In order to show that this statement is not a mere fancifulconceit, I will produce the evidence on which it rests. Very farthe most ancient judicial proceeding known to us is the LegisActio Sacramenti of the Romans, out of which all the later RomanLaw of Actions may be proved to have grown. Gaius carefullydescribes its ceremonial. Unmeaning and grotesque as it appearsat first sight, a little attention enables us to decipher andinterpret it.
The subject of litigation is supposed to be. in Court. If itis moveable, it is actually there. If it be immoveable, afragment or sample of it is brought in its place; land, forinstance, is represented by a clod, a house by a single brick. Inthe example selected by Gaius, the suit is for a slave. Theproceeding begins by the plaintiff's advancing with a rod, which,as Gaius expressly tells, symbolised a spear. He lays hold of theslave and asserts a right to him with the words, "Hunc egohominem ex Jure Quiritium meum esse dico secundum suam causamsicut dixi." and then saying, "Ecce tibi Vindictam imposui," hetouches him with the spear. The defendant goes through the sameseries of acts and gestures. On this the Praetor intervenes, andbids the litigants relax their hold, "Mittite ambo hominem." Theyobey, and the plaintiff demands from the defendant the reason ofhis 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 claimantoffers to stake a sum of money, called a Sacramentum, on thejustice of his own case, "Quando tu injuria provocasti, DaerisSacramento te provoco," and the defendant, in the phrase"Similiter ego te," accepts the wager. The subsequent proceedingswere no longer of a formal kind, but it is to be observed thatthe Praetor took security for the Sacramentum, which always wentinto 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 ofthose who see in it a dramatisation of the Origin of Justice. Twoarmed men are wrangling about some disputed property The Praetor,vir pietate gravis, happens to be going by, and interposes tostop the contest. The disputants state their case to him, andagree that he shall arbitrate between them, it being arrangedthat the loser, besides resigning the subject of the quarrel,shall pay a sum of money to the umpire as remuneration for histrouble and loss of time. This interpretation would be lessplausible than it is, were it not that, by a surprisingcoincidence, the ceremony described by Gaius as the imperativecourse of proceeding in a Legis Actio is substantially the samewith one of the two subjects which the God Hephaestus isdescribed by Homer as moulding into the First Compartment of theShield of Achilles. In the Homeric trial-scene, the dispute, asif expressly intended to bring out the characteristics ofprimitive society, is not about property but about thecomposition for a homicide. One person asserts that he has paidit, the other that he has never received it. The point of detail,however, which stamps the picture as the counterpart of thearchaic Roman practice is the reward designed for the judges. Twotalents of gold lie in the middle, to be given to him who shallexplain the grounds of the decision most to the satisfaction ofthe audience, The magnitude of this sum as compared with thetrifling amount of the Sacramentum seems to me indicative of theindifference between fluctuating usage and usage consolidatedinto law. The scene introduced by the poet as a striking andcharacteristic, but still only occasional, feature of city-lifein the heroic age has stiffened, at the opening of the history.
of civil process, into the regular, ordinary formalities of alawsuit. It is natural therefore that in the Legis Actio theremuneration of the Judge should be reduced to a reasonable sum,and that, instead of being adjudged to one of a number ofarbitrators by popular acclamation, it should be paid as a matterof course to the State which the Praetor represents. But that theincidents described so vividly by homer, and by Gaius with evenmore than the usual crudity of technical language, havesubstantially the same meaning, I cannot doubt; and, inconfirmation of this view, it may be added that many observers ofthe earliest judicial usages of modern Europe have remarked thatthe fines inflicted by Courts on offenders were originallysacramenta. The State did not take from the defendant acomposition for any wrong supposed to be done to itself, butclaimed a share in the compensation awarded to the plaintiffsimply as the fair price of its time and trouble. Mr. Kembleexpressly assigns this character to the Anglo-Saxon bannum orfredum.
