The Civil Law, No. II [pp. 486-492]

THE CIVIL LAW.
"superic,ure est d6cilue de son monopole; la Pl16be est affranchie dec
ia tjustice patricienne: le citoyen. cornmre nious dirions cn lanr,ue,
st jugr par ces pairs" (Gni6ral., ~ 9,1).
During this period the coiseccrate(l words and( acts, the sm-lllols
;,nd material objects have d(lisappeare(l. They are replaced by thec
science of the law.'Tlhe magistrate charged with organizing the
ju(licium, performis his duty by delivering to the parties, after tlhe
judicial proceedings which take place before binm (it jurc), a fbr.ula, which is to goxvern in the filture steps to be taken. The par tics go )eftore the magistrate, the plaintiff makes his charge (iiutceltio),
the defendant sets up his defense (exceptio), the plaintiff; it' need be,
replies (replicatio), to which there miay be a triplicatio, &c., in a
manner very analogous to the cominmon law mode of special plead ing. From these reciprocal allegations and statements the miagis trate -makles out his formula, as a (lireection to the jud(ex. ie states
first, by war of inducement, the subject-miatter of the controversy,
then he settles the points which the pl,aintiff' Unsit sustain by proof,
the defense to be established by the defendant, and any other recip rocal matters of charge and rel)ly of the p)arties litigant, and finally
].e declares the jultgni, it whicl is to be'ivein a(ccording to the result
of the trial-solmcetimes fixing strictly the ju(lgmc:t to be pronounceld,
at other times leaving more or less latitude to the judge. The re dlaction of these formulae is then the most important part of the pro ce,,ltve under this system.'I'lce whole care of the law is directed to
this point. The most renowne(l jurisconsults are consulted by the
suiitors, and by the imagistrate. Each riglit has its appropriate form mila. These fornmule are drawn up in advance, incorporated into the
law, and exposed to the pubiic. The plaintiff poilits out before the
tributnal of the magistrate the form lie requires; the elements are
c.anvassed between the parties, the formula accommodated to the par ticular case, and finally delivered by the praetor.
The demand of the formula was styled, " postulatio, impetratio formula, vel actionlis, vel judicii." The principal parts of the formula
were:
1. The caption. "Judex esto.'
2. Demonstratio. The statement by way of inducement, which
might be omitted. "Quod Auius Agerius Numerio Negidio hominem
vendidit."
3. Intentio. The specification, or summary of the claim of the
plaintiff, which constituted the essential part of the formula: " Si
paret hominem ex jure Quiritiumn Auli A(rgerii esse." We have seen
that the defendant isigTht admnit the plaintiff's claim to have once been
just, and set up a defense in avoidance; to which the plaintiff might
reply, and so on. In such cases the exceptio, rcplicatio, &c., were
noticed in this part of the formula. Thus, suppose the intentio to be
"Si paret Negidiumn Aulo Agerio sestertium x millia dare oportere."
The exceptio would be "Si in ea re nihil (dolo malo Auli Agerii facturm sit neque fiat," or, "Si inter Aulums Agerium et Numrneriurni
Negidium non convenit ne ea pecunia peteretur." And so of the
rEl)icatio, triplicatio, &c.
4. Condemnatio. The order to the judge to contdcmn or acquit,
490