TYPES OF LEG1S ACTIONES

§70 A legal institution typical of the earliest Roman law is that known as legis actio. Our interest centers in the characteristic qualities which make it representative of the institutions of the early period.

1. Legis actio sacramento

§ 71 GMU&, Institutionum commentarius IV.13-V1

Action by sacramentum was general For in those cases in which it was not prescribed by statute that one should proceed in another way, in these the suit was by sacramentum. And this action was then as perilous for falsehood as is the action for sum certain owed at the present time for reason of the promise whereby the defendant is imperiled if he denies rashly, for reason ofthe counter-promise whereby the plaintiff is imperiled if he demands what is not due. For the defeated party paid the amount of sacramentum by way of penalty; and this went to the treasury, sureties for it being given to the praetor, instead of going to the benefit of the successful party as the penalty of the promise or of the counter-promise now does. (14) The penal sum of the sacramentum was either five hundred or fifty (asses). For in matters involving a thousand or more the suit was by sacramentum of five hundred asses, but for matters of less value by sacramentum of fifty asses; for so the law of the XII Tables had provided. < But > if the dispute concerned the freedom ofa slave, it was provided by the same law that suit should be by sacramentum of fifty asses, even though the slave be of the highest value, obviously in favor of liberty so that the assertors (of liberty) should not be overburdened.

The text utilized is that found in De Zulueta, combining the V(eronese) manuscript and the Florentine) papyrus fragment. The breaks at the beginning of 15 and at the end of 17 show, in each case, a folio missingfrom V; F resumes, with a few doubtfully read words at the end of 17, before

V. Numerous glosses have been conjectured, that of the sentence [from the above - five hundred (asses)] in 15 seems well founded, for the passage is distinctly out of place.'

Festus, De verborum significant ’sacramentum’

Sacramentum denotes money which is paid by way of penalty, whether by the one who is queried or by the one who claims. In some cases this is of fifty asses, in other cases of five hundred, between those who contend with each other in a trial.... That money came to be termed sacramentum because it was used in divine rites on account of the insufficiency of the treasury and the great number of public sacrifices.

Festus, De verborum signifiaatu ‘sacramento’

By sacramentum is said to be what has been done, interposed is said to have been queried because.

Varro, De lingua latina V.180

That money which comes into court in controversies (is termed) sacramentum from sacer (sacred); the one who claimed and the one who denied, in some cases both deposited five hundred asses with the pontiff, in other cases another fixed statutory number of asses. The one who prevailed in the case removed his sacramentum from the sacred place (sacer), that of the defeated party went to the treasury.

The text reads: ad pontem, ‘at the bridge', emended by an early editor to read: ad pont em, ‘with the pontiff’.

A cursory reading of these sources, the significant passages with respect to sacramentum that are extant, shows at once that our knowledge of this type of legis actio depends upon fragmentary and contradictory opinions, presented by authors who lived centuries after the institution was in its prime. Gaius, however, has carefully described the course of the process, and some details may be supplied from other sources where his treatment fails. A hypothetical situation may be posited as the starting point of our dis­cussion.^{[427] [428]}

Upon his return from the wars, Aulus, a farmer living on the outskirts of Rome, discovers that his neighbor Numerius has in the meantime appropri-

§ 71 atcd his farm. To gain redress, Aulus must personally call Numerius before the magistrate’s court. The summons (in ius vocatio) was accomplished in a specific way, and if Numerius disregards it Aulus can use force.^[429] In the ear­liest times the magistrate, parties and witnesses probably actually inspected the property in dispute, but as Rome expanded a symbol of the property, in this case a clod of earth, was brought to court, as Gcllius relates.^{[430] [431] [432] [433] [434] In the presence of the magistrate, Aulus places a wand upon the clod of earth and formally, by the use of unchangeable words, asserts his claim.}

Cicero, Pro A. Caecina oratio 33.97

JOen / was defending the freedom ofa woman of A rreiium. and Cotta had worked

upon the scruples of the decemviral court, that it would not be possible to fudge our sacramentum just (iustum) because citizenship had been taken from the people of Arretium, I argued with great vigor that citizenship could not be taken away.

Cf. also Cic. De domo 29.78. On the value of the Ciceronian evidence, see Wenger?

Even superficial study reveals that the institution as described by Gaius could not have been the original form. The mention of coined money, for in­stance, dates it from historical times.^{[435] [436] [437] [438] [439] What, then, was the original charac­ter of legis actio sacramento, and, more specifically, what was the early meaning of sacramentum? From a host of studies a few salient points may be emphasized; for the rest, consult the special studies and the works referred to therein."}

A view which early gained acceptance stemmed from the suggestion made, over a century ago, that although sacramentum indicated a money wager to Gaius, etymologically the word was tied up with the idea of oath.¹¹ Both parties swear; hence one of them must have sworn falsely and thus be sacratio, destined for the gods, a homo sacer, an outlaw. In order to remove this stigma the religious authorities permitted the offering of cattle for sacri­fice; later, the money required to obtain the sacrificial offering." With the secularization of the law the money payment alone survived.

The development of this theory by subsequent scholars largely concerned itself with the determination of the purpose for which the oath was taken. One suggestion was that it was a means to overcome an opponent’s reluc­tance to enter trial;^{[440] [441] [442] to others, the oath was required to obviate fraud.11A view, still in considerable favor, was that advanced by Girard?4 During the period of the kingdom Rome had reached a stage of juristic development}

pi in which the king, the head of both the religious and civil administration, did not as yet have a precise feeling for his role as the head of civil justice. There­fore, to force him to take cognizance ofa civil suit, a subterfuge was resorted to. Each party took an oath that his claim was just, and it became necessary for the king to decide the case in order to determine which litigant had sworn falsely and thus was liable to punishment.^{[443] [444] [445] [446]}

Some time ago an entirely new theory of the legis actio Sacramento was advanced, and a necessarily different idea of the nature of sacramentum.'‘ Juncker pointed out that the decision in the legis actio sacramento did not settle the case, and that the role of the magistrate was but supplementary. The formulae of the action had nothing to do with its aim. The action itself was merely a step in the self-help process; the disputants imperiled their persons or their property in alleging the existence of their claims, and it was immaterial whether the latter be true or false. Victory in the legis actio sac­ramento, that is, that the sacramentum was just, merely meant freedom to use one’s own strength and powers (self-help), in accord with legal forms or not, with the authorization of the state. Under this theory sacramentum it­self occupies a minor place; it has the meaning of wager-money. It was noted in response to Juncker, that if there be no connection between the for­mulae of legis actio sacramento and the aim of the action, sacramentum it­self would seem to be older than the shift from self-help to state protection, and thus there would be a long history behind the meaning of sacramentum as wager-money.¹* Nevertheless, the new theory has gained considerable acceptance.¹⁰

A third approach to the original meaning of sacramentum follows an en­tirely different tack. Von Jhering long ago suggested that in ancient Rome the gods were supposed to decide law suits, and that the sacramentum was their remuneration.^[447] The idea that the early Romans undertook to settle disputes by judgment of the gods - that is, by ordeal - did not gain favor at that time. It was pointed out that only one of the parties lost his sacramen­tum;^[448] von Jhering himself gave up this view in favor of other positions in his

later writings.^{[449] [450] [451] [452] [453] [454] [455] In recent years, however, many scholars claim to have found evidence of ordeals elsewhere in Roman history, while the institution of legis actio sacramento reveals a symbolic struggle in the utterance of contradictory allegations, coupled with laying on of hands on the object claimed.“ Sacramentum is the means whereby the parties call upon super­natural forces to accord victory to the truthful swearer and death to the per­juror.21 The various views which accord ordeal a role in the development of the legis actio sacramento differ in particulars; itmust suffice to have referred to them.2* The major opposition to this approach rests upon the absence of clear evidence that ordeals are known in early Roman history, and upon the fact that so little trace of the combat is to be found in the legis actio of historical times.21 Some scholars would deny any place to a simulated battle in the evolution to the legis actio sacramento.2· The use of the baton (festuca) in the ritual was a symbol of ownership, not of combat, and the whole was a succession of words and gestures to substantiate the claim. As a matter of fact, Levy-Bruhl argued, the earliest sacramentum terminated with the oath accompanied by a sacrifice.” Only later was a second half to the trial introduced, and the new type of legis actio sacramento became a true process, where the rites had only formal value. To Noailles, the formula uttered by the complainant - when both parties were in the presence of the magistrate - shows, by the use of the word vindicta (ritual force), that origi­nally the right was founded upon the performance of proper gestures and the recital of correct words.[456] However, Noailles’ views have not gained general acceptance.[457]}

The interposition of the praetor after the parties have each vindicated, with the words, 'Both, stand aside’, may be a reflection of the intervention of the state to halt possible feuds that could arise between the families and the kin of the contestants.“ The parties then proceed to sacramentum, and to many scholars the process in the early times terminated with the award of the property to one of the parties by the magistrate?¹ The second half of the trial, it is maintained, may well have been introduced by the lex Pinaria, to which Gaius attributes the postponement of the appointment of the index to the thirtieth day?⁴

It is not proposed to deal with the procedural aspects of legis actio Sacra­mento since somewhat comparable subject matter will be extensively treated infra, in the chapters on civil procedure of the formulary type. However, Gaius has a few words on the legis actio sacramento in personam which may require some explanation. It is believed that a folio of the original Veronese MS of Gaius, not re-used by the scribe in writing his text of St. Jerome, con­tained a description of the formulae employed in pursuing a claim arising out of the breach of a contractual obligation or resulting from a delict?¹ Quite likely the earliest claims arose in the field of torts, and presumably the formulae were considerably simpler than in the case of the legis actio sacra­mento in rem?⁴ It has been suggested that in early times, or at least where the case was clear to the magistrate, no second part of a trial before a iudex was involved?’ Where the defendant disputed the claim sacramentum fol­lowed, but where he did not do so, he had to confess liability and pay within thirty days, or be liable to manus iniectio?*

Lex Duodecim Tabularum III. 1

Let thirty days be allowed by law for payment of confessed debt and matters adjudged.

Gradenwitz would delete [and matters adjudged]?⁹.

Save for the remarks relating to legis actio Sacramento which may be made in the portion of this chapter dealing with legis actiones generally, or in § 147

32. See Kaser. Altr&m. Jus 18 f., and Zivilprozessrecht 69, with further reff.

33. Weiss, BIDR 49/50 (1947) 194, 217; Kaser, Festschrift Wenger I 111 ff., when the complainant proved his right of vindicatio; Broggini, Index 75, 95 ff.

34. Weiss, loc. at.; Dekkers, RIDA 1 (1948) 55, 72; Livy-Brohl. Studi Arangio-Ruiz II 15, 27 f.

35. See generally, De Zulueta, Institutes II237 f.; Kaser, Festschrift Wenger 1113. Fucntcseca. AHDE 25 (1955) 543-66, denies that the legis actio sacrametrto in personam ever existed.

36- Broggini, Iudex 105, For the reconstruction of the formulae, see Wenger, Institutes 127; Kaser, Altrirn lus 334.

37. Livy-BniH, Studi Arangio-Ruiz 11 15 ff«, and Recherches 83 ff.; Kaser, Festschrift Wwtgerl 113; Broggini, Iudex 105.

38. See infra, § 74.

39. Gradenwitz, Melanges Girard 1 509, and SZ 51 (1931) 430.

on the evolution of procedure after the lex Aebutia, the student will find fur­ther discussion in works on legal history and the history of Roman civil pro­cedure, and in treatises on legis actiones in particular.

2. Legis actio per iudicis arbitrive postulationem

§ 72 Gaius, Institutionum commentarius IV. 17a

There was suit per iudicis postulationem a statute had decreed that it should be so sued in a particular case, as for example, thelawofthe Twelve Tab­les, for something which is claimed by reason of a stipulation. And this was done in the manner following; He who sued so spoke: ‘By virtue of a sponsio I allege that you ought to give me ten thousand sesterces; I ask that you affirm or deny. ’ The adversary declared that he did not owe (the sum). The claimant declared: 'Since you deny, 1 ask that you, praetor, give a iudex or arbiter. ’ Thus, in this type of action one denied without penalty. Similarly, for the division of an inheri­tance between co-heirs the same statute decreed that suit be per iudicis postula­tionem. The lex Licinnia established the same, if there was suit on the division of anything (held) in common. Thus, the cause on which there was suit having been named, the arbiter was sought immediately.

Beseler had declared that the ‘Licinnia’ of D. 4.7.12, the only mention of the lex until F was discovered, was a misreading of ‘licitationis’; the new Gaius disproves another conjectured interpolation.'

Until 1933 all that we knew of the legis actio per iudicis arbitrive postula­tionem was the abbreviation and expansion in Valerius Probus,

Probus, De notis iuris 4.8

/ ask that you, praetor give a iudex or arbiter.

The portion of Gaius which contained a discussion of this legis actio was not extant in the Veronese manuscript. In that year there was purchased in Egypt and published by Arangio-Ruiz some parchment pages of a late 4th century manuscript of Gaius that contained the missing portion. The words of Gaius force us to discard the numerous theories and tens of articles that had been written on the nature and significance of the legis actio termed ‘through re­quest of a iudex or arbiter’. Not one of the medieval or modem scholars had

40. For the latter, see reff, in the final note to | 76.

I. Beseler, Beiträge II 155; cf. Berger, s.v. Lex Licinnia, RE Supp. 7 (1940) 398.

conjectured the action as we now know it to have been, and consequently reference need only be made to the works of the last four decades dealing with the new text, codex Fflorentinus)?

The legis actio per iudicis arbitrive postulationem is only available when a statute so provides. Gaius enumerates three cases which may be only ex­amples. Some would add the action for the containment of rain water since an arbiter was also utilized in this case.¹ It came as a complete surprise that iudicis postulatio could be based on asponsio (also known asstipulatio), the formal verbal contract of the Romans. No one had supposed that the verbal obligation was so well developed at the time of the Twelve Tables. Some scholars had anticipated that the so-called divisory actions were included within the legis actio per iudicis arbitrive postulationem, but it does not seem that the missing divisory action, the action for the determination of bound­aries, was brought in this way.^{[458] [459] [460]}

Many have supposed that this legis actio was introduced to provide a sim­pler form of procedure than that offered by thelegis actio Sacramento, partic­ularly to lighten the task of the creditor in recovering damages for breach of contract.^{[461] [462] [463] To Frezza the new legis actio was a step in the democratiza­tion and secularization of the law: by elimination of the sacramentum the position of the plebeians, oppressed by debts to the patricians, would be eased; the position of the pontiffs in controlling litigation would be weak­ened by the introduction of a new type of legis actio/ However, it seems to some that the divisory actions, non-controversial in nature (ex parte pro­ceedings), could not be brought within the contentious structure of the legis hetio sacramento. They would base the new action on the need to satisfy heirs in the distribution of an estate, or co-owners in the division of prop­erty?}

It would appear that even after the introduction of thelegis actio per iudi- cis arbitrive postulationem, the legis actio Sacramento was still available as an alternative process.’ It is not clear who had the choice where there was an alternative, but one would think it would be the plaintiff? All admit that the legis actio per iudicis arbitrive postulationem was a true process, in that it was a bipartite procedure with the hearing before the iudex or arbiter obliga­tory, if the defendant undertook to contest the action.¹⁰ It thus contrasted with the legis actio Sacramento in the view of those who have considered that the latter, at one time at least, terminated with the direction by the praetor disposing of the property in dispute.¹¹ In fact, it has been arequired part of the process subsequent to the establishment of the legis actio per iudi­cis arbitrive postulationem.¹¹

In the new type of legis actio the deposit of a sacramentum (poena sacra­menti) has been eliminated,, and the iudex and/or arbiter is appointed im­mediately upon the conclusion of the first part of the trial rather than after adelay of thirty days.Theproblemofiudexand/or arbiter has not been defini­tively determined by the discovery of codex F. Arangio-Ruiz expressed the opinion that a iudex acted in the second half of a legis actio where the controversy arose from a dispute on the sponsio (contract), while an arbiter was called upon in the case of divisory actions.¹¹ On the other hand Levy, who argued that action for an uncertain sum resulting from breach of aprom­ise as well as a suit for liquidated damages were both available in this type oflegis actio, concluded that either iudex or arbiter or both could be involved in the second half of the trial?* If the defendant denied the existence of an obligation a iudex would preside, if he agreed that there was an obligation but differed with the plaintiff as to the amount owed an arbiter would fix the sum (litis aestimatio), and if there was dispute both as to the existence of the obligation and the amount thereof, then both iudex and arbiter would be designated.

The question whether the so-called arbitrium litis aestimandae (deter-

8. Levy, SZ 34 (1934) 302; De Zulueta, Institutes II 239; contra Kaser, Altr&n. fas 252 if. Gifford, RH 13 (1934) 514 if, maintained that where iudicis poslulatio was specified no other action could be used; besides, if there were election of action, the plaintiff would invariably select iudicis postulatio, because of the less burdensome position.

9. In the one other case of election between penal and non-pcnal proceedings, the choice lay with the defendant, G. 4.163; see Jolowicz, Introduction 186.

10. Jolowicz, Atti Cong. Bologna II 67, distinguishes the mediate action of the legis actio sacramento from the final decision in this type of legis actio; see also Bohatck, lura 3 (1952) 191. 210 if.

11. Cf. L6vy-Bruhl, SMI 18 (1952) 16 ff.

12. Kaser, Festschrift Wenger I 123 f.; Broggini, Iudex 92.

13. Arangio-Ruiz, BIDR 42 (1934) 571,616; accord, Broggini, Iudex 165 IT.

14 Levy, SZ 34 (1934) 258, 303 f.; cf, De Zulueta, Institutes II 240.

mination of the estimation of the sum involved in the controversy) is con­nected with this legis actio is treated infra, § 74. For futher details of the legis actio per indices arbitrive postulationem, sec the references given in that section.

3. Legis actio per condictionem

§ 73 Gaius, Institutionum commentarius IV. 17b-20

The procedure per condictionem was as follows: 7 allege that you ought to give me ten thousand sesterces; I ask whether you affirm or deny.' The adversary de­clared that he did not owe (the sum). The claimant declared: ‘Since you deny, I give notice (condico) to you, for the purpose of taking a index on the thirtieth day. ’ Then, on the thirtieth day they ought to be present for taking a iudex. (18) 'Con­dicere* has the meaning of ‘denuntiare’ in the ancient language. Therefore this action was properly called 'condictio ’. For the claimant gives notice to the adver­sary that he should be present on the thirtieth day for taking a iudex. Now, how­ever. we improperly say that a condictio an actio in personam < in which > the intentio (reads that something) ‘ought to be given to us‘. For at the present time no notice is given in this case. (19) This legis actio was established by the lex Silia and (the lex ) Calpurnia, by the lex Silia (for the recovery) of a sum certain, by the lex Calpurnia for any certain thing. (20) Why, however, this action was needed Is much disputed, since the suit could be either sacramento or per iudicis postulationem for that which ought to be given to us.

Festus, De verborum significatu ‘condictio’

Condictio is the giving of notice (denuntiatio) for a certain day concerning the matter which is being sued.

Cf. Festus, ‘condicere*.

The codex F fragments of Gaius (PSI XI 1182) add something to our knowledge of the legis actio per condictionem by supplying the opening words of the passage describing this action which were missing from the Ver­onese Gaius. But the new find does not decisively answer the question posed by Gaius himself, why was this new type of legis actio necessary. The obvious explanation is that when, by the lex Silia and the lex Calpurnia, con­dictio was established as a remedy for the performance of an obligation (dari oportere), the authors did not trouble to say that it was not to apply to the special cases already covered by the legis actio per iudicis arbitrive postula­tionem. Certainly the ease of suit by condictio over that by sacramentum would be apparent to all. But if this is the explanation, why didn’t Gaius give it?

The legis actio per condictionem takes its name from the notice given the defendant by the plaintiff that he should appear in court (in iure) on the thirtieth day following to have a iudex named for trying the case. Older authorities were of the opinion that this notice took place extra- judicially, but more recently the view has been taken that the condictio was accomplished in court.' In other respects the legis actio per condic­tionem resembles the legis actio per iudicis arbitrive postulationem. The date and the purpose for the introduction of the former, however, remain uncertain. All are agreed that per condictionem is the youngest of the legis actiones, but no fixed date can be assigned to the lex Silia, which granted the action for a sum certain, nor to the lex Calpurnia, which ex­tended it to the recovery of any certain thing. The majority of writers date these statutes in the 3rd century B.C?

There have been a number of views seeking to explain the introduction of the legis actio per condictionem. An early suggestion was that with the general secularization of administration of justice, sacramentum must have seemed ridiculous and at the same time unsatisfactory, especially to busi­nessmen? To some extent, this is reflected in Gioffredi’s more recent view that the new procedure, developed by the effort of the jurists, approved by the praetor and sanctioned by statutes, afforded a simpler process onthc for­mal level, corresponding to the exigencies of the time.⁴ Greenidge thought that it was introduced ‘primarily to create a greater rapidity of procedure’.⁴

Long since, Baron proposed a solution which was strongly and in great part justifiably attacked, but which in view of the new Gaius may be worthy of some attention.* He held that the lex Silia did not necessarily introduce the legis actio per conditionem - herein he is hardly correct - but he fur­ther stressed the point that the casua, the ground or reason of the obligation, more particularly the type of contract which led to the obligation now sought to be enforced, need not be mentioned in the new type of legis actio. Thus the per condictionem was the type of legis actio in which the ‘causa’ was ‘abstracted’ from the obligation, as in the so-called ‘abstract contracts' of modern continental law. This, he held, was necessary because of the de­velopment of consensual contracts which were not based on statutes?

1. Reff, in Kipp, s.v. condictio, ģ 4 (1901) 848, and Boy6, Denuntiatio 131 n.6; the new Gaius would seem to confirm the second view.

2. Girard, Manuel 1051 n.4, shows that the evidence is not conclusive.

3. Buschke, Die Mulla und das Sacramentum (1874) 486-503.

4. Gioffredi, SDHI 13/14 (1946/47) 7, 60 ff.

5. Greenidge, Procedure 65.

6. Baron, Die CcHuäctionen [ ® bhandlungan aus 4tm romischen Gvilprozess I (Berlin 1891)], 185-217. Criticized by von Mayr, Die Condictio des romischen Privat rechts (Leipzig 1900) 17-46, and by De Visscher, Condictio 36-38.

7. In this latter point Baron was probably incorrect, as De Visscher showed.

In the extensive discussion of the new Gaius shortly after its publica­tion, Levy pointed out that there are four apparent differences between the legis actio per iudicis arbitrive postulationem and the legis actio per eondictionem;’ (1) in the former the causa must be named, in the latter not; (2) in the former the naming of the index was immediate, in the latter after thirty days; (3) in the former there was iudex and/or arbiter, in the latter apparently only iudex; (4) in the former the praetor was re­quested to grant a iudex or arbiter, in the latter the plaintiff gave notice to the defendant to appear. Further reflection calls to mind that the lex Pinaria provided for a postponed appointment of the iudex in the legis actio sacramento after thirty days; that although a iudex was appointed in lex Silia cases, an arbiter may have been necessary for lex Calpurnia cases; and finally, that when the parties appeared 'in iure\ the praetor was addressed in both cases. Consequently, Levy holds that the only sub­stantial point of difference is that the causa is not mentioned in the per con­dictionem. This makes the trial simpler and permits suit in the case of loan and unjust enrichment, obligations without causa or continuing causa in the early period of Roman law. Robbe likewise stresses the abstract character of the legis actio per eondictionem? During the 3rd century B.C. there had developed new legal and economic relations to which the social order attributed obligatory force. So, for example, it was now possible to recover for things or funds which had not been given to another as payment nor pursuant to a specific causa, and even when a contract entered into had been defective in form.

In passing, it should be noted that some would emphasize as the point of distinction that in the iudicis arbitrive poslulatio the plaintiff requested the praetor to give a iudex, while in the condictio the litigants themselves pro­posed the name of the iudex.^{[464] [465] [466] [467]}

An entirely different point of distinction between the two legis actiones is posited by other writers. It is clear that no penalty is involved in the legis actio per iudicis arbitrive postulationem; Gaius says so. Arangio-Ruiz argued that a penalty proportioned to the amount at issue was involved in the legis actio per eondictionem established by the lex Silia for the recovery of a sum certain owed.” Kaser, expanding upon this idea, believed that when the parties appeared before the iudex a secured promise was made to pay penal damages of one-third the amount at issue if the defense was unsuccess­ful, and a return promise secured from the plaintiff for one-third penalty in the event of unsuccessful suit could be exacted.^{[468] [469] These would be the fore­runners of the sponsio and restipulatio tertiae partis in the action for sum certain owed, of the formulary procedure. This type of security for the out­come of the case would constitute a great advance over the burdensome poena sacramenti. There are, however, counter-arguments to thisview,11 Gaius contrasts the penalty of the sacramentum with that of the formulary action for sum certain owed, and not with that of alegis actio per condictio­nem; it would seem to have been superfluous for Gaius to repeat the state­ment made in connection with the iudicis arbitrive postulatio that ‘one de­nied without penalty’; the penalty in the formulary action may havestemmed from the legis actio Sacramento, which was still available in the late times. De Zulueta concluded that, although there were strong arguments for the view that there was a penalty in the condictio under the lex Silia, this would not be a natural inference from Gaius’ silence and from his contrast between the sacramental penalty and the sponsiones of the formulary action.[470] [471]}

Prichard has recently suggested that when the provision of an early statute, the lex Poetelia, mitigated the harsh penalties of execution upon the person, the lex Silia was enacted to fill in the gap, the legis actio per condic­tionem allowing the creditor to ‘condicere’, that is, to ‘denuntiare’, to give notice of the starting of a process. If the debt was denied the process was started, but thirty days were granted during which the debtor could decide whether to pay the debt.¹’

4. Legis actio per manus iniectionem

| 74 The three types of legis actiones which have already been considered were

utilized to establish a legal right and obtain a judgment. If such judgment were not satisfied, execution upon the judgment could be accomplished in early times by the use of legis actio per manus ineictionem or, in certain cir­cumstances, by legis actio per pignoris capionem.

Lex Duooecim Tabularum 1.1-2

If he fplaintiff) summons (defendant) to court,. If he does not go, he (plaintiff) shall call witness thereto. Then only shall he take (defendant) by force. (2) If he attempts to evade or take flight, he (plaintiff) shall lay hand on him.

The legis actio by 'laying on of hand’ undoubtedly stemmed from an out* of-court (extra-judicial) form al act, the phys ical act on the part of an aggrieved person. It is perhaps best exemplified in the act of summons to court. If a person declined to accompany the claimant to court, the latter seized him, an act of self-help.* A person so seized could only decline the summons if he provided an acceptable surety who would guarantee his court appearance al a later date. It has been argued that this type of manus iniectio, termed vocati, was in fact a legis actio, in which only the first steps thereof took place cxtra-judicially, but this view does not seem to have gained accep­tance.¹ Summons is but one of a number of situations in which manus iniectio takes place extra-judicially.’

Gellius, Nodes Atticae 20.1.42-45

Thirty days were given to those who were condemned on a confessed debt and by judgment on a debt, for the purpose of collecting the sum to be paid. (43) And these days the decemvirs called 'iust ilium ’ (judicial holiday), as a kind of suspen­sion, that is. like an interval and cessation of law during them, during which days no legis actio could be brought against them. (44) Afterwards, unless they had paid, they were summoned before the praetor and were addicted by him to those to whom they had been adjudged, and they werebound.also, with bonds or chains. (45) For the words of the law were, 1 think, as follows: ‘Let thirty days be ‘fasti’ (right) in the confession of money and the cases ofjudgment-debt. Thereafter, let there be manus iniectio. let (him) be led into court. Unless he satisfies the judgment or someone acts as vindex for him in court, let him be led off, bound either with bonds or chains. Bound with fifteen pounds, not less, or if he (com­plainant) wishes, with more. If he (debtor) wishes, let him provide his own live­lihood. if he does not wish to do so, let him who has him bound give a pound of spelt daily. If he wishes, let him give more.'

Gaius, Inst itut ionum commentarius IV.21

Proceedings per manus iniectionem took place, similarly, those cases in which provision was made by some statute that action should thus be conducted, as in the case ofjudgment-debt (fadicati) by the law of the Twelve Tables. That action was as follows: He who sued spoke: ‘Inasmuch as you have been adjudged' (or ‘condemned’) 'to me in the sum of ten thousand sesterces, and since you have ^{[472] [473] [474] not paid, for this reason I lay hand upon you for a judgment often thousand ses­terces’, and at the same moment he laid hold of some part of the debtor's body; nor was the judgment-debtor permitted to remove the other shand from himself and undertake his own defense, but he gave a vindex who was wont to conduct the caseforhim. One who did not give a vindex was led off by the claimant to hishome and was placed in bonds.}

The primary legis actio per manus iniectionem was that employed to af­ford execution upon the person for an unsatisfied judgment or for a confes­sed debt. Execution per manus iniectionem was only possible if the confession or judgment were for a fixed amount. Just how the sum was determined if the amount was not certain, the so-called arbitrium litis aestimandae(thedeter­mination of the amount involved in the controversy), is a matter not very clear.^[475] It had been suggested that the legis actio per iudicis arbitrive postu­lationem was the device by which the amount due was determined,^{[476] [477] but the absence of any discussion of this matter in the Gaius passage on iudicis arbi­trive postulatio, even in codex F, has led some to deny any connection be­tween arbitrium litis aestimandae and the legis actio.4 However, others have felt that the arbitrium may have been treated in the portion still missing from the Veronese Gaius or constitute a device fashioned by court magistrates on the model of the legis actio per iudicis arbitrive postulationem.[478] [479] [480] De Zulu­eta succinctly notes: ‘opinions differ as to whether this (arbitrium litis aesti­mandae] was an appendix to the actio sacramento or a preliminary step in the manus iniectio’.·}

Gaius presents only the proceeding in iure (in court, before the magis­trate), but Gellius affords information on earlier steps in the process. When thirty days had elapsed without satisfaction a judgment debtor or confessus was brought before the magistrate. With formal words accompanying the physical gesture, the action before the praetor was instituted? Presumably the procedure in court repeated what had occurred extra-judicially.^[481] The judgment-debtor could not undertake his own defense, but had to provide a vindex to ‘throw off the hand* (manum depellerc) if he sought to escape execution upon his person. In the process described by Gaius and Gellius the intervention of the vindex apparently set the debtor free, and all liability was assumed by the vindex." This is clearly a later stage in an in­stitution whose origin has been the subject of considerable speculation.’² According to Dull, among the more recent views, the vindex was originally a state officer to supervise a trial in which the use of force (vis) was or was not to be permitted.” The vindex was empowered to declare the right to use force (vim dicere), thus pursue a vindicatio, the font of all Roman processes according to Dull. In the course of time the iudex and the right to employ law (ius dicere) replaced the vindex, and the latter was made the protector of the defendant. Kaser, however, maintained that there was not the slightest evidence of a public role for the vindex.¹⁴ Once manus iniectio was recog­nized as a legal act which could not be countered by the exercise of physical strength, the person seized was in the power of the seizer. Only a third person, quite likely a kinsman, could prevent the exercise of revenge by a pronouncement of force (vim dicere) uttered against the person in power. The throwing-off of the hand by the vindex was a counter-act to the laying on of the hand, a vindicatio, that is, a controversy with respect to the control of the object - in this case, the judgement-debtor.” Broggini, in a recent study, disassociated the vindex from any role in the evolution of the pro­cedure.” The vindex was the representative of the extended Roman family, in charge of al! processes (vindicationes) within the group, in contrast to the iudex, the jurisdiction authority for disputes between members of different family groups within the community. The vindex had a role in state process from the very start, the protection of his family group members.

In Gaius’ description the vindex replaces the judgment-debtor as the contesting party. He had to defend on the basis that the creditor was not entitled to execution, either because the judgment had already been satisfied or the parties had come to terms, or that it had been illegally obtained; he could not re-argue the merits of the case.” Presumably the matter was adjudicated in a second part of the hearing, but the details are not known.”

11. For details of the procedure, see Jolowicz-Nicholas, Introduction 188-90; Wenger, Institutes 226 f.; De Zulueta, Institutes 11 243 f.

12. For a summation of various views of writers of the 19th century, see Kleineidam, Personalexekuiion 149 ff.; for recent views, sec reff. in Kaser, ZtvHprazessrechi 49 n.22, and 99 n.48.

13. Dull, SZ 54 (1934) 98-136, and 55 (1935) 9-35.

14. Kaser, Altrdm. Ius 193-99.

15. On the tie between manus iniectio and vindicatio, see also Betti, FHangierl 40(1915) 321, 325 ff.; De Frandsci, Trasferimento 126 f.

16. Broggini, 'Vindex und iudex’, SZ 76 (1959) 113, 138-48.

17. Buckland, Text-Book 619-20.

18. See De Zulueta, Institutes 11 243.

Gellius, Nodes Atticae 20.1.46 52

There was, besides, the right of compromising, and unless there had been agree­ment (the debtors) were kept in bonds sixty days. (47J Within this time, on three successive market days (nundinae) they were led before the praetor in the place of assembly and were proclaimedfor as much money as had been adjudged. Then on the third market day they suffered capital punishment or were sold abroad across the Tiber. (48) But for the purpose of assuring good faith they provided a capital punishment, horrible in its display of atrocity andfearful with its new terrors. For if there were a number ofpersons to whom the defendant had been adjudged debtor, they were permitted to cut, if they wished, and to divide the body of the man adjudged to them. (49) I repeat the very words of the law lest you think, perchance. I dread this odium: ‘On the third market day', it said, ‘let them cut to pieces. If they cut more or less, it shall be without harm (to them). ' Nothing in fact so cruel, nothing so monstrous ever approached this unless, as might appear from the thing itself, such inhumanity ofpunishment deterred by the threat itself. (51) For now we see many persons addicted and bound because the most corrupt men despise the penalty of chains. (52) but I have neither read nor heard of anyone ewer being cut up in antiquity, for such severity of punish­ment could not be despised.

LEX COLONIAE GENETIVAE IUL1AE LXI (44 B.C.)

being commanded to lay hand (on another), such laying on of hand shall be on the legal basis of a judgment, and it shall be lawful for the said person to perform the same without harm to himself The vindex shall be a man of substance at the discretion of the duumvir (municipal magis­trate) or other judicial authority. If he fails to give a vindex or satisfy the judgment, let him be led off (with the judgment-creditor). Let him be bound in accordance with the ius civile. If anyone exercises force (acts as vindex) in such a case, but nevertheless loses it, let him be condemned (damnas esto) to double the damages, and to pay 20,000 sesterces to the colonists of this colony-------------------------------------------------------------------------------------------

If the vindex were unsuccessful in his opposition to the complainant in the legis actio, it seems he was liable to double the amount of the judgment. This is argued on the basis of a passage in the lex Coloniae Genetivae I uliae, a late republican utilization of the legis actio for a municipal settlement in Spain.¹*

19. See generally, Exner, *Zur Stelle Uber die manus iniectio in der lex Coloniae 1 uliae Genetivae’. ZRG 13 (1878) 392-98; Wlassalc. Processgesetze I 91-94. On the fine imposed in addition, see briefly Kaser. ZMlprozessrecht 100 n.59 i.f.

If the debtor or the confessus failed to provide a vindex he fell into the control of the complainant.¹⁰ The debtor was led off, bound and imprisoned for a period of sixty days. During this period he was exposed three times on market-days, and if no arrangement was made and no one came forth to satisfy the creditor, at the end of this period the debtor could either be killed or sold into slavery abroad. In the event there was a plurality of creditors we are told that the body of the debtor might legally be cut up into the re­quisite number of shares.²*

Naturally, there have been a considerable number of studies devoted to the explanation of this barbarous rite.²² Among the more recent attempts at a humane explanation rather than the literal version, Radin argued that the passage referred to a distribution of the property which belonged to the debtor.¹¹ Ldvy-Bruhl believed that magical rites were involved in the de­dication of different parts of the debtor's body to different gods, but with­out his dismemberment.¹⁴ Along somewhat similar lines Georgescu took the division as a ritual act; since the defaulting debtor had suffered diminution in capacity (capitis deminutio) rahter than capita] punishment (capite poena), the parts of the body divided were the external signs of the body, namely, the nails and the hair.¹⁵ Londres da Nobrega discarded earlier attempts at ex­planation and concluded that the passage had reference to the claims of other creditors if one of them had satisfied his claim on the third market day.²⁶ He translated the passage,

Lex duodecim tabularum HI.6

On the third market day the other creditors would protect their right by giving notice of their shares (of the debtor ’s assets). If they alleged too large or too small claims, this would have no significance for the distribution.

Cf. the literal translation of Cell. 20.1.49, supra, p. 207.

In spite of the preferred explanations, most believe the words are to be

20. Though there is no direct reference to the 'addictio' of the debtor to the creditor by the praetor, in the version given by Gaius, most take this to be the case, e.g., Kaser, Altrtim. lus 197; De Zulueta, Institutes II 244. Contra, Jolowicz, Introduction 191 n.4.

21. Besides G ell jus, see Quint, Inst. 3.6.84; Tertull. Apol. 4; Dio frag. 17.8.

22. The older suggestions are summarized by Kletneidam, Personatexekution 224-51. Warmington, Remnants qf Old Latin III (1938), note a to XII Tables 3.6 (p. 440), lists a number of meanings assigned to the words partes secanto (cut to pieces) by various authors.

23. Radin, ‘The Early Roman Law of Execution against a Debtor’, JP43 (1922} 32—48. To similar effect, earlier, Lend, SZ 26 (1905) 498, 507-11.

24. L6vy-Bruhl, Probtemes 152-67, and Recherches 299 ff.

25. Georgescu, ‘Partes secanto*, RIDA 2 (1949) 367-84. Reference is made to the Autun Gaius 4.83: ‘Then it is discussed whether hair and nails are parts of the body,’

26. Londres da Nobrega, ‘Partis secanto’, SZ 76 (1959) 499-507.

taken literally?⁷ In the earliest times the phrase¹ capital punishment' (capitis poena) meant exactly what it said, and not merely diminution of capacity (capitis deminutio). In primitive law the right of killing a defaulting debtor was not unknown, nor the derived right of cutting into shares improbable.¹* At the most, the suggestion has been made that after the defaulting debtor had been killed, the several creditors divided up the corpse so that each of them would have power over the spirit of the deceased to forestall harm?⁰ In any event, there is no record of a defaulting debtor being killed, and there is reason to believe that the right to sell into slavery, as well as the sixty-day enchainment, eventually disappeared. According to some author­ities this was brought about by a lex Poetelia Papiria, of approximately 325 B.C., after which time the debtor seems to have been reduced to debt­bondage with the possibility of working off the debt?¹

Gaius, Institutionum commentarius IV.22-25

Afterwards certain statutes gave manus iniectio pro iudicato (as though upon a Judgment) against specified persons in particular circumstances; for example, the lex Publilia against one for whom a suretor had paid out, if within the six months following after payment had been made for him he did not repay the money to the suretor. Similarly, the lex Furia de sponsu against one who had exacted more than his proportionate share from the suretor; and then, numerous other statutes gave this action in many cases. (23) But other statutes in certain cases granted actions permanus iniectionem, however, unqualified, that is, not pro iudicato. for example, the lex < Furia > testamentaria against one who had taken more than one thousand asses by way of legacy or (donatio) mortis causa, when he was not excepted by that statute so as to have the right of taking more (than the statute fixed). Similarly, the lex Marcia against moneylenders, that if they exacted usurious interest, an action per manus iniectionem could be brought against them for the recovery thereof. (24) If there was suit upon these statutes

27. Wenger, institutes 224 f., with further references,

28. Levy, Kapitalstrafe 10 f. [ — SArifien 11 325, 329 ff.J.

29. De Zulueta, Institutes II 244 f. MacCormack, TR 36 (1968) 509, 516-18, suggests that the body was cut up at the third market day if the debtor had died before the due date.

30. Jobb6-Duval, Les marts malfaisams, larvae, tenures (Paris 1924) 217 ff., 279 ff.; accord, Luzzalto, Ipotesi 190, 229 IT.; Kaser, AhnSm. lus 187 f.

31. Wenger, Institutes 225, with further reff., n.10; contra, Berger,s.v. lex Poetelia,RESupp. 7 (1940) 405 IT.; Kaser. Altrim. lus 247 n.67. De Visscher. ‘La Lex Poetelia Papiria Ct le rdgixoc des ddlits privds au Ve siide de Rome’, Melanges Fournier (1929) 755-65 [= 313-26], believed that the lex Poetelia only extended to the institution of nexum - on which institution, see De Zulueta, ‘The Recent Controversy about Nexum’, LQR 29 (1913) 137-53; also Schiller, Texts and Commentary 157-63; further bibliography, Berger, ED, s.v. nexum. Cf, also MacCormack, The lex Poetelia*, Labeo 19 (1973) 306-17.

and others similar to them. to remove the others hand from himself and conduct the defense by himself. For the plaintiff did not in the very legis actio add the phrase ‘pro iudicato'but, having stated the cause upon which he sued, spoke thus: 'For this reason I lay handon you'; while those to whom an action was given pro iudicato. after mentioning the cause upon which they sued, proceeded thus: ’For this reason I lay hand on you as though upon a judgment'. Nor have I forgotten that in the form (of proceeding) of the lex Furia testamentaria the phrase ‘pro iudicato ’ is inserted, although it is not in the statute itself; which seems to have been done without reason. (25) But after­wards, by the lex Vallia, except in the case of thejudgment-debtor and the onefor whom a suretor has madepayment, it was permitted all others who were sued per manus iniectionem to remove the other’s hand from themselves and conduct their defense by themselves. Accordingly, a judgment-debtor and one for whom a suretor had made payment even after this statute had to give a vindexand, unless they did so, were led off (by the claimant). And as long as legis actiones were in use these rules were always so observed; whence in our times one who is sued on a judgment orfor payment made (by a suretor) is compelled to gi ve surety that the judgment will be satisfied.

Lex LiX’i lucerjna 1-7

Let no one pour out manure in this grove nor abandon a corpse nor conduct sac­rifices for the deceased. If any one shall have acted contrary to these (rules), let anyone who wishes exercise manus iniectio himasifupona judgment-debt (pro iudicato) for fifty nummi (coin). Or if the magistrate wishes to fine him, he may do so.

Brum, Fontes No. 104a; Arangio-Ruiz, FIRA III No. 71b.

To the present the discussion has been limited to the legis actio per manus iniectionem against a judgment-debtor, the primary type of judicial manus iniectio. In the course of time there developed a further type termed pro iudicato, ‘as if upon a judgment’, and others which were unqualified (pura). According to Gaius, manus iniectio iudicati was the earliest form, and all the others are statutory additions. But the words ‘or condemned* in G. 4.21 raise some doubts regarding this “ Were there any debts subject to summary execution by manus iniectio, not assimilated to judgment-debts, and yet as old as the latter? The case of theperson who confessed to adebt in court was treated the same as that of the person who had been adjudged liable. But the case of the suretor who was not repaid within six months for an outlay in favor of the principal for whom he had gonesurety may well have been as old

32. See Kaser, Altrim. /«s 118, 127 ft; briefly. De Zulueta, Institutes II 245 f as the manus iniectio iudicati; the lex Pubiilia may have made easier the con­ditions of an existing liability.” Gaius mentions that, besides the lex Pubiilia and the lex Furia de sponsu, other statutes had provided manus iniectio pro iudicato, cases in which a vindex had to undertake the defense of the action. It is widely held that in these cases, like that of the judgment-debtor, the liability was doubled if it had been denied but the defense had been unsuc­cessful (lis crescens in duplum ad versus infitiantcm).¹⁴ However, the manus iniectio in the lex luci Lucerina does not involve double damages.”

In addition to these situations, other statutes provided for unqualified manus iniectio (pura), in which the defendant could undertake his own de­fense, This may well mean that there was no risk of double condemnation if the defense were not successful. By the lex Vallia all manus iniectiones save those respecting the judgment-debtor and the suretor who had paid out for his principal were converted to unqualified ones.” What the reason was for the development of such a kind of legis actio per manus iniectionem - if there were no difficulties to a defendant in the way of providing a vindex or of en­tailing double damages - is a disputed question.”

To sum up, legis actio per manus iniectionem was of three kinds: (1) iudi­cati, on a judgment-debt; (2) pro iudicato, on other debts to be enforced the same way; and (3) pura, on other less privileged debts. In (1) and (2) self­defense was not permitted, and thus these were actions for execution, safe­guarded by the possibility that a third person (vindex) might contest the validity of the right, while (3) was a summary action incorporating execu­tion.’·

5. Legis actio per pignoris capionem

§75 Gaius, Inst itut ionum commentarius IV.26-29

Legis actio per pignoris capionem was available in certain cases by reason of custom, by statute. (27} It was introduced bycustom in military

35. Koschaker, SZ 37 (1916) 348, 361; Meylan, ‘Acceptation cl paicmcut', Univ. Lausanne, Recueil travaux Fac. Droit (1934) 69, 88 ff.

34. For a discussion of the possible situations in which liability was doubled, among them nexum and recovery under the lex Aquilia, see Kaser, AltrSm. lus 123-35, with further rcIT. Note also the relation between manus iniectio iudicati/pro iudicato and release from obliga­tion entered into per aes et libram (by copper and scales), G. 3.173-175, treated by De Zulueta, /nninuo II 189-91.

35. Kaser, Aitr&n, lus 134 n.73.

36. The lex Vallia is of uncertain date, cf. Jolowicz. Introduction 202 n.3; generally Rotondi. Leges 478.

37. See Buckland. Text-Book 622; accord Jolowicz, Introduction 203, as against Wenger, Institutes 227 f.; De Zulueta, Institutes II 247.

38. So De Zulueta. institutes II 242.

affairs. Far [ and] a soldier was permitted to take a pledge (pignus capere)for his pay from the person who was entrusted with the money if he did not pay; this sum which was given as pay was termed ‘aes militare’ (military proceeds). Similarly, it was permitted to take a pledge for that sum with which a horse was to be bought (by a cavalryman); which sum was termed aes equestre ’ (equestrian proceeds). A Iso, for that money with which th efodder of a horse was to be bought; which sum was termed 'aes hordiarium' (provender proceeds). (28) Pignoris capio was introduced by statute, for example, by the law of the Twelve Tables against one who had bought a sacrificial animal and had not paid the price. Simb larly, against one who did not pay the hire of a beast of burden which someone had let out to him in order to expend the sum received in 'daps’, that is, on a sacrifice. Also, pignoris capio was granted by rules of the censors (lexcensoria) to the farmers of the public taxes of the Roman people against those who owed taxes under any law. (29) In all these cases the pledge was taken with set words, and because of this it seemed to many that this action, too, was a legis actio. But some have held < contra >; firstly, because pignoris capio was made out of court, that is, not before the praetor, and very often even with the adversary absent, whereas one could not use the other (legis) actiones except before the praetor and in the presence of the adversary; further, because a pledge could be taken even on a closed day (dies nefastus), that is, on which it was not permitted to sue by legis actio.

In a limited number of cases property belonging to another could be taken in pledge to enforce the performance of an obligation. This action was termed by Gaius legis actio per pignoris capionem, legis actio by taking of a pledge. Our information largely derives from the Gaius passage, and several questions are raised which can only be tentatively answered. In the first place it has been suggested that since pignoris capio took place extra· judicially it should not be classed as a legis actio. In answer to this it was formerly maintained that, just as in manus iniectio, there must have been some provision for the case in which the defendant contested the seizure.¹ But today it is generally acknowledged that there is no evidence whatsoever of a proceeding in which the legality of the seizure was tested;^{[482] [483] [484] pignoris capio was a legis actio because it was a formal act, expressed by fixed words, and presumably included by Gaius among the five types because it was the origin of a right of action based on the fiction of pignoris capio?}

As a matter of fact, the legis actio per pignoris capionem can readily be compared to distress at common law. Property is seized in order to compel a person to do something or to leave something undone; it is not a device whereby the distrainor can satisfy the debt due him. Consequently, he can hold the thing for redemption, perhaps even destroy it, but he cannot sell it.^{[485] [486]} If the taking was unlawful, the distrainee, as owner, could probably sue by vindicatio, or action of theft, though some would say that the distrainee would have to apply to the magistrate to recover the article taken ^s I fit was justifiable seizure, the distrainee had a right to redeem the pledge (lucre pignus), perhaps only after paying a penalty in addition to the principal due.

The five instances given by Gaius are considered to be the exceptional cases granted in the private law in addition to the normal public law practice, the attachment of property by a magistrate in the exercise of his coercing power (coercitio).^{[487] [488] [489] Gaius’ enumeration, if not exhaustive, certainly in­cludes al! the more important cases? The two military instances appear to be wartime emergency practices of long standing eventually sanctioned by law. The two religious situations may derive from an earlier delegation of religious authority, continued by the law of the Twelve Tables. The right of tax farmers to distrain for taxes stems from direct delegation; the lex cen­soria set forth the conditions under which tax farmers exercised the co- ercitio-power of the censors themselves.·}

B.