§ 15.: Reforms in Procedure effected during the later period of the Republic.

The progress effected during this period in the theory of law was accompanied by a great reform in procedure. From about 150 b. c. the process both of the civil and criminal courts began to assume a form which was final for the period of the Republic, and which was supplemented, but not altered, during the greater part of the period of the Principate. In the domain of Civil Procedure, a Lex Aebutia gave some kind of formal sanction to the practice by which the Praetor tended to substitute the simpler Formula for the more complex Legis Actio. The Formula had perhaps first been employed in the statement of cases for Peregrini. Its utility commended its use for cases in which Roman citizens alone were involved. The Praetor Urbanus employed it for his honorary jurisdiction; it was then transferred (doubtless by the Lex Aebutia) to the civil law as an alternative, in most cases, to the Legis Actio. We cannot say in Edition: current; Page: [xli] what form the alternative was presented. We know that the law must have exempted certain kinds of jurisdiction from the Formula—the jurisdiction, for instance, of the Centumviral and Decemviral courts. But it may have allowed the Praetor to substitute the one procedure for the other in most spheres of civil jurisdiction; and, where the Praetor still permitted the Legis Actio and the Formula to stand side by side in his Album, it may have given the litigants a choice between the two. The two methods of procedure still exist side by side in Cicero’s time; but the formulary procedure is demonstrably the more general of the two.

About the time when this reform was being effected, an attempt was made to create a method of criminal procedure, simpler and more effective than that of a trial before the People. The type on which the new criminal courts were constituted was furnished in the main by Civil Procedure. Cases of extortion (Repetundarum), in which compensation was demanded for a delict, were first tried before a Praetor and Recuperatores. This was a mere provisional arrangement initiated by the Senate for the benefit of the provincials. But the system, or one closely modelled on it, was perpetuated by the Lex Calpurnia Repetundarum of 149 b. c., and gradually these recuperatorial boards grew into great panels of Judices, the qualifications for the jurors being specified by judiciary laws (Leges Judiciariae). Finally, almost the whole sphere of the criminal law was embraced by a series of enactments which created standing courts (Quaestiones Perpetuae, or Judicia Publica), each for the trial of a special offence or a group of related crimes. All of these courts followed the same model. In each a President (Quaesitor), who was generally a Praetor, sat with a bench of Judices who pronounced a penalty fixed by the law which had constituted the court. From the judgment of these Judices there was no appeal to the People.