Publilia; wherever else it was still available it was pura, and its only peculiar incident was that the debtor was cast in double damages if he unsuccessfully denied his liability (lis crescens).

The Romans themselves never doubted that manus iniectio was a true legis actio, though it was no less a form of execution than pignoris capio: the former was Personal, the latter was Real execution. The fact would seem to be, as is remarked by Mr. Poste1, that manus iniectio has two meanings. Sometimes it is a solemn act of self-redress, viz. where the plaintiff's right is incontestable, and the defendant submits. But at other times it is the first stage in a legis actio, viz. where the defendant denies his liability, and resists the claim either in person or through a vindex: and it seems probable that it was called Statute-Process only in this latter case. If this be true, the application of the term 'legis actio' to pignoris capio alone remains anomalous. So far as we know it, pignoris capio was purely extra-judicial: if a man had a claim which the law allowed him to enforce in this manner, he had no need of assistance from the magistrate; the praetor did not appear at any stage of the proceedings, which presented a picture of as pure self-redress as could be found before courts and magistrates had come into existence. Why then is it called an 'actio' at all? Arguing from the analogy of manus iniectio, it would not be rash to conjecture that pignoris capio also has two meanings, and that it was a legis actio only when the person distrained upon denied his liability, and pushed proceedings to a regular action. It is well known that in the English law of Distress this is done by an action of Replevin, in which the distrainee is plaintiff and the distrainor defendant: but the parallel of manus iniectio makes it probable that in Roman law the roles were reversed, and that if the distress was alleged to be unlawful the distrainor was bound to come forward as plaintiff in an action to justify his act, by forcing the other to redeem his pledge at a price double the amount of the original debt 2.

Of the three other legis actiones it seems probable that the oldest is the sacramentum. Gaius says it was actio generalis,' i. e. the proper remedy in all cases for which no other procedure had been ordained by statute. Though he describes it to us as a real action,

Gaius p. 507.

2 This conjecture is supported by the known facts of the publicanus, who was allowed to proceed by pignoris capio even after the introduction of the formulary system and Gaius' words (iv. 32) suggest that the publicanus sued the taxpayer who was in arrears in order to compel him to redeem the property seized at a sum in excess of that actually due. Cicero speaks (in Verrem iii. 11. 27) of 'publicanus petitor ac pignerator.'

involving questions of ownership and status, it may be conjectured that it was at one time the only form of action proper known to the Romans; for of the two other legis actiones which we have still to examine, we know one to have been of later introduction, and to have related to cases which previously were tried by sacramentum (Gaius iv. 20); while the comparative freedom of the other from the strict punctiliousness characteristic of very early procedure seems to justify us in denying it any very great antiquity. All three, however, being actions proper, necessitated the attendance of both parties before the magistrate, and to secure this was the business of the plaintiff. A summons from the court or magistrate, which we now regard as the indispensable mode of commencing legal proceedings, was at Rome unheard of for many centuries. The first words of the Twelve Tables which have survived to us prescribed the mode of dealing with a defendant who refused to attend to his plaintiff's summons or 'in ius vocatio;' the latter, after appealing to witnesses, could lay hands upon and take him by force before the praetor. The 'Real' form of sacramentum is familiar to every reader of Sir Henry Maine's 'Ancient Law.' It may be said to consist of three dramatic acts or stages, the first of which presents to us an oral pleading or altercation. The subject of dispute, e.g. a slave—or if it be too large, a portion of it, is brought into court: whereupon the plaintiff, holding in one hand the festuca, or symbol of absolute dominion, grasped it with the other, and touching it with the festuca said 'hunc ego hominem (e.g.) ex iure Quiritium meum esse aio secundum suam causam sicut dixi: ecce tibi vindictam imposui.' This form was repeated by the defendant; and both now grasping the object of their dispute, we reach the second act of the drama, a pretended trial by battle, symbolised in this simultaneous seizure or 'manuum consertio.' Lastly, to avert the simulated prospect of bloodshed, the state steps in; the praetor, in the phrase mittite ambo hominem,' turns actual strife into peaceful arbitration. The plaintiff now demands of the defendant the ground of his claim, and having heard it challenges him to lay a wager, the amount of which was fixed by the Twelve Tables, on its justice; a challenge which is repeated by his adversary. It is from the stake in this wager (sacramentum) that the action got its name; it was forfeited by the loser to the aerarium, and originally was deposited, pending trial, in sacro,' under the custody of the gods; subsequently immediate deposit was dispensed with, the praetor taking security

Keller, however (Civil Process p. 77), regards iudicis arbitrive postulatio as coeval with sacramentum.

(praedes sacramenti) from both parties for payment in the event of defeat. The wager having thus been duly laid, the praetor proceeded vindicias dicere,' to award interim possession to one or other of the litigants, taking sureties (praedes litis et vindiciarum) for the restoration of the property in dispute, and its mesne profits, if the other proved his title. A iudex was then appointed by agreement to try the question at issue, namely, which was the winner of the wager: behind which the real matter in litigation-the ownership of the slave -lay in the background. Before this judge the case was first laid in a succinct narrative form (causae collectio), which was followed by evidence and arguments in detail 1.

Both the remaining legis actiones are in personam. Of iudicis arbitrive postulatio we have no records, save the formula, preserved by Valerius Probus, in which the judge or referee was applied for. But it seems to have been a sort of modification of the sacramentum, designed for the settlement of unliquidated claims. The employment of sacramentum itself was conditional upon the applicability of the wager, and this clearly depended on precise knowledge of the pecuniary value of that which was claimed by the plaintiff. In other words, sacramentum, as an action in personam, lay only on literal contracts, on such stipulations as were for a certum, and on delicts in which the pecuniary penalty was fixed by law; and iudicis arbitrive postulatio seems to have been the remedy on contracts iuris gentium and on certain quasi contractual relations, in which the plaintiff demands, not something ascertained, but that it shall be ascertained. to what he is in equity entitled from his adversary. Of condictio we have fuller knowledge. It is said by Gaius (iv. 19) to have been established by the lex Silia, circ. 244 B.C., for the recovery of liqui

For the significance of wagers in early judicial proceedings see Maine, Early History of Institutions p. 259.

The procedure in sacramentum after the praedes litis et vindiciarum had been taken is very obscure, owing to a lacuna in the MS. of Gaius, iv. 15. According to Studemund's textual conjecture, a single judge was originally appointed on the spot to try the matter; but this was altered by a lex Pinaria, which prescribed an interval of thirty days between the legis actio before the praetor and the appointment of the iudex. Keller supposes that the effect of this statute was not to create a necessary interval of thirty or any other number of days at all, but to transfer the hearing of sacramenta from the standing collegia of judges (decemviri and centumviri) to a single iudex. Mr. Poste seems to combine these two views, limiting, however, the operation of the lex Pinaria to such sacramenta as were in personam.

2 This is the point of contact between this legis actio and the later bonae fidei iudicia. The equitable balancing of conflicting claims seems to be characteristic of both.

dated money claims, and to have been extended ten years later by lex Calpurnia to res certae of all other kinds. He adds that the reason of its introduction was hard to see, there being already a satisfactory remedy in such cases, viz. the sacramentum in personam. One possible explanation is the increase in judicial business. If the lex Pinaria had not yet been enacted, and Keller's account of it is the true one, we may ascribe the introduction of condictio to a desire to relieve the centumviri of a number of suits which could very well be tried by a single judge; and even if that statute were already in existence, it perhaps only made reference of the cause to a single iudex optional to the praetor, whereas the lex Silia absolutely required him to send condictiones to be tried in this manner. It is not improbable, however, that the condictio was really designed in the interests of creditors and the money-lending class, to whom, as will be seen, it was far more favourable than the older procedure by sacramentum'. The plaintiff having got the defendant before the praetor by in ius vocatio, challenged him to a wager by stipulatio (sponsio poenalis) of a sum equivalent to a third of the value in dispute, while the defendant, by restipulatio, bargained for payment of a similar sum by him in the event of his failing to establish his This wager did not go, like the sacramentum, to the state, but to the party victorious in the action. Then followed the 'condictio' proper 2, viz. notice by the plaintiff to the defendant to reappear after an interval of thirty days for the appointment of a iudex to try the case, the subsequent procedure being much the same as in sacramentum. It does not seem that the sponsio and restipulatio, by which the wager 'tertiae partis' was entered into, ever formed part of the condictio to recover 'certa res,' which was called condictio triticaria.

case.

3

The defects of the legis actio procedure in general lie upon the surface. Gaius (iv. 30) refers only to its 'nimia subtilitas' or excessive formalism. Things came, he says, to such a pass, that he who committed the smallest error failed altogether. Sir H. Maine 3 cites a passage of Blackstone in which precisely the same remark is made of the English law of Distress, and which is curious, as he says, because the later of the two writers could not possibly have read the earlier. It was not so much the 'nimia subtilitas' as the lack of safe

1 For another explanation see Maine, Early History of Institutions p. 260. 2 Gaius iv. 18 'et haec quidem actio proprie condictio vocabatur: nam actor adversario denuntiabat, ut ad iudicem capiendum die xxx adesset.'

guards against errors of form which gave the legis actio its two-edged character. Any such error, however trivial it might be, entailed complete and irrevocable loss of action, for the maxim 'nemo de eadem re bis experiri potest' forbade the bringing of a second suit: and yet the chances of such mistake were so innumerable, the path of the litigant was so beset with the pitfalls of formalism, that justice must have been only too often defeated. Thus, in manus iniectio, and pignoris capio, the proceedings took place to a large extent, if not entirely, out of court; and yet the slightest slip, even in an ignorant creditor, brought upon him irremediable defeat. In the succeeding system, as is remarked by Mr. Poste1, no litigant could commit a suicidal error before the final moment at which the suit was transferred from praetor to iudex. In the same note he calls attention to the rigidity of Statute-Process-its want of power of expansion. forms of action were crystallised in the law, and incapable of multiplication; the right presupposed the remedy, not the remedy the right; the praetor himself had his hands tied, and was a mere piece of machinery. A new order of things was inaugurated by the lex Aebutia, circ. 170 B.C.

The

With a few reservations, this statute abolished the legis actio procedure, though we do not know whether its action was exclusively destructive. It is usual to speak of it as having 'introduced' the formulary system; but it is quite uncertain whether the outlines of the latter were sketched in the statute, or whether it left the praetor to devise and apply a new procedure at his own discretion. But, whatever its source, the new system has two leading features. One is the universal division of every judicial proceeding or action into two portions, one which took place before the praetor, in iure, and the other which took place before the iudex, in iudicio. We have seen the growing tendency towards this in the legis actio period. So long as

1 Note on Gaius iv. 30.

The cases in which Statute-Process was allowed to survive were (1) those which had to be tried in the decemviral and centumviral courts, where the procedure was by sacramentum; (2) damnum infectum (note on Bk. iii. 18. 2 supr.), where, according to Mr. Poste, it was by iudicis arbitrive postulatio, though Bethmann-Hollweg is more probably right in supposing it to have been a case of pignoris capio; and (3) the voluntary jurisdiction, such as datio in adoptionem, manumissio vindicta, and in iure cessio: see Keller, Civil Process § 24. Gaius says (iv. 30) that the two leges Iuliae (passed in the reign of Augustus) assisted in the overthrow of Statute-Process. All that they seem to have done, however, was to abolish the decemviri as an independent court, combining them in some way with the centumviri, and to limit the jurisdiction of the latter. Puchta, Inst. § 163, cf. Keller, Civil Process § 23.