Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/705

Rh JUS CIVILE.] ROMAN LAW 681 first plebeian chief pontiff, of giving advice in law in public had a still greater effect in popularizing it ; and the Jus Aelianum, some fifty years later a collection that included the Tables, the inter- jjretatio, and the current styles of actions made it as much the heritage of the laity as of the pontifical college. bse- Subsequent Legislation. Of legislation during the fourth ent and fifth centuries that affected the private law we have ^ but scanty record. The best-known enactments are the Canuleian law of 309 repealing the decemviral prohibition of marriages between patricians and plebeians ; the Genu- cian, Marcian, and other laws about usury and the rate of interest ; the Poetilian law of 428, abolishing the nexal contract ; the Silian law, probably not long afterwards, which introduced a new form of process for actions of debt and appears to have given statutory sanction to the stipulation (in its earliest form of sponsio) ; and the Aquilian law of 467, which amended the decemviral provisions about actions of damages for culpable injury to property, and continued to regulate the law on the subject even in the books of Justinian. II. THE ACTIONS OF THE LAW. sgis The Legis Actiones generally^ We owe to Gaius the I M.S., rather fragmentary) account we possess of the legis actiones, as the system of judicial procedure was called which prevailed in Rome down to the substitution of that per formulas by the ^Ebutian and Julian laws, the first early in the sixth century of the city, and the second in the age of Augustus. He tells us that as genera agendi or generic forms of process they were five in number, each taking its name from its characteristic feature, viz., (1) sacramento, (2) per judicis postulationem, (3) per condic- tionem, (4) per manus injectionem, and (5) per pignoris capionem. The third was unknown in the decemviral period, and was introduced by the Silian law alluded to in last paragraph. The other four were all more or less regu- lated by the XII. Tables, but must in some form have been anterior to them. It is utterly impossible, however, to say of any one of them at what time it was introduced, or what was the statute (lex) by which it was sanctioned ; it may well be that they were not of statutory introduction at all, but were called legis actiones simply because recog- nized and indirectly confirmed by the Tables. In char- acter and purpose they were very different. The first three were directly employed for determining a question of right or liability, which, if persistently disputed, inevitably re- sulted in a judicial inquiry. The fourth and fifth might possibly result in judicial intervention ; but primarily they were proceedings in execution, in which the party moving in them worked out his own remedy. As regards their comparative antiquity there is much to be said for the opinion of Ihering and Bekker that manus injectio, as essen- tially nothing more than regulated self-help, must have been the earliest of the five, and that the legis actio sacramento and the judicis postulatio must have been introduced in aid of it, and to prevent too hasty resort to it where there was room for doubt upon question either of fact or law. In the three judicial legis actiones the first step was the in jus vocatio or procedure for bringing the respondent into court, minutely 1 The literature on the subject is very voluminous, great part of it in periodicals. Amongst the leading works are those of Keller, Der rom. Civilprocess u. die Actionen, 1st ed. 1852, 6th ed. by Wach, Leipsic, 1883, 12-21 ; Bethmann-Hollweg, Der rom. Civilprocess in seiner geschichtl. Entwickelung, 3 vols., Bonn, 1864-66, the first volume of which is devoted to the legis actiones ; Buonamici, Delle Legis Actiones nelV antico diritto romano, Pisa, 1868 ; Bekker, Die Aktionen d. rom. Privatrechts, 2 vols., Berlin, 1871-73, particularly vol. i. pp. 18-74 ; Karlowa, Der rom. Cimlprozess zur Zeit d. Legis- actionen, Berlin, 1872 ; Padeletti, " Le Legis Actiones," in the Archivio Giuridico, vol. xvii. (1875), p. 321 sq. Schnltze, Privatrecht u. Process in ihrer Wechselbeziehung, vol. i., Freiburg, 1883 (vol. ii. not yet pub- lished), in pp. 439-532 presents some novel and not unimportant views. regulated by the provisions of the first of the XII. Tables. This duty was not committed to any officers of the law ; there was no ^vrit of summons of any sort ; the party moving in the contemplated litigation had himself to do what was needed. Once before the magistrate (consul or praetor), the plaintiff stated his contention. If admitted unqualifiedly by the defendant, the magistrate at once pronounced his decree, leaving the plaintiff to work out his remedy as the law prescribed. But, if the case presented was met either with a denial or a qualified defence, and appeared to the magistrate to be one proper for trial, he remitted it for that purpose either to the centumviral tribunal or to one or more private citizens as judges or arbiters. The act of remit was technically litis contestatio or ordinatio judicii, the first so named because originally the parties called upon those present to be witnesses to the issue that was being sent for trial. This was the ordinary practice under both the system of the legis actiones and that of the formulae, and prevailed until the time of Diocletian. In the first stage the proceedings were said to be injure, and the duties of the magistrate in reference to them made up his jurisdictio ; in the second they were said to be in judicio, those presiding in it being styled judices. All that the judge or judges had to do was to pass judgment on the question remitted to them. They were " right-declarers " only, not " right- enforcers." If their judgment was for the plaintiff, and he failed to obtain an amicable settlement, he had himself to make it opera- tive by subsequent proceedings by manus injectio, and that under the eye of the magistrate, not of the judge. From an enumeration in Cicero of a variety of causes proper to the centumviral court the conclusion seems warranted that it was its peculiar province to decide questions of quiritary right in the strictest acceptation of the word. They were all apparently real actions (vindicationes), claims of property in land or of servitudes over it, of right as heir under a testament or in opposition to it, of rights of tutory and succession ab intestato as agnate or gentile, and so forth. In all these it was a numerous court of Quirites, advised in the early republic by a pontiff, that determined by its vote the question of quiritary right submitted to it. Many such questions in course of time, and possibly at first of express consent of parties, came to be referred to a single judge ; but some, and notably claims of inheritance under or in opposition to a testament, were still remitted to the centumviral court in the classical period. Personal actions, however, do not appear ever to have fallen within its cog- nizance : they were usually sent to a single judge a private citizen selected by the parties, but appointed by the magistrate, and to whom the latter administered an oath of office. But, in a few cases in which an action involved not so much a disputed question of right as the exercise of skill and discretion in determining the nature and extent of a right that in the abstract was not denied, the remit was to a plurality of private judges or arbiters, usually three. The Legis Actio Sacramento? The characteristic feature Sacra- of this legis actio, as described by Gaius, was that the parties, mento. after a somewhat dramatic performance before the consul or praetor, each challenged the other to stake a certain sum, the amount of which was fixed by the Tables, and which was to abide the issue of the inquiry by the court or judge to whom the cause was eventually remitted. This stake Gaius refers to indifferently as sacramentum, summa sacramenti, and poena sacramenti. The formal question the court had to determine was, whose stake had been justified, whose not (cujus sacramentum justum, cujus injustum} ; the first was returned to the staker, the second forfeited originally to sacred and afterwards to public uses. But the decision on this formal question necessarily involved a judgment on the matter actually in dispute, and, if it was for the plaintiff, entitled him, failing an amicable arrangement, to take ulterior steps for making it effectual. The procedure was still employed in the time of Gaius in the few cases 2 To the literature in the last note may be added Asverus, Die legis actio sacramenti, Leipsic, 1837 ; Huschke (rev. Asverus), in Richter's Krit. Jahrbuch, vol. iii. (1839), p. 665 sq. ; Stintziug, Verhaltniss d. I. a. sacramento zum Verfahren durch sponsio praejudicialis, Heidelberg, 1853 ; Danz, Der sacrale Schutz, pp. 151-221 ; Maine, Ancient Law, p. 375 sq. ; Danz, " Die 1. a. Sacram. u. d. Lex Papiria," in the Zeitschr. f. Rechtsgeschichte, vol. vi. (1867), p. 339 sq. ; Huschke, Die Multa v. d. Sacramentum, Leipsic, 1874 ; Lotmar, Zur I. a. sacramento in rem, Munich, 1876 ; Brinz (crit. Lotmar), "Zur Contravindication in d. 1. a. sacr.," in the Festgabe zu Spengel's Doctor- Jubilaum, Munich, 1877, pp. 95-146 ; Miinderloh, " Ueber Schein u. Wirklichkeit an d. 1. a, sacramenti," in the Z. f. Rechtsgesch., vol. xiii. (1878), p. 445 sq. ; E. Roth, in the Z. d. Savigny Stiftung, vol. iii. (1882), Rom. Abtheil, p. 121 sq. ; Fioretti, Leg. act. sacramento, Naples, 1883 ; Ihering, " Reich u. Arm im altrom. Civilprozess,'' in his Scherz u. Ernst in der Juris- prudenz, Leipsic, 1885, p. 17,5 sq. XX. 86
 * iones on ]y connec ted (though, owing to the state of the Verona