Remedy of prohibition against Roman judges in civil trials

Abstract

In classical Roman civil procedure, a lay judge was appointed to hear a single case. He received brief instructions on the case to be adjudicated and - though many details are unknown - was personally answerable if he failed to follow the instructions properly. It is well known that a judge who simply failed to give judgment was in danger of becoming liable. Recent evidence, however, suggests that the judge similarly faced liability for giving judgment when he was not supposed to. The law of procedure recognised certain 'causes for adjournment', in the face of which a judge was obliged to adjourn. Any judgment he gave notwithstanding a cause for adjournment had no force. This paper gives two example of these 'causes': the absence of a litigant on account of illness, and the appearance of a defendant-ward who is sued without the authority of his or her guardian. This paper was given on 4 July 2007 at the Eighteenth British Legal History Conference, St Catherine's College, Oxford.

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