In the three judicial legis actiones the first step was the in jus vocatio or procedure for bringing the respondent into court, minutely regulated by the provisions of the first of the XII. Tables. This was not done by any officers of the law; there was no writ of summons of any sort; the party moving in the contemplated litigation had himself to do what was needed. If the defendant did not appear, there could be no decree by default. Once before the magistrate (consul or praetor), the plaintiff stated his contention. If admitted or not disputed 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 counterclaim, the magistrate remitted it for trial either to a collegiate 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 continued to exist until the time of Diocletian. In the first stage the proceedings were said to be in jure, and the duties of the magistrate in reference to them were part of 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 operative 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 in his time 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. It was a numerous court of Quirites, determining 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 frequently remitted to the centumviral court even in the classical period. Personal actions, however, do not appear ever to have fallen within its cognizance: 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 Adio Sacramento.[1]—The characteristic feature of this legis actio, as described by Gaius, was that the parties, Sacramento. after a somewhat dramatic performance before the magistrate, 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 sacrament, 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 that continued to be referred to the centumviral court, but otherwise it had been long in disuse.
Gaius 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 application to the latter. We possess the greater part of his account of the actio in rem as employed to raise and determine 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, however, can be reconstructed with tolerable certainty with the aid derived from other sources, especially from Cicero, Varro and Gellius.
The parties appeared before the magistrate, each carrying a rod (festuca) representing his spear (quir or hasta), the symbol, as Gaius 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 identification] is mine in quiritary right (meum esse ex jure quiritium); wherefore I require you to go there and join issue with me in presence of the magistrate (in jure manum conserere).” Thereupon, according to the earliest practice, the magistrate and the parties, accompanied 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, 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 or sod brought from the place beforehand, and deposited a few yards from the magistrates chair; and, when he ordered the parties to go to the ground and join issue, they merely brou ht 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 confirmed 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 therewith 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 going through the same form as his adversary: “I say that the land is mine in quiritary right, and I too lay my vindicta upon it.” The verbal and symbolical vindication and counter-vindication completed what was technically the manus consertio. The parties were now in this position: each had asserted his ownership, 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 (causa) he had counter-vindicated. In the illustration in Gaius 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 conveyance 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 stage at which the sacrament came into play. 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 to a single judge, having declared what exactly was the question put in issue which the court or judge was to decide. The parties then called upon the bystanders to be witnesses of the magistrates remit, this appeal to witnesses being, as is generally held, the litis contestatio.[2] At the same time, according to Gaius's account of the procedure, the magistrate required sureties from the parties for the eventual payment by him who was unsuccessful of the sacrament he had offered to
- ↑ To the literature in the last note may be added Asverus, Die legis actio sacramenti (Leipzig, 1837); Huschke (rev. Asverus), in Richter's Krit. Jahrbuch, vol. iii. (1839:), pp. 665 sqq.; Stintzing, Verhältniss d. l. a. sacramento zum Verfahren durch sponsio praejudicialis (Heidelberg, 1853); Danz, Der sacrale Schutz, pp. 151-221; Danz, “Die l. a. Sacram. u. d. Lex Papiria,” in the Zeitschr. f. Rechtsgeschichte, vol. vi. (1867), pp. 339 sqq.; Huschke, Die Multa u. d. Sacramentum (Leipzig, 1874); Lotmar, Zur l. a. sacramento in rem (Munich, 1876); Brinz (crit. Lotmar), “Zur Contravindication in d. l. a. sacr.,” in the Festgabe zu Spengels Doctor-Jubiläum (Munich, 1877), pp. 95-146; Münderloh, “Ueber Schein u. Wirklichkeit an d. l. a. sacramenti,” in the Z. f. Rechtsgesch. vol. xiii. (1878), pp. 445 sqq.; E. Roth, in the Z. d. Savigny Stiftung, vol. iii. (1882), Röm. Abtheil. pp. 121 sqq.; Fioretti, Leg. act. sacramento (Naples, 1883); Jhering, “Reich u. Arm im altröm. Civilprozess,” in his Scherz u. Ernst in der Jurisprudenz (Leipzig, 1885), pp. 175 sqq.; Schulin, Lehrbuch, pp. 525 sqq.; Pflüger, Die legis actio sacramento (Leipzig, 1898).
- ↑ But see Colassak, Die Litis contestation (1889), pp. 69 sqq., for a different view.
