Latin
Ancient Law, lines 2.1.435-2.1.439
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.435-439
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It may be thought that the difference which I have asserted to exist between the ancient and modern view of penal law has only a verbal existence. The community it may be said, besides interposing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. But, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injury to the community had to do with the earliest interferences of the State through its tribunals, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanor of a private arbitrator casually called in.
In order to show that this statement is not a mere fanciful conceit, I will produce the evidence on which it rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans, out of which all the later Roman Law of Actions may be proved to have grown. Gaius carefully describes its ceremonial. Unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it.
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, symbolized 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, Daeris 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.