LEGAL FORMULAS. – These are determinate combinations of words that, taken as a whole, reproduce corresponding norms or models for forensic or administrative acts.
In the history of law and of the various legal systems, legal formulas often had different functions and meanings.
I. ROMAN LAW
Roman procedure in its second phase of development was characterized by the use of formulae, issued or approved by the competent magistrate (the praetor), on the basis of which the legal action proceeded. The formulary procedure, introduced by the lex debutis, following the pattern of the practices established by the praetor peregrinus and supplemented, under Augustus, by the two Julian laws (indiciorum privatorum and iudiciorum publicarum), remained in force throughout the classical period of Roman jurisprudence.The formula was a written instruction that the praetor issued to the litigating parties, after hearing their claims, so that it might serve as a rule for the judge chosen by them, to whom he referred the parties; in this document, the terms of the dispute were summarized schematically, and the designated judge was ordered to condemn or acquit the defendant according to whether or not the alleged facts were found to exist. The formula thus corresponded to a hypothetical judgment.
Its principal elements were: the intentio, which expressed the plaintiff’s claim; the demonstratio, which set forth the case under examination or the grounds for the action brought; the condemnatio, which conferred upon the judge the power to condemn or acquit the defendant on the basis of the truth of the facts; and the adiudicatio, which gave the judge the power, in partition proceedings, to assign to each of the parties ownership of individual things or portions of things. Possible accessory parts were: the praescriptio, prefixed to the formula in order to limit its effects and to prevent claims that one wished to reserve from being considered brought before the court; and the exceptio, a clause inserted at the defendant’s request and intended to oppose to the action a circumstance depriving it of effect.
Formulae for frequent cases were proposed and kept on display edict (v.) for the use of interested parties; other formulae, however, could be worked out by mutual agreement between the litigants with the approval of the same magistrate.
II. COMMON LAW
Within the sphere of common and ecclesiastical law, the f. g. are called exemplars or models of procedural acts and of public and private legal documents, drawn up on the basis of the law and practice of the time, to serve others as a guide in compiling acts of the same nature. Formulary literature, vast and exceedingly interesting, today constitutes a valuable source for the history of law, especially medieval law.Collections of f. g. were in use from the earliest centuries in Rome and Constantinople, at the imperial court, under the name of monomonta, or among the public notaries, and later at the Papal Curia. They subsequently spread rapidly and extensively, especially during the barbarian period, among the lesser courts, tribunals, and schools of tabellionate, reaching their greatest development in forensic practice and, especially, in the profession of the public notary. The oldest centers of production were the monastic schools where the art dictandi, that is, the art of drawing up documents, was taught. France holds primacy in the production of formularies.
They are generally named after the region in which they were in use, sometimes after the name of their discoverer (e.g., the salicae Bignonianae, the salicae Merkelianae, both from the 8th century, and the salicae Lindenbrogianae, of uncertain date), and some merely after the name of the compiler (e.g., the Marculfinae).
The principal collections of f. g. from the barbarian period are: the Ostrogothicae (6th century), contained in the Variae of Cassiodorus, secretary to King Theodoric; the Visigothicae (7th century) of King Sisebut; in France, the Audecaveuses (Angers, 6th–8th centuries), the Marculfinae (8th century), collected by the monk Marcellus for the schools of notarial practice; the Tuoracuses (Tours, 8th century) and the Arueracuses (Clermont-Ferrand, 8th century). Of lesser importance are the Senoueneses (Sens, 7th–9th centuries), the Flaviniacuses (Flavigny, 9th century), and the Bituricenses (Bourges, 8th century).
In Italy, the Ostrogothic formulas of Cassiodorus and the Visigothic formulas were initially in use; subsequently, each region had its own formularies, most of which have been lost: besides the f. g. Langobardicae (10th–11th centuries), contained in the Liber Papienii and the Chartularium Langobardicum, and the Bononienses, many of which were celebrated even outside Italy, the formulae Florentinae enjoyed particular renown in the Middle Ages, and later the Senoues and the Placoatinae.
Although almost disappearing as a result of modern codifications, some f. g. are still in use in forensic and notarial practice.
III. CANON LAW
Formulary literature, which even in the genre described above is largely dominated by the ecclesiastical element, found particular development in the specific field of canon law and in ecclesiastical curial practice.The principal and oldest collection of formulas at the Liber Diurnus (v.) which comprises, divided into three series, the f. for pontifical acts in use from the pontificate of St. Gregory the Great (390-604) to that of Leo III (705-816), and which remained in official use at the Apostolic Chancery until the pontificate of Gregory VII (1073-85). From 1228, another formulary, called Prosinciale or Liber Prosincialis, was in use at the same Chancery; it was followed, under the Avignonese popes, by the Quaternus albus, which remained in use until 1360. The Liber regularum cancellariae, transcribed from the Collectio regularum cancellariae, compiled under Giovanni XXII (1316-34), belongs to the formulary genre.
The use of its own f. g. subsequently became common in every dicastery of the Roman Curia. The S. Penitentiary had its own formulary as early as the Middle Ages. The SS. Congregations of the Consistory, of Propaganda Fide, and of Religious had and still have their own formulas for the granting of apostolic faculties to the Ordinaries within their respective spheres of competence, to nuncios, internuncios, apostolic delegates, and regular superiors (v. FACOLTA).
As in civil forensic practice, the use of formularies underwent considerable development in canonical procedural practice. The so-called Ordines iudiciarii, of which there is abundant medieval literature, are for the most part, at least in part, formularies. Such is the Curialis, compiled between 1251 and 1270 and widely circulated among the episcopal curiae of France; such is the Formularium of Martino da Fano, dating from 1232; such is the classic Ordo iudicialis in foro ecclesiastico by the Bolognese decretist Egidio de Fuscararis (d. in 1289); such is the Speculum iudiciale of Guglielmo Durante, and many others.
Even in the ecclesiastical sphere, the use of formulas, although now greatly restricted, cannot yet be said to have disappeared entirely.