modo in ius adferri adducive possent, in iure vindicabantur ad hunc modum. qui vindicabat festucam tenebat. deinde ipsam rem adprehendebat, velut hominem, et ita dicebat: HUNC

EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO SECUNDUM SUAM CAUSAM SICUT DIXI. ECCE TIBI VINDICTAM INPOSUI :

et simul homini festucam inponebat. adversarius eadem similiter dicebat et faciebat. cum uterque vindicasset, Praetor dicebat: MITTITE AMBO HOMINEM. illi mittebant. qui prior vindicaverat, ita alterum interrogabat: POSTULO ANNE DICAS QUA EX CAUSA VINDICAVERIS. ille respondebat: IUS PEREGİ SICUT VINDICTAM INPOSUI. deinde qui prior vindicaverat dicebat: QUANDO TU INIURIA VINDICAVISTI, D AERIS SACRAMENTO

that could be brought or led into court, was as follows: the claimant, having a wand in his hand, laid hold of the thing claimed, say for instance, a slave, and uttered these words: "I assert that this slave is mine ex jure Quiritium, in accordance with his status', as I have declared it. Look you, I lay my wand upon him :" and at the same moment he laid his wand on the slave. Then his opponent spoke and acted in precisely the same way; and each having made his claim the Praetor said: "Let go the slave, both of you." On which they let him go, and he who was the first claimant thus interrogated the other: "I ask you whether you can state the grounds of your claim." To that his opponent replied: "I have fully complied with the law inasmuch as I have touched him with my wand." Then the first claimant said: "Inasmuch as you have made a claim without law to support it, I challenge you in a deposit of five hundred asses."

'(although contrary to the directions of the Twelve Tables,) that the consertio manus should no longer be done before the praetor (in jure), but that the parties should challenge one another to its performance without his presence (ex jure). They then went to the land together, and bringing back a clod therefrom, made their claim over that clod alone in the praetor's presence, in the name of the entire field." This method is referred to by Festus (sub verb. vindiciae), "Vindiciae olim dicebantur illae (glebae) quae ex fundo sumtae in jus

66

"And

allatae erant." In Cicero's time the proceedings seem to have been still more fictitious: the litigants went out of court, nominally ut consererent manus, but returned after a few minutes' absence, feigning that the consertio had in the meantime taken place, and then the rest of the process followed as set down by Gaius in the text.

1 For this meaning of causa, see I. 138, 11. 137. In D. 1. 8. 6. pr.; D. 22.6. 3. pr.; D. 8. 2. 28, the word has the same or an analogous signification.

262

TE PROVOCO.

Assignment of Vindiciae.

adversarius quoque dicebat: SIMILITER EGO TE. seu L asses sacramenti nominabant. deinde eadem sequebantur quae cum in personam ageretur. Postea Praetor secundum alterum eorum vindicias dicebat, id est interim aliquem possessorem constituebat, eumque iubebat praedes adversario dare litis et vindiciarum, id est rei et fructuum: alios autem praedes ipse Praetor ab utroque accipiebat sacramenti, quod id in publicum cedebat. festuca autem utebantur quasi hastae loco, signo quodam iusti dominii: maxime enim sua esse credebant quae ex hostibus cepissent; unde in centumviralibus iudiciis hasta praeponitur. (17.) Si qua res talis erat, ut non sine incommodo posset in ius adferri vel adduci, velut si columna aut grex alicuius pecoris esset, pars aliqua inde sumebatur. deinde in eam partem quasi I too challenge you," said his opponent. Or the amount of the deposit they named might be fifty asses. Then followed the rest of the proceedings exactly as in an action in personam'. Next the Praetor used to assign the vindiciae to one or other of the parties, that is, give interim possession of the thing sued for to one of them, ordering him at the same time to provide his adversary with sureties litis et vindiciarum, i. e. for the thing in dispute and its profits. The Praetor also took other sureties for the deposit from both parties, because that deposit went to the treasury. The litigants made use of a wand instead of the spear, which was the symbol of legal ownership; for men considered those things above all others to be their own which they took from the enemy: and this is the reason why the spear is set up in front of the Centumviral Courts. 17. When the thing in dispute was of such a nature that it could not be brought or led into court without inconvenience, for instance if it were a column, or a flock or herd of some

1 IV. 15.

2

3

Festus says: "Vindiciae was the term applied to those things which were the subjects of a lawsuit, although the suit, to speak more correctly, was about the right which the vindiciae (the clod, tile, &c.) symbolically represented." Festus, sub verb. vindiciae.

3 Praes is a person who binds himself to the state (becomes bail, for instance, for the payment of the sacramentum), and is so called because when interrogated by the magistrate

in totam rem praesentem fiebat vindicatio. itaque ex grege vel una ovis aut capra in ius adducebatur, vel etiam pilus inde sumebatur et in ius adferebatur; ex nave vero et columna aliqua pars defringebatur. similiter si de fundo vel de aedibus sive de hereditate controversia erat, pars aliqua inde sumebatur et in ius adferebatur et in eam partem perinde atque in totam rem praesentem fiebat vindicatio: velut ex fundo gleba sumebatur et ex aedibus tegula, et si de hereditate controversia erat, aeque [folium deperditum]. Enimvero modum aequalem paene capiendi iudicis observabant, qui etiam ad iudicem postulandum adhibitus est, denique condictio autem adpellari coepta a lege Varia.

18. Et haec quidem actio proprie condictio vocabatur: nam actor adversario denuntiabat, ut ad iudicem capiendum die xxx adesset. nunc vero non proprie condictionem dicimus ac

kind of cattle, some portion was taken therefrom, and the claim was made upon that portion, as though upon the whole thing actually present in court. Thus, one sheep or one goat out of a flock was led into court, or even a lock of wool from the same was brought thither: whilst from a ship or a column some portion was broken off. So, too, if the dispute were about a field, or a house, or an inheritance, some part was taken therefrom and brought into court, and the claim was made upon that part as though it were upon the whole thing there present; thus for instance, a clod was taken from the field, or a tile from the house, and if the dispute were about an inheritance, in like manner'.....

......Our ancestors had in use a form, called capiendi judicis, almost identical with that employed in the judicis postulatio: and this at a later time, after the passing of the Lex Varia3, was called a condictio. 18. And it was with propriety so called, for the plaintiff used to give notice to his opponent to be in court on the thirtieth day for the purpose of taking a judex3. At the

1 An entire leaf of the MS. is missing here. Göschen is of opinion that the matter thus lost comprised, Ist, the remaining portion of the actio sacramenti; 2nd, an exposition of the action per judicis postulationem; and 3rd, the commencement of that

which is carried on in the three following paragraphs, viz. the form of an action per condictionem.

2 These words are filled in according to a conjectural reading of Heffter's, inserted in the text above.

3 "Condicere est denuntiare priscâ

264

Condictio and Manus Injectio.

tionem in personam esse, qua intendimus dare nobis oportere: nulla enim hoc tempore eo nomine denuntiatio fit. (19.) Haec autem legis actio constituta est per legem Siliam et Calpurniam lege quidem Silia certae pecuniae, lege vero Calpurnia de omni certa re. (20.) Quare autem haec actio desiderata sit, cum de eo quod nobis dari oportet potuerimus sacramento aut per iudicis postulationem agere, valde quaeritur.

21. Per manus iniectionem aeque de his rebus agebatur, de quibus ut ita ageretur, lege aliqua cautum est, velut iudicati lege XII tabularum. quae actio talis erat. qui agebat sic dicebat :

QUOD TU MIHI IUDICATUS SIVE DAMNATUS ES SESTERTIUM X

19.

present time, however, we apply the name, condictio, improperly to an action in personam in the intentio of which we declare that our opponent ought to give something to us, for now-a-days no denuntiatio takes place for such purpose. This legis actio was given by the Leges Silia and Calpurnia ; being by the Lex Silia applicable to the recovery of an ascertained sum of money, and by the Lex Calpurnia to that of any ascertained thing. 20. But why this action was needed it is very difficult to say, seeing that we could sue by the sacramentum or the action per judicis postulationem for that which ought to be given to us'.

21. Similarly an action in the form of an arrest (manus injectio) lay for those cases where it was specified in any lex that this should be the remedy; as in the case of an action upon a judgment which was given by a law of the Twelve Tables. That action was of this nature: he who brought it uttered these words: "Inasmuch as you have been adjudicated or condemned to pay me ten thousand sesterces and have withheld the money fraudulently*, I therefore lay my hands upon you for ten thousand sesterces, a debt due on

linguâ." Just. Inst. IV. 6. 15. So also Festus: "Condicere est dicendo denuntiare. Condictio, in diem certam ejus rei quae agitur denuntiatio."

1 See note (M) in Appendix.

We have here followed Göschen's reading: "lege aliquâ cautum est," instead of Heffter's: "lege Aquiliâ cautum est:" Istly, because, as the former says, it would otherwise be

difficult to understand why the word aeque is introduced here, 2ndly, because of the next paragraph: "velut lege XII. Tabularum," 3rdly, because the reading accords with that in § 28 of this book.

3 Tab. III. I. 3.

4 The distinction between dolus malus and dolus bonus, the latter being lawful, is to be found in D. 3. I. 1-3.

4

MILIA QUAE DOLO MALO NON SOLVISTI, OB EAM REM EGO TIBI SESTERTIUM X MILIUM IUDICATI MANUS INICIO ; et simul aliquam partem corporis eius prendebat. nec licebat iudicato manum sibi depellere et pro se lege agere; sed vindicem dabat, qui pro se causam agere solebat: qui vindicem non dabat, domum ducebatur ab actore et vinciebatur. (22.) Postea quaedam leges ex aliis quibusdam causis pro iudicato manus iniectionem in quosdam dederunt: sicut lex Publilia in eum pro quo sponsor dependisset, si in sex mensibus proximis quam pro eo depensum esset non solvisset sponsori pecuniam; item lex Furia de sponsu adversus eum qui a sponsore plus quam virilem partem exegisset; et denique complures aliae leges in multis causis. talem actionem dederunt. (23.) Sed aliae leges ex quibusdam causis constituerunt quasdam actiones per manus iniectionem, judgment:" and at the same moment he laid hold of some part of his body; nor was he against whom the judgment had been given allowed to remove the arrest and conduct his action for himself, but he named a protector (vindex)', who managed the case for him: a defendant who did not name a protector was taken off by the plaintiff to his house and bound there. 22. Afterwards certain leges extended the action per manus injectionem "as though upon a judgment" to other cases against particular individuals : for instance, the Lex Publilia did so against him for whom a surety (sponsor)2 had paid money, if he had not repaid it to the surety within the six months next after it had been paid for him: so, too, did the Lex Furia de Sponsu3 against him who had exacted from a surety (sponsor) more than his proportion of a debt and in fact many other leges allowed an action of the kind in various cases. 23. Other leges again allowed in certain cases actions per manus injectionem, but (made them)