An important feature of the formulary system, though not peculiar to that system, was the dis tinction between the jos and the judicium, between the magistrate and the judge. The magistrate was vested with the civil authority, imperium, and that jurisdiction over law-suits which in every state is inherent in the supreme power ; he received the parties, heard their conflicting statements, and re ferred the ease to a special tribunal of one or more persons, jade:, arbiter, recuperatoree. The funo tion of this tribunal was to asoertain the facts and pronounce judgment thereon, in conformity with a special authorization to that effect conferred by the magistrate. Here the authority of the judge ended: if the defeated party refused to comply with the sen tence, the victor must again resort to the magistrate to enforce the judgment. From this it would appear that the functions of the judge or judges under the Roman system corresponded in many respects with those of the jury at common law. They de cided the question or fast submitted to them by the magistrate, as the jury decides the issue elimi nated by the pleadings ; and, the decision made their functions ceased, like those of the jury.
As to the amount at stake, the magistrate, in oases admitting it, had the power to fix the sum in dispute, and then the judge's duties were confined to the simple question whether the sum specified was due the plaintiff or not; and if he increased or diminished this amount be subjected himself to an action for damages. In other cases, instead of a precise sum, the magistrate fixed a maximum sum, beyond which the judge could not go in as certaining the amount due; but in most cases the magistrate left the amount entirely to the discre tion of the judge.
7. The directions of the magistrate to the judge were made up in a brief statement called the for mula, which gives its name to this system of pro cedure. The composition of the formula was gov erned by well-established rules. When complete, it consisted of four parts, though some of these were frequently omitted, as they were unnecessary in certain classes of actions. The first part of the formula, called the demonstratio, recited the subject submitted to the judge, and consequently the facts of which he was to take cognizance. It varied, of oourse, with the subject-matter of the suit, though each class of cases had a fixed and appropriate form. This form, in an action by a vendor against his vendee, was as follows : " Quod Aldus Agerius Numerio Negidio hominem vendidit;" or, in case of a bailment, "Quod Aulus Agerius spud Nume rium Negidium hominem deposuit." The second part of the formula was intend.): in this was stated the claim of the plaintiff, as founded upon the facts set out in the demonstratio. This, in a question of contracts, was in these words : "Si paret Numerium Negidium Aulo Agerio sestertium X millia dare oportere," when the magistrate fixed the amount; or, " Quidquid paret Numerium Negi dium Aulo Agerso dare facere oportere," when he left the amount to the discretion of the judge. In a claim of property the form was, "Si paret homi nem ex jure Quiritium Ash Agerii ease." The third part of the complete formula was the adjudicatio, which contained the authority to the judge to award to one party a right of property belonging to the other. It was in these words : "Quantum adjudicari oportet judex, Titio, adjudicato." The last part of the formula was the condemnatio, which gave the judge authority to pronounce his decision for or against the defendant. It was as follows : "Judex, Numerium Negidium Aulo Agerio sestertium X millia condemna : si non paret, ob solve," when the amount was fixed; or, " Ejus index, Numerium Negidium Auto Agerio duntaxat millia condemna : si non paret, absolve," when the magistrate fixed a maximum; or," Quanti ea tea Brit, tantam peeuniam, judex, Numcrium Negidium Aulo Agerio condemns?: si non paret, absolvito," when it was left to the discretion of the judge.
8. Of these parts, the intentio and the condem natio were always employed: the demonstratio was sometimes fouftd unnecessary, and the adjudicatio only occurred in three species of actions,—familim ereiseundie, communi dividundo, and finium regun dorum,—whieh were actions for division of an in heritance, actions of partition, and suits for the rec tification of boundaries.
The above are the essential parts of the formula in their simplest form; but they were often enlarged by the insertion of clauses in the .demonstratio, the intentio, or the con demn ado, which were useful or necessary in certain cases : these clauses are called acyertiones. When such a clause was inserted for the benefit of the defendant, containing a state ment of his defence to the claim set out in the in tends), it was called an exceptio. To this the plain tiff might have an answer, which, when inserted, constituted the replicatio, and so on to the dupli ratio and tripdeado. These clauses, like the in tends, in which they were inserted, were all framed conditionally, and not, like the common-law plead ings, affirmatively. Thus: "Si paret Neonerium Negidium Aulo Agerio X millia dare oportere (in tentio); si in ea re nihil dole malo Asti Agerii factum sit neque fiat (exceptio); Si non, the. (repli oatio)." In preparing the formula the plaintiff presented to the magistrate his demonstratio, intentio, which was probably drawn in due form under the advice of a jurisconsult; the defendant then pre sented his adjectiones, the plaintiff responded with his replications, and so on. The magistrate might modify these, or insert new adjectiones, at his dis cretion. After this discussion in jure,pro tribunali, the magistrate reduced the results to form, and sent the formula to the judge, before whom the parties were confined to the case thus settled. See 3 Or tolan, Justinian, Oi 1909 et seq.
9. The procedure per formulam was supplanted in course of time by a third system, extraordinaria judicia, which in the days of Justinian had become universal. The essence of this system consisted in dispensing with the judge altogether, so that the magistrate decided the case himself, and the dis tinction between the fits and the judicium was practically abolished. This new system commenced with usurpation by the magistrates, in the exten sion of an exceptional jurisdiction, which had ex isted from the time of the leges actions, to cases not originally within its scope. Its progress may be traced by successive enactments of the em perors, and was so gradual that, even when it bad completely undermined its predecessor, the magis trate continued to reduce to writing a sort of for mula representing the result of the pleadings. In time, however, this last relic of the former practice was abolished by an imperial constitution. Thus the formulary system, the creation of the great Roman jurisconsulta, was swept away, and oarried with it in its fall all those refinements of litigation in wbioh they had so much delighted. Thence forth the distinctions between the forms of actions were no longer regarded, and the word actin, losing its signification of a form, came to mean a right, jus persequendi in judicio quod sibi debetur.
See Ortolan, Hist. no. 392 et seq. ; id. Instil. nos. 1833-2067; 5 Savigny, System, 6; Sander, Jus tinian, Introduction; Gliick's Pandecten, vol. 6, 498.