It would not only be foreign to the purpose of this work to enter more minutely into a discussion of the Roman actio, but it would require more space than can here be afforded, since in Savigny's System there are more than a hundred different species of actio men tioned, and even in the succinct treatise of Mackeldey nearly eighty are enumerated.
In addition to the works cited in passing may be added the Introduction to Sander's Justinian, which may be profitably consulted by the student.
6. To this brief explanation of the most import ant classes of actionee we subjoin an outline of the Roman system of procedure. From the time'of the twelve tables (and probably from a much earlier period) down to about the middle of the sixth cen tury of Rome, the system of procedure was that known as the actionee legie. Of these but five have curie down to us byname: the actio sacra menti, the ctetio per judicie poetulationem, the actio per e5udietionem, the actio per manna injectioncm, and the actio per pignoris capionem. The first three of these were actions in the usual sense of the term; the last two were modes of execution. The actio eacramenti is the best-known of all, be cause from the nature of the questions decided by means of it, which inoluded those of statue, of pro perty ex jure Qairitium, and of successions ; and, from the great popularity of the tribunal, the cen eumviri, which had cognizance of these questions, '3 was retained in practice long after the other actions had succumbed to a more liberal system of prooedure. As the actio eacramenti was the longest lived, so it was also the earliest, of the actionee leqee; and it is not only in many particulars a type of the whole class, but the other species are conceived to have been formed by successive encroachmeutd upon its field. The characteristic feature of this action was the eacramentum, a pecuniary deposit made in court by each party, which was to be for feited by the loser. Subsequently, however, tho parties were allowed, instead of an actual deposit, to give security in the amount required. Our knowledge of all these actions is exceedingly slight, being derived from fragments of the earlier jurisprudence preserved in literary works, labo riously pieced together by commentators, and the numerous gaps filled out by aid of ingenious and most copious conjectures. They bear all those
marks which might have been expected of their origin in a barbarous or semi-barbarous age, among a people little skilled in the science of ju risprudence and having no acquaintance with the refined distinctions and complex business trans actions of civilized life. They were all of that highly symbolical character found among men of rude habits but lively imaginations. They abounded in sacramental words and significant gestures, and, while they were inflexibly rigid in their application, they possessed a character al most sacred, so that the mistake of a word or the omission of a gesture might cause the loss of a suit. In the nature of things, such a system could not maintain itself against the advance of civiliza tion, bringing with it increased complications in all the relations of man to man ; and accordingly we find that it gradually, but sensibly, declined, and that at the time of Justinian not a trace of it existed in practice. See 3 Ortolan, Justinian, 467 et eeg.
6. About the year of Rome 507 began the in troduction of the system known as the procedure per formulam or ordinaria judicia. An import ant part of the population of Rome consisted of foreigners, whose disputes with each other or with Roman citizens could not be adjusted by means of the actionee &gee, these being entirely confined it questions of the strict Roman law, which could only arise between Roman citizens.
To supply the want of a forum for foreign resi. dents, a magistrate, the prietor peregrinue, was con. stituted with jurisdiction over this class of suits, and from the procedure established by this new court sprang the formulary system, whioh proved so convenient in practice that it was soon adopted in suits where both parties were Roman citizens, and gradually withdrew ease after case from the domain of the legie actionee, 'until few questions were left in which that cumbrous procedure con. tinned to be employed.