Page:The history of Rome. Translated with the author's sanction and additions.djvu/180

160 In all other cases, where the individual alone was injured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself before the king. When both parties had appeared, and the plaintiff had orally stated his demand, and the defendant had in similar fashion refused to comply with it, the king might either investigate the cause himself or have it disposed of by a depute acting in his name. The regular form of satisfaction for such an injury was a compromise arranged between the injurer and the injured; the state only interfered supplementarily, when the thief did not satisfy the person from whom he had stolen or the aggressor the party aggrieved by an adequate expiation (pœna), when any one had his property detained or his just demand unfulfilled.

Whether or under what circumstances during this epoch theft was regarded as expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was assigned by the judge to the person from whom he had stolen as a bondsman.

In cases of damage (injuria) to person or to property, where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to accept compensation; if, on the other hand, any member was lost in consequence of it, the maimed person could demand eye for eye and tooth for tooth.

Since the arable land among the Romans was long cultivated upon the system of joint possession and was not distributed until a comparatively late age, the idea of property was primarily associated not with immoveable estate, but with "estate in slaves and cattle" (familia pecuniaque). It was not the right of the stronger that was regarded as the foundation of a title to it; on the contrary the soil in the first instance, and then property in general, were considered as