§ 35. pignoris capio begot an action, viz. the L. A. per pignoris capionem 19. The cases in which pignoris capio was available, were not, as far as we can see, sufficient in themselves to give rise to ordinary civil proceedings. They were partly claims of a public nature, e. g. a soldier's claim for his pay, for money to buy a horse, or for barley to feed his horse, or again the claims of farmers of the public revenue for arrears of taxes due to the state; partly they were cases of a private law liability, which we may describe as not having given rise to any legal obligation in the early times. Thus if a victim had been sold for sacrificial purposes by means of an informal contract of sale, or again, if a beast of burden had been let out under an informal contract of letting with a view to investing the consideration money in the purchase of a lamb to sacrifice to Jupiter, the guardian deity of harvests-in neither case did the purchaser or hirer respectively incur any legal liability. It is possible also that pignoris capio was resorted to in the case of 'damnum infectum'; that is to say, where a man's property was in danger of being injured, though not yet actually injured, by the state of his neighbour's property (e. g. by the dilapidated condition of his house), he was perhaps allowed to seize some of the neighbour's land by way of pignoris capio 14. In none of these cases was there any action at law. Nor was the legis actio sacramento available, because the sacramentum had to affirm a dare or facere oportere, in other words, the existence of a liability fully enforceable at civil law. But by the circuitous method of pignoris capio the creditor's claim was either satisfied in 13 Cp. Jhering, Geist, &c. vol. i. p. 159 ff.; Karlowa, Legisactionen, p. 201 ff.; Mommsen, Röm. Staatsrecht (3rd ed.), vol. i. p. 177, note t; Wlassak, Processgesetze, p. 251 ff.; Gajus iv. 32 proves, to my mind, that pignoris capio was capable of leading to a judicium and was designed for that purpose, though Wlassak (loc. cit.) holds otherwise. 14 This is von Bethmann-Hollweg's conjecture (Civilprocess, vol. i. (1864), p. 204, note 13), and it has been endorsed by several learned writers, e. g. Karlowa, Legisactionen, p. 216 ff.; Wach, in his edition of Keller, Röm. Civilprocess, 6th ed. § 20, note 267 a. This view has been impugned by Burckhard in Glück's Commentar zu den Pandekten, book 39 (1875), p. 77 ff., and quite recently by Wlassak, Processgesetze, p. 259 ff.-Pignoris capio was certainly applicable to land, the practical effect being that the land was laid waste and the house levelled to the ground (pignus caedere), Mommsen; Staatsr. vol. i. p. 152. such a way as to put a penalty on the distrainee, if he submitted to § 35. the pignoris capio, or else was brought to trial (actio), if he (the distrainee) protested. The right of pignoris capio was said to have 'instar actionis,' i. e. to grant a right of distraint was virtually to grant a right of action. VI. Recapitulation. To sum up. Private law grants a legis actio either directly (L. A. per judicis postulationem, per condictionem), or indirectly. The means by which a private right, which is not directly enforceable by the ordinary civil procedure, can nevertheless secure a trial or actio, are either a solemn affirmation (sacramentum) or a solemn act of execution, which latter can be either personal (manus injectio) or real (pignoris capio). The legis actio sacramento is the general form of action; the remaining legis actiones are restricted to such cases as are determined by statute (lex) or ancient custom with statutory force. These special legis actiones are, each and all, modes of enforcing obligatory rights; in other words, they are forms of so-called 'personal' actions (inf. § 39). Thus we have an abundance of actions whose object it is to protect the rights of creditors. A creditor, however, may also proceed by legis actio sacramento, not only when his claim is for a 'certum,' but also where it is for an 'incertum' (e. g. pro fure damnum decidere oportere), provided only the existence of his claim was disputed, and the peculiar form of trial by wager, which required two mutually exclusive allegations, thereby became practically applicable. But whenever the claim was not personal, but real, i. e. whenever it sprang from some relation of power, whether a power over things (ownership, inheritance, servitude) or over persons (marital, paternal, tutelary power), in all such cases the legis actio sacramento was the sole form available. Having seized the object in dispute 15, both parties had solemnly to affirm their title to it sacramento (vindicatio and contravindicatio) 16. In this 15 Corresponding to the 'anefang' in the German form of vindicatio. Cp. Gajus, iv. 16. The seizing of the object was coupled with the ceremony of M festucam imponere, the staff being the 16 The sacramento provocare, i. e. the § 35. way the litis contestatio was arrived at and the foundation for the judicium laid. Pending the judicium, the praetor, acting on his own discretion, regulated the interim possession (vindicias dare). 17 We have thus, on the one hand, only one form for actions of ownership, in fact, only one form for real actions of any kind; on the other, a profusion of actions for the enforcement of obligations. From the very outset the productive genius of the Roman law of procedure, like that of other departments of Roman law, characteristically exhibits itself within the sphere of the law of obligations 17. GAJ. Inst. IV § 11: Actiones, quas in usu veteres habuerunt, legis actiones appellabantur, vel ideo quod legibus proditae erant (quippe tunc edicta praetoris, quibus conplures actiones introductae sunt, nondum in usu habebantur), vel ideo quia ipsarum legum verbis accommodatae erant, et ideo immutabiles proinde atque leges observabantur: unde eum, qui de the impeachment of the other party's 17 From an historical point of view, ambo hominem! Both parties must let go the object (e. g. the slave who is vindicated'). The judge alone has now power to deal with it; he is free to act as he pleases in awarding possession (vindicias dare). A wager is then laid with regard to the preceding act of force, and the judge is required to decide which of the parties was acting in the exercise of legitimate force, of justifiable self-help. The second group of actiones, on the other hand, the L. A. per judicis postulationem and the L. A. per condictionem, bear the impress of a later age. Everything is done peacefully. The parties merely ask to have a judex. The action is no longer a mere disguise thinly veiling what is really a bold exercise of self-help; the state itself dominates the legal system and the execution of the law, and the whole proceedings in jure merely represent an application by the parties for judicial proceedings. Cp. Bekker, Actionen, vol. i. p. 18 ff, and Bechmann's recent Studie im Gebiet der legis actio sacramenti (Festschrift f. Windscheid), 1888; Gradewitz, Zwangsvollstreckung u. Urteilssicherung (Berliner Festschrift f.Gneist), 1888; Matthiass, Die Entwickelung des römischen Schiedsgerichts (Rostocker Festgabe f. Windscheid), 1888, PP. 5-18. vitibus succisis ita egisset, ut in actione vites nominaret, $35. $36. The Formulary Procedure. The solemn act by which the parties themselves, at the con- § 36. clusion of the proceedings in jure, formulate the legal issue (litis contestatio), constitutes the pith and climax of the legis actio procedure which we have just described. The oral formula of the parties, framed in strict adherence to, and operating by virtue of, the letter of the law, begets the 'actio,' i. e. the concrete, formal right to a judicium, and, at the same time, supplies the foundation upon which the judicium proceeds. This solemn act of procedure cannot be repeated1. It necessarily follows, therefore, in the first instance, that the solemn litis contestatio of the legis actio procedure operates ipso jure to destroy the right of action. That is to say, in the same moment when the litis contestatio gives birth to the actio in the formal sense of the term (i. e. to the right to claim a judex for the dispute in question), in the very same moment the actio in its material sense (i. e. the right to the litis contestatio) is annihilated. The litis contestatio can only be carried out once and no more. Its effect is to consume the right of action. It follows, moreover, in the second place, from the same rule that, if a mistake has been made in the formula, there is no way of correcting it and saying the formula over again in an amended form. A faulty formula entails the loss of the action, for the oral formula admits neither of repetition nor amendment. The reason 1 Precisely the same idea is to be found in the old German procedure where the rule 'a man a word' was applied, i. e. every man has only one word which, once uttered, can neither be retracted nor repeated nor amended. I might suggest that this rule, itself an expression of the formalism which dominates all early procedure, supplies the desired explanation (v. Wlassak, Litis cont., p. 57, note 1) of 2 GAJUS, iv. 108: Alia causa fuit olim legis actionum; nam qua de re actum semel erat, de ea postea ipso jure agi non poterat; nec omnino ita ut nunc usus erat illis temporibus exceptionum. Cp. GAJ. iv. 11, sup. p. 162. § 36. why the use of the formula is attended with the risks incident to an action is because it is itself an act which operates to consume a right of action. It was however inevitable that the oral formula should soon prove inadequate for the purpose for which it was designed, the purpose namely of formulating the dispute for the decision of the judex. The oral formulae were immutable, because the wording of the statutes on which they were founded was immutable. But the law which was developing on the basis of these words was none the less changeable. True, the letter of the law frequently received, in practice, a sufficiently liberal interpretation. On the strength of a section of the Twelve Tables dealing 'de arboribus succisis,' the practice of the courts subsequently admitted an action 'de vitibus succisis.' But the wording of the Twelve Tables, and consequently also the wording of the spoken formula, remained the same. The words of the litis contestatio had to be de arboribus succisis, even when, as a matter of fact, the plaintiff intended to sue de vitibus succisis. But how was the judex to find out the real meaning of the parties from a litis contestatio framed in that manner? The result, inevitable in such circumstances, was, that the litis contestatio became a mere mask for covering a variety of cases of a widely different character. Thus it happened, often enough, that the formulating of the legal issue, as carried out in the litis contestatio was a mere pretence. In order therefore to pierce the mask and discover the true nature of the issue before him, the judge had to resort to other expedients. To all this must be added one other circumstance. The legis actio procedure was, so to speak, cut down and restricted to a definite number of statutable claims. It was a difficult matter (as we see in the case of the arbores and vites) to force a new law into the old moulds. But from about the middle of the third century B.C. onwards, as the inroads of the jus gentium became stronger and stronger, a large number of fresh claims arose, such as the bonae fidei judicia, the claims on informal sales, letting and hiring, and others, not based on, nor recognized by, any Roman statute, and Cp. supra p. 155, note 3. |