Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/707

JUS CIVILE.] ROMAN LAW 683 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 Gains 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 sacramentum 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 of rash litigation (poena temere litigantis). It may be assumed that in most cases the finding of the cen- tumvirs 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. Festus, however, 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 the latter'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 suc- cessful opponent, a means of avoiding the apprehension and im- prisonment which were the statutory consequences of failure to im- plement 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 con- sequently an arbitrium litis acstimandae, 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. After this explanation of the procedure in the sacramental action for vindication of land it is unnecessary to enter into any detail of what was done when it was a movable that was being vindicated, or when the action was a personal one for payment of money. The real action about a movable was of course simpler than that described ; for the thing was always in praesentia. As regards per- sonal 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 could be insisted on, as, for example, for damages for breach of a warranty of acreage of lands sold, or of their freedom from biirdens. If it could, then probably the ques- tion raised and dealt with sacramento was the abstract one of liability, Was the warranty given, and has it failed ? the sum due in respect of the breach being left to be dealt with in a subsequent arbitral process (arbitrium litis acstimandae). ?er The Legis Actio per Judicis Postulationem} The defects k' ci . s of the Verona MS. have deprived us of Gaius's account of iio'nem." ^is legis actio. There is little elsewhere that can with any certainty be said to bear upon it. The most import- ant is a note in Valerius Probus T.PR.LA. V.P. V.D., 1 To the literature on p. 681, note 1, add Baron, "Zur leg. act. per judicis arbitrive postulationem," in the Festgabe fiir Aug. W. ffe/ter, Berlin, 1873, p. 29 sq. ; Huschke, Mutta, &c., p. 394 sq. ; Adolf Schmidt, "Ueber die 1. a. per jud. post.," in the Zeitschr. d. Sav. Stift., vol. ii. (1881), Rom. Abtheil., p. 145 sq. ; Voigt, XII. Tafeln, vol. i. 61. which is generally interpreted te, praetor, judicem arbi- trumve postulo uti des. This petition to the magistrate king, consul, praetor to appoint a judge, arbiter, or arbiters (as the case might be) in all probability was part of the procedure in the action, and that from which it derived its distinctive name. Beyond this all is conjecture, alike as to the nature and form of the action and the cases to which it was applicable. Gaius says of the legis actio sacramento that it was general, and that it was the procedure that was to be resorted to where no other was prescribed by statute. The extant fragments of the XII. Tables contain no such indications as this would lead us to expect; there is not a hint in them of an express instruction that proceedings in any particular case were to be per judicis postulationem. While it is impossible with certainty to trace the history of this procedure to its first beginnings, yet the impression is general that it must have originated in the regal period. There were three dif- ferent positions in which an appeal for aid might be made to a court of justice, (1) when it was a question of civil right that had to be decided in terms directly affirmative or directly negative of the contention of the raiser of the action, and one in which ques- tions of both law and fact were involved ; (2) when it was only a question of fact that had to be ascertained, the legal result of the fact, if established, being known beforehand ; (3) when facts had to be set against facts, and a result arrived at that in the judgment of those who had to balance them was fair and reasonable in the cir- cumstances. In the first case, as when the contention was meum cssc or dari oportere (otherwise than under an obligationary nexum), the procedure was sacramento and the reference originally (in all probability) to the pontiffs, although afterwards to the centumviral court or to a judex ; in the second, as when the question was had or had not the defendant assaulted the plaintiff, and so incurred the invariable statutory penalty, the reference was probably to a judex without the intervention of a sacrament ; in the third, as when the matter in hand was the partitioning of an inheritance amongst co-heirs, or the determining whether operations of the de- fendant were interfering with the natural drainage of the plaintiff's land and how the mischief was to be abated, or the assessment of damages for injury to property, or of the sum sufficient to relieve from talion or the statutory penalty of theft, the reference was to an arbiter or arbiters. In the procedure sacramento the pleadings opened directly with an averment of right " I say that this is mine," " I say that the defendant is bound to pay me so much" ; but in that per judicis arbitrive postulatio there is reason to surmise that they commenced with an averment of fact, followed by the resulting demand of the plaintiff. The details, however, are quite uncertain, with the exception that in some arbitria the plaintiff expressly threw himself upon the discretion of the arbiters quantum aeqius melius est ob cam rem mihi dari. The Legis Actio per Condictionem. This the youngest Per con- " action of the law " was introduced, Gaius says, by the dlctlon ' Silian law as a means of recovering a liquid money debt eu (certa pecunia), and afterwards made available by the Cal- purnian law for enforcing personal claims (as distinguished from real rights) for anything else definite and certain (omnis res certa), and in both its forms, therefore, essen- tially an action of debt. The date of both enactments is matter of controversy, although there is no question that the Silian was the earlier. Gaius says of it that its pur- pose was far from obvious, as there was no 'difficulty in recovering money either by a sacramental action or one per judicis postulationem. He overlooks the fact that money due under a nexal contract was recoverable by neither of these processes, but by the much more summary one of manus injectio. By the Pcetilian law of 428 this was declared unlawful. We are disposed to regard the Lex Silia and the new procedure it authorized as a result of the change. To have put off a creditor for money lent either with a sacramental action or one per judicis postula- tionem would have been to deprive him of the advantages of manus injectio to a greater extent than was called for. So it was provided by the Silian law that, when a man disputed his liability for what was called pecunia certa credita, and forced his creditor to litigation, not only was the defendant bound in the first place either to deny his