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Full text of "The Legacy Of Egypt"

214
He held a conventus—an assize court—every year for that pur-
pose in three towns (Alexandria, Pelusium, and Memphis) and
occasionally in other places. The local authorities had to pre-
pare the case in advance very carefully so that the proceedings
could be disposed of during the few days of an assize. If a
decision could not be obtained during the coiwentus, then the
case was referred to a judex fedaneus, who had always to be
an official and who received his instructions from the governor.
Such instructions bore a certain, though only a superficial,
similarity to the formula of the Roman procedure. In other
matters, too, this procedure differed materially from that of the
ckssical Roman law. The summons issued from a public author-
ity and not from the plaintiff. Accordingly judgement by default
could be given against a party who did not enter an appearance.
We hear nothing of the Roman rule that judgement could be
given only in terms of the payment of a sum of money: under
provincial law judgement could be given for the specific restitu-
tion of property and was so executed. Looked at from the
Roman point of view this was procedure by cognitio, as opposed
to the formulary procedure. The Roman jurists from whom we
derive our knowledge of Roman law dealt almost exclusively
with the formulary procedure, and thus the importance of the
Egyptian papyri lies in the fact that they give us a clear con-
ception of the procedure by cognitio as it was practised under
the early empire. Furthermore, with the strengthening of the
imperial power in Rome between the second and fourth cen-
turies the cognitio procedure became finally the only form of
procedure in Rome itself. There too, judgement by default
could now be given against the party who failed to appear, there
too, a person could be compelled to make specific restitution of
property. Thus the experience of the provincial procedure by
cognitio which we can trace in the papyri was of value as the
experimental stage from which the subsequent practice de-
veloped throughout the empire.