio), it was forwarded to a iudex, to be tried on a day lixed by the court. The hearing before the judge was always in public, the judge being usually accom- panied by a board of assessors (concilium), and the parties by skilled lawyers and orators (advocati and joa^roni), who helped them in their pleadings. The charge was presented by plaintifl'or his counsel, the defence following with the counter-i)lea, a sharp altercatio or cross-examination usually ter- minating this part of the jiroceedings. Evidence was produced and commented on during the plead- ings. In civil cases witnesses appeared voluntarily, their evidence being taken on o.ath (that of slaves under torture, hut only in default of other witness). Written documents and declarations (tnOidw, co- dices, or instrt/menta) might also be produced ; and the opinions of juris-consults were often laid before the judge. The burden of proof rested, as a rule, on the pursuer ; but the judge was allowed a wide discretion, subject only to the instructions given in the for7)ndn. On the full hearing of the case, the judge retired in connilium, to discuss the evidence with his assessors and arrive at an equit- able decision. Judgment was delivered orally, without reasons given, in presence of both parties. Execution of judgment was left to the winner ; but strong judicial pressure was brought to bear on a recalcitrant debtor. Appeal was allowed, either by a simple Appello in court, or by ap]iIicatioTi for a dimissory letter to the judge of appeal, the letter stating the fact of the ap|)eal and the names of parties and judge. The appeal involved a re- hearing of the whole case, new facts and witnesses being freely allowed. Final judgment was arrived at through the evidence submitted to the higher court ; and an unsuccessful appellant was made liable for four-fold his rival's costs in appeal.
Criminal cases were originally tried before the king in jierson ; but at an early date special duum- viri perduellionis and gucvstores parricidii were
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appointed for cliargea of treason and murder. Appeal to the people against the death sentence {provocntio ad populum) was allowed as a riglit nora the lirst year of the Republic ; thus criminal cases came more and more to be tried directly before the comitia populi. Proceedings here began with an inqaiiUio or preliminary investigation, conducted by the magistrate in presence of a contio, or informal gathering of the people, which sat for three days, and heard evidence on both sides. The result of each day's investigation was embodied in a tentative accusatio, which could be modified or expanded by subsequent evidence. On the third day the charge was definitely formu- lated ; and after an interval of three market-days (24 days), as a quarta accusatio, backed by a fresh contio of the people, it was brought before the comitia in the shape of a Bill (inrogatio) to be passed or rejected by vote of the assembly. The case against the accused was formally presented by the magistrate ; defence was made in person, or by friends of the accused (the assistance of advocates being permitted in the later period of the Republic) ; witnesses were heard and examined as in civil suits ; the comitia then voted as in the regular legislative proceedings of the assembly, and sentence was pronounced by the magistrate in terras of the vote. Execution was forthwith carried out by officials of the court, unless the accused had previously made good hia escape and become an exile.