ACTIONEM EDERE, POSTULARE, DARE.

199

By the law of the Twelve Tables, none were excused from appearing in court; not even the aged, the sickly, and infirm. If they could not walk, they were furnished with an open carriage (jumentum, i. e. plaustrum vel vectabulum), Gell. xx. 1. Cic. de Legg. ii. 23. Horat. Sat. i. 9. 76. But afterwards this was altered, and various persons were exempted; as, magistrates, Liv. xlv. 37., those absent on account of the state, Val. Maxim. iii. 7. 9. &c.; also matrons, Id. ii. 1. 5., boys and girls under age, D. de in jus vocand., &c.

It was likewise unlawful to force any person to court from his own house, because a man's house was esteemed his sanctuary (tutissimum refugium et receptaculum.) But if any one lurked at home to elude a prosecution, (si fraudationis causâ latitarit, Cic. Quint. 19.) he was summoned (evocabatur) three times, with an interval of ten days between each summons, by the voice of a herald, or by letters, or by the edict of the prætor; and if he still did not appear (se non sisteret), the prosecutor was put in possession of his effects (in bona ejus mittebatur), Ibid.

If the person cited found security, he was let go: SI ENSIET (si autem sit, sc. aliquis), QUI IN JUS VOCATUM VINDICIT, (vindicaverit, shall be surety for his appearance), MITTITO, let him go.

If he made up the matter by the way (ENDO VIA), the process was dropped. Hence may be explained the words of our Saviour, Matt. v. 25. Luke, xii. 58.

II. POSTULATIO ACTIONIS,

REQUESTING A WRIT, AND GIVING BAIL.

Ir no private agreement could be made, both parties went before the prætor. Then the plaintiff proposed the action (ACTIONEM EDEBAT, vel dicam scribebat, Cic. Verr. ii. 15.) which he intended to bring against the defendant (QUAM IN REUM INTENDERE VELLET), Plaut. Pers. iv. 9., and demanded a writ (ACTIONEM POSTULABAT) from the prætor for that purpose. For there were certain forms (FORMULE) or set words (VERBA CONCEPTA) necessary to be used in every cause (FORMULE DE OMNIBUS REBUS CONSTITUTE), Cic. Rosc. Com. 8. At the same time the defendant requested that an advocate or lawyer might be given him, to assist him with his counsel.

There were several actions competent for the same thing. The prosecutor chose which he pleased, and the prætor usually granted it (ACTIONEM vel JUDICIUM DABAT vel REDDEBAT), Cic. pro Cacin. 3. Quint. 22. Verr. ii. 12. 27., but he might also refuse it, ibid. et ad Herenn. ii. 13.

The plaintiff, having obtained a writ from the prætor, offered it to the defendant, or dictated to him the words. This writ it was unlawful to change (mutare formulam non licebat,) Senec. Ep. 117.

The greatest caution was requisite in drawing up the writ (in actione vel formulâ concipienda), for if there was a mistake in one word, the whole cause was lost, Cic. de Invent. ii. 19. Herenn. i. 2. Quinctil. iii. 8. vii. 3. 17. Qui plus petebat quàm debitum est, causam perdebat,

198

CIVIL TRIALS

SUMMONING TO COURT.

I. (JUDICIA PRIVATA), CIVIL TRIALS.

JUDICIA Privata, or Civil Trials, were concerning private_causes, or differences between private persons, Cic. de Orat. i. 38. Top. 17. In these at first the kings presided, Dionys. x. 1., then the consuls, Id. & Liv. ii. 27., the military tribunes and decemviri, Liv. iii. 33.; but, after the year 389, the Prætor Urbanus and Peregrinus. See p. 110, 111.

The judicial power of the Prætor Urbanus and Peregrinus was properly called JURISDICTIO, (quæ posita erat in edicto et ex edicto decretis ;) and of the prætors who presided at criminal trials, QUÆSTIO, Cic. Verr. i. 40, 41. 46, 47. &c. ii. 48. v. 14. Muren. 20. Flacc. 3. Tacit. Agric. 6.

The prætor might be applied to (ADIRI POTERAT, COPIAM Vel POTESTATEM SUI FACIEBAT) on all court days (diebus fastis); but on certain days he attended only to petitions or requests (POSTULATIONIBUS VACABAT); so the consuls, Plin. Ep. vii. 33., and on others, to the examination of causes (COGNITIONIBUS), Plin. Ep. vii. 33.

On court-days, early in the morning, the prætor went to the Forum, and there, being seated on his tribunal, ordered an Accensus to call out to the people around that it was the third hour; and that whoever had any cause (qui LEGE AGERE vellet) might bring it before him. But this could only be done by a certain form.

I. VOCATIO IN JUS,

OR SUMMONING TO COURT.

If a person had a quarrel with any one, he first tried to make it up (litem componere vel dijudicare) in private; (intra parietes, Cic. pro P. Quinct. 5. 11. per disceptatores domesticos vel operá amicorum, Cæcin. 2.)

If the matter could not be settled in this manner, Liv. iv. 9., the plaintiff (ACTOR vel PETITOR) ordered his adversary to go with him before the prætor (in jus vocabat), by saying, IN JUS VOCO TE: IN JUS EAMUS IN JUS VENI: SEQUERE AD TRIBUNAL: IN JUS AMBULA, or the like, Ter. Phorm. v. 7. 43. 48. If he refused, the prosecutor took some one present to witness, by saying, LICET ANTESTARI? May I take you to witness? If the person consented, he offered the tip of his ear (auriculam opponebat), which the prosecutor touched, Horat. Sat. i. 9. 76. Plaut. Curcul. v. 2. (See p. 56.) Then the plaintiff might drag the defendant (reum) to court by force (in jus rapere), in any way, even by the neck, (obtorto collo, cervice adstricta), Cic. & Plaut. Pœn. iii. 5. 45. Juvenal. x. 88., according to the law of the Twelve Tables; SI CALVITUR (moratur) PEDEMVE STRUIT (fugit vel fugam adornat), MANUM ENDO JACITO, injicito, Festus. But worthless persons, as thieves, robbers, &c. might be dragged before a judge without this formality, Plaut. Pers.

iv. 9. v. 10.

ACTIONEM EDERE, POSTULARE, DARE.

199

By the law of the Twelve Tables, none were excused from appearing in court; not even the aged, the sickly, and infirm. If they could not walk, they were furnished with an open carriage (jumentum, i. e. plaustrum vel vectabulum), Gell. xx. 1. Cic. de Legg. ii. 23. Horat. Sat. i. 9. 76. But afterwards this was altered, and various persons were exempted; as, magistrates, Liv. xlv. 37., those absent on account of the state, Val. Maxim. iii. 7. 9. &c.; also matrons, Id. ii. 1. 5., boys and girls under age, D. de in jus vocand., &c.

It was likewise unlawful to force any person to court from his own house, because a man's house was esteemed his sanctuary (tutissimum refugium et receptaculum.) But if any one lurked at home to elude a prosecution, (si fraudationis causâ latitarit, Cic. Quint. 19.) he was summoned (evocabatur) three times, with an interval of ten days between each summons, by the voice of a herald, or by letters, or by the edict of the prætor; and if he still did not appear (se non sisteret), the prosecutor was put in possession of his effects (in bona ejus mittebatur), Ibid.

If the person cited found security, he was let go: SI ENSIEet (si autem sit, sc. aliquis), QUI IN JUS VOCATUM VINDICIT, (vindicaverit, shall be surety for his appearance), MITTITO, let him go.

If he made up the matter by the way (ENDO VIA), the process was dropped. Hence may be explained the words of our Saviour, Matt. v. 25. Luke, xii. 58.

II. POSTULATIO ACTIONIS,

REQUESTING A WRIT, AND GIVING BAIL.

Ir no private agreement could be made, both parties went before the prætor. Then the plaintiff proposed the action (ACTIONEM EDEBAT, vel dicam scribebat, Cic. Verr. ii. 15.) which he intended to bring against the defendant (QUAM IN REUM INTENDERE VELLET), Plaut. Pers. iv. 9., and demanded a writ (ACTIONEM POSTULABAT) from the prætor for that purpose. For there were certain forms (FORMULE) or set words (VERBA CONCEPTA) necessary to be used in every cause (FORMULE DE OMNIBUS REBUS CONSTITUTE), Cic. Rosc. Com. 8. At the same time the defendant requested that an advocate or lawyer might be given him, to assist him with his

counsel.

There were several actions competent for the same thing. The prosecutor chose which he pleased, and the prætor usually granted it (ACTIONEM vel JUDICIUM DABAT vel REDDEBAT), Cic. pro Cæcin. 3. Quint. 22. Verr. ii. 12. 27., but he might also refuse it, ibid. et ad Herenn. ii. 13.

The plaintiff, having obtained a writ from the prætor, offered it to the defendant, or dictated to him the words. This writ it was unlawful to change (mutare formulam non licebat,) Senec. Ep. 117.

The greatest caution was requisite in drawing up the writ (in actione vel formulá concipienda), for if there was a mistake in one word, the whole cause was lost, Cic. de Invent. ii. 19. Herenn. i. 2. Quinctil. iii. 8. vii. 3. 17. Qui plus petebat quàm debitum est, causam perdebat,

200

VADARI REUM - VADES DARE, ETC.

Cic. pro Q. Rosc. 4., vel formulâ excidebat, i. e. causâ cadebat, Suet. Claud. 14. Hence SCRIBERE vel SUBSCRIBERE DICAM alicui vel impingere, to bring an action against one, Cic. Ver. ii. 15. Ter. Phorm. ii. 3. 92., or cum aliquo JUDICIUM SUBSCRIBERE, Plin. Ep. v.1., EI FORMULAM INTENDERE, Suet. Vit. 7. But DICAM vel dicas sortiri, i. e. judices dare sortitione, qui causam cognoscant, to appoint judices to judge of causes, Cic. ibid. 15. 17.

A person skilled only in framing writs and the like, is called by Cicero, LEGULEIUS, (præco actionum, cantor formularum, auceps syllabarum, Cic. de Orat. i. 55.) and by Quinctilian, FORMULARIUS,

xii. 3. 11.

He attended on the advocates, to suggest to them the laws and forms; as those called PRAGMATICI did among the Greeks, ibid., and as agents do among us.

Then the plaintiff required that the defendant should give bail for his appearance in court (VADES, qui sponderent eum adfuturum,) on a certain day, which was usually the third day after (tertio die vel perendie), Cic. pro Quint. 7. Muren. 12. Gell. vii. 1. And thus he was said, VADARI REUM, (VADES ideo dicti, quòd, qui eos dederit, vadendi, id est, discedendi habet potestatem, Festus,) Cic. Quint. 6.

This was also done in a set form prescribed by a lawyer, who was said VADIMONIUM CONCIPERE, Cic. ad Fratr. ii. 15.

The defendant was said VADES DARE, vel VADIMONIUM PROMITTERE. If he did not find bail, he was obliged to go to prison, Plaut. Pers. ii. 4. v. 18. The prætor sometimes put off the hearing of the cause to a more distant day (vadimonia differebat), Liv. Ep. 86. Juvenal. iii. 213. But the parties (LITIGATORES) chiefly were said VADIMONIUM DIFFERRE cum aliquo, to put off the day of the trial, Cic. Att. ii. 7. Fam. ii. 8. Quinct. 14. 16. Res esse in vadimonium capit, began to be litigated, ibid.

In the mean time the defendant sometimes made up (rem componebat et transigebat, compromised) the matter privately with the plaintiff, and the action was dropped, Plin. Ep. v. 1. In which case the plaintiff was said decidisse vel pactionem fecisse cum reo, judicio reum absolvisse vel liberâsse, lite contestatâ vel judicio constituto, after the lawsuit was begun; and the defendant, litem redemisse, after receiving security from the plaintiff (cùm sibi cavisset vel satis ab actore accepisset) that no further demands were to be made upon him, amPLIUS A SE NEMINEM PETITURUM, Cic. Quint. 11, 12. If a person was unable or unwilling to carry on a lawsuit, he was said NON POSSE vel NOLLE PROSEQUI, vel EXPERIRI, Sc. jus vel jure, vel jure summo, ib. 7. &c.

When the day came, if either party when cited was not present, without a valid excuse (sine morbo vel causá sonticá), he lost his cause, Horat. Sat. i. 9. 36. If the defendant was absent, he was said DESERERE VADIMONIUM, and the prætor put the plaintiff in possession of his effects, Cic. pro Quint. 6. 20.

If the defendant was present, he was said VADIMONIUM SISTERE vel OBIRE. When cited, he said, UBI TU ES, QUI ME VADATUS ES? UBI TU ES, QUI ME CITASTI? ECCE ME TIBI SISTO, TU CONTRA ET TE MIHI SISTE. The plaintiff answered, ADSUM, Plaut. Curcul. i. 3.5. Then the defendant said, QUID AIS? The plaintiff said, AIO

DIFFERENT KINDS OF ACTIONS.

201

FUNDUM, QUEM POSSIDES, MEUM ESSE; vel AIO TE MIHI DARE, FACERE, OPORTERE, or the like, Cic. Mur. 12. This was called INTENTIO ACTIONIS, and varied according to the nature of the action.

III. DIFFERENT KINDS OF ACTIONS.

ACTIONS were either Real, Personal, or Mixt.

1. A real action (ACTIO IN REM) was for obtaining a thing to which one had a real right (jus in re), but which was possessed by another, (per quam rem nostram, quæ ab alio possidetur, petimus, Ulpian.)

2. A personal action (ACTIO IN PERSONAM) was against a person for doing or giving something, which he was bound to do or give, by reason of a contract, or of some wrong done by him to the plaintiff.

3. A mixt action was both for a thing, and for certain personal prestations, [engagements, præstationes.]

1. REAL ACTIONS.

ACTIONS for a thing, or real actions, were either CIVIL, arising from some law, Cic. in Cæcil. 5. de Orat. i. 2., or PRÆTORIAN, depending on the edict of the prætor.

ACTIONES PRÆTORIÆ were remedies granted by the prætor for rendering an equitable right effectual, for which there was no adequate remedy granted by the statute or common law.

A civil action for a thing (actio civilis vel legitima in rem) was called VINDICATIO; and the person who raised it VINDEX. But this action could not be brought, unless it was previously ascertained who ought to be the possessor. If this was contested, it was called Lis VINDICIARUM, Cic. Verr. i. 45., and the prætor determined the matter by an interdict, Cic. Cacin. 8. 14.

If the question was about a slave, the person who claimed the possession of him, laying hands on the slave (manum ei injiciendo), before the prætor, said, HUNC HOMINEM EX JURE QUIRITIUM MEUM ESSE AIO, EJUSQUE VINDICIAS, (i. e. possessionem) MIHI DARI FOSTULO. To which Plautus alludes, Rud. iv. 3. 86. If the other was silent, or yielded his right (jure cedebat), the prætor adjudged the slave to the person who claimed him (servum addicebat vindicanti), that is, he decreed to him the possession, till it was determined who should be the proprietor of the slave (ad exitum judicii). But if the other person also claimed possession (si vindicias sibi conservari postularet), then the prætor pronounced an interdict (interdicebat), QUI

NEC VI, NEC CLAM, NEC PRECARIO POSSIDET, EI VINDICIAS DABO.

The laying on of hands (MANUS INJECTIO), was the usual mode of claiming the property of any person, Liv. iii. 43., to which frequent allusion is made in the classics, Ovid. Epist. Heroid. viii. 16. xii. 158. Amor. i. 4. 40. ii. 5. 30. Fast. iv. 90. Virg. Æn. x. 419. Cic. Rosc. Com. 16. Plin. Epist. x. 19. In vera bona non est manûs injectio; Animo non potest injici manus, i. e. vis fieri, Seneca.