4.1.16 to 4.1.19

The Sacramentum ,so called from the wager or forfeit, which involved the deposit by the parties in the hands of the Pontiffs, for the benefit of the sacra publica ,reference to certain property, it was done by means of an oath. This proceeding was attended with danger to the party swearing falsely; just as, at present, is the case in the action for the recovery of money lent, on account of the solemn agreement by which the defendant assumes a risk if he rashly denies the claim, and because of the counter engagement by which the plaintiff becomes liable if he did not recover the debt. Hence, the party who was defeated was obliged to pay the amount of money deposited by way of penalty, which was placed in the Public Treasury; and, for this reason, sureties were given to the Prætor; instead of, as at present, the amount deposited as penalty being for the benefit of the party who gained the case. (14) The amount deposited by way of penalty in this proceeding was either five hundred, or fifty asses; five hundred were deposited when the property in question was worth a thousand or more asses, and fifty when it was worth less than a thousand; for this was provided by the Law of the Twelve Tables. When, however, the controversy was with reference to the freedom of a slave, although he may have been extremely valuable, still the amount deposited by way of penalty was only fifty asses. This was also provided by the Twelve Tables in favor of freedom, in order that the protector of the slave might not be unduly oppressed . . . . . [1] (15) Moreover, when all these actions were brought to enforce an obligation, the parties, having furnished sureties, agreed to again appear for the appointment of a judge; and having returned after thirty days, the judge was appointed in accordance with the Lex Pinaria ; while before this law was enacted he was appointed immediately. We understand from what has been already stated, that if the property in dispute was worth less than a thousand asses, the amount deposited