BOOK IV. Chapter 11. larum. AERISQUE bantur. Sic enim sunt, opinor, verba legis": ... 1 Parties against whom judgment was given for an admitted debt were granted thirty days for the purpose of raising the money and those days were by the decemvirs called 'lawful,' as a sort of iustitium, i.e., a certain interval and cessation of law between them, so to speak, during which days no proceedings could be taken against them. After that, if pay. ment were not made, the debtors were summoned before the Praetor and by him delivered to those to whom they had been adjudged, and were bound in stocks and fetters. The words of the lex [i.e., of the Twelve Tables] are, 'Thirty days shall be the lawful limit of an acknowledged debt, and for matters decided in court in respect of an admitted debt. After that, let his person be seized, let him be brought before the magistrate. Unless he satisfy the judgment-debt, or some one appears in court on his behalf as vindex, let the creditor take him home.' -But there was power in the meantime to compromise the matter; and unless such compromise were made by them, the debtors were held in chains for sixty days. During such period, upon every third consecutive market-day, they were exhibited before the Praetor in the comitium, and proclamation was made of the amount of the judgment-debt against them. On the third market-day they were put to death, or sold into slavery beyond the Tiber. If there were several persons to whom the defendant was adjudged, they were allowed, if they chose, to cut and divide the body of the man adjudged to them. Indeed I will mention the very words of the lex: 'Let them on (3) The anomalous legis actio per pignoris capionema was a solemn private distraint introduced for certain claims privileged because of their sacral or public nature, upon the further course of which we possess no information. Gai. iv. §§ 26-9: Per pignoris capionem lege agebatur de quibusdam rebus moribus, de quibusdam lege. § Introducta est moribus rei militaris: nam et propter stipendium licebat militi ab eo qui id distribuebat, nisi daret, pignus capere (dicebatur autem ea pecunia . . . aes militare); item propter eam pecuniam licebat pignus capere, ex qua equus emendus erat, quae pecunia dicebatur aes equestre; item propter eam pecuniam, ex qua hordeum equis erit comparandum, quae pecunia dicebatur aes hordiarium. § Lege autem introducta est pignoris capio veluti lege XII tabularum adversus eum qui hostiam emisset nec pretium redderet, . . . item lege censoria data est pignoris capio publicanis vectigalium publicorum populi Romani adversus eos, qui aliqua lege vectigalia deberent. § Ex omnibus autem istis causis certis verbis pignus capiebatur et ob id plerisque placebat, hanc quoque actionem legis actionem esse; quibusdam autem placebat legis actionem non esse, primum quod pignoris capio extra ius peragebatur, i.e. non apud praetorem, plerumque etiam absente adversario, cum alioquin ceteris actionibus non aliter uti possent, quam apud praetorem praesente adversario, praeterea quod nefasto quoque die, i.e. quo non licebat lege agere, pignus capi poterat.' the third market-day divide their shares; if they have cut too much or too little, it shall not prejudice them.' 1 The legis actio by pignoris capio (distress) originated from custom in respect of some matters, from statute in respect of others. That which dealt with matters affecting the army was brought in by custom. For a soldier was allowed to distrain upon the paymaster in respect of his pay. (Such money (4) The legis actio per iudicis arbitrive postulationem, which is scarcely known more than by name, it is supposed, was intended for such matters as, according to their nature, required a more independent position and a more arbitrary opinion in the judge, as especially matters of partition (e.g., arbitrium familiae erciscundae, actio aquae pluviae arcendae, actio rei uxoriae)." BOOK IV. Chapter 11. a The a. r. u. is questionable. (5) The legis actio per condictionem was a new and more simple form of procedure which took the place of the unwieldy sacramenti actio, for strictly unilateral claims relating to a certum,' and introduced the transition to proceedings 'per formulas.' It consisted in a summons to the defendant, which probably connected itself with the claim and denial of debt in iure-unless the plaintiff preferred to tender an oath to the defendant upon the debt; this was, to appear again on the thirtieth day for the appointment of a iudicium, to which, it is supposed, attached a penal sponsio et restipulatio Whether one tertiae partis' of the sum in dispute.d b b §27. in pecuniary claims was at the same time pre-judicial is very doubtful. was called 'aes militare.') So, too, it was lawful for a soldier to distrain for payment of the sum required for the purchase of a cf. § 206 a horse; and this money was called 'aes equestre.' So again, he could take a pledge for the money to be provided for the purchase of forage for his horse, and this was called 'aes hordiarium. § Pignoris capio was introduced by statute; as for instance, by a law of the Twelve Tables, against a man who bought a victim for sacrifice and failed to pay the price. So also a pign. cap. was given by a lex censoria to farmers of the public revenues of the Roman people against those who were liable for taxes under any statute. § In all these cases the pledge was seized with a set form of words; and hence a majority held that this was a leg. act. too; but some thought that it should not be so regarded: first, because the pign. cap. took place out of court, i.e., not before the Praetor, and besides generally in the absence of the opponent, whereas the plaintiff could not put actions of the law in operation except before the Praetor and in the presence of his opponent; and further, because the pledge might be seized even on a dies nefastus, that is, on a day when it is not lawful to proceed by an action at law. BOOK IV. Chapter 11, Gai. iv. §§ 18-19: —condicere autem denuntiare est prisca lingua. Itaque haec quidem actio proprie condictio vocabatur: nam actor adversario denuntiabat, ut ad iudicem capiendum die trigesimo adesset. . . . § Haec autem legis actio constituta est per legem Siliam et Calpurniam, lege quidem Silia certae pecuniae, lege vero Calpurnia de omni certa re.' PROCEEDINGS PER FORMULAS. § 193. IN GENERAL. At a later period, as its solemnities were given up, the place of procedure by legis actio was by gradual development (lex Aebutia circ. 550 U.C., leges Iuliae Augusti) taken by the so-called FORMULARY PROCESS, in which the parties by free discussion laid their claims in iure before the magistrate, and he, accordingly, briefly cast the object of the suit in a formula (concepta verba), that is, a written instruction to the judge to whom the matter was referred for decision, which was furnished with a hypothetical injunction to condemn and absolve. The Praetors accordingly acquired, on the one hand, an influence they had not before had upon the shape of the suit, and the form of the judicial prosecution of the claim in the particular case; on the other, the power to operate upon positive law itself by modification and development, because, in the exercise of their power of jurisdiction, they granted actiones and composed formulae for their enforcement by proceedings, not merely for claims founded iure civili-previously participating in a legis actio-but 1 Now condicere in the ancient language means denuntiare (to give notice). This action, therefore, was properly called condictio; for the plaintiff warned his opponent to appear on the thirtieth day for the appointment of a iudex. . . . § This form of legis actio was established by the leges Sil. et Calp.; by the l. Silia in respect of the recovery of a liquidated sum, by the 1. Calpurnia in respect of any certain thing. BOOK IV. Chapter II. also for those which, according to later legal opinion, appeared to require legal protection through the absolute power of the magistrate." Thus for most a cf. §§ 7, 24, claims the Praetorian jurisdiction developed fixed 200. formulae, which the edict (album praetoris) contains for every one's information in the shape of formularies. Gai. iv. § 30-1: Sed istae omnes legis actiones paulatim in odium venerunt: namque ex nimia subtilitate veterum, qui tunc iura condiderunt, eo res perducta est, ut vel qui minimum errasset, litem perderet; itaque per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones effectumque est, ut per concepta verba, i.e. per formulas litigemus. § Tantum ex duabus causis permissum est lege agere, damni infecti et si centumvirale iudicium futurum est.1 Independent formulae did not immediately arise for all claims. Thus in the beginning a iudicium for legal claims was besides often brought about by a necessary'sponsio praeiudicialis,' to be agreed between the parties in iure, under the authority of the Praetor, upon the subject-matter of the claim in question, which then was referred to the judge for decision, by means of formula 'certae pecuniae creditae': as in particular occurred with actiones in rem. Moreover, for a long time proceedings per sponsiones continued to exist for many claims alongside of those per formulas.b 1 But all those legis actiones gradually fell into discredit; for through the overdrawn subtlety of the old jurists, who then arranged the law, matters were carried so far, that a suitor who made the slightest mistake lost the canse. And so these legis actiones were abolished by the 1. Aebutia and the two leges Iuliae, and the result has been that we now maintain an action by a fixed form of words, that is to say, by formulae. § In two cases alone have suitors been allowed to employ a legis actio, viz., in respect of damnum infectum, and if the case had to come before the Centumviral Court. Cf. § 201. |