The subject of litigation is supposed to be in Court. If it is
moveable, it is actually there. If it be immoveable, a fragment or
sample of it is brought in its place; land, for instance, is
represented by a clod, a house by a single brick. In the example
selected by Gaius, the suit is for a slave. The proceeding begins by
the plaintiff's advancing with a rod, which, as Gaius expressly
tells, symbolised a spear. He lays hold of the slave and asserts a
right to him with the words, "_Hunc ego hominem ex Jure Quiritium meum
esse dico secundum suam causam sicut dixi_;" and then saying, "_Ecce
tibi Vindictam imposui_," he touches him with the spear. The defendant
goes through the same series of acts and gestures. On this the Praetor
intervenes, and bids the litigants relax their hold, "_Mittite ambo
hominem_." They obey, and the plaintiff demands from the defendant the
reason of his interference, "_Postulo anne dicas qua ex causa
vindicaveris_," a question which is replied to by a fresh assertion of
right, "_Jus peregi sicut vindictam imposui_." On this, the first
claimant offers to stake a sum of money, called a Sacramentum, on the
justice of his own case, "_Quando tu injuria provocasti, D aeris
Sacramento te provoco_," and the defendant, in the phrase "_Similiter
ego te_," accepts the wager. The subsequent proceedings were no longer
of a formal kind, but it is to be observed that the Praetor took
security for the Sacramentum, which always went into the coffers of
the State.
Such was the necessary preface of every ancient Roman suit. It is
impossible, I think, to refuse assent to the suggestion of those who
see in it a dramatisation of the Origin of Justice. Two armed men are
wrangling about some disputed property. The Praetor, _vir pietate
gravis_, happens to be going by, and interposes to stop the contest.
The disputants state their case to him, and agree that he shall
arbitrate between them, it being arranged that the loser, besides
resigning the subject of the quarrel, shall pay a sum of money to the
umpire as remuneration for his trouble and loss of time. This
interpretation would be less plausible than it is, were it not that,
by a surprising coincidence, the ceremony described by Gaius as the
imperative course of proceeding in a Legis Actio is substantially the
same with one of the two subjects which the God Hephaestus is described
by Homer as moulding into the First Compartment of the Shield of
Achilles. In the Homeric trial-scene, the dispute, as if expressly
intended to bring out the characteristics of primitive society, is not
about property but about the composition for a homicide. One person
asserts that he has paid it, the other that he has never received it.
The point of detail, however, which stamps the picture as the
counterpart of the archaic Roman practice is the reward designed for
the judges. Two talents of gold lie in the middle, to be given to him
who shall explain the grounds of the decision most to the satisfaction
Public-domain text, read in full here on John Shaqi.
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