Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/706

Rh 682 ROMAN LAW [JUS CIVILE. that continued to be referred to the centumviral court, but otherwise it had been long in disuse. Gams explains that it was resorted to both in real and personal actions. Unfortunately the MS. of his Institutes is defective in the passage in which he described its -ap- plication to the latter. We possess the greater part of his account of the actio in rem as employed to raise and deter- mine a question of ownership ; but his illustration is of vindication of a slave, and not so interesting or instructive as the proceedings for vindication of land. These, how- ever, can be reconstructed with tolerable certainty with the aid derived from Cicero, Varro, and Gellius. The parties appeared before the magistrate, each armed with a rod (festuca) representing his spear (quir or hasta), the symbol, as Gains says, of quiritarian ownership. The first word was spoken by the raiser of the action, and addressed to his opponent : "I say that the land in question [describing it sufficiently for identifica- tion] is mine in quiritary right (meumesse ex jure quiritium) ; where- fore I require you to go there and join issue with me in presence of the magistrate (injure manum conserere)." Thereupon, accord- ing to the earliest practice, the magistrate and the parties, accom- panied by their friends and backers, proceeded to the ground for the purpose : the court was transferred from the forum to the land itself. As distances increased, however, and the engagements of the consuls multiplied, this became inconvenient. Instead of it, this course was adopted : the parties went to the spot without the magistrate, but on his command, and there joined issue in the presence of their seconds, who had been ordered to accompany them, and who probably made a report of the due observance of formalities on their return. Still later the procedure was further simplified by having a turf brought from the place beforehand probably as time advanced there would be no very particular in- quiry as to where it had been obtained and deposited a few yards from the magistrate's chair ; and, when he ordered the parties to go to the ground and join issue, they merely brought forward the turf and set it before him, and proceeded to make their formal vindications upon it, as representing the whole land in dispute. The ritual was as follows. The raiser of the action, addressing his adversary, again affirmed his ownership, but this time with the significant addition "As I have asserted my right by word of mouth, look you, so do I now with my vindicta"; and there- with he touched the turf with his rod, which was called vindicta when employed for this purpose. The magistrate then asked the other party whether he meant to counter -vindicate. If he replied in the negative or made no response, there was instant decree (addictio) in favour of the first party, and the proceedings were at an end. If, however, he counter -vindicated, it was by repeating the same words and re-enacting the same play as his ad- versary : "I say that the land is mine in quiritary right, and I too lay my vindicta upon it" The verbal and symbolical vindica- tion and counter- vindication completed what was technically the manus consertio. The parties were now in this position : each had asserted his ownersnip, and had figuratively had recourse to arms in maintenance of his contention. But the matter was to be settled judicially, so the magistrate once more intervened and ordered both to withdraw from the land. The dialogue was then resumed, the vindicant demanding to know from his opponent upon what pretence (caiisa) he had counter- vindicated. In the illustra- tion in Gains he avoided the question and pleaded the general issue, " I have done as is my right in laying my vindicta on the land." But there can be little doubt that in certain circumstances the counter-vindicant would deem it expedient to disclose his title. This was very necessary where he attributed his right to a con- veyance upon which two years' possession had not yet followed ; in such a case he had to name his author (auctorem laudare) if he desired to preserve recourse against the latter on the warranty implied in the mancipation. That probably entailed a suspension of the proceedings to allow of the author's citation for his interest ; and on their resumption, if he appeared and admitted his auctoritas, he was formally made a party to the action. The proceedings had now reached the sacramental stage proper. The first challenge came from the vindicant, "Since you have vindicated unrightfully, I challenge you with a sacrament of 500 asses," to which the counter-vindicant responded, "And I you." This was technically the Sacramento provocatio. The magistrate thereupon remitted the matter for trial to the centumviral court, or possibly, in certain cases, to a single judge, and in the presence of witnesses called by the parties (litis contestatio) declared what exactly was the question put in issue which the court or judge was to decide. At the same time, according to Gaius's account of the procedure, he required sureties from the parties for the eventual payment by him who was unsuccessful of the sacrament he had offered to stake, and which became a forfeit to the exchequer. (The original practice was for th stake to be deposited by both parties in the hands of the pontiffs before they were heard by the cen- tumviral court ; after judgment that of the gainer was reclaimed by him, while that of the loser was retained for religious uses.) The magistrate also made arrangements for the interim possession of the land by one or other of the litigants, taking security from him that, if he was eventually unsuccessful, it should be returned to his opponent, along with all the fruits and profits drawn in the interval. At the trial, as both parties were vindicants, there must have been a certain burden of proof upon both sides. The vindicant, one may believe, must have been required to establish in the first instance that the thing he claimed had at some time been his ; and then, but probably not till then, the counter-vindicant would have to prove a later title in his person sufficient to exclude that of his opponent. The judgment, as already observed, necessarily involved a finding on the main question ; but in form it was a de- claration as to the sacrament : that of the party who prevailed was declared to be just, and that of his unsuccessful opponent unjust. Looking at this ritual as a whole the conviction is irresistible that it could not have been so devised by one brain. It reveals and combines three distinct stages in the history of procedure, appeal to arms and self-help, appeal to the gods and the spiritual power, appeal to the civil magistrate and his judicial office. As Gellius says, the real and substantial fight for might, that in olden days had been maintained at the point of the spear, had given place to a civil and festucarian combat in which words were the weapons, and which was to be settled by the interposition of the praetor. But this does not explain the sacramentiim. Very various theories have been proposed to account for it. According to Gains, it was nothing more than the sum of money staked by each of the parties, which was forfeited originally to sacred and after- wards to public uses by him who was unsuccessful, as a penalty for his rashly running into litigation ; and substantially the same explanation is given by Festus in one of his definitions of the word. But this is far from satisfactory ; for it involves the absurdity of declaring that a penalty imposed by law could be unjust (injustum) in any case, and the still greater absurdity of declaring it just in the case of the party who was in the right, and unjust in the case of him who was in the wrong. There is another definition in Festus "a thing is said to be done Sacramento when the sanction of an oath is interposed " which lends support to the opinion that there was a time when parties to a question of right were required to take an oath to the verity of their respective assertions ; that they were also required concurrently to deposit five bullocks or five sheep, according to the nature or value of the thing in dispute, to abide the issue of the inquiry ; J that the question for determination was whose oath was just and whose unjust ; and that he who was found to have sworn unjustly forfeited his cattle or sheep as a piamentum a peace-offering to the outraged deity while the other party reclaimed his from the repository in which they had been detained in the interval. 2 1 It was the Lex Aternia Tarpeia of the year 300 u.c. that com- muted the five bullocks and five sheep into 500 and 50 Ib of copper respectively (Cic., De Rep., ii. 35, 60, where the words usually printed "de multae sacramento" should read "de nmlta et sacramento"); Fest., s.v. "Peculatus"(Bruns,.F'0wtes, p. 279). For the pounds' weight of raw metal the XII. Tables substituted the same number of asses, declaring that 500 should be the summa sacramenti when the cause of action was worth 1000 asses or more, 50 when worth less or the question one of freedom or slavery (Gai., iv. 14). 2 Varro, De L. L., v. 180 (Bruns, p. 303), says that, even after the summa sacramenti had been converted into money, it was deposited ad pontem, some bridge, he does not say which, where there was a sacred " pound." (Curiously enough, the Irish spelling of " pound " is " pont "; Skeat's Etym. Diet., s.v. " Pound.") A most ingenious and plausible explanation was suggested by Danz in 1867, in the Zeitschr. f. Rechtsgesch., vol. vi. p. 359. Recalling the facts that there had been discovered in the Tiber Island sacella of Jupiter Jurarius and Dius Fidius, the two deities to whom solemn oaths were usually addressed, and that the island was spoken of as " inter duos pontes, " because con- nected with both banks of the river by bridges bearing no particular names, he suggested that the island may have been the place to which disputants resorted to make their sacramenta, and that the cattle, sheep, or money were deposited in a place for the purpose before the bridge was crossed. Much the same explanation was offered by Huschke two years later in his book Das alte riJmische Ja.hr (Breslau, 1869), p. 360, apparently without being aware of Danz's speculation. He adds, on the authority of the Iguvine Tables, that, while bullocks were offered to Jupiter, only sheep were offered to Dius Fidius. The island, he thinks, must have been selected as neutral ground to which all parties might have access, and which obviated intrusion into the temples of the two gods ou the Capitol and Quiriual respectively. And it is to its use as the scene of the sacramental procedure that he attributes its name of "holy island," rather than to the fact of its having been the seat of the temple of ^Esculapius. Huschke recurs to and enforces this view in his Multa und Sacramentum (1874), p. 410, where he does refer to Danz's paper.