6

covered by the plaintiff in a Roman action on delict attest the nature of the practice, though in them the penalty' is usually fixed by the state, and not by the parties'. This less barbarous method of settling disputes and claims is familiar to every one who has any acquaintance with the law of the Germanic tribes. Mr. Kemble observes that under Anglo-Saxon law there was hardly any wrong a man could suffer which could not be atoned for by a money payment. At Rome, so far as we can judge, it was confined to delict; for breach of contract the ultimate remedy, even in historical times, remained the right of arrest and detention; the debtor who could not, or would not, discharge his obligations fell a victim to the severe process of manus iniectio; he was sold into foreign slavery, or put to death. Thus the remedy for a wrong to property was against the person: for a wrong to the person it was against the property,' and this explains why actions on delict, even when partly rei persecutoriae, 'in heredem non dantur.' A delict calls for the exercise of private vengeance, which, however, has nothing to act upon as soon as the wrongdoer is dead; his heir succeeds to his universitas iuris, of which his feuds and hostilities are no part; and as the poena is paid as the price of exemption from personal hostility, it must be paid by the wrongdoer and no one else.

ii. It is obvious that the exercise of self-redress required some limitation, as anarchy began to give way to order, providing for the establishment and rendering certain of claims of man against man. In the case of a wrong or a debt whose existence no one could doubt, the system might, as things stood, seem tolerable enough; but it could not long be endured if every pretended injury or obligation were to entitle the complainant to proceed thus against the object of his animosity. The expedient which seems to have suggested itself to the primitive Romans was to require clear and adequate evidence of every right or wrong which was not otherwise beyond question, and to attribute to the witnesses a kind of interest in the realization of justice, by identifying them, in a sense, with the person who was supported by their testimony; if the latter were compelled to resort to selfredress, they were under a moral obligation to afford him active assistance; in default they became no less improbi and intestabiles than the false or recalcitrant witness of a mancipation. A 'testis' is conceived, originally, less as a witness, in the modern sense, than as

In the delict of iniuria, where the praetor substituted a money payment in lieu of actual retaliation, the plaintiff was allowed to fix its amount himself, Gaius iii.

224.

2 Anglo-Saxons i. 177.

Gellius xv. 13. 11.

a 'guarantor' or 'insurer' of the right which he has attested—a conception which we shall be the better able to realize by remembering the judicial character of the recognitor in the Assizes of Henry II-; verum means 'the assured,' truth that for which one becomes security; the witnesses, who in the legis actio are called upon 'litem contestari,' discharge, upon this theory, some intelligible function. Why, we may ask, could a woman not be a witness to the transactions of the ius civile ? The answer would seem to be, because she lacks the physical force of man to which the witness must in the last resort appeal, if he is really to do his duty as 'assurer.' Why, again, could many of a man's own relations, whose evidence might incur suspicion on the ground of interest, attest his solemn acts and dispositions? Because credibility is not, as with us, the essential; the essential is rather the strong arm. Joint responsibility for wrong is familiar to readers of Greek legend no less than of Anglo-Saxon history; joint suretyship for right-the idea of inducing a wrongdoer to submit to justice by the moral and physical force by which his adversary is backed-is peculiarly Roman. A strong confirmation of this theory is found in the will made in the comitia calata; a disposition which it was desirable should be guaranteed by a larger force than any ordinary matter, because it was of far greater importance, affected, perhaps prejudicially, more interests, and therefore was more likely to be impeached, and exposed to the chances of stronger opposition: accordingly, it was witnessed, and so guaranteed, by the whole Roman populus, and even when in the will made per aes et libram the number of witnesses was reduced to five, these, according to a very plausible theory, represented the whole people in its five census-classes. If this conjecture be true, the form of mancipation was an easy and convenient means of throwing round dispositions the aegis of a public guarantee: violation of a right acquired per aes et libram is a violation of public order: resistance to the person entitled is resistance to the

state.

iii. The contractual decision of disputes took two forms. The one consisted in the complainant's giving his adversary the option of denying his liability on oath, or of being taken, in default, to admit it: it remained a permanent institution at Rome even to the time of Justinian, in whose Digest (38. 12. 2) we read 'manifestae turpitudinis et confessionis est nolle nec iurare nec iusiurandum referre.' The other was reference of the matter by common consent to arbitration from this, beyond the shadow of a doubt, the whole Roman

1 Cf. the affinity in German between wahr and bewahren, gewähren.

system of actions tried before a judge or judges took its origin. The earliest judges derived their judicial authority, such as it was, not from the state, but from the voluntary submission of the parties: and Sir H. Maine has shown 1, by an examination of the earliest Roman civil process, that the magistrate, even when commissioned by the state for the administration of justice, preserved the memory of the actual historical source of his functions by 'carefully simulating the demeanour of a private arbitrator casually called in.' The later Roman jurists, though struck by the similarity in procedure between an ordinary action and a reference to arbitration, were guilty of the curious anachronism of deriving the latter from the former: 'compromissum' (one of them says) 'ad similitudinem iudiciorum redigitur;' but the fact is that action grew out of arbitration, and the judge was originally only an unofficial referee; a fact of which traces are observable throughout the legal history of Rome. Thus, no action could validly be commenced, still less carried through to judgment, until the court had got both parties before it: for arbitration can take place · only by consent, not by a unilateral act of either of them without the other. Still more forcibly are we reminded of the mode in which the early judge acquired his jurisdiction by the vitality of the rule that no judge could be forced upon a party of whose knowledge and integrity he was not satisfied: 'neminem,' says Cicero', 'voluerunt maiores nostri non modo de existimatione cuiusquam, sed ne pecuniaria quidem de re minima esse iudicem, nisi qui inter adversarios convenisset.' Hence too the limited authority, as we should deem it, of the Roman iudex; he has no 'imperium;' he cannot compel the parties to any act or forbearance; he is merely a referee whom they have chosen, and in whose appointment the magistrate has cooperated; all he has to do is to decide the questions submitted to him, so far as the parties may enable him; he has to leave to them the realization (by execution) of the right he ascertains. The very point he has actually to settle is at first kept studiously in the background, and hidden behind. a wager; the decision is not an order or injunction, but an expression of opinion, sententia, pronuntiatio.

In England we know from actual records with what rapidity trial by jury in civil causes, though in most cases optional only, superseded the more barbarous methods of compurgation, ordeal, and trial by battle, and that this was largely due to a sense of the greater justice and reasonableness of the new system. We can hardly doubt that upon much the same grounds the practice of arbitration daily gained greater 2 Pro Cluentio cap. 43.

1 Ancient Law pp. 375 sqq.

favour among the Romans. When political authority has at length obtained a firm footing, the magistrate is gradually preferred by litigants to a citizen arbitrator, perhaps from a conviction of his greater wisdom and impartiality; if he is a king, perhaps too because his divine descent is believed to confer upon him a sense of right, and a kind of knowledge, above his merely human fellows. Finally, the judicial function is recognised as appertaining to the state; though the primitive remedies may to some extent survive in all their rudeness, and though the state administration of justice may still more widely bear traces of the social condition which preceded political organization, still the natural mode of deciding a dispute is to go to the magistrate, and rules of civil procedure have begun to assume consistency. Courts have become established; their mode of action is prescribed by law; any attempt to evade their authority by recurring to other methods of obtaining satisfaction, save in certain well defined cases, is considered a defiance of law, and a breach of the peace.

This is the condition of the earliest judicial institutions at Rome of which we have any information. Gaius tells us that the formulary procedure which was in use in his time had superseded a system of 'Statute-Process,' which presents to us all the characteristic features of a nascent judicature. There were but five forms of redress for wrong, called legis actiones, a name of which two alternative explanations are given by Gaius (iv. 11). Three of these are genuine actions; the other two are anomalous, for, though called 'actiones,' they are clearly 'survivals' from the older system of self-redress, and seem at first sight to have little in common with an action in the ordinary sense of the word: 'they cannot' (says Sir H. Maine)' be made to square in any way with our modern conception of an action.' One of these is pignoris capio, which Gaius (iv. 29) says some refused to regard as a legis actio at all, among other reasons because of its extra-judicial character. In point of fact, it is the old practice of distraint, restricted by the encroachments of a more civilized process to certain limited kinds of claims of a public or religious nature, and even then to be successfully applied only by careful observance of prescribed forms of speech and action. It could be used by a soldier against the tribunus aerarius for arrears of pay1, and by the cavalry in order to procure money for the purchase of a horse and his corn (aes equestre, aes hordearium); its employment in these cases was anterior to all records (Gaius iv. 26). By the Twelve Tables

1Cf. Maine, Early History of Institutions p. 305.

the buyer of a victim for sacrificial purposes, and the hirer of a beast of burden let out to raise money for the same object, were made liable to distress for the purchase or hire money, and the lex praediatoria enabled publicani to proceed in this manner against persons who were in arrears of taxation.. Of the procedure we know nothing: from the limited action of the remedy it may perhaps be conjectured that very little was left to the caprice of the distrainor, and that both notice and an interval for redemption of the property seized were requisite. The other abnormal legis actio was called manus iniectio, which seems properly to have been the mode of execution upon a liquidated debt, and so available only in the case of debtors who had either admitted their liability (confessi) or against whom a judgment had been obtained (iudicati). The procedure consisted in the creditor's 'laying hands' on his debtor wherever he met him, taking him before the praetor, and there solemnly stating the debt, nonsatisfaction, and arrest (Gaius iv. 21). Thereupon, unless the debt was at once discharged by the debtor, or formally contested by some one on his behalf, the creditor was entitled to take him away and keep him in strict detention, and after the lapse of a prescribed period to sell him into foreign slavery or put him to death'. Subsequently, manus iniectio was extended in all its severity by statute to certain other claims; in particular, it was allowed by the lex Publilia to the sponsor against his principal, in default of repayment within six months, and by the lex Furia de sponsu against the creditor who exacted from one of several sureties more than his aliquot share of the debt guaranteed. As thus extended it was called manus iniectio pro iudicato. In other cases again it was applied by statute with a mitigation of its harshness, the debtor escaping imprisonment by being allowed to contest his liability by action in person; in this less severe form it was called manus iniectio pura; instances of its use. will be found in Gaius iv. 23. We read too of manus iniectio under other circumstances than any of these, especially in execution for contractual obligations incurred by nexum, and apparently in furtum. manifestum (Gaius iii. 189): and very often it is impossible to say whether the procedure was pura or pro iudicato. But a statute whose name is illegible in Gaius (iv. 25) eventually limited the operation of manus iniectio in all its original severity to the cases of iudicatus (including confessus) and of the defaulting debtor under the lex

2

1 Cf. Poste's Gaius p. 344.

2 Conjectured by Studemund to be the lex Vallia.