Civil Procedure in Classical Rome: Having an audience with the magistrate

During the classical period of Roman law, civil lawsuits were divided into two proceedings: a brief proceeding before the magistrate, who decided certain preliminary matters, and a longer proceeding before a judge, who tried the case. The first proceeding is said to take place "in iure," which roughly means "in the magistrate’s court." Unfortunately the figure "in court" has been understood too strictly to refer to the whole of the first phase, and this has given rise to the misunderstanding that the whole of the first phase took place in the magistrate’s presence. The better view is that the first phase took place both in, and around, the magistrate’s tribunal. This paper discusses several institutions of Roman civil procedure where the better view is evident. The paper concludes with a discussion of a first-century settle agreement from Puteoli; the settlement agreement illustrates the better view

The current view of the extra-judicial vadimonium

How did a lawsuit begin in classical Rome? There is a common view that it began with a contract: the parties made an agreement for the day and hour when they wished to appear before the magistrate. The contract was called vadimonium, a formal promise to appear. We know that these vadimonia were used by magistrates to bring defendants back before the court. The question is whether the parties used them voluntarily, as a way to commence the lawsuit itself. The theory that lawsuits began in this way was based on an obvious error: a misreading of the Digest 2.6 rubric by 16th century Humanists. When the error was discovered, the theory changed, along with the evidence on which it was based. When two large collections of written vadimonia were discovered in the 1930s and 1950s, the theory underwent a second change. At no time did the common opinion ask whether, in fact, lawsuits began with a vadimonium. This article argues that we have no evidence that lawsuits began with a vadimonium. The vadimonium evidence we possess, to the contrary, are instances of the ordinary, compulsory vadimonium, used by magistrates to bring defendants back to court. This article is a study preliminary to the author's Litigation in Roman Law (2005).</p

Adam Smith’s historical jurisprudence and the "method of the civilians"

Smith lectured in jurisprudence at the University of Glasgow from 1751 to 1764, and various records of these lectures survive. Since Smith never completed a treatise on law, these records are the principal source for his theory of lawmaking. In his final year at Glasgow, Smith undertook to reorganize the course of lectures: he began with a series of lectures on "forms of government", where formerly these lectures had fallen at the very end. He explained that his reorganized lectures followed the method of the civilians (i.e., contemporary writers on Roman law), and that this method was to be preferred. This paper discusses Smith’s theory of lawmaking and seeks to explain why he undertook to reorganize his lectures. Some scholars have argued that Smith had a substantive reason for his decision, i.e., that the change was demanded by his developing theory of law. This paper, to the contrary, argues that his decision was far more innocent. He had occasionally sought to explain how certain laws came about by reference to the "ages of society". This is the theory that societies tend to present themselves under the model of one of four ages, each age identifiable by a certain mode of subsistence. This "stadial theory", however, though adequate to explain the genesis of a handful of rights, was inadequate to explain the genesis of most laws. For the latter, Smith used a more immediate cause: form of government. Yet exposition of this thesis was difficult when the lectures on government were postponed to the end. Smith’s decision to reorganize the course of lectures helped to cure the problem. The method of the civilians, whom Smith claims to be following, is the method of contemporary institutional literature. Civilian works that were written to follow the order of Justinian’s Institutes began, as the Institutes began, with a discussion of government

Roman judges, case law, and principles of procedure

Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever relied on the decisions of other judges, has been largely ignored. The common opinion which today correctly rejects "case law" passes over "precedent" without comment. It does so because for many years an anachronistic view of the Roman judge was in fashion. This was the view that a Roman judge's decision expressed the people's sense of right about a specific set of facts. A decision, on this view, is simply a piece of information for an expert to examine; it has no value to another judge. With the passing of this view, however, the common opinion could accept the existence of precedent in Roman law

Lawsuits in context

The study of Roman procedure has benefited enormously from the discovery of wooden tablets near Pompeii. They are variously referred to as 'the Murecine tablets' (after the Agro Murecine, their place of discovery), 'the Pompeian tablets' (after the ancient site near their place of discovery), 'the Puteoli tablets' (after the ancient site from which they were removed in antiquity), or 'the archive of the Sulpicii' (after the presumed owner of the archive in antiquity). Unfortunately, the tablets are sometimes misinterpreted, for the simple reason that the procedures they describe do not always match the procedures which more familiar sources have (wrongly) led us to believe existed. The tablets, in fact, give us the rare opportunity to revise our understanding of procedure, particularly when taken together with another remarkable find, the lex Irnitana. This article gives a sketch of the 'new' Roman civil procedure now available to us as a result of these exciting finds

Estimation of Apollo lunar dust transport using optical extinction measurements

A technique to estimate mass erosion rate of surface soil during landing of the Apollo Lunar Module (LM) and total mass ejected due to the rocket plume interaction is proposed and tested. The erosion rate is proportional to the product of the second moment of the lofted particle size distribution N(D), and third moment of the normalized soil size distribution S(D), divided by the integral of S(D)D^2/v(D), where D is particle diameter and v(D) is the vertical component of particle velocity. The second moment of N(D) is estimated by optical extinction analysis of the Apollo cockpit video. Because of the similarity between mass erosion rate of soil as measured by optical extinction and rainfall rate as measured by radar reflectivity, traditional NWS radar/rainfall correlation methodology can be applied to the lunar soil case where various S(D) models are assumed corresponding to specific lunar sites.Comment: Acta Geophysica 201

Identification and control of spacecraft radiation sources of interference to X-ray and gamma-ray experiments

Apollo 15 and 16 will carry instruments for the purpose of measuring X-ray and gamma ray fluxes from the lunar surface and in cis-lunar space. The intensity levels expected are low over most of the energy range of interest, requiring that background contributions be minimized. The radiation sources on Apollo determined and their interference with these instruments evaluated. The results were used as a basis for dealing with this problem and for recommendations applicable to future manned and unmanned missions

Heat transfer in the tip region of a rotor blade simulator

The measurement of mass transfer from cavities is discussed with emphasis on the effect of cavity orientations relative to the main flow direction. A finite difference computation for turbulent air flow and heat transfer over a two-dimensional shrouded rectangular cavity is discussed

Dual purpose optical instrument capable of simultaneously acting as spectrometer and diffractometer

A dual purpose optical instrument is described capable of simultaneously acting as a spectrometer and diffractometer to respectively perform elemental and structural analysis of an unknown sample. The diffractometer portion of the instrument employs a modified form of Seeman-Bohlin focusing which involves providing a line source of X-rays, a sample, and a detector, all on the same focal circle. The spectrometer portion of the instrument employs a fixedly mounted X-ray energy detector mounted outside of the plane of the focal circle

Addition of a gamma ray spectrometer to the alpha scattering experiment as designed for the Surveyor mission

Gamma ray spectroscopy and alpha scattering techniques for compositional analysis of lunar and planetary surface