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p954 Praejudicium

Article by George Long, M.A., Fellow of Trinity College
on p954 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

PRAEJUDICIUM. This word, as appears from its etymology, has a certain relation to Judicium, to which it is opposed by Cicero (Divinat. 4): "de quo non praejudicium, sed plane jam judicium factum." The commentator, who goes under the name of Asconius, observes on this passage, that a praejudicium is something, which when established becomes an exemplum for the judices (judicaturi) to follow; but this leaves us in doubt whether he means something established in the same cause, by way of preliminary inquiry, or something established in a different, but a like cause, which would be what we call a precedent. Quintilian (Inst. Orat. V.1.2) states that it is used both in the sense of a precedent, in which case it is rather exemplum than praejudicium (res ex paribus causis judicatae); and also in the sense of a preliminary inquiry and determination about something which belongs to the matter in dispute (judiciis ad ipsam causam pertinentibus), from whence also comes the name Praejudicium. This latter sense is in conformity with the meaning of Praejudiciales Actiones or Praejudicia in which there is an Intentio only and nothing else (Gaius, IV.44). These accordingly were called Praejudiciales Actiones which had for their object the determination of some matter, which was not accompanied by a condemnatio. "A praejudicium is an actio, which his not any condemnatio as a consequence, but only a judicial declaration as to the existence of a legal relation. The name of this kind of actions comes from the circumstance that they serve as preliminary to other and future actions. All these Actiones are in rem, that is, they avail not exclusively against a determinate person who owes a duty, like actions which are founded on Obligationes." (Savigny, System, &c. vol. I p356). For instance, the question might be, Whether a man is a father or not, or Whether he has a Potestas over his child: these were the subject of Praejudiciales Actiones. If a father denied that the child who was born of his wife, or with which she was pregnant, was his child, this was the subject of a "Praejudicium cum patre de partu agnoscendo." If a Judex should have declared that the child must be maintained by the reputed father, there must still be the Praejudicium to ascertain whether the reputed father is the true father. If it was doubtful whether the mother was his wife, there must be a praejudicium on this matter before the praejudicium de partu agnoscendo. These praejudicial actions then, were, as it appears, actions respecting Status; and they were either Civiles or Praetoriae. It was a Civilis Actio when the question was as to libertas; the rest seem to have been Praetoriae Actiones. Quintilian makes a third class of Praejudicia, "cum de eadem causa pronuntiatum est," &c.

Sometimes Praejudicium means inconvenience, damage, injury, which sense appears to arise from the notion of a thing being prejudged, or decided without being fairly heard; and this sense of the word seems to be very nearly the same in which it occurs in our law in the phrase "without prejudice to other matters in the cause."

(Gaius, III.123, Gaius, IV.44; Dig. 25 tit. 3; Dig. 22. tit. 3 s8; Dig. 43 tit. 30 De liberis exhibendis; Inst. 4 tit. 6 s13; and Theophilus, Paraphr. ad Inst. 4 tit. 6 s13).

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