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Actions for the thing or the penalty

agimus. (8.) Poenam tantum consequimur velut actione furti et iniuriarum, et secundum quorundam opinionem actione vi bonorum raptorum ; nam ipsius rei et vindicatio et condictio nobis competit. (9.) Rem vero et poenam persequimur velut ex his causis ex quibus adversus infitiantem in duplum agimus : quod accidit per actionem iudicati, depensi, damni iniuriae legis Aquilae, et rerum legatarum nomine quae per damnationem certae relictae sunt.

10. Quaedam praeterea sunt actiones quae ad legis actionem exprimuntur, quaedam sua vi ac potestate constant. quod ut manifestum fiat, opus est ut prius de legis actionibus loquamur.

II. Actiones quas in usu veteres habuerunt legis actiones appellabantur, vel ideo quod legibus proditae erant, quippe tunc edicta Praetoris quibus complures actiones introductae

arising out of a contract. 8. We obtain a penalty only, as in the actions furti' and injuriarum, and, according to the views of some lawyers, in the action vi bonorum raptorum3, for to recover the thing itself there lies for us either a vindication or a condiction. 9. We sue for the thing and a penalty in those cases, for example, where we bring our action for double the amount against an opponent who denies (the fact we state): instances of which are to be found in the actions judicati*, depensi, damni injuriae under the Lex Aquilia, and for the recovery of legacies where certain specific things have been left (by the form) per damnationem".

10. Moreover, there are some actions which are framed upon a legis actio, whilst others rest on their own special force. In order to make this clear we must give some preliminary account of the legis actiones.

II. The actions which our ancestors were accustomed to use were called legis actiones, either from the fact of their being declared by leges, for in those times the Praetor's edicts,

sunt nondum in usu habebantur; vel ideo quia ipsarum legum verbis accommodatae erant, et ideo immutabiles proinde atque leges observabantur. unde cum quis de vitibus succisis ita egis, set, ut in actione vites nominaret, responsum est eum rem per, didisse, quia debuisset arbores nominare, eo quod lex XII tabularum, ex qua de vitibus succisis actio competeret, generaliter de arboribus succisis loqueretur. (12.) Lege autem agebatur modis quinque: sacramento, per iudicis postulationem, per condictionem, per manus iniectionem, per pignoris captionem.

13. Sacramenti actio generalis erat: de quibus enim rebus ut aliter ageretur lege cautum non erat, de his sacramento agebatur. eaque actio perinde periculosa erat falsi nomine, atque hoc tempore periculosa est actio certae creditae pecuniae propter sponsionem qua periclitatur reus, si temere neget, et restipulationem qua periclitatur actor, si non debitum petat: nam whereby very many actions have been introduced, were not in use; or from the fact that they were adapted to the words of the leges themselves, and so were adhered to as inflexibly as those leges were. Hence, when in an action for vines having been cut down, the plaintiff used the word vites in his plaint, it was held that he must lose the cause; because he ought to have used the word arbores, inasmuch as the law of the Twelve Tables, on which lay the action for vines cut down, spoke generally of trees (arbores) cut down'. 12. The legis actiones, then, were sued out in five ways: by sacramentum, by judicis postulatio, by condictio, by manus injectio, by pignoris captio.

13. The actio sacramenti was a general one, for in all cases where there was no provision made in any lex for proceeding in another way, the form was by sacramentum3: and this action was then just as perilous in the case of fraud, as at the present day is the action "for a definite sum of money lent," on account of the sponsion whereby the defendant is imperilled, if he oppose the plaintiff's claim without good

1 See D. 43. 27, where, however, the old law is only referred to, not quoted.

2 According to Varro (de Ling. Lat. v. § 180, p. 70, Müller's edition) the name sacramentum was derived from the place of deposit, a temple (in sacro); for it would seem that in

the most ancient times the deposit was actually staked in the hands of the magistrate, and that the practice of giving sureties instead was an innovation of a later age.

3 An action, that is to say, under the Lex Silia. See note on IV. I.

qui victus erat summam sacramenti praestabat poenae nomine; eaque in publicum cedebat praedesque eo nomine Praetori dabantur, non ut nunc sponsionis et restipulationis poena lucro cedit adversario qui vicerit. (14.) Poena autem sacramenti aut quingenaria erat aut quinquagenaria. nam de rebus mille aeris plurisve quingentis assibus, de minoris vero quinquaginta assibus sacramento contendebatur; nam ita lege x11 tabularum cautum erat. sed si de libertate hominis controversia erat, etsi pretiosissimus homo esset, tamen ut L assibus sacramento contenderetur, eadem lege cautum est favoris causa, ne satisdatione onerarentur adsertores. (15.) [Nunc admonendi sumus, istas omnes actiones certis quibusdam et solemnibus verbis

reason, and on account of the restipulation whereby the plaintiff is imperilled if the sum in dispute be not due; for he who had lost the suit was liable by way of penalty to the amount of the deposit, which went to the treasury, and for the securing of which sureties were given to the Praetor: the penalty not going at that time, as does the sponsional and restipulatory penalty now, into the pocket of the successful party. 14. Now the penal sum of the sacramentum was either one of five hundred or one of fifty (asses). For when the suit was for things of the value of a thousand asses or more, the deposit would be five hundred, but when it was for less, it would be fifty: for thus it was enacted by a law of the Twelve Tables'. If, however, the suit related to the liberty of a man, although a man is valuable beyond all things, yet it was enacted by the same law that the suit should be carried on with a deposit of fifty asses, with the view of favouring such suits, and in order to prevent the asserters of liberty3 being burdened with excessive security. 15. We must now be reminded that all these actions were of necessity carried on

1 Tab. II. 1. 1.

2 For this phrase, favoris causa, used in a similar sense, see D. 23. 3. 74, and D. 50. 4. 8.

3 Adsertores the friends who came forward on behalf of the man held in servitude, who of course, from the disability of his status, could do nothing for himself. Cf. Plaut. Curc. v. 2. 68. Terent. Adelph. II.

1. 40; Suet. Caes. 80.

4 We have adopted in the opening of this paragraph, down to the words "ad judicem accipiendum venirent," the conjectural reading of Heffter. The reading may be right or not, (its sense is undoubtedly accordant with what we know of the ancient law,) but at all events it renders the passage more complete.

Preliminary proceedings before the Praetor.

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peragi debuisse. Si verbi gratia in personam agebatur contra eum qui nexu se obligaverat, actor eum apud Praetorem ita interrogabat: Quando in iure te conspicio, postulo an fias auctor, qua de re nexum mecum fecisti? Et altero negante, ille dicebat: Quando negas, sacramento quingenario te provoco, si propter te fidemve tuam captus fraudatusve siem. Deinde adversarius quoque dicebat: Quando ais neque negas me nexum fecisse tecum, qua de re agitur, similiter ego te sacramento quingenario provoco, si propter me fidemve meam captus fraudatusve non sies. Quibus ab utraque parte peractis litigatores poscebant iudicem, et Praetor ipsis diem praestituebat, quo] ad iudicem accipiundum venirent. postea vero reversis dabatur e in special and formal language. If, for instance, the action were one in personam against an individual who had bound himself by a legal obligation', the plaintiff used to interrogate him in the Praetor's presence in this form: As I see you in court, I demand whether you give consent to (the settlement of) the matter in respect of which you have entered into an obligation with me?" Then on this person's refusal the plaintiff went on thus: "Since you say no, I challenge you in a deposit of five hundred (asses), if I have been deceived and defrauded through you and through trust in you." Then the opposite party also had his say, thus: "Since you assert and do not deny that I have entered into a legal engagement with you in relation to the subject-matter of this action, I too challenge you with a deposit of five hundred (asses), in case you have not been deceived or defrauded through me or through trust in me." At the close of these proceedings on either side, the parties demanded a judex, and the Praetor fixed a day for them to come and receive one. Afterwards, on their reappearance in court, a judex was assigned from the number of the decemvirs on the thirtieth day: and this was

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to give some specific thing and all its interest and profits. In the present case the defendant would become auctor by admitting his liability, for this admission would make him a reus promittendi in a stipulatory engagement.

3 This is a difficult passage on account of the obliterated state of the MS. We have again adhered to Heffier's conjectural reading, viz. e decemviris xxx (die).

Xviris xxx iudex: idque per legem Pinariam factum est; ante eam autem legem nondum dabatur iudex. illud ex superioribus intelligimus, si de re minoris quam м aeris agebatur, quinquagenario sacramento, non quingenario eos contendere solitos fuisse. postea tamen quam iudex datus esset, comperendinum diem, ut ad iudicem venirent, denuntiabant. deinde cum ad iudicem venerant, antequam aput eum causam perorarent, solebant breviter ei et quasi per indicem rem exponere: quae dicebatur causae collectio, quasi causae suae in breve coactio. (16.) Si in rem agebatur, mobilia quidem et moventia, quae so done in accordance with the Lex Pinaria1; for before the passing of that lex, it was not the practice for a judex to be assigned. From what has been stated above, we have gathered that when the dispute was in respect of a matter of smaller value than one thousand asses, the parties were wont to join issue with a deposit of fifty and not five hundred asses. Next, when their judex had been assigned to them, they used to give notice, each to the other, to come before him on the next day but one. Then, when they had made their appearance before the judex, their custom was, before they argued out their cause, to set forth the matter to him briefly, and, as it were, in outline: and this was termed causae collectio3, being, so to speak, a brief epitome of each party's case. 16. If the action were one in rem, the process by which the claim used to be made in court for moveable and moving things

1 See note (K) in Appendix.

2 This translation is in accordance with Heffter's emendation of nondum; Hollweg reads statim; Huschke, who has filled up the preceding lacuna differently from Heffter, would supply iis e decemviris.

3 See note (L) in Appendix.

4 In later times there was another form of proceeding, viz. ex jure, which is the one specially ridiculed by Cicero in pro Mur. c. 12. The process (technically called manus consertio) is fully described in both its forms by Aulus Gellius, XX. 10, the sum of whose observations may be thus given: "By the phrase manum conserere is meant the claiming of a matter in dispute by both litigants in a set form of words and

with the thing itself before them. This presence of the thing was absolutely necessary according to a Law of the Twelve Tables commencing: Si qui in jure manum conserunt (Tab. IV. 1. 5), and the proceedings (vindicia, manus correptio) must take place before the praetor." Hence we see that in olden times the praetor must have gone with the parties to the land, when land was the subject of dispute, although moveables may possibly, and probably, have been brought by them to him. Gellius proceeds:

"But when from the extension of the Roman territory and the increase of their other business, the praetors found it inconvenient to go with the parties to distant places to take part in these proceedings, a practice arose