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Almost every gesture and almost every set of formal words in
the Legis Actio Sacramenti symbolise something which； in some
part of the world or another； in some Aryan society or another；
has developed into an important institution。 The claimant places
his hand on the slave or other subject of dispute； and this grasp
of the thing claimed； which is reproduced in the corresponding
procedure of the ancient Germans and which； from them； was
continued in various modified forms far down into the Middle
Ages； is an early example of that demand before action on which
all civilised systems of law insist。 The wand； which the claimant
held in his hand； is stated by Gaius to have represented a spear；
and the spear； the emblem of the strong man armed； served as the
symbol of property held absolutely and against the world； not
only in the Roman but in several other Western societies。 The
proceedings included a series of assertions and reassertions of
right by the parties； and this formal dialogue was the parent of
the Art of Pleading。 The quarrel between plaintiff and defendant；
which was a mere pretence among the Romans； long remained a
reality in other societies； and； though its theory was altered；
it survived in the Wager of Battle which； as an English
institution； was only finally abolished in our fathers' day。 The
interposition of the Praetor and the acceptance of his mediation
expanded into the Administration of Justice in the Roman State；
one of the most powerful of instrumentalities in the historical
transformation of the civilised world。 The disputants staked a
sum of money the Sacramentum； from which the proceedings took
their name on the merits of their quarrel； and the stake went
into the public exchequer。 The money thus wagered； which appears
in a singularly large number of archaic legal systems； is the
earliest representative of those Court…fees which have been a
more considerable power in legal history than historians of law
are altogether inclined to admit。 The very spirit in which a
Legis Actio was conducted was that which； in the eyes of laymen；
has been most characteristic of lawyers in all historical times。
If； Says Gaius。 you sued by Legis Actio for injury to your vines；
and called them vines； you would fail； you must call them trees；
because the text of the Twelve Tables spoke only of trees。 The
ancient collection of Teutonic legal formulas； known as the
Malberg Gloss； contains provisions of precisely the same
character。 If you sue for a bull； you will miscarry if you
describe him as a bull； you must give him his ancient juridical
designation of 'leader of the herd。' You must call the forefinger
the 'arrow'…finger； the goat the 'browser upon leeks。' There are
lawyers alive who can recollect when the English system of
Special Pleading； now just expiring； was applied upon principles
not remotely akin to these and historically descended from them。
The description given by Gaius of the Legis Actio Sacramenti
is followed by a lacuna in the manuscript。 It was once occupied
with an account of the Judicis Postulatio； which was evidently a
modification of the older Sacramental Action by which this
ancient remedy was adapted to a particular class of cases。 The
text of the treatise begins again with a description of the
Condictio； which is said by Gaius to have been created； but which
is believed to have been only regulated； by two Roman statutes of
the sixth century of Rome the Lex Silia and the Lex Calpurnia。
The Condictio； which afterwards developed into one of the most
useful of the Roman actions； originally derived its name from a
notice which the plaintiff gave the defendant to appear before
the Praetor in thirty days； in order that a Judex or referee
might be nominated； and immediately （as I myself think） on this
notice being given； the parties entered into a 'sponsio' and
'restipulatio；' that is； they laid a formal wager （distinct from
the stake called Sacramentum） on the justice of their respective
contentions。 The sum thus staked； which was always equal to a
third of the amount in dispute； went in the end to the successful
litigant； and not； like the Sacramentum； to the State。 Lawyers
wondered； Gaius tells us； that such an action should be needed
when property could have been recovered by the older and
unmodified procedure。 Many technical answers to this question
have been given by modern commentators on Roman law； but we will
see whether a better explanation of it cannot be obtained by
approaching it from another side。
Gaius； leaving the Condictio； proceeds to discuss two of the
Legis Actiones； the Manus Injectio and the Pignoris Capio； which
cannot be made to square in any way with our modern conception of
an action。 The Manus Injectio is expressly stated to have been
originally the Roman mode of execution against the person of a
judgment debtor。 It has considerable historical interest； for it
was undoubtedly the instrument of the cruelties practised by the
Roman aristocracy on their defaulting plebeian debtors； and thus
it gave the first impetus to a series of popular movements which
affected the whole history of the Roman Commonwealth。 The
Pignoris Capio also； possibly under a slightly altered name； was
a mode of execution in later times against property after decree；
but this was not its original purpose as a Legis Actio。 It was at
first a wholly extra…judicial proceeding。 The person who
proceeded by it seized in certain cases the goods of a
fellow…citizen； against whom he had a claim； but against whom he
had not instituted a suit。 The power of seizure could be
exercised by soldiers against public officers bound to supply
them with pay； horse； or forage； and it could also be resorted to
by the seller of a beast for sacrifice against a defaulting
purchaser。。 It was thus confined to claims of great urgency or of
highly sacred obligation； but it was afterwards extended to
demands for overdue arrears of public revenue。 I am indebted to
Mr Poste for the observation that the ideal institu