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but ascendants and patrons could not be summoned except by previous authorisation of the magistrate. When before the magistrate the parties had to give security for their further appearance (vadimonium), and called witnesses to testify that the litigation had duly begun (litis contestatio). In early times, the magistrate sat in the forum, and openly dispensed justice to all comers. Nothing, perhaps, conveys a more correct picture of the ideas and feelings that lay at the botttom of the public life of a Roman 07 citizen, while Rome was still the rival of the Volscians or the ! Æquians, than the mode in wbich the actions of law were conducted. The magistrate and the judge of the patrician order, the distinction of days fasti and nefasti, the key to which only those who knew the jus sacrum possessed, the solemn and indispensable form of words by which every stage of the proceeding must be accompanied, would throw over the conduct of the action much of the same character which the existence of a privileged and partly sacerdotal order impressed on the whole body politic.
94. The most ancient and most important of the actions of law, the actio sacramenti,* brings before us, in the
First epoch. most marked manner, the delight in appeals to the Actions of law, external senses, and the use of symbolical acts, sanc- - actio sacra
menti. tioned by long usage and expressive in themselves," which belongs to the early times of so many nations. It was originally the only form of action; and every species of right could be enforced by it. When it was employed to enforce a right over things, the proceedings opened by the thing being brought before the magistrate (in jure); the claimants appeared, each tonched it with a rod (vindicta or festuca), and said, 'Hunc ego hominem (the instance given in Gaius is that of a claim to a slave) ex jure Quiritium meum esse aio secundum suam causam, sicut dixi. Ecce tibi vindictam imposui.' His adversary repeated the same words. At the same time that the words were spoken each party seized hold of the thing claimed ; this was termed the manuum consertio, representing a combat which was supposed to take place in the presence of the magistrate before he would interpose, and the imposing the rod was termed vindicatio. If the thing was one that could not be brought into court, a portion of it was brought to represent the whole. A piece of turf, a
twig, a brick, or one sheep, stood in place of a field, a house, or a flock.* When the vindicatio and manuum consertio were over, the magistrate said to the parties, mittite ambo hominem; both were to place their claims in his hands. Then came the wager, the sacramentum, each party challenging bis adversary to deposit a certain sum, which the loser of the cause was to forfeit to the treasury of the people (ærarium), to be applied to the expenses of sacrifices. The law of the Twelve Tables fixed the amount of the wager at 500 or 50 asses, according as the value of the thing contested fell above or below 1,000 asses. The formal words by which this was done are thus given by Gaius. He who had first gone through the vindicatio asked his adversary why he claimed it. Postulo anne dicas, qua ex causa vindicaveris. The other replied that it was in conformity with right and law that he had made his claim. Jus peregi sicut vindictam imposui : the first answered, Quando tu injuria vindicasti, D. æris sacramento te provoco, 'I challenge you to a deposit of 500 asses ;' and the other accepted the challenge by saying, Similiter ego te. The magistrate then awarded the possession of the thing contested until a decision was pronounced to the party that appeared to have the best right to it, requiring him to furnish security that it would be forthcoming at the proper time. These sureties were called prædes litis et vindiciarum—lis signifying the thing contested itself, and vindiciæ the fruits or profits which might arise from it before the final sentence was given. After a certain delay, a judge was appointed to examine the facts ; he informed the magistrate what his decision was, and the magistrate gave effect to this decision by using the force placed at his disposal. When the right to be tried was a personal one, there was of course nothing that could be claimed by vindicatio, and the action began at once with the wager.
95. The details of the actio sacramenti furnish so lively a
per i picture of the actual working of early Roman law, dicis postula- that it is worth while to set them fully before us; but tionem.
the other actions of law may be passed over with a much more cursory notice; † indeed, our knowledge of them is
* If the thing was an immoveable, there appears to have been an old ceremony of the parties going to the land or other immoveable thing, and one expelling the other from it, and leading him before a magistrate (deductio). See Aulus GELLIUS, Noct. Att. xx. 10; CICERO, Pro Muræna, c. 6.
† Gaius, iv. 12.
very deficient, as the portion of the manuscript of Gaius which contained a sketch of the proceedings is imperfect. We know that the action called judicis postulatio was employed with regard to obligations, the machinery of the actio sacramenti being obviously but very ill adapted for enforcing rights against persons. We know little more than that the magistrate was asked to allow the appointment of a judge, or arbiter, to decide the matter in question ; and that the form of action was probably adopted, not where some certain thing was asked for as the fulfilment of the engagement, but where a greater uncertainty in the circumstances of the case allowed a greater latitude of opinion, and where an appearance of good or bad faith would naturally colour the whole cause.* In the year A.U.C. 510 (as it is conjectured) the lecc Silia instituted a new form of action where the obligation was for the giving a definite sum of money, and a lex Calpurnia (A.U.c. 520) extended the scope of the action to all obligations for any certain definite thing.t This action was called condictio, because the plaintiff gave notice (condicere) to the defendant that he must appear before the magistrate, at an interval of thirty days, to receive a judge. Probably its institution completed the withdrawal of the enforcement of obligations from the scope of the actio sacramenti. The judicis postulatio may have left to the sphere of the actio sacramenti the demand for things certi, and then the condictio took that also away.
96. There were two other actions of law, that per manus injectionem, and that per pignoris capionem. These were, however, not really actions so much as methods manus injecof obtaining execution. If it was a right over a thing tionem. that was claimed, then, if the sentence was in favour of the claimant, the magistrate at once put the claimant in possession of the thing, having recourse to force, manus militaris, if necessary. But when a right against a person had to be enforced, there was nothing which could be thus handed over; the remedy was against the person, the liberty of the defeated adversary, and the action per manus injectionem was the means by which the successful litigant exerted his power. He laid hands on him, manus injecit, and brought him before a magistrate, stating that he had been
* Præclarum a majoribus accepimus morem rogandi judicis, si ea rogaremus quæ salva fide facere possit.—CICERO, De Of. iii. 10. † Gaius, iv. 19.
I' Gaius; iv. 21.
cast in the previous suit; if this was denied, a judex was appointed, and inquiry made whether judgment had really been given against him as alleged. If this was found to be the case, he was adjudicatus to the claimant, who kept him prisoner, and then being brought, after sixty days, before the magistrate, was addictus, or assigned over, and became the slave of his creditor.
To the principle that the person, and not the property, of the debtor was bound, an exception was made when the debt was due to a soldier for military service, to the fund for sacrifices, or the public treasury.* The creditor, in such cases, might seize on any
thing belonging to the debtor, and take it as a pledge Actio per pignoris for the payment of a debt. This pignoris capio was capionem.
• only spoken of as an actio because it was conducted with certain solemnities, and accompanied by the repetition of a peculiar form of words.
The following are some of the marked features of actions of law, in respect of which great differences were gradually introduced under the later systems. (1) The procedure in the actions of law was one open only to Roman citizens. (2) The parties were almost always obliged to appear personally, but an assertor libertatis could appear to claim the freedom of a person wrongly treated as a slave. (3) So rigid was the necessity of adherence to the prescribed forms, as Gaius informs us (iv. 11), that if, in an action for damage to a vineyard, the plaintiff used the word vites instead of the general word arbores, employed in the law of the Twelve Tables, he lost his action. (4) If the action was once brought, it was exhausted, or if it failed, even on the most technical ground, the plaintiff had no further remedy. (5) The sentence was ordiparily to give the thing demanded, not a pecuniary equivalent.
97. The legis actiones were necessarily replaced by other forms of actions more convenient as Rome advanced in civilisation. They were in a great measure suppressed by the lex Æbutia,
of (about A.U.C. 573), and afterwards, in the time of the actions of Augustus, by the leges Julia. They were, however, law.
long retained in cases where the centumviri were the proper judices, that is, in questions of status, Quiritian ownership, and disputed succession, the prætor presiding personally over the deliberations of the centumviri, and not instructing them by a formula; and a fictitious prccess, termed in jure cessio, which was
* Gaius, iv. 26. (See also ante, sec. 8.)
nothing else than an undefended action at law, in which a disputant gave up (cessit) before the magistrate (in jure) the thing in dispute, was retained as a ready means of many legal changes, such as manumission or adoption, long after the actions of law had fallen into disuse. Before the actions of law were suppressed, the prætor peregrinus had for years been administering justice through forms of action devised by him where peregrini were concerned.
98. The changes wrought by intercourse with foreign nations, the new duties of extended dominion, and the stimulus se given to the national mind by the long internal the system of struggles which had now subsided, produced by degrees form a general change in the mode in which justice was administered. A new system succeeded the old legis actiones ; the jo magistrate was more strongly marked off from the the second judex, and it was the directions which the former gave period the latter that constituted the important feature of the new system of procedure. At home the prætors, of whom there were eighteen in the days of Pomponius,* and one or two other magistrates; and in the provinces the præsides or præfects, who held conventus or assizes in the principal towns at stated intervals, sat as magistrates. At Rome the long struggle between the senate and the equites for the exclusive right to furnish the judges ended, as has been already said (sec. 12), in the judges ceasing to be taken entirely either from the senate or the equites ; and two, at least, out of the five decuries of judges appearing in the album were taken from a comparatively humble class. The recuperatores and centumviri still continued to act in the cases which properly fell within their province.
99. The directions which the magistrate sent to the judge were always conveyed in a formal shape, and the word
Formula. formulo was used to express the different forms in which directions were given. These formulæ were preserved and collected, and it became the great object of the contending parties that the right formula should be used in their case, the judge not being allowed to depart from the instructions he received. As there was no legal form to bind the magistrate, he could easily vary the formula so as to render substantial justice, and had thus a ready means of availing himself of any equitable doctrine, which