attaching the estate of his debtor, he had still the alternative of incarceration. This might be avoided under the Julian law of cessio bonorum by the debtor's making a complete surrender of his goods to his creditor; but, failing such surrender, incarceration continued to be resorted to even under the legislation of Justinian. During the Empire, of course, it was not by manus injectio that the incarceration was affected; for it went out of use with the definitive establishment of the formular system of procedure.
It was as directed against judgment and nexal debtors that manus injectio was of most importance and chiefly made its mark in history. But there were other cases in which it was resorted to under special statutory authority, where a remedy seemed advisable more sharp and summary than that by ordinary action. In some of these it was spoken of as manus injectio pro judicato (i.e. as if upon a judgment), in others as simple manus injectio (manus injectio pura). In the first the arrestee was not allowed to dispute his alleged indebtedness in person; he could do so only through a vindex; and if no one intervened for him in that character he was carried off and dealt with by his arresting creditor as if a judgment had been obtained against him. In the second he was not required to find a vindex, but might himself dispute the verity of the charge made against him, under penalty, however, as is generally supposed (though it is disputed), of a duplication of his liability if he failed in his contention. By a lex Vallia, probably in the latter half of the 6th century of the city, this manus injectio pura was substituted for that pro judicato in all cases in which the ground of arrest was neither judgment nor so-called depensum, i.e. payment by a surety or other party on account of the true debtor, who failed to relieve the former within six months of such payment.[1]
The Legis Actio per Pignoris Capionem.[2]—In the ritual of the actio sacramenti the vis civilis et festucaria was a reminiscence Per pignoris capionem. of the vera solida vis with which men settled their pignoris disputes about property in the earliest infancy of the commonwealth. Manus 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 English legal term 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 seizure, however, 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, and on a dies nefastus; 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, nearly all of which seem to be given by Gaius,[3] and all of them being of a military, religious or fiscal character. What was the procedure, and what its effects, are far from certain. Jhering, founding on some expressions of Cicero's, conjectures that, whether the debt was disputed or not, the distrainer could neither destroy nor 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 arbitrament no other process of law was open,—with the additional advantage that it secured instant satisfaction to the raiser of it in the event of the question being determined 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.[4]
Judicial or Quasi-Judicial Procedure outside the Legis Actiones.—Whatever may have been the extent of the field covered by the Procedure outside legis actiones. actions of the law, they did not altogether exclude other judicial or quasi-judicial agencies. The supreme magistrate was frequently 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 continuance of a state of matters that might prove prejudicial to family or individual interests. The process was not an action, with its stages in jure and in judicio, but an inquiry (cognitio) conducted from first to last by the magistrate himself; and his finding, unless it was a dismissal 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 imprisonment. 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 possessor interdict uti possidetis; and, although opinions differ as to whether protection of the better right or prevention of a breach of the peace was what primarily influenced the magistrate's intervention, there is, apart from some distinguished exceptions, 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, on complaint made to 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 regulations of the Rutilian edict. These are to be taken merely as examples of this magisterial intervention, which manifested itself in very various directions; and it is easy to see how largely such procedure 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 (indices decemviri), whose persons were declared as inviolable as those of the tribunes of the people and the plebeian aediles. These were, it is generally supposed, a body of judges elected to officiate on remit from a tribune or aedile 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 judgments. It is not much referred to by the historians; and its decadence has been attributed to the fact that the Lex Hortensia of 287 B.C. made the nundinae lawful court-days (dies fasti), and so made it possible for the country folk coming to the city to market to carry on their processes before the praetor. It has also been identified by some writers[5] with the decemviri stlitibus judicandis, whose jurisdiction has been already noticed (supra, p. 536).
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 gentes 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[6] was materially narrowed,
- ↑ On manus injectio pro judicato and pura, see Gaius, iv. 22-25.
- ↑ To the literature on p. 548, note 1, add Degenkolb, Die Lex Hieronica (Berlin, 1861), pp. 95 seq.; Jhering, Geist d. röm. Rechts, vol. i. § 11c; Voigt, XII. Tafeln, i. 502 seq.; Girard, Manuel, pp. 977 seq.; Wlassak, Processgesetze, i. 252 seq. For a comparative view, see Maine, Early Institutions, pp. 275 seq.; Jenks, Law and Politics in the Middle Ages, pp. 263 seq.
- ↑ For a case not mentioned by Gaius, see Girard, Textes, 3rd ed. p. 122; Bruns, Fontes, 5th ed. p. 181.
- ↑ Cf. Gaius, iv. § 32. This would be according to the spirit of the early system, which endeavoured to check reckless or unfounded litigation by penalties,—e.g. forfeiture of the summa sacramenti and duplication of the value of unrestored property and profits in the sacramental procedure; duplication of the value of the cause when judgment was against the defendant in an action upon an engagement embodied in a lex mancipii or lex nexi; 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 where a debtor was found liable in an actio certae creditae pecuniae (Gai. iv. 171), &c.
- ↑ See Voigt, Röm. Rechtsgeschichte, i. Beilage i.; contra, Wlassak, Processgesetze, i. 144 seq.
- ↑ See Cauvet, Le droit pontifical chez les anciens Romains (Caen, 1869); Bouché-Leclerq, Les pontifes de l'ancienne Rome (Paris, 1871); Marquardt, Röm. Staatsverwalt. iii. 290 seq.
