Legal Formulas

LEGAL FORMULAS. - They are specific sets of words that reproduce as a whole an equal number of 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 is characterized by the use of legal formulae, granted or approved by the competent magistrate (the praetor), on the basis of which the judicial action ran its course. The formulary procedure, introduced by the lex Aebutia, along the lines of the practices established by the peregrine praetor and supplemented, under Augustus, by the two Julian laws (iudiciorum 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 them; in this document, the terms of the dispute having been summarized schematically, the designated judge was commanded to condemn or to absolve the defendant according to whether or not the alleged facts were found to exist. The formula therefore corresponded to a hypothetical judgment.

Its principal elements were: the intentio, which expresses the plaintiff's claim; the demonstratio, which sets out the case under examination or the presuppositions of the action brought; the condemnatio, the attribution to the judge of the power to condemn or to absolve the defendant on the basis of the truth of the facts; the adiudicatio, which gives the judge the power, in actions for division, to assign to each of the parties the ownership of individual things or of portions of things. Possible accessory parts were: the praescriptio, prefixed to the formula for the purpose of limiting its effects and of preventing claims that one wishes to reserve from being considered as brought into court, and the exceptio, a clause inserted at the request of the defendant and directed at opposing to the action a circumstance that deprives it of effect.

Formulae for frequent cases were proposed and kept posted by the praetor in the edict (v.) at the disposal of interested parties; others, however, could be drawn up by common agreement of the litigants with the approval of the same magistrate.

II. COMMON LAW

Within the sphere of common and ecclesiastical law, "f. g." refers to the exemplars or models of procedural acts and of public and private legal documents, drafted on the basis of the law and practice of the time, to serve others as a guide in the drafting of acts of the same nature. The formulary literature, vast and highly interesting, today constitutes a precious 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 curia, under the name of monomonta, or among the public notaries, and later at the pontifical Curia. They subsequently enjoyed rapid and flourishing diffusion, especially in the barbarian period, among the lesser curiae, the tribunals and the schools of tabellionate, reaching their greatest development in forensic practice and especially in the profession of the public notariate. The oldest centers of production were the monastic schools where the art dictandi was taught, that is, the art of drafting documents. France holds primacy in the production of formularies.

They are generally named after the region in which they were used, sometimes after the name of the discoverer (for example, the salicae Bignonianae, the salicae Merkelianae, both of the 8th century, and the salicae Lindenbrogianae, of uncertain date), and occasionally merely after the name of the compiler (for example, the marculfianae).

The principal collections of "f. g." of the barbarian period are: the Ostrogothicae (6th century) contained in the Variae of Cassiodorus, secretary of 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 Marculf for the schools of the notariate; 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 ones of Cassiodorus and the Visigothic ones were at first in use; later each region had its own formularies, for the most part lost: besides the "f. g." Langobardicae (10th-11th centuries) contained in the Liber Papienii and in the Chartularium Langobardicum, and the Bononienses, many celebrated even outside Italy, particular fame was enjoyed, in the Middle Ages, by the formulae Florentinae, and later by the Senoues and the Placoatinae.

Although almost disappeared in the wake of modern codifications, some "f. g." are still in use in forensic and notarial practice.

III. CANON LAW

The 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 formularies at the Roman Curia is the Liber Diurnus (v.), which comprises, divided into three series, the formularies for pontifical acts in use from the pontificate of St. Gregory the Great (390-604) until 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, at the same Chancery another formulary came into use, called Prosinciale or Liber Prosincialis, which was followed, through the work of the Avignon popes, by the Quaternus albus, which remained in use until 1360. The Liber regularum cancellariae, transcribed from the Collectio regularum cancellariae, compiled under John XXII (1316-34), partakes of the formulary genre.

The use of its own juridical formularies subsequently became common at every dicastery of the Roman Curia. The Sacred Penitentiary had its own formulary from the Middle Ages onward. The Sacred Congregations of the Consistory, of Propaganda Fide and of Religious had and still have their own formularies, for the granting of apostolic faculties to the Ordinaries of their respective competence, to nuncios, internuncios, apostolic delegates and to regular superiors (v. QUINQUERNALI, FACOLTA).

As in civil forensic practice, the use of formularies had great development in canonical procedural practice. The so-called Ordines iudiciarii, of which there is abundant literature in the Middle Ages, are for the most part, at least in part, formularies. Thus the Curialis, compiled between 1251 and 1270, very widespread at the episcopal curias of France; thus the Formularium of Martino da Fano, which dates back to 1232; thus the classic Ordo iudicialis in foro ecclesiastico of the Bolognese decretist Egidio de Fuscararis (d. 1289), thus the Speculum iudiciale of Guglielmo Durante and many others.

Even in the ecclesiastical field the use of formularies, although today very limited, cannot be said to have entirely disappeared.

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