12 George E. Hoivard, 



tanca. And the forms of Roman judicial process for many 

 centuries bore witness to their origin in an age when viola- 

 tions of the peace were not thought of as injuries to the state, 

 and when self-help was the only means for preserving order. 



The most interesting examples of the archaic ceremonial 

 of Roman law are preserved in the legis actiones. The legis 

 actio sacravienti} " the undoubted parent of all the Roman 

 actions, and consequently of most of the civil remedies now 

 in use in the world," ^ is the exact analogue, with regard 

 to the point under consideration, of the Homeric trial just 

 considered. But here the function of the state as arbiter is 

 much more developed. Here the praetor, before whom 

 the issue is joined, and the decemviral court, before which 

 the final trial occurs, are the agents of the state, as were the 

 " gerontes " in the former instance. The action is for the 

 recovery of land or other property and takes the form of a 

 wager. It is especially interesting as evidence, that early 

 judicial procedure grew out of and preserved the semblance 

 of a personal quarrel. In the various steps of the sacramen- 

 tal action is preserved in symbolical form the whole history 

 of the mode of settling disputes : the violent struggle, the 

 casual interference of a third party — in this case the prae- 

 tor, the resort to an arbiter — the decemviral court, and the 

 deposit of a sacramentiun to be forfeited by the loser ; the 

 latter foreshadowing the modern sanction of the law.^ 



Many other traces of self-redress are preserved in the 

 Roman law. Originally "if a man had sustained from an- 

 other any serious personal injury, he was entitled to demand 

 an eye for an eye, and a tooth for a tooth" ; and "the nearest 

 agnate was the person to whom the duty of exacting this 

 vengeance pertained."^ If a man's goods were stolen and "he 



1 Poste's Gains, IV, §§ 13-17, pp. 495-7. 



- Maine, Early History of Institutions, 252. See his discussion of the sacra- 

 mental action, lb., chap. IX; Ancioit Law, 362-5. 



3 Cf. Hearn, Aryan Household, 435-6; Poste's 6'a:n«, 497-8; Hadley, j^(?;«a« 

 Law, 78-85; Muirhead, Hist. Int. to Private Law of Rome, 186-97; Lange, 

 Ro/tiische Alterthiimer, I, 168, 356, 368; Puchta, Institiitionen, I, 469-74; Ru- 

 dorff, Romische Rechtsgeschichte, II, 77 ff. * Hearn, Aryan Household, 440. 



246 



