686 ROMAN LAW [JUS CIVILE. Per of the actio sacramenti the vis civilis et festucaria was a pignoris reminiscence of the vera solida ins with which men settled ^P" 5 ' their disputes about property in the earliest infancy of the nem * commonwealth. Hanus injectio was a survival from times when the wronged was held entitled to lay hands upon the wrongdoer, and himself subject him to punishment ; custom and legislation intervened merely to regulate the conditions and mode of exercise of what essentially was still self-help. In pignoris capio self-help was likewise the dominant idea. It may be fairly enough described by the single word distress, the taking by one man of property belonging to another in satisfaction of or in security for a debt due by the latter which he had failed to pay. The taking did not proceed upon any judgment, nor did it require the warrant of a magistrate ; it might be resorted to even in the absence of the debtor ; but it required to be accompanied by certain words of style, spoken probably in the presence of witnesses. It was only in a few exceptional cases that it was competent, in some by force of custom, in others by statute. What was the procedure, and what its effects, are far from certain. Ihering, founding on some expressions of Cicero's, con- jectures that, whether the debt was disputed or not, the distrainer could neither sell nor definitely appropriate his pignus without magisterial authority, that in every case he was bound to institute proceedings in justification of his caption, and to take in them the position of plaintiff. The idea is ingenious, and puts the pignoris capio in a new and interesting light. It makes it a summary means of raising a question of right for whose judicial arbitra- ment no other process of law was open, with the addi- tional advantage that it secured instant satisfaction to the raiser of it in the event of the question being deter- mined in his favour. If against him, the inevitable result, in substance at least, must have been a judgment that he had no right to retain his pledge, with probably a finding that he was further liable to its owner in the value of it, as a punishment for his precipitancy. 1 Pro- Judicial or Quasi-Judicial Procedure outside the Legis Actiones. cedure Whatever may have been the extent of the field covered by the outside actions of the law, they did not altogether exclude other judicial legis or quasi-judicial agencies. The supreme magistrate every now and actiones. then was called upon to intervene in matters brought under his cognizance by petition or complaint, in which his aid was sought not so much to protect a vested right of property or claim as to maintain public order, or to prevent the occurrence or continu- ance of a state of matters that might prove prejudicial to family or individual interests. The process was not an action, with its stages injure and injudicio, but an inquiry conducted from first to last by the magistrate himself ; and his finding, unless it was a dis- missal of the complaint or petition, was embodied in an order (decretum, interdictum) which it was for him to enforce by such means as he thought fit, manu militari or by fine or imprison- ment. Some jurists are disposed to give a very wide range to this magisterial intervention. One of its most important manifestations was in connexion with disputes about the occupancy of the public domain lands. These did not belong in property to the occupants, so that an action founded on ownership was out of the question. But, as the occupancy was not only recognized but sanctioned by the state, it was right, indeed necessary in the interest of public order, that it should be protected against disturbance. In the measures resorted to for its protection Niebuhr recognized the origin of the famous possessory interdict uti possidetis ; and, al- though opinions differ as to whether protection of the better right niea, Berlin, 1861, p. 95 sq. ; Ihering, Oeist d. rom. Rechts, vol. i. lie ; Voigt, XII. Tafeln, vol. i. p. 502 sq. 1 This was according to the spirit of the early system, which en- deavoured to check reckless or dishonest litigation by penalties, e.g., forfeiture of the summa sacramenti and duplication of the value of un- restored property and profits in the sacramental procedure ; duplica- tion of the value of the cause when judgment was against the defend- ant in an action upon an engagement embodied in a lex mancipii or lex next ; duplication against a vindex who interfered ineffectually in manus injectio against a judgment-debtor ; duplication against an heir who refused without judicial compulsitor to pay a legacy bequeathed per damnationem ; the addition of one-third more by way of penalty against a debtor found liable in an actio certae creditae pecuniae, &c. or prevention of a breach of the peace was what primarily influ- enced the magistrate's intervention, there is a pretty general accord in accepting this view. Another illustration of this magisterial intervention is to be found in the interdiction of a spendthrift, a decree depriving of his power of administration a man who was squandering his family estate and reducing his children to penury ; a third presents itself in the removal of a tutor from office on the ground of negligence or maladministration, brought under the notice of the magistrate by any third party in what was called postulatio suspecti tutoris ; and a fourth in the putting of a creditor in possession of the goods of an insolvent debtor, which must have been common enough even before the general bankruptcy regula- tions of the Rutilian edict. These are to be taken merely as ex- amples of this magisterial intervention, which manifested itself in very various directions ; and it is easy to see how largely such pro- cedure might be utilized for remedying the grievances of persons who, from defect of complete legal title, want of statutory authority, or otherwise, were not in a position to avail themselves of the "actions of the law." In one of the Valerio-Horatian laws consequent on the second secession of the plebeians there was mention of ten judges (judices decemviri), whose persons were declared as inviolable as those of the tribunes of the people and the plebeian sediles. These were a body of judges elected to officiate on remit from a tribune or sedile in questions arising between members of the plebeian body. We are without details as to the institution of this plebeian judicatory, the questions that fell under its cognizance, the forms of process employed, the law administered by it, and the effect of its judg- ments. It is not much referred to by the historians ; and its decadence has been attributed to the fact that the Lex Hortensia of 468 made the nuiiditiae lawful court days (dies fasti), and so made it possible for the country folks coming to the city to market to carry on their processes before the praetor. As all in a manner exercising judicial or quasi-judicial functions must also be mentioned the pontiffs, the consuls, and afterwards the censors as magistri morum, the chiefs of the gentcs within the gentile corporations, and heads of families within their households. While it may be the fact that with the enactment of the XII. Tables the jurisdiction of the pontiffs 2 was materially narrowed, it certainly did not disappear, witness the famous case in which Cicero made before them the oration of which he was so proud, Pro domo sua. The action of the consuls and afterwards of the censors as guardians of public morals, and the social and political disqualifications and pecuniary penalties with which they visited persons who had been guilty of perjury or gross perfidy, did not a little to foster fidelity to engagements. Through the same agency the exercise of a variety of rights whose abuse could not be made matter of action the husband's power over his wife, the father's over his children was controlled and kept within bounds. It was not on light grounds, indeed, that the majesty of the pater- familias within the household could be called in question ; it was only when he forgot that in the exercise of serious discipline within his family he was bound to act judicially. For he also was a judge judex domesticus, as he is often called, though in all cases of gravity he was required to invoke the advice of his kinsfolk in a family council. On him lay the duty of controlling his family ; if he failed to do so he was himself in danger of censorial animad- version. That his gens also, if he were a patrician, had some super- vision and power of calling him to account is extremely probable ; every corporation had it more or less over its members ; but neither historians nor jurists give us any definite information. Between citizens and foreigners with whom Rome was in alliance Reci; by a treaty conferring reciprocal right of action the proceedings ratio took the form known as recuperatio. 3 It was an international process, modelled to some extent upon, and deriving some of its technical terms from, the fetial clarigatio. The action was always raised in the forum contractus. The magistrate ordinarily presiding there heard what parties had to say in plaint and defence, and then put in simple shape the points of fact arising on them, authorizing the recuperators to whom the matter was remitted to find for plaintiff or defendant according to circumstances. The recuperators were sometimes three, sometimes five, sometimes still more numer- ous, but always in odd number ; whether the nationality of both parties required to be represented we are not told. Expedition being in most cases a matter of importance, recuperators were re- quired to give judgment within ten days. How execution pro- ceeded upon it, if it were for the plaintiff, does not clearly appear ; 2 See Hiillmann, Jus pontifidum der Rtimer, Bonn, 1837 ; Cauvet, Le droit pontifical chez les anciens Romains, Caen, 1869 ; Bouch6- Leclerq, Les pontifes de Vane. Rome, Paris, 1871 ; Marquardt, Rom. Staatsverwalt. , vol. iii. p. 290 sq. 3 See Collinan, De Romanor. jud. recuperatorio, Berlin, 1835 ; Carl Sell, Die recuperatio der Romer, Brunswick, 1837 ; Huschke (rev. Sell), in Richter's Krit. Jahrbucher, vol. i. (1837), pp. 868-911 ; Voigt, Jus naturale, &c., vol. ii. 28-32 ; Karlowa, Rom. Civilprocess, pp. 218-230. 41
