stake, and which became a forfeit to the exchequer. (The original
practice probably was for the stake to be deposited by both parties
in the hands of the pontiffs before they were heard by the judge
or judges; after judgment that of the gainer was restored to 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 (but preferably, it is thought,
by the possessor), 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 declaration 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 sacramentum. Various theories have been proposed to account for it. According to Gaius, it was nothing more than the sum of money staked by each of the parties, which was forfeited originally to sacred and afterwards 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 apparent absurdity of declaring that a penalty imposed by law could be 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”—that 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;[1] 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 for 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] It was made an opportunity doubtless by the priests to get some profit for their temples.
The writers who adopt this view are far from being unanimous as to details. But there seems to be enough to render it more than probable that, at an intermediate stage between the vera solida vis of ancient times and the vis civilis et festucaria which Gellius and Gaius depict, there was a procedure by appeal to the gods through means of oaths of verity sworn by the parties, in the manner and with the consequences that have been indicated. That in time it should have dropped out of the ritual is quite in the order of things. Its tendency was to become a mere form, imposing no real restraint on reckless litigation. The restraint was rather in the dread of forfeiture of the sacramental cattle, sheep or money that would follow a verdict that an oath had been unjust. And it must have been felt besides that it was unfair to brand a man as a false-swearer, needing to expiate his offence by an offering to the gods, whose oath had been perfectly honest. That he should suffer a penalty for his imprudence in not having taken more care to ascertain his position, and for thus causing needless annoyance to others, was reasonable, but did not justify his being dealt with as one who had knowingly outraged the deity to whom he had appealed. So the oath—the original sacramemtum—disappeared, the name passing by a natural enough process to the money which had been wont to be deposited before the oath was sworn, but which now ceased to be an offering in expiation by a false-swearer, and became a mere penalty (forfeited to the state) of rash litigation (poena temere litigantis). So when praedes later took the place of actual deposits, they became bound as state debtors for the sacramentum.
It may well be assumed that in most cases the finding of the court as to the justness or unjustness of the respective sacraments of the parties was the end of the case—that it was at once accepted and loyally given effect to. If in favour of the party to whom interim possession had been given by the magistrate there could be no difficulty; he retained the object in dispute with the fruits and profits he had drawn in the interval between litis contestatio and judgment. If, however, the finding was for the other party, and amicable arrangement was not come to, it is not clear what course was followed. Gaius says that in awarding interim possession (vindicias dicere) the praetor required the grantee to give security by sureties (praedes) to his adversary for restitution to the latter in the event of his success; while Festus preserves a law of the XII. Tables which, according to Mommsen's rendering, declared that, when it turned out that interim possession had been awarded to the wrong party, it was to be in such party's power to demand the appointment of three arbiters who should ascertain the value of the object of vindication and its fruits, and assess the damages due for non-restitution at double the amount. This provision seems to have been intended to afford the wrongful interim possessor, who was not in a position to make specific restitution to his successful opponent, a means of avoiding the apprehension and imprisonment which were the statutory consequences of failure to implement a judgment. It is probable that in time this duplicated money payment came to be regarded as the satisfaction to which the successful party in a vindication was entitled in every case in which, no matter for what reason, he was unable to obtain the thing itself and its fruits from their interim possessor; that consequently an arbitrium liti aestimandae, or reference to arbiters to assess their value, resulted in every such case; and that it was to assure its payment that the praetor required the party to whom the interim possession was awarded to give to his opponent the sureties (praedes litis et vindiciarum) to whom Gaius alludes.[3]
This procedure in the sacramental action for vindication of land was applicable to every kind of manus which a man could claim to have over persons or things, though necessarily with variations more or less important in the ritual. But the sacramental action was also quite common for claims in personam. As regards personal actions, the ordinarily received opinion, which rests, however, on slender foundations, is that from the first the parties met on equal terms; that, if it was a case of money debt, the creditor commenced the proceedings with the averment that the defendant owed him the sum in question,—“I say that you ought to pay me (dare oportere) 1000 asses”; that this was met with a denial; and that a sacramental challenge followed on either side. All are agreed that the remit was to a single judex after an interval of thirty days from the proceedings in jure; that where the claim was for a definite sum the plaintiff had to establish his case to the letter; and that his sacrament was necessarily declared unjust if he failed to prove his claim by a single penny. But there is considerable diversity of opinion as to whether by this form of process a claim of uncertain amount
- ↑ It was the Lex Aternia Tarpeia of the year 454 B.C. that commuted the five bullocks and five sheep into 500 and 50 ℔ of copper respectively (Cic. De Rep. ii. 35, § 60, where the words usually printed “de multae sacramento” should read “de multa et sacramento”). See Festus, s.v. “Peculatus” (in Bruns, Fontes). As to the relative value of oxen and sheep, it is interesting to note that, by the customs of the modern Ossetians, ten sheep are also held to be equivalent to one ox. See Kovalewsky, Coutume contemporaine, p. 11. 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).
- ↑ Varro, De L. L. v. 180, 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. Dict., s.v. “ Pound.”) A most ingenious and plausible explanation was suggested by Danz in 1867, in the Zeitschr. f. Rechtsgesch. vi. 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 connected 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 röimische Jahr (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 on the Capitol and Quirinal 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 Aesculapius. Huschke recurs to and enforces this view in his Multa und Sacramentum (1874), p. 410, where he does refer to Danz's paper.
- ↑ Another theory is that, while the interim possessor could not be proceeded against, the praedes, who were really bound in his place and not merely as accessories, were directly subject to execution as debtors of the state. On this and other theories, see Cuënot in Nouv. Rev. hist. pp. 345 sqq.; Girard, Manuel, pp. 328-29.
