§ 1. As to the obligation raised by throwing or spilling things on the public road, and the action enforcing it. When anything was thrown or spilt from a room upon the public road, and anyone thereby suffered damage, the head of the family inhabiting the room, either as proprietor or as tenant, at a rent or gratuitously, was bound to pay double the amount of the damage: if the falling object caused the death of a freeman, the penalty was fifty aurei; if the person was only wounded the penalty was left to the discretion of the juder, who took into consideration both the expenses necessarily occasioned by the accident, and the disability to work involved. The penalty was recoverable by an actio in factum (1). § 1. As the obligation was raised from something having been placed outside or suspended over the public road, which might cause injury by falling, he who so placed or suspended the thing, or allowed it to be so placed or suspended, was bound, even though it did not tumble, and though no damage occurred, to pay ten aurei. Here the actio in factum was popularis (public), i.e., any citizen might bring it. § 2. If a filius-familias had a separate dwelling from his father, and he threw or spilt things from his apartment, or had anything placed or suspended over the public way, no action could be brought against the father, because he was not to blame: but the filius-familias was liable to an action in factum. Not even an action de peculio lay against the father, because such action was never given in case of penal obligations. So if the filius-familias, from ignorance, gave a wrong judgment, the father was not liable, but the son alone. § 3. As to the obligation raised by a theft or damage committed on board ship, in a tavern, or in a stable. The master of the ship (exercitor), tavern, or stable, was liable in an action in factum to pay the double value, though he himself had not committed the theft or damage, provided they were committed by one in his establishment (2), for he was to blame for having taken into his service dishonest persons. § 3. This action in factum passed to the hæredes of the person who had suffered the damage, but the hæredes of the person liable were not themselves liable. And this is the chief point of similarity between the obligations arising quasi ex delicto, and those arising ex delicto. (1) This action, observe, is based not upon the fact that the master of the room has himself thrown or spilt anything, for that would be a delictum by the lex Aquilia, and he would be liable in the actio legis Aquilia, but upon the fact that he is to blame for not having exercised a proper surveillance over his household. (2) If the theft was committed, or the damage caused by one not in his service, another action lay for indemnity, but the obligation of the captain or of the tavernkeeper then arose rather quasi ex contractu than quasi ex delicto, for the action was not penal, and lay against their hæredes. TITLE VI.-OF ACTIONS. The mode in which justice was administered at Rome, varied from time to time. Three different systems of procedure succeeded each other:-1st. The actions of law (legis actiones), which were abolished, at least partly (1), by the Lex Æbutia, and the two Julian laws (2). 2nd. The procedure by formula, which was introduced by the laws just mentioned and continued till the time of Diocletian. 3rd. The extraordinaria judicia used after the time of that Emperor. These three systems, however, did not succeed each other rapidly, but by gradual transitions; and as the influence of the first upon the second is constantly observable, so it would be impossible to explain the extraordinary mode of procedure, except by reference to that by formula or ordinaria judicia. That which distinguishes the judicia ordinaria, including the procedure by legis actio, or by formula, from the judicia extraordinaria, is this, that the former recognized what may be called decision by judges; in other words, the magistrate did not finally decide the matter, but after determining, as the organ of the law, the legal consequences of the facts alleged by the demandant, or by the defendant, and after defining the question, on which the condemnation or the discharge of the defendant should depend (jus dicere), he referred the solution of such question, the verification of the contradictory averments of the disputants, to one or more judges (judex, arbiter, recuperatores), who were selected from the citizens, and whose duty it was to pronounce sentence (judicare); hence the procedure was divided into two portions, the proceeding before the magistrate (in jure), and proceeding before the judge (in judicio). The judices are sometimes likened to juries. But this is a mistake. A juryman is never judge of the law; a judge may be (3). First. The legis actiones were solemn forms of proceeding, consisting of acts and words fixed with such rigorous precision, that the least mistake or alteration in them involved the loss of the suit. There (1) Partly. The Lex Ebutia and the two Julian laws allowed the legis actiones, where the suit was before the centumvirs, and in cases damni infecti (vide Gaius, 4, 34). Till the time of the Christian Emperors the legis actiones were used in acts of voluntary jurisdiction, such as enfranchisement by the vindicta, in jure cessio adoption, emancipation, &c. (2) The lex Ebutia is earlier than Cicero (A.U.c. 573). The Julian laws date from the reign of Augustus. (3) This division between the magistrate and the judge (judex) is of very ancient date; it is certainly older than the Law of the Twelve Tables, for the object of one of the actions sanctioned by that law was the judicis postulatio (demand of a judex). Whether it was in use under the earlier kings is a moot point. But it is clear that the very earliest ideas we have as to the Roman procedure suppose the existence of this institution. Observe, the magistrate had jurisdiciio, power to declare the law, and the imperium, the power of command and constraint, -the right to use the public force to enforce his orders. were five (a.) Sacramentum; (b.) Judicis postulatio; (c.) Condictio ; (d.) Manus injectio; and (e.) Pignoris capio. (a.) As to the Sacramentum, the thing in dispute was brought before the magistrate (in jure); each of the claimants then touched it with a rod (vindicta, festuca), which was the vindicatio, and said, "Hunc ego hominem (in case of a slave), ex jure quiritium meum esse aio secundum suam causam, sicut dixi. Ecce tibi vindictam imposui." At the same time each party seized the thing in question, which was called manuum consertio. If the whole thing could not be brought into court, a portion of it was, e.g., a turf, twig, &c. After the consertio the magistrate said, "Mittite ambo hominem." Next came the wager, or sacramentum, by which each party challenged his adversary to deposit a certain sum, which the loser was to forfeit to the treasury of the people (ærarium), to be applied to the expense of sacrifices (1). The wager was this:-He who first went through the vindicatio asked his adversary why he claimed the thing. Postulo anne dicas qua ex causa vindicaveris. The other answered, Jus peregi sicut vindictam imposui. The former replied, Quando tu injuria vindicasti D.L. æris sacramento te provoco,-"I challenge you to a deposit of 500 pounds of brass:" the other accepted, saying, Similiter ego te.-But afterwards, instead of actually paying the sacramentum, the Prætor allowed the parties to furnish sureties (prædes) in order to secure payment of the sacramentum to the public treasury (prædesque eo nomine Prætori dabantur, Gaius, 4, 13).-The action by sacramentum was general, i.e., it was the form adopted when no particular course was pointed out by the law: it was applicable, not only when a real right (in rem) was sought to be recovered, but also when the claim arose out of an obligation (in personam); though, in each case, the accompanying ceremonies differed (2).-The formalities of the sacramentum being completed, the parties demanded a judex, which the magistrate allowed, but not till after a lapse of thirty days. When the question concerned the property in a thing, the magistrate, before appointing the judex, decided whether the plaintiff or the defendant should have provisional possession of the thing in dispute; this was called vindicias dicere, and he to whom possession was granted, was bound to guarantee to the other party the restitution of the thing and its fruits (prædes litis et vindiciarum) if he should succeed-lis denoting the thing, vindicia the fruits. (1) The amount of the sacramentum was fixed by the Twelve Tables: it was 500 asses when the value in dispute was 1000 asses or more: 50 asses when the value was under that sum, or when it was a question of liberty (Gaius, 4, 14). (2) In suits as to immoveables, the vindicatio was in the form of a feigned duel on the spot, the two parties pretending to fight for the thing in dispute till one of them expelled the other and brought him before the magistrate (deductio). The litigant parties then challenged each other, in regular terms, to deposit the sacramentum, and the suit pursued its ordinary course. (b.) As to the judicis postulatio, all we know is that in this action of law each party addressed the magistrate thus: "Judicem (arbitremve) postulo uti des." Probably it was invented to enable the parties, in certain cases, particularly in enforcing obligations, to demand directly a judex, without being required to make any deposit, as in the sacramentum. (c.) The condictio-this action of law, as it was less ancient than the others, so it bore less similarity to the primitive and general form of procedure. Ordinarily the procedure began with the in jus vocatio, that is, the demandant summoned the defendant (adversarius) by formal words, and if necessary dragged him before the magistrate (B. 3, t. 12). There he solemnly set forth his demand, and completed, as did also the defendant, the forms peculiar either to the sacramentum, or, in some few cases, to the simple judicis postulatio. The magistrate then adjourned the matter, desiring the parties to appear again before him in thirty days, for the purpose of nominating a judex; and the parties mutually bound themselves not to make default on the day fixed (vadimonium) (1). Now, in order to avoid the first appearance before the magistrate, and its formalities, the demandant was allowed to inform the defendant out of court as to the nature of his claim, summoning him, at the same time, to appear on the thirtieth day before the magistrate, to receive a judex (actor adversario denuntiabat ut ad judicem capiendum die xxx. adesset, Gaius, 4, 18). This information was no doubt given according to a regular form; and it was probably followed by mutual guarantees, which the parties exchanged privatim, that each would present himself in jus on the day named. This, in fact, seems to have given rise to that summary form of proceeding called condictio (2); which exclusively applied to those personal actions in which the plaintiff maintained that the defendant was bound to give a thing certain (quâ intendimus dare nobis oportere, Gaius, 4, 18) (3). (d.) and (e.) As to the manus injectio and the pignoris capio, they were modes of execution, the former on the person, the latter on the goods of the debtor. The manus injectio was originally used as the ordinary way (1) Vades were the persons who presented themselves as security for the due execution of the vadimonium. (2) Condicere, say Festus, is dicendo denuntiare. Condicere also means to agree (D. 18, 1, 166). The term condictio, therefore, is derived from this, that the parties agreed, in the absence of the magistrate, to appear before him on the thirtieth day to receive a judex. (3) The condictio introduced, subsequently to the Twelve Tables, by the lex Silia (A.0.0. 510), applied only to those actions in which a fixed sum of money (certa pecunia) was sued for it was ex- of having compulsory execution of judgments (judicati)(1). But it was extended to various other cases in which the creditor was authorized to act as if he had obtained a judgment (pro judicato). Its effect was to reduce the debtor (adjudicatus; addictus) to a kind of slavery, which continued until the debt was paid.-The pignoris capio consisted in actual seizure of a thing belonging to the debtor-a seizure made by private authority, and accompanied with formal words and gestures-and took place only in a few defined cases (2): and the debtor could not recover the thing so taken as a pledge until he had satisfied the creditor. Secondly. As to the procedure by formula. The leading characteristic of this procedure consisted not simply and solely in sending the matter to a judex, for, as we have seen, that was done under the legis actiones; but it consisted, 1st, in this, that by the formula-system the parties had no formal acts to perform, and no formal words to utter in jure; 2nd, in this, that formula or written instructions were drawn up, containing the appointment of the judex, fixing the limits of his powers, and defining the questions he had to decide (3).— In fact, under the system introduced by the lex Æbutia, the formula became the important point in the procedure. For by means of it— by combining and varying with exhaustless ingenuity the terms of this order of reference, the Prætors and the Jurists managed to carry into practice the changes and developments which Roman law underwent during the most brilliant period of its history. To understand the procedure by formula is essential. In truth this procedure is the very key to the Roman law. It is this legal pro (1) In ancient times, and except in those few cases in which the pignoris capio was allowed, the creditor had no right of direct execution against the goods. But the debtor was indirectly compelled to sell his goods to avoid the manus injectio. It was not till a later period that the Prætors introduced the missio in possessionem bonorum (B. 3, t. 12). (2) The privilege of pignoris capio attached only to certain claims which were favoured on public grounds. Thus, for the sake of public worship, it was allowed against one who bought a victim but did not pay for it. For the sake of the military service, it was allowed to soldiers against one who, by direction of the tribune of the ærarium, was bound to furnish them with pay, or the value of a horse or forage (as militare, as equestre, as hordearium). Gaius tells us (IV. § 26 to 29), that it was allowed to the publicans for the purpose of recovering the taxes. (3) In ancient times, i.e., when the legis actiones were in full force, the magistrate did not generally settle in writing the question for the judex; but the parties took care to have witnesses, who should inform the judex as to the terms and the nature of the question intrusted to him. Now, litis contestatio was the appropriate term for the formal vouching of these witnesses at the time when the judex was appointed, and when the matter to be investigated by him was settled by the magistrate. Contestari litem, says Festus, dicuntur duo aut plures quod ordinato judicio, utraque pars dicere solet: TESTES ESTOTE. The custom of calling witnesses was discontinued as useless, when the powers of the judex were defined by a written formula; but the name litis contestatio was still used to denote that stage of the suit at which such vouching formerly took place. Hence the litis contestatio took place when the formula was delivered containing the result of the discussion (controversia) before the magistrate (in jure). |