state their case to him, and agree that he shall
arbitrate between them, it being arranged that the loser, besides
resigning the subject of the quarrel, shall pay a sum of money to the
umpire as remuneration for his trouble and loss of time. This
interpretation would be less plausible than it is, were it not that,
by a surprising coincidence, the ceremony described by Gaius as the
imperative course of proceeding in a Legis Actio is substantially the
same with one of the two subjects which the God Hephaestus is described
by Homer as moulding into the First Compartment of the Shield of
Achilles. In the Homeric trial-scene, the dispute, as if expressly
intended to bring out the characteristics of primitive society, is not
about property but about the composition for a homicide. One person
asserts that he has paid it, the other that he has never received it.
The point of detail, however, which stamps the picture as the
counterpart of the archaic Roman practice is the reward designed for
the judges. Two talents of gold lie in the middle, to be given to him
who shall explain the grounds of the decision most to the satisfaction
of the audience. The magnitude of this sum as compared with the
trifling amount of the Sacramentum seems to me indicative of the
indifference between fluctuating usage and usage consolidated into
law. The scene introduced by the poet as a striking and
characteristic, but still only occasional, feature of city-life in the
heroic age has stiffened, at the opening of the history of civil
process, into the regular, ordinary formalities of a lawsuit. It is
natural therefore that in the Legis Actio the remuneration of the
Judge should be reduced to a reasonable sum, and that, instead of
being adjudged to one of a number of arbitrators by popular
acclamation, it should be paid as a matter of course to the State
which the Praetor represents. But that the incidents described so
vividly by Homer, and by Gaius with even more than the usual crudity
of technical language, have substantially the same meaning, I cannot
doubt; and, in confirmation of this view, it may be added that many
observers of the earliest judicial usages of modern Europe have
remarked that the fines inflicted by Courts on offenders were
originally _sacramenta_. The State did not take from the defendant a
composition for any wrong supposed to be done to itself, but claimed a
share in the compensation awarded to the plaintiff simply as the fair
pr