Professional Documents
Culture Documents
H E L D AT P H I L A D E L P H I A
FOR PROMOTING USEFUL KNOWLEDGE
ENCYCLOPEDIC DICTIONARY
OF ROMAN LAW
ADOLF BERGER
City College, New York
and
I N D E P E N D E N C E SQUARE
PHILADELPHIA 6
PREFACE
The idea of preparing a Dictionary of Roman Law which, even in our own day, is the foundation and the
in encyclopedic forin came to my mind soon after my intellectual background of the law of a large part of the
arrival in the United States, as I became more familiar world.
with the status of Roman Law in American schools and N o one is more aware of the deficiencies of a work of
legal ~vriting. T h e idea grew further while I was work- this kind than the author himself. T h e selection of the
ing with my friend, Professor A. Arthur Schiller of entries from all the domains of Roman Law, the rnain-
Columbia University School of Law, on a con~pletebib- tenance of a proper proportion in presenting the various
liography of the Romanistic literature published in Eng- topics without concessions to those more familiar or
lish since 1939. I t became increasingly clear to me that more interesting to the author personally, and the neces-
man). a reader must encounter great difficulties in under- sity of remaining within the limits of a single volume,
standing tlie technical language of papers concerned with all created embarrassing difficulties. F o r the principles
Roman Law. The severely restricted place occupied by of selection and organization finally adopted, the reader
Roman Law in college and university curricula has pro- is referred to the Introduction.
duced a situation in-which it is entirely true that R O - Preparation of the Dictionary would not have been
., possible if the American Philosophical Society had not
That I finally undertook the work, despite a variety been generous with renewed grants-in-aid froin the very
of difficulties, may be attributed in large measure to the beginning of the project. I wish to express my deepest
warn1 encouragement I received from scholars in various gratitude to the Society for this assistance and encour-
fieltls of Roman antiquities. They approved iny plan agement and for accepting the Dictionary for publica-
enthusiastically and stressed tlie usefulness of a diction- tion in its Transnctiol~s.
ary as I conceived it, designed for teachers and students I am further gratefully indebted to the Mid-European
of Roman Law in the classroom, for students of legal Studies Center of the National Committee for a Free
history ~ v h ohave no or only little Latin, and for readers Europe for the helpful interest it took in my work in its
of juristic or literary Latin works in translations which later stages. Thankful mention mukt also be made of
not al\va!.s are relialde when legal terms or problems the Social Science Research Council for grants in the
are involved. I n particular, the idea of an encyclopedic years 1946 and 1949.
dictionary with extensive bibliographies met with the Invaluable assistance was rendered by several col-
approbation of everyone consulted. leagues who assuined the tedious task of polishing the
NOW, after several years of intensive work, after sev- n~anuscriptlinguistically and stylistically. My most sin-
eral decades of study'and research in my c1;osen field. cere thanks are due Professors M. I. Finley of the New-
I may he permitted to offer this Dictionary to all who ark College of Rutgers University, Jacob Hammer of
are interested in ancient Rome's legal institutions, Hunter College, Lionel Casson of New York Univer-
sources, history, and language, to scholars and students, sity, and Naphtali Lewis of Brooklyn College for the
both beginners and those more advanced, with the wish service they have rendered to me in true friendship.
and hope that the cupidn lcgunz izrzlcrrtzts may include A. B.
in its desire for kuotvledge of the law that legal systenl S e \ v York, June 15, 1952
MALVAE
CONTENTS
PACE
PACE
Ir~trotluctiott ........................................... 335
VIII. Christianity and Roman Law .................. 796
tions) ...................................788
X I I I . Interpolations in Justinian's legislative work . . . 801
INTRODUCTION
This Dictionary has several purposes: to explain tech- All the more important entries are encyclopedic as
nical Roman legal terms, to translate and elucidate those well as lexicographical. That is to say, an attempt has
Latin words which have a specific connotation when been made in each case to depict as succinctly as pos-
used in a juristic context or in connection with a legal sible, the historical development of the legal institution
institution or question, and to provide a brief picture of or term it defines, the use of certain words in the lan-
Roman legal institutions and sources as a sort of a first guage of the jurists or the imperial chancery, and par-
introduction to them. ticular attention has been given to important substantial
The objectives of the work, not the juristic character changes from early law to classical law and again in the
of available Latin writings, therefore, determined the reforms of Justinian. Additional matter is indicated
inclusion or exclusion of any single word or phrase. by cross-references, printed in small capitals. Analo-
Since the Dictionary is not intended to be a complete gous terms and institutions are also noted by small capi-
Latin-English dictionary for all words which occur in tals, sometilnes in the body of the text, sometimes at the
the writings of the Roman jurists or in the various codi- end of an entry. (As a matter of course, with a few
fications of Roman law, the reader must consult a gen- exceptions, every Latin word used to explain or illus-
era1 Latin-English lexicon for ordinary words that have trate a term has its own entry even when that fact is
no specific meaning in law or juristic language. I n this not specifically indicated by the use of small capitals.)
respect, as in others, the present work differs funda- Synonyms and antonyms are indicated in many entries.
mentally from Heumann's Handlexikon zu den Quellen Considerable attention has been given to the sources
des romisclzen Rechts (in the excellent edition by Emil themselves. A large number of entries are devoted to
Seckel, 1907). On the other hand, numerods entries them, ranging in time from the archaic regal ordinances
concern words and phrases which occur only in non- (the leges regiae) to Justinian's codification, and, in
juristic sources, literary writings or inscriptions, but more limited measure, to post-Justinian Byzantine and
which must, nevertheless, receive attention if the Dic- medieval writings and collections of laws. Basic defi-
tionary is truly to survey all fields of the vast province nitions, legal rules of fundamental importance, and char-
of Roman law; private, criminal, public, administrative, acteristic utterances of the jurists are given in literal
sacral, and military law, taxation, etc. Many entries, translations within quotation marks, followed by a cita-
furthermore, deal with Latin terms of medieval or mod- tion of the pertinent source. Titles of the Institutes,
ern coinage, unknown to the ancient Romans, but now Digest and Justinian's Code or Novels that deal ex pro-
widely accepted in the Romanistic literature. fesso with a specific topic are noted at the end of the
335
entry. Substantial interpolations by which classical in- The secoild part of the bibliographical apparatus is
stitutions and terms were eliminated as well as the the specialized section, scattered throughout the Dic-
more reliable linguistic criteria have been taken into tionary among the individual entries. Here, too, the
consideration. aim was to satisfy both the beginner and the expert.
First place has been assigned to the renowned encyclo-
BIBLIOGRAPHY
pedias : the Reale~zzyklopaedie der klassisclzet~ Alter-
T h e extensive bibliographical apparatus is intended tumsm'ssenschaft ( R E ) of Pauly, Wissowa, Kroll et al.,
for a \vide circle of readers. F o r that reason, space has the Dictionnaire des antiquitis grecques et rowlai~zesof
been given to publications in English, many of which Daremberg and Saglio ( D S ) , the ATuovo Digesfo Ita-
nlay be unknown to the international guild of Romanists, liano ( N D I ) , De Ruggiero's Dizionario epigrafico ( D E )
at the same time that works in other languages are fully and the very recent Oxford Classical Dictiorzauy ( O C D ) .
represented in the interest of readers in other countries Then come the special monographs, periodical articles,
and of students and research workers who have a mas- ess~ys4itr,volumes published in honor of, or in memory
tery of other languages. Stress has been primarily of distinguished scholars, congress publications, anni-
placed on the international Romanistic literature of the versary papers, and the like. Frequent reference has
twentieth century. Earlier works are cited only when been made to doctoral dissertations in vaiious languages,
they have remained standard treatments or did not lose since at the very least they provide good bibliographies.
their importance despite later publications. All recent O H rare occasions special attention is drawn to reliable
puhlicatioiis have been taken into account in so far as bibliographical references collected in other papers. I n
they were available. A few books that were not acces- general, a n effort has been made in the individual bibli-
sible to the author 'have been included after their useful- ographies to indicate appropriate sections within a larger
nrss was ascertained by correspondence with scholars work o r publications whose titles do not suggest a dis-
abroad. cussion of the entry concerned. When the index word
T o insure completeness and at the same time to avoid is mentioned in the bibliography it is frequen'tly ahbre-
\vasteful duplication, the bibliography was divided into viated to the initial letter.
t\vo distinct parts. A General Bibliography in twenty Bibliographical omissions are unavoidable even when
clia~)tersaappearsas a I~lockat the end of the Dictionary. remarkable papers are involved. I am confident, how-
I t comprises textbooks and comprehensive general pres- ever, that the selections scrupulously compiled will en-
entations, which as a matter of rule are not repeated in able the reader to find without any difficulty the litera-
the I)ibliographies appended to the single entries, and ture left out in this book.
literature concerning general problems of the develop-
ment of Roman law, the sources and their editions, and GLOSSARY
the influence of Roman law on modern legal systems. A selected English-Latin Glossary is appended for the
The Anglo-American reader will find Chapter X, "Ro- benefit of readers who have little or no familiarity with
inan Law ant1 the Anglo-American World" of special Latin legal terminology. I t includes the more impor-
interest. It is a first attempt to provide an extensive tant terms in English whose Latin counterparts are not
11il)liographp of works and articles on the part played by virtually the same. Thus, "sale" or "lease" are in-
Roman law in the development of the common law and cluded, but not "senate" or "consul," "formula" o r "ex-
on the value of the study of Roman law in countries in ceptio." Terms connected with administration are gen-
the sphere of Anglo-American law. Chapter X I V on erally omitted. The Latin words of the Glossary are
Iioman law in non-juristic sources, Chapter V I on the covered by pertinent entries in the Dictionary proper
legal policies of the emperors, and Chapter X I concerned together with the cross-references. Thus the reader
with the literature on the place of Roman law in legal will have the opportunity to become acquainted not only
education, are also first attempts at systematic bibli- with the term itself but also its legal significance and
ograpliic treatment. applications.
L I S T O F ABBREVIATIONS
A B a y A l t ' . Ahhandltrngrn drr Baycrischrn Akadenzie dcr W i s - AitBari. Annali dclla Fncoltci d i ~irrrisprrrdr~tza dcll' Ilniz,cr-
srttschafteit (Munich). sitd di Bari.
A C D R . ,l!ti tiel Cottqrrsso Intcrnosionale di diritto rolnaiio, AitCam. Annali dell' lini71crsitd d i Catnrririo. Scziottc yiuridicn.
1933; Bologt~a 1-2. Roma 1-2 (1934, 1935). AnCat. Annuli dcl Scnzinario giuridico dcll' Uniztcrsitci d i
.4C/Vpr, A t t i dcl Congrcsso Internasionalc di diritto vomano Catania.
r di s / o r i ~ tic1l diritto, Vcrnna, 1948; vol. 1 ff. (in press). AnGrcn. Anttalcs tlc l'Uiti?~crsitt;dc Guriiohlr. Scction L r t -
A C S R . A t t i dci Cott(lrrs.~iNazionali di S t u d i Rontarti. trrs, Droit.
A D O - R I D A ; see 1211),4. A n h f a c . Annuli dcll' Univcrsit2 di Il.lacrrntn.
A e g . Argyptus. I Z i ~ ~ i s titaliana
a di rgittologia c di fiapirolo!~in. AltMes. Annali dcll' Insfituto drlle Scicnsc giuridiclze dell'
A G . Arrhivio giliridico. l l n h ~ c r s i f ddi Mrssiita.
A H D E . Anuario tlc IIistoria dcl Drrrcho Espar701 ( M a d r i d ) . A ~ t P a l . Annali drl Srminario gittridiro dell' Universitd di
A n ~ l l ' h i l o l . .4,n~rican Journal of Philolo!ly. Palerrno.
A N a p . A t t i dell' Accnd~ntitrtii S c i ~ t t s emorali r politichc dclla A n P r r . Annali dcll' Istittcto gittridico dcll' Clniz~crsitd di
Soripfa Rcalr di ,lJapoli. Prruyia.
VOL. 43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 33 7
A n T r . Annuli Triestini di diritto, cconomia e politica ( a cura Mn. Mnemosyne. Bibliotheca philologica Batava.
dell' Universiti di Trieste) . Mous. Mouseion. Rivista di scienze classiche (Naples).
Ant. Antonym. N D I . Nuovo Digesto Italiano.
AntC1. Antiquitk Classique (Brussels). Nov. Novellae Instiniani.
APad. Atti dell' Accademia scientijca di Padova. N R H D . Nouz~elle R m e historique de droit franfais et
A P r A W . Abhandlungen der Preussischen Akademie der W i s - itranger (since 1922 Revue historique etc. = R H D ) .
senschaften in Berlin, philosophisch-historische Klasse. OCD. T h e Oxford Classical Dictionary.
A r C P . Archiv fiir civilistische Praxis. PBritSR. Papers of the British School at Rome.
ArPap. Archiv f u r Papyrusforschung. PubMod. Pubblicaaioni della Facoltd di giurisprudenza di
ASochGW. Abhandlungen der Sachsischen Gesellschaft der Modena.
Wissenschaften in Leipzig, philosophisch-historkche Klasse. R A C . Reallexikon fur Antike und Christentum.
Ath. Athenaeum. Studi periodici di leftere, e storia dell' an- R B S G . Rassegna bibliografica delle scienze giuridiche, sociali
tichitci ( Pavia). e politiche.
ATor' Atti dell' Accademia delle Scienze di Torino. RDCiv. Rivista di diritto civile.
AVen. Atti dell' Istituto Veneto di Scienze, Lettere ed Arti. RDCom. Rivista di diritto commerciale.
BerSachGW. Berichte der Sachsischen Gesellschaft der W i s - R D N a v . Rivista di diritto di navigazione.
senschaften, Leipzig, philosophisch-historkche Klasse. R E . Realenzyklopadie der klassischen A l t e r t u ~ ' s s e n s c l t a f t ,
Bibl. Bibliography. ed. Paully, Wissowa, Kroll, Mittelhaus, and Ziegler.
B I D R . Bt~llettinodell' Istituto del diritto romano. Rec. Recueil.
C . Codex Justinianus.
RendBol. Rendiconti dell' Accademib delle Scienze e Lettere
CambLJ. Cambridge Lazo Journal.
dell' Istituto di Bologna, Classe di science morali.
CewtCodPav. Per il X I V Centenario della codijcazione giusti-
RendLinc. Rendiconti dell' Accademia dei Lincei.
nianea. Studi pubblicati dalla Facoltd di giurisprudenza di RendLomb. Rendiconti dell' Istituto Lombardo di Scienee e
Pavia, 1934. Lettere.
C1J. Classical Journal. R H D . Revue historique de droit frangais et dtranger (since
ClMed. Classica et Medievalia (Kopenhagen) . 1922 continuation of N R H D ) .
ClPhilol. Classical Philology. R I D A . Revue internationale des droits de l'antiquitd. Since
ConfCast. Conferenze romanistiche tenute nell' Univ. di Pavia 1952 published under the title: Archives d'histoire du droit
rtell' anito 1939 a ricordo di G. Castelli, Milano 1940. oriental et Reaue internafionale des droits de l'antiquitt (=
Conflnst. Confkrences faites d l'lnstitut de droit rom. en 1947, ADO-RIDA).
Paris 1950. R I S G . Rivista italiana per le scienze giuridiche.
ConfMil. Conferenze pel X I V Centenario della Pandette, Milan, R S t D I t . Rivista di storia del dirittto italiano.
1931. SbBerl. Sitzungsberichte der Preussischen Akademie der W i s -
C R A I . ComptesRendus de l'dcadkmie des Inscriptions et des senschaften Berlin, philosophisch-historische Klasse.
Belles Lettres. SbHeid. Sitzungsberichte der Heidelberger Akadefnie der W i s -
CristDirPriv. Cristianesimo e diritto privato. Pubblicazione dell' senschaften, phi1.-hist. Klasse.
Universitd del Sacro Cuore, Milan, 1935. SbLeipz. Sitzungsberichte der Sachsischen Gesellschaft der
D. Digesta Iustiniani. Wissenschaften i n Leipzig.
DE. Dizionario epigrafico di antichitd romane, ed. E. De
Ruggiero. SbMunch. Sitzungsberichte der Bayrischen Akademie der W i s -
D S . Dictionnuire des antiquitks grecques et romaines, ed. Ch. senschaften, Munchen, Phil.-hist. Klasse.
Daremberg and E. Saglio. SbWien. Sitzungsberichte der Akademie der Wisse~tschafterz
Et. etudes. Wien, phi1.-hist. Klasse.
Fg. Festgabe. Scr.--Scritti.
Fil. I1 Filangieri. S D H I . Studia et documenta historiae et iuris.
F I R . Fontes Iztris Romani Anteiustiniani, ed.' Riccobono, Ba- Sem. Seminar. An annual extraordinary number of The Jurist
viera, Ferrini, Furlani, Arangio-Ruiz, 1-3 (Florence, 1940- (Washington, D. C.) .
1943). St. Studi (in onore, in memoria, and the like with the name
Fr. Vat. Fragmenta Vaticana. of the scholar honored).
Fschr. Festschrift. StDocSD. Studi e documenti di storia e diritto.
G G A . Gottingische Gelehrte Anzeigen. StCagl. Studi economico- giuridici dell' Universitd di Cagliari.
GrZ. Griinhut's Zeitschrift fur das Gffentliche und Privatrecht StPav. Studi nelle scienze giuridiche e sociali dell' Istituto di
der Gegenwart. esercitazioni presso la Facoltd di giurisprudenza dell' Univer-
Her. Hermes. sitd di Pavia.
Hist. Historia. Studi storici per I' antichitd classica (Milan). StSas. Studi Sassaresi.
IhJb. Ihering's Jahrbucher fur die Dogmatik des heutigen StSen. Studi Senesi.
romischen und deutschen Privatrechrs. StUrb. Studi Urbinati.
Inst. Institutiones Iustiniani. Symb. Symbolae.
J R S . Journal of Roman Studies. TAmPhilolAs. Transactions of the American Philological
JurR. Juridical Review. Association.
K1. Klio. Beitrage zur alten Geschichte. Syn. Synonym.
K r V j . Kritische Vierteljahresschrift f u r Gesetzgebung und
Rechtm'ssenschaft. T R . Tijdschrift voor Rechtsgeschiedenis (= Revue &Histoire
de droit ( Haarlem-La Haye).
L Q R . L a w Quarterly Review.
~ e ' l .~6langes. Trad. Traditio. Studies i n Ancient and Medieval History,
MemBol. Memorie dell' Accademia della Scienze e Lettere dell' Thought and Religion (Washington, D. C.) .
MemLinc. Memorie delP Accademia dei Lincei. Varia. Varia. Etudes de droit romain. Publications de I' Institut
MemLomb. Memorie dell' Istituto Lombardo di Scienzc e de droit romain de PUniversiti de Paris, 1952.
Lettere. Z S S . Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte,
MemTor. Mentorie dell' Istituto giuridico dell' Uniz+ersitd d i Romanistische Abteilung.
Torino. Z V R . Zeitschrift fiir vergleichende Rechtswissenschaff.
in more complicated legal and governmental matters.
A. Abbreviation for absolvo written by judges of crim- Later his title was magister a studiis. A similar
inal courts (see QUAESTIONES) on wooden
tablets (see office may have been that of the a consiliis.
Kiibler, R E 4A, 397; Chapot, DS 4, 1546; 0. Hirschfeld,
TABELLAE)to indicate a vote for acquittal. See Kaiserl. Verwaltungsbeamtez (1905) 332; Bersanetti, Epi-
ABSOLUTIO. A condemnatory vote was expressed by graphic~9 (1947) 56.
nal matters submitted to the popular assemblies (see A b epistulis. The director of the imperial secretariat
COMITIA) the abbreviations used were : L = libero for which was subdivided into two departments, one for
acquittal, and D = datnno for condemnation. The Latin (ab epistulis Latinis) and one for Greek letters
abbreviation NL ( = non liquet) meant that the case (ab epistulis Graecis). The office was concerned with
was not clear to the voter.-See LIQUERE. the private and official correspondence of the emperor,
A. Abbreviation for antiquo, written by the partici- in both civil and military matters, and also with the
pants in a popular assembly (see COMITIA) on wooden appointment of military officers.--See EPISTELA,
tablets, indicated a vote against the proposed bill. S C R I N I U M EPISTULARUM.
Antiquo = I leave it in the ancient state, I reject. Rostowzew, R E 6, 210; Bloch, D S 2, 712; De Ruggiero,
On the contrary, the abbreviation UR = uti rogas DE 2, 2133.
(as you propose) was used for an affirmative vote. Ab intestato. See INTESTATES.
-See LEX,ROGATIO. Abactor. See ABIGEUS.
A, ab. These prepositions appear in the official titles Abactus. A magistrate forced to resign his office by
of the heads of certain divisions in the imperial chan- the decision of a popular assembly.-See LEX SEM-
cery; see the following items. Some of these officials PRONIA DE ABACTIS.
A censibus. An official of the imperial chancery Abalienare. See ALIENATIO.The term is used pri-
charged with the examination of the financial situa- marily of alienations through MANCIPATIO.
tion of persons who aspired to admission to the sena- Berger, Kritische Vierteljahresschr. fur Gesetsgebutzg und
Rechtm'ss. 14 (1912) 414; De Visscher, Rcv. Etudes
torial or equestrian rank. Such admission depended Lafines 1936, 130 (= Nouvelles Etwdcs, 1949, 257).
upon the possession of a considerable property.-See Abdicatio. Renunciation, abandonment. I n private
CENSUS, O R W SENATORIUS, EQUITES. law, the term is used of the renunciation of an inheri-
Kalopothakes, DE 2, 114.
tance or a guardianship (abdicatio tutelae). The
A cognitionibus. The chief of the division of the abandonment of a child (abdicatio liberorunz) by the
imperial chancery concerned with judicial matters.- head of a family (pater fanzilias) was forbidden by
See COGNITIO. the law, as expressly stated by Diocletian (C. 8.46.6),
De Ruggiero, LIE 2, 320; v. Premerstein, R E 4, 220.
but was nevertheless practiced. In public law abdi-
A commentariis. See COMMENTARII, COMMENTARI-
catio indicates the resignation of a magistrate or an
EXSIS. imperial official from his post.-See EXPONERE
A consiliis. See A STEDIIS. LIBERUM.
A diplomatibus. See DIPLOMA. Leonhard, R E 1 ; Neumann, R E 1 ; Humbert, DS 1 ; for
A libellis. The head of the division of the imperial abdicatio tutelae: Perozzi, RettdBol 1918/9 (= Scritti 3,
chancery which dealt with all kinds of petitions ad- 215) ; Solazzi, RcndLotnb 51 (1918) 873; idem, St. Pavia
6 (1921) 116; Sachers, R E 7A, 1532; for abdicatio libero-
dressed to the emperor. His later title was 11lagister rutit: Dull, Z S S 63 (1943) 71.
1ibellorutn.-See LIBELLUS. Abigeatus. Cattle stealing (rustling) from a stable or
ThCdCnat, D S 3, 1174; v. Premerstein, R E 13, 15.
pasture. Unlike an ordinary theft (see FURTUM)it
A memoria. A high official of the imperial chancery was prosecuted as a public crime (see C R I M I N A PUB-
who prepared the drafts for the emperor's public LICA) and punished- more sever~ly.-D. 47.14; C.
allocutions. 9.37.
Bloch, DS 2, 723; Fluss, R E 15, 655. Hartmann, R E 1 ; Humbert, U S 1 ; Berger, Sem 2 (1944)
A rationibus. The head of the division of the imperial 23.
chancery which was concerned with the emperor's Abigeus. A cattle thief, a rustler. Syn. abactor.-See
financial matters and the control of the fiscal admin- ABIGEATUS.
istration throughout the whole empire. From the Abiurare. T o deny a debt on oath ; to hold back fraud-
time of Claudius he was an official of the state and ulently.-See IUSIURANDUM.
not an imperial functionary.-See PROCURATOR A Wlassak, R E 1 ; D. Daube, Studies i9t biblical law, 1947,
RATIONIBUS, RATIONES.
229.
A studiis. An imperial official (from the middle of Abolitio. (From abolere.) I n penal law, the annul-
the first century) somewhat connected with the em- ment of an accusation and consequently of the whole
peror's judicial activity, probably his special counsel trial through deletion of the name of the individual
138
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC D I C T I O NARY O F ROMAN LAW 339
charged with a crime from the list of accused persons. be concluded inter absentes by means of a letter
See ACCUSATIO. Abolitio publica ( = general aboli- (epistula) or a messenger (nuntius) .-In Justinian's
tion) was ordered by the emperor on the occasion of rules on LONGI TEMPORIS PRAESCRIPTIO, inter prae-
some happy event or of thanksgiving festivities (gratu- sentes means that the owner of the immovable and the
latio). Withdrawal of the accusation by the accuser factual possessor live in the same province. Ant. inter
(desistere) or his death produced abolitio. Aboleri absentes.-See COMMEATUS, STIPULATIO I N T E R 4B-
= extinction of the right of suing or prosecuting a SENTES.
person in civil or criminal matters.-D. 48.16; C. Wlassak, R E 1 ; Guarneri-Citati N D I 1 (s.7,. assenza).
9.42 ; 43.45. Absolutio. (From absolvere.) Refers to a judgment
Saglio, D S 1 ; A. Leschtsch, A. paschalis, Diss. Freiburg, by which the defendant in a civil trial or the accused in
1904; P. Duparc, Origitres de la grcice dans le droit PPnal a criminal one was absolved. I n the formulary pro-
row., 1941, 24.
cedure the term was expressly used in the formula to
Abortio (abortus). Abortion. For abortio caused authorize the judge to render an absolutory judgment
by a poisonous drink (poci4lui1z abortionis), see (absolvito) .-See SENTENTIA.
VENENUM. Wlassak, R E 1 ; Leonhard, ibid.
Waszink, R A C 1 (1950). Absolutorius. There was a maxim in classical Roman
Abrogare legem. T o annul a statute in its entirety by law (Gai Inst. 4, 114) : omnia judicia absolutoria sunt
an abrogating legislative act. A law may also lose its = all civil trials may lead to an absolution (of the
binding force by disuse (DESUETUDO) which is the defendant). If the defendant satisfied the plaintiff
expression of a "tacit consent of the whole people" after LITIS CONTESTATIO but before the judgment
(D. 1.3.32.1 ) .-See DEROGARE. (SENTENTIA), the judge had to render an absolutory
Absens, absentia. ( I n judicial trials.) The Twelve judgment. The rule was accepted by some jurists
Tables already provided that the absent party auto- only with regard to IUDICIA BONAE FIDEI,but by the
matically lost the case to the party present. Under the second century it was generally recognized.
formulary procedure a plaintiff who did not appear in Abstinere(se)hereditate. The praetorian law granted
court was cleemed to have renounced his claim. The the so-called SUI ET NECESSARII HEREDES the right to
absence of the defendant in the first stage of the trial refuse the paternal inheritance (ilts abstinendi) in
before the magistrate ( I X IURE)might under certain order to avoid the acceptance of an insolvent inheri-
circumstances lead to the seizure of his property; see tance which otherwise would fall to then1 auton~ati-
MISSIO I N BOXA; his non-appearance before the judge cal1y.-C. 2.38.-See PRO HEREDE GERERE.
(apud iudice~n)might lead to his condemnation; see Absumptio. See RES QUAE usu CONSUMUNTUR.
CONDEMNATIO, CONTUMACIA , EREMODICIUM.The Aburnius Valens. A Roman jurist under Hadrian and
normal consequences of the absence could be annulled Antoninus Pius, author of an extensive treatise on
by an extraordinary praetorian measure (RESTITUTIO fideicommissa.
I N IXTEGRUM) if it was justified by important reasons
Jars, R E 1 (no. 2) ; Orestano N D I 1.
such as sickness, acting in the interest of the state, Abusus. See RES QUAE usu C O N S U M U N T U R .
and the like. Abuti. To abuse, to make bad use of a thing or a right,
Wlassak, R E 1 ; Kipp, R E 6, 417; Fliniaux, Bt Girard 1, particularly with the intention to harm another.-See
1912; Solazzi, S t . Sittloncclli, 1917; idem, Cortcorso dei
creditori 1 (1917) 66, 70 (Bibl.). AEMULATIO.
Riccobono, B I U R 46 (1939) 1 ; Appleton, Rev. gdltirale du
Absentes, absentia. Persons absent enjoy a particular droit 55 (1931) 115.
protection in cases in which the defense of their rights Accensi. Non-armed soldiers without any property
required their presence. The remedies were various. qualification. They were mustered into a special
In the case of justified absence the praetor could annul CENTURIA and formed a reserve troop which in battle
by means of RESTITUTIO I N INTEGRUM any rights ac- took the place of fallen legionaries. Syn. zlclati (=
quired to the prejudice of the absent person; see the clothed with a military cloak).-Acccnsi were also
foregoing item. Property of persona absent in service the orderlies of higher magistrates (with i~npcrium).
of the state (such as governors of provinces, officials, Cichorius-Kubitschek, RE 1 ; Humbert-De la Berge-
soldiers) could not be-acquired by USUCAPIO. Such Saglio, D S 1 ; De Ruggiero, D E 1 ; Vogel, Z S S 67 (1950)
persons were also excused from civil charges, as 86.
TUTELA,CURA. A particular defense was granted to Acceptilatio. An oral form of dissolving oral obliga-
Roman citizens who became prisoners of war. See tions, according to tlle rule that obligations contracted
CAPTIVI, P O S T L I M I N I U M . I n contractual relations the verbis had to be dissolved in the same way (orally).
absence of the creditor does not interrupt the pre- The stipulatory debtor asked his creditor: "What I
scription of his actions. The distinction absentes- promised to you, have you received it (liabcsne ac-
prnesentes is of importance in the conclusion of verbal cepturn) ?" The latter answered "I have (Izabco)."
and consensual contracts : whereas the former require Later, Greek words were admitted. I n order to dis-
the presence of the contracting parties, the latter can solve an obligation other than an oral one by acccpti-
340 ADOLF BERGER
lofio, which was the safest form of receipt, the parties Accursius. A famous glossator (1 182-1260), profes-
transferred the obligation into a stipulatio to which sor a t the law school in Bologna. H e compiled the
an nccrptilntio was afterwards applied. This exten- glosses of other glossators (see GLOSSATORES) in a
sion of clrcrptilnfio was introduced by the jurist general collection called glossa ordinaria.
AQUILIUS CALLUS who con~posedthe formula of the Monti, N D I 1 ; E. Landsberg, Die Glosse des .4., 1883;
novating sfiplrlatio, called sfipulafio Aqui1iano.-D. Genzmer, Fschr Wenger 2 (1945) 223; Torrelli, RStDIt 7
(1934) 429.
46.4 ; C. 8.43.
Accusatio. (From accusare.) Except for a few in-
Leonhard, R E 1 ; Natalucci, N D I 1 ; De Ruggiero, Scritti
stances of a civil nature this means accusation in
A . Marglticri (1921) 415; Wlassak, Z S S 42 (1921) 394;
criminal affairs in the Roman criminal procedure of
Bohacek, AnPal 11 (1923) 379; Cugia, A . solutioni com-
paratur, 1924; idenz, St. Mancalconi, 1938, 111 ; idem, St.
the last century of the Republic. Prosecution began
Boltolis I (1942) 247; Michon, Rcc. Gc'rty I (1934) 42;
at the initiative of a citizen' (not a magistrate) who
Solazzi, Estir~siottc dell'obbligazio~te I' (1935) 246; P.
assumed the role of the accuser by denouncing the
Meylan, A . ct poicn~cnt, 1934; G. Lombardi, Ricerche in
wrongdoer and filing a charge against him with the
tclna di ills gcntiutrr 1946, 185; Daube, Z S S 66 (1948) 119.
Acceptum habere. See ACCEPTILATIO ; syn, acceptt4m chairman of the competent criminal court (quaestio).
fnc&r, a c r c ~ t oferrc. This first step of the accuser was called nomen deferre
Acceptum rogare. The debtor's question in ACCEPTI- (nominis delatio), he being the delator (denouncer).
LATIO. If the magistrate accepted the accusation (nomcn r r -
Accessio. (From accedere.) The union of one thing cipere), normally presented by writing (libcllus accu-
(land or movable) with another either by natural satorius), he ordered its registration (inscriptio) in
forces or artificially (mechanically, iunger;) so that the official record of persons to iace a criminal trial.
they form an organic unity ( a whole, accessio wate- The accusatio could be supportetl by the signatures
~ i a e ) . The cases of accessio were very manifold. If (subscriptio) of additional accusers. In order to
the things mixed, melted, woven, etc., belonged to prevent nlalicious accusations, an oath (IURAMENTUM
different owners, the question of ownership over the CALUMNIAE) was imposed on the accuser.-In civil
new whole might involve difficulties. A general rule matters, accusatio is used in connection with a guard-
was that when one of the things was only an accessory ian alleged to be dishonest or negligent (see TUTOR
of the other, the ownership of the latter was decisive. SUSPECTUS), with a freedman, ungrateful to his patron
Outward appearance, usage or custoil~ determine (see INGRATUS), and with an undutiful testament (see
which
-
was principal and which accessory.-D. 22.1. QUERELA INOFFICIOSI TESTAMENTI) .-D. 48.2 ; C.
-See FERRUMINATIO, INTEXERE, LITTERAE, PICTURA, 9.1 ; 2.-See CALUMNIA, CAPITIS ACCUSATIO, EDICTUM
PLANTARE, SUPERFICIES, EXHIBERE. CONSTANTINI, PRAEVARICATIO, TERGIVERSATIO, REPE-
Leonhard, R E 1 ; Baudry, D S 1 ; Sanfilippo, iVDI 1 ; Ricco- TERE ACCUSATIONEM.
bono, AnPal 5 (1917) ; Guarneri-Citati, AnMac 1926, Leonhard, R E 1 ; Vinet, D S 1 ; Lauria, N D I 1 ; idem,
1929; idelit, AnMes 1927; AnPal 14 (1930). A.-inquisitio, ANap 56 (1934) ; Wlassak, SbWien 184, 1
Accessio possessionis. ,4ddition of possession. I n (1917), 194 (1920) ; Hitzig, R E 4 (s.v. delatio nominis).
some particular cases (LONGITEMPORIS PRAESCRIPTIO,A ccusator. An accuser in a criminal trial.
U S U C A P IINTERDICTUM
~, UTRUBI),the periods of pos- Accusatorius libellus. See ACCUSATIO.
session of two or more successive holders were added Acilius (Atilius ?), Lucius. A jurist of the early sec-
together to the benefit of the last one. Syn. accessio ond century B.c., author of a commentary on the
temporis. Twelve Tables.
Zanzucchi, A G 72 (1904) 177, 353; 76 (1906) 3 ; P. Klebs, R E 1, 252 (no. 7 ) .
Kriiger, Z S S 26 (1905) 144; Suman, R I S G 59 (1917) Acqu-. See ADQU-.
225; Ratti, St. Bonfante 1 (1930) 263.
Accessio t e m ~ o r i s . See ACCESSIO POSSESSIONIS. ~ c t - a . Records drawn up by officials, concerning their
Accipere iudicium. See IUDICIUM ACCIPERE. activity and proceedings developed before them as
Acclamatio. A demonstration of esteem and friendly well as certain binding declarations of private indi-
feeling in the form of fixed cheers, tendered to high viduals (donations, testimony, etc.) made before them
magistrates and later to the emperors when they- ap- (apud acta) . Syn. gesta, sometimes commentarii.
-
peared in public on certain occasions. A victorious The term for the performance of binding deeds, en-
general was acclaimed by a loud salutation when he tered into the acta, is in later times insinuare.-Ab
entered the city of Rome in triumph. I n the senate, actis = a general designation for officials concerned
acclamation was a sign of approval of the emperor's with acta (secretaries = scribae, the subordinate per-
oratio (see ORATIO PRINCIPIS).I t was considered a sonnel in the pertinent offices).
Kubitschek, R E 1 ; Weiss, R E Suppl. 7 (s.v. gesta) ;
vote and noted in records of the senate (acta senatus). Humbert, D S 1 ; De Ruggiero, DE 1.
-See TRIUMPHUS. A c t a Caesaris. Acts performed or ordered by an em-
De Ruggiero, D E 1, 72; Saglio, D S 1 ; Klauser, R A C 1
(1950) 221; Dessau, Ephemeris epigraphica 7 (1892) 429; peror before his death. They had to be respected by
Seeck, Rheinisches Museum 48 (1893) 199 ; 0. Hirschfeld. his successor who was obliged to take an oath to that
Kleine Schriften, 1913, 691; Charlesworth, J R S 33 (1943). effect upon accepting the throne. A similar oath with
VOL. 43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 34 1
regard to arta Caesaris was also compulsory for sena- move the construction. Originating in the Twelve
tors. Syn. acta principis, which may also mean the Tables, the acfio acquired a different aspect in Jus-
records of imperial orations, decisions, etc. tinian's law since its availability was considerably
A c t a diurna. An official law bulletin, introduced by reformed.-D. 39.3.
Caesar for the publication of statutes and decrees of G. Baviera, Scrifti 1 (1909) ; Berger, Z S S 31 (1910) 405;
the senate (SENATUSCONSULTA) as well as of impor- Schijnbauer, Z S S 54 (1934) ; M. Sargenti, L'a.a.p.a., 1940.
tant news concerning the state, and the imperial Actio arbitraria. See
ACTIO DE EO QUOD CERTO LOCO,
family. ACTIONES ARBITRARIAE.
A c t a militaria. Records pertaining to the administra- Actio a r b o r u m furtim caesarurn. The Twelve Tables
tion of larger military units, as, e.g., legions, in which introduced this acfio against anyone who secretly cut
there was a file for each soldier summarizing his down trees belonging to another's property. T h e
service and his financial affairs (proceeds, savings, fixed penalty of 25 asses for each tree was later
and the like). -
changed to double value bv the ~ r a e t o r i a naction dc
Kubitschek, R E 1, 286; Humbert, D S 1 ; 0. Hirschfeld, arboribus succisis, modeled after t h e decemviral ac-
Kleine Schriften, 1913, 682. tion. Moreover, the wrongdoer could be sued for
A c t a populi. Another designation for ACTA DIURNA. the damage done through the ACTIO LEGIS AQUILIAE.
They were also called acta urbis, urbana, publica, since -D. 47.7.
they contained news about important local events. P . Huvelin, Le furtum, 1915, 67; Fliniaux, St. Bortfoitte 1
A c t a senatus. Records of the discussions in the senate, (1929) 523; Berger, St. Riccol~o~to1 (1936) 614; E.
Carrelli, S D H I 5 (1939) 327; idena, AtiBari 2 (1939) ;
another of Caesar's innovations (see ACTA D I U R N A ) . Kiessling, lour. of jur. papyrologg 4 (1950) 317.
Orations of the emperor delivered in the senate were Actio auctoritatis (de auctoritate). The transferor
also published there. of quiritary ownership over a RES M A N C I P I through
Humbert, D S 1 ; De Ruggiero, D E 1, 45; O'Brien Moore,
-
MANCIPATIO was obliged to defend the transferee
R E Suppl. 6, 770; 0 . Hirschfeld, Kleine Schriften, 1913,
689. against a claim of ownership (REI VINDICATIO) by a
Actio. In the definition of the jurist Celsus, "nothing third person (see EVICTIO).I n this context AUCTORI-
else than the right of an individual to sue in a trial TAS means a kind of guaranty in case of eviction. If
for what is due to him" ( D . 45.1.551 ; Inst. 4.6 pr.). the transferor failed to do so or the transferee lost the
I n the formal sense actio is referred to the action of case, the latter had nctio nzrctorifatis for double the
a plaintiff by which he initiates a suit (actione es- price paid. This liability on the part of the ulancipio
periri, actionern exercere) as well to the whole pro- dons (the transferor) lasted according to the Twelve
ceedings, or to the formula granted for a specific Tables two years for imniovables, one year for all
claim. I n this last meaning actio is synonymous with other things, because after these periods the trans-
izidirilrnz, both being applied to particular formulae. feree acquired full ownership through USUCAPIO.
-See IUDICIUM, PETITIO,DARE ACTIONEM, DENEGARE, Where usucapio by the transferee was excluded, as,
REPETERE ACTIONEM, PERIRE.-Inst. 4.6; D. 44.7; C. for instance, in the case of stolen things, or of a trans-
4.10.-In the following presentation the different feree who was a foreigner (hostis) the liability for
types of actions appear under ACTIONES; the specific auctoritas of the transferor was unlimited in tinle,
actions are dealt with either under the name of the "eternal" (aeterna auctorifas) .
legal institution with which they are connected or Leist, R E 2, 2276; Ferrini, N D I 1 (s.v. attctoritotis a ) ;
E. Levy, Die Konkurrens dcr Akfionen, 2, 1 (1922) 238;
under their own denomination. P. F. Girard, MClanges 2 (1923) 5, 153, 290; Leifer, Z S S
Wlassak, R E 1 ; Anon., D S 1 ; Landucci, N D I 1 ; Brugi, 56 (1936) 136; v. Lubtow, Fschr Koschokcr L (1939) 117;
N D I 1 (s.v. azione) ; Albertario, In tema di clnssificazione De Visscher, R H D 16 (1937) 574; (1.Yo~tvelIe~ L tttdc.~,
delle azioni, 1928 (= Scudi 4 [I9461 219) ; Arangio-Ruiz, 1949, 179) ; Giffard, R H D 17 (1938) 339; P. Noailles,
Cours de droit ronzaiit. Les actions, Naples, 1935; G. Fas et ius, 1948, 339; M . Kaser, Eigcr~titv~
ztird R ~ s i t s 1943.
.
Pugliese, Actio e diritto subbiettivo, 1939; Biondi, A C D R , passim; idem, Z S S 68 (1951) 168, 174; Magdelaiti, IZIDA
Roma 11 (1935) 185. 5 (= M i l De Visschcr 4, 1950) 145.
Actio a d exhibendum. See EXHIBERE. Actio calumniae. See IuDrcluM C A L U M N I A E .
Actio a d supplendam legitimam. See PARS ;
Actio calumniosa. A n action brought hy a plaintiff
LEGITIMA
QUERELA I N O F F I C I O S I TESTAMENTI. only with the purpose of chicanery.-See C A L U M N I A .
Balis, Z S S 55 (1935) 272. Actio Calvisiana. The patron's right to inherit from
Actio aestimatoria. See ACTIO Q U A N T I M I NORIS, his freedman was protectetl by this action against
AESTIMATUM, EMPTIO.-D. 19.3. fraudulent alienation by the latter in the case of in-
Actio a q u a e pluviae arcendae. Action against the testacy. If the freedman's testament contained dis-
owner of a neighboring plot of land for having con- positions to defrautl the ~ x ~ t r othe n analogous action
structed a work which might change the natural flow for annulnient of such dispositions was the artio
of rain-water to the detriment of the plaintiff's prop- Fabinno.-See F R A G M E N T U M I)E F O R M U L A FARIANA.
erty. T h e actio had to be brought before damage E. Levy, Privatstrafr urtd Schndenscrsats (1915) 69.
was done; the defendant when defeated had to re- Actio certae creditae pecuniae. See M U T U U M .
Actio civilis in factum. See ACTIO PRAESCRIPTIS Actio de eo quod certo loco. If someone promised
VIIRHIS. by STII'ULATIO a perforniance at a certain place, the
Actio civilis incerti. See ACTIO rRAEscRIPTls VERBIS. creditor could sue-him onlv there since the fi~lfillment
Actio commodati. See colt MODATUM. of the ol~ligationat another place niight l)e more ex-
Actio communi dividundo. Action among co-owners pensive to the debtor. By this praetorian action the
for tlivision of common property. Along with this judge was given the possil~ilityof taking into account
primary function, the c~c-tioserved for the settlement the difference. The action is also ter~netlcirhifraria
of ~111other controversial questions that might arise for a reason which is not quite clear; its classical
from common ownership, e.g., from unequal distribu- formula hat1 not the arbitrium-clause which was the
tion of profits froni, or expenses on, the common characteristic feature of the so-called A C T I O N I : ~ A R B I -
thing. The ocfio belongs to the category of IUDICIA TRARIAE.-D. 13.4; C. 3.18.-See P1,u~rs PETIT10
B O N A E FIDEI;thus the judge had the possihility of LOCO.
taking into acco~ultand atljusting the various recipro- G. v. Reseler, Etlicfrrrct de eo qrrod certo loco, 1907;
cal liabilities anlong the co-owners (procstafioncs per- Dumas, N R N D 34 (1910) 610; Arangio-Ruiz, B I D R 25
(1912) 130. 26 (1913) 147; Biondi, AnPal 1 (1916) 19;
sonal~~).--D. 10.3 ; C . 3.37 ; 38.-See cow M U N I O , idem, B l n R 26 (1913) 5, 153; Lenel, Z S S 37 (1916) 121 ;
COMMUNIS, SOCIETAS, DIVISIO, ACTIONES DUPLICES, Reseler, T R 8 (1928) 326; S. G. Huwardas, Bcitriigc zrtr
ADIUDICATIO. Lelrre von derr ncfioncs arl>ifmrine,1932 ; Astuti, AtzCnrrr
4 . Berger, Z u r E~~tz~~ickl~tr~gs~rscI~icI~fc
der Trilutzgsklayer~ 11, 2 (1937) 157; L. LVenger, Irtstitrrfes of fltr R . la7w of
ittt klassischert rciqrl. R r c h f , 1912; Albertario, Strtdi 4 civil proccd~tre, 1940, 151 ; Biscardi, StScrz 60 (1948) 656
(1946, ex 1913) 167 ; Arangio-Ruiz, R I S G 52 (1912) 223 ; (Bibl.) ; D'Ors, R I D A 4 (1950) 435.
Biondi, A ~ t P r r .1913; Ein, B I D R 39 (1931) 73 ; Frezza, Actio de in rem verso. See P E C U L I U M .
K I S C 7 (1932) 3.
Actio de mod0 agri. If land is transferred I)y M A N C I -
Actio conducti. See LOCATIO CONDUCTIO.
PATIO the transferee has this clctio against the trans-
Actio confessoria. See VINDICATIO SERVITUTIS, CON-
feror if the area of the transferred land proves to be
FESSIO I N IURE.
less than asserted by the former owner. The latter
Actio constitutoria. See CONSTITUTUM.
must pay double the proportionate part of the price.
Actio curationis causa utilis (iudicium curationis
Cuq, D S 3, 1958.
utile). The name given by Justinian to the action
granted the curator of a winor for recovery of ex- Actio (iudicium) de moribus. The action of a hus-
penses or losses he had incurred in connection with band against his wife in case of divorce for miscon-
the management of the ward's affairs.-See MINORES, duct. The actio, which in ancient times may have
CURATOR M I N O R I S . been merely a criminal accusation, is penal in char-
Actio damni infecti. See D A M N U M INFECTUM. acter and, under certain circumstances, may cause the
Actio de aestimato. See AESTIMATUM. divorced wife to lose her whole dowry. The action
Actio de albo corrupto. Action for spoiling, damag- was abolished by Justinian.-C. 5.17.
ing or falsifying the praetorian edict promulgated on Klingmiiller, R E 9 (s.v. iudiciurn, de ~ t . ;) Cuq, D S 3,
2001 ; Wolff, Z S S 54 (1334) 315 (Bibl.) ; Volterra, R I S G
the ALBUM. The actio is penal, in factli~n,and popu- 85 (1948) 115.
lar. See ACTIONES I N F A C T U M , ACTIONES POPULARES,
Actio de pastu pecoris. Action for damage caused
ALBUM, EDICTUM.
Actio de arboribus succisis. See ACTIO ARBORUM by another man's cattle grazing on the plaintiff's
FURTI M CAESARUM.
property. Belongs to the category of ACTIONES
Actio de deiectis vel effusis. A praetorian action NOXALES.-See NOXA.
Fliniaux, M i l Cortzil 1 (1926) 245 ; Carrelli, AnBari 2
against a householder for throwing things or pouring (1939) 3.
liquids from his dwelling, so as to harm people on
Actio de pauperie. Action for damage done by a
the street. The householder is responsible also if his
domestic four-footed animal (qundrupes) . Its owner
slave, guest, or child did so. Justinian listed such
cases among obligations which arise "as if from a had either to compensate for the damage ( j a u p e r i e s )
delict" (obligafionesqwae qz~nsie x delicto nascuntur). or surrender the animal ( n o x a e dedere). See NOXA.
Similar responsibility arose when things were located Justinian extended the actio to another case of lia-
or suspended on the outside of a house or in a bility of animal owners. Keeping a dog or a savage
window in such a way as to endanger passers-by. animal near the road was prohibited by the edict of
The pertinent action was actio de positis ac suspensis. the aediles and the injured victim was entitled to
-See I-IOSPES. redress. Justinian granted an actio de pauperie in
Fioretti, N D I 5 (s.et. effusa) ; G. A. Palazzo, Obbligazioni such a case in addition to the aedilician action.
quasi e x delicto, 1919. Robbe, N D I 9 (s.21.pauperies) ; Haymann, Z S S 42 (1921) ;
Actio de dolo. See ACTIO DOLI. E. Levy, Konkurrenz der Aktionen, 2, 1 (1922) 225;
Actio de dote (dotis). In some interpolated passages Biondi, AnPal 10 (1925) 3 ; Kerr Wylie, S t . Riccobono 4
(1936) 459 ; Robbe, R I S G N.S. 7 (1932) 327 ; Lenel, Z S S
the name for the action for recovery of a dowry 47 (1937) 2 ; Visconti, S t . Solmi 1 (1941) 157; Dull,
(actio rei uxoriae) , thoroughly reformed by Justinian. Z.SS 61 (1941) 1 ; Condanari-Michler, Fschr Wenyer 1
-See DOS. (1944) 236.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW
Actio de peculio. See PECULIUM. Actio Fabiana. See ACTIO CALVISIANA.
Actio de pecunia constituta. See CONSTITUTUM. Actio familiae (h)erciscundae. Action among co-
Actio de positis ac suspensis. See ACTIO DE DEIECTIS heirs (COHEREDES) in order to bring about division
VEL EFFUSIS. of the coinnlon property inherited.-D. 10.2 ; C. 3.36 ;
Actio de rationibus distrahendis. Action for double 38.-See DIVISIO, FAMILIA.
damages against a guardian guilty of embezzlement ; Frezza, N D I 1; Sciascia, AG 132 (1945) 75; see ACTIO
it was available only after the termination of the COhlhlUNI DIVIDUNDO.
ment he was not reimbursed by the principal debtor. Actio furti concepti. See FURTUM CONCEPTUM.
defendant. See ACTIO PROHIBITORIA, VINDICATIO SER- in the position to usucapt it. It is an actio ficticia,
VITUTIS, CAUTIO DE N O V A M P L I U S TURBAXDO. the fiction being that the plaintiff had already ac-
Arangio-Ruiz, Azioni confessorie e negatorie, 1908 ; Biondi, quired full property by a completed zisucapio. The
A n M e s 3 (1929) ; Bohacek, B I D R 44 (1937), 46 (1939). function of the actio Publiciana was the same as that
Actio negotiorum gestorum. See NEGOTIORUM GESTIO. of REI VINDICATIO, which, however, the plaintiff could
Actio oneris aversi. Action against the master of a not use because he had no quiritary ownership.-
ship for fraud committed in the delivery of cargo. D. 6.2.-See ACTIONES FICTICIAE, EXCEPTIO IUSTI
P . Huvelin, Le Furtum (1915) 511 ; Solazzi, R D N a v 2 DOMINII.
(1936) ; De Santis, S D H I 12 (1946) 89. LCcrivain, D S 4 (s.u. Publ. a.) ; Montel, N D I 10; Perozzi,
Actio operarum. See OPERAE LIBERTI. B I D R 7 (1894) ; V. Seeler, Z S S 21 (1900) ; Pfliiger, ibid.
Actio ~ a u l i a n a . See FRAUS,INTERDICTUM FRAUDA- 42 (1921) 469; Carrelli, S D H I 3 (1937) 20; De Sarlo,
TORIUM. S t Solazzi (1948) 203.
Actio pigneraticia. See PIGNUS,HYPOTHECA. Actio quae instituit obligationem. Improperly called
Actio praescriptis verbis. Not a classical term; the institutoria, a term unknown to the sources. If a
classical jurists speak of agere praescriptis verbis when woman intervened for another person by assuming
"common and usual names of actions are lacking," -
a contractual obligation for him, her intercession
that is to say, when the foundation of an action is a being void, the praetor granted the creditor an action
bilateral transaction for reciprocal performances which directly against the real debtor who personally was
do not conform to the typical and recognized species not obliged.-See INTERCESSIO, SENATUSCONSULTUM
of contracts. The name praescriptis verbis originates VELLAEAN U M.
from the fact that in the respective formula the fac- Bortolucci, A.q.i.o., 1915; Carelli, R I S G 12 (1937) 63;
Beretta, R I S G N.S. 2 (1948) 367.
tual background of the action had to be described,
praescriptis verbis rent gestam demonstrare. Jus- Actio quae restituit obligationem (restitutoria).
tinian's collaborators created the term actio prae- -
When a creditor lost his actio against his debtor be-
scriptis vcrbis and extended the applicability of the cause of a novatory intercession by a lvonlan, the
action although the formulary procedure had been praetor granted him the primary action since the
out oi use for centuries. It was qualified by Jus- woman's intercession was void. See INTERCESSIO,
SENATUSCONSULTUM V E L L A E A N V M .
tinian as an actio bonae fidei and had a general func-
Carrelli, S D H I 3 (1937) 305; Beretta, R i S G 2 (1948) 368.
tion, being adaptable to very different legal situations
in which the plaintiff after performing his duty claimed Actio quanti minoris. See EMPTIO.-D. 21.1.
Pringsheini, Z S S 69 (1952) 234.
the performance of the reciprocal duty by the de-
Actio auasi institoria. See INSTITOR.
fendant. The terlilinology is not stable, the actio is
also called actio civilis incerti, civilis i n fnctlim, and Actio quasi Serviana. See PIGNUS, HYPOTHECA.
Actio quod iussu. See IUSSUM.
by other names.-D. 19.5; C. 4.64.
Audibert, M i l . Ge'rardin, 1907; P . Meylan, Origine et Actio quod metus causa. See METI:S.
- - 1-2
nature de l'a.6.v. 1919: P. De Francisci. Svnallaoma. Actio rationibus distrahendis. See ACTIO DE RATIO-
(1913/16) ; ~ r e t s c h m e r ,Z S S 59 (1939) 190; ~ h a y e r , NIBUS DISTRAHENDIS.
Tulane L R 19 (1949) 62; P . Voci, Contratto (1946) 234. Actio recepticia. See RECEPTUM ARGENTARIT.
Actio principalis. See ACTIONES DIRECTAE. Actio redhibitoria. See EMPTIO.
Actio pro socio. See SOCIETAS.-Syn. I U D I C I U M SO- Actio rei uxoriae. See DOS.
CIETATIS. Actio rerum amotarum. Action for recovery of
Actio prohibitoria. An action similar to ACTIO NEGA- things stolen by the wife from her husband in view
TORIA. Its existence in classical law is controversial. of an imminent divorce. The milder qualification "for
It is assumed that its I N T E N T I O aims at recognition having taken things away" instead of "having stolen"
of the plaintiff's right to forbid the defendknt to exer- (furtunz) was chosen to avoid the infaming actio
cise a certain right (servitude, usufruct) over the furti between husband and wife.-D. 25.2; C. 5.21.-
plaintiff's property. See VINDICATIO SERVITUTIS. See RETENTIONES DOTALES.
Bortolucci, B I D R 21 (1909) ; R. Henle, Unus casus, 1915, Zanzucchi, R I S G 42 (1906) ; 47 (1910) ; Icretschmar, ZSS
138 ; Eiondi, A n M e s 3 (1929). 59 (1939) 199.
Actio protutelae. Action against a person who acts Actio rescissoria. In a few cases an action is granted
as a guardian ( p r o t ~ l t o r e ) without having been for the annulment of a legal situation created by spe-
legally appointed. cial circunistances, as in the case of the return of a
Peters, Z S S 32 (1911) 243; Solazzi, .4S 91 (1924) 150. soldier from captivity or of a person who had been
Actio Publiciana in rem. An honorary action (actio ahsent in public service. By ])ringing this acfin
honoraria) createtl.l)y a praetor named Publicius and within a year after their return, they could rescind
granted to the bonitary ( I N BONIS)owner of a thing the usucapion (rescinderr tfsltcapioncnz) achieved dur-
for reclaiming property of which he has lost pos- ing their absence. See ABSENTES.
session. The plaintiff has to prove only that he Carrelli. S J l f I I 3 (1937) 20; P. Collinet, La ~ ~ a t l odcs
c
acquired the thing under conditions which put him c~ctions,1948, 457.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 345
Actio restitutoria. See ACTIO QUAE RESTITUIT OBLI- Actio venditi. See EMPTIO.
GATJONEM. Actio vi bonorum raptorum. See VIS, RAPINA.
Actio Rutiliana. An action devised by the praetor Actiones adiectiliae qualitatis. See EXERCITOR NAVIS.
Rutilius to the benefit of the purchaser of the prop- Actiones aediliciae. Actions introduced bv the aedi-
erty of a bankrupt debtor (bonorum emptor). For lician edict. They were concerned with the sale of
debts due to the latter, whose universal successor the slaves and animals (see EMPTIO)and damages caused
bonorum emptor was, he sued in the name of the by animals, see ACTIO DE PAUPERIE.-C. 4.58.-See
other (see INTENTIO), but asks for condemnation in EDICTUM AEDILIUM CURULIUM.
his own name. Another actio granted to the bonorum Actiones annales. See ACTIO TEMPORALES.
emptor was the so-called actio Serviuna! by which he Beretta, RISG 2 (1948) 353.
sued under the fiction "as if he were the heir" (ficto Actiones arbitrariae. Actions the formula of which
se herede) if the bankrupt died. See ACTIONES FIC- contained the so-called arbitrary clause authorizing
TICIAE, CONVERTERE, BONORUM VENDITIO. the judge to bid the defendant by an arbitrium (arbi-
Actio sepulcri violati. A praetorian, penal action in tratus), an interlocutory order, to satisfy the de-
case of violation of a grave.-D. 47.12; C. 9.19.- fendant's claim by restoring or producing (exhibere)
See SEPULCRUM, VIOLATIO SEPULCRI. the object claimed ("nisi arbitrio tuo [of the judge]
Actio sequestraria. See SEQUESTER. res restituatur, exhibeatur"). If the defendant did
Actio servi corrupti (de servo corrupto). Action by so, he was absolved; if not, the final judgment con-
a slave's master in case of his slave's corruption. demned him to pay a sum of money, which was more
Those liable were persons who persuaded the slave disadvantageous to him than the immediate fulfill-
to commit robbery or some other crime, moral mis- ment of the judge's order (he might be condemned
conduct or luxury, to flee from his master, and the to a higher amount, he had to pay a fourfold amount
like, so that the slave became worse (deterior factus). in the actio quod metus cazrsa [see METUS],he in-
The corruptor (instigator, sollicitator) is responsible curred infamy in actio doli, etc.). It is controversial
only when he did it purposely (dolo malo). H e had whether the words "arbitrio tuo" were in the formula
to pay not only the lessening in value of the slave but and whether the term arbitrariae actiones was used
also double damages done by the slave.-D. 11.3; by the classical jurists.
C. 6.2. Biondi, BIDR 26 (1913) 1, 153; idem, St sulle actiones
Kleinfeller, R E 4 ; Schiller, Columbia Law Rev. 30 (1930) arbitrariae e l'arbitrium iudicis, 1913; May, MBI Girard
839 ; idem, St. Riccobono 4 (1936) 79. 2 (1912) 151; Lenel, Fschr Sohm, 1914, 201; Berger,
K r V j 16 (1914) 122; Levy, Z S S 36 (1915) 1 ; R. Dull,
Actio Serviana. See PIGNUS,HYPOTHECA. Der Gutegedanke, 1931; M. Kaser, Restituere als Pro-
Actio Serviana. Of the bonorum emptor, see ACTIO zessgegenstand, 1932; G . Huwardas, Beitrdge zur Lehre
RUTILIANA, VENDITIO BONORUM. -Jon den a.a., 1932 ; Herdlitczka, Zur Lehre vom Zwischen-
Actio subsidiaria. An action granted to a ward urtcil bei den a.a., 1930; idem, Skizzen zum rom. Zizril-
prozess, 1934; Schonbauer, St. Riccobono 2 (1936) 371 ;
against a municipal magistrate for having appointed F. Schulz, Class. R. Law, 1951, 37.
an incapable guardian or having failed to demand Actiones bonae fidei. See IUDICIA BONAE FIDEI.
adequate guarantee from the appointed guardian (see
Actiones (formulae) certae. Actions with a precisely
CAUTIO REM PUPILLI SALVAM FORE). Roman and
provincial magistrates were not answerable under specified object, sum of money or a thing, claimed by
the plaintiff. Ant. actiones incertae. In the formu-
this action.-D. 27.8 ; C. 5.75.
Sachers, R E 7A, 1581 ; E. Levy, Privatstrafe und Schaden- lary procedure the object in dispute was defined in the
sersatz, 1915, 41 ; Brugi, Mil Girard 1 (1912) 143; Berger, INTENTIO of the formula. Hence the distinction:
K r V j 16 (1914) 84. intentio certa and incerta. In the latter the plain-
Actio tributoria. A praetorian action lying against a tiff's claim is directed to "quidquid" ( = whatever
father or master whose son (or slave) doing commer- it will appear that the defendant has to pay or do).
cial business with his peculium, contracted debts with Actiones civiles. Actions which protected rights rec-
the knowledge of the father (master), and the pecu- ognized by the IUS CIVILE. Their origin lay in the
liunz subsequently became insolvent. The remainder Twelve Tables, in certain statutes or in the creative
of the peculitrm was to be shared proportionally among activity of the jurists. Ant. actiones honorariae, see
the creditors and the father (master) if anything was ACTIONES PRAETORIAE, ACTIONES AEDILICIAE.
due to him. Claims on the part of the creditors that Actiones contrariae. See ACTIONES DIRECTAE.
an unfair distribution has been made by the father Actiones directae. (1) Actions the formula of which
(master) could be sued by actio tributoria.-D. 14.4. could be extended through an appropriate modifica-
-See PECULIUM. tion to analogous factual circumstances, not covered
L. Lemariti, De Pat., ThPse, Paris, 1910. by the original formula. The modified formula was
Actio tutelae. See TUTELA.-D. 27.3. an nc-tio utilis, as opposed to the original actio di-
Actio vectigalis (actio quae de fundo vectigali pro- recta. (2) ~ c t i o n sarising from certain contracts
posita est). See AGER VECTIGALIS. which normally created liability in one party, as, e.g.,
346 ADOLF BEl<GEl< ['I'RANS. AMICR.
PHIL. SOC.
in the case vl a tleposit or n~andatethe action ol the the action against the judge qrti litcqit s~tarrtfacit. I n
dc1)ositor or matul~tor,were iii.tioncs dircctiir. Un- origin, there certainly were forn~aland substantial
der exceptional circulnstai~ces,however, the 1);lrty differences between these actioncs and IUDICIA B O N A E
prinlarily l)ountl, the tlepositee or the mandatary, hat1
..
FIDEI. I he disappearance of the fornlulary 1)rocedure
n claim against the other party. Such actions are furthered their equalization fully completetl in Jus-
calletl 1)y Justininn cotztr-ciriac as opposed to the tinian law.
cic~tiorli~sdiruc-tcie of the i~artieswho as a matter of Thomas, N R N D 25 (1901) 541 ; Pringsheim, Z S S 52
rule are cretlitors in such contracts. The same holtls (1932) 85; Kaser, R I D A 2 (1949) 512.
true for nun-contractual situations, such as guardian- Actiones in duplum. See ACTIONES I N S I M P L U M .
shil), since the guardian hat1 an nctio contnirici (itrdi- Actiones in factum. See FORMULAE I N IUS CON-
c.itrtr~ contrarirr~it)against the ward. Other terms CEPTAE.
for nc.tio dirccta are iii.fio principiilis, and rarely, Actiones in id quod pervenit. Actions by which the
irrdicirrirt r r c t l r ~ ~The
~ . concept of cictio confrarin is plaintiff claimed only what the defendant obtained to
controversial.-D. 27.4; C. 5.58. his detriment.-See ACTIONES POENALES,PERVENIRE
hfanigk, R E 9 (s.v. illdiciurra corttmri~rrn); J . Partsch, AD ALIQUEM.
Stitdic~lzztr rirgotiorurrt gcstio, 1913, 47; Biondi, .41sPal 7 F. Schulz, Die actiones i n id etc., Diss. Breslau, 1905;
(1920) 59; Kubler, Z S S 38 (1917) 73; Lenel, Edicturrt G. H. Maier, Praetorische Bereicherungsklagen, 1932; E.
pcrpefutc~rc3 (1927) 318; G. Provera, S D H I 8 (1942) 113 ; Albertario, Studi 4 (1946) 289 (seven articles).
idcrrt, S t . Solazzi, 1948, 345; V. Arangio-Ruiz, I1 rr~andato, Actiones in ius conceptae. See FORMULAE I N IUS
1949, 45.
CONCEPTAE.
Actiones duplices. See IUDICIA DUPLICIA.
Actiones in personam. Actions in which the plain-
Actiones famosae. Actions in which the condemna-
tiff based his claim on a contractural or delictual
tion of the defendant involved I N F A M I A : he became
obligation of the defendant. Ant. actiones in rem
infar~lis (ignontiniosus). Such actioncs were : ac- = actions in which the plaintiff asserts a right to a
tiones furti, vi bonorurn mptoruvt, iniz~riarz~~jz, de certain thing (ownership, servitude) possessed by the
dolo, mandati, deposifi, and others. Syn. actioncs defendant. This basic distinction is expressed by a
Sachers, R E 7A, 1434; Zanzucchi, R I S G 42 (1906) 1 ; 47
different wording of the INTENTIO in the formula:
(1910) 3, 237. in the actiones in persona~~l the defendant is sued for
Actiones ficticiae. Praetorian actions adapted by the dare, facere, praestare oportere ( = to give, to do or
use of a fiction in the formula to legal situations not to perform something), in the actiones in rem the
protected by the original formula: For instance, plaintiff affirms that the corporeal object he claims
some actions became available to foreigners under the is his or that he has a certain right over the adver-
fiction "as if they were Roman citizens." I n the sary's property. The former actions lie against the
ACTIO P U B L I C I A N A the claim for recovery of a thing
person obligated by a contract or a wrongdoing, the
was based on the fiction that usa~cabiohas been com- latter may be brought against any person who with-
pleted. Actions granted to, or against, a successor by holds the thing involved from the plaintiff. Actiones
praetorian law (bonorum possessor) contained the in rem are also called vindicationes (REI VINDICATIO,
VINDICATIO SERVITUTIS) ; to actiones in personam the
fiction "as if he were heres."
Riccobono, T R 9 (1929) 1. term condictiones is applied, in post-classical and
Actiones hereditariae. Actions in favor of, or against, Justinian law the term actiones personales.
G. Segre, B I D R 41 (1933) ; S. Grosso, Problcrni di diritti
the heir, connected with an inheritance.-Inst. 4.12; reali, 1944, 74; Albertario, Studi 4 (1946) 221; B. Biondi,
C. 4.16. Le servitb brediali nel dir. rorn., 1946, 14.
Actiones honorariae. Actions originating in prae- Actiones in rem. See ACTIONES I N PERSONAM.
torian or aedilician law.-See ACTIONES AEDILICIAE, D e Villa, N D I 6 ( i n rem a.) ; Kaser, Besitz und V e r -
ACTIONES PRAETORIAE. Ant. actiones civiles. schulden bei dinglichcn Klagen, Z S S 51 (1931) 92.
M. Kaser, Das altrijnt. ius, 1949, 94. Actiones in simplum. I t is a general rule that the
Actiones in bonum et aequum conceptae. This aim of each action is the simple value of what the
term, mentioned only once (D. 4.5.8), refers to cer- plaintiff claims (simplum). There are, however,
tain actiones in factum, primarily in cases of torts in actiones in which the defendant is condemned to pay
which the CONDEMNATIO contained the clause quan- twofold (duplum), threefold ( t r i p l u ~, )even four-
tum bonum et aequunz (or simply aequum) videhitur. fold (quadruplu~)the value. The liability of the
I t authorized the judge to fix the sum of condemna- defendant is doubled, for instance, in certain actions
tion at his discretion "as it would seem to him just when he deliberately denies. See INFITIATIO.Higher
and fair." The foundation of the actiones was not a rates of condemnation occur in cases of theft.-See
contractual relation between the ~ a r t i e sbut a be- FURTUM, DUPLUM.
havior of the defendant which caused some harm to Actiones incertae. See ACTIONES CERTAE.
the plaintiff. Such actions were, e.g., actiones rei Actiones interrogatoriae. See INTERROGATIO I N IURE.
uxoriae, funeraria, iniuriarizlgn, sepulcri violati, and Actiones mixtae. The term, doubtless of non-classical
Tn such actions :~l)solritio~~ or condemnation is not IInrrdlexikonD (1907) 608: G. Bortolucci, A. utilis, 1909;
him the possibility to improve it (e.g., an appeal, see Adoptio minus plena. A weaker form of adoptio in
APPELLATIO) . Justinian law by which the ties with the former family
Administrare (administratio). Refers both to the of the adopted person were not completely destroyed,
management of private affairs (property, peculium, particularly in the field of the rights of succession.
tutorship) and to the exercise of a public office Ant. adoptio plena which produced the effects of the
(magistracy, governorship, administratio rerum pub- ancient adoptio.
licarum). Hence administrator is used of the highest Lavaggi, SDHI 12 (1946) 45, 115.
officials of the state.-D. 26.7; 50.8; C. 5.37 ; 11.31 ; Adoptio per populum. Refers to adrogatio since in
38; 1.49.-See EXCUTERE RATIONES. earlier times the approval by the people (auctoritas
Orestano, S t Bonolis 1 (1942) 11. populi) was required for the validity of a change of
Admissionalis. See the following item. family (MUTATIO FAMILIAE) .
Seeck, R E 1. Castelli, Scritti giuridici, 1923, 189.
Admissiones. Admission to an audience with the Adoptio plena. See ADOPTIO M I N U S PLENA.
emperor was granted by a special office, oficium ad- Adoptivus. Connected with adoption. Filius adopti-
missionum, under the supervision of a magister ad- vus, or simply adoptivus = the adopted person. Pater
missionum. The intervening officer was the admis- adoptivus = the adopting father.
sionalis. Adoratio purpurae. Worshipping the emperor by
Schmidt, R E 1 ; De Ruggiero, D E 1, 92. kneeling before him and kissing his purple garment.
Admissum. A general and not sharply defined term Seeck, R E 1 ; Avery, Mem. Anter. Acad. Rome 17 ( 1 9 4 0 ) .
for criminal offenses. I t is used particularly in later Adp-. See APP-.
sources. I n admisso deprehendere = to catch in the Adplumb'atio. See FERRUMINATIO,
PLUMBATURA.
very act. Leonhard, R E 1 ; Pampaloni, Scritti 1 (1941) 7.
Berger, K r V j 16 (1912) 414; De Dominicis, AVelt 92 Adprehendere rem. T o take hold of a thing. I t is
(1932/3) 1215. a symbolic gesture to affirm the right of ownership
Admittere. To commit an illicit act ( a wrongdoing). in a trial (REI VINDICATIO) or in the act of transfer
Adnotatio. A decision of the emperor written in the of ownership through MANCIPATIO. I n a larger
margin of a petition addressed to him. In some texts sense, to take physical possession of a thing.
it is distinguished from an imperial rescript (RE- Adprobare. T o approve, as another jurist's opinion.
SCRIPTUM)from which it differed in form, not in According to a statute, LEX AELIA SENTIA,exceptional
content. The differences between adnotatio and re- manumissions of slaves contrary to the rules therein
scriptunz which might have arisen from the fact that set forth had to be approved by a special court.-
the adnotatio was originally a written instruction for Adprobare opus = to approve of a work (opus) done
drafting a rescript by the imperial chancery, gradu- by a hired craftsman. Adprobare was an important
ally vanished. I n criminal proceeding adnotatio act in the hire contract (LOCATIO C ONDUCTIO OPERIS
(from adnotare) means noting a person on the list of FACIENDI)since after approval the risk of destruc-
those who are to be summoned or deported. tion or deterioration of the work passed upon the
Seeck, R E 1. person who ordered it.-Syn. probare.
Adoptio. Through adoptio a person who is under the Samter, ZSS 26 (1905) 125.
paternal power of the head of his family comes under Adpromissio (adpromissor). The obligation of a
the patria potestas of another (adoptator, pater adop- surety who guaranteed for the debt of the principal
tivus). The change of family (nzutatio familiae) is debtor through stipulatio. The different forms of
the characteristic feature of the adoptio, while in an suretyship were sponsio, fideiussio, fidepromissio,
adrogatio, i.e., the adoption of a person sui iuris who according to the expression used by the surety
is himself the head of a family, there is a fusion of two (sponsor, f deiussor, fidepromissor) when he as-
families since the adrogatus enters into another family sumed liability in a stipulation additional to that of
together with all persons subject to his pateinal the principal (spondeo, fde mea esse iubeo = I bid
power. The legal effects are equal in both cases; you trust my faith, fide promitto = I pledge my
the adopted persons have the. same rights (succes- faith). The obligation of the surety was for the
sion) and duties (sacra) as natural sons.-D. 1.7; same thing and could not be assumed for a larger
Inst. 1.11 ; 3-10 ; C. 8.47.-See the following items, sum or under heavier conditions than that of the
DATIO I N ADOPTIONEM, ADROGATIO (Bibl.) . principal. As a matter of rule, the accessory char-
Leonhard, R E 1 ; Baudry, DS 1 ; Bellelli, NDI 1 (s.v. acter of the suretyship depended upon the validity
adozione) ; Wenger, R A C 1 (1942) ; De Ruggiero, D E 1 ; and the existence of the principal obligation, but in
C. G. Bergmann, Beitriige z u m rom. Adoptionsrecht, 1912;
Albertario, St. Ratti 1934, 6 6 7 ; Monier, S t Albcrtoni 1 the case of sponsio and fidepromissio this rule was
(1935) 235; M . H . Prevost, Les adoptions politiques b weakened. Besides, the liability arising from these
Rome, 1949. two forms lasted only two years and did not bind
Adoptio in fratrem. See FRATER. the heirs. In Justinian's law all three forms were
VOL.43, PT. 2, 1 9 5 3 ) ENCYCLOPEDIC DICTIOlYARY OF ROMAN LAW 35 1
fused into one, the jideiussio, whereas in earlier times in the form of a fictitious trial) the intervention of
sponsio was accessible only to Roman citizens, and an adsertor libertatis was necessary. He claimed the
sponsio and fidepromissio could be applied to guar- liberty of the slave involved, and the manumittor
antee only obligations from verbal contracts. In then failed to deny this assertion.-C. 7.17.-See
Justinian's law all these and other minor differences I N C E N U I T A S , VINDICATIO I N LIBERTATEM.
vanished.-Inst. 3.20; D.46.1; C. 2.23; 8.40.-See Leonhard, R E 1 ; D S 1 (s.v. assertor) ; M . Nicolau,
Causa liberalis, 1933, 122; Noailles, Rev. des Etudes
LEX APULEIA DE SPONSU, LEX CICEREIA, LEX COR-
Latines 20 (1942) 121; Van Oven, T R 18 (1950) 159,
NELIA DE ADPROMISSORIBUS. 177; P. Noailles, D u droit sacrk au droit civil, 1950, 177.
Leonhard, R E 1 ; 6 ( s . w . fideiussio, fidepromissio) ; Cuq,
D S 3, 557; Anon. lVDI 5 (s.v. fideiussio) ; E. Levy, Spon- Adsertor libertatis. See the foregoing item.
sio, fidepromissio, fideiussio, 1907 ; Donatuti, AnPer 38 Adsessores. Legal advisers .who assisted magistrates
(1927) 1 ; Solazzi, B I D R 38 (1930) 19; Buckland, and judges in judicial activity. They belonged to
R H D 7 (1928), 460; 12 (1933) 116; W. Flume, Studien the consiliunz (council), hence their name consiliarii.
zur Akzessorietat der rom. Burgschaffsstipulationen, 1932;
G. Bo, Contributi alla dottrina dell'obbligazione fideius- In the later classical period their activity was very
soria, 1934; Archi, ConfCast, 1940, 259; F. De Martino, extensive. The jurist Paul who wrote a monograph
Garenzie personali dell'obbligazione, 1 (1940) ; G. Nocera, on the duties of adsessores enumerates as lying in
Insolvenza e responsabilitd sussidiaria, 1942, 59; Levy, the sphere of their activity : cognitiones, postulationes,
S e m 2 (1944) 6 (= B I D R 55-56, Post-Bellum [I9511
207) ; Beretta, Scr Ferriiii 1 (Univ. Sacro Cuore, Milan, libelli, edicta, decreta, epistulae. The terms cover
1947) 80. the whole magisterial and judicial activity in court
Adpulsus pecoris a d aquam. The right to drive one's and beyond procedural questions. Under the later
cattle through another's (the neighbor's) property to Empire each official had at least one adsessor. The
water. The right is connected with certain rustic adsessores were appointed by the government with
servitudes to secure the access of the cattle to the a salary. An adsessor who helped a magistrate or
watering-place. judge in drafting a decision was responsible for ad-
Adquirere (adquisitio). To acquire (ownership, pos- vice given in ignorance or inconsiderateness (impru-
session, an inheritance, an obligation). The ability dentia). The opinion of udsessores was not binding
to acquire for other persons is dealt with by Inst. on the magistrate or judge.-D. 1.22; C. 1.51, 52.
Seeck, R E 1 (assessores) ; Humbert, DS 1 ; Ue Ruggiero,
2.9; 3.28; C. 4.27; the acquisition of an inheritance D E 1 ; Kubler, R A C 1 (1943) 803; Hitzig, Die Asses-
D. 29.2 ; C. 6.30 ; of ownership D. 41.1 ; of possession soren der ram. Magistrate, 1893.
D. 29.2, C. b7.32 ; through adrogatio Inst. 3.10. Adsessorium. Appears in the title of works by the
Leonhard, R E 1, 284. jurists, Sabinus and PuteIoanus, each work cited only
Adquirere per universitatem. See UNIVERSITAS. once in the Digest. Thus the character of those
Adrogatio. See ADOPTIO, ADOPTIO PER POPULUM.- writings cannot be specified. They probably dealt
Inst. 3.10. with cases which the authors drew from their asses-
Leonhard, R E 1 ; Humbert, D S 1 ; Bellelli, N D I 1 ; G. sorial practice.-See ADSESSORES.
Beseler, Subsiciva, 1929, 1 ; Bellelli, A G 116 (1936) 65 ;
idem, S D H I 3 (1937) 140; Lavaggi, S D H I 12 (1946) Adsidui. The term appears in the Twelve Tables in
115; Cosedtini, AnCat 2 (1948) 235. connection with processual guarantees (see VINDEX) .
Adrogatio per rescriptum principis. Adoption of a "For an adsiduus only an adsiduus may be a guar-
person sui iuris granted by a rescript of the emperor. antee, while for a proletarius any one may guaranty"
No further formalities were necessary. (Gell. n. Att. 16.10.5). Adsidui, are those who be-
Adscribere. When refirring to last wills, to make a long to the five classes of the so-called Servian con-
legacy or to add a specific clause (e.g., a condition, stitution (CENTURIAE) with a patrimony from 100,000
a term) to a testamentary disposition. down to 12,500 asses. Syn. locupletes, classici. Ant.
Adscripticii. A class of COLONI in the later Empire proletarii.
who were bound to their landlord's soil which they Kubitschek, R E 1 ; Pascal, Rivista di filol. e istruzione
classica 30 (1902) ; M. F. Peterlongo-Lepri, Saggi sul
cultivated. Although their legal status was that of patrimonio 1 (1942) 25.
free men and citizens, they were subject. to certain Adsignatio. The assignment of public land (AGER
personal restrictions and burdens which h a d e their PUBLICUS)to private individuals, municipalities or
position similar to serfdom.-See COLONATUS. colonies in ownership or usufruct. The distribution
Saumagne, Byzantion 12 (1937).
was regulated by statutes (agrarian legislation =
Adsertio. (From adserere.) Any assertion made be- LEGES AGRARIAE) which fixed the size and conditions
tance when the personal status of a person was con- Kubitschek, R E 1 ; Vancura, R E 12, 1155; De Ruggiero,
tested. Hence, adsertor libertatis was he who, in a D E 1 ; Fraccaro, Scr Ferrini 1 (Univ. Sacro Cuore, Milan,
trial about the status of an alleged slave, asserted and 1947) 262.
defended his liberty. In the form of enfranchise- Adsignatio liberti. According to a decree of the
ment called MANUMISSIO VINDICTA ( = manumission senate of the early Empire, the patron of a freedman
ADOLF BERGER
was permitted to assign (assignare) his right of became a public crime prosecuted before a criminal
patronage, those of inheritance included, to one of court. Any Roman citizen could bring in the accusa-
his children or grandchildren under his paternal tion if the husband or his father did not do so within
power. The patron who thus disposed, either in a two months after the divorce. The statutorv term
last will or orally, is called adsignator.-Inst. 3.8; for other accusers was four additional months. The
D. 38.4. penalty was banishment of the adulteress and con-
Leonhard, R E 1 ; De Ruggiero, D E 1 ; G. La Pira, La fiscation of one-third of her property, together with
successione intestata, 1930, 203; Harada, Z S S 59 (1939) the loss of a part of her dowry. The legislation of
498; E. Cosentini, S t sui liberti 2 (1950).
Constantine, later confirmed by Justinian, introduced
Adstipulatio (adstipulator). A promise by an addi- the death penalty for adu1terium.-D. 48.5 ; C. 9.9.-
tional stipulatio, in which the debtor of the original
See LEX IULIA DE ADULTERIIS, LENA, ACTIO DE MORI-
stipulation promised the same thing (idem) to an- BUS, BINAE NUPTIAE.
other person (adstipulator). The latter is entitled Hartmann, RE 1 ; Humbert, DS 1 ; Chiazzese, N D I 1 ;
to sue the debtor in the case of non-payment. The 8C. W.'.Westrup, Observations s u t la notion de la fidelitd,
internal relation between the first and the subsidiary 1927; Volterra, StCagl 1928; idem, RendLomb 63 (1930)
creditor is normally a mandate (agency), therefore 182; S t Bonfante 2 (1930) 109; Bandini, S t Ratti, 1934;
C. Corsanego, La repressione romana dell'adulterio, 1936 ;
the first creditor or his heirs might recover the sum Biondi, S t S a s 16 (1938) ; De Dominicis, S D H I 16
paid to his agent (procurator) through actio vnandati. (1950) 1.
Adstipulatio was primarily applied when a person A ~ U ~ ~ U See
S . ADULESCENS.
wanted to make sure that the payment would be made Adventicium (adventiciu-s). Acquisitions made by a
after his death, since a direct stipulation post vnortem slave or filius favnilias with means not taken from the
was invalid.-See MANDATUM, LEX AQUILIA,STIPU- master's or father's - property.-See
- . DOS, PECULIUM
LATIO POST MORTEM. ADVENTICIUM.
Pernice, Z S S 19 (1898) 178; Pringsheim, Z S S 42 (1921) Leonhard, R E 1 ; Albertario, Studi 1 (1933) 283.
malting ( L E N O C I ii l t ' w ) . 1',esi(leh, he or his father Kuhitscllck, 1213 1 ; Hutnl,crt. I),\' 1 ; I)c Ruggiero, D E
had to accusr the adulteress of adltlteri~l~n which now 1, 125.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
Aedes. ( I n sing.) A building of sacred character mals), and weights and measures used in the market,
(often aedes sacra) of a lower degree sacrally than and the like. A particularly heavy burden of theirs
a temple (templum). See DEPOSITIO I N AEDE. (PI.) was the cura kdovuw~, arrangement of the public
I n juristic texts, syn. for aedificium, and is applied games, on which they often spent considerable sums
primarily to urban buildings while the rustic ones are of their own in order to obtain the support of the
called villae. Juristically the terms aedes and aedi- people in the furtherance of their careers. The
ficium include the soil (solum,) and what is built creation of this magistracy is linked with the organi-
upon it (superficies) . Moreover, everything that is zation of the games inasmuch as the AEDILES PLEBE
within the building and serves for perpetual use (e.g., were not rich enough to afford such expenses. The
tubes for water supply) is a part of the building as aediles cuvules had criminal jurisdiction in minor
its accessory and shares the legal situation of the offenses. They were magistrates without imperiunt.
whole.-See VITIUM AEDIUM. -See ACTIONES AEDILICIAE, EDICTUM AEDILIUM CU-
De Ruggiero, D E 1 ; Weinstock, R E 5A (templum). RULIUM, CURA ANNONAE, DIES FASTI.
Aedificatio. Building a house. The construction of Kubitschek, R E 1 ; Humbert, DS 1 ; Stella-Maranca, N D I
houses is governed by building regulations (statutes, 1 (aedilitas) ; Anon., N D I 5 (edili) ; H. Vincent, LC
droit des idiles, 1922; De Ruggiero, DE 1 ; Sherwin-
senatusconsulta, imperial enactments) and is subject White, OCD; E. Manni, Pcr la storia dei municibii, 1947,
to the supervision of magistrates (aediles, censores 245.
for public buildings, under the Empire the praefectus Aediles plebis. Plebeian officers elected by the plebe-
urbi and his staff). Among the imperial enactments ians, to serve as assistants of the plebeian tribunes
the building regulation by the Emperor Zeno (C. whose orders they had to carry out (collegae mi-
8.10.12, 474-491) is the most important. The in- nores). Until the creation of the AEDILES CURULES
terests of the neighbors are protected by OPERIS NOVI (patrician magistrates), their responsibility was rather
NUNTIATIO, a kind of protestation against a new large and embraced the same fields which were later
construction which may be detrimental to the owners assigned to the new magistracy, the AEDILES CURULES.
of adjacent buildings or lands. On the other hand, They enjoyed inviolability like the dibunes of the
the house builder who gives sufficient guaranty is plebs. After the creation of the patrician aediles,
protected by a special interdict ne vis fiat aedificanti they were somewhat in the shadow in spite of a
( = that force should not be used against the builder certain similarity in function. The plebeian aediles
of a house) against any disturbance. Unless special had no outward sign of their official rank. For their
permission is granted, building on public places is activity in the archives see LEX VALERIA HORATIA O N
prohibited. Demolition of constructions already SENATUSCONSULTA.
erected may be enforced by an interdict INTERDICTUM Siber, R E 21, 168; De Ruggiero, DE 1, 220; Humbert,
DS 1 ; Momigliano, 81411. della commissione archeologica
FICIORUM, Z E N O N I A N A E CONSTITUTIONES, OPERIS cotnunale di Roma 60 (1932/3) 218; E. Manni, Pcr la
NOVI NUNTIATIO.-C. 8.10.
storia dei ttzunicipii, 1947, 221.
Leonhard, R E 1 ; Berger, R E 9, 1656, 1670; Voigt, Die Aedilicius. Connected with the activity of the aedil~s.
rom. Baugesetse, BerSuchGCV 1903; Biondi, R I D R 44 See ACTIONES AEDILICIAE, EDICTUM AEDILIUM
CU-
(1936/7) 363; Capocci, S D H I 7 (1941) 155. RULIUM.
Aedificia. There is a distinction between private Aelius Gallus (Caius). A little known jurist of the
buildings (aedificia privata) which are in private end of the Republic, author of a juristic glossary:
ownership and public buildings (aedificia pttblica) "On the meaning of juristic terms."
which are res publicae and under the management Klebs, R E 1, 492, no. 58.
and supervision of public officials.-See AEDES,AEDI- Aelius Paetus Catus (Sextus). Consul in 198 B.c.;
FICATIO,OPERA PUBLICA.--C. 8.10.
he published a manual under the title "Tripertita,"
De Ruggiero, DE 1.
divided into three parts : the Twelve Tables, a com-
Aediles cereales. These officials were created by mentary on them, and the forms of legis acfiones
Caesar in 44 B.C. and ugiven
no fraud, no wrong, no violence when one does the rigidity of the ancient law, ius civile), and, at
something he has the right to do," or "when one times, it is strongly connected with ius, even being
avails himself of his own right" (D. 50.17; 55; presented as its substance, as in the Ciceronian say-
155.1) was sonlehow modified in Justinian's law ing, "the law is the established aequitas" (aequitas
under the influence of Christian ethics.-See N E M O constituta, Top. 9 ) where ius and aequitas appear
(NULLUS)VIDETUR, etc., N E M O D A M N U Metc., , UTI inseparable. Aequitas has its natural foundation in
SUO IURE. any human society, in its custon~s,and in its ethical
Riccobono, N D I 1 ; De Villiers, Nuisances ir~Roman Law, and social conceptions as well, and becomes law either
L Q R 17 (1981) 387; M. Rotondi, CcntCodPav, 1934; through customary practice or by legislative enact-
Riccobono, La teoria dell'abuso di diritto nella dottrina
romana, B I D R 46 (1939) 1 ; Stella-Maranca, S t Albertoni ments (this is the Ciceronian aequitas constituta) ;
2 (1933) 449; Kreller, filissbrauch der Rechte, Ztschr fur the connection between aeuuitas and ius naturale is
ausliindisches und intrri~i~tioaales
Prizlatrecht 2 (1937) 1 ; evident. Hence the frequent references to aequitas
BartoSek, A C I V c r 3 (1952) 191 (Bibl. 235). naturalis, reminiscent of the references to naturalis
Aequitas (aequum). Related to justice (iustitia, ratio. It is often adduced by the jurists as the reason
iltstlcnz) but distinguished from the positive law, itrs. for criticism of. or doubts -about. the fairness of an
One of the fundamental principles which direct or existing legal rule. The classical aequitas was a fer-
should direct the development of law; it is the cor- tile soil for the influence of Christian ethical doc-
rective and creative element in such development. trines. The evolution found its expression in Jus-
A law which is guided by aequitas is ius aequulli, its tinian's codification in which not only the conception
antonym is ius iniquutii. In the legal sphere aequitas of aequitas acquired a broader aspect but the terminol-
may k realized either by interpreting the existing ogy was also enriched by the addition of references
law or by supplenlenting it where an exact legal to terms like pietas, caritas, humanitas, benignitas,
provision is missing. Aequitas, as the word itself clementia. Many interpolations referring to these
indicates, implies the element of equality. Trans- ideas testify to that tendency of the emperor, but
ferred into the province of law it postulates equal not all of them added new doctrines and rules to the
treatment of all according to the conceptions nurtured classical Roman law, since the aequum was too
in the social (con~mon) conscience of the people deeply rooted in the conscience of the jurists. The
which change, of course, when social and economic place the classical aequitas acquired in Justinian's
conditions undergo a change. The Roman aequitas legal system is neatly characterized by the following
fulfilled its functions in the development of the Roman detail. A principle of fundamental importance for-
-
law. When the legal norms established in earlier mulated in a rescript of the emperor Antoninus Pius
law, written or not written, became inadequate to the (dou1)tless at the suggestion of a jurist of his council)
social and econon~icnecessities of the later age, the to the effect that "though changes in solemn forms
acquitas went into operation both in private law and are not easily to be admitted,-yet where aequitas
in civil procedure aswell as in judicial practice. The demands it help should be granted" (D. 4.1.7 pr.)
itrs honorarium was a large field in which the postu- is repeated, as a general rule, in the final title of
lates of equity were realized. On the other hand, Justinian's Digest On Rules of Ancient Law, under
the jurists also contributed a great deal in the same the name of the jurist Marcellus (D. 50.17.183) from
direction. Since the end of the Republic many whose Digesta the quotation of the rescript was ex-
juristic decisions were inspired by the principle of cerpted in one of the initial books of the Digest.
aequitas; among the classical jurists the most prolific Attempts to eliminate all references to aequitas,
contributor was Papinian. This is the meaning of aequunz, aequissinzum est, aequitas naturalis, etc.,
the famous definition of the jurist Celsus-put at the wherever they appear in excerpts of classical juristic
very beginning of the Digest (D.1.1.1 pr.)--"ius est works, must be rejected as one of those uncritical
ars boni er aequi" ( = law is the art of finding the exaggerations which have been so frequent in the
good and the just) which has recently been depre- modern search for interpolations, although nobody
ciated-unjustly-as an empty rhetorical phrase. will deny that some of those references belong to the
The Roman jurists as well as the officials who ad-
ministered the law were perfectly aware of the BENIGNUS.
nature of aequitas although they have not left an Kipp, R E 1 ; Humbert, DS 1 ; Riccobono, N D I 1 ; Jonkers,
exact definition of the word. It was precisely through R A C 1 (1941) ; Fadda, L'equitd ed il metodo dei giure-
their exercise of that "art" and by their perfect consulti rom., 1880; W . W . Buckland, Equity i n Rom. law,
1911; Brice, Rom. aequitas and English equity, George-
understanding what was bonuwz et aequum that the town Law Journal 2 (1913) ; Beseler, ZSS 45 (1925)
Roman jurists brought ius to the peak it reached in 453 ; Guarneri-Citati, Indice' (1927) 7 ; idem, St Ricco-
the classical period. Aequitas sometimes appears to bono, 1 (1936) 704; idem, Fschr Koschaker 1 (1939) 120;
be opposed to the itis then in force, particularly when Sokolowski, .St Bonfante 1 (1929) 190; Ragusa, Diritto e
equitd da Cicerone ai giureconsulti classici, AG 103 (1930)
it enters into its corrective function (when, for in- 87, 224; Giannini, AG 105 (1931) 194; Pringsheim, ZSS
stance, the aequitas of the praetor is placed ahead of 52 (1932) 86; C. A. Maschi, La roncezione naturalistica,
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW
1937, 311 ; M. P. Guibal, De l'injluence de la philosophie Aes alienum. "What we owe to another," a debt.
sur le dr. rom., 1937, 162; Albertario, Studi 5 (1937) 107; Ant. aes suum = "what another owes to us" (D.
Devilla, Ae. naturalis, StSas 16 (1938) 125 ; Bastnagel,
BIDR 45 (1948) 356; Condanari-Michler, S t Besta 3 50.16.213.1).
(1939) 505 ; Biondi, Scr Ferrini (Pavia, 1947, reprints, Humbert, DS 1 ; De Ruggiero, DE 1, 312.
1943) 210 ; Riccobono, BIDR 53/4 (1948) 32 (= AnPal Aes confessum. See CONFESSIO I N IURE.
20 [I9491 39) ; idem, Lineamenti della storia delle fonti, Aes equestre. The sum of money allotted to a cavalry-
1949, 108; Ridder, Aequitas non equity, Arrhiv fur Rechts- man for the purchase of a horse.-See EQUITES, LEGIS
und Sozialphilosophie 39 (1951) 181.
ACTIO PER PIGNORIS CAPIONEM..
Aequum et bonum. See B O N U M ET AEQUUM, AEQUI- Kubitschek, RE 1 ; Humbert, DS 1.
TAS, IUS EST ARS BONI ET AEQUI. Aes et libra. See PER AES ET LIBRAM.
Aer. The air. Belongs to the category of RES COM- Levy-Bruhl, LQR 60 (1944) 51.
M U N E S oM~1uM.-See CAELUM. Aes hordearium (hordiarium). The allowance for
Lardone, Air Late, Rev. 2 (1931) ; Riccobono, Riv di the purchase of fodder for a cavalryman's horse.-
diritto aeronautico 1 (1938).
See EQUITES, LEGIS ACTIO PER PIGNORIS CAPIONEM.
Aerarii. Citizens excluded from the centuriate and Schwahn, RE 7A, 57; Humbert, DS 1.
tribal organization (TRIBUS)by the censors and sub- Aes militare. The soldier's pay.-See TRIBUS,LEGIS
ject to the payment of a special poll-tax. They were ACTIO PER PIGNORIS CAPIONEM.
not ~ermittedto vote in comitia centuriata and conzitia Aes publicum. See COLLATIO.
tributa. Assignment to the aerarii was a form of Aes rude. Uncoined bronze which served to estimate
administrative punishment.-See NOTA CENSORIA. the value of things before coinage was introduced.
Kubitschek, RE 1 ; Humbert, DS 1 ; De Ruggiero, DE
1, 311. Aestimatio. The vaIuation in money of things, or of
damages and all kinds of losses one suffered through
Aerarium militare. A special military treasury insti-
tuted by Augustus. Tt provided pensions for veterans another's wrongful doing or by his non-fulfillment of
and was supported by donations of the emperor and a contractual obligation. Particularly important in
by the income from sales-and inheritance taxes. the recovery of damages was the estimation of the
The funds of the aerarium militare were administered interest (INTERESSE)of the person who endured
them.-See VERITAS.
by praefecti aerarii mi1itaris.-See CENTESIMA RERUM Orestano, AnCam 10 (1936) 227.
VENALIUM. VICESIMA HEREDITATIUM.
Aestimatio dotis. The valuation in money of the
Aerarium populi Romani. State treasury, also called
things which are constituted as a dowry. ~ h e i thei
aerarium Saturni because it was located in the temple restitution of the latter (dos aestimata) became an
of Saturn. It was also a central archive for docu- issue, only its fixed value entered into consideration,
ments connected with the financial and general ad- if a choice between restoration in kind and the return
ministration, for statutes passed by the popular as- of a sum of money has not been agreed upon.
semblies (LEXL I C I N I A IUNIA),senatusconsulta, and Volterra, RendLomb 66 (1933), 10i4; Wolff, Z S S 53
generally for all documents in which the state was (1933) 331.
interested, such as contracts with private individuals Aestimatio litis. See LITIS AESTIMATIO.
(see TABULAE PUBLICAE, TABULAE CENSORIAE) . Orig- Aestimatorius. See AESTIMATUM, ACTIO QUANTI
inally under the directorship of the quaqstors, then of MINORIS, INIURIA.
the praetors, it was submitted by Augustus to the Aestimatum. A transaction by which one receives
control of the senate. I n the Principate the chiefs goods, estimated at a fixed amoynt, from another on
of the aerarium were the praefecti aerarii Saturni. the condition that within a certain time the recipient
The aerariunz populi Rowaani is to be distinguished will either return the goods or pay the sum agreed
from the treasury of the emperor (see FISCUS). The
upon. Such agreements were generally made with
distinction gradually lost importance since the im- second-hand dealers who kept the profit when they
perial treasury absorbed the revenues of the aerariunz sold the goods at a higher price. In the meantime
more and more.-See TABULARIUM. the ownership normally remained with the real
Kubitschek, R E 1; Sachers, RE 4A, 1964; Humbert and
Guillaume, DS 1 ; De Ruggiero, DE 1, 309; Stella- owner, who did not care whether the recipient finally
Maranca, NDI 1 ; Foligno., NDI 5 (s.v. erario) ; Frank, decided to buy the things for himself or sold them
JRS 23 (1933) 143; S. v. Bolla, Die Entwicklung des to another,. In the case of non-fulfillment of the
Fiscus, 1938; Sutherland, Amer. Jour. of Philology 67 transaction the owner had an action called de aesti-
(1945) 151 ; Mattingly, OCD; O'Brien-Moore, RE Suppl. mato or aestimatoria.-D. 19.3.
6, 790; Jones, I R S 40 (1950) 23.
De Medio, I1 coiatractus aestimatorius, 1900 ; De rancisci,
Aerarium Saturni. See AERARIUM POPULI ROMANI. Synallagma 1 (1913) 85; Buckland, MPI. Cnrnil 1 (1926)
Aes. A copper coin, often syn. with AS. In a broader 139; idem, RHD 12 (1933) 217; P . Voci, Contratto (1946)
256; Pezzana, AG 140 (1951) 53.
sense = money.-See the following items.
Kubitschek, R E 1 ; Mattingly, OCD; idem, Numismatic Aetas. When used without any specific attribute (as,
Chronicle, 1943, 21. for instance, aetas minor, maior, perfects, adulta),
356 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
the word may indicate any human age. I n particular, 197; G. Longo, B I D R 46 (1939) 119; E. Volterra, La
in locutions connected with the protection of minors conception du mariage (Padova, 1940) 37; Wolff, ZSS
67 (1950) 296 (Bibl.) ; P . Rasi, Consensus jacit nuptias,
(such as rewzedizdln or beneficiuln aetatis, VENIA AETA- 1946.
TIS), aetas refers to minors, whereas when it is ap- Affectio societatis. Used with reference to the inten-
plied to the age of persons liberated from public tion of the parties to a contract of partnership.-See
charges (munera) or tutorship (tutela), elderly peo- SOCIETAS.
ple are meant. For the influence of the various Salvadore, Rivista di dir. civile 3 (1911) 681 ; Arangio-
stages of human life on legal capacity, see INFANS Ruiz, La societd, 1950, 63; van Oven, T R 19 (1951) 452.
PUBERES, IMPUBERES, MAIORES, IMPRUDENTIA, SUAE Africanus, Sextus Caecilius. A Roman jurist of the
AETATIS FIERI, MINORES.-See also the following middle of the second century after Christ, a younger
entries. contemporary of Julian and probably his pupil. H e
Leonhard, R E 1 ; Berger, R E 15, 1862. is the author of a collection of responsa, published
Aetas legitima. Not a technically exact term. Usu- under the title of Quaestiones (in nine books) ; many
ally refers to persons who have attained their ma- of them represent the opinion of Julian. From his
jority, as in phrases like post legitimam aetatem, twenty-book-collection of Epistulae one text only
legitimam aetatem complere. A favorite word in the is preserved.
language of Justinian's compilers and appears fre- Jors, R E 3 (5.v. Caecilius, no. 29) ; Orestano, N D I 1 ;
quently in interpolated texts. Sometimes there is Buhl, Z S S 2 (1881) 180; Lenel, Z S S 51 (1931) 1 ;
doubt about its actual significance because of the lack Degrassi, Epigraphica 3 (1941) 23.
of precision in the term-legitimus in Justinian's lan- Agens vice (vicem, vices). See VICE.
guage.-See LEGITIMUS. Agentes in rebus. Since the fourth century after
Berger, R E 15, 1683. Christ, a body of more than a thousand persons whose
Aetas perfecta. Not a technical term. Generally re- official duties varied widely in character. They acted
fers to the age of majority. chiefly as,police officers. Their competence also em-
Berger, R E 15, 1682. braced the provinces where during their frequent
Aetas pupillaris. See PUPILLUS. travels, they had to inspect the state post and to
Aetatis suae fieri. See SUAE AETATIS FIERI. report about misdemeanors and corruption of officials
Aeterna auctoritas. See ACTIO AUCTORITATIS. in other fields of administration. They developed a
Aeterna urbs. Rome (in later imperial constitutions). system of spying and denunciation and they exercised
a great influence at the imperial court as informers
and secret police, not seldom misusing their position.
Aeternitas. Eternity, immortality. The term was one
A group of them charged with the control of the
of the titles of the emperor in the later Empire (aeter-
cursus publicus (= state post) were called curiosi in
nitas imperialis, aeternitas nostra) .
Cumont, Rev. d'hist. et litte'rature rkligietrse 1 (1896)
allusion to their inquisitive activity.-C. 12.20; 21.
435; L. Berlinger, Titulatur der rum. Kaiser, 1935, 25; -See SCHOLAE.
Charlesworth, Harvard Theolog. Rev. 29 (1936) 122; Seeck, R E 1 ; Humbert, D S 1 ; De Ruggiero, DE 1, 355;
Ensslin, Gott-Kaiser, SbMiinch 1943, 6. Heft, 77. 0. Hirschfeld, Kleine Schriften, 1913, 624; E. Stein, Z S S
41 (1920) 194; A. E . R. Boak, Univ. o f Michigan Studies,
Adf-. See AFF-. Human. Series, 14 (1924) 68.
Aff ectio (affectus). A favorable disposition of one's Ager. Any kind of rural land, both arable and pasture,
mind towards a person or a thing. See AFFECTIO
not including buildings and villae (country-houses,
MARITALIS. With reference to juristic transactions
farm-houses) . The principal division is : ager pri-
the term is used in the same sense as aniljius ( = will,
vatus, in private ownership, and ager publicus, state
intention) and is charged with the same suspicion of
land considered to belong to the Roman people. The
Byzantine origin (see ANIMUS). The value which a
various types of public land assigned to private indi-
person attaches to an object (the so-called pretium
viduals are explained in the following items. The
hffectionis) is generally irrelevant when restitution
nature of some of them varied in the course of time
of damages done to it is demanded.
Guarneri-Citati, Indicc (1927) 8.
owing to the manifold agrarian legislation (see LEGES
AGRARIAE).I n the last analysis, through the gradual
Affectio maritalis. Conjugal affection conceived as a assignment of the agcr publicus to private individuals
continuous (not momentary) state of mind is a basic by various forms, all the land which in the earliest
element of intent in the Roman marriage. I t pre- times was ager publicus became ager privatus.
sumes the intention of living as husband and wife Kubitschek, R E 1 ; De Ruggiero, D E 1 ; Kaser, Typen
for life and of procreating legitimate children. The der rom. Bodenrechfe in drr sptiteren Republik, Z S S 62
attempt to eliminate the affectio maritalis from the (1942) ; M. Weber, Riint. Agrargeschichte in ihrer Be-
conception of marriage by the assumption that the deutung fur das Staats- und Privatrecht, 1891 (Italian
translation in Biblioteca di Storia econofnica, 2, 1891,1894).
pertinent texts are interpolated must be considered a
failure.-See CONCUBINATUS. Ager adsignatus. See ADSIGNATIO.
Ehrhardt, R E 17, 1479; E. Albertario, Studi 1 (1933) Ager colonicus. Land destined as the territory of a
Kubitschek, R E 1 ; Scliwalin, RE 7A. 10; Humbert, D S Agere cum plebe, populo, senatu. See I U S AGENDI
not immediately obey the praetor's order. At the Agnatio. The relationship among persons (agnati)
plaintiff's demand a normal trial was initiated in who are under the paternal power (patria potestas)
order to establish whether or not the defendant had of the same head of a family (pater familias) or who
fulfilled the interdictal order. The sponsio trial in- would have been if he were still alive. The agnatic
volved a penal element since the deiendant bound tie is created by descendance in the male line from a
himself by a stipulation (sponsio) to pay the plain- common ancestor. From earliest times agnatio was
tiff a penalty (poena) if his failure to obey the inter- the basis for rights of succession by intestacy accord-
dict was proved. In the case of an interdictum ing to the ius civile. Guardianship also falls on the
duplex each party had to promise to pay a penalty nearest agnatus.-Ant. cognatio.-Inst. 1.15; 3.2.-
if defeated, the defendant by sponsio, his adversary See HERES SUUS.
by restipulatio. Thus a counterpart to agere per Leonhard, R E 1 ; Baudry, D S 1 ; Paoli, N D I 1 ; Lenel,
sponsionem is agere ex restipulatione. The sponsio ZSS 37 (1914) ; Perozzi, B I D R 31 (1921) 88; Michon,
Mhl Cornil 2 (1926) 113; G. Goutelle, La lutte entre
was only a measure to con~pelthe party involved to l'agnation et cognation d propos du Sencons. Tertullianum,
fulfil the con~nlandof the magistrate. If, however, 1934; Carcaterra, AnBari 2 (1940) ; C, Castello, Dirttto
the restitution or exhibition ordered by the magistrate familiare, 1942, 123; Guarino, S D H I 10 (1944) 290.1 'dem,
was still not accon~plished,or if the defendant con- AnCat 1 (1947) 330, 3 (1949) 204; Lepri, S t Solazzi,
tinued to interfere with the plaintiff, contrary to a 1948, 299; Solazzi, A N a p 63 (1950).
prohibitory interdict issued, a specific action followed, Agnati (agnatus). See AGNAT1o 9 AGNAscl.-Ant.
called iudicium secutorium, the aim of which was COGNAT1.
to procure for the plaintiff full satisfaction for all AgnatiO postumi. See AGNASCI,POSTUMI.
damages and losses he had suffered from the obstinate *gnatus ~ r o x i m u s . The nearest relative among the
behavior of the defendant. (2) Another form of agnati. In matters of intestate succession and guard-
agere per sponsionem is applied when the question of ianship an a9natus proximus excludes the agnatus
ownership of a thing is involved. The party in pas- of a remoter degree.-Ant. agnatus inferioris gradus.
session of the thing promised the adversary a certain Lenel, Z S S 37 (1917) 129.
sum by sponsio (stipulatio) in the event that the Agnitio b ~ n ~ r u possessionis.
m The request of a
latter proved his ownership over the controversial Person addressed to the praetor that he be granted
thing. The action which followed was based on the the possession of an inheritance (bonorum possessio)
sponsio and the decision thereon was actually a deci- as successor according to the praetorian law (bono-
sion on the ownership. Here the sponsio had no rum possessor) .--See BoNoRUM POSSESSIO.
penal character and therefore the defeated possessor Leonhard, R E 1 ; -4rangio-Ruiz, F I R 3 (1943) no. 61 ;
did not pay the sum stipulated in the sponsio, the H..Kriiger, Z S S 64 (1944) 397, 405.
function of which is described as follows : "through it, Agnoscere. A general term for the assumption of
it is judged over the thing itselfH (per earn de re ipsa legal duties or the acknowledgment of a specific legal
iudicatur, Gaius, Inst. 4.94). Hence it is called situation Or transaction.-D. 25.3.
sfonsio fraeiudicialis because the legal situation es- Agnoscere bonorum possessionem. see AGNITIO BO-
tablished in the decision in the sponsio suit was ~ r e j u - NORUM POSSESSIONIS. Syn. petere bonorum posses-
dicial for all claims connected with the ownership si0nem.
(the delivery of the thing, or of its fruits, and the Agnoscere liberum (parturn). T o acknowledge the
like) .-See SPONSIO, PROVOCARE SPONSIONE. paternity of a child. A senatusconsultum de agnos-
Berger, RE 9, 1693; Jobb.&Duval, Et sur la proctdure cendis liberis established certain rules in the case of
civile 1. Agere P.s., 1896; Bozza, S t Boflfante 2 (1930) pregnancy of a divorced wife, designed to protect
589; Carcaterra, AnBari 2 (1940) 52; Kaser, Eigentum her rights against the former husband as well as the
u. Besitz, 1943, 282; Siber, Fschr Wenger 1 (1944) 69;
Arangio-Ruiz, La parola del passato 8 ( 1 ~ ~ 8142; ) v. latter's if the child was not his. The wife had to
Lubtow, Z S S 68 (1951) 337. declare formally to the husband se ex eo praegnatem
Agere praescriptis verbis. See ACTIO PRAESCRIPTIS esse.-D. 25.3.-See SENATUS CONSULTUM PLAN-
VERBIS. CIANUM.
Agerius. See ACLUS. Agnoscere signum. See SIGNUM.
Agnasci. To enter by birth (or by adoption) into the Agrimensores. Land(fie1d) surveyors. Syn. men-
agnatic group. The term is primarily used with ref- sores agrorum, agrarii, or simply mensores. The
erence to a person (son or grandson) born after 'the earliest were priests (augures) since the Romans at-
death of a testator. H e becomes the testator's heir tached a religious significance to the boundaries of a
(heres suus) by reason of the fact that he would have city or of a settlement and the act of tracing the
fallen in directly under the testator's paternal power boundaries was celebrated with sacred rites. Later,
if the latter were still alive. See POSTUMI. The term they were private individuals, experts in surveying.
is also applied to children born during the testator's An agrimensor engaged for the delimitation of a plot
lifetime after a will has been made.-See the fol- of land was not considered to be hired by locatio con-
lowing items. ductio; his services were treated as liberal, not sal-
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 359
aried, services. See HONORARIUM. He was respon- office. Political points of view often influenced the
sible, however, for fraud committed in the fulfillment composition of the list. The jurors for a specific
of his professional duties. A special action was trial were selected by agreement of the parties or by
granted-against an agrimensor who made a false lot (sortitio). The parties had the right to reject
report on boundaries (qui falsum modum dixerit). persons inacceptable to them (reicere, reiectio) .-
Under the Principate the agrimensores were trained See FERRE IUDICEM.
in special schools. Some were appointed as state Steinwenter, R E 9, 2466; Guillemin-Saglio-Humbert, D S
officials, chiefly for military purposes (division and 1 ; Fraccaro, RendLomb 52 (1919) 335; Kreller, Z S S
45 (1925).
assignment of conquered land, limitation of mili-
tary camps). In their private activity they functioned Album praetoris. A white board on which the prae-
as arbitrators in controversies about boundaries of torian edict was publicly announced together with its
private property or as experts in judicial trials on. legal rules, procedural formulae (actions, exceptions,
such matters.-See CONTROVERSIA DE FINE,DE LOCO. interdicts) and praetorian measures. A plaintiff who
-D. 11.6 ; C. 12.27. wanted to sue his adversary might lead him before
Fordyce and Balsdon, O C D (v. gromatici) ; Kubitschek, the album and indicate there the formula of action he
R E 1 ; Schulten, R E 7 (gromatici) ; Fabricius, R E 15 wished to apply against the defendant.
(mensor) ; Humbert, D S 1 ; Bolla, N D I 1 ; De Ruggiero, Album senatorium. The list of the members of the
D E 1 ; E. Levy, Privatstrafe und Schadensersatz, 1915, 52; senate.
idem, Konkurrenz der Klagen 2, 1 (1922) 241; Beeson, De Ruggiero, D E 1, 390.
Cl Phil01 23 (1928) 1 ; Albertario, S D H I 9 (1943) 27.
Aio. "I affirm." The word is used by a party to a Alea. In juristic language the term indicates any game
trial to stress his rights to the object in dispute, or of chance (not only dice). Claims arising from such
to assert the status of liberty of a ~ m a n(hun-c homi- games, which were generally forbidden, were not
nem liberum esse aio). actionable. The Justinian law admitted certain ex-
Ait (aiunt). In juristic writings, opinions of other ceptions.-See LEX ALEARIA, LEX CORNELIA
DE ALEA-
jurists are thus introduced in this way, e.g., Labeo ait. TORIRUS, LEX TITIA DE ALEATORIBUS.-C. 3.43.
Leonhard-Hartmann, R E 1 ; Humbert, D S 1.
In the commentaries on the praetorian edict, the Aleator. A gambler.-D. 11.5 ; C.3.43.-See ALEA.
words praetor ait (inquit) precede a literal quota- Alfenus Varus. A Roman jurist of the end of the
tion. Excerpts from statutes, senatusconsults 'and im- Republic, pupil of Servius Sulpicius Rufus, author of
perial enactments are also often attached to ait. an extensive work, Digesta, in forty books.
Ala. A cavalry unit of about five hundred men within Klebs-Jors, R E 1 ; Orestano, N D I 1 ; H. Kriiger, S t
the auxiliary armies (AUXILIA)under the command Bonfante 2 (1930) 326; L. De Sarlo, Alfeno Varo e i
of a praefectus alae (since Augustus). The auxiliary suoi Digesta, 1940.
cavalry has to be distinguished from the cavalry units Alienatio. Alienation, the transfer of property through
within the legions (equites legionis). a transaction (sale, donation). Certain things are
Cichorius, R E 1 ; Kiibler, R E 6, 279; De Ruggiero, D E 1. not alienable (RESLITIGIOSAE, land constituted as a
Album. A board painted white, exposed in public and dowry, fundus dotalis) and, on the other hand, certain
accessible to the people, on which announcements persons are not permitted to alienate their property
(edicta) of the magistrates were wiitten. Forgery because of the lack of legal ability to act by them-
of the text or damage intentionally done to the album selves (persons under guardianship or curatorship).
(corrumpere, corrujtio) can be prosecuted by any Insolvent debtors were prohibited from alienating
citizen through the actio de albo corrupto.-See their property fraudulently to the detriment of the
ALBUM PRAETORIS, ACT10 DE ALBO CORRUPTO. creditors (in fraudem creditoruun). See INTER-
Schmidt, R E 1 ; Guillaume-Saglio-Humbert, D S 1 ; Anon. DICTUM FRAUDATORIUM. For fraudulent alienation
NDI 1 ; Schulz, J R S 32 (1942) 88. by a freedman to the detriment of his patron, see
Album collegii. A list of the members of a collegium ACTIO CALVISIANA. For the alienation of a thing
as well as the bulletin board for internal announce- bequeathed in a last will to a legatee, see ADEMPTIO
ments in an association. LEGATI.-Inst. 2.8 ; C. 4.51 ; 52.
De Ruggiero, D E 1, 393. De Ruggiero, D E 1 ; Del Prete, N D I 1 ; De Robertis,
Album curiae (decurionum, ordinis decurionum) . AnBari 2 (1939) 7 1 ; Brasiello, S D H I 15 (1949) 114;
A. Burdese, Autorizzazione ad alienare, 1950.
The list of the members of municipal councils. I t
was published on a white board.-See CURIA,DE- Alienatio hereditatis. The transfer of an inheritance
CURIONES,, PROSCRIPTIO ALRI.-D. 50.3. before or after its acceptance by the heir is achieved
De Ruggiero, D E 1, 392; Kornemann, R E 4, 587; V . by I N IURE CESSIO HEREDITATIS.The alienation of
Hoesen and Johnson, Jour. Egyjtian Arch., 12 (1926) 116. an anticipated inheritance of a person still alive by
Album iudicum. The list of citizens qualified to as- a presumptive successor was not only void, but the
sume the function of juror in judicial trials, both seller also became unworthy (indignus) losing thereby
civil and criminal. Under the Republic the. album his right to receive anything from that particular
iudicum was prepared every year by the praetorian inheritance.
360 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
Alienatio in fraudem creditorum. See ALIENATIO, dren was established. Imperial constitutions and the
I NTERDICTUM FRAUDATORIUM. jurisdiction of the cognitio extra ordinem enlarged
Alienatio iudicii mutandi causa facta. The transfer the circle of persons obliged to reciprocal support
of a thing which is expected to be the object of litiga- (grandparents and grandchildren, wards, even ille-
tion in the near future, in order to change the con- gitimate children), which reached its apogee in Jus-
ditions of the trial to the disadvantage of the adver- tinian's law. This introduced a general obligation to
sary. The transaction could be rescinded by the provide alimenta for impoverished relatives as a duty
praetor through in integru++zrestitutio. In particular of piety (oficium pietatis). For alinzenta as a public
an alienation to a person of greater power (POTEN- institution, see ALIMENTARIUS, FACULTATES, ORATIO
TIORES)was forbidden.-D. 4.7; C. 2.54. MARCI.-D. 25.3 ; C. 5.26; 50.
Partsch, De l'kdit sur l'a.i.m., 1900; Mitteis, Z S S 30 De Ruggiero, DE 1, 408; Roberti, I1 diritto agli aliment;,
(1909) 451 ; Lenel, Z S S 37 (1916) 104; Kretschmar, Z S S Miscellanea Vermeersch 2 (1935) ; E. Albertario, Studi
40 (1919) 136, 48 (1928) 566; L. Charvet, La restitutio 1 (1933) 249; Lanfranchi, SDHI 6 (1940) 5 ; G. Longo,
in integrum des majeurs, 1920, 93. AnMac 17 (1948) 215; Sachers, Fschr Schulz 1 (1951)
Alieni iuris esse. T o be legally dependent upon the 310.
power of another. Syn. alieno iuri subiectus, in Alimenta legata. Legacy of sustenance. It com-
potestate alicuius esse. The power (ius, potestas) prised food (cibaria) , clothing (vestiaria) and lodg-
of another fell into different types and consequently ing (habitatio). The extent of such a legacy is
there was a distinction among persons alieni iuris. broadly discussed by the jurists in D. 34.1. It was
The most important group was that of persons subject normally combined with landed property as security.
to the paternal power (PATRIAPOTESTAS) of the head -See LEGATUM PENORIS.
of the family (PATERFAMILIAS). Other persons B. Biondi, Successione testamentaria, 1943, 463.
alieno iuri subiecti were wives under the power of Alimentarius. Connected with the distribution of ali-
the husbands (manus), persons in mancipio (see menta (provisions) among the poor. Pueri alimen-
M A N C I P I U M ) , and slaves (servi) under the donzinica tarii (puellae alimentariae) are indigent children who
potestas of their masters. Ant. sui iuris esse. Per- received alimenta from either imperial or private
sons alieni iuris might become sui iuris either through foundations (arca alimentaria, pecuniae alinzentariae) .
legal acts, which differed according to the form of The supervision of all such organizations in Italy and
potestas, or in consequence of certain events. Per- in the provinces was assigned to special procuratores
sons subject to paternal power become sui iuris (quaestores, praefecti) aliuulentorum.
through the death of the pater fanzilias, unless they Kubitschek, RE 1 ; Orestano, NDI 1 ; De Ruggiero, DE 1,
402, 408.
then come under the power of another person, as,
e.g., a grandson became subject to the patria potestas Alluvio. What a river has gradually added to the
of his father if they both had been under the potestas land along its bank. The landowner acquires owner-
of the grandfather. The release of a person alieni ship of the added soil (acccssio). If, however, a
iuris from paternal power in the lifetime of the father river swept away a piece of land and attached it to
was achieved by EMANCIPATIO, that of a slave by another's property, the former owner did not lose
MANUMISSIO.-Set?PATER FAMILIAS, PATRIA POTES- his rights KO the 'land carried away unless the acces-
TAS, SUI IURIS ESSE.-InSt. 1.8; 4.7; D. 1.6; 14.5 ; sion had became inseparable from the neighbor's land,
C. 4.26. as when, for instance, the trees stroke roots into the
Alienigenus. A foreigner (born in a foreign country j. latter.-C. 7.41.
Leonhard, RE 1 (adluvio) ; Baudry, DE 1 ; Pampaloni,
Alieno iuri subiectus. See ALIENI IURIS ESSE. StSen 43 (1929) 214; Naber, Ath 10 (1932) 37; Guarneri-
Alieno nomine. In the name (in behalf) of another Citati, BIDR 43 (1935) 25; Branca, AnTr 12 (1941) 50.
(e.g., agere, possidere, etc.). See NEMO ALIENO Alma urbs. In later imperial constitutions refers to
N O M I N E . - A ~ ~ s. uo (proprio) nonzine. Acting Constantinople.
alieno nonzine was subject to various restrictions Alter alteri obligatur (tenetur). Each party is obli-
which in the course of time were gradually repealed. gated to the other contractual partner. The phrase
G. Beseler, Juristische Miniaturen, 1929, 92. applies to reciprocal obligations in consensual con-
Alienum. (Noun.) All that belongs to another. tracts in which each party is bound to "what each
Alienum aes. See AES ALIENUM. has to perform for another ex aequo et bono (accord-
Alienum negotium. Another man's affair. See NEGO- ing to whit is just and fair) ," Gai Inst. 3.137, Iust.
TIORUM GESTIO. The law intervened in cases in Inst. 3.22.3.
which a person managed another's affairs without Altercatio. A legal controversy. Altercationes = al-
being authorized by him. ternating speeches of the advocates in a trial. Also
Alienus. See ALIENUM. Ant. PROPRIUS. a cross-examination of a witness.
Alimenta. Nourishment, the necessities of life, means Steinwenter, Z S S 65 (1947) 92.
of support. Under the Principate a reciprocal right Alterum tantum. As much again. Syn. duplum. The
to, and duty of, sustenance between parents and chil- expression is applied to actions in which the plaintiff
VOL.43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN L A W 361
is condemned to pay twofold the value of the object Ambitus. An oilen space two and a half Roman feet
in dispute. See ACTIONES I N SIMPLUM, DUPLUIVI. in width (duo pedes et scmis = sestcrtius PES) be-
Altiores. Persons of the highest social rank.-See tween neighboring l~ouses. Originally required hy
IIONESTIORES. the Twelve Tables, it fell later into disuse. See
Alumnus. A child nourished and brought up by a PARIES COMMUNTS, SERVITUS ONERIS FERENDI. New
I'erson not related to him by blood.-see EXPOSITIO. building regulations were introduced by the Emperor
De Ruggiero, D E 1 ; Volterra, S t Besta 1 (1939) 455, Zen0 (4741191). See AEDIFICATIO, ZENONIANAE
Alveus derelictus. A river bed abandoned by the CONSTITUTIONES.
flowing water. It belonged to the landowners on Brugi, R I S G 4 (1887) ; Berger, A C D R Roma, 1 (1934)
57.
the banks in proportion to the extent of their hold-
ings, while the new river bed was in the same legal Ambulare. The passing of a thing, a right or posses-
situation in which the former was: it a sion, from one person to another or successively to
fiuaten publicum (a river) if it had been such Persons "Y a change in the lega1 situation.
before.-See FLUMINA. Amica. See PAELEX.
De Ruggiero, D E 1 ; Scialoja, S t 1 (1933, e x 1889) 391; Castello, Matrimonio e concubinato (1940), 31, 41.
Andrich, A G 56 (1896) 101, 57 (1896) 59; Riccobono, Amici Augusti. Outstanding persons, senators or
S t Schupfer 1 (1898) 217; Guarneri-Citati, AnMac 1 knights (equites), admitted to solemn receptions by
(1926) 107; Branca, A n T r 12 (1941) 54.
the emperor. They have no official position. From
Amatorius. See V E N E N U M . Diocletian's time the title amici Augusti was auto-
Ambigere. T O doubt, dispute, call into question. matically granted to higher court officials.
Legal decisions or rules are often introduced apodic- Oehler, R E 1, 1831 ; Ciccotti, D E 1.
tically by non est ambigendurn, non ambigitur ( = Amicitia (fsedus amicitiae). A treaty of friendship
there is no doubt). between Rome and another state establishing peaceful
~er~eK r , ~ V14 (1912) 415 ; Guarneri-Citati, Indice' and friendly relations.-See A M I C U S POPULI R O M A N I .
(1927) 10.
Gallet, R H D 16 (1937) 235; Heuss, Klio, Beiheft 31
Ambigua VOX. An obscure, ambiguous term. When (1933) 12, 78; Paradisi, Scr Ferrini 2 (Univ. Sacro
it is used in a statute, "that meaning of it ought rather Cuore, Milan, 1947) 178; Manni, Rivista di filol. clas.
to be accepted which is blameless (vitio caret = free 1949, 79.
from fault.), particularly when the intention of the Amicus populi Romani. A title granted by the senate
law can also be thereby concluded" (D. 1,3.19).- to individuals who rendered special services to the
See INTERPRETATIO. Republic. A state with which Rome has a friendship
Ambiguitas (ambiguus). Ambiguity, vagueness. treaty. See AMICITI-4. A Stronger degree of inter-
The terms are used with predilection by Justinian national relations with Rome was that of societas, by
and his compilers. But the phrase nun est ambigui which a foreign State became an ally (socius) of the
iuris ( = it is a certain law) is frequent in Diocletian's Roman State (populi Romani) and was bound to give
constitutions. The monograph "De ambiguitafibus" military aid in the event of war.
ascribed to the jurist Julian may be a collection of V. Ferrenbach, Die amici p. R . republikanischer Zeit, 1895.
doubtful questions collected in a later period from the Amovere. T o purloin, put aside. The term has a
jurist's works.-See AMBIGERE, AMBIGUA VOX. milder color than furari (furtum committere = to
Himmelschein, Symbolae Friburgenses Lenel (1932) 409. steal) and is applied when there is no real theft,
Ambire. T o canvass in eleictions for magisterial posts. as, for instance, when important documents or things
Ambitio. Bias, partiality (e.g., of a judge). belonging to an inheritance are hidden by the heir.
Ambitus. TJnlawful maneuvers in elections. A series between see ACT1o RERUM
of statutes (see LEX AURELIA, CALPURNIA, CORNELIA, AMOTARUM.
CORNELIA iAEBIA, CORNELIA FULVIA, IULIA, pOETELIA, Ampliatio. In Roman criminal procedure the reitera-
POMPEIA)dealt with dishonest and corrupt electoral tion of all the evidence when the jury declared that
practices by the candidates for magistracks (bribery, the Case has not been sufficiently elucidated and
banquets, circus plays, canvassing by hnworthy required further (anzpliuJ) investigation.
means). The legislation against ambitus may not Humbert, D S 1 ; Berger, O C D ; Balsdon, Pajers of the
Brit. School at Rome, 1938, 109.
have been very effective since the various prohibi-
tions had to be repeated under the ~ ~ ~time ~ Amplissimus
b l i ~ ordo. The senate.-See SENATUS.
and again and the penalties became more atld more Amplitudo. A distinctive title of the highest func-
severe (pecuniary fines, loss of ius honorum, exclu- tionaries in the later Empire ("your Excellency'').
sion from the senate [ k x Calpurnia of 67 B.c.], in- Anastasianae leges* See LEGEsANASTASIANAE.
famy, exile) until the lex Iulia of ~~~~~t~~ of 18 Anatocismus. The transformation of interest due and
B.C. introduced some moderations. not paid into a new interest bearing principal. The
Hartmann, RE 1 ; Humbert, D S 1 ; G. Chaigne, L'ambitus term is unknown in juristic Sources. Syn. USurUe
et les mceurs hlectorales des Romains, 1911. usurarum. Although forbidden, it was practiced in
362 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
Cicero's time as anatocisit~us anniversarius (= an- reference to last wills and testaments, the syn. term
nually compounded interest). Justinian forbade it voluntas ( testantis, testatoris) prevails. Intention is
definitely. distinguished from what a person declared orally
Leonhard, R E 1 ; Caillemer, D S 1. whether by solemn, prescribed words or informally
Anatolius. A law professor in Beirut, one of the or in writing. A contradiction between intention
compilers of the Digest. Anatolius (the same?) is (anitnus, voluntas) and the words expressed (verba)
known as a commentator on Justinian's Code. might influence the validity of the act accomplished.
Hartmann, R E 1, 2073; Berger, BY^. 17 (1945) 1 (Bibl.1. After the archaic and preclassical periods of rigid
Ancilla. A female slave.-See PARTUS ANCILLAE, formalism in legal transactions, the importance of the
PROSTITUERE. animus (voluntas) with regard to the validity of the
De Ruggiero, D E 1 ; F. M. De Robertis, La organizsazione act was gradually recognized already in classical time,
e la tecnica produttiva, 1946, 156. although there is in the modern Romanistic literature
Aneglogistus. Exempt from the duty of giving ac- a tendency to ascribe all occurrences of animus in
count. The term is used on a guardian appointed in JUstinian's codification, chiefly in the contractual do-
a testament and relieved by the testator from giving ,,in, to the innovation or at least to post-
account of his administration of the ward's Property. classical origin. The tendency mentioned is doubtless
The guardian was, however, liable for fraud in spite an exaggeration though the interpolation of many
of the testator's order. tekts in which the anittzus is emphatically stressed is
Arangio-Ruiz and Colombo, Jour. of Juristic PaPYrologY beyond the question. ~h~ connection between aninzus
4 (1950) 121.
and various legal institutions differs in intensity; its
Angaria (angariae). C o m ~ u l s o rservice
~ in the im- significance in the Roman doctrine of possession
perial Post Or in the of Persons Or (anillto possidere) is particularly well elaborated.
things in official business (cursas fiablicus). The Syn. wit]l is sometimes AFFECT1,, (affectur),
same term indicates the animals (oxen, horses = sometimes rnens, as in the phrase eo tznimo ut (ea
veredi) as as the carriages to be provided for ?nente ut) = with the intention that.-See "OLUNTAs
that purpose. Later imperial legislation dealt with and the following items.
the organization of official transportation and postal Guarneri-Citati, Indice2 (1927) 10; idem, Fschr KO-
service, which had become a great burden to land- schaker 1 (1939) 122; Donatuti, B I D R 34 (1925) ; Soko-
owners.-C. 12.50. lowski, Mkl Cornil 2 (1926) ; Riccobono, ibid. 378; idem,
Seeck, R E 1 ; Humbert, D S 1, 1659; Rostowzew, Klio 6 A C D R Roma 1 (1934) ; Pringsheim, L Q R 49 (1933) 45;
(1906) 245. Albertario, Studi 5 (1937) 125 ; Maschi, Studi sull'inter-
pretazione dei legati. Verba e voluntas, 1938.
Angustus clavus. A narrow purple stripe on the
tunic, a distinctive mark of the equestrian rank.-Ant. Animus adimendi legatum. See ADEMPTIO LEGATI.
latus clavus (for senators) .-See CLAVUS LATUS. Animus contrahendi. ( O r animus contrahendae obli-
Hula, R E 4, 6 ; De Ruggiero, D E 2, 306. gationis.) Occurs in a few texts. Sometimes the
type of the contract is specified: anifnus emend;,
Animadversio (animadvertere). Any kind of punish-
vendendi, transigendi, prowzittentis, stipulantiurn,
ment, but most often capital punishment. Anirnad-
versio gladio (aninzadversio capitis) = decapitation. cornpensnndi, etc.
Anirnadversus = a man who was executed in con- Animus damni dandi. The intention to damage a
formity to a death sentence. thing. I t is used in connection with damages done
Animalia. A distinction was made between wild ani- to testaments.
Animus decipiendi. The intention to deceive (de-
mals living in a natural state of liberty (ferae bestiae)
fraud) another.
and those who go away and come back to their former
Animus derelinquendi (derelinquentis). See DERE-
place (pigeons, bees, stags). The latter belonged to
the occupant and as long as they retain the habit of LICTIO.
Animus donandi. The intention to make a gift.-
returning to his property (consuetude, ani9nus re-
See DONATIO.
vertendi).--See FERAE,A N I M U S REVERTENDI, ACTIO
Pringsheim, Z S S 42 (1921) 273; Biondi, Scr Fcrrini 1
DE PAUPERIE. (Univ. Sacro Cuore, Milan, 1947) 133.
Animalia quae ~0110dorsove domantur. Domestic Animus furandi (furis, furti faciendi). See FURTUM,
animals of draft and burden (horses, oxen, asses, Berger, B I D R 32 (1922, printed 1915) 182; Albertario,
mules, but not elephants and camels). They are RES A.f. (1923, = Studi 3 [I9361 209).
L ~ A N C I P I . - - SPECUS.
~~ .
Animus iniuriae (faciendae) See INIURTA.
Animus. The intention (will) of a person concluding Animus intercedendi. See INTERCESSIO.
a transaction with another or acting unilaterally in Animus legandi. See LEGATUM.
order to accomplish an act with legal effects. Animus Animus liberorum procreandorum. Procreation of
is also connected with certain wrongdoing in order to children is considered to be an element of intent in
stress that the person acted intentionally (animus concluding a marriage.
furandi, iniuriae faciendae, occidendi, etc.) . With Animus lucrandi (lucri faciendi). See FURTLJM.
VOL.43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN I,AW 363
Animus negotia aliena gerendi. See NEGOTIORUMAnnona militaris. Provisions stt1)l)lietl I)y the popula-
GESTIO. tion in the provinces for the maintenance of t r o o ~ s
Riccobono, AnPal 3/4 (1917), 170; Rabel, St Bonfatrte 4 and government officials. In the later Empire this,
(1930) ; Erhardt, in Freiburger Rechfsgesch. Abhand- originally an emergency measure, hecame a perma-
lungen 5 (Romanist. Studien 1935).
nent institution as a forin of taxation in kind.--
Animus novandi. See NOVATIO. C. 12.38.
Guarneri-Citati, Indice 2 (1927) 11 ; Scialaja, St Perozzi;"
De Ruggiero, D E 1 ; A. SegrP, loc. cit.; \.'an Bcrchem,
1925; Cornil, M i l Fournier, 1907, 8 7 ; H a g e r s t r h , Der
rom. Obligationsbegriff 2 (1941) Beil. p. 199. Mc'm. de la Socihtb dcs Antiquaires en France 80 (1937)
117.
Animus occidendi. The intention to kill a man.
Annona publica. See A N N O N A CIVICA.
Animus possidendi. The tern?, comnlon in literature, Annonarius. (Adj.) Connected with food adminis-
is rare in juristic sources, which also speak of animus tration.-See ANNONA.
Antestatus. One of the solemn witnesses at a manci- Apices. When used with a pertinent adjective, such as
ptrtio in the earliest law. His role in the act is not dizlini, sarri, augusti, indicates an imperial letter.
quite clear and he disappeared soon (there is no Apices iuris. Juristic subtlety, sophistry.
illention of him in Gaius). Apocha. A written receipt in which the creditor de-
I.c.ist, R E 1 ; Kaser, R E 5A, 1025; Kunkel, RE 14, 999; ,-Iares that he has received (uscripsi accepissen) the
I)e Ruggiero, DE 1, 491 ; S c h u ~ f e rR, I S G 47 (1910) 333;
Bonfante, Corso di dir. ram. 2, 2 (1928) 138. due him In Justinian.s law an apocha was fully
Anthianus. See FURIUS ANTITIANUS. valid only if it was not gainsaid within thirty days.
Antichresis. An agreement between creditor and Apocha publica = an official receipt issued for the
debtor by rnu.hich the forlller was granted the right P"Ynlent of taxes. 'yn. securitates.-C. '''22.
Leonhard, RE 1 ; Paoli, N D I 1 ; Frese, Z S S 18 (1897) ;
to use the thing pledged (land or house) and to Appleton, S t Scialoja 2 (1905) 503.
obtain income therefrom in lieu of interest. The
creditor might lease the property, live on it, or use Apochae Pompeianae. Receipts on wax tablets found
it otherwise. H e kept possession until the debt was in 1875 in the house of a banker in Pompei.
Arangio-Ruiz, F I R (1943) 400.
paid.
I-eonhard, R E 1 ; Manigk, Gl~~ubi~,erDcfriedigurtg
durch Apostata. A person who abandoned the Christian
Nutzurig. 1910; idrw, R E 20, 1276. faith. Penalties imposed on apostates by the Chris-
Antinomia. Justinian uses this Greek term, for which tian emperors included infamy, loss of the right to
he did not find a Latin sjnonynl, to indicate a con- make a last will or to take under one, and loss of
tradiction between legal norms. He proudly, though the right to receive a donation. Constantine added
n~istakenly, stresses that his codification is free confiscation of Property for those who turned to
fro111 contradictory statements (Deo auctore 8 = C. Judaism.-C.
1.17.1.8). Humbert, D S 1 (apostasie).
Antipherna. Gifts given by the husband to the wife Apostoli. See APPELLO. Syn. libelli dimissorii.-
as a counterpart to the dowry (in Greek phernt).- D. 496-See LITTERAE DIMISSORIAE.
See DONATIO A N T E NUPTIAS. Apparitores. Subordinate officials performing aux-
Antiqui. As a noun, or as an adjective in connection iliary services in the offices of magistrates and im-
with legutn auctoves, conditores, prudentes, etc., refers perial officials, such as secretaries (scribae), mes-
to former jurists, particularly those of more remote sengers (Gatores), heralds (praecones). The a!'-
tinles. I n Justinianps language by antiqui the classi- paritores normally served for longer periods of time
cal jurists are rneant.-See VETERES, I U S A N T I Q U U M . and thus became valuable aides to their superiors
Antiquo. See A (abbreviation for antiquo). who were appointed for one year only. Their influ-
Antiquum ius. See IUS ANTIQUUM, VETUS IUS. ence increased considerably during the Empire.
Anulus. A ring. It was an old Roman custom that They were organized in associations (collegia, de-
freeborn men wore rings Signandi causa, i.e., for seal- curiae upparitorurn). In the
ing written instrunlents they made or witnessed (e.g., constituted an important element in the bureaucratic
last wills). Syn. anltlllssignatorius.-See 1 ~ AsN U L I ~rganization of the government. A series of im-
AUREI, EQUITES. perial constitutions of the fourth and fifth centuries
~ ~ ~ M~~~ evident,
~ ~conclusive.
i ~ is one~of i dealt with
~ the ~privileges
~ and .duties of the upparitores
Justinian9s favorite superlatives, often applied to of the higher officials, as we learn "om Justinian'~
means of evidence (apertissivzae probationes).-See Code 12.52(53)-59(60) ; 61(62).-See IMMUNES,
PROBATIONES. DECURIAE APPARITORUM.
Guarneri-Citati, Indice' (1927) 11. Habel, R E 2 ; Humbert, D S 1 ; De Ruggiero, D E 1 ;
Waltzing, D E 2, 351, 369; Eliachkvitch, L a personnalitd
Apertura testamenti (tabularum, codicillorum). In juridique, 1942, 241 ; Dull, Z S S 53 (1943) 393.
connection with the introduction of an inheritance Appellatio (appello). An appeal by a litigant to a
tax (VICESIMA HEREDITATIUM), certain formalities
higher judicial court when the judgment of the lower
were fixed for the opening of a last will in the pres-
one was not in his favor. Introduced in the extra-
ence of a special official. From Hadrian's time the
ordinary proceedings (cognitio extra ordinenz) as a
competent office was the statio vicesimae. After the
acknowledgment of the signatures and seals b y the new procedural remedy, then gradually reformed,
witnesses, the testament was opened (aperire) and finally by Justinian, the appellatio developed into a
read aloud in public (recitatio testaiizenti). Later it general institution applicable to all judgments, in
was deposited in the archives together with a record both civil and criminal matters, except those of the
of the whole act of apertura. Personsinterested in praetorian prefect and decisions a admill-
the document were permitted to see it (inspicere) istrative character. Frivolous appeals were punished
ant1 to make a copy (describere) .-D. 29.3 ; 6.32 ; 52. pecuniary fines. Later, appeL1atio became
Wenger, R E 2A, 2407; B. Fiondi, Successione testamew- with provocatio, which in earlier times applied only
taria, 1943, 601 ; Arangio-Ruiz, F I R 1943, nos. 57, 58. to criminal cases.-D. 49.1-13; C. 7.62-70.-See
VOL.43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 365
CONSULTATIO. EDICTUM DE APPELLATIONIBUS. INIUS- AnMac 8 (1932) 243 ; G. Longo, R I S G 1928, 244; idem,
TUS,ORATIO MARCI,and the following items. S t Ratti, 1934, 57; Grosso, Scritti Santi Romano 4 (1940)
175.
Kipp, R E 2 ; Hartmann, ibid.; Humbert, D S 1 ; Orestano,
N D I 1 ; E. Perrot, L'appel duns la procbdure de Pordo Aquaeductus. Aqueducts for public use were under
iudiciorum, 1907; Lauria, A G 97 (1927) ; Sanfilippo, particular protection of the law. A decree of the
AnCam 8 (1934); Diill, Z S S 56 (1936) ; Wenger, R A C Senate of I I B.c., statutes (such as the LEX QUINCTIA)
1 (1942).
and frequent imperial enactments, especially in the
Appellator. The party to a trial who appeals from an later Elmpire, contained detailed backed
unfavorable judgment.-See APPELLATIO, APELLO.
by penal sanctions, designed to prevent damage to
Appellatorii libelli. See APPELLO. aqueducts.-Water conduits for private purposes
Appello. "1 appeal." This word was pronounced by
- -
were protected by interdicts.-C. 11.43.-See SERVI-
a litigant in order to announce that h e w a s appealing TUS AQUAEDUCTUS, INTERDICTUM DE AQUA, ACTIONES
from the judgment or decree of a magistrate to a POPULARES.
higher court. When made in writing in so-called Leonhard, R E 2 ; Labatut, D S 1 ; De Ruggiero, D E 1,
libelli appellatorii the appeal had to be filed with the 537; Gianzana, N D I 1 (s.v. acque private) ; Herschel,
judge of the lower court whose decision was being T h e tzuo books on the water supply of Frontinus, New
opposed. The latter then wrote a report (litterae York, 1913; Kornemann, R E 4, 1784; Weiss, Z S S 45
(1925) 87; De Robertis, La espropriazione per pubblica
dimissoriae, libelli dimissorii, apostoli) by which he utilitci, 1936, 95; Riccobono, F I R 1' (1941) 276.
"dismissed" the case and transmitted the appeal to Aquaeductus Venafranus. See EDICTUM DE AQUAE-
the higher court through the intermediary of the DUCTU VENAFRANO.
uppellator himself. Until the decision of the higher Aquae haustus. See SERVITUS AQUAE HAUSTUS.
tribunal was rendered, the first judgment remained Aquarius. A subordinate officer in the water admin-
without effect. istration. In a private household, aquarius is usually
Appius Claudius Caecus. A renowned jurist of about a slave who takes care of the water supply.
300 B.C. De Ruggiero, D E 1, 587.
Miinzer, R E 3, 2681 ; Schulz, History of Roman legal
science (1946) 9. Aquila, Iulius. A little known Roman jurist, con-
.
Amlicatio. See CLIENTES., I U S APPLICATIONIS.
A
~
or a common inheritance was assigned to an arbiter Arbitrium tutelae. ACTIO (IUDICIUM) TUTELAE.See
as was the establishment of boundaries between ad- TUTOR.-C. 5.57.
joining lands.-See ADDICERE, ADIUDICATIO, LEGIS Arbores caedere. For conflicts arising in connection
ACTIO PER IUDICIS ARBITRIVE POSTULATIONEM, IUDEX. with the cutting of trees by a neighbor or by an
Wlassak, R E 2 ; De Ruggiero, D E 1 ; R. Dull, Der Giite- unauthorized person, see INTERDICTUM DE ARBORIBUS
gedanke i m rom. Civilprozessrecht, 1931 ; Kaser, Fschr CAEDENDIS, ACTIO ARBORUM F U R T I M CAESARUM.-
Wenger 1 (1944) 115.
D. 43.27; 47.7.
Arbiter datus (delegatus, pedaneus). A person ap- Arca. A cash-box, in a larger sense the treasury of
pointed by a judicial magistrate to examine a par- a community (arca municipalis) or of a public or
ticular point in dispute in a civil trial, e.g., to check private corporation (arca collegii). Arca publica is
accounts, to establish the solvency of a guarantor, or the treasury of Rome; its divisions connected with
to calculate the quarta Falcidia (see LEX FALCIDIA). specific purposes are arca frumentaria, arca olearia,
Wlassak, R E 2, 410.
etc., for revenues and expenses resulting from the
Arbiter ex cornpromisso. An arbitrator chosen by sale and purchase of grain, oil and the like. Arca
voluntary agreement of the parties (COMPROMISSUM) fisci (fiscalis, Caesaris) is the state treasury under
to decide their dispute. His decision (sententia, pro- the Empire. Arca praefecturae is a particular treas-
nuntiatio arbitri) could be enforced only when the ury under the administration of the praefectus prae-
parties had, through reciprocal stipulations strength- torio.
ened by penalties, assumed the obligation of fulfilling Habel, R E 2 ; Humbert, D S 1 ; Fuchs, D E 1, 627 ; Beseler,
the arbitrator's judgment. Generally the duties of Z S S 46 (1926) 86.
the arbiter were fixed in the parties' agreement, the Arca alimentaria. See ALIMENTARIUS.
arbiter had more liberty, however, than a iudex Arca collegii. The treasury of an association.-See
bound by the formula in the formulary proceedings. COLLEGIUM.
The appointment of an arbiter is an extrajudicial De Ruggiero, D E 1, 629.
arrangement; later it received protection of the prae- Arca fisci, praefecturae, publica. See ARCA.
tor, who, by coercive measures, might compel the Arca provincialis. The treasury of a province, sup-
arbiter to carry out the duties conferred on him by ported by contributions of the provincial municipali-
the parties involved and assumed by him without the ties primarily for religious expenditures and for the
intervention of a magistrate.-See RECEPTUM ARBITRI, public games.
COMPROMISSUM (Bibl.). Arcadius Charisius. See CHARISIUS.
Arbitrari. The activity of an arbiter. Arcarius. The treasurer (cashier) in an arca. I n
Arbitrarius. ~ e ~ e n dupon i n ~the decision of the judge public arcae, he is the chief officer in charge of the
(iudex) .-See ACTIONES ARBITRARIAE. treasury.-C. 10.72.-See ARCA.
Arbitratus. See ARBITRIUM. Habel, R E 2 ; Humbert, D S 1 ; Fuchs, D E 1, 633.
Arbitratus (arbitrium) iudicis. See ACTIONES ARBI- Arcarius. (Adj.) See N O M I N A ARCARIA.
TRARIAE. Archiater sacri palatii. A physician-in-ordinary to
Arbitrium. A judgment, decision of an arbitrator. the emperor and the imperial family.-C. 12.13.
Syn. arbitratus. See ARBITER. The entire proceed- Archiepiscopus. An archbishop.
ings ending with a decision by an arbiter is also ~ r c h i t e c t u s . The ~rofession of an architectus was
called arbitrium, as is the interlocutory decision which considered one of the noblest liberal professions. An
could be handed down by the judge (iudex) in a architectus who deceived his client in the accomplish-
civil trial (in literature arbitriu~n-de restituendo) ment of the work ordered was prosecuted by an
under authority of the clause in the formula (clausula action similar to that against a dishonest land-
arbitvaria) : neque et res nrbitrio tzdo (sc. iudicis) S~rveyor.--See AGRIMENSORES.
re~fit~atll?',see ACTIONES ARBITRARIAE.-Seethe fore- Area. See LOCUS.
going entries, IURGIUM, RECEPTUM
ARBITRI. Arenarii. Men who hired themselves out for fights
Wlassak, RE 2.
with wild beasts in the circus (arena). They were
Arbitrium (arbitratus) boni viri. The judgment, free men but were treated as slaves by their em-
opinion of an honest, upright man to whom a contro- ployers, and belonged to the most despised social class.
versial point has been submitted. Pollack, R E 2.
Scaduto, AnPal 11 (1923) 24; Riccobono, M i l Cornil 2 Argentaria. A banker's business. Syn. mensa argen-
(1926) 310; Albertario, Studi 3 (1936) 283, 329; Grosso,
S D H I 1 (1935) 8 3 ; idem, Riv. di dir. commerciale 402
(1942) 227 ; Frezza, Nuova Riv. di dir. com. 2 (1949) 41. Argentarii. Bankers, owners of a banking firm. They
Arbitrium iudicis (iudicantis). See ACTIONES ARBI- performed various financial operations such as money
TRARIAE, A R B I T R I U M . changing, purchase and sale of coins, loans on in-
Arbitriurn liti(s) aestimandae. Proceedings for the terest, and on mortgage, and the like. Exact and
estimation of the value of an object in dispute in honest bookkeeping was obligatory of them since
nloney.-See LITIS AESTIMATIO. their books (rationes) enjoyed public confidence
Kipp, RE 1, 687; Huvelin, MI1 Ghrardin, 1907, 319. (fides publica), and had to be produced (edere ra-
VOL.43, FT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAN' 367
tiones, editio rationum) in trials in which their clients Law of sale, 1945, 22; F . Pringsheim, The Greek lazv of
were involved, as evidence even when the banker sale (Weimar, 1950) 333.
himself was not a party. The duty to produce their Arra s~onsalicia- See SPONSALIA.--C. 5.1.
books in court was precisely formulated in the prae- Koschaker, Z S S 33 (1912) ; Cornil, Z S S 48 (1928) ;
Volterra, RISG 2, 4, 5 (1927-1930) ; Grattier, Dictionnuire
torian edict, and a special action was granted against de droit canon. 1 (1935) 1050.
an "gentarius who r ~ f ~ s etod do so. When suing Arrianus. A Roman jurist of the classical period,
his customer for a debt (actio qua known only as the author of a monograph on inter-
experitur) the argentarius had to deduct from his dicts.
claim whatever he owed to the customer (agere cum Jors, RE 2, 1229.
cog~pensatione)since, when he demanded penny Arrius Menander. -4 Roman jurist who lived under
(flus nu'nmo he lost the case because Septimius Severus and Caracalla (early third ten-
of pLuspETIT1o.-Women were from the tury) and was a member of their councils (consilia).
banking business.-D. 2.13.-See MENSA, RELEGARE H e is the author of a treatise on military law (De re
PECUNIAM. militari) .
Oehler, RE 2 ; Saglio-Humbert, D S 1 ; De Ruggiero, DE Jors, RE 2, 1257.
1 ; La Fortuna, N D I 1 ; Voigt, ASachGW 10 (1888) 516;
A. Rossello, Argentarii 1, 1891 ; Mitteis, Z S S 19 (1898) Ars magics. See MAGI-4.
203; R. Beigel, Rechnungwesen und Buchfuhrung der Artes liberales. See OPERAE LIBERALES, STUDIA LI-
Romer, 1904, 206; E. Levy, Privatstrafe und Schadenser- BERALIA.
satz, 1915, 61; Platon, N H R D 33 (1909) 10; L. De Sarlo, Articulus. A legal rule or a special provision in a
11 documento come oggetto dei rapporti, 1935, 257 ; Solazzi,
Compensazione 2 (1950) 31. written legal enactment.
Argenturn. (1) Silver money; (2) the silver objects Artifices. Artists versed in fine arts or skilled in the
in a household. They might be altogether the object practice a art. were exempt
of one legacy (argentum legatum) .-D. 34.2 ; C. c ~ m ~ u l s o rpublic
y services (~nunera)in order to be
10.78. given the opportunity of developing their knowledge
De Ruggiero, DE 1. and skillfulness and of instructing others. A consti-
Arguere. T o accuse (and generally, to convict) a tution of the Emperor Constantine of A.D. 337 (C.
person of a crime. 10.66.1) contains a list of some forty professions
Argumenturn. A general term for all means 01 evi- entitled to such exemptions. Along with physicians
dence.-See PROBATIO, ARRA.
and veterinarians there are mentioned painters,
Aristo, Titius. A Roman jurist, member of the council sculptors, architects, goldsmiths, silversn~iths,potters,
of the emperor Trajan, author of annotations (nofae) armorers, glaziers, fullers, carpenters, etc.
to the works of some jurists of the Augustan period. Arvales fratres. Arval brethren. a group of twelve
-See DECRETA FRONTIANA. priests of senatorial origin whose duty it was to oh-
Orestano, N D I 206; Mommsen, Schriften serve certain rituals and to perform sacrifices in
(1905) 22; Sciascia, BIDR 49-50 (1948) 415. honor of the goddess Dea Dia and the deities wor-
Arrna. See VIS ARMATA, TELUM. shipped as protectors of agriculture. Protocols of
Arra (arrha). A sum of money or a thing ( a ring, for their priestly functions are preserved epigraphically.
instance) given as an earnest at the conclusion of a After the reorganization of the college of Arvals by
sale. In the classical law it was considered a means Augustus their activity was more and more devoted
of evidence only (argzementum emptionis contractae). the glarification of the Enlperor was
The origin of the institution lies in Greek sale prac- matically a member the grou1)) and his
tices. JUstinianjs law the buyer might withdraw AS. A Roman coin, originally of one pound of bronze
from the purchase by forfeiting the arm, whereas the libraLis). As a n~onetaryunit the as was divided
seller had to double the amount he received from the ztnciae. In juristic language, the term
buyer if he wanted to cancel the sale, This function served as a conception of a whole ; hence an heir who
of the arra-the parties' rig.,t to cancel the sale. inherited the entire estate was named heres ex osse.
(hence the name orra poenitentialis in literature)- Similarly, parts of an inheritance were indicated by
evidently was excluded when the formalities set by the corresponding terms used for an ~cncioand its
Justinian (written deed, intervention of a notary) multiples. Heres ex semisse was an heir whose share
had been completed. was a half of the estate. In general, the term involves
Foligno, NDI 1 ; G. Calogirou, Die a. im Vermb.gensrecht, the an object referred to, as, for instance,
1911; Senn, N R H D 37 (1913) 571; F. Bergold, Gesch. a legacy ex asse or ex asse possidere. In later times
und Wesen dcs arrhabo urtd dcr a., Diss. Erlangen, 1923; the as was reduced to four, and then to two ounces
Cornil, Z S S 48 (1928) 55; E. Popesco, La foftction Pin;- (unciae) .-see ASSIS DISTRIBUTIO, UNCIA.
tentielle des arrhes dons lo 7tctttc, 1925 ; Carusi, St Bonfante Kubitschek, RE 2( Hultsch, RE Suppl. 1 ; Lenormant,
4 (1930) 503 ; J. Partsch. .4us nachgelassertcn Schriften,
1931, 262; Levy, Sylilh Frib Lcrrcl, 1931, 133; Simonetos, RS 1 ; Pan~palorii.RISG 52 (1912) 131.
Fschr Koschaker 3 (1939) ; Massei, n l n R 48 (1941) 215 ; Ascendentes (adscendentes). Relatives in the as-
Steinwenter, RAC 1 (1943); F. De Zulueta, The Row. cending line (parents, grandparents, great-grand-
368 ADOLE' BERGER [TRANS.
AMER.
PHIL.SOC.
parents) on both the father's ( f c r virile~it S C . ~ I O J I ) DITIO. When the auctioil was in the interest of the
and ntother's side (per ~ttatrcm). Aht. dcscendcntcs. state, the aitctio was perfornletl by a qliclcstor, whereas
Syn. supcriorcs. when the sale of the prol~ertyof an insolvent debtor
Ass-. See ADS-. was ordered at the request of his private creditors, a
Assis distributio. 1 1 parnphlet of the jurist hlaecianus representative of the latter managed the sale. The
on the divisioil of the as.-See AS. owner himself might initiate a public sale of his prop-
E'atnpalo~li, I i l S G 52 (1912) 131. erty on his own behalf. The conditions of the auctio
Astrologi. 11lthough frequently prosecuted together were publicly announced (pracdiccre) ; the assign-
with others who illicitaltt divinationeut polliccntrlr ment to the highest bidder addicere.-See HASTA,
(illegally predict the future) as exercising a pro- SUBHASTATIO, LICITARI.
hibitetl profession, they did not disappear from Rome, Leist, R E 2, 2270; Humbert, D S 1 ; Platon, N H R D 33
especially since several emperors believed in astrology (1909) 137.
(as Vespasian, Hadrian, Septimius Severus, Cara- Auctor. A person who by giving his approval, i.e.,
calla) and the high society was not adverse to them. exercising his auctoritas, made valid the transaction
A course of strong action against the astrologers of another person who was not able to conclude a
(often identified with Chaldaei and tnathematici) be- transaction by hilnself. Such a person acting as an
gan with Diocletian who condemned the ars gnathe- auctor was primarily the guardian (tutor) who aucto-
~t~atica.Generally only the practice of astrology as ritatenz suawt interponit to the transaction concluded
a profession (exercitio, professio) for the prediction by his ward by declaring: auctor fio ("I approve").
of future events was punished. The knowledge Of the legally incapable ward it is said that he acts
(notitia) as such was not interdicted. Diocletian's tutore auctore. Azlctor is also used for the prede-
successors followed his severe regime against the cessor in title who transfers his right on another ( a
astrologers, especially with regard to foreigners. seller, for instance) and through the transaction as-
Riess, R E 2 ; Bouchk-Leclercq, D S 2, 316 ; Rogers, Classi- suines the guaranty that the acquirer will not be
cal Philology 26 (1931) 203; Cramer, Sem 9 (1951) 1. evicted from the thing transferred.--See LAUDARE
Ateius Capito. See CAPITO. AUCTOREM.
Athanasius. A Byzantine jurist of the second half Auctor. I n penal law, the person by whose influence,
of the sixth century, author of an epitome of Jus- instigation or order, a crime was committed.
tinian's Novels (about A.D. 572) systematically ar- Humbert, D S 1.
ranged in 22 titles. Auctor legis. The proposer of a statute. Syn, rogator.
Edition: C. G. E. Heimbach, Anecdota 1, 1838; Berger, Similarly, an emperor is named as auctor senatus-
B I D R Suppl. Post-Bellum, 55/56 (1951) 135. consulti, i.e., of the senatusconsult decreed on his
Athleta. Athletes who exercised their profession for proposal. Of the senators who by their auctoritas
the sake of glory and bravery (gloriae et wirtutis (approval) promote the passage of a law in the
caztsa) were granted certain privileges, such as ex- popular assemblies, it is said patres auctores fiunt.-
emption from public charges (MUNERA)and taxes. See AUCTORITAS SENATUS.
The Lex Aquilia does not apply when an athleta killed Auctorati. Persons who hired themselves out for
his adversary in the fight b y accident because the fighting as gladiators. Their condition was not far
element of iniuria was lacking. See LEX AQUILIA. from that of slaves.-See ARENARII, GLADIATORES.
Unlike actors and gladiators, athletes enjoyed high Kiibler, D E 1, 769.
esteem.-C. 10.54. Auctores. With or without the qualifiers iuris, or
Atilianus tutor. See LEX ATILIA. iuris scientiae, or scholae = jurisprudents.
Atilicinus. A jurist of about the middle of the first Humbert, D S 1.
century after Christ. Auctoritas. Authority, prestige; it is rather a moral
Joers, RE 2 ; Ferrini, Opere 2 (1929) 87. power than a legal one. The term is used with re-
Atilius. A n unknown jurist of the second century B.C. gard to groups,or persons who command obedience
-See SEMPRONIUS. and respect. I n this sense, legal and literary texts
Atrox. Atrocious, dreadful. The attribute is applied speak of auctoritas of the people (populi), of the
to certain crimes accomplished with particular vio- emperor (principis) , of the magistrates, judges, and
lence and cruelty, hence involving greater culpability jurisconsults, of a father or parents,' as well as of
and more severe punishment. that of a statute, of the law in general or of judicial
Atrox iniuria. See INIURIA ATROX. judgments. A legally technical meaning auctoritas
Atrox vis. See VIS. acquired in some fields of the private and public law.
Attestatio. Unknown in the classical juristic language, The significance of auctoritas varies according to the
the term is used in later imperial constitutions in the context in which it is used. Thus, in private law
sense of testimony. Syn. testatio, testiwtoniuwt. auctoritas occurs when a tutor acts as an auctor giv-
Auctio. A public sale by auction. I t was applied in ing his assent (auctoritatenz interponere) to a trans-
certain cases. See SECTIO BONORUM, BONORUM VEN- action concluded by his ward (pupillus) or by a
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 369
woman under his guardianship. By his auctoritas he entered the official ternlinology. Generally speaking,
gives legal weight to the transaction. Auctoritas is it is the personal prestige, the authority, the high
also the guaranty assumed by the vendor when trans- esteem which the emperor enjoyed as the first citizen
ferring his property.-See AUCTOR, ACTIO AUCTORI- in the state (princeps). It gave all his acts and
TATIS,D ENUNTIATIO EX AUCTORITATE, and the follow- orders a particular importance and significance in
ing items. legislative, judicial, and administrative fields. Sena-
Leist, R E 2 ; Bozzi, N D I 1 ; Heinze, Hernres 60 (1925) tusconsults were issued ex auctoritate principis and
348; De Visscher, R H D 1933, 603 (= Nouvelles Etudes, the authorization of the jurists to give answers to
1949, 141) ; idem, La jurisprudence romaine et la notion
de l'auctoritas, Recueil G l n y 1 (1934) 32; idem, R H D
legal questions addressed to them (ius respondendi)
1937, 573; F. Furst, A . i m Privat- und offentlichen Lcben was referred to the auctoritas principis. In a few
der rom. Republik, Diss. Marburg, 1934; F. Schulz, Prin- texts the auctoritas of certain emperors is stressed
ciples 1936, 164; Kahrstedt, Das Problem dcr a,, Gottin- (Hadrian, Septinlius Severus). Some emperors de-
gische Gelehrte Anceigen 200 (1938) 17; R. Heinze, fine their auctoritas as the source of their commands
V o m Grist des Romertums (1938) 1 ; Wagenvoort-Tellen-
bach, R A C 1 (1943) ; Staedler, Z S S 61 (1941) 77, 100; and decisions (ex auctoritate nostra) or underline
63 (1943) 384: H. Levy-Bruhl, Ann. Univ. Lyon 1942 the auctoritas of their rescripts and enactments.
(= ~ o u v e l l e sktudes, 1947, 1 4 ) ; De ~rancisci; Arcana Thus their auctoritas is transferred to their ordinances
imperii, 3, 1 (1948) 245 (Bibl.) ; Amirante, S t Solaaai themselves. Through the increasingly binding force
(1948) 375; Brasiello, ibid. 689; Schonbauer, S t Wien,
224, 2 (1946) 68; P. Noailles, Fas et ius (1948) 223 ; of the imperial constitutions, the frequency of ad-
idem, D u droit sacrd au droit civil, 1950, 236; Magdelain, ministrative orders of the emperors, and the privi-
R I D A 5 (= Mkl De Visscher 4, 1950) 127; Roussier, leges and distinctions granted to individuals by them,
R H D 29 (1951) 231. the content of auctoritas principis went beyond the
Auctoritas patris. The approval by, the authority of, mere personal authority and assumed sometimes the
the head of a family (pater familias). aspect of sovereignty. The term was never legally
Solazzi, Iura 2 (1951) 133. defined, not even under the absolute monarchy, al-
Auctoritas patrum. The ratification of statutes (and though it is very frequent in imperial constitutions of
elections) voted in the popular assemblies by the the fourth and fifth centuries.-See CONSTITUTIONES
senate (patres auctores fiunt). The word "patrum" P R I N C I P U M , PRINCEPS.
is reminiscent of the original senate composed of A. v. Premerstein, V o m Wesen und Werden des Prin-
patricians. Originally given subsequent to the vote zipats, 1937; Kiibler, K r V j 30 (1938) 29; A. Magdelain,
A$., 1947; P. De Francisci, Arcana imperii 3, 1 (1948)
of the counitia. the auctoritas patrum became later 303; Kunkel, Z S S 66 (1948) 437; M. Grant, From im-
rather a mere formality when the procedure was perium to auctoritas, 1946, 424 ; Pugliese and Carratelli,
changed and the senate gave its authorization before L a parola del passato 10 (1949) 29; Last, J R S 40 (1950)
the matter passed to the comitia or concilia p1ebis.- 119.
See AUCTORITAS SENATUS,SENATUS,LEX MAENIA, Auctoritas prudentium. See AUCTORITAS.
LEX VALERIA HORATIA. Auctoritas rei iudicatae, auctoritas rerum similiter
Lengle, R E 6A, 2467; O'Brien-Moore, R E Suppl. 6, 668, iudicatarum. See RES IUDICATA.
677; Humbert, D S 1 ; Biscardi, B I D R 48 (1941) 403;
Guarino, Studi Solazzi (1948) ; Biscardi, R H D 29 (1951) Auctoritas senatus. The previous or subsequent ap-
151. proval by the senate of statutes or elections-voted in
Auctoritas populi. Mentioned in cohnection with the popular assemblies. I t is syn. with azcctoritas
ADROGATIO for the validity of which the approval by patrum in the earlier centuries of the Roman history.
the people assembled was necessary. In the later Republic the term is applied to those de-
Auctoritas praefecti (praesidis). The personal au- crees of the senate which did not become senatlrs-
thority and influence of the prefects (particularly of consulta because of a formal defect or the inter-
the praefectus praetorio) or of the provincial gov- cession of a magistrate. In phrases like auctoritas
ernors. senatusconsulti, auctoritas means the same thing as
Auctoritas principis (principalis). The use of aucto- in references to statutes or other enactments.-See
ritas with reference to the emperor first appears in SENATUSCONSULTUM, AUCTORITAS, LEX PUBLILIA PHI-
the autobiography of Augustus (see RES GESTAE)in LONIS, AUCTORITAS PATRUM, INTERCESSIO.
Leist, RE 2, 2275; O'Brien-Moore, R E Suppl. 6, 718;
which he affirms, after having transferred the res Humbert, D S 1, 545; Volterra, N D I 12, 44; Kunkel, Z S S
publica to the senate and the people and after having 66 (1948) 437.
received the title Augustus (January, 27 B.c.) : "I Auctoritas tutoris. The cooperation (consent) of the
was superior to all others in authority (auctoritate guardian in transactions concluded by the ward ( a n
praestiti), but I had no more power (potestas) than inzpubes, a woman).-Inst. 1.21 ; D. 26.8; C. 5.59.-
my colleagues in the magistracy." Auctoritas means See AUCTORITAS, TUTELA.
here personal authority, moral and social influence, Sachers, R E 7A, 1554; Solazzi, A N a p 57 (1935) 212;
while potestas embraces legal power. Auctoritas has idem, S D H I 12 (1946) 7 ; De Visscher, ibid. 9 (1943)
no specific legal content, although after Augustus it 116; Solazzi, Iura 2 (1951) 133.
370 ADOLF B E R G E R [TRANS. AMER.
PHIL. SOC.
Audientia. Unknown in the language of the classical (sodales Augustales, in Italian municipalities seviri
jurists the term is used in later imperial constitutions [sexz~iri] Ai4gustales) or private individuals cor-
for legal proceedings, the judgment included. porate in a collegiu~n (corpus) Augustalium.
Albertario, SDHI 2 (1936) 161. Neumann, RE 2 ; Humbert, DS 1 ; v. Premerstein, DE 1,
Audientia episcopalis. See EPISCOPALIS AUDIENTIA. 828,834; L. R. Taylor, TAmPhilolA 45 (1914) 238 ; Nock,
M i l Bide2 2 (1934) 627; Harnmond, O C D (1949) 783.
Auditores. Law students attending the lectures of
jurists. A group of pupils of the jurist Servius Augustalis. See PRAEFECTUS AUGUSTALIS.-D. 1.17;
Sulpicius Rufus appears in the Digest as auditores C. 1.37.
Servii. Augusti. Two emperors, each being simultaneously
Auditorium. The audience hall in the imperial palace, head of the state.-See CONSORS IMPERII.
used also as a court room. Later auditorium often Augustus. An honorary title conferred on the first
means the court itself, sometimes even not an im- Roman emperor, the founder of the Roman Princi-
perial one. pate, C. Iulius Caesar Octavianus (27 B.c.-A.D. 14),
Kubitschek, RE 2 ; Humbert, DS 1. and then given by the Senate to his successors. I t
Aufidius Chius. An unknown Roman jurist, of the became later the usual title of the emperors. Jus-
first post-Christian century, mentioned only once in tinian called himself Semper Augustus.-See CON-
the Digest. SORTES IMPERII.
Jors, RE 2, 2291 (no. 17). Neumann, RE 2 ; Schonbauer, SbWien, 224, 2 (1946) 67 ;
Aufidius Namusa. One of the last Roman jurists un- M. Grant, Frow imperium to auctoritas, 1946, 444 (Bibl.).
der the Republic, a pupil of Servius Sulpicius Rufus Augustus. (Adj.) Connected with, or originating
and the editor of an extensive work composed of from, the emperor. The word occurs frequently in
excerpts from the writings of Servius' disciples (audi- imperial constitutions.-see DOMUS AUGUSTA.
tores Servii) .-See AUDITORES. A(u1us) Agk-rius. I n Gaius' Institutes this fictitious
Jors, RE 2, 2294 (no. 31) ; Kubler, RE 4A, 858. name is used in the formulae of several actions for
Aufidius Tucca. Another of the pupils of Servius the plaintiff (is qui agit, hence Agerius). The de-
Sulpicius Rufus, like Aufidius Narnusa.-See AUDI- fendant appears there as N(umerius) Negidius, an
TORES. imaginary name originating in the words numerare
Jors, RE 2, 2296 (no. 39). and negare, since the defendant is the man who has
Augures. A college of high priests among the sacer- to pay and normally denies the plaintiff's claim.
dotes populi Rolrtani. Originally they were only Wlassak, R E 1, 794.
three, but later their number gradually increased until Aurea. Golden words (sentences). It is the second
15 (16?). Certain priestly rituals were in their title of Gaius' Res Cottidianae, probably added to the
exclusive competence, in particular the interpreta- work in a later time.-See GAIUS,RES COTIDIANAE.
tion of all kinds of auspices (auspicia, auguria) on Aureus. A Roman gold coin of high value. As a
any occasion when consultation of the will of the monetary unit it was introduced by Caesar, equal to
gods was obligatory (the appointment of high priests, one hundred sesterces. Its gold content gradually
of the flalrten Dialis or of high magistrates [= in- diminished with the various monetary reforms. I n
auguratio], the opening of comitia meetings, the per- Justinian's legislation it was substituted for one
formance of an important public action). Besides ihousand sesterces (sestertiuun) in classical texts.
these official augures (augures publici), there were Syn. SOLIDUS.
numerous augures privati, both in Rome and in Lenormant, D S 1; Cesano, Bull. della Commissione
Italy, who assisted citizens in their private auspicia. archeol, comunale di Roma, 5, 6 (1929, 1930) ; Mattingly,
-See AGRIMENSORES, LEX DOMITIA, AUSPICIA,LEX O C D 210 ( s . v . coinage) ; M . Bahrfeldt, Die rom. Gold-
miinzenpriigung, 1923.
OGULNIA, T E M P L U M , IUS AUGURIUM, COMMENTARII
SACERDOTUM, DIVINATIO. Aurum argentumque. A special tax imposed on
Wissowa, RE 2 ; idem, Religion und Kultus der Romer, merchants once in five years. Syn. collatio lustralis.
1902, 450, 523 ; Muller and Waszink, R A C 1, 975 ; Spinaz- Ferrari, AVen 99, 2 (1939/40) 193.
zola, DE 1 ; F. David, Le droit augural et la divination Aurum coronarium. A conquered country had to
oficielle chez les R o ~ i . ,1905; H . Baranger, La thkorie
des auspices, ThPse, Paris, 1941, 102; Coli, SDHI 17 provide the victorious Roman general an amount in
(1951) 73. gold as a contribution to be used for the manufac-
Augusta. An honorary title of the emperor's wife turing of a crown for the triumphant commander
conferred by the senate. The first Augusta was Livia, when- he returned to Rome.-See TRIUMPHUS.-C.
Augustus' wife; the title was conferred on her after 10.76.
her death. Exceptionally, the title was given also to Kubitschek, RE 2 ; Humbert, DS 1 ; Moschella, NDI 4
(s.el. coronarium aurulra) ; Schubart, Arch. fur Papyrus-
a daughter of the emperor. forschung 14 (1941) 44; T . Klausen, Mitt. Deutsch.
Neumann, RE 2,2371 ; D e Ruggiero, D E 1, 925. Archaol. Inst. Rom, Rom. Abt. 59 (1944, published 1948)
Augustales. Persons associated in colleges devoted to 129; idem, RAC 1, 1014; Lacombrade, Rev. dtudes an-
the cult of Augustus. They were either priests ciennes 51 (1949) 54.
VOL.43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 371
Aurum tironicum. See TEMO. all citizens, against wrongful acts of the magistrates.
Kubitschek, R E 1 ; Humbert, D S 1. -See TRIBUNI PLEBIS,INTERCESSIO.
Aurum vicesimarium. See VICESIMA MANUMISSI- Aversio. Emere per aversionem (in aversione or
ONUM. aversione) to buy with a lump sum.
Auspicato. After having obtained approval of the Avulsio. The term does not appear in Roman juristic
gods through favorable auspicia. language, but is familiar in literature. I t indicates a
Auspicia. The observation of certain natural phe- piece of land carried away from its owner's property
nomena by competent priests (AUGURES) in order to by flowing water and attached to another's land.-
explore whether or not the gods approve an impor- See ALLUVIO.
tant public action about to be launched. When the Leonhard, R E 2 ; Pampaloni, Scritti 1 (1941) 431 (ex
signs observed (ex coelo = from the sky, such as 1884), 507 (ex 1885) ; idem, StSen 43 (1929) 214.
thunder, ex avibus = from the flight of birds, ex Azo (Azzo). A famous glossator (see GLOSSATORES) ,
tripudio = feeding chickens from a tripedal vessel, professor in the Law School in Bologna (1190-1229),
etc.) were interpreted by the priests in an unfavor- renowned for his commentary to Justinian's Code
able sense, the action was dropped. The right to (Summa Codicis) .
order auspicia (ius auspiciorum) was a prerogative Orestano, N D I 2, 172 ( s . v . Aezone) ; Maitland, Select
Passages from the works of Bracton and Azo, 1895.
of the higher magistrates and was sometimes misused
in o r d e r to thwart an action proposed by another
magistrate. The non-observance of auspicia or action
in defiance of an unfavorable prediction (contra ausA Bacchanalia. Orgiastic rites in the worship of Bac-
picia facta) might lead to the annulment of the chus, forbidden by the S E N A T U ~ C O N ~ U L T U MDE BAC-
whole action by the competent magistrate.-See CHANALIBUS.
OBNUNTIATIO. De Ruggiero, D E 1, 957.
Wissowa, R E 2 ; idem, Religion u. Kultus der Romer, 1902, Baldus (de Ubaldis). A famous post-gldssator, pupil
454 ; BouchC-Leclercq, D S 1 ; Stella-Maranca, NDI 1 ; of Bartolus, professor of law in various Italian uni-
Ericsson, Arch. fiir Religionmiss. 33 (1936) 294; H .
Baranger, La thiorie des auspices, Th$se, Paris, 1941; versities. H e died about 1400.-See GLOSSATORES.
Coli, S D H I 17 (1951) 96. L'opera di Baldo (per cura dell'univ. di Perugia) 1901;
Monti, N D I 2 (Bibl.).
Authenticum. The oricinal
" of a written document.
Authenticae tabulae testamenti = the oricinal written Balineum (balnearia, balneum). A bath-house.
will of a testator.-Ant.
u
[law]) in sixty books. It was initiated by the Em- of Rome, Tullus Hostilius who introduced the forinal
peror of Byzance, Basil the hlacedonian, and com- declaration of war (bellwn indicere) by the fetiales
pleted in the reign of his son, Leo the Wise, early since a war waged without prior declaration to the
in the tenth century. Starting from a sharp criticism enemy was considered unjust (iniustum) and im-
of Justinian's codification for having dealt with the pious (impium). Later it was in the competence of
same topics in its various parts, Leo ordered the col- the comitia centuriata to decide about the declaration
lection into single titles of provisions, taken from of war (lex de be110 indicendo).-See SENATUS, DE-
Justinian's Institutes, Digest, and Code, and also NUNTIARE, FETIALES, INDICERE BELLUM, LEGES DE
from the Novels, which dealt with each particular BELL0 INDICENDO, IUS FETIALE, OCCUPATIO, DEDITIO,
topic. H e followed, however, Justinian's example by INDUTIAE, REPETITIO RERUM.
further ordering that superfluous, controversial, and Liebenam, R E 4, 696; Berger, R E Suppl. 7, 383; Larsen,
obsolete matters be omitted. Apart from some legal O C D 958; C. Phillipson, Intern. law of Greece and Rome
provisions of the legislation of post-Justinian em- 2 (1911) 166; E . Seckel, Krieg und Recht in Rom., 1915;
Heuss, Klio, Beiheft 31 (1933) 18.
perors the Basilica are thus an Bbridged Greek sum-
Beneficiarii. Soldiers of a lower rank to whom their
mary of Justinian's codification, at times even a more
superiors granted the liberation from certain duties
or less literal translation of single texts thereof.
(nzunera). In the Empire the term indicates not
Works of writers of Justinian's time were exploited
only persons who had obtained a benefit (beneficium)
in a large measure for the codification, in particular,
for the Digest texts a summary (index) by an un- from the emperor or from a military commander but
known author (see ANONYXUS), for excerpts from also the assistants (staff) of high military and civil
officials.
Justinian's Code a commentary thereon by THALE- Domaszeu~ski, R E 3 ; Masquelez, D S 1 ; De Ruggiero,
LAEUS. Only about two-thirds of the Basilica are D E 1, 994; 0. Hirschfeld, Kleine Schriften, 1913, 581 ;
preserved in the known manuscripts. The contents Lopuszanski, AntCl 20 (1951) 7.
of the missing portions are revealed by a repertory Beneficium. A legal benefit or remedy of an excep-
("table of contents"), called TIPOUKEITOS ( = "where tional character, granted in certain legal situations or
is whatJ'). Some of the Basilica manuscripts are also to a specific category of persons by a statute, the prae-
provided with scholia, i.e., excerpts from juristic lit- torian edict, a senatusconsult or by the emperor (im-
erature written on Justinian's legislation during his perial constitutions). With regard to this last source
lifetime and afterwards (the so-called "older" scholia) ; the term is applied to privileges granted by the em-
a considerable number of scholia belong to juristic peror to individuals, groups of persons, municipalities
works of post-Basilican times. The scholia preserved or whole provinces.-See COMMENTARII BENEFICI-
are even more incomplete than the Basilica them- ORUM.
selves, some manuscripts of the Basilica being pre- Leonhard, R E 3 ; Baudry, D S 1 ; De Ruggiero, D E 1 ;
served without scholia at all. The Basilica constitute Orestano, S t Riccobono 3 (1936) 473.
a legal monument of the highest importance for our Beneficium abstinendi. Syn. ius abstinendi.-See
knowledge of Justinian and post-Justinian law in the ABSTINERE ( SE) HEREDITATE.
Byzantine Empire, and for the criticism of some texts Beneficium aetatis. See VENIA AETATIS,RESTITUTIO
of Justinian's Digest and Code in instances in which I N INTEGRUM.
the Greek text of the Basilica and their scholia is Beneficium cedendarum actionum. Before paying
better preserved than in the Latin manuscripts of the principal's debt the surety could demand cession
Justinian's legislation. of the actions the creditor had against the principal
Edition (with Latin translation) : G. E. Heimbach, Basili-
cortcllt libri 60, 1-6 (1833-1870), Suppl. 1, ed. Zachariae and other sureties.-See CESSIO.
v. Lingenthal (1846), Suppl. 2, ed. Mercati and Ferrini G. Kocera, Insolvcnza e responsabilitd sussidiaria, 1942, 89.
(1897) ; ed. without translation by J. Zepos, Basilica (2nd Beneficium competentiae. The term coined in litera-
ed., Athens, 1910-1912).-Lawson, LQR 46, 4 7 (1930, ture and generally accepted although unknown in
1931) ; idem, Z S S 49 (1929) ; Arangio-Ruiz, S t Albrrtoni
1 (1925) ; Scheltema, Probleme der Basiliken, T R 16 Roman juristic language indicates the right of a
(1939) 320; Guarino, Scr Ferrini (Univ. Pavia), 1946, debtor in certain cases to be condemned only "to
307; Berger, Scritti Ferrini 3 (Univ. Sacro Cuore, Milan, what he can do (pay)" (in id quod [quantum] facere
1948) 194; idem, T o kata podas, B I D R 55-56 (1952) 65. potest was the pertinent clause, inserted into the
Beatissimus. An attribute of the emperors in the condemnatio part of the formula). Facere means
fourth century. here "as far as his means permit" (quatenus facultates
De Ruggiero, D E 1, 981. eius permittunt). The exceptional measure is
Beatitudo. A title of the highest church dignitaries. granted in actions in which there was a specific rela-
Bellum. According to a tradition, it was the legendary tionship between plaintiff and defendant (for in-
founder of Rome, Romulus, who granted the Roman stance, when the debtor was an ascendant, a patron
people the right to decide about war, and-according or a former partner of the creditor, actions between
to Cicero (De rep. 2.17.31)-it was the third king husband and wife) or in which the claim had a spe-
VOL. 43, I'T. 2, 19531 ENCYC1,OPEDIC DIC'I'IONARY O F ROMAN LAW
cific character (claim by the donee for fulfillment of any further argumentation. Sometimes the decision
a donation promised, payment of a dowry promised is given abruptly (sed bcnignizts rst), just contrary
but not given, restitution of a dowry). Soldiers may to the one which may be expected. T h e classicality
oppose the bcncficiuwz cowzpctcntiac in any claim di- of such texts has long been sus1)ected and the terms
rected against them. The financial capacity of the mentioned above have been considered criteria of
defendant was differently estimated (taxatio) in the interpolations. There is no doubt that many of the
various cases. The brnrficiunz conzfictentiae was decisions based exclusively on benignitas ancl similar
strictly personal and not available to sureties. Its conceptions, such as pietas, caritas, benevolentia,
purpose was to protect the debtor from Leing deprived clcnzentia, are not of classical origin. The influence
of the necessary means of subsistence.-See FACUL- of Christian doctrines and philosophical ideas is un-
TATES, FACERE POSSE, CONDEMNATIO. deniable. But a general stigmatization of all the
Weiss, R E 17 (s.v. Notbedarf) ; Pampaloni, R I S G 52 pertinent texts invoking benignitas may be one of
(1912) 198; Zanzucchi, B I D R 29 (1916) 61; A. Levet, the usual exaggerations in the interpolationistic re-
Le binifice de compc'tence, 1927; Guarino, RendLomb 72,
2 (1938/9) 355, 401 ; idem, Fschr Koschaker 2 (1939) 49; search. Benignitas and analogous terms are familiar
idem, S D H I 7 (1941) 5 ; idem, R I S G 14 (1939) 153; in Cicero and other literarv sources. There is no
idem, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 299. reason to exclude a saying like this one: "In doubtful
Beneficium divisionis. Hadrian limited the liability matters preference should always be given to the
of fideiussores (sureties by FIDEIUSSIO)to the share more benign (benevolent, liberal) solution" (selnper
resulting from the division of the principal debt by in dubiis benigniora praeferenda sunt), inserted in
the number of solvent sureties. the Digest title "On various rules of the ancient law7'
Collinet, S t Albertoni 1 (1935) 271 ; G. Nocera, Insolvenza (50.17.56), from the classical law. T h e rule appears
(1942) 101, 198. in other texts in similar words. T h e road from
Beneficium excussionis (or ordinis). Both terms benignitas to aequitas is not a long one and one text
coined in riterature. Justinian gave a surety the (D. 1.3.25, by Modestinus) speaks directly of aequi-
right to compel the creditor who had sued him before tatis benignitas.-See BENIGNA INTERPRETATIO,
the principal, to sue the principal first. AEQUITAS.
Beneficium inventarii. According to an enactment of Guarneri-Citati, Indice delle parole, etc. 2 (1927) 14 and
Justinian, an heir had the right to call for an inven- Fschr Koschaker 1 (1939) 123; Albeitario, B I D R 33
tory of the inheritance. This gave him the benefit (1923) 65, 73 ; Laborderie-Boulou, R H D 26 (1948) 137 ;
Berger, I n dubiis benigiora, ACIVer 1 (1951) 187 (=
that he was liable for the debts of the testator and S e m 9 [1951] 36).
the legacies only to the amount of three quarters of Berytus. Beirut. There was a famous law school
the estate, the remaining fourth being reserved to him here which flourished particularly in the fifth and
as the so-called quarta Falcidia (see LEX FALCIDIA). sixth centuries after Christ. It had a fixed curricu-
The inventory was made in the presence of a notary lum and its professors (antecessores) were appointed
and representatives of the creditors of the estate. by the state. Two of them (Dorotheus and Anatolius)
Failure to request the beneficiunz inventarii within were selected by Justinian, who speaks of the Phoe-
the prescribed term (thirty days after notice of his nician city with high praise ("the city of the laws,"
institution as an heir) made the heres fully liable and leguvn nutrix = the nurse of the laws), for collabora-
deprived him of the Falcidian quarter.-See INVEN- tion in his codification. Fifth-century teachers at
TARIUM, SEPARATIO BONORUM. Berytus: Patricius, Cyrillus, Domninus, Demosthenes,
Beneficium ordinis. See BENEFICIUM EXCUSSIONIS. and Eudoxius, were held in great esteem.-C. 11.22.
Beneficium separationis. See SEPARATIO BONORTJM. Kiibler, R E lA, 398; P. De Francisci, Vita e studi a
Benigna interpretatio. A liberal, beneficial interpre- Berito, 1912; Peters, Die ostromischen Digestenkommen-
tation of a legal provision or of an individual ex- tare, 1913, 60; Pringsheim, Beryt und Bologna, Fschr
pression of will in legal transactions or testaments. Lenel 1921, 204; P. Collinet, Histoire de l'dcole de droit
d Beyrouth, 1925.
"Laws are to be interpreted in a more liberal manner
provided that their intention be respected" (D. Bes. Two-thirds of an as (= eight unciae). Bes indi-
1.3.18). "In criminal matters a more benign inter- cates two-thirds of any whole (an estate, for in-
pretation (sc. in favor of the accused) should be stance) .-See AS.
applied" (D. 50.17.155.2)-See INTERPRETATIO, RES Bestiae ferae. See FERAE BESTIAE,A N I M U S REVER-
DUBIAE,HUMANITAS, and the following item. TENDI. OBICERE BESTIIS.
Benigne (benignius), benignitas. All these expres- Bimus. See A N N U A , B I M A DIE.
sions are used in legal texts to introduce decisions Bina sponsalia. See BINAE NUPTIAE.
which, dictated by considerations of a moral rather Binae nuptiae. T h e Latin language has no word for
than a legal nature, are contrary to the strict rules bigamy. Speaking of bigamy, later juristic language
of law. Good will, charity, benevolence, and human- used the locution binas uxores habere. According to
ity are frequently invoked in order to save a trans- the Roman conception of marriage the existence of
action or legal situation in favor of a person, without two simultaneous marriages was legally impossible
374 ADOLF B E R G E R [TRANS.
AMER.
PHIL. SOC.
since the first marriage was considered automatically at both the conclusion and the execution of the as-
dissolved through the absence of the essential ele- sumed duties. Trials arising from such contracts are
ments (AFFECTIO MARITALIS, uninterrupted living in judged from the point of view of honesty and fairness
common). The praetorian edict pilnished, however, (iudicia bonae fidei). Acting bona fide (e.g., emere,
with infamy a person who attempted to constitute vendere, solvere, facere) or exercising certain rights
two marital unions at the same time. Two betrothals connected with a factual situation (bona fide possi-
(bina sponsalia) were punished as well. Under cer- dere) presumes the belief of a person that what he is
tain conditions, a bigamist might be accused of STU- doing is lawful and does not violate another's right.
PRUM,a bigamous woman of adultery. I n post- Such an erroneous belief may even be to the detri-
classical law bigamy was punished as a specific crime. ment of the person involved, as when a free man
-See IXFAMIA. bona fide considers himself a slave and acts as such
L'olterra, S t Ratti (1933) 299; P. Rasi, Consensus facit (liber homo bona fide serviens) .-See FIDES (Bibl.),
nuptias (1946) 194. I C D I C I A BONAE FIDEI, CONTRACTUS BONAE FIDEI, LIBER
Binas uxores habere. See BINAE NUPTIAE. HOMO, etC., USUCAPIO, BIS IDEM EXIGERE, POSSESSOR
Bis idem exigere. T o claim (to sue for) the same BONAE FIDEI.
thing twice from the same debtor. "Good faith does Leonhard, RE 3 ; Humbert, D S 1; Montel, N D I 2 ; Bon-
not allow (bona fides non patitur) the same thing to fante, Scritti giur. 2 (1926) 708; Pringsheim, ConfMil
1931, 201 ; Collinet, M i l Fournier, 1929, 71 ; J. Faure,
be twice exacted" (D. 50.17.57). The same is ex- Iusta causa et bonne foi, Lausanne, 1936.
pressed in the rule: bis de eadevn re ne sit a d o . - Bona liberti. A freedman's property.-See ADSIGNA-
See EADEM RES, BES IUDICATA, LITIS CONTESTATIO,
T I 0 LIBERTI.
REPETERE ACTIONEM.
or a \life itt Iltnntl. In this case the praetor granted claim the bonorum possessio or refused the succes-
the patron n bonortrtn possessio of half the freed- sion, the right to claim passed to the cognates of the
man's property. The same happened when a freed- next degree. In the fourth class, reciprocal rights
man who had no children or disinherited them, did to succession were given to husband and wife in the
not leave his patron (or the latter's children) a half absence of persons entitled in the foregoing classes,
of his estate. In tlie latter case the bonorunz pos- regardless of whether or not the wife was in vgzanu
srssio was contrn ttrhlllns. of her husband. I n an analogous manner, the prae-
G. I-a Pira, S~lcccssionehrreditaria intestata, 1930, 395; torian law reformed the intestate succession of a
C. Cosentini, S t srri liberti 1 (1948) 189, 2 (1950) 24, 155. freedman?s estate establishing in a
Bonorum possessio edictalis. See BoNoRUM POS- plicated manner seven classes of eligible persons,
SESSIO DECRETALIS. from the children of the freedman to the cognates
Bonorum possessio ex Carboniano edicto (Carboni- of his patron.-^. 38,543 ; 11 : C. 6.14 ; 15 ; 18.
ana). The praetorian edict provided that an i~lzpubes G. La Pira, La silccessione ereditaria intestata e contro il
whose legitimacy was contested might be granted a testanzcnto, 1930.
temporary bonortcllt posscssio intestati until he Bonorum possessio iuris civilis adiuvandi (confir-
reached puberty and his status of a legitimate child mandi) gratis. A bonorum Possessio given to a
was decided in his favor.--D. 37.10; C. 6.17. person who is entitled to the inheritance under the
Niedermeyer, ZSS 50 (1930) 78. civil law (ius civile).
Bonorum possessio ex testamento militis. See TES- Bonorum possessio iuris civilis corrigendi (emen-
T A M E N T U M MILITIS.-D. 37.13. dandi) gratia. A bonorum ~ossessiogiven to per-
Bonorum possessio furiosi nomine. A bonoyum sons not entitled under the ius cizile to the exclusion
posscssio dccretalis granted to the curator of an of those so entitled.
insane. It was provisory and became definite when Bonorum possessio iuris civilis supplendi gratia.
the insane regained capacity.-D. 37.3. A bonorum possessio given to a person who is not
H. Kruger, Z S S 64 (1944) 408. entitled to inherit under the ius civile, but without
Bonorum possessio intestati (ab intestato). sue-
the exclusion of persons SO entitled; when, for in-
cession according to praetorian law in case of in- stance, an emancipated son inherits under praetorian
testacy. Taking into consideration the cognatic tie law with those not emancipated.
alongside the agnatic one (an emancipated son, for Bonorum p0ssessi0 liberti intestati. See BONORUM
instance) and favoring in a larger measure the rela- POSSESSIO INTESTATI.
tives and the surviving spouse of the deceased the Lavaggi, StCagl 30 (1946).
praetor admitted to an intestate succession a number Bonorum ~ o s s e s s i olitis ordinandae gratis- A bo-
of persons excluded by the ius civile. The praetorian nOYum possessio granted exce~tionally to Persons
successors on intestacy were classified in four groups who would be entitled to a bonorum possessio intes-
(classes), which the jurists identified by adding the tati, in order to enable them to impugn the will of
word "21nde"(e.r en parte unde , . . vocantur the deceased as testamentum inoficiosum.--See
= from that part of the edict under which the perti- QcERELA INoFFICIOS1 TESTAMENTI
nent group was entitled to the bonorum possessio). BOnOrum possessio secundum tabulass '4 bonorum
Persons of a lower-ranking group were eligible only Possessio given to the heirs instituted in a will, which
when there were no successors in the foregoing ,-lass although void under the ius civile was, however, valid
or if the existing successors repudiated the inheri- according to the praetorian law, the requirements of
tance (sltccessioovdinunt). The first group, Mnde which were less formal than those of the ius civile.
libcri, embraced all children of the deceased, including -D. 37.11 ; C. 6+11.--SeeTESTAMENTUM, TESTA-
those emancipated, but excluding children adopted "ENTU" PRAETORIUM.
into another fanlily. An emancipated son did not Bonorum ~ O S S ~ S SSine ~ O re. See BONORUM POSSESS10
exclude his children who had remained in the family CUM RE.
of his father (i.e.. their grandfather). Later, accord- Arnb, Ment. Accad. di hlodena 12 (1914).
iIlg to an innovation ascribed to the jurist Julian Bonorum possessio unde cognati. See BONORUM
(nova clat~sula Iuliani), the emancipated son re- PoSSESSIO INTESTATI.
ceived half of the appropriate portion of the estate, B o n o r ~ m~ o s s e s s i o unde legitimi. See BoNoRUM
the other half being reserved for his children. The PossEssIo INTESTATI.
second group, ltnde legitimi, embraced the agnates Bonorum possessio unde liberi. See BONORUM POS-
who were lzeredes under the civil law (heredes legi- S E S S ~INTESTATI.
~
tinti). The third group, unde cognati, cornprized Bonorum possessio unde vir et uxor. See BONORUM
cognates until the sixth and (partly) seventh degrees, POSSESSIO INTESTATI.
primarily persons excluded from inheritance under Bonorum possessio ventris nomine. A bonorum
the itrs civile. .An innovation here was also the possessio granted to a pregnant woman whose child
stlccessio gradz~tlnt;if the nearest cognate failed to is presumed to be the successor of the deceased father.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 377
This is provisory until the legitimacy of the child Bonus vir. See ARBITIUM BONI VIRI, VIR BONUS,
born and his rights of succession are established.- BONUS PATER FAMILIAS.
D. 37.9. Brevi manu traditio. See TRADITIO BREVI M A N U .
Bonorum possessionem petere. See ACNITIO BONO- Breviarium Alaricianum (Alarici). See LEX R O M A N A
R U M POSSESSIONES. VISIGOTHORUM.
Bonorum possessor. A person to whom the praetor Brevis (breve). Any kind of lists and registers used
granted a bonorum possessio. "He succeeds in the in fiscal administration of the later Empire; in
place of the deceased under praetorian law" (Gai particular financial reports of public officials about
Inst. 4.34).-See BONORUM POSSESSIO and the fol- payments (taxes) received and administrative ex-
lowing items, ACNITIO BONORUM POSSESSIONIS, AC- penditures. Such reports ,had to be made in four-
TIONES FICTICIAE. month-periods (breves quadrimenstrui) . Brevis was
Bonorum proscriptio. See PROSCRIBERE BONA. also used for lists of tax-debtors. In military atlmin-
Bonorum sectio. See SECTIO BONORUM. istration, brevis = a list concerning the supply of pro-
visions for the army (see A N N O N A MILITARB).-
Bonorum separatio. See SEPARATIO BONORUM.
C. 1.42.
Bonorum venditio. The sale of the whole property Seeck, R E 3 ; Karlowa, Rom. Rechtsgeschichte 1 (1885)
(bona) of an insolvent debtor who even after it had 907.
been given into possession (missio in possessionem) Brutus, M. Iunius. A republican jurist of the second
of a creditor or creditors, failed to come to terms century B.c., author of a work on the ius civile
with them. The sale, an auction, was managed by (partly responsa) .
a magister under the supervision of the praetor. Bulgarus. A glossator of the twelfth century.-See
The property is assigned to the highest bidder (bo- IRNERIUS, GLOSSATORES.
norum emptor, bonorum emptio). The buyer had Monti, N D I 2 ; H. Kantorowicz, Studies in the Glossators
an interdict linterdictum possessorium) to obtain the of the R. Law (1938) 62, 241.
possession of things belonging to the debtor's bona Bustum. The place where the body of a dead person
that were held by another.-Inst. 3.12; C. 7.72.- was burned or buried. The Twelve Tables excluded
See LEX VENDITIONIS, DEDUCTIO. the usucapio of such places.-See ROCUS, USTRINA.
Leonhard, R E 3 (s.v. b, emptio) ; Beaudry-Beauchet- Mau, R E 3 ; Cuq, D S 2, 1394.
Collinet, D S 5 (s.v. venditio b.) ; Armuzzi, A G 72 (1904)
496; ~riatidafil,Du r6le du curator et magister duns la C
b. v., Rev. de droit et sociologie 1 (1916) ; Rotondi, Cent
CodPav, 1933 ; Carrelli, S D H I 4 (1937) 429, 10 (1944) C. Abbreviation for condemno.-See A.
302; Solazzi, I1 concorso dei creditor; 2 (1938) 61, 130; Cadaver. A dead body. Burning or burying a corpse
idem, La compensazione 2 (1950) 65. within the boundaries of the city of Rome was pro-
Bonum et aequum (aequum et bonum). (Also without, hibited by the Twelve Tables. An insult to the body,
"et.") Right and equitable, fair (ness) and just (ice). before or during the funeral, was considered an insult
The word: appear in the definition of ius by the to the heir, who had the actio iniuriarum directly
jurist Celsus (ius est ars boni et aequi), in the for- against the offender since "a contumely done to the
mula of actiones in aequuvz et bonum conceptae, and deceased concerns the heirs' reputation" (D. 47.10.
in the phrase ex bono et aequo. The locution bonum 1.4). Theft committed on a dead body was punished
aequuiqz appears also in the comparative degree melius by compulsory labor in mines (.metalla), in certain
aequius.--See AEQUITAS. circumstances (use of arms) by death. Justinian
Pringsheim, Z S S 52 (1932) 7 8 ; A. Leyval, Notion d'en- prohibited the seizure of the body of a dead debtor,
richissement injuste. Une application de b. et ae., These,
Alger, 1935, 6 8 ; Maschi, La concezione naturalistica, 1937, a custom which seems to have been practiced to
182; Riccobono, B I D R 53-54 (1948) 31 (= AnPal 20 compel the heirs to pay his debts.
[I9491 39) ; v. Lubtow, Z S S 66 (1948) 533; Beretta, Cadavera punitorum. The bodies of persons con-
S t Solazzi, 1948, 264. demned to death and executed; these must be deliv-
Bonus pater familias. The average type ofcan honest, ered to their relatives for burial.-D. 48.24.
prudent (prudens) and industrious (diligen~,studio- Cadere causa. T o lose a case in court, primarily for
sirs) man (father of a family), whose behavior in an excessive claim (plus petere) .-See PLUSPETITIO.
relations with other citizens is given as a pattern of Caduca. Testamentary dispositions made in favor of
an upright man and may be required from any one. persons who, according to certain statutes (leges
Acting contrary to what a bonus pater familias would caducariae), were incapable of acquiring under a will.
do in a given situation may serve as a basis for meas- The term indicates also the inheritance itself or the
uring his culpability and liability in a specific case.- legacy which became vacant because of the incapacity
See DILIGENS PATER FAMILIAS. of the heir or legatee or because of other reasons
Sachers, R E 18, p. 4, 2154; Predella, N D I 2 ; Fadda, Atti (death of the beneficiary before the opening of the
Accad. Napoli 32 (1901) ; D'Ameglio, Monitore dei Tri- testament or his refusal to accept the gift). Dis-
bunali, 1930, 441. positions which became void during the testator's life
378 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
are styled in causa caduci. The treatment of caduca and the other two Caesares (lower in rank and desig-
and the things in causa caduci was identical: they nate successors to the Augusti) .-See PRINCEPS.
were assigned to persons who benefited by the testa- Neurnann, RE 3, 1287.
ment if they had children. If such heirs or legatees Caesariani. Originally all servants in the imperial
were lacking the caduca went to the "treasury of the household were so termed. Later the term was ap-
Roman people" (acrariu~n,later fisc~ts). Already in plied to subordinate fiscal officials, concerned pri-
the later Empire some cases of caduca were abolished. marily with the seizure (confiscation) of property.
In an extensive constitution Justinian abrogated the Calata comitia. See COMITIA CALATA.
whole institution of caduca ("De caducis tollrndis," Calator. A slave assigned to the personal service of
C. 6.51.1) and fixed new general rules concerning his master and at his d i s ~ o s a lon call. Calatores
testamentary dispositions which became vacant for (kalatores) were also servants of the members of
any reason. A fundamental rule in the law of pontifical guilds.
caduca was that the person who benefited by them Samter, RE 3 ; De Ruggiero, ZIE 2.
received them with all charges (cum oncre) imposed Calculus. I n Justinian constitutions, the judgment of
by the testator, such as legacies, or manumissions. a judge or an arbitrator. I n the meaning of calcula-
-See CADUCORUM VINDICATIO. tion (reckoning) calculus is syn. with computatio.-
Leonhard, R E 3 (s.v. bona c . ) ; Humbert, D S 2 (s.v. C. 2.5.-See ERROR CALCULI.
bona c . ) ; Barbieri, St Bonfante 1 (1929) 565; Levet, Solazzi, RendLomb 58 (1925) 307.
R H D 14 (1935) ; v. Bolla, Z S S 59 (1939) 546; Vaccaro
Delogu, L'accrescimento nel dir. ereditario, 1941, 145; Calendarium. See KALENDARIUM.
Solazzi, S D H I 6 (1940) 165 ; idem, ANaQ 61 (1942) 71 ; Calliditas. Shrewdness.-See STELLIONATUS.
B. Biondi, Successione testa~nentaria,1943, 143; Besnier, Callistratus. A Roman jurist, presumably of Greek
R I D A 2 (1949) 93. origin. H e lived under Septimius Severus and Cara-
Caducorum vindicatio. The claim of a beneficiary to calla, and wrote Institutiones, Quaesfiones, and works
whom vacant parts of an inheritance or vacant lega- on criminal and fiscal law. The term edictum moni-
cies were awarded.-See CADUCA, COELIBES,ORBI. torium which appears in the title of one of his writ-
Caecilius Africanus. See AFRICANUS. ings, is not clear.
Caecus. Blind (caecitas = blindness). A blind man Kotz-Dobrz, R E Suppl. 3 ; Orestano, NDI 2 ; H . Kriiger,
could not witness a written testament. I I e was also St Bonfante 2 (1930) 327; J. B. Nordeblad, Index ver-
unable to assume a guardianship.-See TESTAMEN- borum quae Callistrati libris contineritur 1 (A-Is), Lund,
T U M CAECI.
1934; Schulz, History of Rom. legal science, 1946, 193.
Caelebs, caelibatus. See COELEBS,COELIBATUS. Calumnia. Trickery, deception in legal transactions
Caelestis. Celestial, divine. Referred in the later or in the interpretation of legal norms or of mani-
Empire to the emperor's enactments or letters. festations of will. I n a technical sense calulnnia re-
Caelius Sabinus. A Roman jurist (consul in A.D.69), fers to both civil and criminal matters. I n the first
who was the head of the ~ a b i n i a ngroup. H e wrote case it is a malicious vexation (vexare) of a person
a commentary on the aedilician edict.-See SABINI- with suits (litibus) "brouglit merely in order to
ANI, EDICTUM AEDILIUM CURULIUM. trouble the adversary and with the hope for success
Jors, RE 3. 1272 (no. 32). through a mistake or injustice of the judge" (Gai
Caelum (coelum). T h e aerial space over a private or Inst. 4.178). I n civil proceedings the defendant too
public property (supra locutn, caelum agri) . Al- may commit calu~~znia if he denies the plaintiff's claim
though air is not in private ownership, the immediate merely for chicanery. The principal remedies to
space over any property must remain free (liberum) prevent calumnia in civil trials is IUSIURANDUM
from another's interference in so far as its use. neces- (iuramentum) CALUMNIAE applicable to either party,
sary to the owner, is impaired by a neighbor or and (in classical law) IUDICIUM CALUMNIAE only in
anybody else.-See FUMUS, PROIECTIO, SERVITUTES favor of a defendant maliciously sued. I n the field
LUMINUM, AER. of the private law there is still another form of calum-
Pampaloni, Sulla condizione dello spacio aereo, AG 48 nia if a person receives money in order to annoy an-
(1892) 32; Bonfante, Corso di dir. rom. 2, 1 (1926) 219. other with vexatious trials (civil, criminal or fiscal).
Caesar. The name was originally a cognomen ( = Sur- The person to whose detriment such an illicit ar-
name) of the emperor Augustus as adoptive son of rangement was made, was granted against the man
C. Tulius Caesar and was used as such bv the mem- who rekeived the money a praetorian action, pro-
bers of his adoptive family. Later it was assumed posed in the Edict, for four times the sum which had
by the emperors as a part of their imperial title been given him as the price of his complicity.-In
("Imperator Caesar . . ."). Until Hadrian's time criminal law calumnia (crimen calumniae) was com-
the descendants of an emDeror also bore this title mitted when a person accused another in full knowl-
but thereafter only the destined successor and co- edge that the latter is innocent. Such a falsa accu-
regents used it. Under Diocletian's reform of the satio made in bad faith was punished by branding
government (tetrarchy) two emperors were Augusti the calumniator with the letter K (abbreviation for
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 379
kalumniator) on the forehead, and by the imposition Canon. The term (oi Greek origin and unknown in
of various disabilities: infamy, inability to be in the Justinian's Institutes and Digest) appears in two
future a Drosecutor in a criminal trial, other pro- different meanings in later imperial constitutions and
cedural d:sadvantages, and exclusion from competi- Justinian's Novels: (1) a regular annual payment of
tion for a public office. The crimen calumniae of the a fixed (fixus) amount as a rent in a lease for a long
falsus accusator had to be proved in a special pro- term or in perpetuity (emplzyfezuis) or as a land-tax
ceeding; the mere acquittal of the person he had paid to the state. As a tax it was only exceptionally
accused was not sufficient to stigmatize him as a increased or lessened (see PERAEQUATIO) by the tax
calumniator. A lex Remnzia (about 80 B.c.) set the assessors. I t is distinguished from extraordinary
rule that a calumniator was to be tried before the payments of duties which were neither regular nor
same tribunal (quaestio) before which he had prose- fixed; (2) syn. with regztla (iuris) or norma (= legal
cuted the innocent accused.-D. 3.6; C. 9.46. rule). In the language oi the Novels canon occurs
Hitzig, RE 3 ; Humbert, D S 2 ; Lauria, N D I 2 ; G. Maier, n~ostlyin the sense of Church legal rules in contra-
Priitorische Rereicherungsklagen, 1932, 55 ; E. Levy, V o m distinction to legal rules of secular origin.-See the
For capacitas in the law of successions, see the fol- Thibault, Rev. gr'nr:rale dc droit et de la lhgislation 23
lowing item, COELIBES, ORBI,LEX FURIA,LEX VOCONIA, (1899) 320.
LEX I U L I A ET PAPIA, CADUCA, TESTAMENT1 FACTIO. Capitatio h u m a n a (or plebeia). See CAPITATIO.
Leonhard, R E 3 ; B. Biondi, S~rcccssioi~ctestamcntaria, Schwahn, R E 7 A , 6 8 ; LKcrivain, D S 5, 435; Thibault,
1943, 133. Rev. 9 t h . du droit ct dc In 1r:gislation 23 (1899) 290.
Capax. I n the law of succession, a person able to Capite censi. Persons registered not as to their prop-
take under a will ( = qui capere potest). See CAPACI- erty which was below the lowest census for military
TAS. A person might be fully capax (capar solidi) service, but simply as to their existence as living
when he could take the whole gift (inheritance or individuals, primarily as heads (caput) of a family.
legacy) left to him in a last will and testament, or -See PROLETARII.
partially capax (capax portionis) when only a por- Gabba, Ath 27 (1949) 198.
tion thereof was accessible to him. Capite minuti. Persons who have undergone a CAPITIS
Capax doli. A person capable of perceiving the fraud- DEMINUTIO.-I~S~. 1.16 ; D. 4.5.-See CAPITIS DEMI-
ulent character of his action. Those who are below NUTIO.
the age of puberty generally are not considered Capi:e puniri (or plecti). T o suffer the death penalty.
capaces doli, nor are persons with mental defects, -See CAPITALIS, POENA.
who are not responsible for their actions.-See Capitis accusatio. A n accusation of a crime which
IMPUBES. carried the death penalty for the culprit.
Capere. T o acquire either by USUCAPIO or (more fre- Capitis amputatio. Decapitation. Syn. decollatio.
quently) on the occasion of a person's death (~nortis Capitis deminutio. The loss of caput (the civil status
cazua) .-D. 39.6. of a person which implies the legal ability to conclude
Capio. Sometimes syn. with USUCAPIO.Mortis causa legally valid transactions and to be the subject of
capiones = all kinds of benefits a person receives rights recognized by the lawj through the loss of
through, or on the occasion of, another's death (con- one of the three elements thereof, freedom, Roman
ditional gifts) "except those forms of acquisition which citizenship or membership in a Roman family. Syn.
have specific names" (D. 39.6.31 ~ r . ) such , as here- utinutio capitis. For the various degrees of capitis
ditas, legaturn, f i d e i c o ~ ~ z ~ ~ ~ i s s ~ c ~39.6;
i ~ . - DC.. 8.56.- deminutio, see CAPUT.-I~S~.1.16; 4.5.--See RESTI-
See PIGNORIS CAPIO. T U T I O IIi I N T E G R U M PROPTER CAPITIS D E M I N U T I O N E M .
Ferrini, N D I 2 (s.tl. capioiii) . Leonhard, R E 3 ; Baudry, D S 1 ; lnon., N D I 2 (s.v.
Capitalis. A criminal matter in which the penalty may deiniltutio) ; Berger, O C D (s.v. deminutio c.) ; F . Desser-
taux, Etudes sur la forirtntioit hist. de la c. d., 1-3 (1909-
be death, loss of liberty or loss of Roman citizenship. 1928) ; idem, T R 8 (1928) 129; U . Coli, Saggi critici
-See CAPUT,CAUSA CAPITALIS,CRIMEX,QUAESTIO, sirlle fonti del dir. rom. I. C. d., 1922; Ambrosino, S D H I
POENA CAPITALIS, SENTENTIA, TRESVIRI CAPITALES. 6 (1940) 369; Kaser, Iura 3 (1952) 48.
Levy, Die rom. Capitalstrafe, SbHeid 1931; Brasiello, Capito, Gaius Ateius. A jurist of the Augustan epoch.
R B S G 9 (1934) 220. H e adhered to older doctrines and was highly esti-
Capitatio. A general expression for taxes paid per mated by his contemporaries. H e wrote a treatise on
head (caput), either as a poll-tax (capitatio humana) pontifical law and an extensive collection of Mis-
or an animal tax (capitatio aniwzalium). The capi- cellanies (Coniectanea) .
tatio huuzana--to be distinguished from land tax, Jors, R E 2 , 1904 (no. 8 ) ; Berger, O C D 164; Grosso,
iugatio terrena-was paid only by persons of lower Quaderni di R o m a 1 (1947) 335; L. Strzelecki, D e A.
classes (hence it was called also capitatio plebeia), Capitone, nupfiarum caerimoniarum interprete, Wroclaw,
1947.
not wealthy enough to pay taxes ex censu, i.e., on
their whole property as evaluated on the occasion of Capitulum. Some statutes were divided into chapters,
a census. The capitatio Izuwzana became a general capitula.-Capitulum is also a single provision of a n
institution under Diocletian. I n earlier times the agreement.
poll-tax (tributum capitis) was paid only in certain Captatorius. A 'disposition in a will by which the
provinces. Exemptions were admissible; they were testator instituted an heir or bequeathed a legacy on
granted to minors, widows, etc. Only healthy per- the condition that the beneficiary shall grant a gift to
sons able to work (men from 14 to 65) were assessed, another person in his will was called captatoria insti-
but not in equal measure.-C. 11.49. tl.ctio (scriptura) or captio. Such a disposition was
Seeck, R E 3 ; Humbert, D S 1 ; F . Leo, Die c. plebeia und not valid.
die c. humana, 1903; A. Piganiol, L'impBt de la c., 1916; Captio. See the foregoing item.-See also PIGNORIS
F. Lot, R H D 4 (1925) 177; idem, L'impBt foncier et la CAPIO.
capitation personnelle (BibliothPque des Hautes Etudes,
253), 1928; C. Bellieni, C. plebeia e c. humana, 1931; Captivitas. Captivity. When a Roman citizen was
Piganiol, Rev. historiqtre 166 (1935) ; A. Deleage, L a c. captured as a prisoner by an enemy (hostis) with
du Bas-Empire, 1945; A. SegrP, Trad 3 (1945) 114. whom the Romans were at war, he became a slave of
Capitatio animalium. A tax levied per head of cattle the enemy. The same rule was observed by the
(from the times of Dioc1etian.)-See CAPITATIO. Romans with regard to foreigners whom they made
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
prisoners in a war. After his return the Roman war CAPITE PUNIRI, CAPITIS ACCUSATIO, CAPITALIS, POENA
prisoner (captivus) regained his legal status by virtue CAPITIS, CONSECRATIO.-Inst.1.16 ; D. 4.5.
of a specific 'Roman legal institution (see POST- Radin, M i l Fournier, 1929; Gioffredi, S D H I 11 (1945)
LIMINIUM). A Roman captured (kidnapped) by a 301 ; Lot, L'ktendue de capuf fiscal, R H D 4 (1925) 5, 177;
A. Delkage, La capitation du Bas-Empire, 1945.
bandit (latro) did not become his slave; his legal
status remained unchanged.-D. 49.16 ; C. 1.3.-See Caput aquae. The place where the water originates
(aqua nascitur). I t is either the source or the river
POSTLIMINIUM, REDEMPTUS A B HOSTIBUS, LEX COR-
or lake from which the water is initially drawn. The
NELIA.
Leonhard, R E 3 ; L. Sertorio, La prigionia di guerra, servitude of aquaeductus could be constituted on any
1915; Ratti, R I S G N.S. 1, 2 (1926-27) ; idem, B I D R 35 caput aquae.-See FONS.
(1927) 105; idem, AnMac 1 (1927) ; H. Kruger, Z S S Carbonianum edictum. See BONORUM POSSESSIO EX
51 (1931) 203; Levy, ClPhilol 38 (1943) 159; Di Marzo, CARBONIANO EDICTO.
S t Solazzi, 1948, 1 ; Leicht, R S t D I t 22 (1949) 181; L.
Amirante, Captivifas e postlimininm, 1950. Carcer. A jail. Imprisonment was not a repressive
measure, it served only for the detention of persons
Captivus. A prisoner of war.-D. 49.15 ; C. 1.3.-See
during investigation or trial, or after sentence pend-
the foregoing item.
ing execution.
C a ~ u t . I n Roman sources the term has different mean- Berger, O C D (s.v. prison) ; Grand, La prison et la notion
ings. Generally it signifies an individual, hence the d'enaprisonne+nent, R H D 19 (1940) 58.
distinction between caput liberum ( = a free person) Carcer privatus. A private prison. I t was used for
and caput servile ( = a slave). In connection with the incarceration of recalcitrant slaves, and-in earlier
deminutio (deminutio capitis = the loss of caput) times-of debtors who failed to pay their debt. Pri-
caput = the civil status of a Roman citizen, for which vate prisons were prohibited by the emperors Zeno
three elements were necessary: to be a free man and Justhian.-C. 9.5.-See NEXCM.
(status libertatis), to have Roman citizenship ( s t a t ~ s Humbert, D S 1 ; Hitzig, RE 3.
civitatis) and to belong to a Roman family (status Caritas. Love, affection. Appears in a few juristic
familiae) either as its head (pater familias) or as a texts as a psychological and humane element which
member. The loss of one of these elements involved had to be taken into consideration in certain legal
the capitis deminutio, with all its legal consequences. situations which required mild and benevolent treat-
The eravest effects were connected-with the-loss of
'2 ment. Caritas belongs to the group of terms, such
freedom (cafiitis
.
, de~ninutiomaxima) in the case of as benignitas, clementia, humanitas, which are put
enslavement of a citizen or reducing a freedman forward to recommend an exceptionally benignant
to slavery, because the loss of liberty entailed the dealing with a specific case. Reminiscences of Chris-
loss of citizenship and family ties. A lesser degree tian caritas may occur in some interpolated texts, but
(capitis delninz~tiomedia) in which a person lost citi- the term cannot be excluded from the language of
zenship without losing liberty also resulted in loss of the classical jurists since it is used in contemporary
membership in family. See INTERDICERE AQUA ET IGNI. literary texts.-See BENIGNE.
Loss of family (capitis deminutio nzinima) occurred Albertario, Studi 5 (1937) 21 ; Maschi, A n T r 18 (1948)
when a person's agnatic family ties were dissolved 51 ; idem, Ius 1 (1950) 266.
either by his entry into another family (adoptio, Carmen famosum. A defamatory poem (libel), lam-
adrogatio, marriage of a woman with in manupn poon, pasquinade. Syn. canticu~~t, libellus famosus.
conventio) or by his becoming the head of a new I t is one of the graver cases of personal offense
family (emancipatio) . The consequences of this (iniuria) and is punished by deportation.-See the
lowest degree of capitis deminutio were originally following item.-See LIBELLUS FAMOSUS,I NTESTA-
perceptible only in economic and social fields (loss BILIS.
of the rights of inheritance in the former family, Leonhard, RE 3 ; Brasiello, N D I 2.
dissolution of partnership, extinction of personal Carmen malum. Sometimes identified with carllaen
servitudes, and the like). Some of these conse- ja~?zosztnt. Originally it was a specific wrongdoing,
quences were later mitigated by the praetorian law a kind of sorcery (mentioned already in the Twelve
which recognized cognatic family ties. Thus the Tables) committed by pronouncing magic formulae
capitis deminutio minima gradually lost its original to bring harm to a person or his property.-See
significance ; under Justinian it is almost without any OCCENTARE, INCANTARE.
ini~ortanceat all. See CAPITIS D E M I N U T I O . - O ~ ~ Carnifex.
~~ An executioner. H e was not permitted to
meanings of caput are: a section of a statute, edict live in Rome.
or imperial constitution (syn. CAPITULUM) ; the prin- Cartilius. An unknown jurist of the late Republic.
cipal of a debt as distinguished from the interest; in H. Kruger, S t Bonfante 2 (1930) 328.
tax administration., cabut
' denotes a tax unit or an Cascellius. A jurist of the late Republic, author of
individual person as a tax-payer. For caput in con- the formula called IUDICIUM CASCELLIANUM.
nection with the death penalty, see ANIMADVERSIO, Jors, R E 3, 1634; Ferrini, Opere 2 (1929) 53.
382 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
Cautela. Used by Justinian's compilers in lieu of put any obstacle in the exercise of the servitude.-
cautio.-See CAUTIO. See VINDICATIO SERVITUTIS.
Guarneri-Citati, Indicea (1927) 16. Cautio d e rat0 (cautio r a t a m r e m dominum habi-
Cautio. Denotes the obligation assumed as a guaranty turum). A cautio given in a trial by a representa-
for the execution of an already existing obligation or tive (procurator) of the creditor to the effect that
of a duty which is not protected by the law. The the latter (the principal, dominus negotii) will ap-
simplest form (nuda cautio) is a promise by a mere prove of what his procurator had done and will not
stipulatio (nuda stipulatio, repromissio) which gives sue the debtor a second time in the same matter.
the creditor the advantages of a stipulatory obliga- Tutors and curators as well had to give such a
tion. Other forms were a pledge (pignus or hypo- security in the name of their wards. I n later law
theca) or guaranty assumed by a person other than the cautio de rato was required only when there were
the principal debtor (a surety). "A thing gives more reasonable doubts about the powers of the representa-
security than a person" (D. 50, 17, 25). Also an tive (for.instance, in the case of absence of the prin-
oath (cautio iuratoria) was used to strengthen a n cipal.-See PROCURATOR, TUTOR,CAUTIO
AMPLIUS
obligation. For the different application of cautiones, NON AGI.
which frequently are called simply stipulationes, see Palermo, op. cit. 23.
the following items. Cautio is also used to indicate Cautio d e servo persequendo. A security given by a
a written declaration of the debtor confirming his pe;son holding another's slave for the pursuit of the
obligation and issued for the purpose of evidence. latter in case he would run away.-See SERVUS FUGI-
For the applicatipn of cautio with reference to a TIVUS.
preceding stipulatio, see CAUTIO STIPULATORIA.-See Cautio ex lege Falcidia. A security given the heir by
STIPULATIO, SATISDATEO, IDONEUS, REPROMISSIO. the legatee to return what he might receive beyond
Leonhard, R E 3 ; Humbert, DS 1 ; Laborderie, Revue the limits established by the lex Fa1cidia.-See LEX
gdnkrale de droit 33 (1909) 439; A. Palerrno, I1 procedi- FALCIDIA.
mento cauzionale nel dir. row., 1942. Cautio e x operis novi nuntiatione. See OPERIS NOVI
Cautio amplius non a g i (peti). A cautio given by NUNTIATIO.
the plaintiff who acts on behalf of another person as Cautio fructuaria. See CAUTIO USUFRUCTUARIA
his procurator (procuratorio nominc) to guarantee
(syn.1.
the defendant that he would not be sued for the same Cautio indemnitatis. A security given a person that
claim again by the principal.-See PROCURATOR. he would not suffer any loss or damage from a trans-
Debray, N H R D 36 (1912) 3; A. Palermo, Procedimento
cauzionale cit., 23. action or a n event which may happen.
Cautio iudicatum solvi. See IUDICATUM.
Cautio darnni infecti. A security given against ap- Brunelli, N D I 3 ; Duquesne, M t l Gerardin, 1907; idem,
prehended damage. The pertinent stipulatio created M i l Fitting 1 (1907) ; Palermo, op. cit. 22; P. Gay-
a legal tie between the owner of the immovable threat- Lugny, C.i.s., ThPse, Paris, 1906.
ened and the owner of the adjacent building the run- Cautio iudicio sisti. A security given by the defendant
down conditions of which endangered the former's to appear in court.-See VADIMONIUM, EXSECUTOR.
property. If the cautio dalnni infecti was refused Cautio iuratoria. The strengthening of an obligation
and later damage was really done, the praetor granted by oath.-See IUSIURANDUM, CAUTIO.
the owner of the damaged property an action with a Cautio legatorum nomine. A security given by the
fictitious formula based on the fiction that cautio heir that all that the testator ordered in connection
dawzni infecti had been given.-D. 39.2.-See DAM- with a legacy would be fulfilled. I n the case of re-
N U M INFECTUM, MISSIO I N POSSESSIONEM D A M N 1 IN- fusal by the heir to assume this obligation by stipu-
FECTI CAUSA. latio the legatee might ask the praetor to be put in
G. Branca, Danno temuto, 1937; Palerrno, op. cit. 35. possession of the heir's property (wissio in possessi-
Cautio d e bonis (dotibus) conferendis. A cautio by onel% legatoruln scrvandoruw causa) .-See LECATUM,
which an emancipated son or draughter promised to MISSIO I N POSSESSIONEM.
accomplish their duties of co1latio.-See COLLATIO Palerrno, op. cit. 41, 93; Solazzi, R I S G 86 (1949) 38.
B O N O R U M , COLLATIO DOTIS. Cautio Muciana. A security given by a legatee' (ex-
A. Guarino, Collatio bonorum, 1937. tended later to heirs) to whom a legacy was be-
Cautio de dolo. See DOLUS, STIPULATIO DE DOLO. queathed under a negative condition that he would
Cautio de evictione. See EVICTIO. not do a certain thing. The fulfillment of such a
Cautio d e non amplius turbando. A cazttio given by condition could be established only at the death of
the tlefendant in an ACTIO NECATORIA to the effect the legatee. In order to give the legatee the oppor-
that he will not disturb the owner of a plot of land tunity of receiving the legacy during his lifetime this
by claiming a servitude thereon. A similar cazttio cautio was introduced (by the Republican jurist
is given in an actio confcssoria to the beneficiary of Q . Mucius Scaevola) by which he obligated himself
a servitude I)y the defendant binding himself not to not to act against the condition imposed. If, despite
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
this promise he did the act forbidden, he was com- Cautum (caveri) iubere. The order of the praetor to
pelled to return all that he benefited by the legacy give security (CAUTIO). Ant. cautunz denegare.
including the profits (fructus). Woess, Z S S 53 (1933) 378; Palermo, Procedimcnto
Kubler, R E 16, 445; Bozzi, N D I 3 ; Levy, Z S S 24 (1904) cauzionalc, 1942, 62.
122; H . Kruger, Ale1 Girard 2 (1912) ; Beseler, Z S S 47 Cavere. T o give security through a CAUTIO (stipu-
(1927) 6 0 ; Solazzi, S D H I 10 (1944) ; B. Biondi, Succes- latio, pignus, surety) .-See IDONEUS.
sione testamentaria, 1943, 545; idem, B I D R 49-50 (1947)
241. Cavere. (When referring to the jurists' activity.)
Cautio pro praede litis et vindiciarum. A security Drafting agreements (sponsiones, mancipationrs) and
connected with the proceedings with sponsio (AGERE last wills which the jurists con~posedupon request of
PER SPONSIONEM) and given by the party who re- private individuals.
ceived the temporary possession of the object in dis- Leonhard, R E 3, 1085; Berger, R E 10, 1162.
pute, in order to guarantee its restitution together with Caveri. (When referring to provisions of statutes
the fruits in the case he lost the suit.-See PRAEDES ["lege cavetur"] , senatusconsults, etc.) The statute
LITIS ET VINDICIARUhl. (senatusconsult) provides that. . . . With reference
Palermo, op. cit. 21. to last wills and testaments caveri denotes the dis-
Cautio ratam rem dominum habiturum. See CAUTIO positions of the testator.
DE RATO. Cedere. (Transitive.) T o cede, transfer to another a
Cautio rei uxoriae. A stipulation concerning the resti- right or an action or to constitute a servitude (ccdere
tution of the dowry in case of divorce.-See DOS. ztsumfructuwz, aquaeductum, etc.) in favor of an-
Cautio rem adulescentis salvam fore. See the fol- other.-See CESSIO.
lowing item.
Cedere. (Intransitive.) With regard to terms fixed
Berger, R E 15, 1878.
for the fulfillment of an obligation: dies cedit means
Cautio rem pupilli salvam fore. A guaranty given the day "on which the sum is beginning to be owed" ;
by the guardian to the effect that his administration dies z~enit= the day "on which the sum due can be
of the ward's patrimony will not prove detrimental demanded (sued for)" (D. 50.16.213 pr.). For
to it. Testamentary guardians were free from giving legacies, see DIES CEDENS.
such a security. A similar caufio (rent adulescentis Cedere actione (lite). T o recede from, to withdraw,
salvaj+t fore) was imposed on the curator of a minor. an action. Syn. desistere.
-1nst. 1.24 ; D. 46.6 ; C. 5.42.-See TUTELA, CURATOR Leonhard, R E 3.
MINORIS. Cedere actionem. See CESSIO.
Sachers, R E 7 A , 1569; H . Weymuller, Contribution ci Cedere bonis. See CESSIO BONORUM.
l'histoire de l'actio tutelae, 1901 ; Rotondi, Scritli 2 (1922,
ex 1912) 268; Palermo, o f . cit., passinz. Cedere foro. T o leave the forum, i.e., when a money-
Cautio stipulatoria. ( A non-Roman term.) A writ- banker (nunzmularius) gave up his place of business
ten declaration by a debtor confirming that he as- on the forum because of bankruptcy.
sumed an obligation through stipulatio. The frequent Cedere in iure. See I N IURE CESSIO.
usage of such documents in postclassical development Celeres. Cavalrymen in the earlier times. They were
influenced the transforination of the sripulatio into a organized in three centuriae, each recruited from one
written form of pronlise since the legislation of the of the original three Roman tribus, and were com-
later emperors considered a written declaration of manded by tribuni ce1erunz.-See TRIBUS,R A M N E S .
promise a sufficient proof that an oral stipulatio had Kubler, R E 6 , 272 ; Saglio, DS 1 ; Berger, R E Suppl. 7 ,
taken place regardless of whether this has happened 397 (s.v. L e x Iunia).
or not.--See STIPULATIO. Celsitudo. An honorific title of the einperor (celsitudo
Platon, N H R D 33 (1909) 438; Riccobono, Z S S 35 (1914) imperatoria). The emperors addressed the praefecti
217; 43 (1922) 262; H . Steinacker, Dic oittikcn Grund- praetorio in rescripts with celsitudo ("your high-
lageiz der friihmittelaltcrlichen, Urkunde, 1927, 83 ; P. ness") .--Syn. AMPLITUDO.
Collinet, Etudes historiques sur le droit de Justiniot 1
(1912) 59; V . D e Gautard, Les rapports entre la stipu- P . Koch, Byzantinische Beamtentitel, 1905, 108.
lation et l'bcrit stipulatoire, ThPse, Lausanne, 1931 ; A. Celsus, P. Iuventius. A prominent Roman jurist of
SegrZt, Aeg 25 (1945) 65. the first decades of the second century after Christ.
Cautio suspecti heredis. See SATISDATIO SUSPECTI H e succeeded his father, P. Iuventius Celsus the
HEREDIS. Older, a less known jurist, in the leadership of the
Cautio usufructuaria. A security given by the usu- Proculian School. Cels~rswas praetor, consul and
fructuary to the owner of the res in usufructu to member of the Emperor Hadrian's council. Among
guarantee that he would fulfill his duties and would his works Digesta, Epistztlae and Quaestiones are of
not abuse his rights as an usufructuary.-D. 7.9. a high value.
R. de Ruggiero, S t Scialoja 1 (1905) ; Grosso, A T o r 72 Diehl, R E 10, 1363 ; Orestano, N D I 3 ; Gianturco, S t Fadda
(1936) ; Palermo, o p cit. 39, 102. 5 (1906) ; F . Stella-Maranca, Intorno ai frammenti d i
Cautio vadimonium sisti. See VADIMONIUM. Cclso, 1915.
386 ADOLF B E R G E R [TRANS. AMER.
PHIL. SOC.
Censere. Used for the resolutions of the senate (sena- the estimation of their property and their assignment
tlts rrnszlit or censuerunt [sc. senatores] ) . Censere, to CENTURIAE. Upon summons by the censors the
with reference to censors and their subordinates, in- head of a family had to appear before them and make
dicates the activitv connected with the evaluation oi a declaration under oath (professio cen~ualis) con-
the citizens' property for tax purposes. cerning his family and property. Taxation (as long
Censitores. (Syn, censores.) Appraisers, special of- as direct taxation in Italy existed, i.e., until 167
ficials in the later Empire sent to provinces for the B.c.) followed the evaluation of the property. By
purpose of estimation of landed property in connec- an edict preceding the censtis (lex censzli censendo),
tion with the assessment of taxes.-C. 11.58. the censors announced publicly the principles to be
Censitus. (From censeri.) A taxpayer whose prop- observed in making the returns required, and the
erty has been estimated and charged with a lancl-tax. rules they would follow in the eva!uation of the
Later, the payer of a poll-tax was also called censitus. moral conduct of the citizens.-See NOTA CENSORIA,
. h t . incensifus.--C. 11.48 : 50. FORMA CENSUALIS, A CENSIBUS. Census is also the
censores. censors hi^ was created in 443 B.C. as a term for the list of the taxpayers.-D. 50.15; C.
non-permanent magistracy. Censores were elected 11.58; 49.
once in five years (LUSTRUM) and were in ofice for Kubitschek, R E 3 ; Seeck, R E 5, 1184; Schwahn, R E
eighteen months. Thus through three years and a 7A, 63 ; Kalopothakes, LIE 2 ; Stevenson, OCD ; Garofalo,
B I D R 13 (1900) 273; Cavaignac, Revue de philologie
hali there were no censors at all, and during that 1934, 72; Bourne, Classical Ii7cckly 45 (1951/2) 152.
time their functions passed to other magistrates, Census equitum. The inspection of cavalrymen and
chiefly the consuls. The censores had no imperium, their horses by the censors.
and yet their authority was exceptionally great so Centenarius. A n official with a salary of 100,000
that even ex-consuls competed for censorship. Their sesterces (since the time of Hadrian). Also a pri-
ortlinances were valid for the whole quinquennial vate individual with a property valued at the sum
period until the appointment of new censors. Their mentioned above.
n ~ n s timportant tasks were the preparation of the Centesima. (Sc. uszrra.) One per cent interest per
c ~ s s v sa nd making the list of the senators (LECTIO month, i.e., 12 per cent per annum.-See USURAE
SEXATUS). For further functions of the censores CENTESJMAE.
and various problen~sconnected with censorship see Kubitschek, RE 3 ; Humbert, D S 1.
CVRA MORCM, NOTA, LEGES CENSORIAE, TABULAE CEN-
Centesima rerum venalium. A tax on sales at auc-
SORIAE, LEX DE CENSORIA POTESTATE, LEX A E M I L I A , tion (one per cent) introduced by Augustus, reduced
L E S OVINIA, LEX PUBLXLIA PHILONIS, TRIBUS, CENSUS
by Tiberius to di4centesima (one-half per cent), then
EQUITUM.The censorship lost its importance in the again restored as centesim.
late first century after Christ. Kubitschek, RE 3 ; Moschella, N D I ; Rostowzew, D E 2,
Kubitschek, R E 3 ; Humbert, D S 1 ; Manca, N D I 3 ; 582; R. Cagnat, Bt. historiqttcs szrr les impdts indirects ci
l)e Ruggiero, D E 2 ; Treves, OCD; M. Nowak, Die Rome, 1882, 227.
Strafverhingungen der c., Diss. Breslau, 1909; 0. Leuze,
Z u r Gesch. der rom. Zensur 1 (1909) ; E. Schmahling, Centonarii. Voluntary firemen.-See FABRI.
Ilie Sittenaufsicht der Zensoren. 1938: Klotz. Rheinisches H. J. Loane, Industry and commerce in R., 1938, 73.
.I[useum firr Philologie, 1939 ; Plachy, B I D R 47 j 1940)
Centumviri. A special court for trials concerning in-
103; R. V. Cram, Harvard S t of Class. Philology 51 heritances and property affairs (vindicationes) of a
(1940) 71 ; A. Calderini. La censura in Ronza antica, 1943;
Siber, Fschr Schulz 1 (1951) 466. higher value. T h e centumviral panel was composed
Censorius. (Adj.) Connected with the office and originally of 105 jurors (3 from each of the 35
functions of the censors.-See NOTA,LECES CENSO- TRIBUS) divided into groups (tribunalia) . Later
RIAE, LEX DE CENSORIA POTESTATE.
their number increased to 180. After the normal
Censorius. (Noun.) A n ex-censor.
procedure in iure (before the magistrate) the mat-
Censu manumissio. See MANUMISSIO CENSU.
ter went to a court selected from the centumviral
Censuales. Officials of the later Empire, in Rome an?
list. The form of proceeding before the centumviri
Constantinople, subordinate to the praefectus urbi and was always the legis actio, even when this form was
concerned with the taxation of senators and various generally substituted by the formulary procedure.
other matters, similar to those which in the Repuldic The eentumziri disappeared in the third century
belonged to the tasks of aeddes (games, administra- after Christ.-See LEX CREPEREIA, HASTA, PROVO-
tion of public buildings, survey of students studying CATIO.
in the capital, police functions, and the like). I n Wlassak, RE 3 ; Gayet, DS 1 ; Moschella, NDI 3 ; De
Ruggiero, DE 2 ; Berger, OCD; Olivier-Martin, L e tri-
other cities censuales were primarily active in making bunal des c., 1904; Jobbi-Duval, N R H D 28-29 (1904-
taxation 1ists.-See MACISTER CENSUS.-C. 10.71. 1905) ; F. Bozza, Sulla competenza dei c., 1828 ; Koschaker,
Seeck, R E 3. Z S S 50 (1930) 679; M. Nicolau, Causa liberalis, 1933, 35.
Censualis. (Adj.) See CENSUS,FORMA CENSUALIS. Centuria. Tradition ascribes to the king Servius Tul-
Census. T h e registration of citizens combined with lius the organization of the Roman peopIe (well-to-do
VOL. 43, PT. 2, 19.531 EKCYCLOPEDIC DICTIONARY OF ROMAN LAW 387
men, capable to military service) in centuriae (units place (see ACTIO DE EO QUOD CERTO LOCO),etc.-See
of about a hundred persons) which assembled in so- CONDICTIO CERTAE PECUNIAE, CONDICTIO CERTAE REI.
called COMITIA CENTURIATA. The connection of this Cessare (cessatio). When referring to actions, proce-
~oliticalreform with the militarv formations is ob- dural measures, or statutory provisions, to become
vious. This tradition is rejected by many scholars inapplicable, unsuitable, to lose validity. When
as unreliable. As a military unit the centuria is a used of a person bound to do something (a guardian,
group of one hundred (later less) soldiers, under procurator, debtor) = to neglect, to fail to fulfil his
the command of a centtcrio. I n iater develo~ment duties.
sixty centuriae formed a legion.-See COMITIA cEN- Cessicius tutor. See TUTOR CESSICIUS, I N IURE CESSIO
TURIATA (Bibl.) , PROLETARII. TUTELAE.
Kubitschek, R E 3 ; Humbert, DS 1 ; Moschella, NDI 3 ; Cessio. The transfer of a creditor's rights to another
De Ruggiero, D E 2 ; Mattingly, O C D ; A. Rosenberg, person. It was not directly feasible in Roman classi-
Zenturienverfassung, 1911 ; Giorgi, Le origini dell'ordina-
mento centuriato, St storici per l'antichitd classica 5 cal law. The obligatory relationship (obligatio) was
(1912) ; Arangio-Ruiz, La riforma dell'ordinamento cen- strictly personal. The transfer could, however, be
turiato, Scr A m 6 , 1928; H. M . D. Parker, The Rom. managed in another way, either by a novatory promise
legions, 1928; Fraccaro, St Bonfante 1 (1929) 103; idem, of the debtor to pay to a new creditor (the trans-
Ath 12 (1934) ; De Sanctis, Riv. di filol. e d'istruzione feree) the thing he owed the former creditor, or by
class. 1933; Zancan, AVen 1933-34, 869; G. Giannelli,
Atene e Roma 37 (1935) ; Cavaignac, R I D A 2 ( = M i l the transfer of the action against the debtor by ap-
De Visscher 1 (1949) 173. pointment of the transferee as the creditor's repre-
Centuria praerogativa. The centuria which, selected sentative through a mandate (cedere, mandare, trans-
by lot, voted first in the co~nitiacenturiata. ferre actionem) to sue the debtor. The cessionary
Centuria vigilum. See VIGILES. was proczwator in rem suam (a representative on
behalf of his own) inasmuch as the conllemnation of
Centurio. The military con~manderof a centuria. The
the debtor was in his favor. This form of cessio was
centuriones of the first line (hastati) were of a lower
more popular because the first way (novatio) was
rank than those of the second line (principes) ; the
impossible if the debtor refused to cooperate. But
latter were of a lower rank than those of the third
certain inconveniences were involved in a cessio
line (triarii). The first centurio in the legion was
actionis, too, because the debtor might pay the former
the centurio primi pili or prirnipi1us.-See CENTURIA
creditor until the action of the cessionary was brought
(Bibl.).
Domaszewski, R E 3 ; Parker, O C D ; Th. Wegeleben, Die against him, and, besides, the appointment of the
Rangordnung der rom. Centurionen, Diss. Berlin, 1913 ; transferee by mandatum became invalid through the
Parker, JRS 26 (1936) 45; De Laet, AntCl 9 (1940) 13. death of the primary creditor (the mandator). In
Cerae. Wax-tablets. They were used for short letters, the later law a notification of the cession performed,
receipts, brief written agreements, testaments and made to the debtor by the creditor, improved the
codicils (codicilli cerati) . Syn, tabellae ceratae.-See situation of the cessionary. In further development
APOCHAE POMPEIANAE. the cessionary was granted, in certain specific cases,
Lafaye, D S 5, p. 3 (J.v. tabellae) an actio utilis against the debtor. This became a
Cernere hereditatem. See CRETIO. general rule in Justinian's law.-See BENEFICIUM
CEDENDARUM ACTIONUM, LEX ANASTASIANA.
Certa et sollemnia verba. See VERBA CERTA ET SOL-
Biondi, NDI 3 ; Schulz, Z S S 27 (1906) 82; Eisele, ibid.
LEMNIA, SOLLEMNIA VERBA. 46; Beseler, Beitrage 3 (1913) 172; Drechsler, Actio
Certamen. (From certare = to fight.) Applied to utilis des Cessionars, Diss. Freiburg, 1914.
lawsuits. Cessio bonorum. A debtor who became insolvent
Certum, (Noun.) A fixed sum or quantity of things without his fault might voluntarily surrender his
being the object of. an obligation or of a claim in a property to the creditors in order to avoid an execu-
trial (obligatio certi, ,condictio certi, certum petere). tion by a compulsory sale thereof which involved
Certum is "where the object (quid), the quality infamy. The measure was introduced in favor of
(quale) , and the qhantity (quantum) is expressly the debtors by the Lex Iulia de cessione bororum.
evident" (D. 45.1.74). Ant. incertum. The dis- -D. 42.3; C. 7.71.
tinction certz~wt-incertuln is important in the law of Wlassak, R E 3 ; Weiss, R E Suppl. 6, 61; Humbert, D S 1
obligations and in the civil procedure.-C. 4.2.-See (s.v. bonorum c . ) ; Donatuti, N D I 3; Zanzucchi, B I D R
29 (1918) 71; GuCnoun, La c. b., Paris, 1920; Woess,
CERTUS, CONDICTIO CERTI, CONDICTIO INCERTI, LEGIS Z S S 43 (1923) 485 ; S. Solazzi, Concorso dei creditori 4
ACTIO PER CONDICTIONEM, LEGIS ACTIO PER JUDICIS (1943) 130; Acta D i d Augusti 1 (1945) 152 (Bibl.).
POSTULATIONEM. Cessio in iure. See IN IURE CESSIO.
Certus. Exactly determined, such as a sum of money, Ceteri (ceterae). Used by the compilers in order to
a specific object, the price in a sale (pretium), a slave introduce a generalization of what originally referred
indicated by name, a limited plot of land (fundus only to a certain category of persons or things (as,
Cornelianus), a date fixed by calendar, a determined for instance, heredes et ceteri successores, ceteri con-
388 ADOLF B E R G E R [TRANS. AMDR. PHIL.SOC.
tmctrrs) .--See BONORVX~ POSSESSIO,SUCCESSORES sacrifices issued by a competent commission was an
CETERI. evidence that he was not a Christian; see LIBELLUS
Guarneri-Citati, Iiidicc delle parole, etc? (1927) 17. LIBELLATICI.-C. 1.10.-See C R I M E N MAIESTATIS,
Charisius, Aurelius Arcadius. A little known jurist ECCLESIA.
of the late third or the first half of the fourth century M. Conrat (Cohn), Die Christcnz~erfolgungeta,1897; Mat-
after Christ. H e wrote monographs on the office of tingly, O C D (s.21. persccutio) ; Mommsen, Juristische
Schriftert 3 (1907, ex 1890) 389; R. Rota, I1 delitto poli-
the praefrctlrs prnrtorio, on witnesses and on public tico nell'ctd antica, 1907, 138; Costa, Crimini e pent, 1921,
charges ( nluncra) . 105 (Bibl.) ; Saleilles, M i l Girard 2 (1912) ; Vitale,
Jors, R E 3, 2146. Rev. de philologie 49 (1925) ; Schnorr v. Carolsfeld, Gcsch.
Charta. The material on which a document is written. der juristischen Person 1 (1933) 243; P. W. Duff, Per-
sonality in Rom. private law, 1938, 169; Levy, B I U R 45
In the later Enlpire the tern1 (or chnrtida) indicates (1938) 122; G. Bovini, La proprietci ecclesiastics e la
the tlocument itself. condizione giuridica della Chicsa, 1949, 145.
L. De Sarlo, I1 doctcntcnto oggctto di rapporti, 1935, 33.
Cibaria. Food, provisions. , Interpretative rules for
Chartularius. An official in the late Empire dealing cibaria in legacies are abundant in juristic writings.
primarily with the registers of taxpayers.-C. 12.49. Cibaria is also the daily remuneration granted to
Chirographum. promissory note written by the imperial officials during their service travels through
delltor and delivered to the creditor. Gaius men- the empire.-D. 34.1 .-See SALARIUM.
tions it as a Iitternrlt~~a obligatio used by peregrines Fiebiger, R E 3 ; Fournier, D S 2.
(the name [ = handwriting] reveals the Greek origin Cingulum. A girdle. I n later imperial constitutions
of the institution). Used by Romans the chiro- it denotes symbolically the rank of a high civil or
graplzzlllz had the value of any written document, military state official.
and was considered only an evidence of a previous Kiibler, R E 7A, 2024.
stipzrlatio. It was later applied even without a pre- Cinna. A n unknown jurist of the first half of the
ceding stipulatory promise. A n exceptio non nu- first century after Christ.
nteratae pecuniae (i.e., an objection to the effect that Berger, R E Suppl. 3, 250.
the creditor did not give any money to the debtor) Cino d a Pistoia. A renowned postglossator (died
could be opposed to a claim from a clzirogmplzu~~t, 1314) .-See GLOSSATORES.
but only within five years after the issuance of the Monti, IVDI 3, (Bibl.).
chirographutlz (two years in Justinian's law). Later
it could not be oppugned at all.-C. 8.26. Cippus. A boundary stone. Syn. terminus.-See TER-
Lkcrivain, DS 5, 156; M. Kroell, Le r61c de l'icrit dons MINARE.
la prcuz'e de cotttrat, 1906, 137; hfessina-Vitrano, AG 80 Circumcisio. Circun~cision was first generally pro-
(1908) 94 ; Riccobono, Z S S 43 (1922) 320; Arangio-Ruiz, hibited by Hadrian. Later Antoninus Pius permitted
F I R 3 (1943) no. 130; L. de Sarlo, I1 docuntcnto coltte it as a special concession to Jews. The interdiction
oggctto dcz rapporti (1935) 7, 35.
of civcu~ncisioof slaves was always in force, but evi-
Christiani. I n pagan Rome Christians were considered dently it was practiced since several imperial consti-
enemies of the state (Irostrs plrl~lici)and as such they tutions repeated the prohibition. A circumcised slave
were esposed to persecution ancl punishment for
became free.-C. 1.lo.
criiircn ~llaiesfatis. Besides, the secret meetings of Hitzig, R E 3 ; Zmigryder-Konopka, Les Ronzains et la
the Christians were punishable under the lex Iirlia circoncisio~adcs Jtlifs, Eos 33 (1931) 334.
de collcgiis as illicit associations (collegia illicita) .
Circumscribere (circumscriptio). T o defraud the
Still in the early third century lnentions of illicita partner in a transaction. I t is a statutory term in
Christianorui~icoltlo (gathering) appear; it is likely
the LEX PLAETORIA which forbade the circlcnzscriptio
that a special enactment was later issued against
adulescentiunz (defrauding young men).
Christian associations. A milder practice was eser-
Humbert, DS 1.
cised with regard to the so-called COLLEGIA FUNERA-
TICIA (TENUIORUM ) , but administrative coercive Circumvenire legem. T o evade a law by trickery.
measures ordered in police proceedings (corrcitio) Citra causae cognitionem. Without investigation of
by the discretionary power of the magistrates were the truth. Certain declarations of individuals made
always applicable. Refusal to take part in religious before an official (professiones) were accepted for
ceremonies dedicated to the celebration of gods or registration only on the ground of the person's alle-
the emperor as a god was considered as a confession gations. Similarly some orders of the praetor were
to profess Christianity in the same measure as an issued on the assulnption that what has been proffered
open declaration, "I arn a Christian," sufficed for an by the party was true, without any further examina-
accusation oi crzlrzrrz ~llaicsfatis. -1 particular prac- tion of the factual or legal situation. A typical case
ticc was introduced in connection with the persecu- of such procedure is the issuance of an interdict.-
tion by the emperor Decius; the production of a See CAUSAE COGNITIO, ISTERDICTITM.
either by a lex data (a charter decreed by the Roman foreign state. It concerned territories or things
people, the senate, or later, by the emperor) or by claimed by the Romans. If the claims were not
a treaty of alliance (foedus) with Rome (civitates satisfied by the foreign state, a formal declaration of
liberae et foederatae), by which the autonomous posi- war followed.-See INDICTIO BELLI.
tion of the civitates liberae was guaranteed in a Volterra, Scr Carnelutti 4 (1950) 245.
stronger way since the treaty could not be unilaterally Clarissimatus. The dignity of a person who belongs
revoked, except in the case of war. According to to the class of clarissimi. Syn. dignitas c1arissima.-
a Roman conception "a people is free when it is not See CLARISSIMUS.
subject to the power of another people" (D. 49.15. Clarissimus. (Clarissimus vir, clarissima persona.)
7.1). An honorary title of senators and high officials of
De Ruggiero, DE 2, 258; Sherwin-White, op. cit. 150; senatorial rank. A senator's wife had the right to
Heuss, Die vulkcrrechtlichen Grundlagen, Klio, Beiheft 31 the title c1arissima.-C. 3.24; 5.33.-See CLARA PER-
(1933) 99; Vittinghoff, Z S S 68 (1951) 472.
SONA, SPECTABILIS.
Civitates sine suffragio. Cities with limited Roman Seeck, R E 3, 2628; P . Koch, Byzantinwche Beamtentitel,
citizenship, being deprived of the right to vote in the 1903 ; De Ruggiero, 2, 267 ; 0. Hirschfeld, Kleine Schriften,
popular assemblies. They were not enrolled into a 1913, 647.
Roman tribus, and thus their accession to comitia Classiarii. (Sc. milites). Marines in the Roman navy
tribatta was excluded. (classis). Syn. c1assici.-C. 11.13.
Kubler, RE 4A, 1897; Kornemann, R E Suppl. 1, 309; Classici. See cLAssrARxr.
Zmigryder-Konopka, Eos 32 (1929) 587; Bernardi, Ath Classicus. A person enlisted in the first class of
1938, 239; Sherwin-White, oQ. cit. 38; E. Manni, Per la
storia dei municipii, 1947, 56. wealthy persons on occasion of the CENSUS. The
property required was 100,000 asses. Persons listed
Civitates stipendiariae. Civitates subject to the pay-
in the lower classes were infra classem.--See LEX
ment of tributes and imposts to Rome. Ant. civitates
VOCONIA.
immunes.-See STIPENDIUM. Kubler, R E 3, 2628; Gabba, Ath 27 (1949) 173.
Clam. Secretly. An act is committed clam when it is Classis. The Roman navy. Also the name of the five
done with the intention to conceal it (animo celandi) groups of citizens distinguished accordi.ng to their
before another person since otherwise a controversy wealth in the politico-military reform ascribed to
with the latter would be unavoidable. The term is Servius Tullius (see CENTURIA) . The classes com-
of particular importance in the doctrine of possessio prized only the foot-soldiers of the army.-See NAU-
(see CLANDESTINA POSSESSIO) and in the INTERDIC- ARCHUS.
TUM QUOD VI AUT CLAM. Kubler, R E 3, 2630; De Ruggiero, D E 2, 271 ; C. G.
M. David, L'interdit quod vi aut clam, 1947, 18. Starr, Jr., The Rom. Imperial Navy, 31 B.c.-A.D. 324
Clamor. A friendly call, applause. It is the most usual (Ithaca, 1941) ; Wickert, Wurzburger Jahrbucher fur die
element of ACCLAMATIO. AS a cry in danger it had Altertummissenschaft 4 (1949) 100.
a certain importance in connection with the theft Claudius. This name, particularly in notes to the
(furtum) when a person surprised and attacked by Digesta of the jurist, Q. Cervidius SCAEVOLA, refers
a burglar called for help. Already the Twelve Tables to the jurist, Claudius TRYPHONINUS.
mention the clamor applied in a similar situation Clausula. A specific legal provision of a statute, a
(endoplorato) . senatusconsult or of the praetorian edict. Also a
Berger, St Alberfoni 1 (1933) 381; Wieacker, Fschr particular clause of an agreement between. private
Wenger 1 (1944) 129.
individuals (e.g., of a stipulatio) .-See DOLUS MALUS,
Clandestina possessio. Possession acquired secretly NOVA CLAUSULA.
(see CLAM)against or without the will of the owner Leonhard, R E 4.
or the actual possessor. Such possession was stig- Clausula doli. (De dolo malo.) See DOLUS MALUS.
matized as possessio vitiosa ( = defective) and was Clausus (clusus). A slave put into jail by his master.
exposed to an exceptio vitiosae possessionis by the -See CARCER PRIVATUS.
person from whom the thing had been taken away. Wenger, Z S S 61 (1941) 357.
enterprises, since Justinian refers to them as the tion during the compilation of the Digest: Longo, B I D R
sources for his Code. 19 (1907) 132; De Francisci, B I D R 22, 23, 27, 31 (1910,
Editions : G. Haenel, Corpus iuris anteiustiniani 2 (1837) ; 1911, 1915, 1921).
P. Kruger, Collectio 3, 224; Baviera, F I R 2' (1940) 655. Codex (liber) rationum domesticarum. A housebook
~ i b l . : ~ a u d r ~D ,S 1; Jors, R E 4; Scherillo, N D I 4; in which proceeds and expenses were entered.-See
Rotondi, Scritti 1 (1922, ex 1914) 111; Scherillo, S t Ratti, ACCEPTI ET EXPENSI.
1934, 247; F. Schulz, History of R . legal science, 1946,
287, 309. Codex repetitae praelectionis. See CODEX IUSTINI-
Codex Hermogenianus. A collection supplemeatary A""S.
to the Codex Gregorianus containing constitutions of Codex Theodosianus. An official collection of impe-
Diocletian from 291 294. The composer of the rial constitutions from A.D. 312 (Constantine) until
compilation was one Hermogenianus (not identical 438 when the Code was published by Theodosius 11.
with the jurist Hermogenianus?). Excerpts of the The Code is divided into sixteen books, the books
Codex Hermogenianlls are preserved in the same into titles. The compiling commission was author-
sources as those of the CODEX GREGORIANUS. Several ized by the emperor to omit obsolete provisions and
constitutions of the years 295-305, 314, and 364-365 superfluous phrases, to make additions, emendations
were added later to the original Code. and alterations. A large portion of the Theodosian
Editions: G. Haenel, Corpus iuris anteiustiniani 2 (1837) ; Code found acceptance in the Lex Romana Visigo-
P. Kruger, Collectio 3, 249; Baviera, F I R 2' (1940) 665. thorum, and later in Justinian's Code, not without
Bib]. : B a u d r ~ ,D S 1 ; Jars, R E 4; Scherillo, N D I 4; abridgements and alterations. The Theodosian Code
idem, S t Ratti, 1934, 247; Rotondi, Scritti 1 (1922, ex
1914) 118. was in force in the East until its abrogation by the
Code of Justinian (first edition 529) and in Italy
Codex Iustinianus. I n 528 Justinian charged a com-
until the conquest by Justinian in 554. The Codex
mission composed of high officials and lawyers with
Theodosianus is not preserved as a whole; a great
the task of compiling a collection of imperial con-
portion therkof is known through the Lex Romana
stitutions. For earlier imperial enactments the three
Visigothorz~m,the existing manuscripts contain only
Codaces, Gregorianus, Hertfiogenianus, and Theodosi-
parts of the codification.-See CODEX IUSTINIANUS,
anus, had to be used. The Code published April 7,
INTERPRE I'ATIONES.
529, soon proved obsolete because of the copious later Editions: Mommsen, Theodosiani libri X V I , 1905; P.
legislative activity of the emperor. Therefore a new Krueger, C.Th. 1923-1926 (only books I-VIII) ; Engl.
edition (Codex repetitae praelectionis) was ordered translation: C. Pharr, The Theodosian Code and Novels,
in 533, and published in the middle of December, 534. and the Sirmondian Constitutions, Princeton, 1952. Vo-
The latest constitution therein is of November 4, 534, cabulary : Gradenwitz, Heidelberger Index zum Theodosi-
anus, 1925, Suppl. 1929. Bibl.: Mommsen, Juristische
the earliest by Hadrian who is represented in the Schriften 2 (1905), several articles ; Baudry, D S 1 ; Jbrs,
Code by one enactment only (6.23.1). The Code is RE 4; Scherillo, N D I 3 ; Gradenwitz, Z S S 34 (1913), 38
divided into twelve books, the books into titles. (1917) ; G. Ferrari, Osservazioni sulla trasmissione diplo-
Within each title the constitutions are chronoiogi- matica del C. T., 1015; Wieacker, Lateinische Kommentare
zum C. Th., Symb. Frib. i e n e l , 1931 ; Scherillo, S t Ratti,
cally arranged and provided with information con- 1934, 247; idem, S t Albertoni 1 (1935) 515; Archi, S D H I
cerning the emperor, the destinatary to whom they 2 (1936) ; Scherillo, S D H I 6 (1940) 408, 8 (1942) 5 ;
were issued and the date of issue. As in the Digest, Higgins, Reliability of titles and dates in C. Th., By? 10
the compilers were authorized to make appropriate (1935) 621; Solazzi, Glossemi e interpolaziorzi, SDHZ 10
changes in the texts of the constitutions of former (1944) ; 13-14 (1948).
emperors for which a comparison with the pertinent Codicilli. A written document containing dispositions
texts in the Codex Theodosianus is very instructive, of a testator to be valid after his death (mortis causa),
showing both the technique and the extent of the but not the institution of an heir which was per-
interpolations accomplished.-See QUINQUAGINTA missible only in a testament. The recognition of
DECISIONES. codicilli is somehow connected with the institution of
Editions : P. Krueger, Codex Iustinianus 1877 ; idem, fideicommissa (under Augustus). Distinction is
Corpus Iuris Civilis 2'" (1929). Vocabularies : Longo, made between codicilli testamento confirntati (a cadi-
Vocabolario delle costituzioni di Gzustzniano, B I D R 10 cil confirmed in a later or earlier testament) and
1898) ; hiarchi, Le interpolazioni risultanti dal confront0
etc. B I D R 18 (1906) ; Chiazzese, Confronti testuali, AnPal %on confirmati (not mentioned in a testament).
17 (1933) ; R. Mayr-M. San Nicol6, Vocabularium Codicis While the former codicil might contain various dis-
Iustiniani, 1-2 (1920, 1923) ; Bibl.: Baudry, D S 1; Jdrs, positions (legacies, manumissions, appointment of a
RE 4; Anon., N D I 3 (s.v. Codice di Giustiniano) ; Berger, guardian) and was considered as a part of a testa-
O C D 207 ; Rotondi, Tecnica dei compilatori del Cod. Giust.,
Stzcdi sulle fonti del Cod. Giust., Scritti giur. 1 (1922) 71, ment (pars testanzenti), the latter was reserved for
110; Schulz, Z S S 50 (1930) ; idem, S t Bonfante 1 (1929) ; fideicommissa only. There were also codicilli ab
idem, ACII 1 (1935) ; Collinet, L'originalitk du Code de intestato, i.e., codicilli in which the testator charged
Just., A C I I 1 (1935) ; for the remnants of the first edition
of the Code Schulz, History o f R. legal science, 1946, 318; his heirs on intestacy with fideicomwissa. I n classical
Berger, B I D R 55-56 (1952) 110; for JustinianYs legisla- law no specific form was required for codicilli. Later
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTI(3NARY OF ROMAN LAW
imperial legislation required the presence of wit- Neumann, R E 4 ; Kitblcr, R E 14, 421; Lkcrivain, I)E 3,
nesses. Justinian introduced even oral codicilli. A 1528; De Dominicis, N U 1 3 ; Brasiello, Repressione penale,
1937, 32; Lengle, R E 6A, 2475.
testator might dispose in his testament that in case
of its invalidation because of formal deficiencies, it Coetus amplissimus. In later imperial constitutions,
should be treated as a codicil.-Inst. 2.25 ; D. 29.7; the senate.
C. 6.36. Cogere. See COACTUS VOLUI,NECESSITAS.
Seeck, R E 4; Saglio, D S 1 ; Accardi-Pasqualino, N D I 3; Cogere senatum. See SENATUM COGERE.
De Ruggiero, D E 2 ; B. Biondi, La convalidazione del Cogitatio. A thought, an intention, a design. "No-
codicillo, 1911; Kortenbeutel, Ein Kodi-ill eines rom. body is punished for his thoughts (intentions)" (cogi-
Kaisers, A P r A W 1939, no. 13; Scarlata-Fazio, La suc-
cessione codicillare, 1939 ; Guarino, Z S S 62 (1942) 209 ; tationis poenatft nsmo patitur, D. 48.19.18). "The
idem, $ D H I 10 (1944) 317; Biondi, Successione festa- intention to commit a theft does not make a person
mrrttaria, 1946, 612. a thief" (D. 47.2.1.1).
Codicillus. A diploma of appointment of an official by Cognati. Relatives united by the cognatic tie.-See
the emperor or granting a special privilege.-See COGNATIO, AGNATI.
ILLUSTRIS, EPISTULA. Solazzi, La successione dei cognati, A N a p 58 (1937) 63.
Piganiol, C R A I 1947, 376. Cognatio. Blood relationship. Normally the AGNATI
Coelibes (caelibes). Unmarried persons. The Augus- are also cognati even when the natural tie does not
tan legislation excluded coelibes of a certain age occur. Thus, adopted family members are not only
wholly or partially from inheritance.-See LEX IULIA agnati (under the same paternal power) but also
DE MARITANDIS ORDINIBUS.-C. 8.57. cognati. Cognatio includes persons related through
Leonhard, R E (s.v. caelibatus) ; Manca, N D I 3 (s.v. females, as well as former agnati who given in adop-
caelibes). tion, emancipated or otherwise, lost the agnatic kin-
Coemptio. A contractual form of acquisition of manus ship. The praetorian law protected the rights of
over the wife by the husband (conventio in manum) succession of cognati which finally superseded those
through a fictitious sale (mancipatio) by which the of agnati. The distinction agnatio-cognatio gradu-
woman, and consequently the power over her, were ally lost its practical significance.-Inst. 3.5.-See
transferred to him by her father. When the woman AGNATI (Bibl.) , UNDE COGNATI.
was not under paternal power (sui iuris), she herself Baudry, D S 1; Leonhard, R E 4 ; Anon., N D I 3 ; Perozzi,
accomplished a self-mancipation. Coemptio is closely S t Brugi, 1910 (= Scritti 3, 61) ; Maschi, La concezione
connected with the conclusion of a marriage (coemp- naturalistica, 1937, 143 ; C. Castello, Diritto familiare, 1942,
123; Guarino, S D H I 10 (1944) 290.
tio naatrimonii causa facta) except in the case of
coemptio fiduciae causa.-See MANUS,and the fol- Cognatio civilis (legitima). See AGNATIO.
lowing item. Cognatio ex transverso gradu. Collateral relation-
Leonhard, R E 4; Kunkel, R E 14, 2269 ; Anon., N D I 4; ship (in the side line).
Pezozzi, Scritti 3 (1948, ex 1904) 528; Carrelli, AnMac Cognatio legitima. COGNATIO CIVILIS; see AGNATIO.
9 (1933) 189; E. Volterra, La conception du mariage Cognatio naturalis. Cognatio. Ant. cognatio civilis.
(Padova, 1940) 23; Dull, Fschr Wenger 1 (1944) 211;
H. LCvy-Bruhl, Nouvelles Etudes 1947, 74; Kostler, Z S S Also applied to the relationship between a mother and
65 (1947) 47; Kaser, Das altrom. ;us, 1949, 315. her illegitimate child, and to the relationship between
Coemptio fiduciae causa (fiduciaria). A coemptio slaves (syn. cognatio servilis) .
concluded not for the.purpose of matrimony but in Cognatio servilis. See COGNATIO NATURALIS, SERVUS.
order to get rid of a disagreeable guardian. After Cognitio. (From cognoscere) . The examination of a
the coemftio has been made the woman "is remanci- judicial case (and eventually a decision) by a magis-
pated by her partner (coemptionator) to another trate or a juror (iudex). The cognitio con~prehends
man of her, choice and having been manumitted by all that is done by the judicial authority during the
him, she has him as a guardian (tutor fiduciarius) ." proceedings, civil or criminal, in order to establish
This form of coemptio was applied also (until .Ha- the facts which led to the controversy (hearing of
drian) to give the woman the possibility 'to ,make a the parties and their counselors, of witnesses and
testament (Gaius, Inst. l.ll41'15a). experts, examination of documents and other means
W. Erbe, Fiducia, 1940, 165. of evidence). The extension of the activity, termed
Coemptionator. See COEMPTIO FIDUCIAE CAUSA. as causae cognitio, depended upon the competence of
Coercitio. (From col;rcet-e.) T h e magistrates had the inquiring person (qui cognoscit) as well upon
the power of enforcing obedience to their commands the matter involved in the causae cognitio. Thus, for
and of punishing minor disorderly offenses by certain instance, the causae cognitio by the praetor took one
coercive or repressive measures (prison, fines, pledge). form when he was requested to grant an in integrum
Generally there was no appeal against acts of magis- restitutio and another when he ordered a missio in
terial coercion which were made without any ordinary possessionem or a cautio, or appointed a guardian.
proceeding at the discretion of the individual magis- The cognitio also differed in the various strata of
trate.-See MULTA. the Roman civil procedure. In criminal matters
394 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
cognitio covers the whole proceeding, judgment in- for the real creditor. I n Justinian's law the only
cluded.-See CAUSAE COGKITIO. representative in litigation is the procurator.-See
Wlassak, RE 4 ; Kleinfeller, R E 4, 218 ; Thedenat, D S 1 ; EXCEPTIO COGNITORIA, IUDICATUM, and the following
De Ruggiero, D E 2 ; Lauria, ANa# 56 (1934) 305; M. item. Cognitor in later imperial constitutions = a
Lemosse, Cognitio, Btude sur le r61e du juge, 1944.
judge (qui litep~zcognoscit) .-See the following entry.
Cognitio caesariana. See C O G K I T I ~SACRA. Leist, R E 4 ; C. Wirbel, Le c., 1911; Debray, N R H D 36
Cognitio extra ordinem (extraordinaria). The latest (1912) ; Berger, GrZ 40 (191.3) 663.
form of civil proceedings which, originally concurrent Cognitor in rem suam. A plaintiff in a trial, formally
with the formulary procedure as "extraordinary" appointed as a cognitor and being in fact the real
(extra ordinenz, sc. zudiciorztmfi priz~atorzttn), later creditor as the cessionary of the original creditor who
became exclusive. The coqnitio extra ordinem was transferred his right against the debtor to him. See
based on the idea that the administration of justice CESSIO. Similar is the situation of a procurator in
is a function of the state. while in the previous forms rew suanz.
of proceedings the trial was dominated by the parties Cognitores praediorum. Vouchers (examiners) who
under the moderation and supervision of the magis- on their responsibility certified the correctness of the
trate. The characteristic feature of the cognitio extra data concerning landed property, given as a pledge
ordinel+z which appeared at the beginning of the (subsignatio) by persons who assumed certain obli-
Empire, is that the private juror disappears and his gations towards a municipality.
place is taken by a public official acting as a delegate E. G. Hardy, Three Spanish charters (1912) 80, 110.
of the emperor or, of a high functionary. When the Cognomen. rZ surname following the first name (prae-
new procedure became general, there was no more nowzen) and the name of the gens of a person (nomen
bipartition of the trial nor a formula, the whole pro- gentilicium) .-See NOMEN.
ceeding being under control of the same functionary Cognoscere. See COGNITIO.
or his delegate. I n criminal matters the new proce- Cohaerere. See CORPUS EX COHAERENTIBUS.
dure under the Principate, cognitio extra ordinem, Coheredes. Co-heirs. Nrhen an estate was left to
was opposite to the procedure before perpetual courts more than one person, instituted as heredes, or when
(see QUAESTIONES). Here, too, the imperial jurisdic- several persons inherited it in intestacy, in equal or
-
tional official held the trial in his hands from beain- unequal shares, they were coheredes arid had the
ning to end and rendered the final sentence.-The same legal position as co-owners: Division could be
jurisdiction of the cogflitio extra ordinem in which obtained either by arrangement or through judicial
the jurists efficiently collaborated assisting the juris- proceeding by an actio familiae ercisi-undue.-See
dictional officers with their advice, contributed con- FAMILIA, DIVISIO, ACT10 F A M I L I A E ERCISCUNDAE.
siderably to the development of the law.-D. 50.13. Cohors. A contingent of five hundred (in the legions)
-See APPELLATIO. or thousand soldiers (in certain auxiliary troops).
Wlassak, R E 4 ; Sachers, R E Suppl. 7, 793; R. Samter, De Ruggiero, DE 2.
~~richtformllcltes Gcrichtsverfahrclz, 19il ; Riccobono, La Cohors. I n admitlistration, the subordinate personnel
c.c.0. c il stlo irzflusso sul ius civile, dfdl Cornil 2 (1926) ;
Balogh, A C D R Rowla 2 (1935) 269; Drestano, StCagl 26 in the office of a high magistrate, an imperial official
(1938) 153; De Robertis, AnBari, N.S. 4 (1941) 3 ; or a provincial governor. Of particular importance
Santi Di Paola, AnCat 2 (1918) 252; Riccobono, RIDA were the cohortes attached to the office of the prae-
3 ( = M i l Dc V i s ~ c h e r2 (1949) 277. fecti praetorio (cohortes praetoriae), organized as
Cognitio sacra (or caesariana). The examination and military units under their command. They became
decision of a judicial matter by the emperor or his in the course of time a highly influential military and
de!egate.-See A COGNITIONIBUS. political factor in the empire until their abolition by
De Laet, AntCl 1945, 145. Con~tantine.--See PRAETORIANUS, PRAETORIUM.
Cognitionalis. Connected with judicial cognitio. The Cagnat, DS 5, 603 ; hl. Durry, Les cohortes prbtoriennes,
term is widely used in later imperial constitutions. 1938; A. Passerini, L e coorii pretorie, 1939.
Cognitor. A representative of a party in a civil trial. Cohortes vigilum. See VIGILES.
H e was appointed in a prescribed, solemn form in the Cohortales (cohortalini). Subordinate officials in the
presence of the adversary, contrary to another type office of the praefecti praetorio and provincial gov-
of a representative in litigation, the PROCURATOR,who ernors in the later Empire.-C. 3.25; 12.57.-See
was informally appointed. The intervention of a COHORS.
representative found its expression in the procedural Coire. See IUS C O ~ ~ U N D I .
formula since the principal was mentioned in the Collatio (conlatio). The ccntribution of money (pe-
INTENTIO. while the CONDEMNATIO was formulated in cunia, aes) for the erection of a monument, a grave-
favor of the representative. I n practice the cognitor stone or a puhlic building. When the contributor
had the actio iudicati for the execution of the judg- was a municipality or another public body, the con-
ment (see CESSIO),but a praetorian remedy (trans- struction was designated as erected aere publico.
latio iudicii) was foreseen to make the formula work De Ruggiero, DE 2, 602.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTI(3NARY OF ROMAN LAW 395
Collatio bonorum. A contribution to the estate to be Collatio lustralis. See A U R U M ARGENTUMQUE.
made by emancipated children (collatio emancipati) Collationes. I n the later Empire, the term covers
and including all their gains made after the emanci- various contributions, ordinary and extraordinary, in
pation, if they wanted to participate together with the kind, money or labor, imposed on possessors (lessees)
non-emancipated children in the intestate inheritance of emphyteuticary land belonging to the emperor
of their father according to praetorian law (bonorum (fundi patrinzoniales), to the fisc or to public cor-
possessio unde cognati). The reason was that if the porate bodies (civitates). The term occurs in the
emancipated children had remained under the pa- rubrics of several titles in Justinian's Code (10.28;
ternal power of the deceased, all their acquisitions 11.65; 74; 75) although it does not appear in the
would have increased his property. On similar prin- single imperial constitutions therein. Possessions of
ciples was based the collatio dotis with regard to the the DOMUS AUGUSTA and the RES PRIVATA of the elm-
dowry which a daughter had received from her father. peror were exempt from such col1ationes.-C. 11.75.
This collatio applied also to testamentary successions. Collator. A tax payer (in later imperial constitutions).
The rules concerning the collatio .dotis which were Collectarii. Money-changers. They were united in
somewhat different from those of the collatio efiaanci- associations.-See ARGENTARII.
pati, influenced the development of the latter towards Platon, N R H D 33 (1909) 23.
an extension to cases which were not foreseen at its Collectio causae. See CAUSAE CONIECTIO.
origin. Collationes were made originally through an Collegae. Members of the same association (colle-
effective import of the goods acquired, later an appro- gium). Also co-guardians and co-heirs are collcgae.
priate cautio sufficed ; see CAUTIO DE BONIS CONFEREN- I n public law collegae are officials who simultaneously
~1s.-D. 37.6; C. 6.20. hold the same office and "have the same power"
Leonhard, RE 3, 704 (s.v. bonorunt c.) ; Baudry, D S 1 (D. 50.16.173 pr.), as e.g., consuls, praetors in the
(s.v. bonorum c.) ; A. Guarino, Collatio bonorum, 1937; same year of service) .-See COMPARATIO.
idem, RendLomb 73 (1939), Z S S 59 (1939) 509, and Le Neumann, R E 4 ; Kubler, RE 14, 407; Frezza, S t Solassi,
collasioni ereditarie (Corso, Napoli, 1944), B I D R 49-50 1948, 508.
(1947) 259.
Collegatarii. Legatees to whom the testator bequeathed
Collatio donationis. Based on the same principles the same object. The IUS ADCRESCENDI applies to a
as COLLATIO BONORUM. It was introduced by Jus- common legacy.-See CONCURSU PARTES FIUNT.
tinian for all kinds of donations made by ascgndants Collegia. Associations of both private and public char-
to their descendants and for all kinds of succession. acter, unions of different kinds and for different pur-
Collatio donationis ante nuptias. A collatio intro- poses (professional, cultural, charitable, religious).
duced in the late fifth century after Christ and applied There were collegia of priests (collegia sacerdotufn,
to gifts made by a man to his betrothed. See DONATIO pontificum) of tradesmen, craftsmen and workmen,
A N T E NUPTIAS. The rules were sinlilar to those of of public officials, clubs for social gatherings, etc.
ihe collatio dotis.-See COLLATIO BONORUM. Originally they had (probably since the Twelve Ta-
Collatio dotis. See COLLATIO BONORUM.-D. 37.7; bles) the right to assembly (coire, i u s cocundi), they
C. 6.20. were permitted to issue statutes concerning their
Pringsheim, S D H I 4 (1938) ; Leonhard, R E 3, 705 (s.v. organization, activity, and the rights and duties of
horzorurtt c.) .
their members (LEGESCOLLEGIORUM ) . Gradually,
Collatio emancipati. See COLLATIO BONORUM. particularly under the imperial legislation, they have
Collatio legum Mosaicarum et Romanarum. An been granted certain rights as associations, such as
anonymous con~pilationcomposed between A.D. 390 both to have and to free slaves and to acquire legacies
and 428 with the purpose to compare some selected under a testament. The rule "if anything is owed to
Roman legal norms, chiefly of penal character, with a rtnivcrsitas, is not due to its members," and zic-e
the Mosaic law. The collection is known also under versa "what the universitas owes, the members (lo
the name Lcx Dei because some manuscripts have the not owe" (D. 3.4.7.1) sliows that the conception of
title Lex Dci qzdavc Doitrinrts pracccjit ad Mogsen. a atniversitas (collcgilt~t~)as a corporate body (cor-
Editions: P . Kriiger, Collertio 3 ; Kiibler in Huschke's poration), separated from the indivitlual men~bers,
Jurisprudcntia Atttrjustirtic~r~c~ 2. 2 (1927).-Jijrs, R E 4 ; came through. Generally they hat1 a common fund
hloschella, N D I 3 ; F. Triebs, Studirtl zttr L P X U r i . 1-2
(1905-1907) ; M. Hyamsor~,Mos.~t Rorrr. L. Cnll. 1913; (ARCA) a nd a representative (ACTOR UNIVERSITATIS)
N. Srnits, n o s . etc. C o / / . , Haarlem, 1934; E. Volterra, who acted on their behalf. From the beginning, re-
McntLb~c 1930 ; Ostersetzer, 1ic7~1ccE t u d ~ s Juivcs. 99 strictions were imposed on collegia to prevent them
(1934) ; Kiibler, Z S S 56 (1936) 356; I<. v. Hohenlol~c, from acting against the laws ant1 engaging in sub-
Urspruttg fold Zwrrk drr C., 1935; idrrrr. Arrlriv fiir versive activities. \Yhen doing so, they were con-
kath. Kircltcnrcclrt, 1939 ; Schulz, S I I I I I 2 ( 1936) 20 ;
idetn, T h r mc~tttrscriptsof the C.. Symbolae van OVCII. 1946, sitiered illegal (illirifn), were dissolved and a crin~i-
313 ( = B I D R 55/56 Post-Bellurn, 1951, SO), and History nal prosecution of the mein1)ers followetl. Analogous
of lioirl. l~gtrlsrirrrcc, 1916, 31 1, 344; Wolff. S c r Prrrilti terms are : rorprrs, rrnivcrsitas, soricfas, sodalic.i~ctn.
4 (1949) 77. For glosses: Voltcrra, R S t D I t 9 (1936) 366. -I>. 47.22.-See the following items, LEX CLODIA,
396 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
1VDI 3 ; De Martino, N D I 9, 931 ; Waltzing, DE 2 ; idem, Colliberti. Slaves simultaneously manumitted by their
Etudes historiques sf4r les corporations professionelles, 1-3 master, usuallymanumissions a larger number
(1895-1899) ; Groag, Vierteljahreschr. fiir Sozial- und
Wirtschaftsgesch. 2 (1904) 481 ; U.Coli, Collegia e soda[{- 'laves were ordered in testaments.-See LEX 'IJFrA
tates, 1913; La Piana, L'inamigrazione a Roma, Ricerche CANINIA.
religiose 2 (1926) 508; De Robertis, AnBari 1933 11, 3 ; Thibault, Albl Fournier, 1929, 725.
idem, 11 diritto associative romano, 1938; Lo Bianco, Collocare domicilium. See DOMICILIUM.
Storia dei collegi artigiani dcll'lmpero, 1934; Schnorr v. ~ ~filiam inl matrimonium.
l ~To give away
~ a ~ ~
Carolsfeld Z u r Geschichte der juristischen Person 1
(1933) ; A. Calderini, Le associazioni professionali in R . daughter in
antica, 1933; P . W . Duff, Personality in Rom. private law, C0110~arepecuniam. T o invest money (in non2ilza =
1938; A. P. Torri, Le corporaioni romane, 1940; B. in loans).
Eliachevitch, La personnalitk juridique en. dr. privk rom., Kubler, M i l Girard 2 (1912) 49.
1942; Accame, Bull. Comm. Archeol. del Governorato di c~~~~~~~~ (From COLLUDERE.)A Secret understand-
Roma, 10 (1942) App. 12; Arangio-Ruiz, F I R 3 (1943),
in9 between two or more Persons for the Purpose of
Collegia apparitorum. Associations of APPARITORES. third person, primarily through a fictitious (perlu-
Waltzing, D E 2, 351 ; 369. soriutn iiudiciuwt) trial. Collusion frequently occurred
Collegia familiarum. Associations of the members of between a patron and his freedman in order to make
a family for the construction and maintenance of a the latter be declared free-born.-D. 40 16; C. 720.
common grave. -See S E N A T U S C ~ N S U L T U M NINNIANUM.
De Ruggiero, D E 3, 30. Leist, R E 4 ; H. Kruger, S t Riccoi~ono2 (1936) 247.
Collegia funeraticia. Associations of poor men for Colonatus. In the late Empire from the fourth cen-
the purpose of assuring each member of a decent tury on, the legal, economic, and social situation of
funeral. The expenses were from a common fund coloni, i.e., rural laborers bound to the soil which
collected through monthly fees ('tips ~nenstrua)paid they cultivated for the landowner. Their conlection
by the members. Named also collegia tefiuiorzlwt. with the soil was SO close that its alienation i lvolved
Early Christian communities were organized as co[- their transfer to the acquirer. The original condition
legia tenztioruwt . of coloni was that of perpetual tenants. It became
Cuq, D S 2, 1402; De Vincenti, D E 3 ; Saleilles, Mkl hereditary in the course of time and assumed the
Gimrd 2 (1912) 470; hl. Roberti, S t Zanzucchi (Pubbl. aspect of serfdom from which they be freed
~ n i v ~. a c r oCuore, zjol. 14, Milan, 1927) ; Besnier, Mi1 llnder certain Legally they were free
Albert Dufot6rcq, 1932; De Robertis, AnBari 1933, I, 101 ;
Monti, St Riccobon.o (1936) ; G, Bovini, La and Roman citizens. Desertion from the land did
ecclesiastics, 96 (1947) 114. not change their status since they could be reclaimed
Collegia illicita. Associations that were considered il- by the landowner. People &tress
legal. not because they lacked formal requirements accepted the condition of co1oni.-C. 11.48; 51-53 ;
Comites consistoriani. Members of the imperial coun- and to approving certain legal acts connected with
cil (consistoritr~w).-C. 12.10. the family system, as ndrogatio and testaments.-See
Sceck, R E 4, 644; Grossi-Gondi, D E 2, 482. POMERIUM.
of the imperial chancery for private (not govern- Comitia tributa. The basis of this popular assen~bly
mental) matters of the emperor (scriniutn ddisposi- of patricians and plebeians was the division of the
tiontmt ) . Roman territory into local, district organizations,
Seeck, R E 4, 647. TRIBUS. Originally limited to less important matters
Comitia. Assemblies of the Roman people (populus (the election of minor magistrates, restricted juris-
Rotitanus) for legislative and judicial purposes a s diction as a court of appeal) their competence in-
well as for elections. They are to be distinguished creased in the second haIf of the fourth century B.C.
from the assemblies of the plebs alone, concilia plebis. when they superseded the coinitia centuriata in legis-
For the various co~nitia, see the following entries. lative matters.-See LEX CORNELIA POMPEIA,TRIBUNI
The co~tzitiawere convoked by a high magistrate who PLEBIS, PROVOCATIO.
had the IUS ACENDI C U M POPULO. Only matters pre- G. Rotondi, Leges puhlicae populi Rom., 1912, 36 (Bibl.).
sented by the convoking magistrate could be sub- Coniitialis morbus. See MORBUS COMITIALIS.
mitted to vote and amendments to the proposals Comitiatus maximus. See COMITIA CENTURIATA.
were not admitted. An informal gathering of the E. Pais, Riccrche sulla sforia 1 (1915) 408.
people, CONTIO,night take place before the colnitia Comitium. The place at the forum of Rome where
assembled in order to discuss the subjects on which the curial assemblies (cowzitia czrriata) took place.
the citizens had to vote in the contitia. De Ruggiero, DE 2.
Liebenam, R E 4 ; Humbert, D S 1 ; Ferrini, N D I 3 ; De Comitiva. See COMITES.
Ruggiero, DE 2, 804; hlattingly, O C D ; G. W. Botsford, Commeatus. I n military service, a furlough. A sol-
T h e Ront. assctttblics, 1909; Marchi, L'ittfrequentia nei c.,
RcridLonzb 45 (1912) 7 2 ; E. Pais, Ricerche sulla storia dier on leave of absence is not considered absent in
4 (1921) 4 9 ; Siber, Z S S 57 (1937) 233; Brecht, Z S S the interest of the state. H e becomes an emansor
59 (1939) ; G. Nocera, I1 potcre dei co?ni:i, 1940; Cosen- when he does not return in time, or a desertor, when
tini, AG 131 (1944) 130. his absence lasts a longer time.-C. 12.42.
Comitia calata. One of the ancient forms of colrtitia Commendare (commendatio). Recommendation of a
convoked (calata) by the pontifex nzaxitnus for special candidate for an office in Roman or provincial ad-
religious purposes. There the opportunity to make a ministration by the emperor when the appointment
wrill was given the citizens (testawtentzc~n calatis depended upon a popular assembly or the senate
contitiis). (from the time of Tiberius) .-See CANDIDATUS
Kubler, R E 4 ; B. Biondi, Successione tcstanzetttaria, 1943, PRINCIPIS.
4/.
Brassloff, R E 4 ; De Ruggiero, D E 2 ; Balsdon, O C D ;
Comitia centuriata. A popular assembly based upon O'Brien-Moore, R E Suppl. 6, 780.
the division of the people into CENTURIAE, classified Commendare. See DEPONERE.
according to the value of the property of the individ- Commentariensis. A n officer in a record-office. I n
ual citizens. Primarily a military unit, the cenfuria the military administration he had similar functions
was also a voting unit with one vote only, determined as the A c o ~ ~ ~ ~ ~ ~ ~ ~ ~ s . - C o m m e n twere a r i e
n s e s
by the majority of its members. Originally the also officials in public prisons. One of their tasks
cotiiitia centitriafa had large legislative functions, but was to superintend the execution of corporal punish-
tvibltfa. They retained, however, other prerogatives, V. Premerstein, R E 4, 759; De Ruggiero, D E 2, 540.
such as the election of magistrates, the decision about Commentarii. Records (a journal) kept in the offices
war and peace, and jurisdiction as a court of appeal of higher magistrates about their official activities
of their legislative functions and their competence was V. Premerstein, R E 4, 726, 759; Thedenat, D S 1 (s.v.
limited to voting the LEX CURIATA DE IMPERIO by commentariu~r2); De Ruggiero, D E 2 ; Kubler, R E 6, 499;
which the magistrates were vested with iwzperiuwz, F . Schulz, History of Ronzan legal science (1946) 340.
VOL. 43, PT. 2, 19531 ENCYC1,OPEDIC DI(:'I'IONARY OF ROMAN LAW 399
Commentarii beneficiorum. A special register in the und Widcrruf iliz rom. Kaufrecht, 1932;
fitllutrc/szzc~c~rrrl
imperial chancery for enactments granting personal I.evy, Sy11r0Frill Lcrrel 1932; Archi, S t Ratti, 1934, 325;
l!ticarcli, SfSctr 60 (1948) 611.
privileges.-See B E N E F I C I U M .
V Premerstein, R E 4, 741 ; De Robe&, AnBari 1941, 185. C ~ m m i ~ ~lex.
~ r i (aI n a Pledge.) An agreement be-
tween creditor ant1 delltor l)y which the former be-
Commentarii principum. liecords kept in the im-
perial chancery for imperial enactnlents. There were comes owner of the pletlge if the debtor fails to pay
the debt at the date fixed. Constantine forbade such
a1)parently separate divisions in the imperial record agreement.-C. 8.34.-See IUS DISTRAH ENLII,I'ICNUS.
oftice in which various types of imperial constitutions Naber, Mn 32 (1904) ; Raape, Verfallsklauscl bcim Pfand,
(commentarii epistularum, edictoruiiz, etc.) were kept 1 (1913) ; A. Rurdese, I.. c c ifis z~cntlcrrdi (Mcm. 1st.
under the supervision of one or more a cominentariis. Giur. Torbo, 63) 1949; Kaser, Z S S 67 (1950) 557.
The Semostria (Semenstria) of the emperor Marcus Commissum. I n fiscal law, a confiscation of goods,
Aurelius had perhaps some connection with his ~ ) r i r n a r i lfor
~ the violation of custonl provisions.-
legislative activity as excerpts from the cowamentarii D. 39.4; C. 4.61.
made every six months. O f particular im- Commissum. I n penal law, a criminal offence. Syn.
portance were the commentarii of civil and criminal admissum.
trials which had taken place before the emperor. Humbert, D S 1 ; De Dominicis, AVen 92 (1932-33) 1215.
V. Premerstein, R E 4, 739 ; Bresslau, Z S S 6 (1886). Committere. T O conlmit an unlawful act (co~niilittere
Commentarii sacerdotum (pontificum, augururn). criinen, delictuin, scelus, furtum, adultrrittii~). In
Records (diaries) kept in the archives of the various contractual law: to forfeit a right or an advantage or
colleges of priests. The c o ~ ~ m e n t a rponfificum
ii con- to incur a penalty Ily committing an act to which
tained reports on their activities, statutes of their according to the agreement of the parties involved
temples, rules of sacral law, and the like. such consequences were attached (comti~itterestipu-
V. ~ r e m e r s t e i n , R E 4, 729 ; Rose, OCD ; G. Rohdel .lationem). In passive form (coml+zitti),as in phrases
Kultsatrungen der row. Pontifices, 1936; F. Norden, Aus like stipuiatio (cautio) committitur, the term indi-
rom. Priest~buchcrn,Lund, 1939; C. W . Westrup, Intro-
duction to curly R law, 4, 1 (1950) 35. cates that a certain obligation becomes binding be-
Commercium~ The right to buy and to sell recipro- cause the susl>ensive condition under which the prom-
cally (Epit. Ulp. 19.5). I n other words the legal ise Was given was
ability to conclude valid transactions in order to ac- Committi fisco (or similar). T o incur a confiscation.
quire or to *sell goods. Com~lzerciointerdicere = to -See C O M M I S S U M (in fiscal law).
Commixtio. See COM MISCERE.
deprive a person (for instance, a spendthrift) of this
right. Similarly certain things are exempt from
being the object of commerciu7iz; see RES CUIUS COM- Chmmodatum- *
Commodator' See COMMODATUM.
gratuitous loan of a thing (origi-
M E R C I U M N O N EST. F~~ c o l , z ~ n e r c ~ u
in, ~interns- nally movables, later also immovables) to be returned
tional trade relations, see IUS COMMERCII.-C.4.63. by the borrower to the lender (commodator) on the
Leonhard, R E 4 ; Humheft, D S 1 ; M. P . Charlesworth, terms fixed in the agreement or reasonably corre-
Trade routes and conatlterce in the R . Empire, Cambridge, sponding to the purpose of the loan. C o m m o d a f u ~ ~ ~
1926; 0.E, Powers, Studies k the commercial v o c a b u l ~ r ~ belongs to the so-called real contracts concluded by
of early Latin, Chicago, 1944; Sautel, in Varia. Bt. de the delivery (re) of the thing and is governed by
droit rom., Paris, 1952; Kaser, St Arangio-Ruiz 2 (1952)
171
LOl.
Comminatio. A threat applied by a magistrate to a for the use of the thing is extensive (diligentia, czis-
fixed.-C. 7.57. the borrower for the misuse or the return of the thing,
Commiscere .(commixtio). To mingle things to- whereas the borrower might sue with actio commo-
gether. The product resulting from the mixing to- dafi contraria for the recovery of extraordinary ex-
gether of materials belonging to different owners 'svas penses and for damages caused by the fault of the
owned by them in common, when the materials were lender.-D. 13.6; C. 4.23.-See FIDUCIA C U M AMICO.
of the same kind, or when they were of different but Leonhard, R E 4 ; Humbert, DS 1 ; C. Ferrini, Opere 3,
inseparable sorts. 81; G. Segrh, S t Fadda 6 (1906) 313; R. De Ruggiero,
Pampaloni, B I D R 37 (1929) 38. B I D R 19 (1907) 5 ; Cicogna, ibid. 235; Schulz, GrZ 38
Commissoria lex. ( I n sales.) An additional clause (1911) 12; J. Stock, Zuna Begriff der donatio, 1932;
Pfliiger, Z S S 65 (1947) 121.
in a sale (emptio vendifio) under which the seller
had the right to rescind the contract if the buyer Commodum. Advantage, profit. Legal benefits, re-
failed to pay the price or its remainder within a cer- sulting from statutes or senatusconsulta are desig-
tain time.-D. 18.3. nated as commoda, similarly the rights connected
Leonhard, R E 4 ; Humbert, DS 1 ; F. Wieacker, Er- with a certain legal situation (possession, ownership)
400 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
as well as proceeds, such as interest, wages, and the the actio familiae ( h ) erciscundae. These divisory
like. Ant. inconzmodum, onus. "It is natural that actions offer an opportunity for settling other con-
he who suffers the disadvantage of a thing should troversies among co-owners, such as restitution of
have also the profits thereof" (Inst. 3.23.3; D. expenses made on the common thing by one co-
50.17.10). A similar saying is: "he who bears the owner, equalization of profits and damages and the
risk should have also the profit." T h e rule applies like (so-called praestationes personales) .-D. 10.2 ;
to the contract of sale (emptio venditio) to the effect 3 ; C. 3.36; 3 7 ; 3 8 ; 4.52.-See ADIUDICATIO,IUS
that the buyer who bears the risk (periculum) of PROHIBENDI, ACT10 C O M M U N I DIVIDUNDO, IUS AD-
deterioration, destruction or disappearance of the CRESCENDI, N E M O INVITUS.
thing purchased but not yet delivered has the right Leonhard, R E 4 ; Biondi, NDI 4 ; A. Berger, Zur Ent-
to its products and increase after the conclusion of wicklunysgeschichte der Teilunysklagen, 1912 ; Bonfante,
the sale.-see EMPTIO VENDITIO. quiritarjo, Oxford Essays in legal history, 1913; idem, Dal
Commodum re~raesentationis. See REPRAESENTARE. dirhtor rom. classico a1 dir. moderno. AnPal 3-4 (1917)
Commonitorium. A letter of reminding, an order. ,165; Ein, BIDR 39 (1931) ; Branca, RISG 6 (1931) 215,
Comwtonitorium sacrum = an order of the emperor 7 (1932) 247; Borettini, RISG 7 (1932) 459; J. Gaudemet,
Le rkgime juridique de l'indivision en dr. rom., 1934;
to an official. Solazzi, ANap 57 (1935) 127; Arangio-kuiz, La societd
Seeck, R E 4. (Corso), 1950, 32; Ambrosino, SDHI 16 (1950) 188.
Commorientes. Persons who died in the same acci- Communio incidens. The term is used in literature
dent (e.g., a shipwreck). There were certain rules to indicate common ownership which arose without
concerning the simultaneous death of parents who interference of the co-dwners, as in the case of an
died together with their children: children below the inheritance or legacy awarded to two or several
age of puberty (impuberes) were presumed to have persons who thu.; "fell in together into common
died before their parents, whereas children over that property" ("incidimus in communionem") .
age (puberes) had to be considered dead after their Arangio-Ruiz, S t Riccobono 4 (1936) ,355 ; Donatuti,
parents. The rules, which probably originate in S t Albertario 1 (1952).
Justinian's law, had to be observed in the case of Communio sacrorum. See SACRA.
succession. Syn, simul (pariter) perire (decedere) . Communis. (Adj.) A thing may be coiniizunis (com-
Ant. supervivere ( = to survive). mon property) to all (see RES C O M M U N E S OMNIUM),
Beseler, ZSS 44 (1924) 373 ; G. Donatuti, Le praesump- or belong to a corporate body (corpus, collegium) or
tiones nal diritto row., 1930, 22; idem, Rivista di dir. pri- to two or more persons, res coinmunis (see COM-
vato 3 (1933) 198. MUNIO). Commune ( a noun) embrac$s all that sev-
Communicare. T o share a thing with another by eral persons have in common. I t may be ownership,
making him co-owner thereof or by dividing it or or another right, as superficies, ius in agro vectigali.
its proceeds with him. I n the denomination of the actio communi dividundo,
Communicare lucrum c u m damno. T o share profits commune is used in this large sense. Communis is
and losses with another. This is a fundamental prin- also what is in the interest of more persons or the
ciple of the contract of partnership (societas) except whole society (coinmunis utilitas) or .concerns more
for losses caused by fraud or negligence of one of persons (communis culpa, periculunz) . Communia
the partners. In relations among successors, espe- (pl. noun) = rules which equally apply to similar
cially when an heir was obliged to deliver the inheri- legal institutions; several titles in the Code contain
tance wholly or partially to a fideicom7nissarius, re- such common rules, as, e.g., conz~~zunia de legatis et
ciprocal stipulations were made in order to guarantee fideicommissis (C. 6.43) .-see IUS COMMUNE, UTILI-
the coilinion participation in profits and losses (de TAS.
lttcro et damno commztnicando) . Communiter agere. T o act on behalf of more per-
Communio. Common ownership. It arises when two sons or a corporation.-See STIPULATIO C O M M U N I S .
or more persons buy or acquire through inheritance Comparare. s e e PARARE, COMPARATIO LITTERARUM.
or legacy the same thing in common. They have Comparatio. A n agreement between colleagues in
either equal or unequal shares thereof, the thing office concerning the division of competence or the
remaining physically undivided (pro indiviso) . The assignment of the performance of a specific official
co-owners have the same legal situation with refer- act to one of them.-See COLLEGAE.
ence to the whole and participate according to their Comparatio litterarum. The comparison of hand-
shares in the l)rotluces (fructus) and expenses. Each writings. Experts on handwriting (comfiaratores)
of the111 niay freely dispose of his share but not be- were heard in a trial when doubts about the authen-
yond it. Ilivision of the common property becomes ticity of a written document arose.
necessary when the co-owners disagree (comununio Compascere. T o exercise the right of conlmon pas-
est tnater rixarum = common ownership is the mother turage (ius compascendi, ius compascui) .
of disputes). It is achieved I)y the actio comi~zuni Compatroni. Co-patrons who manumitted a common
dividzrndo, or in the case of common inheritance by slave.
VOL.43, PT. 2, 19.531 E N C Y C L O P E D I C DICTIONARY O F ROMAN LAW 401
Compendium. A profit. Syn. lucrurn, ant. dispendiuwz. legal instrument (a testament, a codicil, a stipulatio,
Compensatio. Occurred in classical law when the a compromise, or a procedural formula).
judge on grounds of good faith (only in a bonae fidei Componere controversiam. T o settle a dispute by
iudicium) took into consideration what the plaintiff a compromise.
owed to the defendant from another transaction and Compos mentis. Fresh of mind, mentally healthy.
condemned the defendant to pay the balance only if Ant. demens.
his debt was larger. Later a set off of reciprocal debts Comprobare. See ADPROBARE. Syn. PROBARE.
was available under certain circumstances through Compromissum (compromittere). An agreement of
exceptio doli. The practice of the cognitio extra the parties to submit their controversy to an arbi-
ordinem favored the development of the institution trator (cornpromittere in aliquent de aliqua re). I t
and thus it became a general form of extinction of normally provided for the payment of a penalty by
obligations which operated even beyond the judicial the defeated party defaulted in the fulfilment of the
courts. I n this final stage cowzpensatio worked ipso arbitrator's decision (pecunia cornprontissa) .-See
iure ( = by the force of law) and not ope exceptionis ARBITER E X COMPROMISSO.
(through an exception) when reciprocal debts be- Leist, R E 4; De Ruggiero, D E 1, 615; La Pira, St Ricco-
tween two persons met together.-D. 16.2; C. 4.31. bono 2 (1936) 187; Roussier, R H D 18 (1939) 167.
-See ARGENTARII, DEDUCTIO. Computare. T o reckon, to include in an account (e.g.,
Leonhard, R E 4; Humbert, D S 1 ; Biondi, N D I 3; Brass- in quartatn Falcidiawz). Syn. calculus. Error com-
loff, ZSS 22 (1901) ; P. Kretschmar, Entzen'cklung der putationis = ERROR CALCULI.
Combensation, 1907; Leonhard, M i l Girard 2 (1912) ; Conatus. ( I n penal law.) An attempt LO commit a
B. Biondi, La compensazione, AnPal 12 (1929) ; Solazzi,
La compensazione' (1950) ; Kreller, Iura 2 (1951) 82.
crime. The Roman jurists did not elaborate a
general theory of the criminal attempt, nor did they
Comperendinatio. ( I n a criminal trial, particularly
establish any rule as to when an attempt should be
on extortion, rebetundue.) Compulsory division of
punished. With regard to some crimes preparations
the case into two proceedings (actio, prima, actio se-
made with criminal intent were declared to be liable
cunda). Voting took place at the end of the second
to punishment (as, for instance, some cases under the
hearing.-See LEX SERVILIA DE REPETUNDIS and the
Lex Cornelia de sicariis), with regard to others they
following item.
Kipp, R E 4, 790; Balsdon, Papers of the British School were not. Nor is a clear distinction made between
of Rome, 1928, 98. intent to commit a crime (consiliurn, voluntas sceleris)
Comperendinus dies. The third following day. On and an actual but unsuccessful attempt. However,
that day after the appointment of the iudex the par- juristic and literary texts distinguish between in-
ties had to appear before him (in the legis actio pro- tended and not committed crimes (cogitata, non
ceedings) .-Syn. perendinus dies. perfecta scelera) and those actually carried out (exi-
Kipp, R E 4 (s.v. comperendinatio) ; Humbert, D S 2, 177 tus, factunz, evenfus). In a rescript of Hadrian we
(s.7~.dies) ; Ferrini, N D I 3. read: "With regard to crimes intention is taken into
Competens. When applied to procedural elements as consideration, and not the result (exitus)" (D.
actio, iudex, poena, tribunal, etc., indicates the action, 48.8.14). Similarly a late imperial constitution of
the judge, etc., pertinent (competent) to the specific A.D. 397 (preserved in the Theodosian Code 9.26.1,
case. Justinian's compilers often substituted the but not accepted into Justinian's Code) contains, in
term cornpetens in place of the classical expression connection with the Lex Iulia de awtbitu, the rule :
which in Justinian's time was obsolete because of the "Statutes (the laws) punish equally a crime and the
reformed organization of the procedure and admin- intention to commit it (sceleris voluntas) ." These
istration of justice. dicta not only did not become a general rule but are
Guarneri-Citati, Indice2 (1927) 19; Berger, KrlJj 1914, even contradicted by other texts-in legal sources.-
142. See COGITATIO.
Competere. Actio cornpetit is used of actions which Costa, I1 conato criminoso, BIDR 31 (1921) 20.
were granted by the ius civile, while praetorian ac- Concedere. T o concede, to grant another a right (e.g.,
tions are "given" ( a praetore dantur). When used a servitude). Sometimes syn. with cedere. M7hen
with reference to other actions than those of ius referring to a debt = to remit, to release from an
civile the term may be frequently of compilatory obligation.
origin. Concepta verba. Appears in a text by Gaius (4.30)
P. Kriiger, ZSS 16 (1895) 1; Guarneri-Citati, Ittdicc2 as synonymous with the fornzula in the formulary
(1927) 19; Vinci, AnCat 2 (1948) 365. procedure.-See CONCEPTIO VERBORUM.
Competitor. ( I n later imperial constitutions.) An im- Solazzi, Fschr Wenger 2 (1945) 54.
perial official of the treasury charged with the seizure Conceptio. A conception. The time of conception is
of goods submitted to confiscation. Syn. (some- decisive for the personal status of the child. In
times) petitor. classical law the child was free if at any time be-
cornponere (compositio). T o draft the text 3f a tween the conception and the birth the mother was
402 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
a free person. Similarly the time of conception is Concilium manumissionum. An advisorv board of
of importance in the doctrine of posthumous children five senators and five equites constituted to examine
(postumi), inasmuch as there was a difference ac- the, reasonableness of exceptional manumissions (of
cording as the conception took place before or after slaves under thirty or when the master was under
the testament was made. twenty). Such councils existed also in the provinces
Conceptio verborum. The drafting of a legally im- under the chairmanship of the governor.
portant oral declaration (an oath, a stipulation) or Concilium propinquorum. See CONSILIUM PROPIN-
a written procedural instrument (formula, interdic- QUORUM.
turn, libellus). Concipere. See CONCEPTA VERBA,CONCEPTIO VERBO-
Conceptus. Conceived and not yet born. See CON- RUM. CONCEPTIO. CONCEPTUS.
CEPTIO. Syn. in utero esse. The law protects the Concordans matrimonium. (Syn. concordantes vir
interests of a child not yet born, in particular his et uxor.) A marriage in which husband and wife
rights of succession and for this purpose the child live in perfect accord. The terms occur in connection
whose birth is expected (nascitttrus) is treated as if with the ~roblemof whether the father of the wife
it were already born (pro nato habetur).-See POS- may exercise his patria potestas in order to dissolve
TUMI, NASCITURUS. such a marriage.
Albertario, S t 1 (1933) 3; Castello, S t Solazzi, 1948, 232; Volterra, R I D A 1 (1948) 232.
idcln, RID,4 4 (1950) 267; BastoSek, RID.4 2 (1949) 28. Concubina. See CONCUBINATUS.
Concilia plebis. Assemblies of the plebs alone. They Concubinatus. A concubinage. The sources do not
met originally by curiae and later (LEX PUBLILIA contain any definition of concubinatus. I t is a per-
VOLERONIS) by tribus (concilia plebis tributa) . Reso- manent, monogamous union of men and women not
lutions passed by the concilia plebis = plebiscita. legally married. It differs from marriage through
Three statutes are cited in connection with the legis- the lack of AFFECTIO MARITALIS and of the honor
lative power of the plebeian assemblies (LEX PUB- matrimonii (the social dignity of a woman living with
LILIA PHILONIS, VALERIA HORATIA, HORTENSIA) but a man in a legitimate marriage). Concubinatus was
the extant evidence is not precise enough to admit not prohibited bv law and the LEX IULIA DE ADUL-
of an exact understanding of their significance. The TERIIS did not apply to persons living in concubinatus.
last statute (287 B.c.) is the most concrete in this Restrictions which barred the conclusion of a valid
obscure history. The plebiscites were passed upon marriage were also binding with regard to concubi-
the motion of the plebeian tribunes.-See PLEBISCITA, natus. The relation did not produce any legal con-
T R I R U N I PLEBIS. sequences. Justinian favored the transformation of
Kornemann, R E 4 ; Humbert, D S 1; Vaglieri, D E 2; the concubinatus into marriage by establishing the
G. W . Botsford, T h e Roman assemblies, 1909, ,119. presumption that a union with a free woman of honest
Concilia provinciarum. Provincial assemblies com- life (honestae vitae) is considered a valid marriage
posed of leading personages as representatives (le- unless the parties declared in a written document
gati) of the various political entities in the prov- before witnesses that they were living in concubinatus.
ince. The original purpose of these gatherings was -D. 25.7; C. 5.26.-See PAELEX.
of a religious character: to celebrate the cult of the Leonhard, R E 4 ; Baudry, D S 1 ; De Ruggiero, D E 2 ;
divinity of the emperor (Augustus) in the capital P. M. Meyer, Der rom. Konkubinat, 1895; Costa, B I D R
11 (1900) 233; J. Plassard, Le concubinat rom. sous le
of the province. Their activity developed consid- Hatit-Elifpire, 1921; G. Castelli, I1 concubinato e la legis-
erably. They maintained a direct contact with the lazione Augustca, Scritti 1 (1923) 143; Bonfante, St
governor of the province through envoys and exer- Perozzi, 1925,283 ( =Studi 4,563) ; E. J. Jonkers, Inzdoed
cised a kind of control over his activity which might van lzet Christendom op de romeinsche wetgewing betref-
fend het concubinaat, 1938; C . Castello, I n tema di matri-
result in a criminal prosecution of the governor at monio e concubinato nel mondo rom., 1940; Janeau, De
Rome. In the second half of the third century they Padrogation des liberi naturales, 1947, 29.
began to disappear. Concubitus. Coition. The term occurs in the classical
Kornemann, R E Suppl. 4 (s.v. koinon = the Greek term rule concerning the conclusion of a marriage. Nup-
for c.) ; E. G. Hardy, S t in R . history, 2nd ed., 1910, 235. tias non concubitus, sed consensus facit ( = consent,
Conciliabulum. A settlement, a community of lesser not intercourse, constitutes marriage, D. 35.1.15;
extent than a municipality (municipium) . The or- 50.17.30).-See MATRIMONIUM. NUPTIAE.
gans of local administration were similar to those of Concurrentia delicta. See DELICTA CONCURRENTIA.
a municipality, including an administrative council Concurrere. Said of actions which lie in favor of one
(ordo decurionum). - Some conciliabula may have person for the same thing (de eadem' re). Actiones
been important market places since conciliabulunz concurrentes are to be distinguished from actions
often appears in connection with a FORUM.-See which arise from the same fact but have different
MUNICIPIUM.
aims, as for instance in the case of a theft, see FUR-
Schulten, R E 4 ; Grenier, D S 5, 856.
T U M . The claimant could sue only with one of the
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 403
concurrent actions de eadem re according to the rule defendant to pay a fixed sum. Ant. condemnatio
"if one was chosen the other is consumed" (D. 47.7.34 incerta.-See CONDEMNATIO.
pr. ; D. 50.17.43 pr.). Condemnatio cum deductione. See DEDUCTIO.
Leonhard, R E 4 ; Humbert, DS 1 ; Peters, Z S S 32 (1911) Condemnatio incerta (incertae pecuniae). A con-
179; 1. Alibrandi, Del concorso delle azioni, Opere 1 demnatio in which the sum is indefinite. Ant. con-
(1896) ; E. Levy, Die Konkurrenz der Aktionen, 1-2, 1
(1918, 1922) ; Liebman, Azioni concorrenti, St Ratti, 1934; demnatio c e r t ~ . The condemnatio incerta is either
Naber, Mn 52-53 (1924-25) ; Betti, Istituzioni I' (1942) unlimited or limited by a maximum (cu19a taxatione).
335 (Bibl.).
Concursu partes fiunt. When the same thing (inheri- Condemnatio in quantum facere potest. (Sc. the
tance, legacy) or the same right' is assigned to several defendant.) A condemnation to what the defendant
persons all share equally therein, unless the testator is able to pay.-See BENEFICIUM COMPETENTIAE.
disposed otherwise. Condemnatio pecuniaria. A condemnatio to pay a
Concursus causarum. Occurs when a person to whom sum of monei. The classical law did not admit of
a determined .thing is due becomes owner thereof any other condemnation in a civil trial than a pe-
under a different title. The obligation to deliver the cuniary one. In suits in which the plaintiff claimed
thing automatically becomes void, "because what is the delivery of a specific thing an evaluation in money
ours cannot be given to us" (Gaius Inst. 4.4). Thus (see LITIS AESTIMATIO) was necessary to make the
the performance of the duty becomes impossible. In conversion into money in the condetnnatio possible,
later development another more equitable solution was unless the defendant preferred to satisfy the plaintiff
found. The obligation of the debtor was extinguished by the delivery of the thing in dispute before the
only when the creditor got the thing gratuitously (ex judgment was passed.-See ABSOLUTORIUS.
causa lucrativa), for instance, by legacy or donation. Pfaff, Juristische Vierteljahresschr., 18 (1902) 3 9 ; Schloss-
C. Ferrini, Opere 3 (1929, ex 1891) 385; Schulz, Z S S 38 mann, IhJb 46 (1904) ; Levy, Z S S 42 (1921) 476; M.
(1917) 114. Nicolau and P. Collinet, RHD 15 (1936) 751; S. Ricco-
bono, Jr., AnPal 17 (1937) 43; Wenger, Z S S 59 (1939)
Concussio. (From concutere.) Extortion of money 316 ; Gioffredi, SDHI 12 (1946) 136 ; idem, Contributi a110
or gifts through intimidation, misuse of authority by studio del process0 civ. ronz., 1947, 46; v. Liibtow, Z S S
an official or by a person who falsely assumes an 68 (1951) 321.
official character.-D. 47.13; C. 12.61. Condere iura. To establish, to create law. In refer-
Hitzig, R E 4. ring to jurists, the term conditores iuris is used to
Condemnare. To conuemn the defendant in a civil mean those of them who, through their responsa given
trial to the payment of a sum of money (see CON- on the ground of their ius respondendi, contributed
DEMNATIO) or the accused in a criminal trial.
Ant. to the development of the law.-See IUS RESPON-
absolvere.
DENDI, RESPONSA, INTERPRETATIO.
Hitzig, R E 4 (for criminal procedure).
Magdelain, R H D 28 (1950) 6.
Condemnatio. ( I n formulary proceedings.) "That Condicere. In the earliest civil procedure syn. with
part of the formula by which the judge (iudex) is denuntiare ( = to announce, to give notice, to de-
empowered to condemn or to absolve the defendant" clare). It applies to the act of the claimant in the
(G. 4.43). In the condemnatio either a fixed amount LEGIS ACTIO PER CONDICTIONEM, by which he sum-
was indicated (condemnatio certa) or a maximum moned the defendant in iure to appear before the
sum was fixed which the judge could not exceed magistrate again after thirty days to continue the
(dumtaxat = not exceeding). In certain formulas no proceedings with the appointment of the iudex. Since
sum at all was indicated, the judge being authorized this legis actio served only for claims in personam and
to fix the sum of the condemnation at his discretion for a specific object, the terms condicere and condictio
by expressions such as the following: quanti ea res were used for actiones in personam by which a dare
est (or erit = what the .value of the matter in dispute facere oportere (obligations to give or to do) was
is, sc. at the time when the formula was set or when claimed. For further development, see CONDICTIONES
judgment will be pronounced respectively), or simply and the entries referring to the various condictiones.
by quidquid ("whatever',' may appear appropriate to -See ACTIONES I N PERSONAM.
the judge, as in cases when the obligation concerned Condicio. The legal or social status of a person. I n
an incertum), or, in exceptional cases, by the phrase the imperial criminal law the social condition of a
quantum aequum videbitur ( = as much as will appear person was of importance for the kind of penalty to
equitable to the judge). In the so-called IUDICIA be applied to him.-See HONESTIORES, HUMILIORES,
BONAE FIDEI the condemnatio contained the clause ex POTENTIORES.
fide bona (according to [in] good faith).-See SEN- Condicio. A condition, i.e., a clause added to a trans-
TENTIA,TAXATIO, EGREDI, and the following items. action or a testamentary disposition which makes the
Leist, R E 4 ; Beretta, St Solazzi 1948, 264. validity thereof dependent upon the occurrence or
Condemnatio certa (certae pecuniae). A condem- non-occurrence of a future event; the clause is in-
natio in which the judge is instructed to condemn the troduced by si or nisi (si non). The event may be
404 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
either a natural one when it is independent of human Condicio iuris. A requirement imposed by law for the
activity, or it is a fact to be done or not done by the validity of a legal transaction. Condiciones iuris are
party involved or by a third person (condicio potesta- not real conditions, since they are neither uncertain
tiva). Until the fulfillment of the condition (pendente nor do they make the validity of the transaction de-
condicione) there is a state of uncertainty about the pend upon a future event. They are indispensable
effects attached to its realization, to wit, as to whether requisites fixed by the law. Where they are not
the transaction will enter into force (suspensive con- observed, the transaction is void. Ant. condicio facti
dition) or be dissolved (resolutive condition). The = real conditions imposed by the will of the party
technical terms for the period between the conclusion (testator, donator) or parties involved.
of the transaction and the fulfillment of the condition Condicio iurisiurandi. A testamentary condition im-
are in suspenso esse, sztspcnsus sub condicione, and posed on an heir or legatee to take an oath that he
the like. Conditions may be added to almost all legal would fulfill the testator's wish. Such conditions were
transactions and acts (stipulations, sales, leases, in- usual in testamentary manumissions. When added
stitutions of heirs, legacies, manumissions, etc.) ex- to other dispositions such a condition might be dis-
cept the so-called ACTUS LEGITIMI.-D. 28.7; 35.1; pensed with by the praetor or replaced by a cautio.
C. 6.25 ; 6.46.-For the various kinds of condicio see Cuq, D S 3, 772; Messina-Vitrano, AnPer 33 (1921) 600.
the following items; see DISIUNCTIVO MODO, DIES CE- Condicio mixta. A condition which partly depends
DENS, DIES CERTUS, NUBERE. upon, and partly is independent of, the will of the
Leonhard, R E 4 ; Orestano, N D I 3 ; De Ruggiero, D E 2 ; party involved, as, for instance, when its fulfillment
E. F. Bruck, Bedingungsfeindliche Rechtsgeschafte, 1904;
Vassalli, BIDK 1915 (= Scritti 1, 1939, 245) ; R. Popovic, depends partly upon a natural event or the will of
Condicionis implendae causa datum, Ziircher Beitrage zur a third party.--Syn. condicio promiscua.
Rechtmissertscltaft 73, 1919 ; Bohacek, AnPal 11 (1924) Condicio pendet. See CONDICIO.
329; Riccobono, St Perozzi, 1925; G. Grosso, Contribute
allo studio dell'adempimento della condizione, MemTor Condicio potestativa. A condition the realization of
1930; idem, A T o r 65 (1929) 455; V. Scialoja, Negozi which depends upon the will of a specific person.
giuridici, 1933, 96 ; D. Ochsenbein, Transmissibilitk hdrk- It may consist in doing (condicio faciendi) or not
ditaire de l'oblig. condifionnelle, GCnPve, 1935; Flume, doing (condicio non faciendi) something. In the
T R 14 (1936) 19; Donatuti, S D H I 3 (1937) ; idem, Lo latter case only after the death of the person upon
statulibero, 1940, 16; Betti, Retroattivitd della condizione,
Scr Ferrini (Univ. Pavia, 1946) ; Grosso, S D H I 8 (1942) whom the condicio was imposed could it be estab-
290. lished that he had not acted against the condition.
Condicio deficit. The condicio is not fulfilled. See CAUTIO MUCIANA. The term condicio potesta-
Condicio facti. See CONDICIO IURIS. tiva is not of classical origin; the classical jurists
Condicio illicita. See CONDICIO TURPIS. speak of condicio in potestate (arbitrio) alicuius (= a
Condicio impletur (impleta est). The condicio is ful- condition depending upon one's capacity or will).
filled. Syn. condicio existit (extitit). Sometimes a Condicio tacita. A condition which is understood in
condition^ which has not been fulfilled is considered a transaction, as, for instance, the conclusion of a
as if it were fulfilled. This is the case primarily, marriage with regard to a dowry constituted in
"when the person who is interested in the non-fulfill- advance.
ment of the condition acts so as to prevent its fulfill- Condicio testamenti. A testamentary condition con-
ment" (D. 50.17.161 = 35.1.24). Such a fiction is nected with the institution of heirs, legacies, fidei-
applied to manumissions in~posedupon an heir under cowtmissa, manumissions. Specific rules apply to
a condition the realization of which depends upon such conditions. The underlying one is that in the
himself. The rule was later extended to stipulations. first place the testator's intention is decisive.-See
G. Grosso, La finzione dell'adempimento della condizione, CONDICIO IMPOSSIBILIS, TURPIS.-D. 28.7 ; 35.1 ; C.
1930; Donatuti, S D H I 3 (1937) 63; B. Biondi, Succes-
sione testamentaria, 1946, 537. 6.46.
I. Alibrandi, Opere, 1895.
Condicio impossibilis. A condition which in the na-
ture of things cannot be fulfilled. A typical example Condicio turpis (illicita). A condition the fulfillment
is "if you will touch the sky with your finger." For of which involves the perpetration of an act violating
testamentary dispositions the doctrine of the Sabi- a legal or moral norm (contra bonos mores). Such
nians, who considered such a condition non-existent conditions made the contract void; when added to a
(PYO non scripta) was accepted by later jurists and testamentary disposition, originally they had to be
Justinian. vacated by the praetor, later they were considered a s
I. Alibrandi, Opere 1 (1896) 192; R. De Ruggiero, B I D R condiciones iwtpossibiles and were treated as if they
16 (1904) ; Manenti, S t Scialoja 1 (1905) ; Cugusi, S t were not written (pro non scriptis) .-See CONDICIO
Fadda 5 (1906) ; Beseler, S D H I 7 (1941) 186; Cooper, 12rfPOSSIBILIS, ILLICITUS.
Tulane L R 16 (1942) 433.
R. De Ruggiero, B I D R 16 (1904) 167; Suman, Fil 1917;
Condicio institutionis. A condition attached to the Messina-Vitrano, I negozi iuris civilis sotto condizione
institution of an heir by the testator.-D. 28.7.-See illecita, AnPer 33 (1921) 583; Cicogna, S t S e n 54 (1940)
CONDICIO TESTAMENTI. 48.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 405
Condicionalis. A legal transaction (obligatio, stipu- Condictio certae pecuniae. An action for the pay-
latio, emptio, etc.) or testamentary disposition (in- ment of a fixed sum promised by a stipzclatio.
stitution of an heir, legacy, manumission) attended Condictio certae rei. An action based on a stipulatio
with a condition. Ant. purus = unconditional. for the delivery of a specific thing (certa res). This
Condicionaliter. See SUB CONDICIONE. Ant. pure.- condictio is also called condictio triticaria, a term
See PURUS. which was originally applied when a fixed amount
Condiciones disiunctivae. See DISIUNCTIVO MODO. of wheat (triticunz) was due, and was generalized by
Condictio (condictiones). As actio in personam it Justinian to apply to all kinds of fungible goods.-
arose from the ancient LEGIS ACTIO PER CONDICTIONEM D. 13.3.
ceiver was immoral, as, e.g., for not coii~nlittinga Conferre imperium (magistratum, potestatem). To
crinie.-D. 12.5 ; C. 4.7. confer power upon a high magistrate or the em-
Condictio possessionis. An action for tlie recovery peror.-See I M I ' E R I U M . LEX CURIATA DE I MPERIO,
of ~'ossessiion of a thing wliicli the ntlversary hat1 L E S DE IMPERIO.
obtninetl fronl the l)laiiitiff without legal cause. I11 Conferre in societatem. T o contribute a share as a
co~nl)arisonwith the intertlictal protection (see I N - partner of a cotilpany (societas) .-See SOCIETAS.
TERDICTA), tlie condic-fio hatl tlie advantage of being Guarneri-Citati, B I D R 42 (1934) 183.
an crc'fio perprtua. Confessio. (From ronf teri.) Adnlission of liability
De Villa, StSns 10 (1932). I)y the defendant in full or partial confornlity with the
Condictio sine causa. An action for the recovery of plaintiff's claim. Confcssio may occur in either stage
a thing given for a specific purpose (cazrsa) which of the civil trial, in iure or npz~diudicenz.-D. 42.2;
failed afterwards, as, e.g.. a dowry given in view C. 7.59.-See the following items.
of a future marriage which, however, was not con- Kipp, IZE 4 ; Cuq, D S 3, 744.
cluded, or a gift made by a donor in contemplation Confessio apud iudicem. An acknowledgment of the
of his ininiinent death (n~orfisroustr), which then plaintiff's claim by the defendant before the judge.
did not occur.-D. 12.7; C. 4.9. It was treated only as a means of evidence. The
Condictio triticaria. An action for the return of a judge co~ildevaluate it at his discretion.
quantity of grain ( t r i t i c t ~ z )or other fungibles which Confessio in iure. An acknowledgnlent of the plain-
had been given as a loan.-See CONDICTIO CERTAE
tiff's claim made by the defendant (confessus) before
REI,MUTUUM.-D. 13.3. the magistrate in the stage of the proceedings in itire.
Collinet, S t Prrozzi, 1925; Kretschmar, Z S S 59 (1939) A confessus "is like a iudicatus (condemned by the
128. judge's judgment) since he is condemned to a cer-
Conditores iuris. See I U R I ~ ~ ~ N ~ CONDERE
U L T U IURA.
~, tain degree by his own judgment" (D. 42.2.1). The
Conductio. See LOCATIO. rule goes back to the Twelve Tables with regard to
Conductor agri vectigalis. See AGER VECTIGALIS. claims of a fixed sum. They ordered that an amount
of money admitted by the defendant (aes confessu~n)
Conductor operarum. See LOCATIO CONDUCTIO OPE-
was subject to execution in the same way as a thing
RARUM. adjudged by a judgment. When the defendant ad-
Conductor operis. See LOCATIO CONDUCTIO OPERIS mitted his liability but did not express it in a fixed
FACIENDI. sum, immediate execution was impossible and the
Conductor rei. See LOCATIO CONDUCTIO REI. whole matter went as a suit based on confession
Conductores. Lessees. Holders of large private and (actio confessoria) to the judge whose task was to
public estates used to sublease small portions thereof asses's the liability of the defendant. By his confessio
to minor lessees (coloni) for a rent ( a third or higher the latter avoided condemnation to a double amount
part of the produce) and personal services.-C. 11.72. (dupluun) in those actions in which his denial (see
Rostowzew, DE 2, 586; Lecrivain, D S 3, 967. INFITIATIO) would have produced such effect.
Conductores vectigalium. Persons who leased from Kipp, R E 4 ; Cuq, D S 3 ; A. Giffard, La c., 1900; Betti,
the state the right to collect vectigalia (revenues from A V e n 74 (1915) 1453; idem, A T o r 50 (1914-15) 700;
state property, such as land, mines, salt-works).- Collinet, N R H D 29 (1925) ; W . Piischel, Confessus pro
iudicato est, 1924; Wlassak, Konfessio in iure, SbMunch
C. 10.57.-See VECTIGAL, PUBLICANI.
1934; Wenger, Z S S 59 (1939) ; Pfluger, Z S S 64 (1944)
Rostowzew, DE 2.
360; S. di Paola, Confessio in iure 1 (Milan, 1952).
Confarreatio. The earliest form of CONVENTIO I N Confideiussores. Two or more sureties, fideiussores,
M A N U M in order to conclude a marriage between for the same debt.-See BENEFICIUM DIVISIONIS.
patricians. It was a solemn ceremony in the pres- Confinium. A strip of land constituting a border be-
ence of ten witnesses and a high priest. The term tween two adjoining plots. I t was to be left un-
comes from the use of a cake of spelt (far, panis ploughed and was excluded from usucapio. Syn.
farreus) in the ceremony. When the confarreatio fines.-See ACTIO F I N I U M REGUNDORUM, CONTRO-
fell into disuse, it remained obligatory only for the VERSIA DE FINE.
marriage of flamines. Confirmare tutorem. T o confirm a guardian. I n
Leonhard, R E 4 ; Kunkel, R E 14, 2270; De Ruggiero, certain cases, when the testamentary appointment of
DE 2 ; S. Perozzi, Scritti 3 (1948, ex 1904) 528 ; Fowler, a guardian was not quite certain, when the testament
J R S 6 (1916) 185; Brassloff, S t Bonfante 2 (1929) 363;
Carrelli, AnMac 9 (1933) 207; Noailles, R H D 15 (1936) ; was defective, or when the appointment was made by
E. Volterra, La concebtion du mariage (Padova, 1940), a person who had no patria potestas over the ward
14; Koestler, Z S S 65 (1947) 44; M. Kaser, Das allrom. (the mother, or the father of an emancipated son) the
Ius, 1949, 342. praetor could take the will of the testator into con-
Conferre. T o contribute money or goods; see CON- sideration and confirm the guardian appointed.-
FERRE I N SOCIETATEM, COLLATIO, COLLATIO BONORUM, D. 26.3; C. 5.29.
COLLATIO WTIS. COLLATIO DONATIONIS. Sachers, R E 7A, 1511 ; Solazzi, RendLomb 53 (1920) 359
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 407
Confirmatio codicillorum. See CODICILLI. Coniectanea. A collection of miscellanea. The word
Confirmatio donationis. A donation which might be appears as the title of juristic works of Capito and
invalidated by an exception opposed by the donor Alfenus Varus.
(exceptio legis Cinciae) became valid if the donor Coniectio. See CAUSAE CONIECTIO.
died without having revoked the donation. According Coniunctim. Jointly. Heirs instituted coniunctim be-
to an oratio of the emperors Severus and Caracalla came co-heirs with equal shares. A condition im-
a donation between husband and wife (donatio inter posed coniunctim upon several persons is binding on
ztirum et uxorevn) became valid, if the donor con- all. Ant. DISIUNCTIM. SEPARATIM.
firmed the donation in his testament. Coniunctio. An institution of several heirs for the
Siber, Z S S 43 (1933) ; De Robertis, AnBari 1935; Biondi, same estate or of several legatees for the same thing
Successione testamentaria (1943) 666, 714. in common. The estate (or legacy) became common
Confiscari (confiscatio). Seizure by, and for, the fisc, property of the coheredes (or collegatarii). The
-See PUBLICATIO.-C.9.48. heirs or legatees thus awarded are termed coniuncti.
Humbert, D S 1.
Confiteri, confessus. See CONFESSIO.Syn. fateri. Coniunctio maris et feminae. A basic element of
Confuga. (From confugere.) A pers,on persecuted the Roman marriage when connected with AFFECTIO
by an enemy, by creditors or for a crime, who takes MARITALIS and intended as a community for ever
refuge in a place which is inviolable, e.g., in a temple (CONSORTIUM owtnis vitae).-See NUPTIAE.
(in aede sacra) or under a statue of a reigning or Conl-. See COLL-.
dead emperor (ad statuawz Caesaris) .-C. 1.25. Connubium. See CONUBIUM.
P. Timbal Duclaux de Martin, Droit d'asile, 1939, 27; Conrei. See CORREI.
Gioffredi, S D H I 12 (1946) 187.
Consanguinei. See CONSANGUINITAS. Ant. UTERINI.
Confugere ad ecclesiam. To take refuge in a church. The distinction has significance in the law of suc-
-C. 1.12. cession.
Confusio. (From confundere.) Mingling of liquids. Leonhard, R E 4.
When they belong to different owners, the mixture Consanguinitas. The relationship between brothers
is owned by them in common as in the case of and sisters begotten by the same father. In a larger
COMMISCERE.
sense, blood relationship.-See IUS CONSANGUINITA-
Pampaloni, B I D R 37 (1929) 38; Baudry, D S 1; Leon-
hard, R E 4. TIS, NECESSITUDO.
Confusio. In the law of obligations this occurs when Conscientia (conscius). Knowledge of a crime com-
the right of the creditor and the obligation of the mitted by another. Such knowledge did not entail
debtor meet in the same person, as when the debtor punishment except in cases in which denunciation to
becomes heir of the creditor or vice versa. Confusio the authorities was obligatory, as, e.g., in case of
effects the extinction of the obligation. high treason (see MAIESTAS, PERDUELLIO) .
Baudry, D S 1 ; Leonhard, R E 4 ; S. Cugia, Confusione Consciscere sibi mortem. To commit suicide. Sui-
extinguitur obligatio, 1927; item, La confusione dell'obliga- cide committed by a person accused of a crime in
zione, Corso, 1943 ; S. Solazzi, L'estincione dell'obligacione, order to avoid condemnation was considered a con-
IZ (1935) 277; A. Hollfelder, Die c. i m riinz. R., 1930; fession of guilt and his property .was confiscated.
G. Wesenberg, Der Zusammenfall i n einer Person von Trials for high treason were continued in spite of the
Hauptschuld und Biirgsclzaftsschuld, 1935 ; Biondi, Istituti
fondamentali del dir. ereditario 2 (1948) 126. suicide of the accused.-Syn. manus sibi inferre.-
Confusio. (In the law of servitudes.) If ownership D. 48.21 ; C. 9.50.-See SUICIDIUM, LIBERA FACULTAS
of an immovable, encumbered by a servitude, and the MORTIS.
Rogers, TAmPhilolAs 64 (1933) 18; volterra, R S t D I t
right of servitude meet in the same person, the servi- 6 (1933) 393; F. Vittinghoff, Der Staatsfeind i n der rom.
tude, praedial or personal, is extinguished through Kaiserzeit, 1936, 52.
confusio, which in such cases is also termed CON- Conscius. See CONSCIENTIA.
SOLIDATIO. Conscius fraudis. One who participates in a debtor's
Congiarium. hloney or valuable commodities dis- fraudulent activities in order to deceive the latter's
tributed among the people on specific occasions. This creditors. Syn. particeps fraudis. A praetorian ac-
custom, introduced by Caesar, was followed by the tion for damages lies against him.-See FRAUS.
emperors as a gesture of liberality (liberalitas) on Humbert, D S 1.
such occasions as accession to the throne, a victory Conscribere. T o write down a legal document, in par-
in war, or another solemn event. The example of ticular a testament or codicil.
the emperors was imitated by triumphant generals
Conscripti. See PATRES CONSCRIPTI.
and wealthy individuals. Tokens (TESSERAE
MARIAE)redeemable in money, were also thrown to
NUM-
.
Consecrare (consecratio) See RES SACRAE.
the people on such occasions.-See MISSILIA. Consecratio. As a sanction for a crime committed
Rostowzew, R E 4 ; Berv6, R E 13 (s.v. liberalitas) ; Esp6- against the state or community this was the assign-
randieu, D E 2; Thedenat, D S ; D. Van Berchem, Distri- ment of the offender and his property to the gods;
bution de ble' et d'argent, Geneve, 1939. this made him an outlaw (sacer), deprived him of
408 ADOLF BERGER [TRANS. A M E R . PHIL. SOC.
protection by men and excluded him from human duced bad results. "Everybody may decide for him-
society. The consecratio, both capitis and bonorum, self whether the advice is to his advantage" (17.1.2.6).
is the lot of a person whom the laws declared SACER. -Consiliuwz of the person who performs a deed means
-See LEGES SACRATAE. his decision, intention, particularly when referring to
Wissowa, RE 4 ; De Ruggiero, DE 1, 144. prohibited acts.-See OPE CONSILIO.
Consecratio. (With regard to deceased emperors.) Last, AnPal 15 (1936) 253.
The enrollment of the dead emperor among gods, Consilium decurionum. A n~unicipal senate.-See
deification.-See DIVUS. DECURIONES.
G. Hertling, Konsecration im rom. Sakralrecht, 1911; S. De Ruggiero, RE 2, 61 1.
Brassloff, Studien zur rom. Rechtsgeschichte, 1925 ; Bicker-
man, Arch. fur Religionmissenschaft 27 (1929) ; F. Vit- Consilium magistratuum. Higher magistrates (con-
tinghoff, Der Staatsfeind in der rom. Kaiserzeit, 1936, 77; suls, praetors, censors, aediles, governors of the prov-
Bruck, Sem 7 (1949) 12 (Bibl.). inces, prefects, etc.) used to have advisory boards
Consensus. (From consentire.) In private law = con- composed of jurists and experts in various fields.
sent. I t is either unilateral when a person gives his They asked the consilium for advice in important
assent (approval) to an act performed by another matters, but were not obliged to follow it.-See
(consensus curatoris, of a father or parents, of a ADSESSORES.
magistrate), or bilateral when two persons agree Liebenam, RE 4; De Ruggiero, DE 2, 610; G. Cicogna,
upon a transaction. The consensus must be complete I consigli dei magistrati romani e il c. principis, 1910.
(in unum = on the same matter) and free from any Consilium principis. The imperial council. Follow-
kxternal influence (duress = vis,'wetus, error). A[- ing a Republican institution, the council of the magis-
though consensus is the basic element of all agree- trates (CONSILIUMMAGISTRATUUM) , the emperors
ments between two or more persons, there are some beginning with Augustus used to consult a body of
contracts (enzptio venditio, locatio conductio, man- advisors convoked in cases of particular importance.
datum, societas) which are concluded (obligatio con- Hadrian organized it as a permanent council com-
sensu contracta) when merely a consensus of the posed of members (jurists, high imperial function-
parties exists and is expressed (nudus consensus), aries of equestrian rank, and senators) appointed for
as opposed to other contracts for the conclusion of life (consiliarii, from the time of Diocletian a consiliis
whick further elements are reauired. such as the sacris). In the later Empire the council. called CON-
delivery of a thing (res), the use of words (verba) SISTORIUM (sacrum), functioned rather as a privy
or a written form (litterae). Consensus may be given council of the emperor in legislative, judicial and
expressly in spoken or written words, or tacitly, sim- administrative matters. Many famous jurists of the
ply by..gesture or other behavior leaving no doubt as classical period were members of the consilium. They
to the consent of the party (tacite, tacitus consensus). exercised a great
- influence on the development of the
-1nst. 3.22.-See CONTRACTUS, NUTUS. law as crystallized in imperial enactments. The par-
Leonhard, RE 4; Perozzi, St Schupfer, 1 (Turin, 1898) ; ticipation of the praetorian prefects gave the consilium
Hagerstrom, Z S S 63 (1943) 268. principis also a political character.
Consensus. In ~ u b l i claw this refers to the manifesta- Orestano, NDI 3 ; Balsdon, OCD; Seeck, RE 4, 926; D t
tion of the collective approval of the people (consensus Ruggiero, DE 2, 614; Cuq, Mbmoires de I'Acadbmie des
populi), the senate (consensus senatus), a municipal Inscr. et Belles-Lettres, 1 S. 9 (1884) ; Cicogna, I1 con-
council, and the like. silium principis, consistorium, 1902; idem, I consigli dei
magistrati romani e il cons. princ., 1910; Orestano, I1
De Ruggiero, DE 2. potere normativo degli imperatori, 1937, 51.
Consensus contrarius. A consensual contract (see Consilium propinquorum (necessariorum). A fam-
CONSENSUS) could be rescinded by a contrary agree-
ily council composed of older members. Sometimes
ment of the parties if neither of them had yet fulfilled
friends participated therein (consilium propinquorum
his obligation (re integra, re nondum soluta). Syn.
et amicorum). According to an ancient custom the
dissensk.
Siber, Z S S 42 (1922) ; Stoll, Z S S 44 (1924). head of a family used toconsult this council before
Consentire. See CONSENSUS. punishing a member of the family for criminal of-
Conservi. Fellow slaves belonging to the same master. fenses, for instance his wife or daughter for adultery
Consignare (consignatio). T o seal a written docu- (see ADULTERIUM).But he was not bound by the
ment (e.g., a testament). Syn. signare. opinion of the consilium, which was only an advisory
Consiliarii (consiliarii Augusti). Members of the board to assist the head of the familv in internal
emperor's consilium; generally members of any family matters, and had no judicial competence.
council. De Ruggiero, DE 2, 609; Volterra, RISG 85 (1948) 112.
De Ruggiero, DE 2, 616; Checchini, AVen 58 (1909). Consilium publicum. The senate.
Consilium. Advice. It is to be distinguished from De Ruggiero, DE 2, 610.
a mandate (mndatum) and does not create any Consilium quaestionis. The jury in a criminal trial.
responsibility for the person who gave it if it pro- -See QUAESTIONES.
VOL. 43, PT. 2 , 19531 ESCYCLOPEDIC DICTIONARY OF ROMAN LA%
\' 409
Consistentes. Persons who sojourn temporarily at a acker, Hausgenossenschaft und Erbeinsetsung, 1940 ; So-
place which is neither their birth-place nor their lazzi, S D H I 12 (1946) 7 ; E. Schlechter, Contrat de
socic'ti, 1947, 182; De Visscher, Nouzlelles Etudes, 1949,
domicile. The term is applied primarily to merchants 267; Albanese, Successione ereditaria, AnPaE 20 (1949) 9 ;
(negotiatores) . Daube, Juridical Review 62 (1950) 71; Arangio-Ruiz, La
Kornemann, R E 4, 922; De Ruggiero, DE 2. societh (Corso), 1950, 3 ; Weiss, Fschr Schulz 2 (1951) 84.
Consistere (czt~tzaliquo, adversus aliquem) . T o sue Consortium omnis vitae. A community for the whole
a person for a civil claim or to denounce another for life. I t is a basic element of the Roman marriage,
an unfair action (e.g., a slave denounces his master mentioned in the definition of marriage by Modestinus
for concealing a testament). (D. 23.2.1) ; see NUPTIAE. I t is not affected by the
Consistorium. See COMITES CONSISTORIANI, CONSI- possibility of divorce.
L I U M PRINCIPIS. Solazzi, AnMac 5 (1930) 27; Erhardt, Z S S 57 (1937) 357.
Seeck, R E 4, 930; Humhert, D S 1 ; De Ruggiero, D E 2, Conspiratio. A plot by several persons for criminal
618 ; Mattingly, O C D ; Cicogna, I1 consilium principis, purposes (e.g., to bribe witnesses, to break out of
consisforium, 1902.
prison).
Consobrini. Children of brothers or sisters, cousins.
Constante matrimonio. During the existence of a
Children of two brothers = patrueles (fratres or valid marriage.
SOYOY~S) . Constantinopolitana urbs (Constantinopolis). The
Consolidatio. The extinction of a personal servitude
former Byzantium, refounded by Constantine in A.D.
by merger when the ownership of an immovable,
330 as itTovaRoma. It replaced Rome as the capital
burdened with a servitude and the right thereto
of the Empire and "enjoyed the prerogatives of an-
meet in the same person. It happens, for instance,
cient Rome (Ronta vetus)," C. 1.2.6.
when the owner becomes heir of the usufructuary Oberhummer, R E 4 ; Mattingly, OCD.
(frucfuaritts) or vice versa.--See CONFUSIO.
Constate. See RES QUAE PONDERE . . . CONSTANT.
Consortes imperii. Colleagues in power. Colleagues
Constat inter omnes. It is the common opinion of the
in the tribunate = consorfes tribuniciae potestatis.
jurists. Syn. generaliter constat, ovvlnes consentiunt.
Syn. parficipes. With reference to emperors, the Schwarz, Fschr Schulz 2 (1951) 208.
consors of the reigning emperor was his colleague
Constituere. T o constitute, create a legal situation,
only formally being appointed solely to secure the relation or an obligatory binding (servitutenz, obliga-
succession after the death of the emperor, who alone
tionem, dotenz, etc.)-See the following items.
had the title Augustus. Normally he was the em- Leonhard, R E 4 ; Baudry, D S 1.
peror's son appointed in the same manner as the Constituere debitum. See CONSTITUTUM DEBITI.
emperor. In this way the imperial power was per-
Constituere iura (ius). T o create laws. The expres-
petuated in the family.-See COLLEGAE.
De Ruggiero, D E 2 ; Lecrivain, D S 4, 651.
sion is applied to all kinds of legislative activity (of
the people, the praetor, the senate, the emperors, and
Consortes litis. Two or more plaintiffs or defendants the jurists) and even to legal customs (ius vtoribus
in the same trial.-C. 3.40. constitutunz) .-See CONDERE IURA.
Redenti, A G 99 (1907).
Constituere procuratorem (tutorem). T o appoint a
Consortium. ( I n ancient law.) The community of representative ( a guardian).
goods among co-heirs after the death of their eater Constitutio. ( I n the meaning of a legal rule) out-
familias when the property remained undivided. This side the domain of imperial legislative activity (see
common enjoyment of family property served as a CONSTITUTIONES PRINCIPUM)Very . rarely used in
model for a contractual consortium among individ- texts that are not free from the suspicion of post-
uals, members of different families, not connected by classical origin. In one postclassical source appears
a tie of common succession. The consortes had a constitutio Rutiliana which established a specific
broader powers to act for the whole group, with rule regarding a defective purchase of a yes 7nancipi
regard both to acquisitions and alienations (manu- from a woman without the approval of her guardian
mission of slaves) since each was considered the ( F r . Vat. 1). Its author was probably the Republican
owner of the whole. According to Gaius (3.154a), jurist Publius Rutilius Rufus.
this ancient consortiul~z was "a legal and simulta- Constitutio Antoniniana de civitate. A constitution
neously a natural sociefas, called ercto non cito" (with of the emperor Caracalla (A.D. 212) by which all
ownership not divided). inhabitants of the empire, organized in civitates with
Sachers, R E 18, 4, 2149; Frezza, N D I 3 ; idem, Riv. di
filol e isfr. class. 1934, 33; Cicogna, S t in mem. P. Rossi; local autonomy, were granted the Roman citizenship,
S t S e n 1932; Rabel, Mnemosyna Pappoulia, 1934; Arangio- except the so-called PEREGRINI DEDITICII. The con-
Ruiz, B I D R 42 (1934) 601; P. Noailles, Etudes de dr. stitution is preserved on a Greek papyrus (of Giessen,
rom. 51; Levy-Bruhl, Atti I V Congr. Intern. Papir. giur. I no. 40, ed. P. M. Meyer). There is, however, a
(Firenze, 1935) 293 (= Nouvelles Et., 1947, 51) ; C. A. lacuna on a decisive point which has led to an abun-
Maschi, Disertiones, Ricerche iiztorno alla divisibilitd del
c. nel diritto rom. clas., 1935; idem, Concezione natura- dant literature. The problems involved are still con-
l i s t i c ~ ,1937, 306; Albertario, Studi 5 (1937) 467; Wie- troversial.-See PRAENOMEN.
ADOLF BERCER
Khbler, R E 19, 641 ; Anon., N D I 5 (Editto di Caracalla) ; to the imperial court a contrary decision of a lower
Bry, Et. Girard (1912) ; G. SegrP, B I D R 32 (1922) ; court might be changed in accordance with the rules
(1931) 303 ; Stroux, Philologus 88 (1933) 272 ; Wilhelm, Jors, R E 4 ; Costa, N D I 3 ; Berger, O C D ; Riccobono,
Anter. Jour. o f Archaeology 38 (1934) ; Jones, J R S 26 F I R 2' (1941) 295; Fass, Arch. fur Urkundenforschung
(1936) 223; Sherwin-White, T h e R . citizenship (1939) 1 (1908) 221; E. Vernay, Bt. Girard 2 (1913) ; Kreller,
218; Schubart, Aeg 20 (1940) 31; Heichelheim, Jour. of Z S S 41 (1920) 262; Lardone, S t Riccobono 1 (1936) ;
Eg. Arch. 26 (1940) ; A. SegrP, Rend. Posztif. Accad. di Orestano, I1 potere normatizro degli imperatori e le costi-
Archeol., 16 (1940) 181 ; Riccobono, F I R 2' (1941) no. 88; tuzioni imperiali, 1937; Volterra, S t Besta 1 (1939) 449;
Wenger, ArPap 14 (1941) 195; D'Ors, Emerita 11 (1943) F. v. Schwind, Publikation der Gesetze, 1940: 129; De Ro-
297; idenz, A H D E 15 (1944) 162, 17 (1947) 586; Arangio- bertis, Sull'eficacia nornzativa delle cost. imperiali, AnBari
Ruiz, L'application du droit rom. en Bgypte aprhs la c. A., 4 (1941, 1, 281) ; idem, Z S S 62 (1942) 255; Luzzatto,
Bull. de l'lnstitut d'govbte 29 (1947) 89: Bell. J R S 37 Scr.. Ferrini (Univ. Pavia, 1946) 263.
(1947) 17 ; Wenper, x i n ~ 3 (1.949) '527 ; Keil, Altzeiger Constitutibnes Sirmondianae. A private collection of
Akad. IYiss. Wien, 1948, 143; D. Magie, Rom. rule i n
Asia Minor 2 (1950) 1555; Henne, Conflnst 1947 (1950) sixteen imperial constitutions issued between 333 and
92; D~ vjsscher, A ~ 3 (1949) c ~ 15;~ Schdnbauer, jour. 425 concerning ecclesiastical matters (first edited by
juristic papyrology 6 (1952) 36; Taubenschlag, ibid. 130 J. Sirmondi, 1631). The collection was compiled by
(Bibl.).--For imperial constitutions preserved in papyri, an unknown author in the Western Empire. Ten of
Constitutio Rutiliana. See CONSTITUTIO. dosianus, but their text in the Constitutiones Sirtnon-
the imperial constitutions and keeping them under Edition: in Mommsen's edition of the Codex Theodosi-
Constitutiones generales. See CONSTITUTIONES PRIN- C. Pharr, Codex Theodosianus (Princeton, N . J., 1952)
477.
braces all types of imperial enactment; see EDICTA, a fixed date and at a fixed place. The sun1 so prom-
a statute ( l e x ) " or ". . . is applied as if it were.a to the previotis terms. The fulfillment of a constitu-
1.5). Such principles were estaMished in the early nia constituta (constitutoria). It is an actio in facturn,
second century after Christ. We are told by Gaius strengthened the promise of a penalty One
(Ioc. ,-it.) that there never had heen any doubt about the debt (sPonsio dimidtar Parts). A
it, and yet in the early Principate the emperor used constitutum could also cover debts originating from
to present his legislative proposals in an wrongdoings. The institution was reformed by Jus-
oratio hefore the senate for its approval by which they in 13" ; C' 4'18'-See the
acquired full legal force. This approval afterwards
Humbert, D S 1 ; Anon., N I I I 3 ; J. Dkjardin, L'actiorz de
became a simple formality, so that the oratio itself pec. const. 1914; A. Philippin, Le pactc de constitut. 1929;
was considered a law. A legislative character was Willems. M i l Cornil 2 (1926) 615: G. Astuti, La proi~~cssa
attributed in the first place to the edicta and to those di pagamento 1, A n c a m 11 (1937). 2 (Pubbl. Catania 7,
enactments indicated as constitutiones generales (de- 1941).
creta, rescripts) in which the emperor expressly de- Constitutum debiti alieni. A pron~iseto pay (CON-
claret1 that his decision issued in a specific case should STITUTUM)another's debt. This is a formless kind
henceforth be applied in analogous cases. Rescripts of surety. Its validity depends upor1 that of the prin-
ant1 decrees issued without such a clause also acquired cipal debt.-See RECEPTUM ARGENTARII.
the force of legal norms in the last analysis, since Constitutum debiti proprii. A constitittuii~hetween
on the one hand the judges normally followetl the parties already involvetl in an 01)ligatory relationship.
principles settletl therein (although legally they were See CONSTITUTUM. The
purl~oseof this consfitutum,
not bountl to do so) and on the other hand 1)y appeal also called pnctzrln dc constiticto, is to modify some
formed in advance of the contents of the judge's Contentiosus. See IURISDICTIO CONTENTIOSA.
report. The emperor decided on the basis of the Contestatio. (From contestari.) A declaration made
written materials submitted to him. I n particular, before witnesses. T h e term is connected with the
judicial matters of the provinces were transmitted in invitation extended to Dersons to be witnesses to a
this way to the emperor who expressed his point of fact or a n oral statement, by the words "testes estote"
view in a rescript sent to the first judge. T h e latter (= be witnesses). Later contestatio is also used
in turn notified the parties of the imperial decision. with regard to declarations made before a public
T h e parties themselves were forbidden to address' the
imperial chancery directly unless a year elapsed with- CILIUM.
out an answer. This was the procedure of a con- Contestatio litis. See LITIS CONTESTATIO.
sultafio before judgment ( a n f e sententiam). The Contextus. T h e content of a written document, e.g.,
same procedure was used in the case of an appeal of a testament. With regard to testaments, it is
to the imperial court (appellafio more conszdfationis) required that tliey be made u n o contextu, i.e., in one
from the time of Constantine. Justinian's prede- act, without interruption.
cessor, Justin, admitted a hearing of the parties B. Biondi, Successione testamentaria, 1943, 57.
VOL.43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 413
Continens. I n (ex) continenti = immediately, with- limited to obligations recognized by the ius civile,
out delay. Ant. e x intervallo. The locution in con- the term contractlrs even in the classical period ac-
tinenti is used in connection with the right of a father quired a wider sense, embracing obligatory relations
to kill an adulterous daughter caught inflagranti; .see recognized by the praetorian law and covering the
ADULTERIUM, LEX I U L I A DE ADULTERIIS. whole domain of contractual obligations, so that the
.
Continentia (aedificia) Buildings outside of Rome, jurist Paul could say: "Every obligation should be
but adjacent to the walls of the city. They were con- considered a contract, so that wherever a person
sidered part of Rome and consequently a child born assumes an obligation he is considered to have con-
therein was held to have been born in Rome.-See cluded a contract" (D. 5.1.20). The term contrac tlas.
URBS although not rare in classical sources, is therefore far
Continuus. See ANNUS,TEMPUS CONTINUUM. less frequent than obligatio. The real picture of the
Contio. A popular informal meeting convoked by a Roman concept of contracf~iswas overshadowed by
magistrate in order to con~niunicate to the people the fact that for some tjpical contracts specific names
(virba facere ad poplalu~n) news of an important were created, such as euzptio vcnditio, locatio cotz-
military event or an edict issued by him, or to inform dzictio, depositutn, cotn~iiodafzi~iz,etc. (see below) ;
them about subject matters to be dealt with in the on the other hand, for the fundamental element of a
next formal cotnitia, which might even be held on contract, the consent of the contracting parties (see
the same day. Thus, laws, elections and judicial CONSENSUS), other expressions were available which
matters were discussed in a confio before thev were covered both the consent itself and the whole trans-
subject to vote or decision in the assembly propex action (conventio, pactio, pactlajn conventir~il, also
where discussion was not permitted. A contio was negotizim). In the Roman system of obligations, the
less solemn and was not preceded by atdspicia. N o contractlts appears as the source of four principal
voting took place. Plebeian tribunes were wont to classes of obligations according to the fundamental
use contiones for political purposes. division established in Gaius' Institutes (3.88) :
Liebenam, RE 4 ; Humbert, D S 1 ; De Ruggiero, DE 2 ; "every obligation arises either from a contractzas (ex
Treves, OCD. contractz0 or from a wrongdoing (ex delicto) ."
Contra. Against (e.g., to decide, to render judgment). The subdivision of the contracts into four groups,
Ant. SECUNDUM. formulated also by Gaius (3.89 ff.) and accepted by
Contra bonos mores. See B O N I MORES. "It is to be Justinian (Inst. 3.13 ff.), is based on specific elements
held that we niay not do things (facfa) which violate which create unilateral or bilateral obligations. The
good customs" ( D . 28.7.15). A condition imposed four groups are: ( 1 ) Contracts which are validly
on a person not to marry or not to procreate children concluded by the mere consent (nlido consensu) of
in a legal marriage, suing parents or patrons in court, the parties. As a matter of fact, all contracts require
a mandate to commit a theft or to hurt another, and consent of the contracting parties, but this particular
the like, were considered to be contra bonos j~zorcs.- category requires nothing more than the consent. I t
See C O N D I C T I O T U R P I S , CONDICTIO OB TURPEAI CAU- includes sale (enzptio venditio), lease and hire (locatio
SAM, ILLICITUS. condiictio), mandate (i~znndatz~lii), and partnership
Koschembahr-Lyskowski, M i l Cornil 2 (1926) ; J. Mac- (socictas). (2) Contracts concluded 1)) rcs (oblign-
queron, L'hisfoire d r la calise irrtrrzorale d a i ~ sIcs obligatiorts,
1924; H . R. hfezger, Stipulatioizoz uitd Ictzuilligr V c r - tioncs rc contractae), i.e., the handing over of a thing
fugtir~gcrt c. 11. 111. 1919 (Diss. Gottiiigen) ; Siber, S t B o w by one party (the future creditor) to the other (the
farttc 4 (1930) 103 ; Kaser, Z S S 60 (1940) 100 ; Riccobono, future debtor). Such contracts are loan (~~tlifzfla~ll),
Scr. Fcrrirti (Univ. Pavia) 1947, 75. deposit (depositztwt), a gratuitous loan of a thing
Contra legem facere. See FRAUS LEGI FACTA. (co~~ii~rodat~a?~z) and pledge (pignus). ( 3 ) Con-
Contra tubulas. Contrary to the testamentary dis- tracts concluded by the pronunciation of solemn, pre-
positions of the testator.-See BONORCM POSSESSIO scribed words (certa verba, obligntio wcrbis con-
CONTRA TABCLAS. frncfa) ; such are stipltlatio, dotis dirtio and ilirata
Contra vindicare. See I N I U R E CESSIO. pror~lissioliberti. (1) Contracts concluded tl~rough
Contractus. (From contrahere.) A contract. There the instrument of littcrac (oldigatio lifteris contrc~cfa),
is no exact definition of contracfzts in the sources, nor i.e., of ~vrittenentries in the account books of s pro-
did the Roman jurists develop a general theory of fessional banker or any private indivitlual; see No-
contracts. The characteristic element of a contractzas M I N A T R A N S S C R I P T I C I A , ESPENSILATIO. l7or the Spe-
is the agreement, the concurrence of the wills of the cific contracts, see the pertinent entries; for the sub-
parties, to create an actionable, obligatory bond be- jective elements of importance in the conclusion of a
tween them. (hlucli larger is the use of the verb contract See CONSENSUS, VOLUNTAS, ERROR, hIETUS,
contrahere which at times appears in a sense other DOLCS; See also CONVENTIO, NEGOTIUXI, FACTIO, PAC-
than the creation of a contract; locutions such as T U M , TRANSACTIO and the follo\ving items.
contrahcre dclictli~lzor contraltcrc criulen have noth- Leonhard, RE 4 ; Riccobono, A\rIll 4, 3 0 ; Braqiello, N D l
ing to (lo with a contractual obligation.) Originally 8, 1203; Berger, OCD; De Francisci, S ~ ~ ~ ~ n l l ~ r c ~1-2
rrrcl.
414 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
(1913, 1916) ; Bonfante, Scritti 3 (1926) 107 (several for indemnification for the service performed (CON-
articles) ; Riccobono, A f t p a l 3-4 (1917) 689; idem, La DICTIO CAUSA DATA CAUSA N O N SECUTA, ACTIO ~ 0 ~ 1 ) .
fonlzazione della tearia generalc del cantratta, S t Bonfante
1 (1930) 123; Bortolucci, A C I I 1 (1935) ; Nocera, La
Some of the contractus innol~zinatzbecame so typical
definisione biZalttina d; contratto, RISG 11 (1936) 278; that already in classical tin-ies they received a spe-
Collinet, L Q R 98 (1932) 488 ; Lauria, S D H I 4 (1938) cific denomination (PERMUTATIO, AESTIMATUM) ;
135; Brasiello, S D H I 10 (1944) ; Grosso, 11 sistema ro- others were discussed by the jurists and solved in
mano dri cotitratti, 2nd ed. 1950; P. Voci, Scr. Ferrini various manners, particularly with regard to the
(Univ. Pavia, 1946) 383; idem, La dottrina del contratto,
1946; Archi, Scritfi Feyyini (Univ, Pavia, 1946) 659; Van question whether the party who first performed his
Oven, Iura 1 (1950) 21; Dulckeit, Fscltr sch141z 1 (1951) obligation had an action to compel the other to per-
153. form his. Some jurists were not disinclined to such
Contractus bonae fidei. A term created by Justinian an action (in facturn, with a description of the agree-
for contracts which in the classical period gave rise ment in the formula, praescrkptis verbis agere). The
to actiones (for?lzulae, izldicia) bonae fidei. They in- history and theory of such contracts appear in the
valved the good faith of the parties and required sources in a somewhat confused picture because the
fairness in the performance of the duties assumed. pertinent texts are thoroughly interpolated, leaving
All consensual contracts as well as the real contracts the classical ideas hardly recognizable, and because of
(re, the latter with the exception of the loan, mutuum) the multiform terminology concerning the remedies
belong to this category of contracts.-see CONTRAC- granted to the one party who had performed his duty
TUS, USURAE EX PACTIO,IUDICIA BONAE FIDEI. to enforce the reciprocal performance on the part of
S. Di Marzo, B. f . c., 1904; Bibl. in Guarneri-Citati, Indice, the other.--See ACT10 PRAESCRIPTIS VERBIS.
S t Riccobono 1 (1936) 713. P. De Francisci, Sjvzallagma, Storia e dottrina dei cosi-
detti contratti innominati, 1-2 (1913, 1916) ; Partsch, A u s
Contractus (pactum) in favorem tertii. The term ~tachgelasscneiz Schriften, 1933, 3 ; Collinet, N n e m Pap-
is unknown in the sources. The Romanistic litera- poulia, 1934, 93; Kretschmar, Z S S 61 (1941) ; Grosso, I1
ture considers as such a contract a transaction in sistenza rotnano dei contratti, 2nd ed. 1950, 176; Giffard,
which a person who is not a representative of a third ConfInst 1947 (1950) 68.
person, accepts a promise in favor of the latter, who Contractus iudicum. In Justinian's language, con-
does not himself participate in the transaction. As tracts concluded by high administrative officials in
a matter of principle, such a transaction was void and Constantinople and the provinces as private indi-
the third person did not acquire any action therefrom. viduals. The emperor greatly limited their liberty
See N E M O ALTERI STIPULARI POTEST. Only a son to conclude certain transactions. Forbidden were
could conclude such a transaction in favor of his purchases of immovables and n~ovables (except for
father, a slave for his master, a guardian for his personal use), contracts for the construction of a
ward. In Justinian's law some exceptions were building for their private use, and the acceptance of
admitted. gifts, unless with a special permission of the emperor.
Riccobono, A n p a l 14 (1930) 399; G. Pacchioni, Contratti Such transactions made by iudices (a general Jus-
in f. t., 3rd ed. 1933; Bonfante, Sfttdi 3 (1926) 243; idem, tinian term for high governmental officials) were
Ce?ttCo&'av (1934) 211 ; Vazny, B I D R 40 (1932) ; idem, void.-^. 1.53.
S t Riccobono 4 (1936) 261; Cornil, S t Riccobono 4 (1936)
241 ; Albertario, Fschr Koschaker 2 (1939) 16 (Bibl.) ; Contractus suffragii, See SUFFRAGIUM.
G. Wesenberg, Vrrtragc sttgzrnsten Dritter, 1949; Frezza, Contradicere (contradictio). T o oppose, object, make
NuovaRDCom 3 (1950) 12. a contrary statement, deny, particularly with regard
Contractus innominati. Unnamed contracts. The to a claim in a judicial proceeding.-See NARRATIO.
term, unknown in the sources, is used for trans- P. CoIIinet, La $rocl.dure t a r libclle (1932) 209, 295;
actions which, although of a certain typical structure, Lemosse, S t Solazzi, 1948, 470.
were not termed by a specific name. once only the Contradictor. The opponent in a trial who contests
expression anonymous synallagrnau appears in a the plaintiff's claim, particularly in trials concerning
Byzantine text. From contractus innominuti arise paternity Or the persona' status of a person (as a
bilateral duties: each party assumes the obligation to free man Or a free-born).
give or to do (facere) something. Four types Contradictorii libelli. See LIBELLI CONTRADICTORII.
of such contracts are distinguished: (1) do ut des Contrahere. Used in different applications : conclud-
(one party transfers the ownership of a thing to ing a marriage or betrothal, committing a crime, as-
suming an obligation through a bilateral agreement
another who has to do the same in return) ; (2) (see CONTRACTUS), accepting an inheritance, per-
do u t facias (one party gives the other a thing whereas
forming procedural activities, and in a general sense,
the other has to perform a service) ; ( 3 ) facio uf des
performing any act of legal significance.
(an inverse transaction to that under 2) ; and (4) Betti, B I D R 25 (1912) 65 and 28 (1915) 3, 329; P. Voci,
facio ut facias ( a reciprocal exchange of performances Dottritta dei contratto (1946) 12; Grosso, I1 sistema YO-
of the most different kinds). If one of the parties mano dei contratti, 2nd ed. 1950, 32.
fulfilled his duty and the other did not, the former Contrarius. See CONSENSUS CONTRARIUS,
ACTIONES
has an action for the recovery of the thing given or DIRECTAE.
VOL. 4 3 , P.T. 2, 19531 ENCYCLOPEDIC DlCTlONAIiY OF ROMAN LAW 415
Contrectatio (contrectare). Laying hands on an- Solazzi, S t Siinoitcclli, 1917; Volterra, I J l I ) R 38 (1930) ;
other's thing with a view to taking, tiiisaplrol)riati~lg. Brasiello, StUrb 7 (1933) ; L. Aru, I1 process0 civile
meddling with, misusing another's thing. T h e term contumaciale, 1934.
appears in the Iionian clefinition of theft (FURTUM) Contumacia. ( I n military service.) Insubortlinatiotl,
and its al,plic.tion goes far ~~~~~~~l the silllple taking ( k h e d i e n c e to a superior's order. Contuwtacia to-
away of another's property without his consent. wards a high conlnlander or the governor of a prov-
~ ~ ~LORk 57 l (1941) ~ 467;~ ~c~,,~,,,
, X I D A 2 (1949) ince in his military capacity was punished 1)y death.
134; Nicdcrliiitder, Z S S 67 (1950) 240. I-'etulantia is more serious insubordination (impu-
Contrectator. A thief.-See CONTRECTATIO. dence, audacity), as when a soldier raised hand
Controversia. A general tern1 for a legal controversy against his sul)erior. I t was punished 1 ) d~ eath when
between private individuals, a dispute before a court. the sul)erior was of a higher military rank.--See
With regard to jurists and their works, controversia DELICTA M I L I T U M .
means a difference of opinion among persons learned Contumaciter. ( I n iliiperial constitutions.) T o behave
in the law, particularly between representatives of the as a contu+nax, to be guilty of conturnacia in a civil
two juristic schools, the Sabinians and Procu1ians.- trial. .Syn. per contumaciarn.-See CONTUMACIA.
See PROCULIANI, SABINIANI.
Contumax. See CONTUMACIA.
Albertario, Studi 4 (1940) 263.
Contumelia. A n insult. I t is considered a kind of
Controversia de fine (finibus). A dispute between INIURIA, but it is not precisely defined. I t is char-
neighbors about the boundaries of rural property acterized as synonymous with the Greek hybris.-See
when only the five-foot-border strip was involved. CONVICIUM.
The controversy was called iurgium (not lis) and Contutores. T w o or more guardians of the same ward
was settled in a friendly manner by arbitrators, usu- (Plures tutores). Such plurality could be established
ally with the assistance of experts (AGRIMENSORES). 'by testament, by appointment of the magistrate, o r by
See LEX M A M I L I A ROSCIA. When the controversial law, when two tutores legitirni were entitled to the
strip of land was wider than five feet, the quarrel Same guardianship being relatives of the ward in
became a CONTROVERSIA DE LOCO. equal degree. Co-owners manumitting a common
Kiibleq R E 9, 959; Brugi, N D I 4 (controversiae agro- Slave might become co-tutors, too.-D. 26.7 ; C. 5.40;
r u m ) ; Schulten, D E 3, 93. 4 2 ; 52.-See TUTOR GERENS, TUTOR CESSANS.
Controversia de loco. See the foregoing item. Sachers, R E 7A, 1526, 1551, 1575 ; Peters, Z S S 32 (1911)
Contubernale's. A man and woman living together but 226; Levy, Z S S 37 (1916) 14; A. Lecompte, La pluralifb
not united in a legal marriage (iustae nuptiae). See des tuteurs, 1927; Solazzi, A N a p 57 (1935) 212; Arangio-
Ruiz, ibid. 61 (1942) 271 ; G. Nocera, Insolven,-a, 1942,
CONTUBERNIUM. Inscriptions show that not only 227; Solazzi, S D H I 12 (1946) 7 ; Frezza, S t Solazzi,
slaves but also free persons and freedmen were thus 1948, 514.
designated.-See C O N T U B E R N I U M . Conubium. T h e legal capacity of a man to conclude
De ~ u ~ ~ i eDrEo2,, 1188; Castello, Matrimonio (1940) 32, a valid marriage. Conubizlgn is "the faculty to marry
Contubernales (milites). See CONTUBERNIUM (mili- (uxorern ducere) legallyH (Epit. Ulp. 5.3) .-See IUS
tary). CONUBII,MATRIMONIUM, M A T R I M O N I U M IUSTUM.
Contubernium. A permanent, marriage-like union Leonhard, R E 4 ; Kunkel, R E 14, 2262; Hurnbert, D S 1 ;
between slaves. Masters favored the maintenance of De Ruggiero, D E 2, 265 ; C. Cosentini, S t sui liberti 1
slave families. Children of such unions were liberi (1948) 50 ; E. Nardi, La reciproca Posizione successoria dei
coniugi privi di c., 1938; Costanzi,' Sul divieto di c. jra
natuiales. Contubernium i s also a lasting union of patrizi e plcbei, A C S R 2 (1929) ; Volterra, S t Albertnrio,
a master and his female slave.-see CONTUBERNALES, 2 (1950) 347; De Visscher, A D O - R I D A 1 (1952) 401.
SENATUSCONSULTUM CLAUDIANUM. Convalescere. T o become legally valid after an origi-
Fiebiger, R E 4 ; Masquelez, D S 1 ; Brugi, N D I 4 ; A. de nal invalidity or uncertainty about the validity. As a
Manaricua, El matrimoirio de 10s esclavos, Analecta Gre- matter of rule, "what is defective (vitiosunl) it1 the
goriana, 23' (1940) ; C. Castello, Matrimonio (1940) 32.
beginning cannot become valid by lapse of time"
Contubernium. (Military.) A group of ten soldiers
(D. 50.17.29).
living under the same tent. Hence contubernales =
Conveniens est (convenit). I t is proper, suitable
tent-companions.
De Ruggiero, DE 2. (e.g., to equity, to good faith, or to what has been
Contumacia. (Adj. contuwzax.) Non-obedience to said before). T h e phrase conveniens est dicere ( = it
is proper to say) frequently precedes juristic deci-
a n order 'of a magistrate in general, to a judicial
sions.
magistrate or a judge in particular, the refusal to
answer o r another form of contempt of court. A Convenienter. Used similarly to CONVENIENS EST.
specific form of contul~~acia is non-appearance in court Convenire. ( 1 ) T o come together, "to assemble from
in spite of a summons or hiding to avoid a summons. different places in one place" (D. 2.14.1.3). I t refers
-See ABSENS,EREMODICIUM, EDICTA PEREMPTORIA.
to gatherings of members of a n association (colle-
Kipp, R E 4 ; Humbert, D S 1 ; P. Petot, Le dkfaut i n iudi- gium) and the like. (2) When said of two persons
cio, 1912 ; A. Steinwenter, Versuutnitisverfahren, 1914 ; = "to agree upon a thing from different impulses of
416 ADOLF BERGER [TRANS. AMER.
PHIL. SOC.
the mind" (D. ibid.). Hence "conventio is a general Convertere. ( W i t h regard to the formula in the for-
term and applies to all matters upon which persons mulary proceedings.) T o transfer the condewnatio
dealing one with another agree in order to conclude clause of the formula to a Ilerson other than the one
a contract or to settle a dispute." T h e term is so mentioned in the intentio, for instance, when the
comprehensive that "there is no contract, no obliga- plaintiff's representative in the trial is the cessionary
tion, which does not involve a n agreement" (D. ibid.). (procurator in yew suawz) of the primary creditor,
Convenire may denote the agreement as a whole o r or when the bonoruw e99zptor acquired the creditor's
single clauses thereof (no~ninatiwzconvenire) .-Syn. property.-See COKDEMNATIO, INTENTIO,
TRANSLATIO
consentire. IUDICII, ACT10 RUTILIANA, BONORUM EMCTIO.
Convenire aliquem. T o sue a person in court. Convicium. A verbal offense against a person's honor.
Convenit. (Generally said.) I t is held, assumed, gen- I t is considered an I N I U R I A when committed bv loud
erally accepted.-See C O N V E N I E N S EST. shouting in public (vociferatio) .-See INGRATUS.
Conventio. See CONVENIRE under (2). Later classi- Convincere. T o convict a person of a crime as his
cal jurists distinguished three kinds (species) of con- accuser (see ACCUSATIO) or to prove one's rights in
ventiones: publicae (ex publica causa), such as peace a civil trial against the assertions of the adversary.
treaties concluded by the commanding generals; pri- Convocare. ( I n public law.) T o convoke the senate,
vatae ( e x privata causa), agreements in private mat- a popular assembly, a COKTIO. I n criminal law: to
ters such as contracts at civil law (conventiones assemble a numher of accomplices (TURBA)to com-
legiti~nae) and at ius gentiuwz (conztentiones iuris mit a criminal assault together.
gentium). C o o ~ t a t i o . The election of new members of a colle-
Condanari Michler, R E 18, 2135; Riccobono, St Bonfante gium by its existing members. I t was also practiced
1 (1930) 146; G. Lombardi, Ricerche in tema di ius gen- in priestly colleges (COLLEGIA SACERMTUM) . CO-
tiutn (1946) 193, 215. optatio took place in the college of the tribunes if
Conventio. I n later procedural terminology, see LIBEL- the full number of tribunes was not 'elected bv the
LUS CONVENTIONIS.-See C ONVENIRE (ALIQUEM) . plebeian assembly or if the post of a tribune became
Conventio in manum. A n agreement accompanying vacant. The LEX TREBONIA abolished the tribunician
the conclusion of a marriage, by which the wife en- cooptatio.
tered into the family of her husband and acquired Wissowa, R E 4; Paribcni, DE 2.
the legal position of a daughter (jiliae fai~ziliasloco) Copulare matrimonium (nuptias). T o conclude a
dependent upon his power (wzanus) .-See MANUS marriage.
(Bibl.), C O ~ ~ M P TCONFARREATIO,
IO, USUS. Cordi. A n enactment by Justinian, beginning with the
Conventionalis. Based on a conventio, i.e., an agree- word "Cord?' by which the second edition of his
ment between the pzrties. The term is applied to Code was promulgated (November 16, 534) .-See
stipulations (stipulationes) to be distinguished from CODEX IUSTINIANUS.
stipulationes praetoriae, imposed by the praetor in Cornicularii. Soldiers who received the distinctive
certain proceedings, and stipulationes iudiciales, im- military sign, corniculunz. They were used as adju-
posed b3 the judge.-See STIPULATIONES PRAETORIAE. tants of their military c o n ~ n ~ a n d e rand s for secre-
Conventiones legitimae, publicae, privatae. See CON- tarial work. Under the Empire higher civil officials
VEKTIO. also had their cornicu1arii.-C. 12.57.
Conventum. Occurs only in combination with pactujtz. Fiebiger, R E 4; Pottier, D S 1 ; Breccia, DE 2.
-See I ~ A C T U M CONVI-NTUM. Corona. See VENDITIO SUB CORONA.
Conventus. A gathering of the people in the provinces Corporalis. Corporeal, connected with a CORPUS.-
for judicial purposes (hence the name conventus jzr~i- See RES CORPORALES.
dicus) on ciay' fixetl by the governor, who, (luring Corporaliter. (Adv., syn. coypore). See POSSESSIO.
his travels through the province, made a halt in larger Corporati. Members of a compulsory association
cities in ortler to administer justice. T h e institution (guild) of professional artisans.-See COLLEGIATI.
was created at the heginning of the Principate. Leonhard, R E 4, 1645.
Kornemann, RE 4, 1173; Schulten, DE 2, 1189; Humbert, Corpore possidere. See rossEsslo, rosssssro KATU-
DS 1 ; 12ccardi-Pasqualino, NDI 4. RALIS.
Conventus civium Ronianorum. A permanent organ- Corpus. A human body (alive or dead). Corpus
ization of Roman citizens in the provinces, under the liberuln = a free person.-See ~ I T I U M CORPORIS.
chairmanship of a curator (civiuwz Rowtanorullt). Corpus. A corporeal thing; it is syn. with rcs corpo-
Kornemann, RE 4, 1179; Schulten, TIE 2, 1196. ralis and opposed to non-corporeal things, to rights
Conventus collegii. A meeting of the members of an = pieces of nloney,
(ills, iura). Corpora nz<11tiitorz4~tz
association. coins, distinguished from a ~11111of money (slc~~l?!zn).
Conventus iuridicus. See CONVENTUS. Corpzis is also used to denote a whole, e~nhracinga
J. Coroi, Lc c. i. cn pgyptc aux trois premiers sic'clcs dc number of things, as, for instance, corpzts pntrirlionii
I'Eiltpirr roin., 1935. = the whole estate, corptts grc,qis = the whole herd,
VOL. 4 3 , PT. 2, 19.531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 417
corpus scrvorufPz = all the slaves belonging to one high governmental dignitaries, in particular of pro-
master. With regard to a union of persons, a cor- vincial governors.
porate body, corpus is syn. with COLLEGIUM.-D. V. Premerstein, R E 4; Cagnat, D S 1; Orestano, N D I 4;
47.22. Mancini, D E 2.
Schnorr v. Carolsfeld, Zur Gesch, der juristischen Person, Correi (conrei). Two or more debtors owing the same
1 (1933) 147; De Robertis, I1 diritto associative rom. debt.-See DUO REI.
1938; De Visscher, Scr Fevrini 4 (Univ. Sacro Cuore, Leonhard, R E 4 (conreus) ; Willems, llfkl Cornil 2 (1926).
Milan, 1949) 43; K. Olivecrona, Three essays R . law, corrumpere.
T~ bribe (a judge, an arbitrator, a mag-
1949, 18.
istrate) ; to forge a document ( a testament = corruut-
Corpus. (With reference to the literary of a
pere tabulas testalnenfi, accounts = rationes, a prom-
jurist.) Refers to the whole of his writings (e.g., issory bill = corru,lpere chirographum),
corpus Ulpiani). Syn. universa scripta. Corrumpere album. See ALBUM, A C T I ~DE ALBO COR-
F. Schulz, Epitome Ulpiani, 1926, 20; idem, History of R.
legal science, 1946, 181 ; Albertario, Studi 5 (1937) 497. RUPTO.
Corrumpere servum. See A C T I ~SERVI CORRUPTI.
Corpus ex cohaerentibus. (Corpus quod ex pluribus
Corruptio (corruptor) servi. See ACTIO SERVI COR-
inter se cohaerentibus constat.) A thing composed
RUPTI.
of several, physically united things of the same or Kleinfeller, R E 4.
different material, which serves a given economic or
Coruncanius, Tiberius. Consul in 280 B.C. and the
use (e.g., a a Through the first plebeian to be chief pontifi. H e is also men-
junction the component parts lose their legal indi-
tioned as the first jurist who explained the law in
viduality and share the legal situation of the whole.
public by discussing private cases and giving opinions
They becotne property of the owner of the whole.
in legal questions (RESPONSA).
The term universitas rerum, when used for such Jors, R E 4 (no. 3).
kind of things, is probably of postclassical origin'
Cratinus. A law professor in Constantinople and men,-
Ant. res singularis on the one hand, corpus ex dis-
ber of the commission which compiled the Digest.
tantibus on the other.-See ACCESSI~, FERRUMINATIO,
Creatio. The election of a magistrate in a popular
and the following item. assembly or the appointment of a magistrate or a
Corpus ex distantibus. A n agglomeration of things, see MAGISTRATUS. the later Empire,
physically not united but considered one thing, a unit creatio is appointment to any service.-C.
from the economic and social point of view. T h e 10.68; 70.
typical example is a herd (grex). Legally such a Brassloff, R E 4.
corpits is treated as a and 'lay bey as Credere. T o trust, to have confidence in a person as
the object of legal transactions (sale, lease) or claill1s an honest debtor (fidclli segui). H~~~~pecrln;ola
(vindicatio gregis). But the individual things be- = to lend (a thing). peclfnio
longing to such a corpus may be the object (re,) credits is the sum of llloney (the thing) given
of transactions and claims, without, however, chang- in loan. rn a larger sense, crcdcrc is syn. Lvith
ing the character of the Ant. ~ ~ u t u dare
u ~ n (i.e., to lend money) and rrcditrii~rwith
corpus ex cohaerentibus.
mutuutiz. I n a narrower sense, crcditlrlrt is a loan
Bianco, N D I 4, 371 (s.v. cose semplici).
Cretio. (From cernere.) The earliest form of ac- was it not punished but it might even lead to the
ceptance of an inheritance (see ADITIO HEREDITATIS) acquisition of ownership over the things lawlessly
by the heir appointed in a testament. The prescribed appropriated through USUCAPIO PRO HEREDE.-D.
formula of the oral declaration of acceptance was 47.19 ; C. 9.32.
"Whereas A a ~ ~ o i n t eme d as his heres in his testa- Leonhard, RE 4; Baudry, D S 2 (s.v. expilatio) ; Solazzi,
ment, I deliberately accept (adeo cernoque) (Gaius RendLomb 69 (1936) 978.
2.166). The testator might impose this solemn form Crimen fraudati vectigalis. The crime of tax evasion.
as obligatory and disinherit the heir in the case of -See FRAUDARE VECTIGAL, VECTIGAL.
omission. Normally cretio had to be declared within Crimen legis Fabiae. See LEX FABIA,P LAGIUM.
one hundred davs from the time when the heir had Crimen maiestatis. (Sc. imminutae, laesae, violatae.)
notice of his appointment (cretio vulgaris) if the tes- A crime "committed against the Roman people and its
tator did not dispose otherwise. Cretio was formally security" according to the LEX IULIA MAIESTATIS (D.
abolished in A.D.407. 48.4.1.1). A crimen maiestatis could be committed not
Leonhard, RE 4 ; Uvy-Bruhl, N R H D 38 (1914) 153; only by Roman citizens and not only on Roman ter-
Buckland, T R 3 (1922) 239; Solazzi, StPav 5 (1919) ; ritory. Several kinds of wrongs were termed crimen
Besnier, R H D 10 (1931) 324; G. Dulckeit, E r b l a ~ s e r ~ l l e maiestatis : high treason, sedition, criminal attack
und Erzuerbmille, 1934, 115; Archi, SDHI 2 (1936) 44;
Arangio-Ruiz, FIR 3 (1946) nos. 59, 60; B. Biondi, against a magistrate, desertion, and the like. Under
Istituti fondamentali del dir. ered. 2 (1948) 49; idem, the Principate the term was extended to any offense
St Solazzi, 1948, 67; F. La Rosa, AnCat 4 (1950) 372. where the safety of the emperor or his family is
Crimen. May denote the accusation of a crime and involved. In the later ~ e r i o d .the term maiestas
the following " trial as well as the crime itself, if it
covered the sphere of PERDUELLIO, hence a distinc-
is punishable by a public penalty after condemnation tion between these two crimes can hardly be made.
of the culprit in a trial conducted under a formal The profession of Christianity was treated as crimen
accusation in the forms prescribed for criminal mat- unaiestatis.-D. 48.4; C. 9.8.-See LEX CORNELIA DE
ters. Ant. is delictum which, in classical terminology, MAIESTATE, LEX VARIA, LEX APULEIA, OBSES.
applied to private offenses to be prosecuted by the Kiibler, RE 14; Humbert and LCcrivain, DS 3 ; Charles-
worth, OCD (all s.v. maiestas) ; Berger, ibid. 663 ; Anon.,
aggrieved person himself and punished by a penalty NDI 7 (s.v. lesa maest8) ; E. Pollack, Der Majestiitsge-
to be paid to the latter. In postclassical language the danke im ronr. Rccht, 1908 ; Ciaceri, St storici per l'antichitd
two terms are used interchangeably since public prose- classica 2-3 (1909-1910) ; Robinson, Georgetom LJ 8
cution absorbed the wrongdoings previously classified (1919) 14; F. Vittinghoff, Der Staatsfeind in der rom.
Kaiserseit, 1926; P . M. Schisas, Offences against the state,
-
as delicta. The Roman criminal legislation did not London, 1926; A. Mellor, Les conceptions de crime poli-
produce a comprehensive penal code. Under the tique sous la Rep. rowz., 1934; C. A. Brecht, Perduellio,
Republic, a series of statutes dealt with crimes and 1938 ; idem, Z S S 64 (1944) 354 ; Cramer, Sem 9 (1951) 9.
their punishment ; a further development was brought Crimen repetundarum. See REPETUNDAE.
by some decrees of the senate and in a large measure Crimen suspecti tutoris. See TUTOR SUSPECTUS.
by imperial constitutions. Through an extensive in- Crimina extraordinaria. See CRIMINA. PUBLICA.
terpretatidn the jurists contributed to the application Crimina levia (leviora). Minor wrongdoings which
of older statutes to crimes not conlprised by the are tried and punished by a magistrate in a simplified
original statute. This happened, for instance, with procedure (de plano) .-See COERCITIO, DE PLANO.
the Lex Cornelia de falsis and the Lex Cornelia de Crimina publica. Crimes against the public and so-
sicariis et veneficis and many others. But, generally cial order which were defined by special statutes
speaking, only a few juristic writings dealt with (leges iudiciorum publicorum) and tried in iudicia
merely criminal matters.-D. 47.11 ; C. 3.15.-See publica. The pertinent statutes (listed under LEX)
DELICTUM, MALEFICIUM, ADMISSUM, POENA,and the settled also the penalties. The prosecution of crimina
following items. For the individual criminal offenses, publica started with ACCUSATIO. The procedure was
see the pertinent entries. regulated either by the specific statute or by a general
Hitzig, RE 4 ; Humbert, D S 1 ; Brasiello, NDI 4 ; Berger,
one, as the LEX IULIA IUDICIORUM PUBLICORUM. Ant.
OCD 489; Albertario, Delictum e crimen, 1924 (1 Studi
cri~ninaexfraordinaria (quae extra ordinem coercen-
3 [I9361 143) ; Lauria, SDHI 4 (1938) 188.
tur) are opposed to the irimina publica which legibus
Crimen annonae. Unfair machinations, connected coercentzcr. Their repression was introduced by im-
with the food supply and perpetrated in order to in- perial legislation, in a large measure in instructions
crease prices.-See ANNONA, LEX IULIA DE A N N O N A . given to the provincial governors. New kinds of
Crimen calumniae. See CALUMNIA. Erimes, unknown in the past, were thus submitted to
Crimen capitale. See CAPITALIS. criminal prosecution, and some wrongs previously
Crimen expilatae hereditatis. Plundering an inheri- defined as private offenses (as some kinds of theft,
tance befbre the instittted or legitimate
" heir entered ABIGEATUS, STELLIONATUS) were treated as public
it. I t did not become a criminal offense until an crimes and prosecuted through public accusation.-
enactment of Marcus Aurelius. Until then not only D. 47.11.-See IUDICIA PUBLICA, QUAESTIO.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIO NARY OF ROMAN LAW 419
Criminalis. Connected with a criminal matter (crimi- custodia, diligentia, neglegentia. In spite of a copious
nalis accusatio, causa) . Ant. civilis. literature on the problem, the opinions of scholars are
Criminaliter. See CIVILITER. still divergent in fundamental points.--Culpa in crimi-
Crux. A cross. It was used as an instrument for the nal offenses or wrongdoings harmful to others is not
execution of persons condemned to death (in [ad] so problematical. In some instances it means simply
crucem damnare). Crucifixion was considered the a fault of the guilty wrongdoer for which he is held
most cruel form of the death penalty. Therefore it was responsible. As to private wrongs (crimina privata,
applied to slaves ; hence the term servile supplicium. delicta), culpa as negligence ("when a man failed to
Under the Empire crucifixion was also used for Ro- foresee what a careful [diligens] man would have
man citizens, but only in the case of individuals of foreseen," D. 9.2.31) it is scarcely conceivable in
the lower class (humiliores) convicted of particu- many cases (theft, robbery). I n damage to property
larly heavy crimes. It was abolished by Constantine. (damnum) a negligent behavior (carelessness) was
A wooden pillar to which slaves were bound to be taken into consideration and the jurists frequently
flogged, was also called crux. dealt with cases of this kind. With regard to damage
~ubicularius. A groom in the imperial chamber to property (see LEX AQUILIA)Justinian extended
(cubiculum) .-C. 12.5. the liability of the wrongdoer to the "slightest negli-
Rostowzew, RE 4; Saglio, D S 1; Besta, NDI 4; J. E. gence" (culpa levissinza, D. 9.2.44 pr.). Crinzina pzcb-
Dunlap, Univ. Michigan Studies, Human. Ser. 14 (1924) lica were punished only when the offender acted in-
182. tentionally (sciens dolo malo) ; negligence remained
Cubiculum. The bed-chamber of the emperor and the without penalty. Where, in a later development,
empresS.-See CUBICULARIUS, PRAEPOSITUS SACRI culpa was held to deserve a penalty, the latter was
CUBICULI. a minor one. Among such instances of punishable
Cesano, DE 2, 1280. negligence were acts committed under a sudden im-
Culleus. A leather sack used for the execution of the pulse (impetus) or in a state of intoxication (ebrietas,
death penalty by drowning the culprit (poena cullei). per vinum) .-Although in delictual matters culpa
The penalty was applied in the case of murder of a appears in a somewhat different light from that in
near relative (parricidium) .-See LEX POMPEIA. the contractual sphere, the conception that culpa is
Hitzig, R E 4; Humbert, D S 1; Radin, JRS 10 (1920) something intermediate between dolus (dolus malus
119; Diill, A C D R Roma 2 (1935).
= evil intention, fraud) and casus (accident) is com-
Culpa. (In contractual relations.) A negligence on the mon to both domains.-See DOLUS,c ~ s w sIMPERITIA,
,
part of a debtor who failed to foresee the conse- NEGLEGENTIA, CUSTODIA, DILIGENTIA, and the fol-
quences of his behavior with regard to the perform- lowing items.
ance of the duties assumed in a contract. "There is Leonhard, R E 4; Baudry, D S 1; De Medio, St Fadda 2
no culpa if everything was done that a very careful (1906); idem, B I D R 17, 18 (1905-1906) ; Kiibler, Das
man should have done" (D. 19.2.25.7). The respon- Utilitatsprinzip, Fg Gierke, 2 (1911) 256; Gradenwitz,
sibility of the debtor for his culpa is not settled in a Z S S 34 (1914) ; Binding, Z S S 39 (1919) ; K. Heldrich,
Verschulden beim Vertragsabschluss, 1924; Kiibler, Rechts-
uniform way for all kinds of contracts. There is no idee und Staatsgedanke (Fschr Binder, 1930), 63 ; Arangio-
general rule in this respect, althoughlsome under- Ruiz, Responsabilitd contraftuale, 2nd ed. 1933; Vazny,
lying ideas are not lacking, such as the liability for ACII 1 (1935) 345; Kiibler, Les degrks de faute, Etudes
culpa of a contracting party who has received profit Lambert 1 (1938) ; Pfluger, Z S S 65 (1947) 120; Brasiello,
SDHI 12 (1946) 148; Condanari-Michler, Scr Ferrini 3
from a transaction (utilitas contrahentis) or in con- (Univ. Sacro Cuore, Milan, 1948) 28; Marton, R I D A 3
tractual relations governed by good faith (bona fides). ( = M i l De Visscher 2, 1949) 182; Visky, ibid. 437; F. H .
Among those responsible for culpa were artisans and Lawson, Negligence in the civil law, 1950, 36.
experts who took on a piece of work and afterwards Culpa in concreto, ( A term unknown in Roman juris-
proved lacking in the necessary professional knowl- tic language.) Occurs when a person does not apply
edge (imperitia). O n the other hand, in actions in the same care (diligentia) in the interest of his
which condemnation would have rendered the de- creditor which he observes in his own matters (dili-
fendant infamous. his culba is not taken into con- gentia quam suis). Such degree of attention is re-
sideration. "In contracts we are liable sometimes quired of a partner in a societas, of a guardian in
only for dolus (fraud), sometimes also for culpa" the administration of the ward's affairs, and of a
(D. 13.6.5.2). The whole question of liability for husband in the administration of the dowry.
culpa in the Roman contractual law is among the L. Sertorio, La c. i. c., 1914.
most crucial points in the literature, primarily because Culpa in eligendo. Negligence involved in choosing
of the manifold changes introduced into classical texts an inappropriate person for a work which someone
by Justinian's compilers, guided by the tendency to assumed to do. Under certain circumstances the
increase the debtor's responsibility, and because of person who made the negligent choice was responsi-
the absence of precise classical definition of various ble for the damages caused by the unskilled workman
more or less technical terms in this domain, such as (particularly in locatio conductio operis faciendi) .
420 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Culpa in faciendo. A negligent doing which caused censors under the Republic. It is particularly con-
damage to another's property or body. Ant. culpa in nected with Augustus and his "care for law and
non faciendo = negligent omission. morals" (cura legum et nzorunz).
Culpa lata and culpa levis. These constitute a distinc- A. v. Premerstein, V o m Werden und Wesen des Prinzi-
tion according to the gravity of the negligence. There pats, A B a y A W 15 (1937) 149; Schmahling, Die Sittenauf-
sicht der Zensoren, 1938.
are no specific criteria, the estimation of the degree
Cura prodigi. See CURATOR PRODIGI, PRODIGUS.
is left to the judge. "Culpa lata is an immoderate
Curatio. Syn. with CURA,in both private and public
negligence, i.e., not understanding what all under-
law.
stand" (50.16.213.2). Culpa lata (also called culpa
Curator adiunctus tutori. See CURATOR IMPUBERIS.
latior or culfa magna) is considered equal to dolus
Curator bonorum. The administrator of the estate
(D. 50.16.226). Ant. culpa levis, a lower degree of
of an insolvent debtor. H e was appointed in certain
culpa, is called once, in connection with the lex
cases only when the creditors, who were granted
Aquilia, culpa levissima (D. 9.2.44 pr .) .
De Medio, Binding, 11. cc. under CULPA;Lenel, Z S S 38
possession thereof (MISSIOI N POSSESSIONEM), had
(1918) 263. no right to sell it (e.g., the heir being a pupillus,
Cum re. See BONORUM POSSESSIO C U M RE. absent in the interest of the state, or a prisoner of
war). A curator bonorztm was also appointed when it
Cunabula (iuris, legum). Basic principles, elements was uncertain whether there would be an heir or not.
of the law. His duty was to protect the estate from losses.--
Cura (curatio). Appears as a technical term both in D. 42.7.
public (administrative) and private law. I n the first G. Solazzi, Concorso dei creditori 2 (1938).
domain cura embraces the duties of public officials
connected with various branches of administration,
curatorcollegii. ,A, leading functionary in profes-
sional, religious and other kinds of associations. ~f
in the second field it comprises duties of private indi- there was am.magistercollegii ( a chairman), the curator
viduals to protect the interests of private individuals was his deputy. ~i~ functions depended upon the
who because of physical or mental defects, youth or character and aims of the association.
absence, cannot take care personally of their affairs. Kornemann, R E 4, 122.
The cura in ~ r i v a t elaw, known already in the Twelve Curator distrahendorum bonorum gratis. See DIS-
Tables, is similar to guardianship (TUTELA) . The TRACTIO B O N O R U M . - ~ e e CLARA PERSONA.
differences which had existed originally between the curator furiosi. A curator of an insane of
two institutions as far as the rights and duties of the whom it is said: "he cannot make any transaction
tutors and curators were concerned, were gradually because he does not understand what he is doing"
abolished; in postclassical and Justinian law the (D. 50.17.5). ~h~ curator took care of the
equalization is completed, in a large measure through and administered the property of his ward. H e could
the insertion of cura into texts which originally dealt be appointed by the father of the lunatic in a testa-
with tutela. Persons entrusted with cura are called ment; if there was no testamentary disposition, the
curatores, both in public and private law. In the nearest agnate was, according to the Twelve Tables,
following entries the curae of the private law are to assume the curs furiosi. w h e n the curs-
listed under curator, those (more important) of the torship was ended the curator could be sued in an
~ u b l i c law under curatore~.--Inst. 1.23; D. 26.7; actio negotiorurtz gestorum for bad management of
27.5 ; 7 ; 9 ; 10; C. 5.31-34; 3 w 9 ; 57 ; 60-69.-See the ward's patrimonial affairs.--D. 27.10; C. 5.70.-
EXCEPT10 CURATORIA. See FURIOSUS, IUDICIUM CURATIONIS.
Kornemann, R E 4 ; Leonhard, ibid. 4 ; ThCdenat, D S 1 ; De Francisci, B I D R 30 (1921) 154; Guarino, SDHI 10
Anon., N D I 4 ; Solazzi, NDI (s.v. tutela) 12; De Rug- (1944) 374.
giero, DE 2.
Curator impuberis (pupilli). Wards who had a
Curs annOnae. The care for 'Om Under the guardian (pupilli), in exceptional cases could have
Republic the aediles were responsible for the cura (besides the tutor) a curator, appointed by a magis-
annonae and all matters pertaining to it (regu1ation trate at the request of the guardian and at the latter's
of prices, prevention of mono~olies, of 'Om to responsibility (cuyator adiunctus, actor, adiutor).
the troops in Italy, and the like). Their adminis- a hi^ occurred when the tutor was old or perma-
tration was often a failure and created catastrophic nently illmwhich was not a ground for his removal-
situations. Augustus reorganized the whole matter or when the property of the Pupillus was large and
of provisioning Of Rome the creation a new located at distant places. In Justinianjs law the
office under the direction of the PRAEFECTUS A N N O - adiunctus becaIlle an autonomous institution;
NAE.-See ANNONA. he was appointed by an official and the tutor was not
Humbert, D S 1.
responsible for his assistant's activity.-D. 27.10.-
Cura minorum. See CURATOR MINORIS, MINORES. See IMPUBES,PUPILLUS.
Cura morum. The supervision of public morals. The Sachers, R E 7A, 1526; R. Taubenschlag, Vor~ilundschafts-
term corresponds to the REGIMEN M O R U M of the rechtliche Studien, 1913, 47; Solazzi, C. i., 1917.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 42 1
Curator minoris. A curator of a minor ( a person public roads (curatores viarum), aqueducts (curatores
under twenty-five) sui iuris. Originally appointed aquarum), public buildings (curatores operu~tzpubli-
f o r . specific matters in order to protect the inex- corum) and the conservacy of the bed and banks of
perienced minor against transactions in which his the Tiber (curatores alvei et riparu~nTiberis). Cura-
youth might have been exploited, the curator minoris tores were active also in municipalities.-See MAGIS-
became under Marcus Aurelius a legal institution, TRI, PROCURATORES and the following items.
since the remedy of the LEX PLAETORIA and the prae- Kornemann, R E 4; Sacchi, N D I 4; De Ruggiero, D E 2;
torian R E S T I T U T I ~ I N INTEGRUM proved insufficient. Thidenat, D S 1, 1621.
Appointed at the request of the minor the curator Curatores aedium sacrarum. Curatores of imperial
assisted him in concluding transactions by giving his buildings.-See SUBCURATOR.
consent (consensus). The remedy of the restitutio Kornemann, R E 4, 1787.
in integrum remained in force for minors acting Curatores alvei Tiberis. See CURATORES.
without a curator. I t was a general rule that a Thidenat, D S 1, 1623.
minor could not make his position worse when he Curatores annonae. See CURA ANNONAE.
acted without the approval of his curator. I n post- Curatores aquarum. Curatores of aqueducts and ad-
classical and Tustinian's law the curator nzinoris be- ministrators of the water supply.-See SUBCURATOR.
came a matter of rule and was assimilated to tutela Kornemann, R E 4, 1784; De Ruggiero, D E 1, 548; T .
Ashby, Aqueducts of ancient Rome, 1935, 17.
in many respects.-See CURA MINORES (Bibl.), LEX
PLAETORIA, IUDICIUM CURATIONIS, TUTOR SUSPECTUS. Curatores civitatis. See CURATORES REI PUBLICAE.
Berger, R E 15, 1870; Albertario, Z S S 33 (1912) 245 Curatores civium Romanorum. See CONVENTUS CI-
(= S f u d i 1 (1935) 407; G. Solazzi, L a minore etd, 1913; V I U M ROMANORUM.
idem, R I S G 54 (1914) ; Y. Arangio-Riuz, I1 mandato, Curatores frumenti. See PRAEFECTI FRUMENTI DANDI.
1949, 23; A. Burdese, Autorizaazione ad alienare, 1950, 14. Curatores kalendarii. See KALENDARIUM.
Curator muti, surdi. A curator of a dumb or deaf Kornemann, R E 4, 1805.
person. H i s attributions were analogous to those of Curatores ludorum. Curatores for extraordinary
other curators. Similarly a who suffered games ( l u d i ) given by the emperor to the people.
from a chronic disease which did not permit him to Kornemann, R E 4, 1798.
manage his affairs, might have a curator. Curatores operum publicorum. Officials for the man-
Curator prodigi. A curator of a spendthrift.. H e is agement of public buildings (administration, lease,
known as early as in the Twelve Tables; he was construction, contracts with contractors, etc.). Their
appointed on behalf of the nearest relatives of the competence .was sometimes extended to other public
spendthrift in order to save his property for his pre- institutions which found ex~ressionin their official
sumptive heirs. The rights and duties of a curator title, appropriately enlarged.-See SUBCURATOR,
prodigi are similar to those of a curator furiosi (ex- OPERA PUBLICA.
cept the care for the person of the prodigus). The Kornemann, R E 4, 1787, 1802; Thedenat, D S 1, 1622.
appointment of a curator prodigi was preceded by a Curatores praesidii. Administrative officers in mili-
decree of the praetor, interdictio bonorznlt, which tary garrisons.
excluded the spendthrift from the administration of Youtie, TAirzPhilolAs 81 (1950) 110.
his property. See INTERDICERE BONIS. For trans- Curatores regionum. See CURATORES URBIS ROMAE.
a c t i o n s - ~ )which
~ the prodigus assumed duties or Curatores rei publicae (civitatis). Officials in Italian
alienated something from his property, he needed the cities appointed by the emperor for the supervision
consent of his ruvator. He was not permitted to and administration of municipal finances. They had
make a testament.-See PRODIGUS.-D. 27.10; C. iurisdiction in matters connectetl with the financial
5.70. atln~inistration and intervened in transactions con-
De Francisci, B I D R 30 (1921) 154; Solazzi, S t Bonfonfc cerning nlunicipal property. I n the later Ei~lpire
1 (1930) 47. their competence appears son~ewllatdin~inishetlas a
Curator pupilli. See CURATOR IMPUBERIS.
result of a general centralizing tendency in the atl-
Curator surdi. See CURATOR MUTI.
ministration of the state.
Curator ventri datus. A ctcrator appointed for the
Kornemant~, R E 4, 1806; Lacour-Gayet, D S 1, 1619;
defense of the interests of a child not yet born.-See Mancini, D E 2; Liebenam, Philolog~rs 56 (1897) 290;
Lucas, J R S 1940, 56; Cassarino, AnCnt 2 (1948) ; A.
VENTER,NASCITURUS, CONCEPTUS.-D.. 37.9. LPcrivain, LC c. r. P. 1920; D. Magie, Rorn. rlrlc in Asio
Anon., N D I 4; Solazzi, R I S G 54 (1914) 277. Aiiiror 2 (1950) 1454.
Curatores. ( I n pul)lic law.) Con~missionerse ntrusted Curatores urbis Romae. Officials who took care of the
with certain 1)rrunches of the administration. Augus- tlistricts (rcgioncs) of the city of 1iome.-See ~ e c i -
tus appointetl several c~iraforcsant1 chargetl them O N E S U R R l S ROMAE.
with the atlministration or supervision (curn, c~rrntio) Curatores viarum. Officials charged wit11 the tnai11-
of public institutions and works which under the tenance and supervision of public roads (cura vi-
Republic attributed to quacstors and aediles, such a s arullt). Primarily the adjacent co~n~nunitirs had to
contribute funtls ant1 labor for co~istructingant1 re- cirrs~islionorlrm. Syn. ordo rncrgistru!u~rrn. In the
pairing the roads. Rut the state treasury and the Empire there was not a lixed c~trsitshonorurn, either
imperial fisc matle also consitleral)le contrib~ttions. in the senatorial or equestrian career, siiicc tllc em-
There were also special c.urntores for larger roads, peror hat1 full lil~erty to confer ollicial titles on
as curntores vir~rAppitre, Fltrrniniau, etc. persons who never before had beell in service (see
Kornelnanl~,R E 4, 1781 ; Chapot, DS 5 , 788. ADLECTIO) .-See T.EX CORNELIA 1112 MA(;ISTRATIBUS,
Curiae. The earliest units, prol)al~ly1):~setloil a terri- LEX VILLTA.
torial pri~iciple, into which the Rom:un people was Kubler, R E 14, 405.
tlivitletl. There were originally thirty ciiric~e,ten in Cursus publicus. The oficial postal service organized
each TRI~ZUS. It seems that in the original stage only in the early Principate for the transportation of of-
patricians l)elotnged to the curial organization; later ficial personages or of things in the interest of, or
the l)lel)eians \yere atln~itted. The political character belonging to, the State or the emperor, or connected
of tile c.irric~cmanifestetl itself in ~ I I ~ C O M I T ICURIATA
A somehow with the administration. It served also for
in which each clcrici had one vote. Their purpose the official correspondence with the rest of Italy and
was also military, since each of them had to con- the provinces. Reorganized by Hadrian, who charged
tribute one hundred men for the infantry and ten the fisc with its supervision, the postal service was
for the cavalry. A land plot was assigned to the again reformed by Diocletian and his successors and
cttria for conliuoin use. The leader of a curia was became a compulsory service ( ~ n l r n u s )s ho~ilderedby
the curio, the head oi all cliriac was the curio nza.t-i- landowners and wealthy people who had to contribute
mris, originally perhaps identical with the king. A in various ways to a proper functioning of the insti-
pn~lzcnczrrialis took care of the common worship and tution.-C. 12.50.-See CURSUS VELOX, AGENTES I N
religious matters of the members of the curiae. For REBUS, ANGARIA, DIPLOMA, EVECTIO, M A N S I O , I'ARAN-
curine in the later Empire, see ORDO DECURIONUM. GARIA, VEREDI, PRAEFECTUS VEIlICUI.ORUM.
Kubler, R E 4 ; Momigliano, O C D ; Lacour-Gayet, D S 1 ; Seeck, R E 4 ; Humbert, D S 1 ; Bellino, D E 2 ; A. E. R.
Gervasio, D E 2 ; Besta, N D I 4. Boak, Univ. of Michigan Studies, Human. Series 14 (1924)
Curiae municipiorum. The citizens of the municipali- 74; E. J. Holmberg, Zur Gesch. drs c. P., Uppsala, 1933;
H . G. Pflaum, Essai sur le c. p. duns le Haut-Empire,
ties (~lzzrnicipcs) were organized in groups called Mitt%. Acad. Insc. et Bellcs-Lettres, 14, 1 (1940) 189;
cltriac or tribzts. Czrria is also the council of admin- Labrousse, M i l d'archiologie rt d'hist. de I'Ecole franc.
istration, the senate, of a nzzrnicipili~tz (syn. ordo de Rome, 1940, 150.
deczirionznn), and the building in which the council Cursus velox. Fast post-service (see CURSUS PUBLI-
held its sessions.-See ORDO DECURIONUM. cus) to be distinguished from cursus clabularis
Gaudemet, Izrra 2 (1951) 44. (from clabtlla = a heavy carriage) for the transpor-
Curiales. hIembers of a municipal council (curia, ordo tation of food and luggage for soldiers.
dccltrionum) in the later Empire. Syn. decuriones. Curulis. Refers to magistrates who had the right to
-C. 3.25 ; 10.22. seat on a SELLA CURULIS during their official activity.
~ a u d e m e t I,zrra 2 (1951) 44. -See MAGISTRATUS, AEDILES CURULES.
Curiana causa. A famous trial (clarissit9za causa) be- Custodela. An ancient Latin term, syn. with custodia.
fore the centumviral court dealing with a case of a It appears in the form prescribed for the festawzentum
substitutio ptipillaris for a son whose birth was ex- per aes et libram. The FAMILIAE EMPTOR assumed
pected but did not materialize. The case in which the custody of the hereditary things. The custodela
the jurist Q. Mucius Scaevola appeared for the heirs is a counterpart to a likewise ancient term mandatela,
on intestacy, is mentioned in several writings of used in the same formula and indicating the wish
Cicero.-See CENTUMVIRI. (order) of the testator concerning the distribution
Perrin, R H D 27 (1949) 354; J. Stroux, Rom. Rechts- of the inheritance.
wissenschaft und Rheforik (Potsdam, 1949) 42. Weiss, ZSS 42 (1921) 104.
Curio. See CURIA. Custodes corporis. Bodyguards of the emperor and
De Ruggiero, D E 2. of high military commanders in peace as well as in
Curiosi. See AGENTES I N REBUS.-C. 12.22. war.-See EQUITES SINGULARES.
Humbert, DS 1, 1667; Hirschfeld, SbBerl 39, 1 (1891) Paribeni, D E 2, 1237; idem, Mitteilungen deutsch. kais.
Cursor. A courier, messenger in imperial postal service. Archaol. Instituts, Rom. Abt. 20 (1905) 321.
Cicolini, D E 2. Custodia. Custody, safe keeping, watching. The term
Cursus honorurn. The order in which the Republican appears in connection with the responsibility of the
magistracies had to be held by a Roman citizen to debtor in some specific contracts. It belongs to those
make him a capable candidate for a higher magis- not precisely defined and oscillating expressions con-
tracy. The lowest degree in the magisterial career cerning contractual responsibility (see CULPA) , which
was the quaestorship which was followed by the through manipulations of the compilers of the Digest
aedilship and praetorship. The consulship was the became nebulous. Moreover, the custodia itself is
top magistracy. Censorship did not belong to the sometimes accompanied by adjectives, such as dili-
VOL. 43, PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 423
gens, plena, which seem to presuppose a gradation the culprits were held in prison for the execution of
thereof. Expressions like exactissima diligentia cus- the sentence.-D. 48.3; C. 9.4.-See CARCER.
todiendae rei exclude a precise separation of the terms Berger, O C D (s.v. prison).
combined. Responsibility for custodia arose when it Custodire partum. See INSPICERE VENTREM.
was expressly agreed upon or from contracts con- Custos. A jailer. See CUSTODIA REORUM.Prisoners
cluded primarily in the interest of the party who held who escaped from jail profiting by the negligence of
another's thing to be returned later to the owner, as the custodes received a milder punishment than those
in the case of a gratuitous loan (commodatum) or who broke out by their own efforts (effractores) or
when persons were involved whose business it was to in conspiracy with other prisoners.
assume the custody of other people's things, as store- Custos. ( I n a traditio.) The buyer of a larger amount
house keepers, shipmasters, innkeepers, etc. (see RE- of merchandise could appoint a custos (= a guard,
CEPTUM NAUTARUM) or in certain cases of LOCATIO an attendant) before taking it away. The delivery
CONDUCTIO OPERIS FACIENDI (see FULLO). Since on of the things (traditio) was considered fulfilled by
the one hand custodia is linked with culpa, negle- such appointment, and the seller was free from any
gentia, or diligentia, on the other hand it is opposed risk.
to VIS MAIOR (see c ~ s u s ) it, has been assumed that Riccobono, Z S S 34 (1913) 200.
custodia entailed a higher degree of responsibility Custos iuris civilis. Title given the praetor by Cicero.
than for culpa only; in particular, it involved the Custos urbis. Refers to the PRAEFECTUS URBI.
duty of a more careful custody, and consequently, Keune, RE 4, 1903; Humbert, D S 1.
liability for a simple, lesser accident (not for vis Cust0.5 ventris. See SENATUSCONSULTUM PLANCI-
maior), such as theft which through a more attentive ANUM.
guarding by the debtor could be prevented. Another Cyrillos. See KYRILLOS.
theory does not consider custodia a specific degree
of responsibility between culpa and vis maior, but a
diligent care for things belonging to another. One
who expressly promised custodia (custodiam prae- D. Abbreviation for dantno ( = I condemn), see A.
stare, see PACTUM CUSTODIAE) or concluded a trans- Damnare. T o condemn a defendant in a civil trial
action which involved custodia, was obliged to apply (see CONDEMNATIO) or an accused in a criminal pro-
particular diligence and to perform the pertinent ceeding. In the latter meaning the term is mostly
duties with every possible means being also responsi- used of a condemnatory judgment for crimes punished
ble for persons employed therefor. In cases of by death (in trimine capitali). With reference to
custodia even a slight omission created the liability of testamentary dispositions damnare = to impose upon
an heir or legatee the duty to perform a service or a
the debtor. Custodia is not to be separated from
payment to the benefit of a third person.
diligentia, for there is no custodia without diligentia. Betti, R I S G 56 (1915) 31; A. Hagerstrom, Der Obliga-
-Custodia is also used in the normal meaning of the tionsbegriff 1 (1927) 443; M. Kaser, Das Altrom. Ius,
word, outside the domain of contracts, as, e.g., with 1949, 127.
regard to the custody of things belonging to an-inheri- Damnare a d bestias. See BESTIIS OBICERE.
tance by the familiae emptor (see TESTAMENTUM PER Damnare in metallum (metalla). See METALLUM.
AES ET LIBRAM, FAMILIAE EMPTOR), or that of the Damnas. Occurred in the form of a legacy called
missus in possessionem (see MISSIONES I N POSSESSI- legatzbvlz per damnationenz: heres meus damnas esto
ONEM). Custodia is identified there with observatio dare ( = my heir shall be obliged to give).-See
rerum ( = watching, guarding things) .-See CULPA, LEGATUM PER D A M N A T I O N E M .
SARCINATOR. Thomas, R H D 10 (1931) 211.
Rabel, N D I 4 ; Humbert, D S 1 ; Lusignani, Responsabilitd Damnatio. See DAMNARE, CONDEMNATIO.
per c., 1-3 (1902, 1903, 1905) ; Schulz, Ztschr. fiir verglei- Damnatio in ludum. See LUDI GLADIATORII,
GLADIA-
chende Rechtmiss. 25 (1911) 459, 27 (1912) 145; idem,
K r V j 50 (1912) 22; Seckel, in Heumann's HandlexikonB TORES.
(1914) 117; Haymann, Z S S 40 (1919) 167, 48 (1928) Damnatio memoriae. A disgrace inflicted on the
318; Kunkel, Z S S 45 (1925) 268; Vazny, AnPal 12 memory of a person (memoria damnata) condemned
(1926) 101 ; J. Paris, La responsabilitP de la c., 1926; to death and executed, or dead before the criminal
Carrelli, R B S G 6 (1931) 604; V. Arangio-Ruiz, Respon- prosecution was finished. Only crimes against the
sabilitci contrattuale2, 1933, 62; G. I. Luzzatto, Caso for-
tuito e forza maggiore I . Responsabilitd +er c. 1938; state, such as treason (maiestas, perduellio) brought
Kriickmann, Z S S 63 (1943) 48, 64 (1944) 1 ; Pfliiger, about this ignominia post ~nortewb,the extinction of
Z S S 65 (1947) 121; De Robertis, AnBari 10 (1949) 58; the memory of the individual thus stigmatized. His
Rosenthal, Z S S 68 (1951) 222. name was canceled on documents and destroyed on
Custodia reorum. Detention of persons involved in monuments; his last will and donations mortis causa
a criminal matter in a jail, to have them at the dis- lost validity. The damnatio menzoriae was also ap-
posal of the inquiring officials. After condemnation plied to emperors, whose conduct was unworthy,
424 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
during their lifetime or posthumously. The pertinent Damnum praestare. T o make good the loss incurred
decree was issued by the senate. by a person whose property was damaged.-See
Brassloff, R E 4 ; Balsdon, O C D ; Orestano, B I D R 44 SARCIRE, RESARCIRE.
(1937) 327; Vittinghoff, Der Staatsfeind i n der row. Dardanarius. A merchant in corn and other kind of
Kaiserzeit. Untersuchungen zur damnatio memoriae, 1936.
food who through illicit machinations raised the prices
Damnatus. Condemned in a criminal trial for a crime or used forged weights.
calling for capital punishment.-D. 48.20; C. 4.49.- Rostowzew, R E 7, 142.
See BONA DAMNATORUM. Dare. T o give, hand over a thing for the purpose of
Damnosus. Threatening (involving) loss. In rela- making the receiver the owner thereof. This is the
tions between neighbors the term indicates a defective general meaning when a contractual obligation con-
building which may damage the neighboring prop- cerned a dare. The contents of the term might be
erty.-See D A M N U V INFECTUM. limited by the indication of a minor purpose, as, e.g.,
Daube, S t S o l a z i (1948) 117. pignori dare ( = to give as a pledge), utenduvz dare
Damnum. A loss, expenditure, suffered by the victim ( = to give for use), precario dare ( = to give as a
of an offense, particularly a loss ensuing for the PRECARIUM) .--See COXTRACTUS INNOMINATI.-Dare,
owner of a thing from a damage done thereto. "He in criminal trials, connected ~vith a sentence, in
who suffered damage through his own fault is not phrases as dare in ~~zetalla,
ad bcsfins, in rxsiliurll, etc.
considered to have sustained damage" (D. 50.17.203). = to condemn.-Dare in the meaning of "to appoint"
Responsibility for damages inflicted on another's refers to the appointment of a tutor or curator by a
property is either contractual (resulting from duties magistrate or a private person or of a representative
assumed in a contract) or delictual resulting from or agent for one's private affairs. Dare honorzcl~z
a tort, a wrongful act (delicturn) committed-by an possessionent refers to the praetorian act of granting
offender.-See COMMUNICARE, W E M O D A M W U M EXIT, a B O K O R U M POSSESSIO.-S~~the following items.
SARCIRE. Grosso, I n ~rzateriadi obbliga-ioni di dare, S D H I 6 (1940) ;
Leonhard, R E 4 ; Baudry, D S 1 ; E. Levy, Privatstrafe und F. Pastori, Profilo dogmatico dell'obbligasione ronz., 1951,
Schadcnsersats, 1915; Thomas, R H D 10 (1931) 211; 118.
Ratti, U I D R 40 (1932) 169; P. Voci, Risarcimeltto del Dare actionem. T o grant an action. The praetor
daittro e processo formulare, 1938, 19; idem, S t Ferrini 2
(Univ. Sacro Cuore, hlilan, 1947) 361; Daube, Ott the "gives an action" in cases where the ius civile re-
use of the term d., S t Solazzi, 1948, 93. fused it. In a larger sense dare actionel~z (or iudi-
D a m n u m decidere. T o come to terms concerning the cit~wz)is the praetor's approval of the formula agreed
damages to be paid by the offender to the person upon by the parties. Ant. DENECARE ACTIONEM
who sustained a loss. ( = non dare actionem). Syn. REDDERE ACTIONEM.-
Daube, S t S o l a ~ ~1948,
i, 99. D. 44.5.
P. Kruger, Z S S 16 (1895) 1.
Damnus emergens. A real factual loss which one suf-
fers in his a loss which can be evaluated in Dare iudicem. T o appoint a judge in a civil trial.-
money (pecuniary loss). Ant. lucrum cessans = a loss See IUDEX.
of a reasonable profit. Both terms do not belong to Datio. An act of giving (dare). I t applies to all
the Roman juristic language, but the distinction be- meanings of DARE (datio tutoris, bonoruttz possessio-
tween two kinds of losses is classical. nis, iudicis, pignoris, etc.) .
P. Voci, Risarcimenio del dattno, 1938, 63. Datio dotis. Constitution of a dowry by immediately
B a m n u m fatale. A damage done by an unavoidable handing it over. Datio dotis is also the term em-
accident (VIS MAIOR) ployed for the delivery of things promised as a dowry
1)y dictio, provzissio or pollicitatio dotis.
D a m n u m infectum (or nondum factum). A damage
not yet done but threatening one's property by the Datio in solutum. The payment of a thing other than
defective state of a neighbor's property. Originally that which originally was due to the creditor who
the owner of the threatened property had against his accepts it as a discharge of the former obligation.
The creditor was not obliged to do so. Only in
neighbor an actio damni infecti (which even after
Justinian's law a debtor who had no cash at his
the-introduction of the formulary procedure was con-
disposal could offer payment in immovables at a
ducted in the form of legis actio); Later praetorian
fair price.
law introduced specific remedies, see CAUTIO D A M N I H. Steiner, D. i. s., 1914; De Francisci, L'evizione della
INFECTI. MISS10 I N POSSESSIONEM D A M N 1 INFECTI yes data i. s., 1915; Solazzi, RendLotnb 61 (1928) 341;
NO MINE.-^^^ VITIUM AEDIUM, DENUNTIATIO DO- M. Ricca-Barberis, L'cviziotze nella d. i. s., R I S G 6 (1931)
MUM. 3 ; S. Solazzi, L'cstitzzione dell'obbligasione, 2nd ed. 1935,
Baudry, D S 1 ; Cuq, D S 5, 933 ; Branca, S t Ratti, 1934, 161.
161 ; idem, Daltlto temuto, 1937; M . F . Lepri, Missiotzes Datio tutoris. See T ~ T O RDATIVUS.
in possessiotzem, 1939, 90. D e actionibus. A dissertation written in Greek (peri
Damnum iniuria datum. See LEX AQUILIA. agogon), of pre-Justinian origin and dealing gen-
VOL. 43, [IT. 2 , 1 9 5 3 1 ENCYC1,OI'EDlC DICTIONAIIY O F ROMAN LAW 425
erally with various more imlmrtant actions. It is Debitum. Both the o1)ject of the oldigation (id quod
rather the work of a 1)ractitioner than of a scholar. debetur = what is due) and the obligatory tie be-
Editions : G. E. Hcimbach ( J r . ) , OOscrvationes iuris tween debtor and creditor. Ant. indebituliz.
Grczcco-liontuni 1 (1830) ; Zachariae, Z S S 14 (1893) 88; Humbert, 1 ) s 2.
J . and P. Zepos, Jzis Gracco-Rovzaituin 3 (Athens, 1931) Decanus. A low ranking officer in a legion, com-
301.-Ferrini, Opcre 1 (1929) 365; G. SegrP, M i l Girard
2 (1913) 543; Brugi, Attltuario dcll'lstituto di storia del mander of a unit of ten soldiers (contubcmiu~n). A
dir. rojrt. Catclnia 13-14 (1914-15) ; P. Collinct, L a frg- decancls at the imperial court was an official of a
cCdurc par libcllc, 1932, 501 ; Schcltema, TR 17 (1940) 420. lower rank in the service of the empress.-C. 12.26.
D e gradibus (cognationum). A dissertation on the Fiebiger, R E 4 ; Sceck, ibid. 2246 (no. 2 ) .
degrees of cognatic relationship, written 1)y an un- Decedere de possessione. T o give up, to allandon
known jurist, presumal)ly of the classical period. possession.-See MISSIONES I N POSSESSIONISM.
Editions: in all collections of Foiztes, see General Bibliog- Decemprimi. (Also decemprimi curialrs.) A group
raphy, Ch. XI1.-Berger, R E 10, 1192; Scherillo, StCagl of ten persons selected from the meml)ers of a larger
18 (1931) 65.
body (the senate under the Republic where the
D e peculiis. A Byzantine dissertation, called not quite decenzprimi were the heads of the senatorial de-
appropriately Tractntus de peculiis in the literature. curiae, municipal senates, sacerdotal colleges). They
Written about the iniddle of the eleventh century it enjoyed special privileges. In the military hierarchy
deals with various topics connected with the reciprocal of the later Empire decenzprimi occupied a privileged
acquisitions and rights of succession of father and position in the military unit attached to the imperial
son, of some kinds of peculia and the like. The un- paface (do~nestici).
known author who is quite familiar with Justinian's Brandis, R E 4 ; Humbert, D S 2.
legislation, the post-Justinian legal literature as well Decemvirales leges. See LEX DUODECIM TABULARUM,
as with the BASILICA, is particularly interested in the DECEMVIRI LEGIBUS SCRIBUNDIS.
son's acquisitions on which the father has only a Decemviri agris dandis assignandis. See TRIUMVIRI
usufruct. COLONIAE DEDUCENDAE.
Editions : G. E . Heimbach (Jr.) , Anecdota 2 (1840) 247 ; De Ruggiero, DE 2, 430.
J. and P. Zepos, Jus Graeco-romanum 3 (Athens, 1931)
345.-Berger, S c r Ferrini 3 (Univ. Sacro Cuore, Milan, Decemviri legibus scribundis. A commission com-
1948) 174. posed of ten persons appointed in 451 B.C. for the
D e plano. f n matters of minor importance the magis- codification of laws. They continued their work in
trate acted more informally, "from the level" "out of the following year. During the two years of their
court," without any preceding causae cognitio, either work, the activity of all magistracies was suspended
personally or through officials of his bureau acting and the decemviri assumed the governmental func-
under his supervision. The proceedings were public tions vested in the consular imperium.-See LEX DUO-
DECIM TABULARUM, VERGINIA.
and there was no platform (tribunal) for the acting
Kubler, R E 4, 2257; Berger, RE 4A, 1905 ; Momigliano,
officers. Ant. pro tribuna1i.-See C R I M I N A LEVIA. O C D ; Humbert, D S 2 ; Moschella, N D I 4.
Dull, Z S S 52 (1932) 170; Wenger, ibid. 59 (1932) 62;
62 (1942) 366. Decemviri sacris faciundis. See DUOVIRI SACRIS FACI-
Debere. T o owe, to be under an obligation to pay a UNDIS.
sum or to perform something, an obligation of con- Decemviri stlitibus iudicandis. Originally minor
tractual or delictual origin which was suable at ius judicial magistrates (see VIGINTISEXVIRI),they be-
civile or ius praetorium.-See DEBITUM, DEBITOR. came later chairmen of the judicial courts formed
of- ~
or municipality. H e could not obtain any honorary ficial whose successor in had already been
position (honor) until he paid his debt. Such debtors appointed, was required to rerrlain in service until
were subject to special executory n~easures.-C. the new incumbent arrived in the province. Ant.
Debitor debitoris. A debtor's debtor.-C. 4.15. Decidere. T o decide about a judicial matter by judg-
Debitor fisci. A debtor of the fisc. Imperial legisla- ment (see DECISIO) ; to settle a controversy by a
tion established special rules for the execution of transaction between the adversaries or by an oath.-
fiscal claims.-C. 10.2. See TRANSACTIO, IUSIURANDUM
VOLUNTARIUM.
Debitor reipublicae. See DEBITOR CIVITATIS. Decidere damnum. See D A M N U M DECIDERE.
Decima. One-tenth. One-tenth of the estate was the his own with force against the debtor lost his claim.
part which according to the Augustan LEX IULIA ET Decuma. The tenth part (pars decinza) of natural
PAPIA POPPAEA one spouse could take when the other produce paid in kind (corn, wine, oil) as a rent or
died intestate. An increase of this tenth part by property-tax in Italy and provinces.
further tenths was permitted in proportion to the Liebenam, RE 4; Humbert, DS 2 ; Kaser, Z S S 62 (1942)
number of children. The pertinent provisions (deci- 61; De Ruggiero, DE 2 : L. Clerici, Economia e finanze
rnariae sc. leges) were abolished in A.D.410.-C. 8.57. dei Romani, 1 (1943) 477.
Decisio. See DECIDERE, QUINQUAGINTA DECISIONES. Decuria. A group (unit) of ten men. In ancient
Declarare. T o declare (e.g., volunfatenz = one's will). times, the decuria had a military and political char-
With reference to judicial judgments = to establish a acter, since the CURIAE,into which the oldest TRIBUS
specific legal situation (ownership, a servitude). were divided (altogether 30 curiae), were composed
Decoctor. (From decoquere.) An embezzler or a of ten decuriae, each of them with ten men. Decuriae
bankrupt, whose property was sold through BONORUM were 'also the smallest units in the cavalry. The
VENDITIO.In a later trial he was obliged to give a Roman senate had also its decuriae (of ten men) and
cautio iudicatum solvi (a security for the payment of preserved this name afterwards when its decuriae were
the judgment debt). groups of one tenth of the whole nhmber of the
Decollatio. Decapitation. Syn. capitis amputatio. senators. Finally, professional corporations and those
Decreta. See DECERNERE, BONORUM POSSESSIO DECRE- of.subaltern officials as well, were divided in decuriae,
TALIS,and the following items. often with more than ten members. Imperial consti-
Decreta decurionum. Decrees issued by the municipal tutions of the fourth cehtury deal with various de-
senate (ordo decurionuwz) on various matters. They curiae of officials in the city of Rome (decuria urbis
could not be rescinded unless public utility required Rowae) , such as fiscal clerks (fiscales) , scribae
such a measure.--D. 50.9; C. 10.47.-See DECRETA (librarii = copyists), censuales ( = tax assessment
M AGISTRATUUM. clerks) .-C. 11.14.-See the following items.
Kiibler, RE 4; Humbert, DS 2 ; Bellino, DE 2 ; Moschella,
Decreta Frontiana (Frontiniana). A juristic work NDI 4.
(collection of decisions of the imperial court?), at-
Decuria lictoria. See LICTORES.
tributed to the jurist Titius Aristo.-See ARISTO.
T. Mommsen, Jur. Schriften 2 (1905) 22. Decuriae apparitorum. Associations of apparitores,
Decreta magistratuum. Orders of the magistrates of organized in decuriae. They were granted some
a judicial (interdicta, missiones in possessionem, or rights as corporate bodies (inheriting, holding and
concerning bonorum possessiones) or administrative manumitting slaves) .--See DECURIALES.
character (imposition of fines, multae, or ordaining Kornemann, RE 4, 401 ; P. W. Duff, Personality in R.
private lazpr, 1938. 32, 101; B. Eliachkvitch, PersonnalitC
a pignoris capio) to enforce compliance with their juridique 1942, 241 ; Jones, JRS 39 (1949) 40.
ordinances. In matters concerning guardianship or Decuriae iudicum. Groups of jurors (of 300 each?)
curatorship decreta are very frequent. Decreta are in the list of persons qualified for this service. Origi-
issued after cazcsae coanitio and bro tribunali. The nally there were three decuriae, of senators, equites
decrcfa of provincial governors had a similar char- and tribuni aerarii, respectively. The first to be
acter.-C. 5.72.-See I N I N T E C R U M RESTITUTIO. eliminated were the tribuni aerarii; then Augustus
Hesky, RE 4; De Ruggiero, DE 2 ; Jobbk-Duval, St
Ronfante 3 (1930) 165. removed the senators after which the equestrian class
Decreta principum. Imperial enactments (decrees) alone functioned as judges. The number of decuriae
issued by the emperor in the exercise of jurisdiction iudicum increased to five.
Kiibler, R E 6, 299.
in civil and criminal matters, both as final judgments
antl as interlocutory decisions during the proceed- Decuriae senatus. See DECURIA.
ings. They rank among the imperial constitutions Decuriales. Members of decuriae in private corpora-
antl hat1 some importance, although no binding force, tions or of associations of subaltern officers (decuriae
in similar future cases inasnnich as they could be apparitorum) .
consideretl and applied as precedents. w h e n pub- De Ruggiero, DE 2.
lished I)y order of the emperor they acquired general Decurio. The commander of a small cavalry unit,
valitlity as the edicts of the en1peror.-See CONSTI- decuria.-See TURMA.
TL'TlONliS P R I N C I I ' U M ( ~ i b l . ) . Mancini, DE 2.
Decretum divi Marci. A decree of the emneror Marcus Decurionatus. The office of a decurio.-See DECURI-
Aurelius forhitltling creditors to take arbitrarily away ONES, ORDO DECURIONUM.
things or money tlue from their debtors, without re- Decuriones. Members of a nlunicipal senate (ordo
sorting for hell) to the competent authorities. "Credi- decurionu~tz) elected for life. Vacant posts were
tors should claim what they 1)elieve to 1)e due to them filled at five-year intervals. Eligible were former
through the intermediary of a judge" (D. 4.2.13). municipal magistrates with a census of at least one
A creditor who contrary to that decree proceeded on hundred thousand sesterces. Persons of particular
VOL. 4.3, 1.T. 2 , 1053] E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAK LAW
worth to the natrnicipiunz antl its protectors (jatroni dom of the lowest tlegree antl coultl never be admitted
t~zunicipii) resitling in Rome were honoretl I)y nlelll- to Roman citizenshil). They were unal~lcto make a
bership in the municil)al senate. The dccurioncs de- will or to inherit under one.
cided about all matters involving the interests of the Deditio. The surrender of an enemy community tle-
community, appointed local magistrates, antl func- featetl in war with Rome. Its territory was annexed,
tioned as a court of appeal on fines imposed by and its citizens I~ecamepcregrini drditicii-See DEDI-
municipal officers.-D. 50.2 ; C. 10.32 ; 33 ; 35 ; 12.16. TICII.
-See ORDO DECURIONUM, I)ECRI.:TA DECURIONUM, AL- E . Tiubler, Itnpcriunt Xontanunt, 1913, 14; Heuss, Viilkcr-
B U M C U R I A E , DUAE PARTES. rechtlichc Grurtdla,qcn der riint. Ausscltpolitik, 1933, 60;
Kiibler, R E 4 ; Kornematln, RE 16, 621 ; Hutnhcrt, D S 2 ; Frezza, S D H I 4 (1938) 412.; Paratlisi, S t Solmi 1 (1941)
Mancini, D E 2, 1515; Gaudemet, Iura 2 (1951) 44. 287; A. Magdelaiti, Les origincs dc la sponsio, 1943, 8 7 ;
De Visscher, S t Riccoborto 2 (1936) ; idcnt, C R A I 1946,
Decuriones pedanei. Men1l)ers of the municipal senate 82; idegn, NoxalitP, 1947, 72; LCvy-Rruhl, Nouvellts btudes,
who had not been municil)al magistrates before. They 1947, 116; La Rosa, Iura 1 (1950) 283; Piganiol, R I D A
were appointed by duoviri (or quattuovviri) iuri 5 (1950) 339.
dicundo to seats which became vacant because of the Dedoken. The Greek text of Justinian's constitt~tion
death of a decurio or his removal, as the result of a by which the Digest was ~)romulgated(Dec. 16, 533).
condemnation in a criminal trial. It apparently was an earlier draft than the Latin
Mommsen, Jur. Schriftcn, 3 (1907) 38. edition, Tanta, and is frequently more exact than the
Dedere noxae. See NOXA. latter.-See TANTA,DIGESTA IUSTINIANI.
De Visscher, NoxalitC, 1947, 400 and passint. Ebrard, Z S S 40 (1919) 113; Berger, Ryznt~tion 17
Dedere se hosti. T o surrender to the enemy in the (1944/5) 14 (= B I D R 55-56, Suppl. Post-11cllu111,1952,
275)
course of a war.-See DEDITIO,DEDITICII.
Dedicatio. A religious ceremony by which an object Deducere in coloniam. T o take colonists from Rome
( a temple or an altar) was consecrated to gods. or some other place to a colony to he founded.
Solemn words were pronounced on such an occasion Deducere in domum. See DEnucTro I N DOMUM.
by a pontiff and sometimes by a magistrate, in con- Deducere in iudicium. T o bring a suit in court to the
formity with the statute or decree of the senate by joinder of issue (see LITIS CONTESTATIO). Thus the
which the consecratio was ordained (lex dedica- in iurc stage was finished and the trial could enter the
tionis) .-See RES SACRAE,LOCUS SACER, DUOVIRI AEDI second stage before the judge (apud iudicem) .-See
DEDICANDAE. RES I N I U D I C I U M DEDUCTA, EXCEPT10 RE1 IUDICATAE.
Wissowa, R E 4 ; Pottier, D S 2 ; De Ruggiero, D E 1, 144; Deductio. ( I n suits of a bonorutn eemptor.) If the
2, 1553 ; S. Brassloff, Studicrt zur riivt. Rechtsgcschichte, buyer of the property of an insolvent debtor (see
1925; Paoli, R H D 24-25 (1947) 185. B O N O R U M EMPTOR, BONORIJM VENDITIO) sued some-
Dediticii. The citizens of a foreign state or commu- body, he had to do so cum deductione, i.e., to deduct
nity who, vanquished in a war with Rome, surrend- from his claim whatever he himself owed to the de-
ered to the power and protection of Rome (deditio). fendant as the bankrupt's successor. This was a kind
They constl'tuted a specific group of the Roman popu- of compensation but it went farther than the normal
lation; they were free hut lacked all public rights COMPENSATIO since debts of a different nature (e.g.,
and citizenship (nullius civitatis). Their legal status inoney with debts in kind) might he set off and
as peregrini dediticii could be improved by unilateral even debts falling due in the future were taken into
concessions granted by Rome to individuals or groups. account.
But even the general grant of Roman citizenship to Solazzi, S t Fadda 1 (1906) 347; idem, Concorso dei credi-
peregrines by the constitution of the emperor Cara- tori 2 (1938) 146; idem, CompensasioncZ (1950) 65.
calla excluded the dediticii. The status of dediticii, Deductio in domum mariti. The solemn introduction
termed by Justinian dediticia libertas, was abolished of the bride into the husband's house, accompanied
by him (C. 7.5.1).-See CONSTITUTIO A N T O N I N I A N A by religious ceremonies. It was considered the be-
(Bibl.), DEDITIO,DEDITICII EX LEGE AELIA SENTIA. ginning of the marriage.
Sherwin-White, O C D ; Schulten, R E 4 ; Gayet and Hum- E. Levy, Hergang der rom. Ehescheidung, 1925, 68; M .
bert, D S 2 ; Moore, Arch. f. lat. Lexikographie, 11 (1900) Rage-Brocard, Rites de mariage. La d., 1934; Orestano,
81 ; G. Moinier, Les peregrines dbditices, 1930; G. Boz- B I D R 47 (1940) 306.
zoni, La ronst. Antoniniana e i d., 1933; Stroux, Philologus Deductio quae moribus fit. See vls EX CONVENTU.
88 (19331 287; Momigliano, Ann. Scuola Norm. S u p e ~ i o r e
di Pisa Ser. 2, v. 3 (1934) 361 ; Luzzatto, S D H I 2 (1936) Deductio servitutis. The constitution of a servitude
211 ; A. d'Ors, A H D E 15 (1944) 162; Bell, J R S 37 (1947) by the seller of an immovable in favor of either the
17 ; Tsherikover, Jour. juristic Papyrology 4 (1950) 203 ; alienated land or of another plot owned by hiinself.
Schonbauer, ibid. 6 (1952) 17. Thus the seller either conceded the buyer a servitude
Dediticii ex lege Aelia Sentia. Slaves who had been on his own land or reserved such a right for his
found guilty of a crime, had been put in bonds by property (deducta servitute) .-See D E D U C T I ~ USUS-
their masters by way of punishment, or had been FRUCTUS.
handed over to fight with men or beasts, could become S. Solazzi, Requisiti e tnodi di costitusione delle scrzitli
free through manumission, but they obtained free- prediali, 1947, 87; 135.
42 8 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Deductio ususfructus. A mode of constituting" a usu- Defensor plebis. See DEFENSOR CIVITATIS.
fruct on behalf of the owner who transfers his prop- Hoepffner, R H D 17 (1938) 225.
erty to another (deduct0 usufructu) or of a legatee Defensores senatus. These were introduced about the
in a testament. Syn. with deducere are detrahere, middle of the fourth centurv for the defense of the
excipere. members of the senate in Constantinople against vexa-
Humbert, D S 2 ; U. v. Lubtow, Schenkungen der Eltern, tions by provincial governors and tax-collectors to
1949, 24 ; D'Ors, Fschr Schulz 1 (1951) 270; Sanfilippo, which senatorial landowners were exposed in the
AttCat 4 (1950) 152.
vrovinces. The defensores senatus (who were elected
Defectus conditionis. See CONDITIO DEFICIT.
by the senate) disappeared in the fifth century.
Defendere. T o defend one's own (defendere propriam Seeck, R E 4.
causauiz) or another's matter (defendere alienat~z
- 3
Deferre.. T o denounce a crime committed by another
causam, for instance of an absent person) in court.
Defendere another means "to do what the principal person to the authorities. In the later Empire, slaves
would do in the trial and to give appropriate security who denounced certain crimes (such as counterfeit
(cavere)" (D. 3.3.35.3). A party to a trial who of money, desertion, abduction of woman) received
liberty (libertate donari) as a reward (praemium).
does not fulfil his procedural duties or is not duly
See DENUNTIARE.Deferre se = to denounce oneself
represented, is considered indefensus (not defended)
and must submit to disagreeable executory measures. iri a fiscal matter (e.g., to be unable to take under a
will; see CAPAX)which might result in a seizure of
Defendere may also refer to the defended object or
property by the fisc.-C. 7113.-see DELATIO,DELA-
right (defendere' fundum, servitz~tem, hereditatem,
TORES, DEFERRE FISCO.
possessionem, etc,) .-See INDEFENSUS,
Defendi potest. Introduces a legal opinion ( = "it may Deferre fisco. T o denounce to the fisc a case in which
be affirmed"). it would be entitled to seize private property. T h e
Defensio. T h e activitv of DEFENDERE oneself or an- imperial legislation sought repeatedly1 to curb the
other in a civil or a criminal trial. Defensio is also abuse of denunciations and inflicted severe penalties
the procedural means by which one combats his ad- not only on false informers. Apparently, denuncia-
versary's claim, an excejtio, for instance. "No one tions concerning unpaid custom duties were frequent.
of those who deny their debt is prohibited from using The jurist Marcian wrote a monograph D e delatoribus
another kind of defense" (D. 50.17.43) .-Defensio is ("On denouncers") in which numerous imperial con-
also the payment of another's debt. stitutions dealing with denunciations are listed along
Wlassak, Z S S 25 (1904) 124; Frese, S t Bottfante 4 (1930) with a schedule of articles dutiahle on import (D.
420. 39.4.16.7, see PORTORIUM ) , Sn~uggling of those
Defensor. A person who defends another's interests goods was severely punished.
in a trial with or without authorization (defensor Berger, R E 17, 1476; Solazzi, B I D R 49-50 (1947) 405.
absentis) or on account of his legal relation to the Deferre hereditatem. A n inheritance, both testamen-
plaintiff or defendant (as his tutor or curator). tary and intestate was considered delata (conferred),
Puhlic corporate bodies may have a defensor too, "when somebody may obtain it by acceptance" (D.
such as an actor municipii, syndicus, defensor colo- 50.16.151). See ADITIO HEREDITATIS.The heir had
niae, defensor rei pub1icae.-D. 3.3.-See DEFENDERE, only to declare that he accepts it. The term deferre
DEFENSIO, is also applied to bonorunz possessiones, legacies and
Defensor civitatis. An official appointed by the em- testamentary substitutions. Deferre occurs normally
peror (for the first time in A.D. 364) for the defense at the time of the death of the person whose succes-
of the poor classes of the population (hence he is sion is inherited. I t might occur later, when the heir
also called defensor plebis) against exactions by the was instituted under condition or when the heir insti-
great landowners and powerful citizens (potentidres) . tuted refused to accept the inheritance. Deferre on
High ex-officials, even senators, were appointed to intestacy took place when there was no valid testa-
this office, in later times 1)y the praefectus praetorio, ment; it could not concur with a testamentary delatio
or elected I)y a group of distinguished citizens of the because according to an ancient rule, "no one can
comn~unity. The defensores civitatis gradually be- decease partly testatus, partly intestatus" (see N E M O
came supervisors of all officials in the provinces and PRO PARTE TESTATUS) .-See TRANSMITTERE, TRANS-
they transmitted to the governor complaints received MISSIO.
concerning his sul~ordinates. They also obtained Deferre iusiurandum. See IUSIURANDUM NECESSA-
iurisdiction in smaller civil affairs an2 even develo~~ed RIUM.
police functions in certain cases, not to speak of their Deferre tutelam. T o designate a guardian by testa-
extensive interference in administrative matters.-- ment (ex testamento) or to confer guardianship ac-
C. 1.55.-See ACTOR UNIVI.:RSITATIS. cording to the law. See TUTELA. The term is also
Secck, RE 4 ; Desjardins, 13s 2 ; Mancini, D E 2 ; Romano, applied to curatorship (see CURA).
N U I 4 ; Chenon, N R H U 13 (1889) 321, 515; Baale, D. C.,
Diss. Amsterdam, 1904; Rees, J u u r . jtrristic papyrology 6 Deficere. With regard to judicial measures (e.g.,
(1952) 73. artio deficit) indicates that in the case in question an
VOL.43, PT. 2, 19.531 ENCYC1,OPEDIC DICTIONARY O F ROMAN LAW 429
action (exception, interdict) had to be denied. I n Deiectio gradus. Degradation from rank as a mili-
the passive voice, drfici (e.g.. illre, actione) refers to tary punishment.
a person deficient in a right or action. Deierare (deiurare). Syn. iurare. The term belongs
Deficere. (Intrans.) See CONDICIO DEFICIT. to ancient Latin ant1 is used once in the praetorian
Definitio. Appears both in the sense of an explana- Edict with reference to an oath imposed on the
tion of a term and in that of a legal rule. The Roman defendant by the praetor.
jurists do not give definitions very often, and those Delatio. See DELATORES.
given by thein are not always exact or exhaustive. Delatio fisco. See DEFERRE FISCO.
They rather avoided definitions which might have Delatio hereditatis. See DEFERRE HEREDITATEM.
beco~nea hindrance to later adaptations required by Delatio iurisiurandi. See IUSIURANDVM NECESSA-
tified with regulae. A work of the jurist Q. hlucius or to assume an obligation towards, a third person
Scaevola, with the Greek title Horoi (= definitiones) (is cui delegatur). The term covers various trans-
may have had a similar character. actions serving different purposes. The most practi-
Definitiva sententia. A postclassical term for the cal form occurs when a creditor orders his debtor to
final judgment in a civil trial, to be distinguished pay the debt to a third party of whom he himself is
from interlocutory, preliminary decisions (interlocu- a debtor. "He who orders a payment is considered
Biondi, St Bonfante 4 (1930) 50. serve also novatory purposes (no-datio) when the
Defixiones. See EXECRATIONES. creditor orders his debtor to promise (not to pay)
Kuhnert, R E 4 ; Lafaye, DS 5 , 4 ; Cesano, D E 2. a third person something. In this case a new obli-
Defraudator. See FRAUDATOR. gation arises towards the third person in the place
Defunctus. A deceased person. The term is pri- of that of the delegans. Such changes in the person
marily used when questions connected with his in- of the debtor or creditor may occur only with the
heritance or specific hereditary objects are involved. consent of the persons involved. A delegatio may
-See MORS,MORTALITAS, STATUS DEFUNCTI. also serve for the performance of a donation (when
S. Solazzi, Contro la rappresentanza del defunto, 1916; the donor orders his debtor to pay his debt to an-
Jobbk-Duval, Les morts malfaisants, 1924 ; Volterra, P r o - other) or for the constitution of a dourry (when the
Deicere. T o throw down; see ACTIO DE DEIECTIS ET to his son-in-law) .-D, 46.2 ; C. 8.41.-See EXPRO-
Deicere de possessione. T o dispossess a person from Leonhard, R E 4 ; F. Kempner, Untersuchung uber die
an immovable, chiefly when the action is connected Kausa1be:iehung der Delegation, Greifswald, 1919 ; P.
with the use of physical force.-See INTERDICTUM Rutsaert, Etude sur la dklbgation, Gand, 1929; G. Hu-
DE VI. brecht, Observations sur la nature de la dilkgation, Bor-
Leonhard, R E 4 ; Humbert, D S 2 ; Levy, S c r Ferrini 3 deaux, 1931; Andreoli, RISG 7 (1932) 385; Aru, B I D R
iUniv. Sacro Cuore. Milan. 1948) 136. 44 (1937) 332; S. Cugia, Ilzdagine sulla delegazione, 1947.
Deicere e saxo Tarpeio. T o throw down from the Delegatio. ( I n taxation matters.) An imperial order
Tarpeian rock. I t was a way of executing the death by which the annual amount to be levied in taxes,
penalty on slaves who committed a theft and were both in money and in kind, was established. The
caught in the very act (fzdrtum ~nanifestuln),as well praefectus praetorio assessed the amount for the prov-
as in cases of high treason and false testimony. In- inces and notified the governors who were responsible
troduced by the Twelve Tables, it was abolished in for the collection in their provinces.
the third century after Christ.-See TESTIMONIUM Seeck, R E 4, 2431.
FALSUM. Delere. T o cancel a written document ( a testament,
Taubenschlag, R E 4.4, 2330 ; E. Pais, Ricerche sulla storia for instance) totally or partially. The pertinent dis-
e sul dir. pubbl. d i Roma, 4 (1921) 17. positions became void.-D. 28.4.
430 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
heir who was not obliged to accept an inheritance to the contractual ones (obligationes ex contractu).
(heres voluntarius) was granted a certain time in The group of private wrongdoings was enlarged by
which to decide whether to accept it or not.-See the praetorian law through the creation of obliga-
TEMPUS AD DELIBERANDUM, ADITIO HEREDITATIS.- tiones, called quasi ex delicto, arising from some minor
S. Solazzi, Spatiunz deliberandi, 1912; idem, S D H I 3 a delictum" (D. 50.17.134.1). The distinction delicta
the same person either in different acts or in one, origin.-D. 47.1.--See CRIMEN,C R I M J N A PUBLICA.
"Never do several concurrent crimes cause impunity Hitzig, R E 4 ; Baudry, D S 2 ; Brasiello, NDI 4 ; 8, 1206;
to be granted for any of them" (D. 47.1.2 pr.). This Lauria, S D H I 4 (1938) 182; Roberti, S t Calisse 1 (1940)
Delicta militum. Military crimes or offences are Solazzi, Dementia, Mouseion 2 (1924) ; idem, A G 143
either purely military or common to civilians as well. (1952) 16) Lenel, Z S S 45 (1925) 514.
A special military crime (delictuwz militare) is one Deminutio (deminuere). ~~f~~~ to all acts of trans-
''which somebody commits as a soldier" (D. 49.16.2 ferring or alienating property. Some persons, such as
pr.). Minor military penalties included: pecuniary those who are under curatorship, are forbidden to
fines, castigation, additional service, transfer to an- make transactions by which their property is lessened.
other branch of service ; more severe penalties were Deminutio capitis. See C A P I T I ~DEMINUTIO.
degradation and dishonorable discharge. Several mili- ~ ~(demolitio).
~ T~ ~destroy. l~h~ owner i of a
~ ~
tary crimes were punished death, particularly in building could destroy it when he pleased provided
wartime. A soldier could neither be condemned to that such action did not violate the rights of, or
compulsory labor in the mines nor tortured. Specific cause damages to, his neighbor. Where it might,
offences against military discipline included insubor- the demolition was as a new structure (opus
dination, disobedience (contuwzacia), idleness (segni- ,ovu,) and was liable to an objection by the neighbor,
tia), negligence (desidia). Milder treatment, and see O P E R I ~ NOVI NUNTIATIO. Also in the case of a
sonletimes full forgiveness, were granted to recruits party wall (see PARIEs COMMUNIS) the demolition by
(tirones) unfamiliar with military discipline. A rule one of the owners could give rise to a controversy.
"A soldier who is a disturber of the peace (turbator Berger, R E 18, 561; Daube, Class. Quarterly 44 (1950)
done to property). Delicturn is the source of one Demonstratio falsa. The use of inappropriate words
group of obligations (obligationes ex delicto) which in the description of a person or a thing in a last will,
other than what the testator intended to express. from denegare actionem where the magistrate in his
"Falsa demonstratio non nocet" ( = "the erroneous capacity as a jurisdictional organ issued a decree of
denotation is not prejudicial," D. 35.1.33 pr.). I n denegatio after the party had appeared before him
numerous cases the jurists interpret a falsa demonstra- and presented his case.
tio in favor of the validity of the testamentary dis- R. Diill, Denegationsrecht, 1915, 59; idem, Z S S 57 (1937)
.,"
/I.
position.-With regard to the demonstratio in the
formula (see the foregoing item) the plaintiff's claim Denuntiare. (Syn. nuntiare.) T o give notice, to inti-
is not impaired if the object of the trial is not cor- mate, to announce. The term applies both to official
rectly described in the formula; an overstatement or declarations addressed to private individuals and to
an understatement (plus aut minus positum) is with- announcements made by the latter to the competent
out any effect on the plaintiff's claim.-D. 35.1. authorities. Similarly, there was a denuntiare-when
Eisele, JhJb 65 (1915) 18; Bang, JhJb 66 (1916) 336; a private person gave notice to another of a legally
Donatuti, S t Perozzi, 1925, 311; Grosso, S t Bonfante 2 important fact or of his intention where such an act
(1930) 187; B. Biondi, Successione testanzentaria, 1943, was necessary for proceeding with a legal remedy.
521; Flume, Fschr Sclzulz 1 (1951) 224.
Denuntiare was ~rescribed.for instance. in the case
Demosthenes. A Byzantine jurist of the fifth cen- of evictio: when sued by a third person for recovery
tury, probably a professor in the law school of Beirut. of the thing bought the buyer had to notify the seller
Kubler, R E 5, 190.
thereof. A creditor who was going to sell the pledge
Denarius. A Roman silver coin (after 269 B.c.), origi- had to give the debtor notice. Similarly a creditor
nally equal to ten copper asses and four sestertii who ceded his rights against the debtor to another (see
numuni.-See EDICTUM DIOCLETIANI DE PRETIIS. CESSIO)had to act in order to compel the debtor to
Lenormant, D S 2 ; Cesano, D E 2 ; De Ruggiero, RendLinc
17 (1908) 250; Mattingly and Robinson, Numismatic pay the new creditor. An heir who had a right on
Chronicle 1938, 1 ; Mattingly, O C D 210 (s.v. coinage). intestacy, when disinherited by the testator, had to
Denegare actionem (denegatio actionis). The re- denuntiare his intention to sue for the nullification
fusal by the praetor to grant the plaintiff the action of the testament.-See CONDICERE, SENATUSCONS~L-
(legis actio, fornzula) he requested. "He who has T U M PLANCIANUM, C O M M I S S O R I A LEX.
Kipp, R E 5 ; Humbert, D S 2 ; A. Burdese, L c r c o ~ t ~ ~ t t i s -
the power to give an action may refuse it" (D. soria, 1949, 15.
50.17.102.1 ) . The competent magistrate (the prae-
tor primarily) did so at his own discretion, but the Denuntiare bellum (denuntiatio belli). A declara-
plaintiff could repeatedly sue the defendant before tion of war by which a state of war between two coun-
another praetor. Denegare actionem was decreed by tries was initiated. Indicrre bcllzij~zhas similar sig-
the magistrate in various instances when already in nificance. The two verbs sonletinles appear side 1)y
iure it appeared beyond a doubt that the plaintiff had side.-See BELLUM.
Walbank, ClPhil 1949, 15.
no cause of action, that he had no capacity to act
personally in court, or when his claim was immoral Denuntiare testibus testimonium. To summon a
or not suable under either ius civile or praetorian law witness in a criminal trial. It could I)e clone either
and the praetor was not willing to grant a new action. by a magistrate or by the accuser.
Kaser, R E 5A, 1049.
Syn. non dare actionem.-D. 44.5.-See DARE ACTI-
ONEM. Denuntiatio domum. A specific form of dcn~rnfiatio
Leist, R E 5 ; Lenel, Z S S 30 (1909) 333; R. Dull, Dene- in the case of D A M N U M INFECTUM, which
must pre-
gationsrecht und praetorische Jurisdiction, 1915; R. Me- cede the proceedings connected with cazrtio daiirni
waldt, Dencgare actionaln, 1912; H . Levy-Brulil, La d. a. infecti or ~nissioin posscssionc~~t. lly this private
duns la procc'dure formulaire, 1924; Wenger, Proctor u~zd act, the plaintiff informs the atlversary of his inten-
(Univ. Pavia, 1946) 644. If the adversary is absent, the dcn~rnticitiois niade to
Denegare bonorum possessionem. T o reject a re- his representative or to a tenant in the house.
quest for BONORUM POSSESSIO.-See A G N I T I O BONO- Denuntiatio ex auctoritate. Sun~monsof the adver-
R U M POSSESSIONIS. sary (in the late Empire) authorized by a p~iblic
Denegare cautionem. See C A U T U M IUBERE. official.-See D E N U N T I A T I O LITIS.
Denegare exceptionem. A counterpart to dencgare A. J. BoyC, La detrunticrtio, 1922, 206.
actionenz: when the praetor rejected the demand of Denuntiatio litis. A summons of the defendant by
the defendant for the insertion of an c.rrcptio into the magistrate in the procedure rognitio extra ordi-
the forn~ula. nrlit of the classical period. In the later Empire the
Denegare interdictum. The refusal of an interdict 1)y summons was a private act with the assistance of an
the praetor.-See INTERDICTUM. official person and under official authorization (dc-
Denegare iurisdictionem. T o exclude a person fro111 nrrntiatio cx aurfor.itnfr).-See RErARhTro T E M P O -
K ~ P I )I,i E 5 ; Leonllard, R E 13 (s.1~.litis dew.) ; Stein- rentler accounts and pay tlie balance, when the heir
\venter, Slutiicit sum rum. Verstiirmirisvcrfal~reit,1914; was absclnt or is controversial
A. J. Boyti, La d. i~rtrodttctivcd'iiistaircc so~rslc Priircipot,
1922. such a drpositio effectuated an immediate liberation
of the debtor. It seems that tlie various cases were
Denuntiator. Tlie prosecutor in a criminal trial ; police
treated differently in this regard.
oflicers in the late Empire who hat1 to tlenounce Ii. De Ruggiero, StCagl 1 (1909) 121 ; G. Solazzi, Estin-
criminal offences to be prosecuted by the State. Syn. sionc d~ll'ohhli~jnsioncl 2 (1935) 140, 160; Catalano,
nirntiator. .41~Cat3 (1949).
Kiibler, IiE 5 ; Humbert, D S 2 ; De Ruggiero, D E 2. Depositurn. A deposit. Depositlr+lt is both the object
Denuntiatores (lictores denuntiatores). Assistants given a person for cnstotly, and the contract itself by
of the cllrcltorcs llrbis I<ollla~. L)cnlfnticltorrs were which soniebody assullied the (luty to watch over the
also slll~ordinateofficials who anliouncect the public depositor's thillS withoLIt any The
gallies ( l ~ r d i.) contract, which was exclusively in the interest of the
Kiiblcr, R E 5 ; idem, R E 13, 515. depositor, was concluded by handing over the deposit
D e o auctore. The initial words of Justinian's consti- to the depositary (obligatio re contracta). The latter
tution of December 15, 530, addressed to Tribonianus, was not allowed to use the thing and had to return it
his principal collaborator in the composition of the to the owner at his demand, with all proceeds and
Digest (DIGESTA), by which the emperor's plan con- accessories. H e was liable for dolus, but not for
cerning this part of his codification was announced. negligence (culpa). A n actio depositi lay against
Tlie enactment reveals the emperor's ideas about the .hi111 when he refused to return the deposit or other-
whole ivork and contains instructions to be followed wise violated his duties. The condemnation in actjo
in its compilation. depositi rendered the -depositary infaiuous (see I N -
Depellere manum. TO remove, throw off the claim- FAMIA). O n the other hand, he had an actio depositi
ant's hand who had touched the shoulder of the de- contraria against the depositor for the recovery of
fendant in exercising the so-called M A N U S INIECTIO. expenses and losses incurred in connection with the
-See VINDEX. deposit.-D. 16.3 ; C. 4.34.-See FIDUCIA C U M AMICO,
hl. Kaser, Das altronz. Ius, 1949, 195. PACTUM N E DOLES PRAESTETUR, and the following
Depensum. (From dependere.) What the surety paid items.
to the creditor on behalf of the principal debtor.- Leonhard, R E 5 ; Humbert, D S 2 ; Anon., N D I 4 ;.Tauben-
See ACTIO DEPENSI. schlag, GrZ 34 (1907) ; Schulz, Ztschr. fur vergl. Rechts-
ewiss. 25 (1911) 464, 27 (1912) 144; R. De Ruggiero,
Deponere (depositio). T o resign one's office (of- B I D R 19 (1907) 5 ; G. Rotondi, Scritti 2 (1922) 1 ; J.
ficilcnz) or guardianship (tufelawt) .-For deponere Paoli, Lis infitiando crescit in duplum, 1933, 170; C.
= to deposit, see DEPOSITIO, DEPOSITUM. Longo, Corso di dir. rom. I1 deposito, 1933; Albertario,
Stzidi 4 (1936) 247; Sachers, Fschr Koschaker 2 (1939) 80.
Deportatio. Perpetual banishment of a person con-
denlned for a crime. It was the severest form of Depositurn irregO1are. A deposit Or
banishment since it included additional penalties, such wherein the had return not
as seizure of the whole property, loss of Roman the Same things, but the quantity (tantundem)
citizenship, confinement to a definite place. u n d e r of money or things. The transaction, called in litera-
the Principate it replaced the former interdictio aqua ture depositurn irreg~lare, became a loan (l.nzbtuurn)
et igni, T h e emperor could grant the deportee full when the had the right use the things.
amnesty, which restored him to his former rights A an in a
(postlinzinitint). Places of deportatio were islands bag was a depositat". Such were
(in inslllatn) near the Italian shore or an oasis in made with bankers who assumed the the
the Libyan desert.-D. 48.22.-See RELEGATIO, money.
EXILIUM. G. SegrP, B I D R 18 (1906) 132; C. Longo, B I D R 19
Sommer, ZSS 34 (1913) 394. tor's death (post mortern) were void because a n
Dies certus. A day of which one is certain that it will obligation could not arise for the heir, neither as
come (certus an) and when it will come (certus creditor nor as debtor. Similar treatment was ex-
quando). Such days are calendar-days. Ant. dies tended to promises connected with the day preceding
incertus, an uncertain day, either uncertain as to when the death of the creditor or debtor (firidie quarn mo-
it will come (incertus quando, as, e.g., the day of a riar, or pridie qua% ~norieris in the stipulatory
person's death) or whether it will come at all (in- question). Justinian declared such stipulations valid.
-See MANDATUM POST MORTEM,O BLIGATIO POST scription (rubrics) of the title. Each text is pre-
MORTEM,
STIPULATIO POST MORTEM. ceded by an inscrzptio denoting the classical author
F. Vassalli, Di clausole relative a1 dies mortis nel legato and title of the work from which it was taken. By a
e nella stipulatio, 1910; Solazzi, Iura 1 (1950) 49. special instruction of the emperor, the compilers were
Dies nefasti. Days on which the Praetor was not al- authorized to omit all superfluous, imperfect, and
lowed to Pronounce one of the three solemn words do, obsolete ater rial and to make alterations in the
dico, addico. ~ n t .DIES FASTI. Therefore, legis excerpted fragments taking into consideration the
actiones and jurisdiction were forbidden on those changes introduced by later imperial legislative activ-
days. Likewise, popular assemblies did not meet on ity and Justinian3s own enactments. ~h~ commission
those holidays which were devoted to religious cere- composed of law professors in constantinople and
monies and public festivals.-See DIES FASTI (Bibl.), ~ ~ i high ~ officials,
~ t , and prominent
DO DICO ADDICO. under the chairmanship of TRIBONIANUS, made use of
Wissowa, R E 6, 2015. that authorization in a very large measure, not only
Dies legitimus. See LEGITIMUS. in order to introduce into the collected texts later
Dies praesens. See PRAESENTI DIE. legislative changes but also to insert some reforms
Dies utiles. Days on which certain acts could be Per- of the older law where the classical doctrines or ideas
formed in court (before the magistrates). When a seemed to them less appropriate for their time. Jus-
certain number of days was fixed for declarations or tinianYs statement that things and of highest
requests to be made before a magistrate, as, for in- importance (multa et maxima) have been changed"
stance, one hundred the demand bonorum (Tanta, 10) corresponds exactly to the truth. In-
possessio, only dies u t i l e ~were reckoned.-See AN- numerable alterations (suppressions, additions, substi-
NUS UTILIS. tutions), sometimes wholly opposite to what had been
Dies veniens (legati). See DIES CEDENS. said by a classical jurist, were accomplished with the
Diffarreatio. T h e formal dissolution of a marriage purpose of' modernizing the law as it stood in texts
concluded by CONFARREAT10 to free the woman written three to five centuries earlier. Those altera-
the manus tie.-See DIVORTIUM. tions are called interpolations (emblemata Triboni-
De Ruggiero, D E 2, 397; Leonhard, R E 5. ani). The copies of the classical works, which the
Differentiae. Distinctions. T h e title of a work by the compilers had at their disposal, were provided with
jurist Modestinus. Some of the texts preserved re- marginal or interlinear remarks (glosses), inserted
veal a tendency to stress the differences existing by the readers in postclassical times ; thus the glosses
among similar legal institutions or terms. entered into the Digest, willingly accepted by the
Diffindere. T o defer a trial to another day because compilers for whom they facilitated the compilatory
of the sickness of the judge or of one of the parties task in a large measure. The research into interpo-
(dies difisus). T h e measure was already known in lations and postclassical alterations in the Digest is
the Twelve Tables. one of the most important features of modern Roman-
Digerere. See DIGESTA. istic literature, the efforts of which are devoted to the
Digesta. (From digerere.) In juristic literature. segregation in each text of what was said therein
Some jurists (Alfenus Varus, Celsus, Julian, Scae- *originally by the jurist from what had been added
vela, Marcellus) wrote comprehensive works under or changed afterwards. I n order to avoid contro-
this title. Neither the system nor the kind of presen- versial discussions and confusing commentaries to
tation is uniform, but the general feature is that both this part of his codification, Justinian allowed only
ius cizlile and praetorian law are taken into consid- explanatory writings, summaries, and additional notes
eration. Often excerpts froill earlier works of the to the single title to be made in the future and for-
same author (Resfonsa, Quaestiones) are collected bade commentaries of a polemical, critical and contro-
and Put into a sommd~atsystematic order (digerere). versial character. The other official title of the Digest
Mommsen, Jurist. Schriften 2, 90; Jors, RE 5, 485. was Pandectae.-See INDEX FLORENTIKUS, TANTA,
Digesta Iustiniani. The main part of Justinian's legis- DEDOKEN.
lative work. Announced on December 15, 530 by Editions see General Bibliography, Ch. XI1.-Jors, R E 5 ;
the constitution "Deo Auctore," it was published on Riccobuno, N D I 4 ; Baudry, D S 4 ( s v. Pandectae) ;
December 16, 533 by the constitutions "Tanta" (in Berger, O C D ; F. Hoffmann, Die Compilation der Digesten
Justinians, 1900 ; Longo, B I D R 19 (1907) 132 ; De Fran-
Latin) and "Dedoken" (in Greek) and it entered cisci, B I D R 22, 23, 27 (1910, 1911, 1914) ; H. Peters, Die
into force two weeks later. The grandiose work is ostrom. Digestenkommentare und die Entstehung der Di-
a compilation of excerpts from the juristic literature gesten, BerSachGW 65 (1913) ; H. Kruger, Die Herstel-
of the classical epoch. More than 9,000 texts are lung der Digesten Justinians und der Gang der Excerption,
distributed into fifty books, each of which-except 1932; De Francisci, Premesse sforiche alla critica del
Digesto, ConfMil 1931, 1 ; Collinet, L'originalitd du Di-
for books 30-32 on legacies and fideicommissa-are geste, ibid. 3 9 ; De Visscher, Le Digeste, ibid. 53 (= Nou-
divided into titles of various extent containing the velles Etudes, 1949, 331) ; Arangio-Ruiz, Precedenfi scolas-
texts pertinent to the topic indicated in the super- tici del Digesto, ibid. 285; Rotondi, Scr giuridici 1 (1922)
VOL. 43, PT. 2 , 1953] ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 43 7
87; Rerger, J u s t i ~ ~ i c Ill ~t r t~~ 'z~i p o t ~ the conzmentaries to the model of caution and prudence.-See B O N U S PATER
Ui:jcst, 13ull. l'olislt Instilute of Arts and Sciences in F A M ILIAS.
Antcricu 3 (1945) 656 (= 131DR 55-56, Suppl. Post- Sachers, Ir'E 18, 4, 2154; Buckland, S t I3onfaizte 2 (1930)
Bcllum, 1951, offpr. 1948, 124). 87.
Digestum novum, vetus. Some manuscripts of the Diligentia. Cautious conduct, carefulness. Lack of
Digest contain only one-third of the work. The first diligentia might cause liability of the person who was
third, from Book 1 through Book 24, is called Diges- contractually obligated to a careful, cautious conduct,
turn vetus, the last third (Books 39-50) Digestullz where another's interests were involved. The term
novunt, and the middle portion Infortiatu~n. Thi5 is linked with others concerning contractual liability,
division of the Digest into three parts is only acci- and appears at times in texts which are not free of
dental. suspicion as to their classical origin. Complete elimi-
Kantorowicz, Z S S 31 (1919) 40; De Francisci, B I D R
33 (1923) 162.
nation of the term from the classical juristic thinking
Dignitas. The respect and esteem which the magis- is out of the question. Ant, negleyentia.-See CULPA,
CUSTODIA.
trates and senators enjoyed among the people. Dig- Kunkel, Z S S 45 (1925) 266; Kriickmann, Z S S 64 (1944)
nitas populi Roi~tnni= the greatness and power of 5; Pfliiger, Z S S 65 (1947) 121.
the Roman people. In the later Empire, dignitas Diligentia quam suis. Carefulness (diligence) which
refers to the highest administrative offices. The hier- a man applies in his own affairs. I t is referred to
archy of the dignitates = ordo dignitaturn.--C. 12.1 ; when the duties of a guardian in the management of
8 ; 1.52.-See ORDINARIUS. the ward's property or those of a partner in a
H. Wegehaupt, Die Bedeutung von d. in den Schriften der
republikanischen Zeit, Diss. Breslau, 1932. societas are defined.-See CULPA I N CONCRETO.
Ehrhardt, Mnem Pappulia, 1934, 101.
Dignitas patricia. See PATRICIATUS.
Dii. Gods. They could not be instituted as. heirs in Dilucida intervalla. See INTERVALLA.
a testament. Exceptions, however, were admitted by Dimissorius. See LITTERAE DIMISSORIAE.
senatusconsults and imperial constitutions in favor of Dimittere. I n obligatory relations dirnittere creditorern
some deities (in Rome of Jovis Tarjeius, and in the = to satisfy the creditor; dimittere debitorern = to
provinces of only one provincial deity). Legacies release the-debtor,
were permitted and subject to a deduction according Dimittere uxorem. T o dismiss, to send away one's
to the Lex Falcidia, as all other legacies. The temple wife (e.g., in the case of adultery). Such an act is
dedicated to'the cult of the deity honored by the gift, sufficient for a divorce if the husband gives up his
was the beneficiary. For the pertinent legislation of affectio llzaritalis and repudiates the wife with the
the Christian emperors, see ECCLESIA. intention of dissolving the marriage.
Scialoja, S t giuridici 2 (1934) 241 ; B. Biondi, Successione Dioecesis. (As an administrative unit.) The union of
testamentaria, 1943, 128. several provinces. Through Diocletian's reform the
Diiudicare (diiudicatio) . T o decide a judicial con- whole Roman Empire was divided into twelve dioece-
troversy by judgment. ses. Later the number was increased to fifteen. The
Dilatio. The,adjournment of a trial. At the request governor of a dioecesis, to whom the governors of
of either party, only one dilatio might be granted in the pertinent provinces were subordinated, was the
pecuniary matters. I n criminal trials the accuser vicarius. Three or four dioeceses were united into
could request for an adjournment twice, the accused a praefectura under a praefectus praetorio. There
three times.-D. 2.12; C. 3.11.-See DIFFINDERE, and were two praefecturae in the Westkrn Empire (Italia,
the following item. Gallia) and two in the Eastern Empire (Oriens,
Dilatio instrumentorum (personarum) gratia. .An Illyricum). This administrative division of the Em-
adjournment granted for the presentation of docu- pire was reflected in the appeal proceedings in judicial
mentary evi$ence (only to the defendant since the matters. The provincial governors were judges in
plaintiff had to prepare the necessary documents be- the first instance (iudices ordinarii, in Justinian's
fore suing) or in order to give absent persons in- language called simply iudices) . The second instance
volved in the trial the opportunity to appeab in court. was the vicarius, from whose decisions an appeal to
The extension of the term granted depended ubon the the emperor was admissible. The judgments of the
remoteness of the place from which the persons had praefectus praetorio as the head of a praefectura,
to arrive or the documents to be brought. rarely were submitted to the emperor since his judicial
Bortolucc~,S t Riccobono 2 (1936) 441. functions were held to be exercised in the place of
Dilatorius. See EXCEPTIONES DILATORIAE. the emperor (vice sacra) .-See VICARIUS, VICARIUS
Dilectum edicere. T o order a mobilization of the I N URBE, VICARIUS PRAEFECTI PRAETORIO.
army. Kornemann, R E 5, 727; Jullian, D S 2.
Liebenam, R E 5 ; Cagnat, D S 2 ; De Ruggiero, D E 2. Dioecesis urbica. The territory of Rome as a judicial
Diligens pater familias. A careful head of a family. district in which justice was administered by officials
The way he manages his affairs is presented as a residing in Rome. Italy was divided into dictricts
438 ADOLF BERGER [TRAXS.
AMER.
PHIL. SOC.
(regiones) submitted to the judicial competence of Discedere. T o recede, to withdraw as a party from a n
iuridici.-See REGIONES ITALIAE. agreement, or from a trial; to give up possession (a
Diploma. Written permission to use the imperial post, possessione) ; to dissolve a marriage by divorce.
delivered by a special official of the imperial chancery Disceptatio. (From disceptare.) A legal dispute, a
( a diplomatibus) . trial. I t mav denote both the debate on the contro-
Humbert, D S 1, 1648. versial matter before court and the decision itself.
Diploma honestae missionis. See AUXILIA,MISSIO, Disceptatio domestica = a friendly dispute within the
and the following item. domestic community.
Diploma militare. A certificate in the form of a dip- Diill, Z S S 63 (1943) 67.
tych issued to veteran soldiers after the completion of Disceptator. H e who examines and settles a contro-
their military service (normally twenty, in the AUXI- versy, an arbitrator or judge.
LIA twenty-five years). The diploma conferred Ro- Discessjo. . (From discedere.) Voting (in the senate)
man citizenship on a peregrine soldier, his wife and by division. The senator who voted for the motion
children or granted him the ius conubii (= the right took one place, those who opposed it, another (sen-
to conclude a legal Roman marriage). If the veteran tentiam pedibus ferre, Gellius, hToct. Att. 3.18.2) .-
had lived in a marital union with a woman, the See SENATORES PEDARII,SENATUSCONSULTA.
diploma convalidated it into a legal marriage. Some O'Brien-Moore, RE Suppl. 6, 711 ; 716.
tax immunities might also he included in a diploma. DisCidium. A divorce.
-See DIPTYCHUM. Discindere. ( I n later imperial constitutions). T o dis-
Wunsch, R E 5 ; Lammert, R E 15, 1666; Wenger, R E 2A, miss from public service-.
2416; Thedenat, 'DS 2 ; Vaglieri, DE 2, 198; H. M. D. Disciplina. Rules affecting orderly conduct, primarily
Parker, The R . legions, 1928, 102, 239; Nesselhauf, Corpus
Inscr. Latinarum 16 (1936); Riccobono, F I R 1' (1941)
in military service (disciplina militaris) . Disorderly
223 (Bibl.). conduct of soldiers, disobedience, insubordination, and
Diptychum. A written document composed of two the like, were treated as lesser military delicts. See
DELICTA MILITUM, CASTIGATIO, REGENS EXERCITUM.
rectangular tablets of bronze or wood, joined together
by a string passed through holes in the edges. Often -Disciplina publica = public order.-See SEDITIOSI.
J. Sulzer, Beitrage sur inneren Geschichte des rom. Heeres,
three tablets were used bound in the same way to- Basel, 1923; 0 . Mauch, Der lateinische Begriff d., Diss.
gether like a booklet (triptychuwz). The text of the Basel, 1941; S. v. Bolla, A u s rom. und burgerlichcm Er-
document was written twice, once on the inner pages brecht, 1950, 6 ; Solazzi, S D H I 17 (1951) 249.
(scriptura interior), tied around with the string and Discussor. A n official in the later Empire who verified
sealed by the witnesses, and a second time on the the accounts of expenditures for pubiic'buildings and
outside pages (scriptura exterior) which could be the records connected with tax administration.-C.
read without opening the inner part.-See TABULA, 10.30.-Discussor census, see INSPECTOR.
TABULAE CERATAE. Seeck, R E 5.
Wenger, R E 2A, 2417; Wunsch, R E 5, 1163. Discutere matrimonium. T o dissolve a marriage (or
Directarius. See DERECTARIUS. a betrothal = discutere spo,nsalia) .
Directus. Straight, immediate. Used in various con- Disiunctim. See CONIUNCTIM. Different interpretative
nections to denote that an act produces directly the rules were applied to legacies left joint disiunctim.
results normally attached thereto, contrary to analo- See the following item.
gous legal institutions which are only indirectly effec- Disiunctivo modo. Alternatively (aut . . . aut, sive
tive. Thus, for instance, libertas directa is liherty . . . sive = either . . . o r ) . Conditions imposed dis-
given in a testament through a direct manumissory iunctivo modo = conditiones disiunctivae. Generally
disposition of the testator and is opposed to libertas the person on whom they were imposed had the
fideicommissaria where the slave becomes free through choice between them.
a manumission by the heir; the direct institution of Dispendium. Expense, loss. Syn. impensae, impen-
an heir (institutio directa) is opposed to a SUBSTI- diu~~ z compendium, lucrum.
; ant.
TUTIO. For the meaning of directus in connection Dispensatio aerarii. Supervision over the administra-
with certain types of actions, see ACTIONES DIRECTAE. tion of the treasury (AERARIUM POPULI ROMANI).I t
Diribitio. The scrutiny of votes in popular assemblies belonged to the con~petenceof the senate.
hy special scrutinizers (diribitores) appointed for ~ i s ~ e n s a t o rA. financial manager of a wealthy land-
each centuria or tribus. owner. The emperor also had dispensatores = pay-
G. Rotondi, Leyes pubiicae populi Romani, 1912, 142. masters, cashiers of the imperial purse.
Diribitores. See DIRIBITIO. Dispensator pauperum. See O E C O N ~ M U SECCLESIAE.
Liehenam, RE 5 ; Humbert, D S 1, 1386. Displicere. See PACTUM DISPLICENTIAE.
Dirimere. T o settle a controversy (dirinzere contro- Dispositio. ( I n later imperial constitutions.) An ar-
versia~lz)1)y the decision of a judge or an arbitrator; rangement made by a testator in his last will or the
to dissolve ( a marriage, a partnership). testament as a whole (zrltima dispositio).
VOL. 43, PT. 2, 1 9 ~ 3 1 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 439
Dispositiones. Private (not governmental) affairs and Divinatio. (In a criminal trial.) A preliminary stage
correspondence of the emperor (in the late Empire). in which an accuser is chosen among several persons
-See COMES DISPOSITIONUM. who brought the same accusation against a person.
Disputatio fori. Mentioned only once by Pomponius Plurality of accusers in the same trial was not ad-
with reference to the times following the promulga- missible.
tion of the Twelve Tables (D. 1.2.2.5). The term Hitzig, R E 5 ; Humbert, DS 2 ; Berger, OCD.
seems to indicate discussions of legal problems by the Divinitas. Divinity ; a title applied to the emperor.-
jurists in a public place (in court?). See DIVALIS,DIVUS,DIVINUS.
V. Liibtow, Z S S 66 (1948) 467. Herzog-Hauser, RE Suppl. 4, 806 (s.v. Kaiserkult) ; L. R.
Disputationes. Juristic writings containing cases dis- Taylor, The divinity of the R. emperor, Middletown, 1931 ;
Ensslin, Gottkaiser, SbMunch 1943, Heft 6, passim.
cussed by the jurists in their activity as teachers.
The discussions might have started from real cases Divinus. Pertaining to gods; in the later Empire,
in which the jurists were asked for opinion (respon- connected with the person of the emperor or issued
sum) .-See TRYPHONINUS. by him (enactments, privileges, gracious acts). Syn.
Dissensus. (From dissentire.) See C-NSENSUS CON- divalis'-See IUS DIVINUM, RES DIVIN1 IURIS,'OMUS
TRARIUS.
DIVINA.
Hupka, Z S S 52 (1932) 1. Divisio. Division of cornmoil property. It can be
Dissimulatio. In the case of iniuria (insult), disre- achieved either by mutual agreement or by an action :
garding (neglecting) an offense by the person in- among the FAMILIAE HERCISCUN-
sulted who leaves the matter without giving any sign DAE3 cO-Owners by the 'OMMUN1 DIV1-
DUNDO. An analogous action, although not for divid-
of outraged feeling. insult is abolished by dis-
sinzulatio" (dissimulatione aboletur, D. 47.10.17.1). ing property, but for the regu1ation of
-See INIURIA. controversial land boundaries, was the ACTIO FINIUM
Dissolvere (dissolutio). To dissolve (a marriage by these actions have Proce-
divorce, a partnership), to cancel (a contract, an dural peculiarities, among them a special clause in the
obligatory tie). formula, ADIUDICATIO.-S~~ COMMUNIO.
Distractio bonorum. An institution similar to BONO- Divisio inter liberos. (Made by the father.) See TES-
TAMENTUM INTER LIBEROS.
R U M VENDITIO (sale of the property of an insolvent
debtor). The sale was by individual items (not in Divortium. A divorce. It was achieved without for-
a lump), probably without any foregoing missio in malities, simply by a definitive cessation of the corn-
bona. ~ i bonorum~ did not~ involve ~infamy. ~ mon life ~ of the consorts,
~ initiated
i by
~ common agree-
ment Or One of them, proving that there
Originally applied as an exception in the case of the
insolvency of a senator (see CLARA P E R ~ O a~ward ~), longer any a.fectio 'lzflritalis between the
or a lunatic, the distractio bonoruwa became a general SPOUSeS. Therefore, a abandonment of
institution under Justinian. the common dwelling by the wife in a state of
Solazzi, Concorso dei creditori 2 (1938) 199; 3 (1940) 1 ; excitement (per calorem) was a
Cosentini, SDHI 11 (1945) 1 ; Lepri, Scr Ferrini 2 (Univ. divortium. If the conclusion of a marriage was ac-
Sacro Cuore, Milan, 1947) 99. companied by a conventio in $i~nnutn,the dissolution
Distractio pignoris. See IUS DISTRAHENDI.-D.20.5; of such agreement had to be accomplished by a con-
C. 8.27 ; 28. trary act (difarreatio in the case of confarreatio,
Distrahere. T o sell (a pledge, see IUS DISTRAHENDI, rellulncipatio or emancipatio in the case of cocn~ptio).
DISTRACTIO BONORUM), to dissolve (a contract, a mar- Usually, however, a unilateral declaration by the
riage) . Syn. dissolvere, ant. contrahere. divorcing spouse (repudium) followed the separation,
Diurnus. See AQUA DIURNA,FUR DIURNUS,OPERAE either by writing, per epistu1att~-the letter had to be
DIURNAE. signed by seven witnesses-or orally, directly or in-
Divalis. Refers to enactments and utterances made by directly by a messenger (per nuntizcm). Legislation
the emperor. of the Christian emperors often dealt with divorfium ;
Ennslin, SbMunch 1943, 6, 72. they introduced some restrictions and imposed pe-
Divertere. T~ divorce ,(fito go in different cuniary sanctions on the party who repudiated his
See DIVORTIUM. consort without any just ground. The principle of
Dividere. See DIVISIO. the dissolubility of marriages, however, always re-
Divina domus. See DOMUS AUGUSTA. mained in force. I n Justinian's law written notifica-
Divinatio. As the art of predicting and interpreting tion of a divorce (libclllrs divortii, repztdii) became
certain natural phenomena (auspicia, auguria) this is obligatory.-D. 24.2; C. 5.24.-See FILIA FAMILIAS.
Leonhard, RE 5 ; Kunkel, RE 14, 2275; Baudry, DS 2 ;
a part of the activity of augures and their occult sci- Anon., NDI 5 ; E. Levy, Hergang der rom. Ehcscltcidung,
enCe.--AUGURES, HARUSPICES. 1925; Solazzi, BIDR 34 (1925) 1, 295; Corbett, LQR 45
Hopfner, RE 14, 1258 (s.v. mantike) ; Bouche-Leclercq, (1929) ; Volterra, St Ratti, 1934, 394; idcnr, St Riccobono
DS 2 ; Pease, OCD ; Cramer, Sem 10 (1952) 44. 3 (1936) 201 ; Basanoff, ibid. 177 ; L. Caes, La dissolution
440 ADOLF BERGER [TR \US \MI R ~WII. soc
vulontarre d u mariaye sine m a n n , Louvain, 1935 ; G Idongo, the thing" ( D . 50.17.137 ; 157 1) .-See R E [ V J NDI-
D I D R 40 (1932) 202; Jonkers, S D l i I 5 (1939) 123; Rasi, CATIO, E X I I T B E R C , I,OSSESSOR
Conscns~rs facit nrlptias, 1946, 125; Volterra, R I D A 1 Lenel, G r Z 37 (1910) 534; Pissard, NRI-I 35 (1910) ;
(1948) 224; Solazzi, I1 divorzio dclla liberta, B I D R 51-52 Levy, Z S S 42 (1911) 505; Icaser, Z S S 51 (1931) 109.
(1948) 327; P . Noailles, L c s tobolts d r ~vrariage, in Fas ct
iris, 1948, 1 ; Wolff, Z S S 67 (1950) 261. Dolo malo. (Syn. dolose.) Intentionally, with evil
Divortium bona gratis. (In Justinian law.) A di- intention (malice). The term receives often greater
vorce by reasons wl1icll callnot be charged to ellll'hasis the addition of Jciens (knowingly) to
either of the consorts, as when the marriage remained indicate that the wrongdoer committed the offence
childless for three years because of a physical de- with full knowledge of the unlawfulness of his act.
ficiency of one of the consorts, or the absence of the "No one is considered to act fraudulently (dolo) who
husband as a prisoner of war for five years, mental avails himself of his right" (D. 50.17.55), or "who
disease, etc. fulfills the order of a judge" (iusszini iudicis, D. ibid.
Tabera, A C I I 1 (1935) 195 ; Solazzi, ReizdLo~rtb71 (1938) 167.1 ) .--See
511; Wolff, Z S S 67 (1950) 270. Dolose. See DOLO MALO,DOLUS,
Divortium ex iusta causa. A divorce caused by the D:!us. Defined LabeO (D.4.3.1.2) as
bad behavior of one of the consorts (adultery or illl- any cunni"~,deceit, or contrivance used to defraud,
nloral conduct of the wife, the living with deceive or cheat another." Syn. dolits ~tzalus. Ant.
a concubine or his false accusation of the wife for On the One hand doL1tsbonus shrewdness), on
adultery) in Justinianjs law. The culpallle consort the other hand BoNA FIDES. I n transactions governed
was subject to pecuniary sanctions (loss of the dowry by bona fides (negotia fidci) and protected by
or nuptial donations, and, under certain circum- actions (iudicia) bonae fidei the judge's duty was to
stances, even loss of a quarter of property). Ant. take into consideration fraudulent conduct of the
divovtiztnz sine calisa, when there was no reasonable parties and to reject claims o r defenses based on
doltis. I n actions governed by ius stricfum (such as
ground for the divorce. It was valid, but the party
arising from stipzilatio) the defendant must oppose
who divorced was liable to money penalties.
excepfio doli if he wanted to object that the plaintiff's
Divus (diva). A granted an Or claitll was founded on dollis. A person deceived dolo
after the death if a consecratio had taken place (l.lzalo) by another, had the ACTIO DOLI hin1,
which the deceased entered anlong the deities of the introduced praetorian law, when another special
state.-See DIVINITAS, NOSTER. action was not available. In transactions under strict
Herzog-Hauser, R E S ~ P P4,~ .806 ( s v . Koiserklllt) ; De law liability for doltls could be assumed by a special
Ruggiero, DE 4, 44; Martroye, Bull. de la Socictc dcs
Anfiqrdairpsde Frartce, 1928, 297; L, Taylor, di- clausztla doli, included in, or attached to the principal
vitzit), o f tlte R . c~lzpcror, 1931 ; A dlOrs, A H D E 14 stiptilntio. Through this clause the promisor guar-
(1942/3) 3 3 ; Ensslin, Gottkaiser, S b J l u n c h 1943, Heft 6 anteed that there was not nor will be any fraud
D ~ dice,
, ~ 1 three
, ~ solenln words (tria sol- (doluni 11za11t?1~ nbesse afuturltIl?que esse). An agree-
lelllnine,erba) pronounced by the praetor in the exer- inent excluding liability for dolus (pacfuwz ne dolus
cise ,f his -jurisdictional activity in the in-iltre-stage pracstetlw) was void.-In criminal offenses dolzls
of the process. D~~~ referred to his granting an means the intention of the wrongdoer to commit the
action (foYnlula, ilidicinnl). an exception, an inter- cri"e, which presupposes his the unlaw-
dict, possession, or to his appointment of a guardian, fulness of the act. Republican statutes dealing with
a judge, and the like. Dicere was applied to some criminal offences generally expressly stress the sci-
of his con~mands,such as dicere diem, dicere ~nztltanz; enfia of the culprit (sciens dolo ??zalo). Similar ex-
addiceve is linked with the approval of what happened pressions are: consulto, consilio, voluntate, sciens
in iltre (e.g., in iitve cessio), see also ADDICERE.-S~~ prtidensque.-D. 4.3; C. 2.20.-See ACTIO DOLT,
CULPA, C A P A X DOLI, EXCEPT10 DOLI, C O N S I L I U M , DOLO
DIES FASTI.
M A L O , I N I K T E G R U M RESTITUTIO, STIPULATIO DE DOLO.
Wlassak, Z S S 25 (1903) 85; Dull, Z S S 57 (1937) 76;
F. De Martino, Giurisdkione, 1937, 59; Pugliese, Lezioni Humbert, D S 2 ; Litten, F g Guterbock, 1910; Schulz, Z S S
33 (1912) ; Charvet, L a restitutio i n integrum des majeurs,
sul processo civile r., 1947, 45 ; P. Noailles, D u droit sacrt
1920, 41 ; G. Rotondi, S c r girlr. 2 (1922) 371 ; K. Heldrich,
au dr. civzl, 1950. 284 D a s Vcrscirulden beim Vertragsabschluss, 1924; J . Du-
Documentum. A document. The term is unknown quesne I n integrum restitutio ob dolrlm, 1929; G. Maier,
in classical juristic language, but is used in post- Praetorische Bercicherungsklagcn, 1932, 17 ; 35 ; G. Longo,
Confribrlti alla dottrina dcl dolo, 1937; F . Palumbo,
classical imperial constitutions.-See INSTRUMENTUM. L'azione di dolo, 1935; Coing, S e m 8 (1950) 12; idem,
Dodrans. Three quarters of an as (nine z~nciae),hence Fschr Schulz 1 (1951) 97.
three quarters of an inheritance.-See AS. Dolus bonus. Earlier jurists called shrewdness dolus
Do10 desinere possidere. T o give up fraudulently bonus, "especially when anything was skillfully con-
possession of a thing with the purpose to be unable trived against an enemy or a robber" (D. 4.3.1.3).
to restore it to the true owner or legal possessor. Dolzts bottzis does not produce any legal consequences.
H e who does so "is treated as if he still possessed Ant. dollts 1~zn1lts.-See DOLUS.
VOL. 43, PT. 2 , 19531 E N C Y C L O P E D I C DICTI(I N A R Y O F ROMAN LAW 441
Dolus malus. Juristically syn. with dolus. Malus is Dominicus. Refers to the master's (dominus) power
in this connection a strengthening attribute but does over his slave (dominica potestas) . Dollzinicus =
not denote a higher degree of dolus to be treated connected with the private property of the emperor;
otherwise than do1us.-See DOLO MALO,DOLUS,MA- See RES DOMINICA, DOMUS DIVINA.
CHINATIO. Dominium. Ownership. Unknown in Cicero (al-
Domestici. The court garrison in the imperial palace. though dominus is not rare in his works) the term
-C. 12.17.-See DECEMPRIMI, COMITES DOMESTICO- appears for the first time at the end of the Republic.
RUM, PROTECTORES. I t -denotes full legal power over a corporeal thing,
Seeck, R E 5 ; Braschi, D E 2 ; Babut, Rev. Historique 114 the right of the owner to use it, to take proceeds
(1913) 226. therefrom, and to dispose of it freely. The owner's
Domestici iudices. The staff in the office of provin- plena potestas in re (= full power over a thing) is
cial governors.-C. 1.51. manifested by his faculty to do with it what he pleases
Domesticum furtum. See FURTUM DOMESTICUM. and to exclude any one from the use thereof unless the
Domesticum imperium. See IMPERIUM DOMESTICUM. latter has acquireh a specific right on it ( a servitude,
Domesticum iudicium. See IUDICIUM DOMESTICUM. an usufruct) which he might obtain only with the own-
Domesticum testimonium. See TESTIMONIUM DO- er's consent. Limits to private ownership may be im-
MESTICUM. posed on account of public order or in the interest of
Domi. The area within the city of Rome and a radius the community (utilitas publica) which under certain
of a mile from its walls. Ant, ~~zilitiae = the territory circumstances may lead to an expropriation (taking
beyond that area. The terms refer to the imperium away one's property through a compulsory purchase,
of the magistrates and to their territorial criminal emptio ab invito, the owner being compensated for
jurisdiction.-See LEX CORNELIA DE IMPERIO. the loss of his property). Under the later Empire
Domicilium. The domicile of a person, the place expropriation was practiced in various instances. Re-
where he permanently (not temporarily) lives. Do- strictions of the unlimited utilization of immovable
micilium is sometimes identified with domus "where property were admitted when a neighbor was hindered
a man has his abode, his documents (tabulae) and in the free use of his property. Special restrictions
the establishment of his affairs (buszness)" (D. concerning the owner's right to transfer his property
50.16.203). Other criteria of domicilium are; where by sale or in another way (aliennfio) night be im-
one "is always acting in the municipality, when .he posed on him by contract or by a testamentary dis-
buys, sells and concludes contracts there, when he position; in exceptional situations they were ordered
makes use of its forum, baths, theaters and its other by law, as for instance, by the LEX IULIA DE F U N W
institutions, when he celebrates there the holidays" DOTALI,which forbade the husband to sell the land
(D. 50.1.27.1). I t was controversial whether a man pertaining to his wife's dowry, or the prohibition to
might have two domiciles. Some jurists hold that alienate a thing which is the object of a pending suit
he had no domicile at all; a contrary opinion pre- (see RES LITIGIOSA).Finally, the owner's rights are
vailed in Justinian's law. Senators had their domi- limited when he has a thing in common ownership
cilium both in Rome and in their community of origin. with another (see COMMUNIO).-Syn.proprietas, ap-
Several rules concerning dovnicilium are referred to parently a later creation. A fundamental feature of
Hadrian. Even a longer sojourn in a city, for the the Ron~andoctrine of ownershin is the distinction be-
purpose of studies is not considered a domicilium tween the legal power over a thing and the factual
unless it lasted more than five years. Dovnicilium holding of a thing (posscssio) which do not always
collocare = to establish one's domicile; syn. larem meet together in the same person. Hence, conflicting
collocare, constituere (literally = to set a shrine for situations might arise between the owner (donainus,
the tutelary deity of the household). A person who proprietarius) and the possessor.-D. 41.1.-See DO-
had a do+nicilium in a community was an incola M I N I U M DUPLEX, MANCIPIUM, I N BONIS HABERE,
thereof. Domicilium was important in civil proce- POSSESSIO.For the acquisition of ownership see
dure since, as a matter of rule, a debtor night be MANCIPATIO, I N IURE CESSIO, TRADITIO, USUCAPIO,
sued only where he had his domicilium (forum dovni- LONG1 TEMPORIS PRAESCRIPTIO. SPECIFICATIO. COM-
cilii) . The domicile also was decisive for the munici- MIXTIO, CONFUSIO,OCCUPATIO, THESAURUS. For the
pal charges (mzrnsra) since a person was obliged to protection of dominiurn, see REI VINDICATIO, ACTIO
perform them only where he was resident. O n the PURLTCIANA, OPERIS NOVI NUNTIATIO, CAUTIO D A M N 1
other hand, only an incola could obtain an honorary INFECTI, IMPETRATIO DOMINII, H A S T A . - ~also
~ ~ the
post in his community.-D. 50.1; C. 10.40.-See following items.
INCOLA, ORIGO, TRANSFERRE D O M I C I L I U M . Leonhard, R E 5 ; Baudry, D S 2 ; Anon., N D I 5 ; Berger,
Leonhard, R E 5 ; Berger, R E 9 (s.v. incola) ; Baudry, O C D ; Di Marzo, N D I 10 (s.21. proprictb) ; C. H . hlonro,
D S 2 ; I.echat, D S 3 (s.v. incola) ; V. Tedeschi, R I S G 7 Dc nciq~tircndorcrriln dotrtinio, D. 41.1, Cambridge, 1900;
(1932) 213; idmz, Dcl do+nicilio, 1936; Visconti, S c r Bonfante, Scritti 2 (1918) ; V . Scialoja, Tcoria della pro-
Ferrini 1 (Univ. Catt., Milan, 1947) 429. prictri, 1-2 (Lezioni, 1928, 1931) ; De Francisci, Translatio
442 ADOLF BERGER [ T R A N S . A M E R . PHIL. SOC.
dorninii. 1921 ; H . H. Pflr~ger,Erwcrb dcs Eigrrltulrts, 1937; Dominus proprietatis. An owner. The term is less
G. Cornil, Du mojlcipium atc doririnirtirt, Fschr Koscltakcr llsed in a general sense; it serves to stress the con-
; Kaserv rbid. 445; Koschaker, zSS %
255; J. G. A. Wilms, Dc wording .rrort llct Romcinsche trast to who has an l,aufruct or an-
dominirtm, Gcrtt, 1939/40; Biscardi, StSett 56 (1942) 275; other right (;us in rc flli~nfl)on the same 1)rol)erty.
Wieacker, Entwickl~rngsstrrfcn dcs rom. Eigentums, in -Syn. proprictarilts, do~ninus.
Das ncuc Bild der Antikc 2 (1942) 156; Brasiello, Studi Kaser, Fscltr Knsclrokrr 1 (1939) 465.
Fcrrara 1 (1943) ; M. Kaser, Eigrntulrt trrtd Bcsitz irn
nltercrt rotrt. R., 1943; E. Weiss, Zzp~cil3ritrtrgc sur Lchre
~ ~A uyzantine
~ jurist ~ the fifthi century, ~
of
votn grtciltcn Eigcntrclrr, Prag~iiatciaitrs Akadrrnias Athc- probably a I ' in the~ law school
~ in Beirut.
~ ~ ~
non 14, fasc. 3, 1948; Monier, S t Solassi, 1948, 357; B. Kubler, R E 5, 1521.
Biondi, LC serviti prcdinli, 1946, 58; F. de Zulueta, Digest Domus. A house. The house where one is livinc is
u
41, 1 and 2 (translatiotr and co~ni~irrttary) 2nd ed. 1950; considered "his most secure shelter and retreat"
E. Levy, IVcst Rowtczrr C.'lrl!lar Loto, 1951 ( p a s s i n $ ) ; P.
Voci, Jlodi di acqrlisto di propricttj ( C o r s o ) , Milan, 1952. (D. 2.4.18). Therefore summons to a trial (in ilrs
CUM, EXCEPTAE PERSONAE, MODUS DONATIONIS, REVO- Donatio inter vivos. See DONATIO MORTIS CAUSA.
DONATIONIS, and the following items. It was effective after the donor's death. The dona-
Leonhard, R E 5; Baudry, D S 2; Ascoli, N D I 5 ; Ricco-
bono, Mhl Girard 2 (1912) 415; idcin, Z S S 34 (1913) 159; tion was invalidated if the donee died when the donor
Perozzi, Scr giur. 2 (1948, ex 1897) 655; J. Stock, Zum was still living. Donations made by a man seriously
Begriff der donatio, 1932; A. Ascoli, Trattato delle dona- ill or in a time of a particular danger, might expressly
zioni, 2nd ed. 1935; Bussi, La donazione, in CristDirPriv, he connected with the condition that thev become void
1935; H . Kriiger, Z S S 60 (1940) 80; Arangio-Ruiz, F I R
3 (1943) nos. 93 ff. ; B. Biondi, Successione testamentaria,
if the donor recovered or remained safe. A donatio
1943, 631; idem, Scr Fcrrini 1 (Univ. Sacro Cuore, 1947) wzortis causa has a similar function as a legacy. It
102 (Bibl.) ; J. R. LCvy, R I D A 3 ( = M i l Dc Visscher 2, differs from the latter in that it is not made in a
1949) 91 ; Archi, St S o l a z i , 1948, 740 ; idem, La donazione, testament. In the later development it was assimi-
1950; E. Levy, West Roman Vulgar Law, 1951, 137. lated to the legacy in many respects and some rules
Donatio ante nuptias. A gift given to the fiancCe by governing the law of legacies were extended to
the fianck.. If marriage did not follow, the gift could donatio mortis causa. Ant. donatio inter vivos, which
not be claimed back unless it was made under such is effective when the donor atid the donee are alive.-
condition. In Justinian's law such condition is self- D. 39.6; C. 8.56.-See DONATIO, REVOCARE DONATI-
understood. Justinian's predecessor, Justinus, per- ONEM.
mitted donations between spouses which under classi- E. F. Bruck, Schenkung fur den Todesfall, 1909; F . Senn,
cal law were forbidden (see DONATIO INTER VIRUM Etudes sur le droit des obligations, 1. La donation 13 cause
ET U X O R E. ~ S
) uch donations (donatio Propter nup- de mort, 1914; Haymann, Z S S 38 (1918) 209; B. Biondi,
tias) were considered a counterpart to the dowry AnPer 1914, 188 ; idem, Successione testamentaria, 1943,
703.
and subject to analogous rules. Hence the name
antipherna ( = counterdowry). The provisions con- Donatio perfecta. A gift is accomplished (and conse-
cerning the restitution of a donatio propter nuptius quently cannot be invalidated) when the thing pre-
in the case of divorce or of the husband's death were sented entered irrevocably into the patrimony of the
equally applied as in the case of a dowry.-C. 5.3 ; 14. donee, as, for instance, when a res mancipi was trans-
-See wS, COLLATIO DONATIONIS ANTE NUPTIAS. ferred by wzancipatio or in iure cessio, or a res nec
Holldack, Fg Guterbock, 1910, 505 ; Scherillo, RStDIt 2, mancipi was delivered over to the donee. Generally
3 (1929, 1930) ; F. Brandileone, Scritti 1 (1931) 117 ; a donatio is considered perfecta when the donor had
Vismara, CristDirPriv, 1935 ; Vaccari, CentCodPav, 1933, no action for demanding back the gift of which the
251; L. F. Re, De donationibus ante nuptias, Rome, 1935; donor had acquired full ownership.
L. Anne, Le rite de fian~ailleset la donation pour cause de
marriage sous le Bas-Empire, Louvain, 1941; L. Caes, Le B. Biondi, Successione testamentaria, 1943, 641 ; S. di
status juridique de la sponsalicia largitas, Courtrai; 1949. Paola, D . m. c., (Catania, 1950).
Donatio inter virum e t uxorem. A gift made by the Donatio propter nuptias. See DONATIO A N T E NUP-
husband tq his wife or vice versa. They were origi- TIAS, ANTIPHERNA.-C.5.3.
nally valid and not subject to the restrictions of the Donatio sub modo. A donation in which the donor
LEX C I N C I A since the spouses belonged to the category imposed on the donee a certain performance (for
of persons exempt from the restrictions of the statute instance, the erection of a monument in his honor).
(personae exceptae) . Such donations were later The term tvlodus was unknown to the classical lan-
prohibited. The prohibition was sanctioned by the guage in such connection. The beneficiary was only
legislation of Augustus who seemingly confirmed morally obliged to fulfill the donor's wish, unless it
what customary law had introduced before (moribus was expressed in the form of a condition ("si . . .")
receptuwz est). An oration of the emperors Severus of the validity of the donatio or the donee assumed
and Caracalla restored the validity of such donations the pertinent duty by a stipulatio. Imperial and
in A.D. 206 in case of the donor's death before that of Justinian's legislation gave the donor and his heirs
the other spouse if the marriage was still existing at means to enforce the fulfillment of the modus or to
the time of his death.-D. 24.1; C. 5.16.-See RE- annul the donation.-C. 8.54.-See NEGOTIUM M I X -
TENTIONES DOTALES. T U M . MODUS.
444 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
F. Haymann, Schenkung unter einer Auflage, 1905 ; Schulz, the questions connected with the restitution. The
Fscltr Zitelmann, 1923; Giffard, A C D R , Roma, 2 (1935) rules concerning the restitution made a distinction as
135; B. Biondi, Successio?te testamentaria, 1943, 710; G.
Wesenberg, Vertrage zu Gunsten Dritter, 1949, 29. to whether the marriage came to an end by the death
Donativum. A donation in money given to soldiers of one of the consorts or by divorce, and, in case of
by the emperor on special occasions ( a triumph, ac- divorce whether the husband or the wife was at fault.
cession to the throne, birthday). The husband was granted the BENEFICIUM COMPE-
TENTIAE and had the right to keep some parts of the
Fiebiger, RE 5.
dowry for various reasons (see RETENTIONES, IM-
Donator. See DONATIO.
PENSAE DOTALES).Justinian's law introduced impor-
Donum. See DONARE, DONATIO.
tant reforms. The problem of the husband's rights
Dorotheus. A law professor in Beirut in Justinian's over the res dotales was solved simply by granting
time. H e was a member of the commission which him only,.an usufruct; the actio rei uxoriae was de-
compiled the Digest and the second edition of Jus- clai-ed all actio bonae fidei.--D. 23.3 ; 4 ; 5 ; 24.3;
tinian's Code. Together with Theophilus he edited 25.1; C. 5.12; 13; 14; 15; 1 8 ; 19; 20; 22; 23; 7.74.-
the Institutes (see I N S T I T U T I N ~ N E S IUSTINIANI)
as a See C O L L A T I ~DOTIS,D ATIO DOTIS,D ICTIO DOTIS,PRO-
part of the emperor's legislative work. H e wrote a MISS10 DOTIS, FAVOR DOTIS, BENEFICIUM COMPETEN-
summary ( i n d e x ) of the Digest. TI$E, CONDICTIO CAUSA DATA, CONDICTIO S I N E CAUSA,
Jors, R E 5, 1572, no. 22.
I N S T R U M E N T U M DOTALE, I M P E N S A E DOTALES, EDIC-
Dos. A dowry, i.e., goods given to the bridegroom by T U M DE ALTERUTRO, RETEXTIONES DOTALES, USUCAPIO
the bride or somebody else, primarily her father, for PRO DOTE,and the following items.
her, in view of the marriage to be concluded. Syn. Leonhard, R E 5 ; Baudry, D S 2 ; Sacchi, N D I 5 ; Berger,
res uxoria. Normally the dowry was bestowed be- OCD 540 ; S. Solazzi, Rcstituzione della dote, 1899 ; Gra-
fore the conclusion of the marriage, but it could also denwitz, M i l Ghrardin, 1907, 283; P. Noailles, L'inaliena-
be given afterwards. According to the classical law biliti dotale ( A n n . Univ. Grenoble) 1919 ; ,Biondi, AnPal
7 (1920) 179; L. Tripiccione, L'actio rei uxoriae e l'actio
the husband was the legal owner of the dowry; he e x stipulatu nella restitu,-ione della dote, 1920; Capocci,
was, however, limited in the disposal since it was B I D R 37 (1928) 139; Grosso, R I S G 3 (1928) 39;
meant as a contribution to the maintenance of the Lkmaire, M i l Fournier, 1929; Stella-hlaranca, AnBari,
common household and had to be returned at the end 1928/I, 1929/I; Riccobono, T R 9 (1929) 23; Arnb, S t
of the marriage to the wife, her heir, or another per- Bonfante 1 (1930) 81 ; Albertario, Studi 1 (1933) 281
(several articles) ; Naber, S t Riccobono, 3 (1936) 231 ;
son. The husband's ownership was therefore rather J. Sontis, Digestensumme des. Anonymus, 1. Dotalrecht,
formal which found its expression in the opinion that 1937; Lauria, A N a p 58 (1937) 219; C. At hlaschi, Ccn-
the dos is only i n bonis nzariti. H e had, however, cezione naturalistica, 1937, 313 ; Castello, S D H I 4 (1938) ;
full administration of the dowry which he had to Orestano, S t Bonolis 1 (1942) 9 ; Dumont, R H D 22
(1943) 1 ; Kagan, T u l L R 20 (1946) 597; Lavaggi, A G
manage as a bonus pater falnilias and he could use 134 (1947) 24; Pfluger, Z S S 65 (1947) ; Wolff, Z S S 66
the proceeds thereof. H e could not alienate landed (1948) 31 ; Kaser, R I D A 2 (= Mbl De C'isscher 1, 1949)
property belonging to the dowry as a matter of prin- 511; Maschi, A n T r 18 (1948) 78; M. Ricca-Barberis,
ciple (see LEX I U L I A DE F U N D O DOTALI),except with La garenzia per czGione della dote, 1950.
the wife's consent. The same principle applied to th'e D o s adventicia. A dowry given for the woman not
manumission of slaves that formed part of the dowry. by her father (see DOS PROFECTICIA) but by another
The husband was liable for the value of slaves manu- person, or constituted by herself when she was sui
mitted without the wife's approval. "There is no iuris.
dowry where there is no marriage" (D. 23.3.3). Albertario, Studi 1 (1933) 283.
Hence a dowry constituted I~eforethe conclusion of D o s aestimata. See AESTIMATIO DOTIS.
a marriage was held to have been made under the D o s fundi. See I N S T R U M E N T U M FUNDI.
tacit condition that the marriage would follow ( s i D o s profecticia. A dowry given by the father of the
nuptiae fuerint secutae). The restitution of the bride or wife ( a patre profecta). When the wife
dowry could be clai~rledI)y actio e x stipulatu if the died before the husband, the father might claim the
provisions concerning the restitution were set in the dowry I~ack,I ~ u tthe husband was entitled to keep
husl~and'sstipulatio (cautio rei uxoriae) . Forn1:ess one fifth thereof for each child. Ant. DOS ADVENTICIA.
agreements regulating the ~)roblemsconnected with D o s recepticia. A tlowry which after the death of the
the restitution of the dowry, in particular in the case wife was to I)e returned to the person who had given
of a divorce, were later admitted (pactuun nuptialc, it, accortling to a stipulatory promise of the receiver.
p a c t u ~ n dotale, instrunzentunz dotale). Generally a Solazzi, S D H I 5 (1939) 223.
specific action for the recovery of the dowry lay against Dositheanum fragmentum. See F R A G M E N T U M WSI-
the husl~and (actio, iudiciuma rci uxoriae) independ- THEANUM.
ently of a particular agreement on the matter. It is Dotalis. See F U N D U S DOTALIS,I N S T R U M E N T U M DO-
not certain whether the action was bonac fidei, hut TALI:, I'ACTA DOTALIA, I M P E N S A E DOTALES, RETENTI-
the judge, no tloul)t, had to consitler e x aeqlru et hono O N E S DOTALES.
VOL.4 3, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 445
Dotare. T o give a dowry. I t was a moral duty of detnnatus), and refused to defend himself in a trial for
the head of a family to bestow a dowry upon his the execution of the judgment (actio iudicati) and
daughter (or granddaughter). T o enter a marriage to pay the judgment-debt : the creditor was authorized
without a dowry (indotata) was considered humiliat- by the praetor to "lead away" (ducere) the debtor.
ing to the woman. Clients (clientes) used to endow Leonhard, RE 4 , 2244; Humbert, D S 2 (s.v. debitoris
the daughter of their patron with a dowry. Justinian ductio) ; Pissard, Bt Girard (1912) 241.
speaks explicitly of ancient laws which held the as- Duciani. The retinue of a dux; ducianus (adj.) con-
signment of a dowry a paternuuz oficiuqn. Under his nected with office of a dux.
legislation it became a legal duty of the father and Dumtaxat. ( I n the procedural formula.) See CON-
under certain circumstances also of the mother.- DEMNATIO, TAXATIO.
See FAVOR DOTIS. D u o (or plures) rei promittendi. T w o or more debt-
G. Castelli, Intorno all'origine dell'obbligo d i d., B I D R ors owing the same sum as a whole (in solidllilz).
26 (1913, 164 = Scritti, 1923). Through the payment made by one of them the obli-
Dotis causa. A s a dowry, in order to assign a dowry. gation of the other (or others) is extinguished.
Dotis dictio. See DICTIO DOTIS. Syn. correi. Ant. duo rei stipulandi = two or more
D u a e Partes. Two-thirds. The Presence of this ma- creditors to whom one debtor owes the same sum.
jority of embers of the municipal council (ordo de- Payment made to one of the creditors releases the
curionurn) was required for the validity of its deci- debtor from his obligation to others. In obli-
sions. gations for which modern terminology created the
Dubitare (dubitatio). TO doubt. Various locutions terms "correality" and "solidarity," one object (Itna
with dubitare refer to controversial legal problems res, eadewz pecunia) is due, but there is a plurality
(dubitationis est, dubitationem recipit). Justinian of debtors or creditors. Obligatory relations in so[i-
calls attention to some controversial discussions of dLltn arise through a stipl(lntio when in the case of a
the classical jurists by using the phrase aflud vetergs plurality of creditors the debtor gives only one ans\\-er
dubitatuqn est.-See I U S CONTROVERSUM. to identical questions of all creditors, or'when in the
A. B. Schwarz, Z S S 69 ( 1 9 5 2 ) 349. case of several debtors all of them give the same
Dubius. See RES DUBIAE, PROCUL DUBIO.-D. 34.5. answer to the creditor's question. The characteristic
Ducator navis. See CUBERNATOR NAVIS, MAGISTER feature of such obligations is whole is due to
NAVIS.
every one of the creditors, and every debtor is liable
Ducatus. The rank of a DUX.
might be pronounced by the praetor when the thing Leonhard, R E 4 (s.v. duo r c i ) ; J. Kerr Wylie, S t is R
o r the slave was present before court. If the de- Lnzv, 1. Solidarity and corrmlity, Edinburgh, 1923; Bon-
fendant denied having the thing (or the slave) in his fante, S c r i t t i 3 ( 1 9 2 6 ) 209, 368, 4 ( 1 9 2 5 ) 568; Cuq, .Wdl
possession, an actio ad exhibendurn lay against him Corr~il1 ( 1 9 2 6 ) ; Collitlet, S t Albcrtorli 1 ( 1 9 3 5 ) ; G ~ O S S O ,
S t S a s 16 ( 1 9 3 8 ) 3 ; idctrz, R n C o ~ r z38 ( 1 9 4 0 ) 223 ; Albcr-
which he could not evade, this action being an nctio tario, S t Ucstn 1 ( 1 9 3 9 ) 3 ; iifciri, S t Culissr. 1939; i d ~ m .
in personam. Duci ifrbere also occurred when the 0bbligo:ioni solidali ( C o r s o ) , 1944; idem, Fschr W ~ n g e r
defendant in a civil trial had been condemned (con- 1 ( 1 9 4 3 ) 8 3 ; M . Lucifredi Peterlongo, I n t o r r ~ o all'unitd
446 ADOLF BERGER [ I R ~ N S A. M E R . PHIL. SOC.
o pluralita ti1 vir~colinclla solidarietd corttrattuale, 1941 them (they are mentioned last in 63 B.c.) although
( ~ i b l .y. 1) ; Archi, ConfCast, 1940, 241 ; idenz, SDHI 8 since the middle of the third century B.C. the plebeian
( 1942) 199 ; idem, Obbligasiorzi solidali (Corso), 1949.
tribunes took cases of prrdrrcllio under their juris-
Duodecim tabulae. See LEX DUODECIM TABULARUM. diction.
Duovirales (duoviralicii). Persons who in a colony Liebenam, R E 5, 1799.
or i~zlrnicipitrirzoccupied the post of a duovir. Duoviri quinquennales. Duoviri in nlunicipalities and
Duoviratus (duumviratus). The office of a duovir. colonies, elected once in five years and charged with
Duoviri (duumviri). Local magistrates in Rome, the census of the
Italy and the provinces with varied functions. The ~ ~sacris faciundis.
~ ~ priests,
i originally
~ i (un-
two
principle of collegiality was observed in this magis- der the kings, later decetnz,iri sacris faciundis,
tracy too, since there were always two duoviri at least. and fifteen, quindeci,n&ri sacris jaciundis) whose
-See DECURIONES, and the following items. particular function was to take care of, and inter-
Liebenaml RE 5 ; ns '; Anon 8 ND1 s; pret the Sibillitle books of oracles (lihri Sib3rllini) .-
nielli, DE 2.
See LUDI SAECULARES.
Duoviri aedi dedicandae. Extraordinary magistrates Bloch, DS 2, 426; Boyce, TAmPhilolAs 69 (1938) 161.
who according to a decree of the senate, had t o per-
Duoviri viis extra urbem purgandis. Lower magis-
form the dedication of a pul~licarea to a deity for the
trates charged with the iiiaintenance of the roads
construction of a temple, or tlie dedication of a
outside of Rome. They belongetl to the group of
temple already constructed. rl person who as a
VIGINTISEXVIRI and were subordinate to the aediles.
nlagistrate erected a teii~ple at his own expenses
Duplae (sc. pecuniae) stipulatio. See STIPULATIO
might be later appointed a duovir aedi dedicandae in
DUPLAE.
order to dedicate it when he was no longer in office.
Liebenam, RE 5, 1801 ; De Ruggiero, DE 1, 165.
Duplex dominiurn. See D o a , N , c w
Duplex iudicium. See IUDICIA DUPLICIA.
Duoviri aedi locandae. Two magistrates appointed Duplicatio. See REPLICATIO.There is a confusion of
for the construction of a ten11)le, if the matter was tern,inology in the sources. \vhat ~~i~~ calls dupli-
not n~anagedby a higher magistrate (a consul, prae- catio (an objection made by the defendant to the
tor, or censor). Sometimes they were identical with replicafio) is called by Ulpian triplicaho
the duoviri aedae dedicandae.
Liebenam, R E 5, 1802.
which, however, to Gaius is the plaintiff's objection
to the duplicatio of the defendant.
Duoviri aediles. Two municipal officials with func- Duploma. See
tions similar to those of the aediles in Rome. They Duplum. Double, Actiones in dupluvfi= actions in
had the right to impose fines.-See ~ I U L T A . which the defendant is condemned to pay double
Kubitschek, RE 1, 460; De Ruggiero, DE 1, 244.
damages or price paid by the plaintiff when he pur-
Duoviri iuri dicundo. Heads of the municipal admin- chased the object in dispute.-see ACTIoNEs I N SIM-
istration and the highest judicial magistrates in Italian PLUM,INFITIATIO, REVOCATIO I N DUPLUM, STII,ULATIO
and provincial cities. Together with the DUOVIRI DUPLAE, USURAE ULTRA DUPLUM.
church, or that dedicated to that archangel or martyr Edicere. T o make known by public announcement
respectively.-C. 1.2; 12.-See CHRISTIANI, EPISCO-
( publice, publicitus). For the praetor's announce-
PUS, OECONOMUS ECCLESIAE, PIAE CAUSAE, MINISTER, ments the phrase praetor edicit is used. With re-
CONFUGERE AD ECCLESIAM.
gard to private persons edicere = to make a promise
G. Pfannmiiller, Die kirchliche Gesetzgebung Justinians, publicly, see INDICIUM.
1902; W . K. Boyd, The Ecclesiastical Edicts of the Theo- Edicta Augusti ad Cyrenenses. Five edicts issued by
dosian Code, New York, 1905; A. Knecht, System des Augustus and published in Cyrene between 7 and 4
justinianischen Vermiigensrechts, 1905; A. S. Alivisatos, B.C. They are preserved in an inscription discovered
Die kirchliche Gesetzgebung Justinians, 1913; Roberti, St
Zanzucchi, 1927, 89; Savagnone, Studi sul dir. rom. ec- there in 1926. The edicts, written in Greek, deal with
clesiastic~,AnPal 14 (1930) ; Steinwenter, Z S S , KanAbt various matters of criminal and civil procedure (ac-
50 (1930) ; P. G . Smith, The Church in the Rom. Empire, tions between Greeks should be brought before Greek
1932 ; G. Kriiger, Die Rechtsstellung der vorjustinianischen judges unless the defendant preferred judges of
Kirche, 1935; P. W. Duff, Personality in R . Law, 1938,
174; G. Ferrari dalle Spade, Immunitd ecclesiastiche, Roman origin), with public charges (ntunera) of
AVen 99 (1939-1940) ; G . Bovini, La proprietci ecclesiastics Roman citizens, and other matters. The fifth edict
la condizione giuridica della Chiesa, 1949; Le Clercq, known as a senatusconsult concerning extortion (rrpe-
Dictionnaire de dr. canon. 4 (1947) 654. tundae, of 4 B.c.), see ~ E N A T U ~ C ~ N ~ U L TCALVIST-
UM
Ecclesiasticus. (Adj.) Connected with the Church ANUM. The Augustan edicts are of great importance
(res, praedia, ius, dominium, negotia, canones). because they reveal the features of the earliest im-
Ecclesiasticus. (Noun.) A person employed in the perial edicts (see EDICTA IMPERATORUM) issued for
administration of Church property, a Church em- the provinces.
ployee.-See PRIVILEGIUM FORI. Steinwenter, R E Suppl. 5, 352; Radermacher, Anzeiger
Ecloge. (The full Greek title is Ecloge ton nomon.) Akad. Wien, 1928, 69; Stroux and Wenger, ABay,;Z W 34
A selection of laws. It is a Byzantine compilation of (1928) 2. Abhandlung; v. Premerstein, Z S S 51 (1931,
Bibl.) ; Riccobono, FIR 1' (1941) no. 68 (Bibl.) ; Momi-
excerpts from Justinian's legislative work and con- gliano, O C D 250; Last, J R S 1945, 93; F. De Visscher,
stitutions of later Byzantine emperors, written in Les kdits BAuguste, Louvain, 1940; idem, hrouvelles ktudes,
Greek, and divided into eighteen titles. The work 1949, 111; Oliver, Memoirs Amer. Acad. Rome 19 (1949)
was prepared on the initiative of the emperor Leo the 105.
Isaurian and his son, Constantine Copronymos, about Edicta imperatorum (principum). Edicts issued by
the middle of the eighth century. Several private the emperors, containing general legal norms laid
compilations followed in later centuries, composed in down both for officials and for private citizens. The
a similar manner, for the use of practitioners, such as edicta are based on the ius edicendi of the emperor
Ecloge privata, Ecloge privata aucta, Ecloge ad Pro- which resulted from his imperium proconsulare. Un-
chiron mutata (early twelfth century) in which the like the edicts of the magistrates (see EDICTA MAGIS-
ADOLF BERGER
TRATUUXI), which had only temporary validity the Edictalis bonorum possessio. See BONORUM POS-
etlirtn impemtorum seem to have had unlimited valid- S E S S DECRETALIS.
~ ~
ity. They were issued for one or more provinces or Edictalis lex. ,$ term which some late emperors (from
cities and were introtlucetl wit11 the formula: im- the fifth century 011) and Justinian applied to their
perator die-it ("the Eml)eror says") .--See CONSTI- enactments when pro~~lulgating them ("lzacc rdictalis
TUTIONES PRIXCIPI-~~.-C. 1.13. 1r.r" ) .
Kipp. R E 5, 1947; Haberleitl~r~er, P/tilolog~ts98 (1909) 68; Edictum. Either the whole edict publishetl I)y the
E. L\'eiss, S t . su rorn. I\'rrlrtsqrrclleit. 1914, 84, 119;
LVilcken, Z S S 1 2 (1922) 132 ; Riccobono, F I R 1' (1941) magistrate on the alb~umwhen he assumed his office
no. 67 ff.; Orestano, R I D R 44 (1937) 219. or a single clause thereof. A magisterial edict was
Edicta Iustiniani. Thirteen Justinian's constitutions one year's law (1e.r nnnzta) since the magistrate was
preserved as an appendix in one of the two manu- only one year in office.-See ~ ~ A G I S T R A TEDICTA
US,
scripts of the collection of 168 Novels of the emperor, MAGISTRATUUM, EDICTUM TRALATICIUM, I U S EDI-
see NOVELLAE J U S T I N I A N I . Only ten of them were CENDI, CLAUSULA, NOVA CLAUSULA.
unknown, since three (1.5.6) were preserved in the Kipp, R E 5 ; D e Ruggiero, D E 2 ; v. Schwind, Z u r Frage
other manuscript of the same collection (as nos. dcr Pltblikatiort (1940) 49.
8.111.122). Externally the rdicta do not differ from Edictum aedilium curulium (aedilicium). The edict
the Novels; they have been called "edicta" to differ- of the ardilcs who as supervisors of the market pro-
entiate them from the Xovels proper. mulgated certain rules concerning the sale of slaves
Edition: in the Scl~oell-Kroll edition of the Novels (see and domestic animals, ant1 the liability of the seller for
NOVFLLAE 1 ~ ~ ~ 1 I i 1 . 1pp.
~ 1759-795.
) defects of the object sold. The aedilian norms were
Edicta magistratuum. Edicts issued by magistrates later extended to sales of other things.-D. 21.1.-
on the basis of their ills cdiccndi, at the beginning of See EMPTIO VENDITIO, EDICTUM DE FERIS.
their term of office, and containing rules by which H. Vincent, L C droit dcs idilcs, 1922; Senarclens, T R 4
they would conduct their judicial activity "in order to (1923) 384; idciit, R H D 6 (1927) 385.
make the citizens know what law they would apply Edictum Augusti d e aquaeductu Venafrano. (Be-
in the jurisdiction" (D. 1.2.2.10). See I U S EDICENDI. tween 18 and 11 B.c.) An edict by Augustus con-
The right to issue edicts was held by ionsuls, prae- cerning the aqueduct in Venafrum.
tors, dictators, aedils, quaestors, censors. plebeian Edition: Riccobono, F I R l 2 (1941) no. 67 (Bibl.).
tribunes; in n~unicipalitiesby dltoviri and quaffnor- Edictum breve. Xot a technical term; a brief edict
viri, in the provinces by governors. T h e custom issued with regard to another legal provision ( a
of issuing edicts was also followed by the prefects in
statute).
imperial times. Of greatest importance in the devel- H . Kruger, Z S S 37 (1916) 303.
opment of Roman law were the edicts of the praetors
Edictum Carbonianum. See BONORUM POSSESSIO EX
and aedils. The creation of the ilrs Izonorari~41ttw as
CARBONIANO EDICTO.
their work. There is no doubt, however, that the
real authors of most praetorian edicts were the jurists, Edictum censorum. Against Latin rhetoricians (92
acting in their capacity as legal advisers of the magis- B.c.) I t is known from literary sources.
trates and as initiators of new forms of action and Riccobono, F I R 1' (1941) no. 52.
creative ideas in daily legal life.-See IUS HONORA- Edictum Constantini d e accusationibus. (Between
RIUM, IUS PRAETORIUM. IUS EDICEKDI, EDICTUM AEDI- A.D. 313 and 317.) Concerned the accusation in
LIUhf, EDICTUM PRAETORIS. criminal matters. It is epigraphically preserved.
Kipp, R E 5 ; Louis-Lucas and A. Weiss, D S 2, 456. Riccobono, F I R 1' (1941) no. 94 (Bibl.).
Edicta praefectorum praetorio. Edicts issued in the Edictum d e alterutro. A section in the praetorian
later Empire by the praefecti praetorio under various edict granting a widow the right to claim restitution
names (edicta, progranlnzafa, forwtae, proecepta, prae- of her dowry after the husband's death, based either
ceptiones, conawzonitoria) . They were concerned on her legal right to the dowry or on the husband's
mostly with administrative matters. testament in which such restitution was ordered.
Mommsen, Hist. Schriftc?r, 3 (1906) 284; Zachariae (v. Lenel, Edictum3 (1927) 308.
Lingenthal) , Ar~ecdota1 (1843) 227.
~ d i k t u md e appellationibus. (Preserved on a papy-
Edicta praesidum. Edicts of the provincial governors. rus.) Deals with appeals to the emperor and settles
-See EDICTUM PROVINCIALE. some pertinent procedural rules. The author of the
E. LVeiss, Studien zu den rotit. Rechtsquellen, 1914, 71 ;
Wilcken, ZSS 43 (1921) 137. edict is unknown ( N e r o ? ) .
Riccobono, F I R 1' (1941) no. 91.
Edicta principum. See EDICTA IMPERATORUM.
Edictales. Students in the second year of law studies, Edictum de feris. A part of the aedilian edict con-
called so in pre-Justinian law schools because they cerning the liability for damages done by non do-
studied the juristic commentaries to the pretorian mestic animals (a dog, wolf, bear, panther, lion, etc.)
edict.
held by a private individual.-See FERAE.
Kubler, R E 5 ; Humbert, D S 2.
Lenel, Edictum3 (1927) 566; Scialoja, S t u d i 2 (1934) 142-
450 A D O L F BERGER [TRANS.
AMER.
PHIL. SOC.
commentary on "the provincial edict" by which we the parties appeared before the praetor, the plaintiff
must understand a typical provincial edict and not indicating exactly the action (formula) by which he
that of a specific province. T o judge from the ex- was suing his adversary. There remained a possi-
cerpts of that commentary as preserved in the Digest, bility of changing or amending the proposed formula.
we may assume that the provisions of the provincial -D. 2.13; C. 2.1.-See LITIS CONTESTATIO.
edicts were modeled on the edict in Rome. Wenger, R E 5 ; Humbert, D S 2.
F. v. Velsen, Z S S 21 (1900) ; E. Weiss, Studierr s u deli Editio instrumentorum. The introduction of written
r o m . Rechtsqurllri~, 1914, 66 ; 109 ; L. Falletti, Evolution docun~entsby the parties to a trial a s evidence either
de la jurisdictioit dtc rnagistrat provincial, 1926, 73; Rein-
muth, T h e prefectural edict, -4eggptus 18 (1938) 3 ; Buck- of the plaintiff's claini or of the defendant's denial.-
land, R H D 13 (1931) 8 2 ; F. v. Schwind, Z u r Frage der See EXHIBERE, INSTRUMENTUM.
PuDlikation, 1910, 70. Wenger, R E 5, 1966.
Edictum repentinum. An edict issued by a magistrate Editio interdicti. A preliminary act in interdictal pro-
exceptionally during his term on a specific occasion, ceedings:. analogous to the EDITIO ACTIONIS,when an
whereas the normal edict was promulgated at the time ordinary process was initiated. Edere interdictcttn
he took up his duties.-See EDICTUM PERPETUUM. also refers to the issuance of an interdict by the
Edictum successorium. The section of the praetorian praetor.-See INTERDICTUM.
edict concerning BONORUM POSSESSIO. I t contained Wenger, R E 5, 1965.
the rules about persons entitled to claim the bonorunz Editio iudicum. ( I n criminal trials, quaestiones.)
poss~ssioif the person first entitled failed to do so The selection of one hundred jurors from the panel
within the prescribed period or refused to accept the for quaestiones, proposed by the accuser for the ap-
estate. Syn. caput successorium.-D. 38.9; C. 6.16. pointment of a jury in a specific trial and communi-
-See BONORUM I'OSSESSIO INTESTATI. cated by him to the accused. From that number the
E d i c t u m Theodorici. A collection of 154 Roman legal latter might select (electio) fifty who then made up
provisions, compiled about A.D.500 by order of Theo- the jury. Later, this procedure was repeatedly modi-
doric, king of the Ostrogoths, which had to be ob- fied.-See QUAESTIONES.
served by both Roman citizens and Ostrogoths. The Editio rationum. (By a banker, argentarius.) A
excerpts were taken from the three Codes, Coden- banker was obliged to produce his books in a trial
Gregorianus, Hermogenianus and Theodosianus, from in which not only his own interests were involved but
some post-Theotlosian Novels, and from Paul's Sen- also when those of his clients were at stake and the
tcntiae. entries in the banker's book might serve to clarify
Rrassloff, IiE 5 ; Brasiello, NDI 5, 595 ; Editions : Bluhme, the legal situation.-See ARGENTARII.
Mottu~irritfaGcrmu~tiueNisforica 5 (1875) 149; Baviera, Editio rescripti. Mentioned only in the Theodosian
F I R 2' (1940) 683 ( Bihl.) .-Schupfer, A t t i Accad. Lincei, Code in connection with the summons (denuntiatio)
S e r . 4, T . 2 (1887-1888) 223; Patetta, A T o r 28 (1893)
5 5 3 : R. Paratlisi, .Ctoriu del dir. ifal. 1951, 103. in the rescript procetlure. It seems to be the modi-
Edictum tralaticium. The part of a praetor's edict fication of an imperial rescript to the adversary.
Andt, L a procbdure par rescrit, 1920, 13, 57; Fliniaux,
which he adopted from his predecessor's edict. RHD 9 (1930) 201.
\Veiss, Z S S 50 (1930) 253.
Editio secunda. The second edition of a book. Sec-
Edictum Vespasiani de privilegiis medicorum. (A.D. ond editions of juristic writings are mentioned by
74.) Epigraphically preserved; it granted physi- Justinian (Cordi 3) with the remark that in earlier
cians certain personal privileges and exemption from times they were calletl repetitu praelectio. A second
taxes (ittznzunitns) ant1 set penalties for violation of edition oi a monograph by Paul is noted in a later
the enactment. Among the beneficiaries of the edict source (Frug. V n t . 247). There is no doubt that
were also the teachers (paideutai = magistri, prae- that some jurists have themselves prepared second
ceptorcs). Similarly, a rescript by the emperor Domi- editions. C)n the other hand we know that a few
tian (A.L). 93-94) against certain abuses (avaritiu = first editions (editio prima) of juristic works were
greediness) of physicians inclutle(1 praeccptores as reedited i)y other classical jurists, usually with a com-
well.-See MEDICI. mentary or loose renlarks (NOTAE). There is, how-
Edition: Riccohono, F I R 1' (1941), nos. 73, 77 (Bibl.).-
S. Riccol)or~o.Jr.. ./lrtI'al 17 (1937) 50. ever, a tendency in the recent liomanistic literature
to ascril~eto early ~)ostclassicaltimes (end of the third
Editio actionis. The nutification by the plaintiff to and the firat decades of the fourth century) a very
the defendant of the action he wanted to bring against vivid activity in anonymous reediting of classical juris-
the latter. First it hat1 to I)e done extrajudicially. tic works which ever1 if ~)erhapsacceptable in very few
This cditio had a preparatory character to let the instances. I~artllycan I)e proved and seems very un-
defendant know the matter for which, and the type likely when assumetl to si~chextent as has been by
of action with which, he will be sued. This offered some writers.
him the opportttnity of settling the controversy before F. Schulz, t l i s t o r y of K . Iegirl scietrce, 1946, 141, and
it came to trial. .4 second cditio iollowed when both p ~ r s s i ? ~G~.; R ~ C C O ~ OLinrarn~~rtti
IIO. dellt~storicr delle fo~rti,
VOL.43, PT. 2 , 19531 EXCYCLOPEDIC DICTIONARY OF ROMAN LAW 45 1
1949, 208; Berger, Clas Journ 43 (1948) 440; Sciascia, Electio iudicum. See EDITIO IUDICUM.
BIDR 49-50 (1947) 431 ; H. J. Wolff, Scritti Ferrini 4 Electio legata. See LEGATUM OPTIONIS.
(Univ. Sacro Cuore, Milan, 1949) 64; idem, Roman Law
(Qklahoma, 1951) 130; idem, Fschr Schulz 2 (1951) 145; Eleganter. In a correct, fine manner. The term is
Wieacker, Z S S 67 (1950) 387; Berger, Sem 10 (1952) 95. applied to express approval of another jurist's opin-
Educare (educatio). T o educate, to rear, to bring up. ion with emphasis on the legal idea or doctrine rather
The sources deal with educare with reference to than the style. It is a favorite expression of Ulpian's.
wards (pupilli) being under the tutelage of guard- Ant. ineleganter.
ians. The term is understood in a broader sense com- Radin, LQR 46 (1930) 311 ; Schulz, History of R. legal
science, 1946, 335; Sciascia, BIDR 51-52 (1948) 372.
prising not only the care for mental development but
also nourishment and the necessities of physical de- Elementa. Justinian called his Institutes "Institzt-
velopment. Supervision of the pertinent duties of tiones sive elementa" and in the introductory consti-
the guardians was exercised by the tutelary authori- tution by which the work was promulgated (Impern-
ties.-D. 27.2 ; C. 5.49.-See TUTELA. toriam, c. 4) he denotes the work as "the first
Effectus. The result, consequence of a legal trans- elements of the whole of legal science (totius legitimae
action or of a trial. The term often appears in inter- scientiae prima elementa) ."
polated texts. Elidere. I n a civil trial, to repel the plaintiff's claim
Volterra, S t Ratti, 1933, 440; Guarneri-Citati, Indicd by an exceptio (exceptione) or the defendant's ex-
(1927) 32; idem, Fschr Koschaker 1 (1939) 133. ception by a REPLICATIO.
Efficax. Legally valid, efficient. Elocare. T o let out, to lease.-See LOCATIO CONDUCTIO.
Effractor. (From efringere.) A burglar.-D. 47.18. Elogium. An additional clause. Elogium is a testa-
-See c u s ~ o s . mentary clause, particularly when someone is disin-
Effusa. What has been poured out from a dwelling.- herited. For elogium in the aedilian edict, see
D. 9.3.-See ACTIO DE DEIECTIS ET EFFUSIS. IUMENTUM.In criminal affairs clogilrIlz is the report
Egestas. Poverty, indigence. I t served as a basis for transmitted to the competent military or civil author-
exemption from certain duties (guardianship, public ity about a criminal who has been arrested and ques-
charges, and the like). I t could also be the cause of tioned by the official who seized him.
the dissolution of a partnership. Lafaye, DS 2 ; Braschi, DE 2.
Albertario, Studi 5 (1937) 435. Elogium ultimum. A testament.
Egredi. T o surpass, exceed, for instance, the -terms Elugere virum. T o mourn the husband.-See LUCTUS.
fixed in an agreement (e.g., a mandate) ; with refer- Emancipatio. The voluntary release of a son or
ence to the condenznatio in the procedural formula = daughter from paternal power by the father. Fol-
to go beyond the limits fixed therein. lowing a rule established by the Twelve Tables, "if
Egregiatus. The dignity of a vir egregius.-See the a father sold his son three times, the son shall be free
following item. from his father" (Gaius, Inst. 1.132 ; Epit. Ulp. 10.1),
Egregius vir. The honorary title of an imperial pro- a man would sell his son through mancipatio to a
curator of equestrian rank. reliable person under fiduciary agreement that the
Seeck, RE 5 ; 0. Hirschfeld, Kleine Schriften, 1913, 652. latter would manumit him three times. Onlv after
Eierare iudicem. See FERRE IUDICEM. the third manumission did the son become free from
Eiuratio. A declaration made by a magistrate under paternal power because after each of the first two he
oath at the end of his term to the effect that during returned to the patria potestas. Alternatively, the
his service he had observed the laws. Eiuratio magis- trustee could remancipate the son directly to the
tratus = the renuntiation of a magistracy. father; after the third re~nancipatio,the son did not
Neumann, RE 1 , 25; Kubler, RE 14, 416; Staedler, Z S S come under patria potestas but became the father's
61 (1941) 81. persona in mancipio (see MANCIPIUM) to be freed
Eiusmodi. Of such a kind. Syn. huiusmodi. The latter by him through a simple ntanult~issio. A third re-
word is preferred by Justinian in his constitutions, mancipatio by the trustee was necessary, because
where it appears several hundred times while eius- otherwise the trustee would have acquired certain
~ n o d is
i used by him only once. Huius~izodiis, there- rights of succession and of guardianship over the son
fore, considered as a criterion of interpolation. which were generally not intended by the parties
Guameri-Citati, IndiceZ (1927) 44. involved. With regard to daughters and grandsons.
Electio. The right of the debtor to choose among the one mancipatio by the head of the family sufficed.
alternative things he owes if such a right was reserved The emancipated member leaves the family and be-
to him in the pertinent agreement. Similarly, the comes a head of a family himself. In Justinian's law,
creditor (or a legatee) might have been entitled to emancipatio is performed hy a simple declaration
make the choice anlong alternative things owed (or before a competent official.--D. 1.7; C. 4.13; 8.48.-
I~equeathed)to him.-D. 33.5.-See OPTIO, LEGATUM See DIVORTIUM, LEX A N A S T A S I A N A , FIDUCIA R E M A N -
OPTIONIS. CIPATIONIS CAUSA. INGRATUS. P A R E N S MANUMISSOR.
Grosso, RDCom 38 (1910) 225. Leonhard, RE 5 ; Kreller. R E 184, 1456; Baudry, DS 2 ;
452 ADOLF BERGER [TRANS. AMBR. PIIIL.
soc.
Anon., JVDI 5 ; Berger, OCD; hloriaud, La simple fnmille the rent (canon, pensio) was pnitl. Untler certain
pa~urnelle,1910, 14; >litteis, Lot. Emoncipatio~csurkui~de, circumstances, the land returned to the owner (as in
Festsclcrift Lauhn (Univ. 1-eipzig, 1911) ; Solazzi, .4G 86
(1921) 168; H. Lkvy-Bruhl, Novelles etudes (1947) 80. the case of the death of the cmphytelrta without :in
Emansio. See EMANSOR. heir, non-l~aymentof the rent or taxes for three years,
Emansor. A soldier who is absent without leave or lapse of time if a term was fixed in the original agree-
who exceeds his furlough, but who intends to return ment, contractits cnzphyteuseos, which was a specific
to his unit unlike a deserter who quits for good or contract and neither an ordinary lease nor a sale.
is absent for a longer time. Punishment for enzansio The rights of the clnphyteuta (ius emphyteuticarilr~n)
depended upon the reason for the absence. I n certain embraced the full use of the land and its products;
cases (illness, affection for parents and relatives, they were alienable and transferable by testament or
pursuit of n fugitive slave) the culprit was pardoned. ab intestato.-C. 4.66 ; 11.63.-See AGER VECTIGALIS,
IUS I N AGRO VECTIGALI, CANON.
Syn. rclrlansou. Berger, OCD 314; Mitteis, ASticltsGW 22 (1901) ; Mac-
Emblemata Triboniani. A term used in Romanistic chioro, A G 75 (1905) 148; G. Baviera, S c r giuridici 1
literature for interpolations by Justinian's compilers (1909) 189; P. Bonfante, S c r giur. 3 (1924) 141 ; W.
in texts taken from juristic writings of the classical Kamps, Recucils de la Sociith J. Bodin, 3 (1938) 67;
period or in imperial constitutions.-See DIGESTA, Johnston, Utah. Toronto LJ 3 (1940) 323; A. H a j j e ,
Etudes sur la location d long terme, 1926; E. Levy, W e s t
TRIBOKIANUS, GLOSSAE. Roqnan Vulgar Law, 1951, 43, 90; S. 0. Cascio, AnPal
F o r bibl. see General Bibliography, ch. XIII. 22 (1951) 1.
Emendare. T o correct, amend. I t refers to legal re- Emphyteuta. See the foregoing item.
forms by which earlier law was improved, in par- Emphyteuticarius (emphyteuticus). Encumbered
ticular to the activity of the praetors in this regard. (ager fundus, praediut5t) or connected with ewtphy-
-Syn. corrigeue. teusis (contractus, ius, canon).
Emendare moram. See MORA. Emptio venditio. A purchase and sale, i.e., a contract
Emendatio. A punishment, chastisement, especially by which a thing is exchanged for money. The ter-
correction administered by a father on the strength minology e~lzptiozenditio indicates the two elements
of his paternal power (etiendatio domestica) or by a of the contract: an enzere by the buyer (emptor) and
master to his slaves. See CORRECTIO. Imperial legis- a vendere by the seller (venditor). The Roman sale
lation of the fourth century restricted the formerly was a consensual contract concluded when the parties
unlimited power of the father and master.-C. 9.14; by simple consent (nudo consensu) agreed upon the
thing to be sold and the price (pretium) to be paid
Emere. See EMPTIO. therefor. without further formalitv. The sale con-
Emeritum. The pension of a soldier who had served tract itself did not transfer ownership of the thing
out his time (ewzeritlts, veterantrs) . sold to the buyer. T o accomplish that another legal
Emeritus. See the foregoing item. Syn. VETERANUS. act was necessary (mancipatio, in iure cessio, tra-
Lacour-Gayet, D S 2. ditio). The vendor had only to hand over the thing
Eminentia. See E M I N E N T I S S I M U S VIR. to the buyer to make the latter possess and enjoy it
Eminentissimus vir. A n honorary title of the prae- peacefully (ut rewz emptori habere liceat). The buyer
fecttts praetouio, and in third century after Christ had to pay the price in money, either immediately or
also of the praefectzts vigilum. The office of the later, according to the agreement. The exchange of
puaefectus praetorio is addressed by the emperor with one thin^" for another is not a sale, but a PERJIUTATIO.
the attribute eltzinentia. Any thing may be the object of a sale (merx) except
Emittere. (With regard to written documents.) 'To things excluded from private transactions (res cuius
write down and sign a document (instruwzentum, com~~zerciumnon est) . Non-corporeal things ( a
cautionem) or a letter (epistulam, litteras) in which servitude, an usufruct) may be sold, as well as future
the writer makes a legally important statement. things (see EMPTIO SPEI, EMPTIO REI SPERATAE).
Emittere rescripturn. T o issue a rescript. The price must be fixed in an unequivocal way (pre-
Emolumentum. A n advantage, profit, primarily with tiutn certum) and be real, i.e., corresponding to the
regard to successional benefits (inheritance, legacies, true value of the thing (verzitn), not fictitious (e.g.,
collatio, Falcidian quarter). The term is common in as a device to cover a ~rohibiteddonation). Sale was
the language of the imperial chancery and in Jus- a contract bonae jidei ; the pertinent actions were actio
tinian's constitutions. venditi ( e x vendito) against the buyer for payment
Emphyteusis. Long-term lease of an imperial domain of the price and actio evvcpti (ex enzpto) against the
or of private land for a rental in kind. The fore- seller if he did not fulfill his obligations, failed to de-
runner of this institution was the ius in agro vectigali. liver the thing sold, for example, or to take care of it
The emphyteusis gave the lease-holder ( = emphy- (custodia) in the period between the conclusion of the
teuta) rights similar to those of a proprietor, al- sale and delivery so that the thing perished or de-
though the real owner remained the person to whom teriorated. The seller was not liable for accident
VOL.43, PT. 2 , 19531 ENCYCLOPEDIC DICTI( NARY OF ROMAN LAW 453
(casus) . See PERICULUM REI VENDITAE. Special (1934) ; idcm, Nuovi studi sul trasferimento della pro-
rules settled the liability of the vendor when the pricta nella compravendita, 1937; Meylan, La vente, An-
nales de droit et de scicnccs polit. dc Louvain, 1938, 447;
buyer was later evicted from the thing by a third C. Longo, B I D R 45 (1938) ; ArnG, A T o r 74 (1939) 570;
person. See EVICTIO,STIPULATIO DUPLAE, War- Scarlata-Fazio, R I S G 1939, 216; v. Lubtow, Fschr Ko-
ranty against hidden defects in the thing sold was schaker 2 (1939) 113; Arangio-Ruiz, ibid. 141 ; F. De
originally stipulated expressly by the seller; besides, Zulueta, The Roman Law of Sale, 1945; Pfluger, Z S S
65 (1947) 205; Roussier, Novafion de Pobligation du
the actio empti, as a bonae jidei actio, gave the oppor- z~endeur,R H D 1948, 189; W . Flume, Eigenschaftsirrtum
tunity to take into consideration defects fraudulently und Kauf, 1948; Meylan, Scr Ferrini 4 (Univ. Sacro
concealed by the seller. The edict of the aediles cu- Cuore, Milan, 1949) 176; Coing, S c m 8 (1950) 6 ; Pezzana,
rules, as the supervisors of the markets established A G 140 (1951) 53; E. Levy, W e s t Roman Vulgar Law,
particular provisions for the sale of slaves and do- 1951, 127; Pringsheim, Actio quanti minoris, Z S S 69
(1952) 234; V. Arangio-Ruiz, La compravendita in dir.
mestic animals. Above all, the seller had to inform rom. 1 (Lezioni) 1952.
the buyer of any defect or disease that was not ap- Emptio ab invito. Used of an act of a magistrate by
parent to the buyer. H e was liable for all allegations which an individual is compelled to sell his land to
(DICTAET PROMISSA) he may have made about special the state for the sake of public utility (construction
qualities of the slave or animal or the lack of secret of a n aqueduct or a road) in return for a reasonable
defects (even those unknown to himself). Two ac- compensation. The term "expropriation" is unknown
tions lay against him, either the actio redhibitoria for in juristic Latin.-See PUBLICATIO.
the rescission of the sale (the seller being obliged to Jones, Expropriation in R . law, L Q R 45 (1929) ; F. M.
return the price and the buyer to restore the thing De Robertis, La espropriazione pcr pubblica utilita, 1936;
with accessories) or the actio quanti minoris (named U . Niccolini, La proprietd, il pritzcipe e l'espropriazione,
also aesti~~zatoria) by which the buyer claimed resti- 1940; Brasiello, B I D R 44 (1937) 475; idcm, Estensione
e limiti della proprietd (Corso, 1941) 58; De Robertis,
tution of a portion of the price paid, corresponding to AnBari 7-8 (1947) 153.
the lesser value. The principles of the aedilian edict
were later extended to all kinds of sale. Throughout Emptio bonorum. See B O N O R U ~EMPTIO.
~~
the classical period no written document was required Emptio familiae. See FAMILIAE EMPTOR.
for the validity of a sale contract. When made, it Emptio hereditatis. The inheritance of a living per-
served only for purposes of evidence. Justinian or- son or a non-existent person could not be the object
dered some formalities for written sales, when accord- of a sale unlike the inheritance of a deceased person.
ing to the will of the parties, the written form was a Antoninus Pius granted the buyer of a n inheritance
requirement for the validity of the sale (instrumenturn an actio utilis against the debtors of the inheritance.
enzptionis, instrumenturn ernptionale). Until the for- -D. 18.4; C. 4.39.
malities were accomplished, with the assistance of a Vassalli, Misccllattca critica 1 (1913) ; Cugia, S t Besta 1
(1939) 514.
notary (tahellio), the parties could rescind the sale.
Emptio rei speratae. The sale of a thing which is
Many reforms in the law of sale were introduced by
expected to come into existence in the future (the
Justinian.-Inst. 3.23; D. 18.1; 18.5; 19.1; C. 4.38;
sale of a crop, an unborn child of a slave = partus
40; 44; 45 ; 49; 54; 58.-See ACTIO DE MODO AGRI,
ADDICT10 I N DIEM, ARRA, COMMISSORIA LEX, COMMO-
ancillae). The sale becomes void if the expected
thing does not materialize.
DUM, EDICTUM AEDILIUM, EXCEPT10 RE1 VENDITAE, F. De Visscher, Vente dcs choses futurcs, 1914.
PACTUM DE RETROVENDENDO, PACTUM DISPLICENTIAE,
PERFECTUS, PRETIUM, PERICULUM RE1 VENDITAE, VEN- Emptio spei. A sale of a future thing while it is quite
DITIO, LAESIO ENORMIS, USUCAPIO PRO EMPTORE, RED- uncertain whether it will come into existence at all
HIBITIO, SIMPLARIA VENDITIO, VACUA POSSESSIO. (ipsum incertuvvt rei is the object of the transaction),
Leonhard, R E 5 ; Humbert, D S 2 ; LCcrivain, D S 4, 517 e.g., fish to be caught by a fisherman in his next
(s.v. redhibitoria) ; Pugliese, N D I 5 (s.v. emptio) ; Biondi, catch. I n such a sale, the buyer takes the full risk
N D I 12,880 (s.v. vendita) ; De Medio, B I D R 16 (1904) 5 ; and the price has to be paid even if no fish are caught.
Lusignani, La responsabilitb per custodia 2 (1905) ; J. -See IACTUS RETIS.
Mackintosh, T h e Law of sale, 2nd ed. 1907; E. Rabel, Brasiello, N D I 5 ; Vassalli, AnPer 1913 (Llrliscellanea 1 ) ;
Haftung des Verkhufers wegen hlangels i m Recht, 1912; F . De Visscher, Vente des choses futures, 1914; BartoSek,
F. Pringsheim, Kauf mit fremdem Geld, 1916; H . Vincent, R I D A 2 ( = M i l De Visscher 1, 1949) 50.
Le droit des hdiles, 1922; Ferrini, Opere 3 (1929) 49; R.
Monier, hlhl Cornil 2 (1926) 137 ; idem, La garantie contre Emptio sub hasta. See SUBHASTATIO,
VENDITIO SUB
les vices cachhs, 1930; Pringsheirn, Z S S 50 (1930) ; HASTA.
Meylan, S t Bonfante 1 (1930) ; G. Longo, ibid. 3 (1930) Emptionale instrumentum. A written deed of sale.
363 ; Senarclens, ibid. 91 ; Buckland, LQR 48 (1932) 217 ;
Albertario, Studi 3 (1936) 401 ; Marianne Bussrnann, -See EMPTIO.
L'obligation de dhlivrance du vendeur, 1933 ; Pringsheim, Emptor bonae fidei. A buyer of a thing who did not
Z S S 53 (1933) 491 ; Flume, Z S S 54 (1934) 328; Beseler, know that "the thing belonged to another (than the
A C I I 1 (1935) 335; G. G. Archi, I1 trasferimento della
proprietd nella compravendita romana, 1934; Meylan, S t seller) or believed that the seller was entitled to sell
Riccobono 4 (1936) 279; Biondi, ibid. 90; Pringsheim, it" (D. 50.16.109), for instance, as a guardian o r
ibid. 313; Haymann, ibid. 341; S. Romano, AnPer 10 curator or representative of the real owner.
454 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
Emptor bonorum. See BONORUM EMPTIO. belonged to the Church.-C. 1.3; 4.-See the fore-
Emptor familiae. See FAMILIAE EMPTOR. going item.
Enantiophanes. See ANONYMUS. GCnestal, N R H D 32 (1908) 163; L. Galtier, Du rBle des
iviques dans le droit public et privi du Bas-Empire, 1913;
Enchiridium (enchiridion). An elementary handbook. Leitner, Die Stellung des Bischofs, Fschr Hertling, 1913;
h juristic writing so entitled appears in the Digest Volterra, BIDR 42 (1934) 453; Declareuil, R H D 14
under the name of Pomponius. A long excerpt (1935) 33; Masi, AG 122 (1939) 86; Mochi Onory,
thereof containing a concise outline of legal history RStDIt 4-6 (1931-1933) ; Ferrari, AVen 99, 2 (1939/40)
233.
and a survey of jurisprudence until Julian is pre-
Epistula. A private letter. "If I send you a letter,
served (not free from later alterations) as f r a g 2
in the title of the Digest 1.2 "on the origin of the it will not be yours until delivered to you,, (D.
law, all magistrates and the sequence (successio) of 41.1.65 pr.). Delivery of the letter to a secretary or
messenger of the addressee makes the latter the owner
the jurists."
Berger, R E 4A, 1907 ; Ebrard, Z S S 46 (1925) 117 ; Fel- Certain primarily
gentrHger, Symb. Friburgenses Lenel (1932) 369; Kretsch- consensual contracts (a sale, for instance) might be
mar, ZSS 59 (1939) 166; Schulz, History of R . Legal concluded by letter (per epistulam). A letter might
Science, 1946, 168; Guarino, R I D A 2 ( = M i l De Visscher also be used by a testator in order to express some
1, 1949) 402; Weiss, Z S S 67 (1950) 503. desires to his heir. It then had the legal value of a
Enucleatum ius (antiquum). Law taken from older codicil (see CODICILLI).See EPISTULA FIDEICOM-
writings. Justinian calls the law collected in the MISSARIA. An epistula might also serve for the
Digest and in his Institutes by this term. acknowledgment of a debt ; see CHIROGRAPHUM.-See
Ebrard, R I D A 3 ( = M i l De Visscher 2, 1949) 253. DIVORTIUM, MANUMISSIO PER EPISTULAM, NUNTIUS.
Epanagoge (tou nomou). A collection of legal norms -For official letters, see EPISTULAE.
written between A.D.879 and 886 at the initiative of Dziatzko, RE 3, 836 (s.v. Brief) ; L. De Sarlo, I1 docu-
the Byzantine emperor Basil the Macedonian but not mento ogge,tto di rapporti privati, 1935, 37, 128.
officially published. The compilation, built up pri- Epistula fideicommissaria. A letter by which a per-
marily on Justinian's codification, was to lead to an son imposed on his heir, testamentary or intestate, a
achievement similar to that of the BASILICA a few fideicommissum in favor of a third person.-See
decades later. A similar compilation called Epana- FIDEICOMMISSUM.
goge aucta belongs to the tenth century. Epistula traditionis. See TRADITIO CHARTAE.
Editions : Zachariae, Collectio librorum iuris Graeco- Epistulae. ( I n official matters.) Official letters written
Romani ineditorum, 1852; J . and P. Zepos, Jus Gr.-Rom. by magistrates and provincial governors to private
3 (Athens, 1931) p. 23 (Bibl., p. XIV).-For E. aucta: individuals.-C. 7.57.
Zachariae v. Lingenthal, Ius Gr.-Rom. 4 (1865) 171 ; J.
and P. Zepos, Ius Gr.-Rom. 6 (1931) 49; De Malafosse, De Ruggiero, D E 2.
Dictionnaire de dr. canonique 5 (1951) 354. Epistulae. (Of jurists.) Written legal opinions given
Epidemetica. See METATUM.-C.12.40. by prominent jurists to magistrates, other jurists, or
Episcopalis audientia. The jurisdiction of bishops private persons at their request. Some jurists edited
insofar as it was recognized by the State. Originally their epistulae in collections entitled "Epistulae"
limited to spiritual matters and disputes among ec- (Labeo, Proculus, Iavolenus, Neratius, Celsus, Afri-
clesiastics, though also practiced by the bishops with canus, Pomponius) , works similar to Quaestiones or
regard to laymen in the capacity of arbitrators, it was Responsa. Excerpts from epistulae often appear in
later extended to controversies among laymen in the Digest in their epistolary form.
Berger, R E 10, 1174.
various instances, operating concurrently with state
courts. Fluctuating imperial legislation limited or Epistulae principum. Answers of the emperor given
increased the jurisdictional competence of the bishops in a separate letter to enquirers or petitioners who
until the whole matter was settled by Justinian.- addressed themselves directly to the emperor with a
C. 1.4; Nov. 123. question or petition. The epistulae were issued by
Piacentini, N D I 1, 1154; Humbert, D S 2 ; Steinwenter, the imperial bureau AB EPISTULIS and primarily ad-
RAC 1 ; Siciliano-Villanueva, Byzantion 1 (1924) 139 ; dressed to officials.-See RESCRIPTA.
Lammeyer, Aeg 13 (1933) 193; Volterra, BIDR 42 (1934) Brassloff, R E 6 ; De Ruggiero, DE 2, 2131 ; Riccobono,
453 ; G. Vismara, E. a. 1937 (Milan) ; Steinwenter, Byzan- FIR 1' (1941) nos. 72, 74, 75, 78, 80, etc.; Lafoscade, De
tinische Zeitschrift 30 (1930) 660 ; Masi, AG 122 (1939) epistulis imperatorum, Paris, 1902 ; Haberleitner, Philo-
86; Busek, ACII 1 (1934) 451; idem, Z S S Kan. Abt. 28 logus 98 (1909).
(1939) 453; Arangio-Ruiz, FIR 3 (1943) no. 183; Vol- Epitome Gai. An abstract of Gaius' Institutes, writ-
terra, SDHI 13-14 (1948) 353.
ten in the Western Empire probably in the fifth
Episcopus. A bishop. He had full control and admin- century. It is a part of the CEX R O M A N A VISIGO-
istration of Church .property, including the right to THORUM under the title "Liber Gaii." Originally it
conclude contracts, such as leases, loans, pledges, may have served as a book for students.
emphyteuses. Property of his own acquired after Editions : Seckel-Kiibler in Huschke's Iurisprudentia ante-
consecration--except that from the next relatives- iusfiniana, 2, 2 (sixth ed. 1927) 395; Baviera, FIR 2'
VOL. 4 3 , PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 45 5
(1940) 231 ; M. Conrat, Die Enfstehung des westgothischen 509; Zwicky, Die Verwendung des Militiirs in der Ver-
Gaius, 1905; Kubler, R E 7, 504; Albertario, A C D R ~ a l t u n gder rom. Kaiserzeit, 1944, 54.
Rorna I 1933 (= Studi 5, 269) ; G. G. Archi, Epitome G., Equites legionis. Cavalrymen-no rmall y 300-
1937; Schulz, History of R. Lrgal Sciritce, 1946, 302.
attached to a legion. They were divided into ten
Epitome Iuliani. See NOVELLAE IUSTINIANI. turnzae (with 30 horsemen) and thirty decuriae.-
Epitome ton nom0.n. A private collection of laws di- See ALA,TURMA.
vided into fifty titles, probably written about A.D.930 Kubler, R E 6, 279.
in Greek, coillposed of excerpts from Justinian's codi- Equites singulares (principis, Augusti). Cavalry-
fication and later imperial enactments. The original men in the service of the emperor as his bodyguard.
title of the con~pilationis "Ecloge of laws presented Cagnat, D E 2, 789; Liebenam, R E 6, 312.
in an epitome." Ercisci (hercisci). See DIVIDERE, ACTIO FAMILIAE
Editions : Zachariae, lus Grarco-Romanum 2, 265 ; J.
and P. Zepos, lus Gr.-Rom. 4 (1931) 263.-Mortreuil, ERCISCUNDAE.
Hist du droif bvsarltirt 2 (1844)
~. 372. Ercto non cito. An ancient term for joint, not divided,
Epitome Ulpiani. See ULPIANUS, TITULI EX CORPORE ownership (familial community) .-See CONSORTIUM.
ULPIANI. Levy, Z S S 54 (1934) 276; De Zulueta, JRS 25 (1935) 19;
Solazzi, ANap 57 (1935) 126; 58 (1937) 76; E. Schlechter,
Equester. See EQUITES, AES EQUESTER, ORDO EQUESTER.
Contrat de sociktb, 1947, 196 (Bibl.) ; Beseler, Scr Ferrini
Equestris dignitas. In 'the later Empire the eques- 3 (Univ. Sacro Cuore, Milan, 1948) 281 ; Weiss, Fschr
trian rank.--C. 12.31. Schulz 1 (1951) 84.
Equites. Knights, persons of equestrian rank. Origi- Eremodicium. The unexcused absence of a party to
nally equites were cavalrymen. Horses were pro- a trial in court. In later law, the proceedings were
vided either by the state (equites equo publico) or continued in favor of the party present in spite of
bought from a special allowance (AES EQUESTRE). the absence of the adversary. The contumacious pro-
Another allowance was granted for the maintenance cedure was thoroughly reformed by Justinian.-See
of the horse (AESHORDIARIUM). Later, cavalrymen ABSENS, C O N T U M A X .
frequently provided their own horses (equites equo Kipp, R E 6 ; Humbert, D S 2 ; A. Steinwenter, Versaumnis-
private). Service in the cavalry was favored by the verfahren, 1914; L. Aru, I1 proccsso conturitaciale, 1934.
state and enjoyed various privileges. The equites Erepticium. See EREPTORIUM.
were originally organized in eighteen equestrian units Ereptorium. ,4n inheritance or legacy which is not
(CENTURIAE) . Eventually they developed into a dis- given (eripitur = taken away) to an heir or legatee
tinct social class, in particular when the LEX SEM- because of his unworthiness (indignitas), in certain
PRONIA (122 B.c.) gave them the right to serve as instances of bad behavior towards the deceased. See
jurors in criminal trials, with the exclusion of the INDIGNUS. The inheritance or legacy went to the
senators. The equites became a nobility of rich men fisc in most cases.
who obtained their wealth from commerce (forbidden Leonhard, RE 3 (s.v. bona e . ) ; Humbert, DS 2 (s.v.
to senators) and tax farming (see PUBLICANI), a ereptitium).
capitalist nobility, lower in rank than the senatorial Ergastulum. A workhouse into which lazy or un-
class but with gradually increasing influence in ad- trustworthy slaves were put by their masters and
ministration and politics. The connection with cavalry forced to work. Ergastztlarii = either the watchmen
service was broken; the possession of a considerable or the inmates.-See VINCTUS.
Mau, R E 6.
wealth became decisive. The LEX ROSCIA (67 B.c.)
fixed their patrimonial census at 400,000 sesterces. Ergolabus. (In later imperial constitutions.) One
Augustus reorganized the equestrian body. There- who contracts to construct a building or to perform
after it played an ever increasing role in social and a work (opus) with his own materials and workers.
political life, since the high positions in the admin- The contract is a locatio conductio operis faciendi.
istration of the Empire were covered by persons of Syn. (in classical language) redemptor operis.--C.
equestrian rank. The golden ring which in the time 4.59.
of the Republic was the distinguishing mark of sena- Eripere. To take away something from another either
tors and equites (ius anuli aurei) became an exclu- by force (vi) or legally as when a person is deprived
sively equestrian distinction. Through the occupation of illegal profits (eripere hereditatem) .-See EREP-
of the most important posts in the imperial chancery TORIUM.
after the reform by Hadrian their influence grew still Erogare (erogatio). To expend, to lay out. In cer-
greater.-See CLAVUS LATUS,ANGUSTUS CLAVUS. tain legal situations involving two or more persons,
Kiibler, R E 6 ; Cagnat, D S 2 ; Bartoccini, D E 2 ; De as, e.g., in a partnership, common ownership, or com-
Robertis, NDI 5 ; Mattingly, O C D ; C. W. Keyes, The mon inheritance, whatever one has expended in favor
rise of the e. in the third century, Princeton, 1915; R. H. of all was computed with the gains which he made for
Lacey, The equestrian oficials of Trajan and Hadrian, himself without sharing with the others.
1917; A. Stein, Der rom. Ritterstand, 1927; B. Jenny,
Der rom. Ra'tterstartd, 1936; De Laet, La composition de Erogatio. ( I n military administration.) Distribution
l'ordre equestre, Rev. B e l g ~de Philol. et &Hist. 20 (1941) of military supplies (of food = erogatio annonae mili-
45 6 ADOLF BERGER [TRANS.
AMER. PHIL.SOC.
taris, of clothes = erogatio vestis militaris) . Erogator without any legal effect. A reexamination and cor-
= the official who made the distribution.-C. 12.37. rection (retractatio) is admissible even after ten or
Errare. T o be mistaken, to ignore, not to know certain twenty years.-C. 2.5.
legally important facts, to believe in what is untrue E r r o r facti. Ignorance or false knowledge of a fact.
and to act accordingly. A person acting in error = Syn. ignorantia facti. Ant. error (ignorantia) iuris.
errans. Errantis nulla voluntas = "the (expressed) I t is said that unlike ignorantia iuris an error facti
will of a person who is in error, has no (legal) force" non nocet (C. 1.18.7), to wit, it may be alleged as
(D. 3.20) .-See ERROR.
an excuse and in certain instances produce the nullity
Erhardt, Z S S 58 (1938) 167.
of the act. The rule was not generally applied.-
Erro. A vagrant slave who leaves his master's house See ERROR.
in order to roam about, and who, after spending his E r r o r in corpore. A n error concerning the thing to
money, returns to the master. which a legal transaction refers (e.g., the buyer
Error. A false knowledge or want of knowledge of believes he is buying the slave Stichus while the
legally important circumstances, factual or juridical seller means another).
(error facti, error iuris). Syn, ignorantia. An error Flume, Fschr Scltu1,- 1 (1951) 244.
may occur in unilateral (testaments) and bilateral E r r o r in corpore hominis. See ERROR IP; PERSONA.
acts (contracts). I t creates a divergence between the E r r o r i n iure. ( E r r o r iuris.) See IGNORANTIA IURIS.
will of a person and the manifestation of his will in E r r o r in materia. See ERROR I N SUBSTANTIA.
spoken or written words. One thing is declared as E r r o r in negotio. A n error which concerns the trans-
wanted whereas another is reallv wanted. I n a testa- action itself (e.g., one party believes he is buying an
ment an error concerning the beneficiary (e.g., an- immovable while the other wants to lease it). Such
other name is written than that of the person to whom an error makes the transaction void.
the testator wants to make a gift) or the bequest (an- E r r o r i n nomine (nominis). A mistake made in the
other thing is mentioned as bequeathed than the one mention of, a name (of an heir, a legatee, a slave
intended) renders the whole disposition void. I n bequeathed or a slave to be manumitted by the lega-
contractual relations error may invalidate the trans- tee) .--See DEMONSTRATIO FALSA,N O M E N .
action under certain circumstances. Only an excus- Flume, Fschr Schuls 1 (1951) 244.
able error is taken into consideration in favor of the E r r o r in persona. A n error concerning the person to
person acting in error, however, and then solely an whom a testator wants to make a gift or with whom
error which concerns such an essential element of one wants to conclude a transaction. The testamen-
the transaction that it must be assumed that he would tary disposition or the transaction is void if in the
not conclude it at all had the error not occurred. concrete instance the identity of the person is of
These are problems which cannot be resolved in particular import. Syn. error in corpore lzominis.
general terms, but must be judged individually in E r r o r in substantia. Occurs when the mistake con-
each concrete instance. The error of a person may cerns the substance, nature or economic function of
serve in certain situations as an evidence of his acting the thing involved (e.g., buying vinegar instead of
in good faith (bona fide) and furnish the basis for a wine). Svn. error in materia.
restitutio in integrurn, or, when a payment was made ~ h H ~ eACDR,
r, Rome, 2 (1935) 409; Flume, Fschr Schulz
in the erroneous assumption of a debt, for a condictio 1 (1951) 248.
indebiti.-D. 22.6; C. 1.18.-See CAUSAE PROBATIO, E r r o r iuris. See IGNORANTIA IURIS.
CONDICTIO INDEBITI, DEMONSTRATIO FALSA. Erroris causae probatio. If a Roman woman who
R. Allain, L'erreur, ThPse, Paris, 1907; R. Leonhard, married a peregrine under the erroneous assumption
Irrtum, 1907; Schulz, Z S S 33 (1912) ; idem, Gedacht- that he was a Roman citizen, proved her error, the
nisschrijt fur Seckel, 1927; Donatuti, AG 86 (1921) 223; marriage remained valid, and the husband and chil-
Lauria, R D C i v 19 (1927) 313; Riccobono, B I D R 43
dren became Roman citizens.-See CAUSAE PROBATIO.
(1935) 1 ; P . Voci, L'errore nel dir. rom., 1937; idem,
S D H I 8 (1942) 82; Kaden, Fschr Koschaker 1 (1939) Erus. T h e owner, master of a household.
334; Simonius, ibid. 359; P. F . Wilches, De errore com- Eudoxius. A law professor in Beirut, about the be-
muni in iure row. et canonico, Rome, 1940; Riccobono, ginning of the sixth century after Christ. H e was
S c r Ferrini (Univ. Pavia, 1946) 35 ; Solazzi, Condietiones
e errore, ANap 62 (1947/8) ; Flume, Festschr. Schulz 1 the founder of a family of famous Byzantine jurists,
(1951) 209; Dulckeit, ibid. 175; F. Schwarz, Z S S 68 among them his son, Leontius, and a grandson,
(1951) 266; idem, Die Grundlage der condictio, 1952, 65. Anatolius.
E r r o r advocatorum. Mistakes or false allegations Kiibler, R E 6, 927.
made I)y advocates in their written statements. "They Eunuchus. Emasculated. See CASTRATIO. I n Jus-
do not prejudice the truth" (C. 2.9.3.).-C. 2.9. tinian law eunuchs were not allowed to marry or
E r r o r calculi (computationis). An error in calcula- make an adoption. These restrictions did not exist
tion. If it occurs in a judgment and is fully evident, in the classical law. Eunuchs were able to make a
no appeal is necessary. The judge himself may cor- testament, however.-C. 4.42.
rect it. In public administration, error calculi is Hug, RE Suppl. 3, 449; Bonfante, AG 101 (1929) 3.
VOL.4 3, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 45 7
Eustathios. See PEIRA. in classical texts.-See APERTISSIMUS,
PROBATIONES.
Evanescere. T o vanish, to lose validity, to become Guarneri-Citati, IndiceZ (1927) 36 (Bibl.) .
void. T h e term is applied to testamentary disposi- Evincere. See EVICTIO. Evincere occurs not only
tions and to contractual bindings. Actio evanescit a n when a third person claims ownership of a thing
action which though originally available lost its ap- from the buver.
, , but also when he claims an usufruct
plicability in a concrete case. The term is considered or a servitude. With regard to slaves evincere is
suspect as to its classicality. used not only when the third person asserts that the
Guarneri-Citati, S t Riccobono 1 (1936) 719. slave is his, but also when he claims that the slave is
Evectio. A n official permission to use the imperial a free person (evincere in libertatefn).
post. Syn. diploma.-See TRACTORIA. Evocati. Persons who in case of emergency assumed
Seeck, R E 4, 1859; Humbert, D S 1, 1662. military service for as long a time as the state re-
Eventus. T h e legal effect of a transaction or a trial. mained in danger. Under Augustus they became a
With regard to wrongdoings, eventus ( = the issue) separate unit (evocati Altgltsti, Caesaris) of soldiers
is opposed to the intention (design) of the wrong- who had already served their time, under the com-
doer.-See EXITUS,A NIMUS. mand of the praefectus praetorio. Some of the evo-
Evictio. (From evincere.) Occurred when a seller cati were appointed for special services in the im-
sold a thing which did not belong to him and the perial palace or in the office of the praefecfzts prae-
buyer was later evicted by the real owner. When torio, others were distributed among the legions for
ownership over the thing sold was transferred by special functions of a non-military character or were
mancipatio the buyer had the actio auctoritatis against sent to the provinces on special missions. The pur-
the seller in case of eviction. If there had been no pose of the institution was to use able persons with
mancipatio (the thing being a yes nec wancipi, for military experience for further official service.
instance), the seller used to promise by stipulatio to Fiebiger, R E 6, 1145; Cagnat, D S 2 ; De Ruggiero, D E 2.
pay the buyer double the price (stipulatio duplae) or Evocatio. The summons of a party or a witness to a
make a simple stipulatio (stipulatio evictionis or de trial by a magistrate in the proceedings cognitio extra
evictione) by which he guaranteed the buyer peaceful ordinern. I t could be made orally by dcnltntiatio
use of thing sold (habere licere) and promised to pay when the person involved lived in the same city,
the buyer any damages he incurred by eviction. I n otherwise by a letter (litfcris) or by a public an-
a later development the buyer could avail himself of nouncement (edicto) if his domicile was unknown.
the actio empti for damages independently of a pre- Syn. (in a few instances) vocntio.--See EDICTUhr
ceding stipulatio. Liability for eviction, which became PEREMPTORIUM.
a legal element of the sale, could be excluded by a A. Steinarenter, Vcrsijrci~trziszterfnIzrcn,1914, 8; L. Aru,
special agreement, pacturn de non praestanda evic- Procedura coittuntaciale, 1934, 98.
tione.-Evictio might also occur when a thing be- E x . Added as a prefix to the title of an imperial
longing to another was given as a dowry or as a official who was no longer in service (e.g., px prac-
pledge (fiducia, pignus) by the debtor.-D. 21.2; fecto praetorio, ex colizite, ex proconst.tle).
C. 8.44; 45 ; 10.5.-See EMPTIO VENDITIO,EVINCERE, E x aequo e t bono. See B O N U M ET AEQUUM.
ACT10 AUCTORITATIS, LAUDARE AUCTOREM, DATIO I N E x asse heres. A n heir to the whole estate. Ant. ex
SOLUTUM. parte. E x seinisse lzcrcs = an heir to a half of the
Humbert, D S 2 ; Pivano, De evictione i n iure ronz., 1901; estate.-See DODRANS, SEMUNCIA.
De Medio, B I D R 16 (1904) 5 ; De Francisci, L'evizione E x die. See DIES, M A N U M I S S I O SUB CONDICIONE.
della res data in solutum, 1915 ; Guarneri-Citati, AitPal 8
(1921) 385; Girard, Mblanges 2 (1923) 1 ; Kamphuisen, E x fide bona. I n confornlity with good faith, honesty.
R H D 16 (1927) 607; Ricca-Barberis, St Riccobono 2 Ant. ex iure Qziiritiliwz = according to the strict law.
(1930) 127; idem, L'cvisione nella datio in solutunt, 1931 ; -For ex fide bonn in the procedural formula. see
Kaser, Z S S 54 (1934) 162; E. Albertario, Studi 3 (1936)
IUDICIA BONAE F I D E I . - S ~ B ~ONA FIDES.
481; Erbe, Pfandrccltt und Eviction, Fschr Kosclzaker 1
(1939) 479; Meylan, R I D A 3 (= A l i l De Visschcr 2, Sinaiski, S t Riccoboi~o 4 (1936) 57 (for c x i. Q.)
1949) 193. E x lege. According to a statute (law). I t is to be
Evictionem praestare. T o indemnify a buyer who was understood "both according to the intention (scn-
evicted by a third person from the thing sold.-See tcntr'n) and to the words of the law" (D. 50.16.6.1).
EVICTIO. E x post facto. Iirotn a later event. I t refers to a fact
Evidens. Manifest, obvious, evident. The tern1 is or event subsequent to a legal situation, resulting from
used with preference by Justinian and his compilers. an agreement or a unilateral act ( a legacy or-dona-
Guarneri-Citati, Iitdicez (1927) 36; E . Albertario, Studi tion). From (ex) that fact or event (for instance,
1 (1933) 322. the fulfillment of a condition), conclusions are drawn
Evidentissimae probationes. Evidence which fully as to the validity of, or a cl~angein, the former legal
proves the truth of an alleged fact or right. It is
a typical Justinian expression, frequently interpolated
458 ADOI-F BERGEK [TRANS. AMER. PHIL.SOC.
E x r e alicuius. (Acquisitions nlade) from another's degree, the patron, the ward, and some other persons.
a son acquired at the father's expense, apart from Riccobono, M(;l Girard 2 (1912) 415.
what the son acquired from other sources. A similar Exceptio. A defense opposed by the defendant to
distinction separates what a slave acquired ex re the plaintiff's claim to render it ineffective and ex-
domini ( = fro111 his master's means) from what he clude the defendant's condemnation as demanded by
gained ex oopra sua (= by his work).-Ex re sita the plaintiff in the INTENTIO of the procedural for-
= (acquisitions made) from one's own property. nlula. Formally the exceptio was a clause in the
E x r e usufructuarii. See SERVUS USUFRUCTUARIUS. formula containing an assertion of the defendant who,
Berger, Philologus 73 (1914) 69. without denying the plaintiff's claim in principle,
Exactio. (From exigrre.) Taking legal measures opposed to it a legal provision (e.g., exceptio legis
against a debtor for the recovery of a debt, enforcing Cinciae, or legis Plaetoriae) or a fact not alleged
payment legally. With regard to payments owed to by the plaintiff. Thus, for instance, the defendant
the state (taxes), rsactio tributoriim = the levy, col- asserts that he owes the sum claimed by the plaintiff,
lection by the co~npetentofficials or authorized per- but according to a special agreement (pactum de non
sons. Enforcing payment of public debts in a higher petcndo) the plaintiff assumed the obligation not to
measure than was legal = superez-actio.-C. 10.19; sue for the money. The defendant's objection made
20.-See PRIVILEGIUM EXIGENDI. during the proceedings in iure, is inserted into the
Exactor. A collector of taxes and other payments due forn~ulaas a negative condition, to wit, the judge
to the state.-In public administration exactor indi- may condemn the defendant "if there has not been
cates an inspector, a superintendent of public build- an agreement that the plaintiff will not bring an
ings and works (opera publica) .-C. 12.60. action."-In the interdictal proceedings the exceptio
1542 ; Lammers, R E 4A, 973. negative conditional clause giving the defendant the
Exaequare (exaequatio). T o make different legal right to disregard the praetor's order if the fact men-
institutions or enactments equal in their legal force, tioned in the occurred. some exceptions are
According to Justinian's statement, for instance, fidei- an integral part of the interdict (e.g., exceptio vitiosae
colllgnissa e-raequata sunt to legacies (legatis) in all possessionis, exceptio annalis), others were inserted
respects. BY the LEX HORTENSIA DE PLEBISCITIS the in a specific case by the praetor upon the request of
plebiscites were declared equal to Statutes passed by the defendant. With the disappearance of the formu-
the assemblies of the whole people. lary procedure and the interdicts in their classical
Exauctorare. T o discharge a soldier from the service. form, exceptio became any kind of defense applied
The term is used of both honorable and dishonorable by-the defendant in order to paralyze, peremptorily
Excantare fruges. T o enchant the produce of an- 44.1 ; C. 7-40; 8.35.-Texts in which literal quota-
other's field by magical formulae in order to deprive tions of exceptions occur in the ~ i are listed
~ in
~ ~ t
the land of its fertility and to transfer the fruits to vocabularium ~ ~ ~ i ~Romanae p ~ 2,~662d and~ 5, ~
t i ~
the enchanter's plot. Such Sorcery was punished as 45O.-See OPE EXCEPTIONIS,
DENEGARE EXCEPTIONEM,
a crime according to the Twelve Tables. NOCERE.I n the following presentation the different
F. Beckmann, Zauberei und Recht in Roms Friihzeit, kinds of exceptions are treated under EXCEPTIONES,
1928, 5.
the specific exceptions under EXCEPTIO.
Excellentia. Excellency. An honorary title of the Seckel, in Heumann's Handlexikon zu den Guellen" (1907)
praefectus praetorio. 180 ; Wenger, R E 6 ; Ferrini, N D I 5 ; Wlassak, Ursbrung
Excellentissirnus (vir). A general title appearing in der riim. Einrede, Fg L. Pfaff, 1910; E. Weiss, Fschr
imperial constitutions of the late Empire in connec- W a c h 2 (1913) ; J. Petrau-Gay, Exceptiones et praescrip-
tion with high dignitaries. tiones, Paris, 1916 ; Biondi, AnPal 7 (1920) 3 ; Guarneri-
Citati, St Perozzi, 1925, 245; Kipp, Z S S 42 (1921) ; R.
Excelsa sedes. The office (court) of the praefectus Diill, Der Giitegedanke, 1931, 193; F. De Martino, Giuris-
praetorio.-C. 12.49. dizione, 1937, 83 ; Ramos, A H D E 16 (1945) 720; Solazzi,
Exceptae personae. Certain persons or groups to AG 137 (1949) 3 ; Levy, Iura 3 (1952) 157.
whom some legal prohibitions were not applied. Exceptio cognitoria. An exceptio by which the de-
There was no general rule establishing the persons fendant denied the plaintiff's right to be a COGNITOR
thus privileged, the pertinent statutes designated the in the trial, either because the principal creditor was
exceptae personae only within their own domain. Of not able to appoint a representative, or because the
particular importance were the rules concerning ex- cognitor had not the qualifications to represent an-
ceptae personae of the LEX CINCIA on donations. It other.-See COGNITOR, EXCEPTIO PROCURATORIA.
admitted gifts-beyond the limitations established in Lenel, Edictum perpetuum3 (1927) 502.
the statute-in favor of the donor's fiancee, the wife, Exceptio conventionis. Functions the same way as
relatives until the fifth degree and some of the sixth EXCEPTIO PACTI and is based on a special agreement
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 459
which excludes the plaintiff's claim. Analogous is against a plaintiff who based his claim for recovery
exceptio transactionis. of the thing on possession only (actio Publiciana in
Exceptio curatoria. An exceptio by which the de- rew) .
fendant denies the plaintiff's right to act as a curator Exceptio legis Cinciae. See LEX CINCIA.
Exceptio doli. This was opposed by the defendant Exceptio legis Plaetoriae. See LEX PLAETORIA.
sued for the fulfillment of an agreement and based Exceptio litis dividuae. This may be opposed when
on the allegation that the plaintiff had acted fraudu- the plaintiff after having sued for a part of the debt,
lently (dolo). The formulary wording of this ex- claims the remainder thereof in a second trial during
ceptio was: si in ea re nihil dolo malo Auli Agerii the same praetorship. The exception is dilatory, the
(of the plaintiff) factuvrz sit ( = "if in this matter no plaintiff having to expect the next praetor's term of
fraud has been committed by the plaintiff"). The office. A similar exceptio is the exceptio litis resi-
exceptio doli was strengthened by an additional clause, duae, applicable when a plaintiff who has several
attached to the foregoing words, 'lneque fiat" which claims against the same defendant sues only for one
refers to the actual action of the plaintiff in the sense of them in order to vex the latter with another trial
"nor is being committed by him," i.e., that his suit under the same praetorship.
itself is not a fraud (inequitable). About this general Buckland, R H D 11 (1932) 311.
applicability of the exceptio doli it is said: "he who Exceptio litis residuae. See the foregoing item.
makes a demand which may be broken down by an Exceptio metus (de metu, quod metus causa). An
exception whatsoever, commits a fraud" (D. 44.4. objection by the defendant that he assumed the obli-
2.5). Therefore an exceptio doli can be opposed. gation for which he is sued, under duress (metus).
Thus by the initiative of the praetor and the jurists -D. 44.4.-See METUS.
the exceptio doli, originally a merely procedural meas- Exceptio ne praeiudicium hereditati fiat. See HERE-
ure, acquired a positive function, promoting the de- DITATIS PETITIO.
velopment of the substantive law through the pro- Exceptio non adimpleti contractus. The defendant's
tection of formless agreements not recognized by the objection that the plaintiff did not fulfill his duties
ius civile (additional agreements connected with the reciprocally assumed in the contract on which he
transfer of property through nzancipatio, constitution based his claim.
of servitudes, agreements attached to a stipulatz'o, and R. Cassin, De l'rxcepfiort tirle de l'iftcxdcution, 1914.
so on). A maxim gained currency that the exceptio Exceptio non numeratae pecuniae. This exceptio,
doli is implied in the bonae fidei iudicia (D. 24.3.21), analogous to the foregoing, is of later origin. The
inasmuch as the judge has to decide on grounds of defendant objects that he did not receive the money
good faith, which gave him the opportunity to take fro111 the plaintiff for the restitution of which he is
into consideration all elements which might let the being sued. Such things happened when the debtor
plaintiff's claim appear inequitable. To those ele- issued a written document for a debt before receiving
ments belonged not only fraud committed at the con- the money.-C. 4.30.-See QUERELA N O N NUMERATAE
clusion of the transaction but also all circun~stances PECUNIAE.
which qualified the suit itself as being against good Platon, N R H D 33 (1909) 452; Suman, AVett 78,2 (1919)
225; Kreller, St Riccoborto 2 (1936) 285.
faith. Therefore, the insertion of an exceptio doli
into the formula which contained already the clause Exceptio pacti (conventi). An exceptio based on an
"ex fide bona" was su~erfluous. The mechanism of additional agreement between creditor and debtor
the exceptio doli allowid the judge to consider coun- which modified the original obligation, as, for in-
terclaims of the defendant (such as expenses he made stance, not to claim the debt in a judicial trial at all,
on the thing claimed by the plaintiff) and condemn or within a certain time. In the latter case the ex-
the defendant onlv for the balance (see COMPEN- ception was dilatory.
Biondi, AuPal 7 (1918) 50; Koschaker, .4611o~rdltrrlgen
SATIO) .-D. 44.4.-See DOLUS,IUDICIA BONAE FIDEI, cur alltiken Rcclttsgcsrlt., Fsclt Hortorrsck, 1925, 139.
RETENTIO.
Kleinfeller, RE 5 (s.v. dolus); Vita, N D I 5, 144; E.
Exceptio pigneraticia. Mentioned in a specific case
Costa, La e. d., 1897; Biondi, AfzPal.7 (1920) 5; Beseler, of an action brought for division of coillillon property
ZSS 45 (1925) 245; Riccobono, AnPal 14 (1930) 405, (actio conzmuni dividlindo) by a co-owner against his
437 ; E. Protetti, Contributi a110 studio dell'eficaria dell'c.d., partner to whom the clainlant had pledged his por-
1948. tion. The exccptio is opposed by the pledgee co-
Exceptio intercessionis. See SENATUSCONSULTUM owner in order to be taken into coilsideration bv the
VELLEIANUM. judge at the division.-See EXCEPT10 RE1 A N T E PIG-
Exceptio iurisiurandi. See IUSIURANDUM VOLUN- NERATAE.
TARIUM. Last, GrZ 36 (1909) 457.
Exceptio iusti dominii. An exception of which the Exceptio procuratoria. The counterpart to the c.r-
owner of a thing at iirs cizlilc could avail himself ccptio cognitovia in the case that the creditor is repre-
460 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
sented in a trial by a procurator. Through this ex- stituted heir and the real beneficiary to whom he
ceptio the defendant objects that the plaintiff's delivered over the inheritance.
representative has no right to act as a representative Exceptio senatusconsulti Macedoniani. See SENA-
(procuratorio nomine). The exceptio is dilatory, TUSCONSULTUM MACEDONIANUM.
the creditor having the opportunity to sue again either Exceptio senatusconsulti Trebelliani. See SENATUS-
personally or through another representative.-See CONSULTUM TREBELLIANUM, EXCEPT10 RESTITUTAE
EXCEPTIO COGNITORIA, PROCURATOR (in a civil trial). HEREDITATIS.
Solazzi, RISG 83 (1949) 60. Exceptio senatusconsulti Velleiani. See SENATUS-
Exceptio quod metus causa. See EXCEPTIO METUS. CONSULTUM VELLEIANUM.
Exceptio rei ante pigneratae. This served the pro- Exceptio transactionis (transacti negotii). Has a
tection of the rights of a creditor to whom the debtor similar function as the exceptio pacti or exceptio con-
had pledged a thing, against another creditor to whom ventionis. It may be opposed by the defendant if the
the same thing was hypothecated later.-See PIGNUS, plaintiff sues for a debt on which he concluded a
HYPOTHECA. modifying transaction with the former.
Exceptio rei in iudicium deductae. See EXCEPTIO REI Exceptio tutoria. An exceptio opposed to the plaintiff
IUDICATAE. on the allegation that he is not the guardian of the
Exceptio rei iudicatae. An exception opposed by the person in whose name he is suing.-See EXCEPTIO
defendant and based on the fact that he had been CURATORIA.
sued for the same thing (eadenz res) in a previous Exceptio vitiosae possessionis. Applicable in pos-
trial and a judgment had been passed in the matter. sessory interdicts. The actual possessor of a thing
Identity of the plaintiffs was not necessary since the is protected in his possession against anybody except
exceptio might I)e used against the successor of the the case that he himself acquired possession from his
claimant in the trial. There was a maxim: "Good adversary (i.e., the claimant in the interdictal pro-
faith does not permit that the same thing be claimed ceeding) in a defective way (vitiose).-See INTER-
twice" (D. 50.17.57). The most important point DICTUM UTI POSSIDETIS, CLANDESTINA POSSESSIO, POS-
in the application of this exceptio was the iden- SESSIO INIUSTA.
tity of the claims (EADEXRES). A similar exceptio Exceptiones annales. In actions which lie only for
was the exceptio rei in iudicium deductae which was one year in favor of the claimant, the defendant may
available when in the first trial a judgment had not ask for an exception that the one-year period elapsed
been rendered but the joinder of issue (litis contes- when the suit was brought after this period. In the
tatio) had been reached.-D. 44.2.-See BIS IDEM domain of interdicts some of them contained a clause
EXIGERE, RES IUDICATA, LITIS CONTESTATIO. that the praetor's order is valid only if issued within
Eisele, ZSS 21 (1900) ; Leonhard, Fg Dahn 2 (1905) 65 ; a year after the fact against which the plaintiff remon-
Manenti, BIDR 21 (1909) 139; Weiss, Fschr Wach 2
(1913) ; Pfluger, ZSS 43 (1933) ; Guarneri-Citati, BIDR strates (exceptio annalis) .--C. 7.40.-See ACTIONES
33 (1923) 204; Siber, ZSS 65 (1947) 1. TEMPORALES.
Exceptio rei litigiosae. See RES LITIGIOSA. Exceptiones civiles-honorariae. Exceptions which
Exceptio rei venditae et traditae. An exceptio op- are based on the itls civile (statutes, as, e.g., excep-
posed by the defendant sued for the delivery of a iiones legis Cinciae, Plaetoriae, or senatusconsulta, as,
thing of which the plaintiff asserts to be the owner. e.g., exceptiones senatzcsconsulti Macedoniani, 17eC
The defendant, on his part, objects that he bought leiani) are distinguished from exceptions of prae-
the thing and that it was delivered (tradita) to him torian origin, introduced either in the praetorian edict
by the seller.-D. 21.3. or granted in a specific case, exceptiones in factum.
Ferrini, Opere 3 (1929, ex 1891) 275 ; Last, GrZ 36 (1909) Exceptiones dilatoriae. Exceptions valid only for a
490; J. Gonvers, E. r . v , ThPse, Lausanne, 1939. certain space of time, for instance, the exceptiones
Exceptio restitutae hereditatis. Connected with pacti based on an agreement by which the plaintiff
FIDEICOMMISSUM HEREDITATIS.The heir who ac- bound himself not to sue the debtor within a certain
cording to the testator's disposition handed over the time. When the time fixed elapsed, the exceptio
whole estate to a f deiconztnissarius when sued for the was without effect. Syn. exceptiones temporales.
testator's debts might oppose the exceptio restiiutae Ant. E X C E P T I ~ N E SPEREMPTORIAE (perpetuae) .
hereditatis, and similarly he was exposed to this ex- Kipp, ZSS 42 (1921) 328; Solazzi, AG 137 (1949) 3.
ceptio if he sued a debtor of the testator. I n earlier Exceptiones in factum. Exceptions granted by the
law, when the rule SEMEL HERES SEMPER HERES was praetor in specific cases, although not established
strictly observed, the heir could avoid any risk by either by law (in statutes or senatusconsulta) or in
demanding a cautio for indemnity from the real suc- the praetorian edict. The insertion into the formula
cessor. The SENAI'USCO~SULTUM TREBELLIANUM es- was decided by the praetor after a thorough examina-
tablished the liability of the fideicom~nissariuswhich tion of the case (causa cognita).
made superfluous special agreements between the in- Biondi, AnPal 7 (1918) 50.
VOL..
43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 46 1
Exceptiones in personam. A term not evidenced in mary task was to keep the minutes oi meetings or
the sources, but applied in literature as opposite to events which took place in the offices mentioned. In
EXCEPTIONES I N R E M . the imperial bureaucracy the number of exceptores
Exceptiones in rem (scriptae). Exceptions which increased considerably. They were employed also in
may be opposed to any claimant if the transaction on the headquarters of military commanders.--C. 12.49.
which the suit is founded was essentially defective, as, Fiebiger, R E 6, 1565; Cagnat, D S 2 ; Jones, J R S 39
e.g., in the case of duress under which the defendant (1949) 53.
assumed an obligation. Therefore such exceptio was E x c i ~ e r e . T o oppose an exception against the claim
effective also against a plaintiff who did not take part of the plaintiff. In setting forth an exception (ex-
in the act of force exercised on the debtor. Ant. cipiendo) the defendant assumes the role of a plain-
exceptiones in personam (a term coined in litera- tiff (reus actor-est, D. 44.1.1) since he has to Prove
ture) when the exceptio could be set forth against the facts alleged in his assertion (D. 22.3.9).
one plaintiff only for an action in which he partici- R. Dull, Der Giitegedanke, 1931, 187; Levy, Iura 3 (1952)
157.
pated, as the exceptiones for fraud (exceptiones doli).
A counterpart to this distinction are the EXCEPTIONES Excipere. (In transactions.) T o insert a clause in
PERSONAE COHAERENTES and rei cohaerentes.
favor of a party primarily of one who alienates some-
Exceptiones peremptoriae. Exceptions which "are thing (e.g., excluding the liability of the seller of a
valid at any time and cannot be evaded" (Gaius, Inst. slave for certain defects) or of the slave being sold
4.120) when opposed by the defendant. Such excep- (e.g., binding the acquirer to a certain behavior to-
tions, if sufficiently proved, make the plaintiff's claim wards him).
void. Most exceptiones are peremptory; thus, e.g., Excipere mortem. T o be condemned to death.
exceptio metus, exceptio rei iudicatae, exceptions Excipere poenam (sententiam). T o be sentenced in
based on statutes or senatusconsulta. Syn. excep-
'
a criminal trial.
tiones perpetuae; ant. exceptiones dilatoriae (tern- Excipere servitutem. T o reserve a servitude or an-
porales) . other right (iter, usurn, habitationenz, etc.) on behalf
Kipp, ZSS 42 (1921) 328; Devilla, StSas 19 (1942) 92; of the alienator when the ownership of an immovable
Solazzi, AG 137 (1949) 3. is being conveyed.
Exceptiones perpetuae. See E X C E P T I O N E ~ PEREMP- Excipere U S U ~ ~ ~ U C See ~ UDEDUCT10
~ . USUSFRUCTUS.
TORIAE. Excludere. T o exclude a person from certain legal
Exceptiones personae cohaerentes. Exceptiones benefits or from the use a procedural remedy.
which only the defendant himself (not his sureties) Excusationes a muneribus. Exemption from public
may oppose, as, for instance, the exceptio "quod C O ~ P U ~ ~ O services
~ Y (?nunera) were granted to
facere possit" available to a parent, patron or partner "Omen, r ~ e nu nder twenty-five or over Seventy, fathers
to the effect that he be condemned to an amount of three children (four in Italy, five in provinces) ;
within his means (see BENEFICIUM C O M P E T E ~ ~ I ~ Eit) was , limited, however, in these cases to exemption
the exceptio being strictly personal. Ant. excep- from personal services (munera personalia). Ex-
tiones rei cohaerentes, which are available also to emptions were also extended to certain professions
sureties for they impugn the matter of the contro- (physicians, teachers), shippers, veterans, and mem-
versy itself, such as, for instance, exceptiones doli, bers of municipal councils (decuriones). In granting
iurisiurandi, rei iudicatae, tnetus, etc. exemption, poverty could be taken into consideration.
Exceptiones quae minuunt condemnationem (dam- After the time of Constantine, appeal (querela, queri-
nationem). Exceptiones which do not wholly para- "onia) to the governor of the province was per-
lyze the plaintiff's claim but produce only the effect mitted.-D. 50.5; C. 10.48-59; 66.-See MUNERA,
that the defendant is condemned to a sum smaller MAGISTER,PHILOSOPHI, POETAE.
than originally claimed by the plaintiff. The existence Kubler, R E 16, 648.
of this type of exceptions in classical law is contra- Excusationes a tutelc. Persons called to guardianship
versial. Those exceptions cover all cases where the by law or by testament were entitled to claim exemp-
defendant was permitted t~ invoke the so-called tion ( ~ X C U S U because
~ ~ O ) of certain circumstances,
B E N E F I C I U M COMPETENTIAE.-SeeC OMPENSATIO. permanent or temporary, which made the fulfillment
Wenger, R E 6, 1557; Ferrini, NDI 5, 736; Arangio-Ruiz, of their duties as guardians (tutores or curatores)
Exc. in diminuzione della condanna, 1930; Solazzi, BIDR impossible or very onerous to them. Among such
42 (1934) 268. grounds for exemption were age of seventy, high
Exceptiones rei cohaerentes. See EXCEPTIONES PER- office, poverty, a certain number of children (three
SONAE COHAERENTES. in Rome, four in Italy, five in the provinces) three
Exceptiones temporales. See EXCEPTIONES DILATO- tutorships already sustained, chronic illness, incapac-
RIAE. ity to manage another's property, and the like. Some
Exceptor. A scribe, short-hand writer, in court, in the grounds of exemption were available only with regard
senate, or the offices of higher officials. Their pri- to specific guardianships, as, for instance, enmity
462 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
against the ward's family.-Inst. 1.25; D. 27.1 ; C. Exercere actionem. (Iudiciu~~z, litem, exceptionem,
5.62-68; 10.48, 66.-See LIBELLUS CONTESTATORIUS. appellatione~n.) T o use a judicial measure either in
Klingmiiller, R E 6 ; Humbert, D S 2 ; Sachers, R E 7A, order to claim a right against another person or in
1534; Albertario, Studi 1 (1933) 427. defense against another's claim. See ACTIO. I n
Excussus. See EXCUTI. criminal affairs exercere accusatione~n,crivnen = to
Excutere rationes. T o examine the accounts concern- accuse. Civiliter exercere = to sue in a civil trial.
ing the administration of property (e.g., of a ward by Exercere navem. See EXERCITOR NAVIS.
his guardian) .-See ADMINISTRATIO. Exercere pecuniarn (fenus). T o lend money on in-
Excuti. If a creditor has an action for the same claim terest. Exercere pecunia~n apud nu~nvnularios= to
against different persons, for instance, against the invest money with a banker with profit.
principal and a surety, he must sue them in a definite Exercere vectigal. T o levy, collect taxes.
order, inasmuch as the action against a subsidiary Exercitator. A military instructor.
debtor is admissible only when the trial against the Bartoccini, DE 2.
debtor first sued has not resulted in the payment of Exercitor navis. A shipper, either the owner or lessee
the debt (because of the insolvency of the defendant or of a commercial ship used for the transportation of men
for other reasons). The defendant so fruitlessly sued and goods. "He is the man to whom the daily profit
was termed excussus.-See BENEFICIUM EXCUSSIONIS. gained by shipping belongs" (Inst. 4.7.2). When he
Executio, executor. See EXSECUTIO, EXSECUTOR. employs another as captain (magister navis), he is
Exemplar (exemplarium). The original of a docu- liable on the contracts concluded by the latter. The
ment. Syn. az(tlzenticu~iz. Ant. exe~nplui?~. Testators action lying against him was introduced by praetorian
used to make testaments in two original copies ; if one law, actio exercitoria. I t belongs to the category of
was lost or destroyed by accident, the other was valid. so-called actiones adiecticiae qualitatis (non-Roman
The opening of merely one original was considered term). These were "additional" actions (actio adi-
the opening of the testament; see APERTURA TESTA- citur: D. 14.1.5.1) under which a person ( a father,
MEN TI.-^^^ PARICULUM. a slave's master, a principal, a shipper) under certain
L. de Sarlo, I1 documento oggetto di rapporti giuridici, circumstances could be sued for acts done by his
1935, 82; B. Biondi, Sttccessione testantentaria, 1943, 66. subordinate ( a son, slave, employee) in the manage-
Exemplum. A copy of a document. Ant. exe~nplar, ment of a peculiunz or a commercial business as his
authenticu~n. I n a few texts the term is used in the agent or on his order. The responsibility of the father
meaning of an original. Sometimes it is also used of and the other Dersons was additional to that of the
a draft of a testament which is not valid if the tes- subordinate although they did not participate in the
tator dies before the formalities of a valid testament latter's agreements or transactions.-D. 14.1 ; C. 4.25.
are accomplished.-Exemplum indicates a prece- -See ACTIO TRIBUTORIA, PECULIUM,I USSUM, I N -
dent. or what serves as a att tern.-punishment in STITOR.
criminal matters is denoted an exenzpluvz = serving Humbert, D S 2 (s.v. exercitoria a,) ; Del Prete, lVDI 5
as a deterrent warning.-Exenzplo or ad exentpluuut (s. eod. v . ) ; Valeri, RDColrz 21 (1913) 14; Chialvo, S t F.
Berlirtgieri, 1933, 171 ; Ghionda, RDNav 1 (1935) 327; De
is used when a legal remedy analogous to an existing hfartino, ibid. 7 (1941) 5 ; Solazzi, ibid. 7 (1941) 185 and
one is granted (eTg., an acho utilis), or when a legal 9-14 (1943-1948).
situation is dealt with in a similar way as another Exercitus. The army. I t is composed of pedites (=
one, governed by a statute embracing similar legal infantry) and equites ( = cavalry). Clnssis = the
situations (exevnplo legis Aquiliae, for instance) .- navy. For the legal status of the soldiers, see MILITES.
See RES IUDICATA.
Wiinsch, R E 6 ; Kiibler, St Riccoborto 1 (1936) 435; L. VELATI, MILITIA, MANIPULUS, DILECTUS, K U M E R I ,
de Sarlo, I1 docuritei~to oggetto di rapporti giuridici, 1935,
82; F. v. Schtvind, Zttr Frage der Publikotion, 1940, 137; DIPLOMA, MISSIO, ALA, T U R M A .
H . Kornhardt, Exc~nfiItt~tt,Diss. Gottingen, 1936; B. Liebenam, R E 6 ; Cagnat, D S 2, 912.
Biondi, Successione testanzentaria, 1943, 67. Exhauriri. T o be expended wholly. I t is used of in-
Exemptio (eximere). (From summons to court.) heritances which are exhausted by legacies to be paid
Taking away a person summoned to court (see I N by the heir.-See LEX FALCIDIA.
IUS VOCATIO), by force or fraud to frustrate the sum- Exheredare. T o disinherit. A son under paternal
mons and make impossible his appearance before the power (filius fawzilias) must be disinherited by his
magistrate. The praetorian edict introduced an ac- father (pater fa~nilias) in the latter's testament by
tion against the wrongdoer. name (nominatinz) or in any other way which admits
Pugliese, R I D A 3 (= MP1 De Visscher 2, 1949) 266. of no doubt about the person meant. Syn, exlzeredem
Exercere. T o carry on, practice, a profession. I t is facere. Under ius civile a testament was void if the
used not only of merchants, shipowners, bankers, inn- testator failed to institute his son (heres suus) as an
keepers, etc., but also of ignominious professions heir or to disinherit him. Disinheritance of other
(prostitutes, actors, matchmakers) persons, however, could be accomplished by a general
VOL.43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 463
clause ("all others shall be disinherited"). The Exhibere debitorem (reum). Refers to a guarantor
jurists did not favor disinheritance in their opinions. who undertook to answer that a defendant in a civil
Their principle was: "disinheritance must not be trial would appear in court at a fixed date. His duty
supported" (D. 28.2.19). The testator was not was to "produce" the defendant. See VINDEX.In a
obliged to indicate the reason of the disinheritance. criminal trial exhibere reurn = to submit to court a
-1nst. 2.13; D. 28.2; C. 6.28.-See LEX I U N I A VEL- culprit of whom one had assumed the custody.-D.
LAEA,PRAETERIRE, EXHERES. 48.3 ; C. 9.3.
Klingmuller, R E 6 ; Humbert, D S 2 ; Azzariti, N D I 5 Exhibere hominem liberum. In connection with the
(s.v. discredazione) ; J . Merkel, Justinianische Enterbungs- INTERDICTUM DE H~~~~~ LIBERO E X H I B E N W
griinde, 1908. bere is defined "to produce in public (i.e., in court)
Exheres. See EXHEREDARE. The term was used in and to make it possible to see and touch the man,j
the disinheriting clause ("Titius exheres estop = (D. 43.29.3.&).-~. 43.29; C. 8.8.
Titus shall be disinherited). Exhibere instrumenta. T o produce documents for
~ x h i b e r e . TO display, "to produce (a thing, a slave) the ptlrpose of evidence. It could be judicially en-
in public (i.e.9 during a trial) in order to give the forced if it was in the interest of the adversary in
plaintiff the chance to proceed with his suit" (D. the trial.-~ee E X H I B E R E TABULAS.
10.4.2). The pertinent
fendant to produce in court the
to enforce the
df-
thing In
Exhibere rationes. T o produce accounts concerning
the management of another's affairs (for instance,
dispute when sued for its delivery (by RE1 VINDI- On the part of a guardian with regard to the ward's
CATIO)he fraudulently denied having, was the actio property).
ad exhibendurn. I n many cases the action served to ~ ~ h reurn. i b see ~EXIBERE
~ ~DEBITOREM,
prepare a future rei vindicatio which followed if the ~ ~ h tabulasbi ~ ~ ~ T~ produce a testa-
exhibited thing was in fact that very one which the ment. could be enforced by a interested in
plaintiff wanted to claim. This occurred, for in- the knowledge of the contents as a presumptive h n e -
stance, when a legatee was given by a testator the ciary.-D. 43.5 ; C. 8.7.-see INTERDICTUM DE TABC-
right to choose among the slaves of the inheritance, LIS EXHIBENDIS.
see OPTIO SERVI. The actio ad exhibendurn was avail- ~ ~ h uxorem ~ ~ ~ patronurn). T~ sus-
i b (familiam,
able when a plaintiff before suing the master of a tain, support one's wife (family, or patron). In an-
slave for damages with an acfio noxalis had to iden- other meaning exhibeye uxoye,lz is used in connection
tify first which of the defendant's slaves was the the interdictum de uxoye ducenda.-See INTER-
wrongdoer. A specific application of the action was DE LIBERIS EXHIBENDIS.
in a case of accessio when a person joined the plain- ~ ~ h i b i see
~ i ~EXHIBERE.
.
tiff's thing to one of his own (e.g., set a gem belong- Exigere. seeExAcTIo.
ing to the latter in a ring of his Own). Through the Exilium (exsilium). A person involved in a criminal
acfio ad exhibendurn the plaintiff obtained the sep- matter might voluntarily go into exile in order to
aration of his thing and its production in court, and escape a trial or a condemnation when the trial was
might sue afterwards for recovery by a rei vindicatio. already in course. Exilk% also was a compu~sory
Even in cases when the thing to be claimed no longer departure from the country if given as a punishment.
existed (if, e.g., it was consumed the defendant Voluntary exile was tolerated in the case of a person
or destroyed or if the defendant gave sentenced to death in a criminal trial, but in such cases
possession, dolo desinere tossidere), the actio ad there followed an administrative decree which out-
exhibendurn was available for damages. The action lawed the fugitive (INTERDICERE AQUA ET IGNI). It
was an actio in personaW and had the advantage for deprived him of Roman citizenship (capitis delninufio
the plaintiff, that the defendant could not refuse co- and his property. illicit return was punished
operation in the trial since in that case he was con- by the death penalty. The consequences of a
demned to full indemnification.-D. 10.4; C. 3.42.- pulsory banishment varied according to the crime;
See ACTIONES ARBITRARIAE, ACTIONES I N PERSONAM, they were fixed in the judgment. A milder form of
FURTUM NON EXHIBITUM, and the following items.
banishment was RELEGATIO, while the severest one
Several interdicts are concerned with an exhibeye, was DEPORTATIO. The terminology later became
see INTERDICTUMDE HOMINE LIBERO EXH1BEN*7 rather uncertain.-C. 10.61.-See us EXILII, VIATI-
INTERDICTUM DE LIBERIS EXHIBENDIS, INTERDICTUM
CUM.
DE LIBERTO EXHIBENDO, INTERDICTUM DE UXORE EX- Kleinfeller, R E 6 ; Humbert, D S 2 ; Berger, O C D ; Bragin-
HIBENDA,I NTERDICTUM DE TABULIS EXHIBENDIS. ton, ClJ 39 (1943-44) 391 ; U. Brasiello, Repressione pe-
Ferrini, N D I l (s.v. actio ad e.) ; Aru, NDZ 5 ; Humbert, nale, 1937, 272.
DS 2; GrZ 36 (1909) 433; Lenelr GrZ 37 (I9'') Exirnere. T o exempt, to free, to release a person from
546; idem, Z S S 37 (1916) 116; idem, Edictum perpetuum3
(1923) 220; Beseler, Beihiige 1 (1910) 1 ; Last, IhJb liability (obiigatiOne), from 'pecial personal charges,
62 (1921) 120; Levy, Z S S 36 (1917) I ; Wlassak, Z S S such as guardianship ( a tutela), or from penalty
42 (1921) 435; G. Levi, Studi M. d'dmelio 2 (1933) 311. (poena, danznatione).-See EXEMPTIO.
464 ADOLF BERGER [TRASS. AMER.
PHIL. SOC.
Exire. When used of persons, to leave the family Expilare hereditatem (expilatio). T o purloin a thing
(de familia) by entering into another one or becom- belonging to an inheritance before the heir enters
ing sui iuris. Such steps were connected with exire upon it. See C R I M E N EXPILATAE HER EDIT AT IS.^^^^
de (ex) potestate (= to be released from the actual USUCAPIO PRO HEREDE.
power of the head of the family). When referring Expilator. A plunderer, a "more atrocious thief" (D.
to things (exire de familia, de nomine) exire = to 47.18.1.1).
depart from one property and enter another. Explere. T o fulfill (a mandate, a condition imposed
Existimare (existimatio). T o assume, to consider
by a testator, and the like). Explere tempus usuca-
(for instance, a thing belonging to another as one's
pionis = to possess a thing for the full time necessary
own). An erroneous belief (thinking) is irrelevant
for an uszlcapio.-See USU,-APIO.
from the juristic point of view. "More important is
Explorare (exploratio). In military service, to recon-
the truth (res) than the belief (existilfzare)" (D.
noiter, to try to get information about enemy troops.
22.6.9.4). Exceptionally, however, as in the case of In exfloratione esse = to be put at a place to ob-
USUCAPIO a wrong opinion of the possessor of a serve the movement. A soldier who leaves
thing may lead to his acquisition of ownership.-See such a post, even though forced to do so under the
ERROR. pressure of the enemy, was punished by death.
Existimatio. The respect or esteem a person enjoys in
Explorator. A scout, a spy.-See EXPLORARE, PRO-
society. "It is the state of undiminished dignity ap-
DITOR.
proved by law and custom" (D. 50.13.5.1). The
Bartoccini, D E 2.
existhtzatio of a person remains unharmed (integra,
Exploratus. In phrases like explorati iuris est,
as long as he does not commit a wrongdoing ratum est, it is established, ascertained (law).
or a crime by which it "is diminished or extinguished Exponere.
With reference to written deeds, to write
under the authority of the laws" (D. ibid.).-See
down (a donation, a security, cautio). The term
INFAMIA, TURPIS PERSONA, TURPITUDO.
C . Brasiello, La repressione penale, 1936, 546; Cicogna,
belongs to the language of the later imperial consti-
S t S e n 54 (1940) 51. tutions.
Exitus. See EVENTUS.
Exponere filium (liberum). T o expose, abandon a
E ~ T~ relieve,~ release~ (from a~debt, or ~a
child~in order to~ get rid of~it. By doing . so the father
public charge). Syn. exinzere. lost the patria potestas over the infant. The person
Expedire. T o settle a controversy through a trial or who took him home and brought him up (nutritor)
extrajudicially; to accomplish a legal act (e-g,, a as his Own Or as a acquired
manumission) ; to bear the expenses of a thing; to power over him and might sell him as a slave. Later
carry through as official matter. imperial legislation forbade the custom, but in vain.
Parents were given the right to redeem a child that
Expellere. T o dispossess a person by force from the
had been exposed, but were obliged to compensate the
use of his property. Syn. deicere de possessione.
person who had raised him. The latter had to declare
Expellere uxorem (virum). T o expel a wife (hus-
whether he would foster the child as free or slave,
band) from the common dwelling (domo) for the
until Justinian ordained that any exposed child was
purpose of divorce.
to be considered free.-C. 8.51.
Expendere. T o pay out, to spend. Rationes accepti Mau, R E 2 ( s 2). Aussetzunq) ; Weiss, R E 11 (s.2). Kinder-
et expensi = a house1)ook for entries of income and nussctzung) : Albertoni, A p o l ~ r r y s i s ,1923 ; Carcopino, L e
disbursements.-See CODEX ACCEPTI ET EXPENSI, droit rant. d'e.zpositio~z, .Ilbnzoircs de In Socic'ti dcs Anti-
EXPENSILATIO. quaires en France, SPr. 8, vol. 7 (1924-27) 59; Fournier,
R I I D 5 (1926) 302; Radin, CIJ 20 (1925) 337; Volterra,
Expensae. Expenses. Syn. IMI~ENSAE, SUMPTUS.
S t Resfn 1 (1939) 455; Lanfranchi, S D H I 6 (1940) ; P.
Expensae litis. Syn. sztl~tptzislitis, imjensae litis.- Delafon, Droit d'exposition d'enfants & Rome, These,
C. 7.51.-See SUMPTUS LITIS. Montpellier, 1942; C. W. Westrup, Introdzlctiolt to Early
Expensilatio. (From expensuvz ferrc.) The making It. Lazw, I , 1 sect. 1 (1944) 248; Solazzi, R I S G 86 (1949)
14.
of an entry in a ledger, 11y which a person was
charged with a debt in such fashion as if it were Exponere servum (in insulam Aesculapii). Sic]<
given to hilll as a loan. If made in the books of a slaves abandoned by their masters (on the island of
banker, it created an obligation, obligatio littcris con- Aesculapius in the Tiber) to avoid expenses for
tracts.-See CONTRACTUS, N O M I N A TRANSSCRIPTICIA. nletlical cure became free under an edict of the
A n o n , N D I 5 ; Appert, R H D 11 (1932) 625. emperor Claudius (A.D.46-47).
Expensum ferre. See EXPENSILATIO. Fasciato, R I I D 27 (1949) 452.
Experiri actione (interdicto). T o clain~a right by Exportare. T o send abroad (merchandise, slaves,
a suit (or interdict). Experiri ius = to pursue a etc.). Later imperial legislation forbade the export
right. Potrstas experiundi = the right to sue. of certain commodities (such as wine or oil) to enemy
Beretta, R I S G 85 (1948) 387. countries. Export of weapons of any kind to an
VOL.43, PT. 2 , 19.531 ENCYC1,OPEDlC DICTIONARY O F ROMAN LAW 465
enemy state was punished by death and seizure of iudicio sisti) that he will appear in court until the
property.-C. 4.41. end of the trial. In the case of his refusal. the
Expositio filii. See EXPONERE FILIUM. exsecutor may take him into custody. The exsecutor
Expostulare. To address a coinplaint to a magistrate. was also in charge of the execution of judgments. In
Expressa. "What was expressly stated is prejudicial, Justinian's procedure the institution of exsecutores
what was not expressed, is not prejudicial" (D. negotii underwent a radical change. They were pri-
50.17.195). The rule applies to statements concern- vate, influential individuals of high rank and their
ing the object of a sale.-See DICTA. functions were enlarged as well as their financial
Exprimere. T o express. The term is frequently ap- profits.-C. 12.60; Nov. 96.-See SPORTULAE.
plied to testamentary dispositions or legal norms in- Arangio-Ruiz, B I D R 24 (1911) 226; Partsch, Nachr.
Gotting. Ges. Wiss., 1911, 241; Rostowzew, R E 6 ; Thomas,
troduced by statutes, senntusconsulta and imperial Etudes Girard 1 (1912) 379; A. Steinwenter, Versiium-
constitutions.-See EXPRESSA. nisverfahren, 1914, 131; Balogh, S t Riccobono 2 (1916)
Expromissio (expromissor). See the following item. 449; P. Collinet, Procddure par libelle, 1932, 79, 464, 480 ;
Giffard, R H D 14 (1935) 732.
Expromittere (expromissio). T o transfer an exist-
ing obligation into a stipulatio by which a stipulatory Exsecutor testamenti. The term and the institution
obligation replaced the original debt. On this occa- are unknown to Roman classical law. According to
sion a change in the person of either the debtor or the modern conception the exsecutor testamente is a
the creditor might occur when the debtor stipulated person holding an estate in trust, and administering
his debt to a new creditor (with the consent of the and distributing it according to the testator's wishes.
former creditor) or when a new debtor (expromissor) The familiae emptor in the early Roman law fulfilled
assumed another's debt towards the same creditor. a similar task but the juristic structure of the two
Through such a transaction the former debtor was institutions is different. Later imperial legislation
released if the creditor agreed to it. Sometimes ex- recognized the designation of a person in a testament
promittere has the same meaning as promittere.-See for the fulfillment of specific dispositions of the testa-
DELEGATIO. tor connected with charitable purposes, such as ran-
De Villa, N D I 5. som of prisoners of war, foundations (piae causae),
Expugnare (navem, ratem). T o subdue by force (a and the like.
Kiibler, R E 5A, 1013 ( s . v . Testamentse~ollstrcckcr); E .
boat, vessel, rates = a bark, a raft).-D. 47.9. Caillemer, Origine de l'exhcution tcstammtaire, ,1901 ;
Exrogatio legis. A partial repeal of a statute through Bruck, GrZ 40 (1914) 533; B. Biondi, Successione testa-
the passage of a new One.-DEROGARE. mcntaria, 1943, 607; Macqueron, R H D 24 (1945) 150.
Exsecratio. A self-malediction. An oath was often Exsecutores. Officials in the late Empire authorized
combined with the imprecation of an evil or a curse to enforce the payment of taxes and fiscal debts.
upon oneself if one failed to carry out the terms of Syn. intercessores.
the oath. This made non-fulfillment a crime against Exsecutores rei iudicatae (sententiae). Officials
the gods which resulted in exclusion from sacred rites. charged with the execution of judgments.-See EXSE-
Pfaff, R E Suppl. 4 ; De Ruggiero, DE 2, 2182. CUTOR (NEGOTII) .
Exsecrationes (defixiones). Maledictions written on Exsequi. To perform a legal act, to pursue a matter
metal tablets and directed against a personal enemy in court to its end (actionem, litem), to prosecute a
of the writer. crime in a penal trial until sentence, to execute a
De Ruggiero, DE 2. judgment debt (sentenfiam, rew iudicatant) . Gen-
Exsecutio. (From exsequi.) With regard to crimi- erally exsequi is applied to the activity of the various
nal matters, prosecution of a criminal through accu- types of EXECUTORES.
sation and trial; in civil matters = the claim on the ~ x s i l i u m . See EXILIUM.
part of a creditor of his right against a debtor, in Exsistere. Condicio extitit, see CONDICIO.
particular against one who had been condemned in a Exsolvere (exsolutio). See SOLVERE,
SOLUTIO.
civil trial and did not fulfill the judgment debt. The Exspirare. T o become void, extinguished. Syn. eva-
execution of a judgment in a civil trial was either nescere, exstingui.
personal (on the person of the judgment debtor) or Exstare. To exist. Exstat = there is. The term is
real (on his property) .-C. 7.53.-See IUDICATUM, frequently used with reference to existing legal rules
LEGIS ACT10 PER M A N U S INIECTIONEM, PIGNORIS (exstat edictum, senatusconsulturn, rescripturn) to
CAPIO, ADDICTIO, DUCI IUBERE, MISSIONES I N POSSES- point out "there is" a legal norm for the case under
SIONEM, BONORUM VENDITIO. discussion.
L. Wenger, Actio iudicati, 1902, 7 ; A. d'Ors, A H D E 16 Exstinguere. To annul, cancel (an agreement, a con-
(1945) 747. tractual clause, a condition, a legacy). Exstingui
Exsecutor (negotii, litis, litium). A court clerk (syn. evanescere, exspirare) is applied to the extinc-
serving as an official organ of summons in the pro- tion of rights and the obligations connected therewith
ceedings of the later Empire. The defendant pays (an action, a servitude, a usufruct, a stipulation, a
fees to the exsecutor and must give security (cautio legacy).
466 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Exsul (exul). A man living in voluntary or com- narii (voluntary firemen) appear united with the
pulsory exile.-See EXILIUM. fabri in one association (collegiuw fabrorum et cen-
Exter, exterus. See EXTRANEUS. tonarioruwz). I n the earliest organization of the
Extorquere. T o extort, to force a person to give or Roman army, attributed to the king Servius Tullius,
to do something, or to perform a legal act (to promise there were two centuriae of fabri for all kinds of
by stipulatio, to give security).-See METUS,VIS. craftman's work.-See PRAEFECTUS FABRUM.
Extra iudicium. Outside the court, extrajudicially. Kornemann, R E 6 ; Jullian, D S 2 ; Liehenam, D E 3 ; H . C.
Maue, Praefectus fabrum, 1887, 50; idem, Die Vereine der
Extra ordinem. Beyond the normal order of things. fabri cenfonarii, Frankfurt, 1886; G. Kiihn, De opificunz R .
-See COGNITIO EXTRA ORDINEM, EXTRAORDINARIUS. condicione, Diss. Halle, 1910, 21 ; 0. Hirschfeld, Kleine
Wlassak, Kritische Studien sur Theorie der Rechfsquellen, Schriffen, 1913, 101 ; Schnorr v. Carolsfeld, Gesch. der
1884, 85 ; Lauria, ANap 56 (1934) 308; Orestano, StCagl jurisfischen Person 1 (1933) 281 ; Riccohono, F I R 2
26 (1938) 170. (1941) no. 87.
Extraneus (exter, exterus, extrarius). One who is Fabricenses. Workers in state factories (fabricae) for
outside; not belonging to a certain family or being arms and military equipment. They had a privileged
no relative of a certain person (for instance, of the position in the later Empire, but were subject to very
woman for whom one constitutes a dowry). Ex- rigid discipline. Desertion from their posts was
tranrus is also any third person not involved in a severely punished.-C. 11.lo.
given transaction or situation, as, for instance, in Seeck, R E 6.
-
possessory controversies between two persons, any Fabriles operae. See OPERAE.
one who never had possession of the thing under Facere. "The term includes all kinds of doing, as to
dispute. Syn. persona extmnea. give, to fulfill an obligation, to pay money, to judge"
Guarino, Z S S 61 (1941) 378. (D. 50.16.218). With reference to contractual obli-
Extraneus heres. A n outside heir who is not subject gations facere = to do (or not to do) something.-
to the testator's power at his death, and therefore is OBLIGATIO, CONTRACTUS I N N O M I N A T I .
Scherillo, B I D R 36 (1928) 29.
neither his heres suus et necessarius nor his heres
neccssarius. Such a n extraneus heres is an emanci- Facere aliquid alicuius. T o make a thing enter into
pated son, or a slave appointed as an heir and freed the ownership or possession of another.
in the testament who, however, had been manumitted Facere posse. T o be able to pay one's debts, to be
by his master (the testator) when he was still alive, solvent. I n certain civil actions the limit to which
hut after the testament was made. See NECESSARIUS a defendant can be adjudicated is set by in id quod
HERES. An extraneus heres was given an oppor- facere potest (= to as much as he can pay) ; see
B E N E F I C I U M COMPETENTIAE.
tunity to deliberate (DELIBERARE, izts deliberandi)
Guarino, S D H I 7 (1941) 5 ; G. Nocera, Insolvensa, 1942,
whether to accept the inheritance or not. Therefore 40; F. Pastori, Profilo dogvnafico dell'obbligazione rom.,
an explicit declaration of acceptance was required 1951, 131.
from him.-See VOLUNTARIUS HERES,PRO HEREDE Facinus. A general term for a criminal offense.
GERERE, T E M P U S AD DELIBERANDUM. Del Prete, AnMac 11 (1937) 106.
Solazzi, St Scorza, 1940. Facti est. See RES FACTI.
Extraordinarii. Selected army troops destined for b'actio. A combination of persons, a plot for criminal
particularly difficult tasks. purposes, in particular for organizing a sedition.
Liebcnam, IZE 6 ; Cagnat, D S 2. Factio testamenti. See TESTAMENTI FACTIO.
Extraordinarius. ]$'hat is extra ordincm, beyond the Factiones. Political unions for the purpose of the
normal order of things. See EXTRA ORDINEM..The realization of the political ambitions of thkir members
term is mostly applied to procedural institutions, both with the help of friends, clients and sympathizers.
civil and criminal (actio, iudicium, poena, cognitio, Strashurger, R E 18, 788; Maricq, Bull. CI. Lcttrcs, Acad.
fiersccutio, criwen, rri~zedizrnz).-D. 50.13 ; C. 47.1 1. Royulc de Belyicluc, 36 (1950) 396.
Factum. A thing done by a human being, also an
IUS EXTRAORDIKARIUM. event, a happening independent of human influence.
Extrarius. See EXTRANEUS. Factunz is often opposed to izrs. Res facti-rcs itrris
Exul. See EXSUL. = a matter of fact-a matter of law; facti cssc-iztris
Exurere, exurendum damnare. See CREMATIO.
cssr, qzrrstio facti-quacstio iuris. Condicio facti-
condicio iztris = a condition depending upon a fact-
a contlition imposed by the law. For the distinction
actionrs in factu~n-actionrs in ius concrptar, see
Fabri. Workers, craftsmen, artisans, e.g., fol~riti{jnarii F O R M U L A I C I N I U S CONCEPTAE ; for the distinction
(carpenters), frrrarii (forgers), argrnfarii (silver- error fncti-error iuris ( i n iurc), see ERROR FACTI,
smiths), etc. Fabri navales = shipl)uilders. liich I G N O R A N T I A IURIS.
material on the various organizations (collrgia) oE Vassalli, Artf'er 28 (1914) ; Georgescu, Scr Fcrriiti 3
craftsmen is found in inscriptions. So-calletl ccnto- (Univ. Sacru Cuure, Milan, 1948) 144.
VOL. 43, PT. 2, 19531 E N C Y C L O P E D I C DICTIONARY OF ROMAN LAW 467
Factum alienum. Something done by another person. With regard to coins the Lex Cornelia set penalties
See N E M O FACTUM ALIENUM, etc. Ant. factullz suullz for various kinds of forgery and for knowingly bring-
= something done by a person for which that same ing false money (see ADULTERINUS, FALSA MONETA)
person is responsible. "Everybody bears the conse- into circulation. blanifold crimes connected with
quences of his doings, not his adversary" (D. jurisdictional activity were later subject to the penal-
50.17.155 pr.). ties of the Lex Cornelia, as, for instance, the passing
Facultas. The legal ability to conclude an agreement of an unjust judgment with the intention of violating
or to accomplish a valid act ( a testament).-See existing laws, the giving of a bribe to a judge or the
LIBERA MORTIS FACULTAS. accepting of one by a judge, any kind of bribery in
Facultates (facultates patrimonii). Property, wealth. criminal rnatters to cause the dropping of an accusa-
The possession of a fixed fortune was a requirement tion or of the condemnation of a culprit, false testi-
for certain official positions. Thus, for instance, a mony or subordination of witnesses; furthermore the
decurio ( = councilor) of a municipal council had to refusal to accept state money, assunling false im-
have one hundred thousand sesterces. The patri- personation of an official, the counterfeiting of meas-
monial census of a knight (see EQUITES)was 400,000 ures and weights, etc. Penalties of the Lex Cornelia
sesterces. Obligations of maintaining other persons were various, primarily aquae cf ignis infcrdictio (see
(see ALIMENTA) are estimated according to the means INTERDICERE AQUA ET IGNI), for graver crimes de-
(pro nzodo facztlfafunz) of the person obligated.-See portation and death.-D. 48.10; C. 9.22; 23; 24.-
B E N E F I C I U M COMPETENTIAE. See QUAESTIONES PERPETUAE, PRODERE INSTRUMENTA,
Faenus. See FENUS. RESIGNARE.
Falcidia. Refers either to the statute lcx Falcidia or Hitzig, R E 6 ; Humbert, D S 2, 967; H . Erman, La falsi-
to the so-called quarfa Falcidia. See LEX FALCIDIA. ficatioiz des actcs darts I'at~tiqtritd,AiCI Nicole, 1905, 111 ;
Vassalli, B I D R 26 (1913). L. De Sarlo, Rcprcssiorze pcrtale del falso docu~nentale,Ri-J.
di dir. e proc. pertale 14 (1937) 317; Levy. B I D R 45
Falsa causa. An untrue, erroneous ground assigned by (1938) 60; Archi, Studi gtelle scicilze giul?' e sociali 26
a testator or donor as the motive for a legacy or gift. (1941) 3 5 ; ideirz, S t Paztia 26 (1941) 9.-On Lex Cornelia:
Generally, it had no influence on the validity of the Rotondi, Lcgcs publicac populi Rotilarti, 1912, 356; Cuq,
disposition.-C. 6.44. D S 3 , 1138.
Falsa demonstratio. See DEMONSTRATIO FALSA. Falsum testamentum. A forged testament. "It is
Falsa moneta. Counterfeit money, coins (nz(11111zi) no testament" (D. 50.16.221 ) .
made of tin or lead. Counterfeiters were punished Falsum testimonium. See TESTIMONIUM FALSUM.
under the L P . ~Cornelia de fa1sis.-C. 9.21.-See Falsus accusator. See CALUMNIA.
FALSUM. Falsus procurator. One who falsely assumes the role
Taubetlschlag, R E 16, 1455 (s.v. Jfiinsverbreclten). of another's representative (mandatary). H e is con-
Falsarius. One who comlnits a crinzcn falsi, such as a sidered a thief when he accepts money on behalf of
forger of documents, a counterfeiter of coins, meas- his non-existing principal.
ures, weights, and the like.-See FALSUIVI. H . Fitting, Scicirs dcbit~rrrl nccipcrc (Lausanne, 1926) 19.
Falsum. A general definition says: "falsum is that Falsus tutor. "A guardian who is not a guardian"
which in reality does not exist, but is asserted as (D. 50.16.221), a person who acts as a guardian
true" (Paul. Coll. 8, 6, 1 ) . In the field of penal (tutor or curator) without having been appointed as
law f n l s u ~ lcovers
~ any kind of forgery, falsification such.-See ACTIO PROTUTELAE, PRO
TUTORE GERERE.
or counterfeiting. The fundamental statute on falsztll~ -D. 27.6.
was the LPX Cornelia de falsis by Sulla (81 B.c.), E. Levy, Privotsfrt~feuntf Schi~tfrrr.ir.r.iafs.1915, 8 4 ; itiem,
also called the Lcx Cornelia fcstavzentaria or ntlln- Koirkrrrrenz tfcr Actionen 2. 1 (1922) 243 ; Sulazzi, AG
lltaria since it dealt with the forging of testaments 91 (1924) 133.
and counterfeiting of coins as well. The statute was Familia. The term "has received different meanings,
still in force in Just,inian's Digest and was applied it is referred 1)oth to things and persons" ( D .
to crimes which originally were not mentioned in it 50.16.195.1). Alreatly in the Twelve Tables it ap-
and only through srfiatuscons~rlfa,the interpretation pears in both senses: on the one hand enlhracing all
by the jurists and the' practice of the criminal courts persons who are untler the same paternal power (the
became punishal)le under the statute. With regard wife in 1iu1nu inclutletl) ant1 in a broatler sense, all
to last wills the destruction or concealing thereof was persons connected by I)lootl through descent iron1 the
a crillzcn falsi as well as the su1)stitution of a forged same ancestor, on the other hand referring to the
testament or a fra~~tlulent manipulation of the seals. whole property of a person, illrlucling all cor1)oreal
See SENATUSC0NSUr.TUM G E h l l N I A N U M , LIBONIANUM, things and slaves. In a narrower nleaning fa~ttilia
LICINIANUM. These decrees of the senate extended denotes all the servants (it1 setvifio) in a household,
the penalties of the Lr.r Cornelia to forgery of docu- in particular slaves allcl free men serving in good faith
ments other than wills, false testimony, producing as slaves.-See ACTIO r;.\al I L IAE I:RCISCUNDAE. CAI'I-
forget1 imperial enacttnents (cpistulne, rescriptu) . TIS D E M I N U T I O , E X I R E . FI1.IUS l'AMII.IAS, F I L I A F A h I I -
468 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
LIAS, MANCIPATIO FAMILIAE,PATER FAMILIAS,and into the fasces only when the magistrate exercised his
the following items. military power (imperium militiae, see DOMI).
Leonhard, R E 6 ; Sachers, ibid. 184, 2124 ; Baudry, D S 2 ; Samter, R E 6 ; De Ruggiero, D E 3 ; Treves, O C D ; De
De Ruggiero, D E 3 ; De Martino, N D I 5 ; C. W. L. Launs- Sanctis, Riv. di filologia 57 (1929) 1 ; Vogel, Z S S 67
pach, State and Family in Early Rome, London, 1908; (1950) 63.
P. Moriaud, De la simple famille parternelle, GenPve, 1910; Fasces. A list of tax-payers, in the later Empire.
A. Baudrillart, L a famille duns l'antiquitl, 1929; Wlassak,
Studien sum altriim. Erb- und Vermhchtnisrecht, SbWien
Fasti. See DIES FASTI.
215 (1933) 35; Cornil, R H D 16 (1937) 555; C. W . West- F a s t i consulares (consulum). Lists of consuls in
rup, Introduction to Early R. Law. T h e Patriarchal Joint chronological order according to the years in which
Family, 1-3 (1934-1944) ; idem, S t Albertoni 1 (1935) they were in office. There were also fasti of other
143; Henrion, Des origines du mot familia, AntCl 10 higher magistrates, as dictators, censors (fasti wagis-
(1941) 36; 11 (1942) 253; Burck, Die altrom. Familie,
in Das neue Bild der Antike 2 (1942) 156; Paribeni, Familia tratuuna) and of high priests (fasti sacerdotales) .
rontana, 3rd ed. 1947; C. Cosentini, S t sui liberti 1 (1948) Fasti is also used as the name of the official calendar
27; B. Albanese, Successione ereditaria (= AnPal 20, of dies fasti and nefasti.
1949) 143; Volterra, Sui 'mores' della 'familia' rom., Edition: Degrassi, Inscriptiones Italiae 13, 1, 2 (1947) ;
RcndLinc, Ser. V I I I , vol. 4 (1949-50) 516; M. Kaser, A. H. McDonald, OCD; Schon, R E 6; Bouchk-Leclercq,
La f. romataa, AraTr 20 (1950). D S 2 ; Liebenam. F. c. von 30 21. Chr. bis 565 n. Chr.,
Familia castrensis. See CASTREN SIAN I. 1910; G. Costa, I j. consolari, 1910; E. Pais, Ricerche sulla
storia 2 (1916) ; Cornelius, Untersuchungen zur friiheren
Familia pecuniaque. The whole property of a person. rom. Geschichte, 1940, 50; K. Hanell, Das altrom. eponyme
Pierron, Retrue gknirale de droit 19 (1895) 385; Pfaff, A m t , Lund, 1946 ; A. Degrassi, I fasti consolari dell'lmpero
Fschr Hanausck, 1925, 94 ; M. F. Lepri, Saggi sulla termi- romano dal 30 a.C. a1 613 d.C., Rome, 1952.
rtologia . . . dcl patrinzonio, 1 (1942) ; M. Kaser, Das
altriinr. Ius, 1949, 159; B. Albanese, Successione ereditaria Fatalis. See DIES FATALIS,D A M N U M FATALE.
(= AnPal 20, 1949) 134. Fateri. Syn. confiteri. See CONFESSIO.
Familia rustica. Slaves working on a rural estate; ant. Favor. (From favere.) A tendency in legislation,
fawilia urbana = slaves attachid to the househoid of jurisprudence or jurisdiction in favor of certain legal
their master in the city.-See VILICUS. institutions (testament, dowry, liberty). The inten-
Familia urbana. See the foregoing item. sity of such tendencies varied through the centuries
Familiae emptor. A trustee to whom a testator trans- and assumed particular strength in Justinian's law,
ferred his property through a testawenturn per aes et but their origin goes back to classical ideas. The
libram and gave oral instructions (NUNCUPARE) as modern Romanistic literature inclines to ascribe these
to the distribution of it after his death.-See MAN-
tendencies to Justinian's reforms, a doctrine which
CIPATIO FAMILIAE, NUNCUPATIO.
hardly can be true since in various instances the
jurists reveal in their writings a favorable attitude in
Familiares. T h e servants in a household.
specific decisions even though they do not use the
Familiaris. Concerned with, belonging to the family. word favor. See the following items.
-See RES FAMILIARIS, SEPULCRUM FAMILIARE, SACRA Guarneri-Citati, Indice' (1927) 39 (Bibl.).
FAMILIARIA. F a v o r debitoris. The tendency to interpret contrac-
Famosus. ,An action (actio, iudiciullz, causa, delic- tual clauses in cases involving debt in favor of the
turn) involving infamy for the defendants.-See debtor. With regard to stipulatio there was the
ACTIONES FAMOSAE, C A R M E N FAMOSUM, LIBELLI FA-
following rule: "if it is doubtful what was agreed
MOSI, F E M I N A FAMOSA. upon, the words are to be interpreted against the
F a r , farreum, farreus panis. See CONFARREATIO. creditor" (D. 35.4.26). A larger application of the
Fas. (As opposed to ius.) The moral law of divine rule in civil trials is expressed in the saying: "de-
origin, whereas ius is law created by men. The two fendants should be treated more favorably than plain-
terms appear together in the phrase ius fasque. F a s tiffs" (D. 50.17.125). The legislation of the Chris-
is what gods permit, nefas what they forbid. I n its tian emperors openly acted in favor of the debtors.
widest sense fas is what is permitted by law or F a v o r dotis. The law of the dowry is governed by
custom. the tendency to favor the constitution of a dowry and
Berger, R E 10, 1213; Kiibler, D E 3 ; Ferrini, N D I 5 ; its preservation during marriage so that, in the event
Beduschi, R I S G 10 (1935) 209; F. Di Martino, Giurisdi-
sione, 1937, 218; Orestano, B I D R 46 (1939) 194 (Bibl.), of the restitution the dowry would remain undimin-
276; Goidanich, Atti Accad. d'ltalia, Ser. 8, v. 3 (1943) ished, as far as possible. "It is in the public interest
499; M. Kaser, Das altrom. Ius, 1949, 29; Latte, Z S S 67 that dowries be preserved for the women" (D. 23.3.2).
(1950) 56. -See DOS.
Fasces. A bundle of rods with an axe in the middle. F a v o r libertatis. "Whenever an interpretation re-
carried by lictors before consuls and higher magis- garding liberty is doubtful, the answer should be in
trates when they appeared in public or on other spe- favor of liberty" (D. 50.17.20). The simplification
cific occasion. The axe symbolized the power to of the forms of manumission is an expression of this
impose the death penalty (ius gladii) and was put favor libertatis as well as the admission of cases in
VOL.43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAK LAW 469
which a slave becomes free without manumission. Tables the legislation often intervened with the limi-
Particularly obvious is the faz~orlibertatis in decisions tation of the rate of interest. See FENUS UNCIARIUM,
concerning testamentary manumissions which are de- FENITS SEhlIUNCIARIUM, LEX GENUCIA, LEX MARCIA,
clared valid where according to a strict interpreta- LEX CORNELIA POMPEIA. Under the Empire the rate
tion of the law they would be void. Justinian called of twelve per cent was termed fenus licitu~n,usurae
himself "a favorer of liberty" (fautor libertatis, C. legitinzae. A creditor who took higher interest could
7.7.2.2) .-D. 40.8.-See LIBERTAS, MANUMISSIO. be sued for four times the amount exceeding the legal
I. Pfaff, Z u r Lehre v o m f. l., 1894; Schulz, Z S S 48 (1928) rate. Justinian considerably reduced the highest ad-
197; Rotondi, S c r giuridici 3 (1930) 476; Albertario, missible rate, set different rates according to the
S t u d i 1 (1933) 63; M. Nicolau, Causa liberalis, 1933, 174;
219; Orias, A C I I 1 (1935) 153; Imbert, R H D 27 (1949) nature of the loan and abolished the fourfold penalty.
274. -See USURAE,PECUNIA FENEBRIS. EXERCERE PECU-
Favor testamenti. A tendency to declare a testa- NIAM,and the following items.
ment valid despite some doubts in this respect, in Klingmuller, R E 6 ; Baudry, D S 2 ; G. Rotondi, Leges pub-
licae po)uli rom., 1912 ( E ~ t e i c l .giuridica ital.) ; Kling-
order to realize the will of the testator. Interpreta- muller, Z S S 23 (1902) 23.
tion of anlbiguous testamentary dispositions was gov- Fenus licitum. See the foregoing item.
erned by the desire to fulfill the wishes of the testa-
Fenus nauticum. A loan given in connection with the
t o r ; hence, the frequent statements in juristic writ-
ings urging that his will (z~olzlntas)be interpreted transportation of merchandise by vessel. The loan
favorably (benigne, plenius).-See B E N I G N A INTER-
had to be repaid only when the ship arrived safely
PRETATIO, BENIGNE. in port with the cargo. Because of the risk which
E. Costa, Papiniano 3 (1893) ; A. Suman, Fazlor t.. 1916; the loan-giver assumed (shipwreck, piracy), the rate
B. Biondi, S u c c c s s i o ~ ~tcsta~iterztaria,
c 1943, 7. of interest was unlimited until Justinian fixed it at
Felicissimus. A n honorific title given to emperors in 12 per cent. Syn. usztrae ~ r ~ a r i t i m a e .The money
inscriptions. loaned was called pecunia traiecticia as "money con-
De Ruggiero, DE 3. veyed overseas," since either the nloney itself or the
Femina. A woman. "Women are barred from all cargo bought by it was to be transported by boat.-
civil and public office and therefore they cannot be D. 22.2; C. 4.33.
Klingn~iiller,R E 6, 2200; Cuq, D S 2 ; Heichelheim, O C D
judges, hold a magistracy, bring a suit, intervene for (s.v. bottolnry loan) ; F. Pringsheim, Kauf $nit frcmdem
another, or be a representative in a trial" (D. 50.17.2 Geld, 1916, 143; Nicolau, hftl Jorga, 1933, 925; De Mar-
pr.). I n many legal matters the position of women tino, RDlVav l (1935) 217; Biscardi, S t Albertoni 2
was inferior to that of men. Several restrictions on (1937) 345; i d e ~ n ,S t S e n 60 (1948) 567; De Martino,
their capacity were imposed in the law of successions R D N a v 15 (1949) 19.
and obligations. As long as the guardianship. over Fenus semiunciarium. A rate of interest amounting
women was in force. thev, were not able to conclude
,
to one-half of the FENUS UNCIARIUM.It was intro-
legal transactions or manage their affairs without the duced by a plebiscite of 347 B.c.-See the following
consent of the guardian. rZ wonlan could not be a item.
guardian ; an exception was later introduced in behalf Fenus unciarium. The rate of interest established by
of a mother if there was no tutor appointed in a the Twelve Tables. It was one zincin (one-twelfth of
testament or 1)y law. She had, however, to assume the suin loaned) per annum (81/{! per cent), or when
the obligation not to marry again. Postclassicai de- the year was reckoned as ten months, 10 per cent.
velopn~entand Justinian law brought some refori~ls Some scholars assume that such interest was paid
towards the equalization of the sexes under the law monthly making 100 per cent per annum, which does
but some substantial differences remainetl even in not seen1 likely, although the other calculation ap-
Justinian's codification.-See TUTELA MUI.IERUM, LEX pears too low for the primitive econoiny of the fifth
VOCONIA, SENATUSCONSULTUM VELLEIANUM, MULI- century B.C.
ERES. G. Billeter, Gcsrllichte der Zirzsfzrsscs, 1898, 157; Appleton,
Couch, Ti~otrrarti tt Etrrly R. Ln7c1, Hnrzurd L R 8 (1894/5) R N I ) 43 (1919) 467; Scialoja, B I L ) R 33 (1921) 240 (=
3 9 ; Wengcr, Z S S 26 (1905) 419; Frezza, A c g 11 (1931) S t gitlr. 2, 287) ; Kubler, Gcst-liirirfc, 1925, 47; Nicolau,
363%; iticrtt. StCngl 22 (1933) 126; Rrassloff, Z S S 41 h l i l Iorga, 1933, 925; L. Clerici, Ecortoltrin c fitrarzza dei
(1921) ; idctrz, S t zrcr rout. Rcchtsgcscl~.I . Ir~fcstatcrbrcrllt Romani, 1 (1943) 352 ; Arangio-Ruiz, Istiftcziotl? (1947)
dcr Frattctt, 1925; Volterra. U I D R 48 (1941) 74. 304 ; E. Weiss, I~wtitutiorrcrt?(1949) 304 ; Kunkel, Rolrt.
Femina famosa (probrosa) . See MERETRI s Kccllta (1949) 182.
Nardi, S t S a s 16 (1938). Fera (bestia). il wild animal. It was considered a
Femina stolata. See MATRONA. rcs nz~llius. I'l'hen caught (not merely wounded) it
Fenerator. hloney-lender, usurer.-See FENYS,LEX became the property of the captor and remained
h1ARCIA. such as long as it was in his custody. After regain-
Fenus (faenus). Interest paid by the debtor to the ing its natural 1il)erty it could be the object of an-
lender. Syn. ttslrrae. From the time of the Twelve other occupatio. A wild animal belongs to res nec
470 ADOLF BERGER [TRANS. A M E R . P H I L . SOC.
whole, the owner of the part which was illegally
T U h l DE FERIS, OCCUI'ATIO. VENATIO.
joined could claim its restitution after having en-
N D
I 2, 588; idcttz, AG 29
Kaser, R E 7A, 684; La~~tlucci, forced its separation through actio ad cxltibcndtt~~z.
(1882). -See CORPUS E X COHAERENTIBUS, PLUMBATURA,
Ferendus non est. Said when the reasons (excuses) ACT10 AD EXHIBENDUM.
alleged in court by a person to justify his acting, are Leonhard, R E 1 (s.zj. adpluvlbatio) ; Parnpaloni, Scritti 1
not to be taken into consideration. (1941, written 1879) 9 ; Bozzi, N D I 5.
Feriae (dies festi). Days on which agricultural, in- Festi dies. See FERIAE.
dustrial and other kinds of labor, even that of slaves Festuca. A stalk of grass, later a rod, used in earlier
to a certain extent, were suspended, as well as all law when a thing was claimed by rei vindicatio or
judicial activity (eacatio a forcnsibtcs negofiis), Such in specific form of manumission (nzanu~~zissio vin-
days were dedicated primarily to religious ceremonies dicta).
and popular festivals. Any offence against such holi- Nisbet, J R S t 8 (1918) ; MeJlan, La baguette, M i l F.
days was 1)unished. There were also extraordinary Guisan (Lausanne, 1950).
frriac plihlicnr, as on the occasion of a victory or an Fetiales. A group of twenty .priests who from the
accession to the throne. Fcviae privatae (anniver- earliest times were charged not only with religious
saries, coinn~emorativedays in associations, see COL- functions, but also with public service, in particular
LEGIA)considerably increased the number of holidays in international relations with other states. Their
on ~vhichany labor ceased. At the beginning of the duty was to observe whether or not the terms of
Principate the number of public holidays amounted to international treaties were being fulfilled. They were
forty-eight. The whole matter was later regulated involved in the concluding of treaties, in affairs of
by a law of A.D.389, which also took into considera- extradition, and were representatives of Rome in
tion Christian holidays.-D. 2.12; C. 3.12. serving official declaration of war. In their mis-
Wissowa, R E 6 ; Jullian, D S 2 ; De Ruggiero, D E 2, sions abroad they were headed by one of them whose
1782 ; Weinberger, D E 3 ; De Robertis, Rapporti d i lavoro, official title as the speaker of the delegation was
1946, 278 ; J. Paoli, RI-ID 30 (1952) 304. pater patratus.
Feriae Latinae. See PRAEFECTUS URBI. Samter, R E 6 ; A. Weiss, D S 2 ; De Ruggiero, D E 3 ;
Samter, R E 6 ; Jullian, D S 2. Ferrini, N D I 5, 928; Rose, O C D ; Frank, ClPhilol 7
Feriaticus (feriatus) dies. Holidays on which agri- (1912) ; Volterra, Scritti Carnelutti 4 (1950) 248.
cultural and industrial labor ceased. Work connected Ficta possessio (fictus possessor). See POSSESSOR
with the military service had to be done. Some acts FICTUS.
of voluntary jurisdiction as, e.g., the appointment of Fictio. (From fingere.) The assumption of the ex-
a tutor or curator, were permitted.-See FERIAE. istence of a legal or factual element, although such
Ferrariae. Iron mines.-see PROCURATOR FERRARI- an element does not exist. The purpose of a fiction
ARUM. is to cause certain legal consequences which other-
De Ruggiero, D E 3. wise would not occur. For fictio in the procedural
Ferre. See FERENDUS N O N EST. formula, see ACTIONES FICTICIAE.
Ferre expensum. See EXPENSILATIO. R. Dekkers, La fiction juridique, 1935.
Ferre iudicem. T o propose to one's adversary in a Fictio legis Corneliae. See LEX CORNELIA DE CAPTIVIS.
trial a certain person from the panel of jurors (album Fideicommissaria hereditas. See FIDEICOMMISSUM
iudicunz) to be judge in the controversy. Sumere HEREDITATIS.-Inst.2.23.
iudicem = to accept the proposal; eierare = to reject, Fideicommissaria hereditatis petitio. See HEREDI-
to refuse (under oath). TATIS PETIT10 FIDEICOMMISSARIA.
Ferre legem. T o propose (bring in) a law, to enact, Fideicommissaria libertas. Liberty granted through
to make a law. a fideicommissurn.-D. 40.5 ; C. 7.4.-See MANUMIS-
Ferre opem. See OPE CONSILIO. SIO FIDUCIARIA, SENATUSCONSULTUM DASUMIANUM,
Ferre sententiam. T o pass a judgment. RUBRIANUM, VITRASIANUM.
Ferre suffragium. T o vote. Montel, S t Bonfante 3 (1930) 633.
Ferre testimonium. T o bear testimony. Fideicommissarius. (Noun.) Indicates sometimes a
Ferri iubere. See DUCI IUBERE. person awarded with a fideico~.nrnissum,sometimes an
Ferruminatio. The junction of two objects of the heir charged with one.
same metal, for instance, a bronze arm with a bronze Fideicommissum. (From fidei alicuius cornmittere.)
statue. When the parts belonged to different own- Originally a request addressed by the testator to his
ers, the owner of the principal part became owner of heir ("te rogo," "peto a te") to carry out a certain
the whole. This was not the case when the soldering performance (payment of a sum of money, transfer
metal was different, as, for instance, when in the of property) to the benefit of a third person. It
example above plumb was used (adplumbatio). If created only a moral (not legal) duty. Augustus
separation is possible without destruction of the rendered the fideicom?.nissurn obligatory to the heir
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTI(3NARY O F ROMAN LAW 471
and made it enforceable by a new procedure (cog- nzitto" ( = I leave it to your faith, honesty). Other
nitio extra ordinem) before a special magistrate words could, however, be used as well (peto, rogo,
created for the purpose, the praetor fideicom~nissarius. volo, etc.).
Fideicommissum was formless and this advantage Fideiussio. fideiussor. See ADPROMISSIO.
over legacies in the form of legata furthered its devel- ~ i d e i u s s o r fideiussoris.
' A surety who assumes guar-
opment. Anybody who received a gift wortis causa anty for another surety.
(not only an heir) might be charged with a fidei- Fideiussor iudicio sistendi causa. See VINDEX, VADI-
commissum. Not even a testament. without which a MONIUM, SISTERE ALIQUEM.
legacy could not be bequeathed, was necessary since a Fideiussor tutoris (curatoris). A surety for a guard-
fideico?nmissum could be imposed on an heir at intes- ian (tutor or curator) .-D. 27.7; C. 5.57.
tacy. The differences between fideicommissa and Fideipromissio, fideipromissor. See ADPROMISSIO.
legata gradually disappeared and under Justinian Fidem alicuius sequi. (Syn. fidem habere alicui.) T o
both institutions were considered equal (per owtnia ~ u faith
t in one's honest;. to trust.
d ,
exaequata sttnt, D. 30.1) .-D. 30; 31 ; 32 ; C. 3.17; Fidem praestare (conventioni, pacto). T o perform
6.42-46.-See FIDEICOMMITTERE, SENATUSCONSUL- the obligations assumed in an agreement. Syn. fidem
T U M PEGASIANUM, CODICILLI, ORATIO HADRIANI, ORA- servare ; ant. fidemn fallere, fidem rumpere.
T I 0 MARCI. Fides. Honesty, uprightness, trustworthiness. In
Leonhard, R E 6 ; Humbert, D S 2 ; Trifone, N D I 6 (1002) ; legal relations fides denotes honest keeping of one's
Kiibler, D E 3 ; Milone, I1 fedecommesso romano, 1896; promises and performing the duties assumed by
Declareuil, M i l Gdrardin (1907) 135; Riccobono, M i l
Cornil 2 (1926) 310; R. Trifone, I1 fedecommesso 1914; agreement. On the other side fides means the con-
Lemercier, R H D 14 (1935) 443, 623; B. Biondi, Succes- fidence, trust, faith one has in another's behavior,
sione testamentaria, 1943, 289; F. Schwarz, Z S S 68 (1951) particularly with regard to the fulfillment of his lia-
266. bilities. See FIDEM ALICUIUS SEQUI. For fides as
Fideicommissum a debitore relictum. A fideicom- the element of reciprocal confidence in contractual
misstun by which the testator ordered his debtor to relations, see IUS GENTIUM ; for fides in the promis-
pay the debt not to the heir but to a third person. sory formulae by which one assumes guaranty for
G. Wesenberg, Vertriige zu Gunsten Dritter, 1949, 56. another, see A D P R O M I ~ ~ I OBONA . - ~ ~FIDES,
~ CON-
Fideicommissum hereditatis. A fideicommissum con- TRACTUS BONAE FIDEI, IUDICIA BONAE FIDEI, EMPTOR
cerning the whole estate or a part of it. A fidei- BONAE FIDEI, LIBER HOMO, etc., USGCAPIO, POSSESSOR
commissary honored by such a fideicommissum became BONAE FIDEI, MALA FIDES.
either successor to the entire inheritance or co- De Ruggiero, D E 3, 77; Heinze, Hermes 64 (1929) 140;
successor with the heir who had been charged with Frankel, Rheinisches Museum fur Philol. 71 (1916) 187;
the fideicommissum (the fiduciary heir). The latter W . Flume, Studien zur Akzessorietiit, 1932, 64; Beseler,
remained the heir (heres) but he had to transfer the Fides, A C D R Roma 1 (1934) 135; Hermesdorf, A C I I 1
(1935) 161 ; F. Schulz, Principles of R . Law (1936) 223 ;
pertinent portion to the fideicommissary; for the Kunkel, Fschr Koschaker 2 (1939) 1 ; Dulckeit, ibid. 316;
transfer of the testator's claims and debts reciprocal Condanari-Michler, Scr Ferrini 3 (Univ. Sacro Cuore,
stipulations were made (stipulationes emptae vendi- Milan, 1948) 90; Kaser, Das altromische Ius, 1949 (pas-
tae hereditatis) by which the fiduciary heir obligated sim) ; Frezza, Nuova Riv. dir. cam. 2 (1949) 31.
himself to restitute the fideicommissary the payments Fides bona. See BONA FIDES.
received from the debtors of the deceased, whereas Fides instrumentorum. The credibility, the conclusive
the fideicommissary assumed the liability to indemnify force of documents as means of evidence. Similar
proportionally the heir for payments- made to the applications of the term: fides scripturae, fides tabu-
creditors of the estate. For later reforms which di- larum; with regard to witnesses and their testi-
rectly gave the fideicommissary the legal situation of mony: fides testimonii, testium.-D. 22.4; C. 4.21.
an heir and made the stipulations superfluous, see Archi, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 15.
SENATUSCONSULTUM TREBELLIANUM and PEGASIA- Fiducia. An agreement (pactumn fiduciae) in addition
NUM. Justinian simplified the whole matter and to a transfer of property through mancipatio (or in
gave the fideicommissary the position of a universal iure cessio) by which the transferee assumes certain
successor (heredis loco) .-Inst. 2.23.-See HEREDI- duties as to the property transferred or the later
TATIS PETIT10 FIDEICOMMISSARIA, C O M M U N I C A R E LU- retransfer thereof to the transferor. The agreement
CRUM. EXCEPT10 RESTITUTAE HEREDITATIS. is based on the transferor's trust (fides, fiducia) to
~emercierR , H D 14 (1935) 462, 623; La Pira, S t S e n 47 the honesty of his partner. The transferor had an
(1933) 243. action (actio fiduciae) against the trustee if, con-
Fideicommissum liberatatis. See MANUMISSIO FIDEI- trary to the fiduciary agreement, the latter refused
COM MISSARIA. to retransfer the property. On the other hand, the
Fideicommittere. See FIDEICOMMISSUM. Fideicom- trustee had an actio fiduciae contraria for the recov-
mittere was the term used by the testator when he ery of expenses and damages caused by the thing
addressed his request to his heir: "fidei tuae com- mancipated. Fiducia means sometimes the thing
472 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
given in fiduciam or fidttciae caiisa. For the manifold Fiduciaria res. A thing ( a slave) transferred fiduciae
applications of fiducia, see C O I ~ M P T I OFIDUCIAE CAUSA, causa. See FIDUCIA and the foregoing item.
and the following items. Fiduciarius. (Adj .) See COEMPTIO, TUTELA FIDUCIA-
Manigk, R E 6; Baudry, D S 2 ; Carrelli, N D I 5; Kubler, RIA.
D E 3; Rotondi, Scr giur. 2 (1922) 137; Grosso, A d a m
(1929) 81; C. Longo, CentCodPav 1933; De Martino, Filia familias. A daughter under the paternal power
Giurisdizione, 1937, 90 ; C. Longo, Fiducia (Corso) 1933 ; of her father or a paternal ascendant. She is alien;
W. Erbe, Die f. i m rom. R., 1940; Collinet, S t Besta 1 iwis and becomes sui iuris through etnancipatio or
(1937) 91 ; Kaser, Z S S 61 (1941) 153; Kreller, Z S S 62 marriage combined with in manum conventio by
(1942) 143.
which she enters into the family of her husband
Fiducia cum amico. A fiduciary agreement concluded where she is filiae familias loco under the paternal
with a friend on the occasion of a transfer of owner- power of the head of her husband's family. I n an-
ship under specific circumstances for the purpose cient law it was the father who promised his daughter
"that the thing be safer with him" (Gaius, Inst. 2.60). into marriage through sponsio and who had the right
Such a transaction could Serve for a deposit or a to d;ssolve her if she in his pa-
gratuitous loan of a thing (co.mmodatum), the fidu- ternal power. Later only his consent was necessary
ciary assuming the duty to retransfer it to the de- for the daughter's betrothal and marriage but a tacit
positor or comtnodator. one sufficed. His right to dissent was limited in
Fiducia cum creditore. A kind of pledge. The debtor Justinian law, and so was his right to influence the
transferred the ownership of a thing given as a real daughter's divorce,-See PATRIA POTESTAS.
security to the creditor through rnancipatio or in iure Moriaud, Mkl Girard 2 (1912) 291 ; Solazzi, B I D R 34
cessio. The latter assumed the obligation to retrans- (1925) ; idem, S t Albertoni 1 (1935) 41 ; G. Longo, B I D R
fer the thing to the debtor after the debt was paid. 40 (1932) 201; Brassloff, S t Riccobono 1 (1936) 332; De
Martino, Giurisdizione (1937) 328; Caes, SDHI 5 (1939)
For the pertinent actions, see FIDUCIA. An example 122; Vplterra, R I D A 1 (1948) 224.
of a fiducia cum creditore is epigraphically preserved
Filli. Sons, children. I n a broader sense the term
in the so-ca11ed BAETICA' kind of also embraces descendants (nrpotes, pronepoter).
pledge did no longer exist in Justinian's law. The Lanfranchi, StCagl 30 (1946) 23.
term was canceled by the compilers of the Digest
Filius adoptivus. An adopted son.-See ADOPTIO.
everywhere in classical texts and substituted by an- De Ruggiero, D E 3, 89.
other term, primarily by pignus.-See FIDUCIA
(Bibl.). Filius familias. A son under the paternal power (in
Hazeltine, in R. W. Turner, The Equity o f Redemfition, potestate) his father (pater famiLias) Or paternal
Cambridge, 1931, p. xiii ; C. Longo, CentCodPav 1934,795 ; ascendant. Ikscendants (grandsons, great-grand-
Rabel, Senz 1 (1943) 39; A. Burdese, S t Solazzi, 1948, sons have the same legal status as their father (or
324; idem, L e x commissoria e ius vendendi nella Fducia, grandfather, respectively) who is under the patria
1949.
potestas of the head of the family. A filius familias
Fiducia manumissionis causa. The conveyance of h, no property of his own; all his acquisitions be-
the ownership over a slave to a fiduciary under the come property of his father. The introduction of a
agreement that the slave be manumitted. The Pur- separate property of the son, peculium, brought a
pose of such a transaction was to make the fiduciary change in this regard. seePECULIUM. A major
the Patron the slave manumitted or to elude the filius familias has full capacity to conclude legal trans-
legislation which restricted manumissions, see LEX actions but he does not obligate his father unless he
FUFIA CANINIA, LEX AELIA SENT% LEX I U N I A NOR- acts under his order or under specific circumstances ;
BANA. such transactions in fraudew legis (= to de- PECULIUM, IUSSUM, ACTIO TRIBUTORIA. A filius
fraud the law) were void. familias could not marry without the explicit consent
Grosso, R I S G 4 (1929) 251. of his father. In Justinian's law the son could com-
Fiducia remancipationis causa. An agreement made plain to the competent authority about an unjustified
with a third person by a father who wished to eman- refusal. A filius faunilias,a s a person alieni igris,
cipate his son from paternal power, by which agree- became sui iuris at the death of his father if he was
ment the fiduciary assumed the duty to remancipate under immediate paternal power of the deceased.
the son to the father until, after the third remancipa- With the consent of the father the son was freed from
tion, the son was free from the paternal power.- paternal power through EMANCIPATIO.-C. 2.22 ;
See EMANCIPATIO. 4.13; 10.62.-See PATRIA POTESTAS, PATER FAMILIAS,
Fiduciae causa. Refers to transactions (muncipatio HERES suus ET NECESSARIUS, BONORUM POSSESSIO
or in iure cessio) creating a fiduciary relation be- UNDE LIBERI,IUS VITAE NECISQUE,INTERDICTUM DE
tween the contracting parties and imposing on the LIBERIS EXHIBENDIS, TESTAMENTI FACTIO,I UDICIUM
trustee the duty of performing under certain condi- DOMESTICUM, VINDICATIO FILII, NOXA,EX RE, EX-
tions a legal act entrusted to him. HEREDARE, PECULIUM, OBLIGATIO NATURALIS.
Betti, BZDR 42 (1934) 299; Brasiello, RZDA 4 (1950) 201. Solazzi, BZDR 11 (1899) 113; idem, RZSG 54 (1914) 17,
VOL. 43, PT. 2 , 19.531 E N C Y C L O P E D I C DICTIONARY O F ROMAN LAW 473
273 ; P. Moriaud, La simple famille patrrnelle, 1912 ; De- inces. The creation of the fiscus under the Principate
clareuil, Mkl Girard 1 (1912) 315; Philippin, M i l Cornil did not abolish the AERARIUM POPULI ROMANI which
2 (1926) 224; Kaser, Z S S 58, 59 (1938, 1939) ; idem, remained under the control of the senate. The fiscus
S D H I 16 (1950) 59; Volterra, R I D A 1 (1948) 213.
was administered by imperial officials ( a rationibus).
Filius iustus. A son born in a legally valid marriage Procuratores fisci appointed the emperor decided
(iustae nuPtiae). In Justinian'~language the term controversies between the fist and private individuals.
filius legiti~nusprevails. The fisc gradually assumed a more privileged posi-
Filius legitimus. See the foregoing item. tion towards private individuals who were its debtors
Filius naturalis. As an ant. to filius adoptivus, filius (DEBITOR F ISCI). the course of tirne (first half
naturalis indicates a child born in a marriage. O n the third century) the fiscus absorbed other public
the other hand, filius naturalis is a child born in a funds, the aerariunz Snturni (fiofiuliRoMani) and the
marriage-like union, contuberniurn, and from the time aerariunzmil it are,-^. 49.14 ; C. 10.1 ; 8 ; 9 ; 2.17 ;
of Constantine a child issued in a concubinage. This 2.36; 3.26; 2.8; 7.73 ; 10.1-9.-see ADVoCATUs FISCI,
latter significance predominates in Justinian's lan- ARCA,AERARIUM, IUS FISCT,LARGITIONES,
FRAGMEN-
guage where it comprises any illegitimate child. Chil- T U M DE IURE FISCI, RES PRIVATA,
MULTA FISCO DEBITA,
dren born in a concubinage may become legitinzi in A RATIONIBUS, HYPOTKECA O M N I U M BONORUM, DE-
later law a subsequent marriage the parents FERRE FISCO, NUNTIARE FISCO, SENTENTIA ADVERSUS
(legitiljzatio per subsequens matrimonium, a term FISCUM,R ETRACTARE CAUSAM, USURAE FISCAEES, RES
coined in literature). The emperor could grant an FISCI, PRAEDIA FISCALIA.
illegitimate child the position of a filius legitimus by Rostowzew, R E 6 ; idem, D E 3 ; Humbert, D S 2 ; Stella-
a special privilege (her rescripturn principis) .-C. Maranca, N D I 6 ; Vassalli, S t S e n 25 (1908) ; L. Mitteis,
5.27.-See CONTUBERNIUM CONCUBINATUS, LEGITI- R o ~ Privatrecht,
. 1908, 349; Weiss, Z S S 53 (1933) 256;
MATIO.
S. v. Bolla, Die Entwicklung des F., 1938; P. W. Duff,
Personality in R . Law, 1938, 51; B. Eliachevitch, La per-
Steinwenter, R E 16 (s.v. naturales liberi) ; De Ruggiero, sonnalite' juridique, 1942, 33; Last, J R S 34 (1944) 51;
D E 3, 85; Weiss, Z S S 49 (1929) 260; C. A. Maschi, Sutherland, Amer. Jour. of Philology 66 (1945) 151;
Conceaione naturalistica, 1937, 51; Wolff, S e m 3 (1945) Jones, J R S 40 (1950) 23.
24; H. Janeau, De l'adrogation des liberi naturales, 1947,
15 ; castello, RIDA 4 (= M ~ D~ J risscher, 1948) 267 ; F~SCUS
Iudaicus. A central fund in Rome for revenues
!.anfranchi, StCagl 30 (1946) 24. from the poll-tax paid by the Jews in the whole em-
Fines (finis). Boundaries of a landed (rural) prop- pire.
erty. Syn. confiniurn.-D. 10.1 ; C. 3.39.-See ACTIO Rostowzew, R E 6,2403 ; T . Reinach, D S 3, 625; Ginsburg,
Jewish Quarterly Review 21 (1930/31) 281; J. Juster, Les
F I N I U M REGUNDORUM, AGRIMENSORES, CONTROVERSIA
Juifs duns l'Empire romain, 2 (1914) 282.
DE FINE.
Flagellum. See CASTIGARE.
Leonhard, R E 6 ; Anon., N D I 6 ; Schulten, D E 3.
Fougeres, D S 2.
~ i n (fingamus).
~ e Suppose (let us suppose) that. Flagitium. A crime against good customs, chiefly a
The are be a cornpila- military infraction. The term acquired later a more
tory addition introducing a hypothetical case which general meaning.
was not discussed by the classical jurist in his original Reichenbecher, De vocr4m scelus, flagitium, etc. apud
work. Glosses or interpolations thus introduced do priscoe scriptores usu, Diss. Jena, 1913; Volterra, A G 111
not prejudice, however, the classicity of the decision (1934).
itself. Flamines. Priests in early Rome. A pamen was as-
Guarneri-Citati, Indice' (1927) 40. signed to the service of a specific deity, primarily for
Finiri. T o come to an end. A controversy is ''con- performing sacrifices. There were altogether fifteen
sidered finished when it was brought to an end by flamines of whom three were maiores (patricians),
a judgment in court, settled by an agreement of the all others (minoyes). The highest in rank was the
parties, or extinguished by silence (non-activity sc. flame% Dialis (of Jupiter) who during the period of
of the claimant) through a longer time" (D. kingship was appointed by the king. H e had to be
38.17.1.12). born in a marriage concluded in the form of con-
~ i ~ ~ ( ~ N l ~ i ~ ~ ~ . ,official
) concerned with fiscal farreatio and could take a wife (flaminica Dialis)
administration.-See FISCUS. only by confarreatio. H e was entitled to certain
Fiscalis. (Adj.) See IUS FISCI. privileges (sella curulis, seat in the senate). Under
Fiscus (fiscus Caesaris). The treasury of the em- the Empire special parnines were assigned to deified
peror. I t was not property of the emperor; it was emperors.
Samter, R E 6 ; Jullian, D S 2; Anon., N D I 6 ; Espkran-
only entrusted to, and controlled by, him as a fund dieu, D E 3 ; Rose, OCD.
destined for public purposes. The emperor had the Flame, curialis. See CURIA.
right, and the as the Flamen Dialis. See FLAMINES,LEX VOCONIA,=LA-
fiscal revenues only for public welfare. The main M I N I C A DIALIS.
revenues of the fiscus were derived from the imperial Aron, N R H D 28 (1904) 5 ; Brassloff, St Bonfante 2
provinces; some income came from senatorial prov- (1930) 365.
474 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
Flaminica Dialis. The wife of the &amen Dialis. She concluded by Rome see L. LariviPre, Des traite's conclus
assisted her husband in his priestly functions. par Rome avec les rois dtrangers, 1892; R. v. Scala,
Staatsvcrtriige 1 (1898).
Samter, R E 6, 2490; Espkrandieu, DE 3.
Flavius, Gnaeus. See IUS FLAVIANUM. Fons. A source of water. Syn. caput aquae. I t be-
comes juristically relevant when another has a right
Florentina. (Sc. littera.) The oldest and most au-
(servitude) td take water (see SERVITUS AQUAE-
thoritative manuscript of the Digest, written in the
HAUSTUS)from the source on neighbor's property
late sixth or early seventh century. T h e manuscript
or the right to drive his cattle thereto; see ADPULSUS
was preserved in Pisa during the twelfth and thir-
PECORIS. Persons entitled to make use of another's
teenth centuries (hence it is named Littera Pisana).
fons are protected by an interdict da fonte. O n
From the beginning of the fifteenth century it has
the other hand, the owner has an interdict against
been in Florence.
Kantorowicz, Z S S 30 (1909) 186.
any one who prevents him from repairing or cleaning
the spr$g.-D. 43.22.-See INTERDICTA DE FONTE,
Florentinus. A jurist of the second century after INTERDICTA DE REFICIENDO.
Christ, known only as the author of a n extensive Berger, R E 9, 1637; G. Longo, R I S G 3 (1928) 288.
manual of ~nstitutibnes(in twelve books). Forensia negotia. See FERIAE.
Brassloff, R E 6, 2755.
Forensis. Connected with a judicial court, forum (e.g.,
Flumen. See ALVEUS, INSULA. causa, yes, negotiuvuz) .
Flumina privata. See FLUMINA PUBLICA. Forma. A legal norm, established in a statute, an edict
Flumina publica. Rivers flowing the year through, of a magistrate, a decree-of the senate, or an imperial
perpetually (fluyen quod semper &it, perenne) . enactment. With regard to certain contracts ( a man-
Navigability is not decisive. See RES PUBLICAE.The date, a lease) f o r w indicates the contents of the
public use of fluvuzina publica is protected by special agreement. Sometimes forma = formhla.
interdicts which serve to assure navigation, unloading Falletti, Md1 Fournier, 1929, 219; De Francisci, R I S G 10
boats, maintenance of navigable rivers, and the like. (1935) 102.
See INTERDICTA DE FLUMINIBUS PUBLICIS. The Forma censualis. Regulations issued for the perform-
question whether water from public rivers could be ance of a CENSUS.
diverted for private use is controversial.-D. 43.12- Schwahn, R E 7A, 63.
15.-See RIPA, AQUA PUBLICA,and the following Forma idiologi. See G N O M O N IDIOLOGI.
item. Forma iuris fiscalis. A rule of fiscal law.
Berger, R E 9, 1634; Lauria, AnMac 8 (1932) ; G. Longo, Formae. Metallic tablets on which the boundaries of
R I S G 3 (1928) 243; idem, S t Ratti, 1934; Grosso, A T o r a plot of land are documentarily set.
66 (1931) 369; idem, Scr S . Romano 4 (1940) 175; B.
Biondi, Categoria romana dellc servitutes, 1938, 591 ; Alber- Formare. (With regard to a written document.) T o
tario, S t 2 (1941) 71; G. Segr;, RIDK 48 (1941) 17; draw up.
,Branca, AnTriest 12 (1941) 29, 71, 141; Scherillo, Le Formula. (In the formulary procedure.) A written
cose, 1945, 131. document by which in a civil trial authorization was
Flumina torrentia. Rivers flowing during the winter given to a judge (iztdex) to condemn-the defendant
only and regularly drying up during the summer. if certain factual or legal circumstances appeared
Later law treated them as fluvuzina publica. proved, or to absolve him if this was not the case
Costa, B I D R 27 (1914) 72. (si paret . . . condemnato, si non paret, absolvito).
Foederati. Citizens of a state which was tied to Rome Introduced by the LEX AEBUTIA, and later extended
by a treaty of alliance (foedus). "They enjoy their by the Augustan LEX IULIA IUDICIORUM PRIVATORUM,
liberty in our country and retain their property in the formulary procedure replaced almost completely
the same way as in their own land; we enjoy the the former procedure of legis actiones. See CENTUM-
same rights in their country" (D. 49.15.7 pr.).-See VIRI. The formula consisted of several clauses. Some
CIVITATES FOEDERATAE. of them, the mention of the judge appointed to decide
H. Horn, Foederati, 1930. the case (. . . iudex esto) and two essential parts,
Foedus. A treaty of friendship, peace and alliance INTENTIO and CONDEMNATIO, were included in each
with another state. It bound the parties to reciprocal fornlula. (For prejudicial actions, see FORMULA
military aid in the case of a war (foedus aequum). PRAEIUDICIALIS.)Other clauses, such as DEMON-
If the treaty was not 1,aserl upon equality and Rome STRATIO and ADIUDICATIO, were inserted in order to
only was granted military assistance from the partner, specify more precisely the case at issue. Some circum-
the treaty was a foedus iniquum.-See SOCII,A M I C I stances alleged by the defendant, which, when verified,
I'OPULI R O M A N ] , CIVITATES FOEDERATAE, PA'X. excluded his condemnation (see EXCEPTIO), might be
Neumann, R E 6 ; Humhert, D S 2 ; Paribeni, D E 3 ; inserted. The elasticity of the for~lzulawhich matle it
Frezza, Le fornle frd~ratin~c,S D H I 4 (1938) 363, 5 (1939) adaptable to any case was its great advantage which
161 ; n. F'aradisi, Storia del dir. intcrnazionalc nel lllcdio
Evo, I (1940) 52; De Visscher, Noxalitc'. 1947, 97; A. explains its existence through centuries until it was
Magdelain, Ori!ji~zcsde la spo~tsio,1943, 6.-For treaties gradually sul~erseded by a new form of procedure,
VOI..43, IT. L , 10.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 475
the COGNITIO EXTRA O R D I N E M . In a concrete trial Formula in ius concepta. Ant. formula in facturn
the formula was first proposed 1)y the plaintiff (see concepta. The distinction is based on the contents
EDITIO ACTIONIS) and became decisive for the con- of the intentio in the procedural formula. When a
tinuation of the process through co-operation ant1 question of law is raised, as, for instance, when the
consent of the defendant who, for his part, was en- plaintiff claims the ownership over a thing or an-
titled to ask for the insertion of exceptions and for other right, under Quiritary law, or when he sues for
other modifications of the fornlilla. All this took the performance of an ol~ligationI)y the defendant
place in iure, i.e., before, and under the sul)ervision under civil law (dare oportere), there is in the in-
of, the praetor who had the right to grant new for- tentio a direct or indirect reference to a legal trans-
mulae hitherto not promulgated in his edict, if such action or relation nrotected utltler ills civilr. In a
an innovatory and unl)recedentetl fov~nulawas pro- formula in factum, however, the infcntio mentions the
posed by the plaintiff or his legal advisers. Such fact from which the plaintiff draws his claim and the
new formulae in the development of which the jurists judge is authorized to condemn the defendant if the
had an important role, either as consultants of the fact in question is proved. The formula in facfum
parties or counselors to the magistrates, played an is adapted to the particular circun~stancesof the case,
important part in the developinent of the Roman pri- for instance, when a freedman summons his patron
vate law (see IUS HONORARIUM). The term fornzula to court, or when a person suninioned to court does
is used promiscuously with acfio and was substituted not appear or give a guaranty. The substantial dif-
in Justinian's codification by the latter since in his ference between the two kinds of formulac is that
time the formula was only a historical reminiscence. in the formula in facta~mthe condemnatioil of the
Officially the formulac were aholished hy an imperial defendant is connected with a fact from which his lia-
constitution of A.D. 342 with the critical censure: bility is derived, whereas in the formula in iats the
"dangerous hair-splitting" (C. 2.57) .-See besides estahlishment of a specific right of the claimant either
the items mentioned above, I ~ R A B S C R I P T I O N E S , EA RES over a thing or to a performance I,y the defendant
AGATUR, Q U A N T I EA RI;S EST. some entries under effects the condemnation of the latter. In the crea-
ACTIO,ACTIONES and the following items. tion of formula in factu~~z the jurists and the judicial
Wenger, RE 6 : LCcrivain, DS 4, 227; Anon., NDI 6; magistrates (the praetors) equally co-operated.
Berger, O C D 487; Kubler, Z S S 16 (1895) 137; Partsch, Granted first in specific cases the formula in facturn
Schriftformel im ri'm Provincialprozcss, 1907 ; Huvelin,
Mhl Gdrardin, 1907, 319; R. De Ruggiero, BIDR 19 gradually entered into the praetorian edict in the
(1907) 255 ; Arangio-Ruiz, Les formules des actions, in A1 form of an announcement of the praetor that he was
Qanoun W a l Iqtisad 4 (1934) ; Naber, T R 1 (1918) 230; willing to grant an action in certain situations, not
Kocourek, Virginia L R 8 (1922) 337, 434; Wlassak, Die protected hitherto by the law. The formulae in factum
klass. Prozessformel, ShWiciz 202 (1924) ; Wenger, Prae-
tor und Formel, SbMuttch 1926; Betti, CentCodPnv (1934) were an important factor in the development of the
451 ; 0. Carrelli, La ycr~esi dcl proccdimento formulare, ius honorarium.-See FORMULA I N FACTUM CONCEPTA
1946; C. Gioffredi, Contributi a110 studio della procedura (Bibl.), INTENTIO.
civile rom., 1947, 65; Biscardi, RISG 86 (1949) 444; Formula Octaviana. (Actio quod mctus causa.) See
G. Pugliese, I1 processo formulare, 1-2 (J.csioni Genova, METUS.
1948-1949) ; Arangio-Ruiz, Iura 1 (1950) 15; G. I. Luz-
zatto, La proccdura cizr'lc roiit., 3. Lo (jcnrsi dcl proccdi- 0. Carrelli, La genesi della proccdura formularc, 1946,200.
tneitto forlttulare, 1950. Formula petitoria (iudicium petitorium). The for-
Formula arbitraria. See ACTIONES ARBITRARIAE. mula used in so-called ACTIONES I N R E M by which the
Formula Baetica. An epigraphically preserved exam- plaintiff claims a right over the thing at issue. The
ple of a FIDUCIA as a pledge (mancipatio fiduciae formula petitoria is applied in a REI VINDICATIO. It
causa) given to a creditor. is opposed to another form of process when owner-
Edition: Arangio-Ruiz, F I R 3 (1942) no. 92; Graden- ship of a thing is involved; see AGERE PER SPON-
witz, SOHeid 1915, 9, p. 12. SIONEM.
Formula census. See LEX CENSUI CENSENDO. Formula praeiudicialis. The formula of the so-called
Formula certa-incerta. See ACTIONES CERTAE. prejudicial actions; see ACTIONES PRAEIUDICIALES.
The formula has only an INTENTIO and no CONDEM-
Formula Fabiana. See ACTIO CALVISIANA. FRAGMEN-
T U M DE FORMULA F A B I A N A .
NATIO,since the final statement by the judge estab-
lishes the existence of a legally important fact only.
Formula ficticia. See ACTIONES FICTICIAE. Formulae. Formularies for last wills, contracts, ac-
Formula in factum concepta. See FORMULA I N IUS tions, and the like. Collections of such forms were a
CONCEPTA.-D. 19.5. favorite type of juristic writings in the early Re-
De Francisci, StSen 24 (1907) ; De Visscher, R H D 4
(1925) 193 (= Etudes de dr. rom. 1931, 359) ; LCvy-Bruhl, public. Such collections are known as IUS AELIANUM
Prudent et prbteur, RHD 5 (1916) 5; Lenel, Z S S 48 (see AELIUS PAETUS CATUS ), IUS FLAVIANUM, Monu-
(1928) 1 ; Fabia, M i l Huvelin, 1938; Collinet, La frature ~rzentaManiliana (see MANILIUS).The last collec-
des actions, 1947, 337; Philot~enko,RZDA 3 (= J l C i De tion written by Manlius Manilius (consul 149 B.c.)
Visscher 2, 1949) 237. was in use until the end of the Republic.
476 ADOLF BERGER [TRANS.AMER. PHIL. SOC.
Fortasse, fortassis, forte. Perhaps, perchance, by F r a g m e n t a d e iure fisci. A few excerpts from a
accident. The words are used irequently by the treatise on the rights of the fisc. Author and date
compilers to introduce fictitious examples or, par- are unknown. The manuscript is preserved on
ticularly by nisi forte, to add some restrictions to a parchment; it was written in the fifth or sixth cen-
legal norm expressed before. tury.
Guarneri-Citati, Indice' (1927) 40 (Bibl.) ; idem, St Editions in all Collections of Fontes; the most recent one
Riccobo~to 1 (1936) 721. in Baviera, F I R 22 (1940) 627.-Brassfoff, R E 7.
Fortuitus casus. An accident "which cannot be fore- F r a g m e n t a Vaticana. A collection of legal texts pre-
seen by human mind" (D. 50.8.2.7).-See c ~ s u s served in a Vatican manuscript. I t contains excerpts
(Bibl) ., TERRAE MOTUS. from the works of Papinian, Ulpian, and Paul (iura)
Kiibler, Fg Gierke (1911) 26. and imperial constitutions, primarily by Diocletian
Forum. ( I n procedural law.) The competent court (leges). For the selection of the constitutions the
(for21112 conzpetens) before which one can be sued. Codices Gvegovianus and Hermogenianus were prob-
Special courts had jurisdiction in specific cases; see ably used but not the Codex Theodosianus. The
DECEMVIRI STLITIBUS IUDICANDIS. CENTUMVIRI. RE- collection was compiled presumably in the second
CUPERATORES. There were praetors with a special half of the fourth century.
jurisdiction, as, e.g., the praetor fideico~n~+tissarius, Editions in all collections of Fotttes (see General Bibliog-
tltfelaris, and likewise the prefects in Rome were com- raphy, Ch. X I I ) , recently Baviera, F I R 2' (1940) 463;
Brassloff, R E 7 ; X'olterra, ATDI 12 (s.v. Vat. Fr.) ; Fel-
petent in particular controversies connected some- gentrager, in Romunistisclie Studien (Freibzrrger rechtsge-
what with their specific domain of administration. Abhandlungen 5, 1935) 27; Albertario, Studi
srl~icl~tliclie
A general rule, acfor sequitur forum rei (C. 3.13.2; 5 (1937) 551; F. Schulz, Hist. of R. legal science, 1946,
3.19.3; Frag. Vat. 326) established that the plaintiff 310; v. Bolla, Scr Ferrini 4 (Univ. Sacro Cuore, Milan,
could sue the defendant only where the latter had his 1949) 91,
judicial status either through origin (origo) or domi- F r a g m e n t u m d e bonorum possessione. A brief tzxt
cile (see WMICILIUM,INCOLA). If the defendant is on BONORUM POSSESSIO ascribed to Paul; it is pre-
gardens, off springs of animals, and proceeds obtained taken the necessary care. I n exceptional cases they
fro111 mines (fructzls naturales) . Profits obtained were taken into consideration when the restitution of
through legal transactions (the rent from a lease) a thing with all its proceeds was involved.-See
are also conceived as fructtts (frltctlts civiles, non- POSSESSOR BONAE FIDEI.
Roman term). Children of a female slave (partus Ratti, Ann. Univ. Toscane 47 (1930) 37.
nncillae) are not considered fructus. As a matter of Fructus rei pigneratae. The proceeds of a thing
rule, the owner of a thing which produces fruits has given as a pledge to the creditor. The question as
the right of ownership over t h e m . I n certain specific to whether they are pledged too by virtue of a tacit
legal situations, however, a person is given the right agreement of the parties (so in Justinian law) or only
to the fruits from another's property (ususfructus, when there was an explicit agreement to this effect,
bonae fidei possessio, eflzphyteusis) . The extension is controversial as far as the classical law is concerned.
of such rights as to both the kind of fruits and The sources deal primarily with the problem with
the moment when thev are acauired bv the third reference to the offsprings of a female slave (partus
person, is ruled by special provisions. Natural fruits ancillae) .
become legally fructus after separation from the thing Romano, AnCam 5 (1931) ; Carcaterra, ibid. 12 (1938) ;
(land, tree, etc.) which produced them (separatio idem, AnBari 3 (1940) 123; Arnb, A T o r 75 (193940) ;
fructuu~n,fructus separati) . Before separation (fruc- De Robertis, AnBari 9 (1948) 31.
tus pendentes) they are part of the principal thing Fructus separati. Fruits separated from the fruit-
and belong to the owner.-Fructus is sometimes iden- bearing thing. Only through separation the fruit
tified with ususfructus.-D. 22.1 ; C. 7.51.-See the becomes juristically fructus. Ant. fructus pendentes.
following items, IMPENSAE, USUSFRUCTUS, POSSESSOR
BONAE FIDEI, VENATIO. Fruges excantare. See EXCANTARE FRUGES.
De Martino, St Scorza, 1940; Fabi, AnCaiiz 16 (1942-44) Frui. Refers to the person who has the right to the
53 ; P . Ramelet, L'acquisition dcs fruits bar l'usufruitier, proceeds (see FRUCTUS)of a thing.-See usus-
ThGse, Lausanne, 1945; Kaser, Z S S 65 (1947) 248. FRUCTUS.
Fructus civiles (naturales). These are modern ex- Frumentarii. Military officials charged with the care
pressions. See FRUCTUS. For fructus civiles the for provisions for the army.
Roman juristic language used the expressions loco Vaglieri, DE 3 ; Cagnat, DS 2 ; Paribeni, Mitteilungciz
fructuunz, ~.pro fructibus. des kais. deutsch. Archaeol. Inst., Rom. Abt. 20 (1905) 310.
Fructus consumpti. Fruits already consumed; see Frumentationes. Doles of free corn distributed to the
PERCEPTIO FRUCTUUM. They are distinguished from needy or sold them at a low price.-See LEX SEM-
fructus exstantes (fructus non conswnpti) = fruits PRONIA FRUMENTARIA, FRUMENTUM, TESSERAE FRU-
separated and gathered but not yet consumed. MENTARIAE.
Fructus dotis. The proceeds of a dowry. They be- Humbert, D S 2 ; Cardinali, LIE 3 ; Rostowzew, RE 7, 172 ;
long" to the husband.-See DOS. D. Van Berchem, Distrihufiorz de blB sous I'Empire,
Fructus duplio. See VINDICIAE FALSAE. Gensve, 1939; Momigliano, S D H I 2 (1936) 374.
Fructus exstantes (stantes). Fruits still existing and Frumentum. The administration of corn supply for
not consumed; see FRUCTUS CONSUMPTI. Rome and the needs of the state (military provisions,
Fructus licitatio. A specific act in the procedure of frumentationes). Frul~aentuwzis used in the sense of
possessory interdicts (INTERDICTUM UTI POSSIDETIS, free distribution of corn (e.g., cura frunzenti, see
UTRUBI). The temporary possession of the contro- FRUMENTATIONES) .-C. 11.24; 28.-See ANNONA.
versial property is assigned to the party who assumes Rostowzew, RE 7.
the duty to pay a higher sum to the adversary in the Frumentum emptum. T h e corn which Rome bought
case he would lose the claim for ownership in the from provinces with a rich agricultural production
trial to follow. (e.g., Sicily) at a price fixed by herself. Sometimes
Berger, R E 9, 1697; Arangio-Ruiz, DE 4, 70; Siher, Scr the quantity of corn to be furnished and paid for was
Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 101. dictated by Rome (frunzentunz iwzperaf~rvz).
Fructus naturales. See FRUCTUS,FRUCTUS CXVILES. Humbert, DS 2 ; Schwahn, R E 7A, 30.
Fructus pendentes. Fruits not separated from the Frumentum imperatum. Compulsory supply of corn
thing (land, tree, etc.) which produced them. They from a province against compensation when the FRU-
are considered a part of the land (pars fundi) until M E N T U M EMPTUM did not suffice.
they are separated. Ant. fructus separati.--See usus- Rostowzew, R E 7, 165.
FRUCTUS. Frumentum in cellam. The ~ r o v i s i o nof corn for the
Fructus percepti. Fruits of which one took possession governor of a province and his staff to be furnished
by separating and gathering them.-See PERCEPTIO by the provincials at a price fixed by the senate.
FRUCTUUM. Frumentum publicum. Corn distributed among the
Fructus percipiendi. Products which the fruit-bearing needy people by the state (FRUMENTATIONES). See
thing would have produced if the holder of it had L E X SEMPRONIA FRUMENTARIA, LEX CLODIA F R I J M E N -
VOL.4 3, PT. 2 , 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F R O M A N LAW 479
TARIA. Initiated under the Republic, the distribu- See D O ~FUNDI, I N S T R U M E N T U M F U N D I , INTERDIC-
tion was reformed by ~ u ~ u s t uands continued by T U M QUEM FUNDUM, LOCUS, PRAEDIUM, INSTRUCTUM,
his successors. Nature and purposes of the action FRUCTUS PENDENTES.
were not always the same. Schulten, R E 7 ; idem, D E 3 ; Humbert, D S 2 ; E. Kaila.
Frustra. (With reference to a legal transaction, a L'unite' fonci2re en dr. rom., 1927 ; Steinwenter, Fuitd~ts
cum instrumento, SbM'iegt 221, 1 (1942) 10; hf. Kaser,
donation, a sale or a judicial action.) Indicates the Eigentum uird Besits, 1933, 259.
legal non-validity or deficiency of the act accom- Fundus dotalis. Land constituted as a dowry.-See
plished. LEX IULIA DE FUNDO DOTALI.-D. 23.5 ; C. 5.23.
Hellmann, Z S S 23 (1902) 428.
Fundus in solo Italico. A plot of land in Italy.-See
Frustrari (frustratio, frustrator). T o obstruct the
PRAEDIA ITALICA, RES M A N C I P I .
continuation and conclusion of a trial by resorting Fundus limitaneus (limitotrophus) . A borderland
to tricks, such as evading summons to appear in court,
of the Empire.
hiding, or appealing without any chance of success.
Fundus patrimonialis. Land belonging to the PATRI-
With regard to the payment of a debt frustrari = to
M O N I U M PRINCIPIS in the later Empire. It was
fail to fulfill an obligation at the fixed date.-See
mostly exploited through emphyteutical leases.-C.
M ORA.
11.62-65.-See EMPHYTEUSIS.
Fufidius. A little known jurist in the early Principate,
Fundus provincialis (predium, solum provinciale) .
author of a collection of Quaestiones.
Brassloff, R E 7, 201.
Provincial land. Quiritary ownership could not I)e
acquired thereon because according to a Roman con-
Fuga. A flight (of a slave). Servus in fugn = servus
ception provincial soil was considered as belonging
fugitivus. In the language of later imperial consti-
tutions fuga = evasion of public charges (fuga mu- to the Roman people or to the emperor. Conse-
nerum, fugere munus) . quently, usucapio of such land was excluded. See
LONGI TEMPORIS PRAESCRIPTIO. I n later times pro-
Fuga lata. See INTERDICTIO LOCORUM, EXILIUM.
vincial land was granted in exceptional cases to
Fugiens. In Justinian's constitutions refers to the
individuals.
defendant in a trial. Klingmiiller, Die Idcc dcs Staatscigcrltrorrs oil1 Pro~iir-
Fugitivarius. A man whose occupation was to catch zialbodob, Philologtts 69 (1910) 71; T. Frank, J R S 17
fugitive slaves for a reward.-See SERVUS FUGITIVUS. (1927) 141; Levi, ,4th 7 (1929) ; SegrP, A T o r 1936;
Daube, JurR 64 (1952) 12. Kaser, Z S S 62 (1942) 74; Bozza, Atzillnc 15 (1941) 8 3 ;
Fugitivus. A fugitive. See SERVUS FUGITIVUS. The eadem, A t h 20 (1942) 66, 21 (1943) 21 ; Ciapessoni,
Studi su Gaio, 1943, 47 (Bibl.).
term is also applied to fugitive COLONI and lessees of
imperial estates.-C. 11.64. Fundus stipendiarius (tributarius). See P R A E D I A
Fulcinius Priscus. A little known jurist of the early STIPENDIARIA. T R I B U T A R I A .
Principate. Fundus uti optimus maximus. iZ clause in a sale of
Brassloff, R E 7, 212 (no. 6 ) . a land to the effect that it is in the best and perfect
Fullo. A fuller. H e is responsible for taking care condition, i.e., free from servitudes. A similar clause
(CUSTODIA)of the customers' clothes accepted for was used in sales and legacies of buildings and land.
fulling.-See LIS FULLONUM. I n the case of a legacy also the necessary appurte-
M. Maxey, Occupation of the lozcrcr classes etc., Chicago. nance (insfrarlrtrnt~r~r~ frrndi) was untlerstootl as 1)r-
1938, 34; Rosentlial, Z S S 68 (1951) 260. queathed.
Fumus. A vaporous or odorous smoke. A disturbing Fundus vectigalis. See AGER VECTIGALIS.
smoke from the neighbor's house or factory (the Fungi. T o perform oficial functions (e.g., as a magis-
sources mention the case of a cheese factory, D. trate or judge). \Vith regard to a trial fungi = to 1)e
8.5.8.5) might be contested in court by the owners a party to it (e.g., fungi partibars actoris). Fungi
of the plots in the neighborhood, unless the adver- vice (pnrtiblrs) nlicrrilrs = to act, operate in the place
sary had a servitude which entitled him fu~tzuwtinznlit- of another: see VICE.
tere ( = to let go the smoke to the neighbor's prop- Funerarius. See ACTIO FUNERARIA, P R I V I L E G I II 11 F U -
erty, servitzts f~rntiilnlrrittrndi). Similar distur1)ances NERARIUM.
at a public place coultl I)e comlnted I)y an interdict. Funus. A funeral. The disturbance of a funeral was
Bonfante, Corso 2. 1 (1926) 309. punished under the LEX I U L I A DE V I PRIVATA.-See
Functio. (From frtngi.) The performance of official ACTIO I;UNI?RARIA, S U h L P T U S FUNERUM.
or other duties.. ~ l r n r t i orefers at times to public Fur. X thief.-See the following items. Y L ~ R T I ~ MMORA.
.
charges and palnlents. The tern1 is frequently used Fur balnearius. .4 thief who steals clothes and other
by the in1l)erial chancery.-See GENUS, F U N G I . things in a bathing establislinicnt.-D. 47.17.-See
Savagnone, B I D R 55-56 (1952) 37. BALI NEUM.
Fundus. A plot of land. "By the term fztndtcs any f-1uml)crt. DS 2. 1409.
building and any plot of land, as well as lantl with Fur diurnus. A thief who steals during the (lay. Ant.
buildings thereon are indicated" (D. 50.16.21 1) .- f u r noc.turnus = who steals during the night.
480 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
Fur manifestus (nec manifestus). See FURTUM sources is termed as animus (afectus) furandi, furis,
MANIFESTUM. furti faciendi. The terms may be of later coinage.
Fur nocturnus. See FUR DIURNUS. There was no theft when one took another's thing
Furari. T o commit a theft.-See A N I M U S FURANDI, in the erroneous belief that it was his or that he was
FURTUM. making use of it with the owner's consent. Furtuln
Furca. A n instrument with two prongs used for the was a private crime (delictum) prosecuted only by
execution of the death penalty by hanging the the person who suffered the loss. Two actions lay
criminal. against the thief, first the condictio furtiva (available
Furere. T o be (or become) insane.-See FURIOSUS, also against the heir of the thief) for the recovery of
FUROR. the stolen property (together with the proceeds) and
Furiosus. A n insane person, a lunatic. "A furiosus is second, the actio furti for a private penalty (actio
considered to be absent" (D. 50.17.124.1). "He has poenalis) the amount of which depended upon the
no will" (D. 50.17.40) and therefore manifestations of kind of the theft, see FURTUM MANIFESTUM, FURTUM
his will are deprived of validity. H e is not able to NON MANIFESYUM. This action could not be brought
conclude a legal transaction except during a lucid against the heir of the thief. I n certain legal situa-
interval (see INTERVALLA) when he regains a normal tions it was not the owner but another person who
state of his mental faculties. During his insanity a was entitled to sue the thief ( a possessor bonae fidei,
furiosus is under control of a curator who manages a usufructuary; a creditor from whom the debtor's
his affairs. See CURATOR FURIOSI,BONORUM POS- pledge was stolen). Furtulvt indicates sometimes the
SESSIO FURIOSI NOMINE. The juristic sources apply stolen thing itself.-D. 47.2; 5 ; 13.1; C. 4.8; 6.2.-
several terms for insane persons, such as demens, See A N I M U S FURANDI,CONTRECTATIO, NATURALIS
mente captus, insanus, non suae (sanae) menlis, non LEX, RES FURTIVA, OPE CONSILIO, MONETA, PECULATUS.
compos mentis. No legal distinction was applied to Hitzig, R E 7 ; Humbert, DS 2 ; Brasiello, NDI 6 ; Berger,
the various kinds of lunatics.-See SUBSTITUTIO
OCD; M. Pampaloni, Scritti 1 (1947, written 1894) 559,
653; Schulz, Z S S 32 (1911) ; P. Huvelin, Le furtum, 1915;
PUPILLARIS. Buckland, N R H D 41 (1917) 5 ; E. Levy, Konkurrenz der
A. Audibert, Etudes d'hist. du droit. 1. La folie et la pro- Aktionen, 2, 1 (1922) 90; Bossowski, AnPal 13 (1929)
digalite', 1892; De Francisci, BIDR 30 (1921) 154; Solazzi, 343 ; Daube, CambLJ 1937, 217 ; Schepses, SDHI 4 (1938)
Mouseion, 2 (1924) ; Lenel, Z S S 45 (1925) 514; Guarino, 99, 5 (1939) 140; H . F. Jolowicz, Digest 47.2, De furtis,
AnCat 3 (1949) 194; Renier, R I D A 5 (1950) 429. 1940; Tabera, SDHI 8 (1942) ; U. Baglivo, Sul reato
Furius Anthianus. A jurist of the first half of the permanente nel dir. penale rom., 1943, 14; h1. Kaser, Das
altriim. Ius, 1949, 213 ; Niederlander, Z S S 67 (1950) 185 ;
third century after Christ, seemingly the author of a K. Olivecrona, Three essays in R. law, 1949, 43; D e
commentary on the praetorian edict. Robertis, AnBari 10 (1950) 55;' Rosenthal, Z S S 68
Brassloff, R E 7, 319 (no. 22) ; F. Schulz, History of the (1951) 244.
R. legal science (1946) 201. Furtum balnearium. See BALINEUM. FUR BALNEARIUS.
Furor. See FURIOSUS. Furtum conceptum. Occurs "when a stolen thing has
Furor intermissus. See INTERVALLA DILUCIDA. been sought and found with somebody in the pres-
Furtum. A theft. The classical conception of furtum ence of witnesses" (Gaius, Inst. 3.186). The man
included not only an actual removal of another's could be sued by actio furti concepti for a threefold
thing, but any intentional handling (see CONTRECTA- value of the thing stolen as a penalty, even if he was
TIO) of another's thing with the view to derive a not the actual thief. In the latter case he himself had
profit therefrom (lucri faciendi, lucrandi causa) . an actio furti oblati against the person who passed
This broad definition embraced not only simple steal- on to him the thing stolen even if the latter did not
ing but also the most different acts of making use commit the theft. These actions disappeared in the
of another's thing without the knowledge of, or con- law of the later Empire. The receivers of stolen
trary to an agreement with, the owner, such as, for things were liable for furtum nec vnanifestuvn.
instance, selling another's thing, collecting money Daube, T R 15 (1937) 48; idem, St in biblical laza, 1947,
from another's debtor as a payment, without authori- 260.
zation by the creditor, and the like. The object of Furtum domesticum. A theft committed by a person
furtuwz could be only a movable though opinions to pertaining to the household.
the contrary were not absent. Even a free person ( a M. Piques, Vol d l'inte'rieur de la domus, Dijon, 1938.
son or wife) could be "stolen." There was no furtuvn Furtum manifesturn. A theft detected when being
if there was not an owner of the stolen thing, as, committed. Some jurists extended the qualification
e.g., if the thing was a res nullius or belonged to an "manifest theft" to cases lying beyond the catching
inheritance not yet entered upon by the heir, since the thief in the very act. The opinions of the jurists
such a thing was considered (in earlier law) to be varied as to the essential elements of furtum mani-
a res nullius. Qnly a fraudulent contrectatio could festum (capture of the thief on the spot, capture on
be qualified as furtum since "no one commits a theft the day of the theft with the thing stolen being still
without evil intention" (Inst. 4.1.7), which in the in his possession, seizure of the thing thrown away
VOL. 43, PT. 2 , 19531 ENCYC1,OI'EDIC DIC'I'IONARY 01: ROMAN LAW 481
by the thief pursued). The Twelve Tal)les con- whereal~outsare unknown. For his stantlartl work,
sidered a furtw~nlnanifcstum when the thief was the Institutes, see I N S T I T U T I O N E S C A I . Moreover, he
convicted through an investigation I.ANCE ET LICIO. wrote a series of works, among then1 a comnientary
Capital punishment for fitrtuirl ~nanifcstum,ordained on the Twelve Tal)les and conlmentaries on the Etlict
in that legislation, was later commuted into fourfold of the praetor urbanus and the provincial etlict. No
penalty. Ant. FURTUM NEC MANIFI.:STUM.-S~~ DE- other jurist commentetl on the provincial edict, see
PREHENDERE, DEICERE E S A X 0 TARI'EIO. EDICTUM PROVI NCIALE. An elementar" work. Rr:s
F. De Visscher, Etudes de dr. rom., 1931, 135; Arangio- COTTIDIANAE (called also Auvea) is ascribed to him,
Ruiz, La repression du vol ,flagrant, in A1 Qanoun W d but several scholars believe it to be a postclassical
Iqtisad 2 (1932) 109 (= Rariora, 1946, 197) ; Aru, AnPal
15 (1936) 128; Carrelli, AnBavi 2 (1939).
compilation of excerpts from Gaius' works. Mono-
graphs on legal institutions (on fidcicominissa, on
Furtum nec manifestum. A theft which cannot be
manumissions) appear under his name. In spite of
qualified as an open theft ; see F U R T U M MANIFESTUM.
this rich literary activity he is never cited by the
The private penalty was double the value of the thing
classical jurists. Some sporadic mentions of a Gaius
stolen.
refer to the jurist ~ a i u sCassius Longinus (see
Furtum non exhibitum. Occurs when the stolen
CASSIUS). Later (A.D. 426) Gaius appears anlong
goods are not produced (see EXHIBERE).The thief
the jurists whose opinions acquired official authority
who failed to produce them was liable in a praetorian
in the so-called Law of Citations (see IURISPRUDEN-
action (actio furti non exhibiti) if they were found
TIA). Justinian considerably contributed to his fame
later on his premises.
bv utilizinp his Institutes as a basic source for the
Furtum oblatum. See FURTUM CONCEPTUM. u
Gens. A major group (clan) of several families really obligation does not enter into consideration since
or supposedly descending from a common ancestor. things in yenere can be replaced by others of the same
Originally a large plot of land was possibly assigned quality a i d quantity unless they were specified by exact
to the gens as a whole where its members lived to-
gether and formed a kind of a community. A surviv-
-
indications, e x . , wine which the debtor has in his
cave.-Genus is son~etimessynonymous to gens.-See
ing feature of this ancient organization is the right of LEGATUM GENERIS.
succession on intestacy of the members of a gens Scarpello, N D I 12, 2 (s.v. species) ; E. Albertario, S t 3
(gentiles) in default of agnatic relatives. This prin- (1936) 375; Beretta, Qualitas e bonitas nelle obbligazioni
di gemre, S D H I 9 (1943) ; Savagnone, La categoria delle
ciple, mentioned in the Twelve Tables, remained in rcs funyibiles, B I D R 55-56 (1952) 18.
force through the Repul~licand perhaps in the early
Geometra. Syn. AGRIMENSOR.-SeeSTUDIA LIBERALIA.
Principate. The irlembers of the gens, gentiles, were
also entitled to guardianship if a member had neither
.
Gerere. To administer ( a patrimony), to manage his
own or another's affairs (a business, curam, tutelam,
a testamentary nor an agnatic tutor. An external
negotia aliena), to exercise ( a profession, a magis-
sign pointing to the fact that the gentiles belonged to
the same social unit was the common name (nomen tracy), to conclude a legal transaction (negotiuwz) .-
gentiliciuwz) ; to this must l)e added their common See NEGOTIORUM GESTIO.
worshil) of a divinity as a special protector of the Gerere (gestio) pro herede. See PRO HEREDE GESTIO.
gens and common cult ceremonies (sacra gentilicia).
Gerere se. T o conduct oneself; gerere se pro . . . - -
They had also a common l~urialplace. The gens had to impersonate, to assume falsely the character of
originally a politikal character and comprised patri- another person, in particular of an official, or of a
cians only; later plebeians had also their gentes. I t free person when one is a slave, or of a soldier with-
is not quite certain whether the stirpes were smaller out being one, etc., in order to obtain certain privi-
groups within the gens; many other elements in the leges illicitly.-See FALSUM.
organization of the gpntes are likewise obscure. The Germani (fratres). Brothers born of the same parents.
smallest social unit within the gens was the family, Similarly sorores gerwzanae = sisters born of the same
fastilia. The clients (CLIENTES) had no membership parents.-See CONSANGUINEI, FRATER,UTERINI.
in the !/ens hut participated in its reli,'"IOLIS cere- Gesta. See ACTA. IUS GESTORUM.
monies.-See GENTILES,FAMILIA. Gestio. See GERERE, NEGOTIORUM GESTIO.
Kubler, RE 7 ; Siber, RE 21, 118 ; Humbert, D S 2 ; Ores- Gestio pro herede. S e e , ~ HEREDE
~o GESTIO.
tano, NDZ 6 ; De Ruggiero, D E 3 ; Treves, O C D ; G. W. Gestor. See NEGOTIORUM GESTIO.
Botsford, Political Science Quarterly 22 (1907) 665; M . Gestus. See GERERE. The term is primarily applied
Radin, ClarPhilol 1914, 235; V . Arangio-Ruiz, Le genti to the management of the ward's affairs by a tutor
e la cittd, 1914; G. I . Luzzatto, Per una ipotesi sulle
origilti dell'obhligazione rom., 1934, 2 7 ; L. Zancan, La or curator. Syn. gestio.
tcoria !lmtilizia, A V e n 95 (1935/6) ; C. Castello, S t sul Gladiatores. Gladiators. Condemnation to gladiato-
diritto fajniliorc e !letztili;io rom., 1942; Coli, S D H I 17 rial fights (ludi gladiatorii) was tantamount to the
(1951) 73. death penalty since the gladiatores generally lost their
Gentiles. I'ersons 1)elonging to the same gens and life in the fights. I t happened, however, sometimes
using the same name, nomen yenti1icium.-See GENS that the emperor al~olishedthe death sentence by an
(13ibI.). act of mercy, particularly when a gladiator was suc-
De Ruggiero, IIE 3 ; Idenel, Z S S 37 (1917) 128. cessful in a fight.--C. 11.49.-See LUDI GLADIATORII.
Gentilicium nomen. See N O M E N GENTILICIUM. Schneider, RE Suppl. 3 ; Lafaye, D S 2 ; Wright, O C D ;
Genus. A kind, sort. type. The tern1 has manifold L. Robert, Les gladiatcurs dons le monde grec, 1940.
al)l)lications. I t refers to actions (yenus actionis, Gladius. A sword. I t is the most characteristic symbol
izldicii) , to legal institutions (contracts, possessions of the emperor's highest military command.-Dam-
= genera possrssiontr~~z) ; the most important use is nare ad gladilrtfz = to condemn a culprit to the death
in the field of things: qenus as oppos~tlto species. penalty 1)y decapitation with a sword.-See IUS GLA-
Whereas the latter word refers to a specific, indi- DII, ANIMA1)VERSIO.
vidual ol)ject, the other indicates fungibles, in which Glans. An acorn. See I N T E R D I C T U M DE G L A N D E LE-
one thing can 1)e replaced l)y another of the same GENDA.For the application of this interdict the term
quality since economically they exercise the same was extended to all kinds of tree-fruits.
function (qune in (/mere functioncm recipiunt), such Gleba. Earth, soil. For glrbc~eadscripti. see ADSCRIP-
a s corn, oil, wine, money. See RES QUAE PONDERIC ~ r c r u s . - - ~ k hwas
a a land tax in gold imposed in
N U M E R ~MENSURAVI.: CONSTANT. I n obligatory rela- the later Empire on senators (glcba scnatoria, glelm-
tions the distinction genus-species 1)ecomes impor- tio). Later it was levied even upon senators who
tant when the thing clue perished. I n the case of a were not 1antlowners.-C. 12, 2.
species the fuifillnient of the obligation is iml)ossible Seeck, RE 4 (s.v. collatio gl~balis); Thibault. Rev.
and the problem as to who is responsil)le beconies yr'iti:mle du droit 24 (1900) 36.
actual; in the case of genus the extinction of the Glebatio. See GLERA.
VOL.43, PT. 2, 19531 E N C Y C L O P E D I C DICTIONARY O F ROMAN LAW 483
Gloriosissimus. Under Justinian a title of the highest Gyllenband (1934) ; P. M. Meyer, Juristische Papyri no.
officers of the empire. 93 (1920) ; Riccobono, FIR 1' (1941) no. 99 (Bibl.).-
Lenel-Partsch, SbHeid 1920, 1 ; Seckel-P. M. Meyer,
Kqch, Byzantinische Beamtentitel, 1903, 58. SbBerl 1928, 424; T . Reinach, N R H D 1919, 583; 1920, 1 ;
Glossa ordinaria. See ACCURSIUS. Besnier, R I D A 2 (= M i l De Visscher 1 , 1949) 93; S.
Glossae. For glosses in juristic writings, called also Riccobono, Jr., I1 g. dell'idios logos, 1950 (Bibl.).
(not quite properly) pre-Justinian interpolations, see Gradatim. Gradually. I n the law of successions the
DICESTA. term refers to the admission of successors by degrees
Glossatores. Interpreters of Justinian's codification (see GRADUS)proceeding from a nearer degree, if
from the eleventh century until the middle of the there are not heirs (heredes or bonoruw possessores).
thirteenth century. They were scholars and teachers t o the next degree, and so on.
in the school of Bologna under IRNERIUS (+ 1125) Gradus (cognationis). Degrees of relationship. Their
and his pupils. The name glossatores derives from calculation is based upon the principle that "each
the form of their exegetic remarks to texts, phrases procreation adds one degree" (Inst. 3.6.7, hence the
or single words of Justinian's Corpus, written as formula: tot gradus quot generationes). Inferior
marginal or interlineary glosses, in the order of Jus- gradzrs is applied to relatives in descendant line. Ant.
tinian's compilation. See ACCURSIUS. Systematic sztperior gradus. See DE CRADIBUS COGNATIONUM,
presentations in the form of summaries (summae) SUCCESSIO GRADUUM. In the official hierarchy gradus
were rare. See AZO. Later commentators, from the indicates the rank of a public (civil or military)
middle of the fourteenth century, who worked in a officer.-Inst. 3.6 ; D. 38.10.
somewhat different way, are termed by the collective Humbert, D S 3 ; Guarino, Pauli de gradibus cognationuna
denomination "postglossators." These post-Accur- e la compiledone del D . 38.10, S D H I 10 (1944) 267.
sian commentators started from the glossa ordinaria Granius Flaccus. See FAPIRIUS.
of Accursius. They wrote commentaries and more Funaioli, R E 7, 1820.
extensive discussions on legal doctrines.-See BAL- Grassator. See LATRO.
DUS, BARTOLUS. Kleinfeller, R E 7, 1829; Diill, R E Suppl. 7, 1239.
Anon, NDI 6 ; La Mantia, RISG 8 (1889) 3 ; F. V. Gratia. An act of grace by the emperor.-See INDUL-
Savigny. Geschichte des ram. Rechts i m Mittelalter, 7
vol., 1850-1851 ; E. Seckel, Distinctiones glossatorum, GENTIA, DIVORTIUM BONA GRATIA.
1911; P. Vinogradoff, R . Laze, in Medieval Europe, 2nd Gratis. Gratuitously, given without any recompense.
ed. by F. De Zulueta, 1939 (an Italian translation by Ricco- -See CRATUITUS.
bono. Diritfo Rom. nell'Europa medievale, 1950) ; Genzmer, Gratuitus. Benefits conceded without any compensa-
-4CDR Bologna 1 (1934) ; E. Albertario, Introduzione
storica a110 studio del dir. rom. g i w t . 1935, 236 (Bibl.) ; tion are considered to be a donation and are subject
Kantorowicz, TR 16 (1938) 430; H. Kantorowicz and to the same limitations as gifts. See DONATIO. Some
Ur. W. Buckland, Studies in the Glossators of R . Law, contracts contain the element of gratuity (COMMO-
Cambridge, 1938; C . G. Mor, Appunti sulla Storia delle D A T U M , DEPOSITUM, I?RECARIUM). A loan (1lt14tuu?n)
font; giur. rom. da Giustiniano a Irnerio (Lezioni) 1937;
Engelmann, Die Wiedergeburt der Rechtskultur in Ifalien, is gratuitous if interest is not paid (gratitita peczinia).
1938 ; Genzmer, Quare Glossatorum, Gedirchtnisschrift Gratulatio. See ABOLITIO.
fiir Seckel, 1927; Koschaker, Europa und das rom. Recht, Gravare. ( I n criminal matters) to incriminate, to
1947, 55; Kuttner, S D H I 6 (1940) 275; B. Paradisi, charge with a crime as an accuser or witness, to
Stor. del dir. ital. (Lezioni, 1951) 78; H. J. Wolff,
Rowton Law, Oklahoma, 1951, 187.-The glossa ordinaria cast suspicion upon another.
is published in the earliest four volume editions of the Gravis. Severe. The term is used of penalties in-
Corpus Iuris in the sixteenth and sevententh centuries flicted on condelllnerl criminals. When under specific
(last ed. 1627).
circumstances a crime deserves a more severe punish-
Gnaeus Flavius. See IUS FLAVIANUM. ment the sources speak of gmzrior pocna (or sen-
Gnomon idiologi. A collection of imperial mandates tentia) without indicating precisely how the punish-
(liber tnandatorum) of Augustus and some of his ment is to be more severe. The choice is left to the
successors. The text, written about the middle of the judge. Ant. le7ior porno.
secontl century (probably under Antoninus Pius), is Gravis. With regard to contractual obligations. e.g.,
preserved in a papyrus. It contains instructions con- aes alientrl~igrave a burdensome, heavy debt. Such
cerned with the administration of the private patri- a debt occurs when the debtor has to pay a penalty
mony of the emperor (res privata Caesaris = idios if he failed to fulfill his obligation at the fixetl date.
logos). The provisions are primarily of fiscal char- Usirrae graves = high interest.
acter and deal with various matters, such as inheri- Gravitas. The dignity of a high office. The imperial
tances that fall to the fisc, taxes, fines, the capacity chancery used this title in rescripts (letters) ad-
to make a testament, marriage between persons of dressed by the en~perorto official of a high rank.
different nationality. A few decisions of the praefects
Graviter loqui. T o stutter. Stuttering was not con-
o f Egypt are also added.
Editions : Berliner Griccltisclie Urkurtdetr 5, 1.2 (no. sidered a disease. Consequently the sale of a slave
1210) by Scliubart (1919) and commented on by Uxkull- who stuttered could not be annulled for this reason.
484 ADO1,F BEIIGUII [ T R A N S . AMI'R. PHIL. SOC.
Gregarii milites. Soldiers of the lowest rank, privates. I.eonhard, R E 7 ; De Villa, N D I 6 ; Ricci, ibid. 1 (abita-
Gregatim. In hertls, in flocks. Animals living grrga- sionc) ; De Ruggiero, 111:' 3 ; Cicogt~a,Fil 1906; Berger,
Wohrr~rrrysrr~ictcir ~tlcrt Papyri, Z V R 29 (1913) 321 ; G.
tim = grrgcs (see G R E X )S,I I C ~as cqftitittllt ( = a stud Grosso, Uso, ahifclsiorrc, 1939.
of horses), armentltm ( = plough-oxen). Such flocks
are treated legally as units (corpus ex distantibus) .- Habitator. See HARITATIO.
See C O R I ~ U SEX COIIAERENTIRUS. Habitus. (Perfect passive participle of habcrc.) With
Gregorianus. See CODEX GRI~:GORIANUS. reference to things done = concluded (e.g., contmc-
Grex. A herd. It is a collective thing (CORPUSEX flrs, cr~lptio); pronounced, passed (scntentia = a
DISTANTIRUS) WhiCll maintains its identity in spite ju'lglllent) ; contained (in a docun~ent,in testimony).
of changes in the intlividual of it is Habitus c o r ~ o r i s . The bodily appearance, constitu-
composed, A her(] as a ivhole nlay be the object of tion. In earlier times it was the basic element of
a claim (vindicatio grcgis) embracing all animals puberty (see IMPUBES).
without regard to changes which therein or to single A. B. Schwarz, Z S S 69 (1952) 371.
aninials which do not happen to belong to the de- Habitus matronalis. See MATRONA.
fentlant. There is, however, no ttsttcapio of a whole Haec quae necessario. These are the initial words
g r c . ~but only of single aninials. It was held that at of Justinian's constitution (of February 13, 525) in
least ten sheep made a herd.-See GREGATIM. which he announced his plan of a code of imperial
Pampalotli, RISG 10 (1890) 268 ; Bossowski, St Riccobono constitutions (the first edition of his Code) .-See
3 (1936) 357; 0. Pallucchini, L'ustlfrutfo del grcggc, 1940. CODEX IUSTINIANUS.
Gromatici. Land-surveyors, writers on land-survey- Haeretici (haeresis). Heretics (heresy). The legis-
ing.-See AGRIMENSORES. lation of Christian emperors frequently dealt with
Fordyce and Brink, O C D . heretics. The Codex title 1.5, which contains the
Gubernare (gubernatio). T o govern, to administer. pertinent enactments (from 326 until 521) starts with
The tern? belongs to the language of imperial con- Constantine's statement that "Privileges which have
stitutions. been granted with regard to religion, are only in
Gubernator navis. A steersman of a ship. H e is liable favor of those who observe the Catholic law (Catho-
for sinking another's ship through his fault and can lica lex). W e wish that heretics not only be ex-
be sued for damages under the actio legis Aquiliae. cluded from those privileges but also be subject to
various public charges" (C. 1.5.1 ) . Heretics were
H excluded from public offices and had no political
~~b~~~ (rem). "used in a double sense, since we rights. Restrictions in the field of private law were
say hobere of a person who is the owner (dontinus) manifold: inability to acquire landed Property, to
of a thing and of one who without being its owner make a testament or to inherit under one. Certain
holds it. Finally we use to say habere of a thing types of heresy were prosecuted as a crime. The
which is deposited with us" (D. 45.1.38.9). I n a most severe penalties were inflicted upon Mani-
still larger meaning habere is used of a person who chaeans.-See 1.15 ; 1.10; Nov. 45.109.132.-See
has an action for the recovery of a thing held by APOSTATA, IUDAEI.
another. Th. Mommsen, Rom. Strafrecht (1899) 595; Volterra,
Habere licere. T o enjoy full possession oi a thing B I D R 42 (1934) 453; Balan, ACII 1 (1935) 483; C.
Pharr, Codex Theodosianus, 1951, 582.
without being disturbed by another person.-See
EMPTIO, VACUA POSSESSIO, STIPULATIO HABERE LICERE. Harena' Sand'-See IUs HARENAE 'ODIENDAE.
M. Kaser, Eigentuwt und Besits, 1943, 14; Coing, Sent 8 Harenarius. See ARENARIUS.
Habitatio. As a personal servitude (servitus per- pilation of Roman law as it was about the middle of
sonae), this is in fact a type of the servitude usus: the fourteenth century (A.D. 1345) still in force in
the right to use another's house for dwelling. It the Byzantine Empire. The collection contains ex-
used to be granted primarily by legacy. It was cerpts from earlier Byzantine compilations (Ecloge,
strictly personal in classical law and could not be Peira, the two Synopseis, Novels of the emperor Leo,
transferred to another person. Transfer was ad- Procheiros Notnos). The title of the work is Hexa-
mitted, however, in Justinian's law. Quite different bibles (= ir, six books). It is also called Prochiron
is the legal structure of the right of habitatio 'ob- ,+&nomBn (= Manuale legum).
tained through a contract of lease of a house (LOCA- Editions: G . E. Heimbach, Manuale legum sive Hexa-
TIO CONDUCTIO REI). The reciprocal rights and biblos, 1851 ; Translation: H . E. Freshfield, A manual of
duties of the lessor and the tenant (habitator, inqui- Byzantine lazu, co?ttpiled in the fourteenth century, Parf
VZ: O n torts and crimes, Cambridge, 1930.-Mortreuil,
linus) are governed by the rules of locatio conductio Histoire du droit byzantin, 3 (1846) 349, 495; Mauro-
rei.-Inst. 2.5; D. 7.8; 33.2; C. 3.33.-See HOSPES, cordato, Rev. de ldgislatton et de lurisprudence, 25 (1846)
VOL. 43, 117.2 , 10~31 ENCYCLOPEIIIC DlCTlONARY OF ROMAN LAW 485
Haruspices. Diviners who interl)reted al)nornial phe- Mancaleoni, StSas 2 (1902) ; Bescler, S t Riccobono 1
nomena in the inner orgins of sacrificial animals, (1936) 294; M. L)avitl, Studicn sur k. i. c x rc c., 1930;
Sanfilippo, Anl'al 17 (1937) 227; L. Cohcn, 7'Alnl'hilolA
also celestial 1)11enomena (lightning) . 68 (1937) 343.
Tl~ulin,R E 7 ; itlctr;, D E 3 ; I'easc, OCU ; 13ouchi.-Leclercq,
I>S 3; G . Wissowa, Religion unrl Kzrltur der Kortacr, 1902, Heredis institutio excepta re. The institution of an
469. heir to the whole estate or a fraction thereof with the
Hasta. A sljear, lance. It was consitleretl a visible exception of one sl)ecific thing.
sign of ownership lawfully acquired (signuttt iusti Sciascia, Anc~is1947-48 I'ontif. Univ. Cnt. dc S5o Paulo
(Brazil) 223.
dontinii) since "the Romans primarily consitlered
theirs what they hat1 taken from an enemy (Gaius, Hereditarius. Pertinent to, connected with, an in-
Inst. 4.16). l'u1,lic auctions were performecl sub heritance.-See ACTIONKS IIICRICDITARIAE, I U S IIICRIC-
lzasta (see SURIIASTATIO) . When the centumviral D I T A R I U M , RKS III.:REDITARIAE, SEPULCRA IIlCRICDI-
court held its sessions, a spear was set l~eforeit.- TARIA, PARS TIEREDITARIA.
C.10.3.-See I.OCATIO S U R HASTA,P RAETOR IIASTA- Hereditas. Usecl on the one hand in the sense of the
R l U S , CENTUMVIRI. complex of goods, rights, and duties of the deceased
Hastati. See CENTURIO. (the estate as a whole), and on the other hand of the
Haustus. Syn. aquae hnustus.-See SERVITUS AQUAE legal position of the heir (heres) who after the death
HAUSTUS. of another enters (succedere) into his legal situation
Hercisci (ercisci). See AcTro FAMILIAE ERCISCUNDAE. and legal relations (in universum ius, in locum de-
Heredis institutio. The designation of a person in a functi). "Hereditas is nothing else than the succes-
testament who as the testator's heir (heres), shall sion to the whole right (universum ius) which the
succeed as the owner of the whole estate (both cor- deceased had" (D. 50.16.24). The fundainental dis-
poreal things and rights). An heir may be instituted tinction is between hereditas testamentaria = an in-
to a fraction of the inheritance and several heirs in- heritance of which the testator disposed by designat-
stituted in common without indication of their indi- ing (instituere) the person or persons (heres,
vidual portions succeed in equal parts. The insti- heredes), who should inherit his property, in a valid
tution of an heir must be expressed in a prescribed testament, and hereditas legitima = an inheritance
form (sollemni more) : "X shall be (my) heir" ("X which is given to heirs indicated by the law because
heres esto"). The heredis institittio was the most the deceased did not leave a testament or his testa-
important element of a testament. I t had to be ex- ment became later ineffective for specific reasons.
pressed at the beginning of the testament (caput et The testamentary succession prevails over the intes-
fundamenturn testamenti). No testamentary dispo- tate one. According to a legal rule both kinds of
sition was valid if there was not a valid institution succession cannot apply simultaneously to the same
of an heir or if the heir did not accept the inheritance. estate: see NEMO PRO PARTE TESTATUS.Hereditas
In the later law the earlier rigid rules lost their refers to successions under the ius civile; it is op-
strength. The requirement of solemn words was posed to BONORUM POSSESSIO which is governed by
dropped. A testament with a not valid heredis insti- norms of the praetorian law.-See ADITIO HEREDI-
tutio was efficient as a codicil and all dispositions of TATIS, DELATIO HEREDITATIS, EMPTIO HEREDITATIS, I N
the testator were thus saved.-Inst. 2.14; D. 28.5; 7 ; IURE CESSIO HEREDITATIS, HERES, HEREDITATIS PE-
C. 6.21; 25.-See CODICILLI. TITIO,SUCCESSIO, and the following items.
Lenel, Zur Gesch. der h. i.,-Essdys, in legal history, Ox- Baudry, D S 3; De Ruggiero, D E 3; Berger, O C D (s.v.
ford, 1913; S. Cupia, L'invaliditd totale dell'istituzione inheritance) ; Rabel, Z S S 50 (1930) 295; Bonfante, Scritti
d'erede, 1913; Tumedei, R I S G 63-65 (1919-1921) ; Vis- 1 (1926), several articles; Bortolucci, B I D R 42 (1934)
mara, S t Besta 3 (1939) 303 ; Sanfilippo, AnPal 17 (1937) 150; 43 (1935) 128; Robbe, StCagl 25 (1937) ; La Pira,
142; L. Cohen, TAmPhilolA 68 (1937) 342; B. Biondi, S t S e n 47 (1933) 243; Ambrosino, S D H I 10 (1944) 10;
Successione' testamentaria, 1943, 188. C. Sanfilippo, S t sulla hereditas I (1936) ; idem, Evolu-
zione storica dell'h., Corso, 1946; Biondi, Istituti fonda-
Heredis institutio captatoria. See CAPTATORIUS. mentali 1 (1946) 24; B. Albanese, La successione heredi-
Heredis institutio ex re certa. The institution of an taria, AnPal 20 (1949) 228; Arnbrosino, S D H I 17 (1951)
heir to a specific thing (not to a fraction of the es- 195; Solazzi, Iura 3 (1952) 21.
tate). Originally it was not valid and made the Hereditas damnosa. An estate in which the debts of
whole testament void. But already in the time of the deceased exceed the value of the property he left.
Augustus the jurist Sabinus expressed the opinion Hereditas fideicommissa (fideicommissaria). An in-
that an heir thus instituted should be considered an heritance which in whole or in part was left to a
heir to the whole estate as if the specific thing were person through a FIDEICOMMISSUM to be handed over
not mentioned. This doctrine, dictated by the tend- by the heir instituted in a testament to the bene-
ency to save other testamentary dispositions (legacies, ficiary (fideicommissarius) , see FIDEICOMMISSUM
manumissions), prevailed in later law (favor testa- HEREDITATIS. Syn. hereditas fiduciaria.
Hereditas fiduciaria. See the foregoing item.
486 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
quires the estate immediately together with liberty Histrio. See SCAENICUS.
without any formal acceptance of the inheritance, and Hoc est. See ID EST.
he is unable to reject it.-Inst. 2.19; C. 6.27.-See Hodie. Today, nowadays. Some Justinian's innova-
HERES SUUS ET NECESSARIUS. tions are referred to in his Institutes by hodie as well
Manigk, R E 4A, 672 ; Guarino, S D H I 10 (1944) 240. as in the Digest certain new legal rules are opposed
Heres nuncupatus. See TESTAMENTUM PER N U N C U - to earlier ones through this word. Although the
PATIONEM. word appears in interpolated texts, it is not a reliable
Heres scriptus. A n heir appointed in a written testa- criterion of an interpolation.
ment. Ant, heres legitinzus. E. Albertario, Hodic, 1911 ; Beseler, Bcitriige 2 (1911) 97 ;
Berger, K r V j 16 (1914) 427; Guameri-Citati, Indicea
Heres secundus. See ST~SSTITUTIO. (1927) 43 (Bibl.).
Heres suspectus. A n heir who appears not to be able Holographus. Written in full in one's own hand (e.g.,
to pay the debts of the deceased. Hereditas suspecta a testament)
= an inheritance overcharged with debts.-See SATIS- Homicida. A killer, manslayer.-See HOMICIDIUM.
DATIO SUSPECT1 HEREDIS.
Homicidium. A n assassination, manslaughter. The
Heres suus. A n heir who at the death of a person term is of later origin; it appears twice in Cicero,
was under his paternal power ( patria potestas) . This
but is rare in the writings of the classical jurists,
is a technical term to be distinguished from S L I U Sheres
although frequent in imperial constitutions. For
(= his heir) which refers to the heir of a specific earlier terminology, see PARRICIDIUM. T h e perti-
person.-See Inst. 2.19; D. 38.16; C. 6.55.-See nent verbs are necare, interficere, occidere. After a
ADITIO HEREDITATIS. EXHEREDARE.
Manigk, R E 4A, 664; 8, 629; Cuq, D S 4 (s.21.suus) ;
period of self-vengeance, homicide in historical times
Solazzi, B I D R 39 (1931) 5 ; Kirk, Z S S 58 (1938) 161 ; became a crifnen plsblicatnz (QUAESTORES PARRICIDII).
Lepri, S t Solazzi, 1948, 299; Vogel, Z S S 68 (1951) 490. Under specific circumstances killing a person is justi-
Heres suus et necessarius. A person under the pa- fied, as, e.g., in the case of self-defense against a thief
ternal power (or ~ttanlrs)of the deceased who after during the night (fur nocttrrnabs) or when a daughter
his death becomes SUI I U R I S (head of a family). If and her accomplice have been caught in the very act
appointed as an heir in a testament or succeeding at of adultery. A person killed in such situations is
intestacy he has no' power to refuse the inheritance considered iatre c a s s ~ ~( =s justly killed). The Twelve
and becon~esheir kt once after the testator's death Tables inflicted the death penalty on a murderer of
whether he wishes or not. Such heirs are sons, a free person. The Le.r Cornclia de sicariis (by
daughters, and the widow of the deceased ; grandsons Su1la)-still in force under Justinian with various
and granddaughters are hercdes sui only in the event changes introduced by the imperial legislation--es-
that their father is dead or no longer under the pa- tablished the rules applicable to different kinds of
ternal power of the deceased. The praetorian law murder, either fully executed or only attempted.
granted the heredes szri et nscessorii the right to There existed a principle of dolzts pro fncto accipit~tr
refuse the acceDtance of an insolvent inheritance (rus ( = malice, evil intention is considered as if the fact
ABSTINENDI).-See HERES SUUS.-Inst. 2.19. had been done, D. 48.8.7 pr.) ; see CONATUS.Partici-
Manigk, RE 4.4, 672. pation in armed bands of niurtlerers was punished as
488 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
well as iilstigation of, or assistance in, the con~mission (1948) 543; A. Carcaterra, Itrsfitia rtelle fonti, Bari, 1949,
of the crime. Penalties for murder were differen- 98.
tiated accordiilg to the gravity of the crime under the Honor (honos). The dignity and privileges attached
liepublic; under the Empire the social status of the to the power of a magistrate, both in Rome and
culprit influenced the severity of the penalty, even in municipalities; hence also the reverence, considera-
the death penalty distinctions being made (cruci- tion due to him (lzonore~ndebcre, tribuere). Honor
fisiotl, conden~nationad bcstins, decapitation, burn- is frequently syn. with ~gzagistratus. When both terms
ing = crclr~ntio). Not punished was the killing of a occur together, gnngisttatzas refers to the power and
person eseinpt irom the law (see INTERDICERE AQUA its exercise, whereas Izonor covers the dignity, rank
ET I G N I SACER). A master who killed his slave re- and privileges connected with a magistracy. Honor
mained unpunished until Hadrian ordered that such was extended later to any honorific position occupied
a crime had to be treated as honzicidiut~z. Killing by a person in a municipality. Honor denotes also
anotller's slave created civil responsibility only for a gift left in a testament to a person as a sign of
damages done to his illaster ; siillilarly a murder com- respect and reverence. Finally lzonor is used in the
mitted by a slave involved responsibility of his master meaning of an honorarizlvz paid for services rendered
for dainages irom which he was released by delivering (re~~lzinerandi gratia) .-D. 50.4 ; C. 10.41.-See CUR-
the culprit to the family of the person killed (in SUS HONORUM, DEBITOR CIVITATIS.
no.rnlll drdcrc, see NOXA). Accidental killing of a Campanile, D E 3.
Derson was sued for bv, a ~ r i v a t eaction for d a m a ~ e s . Honor matrimonii (maritalis). See CONCUBINATUS.
L 3
' r
an nctio utilis, nlodeled on the actio legis Aqui1iae.- R. Orestano, Struttura giuridica del matrimonio rom.,
1952, 314.
D. 45.8; C. 9.16.-See PARRICIDIUM, SrCARIUS, ADUL-
TERIUM, I U S VITAE NECISQUE, LEX POMPEIA DE PAR- Honorarii. Persons who (in the later Empire) were
RICIDIO, SACER, TRANSFUGA. given the title of a high official but who actually did
Pfaff, RE 8 ; Brunnenmeister, D a s TBturtgsverbrechen int not perform any duties. They did re-
refit. R c c l ~ t ,1887. ceive the distinction accorded to active officials (see
Homo. A human being. "XI1 human beings are either CINGULUM) .-See VACANTES, ILLUSTRIS.
free or slaves" ( D . 1.5.3). The word "howzo Kiibler, R E 7A (s.v. vacantes).
( = man) includes both males and fen~ales" (D. Honorarium. A gift, an honorarium paid (under the
50.16.152). Very often howto is syn. with servus Principate) to persons exercising liberal professions
(a male slave) .-Homines collectively denotes the (lawyers, teachers, physicians, architects, etc.) . For
subordinates of a high dignitary or the officials in physical labor a nzerces was paid, honorarium indi-
the imperial household. cated the compensation for higher, intellectual serv-
Angelis, DE 3. ices. See ADVOCATI. The payment of an honorariuwt
H o m o alieni iuris (sui iuris). See ALIENI IURIS ESSE. could be enforced through extraordinary proceedings
H o m o integrae frontis. A blameless, honest person. (cognitio extra ordinem) in which gradually the
The origin of the expression goes back to the custom principle was recognized that such kind of profes-
of branding the forehead of a convicted caluf~zniator sional services should be recompensed. Honorarium
( = slanderer) with the letter K.-See CALUMNIA. ( = summa honoraria) was also called the sum which
H o m o liber. A free man.-See INTERDICTUM DE municipal officials and senators in the Empire had to
H O M I N E LIBERO EXHIBENDO, LIBER H O M O BONA FIDE pay as a contribution to help defray the expenses of
SERVIENS, PLAGIUM. mounting public games.-See HONORARIA SUMMA,
H o m o novus. A newcomer, who did not belong to SPORTULAE, CONSUETUDO FORI, SENATUSCONSULTUM
the older aristocracy of birth and office (nobiles) but, CLAUDIANUM.
despite the lack of a noble origin entered into the Kubler, RE 4A, 896; Klingmuller, R E 8 ; Cagnat, DS 3,
236.239: De Villa. NDI 6.
highest social class by obtaining a curule magistracy.
Honorarius. (Adj.) Based on, or originating from,
The lzonzines novi owed their official career to ac-
the ius laonorariuwt (praetoriuwz) , e.g., actio, obli-
knowledgment of their personal ability and proficiency
gatio, szaccessor. Ant. civilis (based on the ius civile)
(per se cogniti).
Strasburger, RE 17, 1223; MacDonald, O C D ( s . v . novus
or legitimus (based on a statute).
h . ) ; J. Vogt, H. n . , ein T y j u s der r o m . Republik, 1926; Honorati. I n the later Empire, persons who occupy
Schur, Bonner Jahrbucher 134 (1929) 54. an honorific Dosition. civil or militarv. , in Rome or a
r
Honesta missio. See MISSIO HONESTA. municipality. They remain honorati even after leav-
Honestas. Respectability, an honorable reputation, an ing office and as such enjoy certain personal privi-
honest moral conduct.-See EXISTIMATIO. leges.-C.
" 11.20.
Honestiores. See HUMILIORES. Honoratus. I n the law of succession, a person "hon-
Honestus. Honest, respectable, decent. "Not all that ored" by a legacy in a testament. See HONOR. Syn.
is permitted is honest" (D. 50.17.144 pr.). legafarius. Ant. oneratus = an heir appointed in a
F. Klose, Die Bedeutung v o n honor und It., Diss. Breslau, testament and charged with the payment of a lega-
1933; Carrelli, AnBari 2 (1939) 61 ; v. Liibtow, Z S S 66 fuln or fideicommissum to the beneficiary.
VOL.43, PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 489
Honos. See HONOR. are those against whom we (the Roman people) have
Hordearium (hordiarium) aes. See AES HORDEARIUM. publicly declared war or those who have done so
Horrea. Storehouses. silos. Horrea brivata = store- against us" (D. 50.16.118). The earlier term for an
houses owned by private individuals and leased to enemy was perduellis. Hostis also was used of an
private persons through locatio conductio rei. Leges individual, citizen or stranger, who was declared to
horreorum = rules concerning the deposit of mer- be an enemy of the state by a statute or by the senate.
chandise in storehouses. Horrea publica = large H e might be killed on Roman territory by any citizen
silos maintained by the government for the preserva- with full impunity.-See OCCUPATIO RERUM HOSTI-
tion of food (corn, oil, wine) for public use and dis- LIUM.
tribution. They served also for the storage of food Cuq, D S 3 ; Vaglieri, D E 3 ; F. Vittinghoff, Der Sfaats-
against emergency. The horrea publica were under feind in der ronz. Kaiserzeit, 1936; O'Brien-Moore, RE
Suppl. 6, 759.
the supervision of the praefectus annonae. Special
horrea were provided for the needs of the army.- Huiusmodi. See EIUSMODI.
C. 10.26.-See HORREARIUS. Humanitas. The humane tendency as an ethical com-
Fiechter. R E 8 : Rostowzew. D E 3.. 594:. Romanelli, D E 3, mandment, benevolent consideration for others. The
981 ; hed den at,'^^ 3, 268 ; V. Scialoja, S t giur. 1 (1933) tern1 as well as the adjective huwtanus (huwzanior)
289. appears both in juristic texts and imperial constitu-
Horrearius. The lessee of a storehouse leased from tions. The idea of humanity undoubtedly exercised
the owner (dominus horrei) for warehousing, i.e., a considerable influence on the development of the
the renting out of storage space to customers. Nor-
- -
Roman law through interpretation and decisions of
mally the-horrearius assumed responsibility for the the jurists. In the Christian Empire its influence
custody (custodia) of the things deposited, but he infiltrated various provinces of the law (family, mar-
might publicly announce through a poster (proposi- riage, succession, slavery, penal legislation). It is
turn) the limits of the risk he assumed. The con- undeniable that many a decision introduced by phrases
tractual relation between the horrearius and his cus- like sed hugnanizts est or similar, is not of classical
tomers is a lease of services (locatio conductio origin; on the other hand, however, it is not correct
operarum), that between the horrearius and the to ascribe every passage where the expression hzt-
owner a lease of a store (locatio conductio rei) .-See ?*zanitasoccurs and every decision based on humani-
HORREA. tarian principles to postclassical (Christian) times or
Carrelli, R B S G 6 (1931) 608; Vazny, AnPal 12 (1929) to Justinian. Huilzanitas and hu~nanziscannot be com-
131. pletely eliminated from the juristic langvage and
Hospes. A guest in another's house. Ant. habitator thinking. What appeared good (humane) to Cicero,
= the tenant of a dwelling. See HABITATIO. Only could not appear contemptible to the jurists. The
the latter is responsible for damages done to third tendency to stigmatize the terms as scrupulously
persons through things thrown or poured out from avoided by the jurists is an exaggeration similar to
the abode by anybody.-See ACTIO DE DEIECTIS. that one which condemns the expressions benignitas,
Hospites. Soldiers quartered on a private individual. benignzts, and the like.-See INTUITU.
Hospites recipere = to billet soldiers. Syn. hospi- Heinemann, R E Suppl. 5 ; H. Krdger, Z S S 19 (1898) 6 ;
tiutn praebere. Wolff, Z S S 53 (1933) 328; Harder, Hern~es,69 (1934)
Cagnat, D S 3 (s.v, hospitium militare). 64; Schulz, Principles of R . Lazc~,1936, 189; idenl, History
of R. Legal Science, 1946, 297; S. Riccobono, Linealitenti
Hospitium. Hospitality granted by Rome to another dclla sforia delle fonfi, 1949, 297; Maschi, H . co~ircvrtotivo
nation in an international treaty. It comprised the ginridico, AttTr 18 (1949) ; idcln, Ilrs, n. ser. 1 (1950)
right to sojourn in Rome, to conclude legal trans- 266 ; S. Riccobono, Jr., I1 Circolo gitrridico (Palermo),
actions with Roman citizens (ius com~rzercii) and 1950 (Bibl.) ; Berger, ACIVer 2 (1951) 194 (= Selrt 9,
1951, 41).
protection before Roman courts.-See TESSERA HOS-
Humanitas imperatoria (imperatoris). The later
PITALIS.
Leonhard, R E 8 ; Anon., N D I 6 ; Marchetti, D E 3 ; Lecri- emperors liked to speak of themselves as "htananitns
vain, D S 3 ; C. Phillipson, International Law and Customs nostra." O n the other hand, merciful acts of the
1 (1911) 217; Gallct, R H D 16 (1937) 265; Frezza, S D H I enlperors, particularly in criminal matters, are denoted
4 (1938) 398. as Irulnanitas.
Hospitium militare. See HOSPITES. Humanus. See HUMANITAS. For decisions based on
Hostia. A sacrificial animal. The seller of a hostia lzztntanitas different phrases are used, e.g., huuzanum,
had a privileged right of execution (legis actio per Izunzanii4s, Iz~tt~zanissitrt~cnz
est, hiitrtanius interpretari,
pignoris capionem) against a buyer who failed to Izzrn~ana(hrtltzanior) senfentia.
pay the price. Humiliores. Lower classes of the Roman society.
H . Meyer, R E 8 ; Krause, R E Suppl. 5. Syn. tenttiorcs, Izttrrtiliore loco nati, plebeii. Ant.
Hostis. In ancient language (Twelve Tables) this was honrsfiores = citizens of the higher social classes
syn. with peregrinus = a stranger. Later hostis = distinguished ljy their official position, wealth or
the enemy with whom Rome was at war. "Hostes origin (in nliqttn dipifate positi, honestiore loco
490 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
positi, nati). The distinction between humiliores and Hypotheca omnium bonorum. An hypothecatio~lem-
honestiorcs had particular importance in the field of bracing the whole property of a debtor at the time
criminal law and procedure. Some kinds of punish- of the agreement (res praesentes) ; it could even
ment (capital punishment by crucifixion, by being cover things later acquired by the debtor (res futurac)
thrown to wild beasts, torture, bodily punishment) if they were included in the hypothecary agreement.
were applicable only to huvtiliorcs. In certain cases Justinian ordered that such things were automatically
where the h~rnriliorcswere punished by death, the included in the hypothecation unless they were ex-
honcsfiorrs were merely sent into exile. I n cases pressly excluded. Such general hypothecs were first
in which rrlcgatio was applied to honestiores, hu- introduced as a security for the fisc for its contrac-
~~tiliorcswere subject to deportatio.-See POTENTI- tual claillls and taxes. Later law granted a ward a
ORES, ALTIORES. general hypothec over the property of his guardian
Jullian, DS 3 ; Brasiello, N D I 6 ; Berger, O C D (s.v. or curator for claims resultihg from the administra-
honcstiores) ; Mitteis, A l l 1 Girard 2 (1912) ; De Robertis, tion of the ward's property: Claims connected with
R I S G 14 (1939) 6 5 ; E . Stein, Gcsch. des spit-rowz Reichcs the restitution of a dowry also enjoyed this privilege
1 (1928) 4 4 ; Cardascia, R H D 28 (1950) 305, 461.
under the law. No agreement of the parties was
Hyperocha. The surplus over the amount of a debt necessary (hypotheca tacita) .
which a creditor obtained from the sale of the debtor's Hypotheca tacita. A general hypothec over the debt-
pledge (superfltrui~t pretii, supcrpuztnz pignorum). or's property in postclassical and Justinian's law. It
The creditor is obliged to restore such surplus to is called tacita because an hypothecary agreement of
the debtor. The term hypcroclza (of Greek origin) the parties was not necessary since the hypotheca was
appears only once in the Digest. ,2nt. residuum. established bv the law.-D. 20.2: C. 8.14.-See the
Manigk, S D H I 5 (1939) 228. foregoing item, PIGNUS TACITUM.
Hypotheca. A form of real security. The thing Hypothecaria actio. See HYPOTHECA, PIGNUS.
pledged as a lzypotheca was not handed over to the
creditor, but remained with the debtor who might use I
it but could not alienate it. The Greek-termed in-
stitution originated in agreements under which ten- Iacens hereditas. See HEREDITAS IACENS.
ants of dwellings or lessees of land hypothecated all Iacobus. A glossator of the twelfth century, disciple
of Irnerius-See GLOSSATORES.
the things they brought in (invecta, illata, importata, Berra, N D I 6, 515 (s.v. Jacopo BoEogncse).
introducta) as security for the rent to be paid under
Iactura. A damage, loss. Syn. damnum.
the terms of the lease. The lessor could obtain pos-
Iactus lapilli. The throwing of a small stone on
session of the things hypothecated through an interdict another's landed property as a symbolic act of pro-
in the case of non-payment of the rent due (see
test against a new construction intended by the
INTERDICTUM SALVIANUM) ; later the praetor granted
neighbor.-See OPERIS NOVI NUNTIATIO.
a special action, actio Serviana, for the same pur- Berger, R E 9, 551; Lattes, RettdLonzb 47 (1914).
pose; under this action the lessor could claim pos- Iactus mercium. Jettison; the throwing of goods
session of the things hypothecated, even when they overboard from a ship in distress in order to lighten
were held by a third person and not by the lessee it (naz~islevandae cnusa) .-See LEX RI-IODIA DE IACTU.
himself. In a further development the actio Serviana -D. 14.2.
was extended to other cases of hypothecation (actio Berger, R E 9, 546; Amb, A T o r 76/11 (1941) 290.
quasi Serviana, called also actio ltypothecaria and Iactus missilium. See MISSILIA.
pigncraticia in rem) when the thing pledged had re- Iactus retis. As the object of a sale, the catch made
mained in the possession of the debtor. I n Justinian's by a fisherman (syn. captura piscium). The sale is
law manifold changes were introduced in order to made before the fisherman leaves and the risk is
unify the different forms of pledge and the terms assumed by the buyer who has to pay the agreed
pignus and Izypotlzcca became synonymous.-D. 20.1 ; price even in the event that no fish was caught.-See
3 ; 6 ; C. 8.13-35.-See PIGNUS. EMPTIO SPEI.
Manigk, R E 9 ; 20, 1243; Cuq, D S 3 ; De Sarlo, .VDI 6 Berger, R E 9, 555; F. Vassalli, Miscellanea critico 1
(s.zt. ipoteca) ; Herzen, N R H 22, 23 (1898, 1899) ; A. F. ( A n P e r 1913) 49.
Sorrentino, L'ipoteca delle servitci, 1904 ; T . C. Jackson, Iavolenus (Octavius I. Priscus). A Roman jurist.
Justiniaiz's Digest, Book 20, 1908; Erman, MlE Girard 1
(1912) ; F. Ebrard, Digestenfragmente ad formalam hypo- Born about A.D.60, he was still alive under Hadrian.
thecariana, 1917; D. F . Vasilesco, Successio hypothecaria, H e was the head of the Sabinian school and the
Paris, 1931; Solazzi, S D H I 5 (1939) 228; Rabel, S e m 1 teacher of the famous jurist Julian. His most im-
(1943) 4 4 ; Kreller, Z S S 64 (1944) 306. portant and original work, Epistulae (in fourteen
Hypotheca generalis. An expression used by Jus- books), fully reveals his juristic individuality. Other
tinian for the hypothecation of the whole property of writings of Iavolenus are collections of excerpts from
the debtor.-See the following item. earlier jurists (libri ex Cassio, ex Plautio), frequently
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 491
provided with his own comments. H e edited also a Ignominia. A deprivation of one's good name as
collection of texts from Labeo's posthumous work result of a blame expressed by the censors (nota
POSTERIORES. censoria) or of a dishonorable discharge from the
Berger, R E 17, 1830, no. 59; idem, B I D R 44 (1936/7) 91 ; army.
Orestano, N D I 6 (s.v. Giavoleno) ; Di Paola, B I D R 49-50 Pfaff, R E 9, 1537.
(1948) 277.
Ignominiosus. One whose conduct is dishonorable;
I d est. T o wit, namely, sometimes = for instance. marked with IGNOMINIA.
Many explanatory remarks, introduced by id est, Ignominiosa missio. See MISSIO IGNOMINIOSA.
are postclassical glosses or interpolations- by Jus- Ignorantia facti. See ERROR FACTI.
tinian's compilers, mostly of a harmless nature. The
Ignorantia iuris. Ignorance or an error concerning
locution cannot, however, be excluded, as a matter of
the existence or meaning of a legal norm. I t is preju-
rule, from classical texts. The same refers to expres-
dicial (nocet), i.e., it does not afford an excuse
sions as hoc est, scilicet, and the like.
Guarneri-Citati, IndiceZ (1927) 49 (Bibl.) ; Chiazzese,
and the person who acts from lack of knowledge of
Contributi testuali, AnPal 16 (1931) 149. the law has to bear the consequences of his ignor-
I d quod interest. "That what I have lost and what I ance. Some persons, however, such as women,
would have gained" (D. 46.8.13 pr.). If a defendant minors, soldiers, inexperienced rustic persons (rus-
was to be condemned in id quod (or quanti) actoris tici) may be excused.-D. 22.6; C. 1.18.
Vassalli, StSen 30 (1914) ; Volterra, B I D R 38 (1929) 75;
interest, the judge had to estimate the claimant's De Martino, S D H I 3 (1937) ; Scheltema, Rechtsgeleerd
losses and his material situation which would have Magazijlt 56 (1937) 253; Guarino, AnMac 15 (1941/2)
resulted if the fact for which the defendant was liable 166; idem, Z S S 63 (1943) 243; F. Schwarz, Die Grund-
would not have occurred.-C. 7.47.-See D A M N U M lage der Condictio, 1952, 65.
EMERGENS, LUCRUM CESSANS, QUANTI EA RES EST. Ignorare litteras (ignorantia litterarum). T o be il-
Beretta, S D H I 3 (1937) 419; Giffard, ConfInst 1950, 61. literate (syn, nescire litteras). An illiterate person
Idem est (erit). This and similar locutions, such as may be excused from guardianship. I n written dec-
idem dicenduwt est, observandutn est, placet (placuit), larations to be made for the authorities his signature
introduce a new legal situation but similar to the could be written by another person.
preceding one in order to state that the foregoing Illata. (From inferre.) See INTRODUCTA.
norm or opinion has to be applied to the new instance. Illatio. An installment, especially in the payment of
Ideo. In phrases et ideo, ideoque ( = and therefore), taxes.
this serves often-but not always-for the insertion Illatio mortui. Burying a dead person either in a
of glosses or interpolations. In any case the con- family grave or in one which belongs to another
clusions introduced-in this way have-to be examined family on the ground of a ius mortuum inferendi.
as to their genuineness since through such locutions The illatio mortui makes the place a LOCUS RELIGIO-
a classical decision is sometimes introduced although sus even when the dead was a slave.-D. 11.8.-See
in consequence of the omission of the preceding INTERDICTUM DE MORTUO INFERENDO, SEPULCRUM.
deliberations by the compilers the conhection with Taubenschlag, Z S S 38 (1917) 251.
the foregoing text is interrupted. Illegitimus. Illegal, unlawful, illegitimate. Ant. LE-
Guarneri-Citati, Indice2 (1927) 45 (Bibl.) ; idem, S t GITIMUS.
Riccobono 1 (1936) 723. Illicitus. What is not permitted by law or custom,
Idiologus. (From the Greek idios logos.) A fiscal improper. Generally illicit acts are not valid. An
administrator of the emperor's res privata in Egypt. illicit condition or testamentary disposition is con-
-See GNOMON. sidered pro non scripta ( = as if it would not have
Plaumann, R E 9, 882; S. Riccobono, Jr., I1 gnomon dell'i., been added, written). Ant. LICITUS.-See COLLEGIUM
1950, 11. ILLICITUM, CONDICIO TURPIS.
Idoneus. Used not only of the financial solidity and Ferrini, N D I 6, 657; J . Macqueron, L'histoire de la cause
solvency of a person ( a debtor, a surety, a guardian) immorale ou illicite, 1924.
but also of his honesty, trustworthiness, and moral Illustratus. The dignity of a vir illustris. Syn. illus-
reliability. In connection with security given by a tris dignitas.
debtor, idonee cavere = to give security either through Berger, R E 9, 1071.
suretyship or a pledge. "But if faith is given to the Illustris. (Sc. vir.) An honorific title of the highest
debtor's promise without any surety, it appears idonee officials of the later Empire. Frequent in imperial
cautum" ( = the security is considered proper, suf- constitutions from the second half of the fourth cen-
ficient 1, D. 40.5.4.8. tury on, and in inscriptions, the title is connected
r , Albertoni 1 (1935)
506 ; G. Nocera, Insolvenza,
~ i i b l ~St with the prefects of the city of Rome and of the
1942, 36.
praetorium, with the vnagister milituvn, comes sacra-
Ignis. See INTERDICERE AQUA ET INGI, CREMATIO. rum largitionum, quaestor sacri palatii, etc. Although
Ignobiles. See NOBILES. the title was normally attached to the office there
492 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
were illustres honorarii upon whom it was bestowed ownership or a public place or building), e.g., to let
by the enlperor as a special privilege (through codi- water or a sewer run into it, to disturb the neighbor
cilli Izonorariae dignitatis). The wives of the illustres by steam or smoke, to bring a beam (tignum) into
were illztstres, too ; similarly the office itself was called the wall of the neighbor's house. Such acts normally
illustris (illustris praefectura, administratio, sedes, can be inhibited by prohibitory or restitutory inter-
etc.). The illustres enjoyed special personal privi- dicts (interdicta) .--See IXTERDICTA DE VIIS PUBLICIS,
leges, such as exemption from public charges (mu- F U M U S , STILLICIDIUM.
nera), a privileged position in civil and criminal Pasquera, N D I 6 , 723.
trials and as witnesses, and the like.-C. 5.33.-See Immobilis. See RES IMMOBILES.
SPECTABILIS. Immoderatus, immodicus. Excessive, immoderate,
Berger, RE 9 ; Jullian, D S 3 ; Brasiello, N D I 6 ; De Rug- unreasonable. The terms are applied to acts or
giero, DE 4, 5 5 ; A. Stein, Bull. Acad. Belgique, Cl. Let- doings which exceed the normal o r licit limits, e.g.,
tres, 1937, 365.
to a donation, an ol)ligation, the price of an object
Imaginarius. Used of a transaction (contractus imagi-
sold.
narilds, solutio imaginaria) concluded by common
Immunes. Persons permanently exempt from military
consent of the parties pro forma in order to cover
service (e.g., priests, persons over forty-six years
up another one intended by the parties but some-
of age, those who served ten years in cavalry or
what contrary to the law. Such a transaction was, sixteen-later twenty-five-years in infantry). Tem-
e.g., one that looked on the surface like a sale but porarily relieved from service were the furnishers of
was in fact a donation prohibited by the law (be-
the army, persons employed in lower official service
tween husband and wife). Imaginarius is called
(apparitores) . Syn. noun vacatio mi1itiae.-Immunes
also a party to such a transaction, e.g., i+naginarius
were also those who for any reason were exempt from
emptor. I n another sense iwzaginarius denotes the
public charges, taxes, and the like.-See IMbruNITAs,
external .resemblance of a transaction permissible
MUNERA.
under the law, to another legal transaction although De Ruggiero, DE 4 ; Fiebiger, R E 9 ; Jullian, DS 3 ; De
substantially they are not identical. Thus mancifiatio Visscher, Les Cdits d'dlrguste, 1940, 103; Welles, I R S
is called i~naginariavenditio, an acceptilatioimagi- 28 (1938) 41.
naria solutio, a testamentuw per aes et libram- Immunitas. Exemption fro111 taxes or public charges
imaginaria mancipatio.-See the pertinent items, (MUNERA). It was granted as a personal privilege
.DICIS CAUSA, SIMULATIO. to individuals, as a privilege of a social group (pub-
Berger, R E 9 ; Rabel, ZSS 27 (1906) 300; G. Pugliese, lic officials, soldiers) or of a community in Italy
La simulazione nei negozi giuridici, 1937, 147. o r in a province. The extension of imna-unitas was
Imago. See rvs IMACINUM.-C. 1.24.
M. Segri., Relzd. Pontzficin Accad. rlrcheoloyica 19 (1942i3)
-
different: it varied according to the kind of the
charges or the profession of the persons exempted
269.
(physicians, teachers, clergymen, etc.) . Itnnzzrnitas
Imagines. In the army, medallions with the portrait was granted 1)y the senate through a decree (senatus-
of the reigning emperor, used as insignia of military cons~ltzinz) and under the Empire by the emperor
units (legions, urban cohorts). through a general enactment (edictum) or a special
Imbecillitas. Mental or physical weakness which may personal privilege. ( )f particular importance were
deprive a person of the ability to conclude a legal the exemptions in the domain of municipal adminis-
transaction. Intbecillitas is brought in connection tration.-D. 50.6; C. 10.25.
with the age (imbecillitas aetatis) or sex (iwzbecillitas Ziegler, R E 9 ; Kiibler, R E 16, 650 ; Messini, NDI 6, 727 ;
se.t-its), i.e., as imbecillitas of women. Stevenson, O C D ; Ferrari Dalle Spade, Immunitb ecclesi-
Imitatio veteris iuris. See VETUS IUS. astiche nel dir, rom., AVen 99 (1939/40).
Immiscere se. T o meddle, to interfere in another's Impedire (impedimentum). T o hinder (a hindrance,
affairs (negotiis alienis). The term was primarily impediment). The terms are used of legal norms
used when such an interference was done against the which impede the conclusion of certain legal acts,
will or without authorization of the person involved. or to legal requirements which, when not complied
Int~~iiscere creates the liability of the person so acting with will produce the non-validity of the act done.
since "it is culpable to interfere in a matter which is Impendere. T o s1)encl.-See IMPENSAE.
not ours" (D. 50.17.36). Impendium. See syn. IMPENSAE, DISPENDIUM.
Berger, R E 9. Impensae. Expenditures made on a thing. They
Immiscere (miscere) se hereditati (or bonis). See become juristically important when made in behalf
PRO HEXEDE GERERE.
of another's property (in nlirnuin) or by one co-
Berger, R E 9, 1108.
owner in behalf of a thing he owns together with
Immittere. T o let into a place. I t occurs when the others. Legal situations whereby one cotlles into the
owner of an immovable cotl~mitscertain acts which position to make exl)entlitures for another are mani-
do harm to the adjacent property (he it in private fold. They ma!. originate fro111a contract (iuip~nsae
VOL. 43, PT. 2, 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F R O M A N LAW 493
made by a depositee, or by one who received a thing Impensae voluptariae (voluptuosae). Expenditures
as a gratuitous loan, commodatum, or as a pledge, made on a thing which serve only to increase its
by a husband with regard to the dowry) or from the beauty or for ornaments. Impensae volupfariae are
possession of another's thing in good faith as one's neither necessary (necessariae) nor beneficial (utiles).
own. For the various kinds of impensae, see the As a matter of rule, there is no liability on the part
following items. T h e liability of the owner for the of the owner to refund them, but the person who
restitution of expenses could be established in a spe- made the ornament at his expenses has the right to
cia1 agreement or by his consent to a specific ex- take it away (IUS TOLLENDI).
penditure. I n the absence of a mutual understanding Imperator. The commander (one who ilnperat) ef
the legal rules were applied which settled the problem the army. Under the Republic a high magistrate
in various ways for specific legal situations. T h e (consul, praetor, proconsul) who, by virtue of his
proceeds derived from the thing held, are deducted imperiuutz, commanded the troops, was hailed (salzt-
from the impensae to be restituted.-D. 25.1.-See tatio, acclamatio) by them after the victory over an
POSSESSIO BONAE FIDEI. enemy as imperator, at the end of the battle or during
Guarneri, Citati, N D I 12 (s.v. spese) ; Riccobono, AnPal his triumphant entrance in Rome. H e used to be
3-4 (1917) 319; idem, B I D R 47 (1940) ; S. Riccobono, so addressed afterwards in public and private life.
Jr., AnPal 17 (1937) 53; Daube, CambrLR 1945, 31.
Augustus assumed the term imperator as a prae-
Impensae Expenses made the husband On nomen (Imperator Caesar) and so did his successors.
the property he received as a dowry (in dotem [res Thus gradually the former honorific title became an
dotales] factae). Specific rules determined the bus- appellative title of the princeps, the head of state
hand's right to recover his expenditures at the resti- ("the emperor") .--See PRINCEPS.
tution of the dowry. They underwent various changes Rosenberg, RE 9 ; Cagnat, US 3 ; Orestano, N D I 6 ; L)e
in the course of time. "Necessary expenses diminish Ruggiero, DE 4, 41, 43; MacFayden, T h e History of the
the dowry by the force of law (ifso iure)" ( D . 25.1.5 title Imperafor under the R. Eiilpire, Chicago, 1910;
pr.) .-D. 25.1.-See RETENTIONES DOTALES. Stroux, Die Antike 13 (1937) ; Momigliano, Bttll. Colrrriz.
under the law, they can be recovered from the per- Imperfectus. Not cotnplete. f\ transaction is incom- %
who laid out the money is sued for the restitution of Aru, A G 124 (1940) 3.
the produce. "What remains after the deduction Imperialis, Connected with, or froln the
expenses is a produce" (D. 5.3.36.5).- emperor ( e . ~ .constit~rfio,
, stnt~rfo,pi-ul~rrpfmrn,libcra-
See FRUCTUS. P
lifns, auctorztas, ~~tuiestas,
etc.). Imprricllis occurs as
Riccobono, A G 58 (1897) 61; Riccobono, Jr., 4izPal 17 frequently as its syn. principalis.
(1937) 53.
Imperitia. The lack of ~)rofessional skill, capacity
Impensae litis. See S U M P T U S LITIS.
(knowledge). It created liability of the pet-son who
Impensae necessariae. ex~)enditllres''lade throrlg~la cotltract ([oclltio f n ~ t d r f l - oprr;s,
tio or / o c ~ , i a
to I)revent deterioration, destruction, or loss of a conductio opprarliljl) assulllrtl tllc (luty to rrndel.
thing, e.g., rePairi1lg a buil(ling, medical attentlance I)rofessionxl seryicrs, witllout having the net.
on a slave. They must always 1)e made good except essary knowleclge. is collsidered a s a form of
to the holder of a stolen thing. Ant. ilt~prnsaczitiles, cur,rA (rlflpne adnrfll,crtrtur). I ~ ~ is used ~ ~
; ~ ; ~
vol~cptavine. artisans ant1 craftsmen as well as of prrsons exercis-
Impensae utiles. Usecul, beneticial, exl)entlitures made illg lil,eral llrofessions (p~lysicialls,land-surveyors,
to ~)rOlllotcthe iml~rovenicntof a thing, to increase ,tc.). Also tile lack of knowledge of the l a w (in..
its produce or selling value. Generally the improve- ability) in a judge is qualiiied as imprr,itia,
nlents may be taken away by the 1)erson who made Arangio-Ruiz, Rrspor~sabilitd rontraituol~,2nd rd 1933.
them to the profit of the owner if it is feasible without 188.
damage to the thing. Irrrprnscrc ttfilcs liirtst be re- Imperium. A n order, conimantl. A Icg:\l tiortin is
storetl by tlie owner i f they were made with his con- calletl imprrium lryis whcn rcierri~igt o a statute.
sent. Atit. irnprnsuc nec.es.snriuc*, vo11rpturiur.-See Irnppr.iurn means also tlie right to give ordcrs (ilts
I U S TOI.LENI>I. irnprrandi), the powcr over a smaller gro\ll) such as
494 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
a family (hence imperium dovnesticum is the impe- Impetrare (impetratio). T o obtain on request. The
rium of the head of the family, pater familias). The term is used of judicial and administrative measures
supreme power of the Roman people, its sovereignty which individuals succeeded to obtain by petitions
= imperiuln PoPuli Romani. I n a technical sense (petere, postulare, desiderare), addressed to magis-
imperium = the official power of the higher magis- trates, imperial officials, or the emperor. The locu-
trates (magistratus .t$zaiores) under the Republic, and tion impetrare actionewt belongs to the language of
of the emperor under the Empire. The magisterial the imperial chancery.-C. 1.22; 2.57.
imperium embraced various domains of administra- Naber, R S t D I t 11 (1938) 5.
tion, legislative initiative through proposals made Impetratio dominii. A request of a creditor (creditor
before the popular assemblies (ius agendi cum pigneraticius) addressed to the emperor to the effect
populo), and military command. With regard to the that he be recognized as the owner of the thing,
administration of justice, a'wzperium is sometimes op- pledged to him by the debtor, for which he could not
posed to, and distinguished from, IURISDICTIO, some- find a ~ u r c h a s e r . Tustinian ordained that if the
times coherently connected with it. See IMPERIUM value of' the pledge kxceeded the deb!, the surplus
MERUM. The iuristic sources do not aaree as to - had to be restored to the debtor. The latter had
-
the attribution of certain magisterial acts of iurisdic- moreover the right to redeem the pledge within two
years by paying the sum due with interest.-C. 8.33.
- - missiones,
tional character (restitutio in inteqrum,
-See HYPEROCHA.
appointment of guardians) to imperium or iurisdictio.
A. Burdese, L e x commissoria (dlem. Ist. giur. Torino 63,
The confusion is doubtless the result of alterations of 1949) 206.
the texts or misunderstanding on the part of Jus- Impetus. Mental impulse. A crime committed impetu
tinian compilers for whom older distinctions lost their is considered neither intentional nor casual. It is in
practical significance.-Finally imperiunz means the the middle like culpa between casus and dolus. Acts
territory of the state.-See LEX DE IMPERIO, POTESTAS. committed in drunkenness (ebrietas, per vinutn, temu-
Rosenberg, RE 9 ; Toutain, D S 3 ; Lauria, N D I 6 ; De lentia) are punished mildly, especially when com-
Ruggiero, DE 4 ; Balsdon, O C D ; Nocera, AnPer 57
(1946) 145; F. Leifer, Die Einheit des Gewaltgedankens mitted by soldiers. Imperial legislation considered
i m rom. Staatsrecht, 1914, 68; Radin, S t Riccobono 2 violent excitement of the wrongdoer an extenuating
(1936) 21; Caspary, S t Albertoni 2 (1937) 394; G. circumstance. Iwzpetus doloris was also taken into
Pugliese, Appunti sui limiti dell'imperium nella repressione consideration (e.g., when one killed his wife caught
pcnale, 1939; Balsdon, J R S 29 (1939) 57; Rudolph, Neue in adultery) "since it is extremely difficult to master
Jahrbiicher fur das klas. Altertum, 1939, 145; H . Wagen-
woort, Roman dynamism, 1947, 70; C. Gioffredi, Contributi a justified grief" ( D . 48.5.39.8).
alla storia della procedura civ., 1947, 16; Vogel, Z S S 67 F. De Robertis, Studi di dir. penale rom., 1943, 140.
(1950) 62. Implere. T o fulfill (an agreement, an obligation, a
Imperium domesticum. The power of the pater fami- condition), to satisfy legal requirements (e.g., of an
1ias.-See I M P E R I U M . usucapion), to complete, to bring to an end.
Imperium domi. See DOMI. Impleri. Condicio impletur, see CONDICIO.
Imperium maius. The imperium of a higher magis- ~mplorare. T o request a judicial remedy (e.g., an
trate when compared with that of a magistrate lower in integrzt~nrestitutio), to supplicate. The term oc-
in the hierarchy, e.g., the ilnperium of a consul was curs frequently in imperial constitutions.
impcrium lnaizts when confronted with the praetor's Imponere. T o impose ( a duty, a charge, a penalty)
impcrizt~n. Ant. imperiu9n minus. P a r imperiuilt = upon a person. For imponere fcstucam (vindictnm)
the il~zpcriumof magistrates equal in rank (see COL- in the legis acti'o sacraljzento in rcm, see VINDICTA.
I,I.:~;AE)
.-See INTERCE.SSIO.. Imponere libertatcm = to grant freedom. Iwzponere
Rosenhcrg, R E 9, 1209; Hugh Last, J R S 37 (1947) 157;
servitutem = to impose a servitude upon an iminov-
M. Grant, From inzperiu~rzto auctoritas, 1946, 411. able by agreement or in a testament.
Gradcnwitz, Z S S 23 (1902) 337.
Imperium merum. The full magisterial power. As
far as juristliction is concerned, it is limited only to Importata. See INTRODUCTA.
crin~inalnlatters (ius gladii, potestas glcrdii) ant1 does Impossibilium nulla obligatio. "An ol~ligationto (lo
not incluile juristliction in civil matters. If, however, impossil)le things is not bintling" ( D . 185.50.17).
the latter was granted too, the illzpcriz(1n was ternmed "Things which cannot I)e given (i~tlpossibiliadari)
impcrium mixtullz. The origin of this distinction is are consitleretl not to be inclutletl (sc. in a transac-
tion)" (D. 135.50.17). A contlition is consitlered
somewhat ol)scure.
Pfaff, RE 9 ; Rosenl)erg, &id. 1210.
iml)ossil)le when nature niakes its f~~lfilltnent inlllos-
sib1e.-See C O N D I C T I ~IMPOSSIRII.IS.
Imperium militiae. See DOMI. Rahel, M i l Girardin, 1907, 47.3; i d r n ~ F, a Brlzkrr, 1907,
Imperium mixtum. See I M I ~ I ' R I U M M E R U M , 193; Longo, AnMac 2 (1934) 213; F. Pastori, Profilo
Imperium par. See I M P I ' R I U M MAIUS. dognttr/ico drll'nhhli!l. rorrr , 19.51, 171.
Imperium proconsulare. See I ~ R ~ C O N S U I . . Impostura. See STELLIONATUS.
VOL. 43, IT.2 , 19533 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 495
Improbare. T o disapprove, to reject. T h e term is See CAPAX DOLI, CURATOR IMPUBERIS,TOGA PRAE-
applied to agreements or contractual clauses (con- TEXTA.
ditions) condemned (improbari) by law or custom. Baudry, D S 2; S. Perozzi. Tutor inzfiubes, Scritti 3 (1948,
Improbare is also used of a disapprobation of a person ex 1918) 127; Tumedei, A G 89 (1923) ; Albertario, Studi
1 (1933) 81 ; Di Marzo, S t Besta 1 (1939) 111.
who is considered to be unqualified for certain duties
Impune. Without punishment, with safety. Intpune
(e.g., a guardian) or works.-Ant. adprobare, pro-
bare. is frequently used with a negative (non impune, nemo
Improbus. Dishonest, lacking in moral integrity. Im- iwpune, and the like) and indicates that a person
firobz~sis a person who, for instance, knowingly sues acting in a certain way may expect punishment.
for a debt which has been paid or who conducts a Non intpune is sometimes syn. with illicite.
trial knowing that he is wrong (improbzts litigator). Impunitas. Freedom from punishment.-See ABOLITIO.
"He who does not know how much he owes cannot Impunitus. Unpunished, one who escaped punish-
be considered dishonest" (D. 50.17.99) .-See NEMO ment. The emperor Trajan made in a rescript the
DE IMPROBITATE.
following statement: "It is better to leave a criminal
Kleinfeller, RE 9. unpunished than to condemn an innocent person"
Improbus et intestabilis. See TESTIS. (D. 48.19.5 pr.) .-See SUSPICIO.
Improbus litigator. See IMPROBUS.Syn. calumniator Imputare. T o reckon into (for instance, into ex-
(see CALUMNIA), tentere Eitigans. According to Jus- penses, a legacy, the qtiarta Falcidia, a debt), to
tinian's constitution he must pay his adversary all make a deduction. Inzpidtare is used also to mean
damages and expenditures caused by the trial (C.. charging one with fault or negligence (culpa, negle-
3.1.14.1). gentia).
Imprudentia. Want of knowledge of law or facts, In bonis esse (or rem habere). When a res mancipi
ignorance, inadvertence, imprudence. I n legal mat- was conveyed by a mere delivery (handing over,
ters it is treated like IGNORANTIA.O n the other tradifio), and not by one of the solemn acts required
hand, however, "almost in all criminal trials assist- for the transfer of property of such things (111nnci-
ance is given to youth and lack of prudence" (D. patio, in iuve ccssio), the transferee did not acquire
50.17.108).-See IUDEX Q U I LITEM SCAM FACIT, ownership under Quiritarian law but he had the
I MPERITIA. thing only in bonis (= among his goods, so-called
Impubes. A person below the age of puberty, one who bonitary ownership) which was protected by prae-
has not attained manhood. I n earlier times no cer- torian law. I-Ie might acquire Quiritarian ownership
tain age was fixed for puberty (pubertas). Physical through USUCAPIO.-See ACTIO PUBLICIAXA,DOJII-
condition (habitus corporis) was decisive, both in N I U M E X IURE QUIRITIUM, D O h I I N I U M DUPLEX.
men (qui generare possunt = who are capable to pro- .4. Audibert, Hisfoirc dc la proprit:ti prkforiririzc, 2 vol.,
1889; P. Bonfante, Scrifti 2 (1926) 370; hi. Kaser. Eiycit-
create) and women (n~lbilis,viripotens = fit for mar- fzirlr toid Bcsifz, 1943, 297.
riage). The beginning of puberty had its external In continenti. See CONTINENS.
established as the end of impuberty. An ivtpttbcs, In domum deductio. See DEDUCTIO I N DOMUM.
who is not under the paternal power (patvia pofestas) In factum actiones (formulae). See FORMULAE I N
Inchoare actionem (iudicium, litem). When refer- Inculpanter, inculpate. Free from fault, from culpa-
ring to the procedure extra ordincm, to initiate a law- bility, without I~lame. Syn. sine culpa.-See CULPA.
suit; when referred to the forn~ularyprocedure the Incursio, incursus (latronum, praedonum). An as-
term indicates the litis contestatio. sault of bandits. An attack made by a group of
SoIazzi, ANap 63 (1951). r o b l ~ r swas considered a vis maior. I t released the
Incidere. T o become involved in a situation which holder of another's things from responsibility.
makes a law ( a statute) or a criminal or private Incusare. T o accuse, to blame, to complain. The term
action applicable against the person entangled, e.g., appears only in the language of the imperial chancery.
incidere in legem Aquilia~n, in edicturn, in senatus- Indebite. See INDEBITUM.
consu1tr~nt.-See C O M M U N I O INCIDENS. Indebitum (indebita petunia). A debt which in fact
Incidere testamenturn. T o cut through a written does not exist. I n a brbaadr sense the term is used
testanlent (tabulas testarrlcnti) in order to destroy the of an existing debt which may be repealed by a per-
last will. If a testator in a state of insanity did so emptory exception. What has been paid in discharge
with the testament he had made when he had been of a not existing debt may be recovered by a special
mentally sane, the testament remained valid. action, condictio indebiti.-D. 12.6; C. 4.5.-See
Incisus. (Sc. aerc). One whose name was engraved CONDICTIO INDEBITI.
-
on a bronze tablet containing a list of persons for a F. Fitting. Scierts indebiturn accibere. Lausanne. 1926 :
Van oven, Iura 1 (1950) 21 ; J. G . ~ u c h s ,Iusto causi
specific purpose, e.g., for participation in the gratui-
troditionis (Basel, 1952) 163.
tous distribution of grain in Rome.
De Ruggiero, DE 4. Indefensus. A defendant who by his negative attitude
Incola. An inhabitant of a city or municipality, one refused the cooperation necessary for the continuation
"who conferred his domicile at a certain place" (D. of a trial. Indefensus is one who does not accept the
50.16.239.2). Hence syn. qui domiciliu~rzhabet. See formula (accigere iudicium) proposed by the plaintiff
WMICILIUM. An incola is distinguished from an and approved by the magistrate, one who does not
originarius, i.e., a citizen of the community where he offer security ordered by the praetor, who does not
was born: see ORIGO.-"An incola has to obev the answer when questioned by the praetor in court
magistrates of the place where he is an inhabitant as (interrogatio in iure), or who is hiding himself (lati-
well as those where he is citizen" (D. 50.1.29).- tare) so that he cannot be summoned by the plaintiff;
D. 50.1 ; C.10.40.-See CONSISTENTES.
see I N IUS VOCATIO.T he sanction for the frustration
Berger, RE 9 ; Lechat, D S 3.
of the process by the defendant was that the plaintiff
Incolatus (ius). Rights and duties connected with the was authorized by the praetor to enter into possession
domicile, the quality of being an incola in a commu- of the defendant's property, MISSIO I N POSSESSIONEM.
I n trials i n which a right over a thing is involved,
Incommodum. See COM MODUM. the thing itself is called res indefensa when the de-
Inconcussa possessio. Undisturbed possession of an fendant assumed a ~ a s s i v eattitude. In such a case
immovable (inconcusse possidere). Unknown in the the plaintiff was given possession of the thing. In-
classical language, the term appears in later imperial defensus is also one who being personally incapable
constitutions. to defend himself in court, is not properly represented
Inconsiderate, inconsulte (inconsulto). Inconsider- by his tutor or curator.-See LATITARE,MISSIO I N
ately, thoughtlessly, without deliberation. One who POSSESSIONEM RE1 SERVANDAE CAUSA, DUCI IUBERE,
is so acting must bear the consequences of his trans- DEFENSIO, DEFENDERE.
actions or declarations made without deliberation. Wlassak, Confessio in iure, SbMiinch, 1936, Heft 8.
Ihconsultus. (Adj.) Not consulted. Inconsulto prae- Indemnis. Secure from loss, incurjng no loss. In-
tore (principe) = without asking the praetor (the demnem praestare aliquem = to indemnify either by
emperor) for permission or advice. reimbursement of the damages already done or by
Incorporalis. See RES INCORPORALES. giving security against future losses.
~ n c o r ~ o r a t i o T. he incorporation of confiscated prop- Indemnitas. Security against loss, indemnification.
erty into the private property (res privata) of the See I N D E M N I S , CAUTIO INDEMNITATIS.-C. 5.46.
emperor.-C. 10.10. Index. One who denounces a crime without being a
Incrementum. An increase, augmentation, produce. formal accuser in a criminal trial; an informer. A n
The term is applied to increases of a dowry, of an index who had been an accomplice of a criminal £re-
inheritance or legacy, of a peculium, and becomes quently went unpunished if his information led to
juridically important when the restitution of such the discovery of the culprit. Both the denunciation
patrimonial units is involved. and the award given to the index were termed
Incubare (incubatio). T o take and retain another's indicium.
thing in unlawful possession. Incubator = an un- Kleinfeller, RE 9 ; Kaser, RE 5A, 1047.
lawful holder of a thing. Index. A summary of a juristic text or of a ~ r i t t e n
Daube, CombLJ 9 (1945) 37. document (index scripturae) . I n the Byzantine legal
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
literature indices were rCsumPs of older collections of dating, the years 1)eing indicated I)y the number of
legal texts in the form of concise formulations of legal the indiction and 1)y one to fifteen according to their
norms with the omission of discussions, polemics, sequence in the given indiction. The first indictio
historical reminiscences, and the like. The most cycle started in A.D. 297 and the beginning of an
renowned Byzantine jurists (Theophilus, Dorotheus, indictio was on September 1st.-Indictio (indicere)
Stephanus, Kyrillos) wrote indices of the Digest or was the term for the imposition of public charges
of parts thereof. Authors of indices were designated (i~aunera).-C. 10.17 ; 43.-See SUPERINDICTIO.
as indikeutai. De Ruggiero, DE 4, 48; Humbert, DS 3 ; Seeck, RE 9 ;
Berger; Justinian's Ban, Bull. Polish Inst. of Arts and Ferrari dalle Spade, Immunitd ecclesiastiche, AVen 99, 2
Sciences in America 3 (1945) 676 (= BIDR 55-56, Post- ( 1939-40) 149.
Bellum, 1951, 148, Bibl.). Indictio belli. A ceremonial act (throwing a blood-
Index Florentinus. A list of juristic works which stained spear into the enemy's territory), performed
had been excerpted for ~ustiniah'sDigest. Justinian by the FETIALES ; it completed the declaration of war.
ordered that such a list be composed, but only the -See INDICERE BELLUM, LEX DE BELLO INDICENDO,
manuscript of the Digest of Florence (see FLOREN- CLARIGATIO, FETIALES.
TINA) contains such a list. However, some works Walbank, ClPhilol 1949, 15.
of clissical iurists are listed therein of which no Indigena. A person living at his birth place. The
excerpt is preserved in the Digest but on the other term is used in imperial constitutions.-See ORIGO,
hand some works are excerpted in the Digest which WMICILIUM.
are not mentioned in the index Florentinus. Indignus. In the law of successions, a person who
Peters, Die ostrom. Digestenkommentare, 1913, 75 ; Ro- because of his (ungrateful) attitude towards the tes-
tondi, Scr. giur. 1 (1922) 298. tator became unworthy to benefit by the latter's last
Index rerum gestarum. (Of Augustus.) See RES .will. H e was deprived of the advantages granted
GESTAE. therein. Generally it was the fisc which might claim
Indicere. T o impose a duty. The term applies to the return (eripere, puferre, see EREPTORIUM) of the
both official orders (imposing public services, munera things already taken by 'the indignus under the testa-
or other charges) and to testamentary dispositions by ment.' Indignitas (= the quality of being indignus)
which an heir or a legatee was charged with the per- was primarily introduced by the imperial legislation.
formance of services or with a moral duty (indicere An indignus was one who killed the testator or did
operas, inditere viduitatem) .-C. 6.40. not take the necessary measures to revenge his as-
Indicere bellum. T o declare war. Under the Republic sassination; one who impugned the last will as in-
the decision about a declaration of war depended upon officious ,(see QUERELA INOFFICIOSI TESTAMENTI) or
the comitia centuriata.-See INDICTIO BELLI,LEX DE as forged and lost the trial; one who concealed the
BELL0 INDICENDO, FETIALES, CLARIGATIO. last will in order to avoid the payment of legacies, or
Indicia. Circumstantial evidence. "Indicia have no who, appointed as a guardian, refused to accept the
less force of evidence than documents" (C. 3.32.19), guardianship without any just reason, or the like.-
provided thty are not prohibited by law. The term D. 34.9; C. 6.35.-See INULTA MORS,N UBERE.
appears in imperial constitutions (from the time of E. Nardi, I casi di indegnitd, 1937; idem, SDHI 6 (1940)
393; B. Biondi, Successione testamentaria, 1943, 155.
Diocletian) in connection with both criminal and
civil mattdrs. Indiscrete, indistincte. Without any distinction, with-
Indicium. In criminal matters the denunciation of out a specific indication which 'person or thing is
a crime and its perpetrator.-See INDEX,NUNTIATOR. meant, e.g., when a payment is made by a debtor liable
for several debts without stating to which debt the
Indicium. The promise of a recompense for a certain
payment refers.
service. I t used to be announced publicly (edicere),
as, for instance, the announcement of a reward for Individuus. Indivisible. Things or rights which can-
the return of a runaway slave. The award was prom- not be divided and things which cannot be separated
ised to anybody who succeeded in fulfilling the action into parts become the common property of the per-
to be compensated. sons to whom they happen to be assigned. Individuus
R. v. Mayr, Die Auslobung, 1905; R. Villers, Remarques is sometimes syn. with indivisus (undivided). See
sur la promesse de rkcompense, 1941 ; Diill, Z S S 61 (1941) the following item.
23. Indivisus. Undivided, not separated into parts. Pro
Indictio. An imperial enactment ordaining an extra- indiviso possidere (habere) is used of owners who
ordinary requisition of corn from the owners of pro- have a thing in common ownership (communio pro
vincial land. From the beginning of the fourth cen- indiviso). In such instances the right of any one of
tury on, the indictio became a regular annual impost. them is expressed by a fraction and the thing itself
The revision of the land taxes was carried out every remains undivided.-See C O M M U N I O (Bibl.) , PIGNUS.
fifteen years ( = three censuses). These fifteen-year Indotata mulier. A woman who entered a marriage
Inducere (inductio). T o cross or~t,e.g., the institu- sented by another. In particnlar, persons contlemnetl
tion of an heir or a legacy in a testament. See I N T E R - for crimes or private wrongdoings (dclicta) were
L I N E K E . P I I R I ) U C I ~ R I I . - ~ ~ ~with
~ ~ C P ~reference
P to a struck by this measure. lnfa~rtiaas it al)l)ears as a
statute (e.g., indztcrrc lc~ji*trtI;nlcidiam), a senatus- developed institution in Jristinian's law originntetl
co~lsult,or a legal remetly (an action, an exception) either in the exercise of a tlishonest profession ( p c r -
= to apply.-D. 28.4. sonnc ttrrpcs) or in a condemnatory jritlgment in
Inducta. See INTRODUCTA. trials resulting from contractual relations which re-
Indulgentia (indulgere). An act of grace (by the quired a particularly honest behavior antl in which
en~peror= indul~jentin principis), a benefit granted the violation thereof appeared as a flagrant break of
as a favor (c.r indrrlgcntia). The term occurs pri- confidence (as, e.g., partnership, deposit, mandat~rst,
marily in imperial constitutions concerned with acts fidltcin). See ACTIONES FAMOSAIC.Bankruptcy, a
of amnesty in criminal matters. dishonest discharge from military service, mis1)ehavior
Kleinfeller, R E 9 ; Cuq, D S 3 ; De Ruggiero, D E 4 ; P. in family life, simultaneous betrothal with two per-
Duparc, Origiile dc la grcicc dans Ee droit phnal rom., sons, and many other wrongdoings made a person
1942, 25; Carrelli, Restitutio i. principis, AnBari 53, 2 infa~tris( = qui notatttr infnmia, as Justinian says).
(1934).
Besides procedural disabilities infa~niacaused other
Indulgentissimus. A title given to emperors (after tlisadvantages such as exclusion from tutorship antl
Hadrian) . denial of the right to obtain a public office or to be
De Ruggiero, D E 4.
an accuser in a criminal trial. Under specific cir-
Indutiae. X truce, armistice. cumstances, infnvria was not without repercussion
C. Phillipson, I'lrr Ii~trritatio~ral
Lazu and Custont of Att-
in the rights of succession.-D. 3.2; C. 2.11 ; 10.59.-
cicttt Grcccc and Iio~rtc,2 (1911) 287; E. Taubler, Im-
perium Romaitu?rt (1913) 29. See NOTA CENSORIA, IGNOMINIOSUS, INTESTABILIS,
Inefficax. Deprived of legal effectiveness, ineffective. INUSTUS, TURPIS PERSONA, TURPITUDO.
Ant. EFFICAX. Pfaff, R E 9; Humbert and Lkcrivain, D S 3; Sacchi, N D I
6 ; De Ruggiero, D E 4 ; Berger, OCD ; A. H . J. Greenidge,
Inemptus. Not bought. Certain sales contained a I. in R . law, 1894; Schulz, Fschr Zitelmann, 1913, 11;
clause to the effect that under specific circumstances E . Levy, St RiccoOono 2 (1936) 77; L. Pornmeray, Etudes
the sale should be considered not valid and the object sur l'infamie, 1937; U . Brasiello, Repressione pcnale, 1937,
of the sale not bought (res ineazpta) .-See LEX COM- 152.
MISSORIA, P A C T U M DISPLICENTIAE. Infamis. (Adj.) See INFAMIA. Syn. infamatus.-
Inesse. T o be contained in. It is used of clauses C. 10.59.
(conditions) inserted in an agreement by the will of Infans. Qui fari non potest (= one who cannot speak),
the parties, or of essential elements of legal institu- a child who cannot express his ideas reasonably.
tions or transactions, which are either fixed by law "Children have no intellect" (Gaius 3.109). From
or self-evident. Inesse oficio iudicis = to be part of the t i a of Justinian, or perhaps a little earlier,
the office of a judge. infantia (= childhood) comprehends children under
Infamare. T o defame, injure the good reputation of seven completed years. An infans is completely in-
a person. The praetorian edict forbade the doing or capable under the law. After the completion of seven
saying anything (orally or by writing, see LIBELLI years an infans becomes IMPUBES.-D. 37.3.
FAMOSI) infamandi causa ( = for the purpose. of Cuq, D S 3; Sciascia, N D I 6 ; Tumedei, AG 89 (1923) ;
defamation). The person injured could sue the of- Solazzi, BIDR 49-50 (1947) 354.
fender by actio iniuriarum.-See INIURIA. Infantia. The age of an INFANS.-See IMPUBERES.
Daube, ACIVer 3 (1952) 413. Infantiae (infanti) proximus. See IMPUBES.
Jnfamia. Evil reputation, the quality of being in- Infanticidium. The term does not occur in juristic
famous (infafitis). Infamia was not only connected texts. A legal prohibition of infanticide is ascribed
with a diminution of the estimation of a person among to the legendary founder of Rome, Romulus. The
his fellow citizens but produced also certain legal Twelve Tables permitted the killing of a new-born
disabilities which differed according to the grounds child that turned out a monster. Generally infanti-
for the infamy. I n Justinian's law various groups of cide was punished as murder, both under the Republic
persons were added to those whose legal ability had (Lex Cornelia de sicariis, L.ex Pow~peia de parri-
been restricted already in earlier (primarily prae- cidiis) and under imperial legislation, particularly
torian) law. The oldest measure to brand a pefson that of Christian emperors. Syn. necare infantew,
as dishonest was the nota censoria which was a moral partum.-See EXPONERE F I L I U M .
punishment by the censors for misconduct in political Cuq, D S 3.
or private life. See IGNOMINIA. The praetorian edict Infectum damnum. See D A M N U M INFECTUM.
deprived certain persons for moral reasons of the Inferre. See ILLATA,INTRODUCTA, ILLATIO MORTUI.
right of appearance in court as advocates or repre- Inferre. (With reference to account books.) T o make
sentatives of a party to the trial, or of being repre- an entry.-See RATIONES, CODEX ACCEPTI.
VOL. 43; PT. 2 , 19531 ENCYCLOPEDIC D I C T I (3NARY OF ROMAN LAW 501
Inferre. ( I n procedural language.) T o proceed with (libertus ingratus), could be assigned to the latter
an action (actionem, litem) in a civil matter; to bring as a slave. Non-fulfillment of his duties towards the
in an accusation (accusationem, crimen) against a patron, refusal of maintenance in the case of poverty,
person in a criminal matter. participation in a plot against the nzanumissor, treat-
Infirmare. T o annul, to rescind, to revoke a uni- ing him with contempt (contumelia, conviciuwz, casti-
lateral act ( a testament, legacy, donation). Infirtnare gatio fustibus) and the like, were considered ingrati-
actionem =: to oppose an exceptio to the plaintiff's tude bf a freedman. Accusatio liberti inarati
" = the
claim. complaint of a former master about an ungrateful
De Sarlo, AG 136 (1949) 102. freedman.-C. 8.49.-See OBSEQUIUM.
Infirmitas aetatis (or sexus). The weakness of an De Francisci, M i l Cornil 1 (1926) 304; C. Cosentini,
individual because of his age (or sex). It is given Sf sui liberti 1 (1948) 96, 206; 2 (1950) 31.
as a reason for guardianship or curatorship over a Ingredi (ingressus). (With reference to an office.)
person under a certain age or over women.-See T o enter on official duties ( a magistracy).
CURA IMPUBERIS, TUTELA MULIERUM. Ingredi in alienum fundum. T o trespass upon an-
Solazzi, AG 104 (1930). other's land. The owner or possessor could oppose
Infitiae. Ad infitias ire = to deny the plaintiff's claim. himself against such violation particularly when the
Syn. infitiari. trespassor committed it for hunting or catching birds.
Infitiari (infitiatio). T o deny the plaintiff's claim. Possessory interdicts were available against the in-
In certain actions (actio legis Aquiliae, actio iudicati, vader if he attempted to remain on the spot and keep
claim for a legacy left in the form of a LEGATUM PER it for good.-See INGREDI POSSESSIONEM.
DAMNATIONEM), a defendant who deliberately denied Ingredi possessionem. T o enter into another's im-
the claim although he knew that the claimant was movable in order to take lawful possession thereof,
right was judged liable to double the amount involved ; e.g., after buying it or with the iuthorization by a
see ACTIONES I N DUPLUM. Such an action is charac- magistrate (missio in possessionem). Ipgredi pos-
terized as an actio quae infitiando crescit in duplum sessionem may take place also unlawfully when the
(duplatur). invader uses force (vi) or enters stealthily (furtive).
Thomas, N R H D 27 (1903) i79 ; Betti, ATor 50 (1915) ; The pertinent possessory interdicts (see INTERDIC-
J. Paoli, Lis infitiando crescit in duplum, 1933; Kaser, Das TUM QUOD VI AUT CLAM)serve for protection against
altrom. Ius, 1949, 121.
such ingression.
Infligere. To impose ( a penalty), to cause damage Inhabilis militiae. Unfit for military service. A
(damnum). Similar expressions are imponere, iniun- father who mutilated his son to make him inhabilis
gere. when a levy for war was ordered, was punished with
Ingenuitas. The status of a free-born person. See deportation.
INGENUUS.I n a trial as to whether a person was
Inhabitare. See syn. HABITARE.
free-born, there had to participate an adsertor in-
genuitatis whose role was analogous to that of the Inhibere. T o check, to stop, e.g., another's act, a suit
adsertor libertatis in a trial in which it was examined or transaction by a lawful countermove or with the
whether or not a person was free.-See ADSERTIO, help of a judicial authority. When used of a legal
VINDICATIO I N LIBERTATEM.
enactment inhibere = to forbid.
H. Kruger, St Riccobono 2 (1936) 227. Inhibitio. See INHIBERE.
Ingenuus. Free-born. Ant, servus (= a slave) and Inhonestus. Dishonest. Ant. honestus. The term is
libertinus (= a freedman, i.e., born as a slave and used of illicit or dishonest professions (prostitution,
freed afterwards) .-See INGENUITAS,NATALIUM lenocinium) or of things forbidden by law or good
RESTITUTIO.-Inst. 1.4; D. 40.14; C. 7.14. customs.
Kubler, RE 9 ; Cuq, DS 3 ; Sciascia, NDI 6. Inhumanus, inhumanitas. See ant. HUMANUS, HU-
Ingenuus manumissus. A free-born person who er- MANITAS.
roneously served as .a slave (liber homo bona fide Inicere condicionem. T o add a condition to a trans-
serviens) and was manumitted by his "master" could action or to a testamentary disposition.
initiate a trial for thf recognition that he was born Inicere manum (iniectio manus). See M A N U S INIEC-
a free man. The restriction that he might do it only TIO. LEGIS ACT10 PER MANUS INIECTIONEM.
within five years after the manumission, was abolished Inisuitas. See INIURIA IUDICIS.
by Justinian.-C. 7.14.-See INGENUITAS. Iniquus. Ant. of AEQUUS.Ittiquus is frequently used
H. Kriiger, St Riccobono 2 (1936) 234. of unjust judgment or arbitration.
Ingratus. Ungrateful, ingrate. An emancipated son Inire. (With regard to an office.) T o enter on one's
or daughter could in the later Empire be brought official duties. Syn. ingredi.
back under paternal power in case of ingratitude Inire consilium. (With reference to wrongdoings.)
towards his father (e.g., a verbal offense, convicium). T o take a decision, to form a design.-See CON-
A freedman, ungrateful towards his former master SILIUM.
502 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Initium. A beginning. Initiunz is used of the starting De Visscher, T R 11 (1932) 39; Donatuti, S t Ratti, 1934,
sentence of a written document (e.g., a testament, a 369; De Dominicis, A n Ferrara, 1937; G. Pugliese, St
sull'iniuria, 1941 ; Santi di Paola, AnCat 1 (1947) 268;
contract. a letter) or of a statute. It refers also to Lavaggi, S D H I 13-14 (1948) 141; Kaser, Das altrom.
the beginning of certain legal relations (partnership) Ius, 1949, 37, 207; Yvonne Bongert, in Varia, 1952, 131;
or situations (usucapio) normally lasting for some 'Sanfilippo, I1 risarcimento del danno per l'uccisione di un
time. Ab initio = from (at) the very beginning. A uomo libero, AnCat 5 (1951) 120; Dupont, A D O - R I D A
1 (1952) 423.
legal rule stated: "A legacy (an appointment of an
heir) which' is invalid (nul) at the beginning cannot Iniuri3. (Abl.) JVrongfully, not lawfully. Syn. non
become valid by a later event (ex post facto)," D. iure.
30.41.2; 50.17.210.-See EX POST FACTO,T RACTUS Iniuria atrox. An atrocious, aggravated outrage. I t
TEMPORIS. occurred, e.g., when the victim was flogged or
Iniungere. T o impose upon a person a burden (guard- wounded, when the wrong was done in a public place
ianship) or a public charge (munus) ; to inflict a (theatre, forum), when the offended person was a
damage or a penalty. magistrate, or when a senator was insulted by a per-
Iniuria. A wrongful act, unlawfulness. Generally son of a lower social class. The atrocity (atrocitas)
speaking, iniuria is "all that has been done non iure, of the iniuria was thus distinguished according to the
i.e., against the law (contra ius)," Inst. 4.4 pr. O n fact itself (ex facto), the place (ex loco), and the
damages done iniuria (unlawfully) to another's prop- person (ex persona) .-See PERCUTERE.
erty, damnum iniuria datum, see DAMNUM,LEX Iniuria cadaveri facta. See CADAVER.
AQUILIA. Specifically iniuria embraces particular Iniuria iudicis. An unjust judgment, condemnatory or
crimes, both bodily injuries (iniuria re facta) as well absolutory, handed down by a judge or a magistrate
as offenses against the good reputation of a person, in the exercise of his judicial functions, "when the
as defined in the Twelve Tables. in the ~raetorian praetor or a judge non iure (unlawfully) decides
edict, in the Lex Cornelia de iniuriis, and later in against a person" (Inst. 4.4 pr.). Other expressions
imperial constitutions. It was in particular the prae- used in such cases are iniustitia, iniquitas ("when one
torian law which efficiently defended the honor of a pronounced a n unequitable or unjust judgment" =
Roman citizen against defamation by according a spe- inique vel iniuste sententiam dixerit) . Iniuria (in-
cial action. actio iniuriaruun. Iniuria was a ~ r i v a t e iquitas sententiae) can be corrected (abolitio) on
crime (delictum), prosecuted only at the request of appeal.
the offended person. "There is no iniuria done to J. Dauvillier, Iniuria iudicis duns la prockdure formulaire,
Rec. de l'Acad. de lkgislation de Toulouse, 13 (1937).
those who wished it (to be done)," D. 39.3.9.1.
Iniussu. Without the order (IUSSUM)of the person
Penalties varied in the course of time from pecuniary
reparation (fixed fines in the Twelve Tables)-the whose order is required or presumed. Iniussu populi
amount of which was set by the judge, who had great = without the order of the people. The term appears
discretion in estimating the damage done to the repu- in connection with the prohibition against carrying
tation and the social rank and respectability of the out a death sentence without the approving order of
individual injured-to more severe penalties, such as the people.
flogging, scourging, exile, according to the gravity of Iniustitia. See INIURIA IUDICIS.
the injury and the social status of the culprit. I n Iniustum-iustum sacramentum. It is generally as-
the actio iniuriarum the la in tiff made his own as- sumed that the judgment in the LEGIS ACTIO SACRA-
sessment of the extent of the damages in a sum of MENTO stated whose (of the parties to the trial)
money and the judge sentenced the defendant to what sacramentuw was just and whose unjust by which
seemed to him bonum et aequum, but not to a larger the decision on the claim itself was expressed im-
sum than demanded by the plaintiff. The actio plicitly. The distinction is based on Ciceronian texts
iniuriarum was granted a father for iniuria done to (pro Caec. 33.97 ; de domo 28.78).
v. Mayr, Mkl Girard 2 (1912) 177; Wenger, ZSS 59
a son under his paternal power, and the master of a (1939) 342 (Bibl.) ; v. Lubtow, ZSS 68 (1951) 322.
slave for an injury done to the slave.-Inst. 4.4; D.
Iniustus. Unjust, unlawful.-See CONDICTIO E X I N -
47.10; C. 9.35.-See C A R M E N MALUM, LIBELLUS FA-
IUSTA CAUSA. For iniusta sententia, see I N I U R I A
MOSUS, INFAMARE, OS FRACTUM, M E M B R U M RUPTUM,
IUDICIS.-Iniusta appellatio (iniuste uppellare) = an
CONVICIUM, CONTUMELIA, OCCENTARE, PUDICITIA AD-
appeal not founded on legal grounds and rejected
TEMPTATA, LEX CORNELIA DE INIURIIS, M A N U S I N -
(pronuntiata) as unjust.-See TESTAMENTUM I N I U S -
FERRE, PERCUTERE, PUGNUS, THEATRUM.
TUM.
Steinwenter, R E 9 ; Cuq, DS 3; De Villa, N D I 6 ; H . F .
Hitzig, Iniuria, 1899; R. Maschke, Personlichkeitsrechte Inl-. See ILL-.
des rom. Iniuriensystems, 1903; P. Huvelin, Mkl Appleton, Innocens. Innocent. A remarkable saying of the
1903 ; Thiel, Iniuria und Beleidigung, 1905 ; Audibert, Mkl emperor Trajan in one of his rescripts states: "It is
Girard 1 (1912) 35; Berger, K r V j 16 (1914) 77; L. Vos,
I. en de actio iniuriarum, Amsterdam, 1913; P. F. Girard, better to leave unpunished a crime of a guilty person
Mhl de dr. rom. 2 (1923) 385; Lenel, Z S S 47 (1927) 381. than to condemn an innocent man" (D. 48.19.5 pr.) .
VOL.43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 503
The innocence of an accused person established after Insania (insanus). A general term for mental dis-
his condemnation could be &ound for an appeal to ease.-See FURIOSUS, DEMENS, MENTE CAPTUS.
the emperor and lead to the annulment of the con- Insciens, inscientia. Ant. of SCIENS,SCIENTIA.
demnatory judgment. When the innocence of the Inscribere. T o give a title (inscviptio) to a book; to
accused has been established during the trial, he must write down (into a written document) ; to register in
be discharged even though he h a i admitted respon- a list of persons or things (e.g., an inventory).
sibility.-See IMPUNITUS,SUSPICIO. Inscribere operi publico. T o engrave on a public
Innocentius. A jurist of the time of Diocletian who building (or construction) the name of the emperor
allegedly had the ius resjondendi "granted by the or the person at whose expense the building was
emperors." The notice goes back to a source of the erected.
late fourth century and is not fully reliable. Inscriptio (inscribere). I n criminal trials, to enter
Seeck and Steinwenter, RE 9 ; Massei, Scr Ferrini (Univ. in official records the accusation made against a per-
Pavia, 1946) 440. son; see ACCUSATIO.-D. 48.2; C. 9.2.-See SUB-
Inofficiosus. One who disregards his natural duties SCRIPTIO, LIBELLUS INSCRIPTIONIS.
to his next relatives or, in the case of a freedman, to Pfaff, RE 9, 1561.
his patron. A testament, a donation, or a dowry by Inserere. T o insert (a clause, a condition, a provi-
which the rights of succession of the nearest relatives sion). The term is used with reference to statutes,
are violated is inoficiosus.-See QUERELA INOFFI- last wills, agreements, etc.
CIOSI TESTAMENTI, QUERELA INOFFICIOSAE W N A - Insidiae. A n ambush, cheating, fraud.
TIONIS, DOTIS.-Inst. 2.18; D. 5.2; C. 3.28-30. Insidiari. T o lie in wait to attack another by sur-
Inopia. Indigence, poverty, lack of necessary re- prise; to bring into danger.
sources for living. It is ground for exemption from Guarino, S D H I 5 (1939) 457.
public charges and guardianship. A fine imposed on Insignia. Distinctive outward signs of high officials
a person who is unable to pay it may be suspended when they appeared in public. It was an old Roman
or commuted into corporal punishment. custon~to grant high officials the right to use certain
Inops (inopes). See LOCUPLETES. insignia which varied according to the rank of the
Inp-. See IMP-. office. The Republic preserved luost of the regal
Inquietare. T o trouble, to vex a private individual insignia for its high magistrates. The insignia were
or a magistrate with suits. also differentiated according to the occasioil ; the most
Inquilinus. A tenant living in a rented dwelling. spectacular were on the occasion of a triumph (see
Syn. habitator. In the later Empire inquilinus = co- TRIUMPHUS) when a victoriot~scoinnlander of the
lonus. There are two possibilities of living in an- army entered the city of Rome after the end of a
other's house: either on a lease (locatio conductio war. The use of improper insiynin for the purpose
rei) or on a personal servitude to use another's house, of assuming the character of a higher official was
See HABITATIO.-See INTERDICTUM DE MIGRANDO. severely punished as crittzcn fnlsi (see FALsuhr) .--See
Humbert, DS 3 ; Saumagne, By,-antion, 17 (1937). LICTORES, SELLA CURULIS, FASCES, GLADIUS. TOGA
Inquisitio. (From inquirere.) Investigation, inquiry PRAETEXTA.
in criminal trials, conducted in the fort11 of cognitio De Ruggiero, DE 4 ; Alfdldi, Iitsi,qrliciz irrld Trcirlrt dcr
proceedings. The inquisitio is made by subordinate rortt. Kniscr, Alitt. Dcrctsrlr. Arrlrncol. I~zstitrcts,Rurrr. ADt.
50 (1935).
official organs under the direction of a jurisdictional
officer who is the prosecutor of the matter from the Insimulare (insimulatio). T o accuse (in iniperial
beginning to the end. Inqltisitio is ol)posed to the constitutions of the third and later centuries).
A C C U S A T I ~ in the earlier criminal 1)rocedure (see
Insinuare. To inform, to give'notice.
QUAESTIONES). I n the incliiisitio procedure an ac- Insinuare (insinuatio) actis. See ACTA.
M. Kroell, Le r81c dc l'hcrif dons 10 firaicvr d~ cor~lrot,
cuser was atl~~~issible, Ilut his rights were rather lim- 1906. 129.
ited in comparison with his position in the earlier Insinuatio testamenti. ( I n Justininn's constitutions.)
procedure. Inilliisitio in civil matters occurs pri- Syn. with APERTURA TESTAMEXTI.
marily in the procetlure concerning the appointment Inspector. An insl)ector, examiner (in private enter-
of tutors ant1 curators. It was the inquiry I)y the prises).
magistrate to estal)lish whether or not the individual Schulz, Hoftung fiir dns Verschuldpn dar ..lngrstclltcrr.
to be apl'ointetl hat1 the iiecessary personal ant1 finan- GrZ 38 (1911) 10.
cial allilities (idonr~rs). 111 certain instances such Inspector. In atl~ninistrative law, an official in the
inqztisifio was ol~ligatory, for instance, when the later Empire chargctl with investigations in census
guardian was tlesignatetl by a wolnan. matters.--C. 11.SS.
M. I.auria, Arrusotio-irrclrrisitio, ANirp 56 (1934) 304. Seeck, R E 5. 1184 ; 9. 1562.
Inquisitio localis. A local inslwction in the case of a Inspectio tabularum (inspicere tabulas, sc. testa-
controversy lletwcen neighl)ors. menti). To inspect a testament. A n y person who
Inr-. See IRR-. has an interest in knowing thc content of a testament
504 A D O L F BERGER [TRANS. AMER. PHIL. SOC.
could obtain permission from the praetor to look into Instituere actionem (litem, querelam, accusatio-
it and to examine the seals.--D. 29.3.-See INTERDIC- nem). T o prosecute in court in a civil or criminal
T U M DE TABULIS EXHIBENDIS, APERTURA TESTAMENTI. matter.
Inspicere ventrem. T o examine a woman as to Instituere heredem (institutio heredis). See HERE-
whether she is pregnant or not. The measure was DIS INSTITUTIO.
applied when there was a controversy between a man Institutiones. Elementary law textbooks written pri-
and his divorced wife about her pregnancy, in par- marily for students. Institufiones were written by
ticular when the woman claimed to be pregnant, or Gaius (see INSTITUTIONES GAI), Florentinus, Calli-
denied it, contrary to the assertions of the husband. stratus, Paul, Ulpian and hlarcian. Some of these
A similar situation occurred, when after the death works may have originated in the lectures of their
of her husband, a widow declared that she was preg- authors. One part of Justinian's codification is also
nant and there was a reasonable suspicion that the entitled Jnstitutiones; see INSTITUTIONES IUSTINIANI.
pregnancy was simulated. A similar institution is 'Kotz-D'obrz, R E 9 ; Kubler, RE IA, 396; De Villa, N D I
custodire partum = to watch the confinement in order 6 ; Kreller, Z S S 66 (1948) 572.
to prevent the substitution of another child. The Institutiones Gai. An introductory textbook of legal
procedures, which were performed with the assistance institutions in four books (called "cowtwtentarii" by
of midwives, were precisely defined in the praetorian the author) written by Gaius about A.D. 161. The
Edict.-D. 25.4. system adopted by Gaius is tripartite: law of persons,
Instantia. Perseverance, in particular of a claimant law of things (including. succession), and law of ac-
or defendant acting in court in claiming or defending tions (civil procedure). The work, discovered in
his rights. 1816 in Verona (hence called Gaius Veronensis) in
Instar. A resemblance, likeness. The term indicates a manuscript of the (late) fifth century, is preserved
that a legal act is to be dealt with like a certain nearly in full. Some of the lacunae have been filled
definite legal institution (e.g., a donation, a sale, a by a few parchment sheets, found in 19539 seemingly
legacy) with which it has some common features of the late fourth century (now in Florence, hence
(instar esse, instar habere).-dd instar is used by named Gaius Florentinus). The new texts confirmed
classical jurists to extend existing legal rules to new the reliability of the Veronensis to a large extent.
factual situations.-Syn. ad exewtplum. Modern Romanistic literature has applied to the In-
Instaurare. (With reference to trials.) T~ resume stitutes of Gaius the same critical (and hypercritical)
a civil or criminal prosecution, to re-open a contra- method they used with regard to ~ustinian's Digest,
versy. ~h~ term appears frequently in imperial a method which is often far from convinding, although
constitutions. As a matter of principle, controversies it cannot be denied that the text preserved evokes
settled by a judgment cannot be resumed.-~ee BIs =, sometimes serious doubts, hardly amazing in a manu-
script written about three centuries later than the
EADEM RE, RES IUDICATA.
Institor. ~h~ manager of a conlmercial or industrial original. For many problen1s of the classical law, and
l)usiness, appointed by its owner. F~~ obligations primarily for the classical civil procedure, Gaius' In-
contracted by an institor and connected with the stitutes remain the foremost authority the importance
l)usiness, the principal could be sued directly by an of which has not heen lessened I)Y the recent "puri-
action called actio institoria. Later, but still in classi- fication" of the text.-See GA1us.
Editions. in all collectiot~sof ante-Justinian sources (see
cal times the requirement that the business have a General Bibl, Ch. X I I ) , the best is by Seckel-Kubler in
commercial character was dropped so that any one Huschke's Iurisprudentia antciustiniana, 7th ed. 1935;
could he sued for obligations contracted by the man- Rizoukides, Gaius, 3 vol., Salonika, 1937-1939; Arangio-
ager of his affairs (procurator) under an action Ruiz and Guarino, Breviarium ilrris romani, 1943 ; Alvaro
named actio quasi institoria (term not classical), d'Ors Perez-Peix, Gaius Institutioncs, Tcstn latino con
una traduccion, Madrid, 1943; F . de Zulucta, The Institufcc
modeled on actio institoria. These actions f)elong to of Gaius, 1 (transl.) 1946; 2, 1953; M. David, Gai I .
the category of actiones adiecticiae qzdalitatis (see Leitlen, 1948; J. Reinach, Gaius Instttutcs (with French
EXERCITOR NAVIS)because the manager was also translation, Collection Bud&, 1950). Italian translation.
liahle. Institor could be a slave of the principal or P. Novelli, Gaio, Elementi di dir. rovz , 1914.-Kubler, RE
6, 494; Rergcr, OCD 376; Kniep, Gai Institutinnrr~r~ colrr-
of another person.--D. 14.3; C. 4.25.-See PRO- irzcntnr~i.4 vol. incomplete (1911-1914) : Beselcr. T R 10
SCRI RERE. (1930) 161 ; Solazzi, ~ l o s s cn Gcrio, 1 ( S t li'iccobono 1.
Klingmuller, I<E 9 ; Steinwenter, RE 9 (.r.v. in.rtitoria a ) ; 1936) ; 2 (CctttC'odl'avia, 1933) ; 3 (S1lIII 6, 1940) ; 4
Humbert-Lhcrivain, D S 3 : E. Costa, Actio cxrrcitorin e ( S c r Ferriiti, Univ. Pavia, 1947, 141) ; Albertario, S t 5
institoria, 1891; L. F. Dentraygues, Et. hist, sur I'actio (1937) 441 ; Scliulz, IIistory of I<. Leqal Scicncc, 1946,
institoria, 1910; Rahel, Ein Kuhmcsblatt Pnpininns, die a. 159 ; Rcllingcr, AmJPRilol 70 (1949) 394 ; Wieacker,
quasi institoria, Fschr Zitclmann, 1913; P. Fal~riciuq,D er RID.4 3 (1949) 577; idetiz, Fschr Scitlrls 2 (1951) 101 ;
yczwaltfrcie institor itii /<lass. riitn. R., 1926; P. Huvelin, Maschi, A n T r 17 (1947) 77; idem, ACIVer 1 (1951)
E'tutles d'hist. du droit coirttncrcial, 1929, 160; Alhcrtario, 9 ; 11. J . Wolff, S t Arangio-Ruis 4 (1952) 171.-For
Studi 4 (1940, ex 1912) 189; E. Carrelli, S t Scorsa, 1940; Bihl. on the Gaius Florctttinus (= Pabiri SocictO Italiatta
Solazzi, R D N a v 7 (1941 ) 185 ; Kreller, Fschr lf'rngcr, 2 11. no. 1182, 1933) sce Raviera, F I R 1' (1940) 195;
(1945) 73. Van Oven, T R 13 (1934) 248.-For tlie few fragments
i.01.. 4 3 , VT. 2 , 19531 I:NCYCI,OPEDIC DICTIONARY O F ROMAN LAW 505
of the fourth book, preserved on a papyrus from Oxy- value as evidence, particularly when written with the
rhyr~chos (P. Oxy. xvii no. 2103), see Baviera, ;Did. p. assistance of a pu1,lic or private notary (instrumenturn
201 ; Wenger, Scr Ferrini 4 (Univ. Sacro Cuore, Milan,
1949) 268.
publice confectuvz) or when signed by three trust-
worthy witnesses (instrumentunz quasi publice con-
Institutiones Iustiniani. A part of Justinian's codi-
f e c t ~ ~ ) . - - S e eEDITIO INSTRUMENTORUM, FIDES I N -
fication, compiled in 533 after the final draft of the
STRUMENTORUM.-D. 22.4; C. 4.21 ; Nov. 73.-IJRO-
Digest had been finished, and published on November DERE INSTRUMENTA, T R A D I T I O C I I A R T A l i , R E T R A C T A R E
21, 533. I t entered into force sinlultaneously with
CAUSAM, SUBSCRIPTIO, STIPULATIO.
the Digest, published a few weeks later. The sources Steinwenter, R E 9 ; De Sarlo, N U I 6 ; Arangio-Ruiz, DE
esploited for the composition of the Institutes are 4, 61; Riccobono, Z S S 35 (1914), 43 (1922) ; H. LCvy-
Gaius' Institutiones and his Res cottidianae, the Insti- Bruhl, Timoignage instrumentaire, 1910; A Steinwenter,
tutes of Florentinus, Marcianus, Ulpian, and Paul, Beitriige sum Cffentlirhen Urkundenwesen der Riimer,
ant1 several ininerial constitutions in some of which 1915; Siegel, Archiv fur civilistische Praxis, 113 (1915) ;
L. De Sarlo, I1 doczi~ne+ztooggetto di rapporfi gizrridici.
the reforms introduced by Justinian are emphatically 1935 ; idem, RendLomb 1937-1938 ; idem, Riv. di dir. proc.
stressed. The work was intended as an elementary cia. 14 (1937) ; J. P. Levy, Annalcs Far. Droit. Air-en-
manual-hence its title Institutiones sive Elenzenta- Provence 43 (1950).
for law stutlents in their first year. It was edited by Instrumentum causae (litis). A document connnected
the law professors, Theophilus and Dorotheus, under with a judicial controversy.-See INSTRUERE CAUSAM.
the supervision of Tribonian. Instrumentum domus. See INSTRUMENTUM FUNDI.
Editions: In P. Kriiger-Mommsen, Corpus Iuris Cir~ilis1 Instrumentum donationis. See TNSTRUMENTUM.
(15th ster. ed., 1928) ; Girard, Textes de droit romaitt, 6th Riccohono, Z S S 34 ( 1913) 159.
ed. by Senn, 1937; J. B. Moyle, Intpcratoris Iustiniani In- Instrumenturn dotale. A written instrument concern-
stitutiottes, 5th ed. 1913 ; V. Arangio-Ruiz and A. Guarino,
Breviarium iuris ronzani, 1943. Vocabulary : G. Amhro- ing a dowry. It contained details of the dotal agree-
sino, Vocabulariunt Institrctionrlm Iustittiani, 1942.-Sacchi, ment (pactttm dotale) concerning the objects consti-
N D I 6 ; Kotz-Dobrz, R E 9, 1566, 1583; Ch. Appleton, Re- tuting the dowry and its restitution at the end of the
vue gknirale de droit 15 (1891) 12, 97; A. Zocco-Rosa, marriage by death or divorce. The instrumenturn
Iitsti+riani Institt~tionum Palingenesia, Annuario dell'lst.
di storia dcl dir. rom. Catania, 9, 1-2, 10 (1W1-1911) ; dotale came into use in the postclassical period.-See
Ebrard, Z S S 38 (1917) 327; C. Ferrini, Sulle fonti delle DOS, TABULAE NUPTIALES.
Ist., Opere 1 (1929, e x 1901) 307; De Villa, StSas 17 Kiibler, R E 4 A, 1951; Riccobono, Z S S 34 (1913). 175;
(1939) 354; I<. LV. Lee, E~cmetttsof R. law, rev. ed. 1946. Castello, S D H I 4 (1938) 208.
Instructum domus (fundi). The necessary furnish- Instrumentum fundi (domus). The equipment neces-
ings, equipment of a house (or a landed property) ; sary for a reasonable management of rural (instru~nen-
almost syn. with I N S T R U M E N T U M DOMUS (FUNDI), tum fundi) or industrial property, or for the use of
although-some jurists assumed that instructz~wtis the a house (instrumenturn dornus) : furniture, tools,
broader term. Both instrtcctum and instrumenturn utensils, and all kinds of appurtenances needed for
are discussed casuistically by the jurists in connec- some specific use of the immovable. The interpreta-
tion with legacies of a land or house cum instrumento tion of the term and its extension in the case of a
or a fundus instructus (domus instructs).-See LE- lease or a legacy of a house or rural property cum
GATUM II~STRUMENTI.-D. 33.7. instrumento is widely discussed in juristic works.
Instruere. T o instruct, to teach; to impart knowledge It is pointed out that instruwtentuw fundi is not a
(information) of a legal norm or legally important part of the land; it may be therefore the object of
facts. special agreements..--D. 33.7.-See INSTRUCTUM, IN-
Instruere causam (litem). T o support a judicial- STRUERE DOMUM, FUNDUS, FUNDUS UTI OPTIMUS
civil or criminal--case with legal arguments and MAXIMUS, LEGATUM I N S T R U M E N T I , VENATIO.
factual evidence. Arangio-Ruiz, DE 4, 59; Riccobono, St Brugi, 1910, 173;
Steinwenter, Fundus cum insfruntento, SDWien, 221, 1
Instruere domum (fundurn). T o provide a house (a (1943) 24, 71.
land) with the necessary equipment (furnishings, Instrumentum nuptiale. See TABULAE NUPTIALES.
utensils, implements) .-See INSTRUCTUM, INSTRU-
Instrumenturn publice confectum. See I N S T R U M E N -
TUM.
Instrumentum. In a broader sense, this embraces all Insula. A tenement house of a few stories, occupied
means of evidence (including the oral testimony of by several families, chiefly of the indigent classes.
witnesses), but the regular meaning is that of a De Rupgiero, DE 4, 62; Lugli, Rend. Pontif. Accnd. di
document; another word is often added to indicate .4rcheologia, 18 (1941-2) 191.
the subiect matter of the document, as instrumenturn Insula in flumine nata. An island which came into
donationis (of a donation), emptionis (sale), divi- being in a river. If located in the middle of the river,
sionis (division of property), instrz~~nentzt~n nuptiale it belonged as a common property to the land-owners
(concerning a marriage) or dotale (dowry). In on both banks; if it arose nearer one bank it became
later law documents acquired constantly increasing property of the land-owners along that bank. Such
506 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
an island ill a public stream (flumen publicurn) be- (for the recovery of a thing) the intentio says: "If
Cogliolo, St per I'ottavo centenario delZ'Univ. d i Bologna, the slave X ) belongs to . . . (the plaintiff) under
Insula in mari nata. An island which arose in the which the condemnatory judgment depends, because,
sea was (it to and as if the condition does not materialize (si now payet =
such it became the property of the first occupant. if it does not appear), the judge must absolve the
INSULA. Insularius is also the guard or adminis- formula consists only of an intentio, as in formulae
Integer. Unchanged, untouched, whole. integra but only a question is posed (for instance, whether
= an unchanged legal or factual situation. Integer, one is a freedman or what was the amount of the
when used of the reputation of a person = blameless, dowry), which is preliminary to a subsequent legal
TIS, MORS,LOCARE E X INTEGRO, RETRACTATIO CAUSAE. of the plaintiff which must be proved by
Intellectus. The power of understanding, of judging Audibert, Fornzules salts i., MbI Girard 1 (1912) 35;
(intellegere) . Insane persons have no intellectus Berger, K r V j 16 (1914) 77; Juncker, S t Riccobono 2
(intellectu carent) and are therefore not able to con- (1936) 325; Philonenko, RIDA 3 (1949) 231.
clude a legal transaction. With regard to dumb or Inter absentes (praesentes). See ABSENTES.
deaf persons, the decisive element is whether they Inter vivos, Refers to legal acts which have to pro-
have intellectus or not.-See FURIOSUS,MUTUS, duce legal effects while the interested parties are still
SURDUS. alive. Ant. mortis causa.-See DONATIO MORTIS
Intellegere. T o understand. With regard to persons CAUSA.
having only physical (not mental) defects (deafness, Intercalare. See LEX ACILIA DE INTERCALANDO, MEN-
blindness, muteness) and those acting with the as- SIS INTERCALARIS.
sistance of their guardians, the requirement that they Intercedere. See INTERCESSIO.
understand what is being done is imperative.-See Intercessio. (From intercedere.) T o assume on one-
INTELLECTUS. self another's debt or a liability for another. For the
Intellegi. Used primarily in inlpersonal form (intelle- interdiction of intercession of women, see SENATUS-
gitur = it is considered) or in locutions such as CONSULTUM VELLEIANUM. According to its terms, an
to instances in which a legal or customary rule pre- obligation for another, either primary or accessory
scribed a definite estimation of certain doings or in one (suretyship, pledge, novation). in other words
which a jurist recommends a certain interpretation any obligation assumed by an agreement with an-
of specific words or facts. other's creditor and concerning a third person's liabil-
Intendere. Used of the plaintiff's claim in trial. In- ity.-See SENATUSCONSULTUM VELLEIANUM (Bibl.).
tendere is also a general term to indicate the activity Intercessio. In public law, a veto by a higher magis-
of a person seeking justice in court, either in a civil trate against an official act (decision) of his col-
(intendere actionew~,litem, syn. agere) or in a crimi- league (e.g., by one consul against an act of the
nal matter (intendere accusationem, syn. accusare). other) or of a magistrate of a lower rank (e.g., by
-See INTENTIO. a consul against the act of a praetor). The perform-
Intentare. Appears frequently in imperial constitu- ance of the act (the execution of the decision) was
tions with reference to criminal matters as syn. with thus inhibited. Of greatest importance was the veto
INTENDERE ( = to accuse). power of the plebeian tribunes over the official acts
Intentio. An intention, design. In criminal trials not only of other tribunes but of any magistrate.
intentio = the accusation by an accuser (accusator) By vetoing the proposal of a bill made by any magis-
or an incrimination by an informer. trate before a popular assembly or in the senate they
Intentio. In formulary procedure, "that part of the could paralyze legislative activity, as well as any mo-
formula in which the plaintiff comprehends his claim" tion presented before the assemblies. The introduc-
(Gaius 4.41). "If it appears that X (name of the tion of the tribunician intercessio was aimed at the
defendant) ought to pay to Y (name of the plaintiff) protection of the interests of the plebs against abuses
the sum of . . ." is the wording of an intentio certa by magistrates, but in practice the institution turned
since the amount of the payment due is indicated pre- out to be an inlportant political weapon used by the
cisely therein. An intentio incerta says instead: tribunes for personal purposes. No intercessio was
"Whatever (qzlidqzlid) it appears that the defendant permitted against an act of a dictator.-See T R I B U N I
ought to pay to the plaintiff." I n an actio in rem PLEBIS,A UCTORITAS SENATUS.
VOL. 43, PT. 2, 19.531 ENCYC1,OI'EDIC DICTI( >NARY O F ROMAN LAW 507
Leonhard, R E 9, 1607 ; Siber, R E 21, 182 ; Cuq, D S 3 ; Interdictio aquae e t ignis. See INTERDICERE AQUA
Lengle, R E 6 A, 2472; Anon., N D I 12, 2 (s.v. tribunate) ; ET IGNI.
Lbcrivain, D S 5, 421 ; O'Brien, R E Suppl. 6 , 6 8 4 ; 717 ;
F. Leifer, Die Einhcit dcs Gewaltgedankens, 1914, 182; Interdictio bonorum. See INTERDICERE BONIS.
209. Interdictio locorum. An order issued by the compe-
Intercessio militaris. I n imperial constitutions of the tent authority, originally a popular assembly, exclud-
later Empire, the intervention of a public official to ing a person from a certain territory (Italy or a
enforce the payment of taxes or other sums due to province) or from the whole state with the exception
the state. Syn. exsecutio. of a certain place (lata fuga) .-See EXILIUM.
Cuq, D S 3, 556. Interdictum. An order issued by a praetor or other
Intercessor. One who assumes an obligation on behalf authorized official (proconsul in the provinces) at the
of another.-See INTERCEDERE, INTERCESSIO. request of a claimant and addressed to another person
Intercessores. See EXSECUTORES. upon whom a certain attitude is imposed : either to do
Intercidere. T o perish, to be extinguished, to lose something or to abstain from doing something. The
validity. The term is used of actions, obligations, interdictal procedure is more administrative than
legacies, and the like, which became void for one judicial in nature and differs from a normal trial
reason or another. in that there is no division of the proceedings into
Interdicere (interdictio). Indicates any kind of pro- two stages inasmuch as the issuance of an interdictum
hibition, ban, or exclusion decreed by the competent depends upon the magistrate as an act of his imperium,
magisterial or imperial authority. not of jurisdiction. The interdictum is a provisory
Interdicere. I n interdictal procedure (see INTERDIC- remedy with the purpose of protecting existing situa-
TUM)this is the procedural activity of a claimant who tions by a quick decision of the official. It fulfills its
requests the issuance of an interdict. I t is analogous task-a speedy ending of a controversy-only when
to -POSTULARE ACTIONEM in an ordinary process. the adversary complies with the order. If he does
Syn. agere interdicto. When applied to a magistrate, not, the subsequent procedure which assumes the
incerdicere means his issuing an interdict. form of a normal trial, though not without certain
Interdicere aqua et igni (interdictio aquae et ignis). particularities resulting from the fact that an interdict
The exclusion of a culprit from the common life with had been issued, is rather complicated and perhaps
his fellow countrymen ( = interdiction of fire and even slower than an ordinary process. The inter-
water). Interdicere was pronounced by the senate dicta1 procedure is very summary; no long hearings
or a high magistrate when the accused left the com- of witnesses, no examination of evidence. IVhat the
munity before the condemnatory sentence was passed plaintiff, i.e., the person who asks for the interdictum
and went into voluntary exile. Practically interdi- (postulare interdictum) affirms is taken for granted,
cere meant banishment connected with loss of citizen- if the authority considers that his claim deserves pro-
ship and property. In case of return without permis- tection either in his interest or in public interest. If
sion the interdictus was deprived of legal protection the assertions of the claimant are not true, the de-
and outlawed. H e might be killed by anybody who fendant will disregard the order and defend his right
met him within the boundaries of the countrv from in the subsequent ordinary trial. Various interests
which he was banished. Interdicere disappea;ed un- are defended by interdictal protection. They are of
der the early Principate when the criminal procedure both private and public character. In Justinian's law
was reorganized.-D. 48.22.-See DEPORTATIO, EXI-
the differences between actions and interdicts are
LIUM, PATRIA. effaced. What was formerly proposed in the prae-
Hartmann R E 2 ; U. Brasiello, Repressione penale, 1937,
passim; Gioffredi, S D H I 12 (1946) 101; idem, Archivio torian Edict as a form of interdict-an order or a
penale 3 (1947) 426; DeVilla, StSos 23 (1950) 1. prohibition-is in Justinian's law a legal rule. Acting
Interdicere bonis (interdictio bonorum). The exclu- against that rule may give rise to a judicial trial, just
sion of a person from the administration of his prop- as in classical times a trial followed the transgression
erty. According to the Twelve Tables it was applied of an interdictum in a specific case, although the later
to spendthrifts who were committed to the care of procedure is quite different. Many interdicts lost
curators.-See PRODIGUS. their applicability entirely, however, and references to
Kaser, St Arangio-Ruic 2 (1952) 152. them were deleted or made unrecognizable by Jus-
Interdicere commercio. See COMMERCIUM. tinian's compilers. The reconstruction of the formula
Interdicere honore (honoribus). T o deprive a person of interdicts is therdfore sometimes problematic.
condemned in a criminal trial of the capacity to obtain The law of interdicts is presented in the following
an official or honorific position, or of the right to items. The various types or groups of interdicts are
exercise a certain profession (e.g., advocacy) for- specified below under INTERDICTA, particular inter-
ever (in perpetuum) or temporarily. dicts under INTERDICTUM. Some interdicts took their
Interdictio. See INTERDICERE. name from the initial words of the pertinent form.-
508 ADOLF BERGER [TRANS. AMER. PHIL. S O C .
Inst. 4.15 ; D. 43.1 ; C. 8.1.-See AGERE PER SPON- the access to the river, etc., can be prevented by one
SIONEM, PROPONERE ACTIONEAI. of these interdicts which on the other hand were
Berger, R E 9 (Bibl. until 1915) ; Humbert-Ecrivain, DS extended as interdicta utilia on similar wrongdoings
3 ; Riccobono, N D I 7 ; Arangio-Ruiz, DE 4 ; Berger, ZSS
36 1915, 176; idem, Vol. delle orrordizzc Simoncelli, 1915. on the seashore or harbor. When the construction
171; Gintowt, S t Albertoni 2 (1937); Fabi, A n c a m 15 has already been executed, the interdict orders its
(1941) 99; A. Biscardi, La protezione interdittale nel pro- destruction and restoration of the former state.-
cesso rom., 1938; Albertario, S t 4 (1946) 115; L. Beretta, D. 43.12; 13; 14; 15.
RISG 2 (1948) 391; Daube, R I D A 6 (1951) 22.-For Berger, R E 9, 1634; Branca, A n T r 12 (1941) 40, 177.
ititerdicts not mentioned below, see Berger, R E cit.; Lenel,
Edictllnz perpctl~t~nz,3rd ed. 1927, 446 ff. Interdicta d e fonte. These serve for the protection
Interdicta adipiscendae possessionis. These belong of the SERVITVS AQUAE HAUSTUS.-D. 43.22.
Berger, R E 9, 1637; Lenel, Ediettim prrpctztuvc3 (1927)
to the group of possessory interdicts serving for the 480; Solazzi, Tutela dclle sewitti prediali, 1949, 77.
protection of possession (POSSESSIO).The purpose of Interdicta d e humanis rebus. See INTERDICTA DE
the possessory interdicta is either the acquisition of DIVINIS REBUS.
possession by a person who had not had it at all
Interdicta de itineribus publicis. These protect the
before, interdzctu adipiscendae possessionis (such as,
use of public roads against any act which may hinder
for instance, INTERDICTUM QUORUM BONORUM, INTER-
traffic. A specific interdictum is granted to anybody
DICTUM QL-OD LEGATORUM, INTERDICTUM SALVIANUM),
who is impeded in repairing a damaged public road.
retention of possession by the actual possessor, inter-
-D. 43.7; 11.
dicta rctrnendue possessionis ( INTERDICTUM UTI POSSI- Berger, P E 9, 1641; Lenel, Edictum perpctuzrtn3 (1927)
DETIS,I NTERDICTUM UTRUBI)o r resumption of pos- 458.
session (interdicta reciperandac possessionis) by the Interdicta de locis publicis. These serve for the pro-
claimant who had been violently ejected from his tection of public places against damage or harmful
land or house (INTERDICTUM UNDE VI).
constructions which may impede their public use.
Berger, RE 9, 1615; Siher, S r r Ferrini 4 (Univ. Sacro
Cuore, Milan, 1949) 98; Levy, ibid. 3 (1948) 109; idem,
Obstacles already constructed are interdictally or-
W e s t Roman vulgar 1 ~ x 11951,
, 243. dered to be removed.--D. 43.8; 9.
Interdicta annalia (annua, temporaria). Those in- Berger, R E 9, 1643; 1654; Lenel, Edic.tlr11z perprtz~i~ma
(1927) 459; Branca, A n T r 12 (1941) 169.
t e r d i c t ~which can be requested only within one year
after the allegedly wrongful act was done against Interdicta d e reficiendo. There are several interdicts
which the plaintiff remonstrates. Ant. interdicta which refer to particular situations between neighbors
perpetzm which are not limited a s to time.-See in connection with predial servitudes (SERVITUTES
EXCEPT10 ANNALIS.
PRAEDIORUM). Using the neighbor's land for the
Berger, RE 9, 1620; 1689 ; 1690. exei-cise of a servitude (ITER,ACTUS,VIA) sometimes
Interdicta d e cloacis. Several interdicts are granted requires the possibility of entering it in order to re-
for the maintenance of public and private sewers in pair the way if the owner is not bound to do so. T O
secure this right to a person entitled thereto an
good condition in the interest of public health. Any
attempt to damage them or to prevent their repair interdictum is proposed "for repairing" ( d e refici-
could be frustrated by an appropriate interdicturn. e n d o ) , such as interdict~4tnd e fonte reficiendo, de
Berger, RE 9, 1633; Solazzi, Tutela delle servitzi prediali, itinere actuque privato reficiendo, de sepulcro refici-
1949. 79. endo, d e cloaca privata reficienda, d e rivis, d e ripa
Interdicta de divinis rebus. Ant. interdicta d e hu- wtunienda. or- similar interdicta with regard to
manis rebus. This distinction of interdicta is based public roads, see INTERDICTA DE ITINERIRUS PURLICIS.
on that of RES DIVINI IURIS and RES H U M A N I IURIS. All these interdicta are prohibitory since the order
Among the interdicta de h u ~ ~ a n rebus is there are of the praetor, v i ~ zfieri veto, is addressed to anyone
some which serve for the protection of things which who prevents the claimant from doing the necessary
belong to nobody (RESNULLIUS)as the INTERDICTUM work.-See RIPA,INTERDICTA PROHIBITORIA.
DE I I O M I N E LIBERO EXHIBENDO, of things which are Berger, RE 9, 1633 no. 4a ; 1637 no. 6b ; 1640; 1647 no. 24.
in the private ownership of individuals ( r e s singu- Interdicta de universitate. Interdicta the object of
z ) of things used by the people (INTERDICTA which is a complex of things, as, for instance, an
l o r ~ c f ~ or
DE F L U M I N I B U S PUBLICIS, DE VIIS,D E LOCIS PUBLICIS). inheritance (INTERDICTUM QUAM HEREDITATEM, IN-
Some of them refer to single things, others to a TERDICTUM QUORUM BONORUM).
Interdicta de fluminibus publicis. They are ac- Interdicta exhibitoria. See INTERDICTA RESTITUTORIA.
corded for the protection of navigation on public Interdicta in praesens vel praeteritum relata. The
rivers (FLUMINAPUBLICA) . Any construction on distinction is based on the circumstance whether the
the bank (see RIPA) or in the river proper which actual situation at the moment when the interdictzcm
impedes the traffic of boats, the use of the harbors, is demanded or the situation which existed during a
certain period before the postl(1atio of the interdictti+tt, session to the plaintiff who has been deprived of it.
is decisive for the issuance of the interdict. T h e They are tlistinguished from interdicta exhihitoria,
latter is the case in the I N T E R D r c T u M UTRUBI. which order the defendant to produce ("exhibcas")
Bcrger, IZE 9, 1617. a person ( a free man, a slave, a child; see INTERDIC-
Interdicta mixta. Inferdicta of a mixed character TUhZ DE I I O M I N E LIBERO EXIIIBENDO, INTERDICTUM DE
I)eing both prohibitoria and exhihitoria. or a thing ( a testament, see
LIBERIS E X I I I B E N D I S )
Herjier, I'ol. orrorarrzc Si~rtorrcclli,1915, 171 ; idem, ZSS 36 held by him,
I N T E R D I C T U M DE TABULIS E X H I B E N D I S )
(1915) 198
but (lo not ilnpose the duty to deliver the person or
Interdicta ne vis fiat ei qui in possessionem missus the thing to the claimant. Both types of interdicta
est. Three interdicts are proposed to protect a per- are also called dccreta.-See INTERDICTA PROHIBI-
son who by a praetorian MISSIO I N POSSESSIONEM is
TORIA.
granted the right to take possession of another's
Brrgcr. K13 9, 1613.
propert!. They are prohibitory since the order for-
bids the use of force to prevent the claimant's entry. Interdicta retinendae possessionis. See INTERDICTA
ADIPISCENDAE POSSESSIONIS.
-D. 43.4.
Ilcrgcr. KL' 9, 1656 Interdicta simplicia. Ant. interdicfa duplicia. T h e
Interdicta noxalia. See NOXA. distinction is based upon the role of the parties in
Interdicta perpetua. See INTERDICTA A N N A L I A . the interdictal proceedings. Sintplicia are those in
Interdicta popularia. See INTERDICTA PRIVATA. which one party is the plaintiff and the other the
Interdicta privata. -4nt. interdicta popularia. The defendant to whom the prohibitory order is addressed
distitlction is based on the same principle as that of or by whom things have to be restored or produced.
actions in octioncs priztztae and actiones popzrlares. I n the interdicta- duplicia both parties are at once
Interdicta popttlaria are those interdicta which inay defendant and plaintiff, as in the possessory interdicts
be requested by "anyone from the people." Although UTI POSSIDETIS, UTRUBI. Here the praetor speaks "in
most of the popular interdicta are introduced in the an equal language" (pari sermone, Gaius 4.160) to
interest ol' public utility (ufilitas publica), this ele- 110th parties. I n the terminology of Justinian's com-
ihent is not decisive for the distinction in question. pilers, interdicta duplicia are those interdicta which
I n the interdictal form, the private character of the exceptionally aim at acquiring and regaining posses-
interdicta is recognizable by the reference to the sion; see INTERDICTUM Q U A M HEREDITATEM, I V T E a -
claimant through the pronouns ille or is, lacking in DICTUhI Q U E M F U N D U M .
the interdicta popu1aria.-See ACTIONES POPULARES. Berger, RE 9, 1616; idcnz, V o l . d i onoranze Simor~celli,
Berger, RE 9, 1621. 1915, 186; idrilz, Z S S 36 (1916) 222; Arangio-Ruiz, DE
Interdicta prohibitoria. Those interdicta in which the 4 (1926) 69.
magistrate's order contains a prohibition (aliquid Interdicta temporaria. See INTERDICTA A N N A L I A .
fieri prohibet). They impose upon the defendant the Interdicta unde vi. See INTERDICTUM DE VI.
duty not to do the thing exactly indicated in tbe Interdictatutilia. These are create6 by the extension
interdictal formula through "ne . . . facias," "ne . . . of a normal interdictal formula beyond its limits.
imnzitfas," o r not to hinder the plaintiff in the exercise Thus a normal interdict hecomes available to a larger -
of his right. T h e prohibition is expressed by the group of persons and ap;~licableto situations different
words v i m fieri e~eto (= I forbid the use of force), from those protected by the original interdictzcm.
where zlis is used in a broader sense and not pre- The interdicta utilia are a creation analogous to
cisely as force o r violence. T h e interdicta prohibitoria ACTIONES UTILES, but the term interdictznn directum
constitute together with the interdicta restitutoria and is not to be found in the sources.
exlzibitorio the principal division of the interdicta. Berger, RE 9, 1623.
Berger, RE 9, 1613.
Interdicta quae causam proprietatis habent. A n t . Interdictum de aqua. Issued for the protection of
interdicta qztae possessionis causaln habent. T h e dis- servitudes consisting in the use of water from an-
tinction appears only in one confused text and has other's property.-See SERVITUS AQUAE DUCTUS, CAS-
given occasion to controversial interpretation. I t TELLUM.-D. 43.20.
may be of postclassical or Justinian origin and is Berger, RE 9, 1630; Lenel, Edictum fierpet14um3 (1927)
479; Solazzi, Tutela delle sevvitzi prediali, 1949, 66.
based on the distinction -whether the interdict takes
into consideration the ownership of a thing o r only Interdictum de arboribus caedendis. Accorded to
possession. the owner of an immovable against a neighbor who
Berger, RE 9, 1618; idem, Z.CS 36 (1915) 183. does not remove tree branches hanging over the
Interdicta reciperandae (recuperandae) possessionis. plaintiff's property. T h e latter may cut them and
See INTERDICTA ADIPISCENDAE POSSESSIONIS. keep the wood if the tree owner does not obey the
Interdicta restitutoria. Order the restoration (resti- interdjctal order.-D. 43.27.
tltas) of things to their former condition or of pos- Berger, RE 9, 1632.
510 ADOLF BERGER [ T R ~ N SA SOC.
. MER. PHIL.
Interdictum d e glande legenda. Granted to protect became his (slaves born in his house). The tenant
the right of the owner of a tree to collect the fruits who wants to move (migrare) to another place ap-
that fall on the neighbor's property.-D. 43.28. plies for this interdictum in order to release his
Berger, R E 9, 1638; Lenel, I<dictnm perpctfr~tnz' (1927) property,
489. Berger, R E 9, 1646 ; Lenel, Edicttrfrb pcrpettr~rrrr' (1927)
Interdictum de homine libero exhibendo. A man 490; Kreller, ZSS 64 (1944) 313.
who unlawfully holds (retinere) a free man as a Interdictum de mortuo inferendo. When somebody
slave is ordered by this popular interdictum to pro- has the right to bury a deceased person in a certain
duce the man in court.-See LEX FABIA.--D. 43.29; place that belongs either to him or to soilleone else
C. 8.8. (ius ~nortuatminferendi), he is protected by this pro-
Berger, R E 9, 1638, L e d , Edictfrlrl Pcrbrffrfrl~l' ( 1927) hibitory interdict against any disturbance in so doing.
487. -D. 11.8.
the protection of the servitudes ITER and ACTUS. The Interdictum de precario. seePRECARIUM.
order is directed to the owner of the land on which Interdictum de rips rnunienda. seeRIPAS
the servitude is imposed, to the effect not to hinder Interdictum de rivis. The free access of the user of
the plaintiff in the exercise of his right.-D. 43.19. water-works, aqueducts, sluices, channels, cisterns,
Berger, R E 9, 1639; Lenel, Edictum Pe"pefuuma (1927) etc., for purposes of repair or cleaning is protected
478; Biondi, Actio negativa, AnMes 3 (1929) 55; Solazzi,
Tutela delle servitli prediali (1949) 57; Daube, RID,^ 6 by this interdictum against anyone who attempts to
(1951) 40. prevent him from so doing. The interdictz~m is
Interdictum de liberis dueendis. See the following complementary to the interdictunz de aqua.--D. 43.21.
item. Berger, R E 9, 1647; Lenel, Edictum perpettruii~~(1927)
480; Solazzi, Tutela delle servitd puedialt, 1939, 73.
Interdictum de liberis exhibendis. When a person
alieni izlvis (filizis or jilia farnilias) is held by another, Interdictum de sepulcro aedificando. This is con-
even by a member of the same family, against the will nected with the INTERDICTUM DE MORTUO INFERENDO
of his pater falllilias,the latter may request this inasmuch as he who has the right to a
interdictum which orders that the person withheld in another's Property must be permitted to erect a
be produced (exltibevi). If through the exhibition tombstone On the grave.-D. ll.'.
Berger, R E 9, 1648.
the identity of the person involved was established,
the magistrate issued a second interdict, de liberis Interdictum de superficiebus. See SUPERFICIES.-D.
ducendis, ordering his delivery to the pater farnilias, 43.18.
Berger, R E 9, 1647; Lenel, Edictnln perpet~ririrt2 (1927)
who then takes him home (ducere). Therefore the 476; H. Vogt, Das Erbbaurecht, 1950, 86.
first interdictu~nis called praefiaratoriurn with refer- Interdictum de tabulis exhibendis. Issued in the
ence the In later interest of a to whom it is important to know
interdicts were introduced: d e uxore exhibenda and the contents of a last will after the testator,s death.
d e uxOre ducenda in favor a man whose wife was The interdictal order compels the holder of the testa-
withheld by another, even her father.-D. 43.30; ment to produce it.-D, 43.5.
C. 8.8.
Berger, R E 9, 1648.
Berger, R E 9, 1641.
in favor of a patron whose freedman, being held by Berger, R E 9, 1642 (no. 12 c).
Interdict i m quorum bonorum. An interdictum avail- during the year preceding the issuance of the intw-
able to I successor under praetorian law (BONORUM dictum, possessed the object for a longer period.
POSSESSCR) against anyone who holds things belong- Justinian extended the interdictum uti possidetis to
ing to th- estate and asserts to hold them as an heir movables; thus the interdictum utrubi lost its actu-
or simpl.7 as a possessor without any title (sine ality in Justinian's law.-D. 43.31.
causa). J £ he pretends to hold them as a legatee he Berger, R E 9, 1684; Lenel, Edictuln pcrpetuzcm3 (1927)
is exposed to the interdictuwc quod legatorun%. The 488; Fraenkel, Z S S 54 (1934) 312; M. Kaser, Eigentu,rt
und Besitz, 1943, passim; Daube, R I D A 6 (1951) 32.
interdictztwt belongs to the category of interdictum
Interdictus. An individual punished by banishment,
adipiscendae possessionis.-D. 43.2; C. 8.2.-See
BOKORUM POSSESSIO.
confinement, or any kind of INTERDICTIO LOCORUM
Berger, R E 9, 1666; Humbert and LCcr~vain,D S 4 ( s o . -See DEPORTATIO, RELEGATIO.-D. 48.22.
qztorum b.) ; De Martino, Ahrap 58 (1937) 348 Interdum. Sometimes. The word is often inserted by
Interdictum Salvianum. An interdictunt available to Justinian's compilers to limit a general classical rule
a landlord against his lessee for the latter's failure to and to leave a way open for exceptions. Interpolation
pay the rent due. The interdictum is adipiscendae of the adverbs pleruwtque ( = very often) and non-
possessionis, since the claimant obtains possession of nunquam (= sometimes) has a similar function.
Guarneri-Citati, Itldice' (1927) 48, 67.
the tenant's things which were brought in (invecta,
illafa) and pledged for rent. I t is prohibitory be- Interesse. See the following items.
cause the tenant is forbidden to impede the landlord Interest. There is a difference: ~ ~ t u l t u tinterest ~z =
in taking away the things.-D. 43.3; C. 8.9. there is a great difference; nihil interest = it makes
Berger, R E 9, 1667; Sacchi, N D I 7: Lenel, Edictum per- (there is) no difference.
pctnunz3 (1927) 490; Kreller, Z S S 64 (1944) 320; v. Interest alicuius. I t is of interest (importance) to a
Bolla, R E 18', 2479; Daube, R I D A 6 (1951) 46. person. If the phrase is cuius interest refers to a
Interdictum sectorium. See SECTIO BONORUM. public authority, a magistrate, judge, or imperial
Interdictum secundarium. A second interdictum is- functionary is meant. Kei publicae (or publice)
sued in a possessory controversy when one of the interest = it concerns the welfare, the interests of
parties involved did not completely fulfill the order the state (or the Roman people). The term interest
or refused to cooperate in the proceedings subsequent is of particular importance in the cases involving pay-
to the interdicful~zfirst issued in the matter. The ment of damages. There were no general rilles for
details of this complicated procedure are not known the evaluation of a person's interest when compensa-
since the sole pertinent text in Gaius' Institutes is not tion was taken into consideration. I t was the judge's
fully preserved. task to estimate it in each instance according to the
Berger, R E 9, 1670; 1697; Gintowt, AnPal 15 (1934) 228. rules governing the extension of the liability of the
Interdictum uti possidetis. Accorded in order to defendant, in particular as to whether real damages
maintain an existing possessory situation a t the re- only or also lost profit should be identified.-See
quest of the actual possessor who has been disturbed I D QUOD INTEREST, Q U A N T I EA RES EST, VERITAS.
in the possession of an immovable by the adversary Steinwenter, R E 9 ; Fliniaux, R H D 7 (1928) 326; Beretta,
and is threatened with a suit over ownership. The S D H I 3 (1937) 419; Guarino, Giurisprudenza comparata
di dir. civile, 6 (1941) 197.
order of the magistrate forbids any change in the
Interim. Meantime. The adverb is used with refer-
actual situation. The interdictum is directed to both
ence to the time intervening between two legally im-
the parties; it is an interdictum duplex (see INTER-
portant events, for instance, between the conclusion
DICTA SIMPLICIA)and inhibits the use of force
of a transaction or the bequeathing of a legacy and
(vim fieri veto) to dispossess the actual possessor.
the fulfillment of a condition upon which the effec-
The plaintiff is protected only when his holding of
tiveness of the agreement or legacy depends; or the
the controversial immovable is not a defective pos-
time between a judgment and the appeal brought
session (possessio vitiosa), to wit, acquired and kept
against it.
by force (vi), secretly (clam) or through a gratuitous
Interitus. (From interire.) Destruction, extinction.
revocable loan (precario). I n such cases the de-
The term is used of the extinction of certain rights -
fendant avails himself of the so-called exceptio vitiosne
posscssionis.-D. 43.17; C. 8.6. ( a servitude, a usufruct) or of actions.
Hrtgcr, R E 9, 1682; Anon., N D I 12 ( s . v . uti P ) ; Lenel, Interlinere. T o efface. to obliterate a written docu-
Eti~tfnrrtprrpctzlton3 (1927) 469; Passerini, Atlt 1937, 26; ment ( a testament, an account book) wholly or in
C~apcssoni.S t Alhcrtot~i2 1937 15; Kaser, Eiqcrlturtz rrnd part. If a person did so illegally, he could be sued
Bcsrts, 1943, f~osst?iz. by any one who had an interest in the existence of
Interdictum utrubi. An interdictu?~~ based on the the document, primarily through the actio legis
same principles as the foregoing, lmt limited to mov- Aquiliae.
al~les. I t is an intcrdictltw~duplex and takes into Interlocutio. An order, a statement or preliminary
account the e.vceptio vitiosae possessionis. Victorious decision issued by a magistrate, judge or chairman
in retaining or regaining possession is the party who, of a trilmnal during a trial. Interlocutio is also an
VOL.43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 513
interlocutory statement or decision by the emperor Interpretatio. The explanation of the significance of a
in the course of a trial before the imperial court.- legal norm or term. Originally the pontiffs who alone
D. 42.1 ; C. 7.45.-See DEFINITIVA SENTENTIA, MULTA mastered the knowledge of the law -and legal customs,
PRAEIUDICIALIS. accomplished the task on interpretation, later it was
Arangio-Ruiz, RE 4, 72. assumed by the jurists as the men "learned in the
Interminatio. In later imperial constitutions, threat- law." The interpretation of the law exercised a great
ening with punishment for a specific infraction. influence on the development of the law from what-
Interna causae. In later imperial constitutions, the ever source it originated. This refers not only to the
essential elements of a judicial affair. interpretatio of the law of the Twelve Tables, which,
Internuntius. (Syn. nuntius.) A messenger used for being only a limited codification, was unable to satisfy
the oral transmission of a legally important decision the growing legal needs, but also to the interpretatio
(a declaration, a consent). Ant. of per internuntiu~n of legal customs. The interpretatio prudentizrm thus
is per epistzrlam ( = by letter). became a primary source of law, since it extended the
Interpellare (interpellatio). T o press a debtor who norms of the decemviral legislation to new legal situ-
had failed to pay on time, for payment. See MORA.- ations and problems and took into consideration cus-
Interpellare is also used when one sues his adversary tomary practices which through the comprehensive
in court (hence interpellatio = an action, a suit) or activity of the jurists acquired a more perceptible ex-
when one forbids another to accomplish a certain act. pression. Hence the jurists were later designated as
With regard to usucaption (usucapio interpellatur) , those who iura condiderunt ( = established the law,
interpellare indicates that the usucapio is interrupted see IURISPRUDENTIA) and
their law as a law which
either through the 1 4 s of possession by the holder of "without writing was composed by the jurists and so
the thing or through a successful action of the person became a ius civile proper consisting exclusively in
who claims the recovery of the thing. the interpretatio of men learned in the law" (D.
Kaser, RE 16, 255; Biscardi, S t S e n 60 (1948) 607 (Bibl. 1.2.2.12). The interpretative activity continued when
on inferpellatio in the case of default) ; Siber, ZSS 29 legislative enactments were passed by the people
(1909) 47. (statutes = leges) and when the praetors began to
Interponere. Used of the conclusion of ap 5ligatory create new legal rules in their edictal pronounce-
transaction (stipulationem, contructum, donaiionem, ments. In the later Empire, the interpretation of
giving security), of taking an oath (interponere law became a special province of the emperor and
iusiurandum) , of writing down a document (inter- ultimately Justinian made the emphatic statement
ponere instrumentum), even of committing fraud (Tanta, 21 in fine) that the emperor as the exclusive
(interponere fraudem). legislator had the exclusive right to interpret the law
Interponere aliquem. T o appoint a person as a rep- (cui soli concessum est leges interpretari; so-called
resentative or mediator ; see INTERPOSITA PERSONA. authentic interpretation). The Roman jurists did
Interponere auctoritatem. See AUCTOR, AUCTORITAS. not elaborate a specific theory of the interpretation
Interponere se. When said of a private individual, of law, some rules of interpretatio are to be found,
to interfere, meddle in a legal controversy between however, scattered through the Digest, such as:
other persons ; when said of-a magistrate = to inter- "Whenever a statute provides something there is a
vene officiallv. to take official measures.
< ,
good opportunity to add further rules which aim at
Interposita persona. An intermediary, sometimes a the same benefit (utilitas = ~itility) through inter-
straw man interposed in order to disguise an unlawful pretation or jurisdiction" (D. 1.3.13). "To know
transaction (syn. supposita persona). the laws (scire leges) means to adhere not to their
Interpositio decreti. In Diocletian's and later con- words but to their force and sense" (D. 1.3.17).
stitutions, the issuance of a decretum by the em- "The term ex legibus (= according to the laws) is
peror or 1high imperial official. to be understood according to both the sense and to
Interpres. An interpreter. References to the use of the words" (D. 50.16.6.1). Several texts stress the
interpreters in judicial proceedings, in ,hearings be- importance of the intention and spirit of a statute.
fore a magistrate or public corporate bodies (the See BENIGNA INTERPRETATIO, HUMANITAS.--T~~ in-
senate, on the occasion of a reception of foreign terpretatio of the laws is to be distingushed from the
envoys) are very scarce. In provincial administra- interpretation of manifestations of will by private
tion th'e service of interpreters is better evidenced. individuals in their legal acts, both unilateral (testa-
Their use in imperial courts, in particular in the later mentary dispositions) and bilateral (agreements).
Empire, is beyond any doubt (interpretes diversarumn Under the regime of strict formalism the ancient
gentium). The jurist Paul defined the custom (con- law gave no opportunity to differentiate between
suetudo) as "the best interpreter of laws" (D. verba (what has been expressed) and voluntas (the
1.3.37). intention) of the party or parties. In the later devel-
De Ruggiero, DE 4, 72; Taubenschlag, T h e interpreters opment, owing to the activity of the jurists, the
in the pnpyri, Charisteria Sinko, Warsaw, 1951, 361. evaluation of voluntas 3s against verba gradually in-
AD0I.F BERGER
creased, starting in the field of testaments and legacies a1 Cod. Teodosiano, Scritti itr nrernoria di Motrticolo, 1913;
and passing fro111 there into other donlains of the G . Ferrari, Ossewasioni sulla trasmissione diplomatica
del Codice Teodosiano e sulla inter)retatio Visigotica, 1915;
private law. Some interpretative directives given by Wieacker, Sj'mb Frib Lencl, 1931, 259; Chiazzese, AnPal
the classical jurists appear in Justinian's legislative 16 (1931) 301; Niccolai, RendLomb 75 (1942) 42; Buck-
work, such as: "If an~biguousutterances occur, the land, LQK 60 (1944) 361.
intention of the person who used them should be Interpretatores (interpretes) legum, iuris. Justinian
taken into consideration" (D. 50.17.96). "Where refers to the classical jurists by such terms as "the
there is ambiguity of words, what (in fact) was ancient interpreters of the law" or "the interpreters
acted, is valid" (D. 34.5.21). "Where there is no of the ancient law."
ambiguity of words, the question of intention should Interregnum. The interval between the death of a
not be admitted" (D. 32.25.1). The final two titles king and the election of his successor. At the be-
of the Digest contain a large number of interpretative ginning of the vacancy a senator elected by the
suggestions concerning single words or locutions senate was appointed interrex only for a period of
which are of importance for the understanding of five days. If this period expired without the election
juristic texts (D. 50.16) and a long series of general of a new king, the interrex designated his successor
legal rules (regulae iuris, D. 50.17) of an interpre- for the consecutive five days.-See INTERREX, PRO-
tative nature.-See IUS RESPONDENDI, RESPONSA, DERE INTERREGEM.
VERBA, VOLUNTAS. Liebenarn, RE 9; Ehrenberg, RE 13, 1498; Foligno, NDI
Kleinfeller, R E 9 ; Berger, ibid. 1167; Anon., NDI 7 ; R. 7; Giannelli, DE 4 (s.v. interrex) ; De Ruggiero, DE 2,
Pound, Haward L R 21 (1908) 383; Donatuti, Dal regime 825; Heuss, Z S S 64 (1944) 79.
dei verba a1 regime della voluntas, BIDR 34 (1925) 185; Interrex. See INTERREGNUM. Under the Republic an
J. Strow?, Strmmum ius summa iniurio. Ein Kapitel aus interrex selected from among the patrician senators
der Gesch. der i. iuris, 1926 (2nd ed. Rom. Rechtm'ss.
u~td Rhetorik, Potsdam, 1949) ; J. Himmelschein, Symb. was appointed by the senate when both consuls died
Frib. Lenel, 1931; Biondi, BIDR 43 (1935) 139; C. A. or abdicated, for five days only. His principal func-
Maschi. St sull'i. dei legati, verba-volu~ttas,1938; Schiller, tion was to order the election of new consuls. The
Virginia L R 27 (1941) 733; F. Schulz, History of R. following interreges were consecutively designated by
Legal Science (1946) 24, 75, 132, 293; Riccobono, in their predecessors for a five-day term as long as the
several articles, see VOLUNTAS (Bibl.) ; Berger, In dubiis
benigniora, ACIVer 2 (offpr. 1951) 187 (= Sem 9 [I9511 election was not accomplished.
36). Giannelli, DE 4, 73.
Interpretatio duplex. The interpretation of a text in Interrogatio. In a stipulatio, the question addressed
Justinian's codification (primarily in the Digest) by the future creditor to the debtor.-See STIPULATIO.
from two points of view: on the one hand, what the Interrogatio. In criminal trials, the question ad-
text mearrt in the time and the language of the jurist dressed by the court to the accused as to whether
who wrote it; on the other hand, the significance it he pleads guilty or not. If he admits having com-
acquired in Justinian's legislation. Many texts in the mitted the crime or if he is silent, which is considered
final title of the Digest (50.17: On various rules of an admission, the proceedings are quickly brought
the ancient law) offer instances for such an inter- to an end. Interrogatio also means the questioning
pretation, since certain rules formulated by the classi- of a witness.
cal jurisprudence on a specific occasion and for a Berger, R E 9, 1729.
specific legal situation were drawn out of their Interrogatio. In the senate, a request for opinion
original context and settled as a general rule ap- addressed to the senators by the presiding magistrate.
plicable at all times (semper) or at least "very often" The opinion given by a senator = sententia. Syn.
(plerarnzque). The expression interpretatio duplex sententias rogare.
is of modern coinage. Interrogatio in iure. Questioning the defendant in a
Riccobono, BIDR 49-50 (1948) 6. civil trial. This was a specific institution for the
Interpretationes ad Codicem Theodosianum. Sum- purpose of establishing certain important points re-
maries or paraphrases of the constitutions collected garding the defendant's liability. In some actiones
in the codex ~heodosianus. They are preserved in in personam the plaintiff was permitted to question
the LEX ROMANA VISIGOTHORUM and frequently con- the defendant during the first stage of the trial before
tain additional remarks and references to other the magistrate (see I N IURE)about certain circum-
sources. The Lex Romana Visigothorum contiins stances that were decisive for the further progress of
also interpretations of some texts of Paulus' Senten- the trial. Thus, in a suit against the heir of his debtor,
tiae. The interpretationes may originate from various a creditor could ask the defendant whether he was
private commentaries written to the sources men- in fact the heir (an heres sit) and of what share. I n
noxal actions (see NOXA)the plaintiff asked the de-
tioned.-See CODEX THEODOSIANUS.
Kleinfeller, R E 9, 1712; Berger, R E 12, 2400; Stouff,
fendant whether the son or slave for whose wrong-
M t l Fitting 2 (1908) 165; M. Conrat, Der westgothische doings he was being sued was in his power legally
Paulur, Amsterdam, 1907; Checchini, St sull'interpretatio and factually (in potestate). These were the two
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DlCTIOlNARY O F ROMAN LAW 515
most practical uses of interrogatio. An affirmative by himself. Intestabilis was one who had been con-
answer by the defendant was binding even if it did victed of libel (carttten famosum) or who had refused
not correspond to the truth. The fact of the affirma- to give testimony about an act in which he partici-
tive answer was then inserted into the pertinent pro- pated as a witness.-See IMPROBUS TESTIS.
cedural formula: actions with formulae so modified Manigk, R E 9.
were termed actiones interrogatoriae. The defend- Intestato. (Adv.) Refers to a succession in which
ant's negative answer put an end to the trial. If the there is no valid testament. Syn. ab intestato.
plaintiff was able to prove its untruth, the trial was Intestatus. A person who died without leaving a
continued and entailed considerable disadvantages for valid testament or whose testament, originally valid,
the defendant in case of condemnation. The interro- became ineffective because the appointed heirs re-
gatio was not a general institution relieving the plain- fused to accept the inheritance or by other reasons.
tiff of the burden of proof in any trial. There were Ant. testatus.-See TESTAMENTUM RUPTUM, TESTA-
also instances in which the magistrate might question MENTUM IRRITUM, NEMO PRO PARTE TESTATUS, etc.
the defendant in iure about some details which were Manigk, R E 9 ; Michon, R H D 2 (1921) 128; Daube,
prejudicial to further proceedings. The actiones in- R H D 15 (1936) 341; La Pira, La successione ereditaria
terrogatoriae disappeared when the civil process intestata, 1930.
ceased to be bipartite.-D. 11.1. Intexere. To interweave. The owner of a piece of
Berger, R E 9 ; Anon., N D I 6 ; Lautner, Fschr. Hanausek, cloth acquires ownership of whatever has been woven
Abhandhcngen ztcr antiken Rechtsgesch., 1925 ; Sanfilippo, into it.
Circolo giuridico 10 ( 1939). Arnb, Textura, M i l Girard 1 (1912) 27.
Interrumpere (interruptio). To interrupt. With Intimare. In the language of the imperial chancery,
reference to possession, interrumpere is mentioned to perform a legal act before an official or to register
as a negative requisite of usucaption since the inter- it in the official records; to announce official ordi-
ruption makes impossible the usucaption.-C. 7.40. nances publicly; to send official instructions to the
-See USURPATIO. USUCAPIO. INTERPELLARE. appropriate offices.
Interusurium. If the debtor pays the money due on Intra. Within. With regard to a period of time, the
a fixed day before that date, the creditor has the word includes the last day, e.g., intra centum dies
profit (commodum) of having the money at his takes in the hundredth day. Intra with regard to
disposal and of being able to lend it at interest for years includes the last year in full. This kind of
the remainder of the term (interusurium medii tem- reckoning is applied to acts to be accomplished intra
toris). The debtor may deduct the interusurium a certain lapse of time. In later imperial constitu-
from his payment only if the creditor consents, be- tions, intra connected with a number of days or
cause t h e - h t e r is not bound to accept a payment months means exactly the last day of the term. For
with a deduction before it is due. intra miliarium, see MILIARIUM.
De Dominicis, N D I 7, 87.
Introducta. (Syn. importata.) Things brought into
Intervalla dilucida (lucida). Periods during which a rented apartment by the tenant (furniture, slaves,
an insane person regained full mental capacity and, etc.). The analogous expressions in the lease of land
consequently, legal capacity. Syn. FUROR INTER- are invecta, illata (furnishing, tools, instruments of
MISSUS.--See FURIOSUS, DEMENS.
husbandry, cattle, slaves, etc.) .-See INTERDICTUM DE
De Francisci, B I D R 20 (1921) 154; Solazzi, AG 89
(1923) 80; Lenel, B I D R 33 (1923) 227, 45 (1925) 517. MIGRANDO.
Intervenire. A general term to indicate that a legally Introductio actionis, litis (introducere actionem,
important event occurred, e.g., an agreement (stipu- litem). Starting a civil trial. In Justinian's lan-
latio, pacturn), a wrongdoing creating legal liab'ility guage introductio litis is syn. with litis contestatio as
(dolus, fraus, culpa) , a procedural measure (cautio, conceived in the procedure of his time.-See LITIS
accusatio), hnd the like. CONTESTATIO.
Intervenire (interventor, interventio, interventus). Introire domum alicuius vi. To invade another's
In obligatory relations syn. with INTERCEDERE. It is house by violence. It was punished under the LEX
frequently used of sureties. CORNELIA DE INIURIIS.-See DOMUS, INGREDI.
Intervenire. In judicial proceedings to intervene in a Introire fundum. T o enter a landed property in order
trial as a representative of a party, either as a general to take physical possession thereof. It sufficed to set
representative (tutor, curator) or as one appointed foot on any part of it.-See POSSESSIO.
for a specific trial (procurator). Introitus. The sum paid for obtaining a subaltern post
Interversio. An embezzlement. in the civil service.-See MILITIA.
Intestabilis. A person who is unable to be a witness Marchi, A G 76 (1906) 319.
at a solemn act requiring the presence of witnesses Intuitu. With regard to, in consideration of. The
(e.g., mancipatio, testamentam per aes et libram) or term is frequent in later imperial constitutions and
to invite another to witness such an act to be made those of Justinian in connection with huwtanitas or
516 ADOLF B E R G E R [TRANS.
AMER.
PHIL. SOC.
pietas (intuitu humanitatis, pietatis). I n the Digest valid. The payment of another's debt releases him
the word is rather suspect as to its classical origin. from it even against or without his will. Remark-
Guarneri-Citati, Indice' (1927) 49. able rules are the following: "NO one can be forced
Inulta mors. A murder which has remained unavenged to bring a suit or to accuse against his will" (C.
(without prosecution) by the dead man's son. The 3.7.1). "No one is given a benefit, a favor, against
latter was held unworthy (indignus) to benefit from his will" (D. 50.17.69).-See EhfPTIo AB INVITO,
the will of the father. NOLENS, N E M O INVITUS.
Inustus. (From inurere.) Stigmatized, branded by Fadda, St Brugi, 1910, 145.
infamy (in the language of imperial constitutions) IOCUS.
A joke. A stipulation made for the sake of a
-See INFAMIA. joke (per iocum) does not create an obligation.
Inutilis. Legally ineffective. The term is used of acts I P S ~Used
. in Justinian's language in liey of is ( = he).
(testaments, transactions', actions) which are void It is an evident Grecism, and therefore considered a
because of the non-fulfillment of a legal requirement. criterion of interpolation when it appears in classical
Inutiliter = without legal effect.-Inst. 3.19 ; C. 8.38. texts in the Digest.
Hellmann, ZSS 23 (1902) 422. Guarneri-Citati, Indice2 (1927) 49.
Invadere. T o enter with violence another's immovable IpsO iure. BY virtue of the law itself, The locution
in order to take possession of it (invadere bona, $ 0 ~ - is exceptionis (= virtue of an
sessionem) .-See INGREDI, INTROIRE. exception) or to tuitione praetoris (by the aid of a
Invalidus. See VALIDUS. praetorian remedy) .-See ADITIO HEREDITATIS.
Invasio (invasor). The act of committing an invadere Iracundia. Anger, irritation, indignation. "Whatever
(the person whd does it).-See INVADERE. is done or said in the heat of anger is not considered
Invecta (illata). See INTRODUCTA, INTERDICTUM DE
binding, unless it appears through perseverance to
MIGRANDO.
troversies in which one party was a Christian.-C. GPny, 1 (1934) 23; J. Dauvillier, La thtorie de I'iniuria
1.9; 1.lo.-See SENATUSCONSULTA DE IUDAEIS,CIR- iudicis, Rec. Acad. de legisl. Toulouse 13 (1937) ; Weiss,
B I D R 49-50 (1948) 194; Jolowicz, R I D A 2 (= MPI De
CUMCISIO, FISCUS IUDAICUS, UNIVERSITAS IUDAEORUM. Vkscher, 1, 1949) 477; Kaser, Fscltr. Wenger 1 (1945)
T. Reinach, D S 3 ; Jones, O C D (s.v. Jews) ; Hehemann, 122.
R E Suppl. 5 (s.21.ri~~tisemitismus) ; Corradi, DE 4 (s.v.
Iudaea) ; Mommsen, Jttr. Schriften 3 (1907) 416; W . D. Iudex appellationis. A judge (jurisdictional official)
Morrison, Gli Ebrei sotto la domiazione romaita, 1911; vested with the power to decide on appeals from
J. Juster, Les Juifs darts ['Empire roln., 1-2 (1914) ; G. decisions of an inferior court.
Costa, Religione e politica nell'intpero rota., 1923, 151; La Iudex cornpetens. A judge competent in a specific
Piana, L'intmigraziotie a Rome, Ricerche religiose 4 (1928)
193 ; A. Momigliano, Ricerche sull'organizza3ione della matter, i.e., legally authorized to examine a judicial
Giudea, Annali della Scuola Norm. Superiore Pisa, ser. 2, controversy and to pass judgment. The term cot+z-
vol. 3 (1934) 346; Browe, Die Judengesetzgebung Justi- petens is frequent in postclassical and Justinian's
nMw, Analecta Gregoriana 8 (1935) 109; Solazzi, B I D R constitutions; the compilers substituted it frequently
44 (193617) 396; idem, ANap 59 (1938) 164; M . Briickl- where a judicial magistrate was mentioned in the
meir, Beitrage zur Stellung der Jude?&i m rom. Reich, 1939 ;
A. SegrP, Note sullo status civitatis degli Ebrei nell'Egitto, classical work.-C. 7.48.
Bull. Soc. Royale Archiol. d'Alezandrie 28 (1933) 143; Iudex compromissarius. An arbitrator selected by
idem, Jewish Social Studies 6 (1944) 375; V . Colorni, the parties to a controversy by virtue of a compro-
Legge ebraica e leggi locali, 1945; Ferrari Dalle Spade, mise; see COMPROMISSUM.
Fschr. Wenger 2 (1945) 102 ; idem, Giurisdizione speciale
ebraica nell'Impero r. cristiano, Scr Ferrini 1 (Univ. Iudex datus. In classical law, a private person ap-
Cat., Milan, 1947) 239. For further bibl. see R. Marcus, pointed with the cooperation of the magistrate to be
A Selected Bibliography of the Jews itr the Hellen.-Rom. the judge in a specific trial. In postclassical law = a
Period (1920-1945), Proceedings of the Anter. Acad. for judge appointed by a higher official, primarily the
Jewish Research, 16 (1947) pp. 97-141, passim; S. W.
Baron, A Social and Religious History of the Jews, An- provincial governor, to examine a controversy and
cient Times, 1-2, Philadelphia, 1952. to pass judgment.. Syn. iudex pedaneus.
Iudex. Originally a iudex was any magistrate who de- Iudex delegatus. A lower (auxiliary) judge whom a
cided about a controversy by a judgment (qui ius higher jurisdictional official appointed for a specific
dicit). In the bipartite civil procedure the rendering case to be examined and decided upon by him.
of a judgment (iudicare) was separated from ius Iudex esto. The introductory part of the written pro-
dicere, and the iudex was the private judge. In the cedural formula in which an individual person is
classical juristic language iudex was a private indi- authorized to be the judge in a specific litigation
vidual (judge) appointed as a judge in a specific trial. ("Titius iudex esto") .
He was neither a magistrate nor a magistrate's sub- Steinwenter, R E 9, 2468.
ordinate, and he was bound solely by the instructions Iudex extra ordinem datus. A judge appointed in a
given in the formula. The right to serve as a judge cognitio extra ordinem by a jurisdictional official to
was denied deaf (surdi), dumb (muti), and insane examine a case and deliver a judgment.
(furiosi) persons, to impuberes, and women. Sena- Iudex in re propria (sua). A judge in his own affair.
tors remoyed from the senate were excluded from No one may be judge in his own controversy with
judgeship. The circumstance that one was under another (sibi esse iudicem, sibi ius dicere). "It is
paternal power was no bar. A judge sitting in court highly improper to give one the liberty to pass a
(cum de re cognoscat) could not be summoned before judgment in a matter of his own" (C. 3.5.1).-See
the magistrate (in ius vocatus) by a creditor. Syn. IURISDICTIO.
iudicans (a term frequently interpolated in lieu of Iudex ordinarius. Refers to the governor of a prov-
any jurisdictional official who did no longer exist in ince in his capacity as a judge.
Justinian's times). In the later Empire and in Jus- Iudex pedaneus. A judge to-whom as a iudex dele-
tinian's language iudex is any imperial official who gatus a judicial official assigned a case in the cognitio
has any jurisdiction at all, and iudices is a collective procedure. Provincial governors used to delegate
term for all administrative functionaries of the Em- minor cases (negotia humiliora) to a iudex pedaneus
pire.-See C. 1.45 ; 1.48 ; 7.49 ; Inst. 4.17 ; D. 11.2.- if governmental affairs made it impossible for them
See the following items and ALBUM IUDICUM,DE- to act personally.-C. 3.3.
CURIAE IUDICUM, LEX PINARIA, LEX SEMPRONIA IUDI- Wlassak, R E 3, 3102 ( q v . chamaidikastes).
CIARIA, LEX AURELIA, CONTRACTUS IUDICUM, POSTU- Iudex privatus. A private individual selected by the
LATIO IUDICIS, IURARE SIB1 NON LIQUERE, INIURIA parties with the cooperation of the judicial magis-
IUDICIS, SUUS IUDEX, IUDICES. trate to serve as a judge under the regime of the legis
Kiibler, R E 6, 289 ; Steinwenter, R E 4 and Suppl. 5, 350 ; actiones and the formulary procedure. He examined
Humbert and LCcrivain, D S 3 ; Bozza, D E 4 ; Berger, the evidence and rendered the judgment. Hence the
O C D ; Seckel, Handlexikon9 (1914) 291; Wildenauer,
Richterwahl i m riim. Privatprozessrecht, 1919; J. Ma- second stage of a civil trial is-termed apud iudicem
zeaud, La nomination du iudex unus dans la procidure (before the judge). In later imperial constitutions
formulaire, 1933; Collinet, Le r61e des juges, Recueil F. iudex privatus is syn. with iudex compromissarius.
VOL. 43, PT. 2, 19531 ENCYCLOPEDlC DICTI(3NARY OF ROMAN LAW 519
Iudex quaestionis. The chairman of the jury in crimi- Iudicare vetare. T o remove a iatdrx who is or has
nal trials in the quaestiones-procedure (also called become unable to exercise his duties.
iudex quaestionis rerum capitalium), primarily in Iudicatio. See IUDICARE. In the language of later
capital matters. Normally a magistrate of a rank constitutions iudicatio = a judgment (syn. with sen-
lower than the praetor or an ex-magistrate was tentia).
charged with such function. Iudicatum. The condemnatory judgment (sententia)
Iudex qui litem suam facit. A iudex who intention- as well as its contents, i.e., the sum of money which
ally (dolo malo) gave a false judgment made himself the defendant was condemned to pay to the victorious
liable ("he makes the trial his"). An action for plaintiff, iudicatum = the judgment-debt. Under the
damages lay against him. This was the case when classical law the defendant had to pay the judgment-
the judgment exceeded the limits fixed in the written debt within thirty days; otherwise he was sued by
formula. The extension of the judge's responsibility the plaintiff in .a special action for the execution of
to judgments delivered per imprudentiam (= by neg- the iudicatum. actio iudicati. The action was in-
ligence, lack of knowledge) may have been a later itiated in the same way as any other action; it was
innovation.-D. 50.13. terminated in the in-iure stage through a decree of
J. Bartoli, Du juge qui l.s.f., These Paris, 1910; E. Levy, the praetor ordering fulfillment of the judgment-debt.
Privatstrafe und Schadensersatz, 1915, 48; P. De Fran- See ADDICTUS.Onlv when the defendant contested
cisci, Synallagma 2 (1916) 129; Kubler, Z S S 39 (1918)
215; G. A. Palazzo, Obbligazioni quasi e r delicto 1919, the validity of the j;dgment or asserted that he had
31 ; J. Dauvillier, Iniuria iudicis, Rec. Acad. lkgisl. Tou- paid his debt, did the actio izcdicati come before a
louse, 13 (1937) 163. private judge (apud iudicem), and if the allegations
Iudex sacrarum cognit'ionum. See IUDICANS. of the defendant proved untrue, he was condemned
Iudex specialis. A judge assigned to a particular case to pay double. In certain cases the defendant was
by his superior. The term seems to be a postclassical bound to give security that the judgment-debt will
(Justinian's l ) creation. be paid (cautio, satisdatio iudicatum solvi), e.g.,
Iudex suspectus. A judge whose impartiality is when a representative appeared at the trial on his
doubted. H e may be rejected by the parties invoked behalf. If the defendant appointed a COGNITOR, he
in a litigation. The term appears only in later im- had to provide the guaranty himself; if a procurator
perial constitutions. acted for him, however, the procurator gave the se-
Iudex tutelaris (tutelae). A term interpolated for curity iudicatum solvi. Other instances in which
praetor tutelaris. such a security was obligatory were when the de-
Iudex unus. One judge conducting the part of the fendant was a bankrupt (see DECOCTOR), when his
trial called apud iudicem. See I N IURE,IUDEX. Ant. property was seized by his creditors by virtue of a
decemviri, centumviri as collegiate courts, and reczt- missio in possessionenz, when an heir suspected of
peratores, a tribunal of three judges.-See IUDICIUM insolvency (see HERES SUSPECTUS)was sued, or
LEGITIMUM. when a debtor who had been condemned in a previous
J. Mazeaud, La nomination du iudex u. duns la jrocbdure trial and did not pay the judgment-debt was sued by
fo~mulaire,1933; Wenger, ZSS 55 (1935) 424. actio iudicati.-D. 46.7.-See CAUTIO IUDICATUM
Iudicans. See IUDEX. SOLVI, TEMPUS IUDICATI, DUCI IUBERE, M A N U S I N -
Iudicans vice sacra. A judge appointed by the em- IECTIO, RES IUDICATA, EXCEPT10 RE1 IUDICATAE.
peror to decide in his name as an appellate judge. Steinwenter, R E 9; Cuq, D S 3 j L. Wenger, Die Lehre
Syn, iudex sacrarum cognitionum. von der actio i., 1901; P . Gay-Lugny, L a cautio i. solvi,
De Ruggiero, D E 2, 323. 1906 ; Duquesne, Mkl Gerardin, 1907, 197 ; idem, Mkl Fit-
ting 1 (1907) 321 ; Pfluger, ZSS 43 (1923) 153 ; Liebman,
Iudicare. The judicial activity, the rendering of a St Bonfante 3 (1930) 397; Biondi, ibid. 4 (1931) 35.
judgment or decision by a person who is acting as Iudicatus. A defendant in a civil trial against whom
a judge in civil or penal proceedings. In criminal a judgment has been rendered.-See IUDICATUM.-
matters, iudicare is opposed to coercere (COERCITIO) Syn. condemnatus.
which is not preceded by an ordinary trial. I n ancient Iudices civiles-militares. I n imperial constitutions,
law, iudicare is syn. with adiudicare = to adjudge a civil and military officials exercising special juris-
person to his creditor on account of an unpaid debt. diction in fiscal and military matters.--C. 1.45 ; 46 ; 48.
-See PES IUDICATA, EXCEPTIO REI IUDICATAE, IUDI-
Iudices decemviri. See DECEMVIRI STLITIBUS IUDI-
CATUM .
CANDIS.
Betti, RISG 56 (1915) 31; M. Kaser, Das altrb'm. Izcs,
1949, 126. Iudices delecti. Jurors selected from the panel (see
Iudicare iubere (iussum iudicandi). The order given ALBUM)for a specific trial.
by the praetor to the private judge to pass judgment Iudices maiores-minores. A distinction made in the
according to the terms of the written formula. later Empire and by Justinian between superior and
Steinwenter, RE 9,2468; Wlassak, SbWien 197, 4 (1921) ; inferior courts.
Lauria, St Bonfante 2 (1930) 506; E. Carrelli, L a genesi Iudices sacri. Judges appointed by the emperor pri-
del procedimento formulare, 1946, 121. marily for appellate matters.
520 ADOLF B
Iudices selecti. Persons entered in the official panel to the iudex was broad and it increased gradually;
of jurors (see ALBUM). he might take into account formless pacts added to
Iudicia. See IUDICIUM and the subsequent items. actionable contracts immediatelv after their conclu-
Iudicialis. Connected with the functions of a i u d e x or sion and modifying their effe2s (pacta convents).
the administration of justice.-See STIPULATIONES Ant. iudicia stricta (actiones stricti i u r i s ) , the for-
IUDICIALES. mulae of which had no clause e x fide bona. There
Iudiciarius. Referring to judicial proceedings; see the judge could take into consideration only what
LEGES IUDICIARIAE. was expressed in the formula.-See ACTIONES I N
Iudicio sistere (se sisti). See SISTERE ALIQUEM. BONUM ET AEQUUM CONCEPTAE, CONDEMNATIO.
.
Iudicium (iudicia) Used in various technical senses. Longo, StSen 22 (1905) ; De Francisci, ibid 24 (1907)
346; Biondi, AnPal 7 (1920) 3 ; idem, BIDR 32 (1922)
It is frequently syn. with ACTIO and comprises the 61 ; C. Zevenbergen, Karakter en geschiedenis der i.b.f.,
whole process without regard to bipartition; at other Amsterdam, 1920; Grosso, StUrb 1927, 1928; idem, RISG
times it indicates only the second stage, apud iudicem, 3 (1928) ; Koschembahr-Lyskowski, St Riccobono 2
i.e., the proceedings before the private judge. Not (1936) 159; F. De Martino, La giurisdizione, 1937, 95;
Daube, Z S S 68 (1948) 92.
seldonl iudiciuj~trefers to the written formula fiudi-
ciurn i n rein, in factui~z)and at times to the act which Iudicia contraria. Syn. actiones contrariae: see AC-
separates the two stages of the classical process, the CONTRARIUM.
TIONES DIRECTAE. I U D I C I U M
LITIS CONTESTATIO (e.g., ante iudiciuwz, iudicium con- 1udic;a directa. See ACTIONES DIRECTAE.
testari). The elasticity of the term diminishes in the Iudicia duplicia. Actions in which each party is both
cognitio proceedings in which the distinction i n iure- plaintiff and defendant. This is the case in divisory
apud iudicem no longer exists. There it denotes the actions for the partition of common property (actio
whole trial and refers ,generally to any proceedings comrnuni diwidundo, actio familiae erciscundae) . The
before an official acting in a jurisdictional capacity. term interdicta duplicia is to be unders;ood in the
Finally iudiciuvn is used of the judgment itself (syn. Same Sense.-See INTERDICTA SIMPLICIA.
sententia) by which the trial is brought to an end. Berger, St Si+noncelli (1915) 185; Leone, AnBari 6 (1943)
187.
This last use is hardly classical. Justinian's compilers
frequently inserted the term iudicium to replace ref- Iudicia extraordinaria. Trials conducted in the form
erences to the bipartition of the classical process, in of proceedings extra ordinevn. See COGNITIO EXTRA
particular when the classical text alluded to the stage ORDINEM.An interpolated text (D. 3.5.46.1) says :
i n izrre or when mention of a classical institution "In iudicia extraordinaria the use of written formulae
obsolete in Justinian's time had to be deleted (see (conceptio fornzularum) is not observed." Ant, iudi-
VAUIMONIUM). I n criminal matters iudicium refers cia ordinaria.
to the trial as a whole as well as to its initial act Iudicia generalia. Trials in which a complex of dis-
(accusatio) and the process pending (see IUDICIA puted matters is examined and decided upon. This
I'UBI~ICA).The various meanings of iudiciunz are occurs when a person ( a guardian, a partner, or a
clarified by the context in which the word appears.- negotiorum gcstor) administers all or much of an-
D. 5.1; C. 3.1.-See EXCEPTIO REI I N I U D I C I U M DE- other's affairs. Ant. iudicia sfiecialia in which the
UUCTAE and the following items (IUDICIA for various litigation concerns one specific matter, as in the case
types of actions, I U D I C I U M for specific actions, both of actio mnndati, depositi, comnzodati, etc. All actions
civil and penal). i n r e m in which a specific thing (not a complex of
Leonllard, KI:' 9 ; Humhert and Lecrivain, DS 3 ; more. things, universitas) is claimed are actiones speczales.
111:' 4; Kiiblcr, Z S S 16 (1895) 137; JobhC-Duval, Mkl The distinction is important in cases in which a spe-
('ornil 1 (1926) 532; Beseler, Z S S 46 (1926) 131, 52 cial action concurs with a general one or when the
(1932) 292; Lcncl, Z S S 47 (1927) 29. settlement of a special controversy appears necessary
Iudicia absolutoria. See ABSOLUTORIUS.
before a general action can be brought against the
Iudicia arbitraria. See ACTIONICS ARBITRARIAE.
adversary.
Iudicia bonae fidei. Contractual actions in which
Pctcrs, Z S S 32 (1911) 179.
through the clause e x fidc bona in the INTENTIO of Iudicia legitima. Trials between Roman citizens
the written formula the judge ( i u d e x ) was given full which took place in Rome or within the first mile-
power to decide the contro.versia1 matter according to stone of the city, I~eioreone judge (IUDEXUNUS)
the 1'rincil)les of good faith, i.e., to estimate what only. Ant. itidicia clitne i$izpcvio continentur (iudicia
shot~ltl1)e paid by the defentlant to the plaintiff. The imperio contincntin), in which any one of these requi-
pertinent clause tloes not refer to tlie actionability of sites is missing. The fornler are governed by statu-
tlie case I)ut to the extension of the perforniance re- tory law (see I.IIGITIMIJS), tlie latter depend upon the
cli~irctl of the tlefendant. All actions arising from irizpcritt~jzof the juristlictionnl magistrate. A iztdicizim
consensual or real contracts (except ~ i z u t u u n t ) ,the lcgitinz~tntexpires (ntoritttr = "(lies," see 1.1s MORI-
nctio ttttclac, rci zc.roriae, ncgofiorztm gestoruw, and TUR) if the trial l1:ls not I)een brotlght to an end
sonic others were bonus fidci. The authority given within eighteen months from its l~eginning (r.~ix
VOL.43, PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 52 1
IULIA IUDICIARIA), whereas a iudicium quod imperio the order.-See INTERDICTUM,
rium of the magistrate before whom the trial began. Berger, RE 9, 1693; 1697.
Bonifacio, S t Arangio-Ruiz 2 (1952) 207. Iudicium centumvirale. Refers to the second stage
Iudicia ordinaria. Ant. of IUDICIA EXTRAORDINARIA. in a trial before the centumviral court. The first
Iudicia poenalia. In a broader sense, merely crimi- stage took place before the jurisdictional magistrate
nal trials. Syn. poenales causae. In a narrower sense (the praetor) .-See CENTUMVIRI.
(syn. with actiones poenales) = civil trials involving Iudicium contrarium. A counter-action brought by
a penalty to be paid to the plaintiff. a defendant against a plaintiff who had sued him
Iudicia populi. Trials in criminal matters before the inconsiderately and had lost the claim. Such a
popular assembly (colnitia) when a Roman citizen counter-suit was admissible only in a few specific
had been condemned by a magistrate to capital pun- cases, e.g., with regard to an actio iniuriarum. In a
maximuln (thirty oxen and two sheep or 3,000 asses). demned for one tenth of his unsuccessful claim, even
I n the first case the comitia centuriata were compe- if he had acted without malicious intention. The
tent, in the second the comitia tributa. The introduc- iudicium contrariufn concurs with iudicium calutlzniae.
of the iudicia populi. G. Provera, Contributi alla teoria dei iudicia contraria,
Leonhard, RE 9.
resulting from bad management of the ward's affairs.
Iudicia publics. proceedings in criminal matters. I n classical law the pertinent action was the actio
Ant. iudicin privata. The distinction is clearly mani- negotiorunz gesforz~*n.--D. 27.3.-See ACTIO CURA-
which deals separately with iudicia publice Iudicium de moribus. See ACTIO DE MORIBUS.
and iudicia privata.--Inst. 4.18 ; D. 48.1. Iudicium de operis libertorum. See OPERAE LIBERTI.
Leonhard, RE 9 ; Humbert and LCcrivain, DS 3; Gatti, Iudicium domesticum. A domestic court in which
AG 113 (1935) 59, 115 (1936) 44; Pugliese, Riv. dir. the head of the family (pater fa.tltilias) exercised his
prorcssrro~c ctziie, N S. 3, 1 (1948) 63. jurisdiction over family members under his power.
Iudicia quae imperio continentur. See IUDICIA LE- It was an ancient, customary institution in which his
Nicolau. Rev. dc pltilologie 9 (1935) 352. most evident expression. In the case of major crimes
Iudicia specialia. See IUDICIA GENERALIA. he was assisted by the family council (concilizfm pro-
Iudicia stricta. See IUDICIA BONAE FIDEI. pinquoruwz) but the judgment lay with him. For
Iudicis postulatio. See POSTULATIO IUDICIS. women szii iuris and those under tutorship, the iudi-
Iudicium accipere. Refers to the acceptance by the ci~fnzdome~ticunt was composed of their nearest
defendant of the procedural formula proposed by the
plaintiff. Through such an agreement made under Humbert and Lkcrivain, D S 3; Dull, Z S S 54 (1943) ;
Volterra, RISG 85 (1948) 103.
the supervision of the praetor, the object of the con-
troversy is fixed (Eis contestata) and the stage in iure Iudicium imperio continens. See IUDICIA LEGITIMA.
Nicolau, Rcz~rrcde pkilologie 9 (1935) 352.
of a civil trial comes to an end. Post iudicium ac-
Iudicium liberale. See CAUsA LIBERALIS.
cepftr~il= after litis contestatio.-See LITIS CONTES-
Iudicium noxale. See NOXA.
TATIO.
Iudicium operarum. See OPERAE LIBERTI,I URATA
\Vlassak. R E 1 (s.r~.accipcre i.).
PROMISSIO LIBERTI.
Iudicium calumniae (actio calumniae). An action ~ ~petitorium.
~ See i ~ PETITORIA.
i ~ ~
for mlztntnin (see CALUMNIA).If a defendant was Iudicium quinquevirale. A tribunal in the later E ~ -
sued nlaliciousl~,the plaintiff having pire, composed of five senators under the chairman-
that his was unjust? and was he ship of the prurfecttbsurDi, for offenses corn-
bring an action against his adversary for a tenth of mitted by senators.
the amount claimed in the former trial, but he had C. H. Coster, T h e i.q. (Cambridge, Mass., 1935) ; idem,
to prove that the latter acted calutnniae causa ( = with By:or~ti~zisclrcZ citschr. 38 (1938) 119.
Iudicium supremum (ultimum, testatoris). A last (men from forty-six to sixty) anti iuniores (men un-
Iugatio terrena. A tax paid on landed property. It Iungere. See ACCESSIO, T I G N U M I U N C T U M . - I(L
=I ~ ~ Z
is to be distinguished from the poll-tax, capitatio se iungere) = to be tied to another person,by mar-
huttzana. The term iuaatio con~esfrom the land unit. riage or kinship.
ittgirtrt, which served i s the basis for the assessment Iura-leges. See LEX.
of the tax to be paid in natural products of the soil Iura praediorum. Rights attached to an illlnlovable
(annona) .-See IUGUM. property, servitudes. For the various iura prae-
Thibault, Rcr~trc gtrttrale dtc droit, de la ligislatio,t 23 diorum, see SERVITUTES PRAEDIORUM RUSTICORUM,
(1899) 481. SERVITUTES PRAEDIORUM URBANORUM, and
the per-
Iugum (iugerum). A plot of land (three-fifths of tinent items.
an acre) "which two oxen can plow in one day."-- Iuramentum. An oath. See IUSIURANDUM.
See IUGATIO TERRENA. Iuramentum calumniae. See I U S I U R A N D U I ~ CALUM-
A. Deleage, La capitation du Bas-Elrapire, 1945, passirrl. NIA, ACCUSATIO.
Iulianus, Salvius. A jurist of the second century, Iurare (iurari). T o take an oath.-See IUSIURANDUM.
meinber of the imperial council under Hadrian, pupil Iurare bonam copiam. A rather obscure expression
of Iavolenus and teacher of Africanus, the last known which appears in connection with the Lex Poetelia
head of the Sabinian school. I n his official career he Papiria on nexi and is linked with an oath of the
held inany important post: from the tribunate to the debtor, apparently about his pecuniary inability to
a well preserved inscription ( C I L 8, 24094) found Steinwenter, R E 10, 1259; Berger, RE Suppl. 7, 406;
in North Africa, near Hadrumetum, where he may Humbert, DS 1 (b.c. iatrare) ; G . Rotondi, Lcgcs publicae
have been born. Iulianus was one of the outstanding flop. rom., (Encicl. giur. ital. 1912) 231; P. Noailles, Ius
Roman jurists, an original and independent thinker, et fas, 1948, 109; Berger, St Arongio-Rtriz 2 (1952) 117.
whose works, in particular his DIGESTA,are among Iurare in leges. Taking an oath by a magistrate when
the most highly appreciated products of the Roman entering office to the effect that he would observe the
juristic literature. At Hadrian's initiative, he revised laws. The oath was administered by a qrlc~estor.-
the praetorian edict ; see EDICTUM PERPETUUM.H is See EIURATIO.
Digesta (in 90 books) were richly excerpted by the Kiibler, RE 14, 416; Steinwenter, RE 10, 1257; R.
Maschke, De magistratuum Romanorurn iure iitrando, 1884.
compilers of Justinian's Digest and frequently quoted
by later classical jurists. It is a comprehensive col- Iurare sibi non liquere. A private judge (iudex) in
lection of responsa on real and hypothetical cases; a civil proceeding to whom the controversy did not
in general, it followed the edictal system. Julian also appear sufficiently clarified, so that he felt unable to
wrote commentaries on works of two earlier, little render a judgment, might take an oath that the matter
known jurists, Urseius Felix and Minicius, and a "was not clear to him." H e was released from the
booklet De anzbigzritatibzrs (= on doubtful ques- trial which was then submitted to another judge
tions). With Iulianus, the Roman jurisprudence (translatio iudicii). For criminal cases, see AM-
reached its apogee. PLIATIO.
Pfaff, R E l A , 2023; Orestano, &VDI 6 (s.v. Giuliarro) ; Leonhard and Weiss, RE 13, 726; Lemosse, Cogilitio, 1944,
L. Boulard, Salvius I., 1902; Rechnitz, St zu S.I., 1925; 164.
Solazzi, St Besta 1 (1937) 17; A. Guarino, S.I., 1946 Iurata promissio liberti. A promise under oath by
(Bib].) ; D'Orgeval, R H D 26 (1948) 301; Berger, St in which a manumitted slave assumed the duty of render-
memoria di Albertario 1 (1952) 605; Wolff, Sem 7 (1949) ing certain services to his patron. I n order to ascer-
69; Kunkel, Iztra 1 (1950) 192; idem, Herkrrnft irrzd
soziale Stellung der rom. Juristew, 1952, 157: R. Reggi, tain whether the slave would make such a promise
Stttdi Parmensi 2 (1952) 105. after his manumission, it was usual to allow him to
Iumentum. A beast of burden (horse, mule, ass). take the oath before he was freed, which created only
The edict of the aediles laid down certain rules con- a religious duty for him. After his manumission the
cerning the sale of iumenta, and the liability of the iurata promissio liberti produced a civil, contractual
seller for physical defects and diseases of the animal, obligation under oath. The pertinent action was
similar to the provisions referring to the sale of iudicium operarum.
slaves. Through an additional clause (elogium) the Cuq, D S 3, 771 ; M. Chevrier, Dlc sermeitt prorizissoire,
and domestic animals.-See EDICTUM AEDILIUM, Iuratores. Reliable persons who assisted the censors
ACT10 REDHIBITORIA, PECUS. in their work of registering the citizens (see CENSUS)
H. Vincent, Le droit des e'diles, 1922. and who administered an oath to them on the truth
tary organization consisted of two groups, seniores Iuratorius. See CAUTIO IURATORIA.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTI( >NARY OF ROMAN LAW 523
Iuratus. A person who upon assuming a public office, Iuris auctor. See IURISPERITUS.
even a temporary one, took an oath before entering Iuris conditor. See CONDERE IURA.
service. Iuris est. ( I n such locutions as id iuris est, certi,
Passerini, D E 4. manifesti iuris est.) "This is the law" in a specific
Iure. (Abl.) According to the law, legally, lawfully, question submitted to a jurist for opinion. Quid
in particular with reference to the solemn formalities iuris est (= what is the law?) is the corresponding
prescribed by the law. Iure valere = to be legally interrogatory phrase.-See IURE UTI, IUS CERTUM.
valid. Non iure = iniuri& (abl.) .-See IPSO IURE, Iuris scientia. The knowledge of the law, jurispru-
MERITO. dence.-See syn. IURISPRUDENTIA.
Riccobono, Z S S 34 (1913) 224. Iuris sui (or alieni) esse. See ALIENI IURIS.
I u r e s u o uti. See UTI suo IURE. Iurisconsultus. A jurist. The word alludes to the
I u r e uti. ( I n phrases like hoc [eo, quo] iure utimur.) activity of the jurists as qui consuluntur, i.e., who are
I n this way the jurists used to refer to a legal norm consulted for an opinion in a legal matter and who
still valid, particularly to one established in an im- give responsa to the consultants (consultator). Other
perial rescript, in order to stress the fact that it was terms are iurisperitus (iuris peritus), iuris prudens,
still applicable. The phrases are not linked with or simply prudens. The jurists "enjoyed the highest
responsa. Occasionally they were interpolated by esteem among the Roman people" (Cic. de orat.
Justinian's compilers when they wished to point out 1.45.198). Their profession was considered one which
that the classical rule has remained unchanged. There "cannot be evaluated or dishonored by a price in
is, however, no reason to exclude all such phrases money" (D. 50.13.1.5) .-See IURISPERITUS, IURISPRU-
from the classical juristic language. DENTIA, IUS RESPONDENDI, RESPONSA.
Berger, K r V j 14 (1912) 440; Guarneri-Citati, Indire', Berger, RE 10, 1164; Kubler, Die klass. J u r ~ s t erritd
~ ~ illre
1927, 51 ; Magdelain, R H D 28 (1950) 169. Bedeufung fur die Rechtsentwirklung, ConfXil 1931, 128;
Massei, Scr Ferrini (Univ. Pavia, 1946) 42 ; Magdelain,
Iurgium. Used of those kinds of legal controversies RHD 28 (1950) 4 ; W. Kunkel, Ober Herkunft uud soziole
which are brought before an arbitrator, such as dis- Stellutzg der rdm. Juristen, 1952.
putes on division of property or on boundaries be- Iurisdictio. (From ius dicere.) The power and ac-
tween neighboring properties, or quarrels between tivity of ius dicere, i.e., of settling legal principles
family members. I t is opposed in a certain measure which serve to adjust controversies. The term covers
to LIS. Later both terms were used rather indis- any judicial activity in civil matters, and in a broader
criminately. sense, all activity connected with the administration
Leonhard, RE 10; Cuq, D S 3 ; Brunelli, N D I 7 ; A. Mag- of justice. With reference to the praetor, the juris-
delain, Origines de la spottsio, 1943, 192.
dictional magistrate par excellence of the classical
I u r i alieno subiectus. See A L I E N I IURIS. times, it embraces all his acts and orders issued dur-
Iuridicatus. The office of a izcridicus. See IURIDICI ing the stage in iure of a civil trial, such as the ap-
in provinces. pointment of a iudex (private juror), the grant of an
Iuridici. In Italy, jurisdictional magistrates of sena- action to the plaintiff as well as its denial (DENE-
torial rank, introduced by Marcus Aurelius with GATIO),the order to the judge to decide the case in
competence in civil and criminal matters. Terri- dispute, and so on. The power of iurisdictio is given
torially their competence was limited to one or more to all magistrates with iwtperium; magistrates of
districts (REGIONES)into which Italy was divided. lower rank (wzagistratzts minores) had only a limited
There were four iuridici altogether. I n their juris- iurisdictio (see AEDILES) . I n a territorial sense,
diction in civil matters, fideicommissary and tutelary iurisdictio refers to the judicial district in which a
controversies were of particular importance. They magistrate may exercise his jurisdictional rights.
also had jurisdiction in administrative disputes (e.g., The judicial activity of municipal magistrates is also
lvzlrnrra, corn supply) .-D. 1.20.-See DIOECESIS UR- covered by the term. Under the Empire, all higher
BICA, REGIONES ITALIAE. officials are vested with iurisdictio. With reference
Rosenberg, R E 10; Jullian, D S 3 ; Samonati, I ) E 4 ;
Berger. OCD.
to provincial governors the term comprehends the
whole administration of the province, which is a sign
Iuridici. In provinces, high officials of provincial ad-
of the extension in the significance of inrisdictio in
ministration with broad activity in judicial matters later times. The classical iurisdictio refers only to
(legati izrridici) concurrent with that of the governor.
the activity of judicial magistrates and imperial of-
The official title of the izcridicus in Egypt was iuridicus
ficials, and not to the activity of the private judge
Aegypti with the frequent addition, et Alexandreae. developed in the stage apud iudicem in a civil trial.
-C. 1.57. The transition from the bipartite process to the cog-
For bib1 see IURIDICI in Italy; Wlassak, Zu;n rb'm. Pro-
.iitzcialprozess, S b Wien 190, 4 (1919) 59 ; Balogh, A C D R nitio procedure could not remain without influence
Roma 2 (1935) 309; v. Premerstein, R E 10, 1151 ; Coroi, on the content of iurisdictio, which was applied there-
Actes V - e Congr2s Pnpyr. Oxford (Brussels, 1938) 6-38. after to any official acting as a ilrdex (iudicrs) in the
Iuridici dies. See DIES IURIDICI. broad sense which this term acquired in the later
5 24 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Empire; see IUDEX. "A person provided with iuris- Iurisdictio iudicis. (Of postclassical origin.) After
dictio shall not ius dicere in matters in which he him- the disappearance of the bipartite civil procedure
self, his wife or children, his freedmen or other per- there was no further reason to distinguish between
sons of his household are involved" (D. 2.1.10).- the functions of a magistrate and those of the private
D. 2.1 ; Cod. 3.13.-See the following items, FORUM, judge. Hence iurisdictio iudicis refers to the judicial
IUDEX I N RE PROPRIA. activity of any public official.-C. 3.13.
Steinwenter, RE 10; Cuq, DS 3 ; Lauria, NDI 5; Bozza, F. Dr Martino, L a gizcrisdi,-iotze nel dir. rom., 1937, 177.
D E 4; F. Leifer, Die Eitzlteit des Gewaltgedaltkens (1914) Iurisdictio mandata. Jurisdiction transferred through
68, 86; L. Falletti, Evolution de la juridiction civile, ThGse mandate by a magistrate vested with iurisdictio to
Paris, 1926; Lauria, St Bonfatzte 2 (1930) 479; F. de
Martino, L a giurisdizione nel dir, r o w . , 1937 ; C. Gioffredi, person (magistrate Or "He who as-
Contributi a110 studio del proc. civ. rom. 1947, 9. sumes iurisdictio mandata has no right of his own
~ ~ ~ icontentiosa.
~ d i ~~ ~~ ~i i~ ~in dcases t i ~ ~but exercises the jurisdiction of his mandator" (D.
i ~involv-
ing a legal controversy between the parties to the 1.21.1.1). Therefore, he is not authorized to appoint
trial. - ~ ~iltvisdictio
t . voluntaria = the intervention another as a mandatary and his jurisdictional rights
of a Illagistrate in matters in which there is no quarrel are extinguished when the mandator revokes his man-
between the parties and the fictitious trial serves only date Or dies. An the the
as a way of performing certain legal acts or trans- goes not to the mandator but to his
actions (in iure cessio, emancipatio, superior. The transfer of jurisdiction through man-
fnissio). Iurisdictio voluntaria also comprises co- date was widely practiced in the Republic. One of
operation of in guardianship matters and legal its most developed applications was the iurisdictio
acts for the validity of which a permission of the tnandata of the legatus proconsulis in the provinces,
petent authority is required. ~h~ distinction is im- who received his jurisdictional powers from the pro-
portant inasmuch as some magistrates who have no consul. There was a rule that "what is assigned to
full i~rrisdictio may intervene in acts of iurisdictio a magistrate by a Statute, a senatusconsult or an
vo[unfaria and as the personal interest of the magis- inlperial constitution as a special assignment, cannot
trate is not a hindrance to the performance before be transferred to another as a iurisdictio mandata"
him of such acts as adoptions, manumissions, emanci- (D. 1.21.1 ~ r . 1; only what belonged to the province
pations in which he himself or his next relatives are his (ius magistratus) might be en-
involved. trusted to another through mandate. Ant. iurisdictio
Solazzi, A G 98 (1927) 3 ; Gonnet, RHD 16 (1937) 193. propria.-See IUR1sDICT1oDELEGATA.-~.l.Z1.
Steinwenter, RE 10, 1157.
Iurisdictio delegata. The delegation of jurisdiction
by the emperor to at1 official or a private person to Iurisdictio praetoria. The jurisdiction of the praetor.
examine a case (delegatio causae) and render judg- It embraces not only his activity in civil trials (in the
ment, either in the first instance or in appellate pro- stage in iure) but also his edictal creations (the issu-
cedure. Such a jurisdictional delegate ( e x divina ance of new legal rules, formulae, interdicts, etc.).
Betti, St Chiovendn, 1927.
delegatione) may subdelegate the matter to another
judge. O n the other hand, iurisdictio delegata occurs Iurisdictio voluntaria. See IURISDICTIO CONTENTIOSA.
when a higher official (one of the prefects in Rome, Iurisperitus. A man learned in the law, a professional
a proconsul in the province) delegates another to act jurist. The term alludes to his knowledge of the law,
in a certain kind of judicial affair, or for a limited while iurisconsultus refers rather to a jurist con-
sulted in legal matters. See IURI~CONSULTUS. Syn.
period or in a single case. The right of the pro-
iuris auctor, iuris prudens (or simply prudens) , iuris
vincial governors to delegate their jurisdiction was
conditor.
reduced to minor matters by imperial legislation of Massei, A G 133 (1946) 48; idem, S r r Ferritri (Univ.
the fourth century or to exceptional situations when Pavia, 1946) 428.
the governor was overburdened with jurisdictional Iurisprudens. See the foregoing item.
duties, in order to relieve him to a certain extent. Iurisprudentia. Defined as "the knowledge of divine
Through the delegation of jurisdiction a new instance and human matters, the knowledge of what is just
arose because an appeal from the decision of the and what unjust" (D. 1.1.10.2). Iwrisprudentin is
iudex delegatus to the delegans was admissible. I n syn. with iltris scientia: it is knowledge of the law in
this important point the iurisdictio delegata differs the broadest sense of the word, the science of the law.
from izcrisdictio mandata. Ant. iurisdictio propria.- The Roman jurists were the most important element
See IURISDICTIO, IURISDICTIO MANDATA. in the development of the Roman law, and with good
De Kuggiero, R E 2, 321; H. J. Conrad, Die i.d. im rom. reasons they are named iuris auctores, iuris condi-
und karton. Recht, 1930 (Diss. Kuln). tores; see CONDERE IURA. This refers in particular
Iurisdictio extraordinaria. ( I n the language of the to the classical period of Roman jurisprudence, i.e.,
imperial chancery.) Jurisdiction in the cognitio pro- in the last century of the Republic and the two cen-
cedure. turies and a half of the Principate. The creative
VOL.43, PT. 2, 19.531 E N C Y C L O P E D I C D I C T I O N A R Y O F R O M A N LAW 525
influence of their responsa, their literary and teaching Legal Sciettce, 1946; Schiller, T h e Jurists nrrd the Prefects
actiyity, their participation in the councils of judicial of Rome, R I D A 3 ( = M i l De Visscher 2, 1949) 319; F.
magistrates and private judges as assessores, and Wieacker, Ubcr das Klassische itt dcr rotn. Jtcrispruderr:,
the furthered the the law Ius (iura). I n the Roman juristic language, ius has
through creative and progressive ideas based on the different meanings. I n the broadest sense the tern1
understanding of the necessities of the life, to which embraces the whole of the law, the laws (iura PoPuli
they adapted their opinions and doctrines taking into rqmani), without regard to the source frotll which
consideration the changes in the economic, political, they emanate. ivhen used with a special attribute
and social develo1)ment of the empire. They did not it applies to a bigger field of the law ( i u s publicunt,
care for philosophical doctrines and conceptions, for prjTL'afullZ, ,$onoYaYillln, etc.) or to exceptional p o v i -
precise definitions or etymologies* but had a sions (ills singldlare). Even references to a single
keen eye for the exigencies of everyday legal life with legal provision are not missing. ~h~ lneaning of
which they were constantly in touch in their various ius the law in general is reflected in expressions
capacities. The high value of their works does not lie like illre (abl.) = legally, in conformity with the law,
in theoretical deliberations and doctrinal speculations, or ipsoillre= by virtue of the law itself. ~ l l ~ ~ i
but in the elaboration of a systematic structure of to specific legal are in locutions such as
the law as a whole, in the gradual I~uildingup of a ccide,,zIuRIs ESTH or acllcid iltris cst ?" a sues-
legal system composed of legal institutes with a n tion is put concerning the specific norm to be applied
admirable logical strength and guided by ideas which in a particular case, conceived as the whole of the
justify the conception of the law as ars bofli et aeqzbi. law originating frolll various sources-llence the dis-
The juristic literature of the classical period acquired tinctioh between ills and lc.v (a whicll is a
particular significance in the later Empire in spite of source of ius)-the illsis defined by the jurist celsus
its completely different political, economic, and social 6iIUs EST ARS BONI ET AEQUIjJ (see AEQUITAS)
structure, through the so-called Law of Citations, is not far from another formula expressed by the
issued in 426 by Theodosius 11. I t laid down rules jurist Paul, " w l ~ a talways is just and fair (acqltltl~r
for the use of classical juristic writings as authorities et bo,l,,,t) is callrd iltsn (D, 1.1.11 pr.), ~l~~ fun-
in .legal matters. The works of P a ~ i n i a n ,Paul, Ul- damental (prorcepta) of the ires are "to
pian, hIodestinus, and Gaius were established as the live honestly, not to do harm to anybody, to give
principal authorities. Their views had to be consid- what is his ( s l r l r n tc n;qltc tril,lrcve)M (n.
any
ered authoritative in legal disputes. Works of jurists 1.1.10.11. i\lollg with juxtaposition ilts-lcx,
other than the five mentioned might be taken not always csactIy rIistingoisIie(I Iiy the jurists, there
consideration only if they were quoted by the ~ r i - is one, irrs-f~ls, see FAS. Uesitle the use of
mary authorities and if those quotations could be the term in the oI,jective sense as "the law." ills is
strengthened 1 ) a~ comparison with the original works. a13111ied to illc{icate the sul)jective right or rights
I n the case of divergent opinions of the jurists, (;,,,a) of an indivitlual, as the right to do something
majority was tlecisive; if there was no majority, the ill a certain legal situation, to acql1ire n thing or to
013inioll of Papinian prevailec1. If these cri- dispose of it, to claim something from allotllrr. 111
teria was al)l)lical)le the judge had free in this sense tlie prnedinl servitutles are cnlletl ilrrci prop-
rendering jlltlglllent. The greatest paid ,{iorl/,~t,a ll(l the general trrrrl, ires i n 1.r olic'tl~. is
the works of the classical jurists was Justininn's *lrnost synonymolls ,+.itl1 irrs in tllis mean-
Digest, based as it was exclusivel!' On excerl'ts ing are the expressions ft~rrelttrs a ~ i d~ O ~ P S :llthoug11 ~ ~ I S
them.-D. 1.2; C. 1.17. For Particular jurists, see the legal element is not rxljIicit in tllctil. Tllc l)ntri-
the pertinent ite111s; for their literary protlucts, see lllollial +llts an intlividual a s a ,,,,llOlt' tCrlllCd
REGULAE, N O T A E . EDIT10 SECUND.A.-S~~ TUS EST ARS S I f c c c S S ;in~ ~ires, also intlic;,trs tilt.
~ n 7 ;, E. Seckel, Dos r;ilrl. fi. und .~cirlc W i s , ~ i ~ l ~ . ~ i ~ / l i lwhcther ft, a person is undcr the power oi ;~~lotllcr or
1920; I:.Sellti. Lcs origirt~sdr Itr notiorr tic ;urispr.ritii.rr(~i., legally itit\el)entlrtit. With regard to 1:ultlrtl property,
1926; I)otlatuti, La drfirtisiorlc tii Ulbinrto. AG 98 (1927) ;Its may indicate the lrgal sitllntion thrrrof illclltding
51 ; Strlla-Maratica, His! 8 (1934) 640; I;. Pri~l~sllcitn.
No,rl. iirr rij,,,. ,urisp 1933; Pirn, L I I st'rvitu(les nlld liclls (il(.s f u t l ( i i ) . A specific ~llcallillg
grrrcsi tir/ ,T;str,rl~lrrclla ~,il,ris~r.rit~cnsilr,,rrr., l ~ i ~ ~ i / i i is attached to irrs in proc.et111rnl language. is the
1935, D l / ) / ? 42 (1934) 336, SDHI 1 (1035) 319, B l D K place where the magistrate ( ] m e t o r ) administers the
44 (193(~37) : Biscardi. StSerr 53 (1939) : Riccol)ono, S r r law. IIcllce tile stage oi a civil trial whicll tal<es place
1:crrirri (I'tiit.. P;ivia, 1946) 17; Bio~itli.iOiti. 201 ; Gt.osso.
il,iri, 2s1 ; ibiti, 438 Law o f C i t a t i o n s ); Kagall, before is llalncd 1s I W E . Herr "tile term is
Tulollr Law Rpv. 21 (1946) 102: Schulz. Htstory of R. trnnsfcrretl from what is beil~gdon? ( i u s ciiritur.) to
ADOLF BEIIGEII
the place wllerc it is done" (D. 1.1.1 1 ) . Hence some I u s agendi cum populo (cum patribus, cum plebe).
procedural institutions have their tlenomi~~atioi~, as The right to convokc a l)ol)rtl;~rassembly (c.orrritia),
in ;us uoc.alio, i n l ~ r r o g t l l ;ifi
~ i l l r ~ i, . of~e s ~ i oi)t iurr. pritnarily for Icgisl:itivc l)url)nses. It was grantetl to
Slight sliades oi dil.fererlcc in the meaning of ius will the higllcst t~lagistrntc~s (consrils, lwactors, dictators).
be iout~tl i l l the iollowin~ " entries. wl~icli tleal with A sin~il:~r right ui thc 1)lcl)eian tril)uncs to convoke
SOIIILI rnorr important expressions ill which ius (or the plebeian asscinblies (conc.ilici plchis) was the ills
iloa) is co~lr~ectc~d wit11 eitlicr :I noun or an adjective. clgc3ntiirfrirl plebe. The irrs ngcndi c.11111 pcltri[)rrs re-
111 tlle I;~nguageof thc I;~tcrimpcri;~lconstitutions antl fers to the convocation of the senate which untler the
of Justillinn, ills al)l)c;Irs i l l associations unkilou.11 in I'rit~cil)ate was a 1)rcrogative of the emperor.
tllc classical jr~ristic I:u~gu:~gc.-111st. 1.1 ; 1). 1.I.- 1;atltl;i. , V I l 1 1. 238.
See I U R I CII'SO , IURIC,I U K I S I ) I ~ - TIlrnrsI O , ICSSIC, AUC- I u s agnationis. 1:igllts tleriving from the ag11:itic reln-
'I'OKICS, AUCTORIT;\S, IGNORANTI.4, SOI.I~l?hINIA, I N tionshi~). See ACNATIO.
II.Rli, I N IURIC CliSSIO, INTI<KRO(;t\TIO. CONI'ICSSIO, I u s altius tollendi. See S E R V I T U S AT,TIUS TOI.I.ICKI)I.
R I G O R IURIS,RI:GUI-A IURIS,ant1 the follo\ving items. I u s ambulandi. See ITER,VIA.
I~conhartl,lZI< 10; Cuq. DS 3 ; Uiontli, NLII 7; May, J l k 1 I u s anuli aurei. The right to wear a golden ring.
(;t:rartlirr, 1907, 402; Clark. .\It:/ I:itti~r!! 1 (1907) 241; It was a privilege of persons of equestrian rank.-D.
Kamphuisen, IfHD 11 (1932) 389; Villcy, 1.c tlroit srh-
jrt.tif ct Irs systZrr~rsjr~ridiqrlcsrotrl., IZIiI9 24-25 (1946/7) 40.10; C. 6,s.-See EQUITES,RESTITUTIO N A T A L I U M .
201 ; Goidanich, Atti Arrotl. d'llalitr, Sez V I I , vol. 3 (19-13) I u s antiquum. The earlier law referred to for com-
499; M. Kaser, Dt~soltrC~r~isclw 111s 1949, 29; D'Ors, St parison with new legal provisions. I n imperial con-
~~~~~~rtc~rio 2 (1952) 279. stitutions of the later Empire and with Justinian, itrs
I u s abstinendi. See ABSTINERE SE HEREDITATE. onliqlttult denotes the classical law, sometimes going
I u s acta conficiendi (actorum conficiendorum). The as far back as the Twelve Tables. Syn. ilrs vetus,
right of magistrates and imperial officials to keep ant. izrs novzrlit.
public records.-See ACTA. I u s appellandi (appellationis). The right to appeal
I u s adcrescendi. The law of accrual under which the to a higher court. Syn. azt.zilizriit appellationis.-See
portion of a co-owner increases, as, for instance, if a APPELLATIO.
co-owner ~nanumitsa common slave, the manumission I u s applicationis. The relationship created through a
being void, the other co-owner acquires full ownership voluntary placing of oneself under the protection of
over the slave (Justinian ordered the slave freed). a powerful person (patronus) by a solemn act, a j j l i -
I n the law of succession, the share of a co-heir in- ratio ad patronuriz. The individual, a plebeian or a
creases when the other co-heir fails to take his share
llncler the will or on intestacy.
stranger (peregrinus), thus became a client (see
CLIENTES) of the patron.
Leonhard, RE 10; Humbert, U S 3; P. Bonfar~tc.S cvitti Premerstein, RE 4, 32; Manigk, RE 10.
gillridici 3 (1926) 434; Macqueron, KHD 8 (1929) 580;
\*accaro-Dclogu, L'nrrrcsci~rrelrto~ r c ldir. ercditario, 1941 ; I u s aquaeductus (aquae ducendae). See SERVITUS
U. Robbe, 111s a. r la sostifuzior~ezjolgarc, 1947. ADQUAEDUCTUS.
I u s adeundi. See ADITUS. I u s augurium. The sacral rules concerned with the
I u s adfinitatis. il relationship based on ahfinitas.- activity of the augurs. They were collected in Books
See ADFINITAS. of the augurcs (libri augzrizr~it or augurales) .-See
I u s aedificandi. The owner of a plot of land has the AUGURES.
right to construct a building on it, provided that his I u s auspiciorum. See AUSPICIA.
neighbor has no title under which to protest. In the I u s auxilii. The right of the plebeian tribunes to assist
case of a neighbor's unjustified protestation, the a plebeian wronged by an official act of a patrician
builder has an action against the neighbor in which magistrate.-See TRIBUNI PLEBIS.
he claims his right (ills) sibi esse ita aedificatunz I u s (iura) belli. The rules which governed the con-
Ilc~berc,i.e., to build the house in the way he wants duct of war. They were observed by the Romans
to do it. O n this octasion he also has the possibility from the moment of the formal declaration of war.--
of claiming some specific servitudes (e.g., serz'itzrs See BELLUM INDICERE.
alti~rstollc~adi,i~izilzittcndi) to which he is entitled. I u s caduca vindicandi. See CADUCA,CADUCORUM
I n the case of comnlon property the ills aedificandi VINDICATIO.
tlepentls upon the consent of all the co-owner$ any I u s calcis coquendae. A praedial servitude of lime-
one of \vhom may exercise the ilis prolzibendi (right burning on another's land.
oi prohibition) against the partner who intends to I u s capiendi. The right to take under a will.-See
1)uild.-See AEDIFICATIO, OPERIS NOVI NUNTIATIO. CAPAX. CADUCA, LEGES CADUCARIAE.
I u s Aelianum. See AELIUS PAETUS CATUS. I u s certum. ~ h i a s e slike certi ilwis est or certo iure
I u s aequum. See AEQUITAS. utimur are used in juristic writings and imperial con-
Pringsheim, ZSS 42, 643. stitutions to indicate that the opinion of-the jurist
I u s agendi (iumentum). The right to drive draft or the imperial decision is beyond question because
animals through another's property.-See ACTUS, VIA. it is based on a certain, doubtless legal rule. I n the
\.or.. 43, IT. 2 , 1 ~ 5 . 3 1 13NC'YC:I.OI'EDIC DICTIONARY O F ROMAN LAW 527
language of the imperial chancery, particularly in Ius commune. The general law conlillon to all, the
Justinian's time several analogous expressions occur law which is binding on all peoples or all Roman
as certissii+ti,erplorati, evidentissi~izi,indubitati, mani- citizens. Ant. ius singulare, privilegiu~+z. Ius cow-
fcsti, ~nanifestissinziizrris est (or in the nominative tizune omnizrm hominurtz (the law common to the
iusest). . whole of mankind) is oppbsed to the ius proprium
Ius civile. With regard to the sources from which the (the law proper) of one nation, for all its citizens
ius civile derives, a definition given by Papinian says (ius civile).-See IUS SINGULARE, PRIVILEGIUM
"ius civile is the law which emanates from statutes Orestano, AnMnc 11 (1937) 24.
(leges), plebiscites, decrees of the senate (senatus- Ius compascendi (compascui). See COMPASCERE.
consults), enactments of the emperor and from the Ius conubii. The right to conclude a marriage recog-
authority of the jurists" ( D . 1.1.7). Ant. ius prae- nized by the law. Originally it was limited to patri-
torium (honorariunz). Etymologically ius civile de- cians, until the passage of the LEX CANULEIA which
notes the law of a given civitas or of the citizens; permitted nlarriages between patricians and plebeians.
with reference to Rome it is the ius civile proprium Later. the ius conubii was extended to citizens of
Rolnanorum. Syn. in earliet times IUS QUIRITIUM. foreign communities, either generally or by special
T o the republican jurists, ius civile was the law concession. The ius conubii of the parties was a
among the cives, applied in their mutual relations, necessary condition of the validity of the marriage.
therefore the private law. The earliest treatises on -See C O N U B I U M (Bibl.).
ius civile, entitled Libri iuris civilis or Comwentarii Ius (iura) consanguinitatis. The reciprocal rights of
iuris civilis (or de iure civili), therefore deal al- persons who have the same father (brothers and
most exclusively with the private law. I n a nar- sisters) .-See CONSANGUINITAS.
rower sense, the interpretation of the law by the Ius constitutum. A norm of the existing law without
men learned in law is called proprium ius civile (= ius regard to the source from which it originates. Hence,
civile proper). One of the most renowned textbooks customary law is ius wtoribus constitutum. Some
on the ius civile was the LIBRI IURIS CIVILIS by the legal decisions in the sources are proffered iure con-
jurist Sabinus. His system was followed by later stituto.
writers on the ius civile, who called their works "ad
Ius controversum. A concept familiar to rhetoricians
Sabinum."-A counterpart of ius civile is ius hono-
and not to Roman jurists. I t refers to legal norms
rarium (praetoriutn) i n the one hand, the IUS GEN-
which were controversial among jurists (awzbigitur
TIUM on the other.-Inst. 1.2.-See the following
inter peritissimos, Cic. de orat. 1.57.242). Syn. ius
item.
Weiss, R E 10; Pacchioni, N D I 2 (diritto civile) ; Berger, dubiuitz, ambiguurn (in later imperial constitutions).
O C D ; E. Ehrlich, Beitriige zur Theorie der Rechtsquellen, Ant. indubitatum ius.
1902 ; B. Biondi, Prospettive romanistiche, 1933 ; 40 ; Schwarz, Fschr Schulz 2 (1951) 201.
Lauria, Scritti Ferrini (Pavia, 1946) 595; G. SegrP, Inter- Ius crediti. T h e creditor's right against the debtor.
ferenze, ravvicinamertti e nessi fra diritto civile e pretorio,'
ibid. 729; De Francisci, Scritti F e r r i i 1 (Univ. Sacro Ius debiti. A debt. Syn. DEBITUM.
Cuore, Milan, 1947) 192; Gioffredi, S D H I 13-14 (1948) Ius deliberandi. See DELIBERARE.
12; M. Kaser, Das altromische Ius, 1949., Ius dicere (reddere, statuere). Refers to the juris-
Ius (iura) civitatis. The law of any state; with regard dictional activity of the magistrates, primarily of the
to Rome, ius firojrium civitatis nostrae (iura PoPuli praetor.-See IURISDICTIO.
Rounani, iura ~ o m a n o r u m.--See
) IUS CIVILE. F. De Martino, Giurisdiziotte 1937, 56.
Ius codicillorum. The law of codicils. It is consid- Ius distrahendi. The creditor's right to sell the pledge
ered as a special law (ius singulare) .-D. 29.7.-See (fiducia, pignus) if the debtor did not pay the debt
CODICILLI. due. Originally admitted only when it was agreed
Ius coercendi. See COERCITIO. upon between debtor and creditor (pactum de distm-
I u s coeundi. The right of assembly granted to asso- Izendo pignore), it was later considered to be self-
ciations (collegia). understood unless expressly excluded by agreement
P. W. Duff, Personality in R . law, 1938, 94. (pactum de non distrahendo pignore) .-Syn. ius ven-
I u s cognationis. A relationship based on cognatic ties- dendi.-D. 20.5 ; C. 8.27; 28.
(cognatio). Messina-Vitrano, Per la storia del id., 1910; Ratti, StUrb
I u s cognoscendi. See COGNOSCERE. 1 (1927) ; De Villa, StSas 10 (1938) ; BartoSek, B I D R
l u s commercii. A privilege granted to Latin colonies 51-52 (1948) 238; A. Burdese, L e x commissoria e ius
to have contractual relations, to trade with Roman vendendi, 1949, 131.
citizens on equal terms, and to use the forms of Ius divinum (iura divina). Laws created by the gods
contract available to Roman citizens. By a special and governing the relations of men to the gods. Ant.
act, the ius commercii could be conceded to other ius humanum (iura humana). A similar, but not
categories of foreigners, to communities, and even to identical distinction, is fasius.--See FAS, RES DI-
individuals. T h e technical term for iz~scommercii is V I N I IURIS.
commercium.-See COMMERCIUM. Berger, R E 10, 1212; Orestano, B I D R 46 (1939) 195.
528 ADOLF BERGER [TRASS.
AMER. PHII.. SOC.
I u s dominii. The right of ownership. The term is tages when acting as claimant in a trial or against an
rare in the Digest, more frequent in Justinian's Code. insolvent debtor, when taking a vacant inheritance or
-See DOMINIUM. seizing private property for one reason or another.
I u s domum revocandi. See IUS REVOCANDI DOMUM. The complex of rules which determine the rights of
I u s dotium. Legal provisions concerning the dowry.- the fisc is the ius f i s ~ i(ius fiscale).-"The norms of
D. 23.3; C. 5.12.-See DOS. fiscal law cannot be overthrown by private agree-
I u s ecclesiasticum. (With Justinian.) Church laws. ments" (D. 2.14.42). Syn. privilegia fix;.--D. 49.14;
Ad ius ecclesiasticurn pertinens = governed by church C. 7.73; 10.1 ; 5 ; 9.-See FISCUS,BONA VACANTIA,
laws.-See ECCLESIA. CADUCA.
I u s edicendi. The right of the higher magistrates to Wieacker, Fschr Koschaker 1 (1937).
proclaim edicts (edicta) to the people. The contents I u s fruendi. See U ~ U ~ F R U FRUCTGS.
~TU~,
of the edicts were manifold, according to the sphere I u s Flavianum. A collection of forms of civil actions,
of functions of the magistrate. The ius edicendi compiled about 300 B.C. by Gnaeus Flavius, a freed-
was an important element in the development of the man, secretary of the jurist Appius Claudius.
law since the edicts dealt primarily with legal and Danneberg, R E 10; Cuq, D S 3, 745; Gabrieli, N D I 6 ( s . ~ .
procedural problems and introduced innovations into Flavio Gneo) ; Zocco-Rosa, N D I 7 ; E. Pais, Ricerche
sulla storia e sul dir. rom. 1 (1915) 215.
the existing law.-See EDICTA,EDICTUM, IUS HONO-
RARIUM. I u s gentilicium. The law concerning the gentiles
Kipp, R E 5, 1940; Louis-Lucas and A. Weiss, D S 2, 457. (members ,of a gens) .-See GENS,G ENTILES.
Bernhoft, Z V R 36 (1918), 99.
I u s emphyteuticum (emphyteuticarium). See EM-
PHYTEUSIS.-C. 4.66. I u s gentium. Apart from the meaning, rather rare in
Cascio, AnPal 22 (1951). the sources, that the ius gentium is the law governing
I u s est a r s boni e t aequi. "Law is the art of finding the relations of Rome with other states (see IURA
the good and the equitahie." This unique definition BELLI, LEGATI,FOEDUS,RECUPERATORES, etc.), the
of ius in the legal sources is expressed in the initial term appears frequently in juristic sources in a some-
text of the Digest (D. 1.1.1 pr.).-See AEQUITAS, what confused picture. On the one hand, it is linked
B O N U M ET AEQUUM, IUS (Bibl.).
with ius naturale, or at least with the naturaiis ratio
Arnb, A T o r 75 (1939/40) ; Riccobono, Quaderni di Roma which dictates the same law to all peoples. This
1 (1947) 32; idem, B I D R 53-54 (1948) 5 and AnPal 20 results from the definition given by Gaius, D. 1.1.9,
(1949) Biondi, Scr Ferrini (Pavia, 1946) 209; v. Liib- "what naturalis ratio introduced among all men is
tow, Z S S 66 (1948) 578; P . Koschaker, Europa und das observed by all peoples and called ius gentium, as the
rom. Recht, 1949, 334; A. Carcaterra, Justitia nelle font;,
Bari, 1949, 42; Biondi, Ius 1 (1950) 107; F. Schwarz, law applied by all peoples." Gaius thus gives the
ArCP 152 (1952) 214. term the sense of ius ornniuttz gentizwz which there-
I u s eundi. See ITER,ACTUS,VIA. fore is not opposed to the Roman law proper since
I u s ex scripto (ex non scripto). See IUS SCRIPTUM. the Romans are included among all peoples. Gaius'
I u s exilii (exulandi). The term in literature for the definition was fully adopted by Justinian in his Insti-
possibility given a person threatened by the death tutes (1.2.1) with a confusing introduction which
penalty in a criminal trial to avoid the capital sentence treats ius civile and ius gentiuvz as synonyms. The
by voluntarily leaving Roman territory.-See EX-
ius gentium is also linked with izts naturale in other
ILIUM. texts, the genuineness of which is rather suspect, how-
Berger, OCD 353; Arangio-Ruiz, Storia6 (1949) 81; Giof- ever. O n the other hand, ius gentizcln appears in
fredi, S D H I 12 (1946) 191 ; {dent, Archivio pcnalc 3 quite another shape as the product of the political
(1947) 428. and econonlic growth of the Roman state. Contact
I u s experiri. See EXPERIRI. with foreign territories in the Mediterranean basin
I u s extraordinarium. A rare term in the juristic that were gradually conquered, comn~ercialrelations
sources (once in the Digest in a suspect text, D. with those nations and the necessity of considering
50.16.10, and once in the Code, 7.73.5). I t is linked their legal customs in Roman courts when transac-
with the C ~ G N I T I OEXTRA ORDINEM.See IUS NOVUM. tions were concluded in Rome, the juristlictional
The expression ius extra ordinem used sometimes in activity of the praetor prre~lrinzts,created expressly
literature does not occur in juristic sources. for the latter purpose ant1 given the power to recog-
I u s fetiale. The norms concerning primarily the sol- nize transactions which the Roman izrs civile (lid not
emn forms to be observed by the priests called fetiales recognize-all this promoted the developn~ent of a
in relations between Rome and other states.-See new legal system beside the forn~alistic itrs civile.
FETIALES. which was not accessi1)le to peregrines. The for-
De Ruggiero, D E 3, 71 ; C. Pl~illipson,Itttcritatioizcll I.ozu nlalisn~ of the ancient law hatl to 1)e sxcrificetl in
of Ancient Greece nird Kotne 2 (1911) 315. favor of the tlevelopment of international trxtle and
I u s (iura) fisci. The state treasury (fiscus) occupied the peregrines hatl to 1)e atlmittetl to Roman institu-
a privileged situation as creditor, with various advan- tions. The adnlission of the Greek langriage in the
VOL.43, PT. 2, 1 9 ~ 3 1 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 529
thoroughly Roman STIPULATIO is one of the most ment (supplere) or correct (corrigcrc) the esisting
characteristic of this development. That law proper utilitatem publicant (in the interest of
the new legal rules and institutions should be ex- the community, D. 1.1.7.1), i.e., by taking into con-
tended to transactions concluded between Roman sideration the exigencies of the developed legal and
citizens was a natural further step in the develop- economic life. A prominent jurist, Marcian, char-
n~ent,leading finally to a fusion of the two systems. acterized the ius honorarium as the viva vos iuris
It was particularly in the contractual field that the civilis (= the living expression of the citizen's law,
ius Bentiuln exercised its influence, primarily by D. 1.1.8). The ius honorarium which consisted pri-
strengthening the element of reciprocal confidence marily of procedural remedies, developed into a legal
(fdes) without which relations with foreigners were system parallel to the ius civile in the strict sense (see
hardly possible. The law of family and succession IUS CIVILE). In practice, it gradually prevailed be-
remained completely untouched. One common basis cause of its more simplified forms and its accessibility
for all applications of ius gentium in the juristic to substantive and procedural innovations demanded
sources could not be established. The intrusion of by the changing economic and social necessities.
Greek philosophical ideas, ius naturale and naturalis Within the framework of the ius honorarium as a
ratio, brought in a certain confusion which makes it whole the ius praetorium is the larger portion by
very difficult to separate what is classical from what virtue of the edictal and jurisdictional activity of the
is of later origin.-Inst. 1.2.-See IUS NATURALE praetors whereas the contribution of the aediles (ius
NATURALIS RATIO,P EREGRINI. aedilicium) is more modest. The ius praetorium was
Weiss, R E 10; Cuq, D S 3, 134; Longo, RendLomb 40 a decisive element in the development of the Roman
(1907) ; Bijgli, Beitrage zur lehre v o w i.g., 1913; Clark, law although it does not appear as a complete legal
Illinois Law Rev. 14 (1919-1920) 243; Schonbauer, Z S S system the whole field of law and although
49 (1929) 383; C. A. Maschi, La conceziorte naturalistica,
1937, 245; Lauria. Fschr Koschaker 1 (1939) 258; Kaser, it fluctuated somewhat as it was upon the
Z S S 59 (1939) 67; Lewald, Archeion Idiotikou Dikaiou 13 annual edicts of the praetors. In its final crystal-
(1946) 55; G. Lombardi, Ricerche in tema di i.g., 1946; lization (see EDICTUM PERPETUUM) the ius honora-
idem, Sul concetto di ius gentium, 1947 (Bibl. 3) ; De rium assumed the shape of a complex of procedural
Martino, AnBari 7-8 (1947) 107; Riccobono, AnPal 20
(1949) 17: Kaser, Das altrb.mische lus, 1949, 82; Frezza, which did change the structure the
NuovaRDCom 2 (1949) 26 (= R I D A 2, 259) ; Grosso, original legal institutions but which reformed their
R I D A 2 f1949) 395; Solazzi, ACIVer 3 (1951) 307. protective aspect in a way which sometimes produced
I u s gestorum. The right of certain higher officials in essential changes in the existing law.
the Empire (the time of Constantine) to make an Cuq, D S 3, 244; Hruza, Zum. rom. Amtsrechte, 1908;
official record of declarations of private individuals Frese, ZSS 43 (1922) 466; Betti, La creazione del diritto
nella iurisdictio del pretore, St Chiovenda, 1927, 67 ; Lauria,
or of documents presented to them. By this pro- Scr Ferrini (Pavia, 1946) 639; G. Segre ibid.; Stein-
cedure the validity of the acts was officially strength: wenter, Anzeiger Akad. Wien, 1946, no. 19; G. Grosso,
ened. Cf. IUS ACTA CONFICIENDI. Premesse generali a1 corso di dir. rom., 1946, 82.
H. Steinacker, Die antiken Grundlagcn der friihmittelalter- IUQ
honorurn. The right of a Roman citizen to stand
lichen Privaturkunde, 1927, 76. for office. Generally only free-born were admitted
I u s gladii. "The power to punish criminal individ- to magisterial
uals" (D. 2.1.3) with all kinds of punishment, the Weiss, R E 10.
death penalty included. In Rome it was the emperor I u s humanum (iura humana). 'A counterpart to ius
himself who exercises the right in capital trials. H e divinum. I t is created by men and it is protected
could delegate it to the supreme officials in the prov- by sanctions imposed by men. lts field is the gover-
inces (governors, legati) and to the prefects in Rome, nance of relations between man and man. The dis-
at first only in a specific Case, later generally.--Syn. tinction between ius and ius divinum ap-
potestas gledii. pears in the definition of marriage (see NUPTIAE)
De Ruggiero, D E 3, 532; H. Pflaum, Efsai sur 1 ~ spro and in the division of things into Yes divini et hulnani
curateurs equestres, 1950, 117.
iuris.
I u s habitandi. The right to dwell in another's house. Berger, RE 10, 1212, 1238.
I t may be based on a personal servitude (habitatio) Ius imaginum, The privilege of a noble Roman family
or on a lease contract (locatio conductio rei). to have the portrait masks (imagines) of the an-
I u s harenae fodiendae. The right (servitude) = to cestors of the family at the funeral of a
dig sand from another's sand-pit. deceased family member. Usually the masks were
I u s hereditarium. The rights of an heir (HERES)as exhibited in a shrine in the atrium.
opposed to the rights of a legatee. Iure hereditario Schneider-Meyer, R E 9, 1097; Courbeaud, D S 3, 412;
= by virtue of universal succession as heir. Bruck, Sem 7 (1949) 39.
I u s honorarium. The law introduced by the magis- I u s imperandi. See IMPERIUM. The term is used
trates who had the right to promulgate edicts (ius with regard to the father's (or master's) right to
edicendi) in order to support (adiuvare), supple- give orders to his son (or slave).
530 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
I u s in agro vectigali. The right of a lessee of an might claim exemption (excusatio) from public
ager zvctigalis. The lease of such a plot of land charges and from guardianship to which they were
belonging to a public corporate body (~nunicipiuln, called by law (tutela legitiwza). The most important
colonia) is the classical precedent of EMPHYTEUSIS. application of ius liberorul~zconcerned women. A
-See AGER VECTIGALIS. freeborn woman with three children and a freed-
Cascio, AnPal 22 (1951) 27. woman with four children (ius triuvz vel quattuor
I u s in re (aliena). A right in the property owned by liberorum) were freed froin guardianship to which
someone else, such as servitude, pledge, emphyteusis, women were subject (tutela mulierutn) and had a
supcrficies. Such rights impose restrictions on the right of succession to the inheritance of their chil-
exercise of the rights of ownership by the owner. dren. The women's ius liberoru~~z was applied even
The classical jurists do not use as technical either when the children were no longer alive.-C. 5.66;
the term itts in re in the meaning of ownership 8.58.-See ~ E N A T U ~ C O N ~ U L T UTERTULLIANUM.
M
(dowzinium) or the term ius in re aliena (familiar Steinwenter, RE 10; Cuq, DS 3 (s.v. liberorum ius) ;
in the literature) in the meaning explained above. Turchi, Atene e Roma 17 (1941) 333; Arangio-Ruiz, F I R
3 (1943) 71.
Arangio-Ruiz, AG 81 (1908) 361, 82 (1909) 417; Viley,
R I D A 2 (1949) 417. I u s mariti. Mentioned specifically in connection with
I u s (iura) ingenuitatis (ingenui). The political adultery when the accusation of the wife is made by
rights of a freeborn, such as izts sufragii, ius hono- the husband iure ~nariti.-See ADULTERIUM.
run*. De Dominicis, SDHI 16 (1950) 1.
I u s iniquum. See AEQUITAS. I u s militare. Military law, applied to soldiers both in
I u s intercedendi. See INTERCESSIO, TRIBUNI PLERIS. the field of criminal offences and military discipline,
I u s Italicum. The privileges granted non-Italian pro- as well as with regard to some institutions of the
vincial cities and communities by the emperor (from private law (testament) .-See MILITIA, MILITES,
the time of Augustus) through a special law (1e.r TESTAMENTU-M MILITIS.
data) by which they acquired the legal status of I u s militiae. See MILITIA.
Italian cities as developed in the last century of the I u s mixtum. A law originating from both a statute
Republic. The ius Italicu+zzcomprised various rights and a custom.
both of public and private character, such as self- I u s mortuum inferendi. See IUS SEPULCRI,INTER-
government, exemption from the supervision by the DICTUM DE MORTUO INFERENDO, RES RELIGIOSAE.
governor of the province, land ownership ex iure I u s multae dicendae. See MULTA.
Qttiritiztw, to which mere Roman institutions (wan- I u s naturale (ius naturae, iura naturalia). Natural
cipatio, usucapio) were applicable. law (laws). Unknown to Republican jurists, the
V. Premerstein, RE 10; Jullian, DS 3 ; Luzzatto, RIDA izds naturale is not considered by those of the Prin-
5 ( = M i l Dc Visscher 4, 1950) 79; Vittinghoff, ZSS 68 cipate a juristic conception denoting a special sphere
(1951) 465.
of law, a particular category of law, or a system of
I u s (potestas) iubendi. See IUBERE. legal norms. Nor do the occasional "definitions" of
I u s lapidis eximendi. See LAPIS. the ius naturale, found in the sources, give the picture
I u s Latii. Rights connected with the legal position of of a certain uniformity of the conception, although
colonies founded by the Romans as Latin colonies, the influence of Greek philosophy is evident. Strik-
and with the legal status of the citizens of such col- ing by its peculiarity is the explanation of the term
onies. The ius Latii could be granted individually given by Ulpian: "that which nature taught all ani-
to foreigners (peregrini) the legal situation of a mals" (D. 1.1.1.4)) followed by examples such as
Latin having been more advantageous than that of union of male and female, procreation and rearing of
other peregrines ; it was, of course, less favorable than the young. The saying has no juristic content at all,
that of a Koman citizen.-See LATINI. and did not get any by the repetition i r Justinian's
Steinwenter, RE 10; A. N. Sherwin-White, The Roman
Citizenship, 1939, 30, 103; Vitucci, DE 4, 442; F. Vitting- Institutes (1.2 pr.). Quite different is the definition
hoff, Rom. Kolonisation und Biirgerrechtspolitik (Abh. by Paul : "what always (at all circumstances) is just
Akad. Wiss. Mainz 1951, no. 14) 43. and right (quod semper est bonum et aequum)"
I u s legationis (legatorum). The rules governing the ( D . 1.1.11 pr.), but here the notion df an ideal law
position of, and the relations with; the ambassadors is expressed rather than what is the ius naturale
of foreign countries. The iz~slegationis is "sacred within a legal system. The connection with aequitas
(sacrum, sunctuwc) with all nations" (Cornelius is apparent also in several texts which speak of
Nepos, Pelop. 5.1 ; cf. D. 50.7.18).-See LEGATI.- naturalis aequitas. Elsewhere, the ius naturale is
Ius legationis is also the privilege granted to sub- identified with IUS GENTIUM a s the law which all
jugated cities to send embassies to Rome. nations observe. Both ius gentium and ius naturale
G. Lombardi, I1 coltcetto di ius gcittium, 1947, 105. are linked with naturalis ratio (natural reason) ;
I u s liberorum. Parents of several children enjoyed nevertheless on another occasion, with reference to
certain privileges, first introduced by the Augustan slavery, ius naturale is opposed to ius gentium inas-
legislation (LEXIULIA ET PAPIA POPPAEA) . Fathers much as naturali iure all men are born free, and it
VOL. 13, PT. 2, 19.531 E N C Y C L O P E D I C DICTIONARY OF ROMAK LAW 531
was the ius gentiuqn which introduced slavery (iure Riccobono, A C S R 2 (1929) 235; idem, Archiv fur Rechts-
gentittun servitus invasit, D . 1.1.4 = Inst. 1.5. pr.). uitd Wirtschaftsphilosophie 16 (1922/3) 520; idem, M i l
Coritil 2 (1926) 235; Chiazzese, AfiPal 16 (1931) 31; G.
Although those definitions may be considered of classi- Grosso, Problemi generali, 1948, 76; S. Riccobono, Jr., I1
cal and not of Byzantine origin (as has often been Circolo giuridico 20 (Palermo, 1949) 162.
assumed in recent literature), no one of them was Ius offerendae pecuniae. The right of a hypothecary
elaborated as a doctrine by the Roman jurists, whose creditor to offer the prior pledgee the sum due to
practical sense was centered more on the positive law, him by the common debtor. Thus the later creditor
its interpretation, and applicability or extension to the gained the priority in the hypothecary degree which
actual necessities of life. The mark "iure natural?' belonged to the pledgee whom he paid out.
attached to a legal institution or a decision by a jurist Ius ordinarium. The normal law applied in regular
means "by the natural order of things, by the reality proceedings. Iure ordinario = in the way of normal
of life," without any legal background. Combining an proceedings (ordo iudiciorunz) as opposed to the
earlier idea with Christian doctrines, Justinian found cognitio extra ordinem.--See IUS EXTRAORDINARIUM.
a new formulation of naturalia iura: "they are those Ius originis. See ORIGO.
which are equally observed by all nations, and are Ius paenitendi (poenitendi). A term used in litera-
somehox established by divine providence; they re- ture, but unknown in legal sources.-See PAENI-
main firm and unchangeable for ever" (Inst. 1.2.11). TENTIA.
This Justinian doctrine produced in literature the Ius Papirianum. See PAPIRIUS.
tendency to ascribe many, if not all, sayings involving Ius pascendi. The right (servitude) to pasture cattle
itcs naturale or the related locutions, as naturalis on another's property.
aeqttitas, naturalis ratio, etc., to Justinian's compilers. Ius patris. The right of the father of the family. I t
As a matter of fact, in a few passages retouched by is mentioned when the paternal power of the father
the compilers naturalis ratio was substituted by ius over his children enters into account. A specific use
naturale. A great majority of the pertinent texts of the term appears in connection with the father's
may be considered to be of classical origin, as recent, right to accuse his daughter of adultery iure patris.
comprehensive studies on all the expressions men- -See IUS VITAE NECISQUE, ADULTERIUM, IUS MARITI.
tioned have shown.-Inst. 1.2.-See AEQUITAS NATU- Iuq (iura) patronatus (patroni). The rights of a
RALIS, IUS, RATIO, IUS GENTIUM, NATURALIS LEX. patron over the person and the inheritance of his
Cuq, DS 3, 736; Longo, RendLomb 40 (1907) ; Goudy,
freedman.-D. 37.14; C. 6.4.-See LIBERTUS,
PATRO-
Trichotomy in Roman Law, 1910; F. Senn, De la justice NATUS, OPERAE LIBERTI, OBSEQUIUM.
et du droit, 1927, 76; Arnb, Atti Modena 10 (1926) 127; Ius perpetuum. A right analogous to ius emplzyteuti-
E. E. Hoelscher, V o m romischen cum christlichen Natur- curium, based on an irrevocable grant of agricultural
recht, 1931; Kamphuisen, R H D 11 (1932) 389 ; Albertario, land (belonging to imperial domains) to individuals
Studi 5 (1937) 277; C. A. Maschi, La concezione natura-
l i s t i c ~del diritto e degli istituti giuridici romani (Milan, for a rent (canon). I t is alienable.-Cf. EMPHYTEU-
Pubbl. Univ. Sacro Cuore, 1937) ; Orestano, Riv. intern. SIS, IUS I N AGRO VECTIGALI.
di filosofia di diritto 21 (1941) 21 ; G. Grosso, Problemi E. Bassanelli, La colonia perpetua, 1933; Levy, W e s t
generali del diritto, 1948, 98; De Martino, AnBari 7-8 Roman vulgar law, 1951, 43.
(1947) 107; L. Wenger, Naturrecht und das rb'm. R., Ius pignoris. See PIGNUS.
Wissensrhaft und Weltbild 1 (1948) ; E. Levy, Natural
law in the Roman period (Univ. of Notre Dame Natural Ius piscandi. The right to fish in the sea, harbors and
public rivers. I t is free to all.
Lam Institute Proceedings 2, 1949) 43 (reprinted in S D H I
15, 1949) ; H. Mitteis, ifber das Naturrecht, 1948; Wenger,
Ius pontificium. The laws governing the life and
Ius 2 (1951) 1; Bartosek, St Albertario 2 (estr. 1950) activity of the pontiffs of which they are both creators
492; R. Voggensperger, Der Begriff des i.n. i m rb'm. R .
and guardians. Monographs were written on ius
(Basel, 1952) ; Gaudemet, A D O - R I D A 1 (1952) 445.
Ius non scriptum (sine scripto). See IUS SCRIPTUM, pontificiunz by Fabius Pictor and Fabius Maximus
Servilianus. In their activity the pontiffs dealt often
CONSUETUDO.
with questions of the ius civile. Therefore it was
Ius novum. A term which is more frequently used said: "No one can be a good pontiff without knowl-
in the recent Romanistic literature than in the sources. edge of the ius ciwile" (Cic. de leg. 2.19.47) .-See
originates in senatusconsulta and imperial constitu- Berger, RE 10; Stella-Maranca, AnBari 1927.
tions as opposite to the law of the Twelve Tables. Ius populi. The interest of the people.-See ACTIONES
In the literature ius novum is referred to the imperial POPULARES.
law arising from imperial legislation and jurisdiction Ius possessionis. Occurs in a few texts in which it
and the practice of the cognitio extra ordinem. The denotes either the right to take possession of an-
latter meaning is that of the term ius extraordinarium other's thing or the rights connected with the exercise
which occurs only once in a text not free from sus- of possession.
picion (D. 50.16.10). In Justinian's language ius Vassalii, AnPer 28 (1914) 40; Solazzi, BZDR 49-50
ADOLF RERGER
courageous in his interpretations, he appears fre- Z S S 52 (1932) 477; Polak, Symbolae van Oz8cn, i946,
remained unpublished during his lifetime were edited the question of who owns a quarry discovered in a
after his death (Posteriores, sc, libri) by a n unknown land after it had been sold without the seller's knowing
writer and then in a shorter epitome by Javolenus. of the quarry's existence. Generally stones are con-
His father, Pacuvius Labeo, was also a jurist. sidered as proceeds (fructus) of the land.
Jors, R E 1, 2548, no. 34; Orestano, N D I 7 ; A. Pernice, Lapillus. See rAcTus LAPILLI.
Labeo, Rdnt Prizratrecht i m ersten lahrh. dcr Kaiserzcit, Lapis. A stone of any kind ( a building stone, a mile-
1 (1873); Grosso, Quadenti di Roma 1 (1947) 335: stone, a boundary stone, see TERMINUS, even a gem,
Berger, B I D l i 14 (1937) 96; Santi di Paola, R I D R 8-9 see GEMMA). IUS LAPJDIS EXIMENDI = the right
(1948) 277; Schulz, Ifistory of Rontnn lcqal science
(1946) 207 (servitude) to take stones from another's land (stone-
Lacus. '2 lake. "It has water permanently" (D. pit) .-See LAPIDICINA.
43.14.1.3). Xavigation on public stagnant waters, Laqueus. A rope.-See STRANGULATIO, SUSPENDERE.
Pfaff, R E 4.
MICILIUM.
I'l,I..ZI I N I I I U S 1'UBI.IC'IS.
Vitucci, D E 4.
Laedere. T o injure, to hurt, to damage. "He who The term is also applied to judicial remetlies granted
exercises his right injures no one (ncmincln laedit)." 1)). the praetor, e.g., a restitutio in integvurtz.
"Through agreements Ibetween private individuals Largitas. (Frequent in imperial constitutions.) Lar-
rights of other persons cannot be impaired7' (D. gess, giving a gift, granting a benefit. Syn. largitio.
Laelius Felix. ,A jurist of the first hall of the second Largitio imperialis. A benefit, privilege, grace be-
post-Christian century, author of a little known com- stowetl by the emperor.-See COMES S A C R A R U M I.AR-
Rergcr, IZE 12, 416. Largitionalis. Connectetl with the state treasury, fi scus
Laesio enormis. A non-Roman term which refers to (in the later empire). The term refers to all kinds
the sale of :I tllillg for which the buyer pait1 less than of taxes and inlposts paid to the treasury.
In Justi11i:in's (postclassical ?) law s ~ ~ cal isale could Empire; it is also called sarrac lar~itioncsas tlepend-
be rescintlc(1 at the requtst of the scller, but the ing upon the control ant1 clisposal of the emperor,
Lnfirrl~r min~rs,in which only the mutiicipal magis- L a u d a t i o funebris. A funeral oration. Such orations,
trates and members of the nlunicipal council (de- when delivered on behalf of a deceased official, were
crrrioncs) were rewarded with Roman citizenship. pronounced publicly (pro contionc) by a magistrate
Licrivain, U S 3, 9 7 9 ; Vitucci, DE 4, 4 4 2 ; Mommsen, atithorized for the purpose (loudatio publica) , whereas
/uristisrlrr S~.lrriftrrr3 (1907) 32. on behalf ,of a private person a lalrdatio was delivered
L a t r o (latrunculus). A robber, bandit, highwayman. 1)y a family member.
A person kidnapped by a latro remains free and Vollmer, R E 12, 9 9 2 ; Cuq, DS 2, 1399; De Ruggiero and
does not become his slave. H i s legal situation re- Barbieri, DE 4 ; E. Galletier, Pobsie frirriroire romninc,
1922; Crawford, CIJ 37 (1941) 17; Durry, Rezlrrc dc
mains unchanged, and the so-called ius postliiliinii philologic 16 (1942) 105.
which applies to Roman citizens who became prisoners
Laudatio. ( I n a criminal trial.) See LAUDATORES.
oi war, does not apply to hi111. I n the earlier law a
Laudatio Murdiae. A funeral oration ( o r perhaps
Iotr,o was treated like a thief unless his crime was only a dedicatory inscription on a tomb?) of the first
coti~l,inedwith a graver one (murder or use of vio-
post-Christian century, preserved on a tombstone.
lence. vis) . Later, robbery (lafrocinizcin) committed I t contains an important section concerned with the
by a group of armed bandits became a special crime testament of the deceased woman, Murdia.
involving the death penalty by hanging (see FURCA). Recent edition: Arangio-Ruiz, F I R 3 (1943) 218 (Bihl.) ;
-See GRASSATOR. Weiss, R E 1 2 ; Fluss, R E 16, 6 5 9 ; De Ruggiero and
De Ruggiero and Barbieri, D E 4 ; Diill and Mickwitz, Barbieri, DE 4 , 474.
R E Suppl. 7 (s.71.Strassetz~aub). Laudatio Turiae. A n extensive inscription half pre-
Latrocinari. T o commit a latrocinium. served with a lazrdafio funebris dedicated 1)y a hus-
Latrocinium. Highway robbery. band to his wife. The inscription contains precious
Pfaff, R E 1 2 ; Diill, R E Suppl. 7, 1239; Humbert and details about marriage, divorce, and the administra-
L6crivain. DS 3. tion of the spouses' property. The inscription was
Latrunculator. -4 military (police?) official charged written between 8 and 2 B.C.
with the running down of highwaymen (lafrones, Recent edition : Arangio-Ruiz, F I R 3 (1943) 209 (Bibl.) ;
grnssntorcs). The lotrrrncttlntores were stationed at Weiss, RE 12: Arangio-Ruiz, A N a p 60 (1941) 17; De
Ruggiero and Barbieri, DE 4, 4 7 4 ; Van Oven, R I D A 3
posts (stntioncs) throughout the country.-See STA- (1949) 373; Lemosse, R H D 28 (1950) 251; Gordon,
TIONARIJ. Anzer. J . of Archaeology 54 (1950) 223; M . Durry, Bloge
Latrunculus. See LATRO. firit?hrc d i i t c ~ttatrortc rom., 1950; Van Ovrn. T R 18
(1950) 80.
Latus. (IITithreference to relationship.) Cognntio ex
Hirschfeld, Kaiserliche Verwalt~lngsbeamte' (1905) 56. -Legati Augusti pro praetore could be sent by the
Legati Augusti (Caesaris). Imperial ambassadors emperor to senatorial provinces but only for a special
sent on a special mission. For Legati Augusti pro task.
V. Premerstein, R E 12, 1144; Bersanetti, D E 4, 527; So-
praetore, See LEGATI PRO PRAETORE. lazzi, A G 100 (1928) 3.
V. Premerstein, R E 12, 1144; Solazzi, A 0 100 (1928) 3. Legatio. The office of an ambassador, a group of dele-
Legati coloniarum. See LEGATI MUNICIPIORUM. gates entrusted with a mission. he head of the
Legati decem. Ten delegates of the senate acting as group = princeps legationis.-D. 50.7 ; C. 10.65.-
a council for a commanding general in the concluding See LEGATI, IUS LEGATIONIS, CONCILIA PROVINCIARUM.
of a peace treaty or in the organizing of a conquered Legatio gratuita. See LEGATIVUM.
territory. Legatio libera. An ambassadorship granted by the
V. Premerstein, R E 12, 1141. senate to a senator to facilitate his travel abroad
Legati iuridici. (In provinces.) Officials sent by the in personal matters. H e did not assume any official
emperor to provinces to assist the governors in their duties.
judicial activity. Their competence was primarily in A. v. Premerstein, R E 14, 1185; Jacopi, D E 4, 508.
the field of iurisdictio voluntaria (as the appointment Legativum. The expenses of an ambassador, primarily
of guardians), but they might be delegated by the for traveling (viaticum). They were reimbursed
governor to examine and judge specific cases as his
- - unless the ambassador assumed the mission at his
delegates.-see IURIDICI. own expenses (legatio gratuita) .
V. Premerstein, R E 12, 1149; Jullian, D S 3, 715. Legatum. A legacy. It is "a deduction from the
Legati legionum. Legates of senatorial rank as- inheritance" (D. 30.116 pr.) which according to the
signed regularly or only in war time to the legati testator's wish is given some person other than the
Augusti pro praetore who were commanders of le- heir. The legatee (legatarius) is legatarius partiarius
pions in the ~rovinces.in order to assist them in when a fraction of the inheritance is left to him (see
hilitary, adrnkistrative' and judicial activity. PARTITIO LEGATA) . Generally a legacy consisted of
Liebenam, R E 6, 1641; v. Premerstein, R E 12, 1142, 1147. a sum of money or one or more objects individually
540 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
designated (res ,singulae) . A legacy in the form of Legatum instrumenti. A legacy of a house or land
legatum could be bequeathed only in a testament, with all necessary appurtenances. See INSTRUMEN-
and after the institution of an heir (heredis institutio) TUM,INSTRUCTUM. I t was held generally that there
because it was the heir who was charged with the were two legacies, one of the house (land) and an-
payment of the legacy, and all dispositions preceding other of the appurtenances. Hence if the testator
the institution of an heir were void. A legacy termed sold the house without the instrumentuwt, the legacy
"after the death of the heir" was null. For further of the latter remained valid. There is in the Digest
details see the following items; for the form of a an abundant discussion about the extension of the
legacy called fideicowtwtissum, see FIDEICOMMISSUM. term instrumentum in connection with legacies. The
D. 30. 31, 32; 37.5; Inst. 2.20; C. 6.37; 6.43.-See pertinent problems concern the interpretation of the
ACT10 E X TESTAMENTO, CAUTIO LEGATORUM NOMINE, term from the point of view of the social and eco-
ADEMPTIO LEGATI, TRANSLATIO LEGATI, COLLEGATARII, nomic connection of the accessories (even persons,
CONCURSU PARTES FIUNT, ANNUUM, A N N U A B I M A slaves, professional craftsmen) with the principal
DIE, DIES CEDENS. thing. A legatuln of a fundus instructus was the
Weiss, R E 12, Humbert and Cuq, D S 3; De Crescenzio, broadest type since it embraced all that served the
N D I 7; F. Messina-Vitrano, L'elemento della liberalitd e owner's use (also food, provisions, furniture, and the
la natura del legato, 1914; U . Coli, Lo sviluppo della varie
forme di legato, 1920; Gioffredi, D E 4; Donatuti, B I D R like) .-D. 33.7.
34 (1925) 185; P. Voci, Teoria dell'acquisto del legato, Legatum liberationis. A legacy by which a testator
1936; C. A. Maschi, Studi sull'interpretazione dei legati. released a legatee who was his debtor, from the debt.
Verba e voluntas, 1938; B. Biondi, Sv,ccessione testamen- -D. 34.3. '
taria, 1943, 267; M. Kaser, D m altrom. Ius, 1949, 147;
v. Bolla, Z S S 68 (1951) 502.
De Villa, L a liberatio legata nel dir. classic0 e giustiianeo,
1939; B. Biondi, Successione testamentaria, 1943, 457.
Legatum alimentorum. See ALIMENTA LEGATA. Legatum ndminis. A legacy by which the testator
Legatum annuum. A legacy under which the legatee bequeathed a debt due to him by a third person to
had to receive every year a certain sum or a quantity the legatee.
of things during a period of time or for life. T h e B. Biondi, Successione testamenfaria, 1943, 448 ; Arias
legatee must have the capacity of acquisition at each Bonet, Rev. general legislacion y jurisfrudencia 187 (1950)
granted by the emperor in the form of a rescript to Leonina societas. See SOCIETAS LEONINA.
the effect that a child born in concubinage was to be Leontius. There were two Byzantine jurists by this
considered legitimate as if it were born in a valid name; one, a prominent law teacher in Beirut, son
marriage
- (iustae nuptiae). The institution is a of Eudoxius and father of Anatolius. both renowned
creation of Justinian. The privilege was granted at jurists; the other was the son of the famous Byzan-
the request -of the father if the mother was already tine jurist, Patricius. The second Leontius was a
dead or not worthy to be married. member of the commission which compiled the first
De Sarlo, SDHI 3 (1937) 348; H . Janeau, De l'adrogation edition of Justinian's Code (see CODEX IUSTINIANUS) .
des Iiberi natzcrales. 1947. The two Leontii were often confused.
544 ADOLF BERGER [ T R A X S . A M E R . PHII.. SOC.
Berger, R E Suppl. 7, 373; 375; idettl, Ottc or two LeotttiiQ, constitutions of which the jurist named a1)o~espeaks
BY= 17 (1944-19451, 1 (= B I D R 55-56, SlcPPl. Post- them as "standing in the place of a [e.L" (legis
Levare. T o levy, to collect and exact taxes. imperial enactments call them leges directly. I n the
Levis. Light, mild. Frequently used in connection later Empire a new distinction arises. imperial
with crimes and punishments (crime%, dclictuw:, laws are opposed, as leges to irrra( = the la,,.s origi-
POena, castigatio, co'rcitio) indicating the minor nating frOll7 other sources). But the tern1 leycs often
gravity. Analogous is the use of the adverbs levizts, refers to the law as a whole without respect to its
icvitcv, in particular when a milder punishment is so,rc,s, The study of law or the knowledge of law
recommended. is expressed by legitnz scienfia, legztiit evuditio, and
Levis culpa. See CULPA LATA. of the jurists of the classical period Justinian speaks
Lex (leges). The primary meaning of lex is that of as l e g z m auctores, pvtidentes, and the like. Even
a statute, law, passed in the way legally prescribed religious norms appear as / e x , as l c x Jridaica, l c x
by the competent legislative organs. According to Cat]zolica. The intrinsic idea of a I t x as a binding
an early definition lex is "a general the rule for the whole people or the people of a smaller
people ( P o P ~ l u s )o r of the plebeians (Plebs) passed territory (ler ~ ~ z u n i c i p a l i sappears
) in the iti~plica-
upon the proposal of a magistrate" (Capit0 in tion of [ex as a legal provision created within the
A'oct. A t t . 10.20.2; Gaius Inst. 1 . 3 ) . The definition sphere of private relations between individuals. ~ l ~ ~
embraces legislative acts of the popular assemblies will, expressed either in a unilateral act or in I)ilaternl
(coi~zitia)as well as those of the plebeian gatherings agreements (contracts), gives rise to legal ties lie-
(concilia plebis) for the enactments of which a sPe- tween the parties involved. \tTith reference to trans-
cia1 term is coined, plebiscita. The distinction is still act;ons, as, e.g,, len- venditionis, ~ocationis, dollationis,
maintained by the jurist Gaius who ( 1 . 3 ) limits the etc., lex is a particular clause of the transactioll in
term lex 'Iwhat the people order and question, a condition imposed upon the party who
reserving plebiscituw to "what the plebs orders and is interested in, or receives profit from, trans-
decrees." These enactments by the whole people or action. The meaning of a condition appears clearly
by a part of it are covered by the term leges fiublicae. in phrases with ea lege zlt, as, for instance. when
According to the Roman conception "the strength of somebody donates a slave on the condition pa legr z t f
a statute is commanding, forbidding, 1)ermitting~Pun- ,,tanl,,;ttatt,r, i.e., that the slave Ile manumitted. I n
ishing" (D. 1.3.7). Statutes are designated I)Y the the following presentation types of statutes or groL1I)s
gentile m m e the proposer (either the of laws referring to the same subject matter are noted
a . p a e t o r , a tribune of the plebs) or Proposers (both under "LEGES," while specific statutes appear under
Corfzelia, Jltlin, Senzpronia. A characteristic feature TIATIO LEGIS, ROGATORES, L E G I T I M U S , FRACS I,EG,
of the leges p ~ h l i c a eis that they never cover a broad FACTA, M E N s LEGIS, RATIO LEGIS, ~ O L U X T A SLEGIS.
legal field. Thus there never was a law concerning Weiss, R E 12; Cuq, D S 3 ; G. Longo, N D I 7 ; Treves.
the Roman constitution as a whole, or the private law O C D ; Hesky, W i e n e r Studien 1902, 541; Rotondi, Legcs
or any division thereof, such as obligations, succes- publicae populi romani (Enciclopcdia giuridica italiana
1912) ; Peterlot~go, Lr.r ttel dir. rotn, classico e i~cllti
sion, etc. The leges publicae dealt with one single lcgislazio~~cgiustittiaitra, S t i n ~rzctiroria di R. Jlirhcls,
topic within any area of legal life. As the items Padova, 1937; Arangio-Ruiz, L a rPgle de droit et la
imn~ediatelyfollowing and the subsequent selection loi datls l'atttiquiti classiquc, L'Egypte conte~~lporoirte,
of more interesting laws show, the statutory enact- 1938 (= Rariora, 1946, 231) ; F. v. Schwind, Zzrr I;rn,qc
nlents were concerned with popular assemblies atld der Publikation (1940) 21, 145; Cosentini, Carattere della
voting, magistracies in Rome and the provinces, the lcyislazione contiziale, AG 131 (1944) 130. For statutes
of lesser importance omitted in the following list see Lc.r,
senate and senatorial privileges, the priests and their R E 12 (Weiss, Berger) and Suppi. 7 (Berger) ; Cuq, DS
duties, international relations, Roman citizenship, the 3 ; Rotondi, Legcs pirblicac (see above) and additions in
provinces, municipalities and colonies, agrarian prob- Srritti 1 (1922) 411.
lems, food supply, luxury, associations. and select Leges agrariae. Statutes concerned with the distri-
questions of private law like guardianship, slaves, bution of public land (AGER PUBLICUS) which from
succession, interest, civil proce(Iure, and penal law the earliest tinles was considered state property.
anti procedure, etc. With the progress in the devel- Through g r a t u i t o ~ ~assignment
s (ADSIGNATIO) plots
opnlent of the law, is also referred to laws emanat- of land were given to individuals or groups of citizens.
ing frorn other sources that have hinding force for The Roman agrarian legislation is as old as Roman
all, such as the edicts of the praetors, and decrees of history, since the earliest assignment of land to the
the senate, although in discussions on the sources of people is referred to the founder of Rome, Romulus.
law the leges sensu stricto, mentioned before, are dis- l l o r e than forty agrarian laws of the time of the
tingllished from the others. With regard to imperial Tiei)~tl)licare known. some of then1 with the name of
VOL.4 3 , PT. 2, 1953) ENCYCLOPEDIC DICTI(3NARY OF ROMAN LAW 545
their proposers, some simply as lex (agraria). A Leges comitiales. See LEGET ROGATAE.
group of leges agrariae is connected with the founda- Leges consulares. Statutes proposed by a consul.
tion of new settlements (COLONIAE).Political con- Leges (lex) contractus. ( I n private law.) Applied
siderations exercised a great influence on the agrarian to all transactions between ~ r i v a t eindividuals with
legislation, radical agrarian reforms were often intro- regard to particular provisions of a specific contract.
duced at the expenses of the actual possessors who According to a saying of the jurist Ulpian (D.
were deprived of their land, held through generations 16.3.1.6) "contracts receive a law (legem) by agree-
bv inheritance. on behalf of Door citizens to whom it ment (ex conventione)," which means that what is
was assigned. Important agrarian legislation falls in agreed upon by the parties to the contract becomes
the period of the tribunes Tiberius Sempronius Grac- lqw between them. I n this meaning lex is applied
chus (133 B.c.) and Gauis Sempronius Gracchus to various types of transactions (mancijatio, venditio,
(123-122 B.c.). Until 44 B.C. some twenty agrarian locatio, depositum, donatio) . I n public administra-
laws were passed, whereas only two laws are known tion leges contractus is used of contractual provisions
from the first century after Christ, the Lex Cocceia set by the magistrates in transactions concluded with
(under the emperor Nerva, 96-98) being the last. private in the interest of the state, such as
I n Justinian's Digest two citations of a lex agraria leases (leges locationis), sales (leges venditionis),
appear, both in connection with the removal of boun- and the like. Since such transactions were primarily
darv stones (termini motiol. The notices on the in the competence of the censors, literary sources often
earliest agrarian legislation are often not reliable. speak of a lex censoria (see LEGES CENSORIAE) with
I n an inscription a LEX AGRARIA of 111 B.C. is pre- regard to rules imposed by the censors in such agree-
served. ments. The term lex dicta also occurs on such
Vancura, R E 12; De Ruggiero, D E 1, 733; Humbert, D S occasions.
1 (agrariae I . ) ; Pasquali, NDI 1 (agrariae I.) ; A. Ste- Weiss, R E 12, 2317; Cuq, D S 3, 1113.1116; V . A. Geor-
phenson, Public lands and agrarian laws of the R . Republic gescu, Essai sur l'expression lex contr., Revista clasica 8
(Baltimore, 1891) ; G. Rotondi, Leges publicae pofuli ro- (Bucharest, 1936) ; idem, Essai d'une the'orie gCitPrale des
mani, 1912, 94 (Bibl.) ; Corradi, St. ital. di filol. clas., leges privatae, 1932; Buckland, R H D 17 (1938) 666.
1927; Terruzzi, AG 97 (1927) ; J. Carcopino, Autour Leges datae. Laws issued by higher.magistrates under
des Gracques 1928; Cardinali, Hist 7 (1933) 517; Balogh,
ACRVcr 2 (1951) 335. the Republic, later by the emperor, for communities
Leges caducariae. Statutes which introduced inca- on the occasion of their incorporation into the state.
pacity of certain persons to take under a will and They are not voted in popular assemblies, unlike the
so-called caduca (inheritance becoming vacant be- leges rogatae.-See LEX MUNICIPALIS TARENTINA.
Weiss, R E 12, 2317; Cuq, D S 3, 1119; De Villa, N D I 7 ;
cause of the incapacity of the instituted heir). The McFayden, L.d. as a source of imperial authority, Wash-
most important leges caducariae are LEX JULIA ET ington Univ. Studies, 1930.
PAPIA POPPAEA , and LEX I U N I A NORBANA.-See L e g r s datae. (In the provinces.) Charters given to
CADUCA (Bibl.). provincial cities making them free (CIVITATESLI-
Besnier, R I D A 2 (1949) 93. BERAE) . They were revocable by the authority which
Leges censoriae. Conditions imposed by the censors granted them or by the legislative bodies in Rome.
in contracts concluded with tax-farmers (PUBLICANI) Leges d e censoria potestate. Laws passed by the
or collectors of other public dues as well as in sales conritia centuriata every five years investing the cen-
or leases by auction through which state property was sors with their magisterial power.-See CENSORES.
alienated or leased.-See LEGES CONTRACTUS, LEX Leges d e imperio. Under the Republic the investment
Cuq, D S 3, 1117; Plachy, BIDR 47 (1940) 91. was achieved by a statute passed in the curial as-
Leges censui censendo. See CENSUS. sembly (lex curiata). Under the Principate the
Leges collegiorum. Statutes of associations to which sovereign power is transferred to the emperor (prin-
IMPERIUM.
Leges coloniarum, (de coloniis deducendis), munici- Rosenberg, RE 9, 1206; Siber, ZSS 57 (1937) 234; Mes-
pales (municipiorum). Statutes concerning the con- sina-Vitrano, St R o i ~ f a i ~3t e (1930) 253.
stitutional organization of a colony (COLONIAE) or of Leges decemvirales. See LEX DUODECIM TABULARUM.
a n~unicipalityin Italy or in a province.-See LEX Leges dictae. (From Eegeln diccre.) A conception
COLONIAE GENETIVAE IULIAE, LEX MUNICIPALIS TA- common to both private and public law. With ref-
RENTINA, M U N I C I P I U M . erence to private persons they comprise dispositions
Kornemann, RE 4, 577. settled in a last will or a contract by which a certain
546 ADOLF BERGEli [TRANS.
A M I C R . PHII..
SOC.
legal situation or character is i~nposetlon a thing by L e g e s regiae. Laws attributed to the kings of Rome,
its owner. One also speaks in such cases of lex srrae Komulrrs, Nunla I'ompilins, and their successors.
rei dicta. Legcs dictae is used also with regard to They are priiiiarily-concerned with sacral law. Their
clauses settled in a contract concluded by the cen- existence is highly clttestionable, although according
sors on behalf of the state; see LECES CENSORIAE, to tradition the so-called Ills l'apirianl~~rais supposetl
LEGES CONTRACTUS. Finally, leges dictae are the to have been a coliectio~i of the Iccqis regiar.-See
rules imposed by the emperor in the administration PAPIRIUS.
of his private property. Steinwenter, R E 10. 1285 ; Bibl. ; G. Rotondi, Leycs pttlrli-
Leges divinae (himanae). See IUS DIVINUM-HU- cae pop. R0112. 49; E. Pais, Kicerche sulla storio e sul dir.
piri~lrl. tli Roirrtr 1 (1915) 243; Carcopino, Me'l. d'arrlri-
MANUM. ologie et d'hist. dc I'Ecolr frotic. de lioine 54 (1937) 341;
Leges edictales. Laws emanating from imperial edicts. Kaser, Dtrs altrdntist~hcItis (1949) 43; C. W. Westrup,
-See EDICTA PRINCIPUM. Irrtroductioii to ctrrly R. low, 4, 1 (1950) 57; Coli, S D H I
Leges frumentariae. Laws concerned with the dis- 17 (1951) 111.
tribution of grain.-See F R U M E N T U M , FRUMENTATIO,Leges rogatae. Statutes which are passed by vote of
L E S SEMPRONIA FRUMENTARIA, LEX CLODIA F R U M E N - one of the popular assemblies upon the proposal
TARIA. (ROCATIO LEGIS)by a higher inagistrate.
Syn. lrges
Rostoivzew, R E 7, 172; Cardinali, DE 3, 229; Humbert, coirtitiales. Ant. le!gcs datae.
PS 2 (s.7,. fruiit I.) ; Van Berchem, Les distributions de G. Rotondi, Scritti 1 (1921) 1 ; Cosentini, AG 131 (1944)
1111: ci la pllbe romaine sous I'Empire, Genhve, 1939. 130.
L e g e s geminae (geminatae). I n the literature the Leges Romanae barbarorum. Called in the litera-
excerpts from juristic writings or imperial consti- ture the codifications inade for the use of the Roman
tutions which are preserved twice in Justinian's codi- population in the territory of the former Western
fication are so called. Despite Justinian's order to Roman Empire after its decay.
avoid repetitions there is in the Digest a considerable Berger, R E 12, 1185.
amount of leges gelninae derived from the works of Leges sacratae. Laws for the violation of which the
the same author or different authors. offender is outlawed (SACER). The statutes on the
May, M i l Gc'rardir~,1907, 399; F . Schulz, Eittfiihru?zg ir~ inviolability of the plebeian tribunes fall in this cate-
tios S)'l~rdirrrrldcr Digestert, 1916, 45. gory.-See LEX ICILIA,LES VALERIA HORATIA, SACRO-
Leges generales. I n the later Empire imperial enact- SANCTUS, SACER.
nlents of a general character. Lengle, R E 6A, 2461 ; Cuq, D S 3, 1173 ; Niccolini, Hist 2
Leges imperfectae. See LEGES PERFECTAE. (1928) ; Groh, St Riccolror~o2 (1935) 5 ; T. Altheim, L c . r
sacrata (Amsterdam, 1940).
Leges iudiciariae. Statutes concerned with the organi- Leges saeculares.
The term occurs only in the title
zation of the courts and judicial procedure.-See
of the so-called LIBER SYRO-ROMANUS.
L E S AURELIA.
Leges saturae (per saturam). Statutes dealing with
Llcrivain, D S 3 (s.v. i~idiciariaeI.) ; Fraccaro, RendLomb
52 (1919) 335. heterogeneous subject matters. Such statutes were
forbidden in the earlier law. The prohibition was
Leges
- latae. See LEGES ROGATAE.
renewed by the Le.v Caecilia Didia of 88 B.C.
Leges lucorum. Sylvan statutes. Some of then1 are
Leges sumptuariae. See SCMPTCS.
preserved in inscriptions. E. Giraudias, Etudes kist. sur les lois sumptuaires, 1910.
Arangio-Ruiz, F I R 3 (1943) 223.
Leges tabellariae. Statutes referring to voting in
Leges minus q u a m perfectae. See LEGES PERFECTAE.
.-See
popular assemblies through tablets (TABELLAE)
L e g e s municipales (municipiorum). See LEGES CO- LEX CASSIA, GABINIA, MARIA, PAPIRIA.
LOXIARUM. Humbert and Ucrivain, D S 5, 5.
Leges perfectae. Statutes which forbid certain trans- L e g e s tribuniciae. Statutes proposed by plebeian
actions with the sanction that acts performed in viola- tribunes.
tion are void. Ant. leges ittzferfectae = laws without Weiss, R E 12, 2416; Cuq, DS 3, 1174.
any sanction at all. There is also a category of leges L e g e s viariae. See VIAE.
ttrinlrs quattt ferfectae which threaten only the vio- L e x Acilia d e intercalando. (Of 191 B.C. on inter-
lator with a penalty, but do not invalidate the act calary days.) See INTERCALARE.
itself.-See SANCTIO. Berger, R E Suppl. 7, 378; G. De Sanctis, Storia dei Ro-
F. Senn, Leges perfectae, etc., 1902; G. Baviera, Scritti rnani, 4, 1 (1923) 378.
girrridici 1 (1909) ; Gioffredi, Archivio pertalc 2 (1946) L e x Acilia repetundarum. (123 R.c.) This is one
177.
of the best known statutes on REPETUNDAE because
L e g e s publicae. Laws passed by the vote of the people it is preserved in large part in an inscription which
in a popular assembly or by the plebs in a plebeian as- is generally considered to be the L e x Acilia.
sembly. Syn. leges comitiales, leges rogatae.-See Berger, R E 12, 2319 (Bibl.); Kleinfeller, R E lA, 605;
LEX, LEGES ROGATAE. Riccobono, F I R 1' (1941) 74; De Ruggiero, DE 1, 41;
Gioffredi, S D H I 13-14 (1948) 59. E. H. Warmington, Remoirls of atzcier~t Latin 4 (1940)
VOI..43, I.T. 2 , I V S ~ ] ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 547
316; Fraccaro, IZctldL-otrl6 52, 1919; Chroust and Murphy, Vancura, RE 12, 1182; Riccohono, FIR 1' (1941) 102; L.
Notre Ilalne Luzefjrr 24 (1948) 1 ; Sherwin-White, JRS Zancan, Agrr public.ats, 1935 ; Bozza, La possessio dcll'ager
Lex Aebutia. (Of uncertain (late, between 199 and Latirc 4 (1940) 370; Kaser, ZSS 62 (1942) 6.
126 B.C. or even later.) Connected with the reform Lex Alearia. (204 H . c . ? ) Prohibited with
of the civil procetlure. It abolished the LECrs AC- dice. The name of the proposer is unknown.-See
TIONI~S-exceptfor the centumviral court and in the ALEA.
case of D A M N U M I N PECTUM-and introduced the for- G. Kotondi, Leyes pub[. pop. IZor~z.1912, 261.
mulary ~rocedure. The reforni was completed by Lex Anastasiana (leg= Anastasianae). Justinian
two statutes of A ~ ~ g u s t u(lcges
s Iuliae iudiciariae). uses the name lcx Anastasiana for certain important
The i\el,utian reforill served to generalize the formu- constitutions of the emperor Anastasius (491-518).
lary procetlure which was doubtless known earlier rZccording to one of them the cessionary of a creditor
and practiced in trials between foreigners.-See FOR- could not denland from the debtor more than he
MULA,C E N T U M V I R I . himself paid to the creditor. See crsss~o. Another
Berger, R E Suppl. 7 (Bibl.) ; G. Longo, ArDI 7, 829;
innovation of Anastasius was the emancipation of a
Radin, TldLR 22 (1947) 141 ; Kaser, St Albcrfario (1952)
person from paternal power by means of a rescript
3. of the emperor and the adniission of emancipated
Lex Aebutia. ( O n extraordinary nlagistracies, 2hout brothers and sisters to an intestate inheritance equally
150 B.C. Anyone who proposed the institution of with those not emancipated.-See REDEMPTOR LITIUM.
an extraordinary magistrate could not himself be Ferrini, NDI 7 (legge A , ) .
elected to that office. A later lex Licinia of un- L~~ ti^ sumptuaria, (71 B.c,) ~ i ~ the~ sums i ~ ~ d
known date dealt with the same matter. that could be spent for banquets and prohibited (with
G. Rotondi, Leyes p~~blicaepop. Rom., 1912, 290. some exceptions) magistrates and magisterial candi-
L e x A e l i a S e n t i a . (A.D.4.) C o m ~ l e t e d t h e r e s t r i c - dates frornaccepting invitations to banquets.-See
tions on nianumissions introduced by the LEX FUFIA SUMPTUS.
CANINIA. I t prohibited any manumission to the Weiss, R E 12, 2324; Kiibler, R E 4A, 907; G . Rotondi,
detriment of the creditors of the slave's master and Leges pu61. pop Rom. 1912, 367.
fixed minimum age limits both for the manumissor Lex Antonia de Termessibus. (71 B.c.) Granted the
(twenty years) and the slave (thirty years). Ex- citizens of Termessus (Pisidia) the privilege of being
ceptions were admitted when the reason for the "free, friends and allies of the Roman people" as a
manumission was particularly justified and was ap- reward for help in time of war. The law is epigraphi-
proved by a special commission (consilium) ap- cally preserved.
pointed for these matters. Slaves manumitted against Weiss, RE 12, 2325; Heberdey, R E SA, 749; Riccobono,
the rules of the statute became LATINI IUNIANI,and FIR 1' (1940) 135 (Bibl.) ; Kaser, Z S S 62 (1942) 63;
in certain cases (previous conviction of a crime) they D. Magie, Rom. rule in Asia Minor 2 (1950) 1176.
received the lowest degree of freedom, that of dedi- Lex Antonia. ( O n dictatorship, 44 B.C.) Issued on
ticii.-~, 40,9.-see MANUMISSIO, DEDITICII EX LEGE the proposal of the triumvir Antonius, abolished the
AELIA S E N ~ I A . institution of the dictatorship.-See LEX VIBIA.
Leonhard, RE 12, 2321; Cuq, D S 3, 1127; Longo, NDI 7, L ~ A x puleia de maiestate. (About 103 B.c.) The
830; Schulz, Z S S 48 (1928) 263; A. M. Duff, Freedmelt first statute on C R I M E N MAIESTATIS.
ilt the early Romart Empire (1928) ; Acta Divi Augusti Berger, R E 12, 2325.
1 (1945) 205 (Bib1.1; Weirs, BIDR 51/2 (1948) 316
Lex Apuleia de sponsu. (Date not known exactly,
Lex Aemilia. ( O n censorship, 367 B.c.) Limited the after 241 B.c,) Introduced a kind of
duration of the censor's activity to 18 months. , among sureties (sjonsores, fideijro~nissores). Any
another's slave or domestic four-footed animal (quad- a last will or designated by the law. The appoint-
rupes pecus) or by damaging his property by break- ment by the magistrate = datio tutoris. A guardian
ing, burning or spoiling. The loss inflicted on the appointed in accordance with the lex Atilia was called
owner must be the result of a wrongful act (da~nnum TUTOR ATILIANUS.-Inst. 1.20.
iniuria datum ; iniuria is here synonymous with non Taubenschlag, R E 12, 2330; H. Kruger, Z S S 37 (1916)
iure), i.e., there must be no lawful excuse for what 290; Schulz, S t Solazzi, 1948, 451.
was done, as there would be, for instance, in the case Lex Atinia. O n stolen things (second century B.c.),
of justifiable self-defense or of an order of a magis- excluded RES FURTIVAE ( = subreptae) from usucapio.
trate. The damage must be physical and result -See SUBRIPERE.
directly from a corporeal act (corpore). Mere omis- Berger, R E 12, 2331; P. Huvelin, Le furtum, 1915, 255;
Daube, CambLJ 6 (1938) 217; M. Kaser, Eigentum urtd
sion creates no liability under the statute. The origi- Besitz, 1943, 95; Marky, B I D R 53-54 (1948) 244; F. De
nal provisions of the lex Aquilia were extended by Visscher, Nouvelles Etudes, 1949, 183; v. Lubtour, Fschr
the activity of the jurists and of the praetors to cases S c h u k 1 (1951) 263.
not considered by the law. The actio legis Aquiliae Lex Atinia. O n plebeian tribunes (102 B.c.), was con-
became available either as an actio utilis (quasi ex cerned with the admission of the plebeian tribunes to
lege Aquilia) or as an actio in factum "following the the senate.
model of the actio legis Aquiliae" (ad exemplum G. Rotondi, Legcs publ. populi Ronz. 1912, 330.
legis Aquiliae, D. 9.2.12) in cases lying far beyond Lex. Aurelia de ambitu. (70 B.c.) Introduced the
the original statute. I n Justinian's law it acquired a penalty of ten-year ineligibility for a candidate guilty
more general applicability, the strict rules of the lex of AMBITUS.
Aquilia having been superseded by larger conceptions Berger, R E 12, 2336.
with regard to the persons to whom it became accessi- Lex Aurelia iudiciaria. (70 B.c.) Broadened the
ble (not only to the owner of the damaged property hitherto exclusive privilege of the senators to be
as in the original law), the kind of damage and the judges in judicial trials by admitting persons of
degree of negligence on the part of the wrongdoer. equestrian rank (equites) and TKIBUNI AERARII.
A characteristic feature of the actio legis Aquiliae was Weiss, R E 12, 2336; Girard, Z S S 34 (1913) 303.
that the defendant who denied his liability had to pay Lex Aurelia. ( O n tribunes, 75 B.c.) Admitted former
double damages if condemned ; see LIS INFITIANDO. tribunes of the plebs to magistracies from which the
The second chapter of the lex Aquilia had nothing dictator Sulla had excluded them ; see LEX CORNELIA
to do with physical damage. I t gave the primary on tribunes.
creditor a remedy against a co-creditor (adstipulator) G. Rotondi, Leges publ. populi Rom. 1912, 365.
who fraudulently released the debtor from his debt. Lex Caecilia Didia. Renewed the prohibition of LEGES
-1nst. 4.3; D. 9.2; C. 3.35. SATURAE and the provision of trinundinum between
Taubenschlag, R E 12; Ferrini, N D I 6, 680; Longo, N D I the publication of a project of a statute and the vote
7, 831 ; C. H. Monro, Dig. 9.2 Ad Eegem Aquiliam (1898) ; on it.-See PROMULGARE, NUNDINAE.
E. Levy, Konkurrenz der Aktionen 2.1 (1922) 178; Ro- Liebenam, R E 4, 695; G. Rotondi, lor. cit. 335.
tondi, Teorie postclassiche sullJactio 1.A. (= Scritti 2,
411) ; Jolowicz. L Q R 38 (1922) 220; Kunkel, Z S S 49 Lex Caelia. See LEX CASSIA.
(1929) 161; J. B. Thayer, L e x A., Cambridge, Mass., Lex Calpurnia de ambitu. (67 B.c.) See AMBITUS.
1929; v. Beseler, Z S S 50 (1930) 25; J. Paoli, Lis cnfitiattdo Lex Calpurnia de legis actione per condictionem.
crescit, 1933, 84; Giffard, RHD 1933; Arnb, CentCodPav An early statute (later than LEX SILIA,after 204 B.c.)
1933; idem, B I D R 42 (1934) 195; Carrelli, R I S G 9
(1934) 356; Daube, L Q R 52 (1936) 253; Bernard, R H D which made the procedure of legis actio per con-
16 (1937) 450; De Visscher, Symbolas V a n Oven 1946, dictionem available for claims of a definite thing
307; Condanari-Michler, Scr Ferrini 3 (Milan, Univ. (certa yes).-See LEX SILIA, LEGIS ACTIO PER CON-
Sacro Cuore, 1948) 95; Daube, S t Solazci, 1948, 93; DICTIONEM.
Macqueron, Annules Fac. Droit d'Aix-en-Provence, 1950; Lex Calpurnia de repetundis. (149 B.c.) See REPE-
F. H . Lawson, Negligence in the Civil Law, 1950; Al-
banese, AnPal 21 (1950) ; Sanfilippo, AnCat 5 (1951) 127. TUNDAE, QUAESTIOKES PERPETUAE.
Berger, R E 12, 2338; Ferguson, J R S 11 (1921) 86.
Lex arae. See ARA.
Lex Canuleia. (445 B.c.) Permitted marriage (ius-
Lex Aternia Tarpeia. (454 B.c.?) This and a later ttcliz ~tlatrimonium)between patricians and plel~eians.
Lex Menenia Sextia (452 B.c.) established the high- Berger, R E 12, 2339 (Bibl.) ; Longo, N D I 7, 832; H .
est limits for fines imposed by the magistrates; see ' S ~ h e r ,Die plcbeischrn Magistratitrcr~,1936, 46.
M U L T A : two sheep and thirty oxen. .Another statute Lex Cassia. ( O n plebeians, 45 B.c.) Conceded their
dealing with the same suhject matter was the !ex Iulin atlmission (adlec!io) to the patriciate. A similar
I'trpiria. statute was the lcx Saenia of 30 R.C.
Lengle, R E 6A, 2454; Hellebrand, R E Suppl. 6, 1544. Sctimitlt, R E 1, 368 ; G. Rotondi, Lcgcs ptrbl. popttli l i o f r ~ .
Lex Atia. (63 B.c.) See Lex WMITIA. 1912, 426.
Lex Atilia. (Of the entl of the third century B.c.?) Lex Cassia. ( O n senators, 104 B.c.) Excltlcletl from
Dealt with the appointment of a guardian 1)y the the senate intlivitluals contleninetl or deprived of
competent praetor if no guardian was nominated in inzperium by popular vote.
VOL.43, PT. 2, 195.31 E N C Y C L O P E D I C D I C T I (3 I i A R Y O F R O M A N LAW 549
Lex Cassia tabellaria. (137 B.c.) Introduced the SbHeid 1920; idem, Z S S 42 (1921) 565, 43 (1922) 439 ;
secret ballot in jurisdictional matters dealt with by Alvaro d'Ors, Emerita (Madrid) 9 (1941) 138; Mallon,
the popular assenlblies except for cases of treason. ibid. 12 (1944) 1 ; Le Gall, Revue de philologie, 20 (1946)
138; De Robertis, AnBari 7-8 (1947) 175; Schulz, S t
This exception was repealed by the Lex Caelia (107 Solazzi (1948) 451 ; Wenger, Anzeiger Akad. Wiss. IViet~
B.c.). 1949, 245.
Lex censui censendo. See CENSUS. Lex commissoria. See C O M M I S S ~ R I A LEX.
Lex Cicereia de sponsu. (Date unknown, second cen- Lex Cornelia (Leges Corneliae). The following en-
tury B.c.?) i\ creditdr taking sponsores or fidei- tries, inasmuch as they refer to the legislation of the
prontissores as sureties (see ADPROMISSOR) had to dictator Sulla (82-79 B.c.), deal only with some of
proclaim publicly certain details of the debt and the his selected laws since several of the laws passed
sureties.-See LEX APULEIA DE SPONSU. under his dictatorship were repealed by legislative
\\'eiss, R E 3.4, 1855; G. Rotondi, Leges publicae pojitli enactments of the subsequent years. The attribution
Rom. 1912, 477; Appleton, Z S S 26 (1905) 34. of some laws to the dictator Sulla is not always
Lex Cincia. O n donations. ( A plebiscite of 204 B.c.) certain.
It limited gifts to a certain (unknown) amount. For Cornelian laws not mentioned below, see Cuq, D S 3,
I.arger donations were permitted only in favor of 1137; Rotondi, Lcges publ. populi Rom., 1912, 349.
near relatives and certain privileged persons (per- Lex Cornelia de adpromissoribus. (81 B.c.) Limited
sonae ewceptae). Gifts promised in violation of the the sum for which a person could assume guaranty
statute were not void, but the donor could oppose for the same debtor to the same creditor in any one
the c.vccptio legis Cinciae if he was sued for pay- year, to twenty thousand sesterces.-See ADPRO-
ment. .% special provision prohibited advocates from MISSOR.
accepting gifts from their clients in payment for their Cuq, D S 3, 1138; Rotondi, loc. cit. 362.
~~rofessional activity.-See DONATIO, ADVOCATUS, RE- Lex Cornelia de aleatoribus. (81 B.c.) Declared
PLICATIO LEGIS CINCIAE, EXCEPTAE PERSONAE. valid all bets made on athletic games iri which com-
Leonhard, R E 5, 1535; Ascoli, N D I 5, 188; Longo, .VDI petition was considered a bravery (virtlts) . Stipu-
7, 834; Rotondi, loc. cit. 261 ; Radin, R H D 7 (1928) 249; lations for gambling debts, however, were void.
Appleton, R H D 10 (1931) 423; H. Kriiger, Z S S 60
(1940) 80; B. Biondi, Successione tcstomentoria, 1943, Cuq, D S 3, 1138; Rotondi, lor. cit. 363.
635; idem, S r r Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) Lex Cornelia de ambitu. (81 B.c.) Sulla's law
110; Denoyez, Iura 2 (1951) 146. against bribery at elections.-See AMBITUS.
Lex Claudia de tutela mulierum. A law passed under Berger, R E 12, 2344.
the emperor Claudius abolished the guardianship of Lex Cornelia de captivis. (82-79 B.c.) O n last
the nest relatives (tutela legitijtzaj over women. wills made before the testator became prisoner of
Taubenschlag, R E 12, 2340; idem, Vorm~c~tdschaftsrcrht- war. They were valid if the testator died in cap-
l i ~ . l ~.Strrdicn
r (1913) 72. tivity, and were treated "as if he died a free Roman
Lex Claudia. ( O n senators, 218 B.c.?) Excluded citizen" (Epit. Ulp. 23.5). This is the so-called
them from maritime commerce by permitting them to fiction of the Cornelian law (fictio legis Cornrlinr.
possess vessels of a very small capacity only. The also bencficiunt legis Corncliae) .-ISee CAPTIVITAS,
prohibition remained in force under the Principate. POSTLTMINIUM.
G. Rotondi, Lcgcs publ. popwli Ronz. 1912, 249. V. Beseler, Z S S 45 (1925) 192; Balogh, S t R o ~ r f ~ i r ~4t c
Lex Claudia. ( O n loans, A.D. 47.) Passed on the (1930) 623; M'olff, T R 17 (1939) 136; J. Imbert, Post-
proposal of the Emperor Claudius, prohibited loans to litnitti~rtii,Thkse Paris (1941) 149 ; L. Amirante, Captivitns
1950, 32.
c posfli~rri~~ittrrr,
filii farltilias on pain of a fine.
Groag, R E 3, 2828; Weiss, R E 12, 2340. Lex Cornelia de edictis. (67 R.c.) Ordered that
Lex Clodia de collegiis. (58 B.c.) Permitted the "the praetors administer the law according to their
foundation of associations prohibited a few years perpetual edicts."
G. Rotondi, Lcgcs publ. pop~tli Rom., 1912, 371.
earlier by a decree of the Senate (64 B.c.).
W. Liebenam, Rorn. Vcreinszucseri, 1890, 24; Accame, Eirtll. Lex Cornelia de falsis. See FALSUM.
Coirrtl~is.nrchcol. dcl Govcntorato di Roma 70 (1942) 29. Lex Cornelia de imperio. (81 B.c.) Separated the
Lex Clodia frumentaria. See LEX S E M P R O N I A FRY- iriiprriil~ttdolili (in the city of Rome with its en-
MENTARIA. virons) from i~;tprrilrlit 711ilitiae.-See I M P E R I U M .
Lex Cocceia agraria. See I,EGES AGRARIAE. Doh1I.
Lex Cocceia. ( O n eunuchs, A.D. 96.) Under the Lex Cornelia de iniuriis. (81 R.c.) Punished three
emperor Nerva, prohibited castration. kinds of injury committed by violence: pirlsare (beat-
Rcrger, R E 12, 2341. ing), vcrbcrarc (striking, causing pains) and dotnum
Lex Coloniae Genetivae Iuliae. Also called Lr.r introirc (forcible invasion of al~otlier'sdomicile).-
Ursonensis (43 B.c.) = charter of the Roman colony See I N T R ~ I R ED O M U M .
Urso in Spain. Polak, Symb. van Oven, 1946, 263.
Kornemann, R E 16, 613; Riccobono, F I R 1' (1941) 177 Lex Cornelia de legibus solvendo. (76 B.c.) This
(Bibl.) ; Gradenwitz, Die Sfndtrcchte zlon Urso, etc., plel)iscite liillited the right of the senate to exempt
550 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
a person from the laws (legibus solvere). Such laws Lex Cornelia sumptuaria. (81 B.c.) The dictator
benefiting particular individuals had been passed in Sulla used this law to combat excessive expenditures
the past. The 1e.z Cornelia set a quorum of two for banquets and pompous funerals.-See SUMPTUS.
hundred senators and required subsequent approval Rotondi, lac. cit. 354; Kiibler, RE 4A, 907.
by a popular assen1bly.-See SOLUTIO LEGIBUS. Lex Cornelia testamentaria. See FALSUM.
G. Rotondi, Leges pttbl. populi Rom., 1912, 371. Lex Cornelia Baebia de ambitu. (181 B.c.) One of
Lex Cornelia de magistratibus. (81 B.c.) Fixed the the earliest statutes against bribery at elections.-
sequence of magistracies (ordo magistratuuttz), cf. LEX See AMBITUS.
VILLIA. Quaestorship had to be held before praetor- Berger, RE 12, 2344
ship, the latter before consulship. Likewise time Lex Cornelia Fulvia de ambitu. (159 B.c.) See
intervals between tenures of office were set. AMBITUS.
Humbert, DS 1, 270. Berger, RE 12, 2344.
Lex Cornelia de maiestate. (Of the dictator Sulla, L ~ Cornelia
x Pompeia. (On colnitia tributa, one or
81 B.c.) This was concerned with CRIMEN MAIESTATIS two laws passed under the consulship of Sulla in
(high treason). It punished by exile any person who 88 B.c.) Imposed restrictions on the legislative and
called in military forces, or began hostilities against electoral activity of the comitia tributa.
another country without approval of the senate and G. Rotondi, Leges publ. populi Rom., 1912, 343.
the people.-See QUAESTIO DE MAIESTATE. Lex Cornelia Pompeia. (On interest, 88 B.c.) A
Lex Cornelia de praetoribus. (81 B.c.) Under the Statute proposed by Sulla of uncertain content. Pre-
dictatorship of Sulla, increased the number of prae- sumably it permitted loans at an annual interest of
tors to eight. ten per cent. Higher interest payments may have
Cuq, D S 3, 1139. been deducted from the principal.
Berger, RE Suppl. 7, 384.
Lex Cornelia de proscriptione. (82 B.c.) See PRO-
SCRIPTIO. Lex Crepereia. An earlier republican statute of un-
G. Rotondi, Leges pub[. pofi Rom., 1912, 349. known date, dealt with the proceedings before the
Lex Cornelia de provinciis. (81 B.c.) See PROVIN- centumviral court. The sum of the sponsio was fixed
CIA. at 125 sesterces.-See CENTUMVIRI, IUDICIUM CEN-
TUMVIRALE, AGERE PER SPONSIONEM, SPONSIO PRAE-
Lex Cornelia de repetundis. (Of the dictator Sulla.) IUDICIALIS.
On extortion.-See REPETUNDAE. Berger, RE Suppl. 7, 384.
Berger, RE 12, 2343.
Lex Curiata de imperio. See COMITIA CURIATA,
LEX
Lex Cornelia de sicariis et veneficis. A Sullan enact- DE IMPERIO.
ment (81 B.c.) on murderers and poisoners was still Liebenam, RE 4, 1826; G. W. Botsford, Pol. Sci. Quart.
in force under Justhian.-D. 48.8; C. 9.16.-See 23 (1908) ; Latte, Nachr. Goettingisfhe Geselfschajt der
SICARII, VENEFICI. Wissenschaften, Phil.-hist. Kl. 1934; Heuss, ZSS 64
Cuq, D S 3, 1140; G. Rotondi, Leges pub!. populi Rom., (1944) 70; Nocera, AnPer 51 (1946) 163.
1912, 357; Condanari-Michler, Scritti Ferrini 3 (Univ. Lex de bell0 indicendo. Decisions concerning the
Sacro Cucre, Milan, 1948) 70. declaration of war were to be taken by the comitia
Lex Cornelia de tribunis plebis. (82 B.c.) This law centz~riata.-See BELLTJM,INDICERE BELLUM.
of the dictator Sulla was inspired by the desire to Liebenam, RE 696; Berger, RE Suppl. 7, 383 (with a
deprive the plebeian tribunes of their power. Only list of the pertinent statutes) ; Siber, ZSS 57 (1937) 261.
senators could be elected to the tribunate ; ex-tribunes Lex de fiaminica Diali. (A.D. 24?) Provided that
were excluded from higher magistracies. Legislative in a marriage of the FLAXEN DIALIS,concluded in
proposals of the tribunes had to be previously ap- the solemn form of confarreatio, his wife (fiaminica)
proved by the senate, and their right of intercession did not pass into his full power (manus). She was
was considerably restricted. Pompeius abolished the obliged to obey him only in sacral matters. The
law and reinstated the former prerogatives of the measure was designed to encourage marriages by
tribunes.-See LEX POMPEIA LICINIA on tribunes. confavreatio, which became very rare at the beginning
Lengle, RE 6A, 2485; G. Rotondi, Leges publ. populi Rom., of the Empire so that it was difficult to find candi-
1912, 350. dates for the post of flamen Dialis who had to be
Lex Cornelia de viginti quaestoribus. (81 B.c.) born from such a marriage.
Raised the number of quaestors to twenty. Part of Berger, RE 12, 2353.
the law is epigraphically preserved; it deals with the Lex de imperio. (Under the Empire.) A statute by
subordinate personnel of the quaestorian office.-See which the emperor was vested with sovereign power
Q'CIAESTORES. by the people and the senate. Apparently this cus-
Riccobono, FIR 1' (1941) 131; E. H. Warmington, Re- tom, practiced in the first century of the Principate,
mains of oki Lafin 4 (1940) 302. was a continuation of the old republican tradition,
Lex Cornelia nummaria. See FALSUM. of the LEX CURIATA DE IMPERIO which conferred
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DlCTlC)NARY OF ROMAN LAW
imperiun~ on the higher magistrates. Several sec- L e x Duilia Menenia (Maenia?). See FENUS U N -
tions of a lex by which the emperor Vespasian re- CIARIUM.
ceived sovereignty, lcx de i~nperioVespasiani (A.D. Rotondi, loc. cit. 222 ; L. Clerici, Economia e finanza dci
69-70) are epigraphically preserved. I t is one of Romani, 1 (1943) 333.
the most in~portant epigraphical monuments. It L e x duodecim tabularum. (451-450 B.c.) The
enumerates various prerogatives of the emperor and earliest Roman codification or rather collection of
describes their contents, primarily by reference to the fundamental rules of custonlary law was pub-
the same rights held by Vespasian's predecessors. lished on twelve tablets. The work was achieved
The 1r.r de imperio as a general institution is men- by a commission of ten experts, decemviri lcgibus
tioned once in Gaius' Institutes and four times in scribundis, hence the name lcges dece~nvirales for
Justinian's codification (once, C. 6.23.3, as ler inz- the legislation. The decemviral laws were the out-
perii). The term applied to the lex by Justinian, come of a political struggle between the plebeians
lex regia, is doubtless not classical and corresponds and the patricians. The principal grievances of the
to the Byzantine conception of the nature of kingship former were the fact that the law was administered
(basileia). In all these references there is certainly exclusively by the patricians in their own interest,
an element of truth and all efforts to eliminate them the uncertainty of the law, and the severity of the
as spurious are futile. It remains questionable, how- enforcement of debts (see NEXUM). Only a portion
ever, how long this kind of investment of the em- of the Twelve Tables is known partly from quotations
peror with "otnne suum imperium et potestas" by (sometimes in their original archaic wording) pre-
the people continued in use. served in juristic and literary sources, but chiefly,
Riccobono, F I R 1' (1941) 154 (Bibl.) ; Hellems, L. de i. however. from scattered references to certain ~ r o v i -
Vespasiani 1902 (Dissert. Americanae, no. 1, Chicago) ; sions appearing in a rather considerable number in
Cantarelli, St. romani e bizantini, 1915, 99; Beseler, Justinian's codification. The Twelve Tables con-
Juristische . Miniaturen 1929, 155 ; Messina-Vitrano, St
Bonjante 3 (1930) 255; Last, Cambr. Anc. History 11 tained a selection of rules from different provinces
(1936) 406; S. Riccobono, Jr., AfiPal 15 (1936) 501 ; of the law. Starting with some procedural norms
Levi, Ath 16 (1938) 85; Magdelain, Auctoritm principis, they comprised rules of private and penal law as
1947, 90. well as of sacral law. (The more important state-
Lex de imperio Vespasiani. See the foregoing item. ments of the law are noted in the present volume
L e x d e piratis. See LEX GABINIA. under the appropriate entries.) The decenlviral leg-
L e x decemviralis (leges decemvirales). See LEX islation is the germ from which the ancient Roman
DUODECIM TABULARUM. ius civile arose and evolved but from which the
Lex dedicationis. See DEDICATIO. Roman jurisprudence also developed. The interpre-
L e x Dei. See COLLATIO LEGUM MOSAICARUM ET RO- tation of the Twelve Tables by the pontiffs and the
MANARUM. professional jurists promoted the development of law
Lex Didia sumptuaria. (143 B.c.) Extended the and jurisprudence. Still in Cicero's boyhood the
validity of, the LEX FANNIA to all Italy and settled Roman youth learned them by heart. Several com-
penalties for the guests who participated in banquets mentaries were written on the Twelve Tables, the
condemned bv the statute.-See SUMPTUS. last by the jurist Gaius about the middle of the
Kiibler, R E i ~ 295; ,
G. Rotondi, Leges publ. populi Row., second century after Christ (in six books). The
1912, 295. excerpts from his work "ad legem duodecim tabu-
Lex Domitia. (103 B.c.) Reformed the system of laruwt" preserved in Justinian's Digest have con-
election of p~ntiffsand augurs by introducing a com- tributed largely to the knowledge of the structure
bined method: election by a minor group of hibus and nature of the whole codification. The high
from a list of candidates proposed by the collegiuwz esteem the Twelve Tables enjoyed in Roman tradition
of priests ih which the vacancy occurred. Abrogated for centuries is testified by many sayings of Roman
by Sulla, the statute was later restored by the LEX writers (primarily Cicero) ; Livy did not hesitate to
ATIA. call them, not without a certain exaggeration, "the
Wissowa, R E 2, 2318; Miinzer, R E 5, 1325; Weiss, R E source of all public and private law" and "the body
12, 2330; Rotondi, loc. cit. 329, 380. (corpus) of the whole Roman law (o~tznisRotnani
L e x Duilia d e provocatione. (449 B.c.) One of the iuris)." This evaluation cannot be shattered by the
earliest t?epublican statutes. The plebiscite, proposed outburst of modern criticism which has not only at-
by the plebeian tribune Duilius to protect the insti- tacked their authenticitv but has also not hesitated to
tution of appeal (provocatio), provided the death pass an unfavorable judgment over them as a whole.
penalty for anyone seeking to create a magistracy -See ABSENS,ADDICTUS,ADSIDUI,AMBITUS,COL-
the decisions of which could not be checked bv an LEGIA, CONFESS10 I N IURE, DECEMVIRI LEGIBUS SCRI-
appeal, or to leave the plebeians without tribunes.- BUNDIS, DIES IUSTI, DEICERE E S A X 0 TARPEIO, DIFFIN-
See PROVOCATIO. DERE, EMANCIPATIO, INIURIA, LEGARE, LEGITIMUS,
Weiss, R E 12, 2345 ; Rotondi, loc. cit. 203. LEGIS ACT10 PER IUDICIS ARBITRIVE POSTULATIONEM,
552 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
LEX VALERIA DE PROVOCATIONE, NEXUM, M A N U S cases excluded, as with regard to a soldier's testa-
INIECTIO IUDICATI, OBVAGULATIO, SECARE PARTES, ment or to legacies in favor of piae causae (for
SUMPTUS, TALIO, TEMPUS IUDICATI, TESTES, TUTOR charitable purposes) .-Inst. 2.22 ; D. 35.2 ; 3 ; C. 6.50.
SUSPECTUS, TUTELA LEGITIMA, USUS AUCTORITAS, -See BENEFICIUM COMPETENTIAE, CAUTIO EX LEGE
V I X D I C I A E FALSAE, VITES. FALCIDIA, DII, SENATUSCONSULTUM PEGASIANUM.
Berger, R E 4A (s.v. Tabulae duodecim, Bibl.) ; idem, R E Steinwenter, R E 12, 2346 (Bibl.) ; Longo, N D I 7 ; Pam-
Suppl. 7, 1275; Riccobono, F I R 1' (1941) 23; Girard, La paloni, B I D R 21 (1909, = Scr. giur. 1, 1941, 347) ;
loi de Douze Tables, London, 1914; E. Taiibler, Unter- Vassalli, B I D R 26 (1913) 52; F. Schwarz, Z S S 63 (1943)
suchungen zur Gesch. des Dezemvirats und der Zwolf- 314; B. Biondi, Successione testamentaria, 1943, 381; F.
tafeln, 1921; Baviera, S t Perozzi, 1924; Berger, S t Ricco- Bonifacio, Ricerche sulla L.F., 1948; idem, Iura 3 (1952)
bono 1 (1933) 587; idem, S t Albertolti 1 (1933) 381; 229; F.Schwarz, S D H I 17 (1951) 225.
idem, B I D R 43 (1935) 195; idem, Le Dodici Tavole e Lex Fannia. ( 161 B.c.) One of the leges sumptua-
la codifrcazione giustinianea, A C D R Roma 1 (1934) 39;
E. Volterra, Diritto rom. e diritti oricntali, 1937, 146, riae; it limited the expenditures for banquets and the
175, 687; E. H. Warmington, Remains of old Latin 3 number of persons would could be invited, particu-
(1938) 424; Baviera, St Riccobono 1 (1936) p. XXXIII; larly at the time of the great national games (ludi).
R. Diill, Das Zwolftafelngesetz, Ubersetzung und Erlau- -See SUMPTUS.
terung, 1944; Balogh, Scr Ferrini 3 (Univ. Sacro Cuore, Weiss, R E 12, 2353; Kiibler, R E 4A, 905.
Milan, 1948) 2 ; Gioffredi, S D H I 13-14 (1944) 33; C. W .
U'estrup, Introduction to early R . law, 4, 1 (1950) 79; Lex Fufia Caninia. ( 2 B.c.) Introduced restrictions
P. Noailles, Du droit sacrt: au droit civil, 1950, 36; P. R. on testamentary manumissions by fixing a ratio
Coleman-Norton, T h e Twelve Tables3, (Princeton, 1950) ; between the number of slaves belonging to the tes-
idem, Cicero's contribution to the text of the Twelve T a - tator and the number of those he could enfranchise
bles, C1J 1950; Pefrin, R H D 29 (1951) 383.
in his last will. The more he owned the smaller
Lex Fabia. A statute of unkilown date (second or was the percentage of manumissions permitted.
first century B.c.) against kidnapping, treating a free Manumissions ordered in violation of the exact pro-
man as a slave, or persuading another's slave to leave visions of the law (in fraudem legis)' were void.
his master. The same crime (crimen legis Fabiae, The statute was abolished by Justinian whose legis-
plagium) is charged against anyone who helps the lation favored the liberation of slaves (favor liber-
principal culprit in such undertakings (socius) . I n tatis) .-Inst. 1.7 ; C. 7.3.-See ~ E N A T U ~ C O N ~ U L T U M
later development, making a free man the object of ORFITIANUM.
a transaction (sale, giving in dowry) was also con- Leonhard, R E 12, 2355; Acta Divi Augusti 1 (1945) 202.
sidered to be a plagium. Both the giver and the Lex Furia de sponsu. (Of unknown date, probably
receiver were subject to punishment but only if they later than the lex Apuleia de sponsu.) * Dealt with
had knowledge of the free man's status and acted suretyship contracted in Italy in the form of sponsio
fraudulently (scientes dolo malo). Severe penalties or fideipromissio.-See ADPROMISSOR.
were provided for plagium in the lex Fabia; they Rotondi, Leges publ. populi Rom., 1912, 475; Appleton,
were later aggravated by imperial enactments. Dio- Z S S 26 (1905) ; idem, M i l Girardin, 1907; Girard, S t
cletian introduced the death penalty for p1agium.- Fadda 2 (1905).
D. 48.15 ; C. 9.20.-See VINCULA. Lex Furia testamentaria. (Between 204 and 169 B.c.)
Berger, R E Suppl. 7, 386; idem, B I D R 45 (1938) 267; Fixed the maximum amount of a legacy at one thou-
Niedermeyer, S t Bonfante 2 (1936) ; Lauria, AnMac 8 sand asses except for legacies bequeathed to one's
(1932).
nearest relatives, spouse or bride. It is the earliest
Lex Falcidia. (40 B.c.) Provided that legacies statute setting limits for legacies.
(legata) should not exceed three quarters of the Steinwenter, R E 12, 2356 (Bibl.), 2421.
testator's estate. A minimum of a fourth part (quarta Lex Gabinia de piratis persequendis. (67 B.c.) Au-
Falcidia, Falcidia) was reserved to the heir ap- thorized Cn. Pompeius Magnus to combat piracy
pointed in the testament. I n the case of several heirs with an army of twenty legions and a navy of 500
each of them had to receive at least one fourth of ships. The identification of the statute with a Greek
the share assigned to him. The part of the legacy inscription found in Delos is not certain.
exceeding three-quarters was void; an heir sued by Riccobono, F I R 1' (1941) 121 (Bibl.).
the legatee for the surplus could oppose the exceptio Lex Gabinia. (139 B.c.) Forbade secret meetings
lcgis Falcidiae. The value of the estate at the time (clandestinae coitioncs) directed against the state.
of the testator's death was decisive. Later changes Berger, R E Suppl. 7, 395.
(lid not count. The tendency of the law was to Lex Gabinia tabellaria. (139 B.c.) Introduced the
prevent the refusal of an inheritance, charged with ex- secret ballot in the election of magistrates in the
orbitant legacies, by the testamentary heir. Imperial popular assemblies.-See TABELLAE.
legislation introduced substantial reforms. Antoninus
Lex Genucia. (342 B.c.) A plebiscite which pro-
Pius extended the quarta Fnlcidia to intestate inheri-
hibited loans at interest.
tance if the owner disposed in a codicil over more Klingmuller, R E 6, 2192; Stein, R E 7, 1207; Rotondi,
than three-fourths of the estate by fideicommissa. Leges publ. Populi Rom., 1912, 226; L. Clerici, Economia
The application of the law was in some exceptional e finanza dei Romani, 1 (1943) 334.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 553
Lex Glitia. Known only from a commentary by Gaius the LEX IULIA DE MARITANDIS ORDINIBUS. fixed the
"ad legem- Glitiam." It' dealt with the QUERELA cases of adultery punishable as a crime, the penalties,
INOFFICIOSI TESTAMENTI. Date is unknown. the forms and terms of accusation, etc. See ADUL-
Weiss, R E Suppl. 5, 577; Cuq, D S 3, 1145; Rotondi, loc. TERIUM.The law also dealt with other crimes against
cit. 482. chastity (STUPRUM, INCESTUM) .-D. 48.5 ; C. 9.9.
Lex Hadriana. See LEX M A N C I A N A . Fitzler-Seeck, R E 10, 354; Acta Divi Augusti 1 (1945)
Kornemann, R E Suppl. 4, 253; Ch. Saurnagne, Tablettes 112.
Albertini, 1952, 99. Lex Iulia de annona. (18 B.c.?) An Augustan law
Lex Hieronica. (Third century B.c.) Mentioned by against merchants raising the market prices of food-
Cicero in his orations against Verres, not a Roman stuffs or committing other unfair practices in the sale
law. Its author was Hiero 11, tyrant and (later) or transportation - of food.-D. 48.12.
king of Syracuse. It was an agrarian law, dealing Rotondi, loc. cit. 448; Acta Divi Augusti 1 (1945) 200.
with the lease of public land and land taxes and Lex Iulia de cessione bonorum. (By Augustus.)
remained in vigor after the Roman conquest of Sicily. Perhaps a part of the LEX IULIA IUDICIORUM PRI-
Lenschan, R E 8, 1508; Schwahn, R E 7A, 15; Weiss, R E VATORUM .-See CESSIO BONORUM.
12, 2361 ; Carcopino, La loi de Hikron, 1914; Plachy,
B I D R 47 (1940) 87. S. Solazzi, I1 coitcorso dei creditori 4 (1943) 133; '4cta
Divi Augusti 1 (1945) 152.
Lex horreorum. See HORREUM.
Lex Iulia de civitate. (90 B.c.) Bestowed Roman
Lex Hortensia de plebiscitis. (Ca. 286 B.c.) Pro-
citizenship on' Latins (see LATINI)and a great num-
vided that "the decrees of the plebeian assemblies
ber of the allies (socii) in Italy. All allies domiciled
shall be binding on the whole people" (Gaius, Inst.
in Italy received citizenship in the following year by
1.3) .-See PLEBISCITUM.
Lengle, R E 6A, 2471; Berger, R E Suppl. 7, 396; Siber,
the Lex Plautia Pabiria (89 B.c.), provided that they
R E 21, 68; Humbert, D S 1, 546; Baviera, S t Brugi, 1910, applied to the urban praetor in Rome within sixty
367; Costa, MemBol 6 (1911-1912) 77 ; G. Rotondi, Leges days for enrollment on the list of citizeris.
publ. pop. Rom., 1912, 238; H. Siber, Die plebeischen Ma- G. Rotondi, Leges publ. populi Romani, 1912, 338.
gistraturen 1936, 43; Guarino, Fschr Schulz 1 (1951) 458. Lex Iulia de collegiis. An Augustan law; it is men-
Lex Hostilia. An early statute of unknown date, en- tioned only once in an inscription (CIL 6, 4416 =
abled a person who was in captivity or absent on 6, 2193).
official mission, to be represented in the trial against Kornemann, R E 4, 408; 430; G. Rotondi, loc. cit. 442;
a thief for the theft committed in the absent person's Berger, Epigraphica 9 (1947) 44; G. Bovini, La proprietd
property. ecclesiastica, 1949, 141.
Rotondi, lor. cit. 480; P. Huvelin, Furtum (1915) 117; Lex Iulia de fundo dotali. Not a specific Augustan
Nap, T R 13 (1934) 181. law (although once mentioned as such) but a section
Lex Icilia. (492 B.c.) Probably the earliest law on of the emperor's legislation on adultery (LEXIULIA
the inviolability of the plebeian tribunes.-See TRI- DE ADULTERIIS). It prohibited the husband to alienate
B U N 1 PLEBIS.
land in Italy constituted as a dowry unless the wife
Rotondi. loc. cit. 193.
gave her consent.-D. 23.5; C. 5.23.
Lex imperii. See LEX DE IMPERIO. Acta Divi Augusti 1 (1945) 127 ; Noailles, Inalienabiliti
Lex Iulia (leges Iuliae). A statute passed on the du fonds dotal, Annales Univ. Grenoble 30-31 (1918-1919).
legislative initiative of either Iulius Caesar or the Lex Iulia de maritandis ordinibus. (18 B.c.) This
emperor Augustus. The proposer cannot always be law together with anotter one, also of Augustus, the
established with certainty. Lex Papia Poppaea (A.D.9 ) deals with several prob-
Lex Iulia agraria. (59 B.c.) An agrarian law pro- lems connected with marriage. In the writings of the
posed by Caesar during his consulship. It completed Roman jurists the two laws appear both as two dis-
the transfer of public land in Italy into private owner- tinctive legislative acts and as one unified piece of
ship. legislation, sometimes called simply "lex" or "leges."
Vancura, R E 12, 1184; Rotondi, loc. cit. 387. The earlier law contained several prohibitions of
Lex Iulia ambitus. (18 B.c.) A statute of Augustus marriage, such as between senators or their sons and
against brihery in elections (AMBITUS).It was still their freedwomen. between free-born men and women
in vigor under Justinian.-D. 48.14; C. 9.26. of bad behavior or women convicted of adultery.
Berger, R E 12, 2365; Acta Divi Augusti 1, (1945) 140. Consorts married in violation of these provisions
Lex Iulia caducaria. Probably not a special statute have no reciprocal rights of succession. Another
concerning CADUCA, but a chapter of the Augustan tendency of the Augustan legislation was to promote
legislation on marriage and related problems (LEX marriage and the procreation of children in order to
IULIA DE MARITANDIS ORDINIBUS).-See LEGES CA- prevent a further decline of morality and family life,
DUCARIAE, CADUCA (Bibl.) . widespread in the last decades of the Republic.
V. Bolla, Z S S 59 (1939) 546. Various privileges were granted to married people and
Lex Iulia de adulteriis. (18 B.c.) This Augustan parents of children whereas on the other hand severe
statute, which some scholars consider to be a part of economic and social disadvantages were imposed on
554 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
unmarried persons (coelibes) and childless married doubtful. The law introduced a tax of 5 per cent
persons (orbi). A consul who had more children on estates and legacies except those left to parents
than his colleague had some preference over the latter. and children and those of small value. The heir
Fathers were excused from public charges (munera) could deduct a proportional part of the tax from the
and tutorship. Married women with three children legacies. The law also contained provisions concern-
(four, if they were freedwomen) were not submitted ing the opening of last wills (APERTURA TESTAMENTI)
to guardianship (tutela mzrlierum). See IUS LIBERO- in connection with the taxes to be paid.-See VICE-
RUM. The second statute excluded unmarried men S I M A HEREDITATIUM.
over twenty-five and under sixty and unmarried Rotondi, lor. cit. 457; Acta Divi Augusti 1 (1945) 219;
women over twenty and under fifty from succession Stella-Maranca, RendLinc 33 (1924).
under a will. For further provisions, see COELIBES, L e x Iulia iudiciorum privatorum. See the following
ORBI, CAPACITAS, PATER SOLITARIUS, CADUCA, DIES item.
CEDENS LEGATI, EREPTORIUM, LEX IULIA MISCELLA, Lex Iulia iudiciorum publicorum. (17 B.c.?) This
SENATUSCONSULTUM CALVISIANUM, SENATUSCONSUL- Augustan law and another procedural law concerning
T U M MEMMIANUM, PRINCEPS LECIBUS S0LUTUS.- civil trials (lex Iulia iatdiciorunz jrivatorum) together
C. 8.57. constitute the leges Iuliae iudiciariae. They are men-
Fitzler-Seeck, RE 10, 354; Schiller, RE Suppl. 6, 227; tioned along with the LEX AEBUTIA as the statutes
Rotondi, Leges publ. populi Rom., 1912, 443,457; P.Cor- which completed the transition from the LEGIS AC-
bett, The Romarr law of marriage, 1930; Solazzi, ANap TIONES to the formulary procedure. The norms set
59 (1939), 61 (1942) ; Siber, Die Ehegesetzgeburrg des
Augustus, Deutsche Rechtmissenschaft, 4, 2 (1939); Acta in the statutes are known in part from references in
D b i Augusti 1 (1945) 166 (Bibl.) ; Nardi, SDHI 7 Justinian's Digest, in part from juristic (Gaius' In-
(1941); B. Biondi, Surressione testamentaria (1943) 136; stitutes, Fragmenta Vaticana) and literary sources.
Field, CN 1945, 398; Lavaggi, StSas 21 (1948) ; Weiss, They dealt with various questions about judicial
BIDR 51/52 (1948) 323.
magistrates and judges, the parties to a trial and
L e x Iulia de mod0 aedificiorum. A building regula- their advocates, witnesses and the like. They were
tion probably of Augustus (18 B.c.?) ; it set a maxi- in a sense a procedural code.-See I ~ D I C I A LEGITIMA.
mum for the height of houses and the thickness of Girard, ZSS 34 (1913) 295; Acta Divi Augusti 1 (1945)
walls. 142 (Bibl.).
G. Rotondi, Leges publ. pop. Rom., 1912, 447; Aeta Divi L e x Iulia maiestatis. There were two Julian statutes
Augusti 1 (1945) 198. on the crime of maiestas; one by Caesar (46 B.c.),
L e x Iulia de pecuniis mutuis. (49 B.c.) A statute the other by Augustus ( 8 B.c.) .-See CRIMEN MAIES-
passed under the dictatorship of Caesar, introduced TATIS.-D. 48.4; C. 9.8.
some alleviation for debtors who had contracted a Aeta Divi Augusti 1 (1945) 156.
loan of money: deduction of interest already paid Lex Iulia miscella. The name occurs twice in Jus-
from the principal, cancellation of interest in arrears tinian's enactments. "Miscella" is not a proper name
for two years, admission of payment in land instead as sometimes assumed. It is an adjective, syn. with
of in cash. Some modifications of the law were made saturus (see LEGES SATURAE).The specific provi-
in a later caesarean law of 46 B.C. sion referring to it (nullity of a legacy bequeathed
G. Rotondi, Leges publ. pofluli Rom., 1912, 415. by a husband to his wife on the condition that she
Lex Iulia de residuis. See PECULATUS, RESIDUA. remain unmarried after his death) is found in the
L e x Iulia d e senatu habendo. (Ca. 10 B.c.) Con- LEX IULIA DE MARITANDIS ORDINIBUS, called "mis-
cerned with the procedure of voting in the senate.- cella" by Justinian because of its various intermingled
See DISCESSIO. provisions.-C. 6.40.
Rotondi, op. cit. 452; Acta Divi Augusti 1 (Rome, 1945) Cuq, DS 3, 1157; Acta Divi Augusti 1 (1945) 173.
153.
L e x Iulia municipalis. Known in modern literature
L e x Iulia de vi privata and L e x Iulia de vi publica. as Tabula Heracleensis because the bronze tablet on
It is more likely that there were two statutes on the which a part of the law is preserved was found near
topics indicated, not one, and that their author was the site of ancient Heraclea. The text deals with
Augustus rather than Caesar. For their contents, different subjects and it is striking that a part of it
see VIS, RES VI POSSESSAE, TELUM.-D. 48.6; 7 ; C. refers to Rome itself, while another and larger portion
9.12 (de vi prizfata) ; D. 48.6; C. 9.12 (de vi pztblica). is a general ordinance for municipalities and colonies.
Rotondi, loc. cif. 457; Berger, RE Suppl. 7, 405; Girard, The topics dealt with are distribution of grain,
ZSS 34 (1913) 322; Coroi, La violence en dr. rom., 1915; building and traffic regulations, election of municipal
Berger, Gb'ttingische gel. Anzeigen 1917, 336; Costa,
RendBol 2 (1917/18) 23; Niedermeyer, St Bonfante 2 magistrates, and administrative problems in munici-
(1930) 400; Flore, ibid. 4 (1930) 335; G. Pugliese, Ap- palities. Caesar's authorship and the date of the law
punti sui limiti dell'imfierium nella refiressione penale 1939 ; are debatable, as is its basic character (a lex data or
Acta Divi Augusti 1 (1945) 129. lex rogata). The law is a good illustration of a lex
L e x Iulia de vicesima hereditatium. (A.D. 5 ?) The satura (see LEGES SATURAE) , generally
disliked in
name Iulia is preserved, but Augustus' authorship is Roman legislation.
electoral period to support a candidate for a magis- Lex Malacitana. (A.D.82-84.) See LEX SALPENSANA.
tracy by unfair practices which were considered a Lex Mamilia Roscia Peducaea Alliena Fabia. (Of
special form of AMBITUS. uncertain date, after 111 B.C. and perhaps as late as
Weiss, R E 12, 2394, no. 3 ; Berger, ibid. 2395; Pfaff, R E 59 B.c.) Dealt with controversies over boundaries of
3, 785; Rotondi, loc. cit. 407; Accame, Bull. Commissione landed property in colonies and municipia. Three
archeologica del Governoreto di Roma 70 (1942) 32.
chapters of the statute are preserved in the writings
Lex Licinia Cassia. (172 B.c.) Gave consuls and
of land surveyors (gromatici). I t is uncertain
praetors the right to appoint military tribunes; pre-
whether the law was a section of the LEX IULIA
viously they were elected by the conzitia tributa.
AGRARIA or a plebiscite proposed by a tribune Mami-
G. Rotondi, loc. cit. 282.
Lex Licinia Iunia. (62 B.c.) Ordered that the offi- lius and his four colleagues. The appearance of five
names in the denomination of the lex is unique.-See
cial text of statutes be deposited in the state archive
CONTROVERSIA DE FINE.
in the aerariunz.-See AERARIUM POPULI ROMANI.
Munzer, R E 10, 1090; Rotondi, loc. cit. 383; Landucci, Vancura, R E 12, 1185; Kroll, R E 12, 2397; Cary, Journ.
APad 1896, 146; F. v. Schwind, Zur Frage der Publika- Philol. 35 (1920) 184 ; Fabricius, SbHeid 1924 ; Piganiol,
tion 1940, 27. Comptes-Rendus Acad, des Inscriptions 1939, 193; Ricco-
bono, F I R 1' (1941) 138; Le Gall, Revue de philologie
Lex Licinia Mucia. (95 B.c.) Established the con- 20 (1946) 138; Herrman, R I D A 1 (1948) 113; L. R.
ditions for the acquisition of Roman citizenship by Taylor, Studies in honor of A . C. Johnson, 1951, 68; Piga-
Latins who had taken up residence in Rome, and niol, C R A I 1949, 193.
fixed penalties for non-citizens in Rome who acted Lex Manciana. (Under Vespasian?) Concerned with
as if they were citizens. the administration of imperial domains in North
Weiss, R E 12, 2395, no. 6. Africa by imperial procuratores and the relations with
Lex Licinia Sextia. O n loans. (367 B.c.) Debtors the leasehalders (conductores) . A similar law was
received the right to pay in three annual installments the so-called lex Hadriana.
and to deduct the interests paid from the sum due. Kornemann, R E Suppl. 4, 251; A. Hajje, Etudes sur les
G. Rotondi, loc. cit. 217. locations b long terme, 1926; Haywood, in T. Frank, An
economic survey of ancient Rome 4 (1938) 101; Ricco-
Lex Licinia Sextia. O n the plebeian consulship and bono, F I R 1' (1941) 484, 493; Toutain, M i l F. Martroye
the creation of the praetorship. (367 B.C. ) Granted (Sociitb Nut. des Antiquaires de France) 1941 ; Saumagne,
the plebeians one of the two consulships and estab- Tablettes Albertini, 1952, 116.
lished the office of praetor accessible only to patricians. Lex Manilia. (67 B.c.) Gave freedmen the right to
G. Rotondi, loc. cit. 218; v. Fritz, Historia 1 (Baden- vote in the tribus of their patrons.
Raden, 1950) 3. G. Rotondi, loc. cit. 375.
Lex Licinia Sextia agraria. (367 B.c.) Limited the Lex Manlia. ( O n manunlission taxes, 357 B.c.) See
din~ensionsof a plot of the ager publicus that could VICESIMA MANUMISSIONUM.
be assigned to individuals to 500 Roman acres G. Rotondi, loc. cit. 375.
(iuyera) and settled the number of head of cattle Lex Marcia. (On usury, 104 B.c.) Protected the
to be held by the possessors. debtors who had paid the moneylenders interest at a
Vancura, R E 12, 1164; Cuq, D S 3, 1153; Rotondi, loc.
cit. 217; L. Clerici, Economia e finanza dei Romani, 1 rate higher than was legally permitted by granting
(1943) 290; Tibiletti, A t h 26 (1948) 191. them the privilege of recovering the sum unduly paid
Lex Licinia. sumptuaria. (103 B.c.?) A statute through the procedure of M A N U S INIECTIO.
against luxury which repeated provisions of earlier G. Rotondi, loc. cit. 326.
laws.-See SUMPTUS. Lex Maria. (119 B.c.) Set general rules for secret
Rotondi, loc. cit. 327; Kiibler, R E 5A, 905. voting by tablets in the popular assemblies.-See
Lex Livia iudiciaria. (91 B.c.) Established a special TABELLAE.
court (qztaestio) for trials of judges corrupted by G. Rotondi, loc. cit. 318.
bribery. Lex Maria (Marcia) Porcia. (62 B.c.) See TRI-
Rotondi, loc. cit. 337. UMPHUS.
Lex Lutatia de vi. Probably identical with LEX Lex Menenia Sestia. (452 B.c.) See L E X ATERNIA
PLAUTIA DE VI. TARPEIA.
Berger, R E Suppl. 7, 399; Cousin, R H D 22 (1943) 88. Lex metalli Vipascensis. (Second century after
Lex Maenia de patrum auctoritate. (Of unknown Christ.) An ordinance for the administration of
date, probably not before the beginning of the third the mines in Vipasca (Spain) with instructions to
century B.c.) Ordered that candidates for office had the imperial procurator metallorum concerning the
to be approved by the senate before the people voted lease of the mines to private conductores.
in the cofnitia. This provision of the statute is analo- Riccobono, F I R I' (1941) 502; Schonbauer, Beitrage zur
gous to that of LEX PUBLILIA PHILONIS in legislative Geschichte des Bergbaurechts, 1929; Kiibler, Z S S 49
matters. (1929) 569; Schonbauer, Z S S 55 (1935) 212; U. Tack-
Weiss, R E 12, 2396; O'Brien-Moore, R E Suppl. 6, 677; holm, Bergbau in der riim. Kaiserzeit (Uppsala, 1937)
Guarino, Studi Solazzi, 1948, 29. 101; D'Ors, Iura 2 (1951) 128.
VOL.43, PT. 2, 19.531 ENCYCLOPEDIC DICTI( )NARY O F ROMAN LAW 557
Lex Minicia. (Date unknown, about 90 B.c.) Or- Lex Petronia. On slaves. (A.D. 61 ?) Prohibited
dered that a child born of parents of a different masters from exposing their slaves to fight with wild
status civitatis receives the lower status. beasts without permission from the competent magis-
Weiss, R E 12, 2399 ; Rotondi, lor. cit. 338. trate. Approval was given when a slave deserved
Lex municipalis Tarentina. (First century B.c.) A punishment for bad conduct.
municipal charter (lex data) of Tarentum, preserved Leonhard and Weiss, R E 12, 2401 ; Rotondi, loc. cit. 468.
in part. It contains provisions about the responsi- Lex Pinaria. An early statute which fixed the term
bility of municipal magistrates, building regulations, of thirty days for the reappearance of the parties in
and the like.-See LEGES DATAE. a trial conducted in the form of legis actio sacra-
G. Rotondi, lor. cit. 492; Rudolph, Stadt und Staat i m mento.-See LEGIS ACTIO SACRAMENTO.
r6m. Italien, 1935, 132; Riccobono, F I R 1' (1941) 166; G. Rotondi, lor. cit. 472.
E. H. Warmington, Remains of old Latin, 4 (1940) 438. Lex Pinaria Furia. (472 B.c.?) Reformed the cal-
Lex naturalis. See NATURALIS LEX. endar by the insertion of an intercalary month.
Lex Ogulnia. (300 B.c.) Augmented the number of Berger, R E Suppl. 7, 403.
pontifices and augures from four to eight and nine, Lex Plaetoria (Laetoria?) de minoribus. (192/1 B.c.)
respectively, and established the rule that four ponti- Protected persons sui iuris under twenty-five years
fires and five augatres were to be plebeians. of age (minores) who had been defrauded in a trans-
Riewald, R E lA, 1639; Miinzer, R E 17, 2065; Rotondi,
lor. cit. 236. action. The latter was valid in principle, but the
Lex Oppia. (215 B.c.) Condemned luxury among minor, when sued for payment, had an exception,
exceptio legis Plaetoriae, for his defense. Besides,
women. It introduced restrictions on jewelry and
prohibited many-colored dresses. The statute was an actio legis Plaetoriae was available to anyone
abolished twenty years later by the Lex Valeria (actio popularis) against the person who exploited
Fundania.-See SUMPTUS. the inexperience of a minor (circuznscriptio adoles-
Kiibler, R E 4A, 904. centium) .-See MINORES.
Berger, R E 15, 1863, 1867; Weiss, R E Suppl. 5, 578; Ro-
Lex Orchia. (181 B.c.) Also a lex sumptuaria. See tondi, loc. cit. 271; Debray, Mdl Girard 1 (1912) 265;
SUMPTUS. I t limited the number of persons who Duquesne, MCI Cornil 1 (1926) 156; Nap, TR 13 (1934)
could participate in a sumptuous dinner. 194.
Rotondi, loc. cit. 276; Kiibler, R E 4A, 905. Lex Plautia de vi. (78-63 B.c.?) The earliest law
Lex Osca tabulae Bantinae. See LEX LATINA TABU- against the crimen vis (violence) committed either
LAE BANTINAE. against the state or a private individual.-See VIS,
Lex Ovinia. See LECTIO SENATUS. RES V I POSSESSAE.
Lex Papia. On foreigners. (65 B.c.) Introduced spe- Berger, R E Suppl. 7, 403 (Bibl.) ; J. Coroi, La violence
cial proceedings against foreigners who unlawfully en droit criminel rom., 1915, 31 ; Cousin, R H D 22 (1943)
pretended to be Roman citizens. The penalty was 88.
expulsion from Rome. Lex Plautia iudiciaria. (89 B.c.) On the election of
Weiss, R E 12, 2399, judges (fifteen for each tribus).
Lex Papia. On Vestal virgins. (65 B.c.) Established G. Rotondi, loc. cit. 342.
the procedure for the selection of Vestales by the Lex Plautia Papiria de civitate. See LEX IULIA DE
high pontiff (PONTIFEX MAXIMUS) .-See VESTALES. CIVITATE,
Berger, R E Suppl. 7, 402. G. Rotondi, loc. cit. 340.
Lex Papia Poppaea. See LEX IULIA DE MARITANDIS Lex Plotia de vi. See LEX PLAUTIA DE VI.
ORDINIBUS. Lex Poetelia de ambitu. (358 B.c.) The earliest
Lex Papiria. On TRESVIRI CAPITALES, of unknown statute against unfair machinations for electoral pur-
date, third or second century B.C. poses. In particular the statute forbade competition
G. Rotondi, loc. cit. 312. for votes in market places.
Lex Papiria de consecratione. (Date unknown.) Berger, R E 12, 2407; Husband, ClJ 10 (1914/5) 376.
Required the approval of the plebs for the validity Lex Poetelia Papiria. (326 B.c.) The statute, called
of consecratio (dedicatio). The statute seems to by Livy (VIII 28.1) "another beginning of the free-
have been one of the earliest plebiscites. dom of the Roman plebs," forbade the private im-
Berger, R E Suppl. 7, 402; Paoli, R H D 25 (1946/7) 176; prisonment of the debtor by the creditor, which was
Santi Di Paola, S t Solazzi 1948, 631. a kind of enslavement since the debtor (nexus) had
Lex Papiria tabellaria. (131 B.c.) Guaranteed se- to work for the creditor like a slave. Many details
crecy in voting on legislative matters in the popular about necti are doubtful as is the whole doctrine on
assemblies.-See TABELLAE. nexum, owing to the discrepancies in the confusing
Liebenam, R E 4, 692. reports in literary sources (Livy, Varro), especially
Lex Petronia de praefectis iure dicundo. (Before about putting the debtor into fetters.-See NEXUM,
32 B.c.) Regulated the election of praefecti iure IURARE BONAM C O P I A M .
dicundo in municipalities. Huvelin, D S 4, 83 ; Berger, R E Suppl. 7, 405 ; Kleineidam,
Cuq, D S 3, 1158; Rotondi, loc. cit. 439. Fg Dnhn 2 (1905) 1 ; Ausiello, AnCam 2 (1929) ; De
558 ADOLF BERGER ['TRANS. A M E R . PIIII.. SOC.
Visschcr, M i l 1;orcr~ricr1929 (= Etrrdcs dc dr. rorrr. 1934, L e x Publicia d e aleatoribus. See LEX TITIA DE ALEA-
313) ; Kascr, 1)trs oltriitrr. Irrs 1949, 247; v. Liibtow, Z S S TORIBUS.
67 (1950) 154.
L e x Publilia d e sponsu. See ACTIO DEPENSI.
L e x Pompeia. O n candidates for a magisterial post. L e x Publilia Philonis. O n atlinission of plebeians to
(52 B.c.) I t 01)liged them to be present in Rome censorship (339 R.c.) Henceforth, one of the
during the electoral period. censors hat1 to be a plebeian.
L e x Pompeia. On provincial administration. (52 B.c.) L e x Publilia Philonis. O n the n~rctoritnsof the senate
Establishetl the interval of five years between the (339 13.c.). The law repealed the requirement that
holtling of a niagistracy in Rome ant1 a subseqrient the sei:,lte approve (alrctdritas) legislative enactments
pro-~iiagistracyin a province. of the pol)ular assemblies after their passage. From
G. 12otondi, lor.. cit. 411. then on, al)proval was given in advance and thus
- -
L e x Pompeia d e ambitu. (62 B.c.) A very severe became a mere formalitv. I t is controversial whether
statute against bribery at elections. It has interest the statilte simply reiterated the provision of LEX
because of its 1)rocetlural provisions. VALERIA IIORATIA to the effect that legal enactments
Berger, R E 12, 2403. voted by the ple1)eian assemblies (concilin plebis')
L e x Pompeia d e culleo. (55 B.C.?) Abolishetl execu- were binding on all citizens, plebeians and patricians
tion 1)). drowning the condemned culprit in a leather alike.-See AUCTORITAS SENATCS,LEX HORTENSIA,
sack (CUI.LECS). The statute was perhaps a section SENATOR.
of the 1c.r Po~ltpririd r parricitlio. Rotondi, lor. cit. 226; G. W . Botsford, The R. assemblies,
Hitzig, R E 4 (s.7,. c.~cilc~rs,
no. 4). 1909, 299; Guarino, S t Solnzzi 1948; idem, Fschr Schulz
L e x Pompeia d e parricidio. (55 or 52 B.c.) Ex- 1 (1951) 461.
tended the term parricidilrllz to the assassination of L e x Publilia Voleronis. (471 B.c.) Based the plebe-
parents, grandparents, children, gran.lchildren, broth- ian assenlbly and the election of plebeian magistrates
ers, uncles, a consort or fiance, and some other rela- on a territorial, tribal division.
tives. The law a p ~ a r e n t l ysubstituted the penalty of G. Rotondi, lor. cit. 197; Niccolini, Hist 2 (1928) 12, 3
(1929) 184.
AQUAE ET JGNIS INTERDICTIO for the ancient form of
L e x Pupia. (57 B.c.) Prohibited meetings of the
execution by CULLEUS. I t is still in vigor under
senate on the days on which popular assemblies were
Justinian, D. 48.9.
convoked.
Hitzig, loc. supra cit. ; G. Rotondi, Legcs prtbl. poptcli Roin.,
1912, 406; Radin, J R S 10 (1920). Rotondi, lor. cit. 399.
L e x Pompeia d e vi. (52 B.c.) A special statute on L e x Quinctia. On aqueducts. ( 9 B.c.) Settled penal-
crilnen vis (violence) the occasion of which was a ties for damages to aqueducts and other constructions
great riot with fires and massacres at the via Appin. connected with the water supply of Rome. The
Severe penalties were set.-See vrs. statute is preserved in the n~onographof the Roman
Berger, R E Suppl. 7, 409; Rotondi, lor. cit. 410; J . Coroi, writer Frontinus (first century after Christ) "On the
La vioieitce en droit crintilzel rom., 1915, 93. Water Supply (de aquis) of Rome." The author
L e x Pompeia Licinia. O n tribunes. (70 B.c.) Abol- was curator aqttarunz (= commissioner for water
ished the restrictions imposed on the plebeian tri- supply).
Riccobono, F I R 1' (1941) 152; Acta Divi Augusti 1
bunate by Sulla.-See LEX CORNELIA and LEX AURE- (1945) 154.
LIA on tribunes.
L e x regia. Justinian terms the so-called LEX DE I M -
L e x Porcia (Leges Porciae). Three Leges Porciae PERIO by this name.-For the laws under the king-
of the second century B.C. are mentioned in connec- ship, see LEGES REGIAE.
tion with the right of appeal (PROVOCATIO) of per- L e x Remmia. (80 B.c.) See CALUMNIA.
sons condemned in a criminal trial. One of them Hitzig, R E 3, 1415; Lindsay, ClPhilol 44 (1949) 241.
dealt with the PROVOCATIO of soldiers.-See LEX
L e x Rhodia d e iactu. Not a Roman creation. The
VALERIA. Romans adopted it early from the Rhodians; at the
Cuq, D S 3, 1160; Rotondi, lor. cif. 268.
end of the Republic it was already commented on
L e x praediatoria. See PRAEDIATOR. by the Roman jurists. The law is based on the prin-
L e x provinciae. -4 law concerning the organization ciple that when goods are thrown overboard to lighten
of the administration of a conquered province. Origi- a ship in distress, the loss is shared among all whose
nally it was issued by the commanding general with goods are saved. Robbery of merchandise by pirates
the assistance of a senatorial commission.-See LEX does not come under the law.-D. 14.2.-See IACTUS.
DATA, PROVINCIA, LEGATI DECEM. Berger, RE 9, 545; Benedict, Yale Law Jour. 18 (190819)
L e x Publicia. (Earlier than lex Cincia of 204 B.c.) 242; Dareste, N R H D 29 (1905) 429; Kreller, Ztschr. fur
Limited the gifts of freedmen to their patrons who das gesamte Handelsrecht 85 (1921) 257; G. Hubrecht,
Quelques observations sur l'interprdtatiolt romaine de la
used to demand (exigere) excessive donations on I.R., 1934; De Martino, RDNav 1 (1935) 217, 3 (1937)
the occasion of the feast of the Saturnalia. 335, 4 (1938) 3.180; Ufebvre d'ovidio, R D N a v 1 (1935)
Berger, R E Suppl. 7, 410. 36; R. Zeno, Storia del diritto nzarittinzo 1946, 22; Osu-
VOL.
43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 559
chowski, Iura 1 (1950) 292; Wieacker, St Albertario 1 was still a Roman province. Only chapters 30-33
(1952) 515. For the Byzantine compilation of maritime are epigraphically preserved. The inscription is of
law (eighth century), known as Nomos Rhodion Nau- paramount importance for the knowledge of certain
tikos, see Ashburner, The Rhodian Sea-law, 1909; Perugi,
Roma e l'oriente 4 (1914) 9, 24, 140. legal institutions, such as operis no& nuntiatio and
L~~ R~~~~~ ~ ~ ~ ~ 500.1~ B ~ -~ cautio
A.D. d damnii infecti, ~as well ~
as of the~ jurisdiction
~ of .
longs to the so-called L E G E ~ROMANAE BARBARORUM. municipal magistrates and some procedural questions
It is a compilation of Roman legal rules for the use against confessi).
of the Roman citizens in Burgund. Its sources are Edition: Riccobono, FIR 1' (1941) 169 (Bibl.) ; Graden-
witz, Versuch einer Decomposition des Rubrischen Frag-
the three Codices, Gregorianus, Hermogenianus and ments, SbHeid 1915; Berger, RE 12, 2412.
Theodosknus, some ~ost-Theodosian Novels, and Lex Rupilia. (131 B.c.) Organized Sicily as a prov-
juristic writings of Gaius and Paul. ince. It is frequently referred to in Cicero's orations
Berger, RE 12, 2406; Baviera, FIR 2 (1940) 713; De against Verres.
Salis, Monumenta Germaniae Historica, Legum sectio 1,
2 (1892) ; H. Riiegger, Eifiiisse des rom. Rechts in der Weiss, RE 12, 2413.
L.R.B., Diss. Berne, 1949. Lex Saenia. (30 B.c.) See LEX CASSIA of 45 B.C.
Lex Romana canonice compta. A collection of con- Acta Divi Augusti 1 (1945) 107.
stitutions from Justinian's Code, primarily concerned Lex Salpensana. (A.D. 82-84.) A municipal consti-
with ecclesiastical matters. It was compiled in Italy tution of the Latin municipium SalPensa. A part of
in the ninth century. the text, together with the LEX MALACITANA, was
C. G. Mor, L.R.c.c., Pubbl. Univ. Pavia, 1927. found on a bronze tablet near Malaga in Spain. The
Lex Romans Raetica Curiensis. Also called Utinen- sections of the two charters preserved inform us
sis. (Of the late eighth or ninth century.) Built about municipal magistracies, manumission of slaves
up on the pattern of the LEX ROMANA VISIGOTHORUM, and appointment of tutors (Lex Salpensana), munici-
for the use of Roman citizens in the Franconian pal assemblies, candidates in elections and voting, the
state. administration of municipal funds, tax-farming, fines,
Berger, RE 12, 2406; Edition: Zeumer, Monumenta Ger- and the like (Lex Malacitana). Some provisions are
maniae Historica, Leges, 5 (1889). preserved in both charters.
Lex Romana Visigothorum. By order of Alaric 11, Kornemann, RE 16, 614; Riccobono, FIR 1' (1941)
king of the Visigoths, a compilation of Roman Law 202, 208 ; Schulz, St Solazzi (1948) 451.
was made for the use of Roman citizens in the Visi- L ~ Scatinia x (Scantinia). Against stuprum cum mas-
gothic state. The sources excerpted in the collection culo ( = pederasty, 149 B-c.). The penalty was a
are the three Codes, Gregorianus, Hermogenianus fine of ten th~usandsesterces.
and Theodosianus, the post-Theodosian Novels, Berger, RE Suppl. 7, 411; Weiss, RE 12, 2413.
Gaiusl Institutes and PauYs Sententiae. The ex- Lex Scribonia. (About 50 B.c.) Excluded the acqui-
cerpts from the Sententiae and the Theodosian Code sition of servitudes through usucapio-
are provided with paraphrastic and explanatory notes, Leonhard, RE 2A, 1826; G. Rotondi, Leges publ. populi
interpretationes, of unknown origin, but not unim- Romani, 1912, 414; Levy, St Albertario 2 (1950) 221.
portant for they often contain' additional details. Lex semiunciaria. (De fenore semiunciario, 367 B.c.)
The Lex Rowuna Visigothorum is called also Bre- Reduced the fenus unciarium to half the former rate.
viarium Alaricianunt (Alarici) .-See INTERPRETA-
-See FENUS UNCIARIUM.
Berger, RE Suppl. 7, 394
TIONES AD CODICEM TIIEODOSIANUM, EPITOME GAI.
Edition: Haenel, L.R.V., 1949; Baviera, FIR 2' (1940) Lex Sem~rOniaagraria. There were agrarian
655 contains excerpts of the Codex Gregorianus and Her- laws under the name Sempronia: one of the tribune
mogenianus, and two appendices of the lex; Epitome Gai, Tiberius Sempronius Gracchus of 133 B.c., the other
ibid. 231. Translation: S. P. Scott, The Visigothic Code, of ~~i~~ sempronius ~~~~~h~~ of 123 B,c.-~ee
Boston, 1910.-Bibl.: Berger, RE 12, 2407; Baudry, DS 1
LEGES AGRARIAE'
(s.v. Breviariunt A , ) ; Patetta, AG 47 (1891) 3 ; Calisse,
AG 72 (1904) 143 ; M. Conrat, Breviarium A., 1903; idem, G. Rotondi, loc. cit. 298 (Bibl. on the Gracchi, see also
Die Entstehung des westgothischen Gaius, 1905; idem, Der Rotondi, Scritti 1, 1922, 421), 307; Vancura, RE 12, 1169;
westgothische Paulus, 1907; G. G. Archi, L'Epitome Gai, Terruzzi, BIDR 36 (1928) and Ath 5 (1928) 85.
1937; Lear, The public law in the Visig. Code, Speculum Lex Sempronia de abactis. (123 B.c.) A magistrate
26 (1951) 1 ; Bruck, St Arangio-Ruiz 1 (1952) 202. forced to resign his office by a decision of the people
Lex Roscia. See EQUITES. could not obtain another office.
Lex Roscia theatralis. (67 B.c.) Contained some Berger, RE Suppl. 7, 412.
rules about the distribution of seats in the theaters. Lex Sempronia de provocatione. (123 B.c.)
The equites were seated behind the senators.-See Strengthened the rules regarding the appeal to the
LEX IULIA THEATRALIS. people (provocatio) .
Von der Miihll, RE IA, 1126 no. 22. Cuq, DS 3, 1164.
Lex Rubria de Gallia Cisalpina. A charter for Gallia Lex Sempronia frumentaria. (123 B.c.) A plebis-
Cisalpina, issued before 42 B.C. when the territory cite proposed by G. Sempronius Gracchus, introduced
BERGER [TRANS. A M E R . PHII.. SOC.
the distribution of grain ( f r t t $ $ r c n t a f i o ) to all R o n ~ a n Lkcrivain, DS 5, 412; De Villa, NDI 12, 1, 552; Stras-
citizens: five measures, ncodii, monthly at the fixed burger, RE 7A, 519; Rotondi, lor.. i it. 438.
price of 6% asses. A later statute, le.r Clodia (58 Lex Titia. O n tt~torship(under Augustus, date un-
B . c . ) , restricted the distribution to needy people. known) ; see L E X I U L I A ET T I T I A .
Rostowzew, RE 7, 173; Cardinali, DE 3, 239; l'an Lex Trebonia. (448 B.c.) Introducecl the election of
Berchem, La distribution du blC d la pli.be rom., Geni.ve, ten plebeian tribunes in the concilia plchis.
1939. Rotondi, Eoc. (it. 206.
Lex Sempronia iudiciaria. See E Q U I T E S (123 B.c.) . Lex Tullia de arnbitu. (63 B.c.) Proposed under the
GuPnoun, Bt Giyard 1 (1912) ; Fraccaro, RetrdLoiirir 52 consulship of Cicero.-See A M B I T U S .
(1919) 355. Berger, RE 12, 2416.
Lex Sempronia. O n interest. (193 B.c.) Provided Lex unciaria. See L E X CORNELIA POMPEIA.
that Roman statutes on interest in loan contracts Lex Ursonensis. See LEX COLONIAE IULIAE GENE-
should be also applied to transactions fictitiously (via TIVAE.
fraudis) concluded with citizens of allied states (socii) Lex Valeria de provocatione. (509 B . c . ) At the
in order to avoid the restrictions imposed on loan very beginning of the Republic, this established the
transactions among Roman citizens. rule that a Roman citizen sentenced to capital or cor-
Berger, RE Suppl. 7, 412 (no. 5) ; Rotondi, lor, cit. 271. poral punishment by a consul had the right of appeal
Lex servilia de repetundis. ( 1 1 1 B.c.) More severe to the people. The rule was confirmed by the T\velve
than the previous laws on the rrinzcn repetundarum. Tables, which provided that the appeal had to 1)e
It was the first statute to introduce the loss of political submitted to the covtifia ccntrruintn. The rule, ap-
rights as a penalty for repetlrndae. parently violated in later times, was repeated with
Berger, RE 12, 2414. severe punishments by a Lcx T'oleria Horntia (419
Lex Silia de condictione. An early statute of un- B.c.), again by a Lcx Valeria (300 B.c.) and a cen-
known date which established the lcgis actio per con- tury later by the L E G E S P O R C I A E . - S ~PROVOCATIO
~
diction en^ for claims of a fixed sum of money (cer- G. Rotondi, lor. cit. 190; G. Pugliese, Appunti srti llirliti
fft?lt).-See L E X C A L P U R N I A , L E G I S A C T 1 0 P E R C O N - dcll'imperirc~rt giclla repressio~cpcrrolc, 1939.
DICTIONEM. Lex Valeria. On the abolition of kingship. (509 B.c.)
Nap, T R 9 (1929) 62. Threatened with the death penalty anyone who would
Lex Silia de ponderibus. (Date unknown, third cen- endeavor to promote the restoration of kingship.
Berger, R E Suppl. 7, 414.
tury B.c.?) Introduced penalties for magistrates who
forged, or participated in a forgery of, weights or Lex Valeria. O n debts, issued in a time of econon~ic
measures. crisis. (86 B.c.) Permitted the debtors to pay only
Riccobono, F I R 1' (1941) 79. one-fourth of their debts and freed then1 from the
Lex Tarentina. See L E X M U N I C I P I I T A R E N T I N I . remainder. The statute, criticized later as t z t r p i s s i q n a
Lex Terentia. (189 B.c.) Gave the sons of freedmen 1e.v ( = "a very bad law"), was in force only a few
citizenship o p t i t ~ z oiure (with full rights). years.
Munzer, RE 5A, 652; Kubler, R E 9, 1545; Steinwenter, Lex Valeria Cornelia. ( A . D . 5 . ) See D E S T I N A T I O .
RE 13, 108. Lex Valeria Fundania. See L E X O P P I A .
Lex Thoria. An agrarian law o f 119-118 B.c., often Lex Valeria Horatia. See L E S V A L E R I A D E PROVOCA-
identified with the L E X AGRARIA of 111 B.C. TIONE.
Vancura, RE 12, 1176; Rotondi, loc. cit. 318; Thompson, Lex Valeria Horatia. (449 B.c., on plebiscites.)
Classical R e v . 27 (1913) 23; Caspary, Klio 13 (1913) 84; Provided that "what the plebs assembled by tribes
Hardy, /our. o f Philol. 30, 32 (1909, 1912) ; D'Arms, ( t r i b z t t i n a ) ordered was binding on the whole people"
Amer. Jour. of Philol. 56 (1935) 232.
(Livy 3.55) .--See L E X P U B L I L I A P H I L O N I S .
Lex Titia de aleatoribus. A republican statute which G. Rotondi, loc. cit. 203; Humbert, DS 1, 546; Guarino,
allowed betting on sports in which the bravery (vir- Fschr Schu1,- 1 (1951) 461.
t u ~ of
) the competitors was implied. The statute is Lex Valeria Horatia. (449 B.c.) O n the inviolability
mentioned (D. 11.5.3) together with a Lex Publicia of the plebeian tribunes.-See S A C R O S A N C T I .
and a Lex Cornelia the provisions of which are Lex Valeria Horatia. (449 B.c.) O n s e n a t u s c o n s t t l t a .
unknown. I t ordered the deposition of senatusconsulta with the
Lex Titia. (43 B.c.) Introduced an extraordinary plebeian aediles in the temple of Ceres.
magistracy, a commission of three persons for the Lex Vallia. (Second century B.c.) Permitted the
reorganization of the constitutional structure of the debtor in some cases of M A N U S I N I E C T I O to resist
state, tresviri reipublirae constituendae causa (the immediate arrest by the creditor who laid hands upon
first triumvirate was composed of Octavian. Antonius, him by repelling this gesture (nzanunz repellere), and
and Lepidus). They were invested with full con- to defend himself without the aid of a guaranty
sular power for five years and with the right to (VINDEX).
appoint magistrates. The commission was appar- Taubenschlag, RE 14, 1401; Berger, RE Suppl. 7, 416;
ently renewed by a statute of 37 B.C. G. Rotondi, lor. cit. 478.
VOL.43, PT. 2, 19531 ENCYCLOPEDIC DICTIC)NARY OF ROMAN LAW 561
L e x Varia. (90 B.c.) Punished for treason those imposing limits on the amount of legacies, aimed at
who "by help and advice" (ope et consilio) induced making inheritances more attractive to the heirs in-
an allied country to take up arnls against Rome. stituted and thereby discouraging their refusal of the
G. Rotondi, loc. cit. 339. testamentary inheritance, by which action all dis-
L e x Vatinia. See REIECTIO IUDICIS. nositions of the testator would I)e frustrated (testa-
L e x venditionis. The conditions of sale in the case mentum desertum, destitutum). On the other hand,
of BONORUM VENDITIO of an insolvent debtor. Gen- the lex Voconia had a purpose of more social char-
erally lex venditionis indicates a specific clause in a acter. namelv to restrain the luxurv of women in-
sale which differs from the normal provisions of such heriting big patrimonies. The rule, mentioned al)ove
a contract.--See LEX CONTRACTUS. under 3, was superseded by the LEX FALCIDIA.The
Vazny, B I D R 40 (1932) 72. inca~acitvof women to be instituted testamentarv
- 9
L e x Vetti Libici. A statute of unknown origin and heirs was somehow alleviated by the Augustan legis-
content. The name is preserved in an imperial con- lation on marriage and lost its practical significance
stitution (C. 7.9.3.1) which notes the extension of no later than the beginning of the second century.
that law to the provinces. The name is certainly An allusion to the motivation of the lex Voconia,
corrupt. The law apparently dealt with the citizen- unfavorable to women's rights of succession is re-
ship of freedmen, who before the enfranchisement flected in the term Voconiana mtio.
were servi publici. Steinwenter, R E 12, 2418 (Bib].) ; Kiibler, Z S S 41 (1920)
Leonhard, RE 12, 2417; Cuq, D S 3, 1167; G. Rotondi, 23; Brassloff, Studien zur rom. Rechtsgeschichte, 1925,
loc. cit. 471. 70; Cassisi, AnCat 3 (1950).
L e x Vibia. (43 B.c.) Renewed the abolition of the Libellaticus. See LIBELLUS LIBELLATICI.
dictatorship.-See LEX ANTONIA. Libellensis. See S C R I N I U M LIBELLORUM.
L e x Villia. Called annalis (180 B.c.). Fixed the Libellus. A small booklet (liber), a pamphlet. The
minimum age for Roman magistrates: for consuls term is applied to all kinds of petitions or letters
forty-three years of age, for praetors forty, for addressed to the emperor or a high official. Syn.
aediles curules thirty-seven. The interval of time preces, supplicatio. Written complaints in civil or
between the tenure of two offices was settled at two criminal matters (accusations) as well as written
years. declarations (attestations, issued by an official or a
Humbert, D S 1, 270; Rotondi, loc. cit. 278; Fraccaro, private person) are also termed libellus. In the
CentCodPav (1934) 473; Afzelius, ClMed 8 (1947) 263. Roman civil procedure of the later Empire a libellus
L e x Visellia. O n freedmen (A.D. 24). Freedmen of ( = petition, complaint) of the plaintiff was the start
a lower degree of citizenship (LATINIIUNIANI) ob- of proceedings called per libellurn.-See A LIBELLIS,
tained full Roman citizenship as a reward for six EPISTULA,and the following items.
V. Premerstein, R E 13; Thedenat, D S 4 ; L. De Sarlo,
years' service in the fire brigades (VIGILES) of. I1 documento come oggetto di rapport;, 1935, 57.
Rome. Another provision of the law punished freed- Libellus accusatorius. A written accusation. ad-
men who falsely pretended to be free-born; Under dressed to the competent official with the purpdse of
the statutelfreedmen were excluded from municipal initiating a criminal trial against a person.-See
offices, especially from the decurionate.-C. 9.21. ACCUSATIO.
Leonhard, R E 12, 2418; Rotondi, loc. cit. 465; Schneider,
Z S S 5 (1884) 245. Libellus appellatorius. See APPELLO.
L e x Voconia. (169 B.c.) Contained several provisions Libellus contestatorius. A petitioh by which a person
concerned with the law of succession: (1) No woman appointed as a guardian requests to be released on
could be heir (heres) to an estate having a yalue the grounds of a legal excuse.-See EXCUSATIO.
greater than a fixed amount on which the available Libellus contradictionis (contradictorius) A writ- .
historical spurces do not agree (it was at least ten reply by which one party to a trial contradicts
200,000 asses). The restriction did not apply to the claims or facts presented by his adversary. I n
intestate inheritance and to legacies, nor to testa- the libellary procedure (per libellum) libellrts contra-
ments of Vestal virgins and of the $amen Dialis. dictionis is the defendant's written reply to the libellus
(2) Admitted among female agnates only the sisters conventionis of the plaintiff .-See the next item.
of the deceased to intestate succession. (3) NO Betti, A C D R Roma 2 (1935) 152.
one person-male or female---could receive by legacy Libellus conventionis. A complaint addressed to the
more than the heir (or all heirs together) instituted judicial magistrate (in provinces, to the governor) in
in the last will. This prohibition was also limited to which the writer presents the facts on which he bases
larger estates, as above. The possibility remained of his claim against the defendant. Thereupon the of-
leaving the heirs very small portions in order to make ficial authorizes the plaintiff to summon (with the
numerous small legacies. The lex Voconia belongs, assistance of a subordinate clerk of the court. exse-
together with the former LEX FURIA TESTAMENTARIA cutor), the defendant communicating the libellus con-
and the later LEX FALCIDIA,to the statutes which by ventionis to him. The defendant either recognizes
562 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
the plaintiff's claim or denies it in a written libellus Libellus repudii. See DIVORTIUM.
contradictorius in which he assumes the obligation Libellus rescriptorum. See LIBER LIBELLORUM RE-
to appear before court.-See the foregoing item. SCRIPTORUM.
V. Premerstein, R E 13, 49; Mitteis, SbLeipz 1910, 61; Liber. A son. See LIBERI (children).
Steinwenter, Fschr Hanausek (Abhandl. zur antiken Liber. (In juristic writings.) A book as a division
Rechtsgesch. 1925) 36; idem, Z S S 50 (1930) 373, 54
(1934) 373; idem, SDHI 1 (1935) 132; idem, Fschr of a written work. The jurists used to divide their
Wenger 1 (1944) 180; P. Collinet, Lo prockdurc par libclle writings into books (libri). The average size of a
( B t historiques sur le droit de Justinien 4 ) , 1932; Betti, liber was from 1500 to 2500 lines, each of approxi-
A C D R Roma 2 (1935) 145 (Bib!.) ; Balogh, St Ricco- mately 35 letters. Gaius' Institutes are divided into
bono 2 (1936) 453.
commentarii. A writing consisting of one book only
Libellus dimissorius. (Appears only in the plural, = liber singularis.
libelli dirnissorii.) See LITTERAE DIMISSORIAE, AP- P Kriiger, Z S S 8 (1887) 76.
PELLO.-D. 49.6. Liber. (Adj.) Free. For liber in the sense of a free
Libellus divortii. See DIVORTIUM. man, see LIBER (HOMO),LIBERTAS, STATUS LIBERTA-
Libellus familiae. (Liber patrinzonii.) A book in TIS. Generally, according to the connection in which
which the whole property of the family (estate, slaves, it is used, liber means free from any legal or factual
valuable furniture, etc.) was recorded. restrictions ; with reference to immovables = free
Libellus famosus. A pasquil, a lampoon. Syn. libellus from charges (servitudes, hypothec) .-See CIVITATES
ad infarnianz alicuius pertinens (= defaming another LIBERAE.
person). Accordigg to the Lex Cornelia de iniuriis Liber (homo). A free man, either a free-born (in-
punishment was inflicted on the person who wrote genuus) or a freedman (libertinus, libertus). A
(scripserit ) , composed (cornposuerit) or edited (edi- person is free-born when born of free parents, legally
derit) such a lampoon, even if the publication was married, even when they were not £re?-born them-
made under another name or anonymously (sine selves, but were free when the child was born. A
nomine). Libellus fatnosus was also a letter ad- child born of parents not married follows the con-
dressed to the emperor or an official containing dition of the mother. Ant. servus.
malicious accusations against another person. If the Liber Authenticorum. See NOVELLAE IUST~NIANI.
letter was anonymous, it had to be burnt, without Liber beneficiorum. See COMMENTARII BENEFICIO-
any investigation against the person defamed.-D. RUM.
47.10; C. 9.36.-See CARMEN FAMOSUM, LEX COR-
Baudry, D S 1, 688.
NELIA DE INIURIIS.
Pfaff, RE 13; v. Premerstein, R E 13, 29; Thedenat, D S Liber Gaii. See EPITOME GAI.
3, 1176; Anon., NDI 7. Liber homo bona fide serviens. A free man who does
Libellus inscriptionis. A written accusation of a not know his status as a free man and serves in
crime brought against a person by an accuser (ac- good faith as another's slave. This might happen
cusator). I t contained a detailed description of the when a free-born child was exposed by his parents
wrongdoing and was used by the competent office as (see EXPONERE FILIUM) and was treated by the
the basis for the registering of the case in the official person, who took him into his home, as a slave, or
records (see INSCRIPTIO) . This initiated the inves- when a slave manumitted in a testament by his
tigation and the criminal trial.-See LIBELLUS ACCU- master, had no knowledge of his being freed. What
SATORIUS, INSCRIPTIO I N CRIMEN. such a person acquired at his "master's" expense ( e x
R E 13, 59 re domini) or through his own labor belonged to the
"master," all other acquisitions, donations, and testa-
Libellus libellatici. A petition addressed to the com- mentary gifts were his. Good faith on the part of
mission instituted during the persecution of Chris- the master is also presumed. Different is the situa-
tians by the emperor Decius, in which the petitioner tion of a free man who fraudulently (dolose) lets
( a Christian who, in fact, did not perform the pagan himself to be sold as a slave and shares the price
sacrifices) requested the issue of a certificate that he with his accomplice who performed the sale. H e
had made the appropriate sacrifices to the Roman loses freedom and becomes the slave of the buyer.-
gods. The certificate saved him from persecution. See INGENUUS MANUMISSUS, EX RE ALICUIUS.
V. Premerstein, RE 13, 46; Wittig, R E 15, 1280; P . M. Berger, Philologus 73 (1914) 69; idem, Z S S 43 (1922)
Meyer, Die libelli der Decianischcn Christenverfolgung, 398; G. Dulckeit, Erblassenuille, 1934, 12, 79; G. Ciulei,
A P r A W 1910, Abh. 5 ; Faulhaber, Zeitschr. fur kath. L.h.b.f.s., Paris, 1941.
Theologie 43 (1919) 439, 617; Knipfing, Haward The01
Rev 16 (1923) 345; Bludau, Ram. Quartalschrift, Suppl. Liber libellorum rescriptorum. A collection of im-
Heft 27 (Freiburg i. Br., 1931) ; H. Schoenaich, Die I. perial rescripts issued in legal matters and publicly
und ihre Bedeufung fur die Christenverfolgung, 1933. exhibited (see PROPONERE).Copies of single re-
Libellus refutatorius. See REFUTATIO,
CONSULTATIO. scripts could be made by private individuals. On
V. Premerstein, R E 13, 59. request they were provided with an official clause
VOL.43, PT. 2, 19.53) ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 563
confirming their correctness (descriptum et recogni- indicates the release of a guardian from tutorship,
turn facturn). or a curator from curatorship. Liberare refers to
F. v. Schwind, Zur Frage der Publikation i m rom. R., 1940, the emancipation of a son from paternal power, too.
169. In criminal matters liberare = to absolve, to acquit
Liber patrimonii. See LIBELLUS FAMILIAE. the accused.-D. 46.3; 34.3; C. 8.42; 11.40.-See
Liber populus. See CIVITATES FOEDERATAE. ACCEPTILATIO, SOLUTIO, MANUMISSIO, EMANCIPATIO,
Liber ~iro- oma anus. An anonymous legal compila- PER AES ET LIBRAM.
tion of an unknown date (fifth century?) preserved Cuq, D S 3 ; Meylan, S t Riccobono 4 (1936) 287.
in oriental versions (Syriac, Arabic and Armenian), Liberi. Children, sons and daughters. In a broader
presumably derived from a Greek translation of a sehse the term embraces all descendants.-See IUS
Latin original. It deals primarily with laws of LIBERORUM, INTERDICTUM DE LIBERIS EXHIBENDIS,
family, slavery, and inheritance and takes imperial TESTAMENTUM PARENTIS INTER LIBEROS.
legislation into account. The purpose of the com- Lanfranchi, StCagl 30, 2 (1946) 15.
pilation which in the various manuscripts shows Liberi iusti. See FILIUS IUSTUS.
different additions, is not quite clear. It would seem
Liberi naturales. See FILIUS NATURALIS.-C. 5.27.
that it has been prepared for teaching rather than
for the use of practitioners. Liberorum quaerendorum (procreandorum) causa.
Editions : Bruns and Sachau, Syrisch-riim. Rechtsbuch aus Procreation of legitimate children was the aim of
dew 5. Jahrhundert. 1880: E. Sachau, Syrisch-romische a Roman marriage. At the registration of citizens
Rechtsbiicher 1 (19d7). &tin translations Ferrini, Opere (see CENSUS)the-head of a family was asked whether
1,397; Furlani in F I R l 2 (1940) 753.-Seidl, R E 4A, 1779; he was living with a wife liberorum quaerendorum
Mitteis, A P r A W 1905; Ducati, B I D R 17 (1905) ; idem,
Riv. di storia antica 10 (1906) ; Nallino, S t Bonfante 1 causa. Hence a woman married in iustae nuptiae =
(1929) and in a series of articles, now republished in uxor liberorunz quaerendorum causa.
Raccolta di scritti, 5 (1942) ; Volterra, R I S G 88 (1951) Libertas. Liberty, freedom, the status of a free (see
153 (Bibl.) ; Taubenschlag, Jour. of juristic papyrology 6
(1952) 103.
LIBER) person as opposed to slavery (SERVITUS) .
In a broader sense libertas is "the power to live as
Libera facultas mortis. Permission granted by the you wish" (Cicero, Parad. 5.1.34). The following
emperor to persons condemned to death to evade is the definition of the jurist Florentinus (D. 1.5.4
execution through suicide. Provincial governors did pr.) : "Libertas is the natural liberty of doing what-
not have this right. Syn. liberum arbitrium mortis. ever one pleases unless something is prohibited by
-See SUICIDIUM, MORTEM SIBI CONSCISCERE. force or law." This definition was literally repeated
F. M. De Robertis, S t di dir. penale, 1943, 89. by Justinian in his Institutes (1.3.1). "Freedom is
Liberalis. Concerning liberty. For liberalis causa inestimable" (D. 50.16.106), it cannot be evaluated
(liberale . iudiciunz) , see cAUSA LIBERALIS.-See in money. Trials in which the libertas of a person
OPERAE LIBERALES, STUDIA LIBERALIA. is involved = causa liberalis (iudicium liberale) .-
Liberalitas. Liberality, generosity. The term covers C. 7.22.-See STATUS LIBERTATIS, FAVOR LIBERTATIS,
acts of liberality both by private individuals, magis- VINDICATIO I N LIBERTATEM. Libertas with regard to
trates, and by the emperor as well (donations, distri- immovables denotes freedom from servitudes.-See
bution of money among the people, missilia, con- USUCAPIO LIBERTATIS, ADEMPTIO LIBERTATIS, POSSES-
giarium; the coins or TESSERAE NUMMARIAE had the SIO LIBERTATIS.
inscription ex liberalitate Augusti = by liberality of H. Kloesel, Libertas, Diss., Breslau, 1935; G. Lombardi,
the emperor). Liberalitas occurs only when there is Concetti fondatn, dcl dir. p~~bblico,1942, 32; Wirszubski,
no reciprocal performance and no compensation. If L. as a political idea at Rome d~crbtgthe late Rcpublic and
early Prittcipate, 1950; Wenger, S D H I 15 (1949) 60;
a person is sued for the fulfillment of an obligation Biondi, I1 diritto romano propagatore della libertd, Jus,
assumed by liberality, he could be condemned only to n. s. 3 (1952) 266.
id quod fncere potest, i.e., as far as his means allow, Libertas directa. See the next item.
10.14.
Berve, R E 13; Pringsheim, S t Albertario 1 (1952) 661. slave through a FIDEICOMMISSUM. The slave becotiles
free when the heir fulfilled a formal manumission.
Liberare (liberatio). Applied in the field of private
Ant. libcrtas directa, when a testator freed a slave
law in different meanings. With regard to slaves it
directly ("liber esto" = he shall be free) in his
is syn. with manz~nzittere (= to free) ; with regard
to contractual or other obligations = to release the testament ; see MANUMISSIO TESTAMENTO.
debtor either after payment or through an act of Libertas Latina. See LATINI IUNIANI,LATINITAS.
liberality (see LEGATUM LIBERATIONIS) ; with regard Libertinitas. The status of a freedman (libertinlcs) .
to things = to release a thing from a legal tie, e.g., A free-born considered erroneously a freedman might
from a servitude or from being pledged. Liberare defend his ingcniritas (the status of a free-born)
creditorenz = to satisfy a creditor. Liberare also hefore court ; see INGENUITAS.
564 ADOLF BERGER [TRANS.
AMER.
I'HII,.SOC.
Libertinus (libertina). \i person born as a slave, but law, however, the manumitter's son became his pa-
set free later by inanumission (see MANUMISSIO), a tron with all the rights of patronage.
freedman. Ant. ingrnlrlrs (= free born) and scrvzis Loreti-Lorini, B I D R 34 (1925); Harada, Z S S 59 (1939)
(= a slave). Freedmen were citizens, though en- 498.
joying fewer political rights than the free-born. Libra. A balance. A libm was used in formal acts
They were excluded from inagistrncies and sacertlotal concluded per C[PS ct 1ihmitz.-See PER AES ET L I B R A M .
offices, and could not become meml)ers of the senate. L. Michoci, Recueil F. GCny, 1 (1934) 42.
Their right of voting in the popular assemblies was Librarius. A slave who, in the service of a wealthy
regulated to their disadvantage (exclusion froin par- master, was charged with writing letters, copying
ticipation in coutitia ccntztriata as long as they were books, and sometimes with bookkeeping. Librarizts
based upon the organization of the army, since freed- is also the technical term for a book-seller.-See
men were not admitted to the service in the legions). SCRIBA.
Their social position, however, was not unfavorable Bilabel, RE 13; Lafaye, D S 3.
because they were entrusted with confidential work Libri. For some kinds of libri in the sense of records,
in the household of their patrons. Their social es- registers, lists, see under LIBER,and the following
teem increased even under t h e Principate since inany items.
posts in the imperial chancery, in the general atli~lin- Libri a d edictum. Commentaries on the praetorian
istration and in that of the imperial patrimony were edict written by jurists. There were commentaries
confided to them, in particular to the emperor's freed- on the e re-Hadrian edict and after Hadrian on the
men (see LIBERTr CAESARIS).Hadrian introduced edictunt pcrpetuum as compiled by the jurist Julian;
restrictions in the use of freedmen in important ad- see EDICTUM PRAETORIS,E DICTUM PERPETUUM
nlinistrative positions in favor of persons of equestrian HADRIANI.
rank.-Inst. 1.5; C. 10.58.-See LEX VISELLIA, RESTI- Libri a d 'Sabinum. See SABINUS.
TUTIO NATALIUM, LIBERTUS (Bibl.) . Libri censuales. A land-register for taxation purposes.
Steiner, R E 13; Lkcrivain, D S 3 ; Sciascia, N D I 7 ; Bar- Libri magistratuum. Lists of' the annual magistrates
NIARIA). When in a rei vindicatio the defendant however, occurs frequently in Justinian's legislative
refused the restoration of the thing claimed, it re- work where it refers to the cognitio extra ordinem
mained with him when he paid the litis aestinzatio. and the postclassical procedure. What was later
He could now acquire ownership thereon since he called litis contestatio resembled somewhat the classi-
was protected against a new claim for the recovery cal litis contestatio; it was the moment when the
of the thing by an exceptio rei iudicatae.-See ARBI- jurisdictional officer "started" (coeperit) to hear the
TRIUM LIT1 AESTIMANDAE, IUSIURANDUM I N LITEM. exposition of the case by the parties or their repre-
Kipp, RE 1; Cuq, D S 3; Huvelin, M i l Gbrardin 1903, sentatives: the narratio by the plaintiff, and the
319; E. Betti, Studi sulla litis a,, 1-2, 1915; idem, La 1.a.
in rapport0 a1 tempo nelle varie specie di azioni, 1919; 0. contradictio by the defendant. Legal consequences
Carrelli, L'acquisto deEla Proprietd per l.a., 1934; A. Er- attached to the former litis contestatio became now
hardt, L a . i m rom. Formularprozess, 1934; idem, Z S S 55 connected
-
with the final judgment itself.-C. 3.9.-
(1935) 36; M. Kaser, Quanti ea res est, 1935; Russo- See IUDICIUM ACCIPERE, ABSOLUTORIUS, EXCEPTIO,
Spena, R B S G 10 (1935) 548. RES LITIGIOSA, EXCEPT10 RE1 IUDICATAE, PERIRE, SUS-
Litis contestatio. The final act in the proceedings CIPERE ACTIOKEM.
in iure, by which, after the appointment of the judge Weiss, R E 13; Humbert, D S 3; R. De Ruggiero, B I D R
( i u d e x ) , the controversial issues are established and (1905) 149; Gradenwitz, Fg Bekker 1907; Wlassak,
submitted to the latter for the examination of the . -
SbWien 184 (1917), 194 (1920) ; E. Betti, Costruzione
giuridica della consunzione processuale, 1919 ; Guarneri-
facts and for judgment. In the procedure of legis Citati, B I D R 34 (1925) 163; Riccobono, Z S S 47 (1917)
actiones the end of the first stage of the process took 65; Meylan, M41 Cornil 2 (1926) 81 ; M. Kaser, Restituere
place before witnesses summoned by the phrase als Prozessgegenstand, 1932; E. Carrelli, La genes; del
"testes estote" ( = be witnesses), :, hence the term procedimento formulare, 1946, 17; Lavaggi, A G 134 (1947)
con-testatio. In the formulary procedure the litis 24; C. Gioffredi, Contributi a110 studio del processo civ.
rom., 1947, 65; Di Paola, AnCat 2 (1948) 253; Biscardi,
contestatio was achieved by agreement of the parties R I D A 4 (=.Mil De Visscher 3, 1950) 159; Bonifacio,
about the formula. The concept that the litis con- S t Albertario 1 (1952) ; Pugliese, Riv. d i diritto proces-
testatio was of a contractual nature has been common suale 6 (1951).
opinion in the literature, since the parties gave their Litis denuntiatio. See DENUNTIATIO LITIS.
consent to surrender their controversy to the private Littera Florentina. See FLORENTINA.
judge. Among the manifold effects of the litis con- Littera Pisana. See FLORENTINA.
testatio the most important is that the plaintiff's right Naber, S t Bonfarzte 2 (1930) 289.
to sue the defendant is "consumed" (actio consumi- Littera vulgaris. See VULGATA.
t u r ) which excluded a second trial for the same Litterae. A writing (opposed to spoken words, oratio),
clajm; see BIS IDEM EXIGERE, EADEM RES. The de- a letter (syn. epistula). A letter may be used for the
fendant is protected, under specific circumstances, conclusion of an agreement (contrahere) between
against a second suit by the law itself (ipso iure). persons not living at the same place. Illiterate per-
In such cases the praetor could reject the second sons (ignarus litterarum, ignorans or qui nescit lit-
action (denegare actionem) immediately and, be- teras) are excluded from legal acts which require a
sides, the defendant might object to the identity of the written form. Justinian issued special rules for
second claim with that of the first trial. I n other testaments of illiterate persons. "What has been
cases (iudicia imperio continentia, actiones i n rewz, written (litterae) on another's material (e.g., charta
artiones i n factuwz) the defendant had to oppose a = paper, membranae = parchment), even if written
formal exception (in the formulary procedure) that with golden letters, becomes his propertyJ' ( D .
the dispute at issue had been already the object of 41.1.9.1) .-See COMPARATIO LITTERARUM,
IGNARUS
a litis contestatio (exceptio rei in iudiciu~adeductae) LITTERARUM. EPISTULA.
or had been decided by a final judgment in a previous Litterae. (With reference to official correspondence.)
trial (exceptio rei iudicatae). After the litis con- A letter issued by a magistrate or an imperial official
testatio, the plaintiff's claim became transmissible to in an official matter. Litterae also indicates an im-
his heir. even in those cases in which it was not perial rescript ; see RESCRIPTUM PRINCIPIS.
hereditary before the litis contestatio being a strictly Litterae commendaticiae. A letter of recommenda-
personal claim. Through litis contestatio the original tion.
obligation of the defendant was extinguished (tollitur Litterae dimissoriae. A written report of a judicial
obligatio) and transformed into an obligation, based officer to a higher court in the caseof an appeal (see
on the litis contestatio itself, the substance of which APPELLATIO) concerning the controversy. I t was to
was to fulfill the judgment debt (iudicatum facere) be presented to the appellate court by the appealing
in case of condemnation. The legal " situation at the party. Syn. libelli dimissorii, aposto1i.-D. 49.6.-
time of the litis contestatio was decisive for the final See APPELLO.
judgment. With the disappearance of the bipartite Litterarum obligatio. (Obligatio litteris contracta.)
procedure the litis contestatio lost not only its ex- An obligation which originates from a written docu-
ternal aspect but also its material effects. The term, ment or from a written entry in an account-book.
VOI.. 43, PT. 2, 19531 ENCYCI-OPEDIC DICTIONARY OF KOMAN 1.AW
The ancient forms of litterarum obliaatio
" became ob- tween the parties. I t was held of locatio conductio
solete already in classical times. I n Justinian's law that it was a contract similar to the sale (proxima
there is a new form of obligatio litterarum. A scrip- emptioni) ; as a result many rules governing the sale
-
tura carried an obligation if the writer acknowledged - were applied to locatio condttctio.-Inst. 3.24; D.
by writing that he owed a sum of money to a certain 19.2; C. 4.65 ; 11.71.-See LOCARE EX INTEGRO,
RE-
person. H e coultl, however, during two years, object LOCATIO, RECONDUCTIO, MERCES.
that he actually had not received the money.-Inst. Leonhard and Weiss, R E 13; Herdlitczka, R E Suppl. 6
occupatio and became the property of the individual OPERAE LIBERALES) . Therefore, the expression op-
who found them. I n some texts litus nzuris is listed erae quae locari solent (= which used to be hired)
among res publicae. A building constructed on a refers only to the labor of craftsmen, artisans and
seashore belongs to the builder.-C. 12.44.-See manual workers. The locator (the workman) has
MARE, OCCUPATIO. to perform the services as agreed upon by the parties
Costa, Riv. dir. intern., 5 (1916) 337; idem, RendBol, ser. and the wages must be paid to him if the performance
11, vol. 10 (1925-26) ; Maroi, R I S G 62 (1919) 164; Biondi,
S t Perozzi 1925; Scherillo, Le cose (Lezioni), 1945, 71; of his services became impossible by a cause for
G. Lombardi, Ricerche in tema di ius gentium, 1946, 71, 90. which he was not liable (e.g., vis maior).-See IM-
Locare e x integro. (Syn. renovare locationem.) T o PERITIA, MERCES.
renew a lease, to prolong an existing lease.-See Deschamps, Locare operas, M i l Ghrardin 1907, 157;
Berger, A labor contract of 164 A.D., ClPhilol 43 (1948)
LOCATIO CONDUCTIO. 231; F. M. De Robertis, Rapporti di laaoro, 1946; idem,
Locatio conductio. A general term which covers Organizzazione e tecnica produttiva, 1946.
various types of lease and hire. The contracting Locatio conductio operis (faciendi). A contract by
parties a r e : the locator (is qui locat = he who gives which a person (conductor, redemfitor operis) as-
his thing, immovable or movable, in lease, who gives sumes the duty to perform a specific service or work
his materikl of, or on, which a work has to be done, on, or from, the material supplied by the employer.
or who lets out his services to another) and the If the workman produces a n opus out of his own
conductor (is qui conducit rem, opus, operas = the material, it is a sale (enzptio). Contracts of trans-
lessee of another's thing, the workman who engages portation of goods or persons is a locatio conductio
himself to make a specific work, or he who hires operis; likewise building a house hy a contractor on
another's services). The locatio conductio is a con- one's ground, no matter who furnishes the materials,
tract, concluded by mutual consent of the parties (see the contractor or a third person; locator is the owner
CONSENSUS) and governed by good faith, hence the of the ground ( d o m u ~ zaedificanda~qzlocare). Death
actions resulting from a locatio conductio, actio locati of the conductor dissolves the contract when the serv-
(ex locato) for the locator, and actio conducti (ex ices were strictly personal and had to be performed
conducto) for the conductor in the case of non- by the conductor himself. The employer has to pay
fulfillment of the reciprocal duties, are actiones bonae the wages (ttzerces) agreed upon when the work per-
jidei. For the various types of the locatio condzdctio formed corresponds to the provisions of the agree-
see the following items. The compensation for using ment. Approval by the locafor or by a third person
another's thing or services (~nerces)was paid, as a (adprohare) is often settled as a condition of the
matter of rule, in money, otherwise there was no employer's duty to pay the wages. The employer
locatio conductio but another kind of a contract (e.g., incurs the risk of the destruction of the work (even
a sale or an innominate contract; see CONTRACTUS not yet approved) by an accident or when there was
INNOMINATI) . There are specific rules concerning a delay in the approval by his fault.-See ADPROBARE,
the rights and duties of the parties and their respon- FULLO, RECEPTUM NAUTARUM.
sibility in the case of non-fulfillment. T h e normal Schulz, GrZ 38 (1911) 21; Huvelin, R H D 3 (1924) 322;
rules could be changed by a special agreement be- M. Boitard, Lcs cotttrats des scrvices gratuits, 1941; De
568 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
Robertis, I rappovti di lavoro, 1946, 153; Solazzi, A C I V e r F. Schulz, Die actiortes irr id quod pervcnit, Diss., Breslau,
3 (1951) 315. 1905: Albertario. Studi di dir. rom. 4 (1947. several arti-
Locatio conductio rei. A lease of a thing, movable or cles bf 1913-1914) ; G. Maier, ~riitorische~ e r e i c h e r u n ~ s -
klagen, 1932; Frezza, NuovaRDCom 2 (1949) 47.
immovable (a house, a plot of land), to be used by
the cond~rctoraccording to its economic and social Locus. Distinguished from FUNDUS ( = piece of land,
utility. A lease is concluded for a fixed period of estate) as a part of the whole. Both urban and rural
time (a rural property normally for five years) or lands are called locus. A plot of land in the city with
in perpetuity (in perpetuum, see EMPHYTEUSIS) no building on it = arca, in the country = ager.
. This
Full or partial sublease is generally admitted unless terminology, however, is more strictly observed
prohibited by the agreement. The lessee has no in juristic writings than in literary works and in-
possession of the thing let; he, therefore, has no scriptions.-See CONTROVERSIA DE LOCO,SUCCEDERE
I N LOCUM, USUS LOCI.
possessory protection through interdicts. The rent
Kiibler, R E 13.
is paid in money (li~erces); only in a lease of land
it may consist in a part of the proceeds (colonia Locus profanus. See PROFANUM.
partiaria). The lessor is liable to the lessee (the Locus publicus. (Pl. loca publica.) A parcel of
tenant) if the latter is evicted by a third person. It public land. It is property of the Roman people and
was customary that the lessor, when selling the im- is protected by various interdicts (INTERDICTA)
movable, obliged the buyer to respect the lease and against violation by private individuals who might
to leave the lessee on the spot until the lease expired. endanger its public character or its use by the people.
A renewal of the lease (relocatio) could be per- -D. 43.7; 8; 9.-See INTERDICTA DE LOCIS PUBLICIS,
INTERDICTUM DE LOCO PUBLIC0 FRUENDO.
formed by an agreement of the parties to this effect
LCcrivain, D S 3; G. Kriiger, Die Rechtsstellung der vor-
or tacitly (relocatio tacita) when the lessee kept hold- konstantinischen Kirche, 1935, 275.
ing the immovable and the owner did not object.-
Locus purus. A place which is neither locus sacer,
s e e INQUILINUS, INSULA,MERCES, COLONI PARTIARII,
nor sanctzrs, nor religiosus, and is consequently ne-
LOCATIO CONDUCTIO (Bibl.) , HABITATIO.
gotiable through all kinds of transactions.-See the
V. Bolla, R E 18, 4, 2474; Berger, Wohnungmiete und
Venvarldtes kt den Papyri, Z V R 29 (1913) 321 ; E. Costa, following items.
Locazioite di rose, 1915; Pfliiger, Z S S 65 (1947) 193. Locus sacer. A land or a building dedicated to the
Locatio sub hasta. A lease performed through a gods with the authorization of the senate or by a
public auction.-See AUCTIO,HASTA. statute. Interdicts (INTERDICTA) served the protec-
Voiat.
- . BerSachsGW 1903. 19. tion of loca sacra.-D. 43.6.-See RES SACRAE,
INTER-
DICTUM N E QUID I N LOCO SACRO.
nor that one suffer a loss to the profit of another" Ludi saeculares. Extraordinary public festivals, com-
(D. 23.3.6.2) is of classical origin.-C. 12.61.-See bined with religious ceremonies, and arranged for the
COMMUXICARE LUCRUM CUM DAMNO.
celebration of the end of a saeculum (century) and
Griinwald, Ordnung der die Worte lucrum, lucrifacere etc. the beginning of a new one. They were organized
enthalteitden Stellen der Digesten, Diss., Heidelberg, 1912. by priests, duoviri sacris faciundis.-See SENATUS-
Lucrum cessans. See D A M N U M EMERGENS. CONSULTA DE LUDIS SAECULARIBUS.
Lucrum facere. (Syn. lucrifacere.) See FURTUM. Nilsson, RE lA, 1696; Taylor, O C D f (s.v. secular
games) ; Diehl, SbBerl 1932, 762; J . B. Pighi, De ludis
Luctus. Mourning. During the time fixed for mourn- saecltlari61ts populi Rotla., Milan, 1941 ; Wzgenvoort, Mede-
ing (tcittp~rslugcndi) after the death of her husband lingett der Kon. Nederl. Akad. van Wetenschappen, Letter-
(ten months, later one year) the widow had to abstain kuttde 14, no. 4 (1951) 163.
from another marriage. One of the reasons was to Ludi venatorii. See LUDI GLADIATORII.
avoid confusion about the paternity of a child born Ludicra ars. Histrionic art. Actors and actresses
after the husband's death (turbatio sanguinis = con- (qui 1udicrai.n artem exercent) were branded with
fusion of blood). She might, however, become en- infamy. Members of senatorial families were pro-
gaged or marry with the emperor's permission. If hibited to marry actresses or actors, or persons whose
she had given birth to a child after the husband's
u
Lytae. Students in the fourth year of studies in the mally indicated by the specification of the body in
law schools. After Justinian's reform of the law which they function as a magister, see the following
curriculum, they studied ten books of the Digest con- items. Magister is also a teacher "in any field of
cerned with family law, guardianship and law of learning (cuiuslibet disciplinae praeceptor) ," D.
inheritance. 50.16.57 pr. The services of teachers were reckoned
Berger, R E 14; Cantarelli, RendLinc Ser. 6, vol. 2 (1926) among operae liberales and could not be the object
20. of contract of hire (see LOCATIO CONDUCTIO OPERA-
R U M ) . Teachers enjoyed exemption (immunitos,
vacatio) from certain public charges (munera ci~iiza).
Macer, Aemilius. A jurist of the first half of the third The emperor Constantine considerably enlarged the
century, author of monographs on procedure, mili- privileges of professores litterarum and protected
tary law, and provincial governorship. them against "vexation."--C, 10.53.-See I M M U N I -
Jors, R E 1 (s.v. Aemilius, no. 86).
TAS, OPERAE LIBERALES, EDICTUM VESPASIANI.
Machinatio. (From machinari.) Appears in the defi- Cagnat, D S 3 ; De Dominicis, N D I 8 ; A. E. R. Boak, T h e
nition of dolus malus as a "trick (ruse) used to de- R. magistri in the civil and military servicq Harvard Stud-
ceive, to cheat, to defraud another" (D. 4.3.1.2). ies in Class. Philology 26 (1915) ; idem, Univ. of Michigan
Macula. A taint of infamy or of immoral behavior. Studies, Humanistic Ser. 14 (1924) 123; Herzog, Urkun-
'den zur Hochschul~olitik der rom. Kaiser, SbBerl 1935,
Maecianus, Volusius. A jurist of the middle of the 967; S. Riccobono, Jr., AnPal 17 (1937) 50; T. 0. Martin,
second century, law teacher of Marcus Aurelius, and S e m 10 (1952) 60.
later, after a brilliant official career, member of the Magister admissionum. The master of ceremonies in
imperial council. His principal work was Questiones the imperial court.-See ADMISSIONES.
de fideicommissis (concerning fideicommissa) , in 16
'
Magister auctionis. The manager of a public auction.
books. H e wrote also on penal procedure and a -See AUCTIO, BONORUM VENDITIO, MAGISTER BONO-
monograph on the Lex Rhodia. RUM.
H. Kriiger, S t Bonfante 2 (1930) 314; Levy, Z S S 52 Magister bonorum. A man appointed by the creditors
(1932) 352.
of an insolvent debtor to prepare and direct the sale
Magia. Sorcery, the exercise of magical arts. Magia of the debtor's property.-See BONORUM VENDITIO.
was a crime when it was performed with an evil Solazzi, Concorso dei creditor; 2 (1938) 70.
intention to harm or defraud another. The term
Magister census (censuum, a censibus). The highest
covered various kinds of sorcery, such as the use of
officer among the CENSUALES. H e was concerned
magic formulae, nocturnal sacrifices made in order
with matters of taxation of the senators. H e also
to produce supernatural results, the use of magic
intervened in the opening of a testament.-See APER-
liquids, and the like. Penalty for sorcery was death,
TURA TESTAMENTI.
for both the sorcerer and his associates. Possession Seeck, R E 3, 1191.
of magic books was forbidden and punished by death
or relegation; the books were burnt in public. Syn. Magister census. An official who kept a register of
magica ars.-See FRUGES EXCANTARE, OCCENTARE, students of liberal arts who came to Rome for studies.
MATHEMATICI. H e supervised their conduct and took care for their
Kleinfeller, R E 14; Hopfner, ibid. 301 ; Hubert, DS 3; moral discipline. For bad behavior students were
P. Huvelin, Magie et dr-oit individuel, Annte sociologique publicly flogged, expelled from Rome and sent back
19056; Stoicesco, M t l Cornil 2 (1926) 455; Martroye, to their place of origin.
R H D 9 (1930) 669; C. Pharr, TAmPhilolA 63 (1932) Seeck, R E 3, 1192.
269; E. Massonneau, La magie duns l'antiquitk romaine,
1934; V . A. Georgescu, La magie et le dr. rom., Revista Magister collegii. See CURATOR COLLEGII. H e was the
clasica 1-2 (Bucharest, 1939-40) ; Cramer, S e m 10 (1952). leading functionary of a collegium both in private
Magica ars. See MAGIA. associations and in colleges of public officials and
Magis. More. The term is applied in various phrases, priests. Some collegia had several magistri whose
such as magis est, placet, videtur, dicendum est, etc., attributions in the management were different. They
to give preference to one legal opinion over another were elected for five years, hence their appellation
quinquennales."
(I
( = it is preferable, more correct, more proper to
say that . . .). The compilers of the Digest often Magister creditorum. See MAGISTER BONORUM.
use such an expression to cut short a discussion on a Magister epistularum. The chief of the division of
controversial matter and to give a solution without the imperial chancery concerned with the correspond-
any further reasoning. ence of the emperor.-See A B EPISTULIS, EPISTULAE,
Guarneri-Citati, Indire' (1925) 51 (Bibl.). S C R I N I U M EPISTULARUM.
Magister. A general term (title) indicating a person Magister equitum. The commander of the cavalry.
who exercises high (or the highest) functions in an H e was the deputy of the DICTATOR who appointed
organization, association, or a public office. For the him. H e was the first-in-command when the dictator
various ,magistri, whose particular function is nor- was absent. For the magister cquitum in the post-
VOL. 43, PT. 2, 19531 ENCYC1,OPEDIC DICTIONARY O F ROMAN LAW 571
Constantinian epoch, see MAGISTER MILITUM.-See Magister populi. In the Republic, the title of a DIC-
MAGISTER POPULI. .
TATOR as the commander of the armv. whereas the
Westermayer, RE Suppl. 5, 631; Cagnat, DS 3 ; Momig- commander of the cavalry was the magister equitum.
liano, Bull. Commissionc archeol. comunale di Roma 58 Westermayer, RE Suppl. 5, 633.
(1930) 35.
Magister rei privatae. See PROCURATOR REI PRIVATAE.
Magister iuvenum (iuventutis). The head of the From A.D.340 his title is COMES RERUM PRIVATARUM.
organization of young men of noble families (iuvenes) Magister sacrarum cognitionum. The head of the
in Italian cities. In some places his title was praetor imperial bureau concerned with judicial matters
iuventutis.-See IUVENES. brought before the imperial court (from the end of
Magister libellorum. The chief of the bureau of the the third century).-see A COGNITIONIBUS.
imperial chancery concerned with libelli, scrinium Magister scrinii. The head of any bureau in the im-
libellorum.-See A LIBELLIS. perial chancery in the later Empire. His deputy was
V. Premerstein, RE 13, 20. Droximus scrinii.-See SCRINIUM .-C. 12.9.
Magister memoriae. The chief of the bureau a me- Magister societatis publicanorum. A leading per-
moria of the imperial chancery. "He dictates all sonality in the association of tax farmers.-See
adnotationes and sends them out; he gives also an- PUBLICANI.
swers to petitions (preces, Notitia Dign. Occid. XVII, Magister universitatis. A tnagister in a corporate
I 1) .-See A MEMORIA, ADNOTATIO. -
Magister officiorum. I n the later Empire, the highest militiae. see DOMI. The imberium donti was ham-
official among the court offices (oficia palatina) with pered by the right of intercession of magistrates of
extensive and manifold functions. H e was entrusted higher or equal rank, and primarily of plebeian tri-
with the supervision of certain court bureaus and the bunes (see INTERCESSIO) . The most characteristic
secretariat.-C. 1.31 ; 12.6.-See OFFICIUM,OFFI- features of the Republican magistracy were the limited
De Dominicis, N D I 8, 2 ; Boak, RE 17, 2048; idem, The magistracy was covered by at least two persons (see
Master of the Offices, Univ. of Michigan Studies, Human. COLLEGAE) with equal power.
Colleagueship meant
Magister officiorum (operarum). I n private service. leagues in office could act in common or divide their
Large private estates employing a great number of functions by agreement. Unilateral action by one
slaves were divided into units each with a separate magistrate could be stopped by the veto of his col-
management (oficium) headed by a magisfer.-C. league. Simultaneous holding of two ordinary magis-
1.31 ; 12.6.-See SCHOLAE PALATINAE. tracies was prohibited; iteration was admitted only
Magister pagi. See PAGUS. after ten years; see ITERATIO.For the tenure of a
Boak, Univ. of Michigan Studies, Human. Ser. 14 (1924) magistracy later a minimum age was prescribed;
Magister peditum. See MAGISTER MILITUM. higher office was permitted, were fixed by statute;
elected by the people, namely, those with imperium which preceded their entering on the official duties
and the censors in the comitia centuriata, others in (since 153 B.c., January first).-See KALENDAE, RE-
comitia tributa. The election of plebeian magistrates NUNTIATIO.
was directed by the plebeian tribunes, that of other Magistratus maiores-minores. The wzagistratus
magistrates by one of the consuls, in exceptional situa- wzaiores were elected by the comitia centuriata, the
tions by a dictator, an interrex, or a military tribune. magistratus minores b y comitia tributa (see MAGIS-
The candidates had to present themselves personally TRATUS).The magistratus minores were officials of
to the competent magistrate (profiteri) who was au- minor importance, they had no imperium and were
thorized to accept their candidacy or to reject it, see vested with a restricted jurisdiction and some func-
CANDIDATUS. AMBITUS. on-citizens. freedmen. in- tions in s~ecificfields. The collective denomination
dividuals branded with infamy, women, persons with for a group of magistratus of a lower degree was
certain physical (blindness, lameness) or mental de- VIGINTISEXVIRI. The tenure of a minor magistracy
fects were not eligible. During his year of service opened the way for the quaestorship, the first step in
a maaistratus
" could not be removed. Misdemeanor the career of magistratus maiores.-See CURSUS
in office could be prosecuted only after the term, hence HONORUM.
the tenure of an office for two consecutive years was LCcrivain, D S 3 ; Kiibler, RE 14, 401
prohibited. Specific crimes could be committed only Magistratus minores. See MAGISTRATUS MAIORES.
by magistratus through violation of their official Magistratus municipales. Magistrates in municipali-
duties; see PECULATUS, REPETUNDAE. The tenure of ties (MUNICIPIA) who managed the local adminis-
a public office was considered an honor; for that tration, finances, and jurisdiction. They were elected
reason the magistrates did not receive any compensa- by the local assemblies, later by the decuriones and
tion. Their pdlitica~influence was, however, of great- from among the members of the municipal council,
est importance; membership in the senate and the ordo decurionum. The principles of colleagueship
possibility to continue the official career (for which were also applied to them as well as the institution
a certain sequence was prescribed, see CURSUS HONO- of INTERCESSIO.They had no imperium.-C. 1.56.
R U M )and to obtain a high post in the administration -See DUOVIRI IURI DICUNDO, QUATTUORVIRI, QUAES-
of a province were attractive enough to assume the TORES MUNICIPALES, DUOVIRI AEDILES, PRAEFECTI IURI
financial charges connected with a higher magistracy DICUNW, HONORARIUM, NOMINATIO.
(as, e.g., the arrangement of public games, ludi). LCcrivain, D S 3 ; Kubler, R E 14, 434; E. Manni, Per la
-D. 1.2; 27.8; C. 5.75; 11.35.-For the particular storia dei municipii, 1947.
magistrates (consuls, praetors, quaestors, etc.) , see Magistratus patricii-plebei. The distinction is based
the pertinent items; for the auxiliary personnel, see on the circumstance whether a magistracy was ac-
APPARITORES, LICTORES, PRAECO, SCRIBA, VIATORES. cessible only to patricians or to plebeians. In the
See also HONOR, ABACTUS, LEX CORNELIA DE MAGIS- course of time all magistracies which originally were
TRATIBUS, KALENDAE, IUS AGENDI C U M POPULO, reserved to patricians, could be obtained by plebeians.
IURISDICTIO, POMERIUM, DESTINATIO, ACT10 SUBSI- Specifically plebeian magistrates were the plebeian
DIARIA. CREATIO. IURARE I N LEGES, EIURARE, NOMI- tribunes and the aediles p1ebis.-See TRANSITIO AD
NATIO,' PROFESS;^, LEX POMPEIA (on candidates), PLEBEM.
MULTA,COMPARATIO and the following items. Magistratus populi Romani. Magistrates in Rome;
Kubler, R E 14; Brassloff, RE 4, 1686 ( s . v . creatio) ; LC- ant. MAGISTRATUS MVNICIPALES.
crivain, D S 3 ; De Dominicis, NDI 8 ; Treves, O C D ; F. Magistratus suffecti. Magistrates (chiefly consuls)
Leifer, Die Einheit des Gewaltgedankens im rom. Staats- elected when a magistracy became vacant by death
recht, 1914; Buckland, Civil proceedings against ex-magis-
trates in the Republic, J R S 37 (1937) ; H . Siber, Die ple- or resignation of the magistrate in office.-See CON-
beischen Magistraturen, 1938; Gonnet, R H D 16 (1937) SULES ORDINARII.
193; Nocera, I1 fondamento del potere dei magistrati, Magna culpa. "Equal to dolus (dolus est)," D.
AnPer 57 (1946) 145; T . R. S. Broughton and M. Pat- 50.16.226.-See CULPA,C ULPA LATA,DOLUS.
terson, The magistrates of the R . Republic, New York,
1951. De Medio, St Fadda 2 (1906).
Magistratus curules. Magistratus who had the right Magnificus (magnificentia). A title of high imperial
to be seated on a folding ivory chair, sella curulis, functionaries in the later Empire.
P. Koch, Byzantinische Beamtentitel, 1903, 4 5 ; 0. Hirsch-
when acting officially (dictators, consuls, praetors, feld, Kleine Schriftcti, 1913, 672.
censors, aedils). The sella curulis belonged to their
Magnitudo. Occurs in the imperial correspondence
&cia1 insignia and was carried about everywhere
as a term of address to the highest dignitaries of the
they had to perform an official act.-See SUBSELLIUM, Empire ("magnitudo tua").
SELLA CURULIS.
Kiibler, RE 2A (s.v. sella curulis) ; Chapot, D S 4 (s.v. Magus. See MAGIA.
sella c . ) . Maiestas. Dignity, supremacy, the greatness of the
Magistratus designati. Magistrates elected for the state (maiestas populi Romani) . Maiestas was also
next term (normally in July) during the whole period an honorific title of the emperor.-For maiestas in
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 573
penal law, see CRIMEN MAIESTATIS,QUAESTIO DE Mancipatio. I n historical times a solemn form of
MAIESTATE. conveyance of ownership of a RES MANCIPI,accom-
Maior. A person higher in official rank.-See MAGIS- plished in the presence of five Roman citizens as
TRATUS MAIORES. witnesses and of a man who held a scale (LIBRIPENS),
Maior (natu). Older, in particular one who is over with a prescribed ritual and the solemn utterance of
twenty-five years of age. Ant. MINOR. MAIOR AETAS a fixed formula by the transferee (the buyer when
= the age over twenty-five.-C. 2.53. the i~zancipatioinvolved a sale). The formula was:
Maiores. Ascendants of a person, from the sixth de- "I declare that this slave (this thing) is mine under
gree. Generally muiores = ancestors, forefathers, Quiritary law and be he (it) bought by me with this
when referring to their customs (mos, rnores maio- piece of bronze and the bronze scale." The assertion
rum) or their legal opinions (maiores plctaverunt) was not denied by the transferor. The transfer of
and institutions. owners hi^ over a
RES M A N C I P I could be achieved
H. Roloff, M a i o r e s bei Cicero, Diss., Gottingen, 1938. only in this way, otherwise the transferee did not
acquire Quiritary ownership, but only possession
Mala fides. See BONA FIDES, FIDES. The term mala
which might lead to such an ownership through
jides superveniens appears in the doctrine of v s v -
USUCAPIO. The transaction was perhaps originally
CAPIO,i.e., bad faith of the holder of another's thing
called ~itancipitcir~(from iizanu capere = to grasp with
who at the beginning when he took possession thereof
the hand, which was one of the decisive gestures
believed in good faith that it belonged to him, but
performed during the act). hfancipatio was also
later, before the usucaption was completed, became
applied for other purposes as, e.g., to make a dona-
aware that he had no title to own the thing.
tion, to constitute a dowry, to hand over a thing to
Levet, RHD 12 (1933) 1 ; A. Hagerstrom, D e r rout.
Obligationsbegriff 1 (1927) 145; 2 (1940) 364.
another' as a trustee, fidctciae calrsa (see FIDUCIA).
I n all these instances the external aspect of the act
Mala mansio. See M A N S I O MALA. was that of a sale although the "price" paid was
Malae artes. Syn. artes magicae. See MAGIA. fictitious, a small coin being given as compensation
Malae fidei possessio (possessor). See POSSESSIO (litancipatio niirrriito trno). I n the further develop-
BONAE FIDEI. ment other legal transactions were performed in the
Male. (With reference to legal acts or transactions.) form of ~ilancifatiosuch as the transfer of power over
Unlawfully, inefficiently (e.g., to sue), unjustly (e.g., the wife to the husband, emancipating a child (see
to pass a judgment). EMANCIPATIO), niaking a testament per aes et librulrr,
Maleficium. A crime, wrongdoing. I t is not a tech- or constituting a servitude. Various clauses might be
nical juristic term and is used as syn. with both added to the oral forn~ulaof the rirancipatio, except
criitten and delictuiil. At times it is syn. with lnagia; the restriction of the transfer by a condition or term
See M . ~ L E F I C U S . - SOBLIGATIO
~~ E X DELICTO. (see ACTUS LEGITIMI).Such additional declarations
Taubenschlag, RE 14; Lauria, SDHI 4 (1938) 182; Al- of transferor were covered by the term nttnrltpatio.
bertario, Strrdi 3 (1936) 197. Later, specific duties of the parties were assumed by
Maleficus. (Noun.) Con~monlydenotes a sorcerer. stiptrlatio. The increasing use of written documents
Syn. ritagus, see MAGIA. I n similar connection nrale- deprived the tilancipatio of its importance. I n Jus-
fict1s (adj.) is syn. with ~llagiclts.-C. 9.18. tinian's law it does not appear any more. hiention
of it in classical texts, accepted into Justinian's codi-
Malle. T o prefer. The term is applied when a person
fication, was omitted and substituted by the formless
has a choice between two or more things (in con-
TRADITIO ; l~tanciparcwas replaced simply by dare.
tractual relations or legacies). Il.lallc in the meaning
-See ACTIO AUCTORITATIS, ACTIO DE MODO ACRI,
of to wish, want ( = velle) is listed anlong the words SATISDATIO S E C U N D U M h I A N C I P I C I 1 . N U M M C S U N U S ,
suspected of interpolation since it frequently occurs RAL'DUSCULUM.
in later imperial constitutions. Kunkel, RE 14; Lecrivain, DS 3 : Volterra, hrD1 7 ;
Guarneri-Citati, lrtdit~ea(1927) 55. Berger, OCD ; W. Stintzitig. Afonc.ip(itio. 1904 ; S. Schloss-
Malum carmen. See C A R M E N M A L U MI N, C A N T A R E . man, 111 iitrr rcssio rt~ld III., 1904: A. Hagerstriim. R i j ~ r t .
O l ~ l i g o t i o ~ t s h c g r i f1f (1927) 35, 372; 2 (1940) 301 ; Hus-
Malum venenum. See V E N E N U M . serl. Z S S 50 (1930) 478; D. Hazewinkel-Suringa, A t . ol
Manceps. One who at a pul)lic auction, conducted by t m d i t i o , Amsterdam. 1932; De \'isscher, RHD 12 (1933)
a magistrate, through the highest bid obtained the 603; G. G. Archi. I 1 trclsfcri~ncrttodcll(i proprictti. 1934. 79:
right to collect taxes ( a tax fanner) or custon~duties, Leifer, Z S S 56 (1936) 136, 57 (1937) 172; S. Roniano,
iVuovi strtdi st11 t m s f r r i m r ~ l t o dc.11(1 proprictri. 1937, 55;
the lease of ~)iil)licland (agcr p~rhlir~rs)
or other ad- 1-1. Pfliigcr, E n u c r b dcs Eigc~rttrrrts, 1937, 9 7 ; v. Li'ibtow,
vantages (a monopoly) .-In postal organization man- Fscltr Iiosc.lrokcr 2 (1939) 114; K. F. Thormann. D c r
reps was a post-station master. doppcltc Ursprrrng der ,M., 1943; hl. Kaser, E i g c n t u ~ r rctnd
Bcsits, 1943, 107; iticm. D o s o l t r i i m . Irrs, 1949, pclssi~~r :
Steinwcntcr. R E 14; M. Kascr. D o s (11tr;int. Irrs. 1949, Meylan, S r r F r r r i n i 4 (Utiiv. Sacro Cuore. 1949) 190;
140; P. Noailles, Dri d r o i t sclcri orr tiroit civil, 1950, 124. i d o ~ ~C o. n f l ~ r s t 1947 (1950) 173: P. Noaillcs, Drr
d r o i t
Mancipare. See M A N C I P A T I O . Syn. mancipio d(1re. sacrt: ou droit civil. 1950, 199.
Mancipatio familiae. The oldest form of a testament Mandare. See MANDATA PRINCIPUM, MANDATUM.
made by n~ancipatiothrough which the testator trans- Mandare actionem. See cassro.
fered his property to a trustee (a friend) with an Mandare iurisdictionem. See IURISDICTIO MANDATA.
oral instruction (nuncupatio) as to how the trustee, Mandare tutelam. T o appoint a guardian.
who formally was the buyer of the estate, far~tiliae Mandata principum. Judicial and administrative rules
etnptor, had to distribute it after the testator's death. or general instructions issued by the emperors to high
Since the trustee was the inlmediate successor (Iteredis functionaries of the empire, primarily to provincial
loco) and had to convey the single objects to the governors to be applied by them in the exercise of
persons indicated by the testator, this kind of succes- their official functions. They were binding only in
sion was a succession into specific things and not a the province for which they were issued. When an
universal one.-See FAMILIAE EMPTOR,NUNCUPATIO. imperial mandatunt affected lower officials or the
Kamps, R H D 15 (1936) 142, 413; Leifer, Fschr Koschnkcr provincial population, it was made public by a n edict
2 (1939) 227; ruck, Seln 3 (1945) 11; C . Cosetltini, St of the governor. The jurists did not include the
siti liberfi 1 (1948) 24; Evy-Bruhl, RIDA 2 (= A f i l De
Yisscher 2, 1949) 163; idem, Fsckr Sc,lul,. (1951) 253; mandata principu~ninto the imperial constitutions but
B. Albanese, Successiottc ereditaria, AnPal 20 (1949) 164, mentioned then1 as a particular group of imperial
294. enactments.-C. 1.15.
Mancipatio fiduciae causa. See FIDUCIA. Finkelstein, T R 13 (1934) 150.
Brasiello, RIDA 4 (= Mil De Yisschcr 3, 1950) 201. Mandatela. See CUSTODELA.
~ ~nummo uno. ~ ~h~ conveyance
~ of property
i ~Mandator. ~ One who ~orders, comnlissions
i another
~ to
through ,ltanc;pat;o for a fictitious price (a piece of do something. In the consensual contract mandatunz
money) for various purposes (making a donation, *"andator = is the Person on whose Order
constitution of a dowry).-See MANCIPATIO, N T J ~ ~ ~ ~ U S
the to perform without
UNUS. pensation. I n penal law mandator is the person who
Kunkel, RE 14, 1009; Rabel, ZSS 27 (1906) 327; G. Orders another to commit a crime.
PugIiese, La silitulazioire 1938, 76. Mandator causae. One who orders another to de-
Mancipatus. The service of a postmaster (manceps) "Ounce Or to accuse a third person a crime. He
in the postal organization; see MANCEPS,CURSUS is responsible for malicious information or accusation
original meaning ( a thing taken with the hand in the act;o rnandati contraria. l-he action
formal act of nzancipatio). Personae in mancipio (= against the mandatary for restitution of what the
in causa ~ n c i p i i are ) free Persons who were conveyed latter gained by executing the mandate or for dam-
through mancipafio to another (adoptio, emancipatio, ages caused by fraudulent acting was'the actio ,tlan-
noxae deditio). Finally nzancipiuwz is often syn. with dati (directa). ~h~ actions were bonae Fdei (see
sewus ( a slave).-C. 11.63.-See MANCIPATIO, SATIS- IUDICIA BONAE FIDEI),the condemnation of the man-
DATIO SECUNDUM MANCIPIUM. datarv involved infamv. Bevond the field of the
FIumbert and Lecrivain, D S 3 ; Volterra, NDI 8 ; E m - contrictual ~nandaturn,mandare and mandatum are
~ a l o n i ,Persolte in causa mancibii, BIDR 17 (1905) ; J. Used in a broader sense of an order or authorization
1936; Giffard, Rev. de Philologie, 1937, 396; Cornil, Fschr given by one person to another, as e.g., by a creditor
Koschaker 1 (1939) 404; J. G. A. Wilms, De wording to his debtor to pay the debt to a third person, or
van het row. dominiurn, Gent, 1939-40, 13; Monier, R H D of a commission given to one's representative to ad-
19-20 ( 1940-41 ) 364 ; K. F. Thormann, Der doPPelte minister his or a specific affair (negotium, see
Kaser, Eigentum u. Besitz, 1943, 107; idem, Das aftram. ADSIGNAT10 LIBERTI, RENUNTIARE MANDATUM.
lus, 1949, 136, 328; De Visscher, Nouvelles Ptudes, 1949, Kreller, RE 14; Cuq, D S 3 ; Donatuti, NDI 8 ; Lusignani,
193; M. David and H. L. Nelson, T R 19 (1951) 439. Resfionsabilitd per custodia, 2 (1905) ; Pampaloni, BIDR
power) and a Roman citizen, except in certain spe- TUSCONSULTUM DASUMIANUM, SENATUSCONSULTUM
cific cases in which his liberty was somewhat limited. RUBRIANUM, SENATUSCONSULTUM VITRASIANUM.
For the forms of manumissio, see the following items ; V. De Villa, Liberatio legata, 1939.
for limitations concerning the number of slaves to be Manumissio fiduciaria. See the foregoing item.
manumitted by one master, the age of the slave owner Manumissio in convivio (convivii adhibitione) See .
and of the slaves themselves, see LEX FUFIA CANINIA, MANUMISSIO INTER AMICOS.
LEX I U N I A NORBANA, LEX AELIA SENTIA. The per- Manumissio in ecclesia. A manumission performed in
tinent restrictions were abolished or, at least, con- a church in the presence of the ~ h r i s i i a ncongre-
siderably softened, by Justinian who also generally gation and priests, with consent of the master. I t
suppressed the distinctions in the legal status of was introduced by Constantine. The slave manu-
freedmen which according to earlier statutes de- mitted became a Roman citizen.
pended upon the kind of manioi~issio and the age De Francisci, Retrdtomb 44 (1911) ; Mor, ibid. 65 (1932) ;
of the slave. The ~itanu~nissio did not tear all ties Gaudemet, R e v . d'histoire de I'Eglisc de France, 1947, 38;
between the manirmissor and his former slave. Even Danieli, StCagl 31 (1947/1948) 263.
a restricted right of punishment remained from the Manumissio in fraudem creditorurn. -4 manun~ission
former IUS VITAE NECISQUE. The freedman was performed by an insolvent debtor in order to de-
n~aterially independent but could be obligated to fraud the creditors. The manumissio could be an-
services on behalf of his former master (see IURATA nulled at the request of the creditors.-See FRAU-
PROMISSIO LIBERTI)who moreover, had the right of DARE, FRAUS, LEX AELIA SENTIA.
tutorship over his libertus and a right of succession Schulz, Z S S 48 (1928) ; Beseler, TR 10 (1930) 199.
when the latter died without leaving legitimate heirs. Manumissio inter amicos. A formless manumission
-1nst. 1.6; D. 40.1-9; C. 4.14; 7.10; 11; 15.-See by the declaration of the master, made before wit-
LIBERTUS, LIBERTINUS, PATRONUS, TUTELA LEGITIMA, nesses, to the effect that the slave be free. If made
CAUSAE PROBATIO, CONCILIUM MANUMISSIONUM, IUS at a banquet before the guests = ntanumissio in con-
ACCRESCENDI, LATIN1 IUNIANI, FAVOR LIBERTATIS vivio.
ITERATIO, ONERARE LIBERTATEM. INGRATUS, SERVUS A. Biscardi, Manumissio per mertsam, 1939, 9.
WTALIS. Manumissio per epistulam. An enfranchisement of
Weiss, R E 14; Lecrivain, D S 3 (s.21. libertas) ; De Do- a slave by a letter of the master addressed to the
minicis, A'DI 8; S. Perozzi, Scritti 3 (1948, ex 1904) 511 ; slave. This form of manumissio could be applied to
F. Haymann, Freilassungspflicht, 1905 : Lotmar, Z S S 33
(1912) 304; Kaser, Z S S 61 (1941) ; De Visscher, S D H I an absent slave.
12 (1946) 69 (= Nouvelles Bttidrs, 1949, 117) ; De Do- Manumissio per mensam. An informal manumission
minicis, AnPer 52 (1938), 57-58 (1947-48) 111 ; Cosentini, of a slave through his admission to the master's table
AnCat 2 (1947-8) 374; Lemosse, R I D A 3 ( = M i l D e and a pertinent declaration of the latter.
Visschrr 2, 1949) 39. Urlassak, Z S S 26 (1905) 401 ; Funaioli, B I D R 44 (1936-
Manumissio censu. A manumission of a slave through 37) ; Paoli, S D H I 3 (1936) 369; A. Biscardi, M. per
his enrollment in the list of Roman citizens, with the mensam (Florence, 1939) ; Henrion, REV. Belge dc philol.
consent of his master, during the operation of the et hist., 1943, 198.
CENSUS by the censors. Manumissio praetoria. A inanumissio performed in
Daube, J R S 36 (1946) 60; C. Cosentini, S t sui liberti 1 a less formal act by the slave's master who had no
(1948) 14; Lemosse, R H D 27 (1949) 161; De Visscher, quiritary ownership (dominiunz ex iure Quiritium)
S D H I 12 (1946) 69; Danieli, S D H I 15 (1949) 198. over the slave, but only possessed him I N BONIS (for
Manumissio fideicommissaria. A manumission or- instance, if the slave was not conveyed to him through
dered through a fideicommissunz: a testator requested mancipatio, but through an informal traditio). Other
in his testament the heir or any person awarded by forms of manumissiones praetoriae were +lzanztf~.tissio
him in his last will to manumit a slave through a per mensam, inter amicos and per epistulam. They
formal manumission. The slave did not become free are called in the literature "praetorian" because they
until the manumission was performed and the fidei- were not recognized by the ius civile. The freedom
con~n~issary manumitter became the patron of the of slaves so manumitted was protected by the praetor
slave freed. A senatusconsult under the Principate (in libertate tueri) under certain conditions although
declared the slave free if the heir refused the ac- they had no full rights of freedmen. Therefore their
ceptance of the inheritance or if for any other reason status is described as in libertate morari (= to live
the performance of the manumissio became impossi- in freedom), or "to be in freedom through the pro-
ble. The manumissio fideicommissaria could be ap- tection of the praetor" (tuitione praetoris).
plied with regard to a slave of the heir or of a Wlassak, Z S S 26 (1905) 367; A. Biscardi, M . per men-
third person. In the latter case the heir was bound sam e affrancazioni pretorie, 1939.
to buy the slave in order to manumit him. Manu- Manumissio sacrorum causa. A manumission of a
nzissio fideicommissaria is termed also manunzissio slave who assumed the duty to perform sacral rites
fiduciaria.-See LIBERTAS FIDEICOMMISSARIA, SENA- in behalf of his patron.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW
Manumissio servi communis. A manumission of a lease of a person from the status of mancipiui~~
and
slave owned by two or more masters in common. of a son from paternal power.-See MANCIPIUM,
The classical law required manumission by all co- EMANCIPATIO.
owners for the validity of the manainzissio of such a M a n u m depellere. See DEPELLERE M A K U M .
slave.-See IUS ADCRESCENDI. Manupretium (manus pretium). Wages paid for
Manumissio s u b condicione. A manumission under handicraft, the value of an artisan's work.
a condition, i.e., the liberty of the slave became effec- Manus. Originally the term indicated the power of
tive only when the condition was fulfilled. Such a the head of a family over all its members and the
manumission could be made only in a testament. slaves (MANUMISSI-o = de manu nzissio). Later
During the intermediary period the slave remained &anus was only the husband's power over his wife,
slave, his liberty being in suspense until the realiza- and that over his children was the PATRIA POTESTAS.
tion of the condition. Such a slave was sold as a The husband acquired ixanus through a special agree-
slave, but the condition remained in force. Usually ment (see C O N V E N T I ~ I N M A N U M )which accom-
the condition consisted in the slave's payment of a panied the conclusion of a marriage. The wife
sum to the heir. Such slaves were called during the under the power (in manu) of her husband had the
period of suspense statuliberi. A child of a statu- legal position of a daughter ($line fawtilias loco).-
libera was a slave. A similar situation was a slave See MATRIMONIUM.
manumitted e x die, i.e,, when the manu~itissiobecame Manigk, R E 14; LCcrivain, D S 3; Anon., N D I 8 ; E. Vol-
valid at a fixed date. I n the meantime, the slave con- terra, La conception du mariage (Padova, 1940) ; idem,
tinued to be a slave.-See STATCLIBER. S t Solazzi (1948) 675; Bozza, Ala~lris e ~r~afri+lzonio,
G. Donatuti, Statzrliber, 1940. AnMac 15 (1942) 111; Diill, Fschr Wettgcr 1 (1945)
204; v. Schwind, Scr Ferrini 4 (Univ. Sacro Cuore, Milan,
Manumissio testamento. A nlanumission through a 1949) 131: Kaser. Iura 1 (1950) 64: Danieli. StUrb 1950:
testamentary disposition of the slave's master ex-
pressed in a traditional formula "my slave X shall M a n u s inferre. T o lay hands upon a person, to hit.
be free (liber esto)" or "I order that my slave X be I t is considered an iniuria re factn.-See INIURIA.
free (liberu~tzesse iubeo)." The slave became free M a n u s iniectio (manum inicere). See LEGIS ACTIO
without any further formality, immediately after the PER M A N U S I N I E C T I O N E M (Bibl.)-I1fanats iniectio
acceptance of the inheritance by the heir. A slave was also the syn~bolic act (touching the debtor's
thus manumitted could be instituted as an heir in shoulder) performed by a plaintiff when he sum-
the same testament. See HERES NECESSARIUS.In moned the debtor into court (see I N IUS VOCATIO).-
classical law the institution of a slave as an heir not See LEX VALLIA, DEPELLERE M A N U M .
combined with his manumission was void. I n JUS- Tauhenschlag, RE 14 ; LCcrivain, D S 3 ; Noailles, Revlre
tinian's law in such a case the manumission was dcs Etzides Latirles 20 (1942) 110; idc~rs,Fas et itrs. 1948,
assumed as self-understood and the slave instituted 147; idein, Du droit socri old droit r i d , 1950, 120; M .
as an heir became automatically free.-D. 40.4; C. Kaser, Das altrortl. Itis, 1949, 191.
7.2.-See REDDERE RATIONES. M a n u s iniectio iudicati. Introduced I)y the Twelve
Tumedei, R I S G 64, 65 (1920) ; C. Cosentini, S t sui Iiberti Tables for the execution of judgnlent-debts.-See
1 (1948) 17. LEGIS ACT10 PER M A N U S INIECTIONEM.
Manumissio vindicta. A n~anumission before a P. Noailles, DILdroit sarrh au droit civil, 1950, 110.
magistrate, performed through a fictitious trial in M a n u s iniectio pro iudicato. A 1lzanzr.r inirrtio "as
which a third person, with the agreement of the if upon a judgment," i.e., a n execution of certain
slave's master, claimed that the slave was free. T h e kinds of debts in the form of lcgis actio per Iirnntrs
process was similar to a REI VINDICATIO (snit for the inicctionct~tas in the case of a litantrs inicrtio for
recovery of a thing) in the legis actio procedure. judgment-debts. I n the oral fornlula pronounced by
The master did not oppose such affirn~ationwhere- the plaintiff the words pro ittdicato were added.
upon the magistrate pronounced the slave free. The There was, however, no preceding judgment.-See
use of a rod (vindicta) with which the slave was LEGIS A C T I O P E R M A N U S I N I E C T I O N E M . ACT10 IIEPENSI.
touched by the claimant explains the name oi this M a n u s iniectio pura. A ltiantrs inirctio which was
kind of fitnnlr~nissio.-D. 40.2.-See VINDICTA, AD- neither itidicati nor pro iltdicato but was introduced
SERTIO. by special statutes for specific claims; see I.EX IYTRIA
Ch. Appleton, M i l Forcrrrier 1929; Levy-Bruhi, St Ricro- TESTAMENTARIA, LEX M A R C I A against usurers. The
bot10 3 (1936) 1 ; Aru, S t Solnti 2 (1941) 301 ; C. Cosen-
tini, S t s~rilihcrti 1 (1948) 11 (Bibl.) ; Monier, S t Albcr- defendant was permittetl to remove the plaintiff's
tario 1 (1952) 197; Kaser, S D H I 16 (1950) 72; Meylan, hand ( d c p ~ l l r r c~ilanrc~it)ant1 delentl hin~self per-
RIDA 6 (1951) 113. sonally (pro s r l ~ g cngrrc) .-See EX VAI,T,IA, and
Manumissor. See M A N U M I S S I ~ , M A N U M I T T E R E . the foregoing items.
Manumittere. T o free a slave; see M A N U M I S S I O . Manus sibi inferre. T o commit suicide. Syn. CON-
Afnnlcl~titt~re
is also used with reference to the re- SCISCERE SIB1 MORTEM.
578 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
Marcellus, Ulpius. A jurist of the second half of the familias whether she was married or a widow, free
second century after Christ, author of an extensive born or a freedwoman. Syn. wzatrona.
work, Digesta, of a collection of Response,, and of a Kunkel, RE 14; Bickel, Rhein. Museum fiir Philol., 65
commentary on the Digesta of Julian in the form of (1910) 578; Carcaterra, AG 123 (1940) 113; C. Castello,
St SUE dir. familiare, 1942, 9 7 ; R. Laprat, Le r6le de la
Notae. femme mariie, Mil Gonnard 1946, 173.
Orestano, NDI 7 ; Sciascia, BIDR 49-50 (1948) 424. Mater tutrix. See TUTOR.
Marcianus, Aelius. One of the last jurists of the Materia (materies). The material, the substance of
classical period (later first half of the third century), which a thing is made, in particular the materials
author of Institutiones in 16 books, richly exploited used for the construction of a building. "He who is
by the compilers of the Digest. H e also wrote a the owner of the material is also the owner of what
collection of Regulae and a few monographs, chiefly has been made of it" (D. 41.1.7.7).-See SPECIFI-
on criminal procedure. CATIO.
Jors, RE 1, 523 (no. 88) ; Ferrini, Opere 2 (1929, two C. Ferrini, Opere 4 (1930, ex 1891) 103; S. Perozzi, Scritti
articles of 1880 and 1901) ; H. Kriiger, St Bonfante 2 g i r . 1 (1948, ex 1890) 225.
(1930) 312; Buckland, St Riccobono 1 (1936) 273; De Materna bona. See BONA MATERNA.
Robertis, RISG 15 (1940) 220. Mathematici. Astrologers, persons who exercise the
Mare. The sea is a res communis omnium. "By ars mathematics, casting horoscopes. I t was reck-
nature it is open to everyone" (D. 1.8.2.1 ; Inst. oned among artes magicae (see MAGIA)and pro-
2.1.1). Everybody has the right of fishing therein. hibited as a condemnable (damnabilis) divination.-
-See LITUS. C. 9.18.
Costa, Rivista di dir. internazionale 5 (1916) 337; Maroi, Matricula. An official list of public officials, primarily
RISG 62 (1919) ; Biondi, St Perozzi 1925; Branca, AnTr of military ones.
12 (1941) 5, 91; G. Lombardi, Ricerche in tema di ius Ensslin, RE 14; Boak, RE 17, 2050.
gentim, 1946, 99.
Matrimonium. A marriage; in legal language syn.
Margarita. A pearl.-See GEMMA.
with nuptiae. According to a definition by the jurist
Maritalis affectio. See AFFECTIO MARITALIS,
CONCU- Modestinus wzatrimonium was "a union between a
BINATUS. man and woman, an association for the whole life,
Maritimus. See USURAE MARITIMAE. a community of human and divine law" (D. 23.2.1).
Maritus. A husband. Mariti may sometimes refer The definition, which has not remained without heavy
to husband and wife.-See IUS MARITI.-C. 4.12. attacks as to its classicality, expresses, however, a
Berger, Amer. lour. of Philology, 67 (1946) 332. basic truth about the moral and ethical elements of
the Roman marriage, without saying anything about
Martinus. A glossator of the twelfth century (died the legal aspect of the institution. The Roman mar-
1166?), a disciple of 1rnerius.-See GLOSSATORES. riage was a factual relation between man and woman,
Anon., NDI 6 (s.v. Gosia Martino) ; H . Kantorowicz, St based on afectio maritalis (intention to be husband
in the Glossators of R. Law, 1938, 86.
and wife) and cohabitation as husband and wife, i.e.,
Mater. "The mother is always certain" (semper certa with the social dignity of a legitimate marriage (see
est, D. 2.4.5), no matter whether the child was born HONOR MATRIMONII. CONCUBINATUS). The aim of
in a legitimate marriage or not. The legal status the matrimonizlwt was the procreation of legitimate
(liberty, citizenship) of an illegitimate child depends children (see LIBERORUM QUAERENDORUM CAUSA) .
upon that of the mother. A widow-mother was in The marriage was monogamic and the common living
postclassical times admitted to the guardianship over started with the DEDUCTIO I N DOMUM MARITI. Legal .
J
her children.-C. 4.12; 5.46.-See FEMINA,TUTELA, requirements of a valid marriage were IUS CONUBII
MANUS,and the following item. and consent of the parties. "A marriage is con-
Wenger, ZSS 26 (1905) 449; Frezza, StCagl 12 (1933- cluded by consent" ( = consensus facit nuptias, D.
34) ; Sachers, Fschr Schulz 1 (1951) 327. 50.17.30). "A marriage cannot be concluded be-
tween persons who do not want to conclude it" (D.
Mater familias. A woman, a Roman citizen, was
23.2.22). If the future spouses were under paternal
either a mater familias (i.e., not under the power of power (alieni iuris), the consent of the heads of the
another person, suae potestatis) or a FILIA FAMILIAS family was necessary ; likewise the consent of the
(i.e., under the paternal power of a pater familias, guardian of a woman sui iuris was required. Im-
either as his wife, uxor in manu, or as his daughter, puberes (persons below the age of puberty) and
or daughter-in-law being uxor in manu of a filius lunatics were incapable of concluding a marriage.
familias). Originally mater familias was the wife of Soldiers were not permitted to marry; see MATRIMO-
a pater familias married to him cum manu. In a NIUM MILITUM. For the interdiction of marriage
broader sense, from a moral and social point of view, between persons related by blood, see INCESTUM,
any woman who lived "not dishonestly" was a mater NUPTIAE INCESTAE. Adoptive relationship and af-
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 579
finity (see ADFINITAS)created incapability of inter- Matrimonium iustum. A marriage validly concluded
marriage to ,a certain degree. There were also between Roman citizens or by a Roman citizen with
specific prohibitions of marriage, as, for instance, a non-Roman who was granted ius conubii. Ant.
senators and their sons were forbidden to marry matrimonium iniustum (non iustum) between a
freedwomen; persons of senatorial rank could not Roman and a peregrine without conubium. It is not
marry actors or actresses; a tutor or curator could a matrimonium iuris gentium; the latter term occurs
not marry his ward; a high provincial official was in the literature, but is unknown in Roman sources.
forbidden to marry a woman living in his province. Corbett, LQR 44 (1928) 305; idem, The R. law of mar-
In the later ~ m ~ i marriage
re between ~hristiansand riage, 1930, 96; Gaudemet, RIDA 3 (= Mil De Vissclter
2, 1949) 309.
Jews was prohibited. The legal situation of the mar-
ried wife depended upon the circumstance whether Matrimonium legitimum. In Justinian's language
or not the marriage was accompanied by a conventio syn. with matrimonium iustum.
in munum: see MANUS. CONVENTIO I N M A N U M . A Matrimonium militis. Soldiers could not conclude a
matrimonium was dissolved-aside from divorce (see valid marriage. The influence of the husband's en-
DIVORTIUM, REPUDIUM)-when One of the SpOUSeS listment on the existence of the marriage is contro-
lost the legal ability to conclude a marriage (see IUS versial. The sources do not give a precise answer
CONUBII)through the loss of liberty (see SERVUS as to whether the marriage became automatically null
POENAE,captivity) or citizenship. The legislation or only suspended. Children conceived and born
of the Christian emperors and Justinian was consid- during the soldier's service are illegitimate. The
erably influenced by Christian doctrines, in particular emperor Hadrian granted, however, such children
by the dogma of the insolubility of marriage.-Inst. rights of succession on intestacy (bonorum possessio)
1.10; D. 23.2; C. 5.4; 6 ; 7.-See AFFECTIO MARI- upon the father's death.
Tassistro, SDocSD 22 (1901) ; Stella-Maranca, ibid. 24
TALIS MANUS, CONFARREATIO, COEMPTIO, USUS,IUS (1903) ; Marenti, StSen 33 (1917) 108; F. Corbett, The
CONUBII, LEX CANULEIA, LEX IULIA DE MARITANDIS R. law of marriage, 1930, 41 ; Castello, RISG 15 (1940)
ORDINIBUS, BINAE NUPTIAE, CONCUBINATUS, WS, 27; Menkman, T R 17 (1941) 311; Wenger, Anzeiger
DONATIO INTER VIRUM ET UXOREM, DONATIO ANTE Akad. Wiss. Wien, 1945, 104; Berger, Jour. of Jur. Papy-
rology 1 (1945) 25, 32 (= BIDR Suppl. Post-Bellum
NUPTIAS, ACT10 RERUM AMOTARUM, SECUNDAE NUP- 55-56 [1951] 109, 115).
TIAE, LUCTUS, ADULTERIUM, BENEFICIUM COMPETEN-
Matrimonium subsequens. A marriage concluded be-
TIAE, POSTLIMINIUM, CONCUBITUS, DIVORTIUM, RE-
tween persons living in concubinage.-See LEGITI-
PUDIUM,SPONSALIA, ORATIO DIVI MARCI,and the
MAT10 PER SUBSEQUENS M A T R I M O N I U M .
following items.
Kunkel, RE 14; Erhardt, RE 17 (s.v. nuptiae) ; LCcrivain, Matrona. An honorable wife of a Roman citizen even
DS 3 ; Piola, NDI 8 ; Berger, OCD (s.v. marriage) ; when he is not pater familias and is still under
Weiss, ZSS 29 (1908) 341; Di Marzo, Lezioni su matri- paternal power. See MATER FAMILIAS. When sum-
monio, 1 (1919) ; P. G. Corbett, The R. law of marriage, moning a matrona into court (in ius vocatio), the
1930; Albertario, Studi 1 (1933, three articles) ; Vaccari, plaintiff had to abstain from touching her body. In
St Pavia 21 (1936) 85; Evy-Bruhl, Les origines du
mariage sine manu, T R 14 (1936) 453; M. Lauria, Matri- public a matrona appeared in dress reserved for
monio e dote, Naples, 1952; Lanfranchi, SDHI 2 (1936) married women (a stola with a purple border).
148; Koschaker, RHD 16 (1937) 746; Nardi, StSas 16 Hence a matrona, particularly of a higher social rank
(1938) 173 ; H. J. Wolff, Written and unwritten mar- = femina stolata, and the right to wear a stola = ius
riages in Hellenisfic and postclass. R. law, Haverford, stolam habendi. Matronalis habitus = dignified be-
1939; R. Ballini, I1 valore giuridico della celebrazione
nuziale cristiana dal prim0 secolo all'etd giustinianea, 1939; havior, the dress of a matrona.
De Robertis, AnBari 2 (1939) ; C. Castello, In tema di Schroff, RE 14.
matrimonio e concubinato, 1940; Nardi, SDHI 7 (1941) ; Mauricianus, Iunius. A jurist of the second half of
Orestano, BIDR 47 (1940) 159, 48 (1941) 88, 55-56 the second century after Christ, author of an exten-
(1952) 185; the three articles published in a volume La sive commentary on the Lex Iulia et Papia Poppaea.
struttura giuridica del matrimonio rom., 1951 ; idem, St Kroll, RE 10 (no. 93).
Bonolis 1 (1942) ; idem, Scr Ferrini (Univ. Pavia, 1946)
343; idem, Scr Ferrini 2 (Univ. Sacro Cuore, Milan, 1947)
Maxime si (or cum). Particularly, especially. The
160; Guarino, ZSS 63 (1943) 219; C. W. Westrup, Re- term is often interpolated in order to introduce a
cherche~sur les antiques formes de mariage (Danemark special case or a restrictive element to what was said
Akad. 30, 1943) ; P. Rasi, Consensus facit nuptias, 1946; by a classical jurist.
Kostler, ZSS 65 (1947) 43; E. Volterra, La conception du Guarneri-Citati, Indice' (1927) 51.
mariage d'aprhs les juristes romains, Padua, 1940; idem, Maximus. See OPTIMUS MAXIMUS.
RISG 1947, 399; idem, RIDA 1 (1948) 213; idem, St Mederi. To apply a legal remedy in order to "cure"
Solazzi 1948, 675 ; Wolff, ZSS 67 (1950) 288.
an uncertain legal situation. The verb is frequently
Matrimonium incestum. See INCESTUM,NUPTIAE used by Justinian's chancery.
INCESTAE. Medici. Physicians were considered to exercise a lib-
Matrimonium iniustum. See MATRIMONIUM IUSTUM. eral profession (ars liberalis), for this reason their
ADOLF BERGER
services were not compensated in earlier times. See Memorialia. Things worthy to be remembered. I t
HONORARIUM. They could, however, demand a pay- appears only once as a title of a juristic work by the
ment if they assumed their duties by contract (1ocat;'o jurist Sabinus (in eleven books). The work seems
conductio opevarutn). The physician was responsible to have been more of an antiquarian than juristic
for inexpert (it~zperite) treatment or operation and nature.
could be sued either by a contractual action ex locato Menander. See ARRIUS MENANDER.
or by a delictual one, ex lege Aquilia. The latter was Mens. Intention, volition (syn. voduntas) , purpose,
originally applicable only when a slave was the victim design. E a mente, ut (syn. eo animo, ut) = with the
of an inexpert treatment. Later the action was avail- intention that.-See ANIMUS,M ENTE CAPTUS, COM-
able when a free man was involved. Phvsicians POS MENTIS.
enjoyed exemption from public charges (munera) .-- Mens legis. The intention, the sense of a statute.
C. 10.53.-See EDICTUM VESPASIANI, EXCUSATIONES Mensa. See MANUMISSIO PER MENSAM.
A MUNERIBuS. Mensa. ( I n bankers' business.) A table (counter) at
Heldrich, IhJb 88 (1940) 139; Herzog, R A C 1, 722. which money changing transactions were done (mensa
Meditatio d e pactis nudis. A Byzantine dissertation avgentaria, nurnmulavia) . This kind of banker was
on simple pacts (the Greek title is Melete Peri called mensularius. They accepted alsb deposits in
psilon symfonon). The pamphlet, composed about cash.-See ARGENTARII, NUMMULARII.
the middle of the eleventh century, seems to be the Kruse, R E 15, 945.
opinion of a judge given in an actual trial. The Mensis intercalaris. An intercalated month (in Feb-
unknown author reveals a considerable knowledge of ruary). "It consists of 28 days" ( D . 50.16.98.2).--
the Digest. See LEX ACILIA DE INTERCALANDO.
H. Monier and G. Platon, N R H D 37-38 (1913-14). Mensor. ( I n the later Empire.) A high imperial
Meditatum crimen. A crime committed with pre- official who had to provide quarters for the emperor,
meditation. his family and staff in Rome and during,their travels,
Medium tempus. The intervening time. Media tent- a quartermaster. High officials in the provinces and
pore ( = in media) = in the meantime, between two prefectures had also their mensores.
legally important events, as, for instance, between Fabricius, R E 15, 959; Albertario, St 6 (1953) 417.
the making of a testament and the death of the tes- Mensores aedificiorum. Experts in urban construc-
tator; between setting a condition and its fulfillment tions.
(syn. pendente condicione) ; while an appeal is pend- De Ruggiero, D E 1, 206.
ing or when a man is in captivity. Mensores agrorum. See AGRIMENSORES.,
Mela, Fabius. A little known jurist of the Augustan Mensores frumentarii. Measurers, surveyors of trans-
Age. portation of corn in Italian ports. They assisted the
Brassloff, RE 6, 1830 (no. 117). praefectus annonae in the administration of the sup-
Melius est. Introduces a legal opinion which is prefer- ply of corn for Rome.
able to another ~lzeliusest dicere, dici, probari, meli~rs Cardinali, DE 3, 301,
est ut dicamus and the like). The locution is not Menstruum. (Adj. menstvuus.) A n~onthlypay (sal-
free from suspicion of non-classical origin when used ary). Syn. tnenstvua Ittevces. Alimony in money
to cut short a discussion. and sustenance in kind (menstrua cibavia, menstruum
Guarneri-Citati, Irldice2 (1927) 56, 29; ident, Fschr Ko- fruwzentum) were normally paid every month.
schaker 1 (1939) 142. Mensularius. See MENSA, ARGENTARII.
Melius aequius. See ROFTUM ET A E Q U U M . Mensura. hlensuration, the activity of MENSORES
Membranae. Appears only once as the title of a (AGRIMENSORES). Mensura is also an instrument
juristic work by NERATIUS (in 7 hooks). The niean- for measuring. The magistrate could order its de-
ing of the word is not quite clear. It refers either struction if it was false and used for frautlulent Dur-
to the material (parchnient) on which the nianu- poses.-See RES QUAE PONDERE NOMERO MENSURAVE
script was written, or it indicates the nature of the CONSTANT, GENUS.
work as "short notes" which the author nut down Mensura delicti. The gravity of a crime. I t influ-
first in a rough draft on loose parchment sheets ant1 enced the severity of the penalty.
of which he later matle a collection. Mente captus. A mentally disordered individual. H e
I;. Schulz, History of R. 'lc,qal scicncc, 1946, 228. is subject to curatorship (cura).
Membrum ruptum. See os FRACTUM. Mercator. A tradesman, a merchant on a lower scale
Binding, ZSS 40 (1920). than a negotiator. Sonletimes syn. with clnptor ( = a
Memoria. See A M E M O R I A , S C R I N I U M MEMORIAE. buyer) .-See NEGOTIATOR.
Memoria damnata. See D A M N A T I O M E M O R T A E . Cagnat, DS 3 ; Rrcwstcr, Rornniz rrnftsmetz o i ~ d!rodcstito~
Memoriales. Officials in the various bureaus of the of the rnrljl Empire, (Menasha, Wis.) 1917.
imperial chancery (scvinia) . Mercennarius. A hired laborer who works for pay
Ensslin, R E 15. (ntrrccs). Servrrs merrcn?inrius = a slave who is
VOL.43, PT.2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 581
hired out by his master to another for money.-See Metallarii. Miners. Their work was supervised by
LOCATIO CONDUCT10 OPERARUM. public officials.-C. 11.7.
Merces. A payment (wages, salary, rent) in money Metallurn. A mine. According to the principle that
agreed upon in a lease or hire of services (see LOCA- whatever is under the earth belongs to the owner of
TIO CONDUCTIO). A recompense paid for any kind the land, mines were either in private ownership or
of services, without a preceding agreement (e.g., for belonged to the state. Public mines were exploited
saving one's life) is called also merces.-See RE- through the intermediary of tax-farmers (publicani)
MISS10 M ERCEDIS. who paid the state a fixed sum. In the first century
Longo, Mil Girard 2 (1912) 105. of the Principate the mines in Italy and the provinces
Merere (rnereri). T o deserve. The verb is used in came gradually under the imperial administration
connection with favors granted to deserving persons whose control was exercised through procuratores of
(e.g., a judicial remedy, the emperor's grace). It equestrian rank. The system of leasing the mines
is used also when a person deserves an unfavorable to private farmers (conductores) was still in use
treatment (a punishment, a disinheritance). Merere but the more intensive supervision by imperial offi-
occurs also in the meaning of earning through one's cials benefited both production and labor. The ad-
labor or under a testamentary disposition. ministration of stone-pits (lapidicinae) and quarries
Meretrix. A prostitute. Syn. mulier quae palam cor- of marble was managed in a similar way.-C. 11.7.-
pore quaestum facit ( = a woman who publicly earns See LEX METALLI VIPASCENSIS.
money with her body). Palam means "in a house of Rostowzew, DE 3, 128; Orth, RE Suppl. 4, 145, 152 (5.v.
ill-fame, in inn-taverns, without choice" (D. 23.2.43 Bergbald) ; Fiehn, RE 3 A , 2280 (5.v. Steinbruch) ; Mis-
pr. 1). A meretrix was branded with infamy even poulet, Le rigime des mines, NRHD 31 ( 1 9 0 i ) 354. For
further bibl. see LEX METALLI VIPASCENSIS. Another lex
after she ceased to exercise her profession; a legal metallis dicta in Riccobono, FIR 1' (1941) no. 104 (Bibl.) ;
marriage freed her, however, from the stigma. Mere- L. Clerici, Econotnia e finanza dei Romani, 1 (1943) 466.
trices had to register with the aediles. They were Metallurn. I n metallurn (metalla) darnnare. T o
excluded from testimony before court, from legacies condemn a criminal to work in a mine (or a quarry)
and inheritance, from visiting public spectacles and for life. This was the severest punishment after the
were prohibited to wear garments reserved for honest death penalty (proxima morti = nearest to death)
women (stola). They paid a special tax, vectigal since work in mines in addition to rigorous labor
meretriciu?. Senators and their sons were prohibited involved being kept in fetters. Damnatio in metallum
from marrying meretrices, actresses, ill-famed women implied loss of freedom (servi poenae). A milder
or those whose parents were connected with such degree of punishment was damnatio in opus metalli.
professions. Relations with meretrices were not pun- U. Brasiello, La repressione penale in dir. rom., 1937, 373.
ished as STUPRUM. Syn. femina famosa (probrosa). Metaturn. (In later imperial constitutions.) Quarters
-See MINUS,L UDICRA ARS. for soldiers. Metator = a quartermaster. The
Schneider, RE 1 5 ; Navarre, DS 3 ; Nardi, StSas 16
(1938) ; Solazzi, BIDR 46 (1939) 4 9 ; C. Castello, Itz owner of an immovable on whom the duty of billeting
tema di matrimonio, 1940, 120; Wedeck, Cl Weekly 36 soldiers was imposed could be released from the
(1943) ; Grosso, SDHI 9 (1943) 289. obligation paying a sum of money (epidemetica).-
Merito. (Adv.) Justly, rightly, with good reason. C. 12.40.
Merito is frequently couped with iure (iure ac me- Metus. Fear. Use of duress in order to compel a
r i t ~ ) . Jurists used the term when they approved of person to conclude a transaction, to assume an obli-
another jurist's opinion. gation or to make a payment, is a private crime
Meriturn. With reference to a high imperial office, (delictum) which may be prosecuted by the person
dignity. who acted under duress by a special action, actio
Meriturn (merita) causae. The essential points of a quod rnetus causa (sc. gestuvn est = for what was
litigation. done because of fear). If sued for the fulfillment of
Merx. Merchandise, goods, which can be the object a promise given under duress, he might oppose the
of a sale. Only movables (with the exclusion of exceptio metus. Under certain circumstances a resti-
slaves) are covered by the term.-See EMPTIO. tutio in integrum was granted. Metus is defined as
Merx peculiaris. Goods belonging to a son's or a "a trepidation of mind because of an imminent or a
slave's PECULIUM (primarily in a commercial busi- future danger" (D. 4.2.1), but not any fear, "only
ness). the fear of a greater evil" (D. 4.2.5). A groundless
Messis. A harvest.-See ORATIO DIVI MARCI,VEN- fear (timor vanus, rnetus vani horninis) is not taken
DEMIA. into consideration. The original name of the action
Messius. Probably a jurist. H e is mentioned only might have been formula Octaviana since it was in-
once linked with Papinian. No further details about troduced by a praetor Octavius (about 80 B.c.).
him are known. Later it was called simply actio metus causa. The
H. Kriiger, St Bonfante 2 (1930) 331. action was penal (actio poenalis). If brought within
582 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
a year, the defendant (the extortioner) was con- and were not admitted to act as, or through, a pro-
demned to a fourfold value of the property extorted. curator in a civil trial. In the field of criminal law
-D. 4.2; C. 2.19.-See COACTUS VOLUI,A CTIONES there were special military crimes which were severely
ARBITRARIAE, TIMOR. punished. Punishments were different from those
L. Charvet, La restitution des majeurs, 1920, 27; Schulz, applied to civilians; see DELICTA MILITUM. Soldiers
ZSS 43 (1922) 171; v. Lubtow, Der Ediktstitel quod were able to appear in court and to act for them-
metus causa, 1932; G . Maier, Praetorische Bereicherungs-
klagcit, 1932, 44.91 ; Sanfilippo, AnCam 7 (1934) ; C. selves. I n the later Empire special military courts
Longo, BIDR 42 (1934) 68; C. Castello, Timor mortis, (iudices militares) assumed jurisdiction in civil mat-
AG 121 (1939) 195. ters when the defendant or both ~ a r t i e swere soldiers.
Meum. My property. "Mine is what I have the right An imperial constitution of the later Empire (A.D.
to claim through vindicatio" (D. 6.1.49.1 ) . "Meum 458) prohibited soldiers from taking in lease another's
esse e x iure Quiritium" (= it is mine under Quiri- land or from assuming obligations for others as sure-
tary law) was the assertion of the plaintiff in the ties, agents or mandataries. "They should be busy
legis actio sacramento in revtz when he claimed a with their military service (arms) and not with other
thing from the defendant.-See REI VINDICATIO. people's affairs" (C. 4.65.31). Soldiers who were
Migrare. T o move from one's dwelling.-D. 43.22.- peregrines in auxiliary troops (auxiliarii) were
See INTERDICTUM DE MIGRANDO. granted Roman citizenship after their discharge.-
Miliarium (milliarium). A milestone marking the C. 1.46.-See TESTAMENTUM I N PROCINCTU, BENE-
distance of a thousand paces (mille passus). Civil F I C I U M COMPETENTIAE, AES MILITARE, COMMEATUS,
trials within the first milestone of the city of Rome EXPLORATIO, LEX PORCIA DE PROVOCATIONE, MISSIO,
(intra primum urbis Romae miliarium) belong to the DIPLOMA MILITARE, NEMO PRO PARTE, MILITIA, SUICI-
category of IUDICIA LEGITIMA.-The competence of D I U M MILITIS, DELICTA MILITUM.
the praefectus urbi embraced the territory within the D. Jacornet, Les militaires en dr. rom., Lyon, 1882; A.
Segrk, I1 diritto dei militari peregrini, Rend Accademia
hundredth milestone of the city. Pontificia, 1940-1941, 167.
Schneider, RE Suppl. 6 ; Lafaye, D S 3 ; 0. Hirschfeld,
Kleine Schriften, 1913, 703. Militia. Military service (sometimes the term refers
to service in war time). Militiae se (or nomen) dare
Militare. T o serve as a soldier. I n later times, to
= to enlist in the army. Ant. legi (from legere)
serve in a public office, civil or military.-See
= to be compulsorily enrolled. Illegal enlistment of
MILITIA, MILITES.
a person who was not permitted to serve in the army
Militaris. (Adj.) Connected with, or pertaining to, (a slave, a person who was condemned to fight with
soldiers or military service.-See MILITES,MILITIA, wild beasts, a former deserter) was punished with
IUS MILITARE, M A N U MILITARI, KES MILITARIS, AERA-
death. Voluntary enlistment in order to evade capi-
R I U M MILITARIS, AES MILITARIS, INTERCESSIO MILI-
tal punishment or deportation did not offer release
TARIS, DELICTUM MILITARE, DIPLOMA MILITARE, VES- from the ~unishment. After Constantine militia ac-
TIS MILITARIS.
quired a broader meaning since it also covered em-
Militariter punire. T o punish according to military ployment in civil administration in the various im-
penal law. perial offices and in provincial government, militarily
Milites. Soldiers enjoyed various privileges in the organized. At times in this period a distinction is
field of private law. They were allowed to make a made between the service in the army (militia ar-
testament without the observance of the formalities mata) and the civil service (militia cohortalis, pala-
of the civil or praetorian law, see TESTAMENTUM tina or simply militia). The militia which already
MILITIS. The liability of a soldier instituted as an in classical- times (second post-Christian century)
heir for the testator's debts was limited to the amount appears as the object of a sale or legacy, may refer
of the inheritance. The rights of succession on to a lower public service (in the fire-brigade, appari-
intestacy of a soldier's children born during his mili- tores). In the later Empire the purchase of an
tary service, which were denied by the ius civile, were official post was frequently practiced.-C. 12.33.-
recognized by the emperor Hadrian. Soldiers who See MUTATIO MILITIAE,REICERE MILITIA,IRREVERENS.
were under paternal power (filii familias) were Momrnsen, Rom. Staatsrecht 3 (1887) 450 ; Marchi, AG 76
granted the right to have a PECULIUM CASTRENSE. (1906) 291; G. Kolias, dmter und Wurdenkauf im fruh-
A special privilege of soldiers was that under certain byzantlnischen Reich, 1939.
circumstances they could be excused on the ground Militia armata, cohortalis. See MILITIA.
of IGNORANTIA IURIS. O n the other hand, however, Milita equestris. Military service of a high grade
various restrictions were imposed on milites. They officer in the cavalry.
had no ius conubii during the time of service and Militia palatina. See MILITIA.
could not conclude a valid marriage; see MATRI- Milliarium. See MILIARIUM.
MONIUM MILITIS. They were forbidden to belong Mimus. A n actor in mimes, a dancer. A troupe of
to an association (collegium) in castris (see CASTRA) , actors sold as an ensemble is considered a unit;
VOL. 43, PT. 2, 1953) ENCYCLOPEDIC DlCTlOlNARY OF KOMAN LAW 583
hence the sale of the whole can be rescinded because members who were promoted to the rank of statuti to
of defects in one of the group. The same rule applies fill vacancies.
to tragic actors (tragoedi) . Minzae ( = actresses, J. E. Dunlap, Univ. of Michigan Studies, Hurnan. Ser. 14
dancers) are socially equal to MERETRICES. (1924) 213.
Wiist, RE 15, 1743. Minor aetas. Minority. Syn. adulta, imperfects aetas.
Minicius. A jurist of the first century of the Prin- Ant. maior aetas.-See AETAS,MINORES.
Berger, RE 15, 1769 (s.v. Minderjiihrigkeit), 1862.
cipate, a disciple of Sabinus. His work is known
by an extensive commentary of Julian. Minores. An abridged expression for minores viginti
Steinwenter, RE 15, 1809 (no. 3 ) ; ,Riccobono, B l D R 7 quinque annorum (annis) or minores annorum (an-
(1894) 225, 8 (1895) 169; A. Guarlno, Salvius Julianus, nis). Minores were persons who exceeded the age
1946, 38; H . Kriiger, St Bonfante 2 (1930) 332. of IMPUBERES and were under twenty-five years of
Minime. By no means, not in the least. The fre- age. Similar expressions, although not technical in
quency of the adverb in late imperial constitutions, the juristic language, are adultus, adulescens, and
and particularly in those of Justinian, in the meaning iuvenis. Within the minority there is a special term
of a simple negation (non) makes its authenticity in for the age under eighteen, plena pubertas, the classi-
classical texts rather suspect when it appears there cality of which is doubtful. I t had no particular legal
in the place of non. importance. A minor sui iuris (not under paternal
Guarneri-Citati, Indice' (1927) 56. power) was considered unable and not experienced
Minister. A servant, a subordinate (assistant) of an enough to manage his affairs because of his juvenile
official under the Empire. I n exceptional instances light-heartedness and weakness of mind (infirmitas
it refers to higher officials, both civil and military. animi, aetatis). Until the curatorship of the minors,
When mentioned in connection with a crime = an cura minorum (see CURATOR MINORIS), was intro-
abettor, an accomplice. In the Christian Empire, duced as a general institution, a minor was protected
when connected with ecclesiatical service = a Church against fraud (see CIRCUMSCRIBERE) by the LEX
servant, a minister (ministeria ecclesiarum) . PLAETORIA and the praetorian remedy of RESTITUTIO
Ensslin, RE Suppl. 6. I N INTEGRUM which remained the most efficient pro-
Ministeriales (ministeriani). Officials in the imperial tective measure during the classical period. Under
palace of a rather subordinate rank. They had to Justinian the cura minorum became compulsory.
take care of the imperial household (in the later The ability of a minor to appear in court was re-
Empire). They were appointed by the emperor and stricted by Constantine who ordered that the minor
enjoyed exemption from humble public services had to be assisted by a curator. I n Justinian's
(munera sordida) . The MAGISTER OFFICIORUM ex- codification the cura minorum appears completely
ercised jurisdiction over them.-C; 12.25.-See CAS- assimilated to tutorship (TUTELA) . This was per-
TRENSIANI, MINISTRI CASTRENSES. formed through innumerable interpolations but not
Ensslin, RE Suppl. 6 ; J . E. Dunlap, Univ. of Michigan with consistency. Some details in the development
Studies, Human. Ser. 14 (1924) 212; Giffard, R H D 14 of the cura minorum have remained therefore obscure
(1935) 239. and the nature of the duties of a curator minoris
Ministeriani. See MINISTERIALES.-C.12.25. is still controversial. H e certainly was something
Ministerium. The office (activity) of a MINISTER or more than a simple adviser and was not excluded at
of a MINISTERIALIS.-Incriminal matters ministerium all from the administration of the ward's property.-
is the assistance in committing a crime, complicity.- D. 4.4; C. 2.21-42; 5.71.-See CURATOR MINORIS,
See MINISTER. IUSIURANDUM MINORIS:
Ministerium divinum (ecclesiae). A divine seivice. Berger, RE 15 (Bibl. p. 1889) ; Cuq, DS 3 ; Albertario,
Studi 1 (1933, e x 1912) 407, 427, 475, 499; idem, SDHI
Ministerium, publicum. A public office. The term is 2 (1936) 170; G. Solazzi, La minore etd, 1913; idem,
also applied to municipal offices (ministeria munici- AVen 75 (1916) 1599; Lenel, ZSS 35 (1915).
palia) . Minus. Less. "The minus is always included in what
Ministerium sacrum. Service in the imperial palace. is greater (plus)" (D. 50.17.110 pr.). Therefore,
Syn. ministerium sacri palatii, sacri cubiculi. The "he who is allowed to do what is greater (plus)
emperors speak of their palace staff as "nostrum should not be prohibited from doing less" (D.
sacrum yzinisterium." 50.17.21).
Ministerium servorum (servile, servitutis). Slaves' Minus solvere. T o pay less than one owes. "He who
work, services rendered by slaves. Hence ministeria pays later pays less" (D. 50.17.12.1).
denotes all slaves in the service of the same master. Minutio capitis (minui capite). See CAPITIS DEMI-
-C. 3.33. NUTIO, CAPUT.
Ministri castrenses. See CASTRENSIANI. There were Miscere. See COMMISCERE, MIXTUS.
two kinds of ministri castrenses: statuti = members Miscere (se) hereditati. See IMMISCERE, PRO HEREDE
of the regular staff, and supernumerarii = additional GERERE.
584 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
Miserabilis persona. See PERSONA MISERABILIS. bebo" ( = I shall order the property to be taken into
Missilia. Money thrown as largesse to people in the possession, advertised for sale and sold"). The
theatre or on the street by emperors, high officials praetor's missio-decree was withdrawn and the missus
or wealthy individuals. The coins became the prop- in possessionelrz ordered to surrender possession (de-
erty of the persons who picked them up.-See TRA- cedere de possessione) if the debtor came to an
DITIO I N INCERTAM PERSONAM, TESSERAE NUMMARIAE. arrangement with the creditor. Missiones were acts
Berger, RE 9, 552 (s.w. iactus) ; Fabia, D S 3 ; Meyer- designed to exert pressure on the debtor and were,
Collings, Derelictio, Diss. Erlangen, 1930, 2. if successful, of a temporary character. They were
Missio. A discharge from military service. Honesta generally successful when the missus entered into a
missio = an honorable discharge after the completion property occupied by the owner who had to suffer
of twenty-five years of irreproachable service.. Ant. his continuous Dresence and control. In certain cases
ignominiosa nzissio when the dismissal was occa- the missus in fiossessionem enjoyed interdictal pro-
sioned by the soldier's committing a common or tection; see INTERDICTA NE VIS FIAT EI QUI I N
military crime. hlissio causaria (or simply causaria) POSSESSIONEM MISSUS EST.-For the various W ~ S S ~ O ~ ~ S
= discharge because of mental or physical disability. in possessionem or in bona, see the following entries.
For missio of peregrine soldiers, see AUXILIA.-S~~ -D. 42.4.
DIPLOMA MILITARE. Weiss, RE 15; Cuq, DS 3; S. Solazzi, Concorso dei
Lammert, R E 15, 1666; 4A, 1949; Rowell, Yale Classical creditori 1 (1937) ; M. F. Lepri, Note sulla natura delle
S t 6 (1939) 73. m.i.p., 1939; Branca, St Solazzi 1948, 483.
Missio i n bona. See MISSIONES I N POSSESSIONEM. Missio i n possessionem Antoniniana. Introduced by
Missio in possessiopem. See the entries below, after the emperor Caracalla, who admitted a missio in
MISSIONES I N POSSESSIONEM. possessionem legatorum servandorum causa also into
Missio in rem. See .MISSIONES I N POSSESSIONEM. The the property of the heir if, within six months after
typical case of such missio by which a claimant was the presentation of a claim by a legatee', he did not
given possession of a single thing (an immovable) be- give sufficient guaranty for the payment of the legacy.
longing to his adversary is MISSIO I N POSSESSIONEM The legatee missus in possessionem might take the
D A M N 1 INFECT1 N O M I N E . products (fructus) from the heir's property to satisfy
Missiones in possessionem (in bona). A coercive his claim.-See MISSIO I N POSSESSIONEM LEGATORUM
measure, applied by the praetor by virtue of his im- SERVANDORUM CAUSA.
periuwa, by which a claimant was authorized to enter Lepri, op. cit. 123; F. M . De Robertis, Di una pretesa
into possession of his adversary's property, in whole innovazione di Caracalla, AnBari N.S. 1 (1938) 99.
or in a part (see MISSIO I N REM). The purposes of Missio in possessionem bonorum (bona) pupilli.
missiones were different and so were in the various A missio into the property of an impubes if in a suit
cases their effects. The praetorian decrees concern- over a transaction concluded by his guardian the
ing missiones were issued either in order to assure former (the pupillus) was not defended by his tutor.
the normal progress of the trial and to prevent the The missio was rescinded when the tutor or a relative
defendant's attempts to sabotage it, or to secure the of the pupillus assumed the defense.
debtor's property for the satisfaction of his creditors, Missio in possessionem damni infecti nomine. When
or to induce the debtor to assume a special obligation the owner of a defective immovable refused to give
through stipulatio (stipulationes praetoriae) for se- CAUTIO D A M N I INFECTI for damages threatening the
curity purposes if he refused to do it voluntarily. The neighbor's property, the praetor allowed the latter
legal situation of the missus in possessionem created to enter into possession (missio in rem) of the im-
by missio varied from real possession to simple cus- movable. If the first decree (missio ex prim0 de-
tody and control (custodia et observantia) of the creto) did not produce the desired effect (repairing
things the holding of which he obtained only to assure of the building or giving the cautio) the praetor
that the del)tor's property would remain intact and issued a second decree (missio e x secundo decreto)
he used exclusively for the benefit of the creditors. which put the missus in the position of a possessor
At times the situation of the missus in bossessioneiit ad usucapionem, i.e., he might usucapt the immov-
was comparable to that of a creditor who received a able.-See USUCAPIO.
pledge (pignus praetorium, the term may be not Lepri, op. cit. 89; Branca, Danrto tr~rtuto,1937, 130.
classical), since the missio led finally to the sale of Missio in possessionem dotis servandae causa. One
the debtor's property if he did not satisfy the creditors of the cases of the MISS10 I N POSSESSIONEM RE1 SER-
in the interim. Protection was given certain persons VANDAE CAUSA. I t was granted a divorced wife or
(such as impubercs, or those allsent in the interest a widow in order to secure her claim for the resti-
of the state) in that their property generally could tution of the dowry.
not I)e sold. The edictal claiise in which the praetor Solazzi, Dotc e rrasrittrro, RcrtdLotrrb 49 ( 1 9 1 6 ) 312.
announced the issue of a missio-decree was in the Missio in possessionem ex edicto Hadriani. In
most cases : "bona possidcri proscribi veniricluc iu- order to assure the prompt paynlent of the estate-tax
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
(VICESIMA HEREDITATIUM) Hadrian ordered that an Mittere. To send (a letter = epistulam, a messenger
heir instituted in a testametlt apparently valid might = nuntium, a person to perform a specific official or
take possession of the testator's estate immediately private mission). For mittere in possessionem, see
after the payment of the tax. This kind of missio, MISSIONES I N POSSESSIONEM. For wittere repudium,
which differs essentially from the normal missiones, see REPUDIUM.
no longer existed in Justinian's time.-C. 6.33. Mittere. (With reference to soldiers.) To discharge
Missio in possessionem legatorum servandorum from military service (ab exercitu, militia) .-See
causa. If an heir refused to give a cautio legatorum MISSIO, DIPLOMA MILITARE.
servandoru~vl.causa for the payment of a legacy (or Mixtus. (From nziscere.) With reference to legal
a jideicommissu~?~) left under condition or to be paid institutions (munera, condiciones) or procedural
at a fixed date (ex die), the legatee could ask for remedies (actiones, interdicta) = of a hybrid, mixed
this missio in order to enter into possession of the nature. The term reflects more the Byzantine men-
estate (but not of the private property of the heir) tality than the exact legal thinking of the classical
and remain there, together with the heir, as long as jurists and is suspect as being a late postclassical or
the heir did not furnish security. H e held the prop- Justinian creation.-See ACTIONES MIXTAE,I MPE-
erty custodiae causa (= for safekeeping) .-D. 36.3 ; R I U M MERUM, INTERDICTA MIXTA, MUNERA.
4 ; C. 6.54.-See CAUTIO LEGATORUM NOMINE, MISSIO Berger, Vol. onoranze Simoncelli, 1915, 183 ; Guarneri-
I N POSSESSIONEM A N T O N I N I A N A . Citati, Indice2 (1927) 57.
Lepri, op. cit. 113. Mobiles res. See RES MOBILES.
Missio in possessionem (bona) rei servandae causa. Moderatio. (From moderare, moderari = to restrain,
Decreed by the praetor in various circumstances dur- limit, rule.) The observing of reasonable limits,
ing a trial: when the defendant was absent in court temperateness. When referring to their acts of grace,
and was not defended by a representative, when he or indulgence the emperors used to speak of "modera-
intentionally kept hiding (latitare) so as to avoid tio nostra."-A similar expression, i+zoderamen, ap-
being summoned to court; or when he was considered pears in late constitutions.
indefensus because of his refusal to cooperate in the Moderator. A ruler. Moderator provinciae = the gov-
progress of the trial, as, for instance, when he refused ernor of a province.-See PRAESES PROVINCIAE.
to accept the procedural formula approved by the Modestinus, Herennius. One of the last representa-
praetor. See INDEFENSUS.This missio is also the tives of the classical Roman jurisprudence, a pupil
initial stage of the property execution against a de- of Ulpian, and a high official in the administration
fendant who has been condemned by judgment (iudi- of Rome about A.D. 240. H e wrote an extensive
catus) or is considered as such (pro iudicato), as the collection of Responsa (in 19 books), a work on
confessus in iure was (see CONFESSIO I N IURE). The Differentiae ( = controversial questions) and Regulae
function of this qnissio was similar in the case of an ( = legal rules). H e was also the author of a Greek
insolvent debtor or an insolvent inheritance. The treatise on exemptions from guardianship (excusa-
creditor or creditors could obtain possession of the tiones). Modestinus was one of the jurists distin-
debtor's property or estate which would eventually guished in the Law of Citations (see IURISPRUDEN-
be sold; see VENDITIO BONORUM, CURATOR BONORUM. TIA).
Weiss, R E 15; Cuq, D S 3 ; P . Ramadier, Les effets de la Brassloff, R E 8 (s.v. Herennius, no. 31) ; H. Kriiger, S t
m. in b., 1911; H . R. Engelmann, Die Voraussetzungera Bonfante 2 (1930) 315.
der m. in b.. 1911 ; Rocco, Studi sulla storia del fallimento,
R D C o m 1913 (= I1 fallimento, 1917) ; S . Solazzi, I1 con- Modicus. Moderate-sized, moderate, restrained. The
corso dei creditori, 1-4 (1937, 1938, 1940, 1943) ; Lepri, term, applied to punishments, losses, expenses, lack
op. cit. 43. of preciseness. Modicum tempzrs = a short time.
Missio in bona suspecti heredis. See SATISDATIO Modicus appears in texts suspected of interpolation.
SUSPECT1 HEREDIS. Guarneri-Citati, Indice' (1927) 57.
Missio in possessionem ventris nomine. A missio Modus. A measure, a limit. I n the meaning of a
for the protection of the rights of an unborn heir. Its burden, a duty imposed in acts of liberality (dona-
function was similar to the BONORUM POSSESSIO VEN- tions, legacies, manumissions) on a beneficiary, the
TRIS N O M I N E when the father of the child was dead. term is of late origin. It appears in the language
-D. 25.5; 25.6; 37.9. of the chancery of later emperors, and in the lan-
S. Solazzi, I1 concorso dei creditori, 1 (1937) 20. guage of Justinian and his compilers. Sometimes the
Missus in possessionem (bona). A person who by term covers what was a CONDICIO (condition) in the
the decree of the praetor was granted a missio in classical language. In the classical law it was dis-
possessionem of the property of his debtor or adver- putable whether a duty imposed as a ~lzoduscreated
sary in a trial.-See MISSIONES I N POSSESSIONEM. on the part of the beneficiary a binding obligation.
Mittendarii. Imperial officials sent to remote provinces The emperor Gordian set a general rule that the
with special imperial messages to the governor or in Derson interested in the fulfillment of a modus of
order to collect special taxes. pecuniary value could sue the heir or legatee for
586 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
fulfil1n1rnt.-D. 35.1 ; C. 6.45.-See WNATIO SUB ticularly that of Justinian, dealt frequently with
NODO. monasteries, their legal situation, and specifically with
Weiss, RE 15; Cuq, D S 3; F. Haymann, Schenkurt.9 ctf~trr their ability to benefit 1)y testaments as heirs or lega-
.4trflage, 1905; P . Lotmar, Freilassurrgsaufiagc, Z S S 33 tees.-~ee MONACIII.-~.1.3.
(1912) 304; Messina-Vitrano, St Riccobono 3 (1936) 99. ci By:~irzcc. 1896;
A. Ferradou, Drs birrrs drs ~rtor~nstl'rcs
Modus aedificiorum. A liinit regulating height in the Branic, By:cir~tinischr Ztschr. 29 (1929) 6; Schnorr v.
construction of buildings.-See LEX IULIA DE MODO Carolsfeld, Gcsc.hichtc der jttris/ischm Persor~ 1 (1933)
AEDIFICIORU~I. 394 ; P. W. Duff, Prrsonalily in R. law, 1938, 185 ; 196.
B. Biondi, Ln cc~tcgoriororrtartn drllc scrvittrtcs, 1938, 23; Moneta. Minted money. See FALSA MONETA. Mo-
Berger, Iarn 1 (1950) 121. neta may also mean the mint itself. Monrta sacra =
Modus agri. The boundary of a plot of land.-See the imperial mint. The theft of coins from the mint
AGRIMENSORES, ACTIO DE MODO AGRI. is punished with work in mines (metalla) or exile.-
Modus donationis. Linlits imposed on the amount of See TRIUMVIRI MONETALES, NUMMULARIUS, TESSERA
dollations or with regard to the formalities to be NUMMULARIA, OPTIO.
accomplished to render a donation valid. See LEX Monetarii. Workers in the imperial mint. They
CINCIA.In another sense g~zodusis used with refer- could leave their occupation only with difficulty.-
ence to gifts; see MODUS, DONATIO SUB MODO. C. 11.8.-Monetarius is also the counterfeiter of
Modus facultatum. The financial situation of a person, coins.
mentioned in connection with the constitution of a Monitor. (In the later Empire.) An official who
dowry or with alimony which has to correspond to reminded the tax-payers of taxes due.-In private
the financial means of the person obligated.-See enterprises '= an overseer (over slaves).
FACULTATES, BENEFICIUM COMPETENTIAE. Monitorium edictum. See EDICTUM MONITORIUM.
Modus legatorum (or legis Falcidiae). The limits Monopolium. A monopoly, i.e., the exclusive right to
inlposed on the amount of legacies by the LEX FAL- sell and deal in a specific type of merchandise. An
CIDIA. For legatzrm sub modo, see MODUS. imperial constitution of the emperor Zeno (A.D.483,
Modus servitutis. A modification of the typical con- C. 4.59.2) forbade the monopolization of the sale of
tent of a servitude limiting the rights the beneficiary certain co~nmodities(clothes, foodstuffs) or items of
has in the exercising of the servitude, for instance, common use, as well as of the performance of certain
the size of carriages he may use in the servitus ACTUS. works. There were many other similar prohibitions
S. Perozzi; Scritti 2 (1948, ex 1888) 29; Biondi, Scr L. carrying the penalty of confiscation of property and
Barassi 1943, 57; idem, Le servit3 prediali, 1946, 46. exile for life.-C. 4.59.
Modus usurarum. The limit of the rate of interest Heichelheim, R E 16 (Bibl. 199).
imposed by law.-See USURAE. Monstrum. An unnatural, monstrous creature (won-
Moliri. To start the construction of a building.-See struosum, prodigiosum, portentosum aliquid, osten-
OPERIS NOVI NUNTIATIO. tum) which has not the shape of a human being
Momentaria possessio. See POSSESSIO MOMENTARIA. (contra for~lzamhumani generis) is not considered
Momentum. Weight, importance. Nullius momenti a child. A law ascribed to Romulus allowed the
esse = td be void, of no legal force, Syn. ineffica~, killing of such an offspring immediately after birth.
nullus, efectum non habere. Ant. VALERE. -See PORTENTUM.
Hellmann, Z S S 23 (1902) 421. Kiibler, Z S S 30 (1909) 159; Ambrosino, RordLonrO 73
(1939/40) 70.
Momentum. An instant, a moment. When for legal
effectiveness a certain period of time must elapse Montanus. See PAGANUS.
Monumenta. Written documents, records. Publica
(as, e.g., for USUCAPIO) the time is reckoned in full
completed days, not according to hours or specific monuments (= public records) offer a stronger evi-
dence than the testimony of a witness, according to
moments ( a momento ad momentum).
a decree of the senate.
Monachi. Monks. They were in Justinian's law in- De Visscher, AntCl 15 (1946) 122.
of being guardians' Their property was in- Monumenta Maniliana. See MANILIUS, FORMULAE,
herited by their monastery if they died without leav-
ing a testament and there were no near relatives. Monumentum. See SEPULCRUM.
Several Justinian Novels (5.76.79.123.133) deal with Monumenturn Ancyranum. a stone monument
monks and monastic life.-C. 1.3. on which a great part of Augustus' autobiography
Granic, Byzantinische Ztschr. 30 (1930) 669; Schaefer, (see RES GESTAE DIV1 AuGusT1) is preserved. Menu-
ACII 1 (1935) 173; Tabera, Professio monastics calcsa mentunz Antiochenum = fragn~entsof the same work
divortii, ibid. 189. found in Antioch (Pisidia) .
Monachium. See MONASTERIUM.-C.1.3. Kornemann, RE 16; Momigliano, OCD; Robinson, Amer.
lour. of Philology, 47 (1926) ; W. M. Ramsay and A. v.
Monasterium. A monastery. The ability of a monas- Premerstein, Klio, Beiheft 19, 1924; H. Volkmann, Bur-
tery to own property was recognized in the fifth cen- sians Jahresberichte 279 (1949, Bibl. for 1914-1941) ;
tury. Legislation of the Christian emperors, par- Luzzatto, SDHI Suppl. 17 (1952) 167.
VOL.43, PT. 2 , 19531 ENCYCLOPEDIC DICTI(3NARY OF ROMAN LAW 587
Mora. Default. I n lnora esse = to be in default. Morbus. A disease. The jurist deals with morbus
"He from whom a payment cannot be demanded (D. 21.1.1.7: "an unnatural state of the body which
because of an exception (he has against the claim) in impairs its use") in connection with the liability of
not in default" (D. 12.1.40). "A thief (fur) is al- the seller of a sick slave. Morbus is distinguished -
ways in default" (D. 13.1.8.1) with regard to the from vitium inasmuch as ~aorbusis "a temporary
restoration of the thing stolen.-See MOM DEBITORIS. sickness of the body while vitium (a defect) is a
Mora accipiendi. See the following item. perpetual impediment of the body" (D. 50.16.101.2).
Mora debitoris-creditoris. There is a distinction -See EMPTIO.
between $nova debitoris, an unjustified failure of a Morbus comitialis. Epilepsy. If a case of epilepsy
debtor to pay his debt, and Iizora creditoris, which occurred in a popular assembly an immediate inter-
occurs when the creditor refuses to accept the pay- ruption and postponement of the gathering took place,
ment offered him by the debtor in due time, without since the disease was considered a bad omen.
Seidl. R E 16.
any just reason or when he makes it impossible for
the debtor to discharge his debt by, for instance, Morbus perpetuus. A chronic disease. Ant. l~zorbus
being absent. I n the case of mora debitoris (mora temporarius.-See CURATOR MUTI.
solvendi, solutionis) the liability of the debtor is aug- Morbus sonticus. A grave, acute sickness. If in-
mented: an accidental destruction of the thing due is curred by a judge or one of the parties during a trial,
at his risk, he has to pay interest (usurae $novae) an adjournment took place. A I ? Z O Y ~ U Ssonfictcs of
when the debt is of a sum of money, and he has to the debtor was considered a valid excuse for non-
restore all proceeds he had from the time he has been fulfillment of his obligation.
Lkcrivain, DS 3.
in default (in morn). The debtor is not responsible,
More. (Abl.) According to usage (custom) ; in the
however, for a default caused by no fault of his own.
way (fashion) of, e.g., wore ittdiciorum~judicially,in
The default of the debtor causes the obligation to
court, by the normal procedure.
become everlasting (obligatio perpetuattlr). Mora
Mores (mos). Customs, "the common consent of all
creditoris involves also certain disadvantages to the
people living together; if observed fcr a long time
creditor: the 'thing due is now at his risk and the
(mos inveteratusl it becomes a consttetudo." Certain
debtor is responsible only for fraud (dolus), even if
legal institutions originate from 11tores (wloribus re-
the original obligation imposed on him a larger re-
ceptum, introductttwt est), as, for instance, the inter-
sponsibility. The debtor has the right to free himself
diction of gifts between husband and wife (DONATIO
from his obligation through a deposition of the sum I N T E R VIRUM ET UXOREM), or the management of
due; see DEPOSITIO I N AEDE. The consequences of the affairs of a spendthrift by a curator (CURAPRO-
the lilora come to an end (pztrgare, elltendare ~ilorn+$z) DIGI).-See DEDUCTIO QUAF MORIBUS FIT, CONSTI-
when, in the case of wora debitoris, the debtor offers TUERE IURA,IUS CONSTITUTUM, CONSUETUDO, and the
full payment to the creditor, and, in the case of ~ilora following items.
Munerarius. A private individual or an official who APRONIANUM), and finally under Hadrian the full
arranged public games, especially gladiatorial combats capacity of vzzlnicipia to be instituted as an heir or
(lladi gladiatorii) or fights with wild animals. legatee was recognized.-D. 50.1.-See DECURIONES,
Schneider, RE 16. ORDO DECURIONUM, DUOVIRI I U R I DICUNDO, DUOVIRI
Municipalis. (Noun.) A member of the municipal AEDILES,C URIAE MUNICIPIORUM, PATRONUS M U N I -
council. Municipalis (adj.) connected with, or per- CIPII, MAGISTRATUS MCNICIPALES,TABULAE COM-
taining to nzunicipia.-D. 50.1.-See DECURIONES, MUNES.
MUNERA MUNICIPALIA, LEX M U N I C I P A L I S TARENTINA, Kornemann, R E 16 ; Toutain, D S 3 ; Sacchi, IVDI 8 ; W,
LEX I U L I A MUNICIPALlS, MAGISTRATUS MUNICIPALES, Liebenam, Stcidtezvrwaltung in der Kaiser,-eit2 (1900) ; L.
Mitteis, Rona. Privatrecht, 1908, 376; J . Declareuil, Quel-
and the following items. ques probl?mes d'hist. des instit. nzzrnicipales, 1911 ; Rama-
Municipes. Citizens of a municipality (municipium) . dier, Etudes Girard, 1 (1912) ; J. S. Reid, The vtu~licipali-
One became a ~izunicepsby birth (see ORIGO),adop- ties of tlte R. E+npire, 1913; F. F. Abbott-A. C. Johnson,
tion by, or manumission by a ~czuniceps. The ety- Municipal adnaznistratioit in the Ronaan Empire, 1927; H .
Rudolph, Stadf und Staat inz ron~.Italien, 1935 ; B. Eliache-
mology of the term (munera capere, tnuneris parti- vitch, La personnalite' juridique en droit prive' rom., These
cipes) indicates the principal duties of a ~nuniceps Paris, 1942, 57; E . blanni, Per la storia,dei n%. fino alla
towards his municipality: rendering public services guerra sociale, 1947; Solazzi, BIDR 49-50 (1947) 393;
and assuming charges for the welfare of the com- Schonbauer, Iura 1 (1950) 124; Vittinghoff, Z S S 68
munity. The municipes have twofold citizenship, (1951) 455; idem, Rontisrhe Kolonisations- und Burger-
rechtspolitik unter Caesar und Augustus, Abh. Akadelnie
since they are Roman citizens and citizens of their Wiss. rlfainz, 1951 (no. 14) 33.
municipium. In ,their first capacity they participated Munire ripam. See RIPA.
in the political life of the state when present in Rome, Muniri. To be protected, supported by law (ifso iure)
as citizens of a "zuniciPium took Part in the or by a legal remedy (exceptiones, pyaescviptiones),
local administration. By a decree of the municipal The term is frequent in the language of the imperial
council (ordo decurionum) municipal citizenship chancery.
could be granted to individuals who were not entitled Munus. See MUNERA.
to it (adlectio inter rives).-D. 50.1 ; C. 10.39.-See Munus. A gift presented on a special occasion (on a
ACTOR MUNICIPUM, CURIAE MUNICIPIORUM, INCOLA,
birthday = llzztnus natalicium, on a wedding = munus
ORIGO, M U N I C I P I U M . nuptiale nuptalicium) .-See DONARE.
A. N. Sherwin-White, The Roman citizenshij, 1939, 3 6 ;
E, Manni, Per la Storia dei nluniriji fino guerra so- Munus' A public (game) arranged a pri-
ciale, 1947. vate person (nzunus dare, edere). I t was customary
Municipium. to\vn in ltaly except Rome (= to bequeath a legacy to a municipality in order that
uybs). The term superseded gradually analogous public festivities be made ad honorem civitatis ( = to
expressions (oppidum, colonia, praefectura) and was the honor of the city).
later applied also to ci:ies in the provinces. Syn. MU~US n u ~ t i a l e (nu~talicium). A wedding gift-
civitas, and, to a certain extent, yes fublica. Origi- Such a gift was customary but not obligatory. There-
nally there were Ipzunicipiacum suffyagio (with the fore a guardian who gave his ward's mother or sister
right to vote in popular assemblies) and catrn iatre a wedding gift could not deduct the expense from the
honoratm (the right of their citizens to be elected as ward's 1XoPertY.
magistrates in Rome), and qnzlnicipiasine suffyagio Murilegulus. A fisherman skilled in catching purple-
(deprived of such rights). The municipia had, how- fishs-c. 11.8.
ever, the privilege of local autonomous government Murus. A wall. City walls were yes sanctae. I n
and jurisdiction. An attempt of a general regulation Rome persons who lived in extramural buildings were
of the municipal organization was made in the so- considered inhabitants of Rome.--See RES D I V I N I
called LEX I U L I A MUNICIPALIS.Other municipal IURIS, ROMA, URBS, PARIES.
statutes, preserved in inscriptions, are LEX M C N I C I - R. I. Richmond, The city zualls of the iti~perialRome, 1930.
PALIS TARENTINA, LEX RUBRIA DE GALLIA CISALPINA, Mutare causam possessionis. See N E M O SIBI IPSE
LEX COLONIAE GENETIVAE IUL~AE, I-EX MALACITANA, CAUSAM POSSESSIONIS, etc.
LEX SALPENSANA. A uniform organization of the Mutare testamenturn. T o change a last will. A tes-
n~unicil)alatlnlinistration was not fully established, tator had full power t~ do so, I)ut if the motive for
and differences in the titles of the nlunicipa] magis- which he changed his mind and which was expressed
trates, and their functions, as well as the functions in the later testanlent proved false, the former testa-
of the municipal councils, were never con~l>letely mentary disposition might l)e taken into considera-
eliminated. Under the Republic a ~nunicipiztnzcould tion. I f , for instance, the testator believed that the
not lie instituted as an heir, 1,ut this sit~lation inl- heir first instituted was dead, the latter could claim
proved in the course of time. First fideico~n~nissa in the inheritance according to an iml)erial constitution.
favor of a nzunicipiu~nwere atlmittetl, then a fidei- Mutat. I n the phrase non nzttfat si (prod or sim.) =
c o ~ ~ n z i s s u ~lzcrcditatis
n (see S E N A T U ~ C O N S U L T U M it does not matter if. . . . The locution is used to
VOL. 43, PT. 2, 19.531 E N C Y C L O P E D I C DICTIC) N A R Y OF R O M A N L A W 591
state that a legal rule which was expressed before- Mutuum. A loan. The creditor = qui mutuam pe-
hand, has to be applied to another legal situation. cuniam (nzutuo) dat, credit; the debtor = qui ~ n ~ r f ~ t z ~ m
Mutatio. I n the postal service, see MANSIO. (wtutuo) accipit. A loan is concluded re, i.e., when its
Mutatio domini. A change in the person of the owner object (a sum of money, an amount of fungibles) was
of a thing. It has no influence at all on the rights handed over to the debtor. The latter is obligated to
of a usufructuary or of a person who has a servitude return in due time the sum of money or the same
over the thing. quantity of fungibles of the same quality as was lent
Mutatio familiae. A change in the family status of a to him. H e can be sued for return through the actio
person. I t takes place when a member of one family certae creditae ~ecuniae,when nionev was involved.
enters into another (marriage with conventio in of through condictio triticaria if fungibles were bor-
manum) or when a person sui iuris comes under the rowed. The borrower becomes owner of the things
paternal power of another through adrogatio, or vice given to him for consumption. Interest (trsarae)
versa, when a person alieni iuris becomes sui iuris must be promised by a special agreement (normally
and consequently the head of a new family (emanci- stipulatio). The loan itself could also be vested in
patio). Mutatio familiae produces CAPITIS D E M I N U - the form of a stipulatio if the debtor promised the
TIO M I N I M A because the ties with the former family payment through stiplrlatio (a verbal- contract) .-
are torn.-See ADOPTIO, STATUS. See RES QUAE PONDERE, etc., FENUS,USURAE.
Kaser, RE Suppl. 6 ; Cuq, D S 3 ; G. Segrti, St Si+itotrcelli
Mutatio iudicii. See ALIENATIO IUDICII MUTANDI 1917, 331; C. Longo, I1 grzrttlto ( C o r s o ) 1933; P. E . Viard,
CAUSA. Mutui datio, Paris, 1939; Rohbe, S D H I 7 (1941) 35; P.
Mutatio iudicis. A replacement of a judge after litis Voci, 11 sistenza roni. dei coritr.ott? (1950) 123; Seidl,
contestatio, when, for instance, the first judge died Fschr Schulz 1 (1951) 373.
before rendering the judgment or became somehow Mutuus dissensus. See C O N S E N S ~ SCONTRARIES.
unable to continue his activity.-See TRANSLATIO
N
IUDICII.
Steinwenter, RE Suppl. 5, 351; P. Koschaker, Translatio Narratio. ( I n postclassical language.) The oral pres-
iudicii, 1905, 311 ; Wlassak, Der Jztdikationsbefehl, S B Wiert entation by the plaintiff or his advocate of the facts
197, 4 (1921) 232; Duquesne, La translatio iihdicii, 1910, and legal argutnents on which he based his claim.
221.
The reply of the defendant = responsio, confmdictio.
Mutatio militiae. The transfer of a soldier to an- P. Collinet, La procidrtre par. libcllc, 1932, 208.
other branch of service as a punishment for a minor Nasci. T o be born. "Those who are born dead are
offense. Syn. in deteriorew nzilitia~ndare. considered neither born nor procreated" (D.
Mutatio nominis. A change of name (nomen, cogno- 50.16.129). Sosci is used of fruits (see FRUCTCS)
men). It was allowed if it was not intended for which proceed frorn the soil (in fundo). With refer-
fraudulent purposes.-C. 9.45. ence to legal institutions nasci is used of actions (actio
Mutatio rei. A change of the substance of a thing. nnscitarr = an action arises), interdicts, obligations,
I t occurs when land became a ~ o n dor a marsh and the like, to which a legal situation under discus-
through inundation or when a forest was cleared sion gives origin.-See INSULA I N F L U M I N E NATA.
and made into field. "Through mutatio rei an Nasciturus. A child not yet born (unborn). Syn.
usufruct is extinguished" (D. 7.4.5.2). qui in zrtero (in the womb) pst. There was a rule
P. E. Cavin, L'e.rti~rctio~i 193.3.
de I'ztsttfrztit rei ~~rrttotione, that "a nosciturus is considered born when his in-
Mutatio status. See STATUS. terests are taken into account" (D. 1.5.26) .-See
Mutua pecunia. A sum of money given as a loan.- CONCEPTUS.
Mutua substitutio. See SUBSTITUTIO. rezioirc watltralistico, 1937, 66; Jonkers, Vigilioe C'liris-
persons who sue each other in separate actions. The Natalium restitutio. The privileges of a free-born,
claiins could he united in one trial in order to be granted by the eiliperor to a freedman. All official
examined and decided by the same judge. Syn. posts accessil)le to free-born persons were open to
~rzufuaeacfiones. the individual thus privileged. H e could enter the
De Francisci, Syilallagrr~a 2 (1916) 539; Levy, Z S S 52 ordo cqz.resfcr (the equestrian class, see EQUITES)for
(1932) 517; S. Solazzi, Coirrpcrrsazioirc2 (1950) 107. which the status of a free-born was required.-D.
Mutuari (mutuare). T o borrow, to receive a loan.- 40.1 1 ; C. 6.8.
See M U T U U M . A. M . Duff, Frecdiricrr irr tlic R. eriipire, 1928, 72.
Mutus. A tilute ijerson. If he is able to understand Natura. Nature of things, natural order, natural
the meaning of the transaction he wants to conclude, (Irtr~nnnn)= hunlan
na-
reality. Nnfrrra lto~~tinrr~rt
he can express his will I)y signs (nrttrr).-D. 37.3.- ture. Nattrrii (abl.) = naturally, in a natural way.
See INTELLECTUS, NUTUS,CURATOR MUTI,TUTOR. Ant. contra notrtra1r2.-With reference to legal insti-
ADOLF BERGER
tutions natura = the substance, the essential elements, Naturalis filius. See FILIUS NATURALIS.
the structure of an institution (contractus, obliga- Naturalis lex. Only mentioned once in juristic sources,
tionis, negotii, stipulationis, emptionis, etc.). Theo- namely, with regard to the prohibition of theft (fur-
reticians among the law teachers coined this concept turn) by natural law (lege naturali, D. 47.2.1.3, simi-
under the influence of philosophic ideas.-See the larly Cicero, dc off. 3.5.21 : contra natura~n).
following items. C. A. Maschi, La concesionr naturalistica, 1937, 358.
Gradenwitz, Fg Schirmrr 1900, 13; R. Bozzoni, Sttlle Naturalis obligatio. See OBLICATIO NATURALIS.
Natura actionis. The juristic structure of a specific nature, natural reason. The tern1 is indicated as the
action with regard to its substantial functions. The basic component of IUS C E N T I U M and appears at
term is probably of classical origin (Gaius), but it tinies as a ground of justification for certain, legal
was expanded by Justinian's conlpilers into a general institutions or decisions in specific cases (= reason-
conception of the nature of actions without regard ableness).
Koschembahr-Lyskowski, St Bor~forrte3 (1930) 467; C.
to a specific action. A. Maschi, La concelione naturalistica, 1937, 236; De Mar-
C. Longo, St Ssialoja 1 (1905) 607; idem, BIDR 17 tino, AirBari 7-8 (1947) 117; Kaser, Z S S 65 (1947) 219;
(1905) 34; Pringsheim, SDHI 1 (1935) 73; C. A. Maschi, Levy, Natural Lazv, Univ. of Notrc Dame Natural Law
La coircrziotre vatz~ralistica, 1937, 73.98; P. Collinet, La Proc. 2 (1949, = SDHI 15, 1949) ; Bartosek, St Albcr-
nature des actions, 1947; Solazzi, BIDR 49-50 (1947) 346. tario 2 (1952) 474.
Natura contractus. Generally or with regard to a Naturaliter. By nature. Syn. natura (abl.). Natura-
specific contract (as, for instance, natura deposit;, liter possidere = physical, corporeal possession.
sbcietatis, ~nandati),the juristic structure of a con- Nauarchus. The captain of a vessel. Nauarchus
Rotondi, Scritti 2 (1922) 159; C. A. Maschi, La conce-ione navy ;-he had the privilege to make a fornlless testa-
Natura hominum (humana). The normal human na- as all soldiers had.-See TESTAMENTUU MILITIS.
hominum in specific circumstances may serve as a tation of men and goods for the state.-C. 11.2.-
acting in a given instance, i.e., whether his act was Kiesling, R E 16, 1937.
or was not in accordance with human nature. Naufragium. A shipwreck. It is considered as an
C. A. Maschi, La cortcesiorie nuttrralistica, 1937, 7.
unforeseeable accident; see c ~ s u s c, ~ s u F
s ORTUITUS.
Natura obligationis. The structure and function of Pillage committed during a naufragium was punished
an obligation in general or of a specific obligation. with a penalty of the fourfold value of the goods
C. A. Maschi, La concezione naturalistica, 1937, 82.
robbed.-D. 47.9 ; C. 11.6.-See DEPOSITUM MI-
Natura rerum. The reality (existence) of tbings, all
SERABILE.
that exists in nature. "What is prohibited by nature Weiss, R E 16; Cuq, D S 4 ; Solazzi, R D N a v 5 (1939)
of things is not admitted by any law" (D. 50.17.188.1). 253; De Robertis. St di dir. benale roiri.. 1943. 77.
I n rerum natura esse = to exist. Nauta. A shipowner. His liability for goods taken
C. A. Maschi, La concezione naturalistica, 1937, 65. for transportation by agreement (RECEPTUM)was
Natura servitutis. The nature of a servitude. The regulated in the praetorian Edict which showed par-
natura seruitutis is mentioned with regard to some ticular consideration for the interests of the owner
servitudes, as, for instance, the indivisibility of the of the transported goods. Syn. EXERCITOR.In the
servitude ITER is explained by its nature. same section of thi Edict was settled the res~onsi-
C. A. Maschi, La concezione naturalistica, 1937, 78. bility of inn-keepers (caupones) and stable-keepers
Naturale ius. See IUS NATURALE. (stabularii) .-D. 4.9 ; 47.5 ; C. 11.27.-See RECEPTUM
Naturalis. Natural, by nature, connected with nature. NAUTARUM, NAVICULARII.
For the various uses of the term which-not always Del Prete, NDI 7, 873, 875; Messina-Vitrano, Note in-
for good reasons-have been supposed to have been torno alle azioni contro il nau ta, 1909 : M. A. De Dominicis.
introduced by the compilers, see the following itCms. La clausola edittale salvum fore reiipere, 1933; ~ a c k i n :
Guarneri-Citati, St Riccobono 1 (1936) 730 (Bibl.). tosh, JurR 47 (1935) 54; Carrelli, RDNav 4 (1938) 323;
Solazzi, ibid. 5 (1939) 35; Brecht, ZSS 62 (1942).
Naturalis aequitas. See AEQUITAS, IUS NATURALE.
Naturalis cognatio. Blood relationship among slaves. Nauticum fenus. See FENUS NAUTICUM. Syn. nau-
Levy, Natural Law, in llniv. of Notre Dame Natural Law tica pecunia.
Proc. 2 (1949) 60 (= SDHI 15, 1949, 14). Navicularii. Shipowners whose primary business
Naturalis familia. The family to which one belongs was the transportation of men and goods over the
by birth. Ant. familia adoptiva = the family into Mediterranean Sea. The navicularii were organized
which one entered by adoption. in collegia (associations). Under the Empire they
VOL.43, PT. 2, 19531 ENCYC1,OPEDIC D I C T I O N A R Y O F ROMAN LAW 593
enjoyed a particular protection by the government necessitate cogente. Syn. necessitud0.-See COACTUS
because of their importance in supplying Rome with VOLUI, METUS, VIS, SPONTE.
food. Owners of larger vessels (of at least ten Koschaker, ConfCast 1940, 180.
thousand modii tonnage) were exempt from munera. Necessitudo. The tie of relationship, kindred. Neces-
Roman citizenship was granted to navicularii of situdo sanguinis (consanguinitatis) = blood relation-
Latin status, the sanctions of the Lex Iulia et Papia ship.-See- NECESSARII.
Poppaea were not applied to them, and women, own- Necti. T o be bound, e.g., a person bound by an obli-
ers of ships, were not subject to guardianship (tutela gation (obligatione necti), or involved in a crime
mulierum). The manifold privileges were strictly (crimine) ; a thing pledged as a real security (pig-
personal : they were granted the shipowners projter nori, hypothecae).
navem (because of the ship) and were denied to Nefas. See FAS.
their sons and freedmen whether or not they were Nefasti dies. See DIES NEFASTI.
members of the professional association. In the later Negare. T o deny; in procedural language with refer-
Empire, membership in the collegium navicularii was ence to the defendant = to deny a.claim ; syn. infitiari.
compulsory. The organization as a whole and all With regard to a magistrate who refused the plaintiff
its members were regarded as state employees, obliged the action he demanded negare is syn. with denegare
to fulfill the orders of the government, under condi- (actionem, petitionem).-See INFITIARI,DENEGARE
tions dictated by the latter. Their services, frequently ACTIONEM.
regulated by imperial enactments, became an onus Neglegentia. Negligence, omission. In the sources
publicurn ( a public charge), for the fulfillment of neglegentia is tantamount to CULPA,and similarly
which they were responsible to the state with their graduated (nzagna, lata neglegentia) . Precision in
whole property.-C. 11.2 ; 3 ; 4.-See DOMINUS terminology is no more to be found here than in the
NAVIS, NAUCLERUS. field of culpa. One text declares (D. 50.16.226) :
Stockle, RE 16 (Bibl.) ; Besnier, D S 4 ; De Robertis, "gross negligence (magna neglegentia) is czdpa,
Corpus naviculariorum, RDNav 3 (1937) 189; L. Schnorr
v. Carolsfeld, Gesch. der juristischen Person, 1 (1933)
magna culpa is dolus"; another (D. 17.1.29 pr., evi-
283; Gaudemet, St Solazzi 1948, 657; Solazzi, RDNav 9 dently interpolated) says : "gross negligence (dis-
(1948) 45. soluta neglegentia) is near to dolus (prope dolum)."
Navigium (navigatio). Navigation. For the pro- In the saying "lata culpa is exorbitant (extreme)
tection of navigation on public rivers through inter- negligence, i.e., not to understand (intelligere) what
dicts. see F L U M I N A PUBLICA. The ~rotectionwas all understand" (D. 50.16.213.2) neglegentia is iden-
extended on anchoring- and landing-places (= sta- tified with ignorance. Some of these and other
tiones) and in the use of roads after landing (iter). definitions concerning neglegentia are the result of
Navis. Any kind of a ship (boat, vessel) serving for interpolations by Justinian's compilers.-See DILI-
the transportation of persons or goods on the sea, GENTIA, REMOVERE.
rivers and .stagnant waters. A ship might be the F. H. Lawson, Negligence in the civil law, 1950.
object of a legacy and of a usufruct. For problems Negotia. See NEGOTIUM.
connected with the use of a ship, see EXERCITOR, Negotiari. T o carry on a business of buying and
GUBERNATOR, MAGISTER NAVIS, NAUTA, NAUFRAGIUM, selling.-See NEGOTIATOR.
NAVICULARII, IACTUS,NAVIGIUM,E X P U G N A R E . ~Negotiatio.
~. A commercial business (on a wholesale
11.4. basis), the business of an inn-keeper, or a shipper.
E. Gandolfo, La nave nel dir. rom., 1883; De Martino, Negotiator. A tradesman, a dealer who buys and
RDNnv 3 (1937) 41, 179. sells merchandise, on a rather large scale. A slave,
Nec non. And also. and besides. The em~haticaf- called negotiator, was the manager of his master's
firmation, often st;engthened by an et (etiam), is business.
somewhat suspected of being non-classical because it Negotiatores. Under the Empire negotiatores, who
occurs frequently in Justinian's enactment. provided food for the capital, enjoyed special per-
Guarneri-Citati, Indice' ( 1927) 58.
sonal privileges (exemption from nune era). They
Necare. T o kill. "One who refuses alimony, is similar had the right to be organized in associations (col-
to one who kills" (D. 25.3.4). legia) and were treated in much the same fashion
Necessarii (necessariae personae). Relatives, kins- as shipowners (see NAVICULARII) and other con-
men. tractors of the government.-C. 12.34.-See CON-
Necessarius. See IMPENSAE,HERES NECESSARIUS, SISTENTES.
HERES SUUS ET NECESSARIUS. Kornemann, RE 4, 444; Cagnat, DS 3 ; H. J . Loane, In-
Necessitas. Necessity, exigency, compulsion. The dustry and commerce in Rome, 1938.
term is opposed to libera voluntas (the free will) Negotiorum gestio. (From negotia gerere.) The
of a person performing a legal act. Ex necessitate management of another's affair or affairs without
(necessitate cogente) = by the compulsion of the authorization by the person interested (domintrs ne-
situation (circumstances), emergency. Ant. nulla gotii). By such action the negotioru~stgestor bound
594 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
himself to conduct the matter to the end and to another's) affairs. Some persons administer or co-
return to the do~fiinusnegotii all that he gained or operate in the management of affairs of others as
acquired (proceeds, fructus) from the transaction; his legally authorized representatives (tutores, cura-
on the other hand the latter was bound to reimburse tores) or in virtue of a special agreement (mandatum,
the gestor for his expenses. The negotiorum gestio locatio conductio operarum) as his mandatary, agent,
arose from situations when a person acted in the instifor, etc.-See NEGOTIORUM GESTIO.
interest of another during the latter's absence in order P. Voci, Dottrina rom. del contratto, 1946, 47; G. Grosso,
to defend the absent party's rights. The essential I1 sistema rom. dei contratt?, 1950, 43.
circumstance was that the gestor acted without a Negotium absentis. A matter which concerns an
mandate. If the dominus negotiorum later gave his absent person.
consent (rafilzabitio) or did not protest against the Negotium alienum. A business matter (an affair) of
gestor's meddling in his affairs, after he had knowl- another person. Ant. negotium suum, proprium.
edge thereof, the legal situation of the matter was Rabel, S t Bonfante 4 (1930) 281.
considered a mandate. A further requirement on Negotium civile. ( I n imperial constitutions.) A civil
the part of the gestor was that he acted with the trial (litigation). Ant. negotium criminale = a crimi-
intention of serving the interests of another (animus nal trial.
negotia gerendi) and not of himself (sui lucri causa). Negotium forense. A judicial matter, a trial.-See
Therefore there was no negotiorum gestio if he acted FERIAE.
in order to execute a contractual duty of his own, Negotium mixtum cum donatione. A bilateral trans-
fulfilled a moral duty, or made a donation. At any action with reciprocal but unequal performances,
rate he had to abstain from acting prohibente domino, wherein one of the parties intending to make a dona-
i.e., when the latter exactly forbade the gestor to act tion gave the other party a thing of much greater
in his behalf. The negotiorum gestio created bilateral value than he was receiving. Such a transaction was
obligations although there was no agreement between valid unless the parties thereby attempted to violate
the parties involved (quasi ex contractu). The the laws concerning unlawful donations.-See DONA-
dominus negotii might sue the gestor for recovery of TIO.
the proceeds and for damages caused by an improper B. Biondi, Successione testamentaria, 1943, 717.
(fraudulent or culpable) management of the matter Negotium nullum (nullius momenti). A transaction
(actio negotiorurrz gestorunz) ; on the other hand the which is legally invalid.
gestor had an action for the reimbursement of his Negotium privatum. A private matter (transaction) ;
expenses (actio negotioru+~zgestorulvl contraria), ant. negotium publicunz = a matter in which the state
even when his efforts reasonably made (negotium (populus Romanus) is concerned.
utiliter coeptum) remained unsuccessful. Postclassi- Nemini res sua servit. See SERVITUS.-D. 8.2.26.
cal development and Justinian's reforms obscured Solazzi, Requisiti e modi di costituzione dcllc scrvitib, 1947,
13; idem, S D H I 18 (1952) 223.
some details of the institution as they were in classical
law; thus, in spite of an abundant literature some Nemo. Nobody, no one. The phrase nemo dubifat
points are still controversial.-D. 3.5; C. 2.18; for (= nobody doubts) is frequently employed by the
negotiorum gestio in the interest of a guardian.- jurists to indicate that the opinion presented is
D. 27.5 ; C. 5.45. beyond any doubt. Syn. nullus.-In the following
Kreller, R E Suppl. 7 (Bibl. 551) ; Huvelin, D S 4 ; Sca- items some legal rules starting with nemo are given.
duto, N D I G (s.v. gestione d'afari) ; G. Segri., StSen 23 Nemo alieno nomine agere potest. I n the field of
(1906) 289; Peters, Z S S 32 (1911) 263; Partsch, S t zur civil procedure: one cannot sue in the name of an-
neg. g., SberMunch 1913 ; idem, Aus nachgelassenen Schrif- other. I n the procedure under legis actiones, repre-
ten, 1931, 96; Riccobono, AnPal 3-4 (1917) 209, 221;
Kiibler, Z S S 39 (1918) 191; Frese, Mdl Cornil 1 (1926) sentation of a party (lege agere) was inadmissible
327; idem, S t Bonfante 4 (1930) 397; Bossowski, B I D R (D. 50.17.123). A few exceptions were, however,
37 (1929) 129; Haymann, A C D R Roma, 2 (1935) 451 ; recognized, e.g., in favor of persons who were held
Ehrhardt, Roina?zistische Studien (Freiburger rechtsgesch. in captivity by an enemy or were absent in the in-
Abhandlungeit 5) 1935; G. Pacchioni, Trattato della ge-
stione d'affari, 3rd ed. 1935; M. Morelli, Die Geschafts- terest of the state. For the formulary procedure, see
fiihrung i m klas. rom. R., 1935; Sachers, S D H I 4 (1938) COGNITOR, PROCURATOR. In the field of private law
309; Kreller, Z S S 59 (1939) 390; idem, Fschr Koschaker the rule disallows concluding a legal transaction for
2 (1939) 193; V. Arangio-Ruiz, I1 mandato, 1949, 28. another. Under ius civile nobody could act for an-
Negotium (negotia). Any kind of transaction or other, every one must act for himself in acquiring an
agreement. Acts involving transfer of property are obligation or a right over a thing (per extranean~
also covered by this term. Less frequently negotium personam nobis adqliiri non posse, Gaius, Inst. 2.95).
refers to trials, civil and criminal. Negotia may also The exclusion of direct representation was compen-
connote the economic activity of a person, his com- sated by the services rendered by persons under power
mercial, banking, or industrial business. Negotia (sons, slaves) as the organs acting for their father
gerere (administrare) =r to administer one's own (or (the head of the family) or master. The praetorian
VOL.43, FT. 2, 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LL4W 595
law promoted the acknowledgment of obligations con- fuiae), one work with the unusual title MEMBRANAE,
tracted or acquired by representatives (actiones adiec- a collection of Regzilae, and a monograph De nuptiis
ticiae qualitatis, actiones ufiles).-Inst. 4.10.-See ( O n marriage).
EXERCITOR NAVIS. Berger, R E 16, 2549; G. Grosso, A T o r 67 (1932).
Riccobono, T R 9 (1929) 33; idem, AnPal 14 (1930) 389. Nerva, M. Cocceius. There were two jurists by this
Nemo alteri stipulari potest. No one can accept a name, father (Nerva pafer) and son (Nerva filius).
promise by stipulatio on behalf of another" (D. The older (he died in A.D.33) was head of the Pro-
45.1.38.17 ; Inst. 3.19.19). This was a fundamental culian school (Proculiani) after Labeo. No specific
rule of the ius civi1e.-See the foregoing item. work of his is known, but he is frequently quoted
Nemo damnum facit, nisi qui id fecit quod facere by later jurists. Little is known about his son, who
ius non habet (D. 50.17.151). No one inflicts a was also of the Proculian school, and author of a
damage (sc. on another) unless he does something monograph De usttcapionibus (On usucaptions) .
that he has no right to do.-See AEMULATIO, UTI Arnb, T R 4 (1923) 210 (on the father).
IURE SUO, N E M O VIDETUR DOLO etC. Nesennius Apollinaris. A disciple of the jurist Paul
Nemo de improbitate sua consequitur actionem (D. (third century).
47.2.12.1). No one acquires an action through his Berger, R E 17, 68.
dishonesty. Nex. A violent death.-See IUS VITAE NECISQUE.
Nemo ex consilio obligatur. No one is obligated be- Nexum. A legal institution of the ancient Roman law,
cause of counsel (he gave another) .-See CONSILIUM. mentioned in the Twelve Tables. Despite an ex-
Nemo fraudare videtur eos qui sciunt et consentiunt. tensive modern literature the character of nexuln has
See FRAUDARE. remained somewhat obscure. The sources show that
Nemo invitus ad communionem compellitur (D. already about the end of the Republic the jurists had
12.6.26.4). No one is forced to have common prop- no precise knowledge about it. It seems clear, how-
erty with another.-See COMMUNIO. ever, that nexum was a bilateral transaction accom-
Nemo invitus. For further analogous rules, see I N - plished like the ~izancipatio (with which it is some-
VITUS. times identified because of the phrase nexum manci-
Nemo plus commodi heredi suo relinquit quam ipse piltntql'e in the Twelve Tables) in the solemn form
habuit (D. 50.17.120). No one leaves to his heir per aes et libram by which according to one opinion
more rights than he had himself.-See HERES. the debtor assumed an obligation (e.g., in the case
Nemo plus iuris in alium transferre potest quam of a loan) ; according to another view, the debtor sold
ipse habet (D. 50.17.54). See TRANSFERRE. himself or gave himself to the creditor as a pledge
Nemo pro parte testatus pro parte intestatus dece- through self-mancipation as a guarantee for an exist-
dere potest (D. 50.17.7; Inst. 2.14.5). A decedent ing or a future debt. Through an oral declaration
may not leave his property partly by testament, and (nztncupatio) the debtor settled his condition as
partly by intestate succession. A testament must nexus, i.e., though remaining free, he was bound to
cover the whole estate. If the testator disposed in work for the creditor until the debt was paid and he
his last will of a part of his estate only, the rest does remained with the creditor in a situation factually
not pass on intestacy but the entire estate devolves not very different from that of a slave. H e gave his
to instituted heir or heirs. Exception to this rule work or his labor power (operas suas), as Varro,
was admitted in the case of a soldier's testament. De lingua Lat. 7.105 says, "into slavery (in servitli-
Carpentier, N R H D 10 (1886) 1 ; P. Bonfante, Scritti 1
(1926, ex 1891) 101; E. Costa, Papiniarto 3 (1896) 9; S. fern)." The creditor had the right to put him in
Solazzi, Dir. ereditario ronl. 1 (1932) 212; Sanfilippo, fetters. The nexum was abolished by the LEX POETE-
AttPal 15 (1937) 187; hfcylart, Fschr Tuor (Zi~rich,1946) LIA PAPIRIA.-See MANCIPATIO, PER AES ET LIBRAM.
179. Dull, R E 17; Berger, R E Suppl. 7, 407; Huvelin, D S 4 ;
Nemo sibi ipse causam possessionis mutare potest Anon., N D I 8 ; Mitteis, Z S S 22 (1901) 96; Lenel, Z S S
(D. 41.2.3.19). See p o s s ~ s s ~ o . 23 (1902) 64; Kubler, Z S S 25 (1904) 254; H . H . Pfluger,
Nerzim .rind mancipittrrt, 1908; Kretschmar, Z S S 29 (1908)
Nemo (nullus) videtur dolo facere qui iure suo 227; Pacchioni, MCI Girard 2 (1912) 319; A. Segr;, AG
utitur (D. 50.17.55). No one who exercises his right 102 (1929) 28; Popescu-Spineni, A C D R Roma 2 (1935)
is considered to act fraudulently.-See AEMULATIO, 545; Michon, Rcc G h y 1 (1934) 42; v. Lubtow, Z S S 56
DOLUS. (1936) 239; S. Riccobono, Jr., Artpal 41 (1939) 45; De
Nepos. A grandson; nepfis = a granddaughter. The Martino, S D H I 6 (1940) 138: Noailles, R H D 19-20
(1940-41) 205 (= Fos ct ills, 1948, 91) ; M. Kaser, Eigol-
term filii sometimes also con~prisesthe nepotes. tuln urzd Bcsitz, 1943, 154; idcrll. Dos altrorrl. Ius, 1949,
Lanfranchi, StCagl 30 (1946) 15. 233; H . F. Thornlann, Dcr doppcltc Ursprlolg dcr manci-
Neratius, Priscus. A remarkable jurist of the first patio, 1943, 176; Hernandez Tejero, A H D E 16 (1945)
half of the second century after Christ; member of 296; J. Maillet, Tllr'oric dc Scltlrld ct Hofttrrtg, Paris,
Nominator. A person who exercised his right of the title of this official codification of the eighth cen-
XOMIXATIO by proposing another for tutorship or a tury indicates.-See LEX RHODIA DE IACTU.
magistracy (particularly in municipalities) .-D. 27.7 ; Pardessus, Les lois maritimes 1 (1828) 231 ; J. B. Mor-
C. 11.34.-See NOMIXATIO POTIORIS. treuil, Histoire dzt droit byzantin 1 (1843) 398; Zachariae
v. Lingenthal, Gesch. des griechisch-rom. Rechts, 3rd ed.
Nomine. (Abl.) On account of, for the sake of. The 1892, 313; Dareste, Etudes d'histoire de droit, 3. s6r. 1906,
use of the word is very frequent in juristic language. 93; W. Ashburner, The Rhodiaw Sea Law, 1909; A. Al-
It is connected with a noun in the genitive (filii, bertoni, Per una esposbione del dir. biza~ztino, 1927, 51;
doillini, pupilli, ernptoris, absentis, etc.) denoting the Siciliano-Villanueva, Enciclopedia giur. ital. 4 (1912) 41.
person for whom one is acting or with an adjective Nomos stratiotikos. An official Byzantine compila-
(alieno, suo, proprio, meo nomine). See ALIENO tion of military law in wartime, published about the
NOMINE. The phrases refer primarily to acting as middle of the eighth century based primarily on legal
another's representative in court. Such relationship sources of Justinian's time.
is more explicitly expressed by locutions such as J. B. Mortreuil, Histoire du droit byzantin 1 (1843) 388;
cognitovio, procuvatorio nomine; see COGNITOR, PRO- Zachariae v. Lingenthal, Geschichte der griechisch-rom.
CURATOR.Nowine alterius may sometimes mean Rechts, 3rd ed. 1892, 17; idem, Byzant. Ztschr. 2 (1893)
606, 3 (1894) 437.
"because of another, for the fact done by another,"
as in the case of actiones noxales or the so-called Non liquet. See IURARE SIBI N O N LIQUERE, AMPLIATIO.
actiones adiecticiae qualitatis (see EXERCITOR NAVIS). Non. usus (non uti). Making no use, not exercising
With regard to things or rights (e.g., Iaereditatis, jig- one's rights. The failure of a person, entitled to a
novis, ztsusfructus, usuraru~+znornine) nornine is syn. servitude or a usufruct, to exercise his right over an-
with alicuius rei causa and propter aliquarn rem ( = other's property during a specified period, might pro-
duce the loss of said right. With regard to a usufruct
because of), and indicates the title under which a
the prescriptive time was one year for movables, two
person claims anything from another. years for immovables.-See USUCAPIO LIBERTATIS.
Norninis delatio. See ACCUSATIO. Grosso, I1 Foro itnl., 62 (1937) part IV, p. 266; B. Biondi,
Nornocanones. Compilations of ecclesiastical canons Servitd prediali, 1944, 191; Branca, Scr Ferrini 1 (Univ.
collated with the pertinent imperial constitutions ex- Sacro Cuore, Milan, 1947) 169.
cerpted from JustinianJs codification, including the Nonnurnquarn. See INTERDUM.
Novels. An extensive collection of this kind is the Guarneri-Citati, IndiceZ (1927) 61.
No~q~ocanon Quinquaginta Titulorurn (in 50 titles), ( I n the language of ~ostclassicaland Jus-
probably in the first half of the seventh tinian's constitutions.) A legal principle, a norm.
century, and dealing with ecclesiastical matters, mar- Wenger, Canon, SbWien 220, 2 (1942) 70:
riage, penal law, and some procedural institutions Nostel (nostrum). What belongs to "us," what is
(witnesses, oath). A similar collection is the Norno- "ours." "What is ours cannot be transferred to
canon Quattuordecitn Titulorum (in 14 titles) which another without an act of ours" (D. 50.17.1 1).
was several times revised, the last edition being by Nester. When connected with an emperor in a juristic
Theodoros Balsamon in the twelfth century). These writing (princeps nester, irnperator nbster) it refers
Greek collections are of importance for textual recon- to the still reigning emperor. Such allusions allow us
struetion of a number of imperial constitutions,-~ee to establish the date of composition of a juristic work.
ANONYAMUS. Ant. DIVUS,which refers to an emperor no more alive.
Editions: Voellus and Justellus, Bibliotheca iuris canonici Nostra urbs (civitas). In the works of the jurists
vcteris 2 (1869)
, , fcr N. 50 tit. : Pitra, Juris eccles.
, 603. this means Rome.
historia et moizrrn~enta2 (1868) 4 3 3 , a a c h a r i a e v. Lingen- ~~t~ ,-ensoria. ~h~ disqualification of a citizen decreed
thal, Die griechischen N., Mem. Acad. St.-Petersbourg,
ser,7, vol. 23 (1877) ; De Clercq, Dictionrlairede droit by the censors for bad behavior in family life, blame-
cnnoitiqtte 3 (1935) 1171. worthy treatment of children, clients, or slaves, neglect
N~~~~ georgikos. official ~~~~~~i~~ of sacred duties, living in luxury, or offenses against
(in Greek) of the agrarian law of about the middle good faith in the exercise of the duties of a guardian
0' a partner. Similarly, misdenleanor in office, bri-
of the eighth century, tiselected fronl ~ ~books." ~ ~ i ~ i ~ ~
Mortreuil, Histoire du dr. bgzantin 1 (1843) 393; Zacha- bery of judges or magistrates, and many other offenses
riae v. Lingenthal, Gesch. des griechisch-riinz. Rechts, 3rd could be stiglnatized by the nota censor& with the
ed. 1892. 249. Editions: Ferrini. B~'zatttinischeZtschr. 7 result that the individual censured would be removed
(1898) '558 (=Opere 1, 1929, 376) ; Ashhurner, The from the senate or from the centuriate or tribal or-
farmers' law, Jour. of Hellenic S t 30 (lglO) 85.-A. Al- ganizations (tribu 7noveri)or reduced to the status of
hertoni, Per una esposizione del dir. bizantino, 1927, 50;
~ ~ ~ ~ l h5 ~(1942) , ~ 70;d D G ~ ~~~h~ ~ ~ wenger
~ , 2 an AERARIUS.The notatus was branded with igno-
(1945) 18: De Malafosse, Recueil dc I'Acad. de Lkgislation miny (IGNOMINIA), b ~ not
t with infamy (see I N -
19 ( ~ o u l o h s e ,1949). FAMIA),and he was therefore not exciuded from
Nomos Rhodion nauticos. The maritime law of the military service, from judgeship in a civil trial, and,
Ithodians, "selected from Book 14 of the Digest," as indeed, in certain circun~stanceshe might even com-
VOL.43, PT. 2 , 19.531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 599
pete for a magistracy.-See REGIMEN MORUM,
CEN- Notarius. A person, usually a freedman or slave,
SORES,TRIBUS,SUBSCRIPTIO CENSORIA. skilled in shorthand writing; in the later Empire
Kiibler, R E 17; C. Castello, Studi sul diritto familiare, notarius is syn. with scriba. I n the imperial chan-
1942, 85. cery of the later Empire there was a confidential
NOta The decree a a secretariat of the emperor, called schola notariorum,
person from the competition for a magistracy, after headed by the privnicerius notarioruwt. His deputy
examination of his personal and moral qualifications. had the tyibz,nLtset notayiz,s. ~~~h were
Notae. Stenographic symbols, shorthand writing. A the highest functionaries of the state.
testament in shorthand writing is not valid, because Lengle, R E 6A, 2452; Morel, R E Suppl. 7, 586; LPcrivain,
"notae are not letters" (D. 37.1.6.2). Only a soldier D S 4.
was permitted to make such a testament.-See EX- Norhus. (From the Greek nothos.) See SPURIUS.
CEPTOR. The term appears in literary (non juristic) works.
Notae. Commentatory annotations to the edition of a Lanfranchi, StCagl 30 (1946) 30.
work of an earlier jurist. Such more or less exten- Notio. The examination (investigation) of a case.
sively annotated editions often contained not only The term refers sometimes also to jurisdiction, but
remarks of the annotator which at times did not agree generally the phrase is cuius de ca r e notio est means
with the opinion commented on, but also citations the official (magistrate) competent to examine the
from other jurists and imperial constitutions. Notae controversy in question.
were richly excerpted by the compilers of the Digest Falletti, Bvolutiojt de la jurisdiction civile, 1916, 143.
and indicated as such ("Paulus notat," or simply by Notitia. Knowledge. The word appears in the defini-
the name of the annotator). O n the other hand, tion of IURISPRUDENTIA as "the knowledge of divine
however, the compilers often adopted only the o ~ i n - and human matters" (divinarum atque hzrvnanaru~n
ion of the ~ o n ~ m e n t a t odisregarding
r the original rerum notitia, D. 1.1.10.2). Ulpian attributes to the
opinion of the jurist commented on. Many promi- jurists notdia bani et aequi (D. 1,1.1.2).-See 1 ~ s
nent jurists contributed notae to the works of their EST ARS B O N I ET AEQUI.
~redecessors;some of the latter have remained ob- Notitia. ( I n later imperial constitutions.) A list, a
scure. Thus, for instance, Julian wrote Notae to two catalogue. TO an imperial constitution of A.D. 337
little known jurists, Minicius and Urseius Ferox. (c. 10.66.1) a notitia ( = byevis) was annexed enu-
Among the NOtae are Mar- merating professionals who were exempt from public
cellus to the Digesta of Julian, and of Scaevola to ,.barges (muneya).-~ee
the Digesta of Julian and Marcellus. Paul annotated Notitia dignitaturn. A list all high both
works of several earlier jurists. The imperial legis- civil and military, in the Eastern (Oriens) and West-
lation treated the notes by Ulpian and Paul to the ern (occidens) parts,, of the Empire. The list con-
works of Papinian (in in a rather tains the titles of the high functionaries, those of their
strange fashion: they were invalidated by Constantine staff officers, an enumeration of nlilitary units and
as "depraving" the jurist's opinions. This was seem- their garrisons, and ksides, illustrations of civil and
ingly a tribute to the great jurist Papinian and his military insignia. The work is ascribed to the end
work. The ban was repeated in the so-ca11ed Law of the fourth or the beginning of the fifth century.
of Citations (see IURISPRUDENTIA) although both Editions: 0. Seeck, N.d., 1876. E. Bocking, in two vol.
Ulpian and Paul appear there among the distinguished (1839, 1853) ; Polaschek, R E 17; Mattingly, O C D ; Bury,
jurists. Justinian, however, declared the notne in J R S t 10 (1920) 133; Lot, Rev. dcs Etudes atrcicrrrtcs. 25
question valid and permitted their acceptance into (1923) ; Salisbury, J R S t 17 (1927) 192.
the Digest. Notoria. A written denunciation of a crime, made by
Berger, R E 10, 727, 1175; Balogh, Et Girard 2 (1913) a police official or a private informer (nuntiator).-
422; H. Krliger, S t Bonfawte 2 (1930) 303; Massei, Scr See INDICIUM,NUNTIATORES.
Fcrrini (Univ. Pavia, 1946) 43; Sciascia, AnCoitt 16
(1942-44) 87; idem, B I D R 49-50 (1947) 410. Novae clausulae. New rules added by a praetor to
Notae iuris. A collection of a,,breviations (by initials) the edict of his predecessor. Such a new clause is
of legal formulae and phrases used in the legis nc- ascribed to the jurist Julian inserted on the occasion
tiones, the praetorian ~ d andi docunlents.
~ ~ ~h~ of his codification of the praetorian Edict (see EDIC-
collection is generally (but not unanimously) ascril~ed T"" p"RpETuu"). I t is known as clnlrsrfladc
to Valerius probtls, a of the second half coniungcndis czrlit c~rznncipato libcris cilrs, and con-
of the first post-Christian century. cerns the succession on intestacy of an emancipated
~ d i ~ ~ i ~ ~ ~ : F I R ~11 (1940)
i 453.-p.
~ ~ ~ i ~ ~ ~ ,son.
F. ~
d If, his children had remained under the paternal
MCloilqcs 1 (1912) 177; P. Kruger, htbl Girard 2 (1912) ; power of his father when he was emancipated, his
Orestano, B I D R 43 (1935) 186. share was divided into two halves of which he re-
Notare. Used in all the meanings of notnc; see the ceived one and his the other.-D. 37.8.-See
foregoing items. Hence notnrc = to remark, to ~0111- EMANCIPATIO.
nlent on, to correct, to blame, to reprimand. Weiss, R E 17 (s.71. no.cva clatts~tln Itrliarti) ; Cosentini, St
Sciascia, B I D R 49-50 (1948) 429. Solorzi 1948.
ADOLF BERGER
Novatio. The transformation and transfer of a former ond edition of his Code (see CODEX IUSTINIANUS),
obligation into a new one (D. 46.2.1 pr.), i.e., an in the period between A.D. 534 and 556. They were
existing obligation is extinguished and substituted by not edited by him as a supplement to the Code (what
a new one. Noz,atio was performed by the way of a they really were) although he had the intention to
stipulatio (later through nomen transcripticium, see do it (alia congregatio novellarum constitutionum,
NOMINA TRANSCRIPTICIA) comprising the same debt, Const. Cordi 4 ) . The Novels are known from three
idem debitum, although changes in persons and terms collections, ( a ) Epitome Iuliani, containing 122
were admitted. I t made no difference from what Novels, until 555, ( 0 ) Authenticum (liber Authenti-
kind of a contract the previous obligation arose. An corum) with 134 Novels. from A.D.535 until 556. and
obligation originating in a testament could also be a Latin translation of the Novels written in Greek,
renewed by a stipulatio. The persons participating and (c) a collection of 168 novels, compiled under
in a novatio could be different from those between Tiberius I1 (578-582) containing also four consti-
whom the former obligation existed, since either a tutions by Justin I1 and three by Tiberius 11. Most
new creditor in the place of the former one, or a Novels are issued in Greek, some in Latin and Greek,
new debtor might intervene. See EXPROMITTERE, some only in Latin, in particular those which were
DELEGATIO.Through the extinction of the previous addressed to the Western Dart of the E m ~ i r eor
obligation the sureties therefor became released and contained supplementary provisions to earlier Latin
securities ceased to be pledged unless they were ex- constitutions.-See AUTHENTICUM.
tended by agreement of the parties to the new obliga- Edition: Vol. 3 of the stereotype edition of the Corpus
tion. According to a widespread opinion it was Iuris Civilis (by Mommsen-Kriiger-Schoell), fifth ed. by
Justinian's law which set the requirement that a Schoell-Kroll, 1928.-Steinwenter, RE 17, 1164; Anon.,
D S 4 ; Cuq, N R H D 28 (1904) 265; P. Noailles, Lcs col-
novatio was valid only when the parties had the lections des Novelles de l'empereur Justinien. Origine et
intention to make a novatio (animus novandi). The formation sous Justinie?~,1912; idem, La Collectioit grecque
concept may have been frequently interpolated in- de 168 Novelles, 1914; E. Stein, St Bizantini e Neoellenici
deed, although it is hardly conceivable that in the 5 (1930) 709; idem, Bull. de I'Acad. de Belgique, Cl
Lettres 23 (1937) 383.
developed classical law, when the abstract nature of
the stipulatio was no more of its former strength, Novellae post-Iustinianae. (Of the Byzantine em-
the intention of the parties might have been completely perors after Justinian.) These are quite numerous.
neglected. The term novandi cnusa, which appears in Of great importance are the Novels of the Emperor
classical texts, alludes clearly to the intention of the Leo the Wise (886-91 1) .
contracting parties. The institution was profoundly Editions : Zachariae v. Lingenthal, Ius Graeco-Romanum
3 (1857) ; J. and P. Zepos, Ius Graeco-Romanurn, 1
reformed by Justinian and substantial interpolations (1931) ; H. Monnier, Les Novelles de Lion le Sage, 1923;
obscured its development in the classical period.- P. Noailles and A. Dain, Les Novelles de Ldon V I le
D. 46.2; C. 8.41.-See ACCEPTILATIO, OBLIGATIO Sage, 1944.-A. Albertoni, Per una esposiaione del dir.
NATURALIS. bizantino, 1927, 47, 57; G. Ferrari, I1 dir. penale nelle
Weiss, RE 17; Last, GrZ 37 (1910) 450; Vassalli, BIDR Novelle di Leone il Filosofo, Riv. penale, 67 (1908).
27 (1914) 222; Bohafek, AnPal 11 (1924) 341; Kaden, Novelles post-Theodosianae. See NOVELLA CONSTI-
Z S S 44 (1924) 164; Koschaker, Fschr Hanmsek 1925, TUTIO.
118; P. Negre, Les conditions &existence et de validitd Steinwenter, RE 17, 1163; Anon., D S 4 ; Scherillo, N D I
de la I I . ,These Aix, 1925; Scialoja, St Perozzi 1925, 407; 8, 1139; idem, St Besta 1 (1939) 295.-Translation in C.
Guarneri-Citati. M i l Cornil 1 (1926) 432; Thorens, La n. Pharr, The Theodosian Code (Princeton, 1952) 487.
co+tditiortnelZe,These Lausanne, 1927 ; Cornil, MCI Fournier
1929, 87; Meylan, ACII 1 (1935) 281; A. Hagerstrom, Novicius (servus). ( Syn. mancipium novicium. ) A
Drr rom. Obligationsbegriff, 2 (Uppsala, 1941) Beil., p. young slave. Since he generally is more valuable
199; B. Staehelin, Die N . (Basler Studien zur Rechtsgesch. than an older slave (veterator, veteranum mancipium)
23, 1948) ; Daube, ZSS 66 (1948) 90; Sanfilippo, AnCat the aedilician edict provided that a fraudulent sale of
3 (1948-49) 225; Beretta, Scr Ferrkti 1 (Univ. Sacro
Cuore, Milan, 1947) 77; F. Bonifacio, La rlovazione nel an older slave to whom the appearance of a younger
dir. rom., 1950. one was given could be rescinded by an action of the
Novella constitutio (lex). A recent imperial consti- buyer who had also the choice to sue only for the
tution. The term appears already in the fourth cen- restitution of a part of the price.
tury after Christ and is also applied to the constitu- Novus. See IUS NOVUM,OPERIS NOVI NUNTIATIO,
tions issued by Theodosius 11 after the promulgaiion NOVAE CLAUSULAE, IUSTINIANI NOVI.
of his Code (see CODEX THEODOSIANUS) and by his Noxa. Syn. both with delictum (hence a penalty,
successors until A.D.472 ("Post-Theodosian Novels"). poena, is a revenge for a noxa) and damnum, damage
They generally are edited as an appendix to the (hence noxam sarcire = damnum solvere, praestare,
Theodosian Code.-See NOVELLAE POSTTHEODOSIA- to indemnify). Besides, noxa may indicate also the
NAE. "body which inflicted the damage" (Inst. 4.8.1), and
Novellae Iustiniani. (Sc. constitutiones.) Justinian's finally the indemnification itself. In these aarious
constitutions ( = Novels) promulgated after the sec- meaiings the term is used in a limited field of the
VOL. 43, FT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 601
liability of a master of a slave or a father of a son Noxam committere. T o inflict a damage, to commit
for offenses con~n~itted by the slave or the son. The a private crime (delictum).
liability was alternative, either to pay the damages Noxia. Syn. with NOXA. The rare term occurs a few
or to surrender the offender to the person injured. times in the Twelve Tables.
The latter claimed reparation for the injury sustained Noxiam sarcire. See NOXA. Originally (in the
through the pertinent action which lay for the offense Twelve Tables) = to repair the damage done by
committed (actio furti, iniuriaruw, legis Aquiliae, vi restitution in kind, not by compensation in money.
bonorum raptorum, etc.) and which was termed actio M. Kaser, Das altrom. lw, 1949, 219; Daube, St Solazzi
noxalis when directed against the master or the father. 1948, 7 , 61.
~ ~law the noxal
~ liability ~ of the father
i did ~ Noxius. i A slave ~or son who~ committed ~ a wrongdoing
~
not exist any more. since the son was able to possess for which his master or father bears the noxal liabil-
property of his own, he could be sued directly. On ity; See NOXA. Generally, one who committed a
the principle of noxal liability were also based inter- crime.
dicta noxalia, applicable only in the case of an INTER- Nubere. T o n'larrY. See M A T R I M o N I U M . Nubere is
DICTUM DE VI and INTERDICTUM QUOD AUT CLAM. often mentioned as a condition upon which a liberality
-Handing over a domestic animal which had caused (a donation, a legacy) is depending, as, e.g., "if he
damage to another is analogous to the cases men- (she) will or "if he (she) will not marry
tioned beforehand; see ACT10 DE PAUPERIE.-S~~ (a certain person)." The marry a
sCIENTIA DOMINI and the following items.-~nst. specific person was valid if the individual was an
4.8 ; D. 9.4 ; C. 3.41. honest person. If he was indignus ( = unworthy,
Lisowski, RE Suppl. 7 , 587, 604; cuq,D S 4 ; ~ i ~ ~ d i , despicable) the condition was considered not binding.
NDI 8 ; Berger, RE 9, 1624; Biondi, AnPal 10 (1925) ; This was also the case when a condition to remain
idem, BIDR 36 (1928) 9 9 ; Beseler, ZSS 46 (1926) 104; unmarried was imposed.
Lenel, Z S S 47 (1927) ; Branca, StUrb 11 (1937) 9 8 ; De Nubilis. A girl capable of marriage. Syn. Gripotens.
Visscher, R H D 9 (1930) 411 ; idem, Le rigime romain de
la ,~oxaliti,1947; idem, Symb van Oven, 1947, 306; G . I . -See IMPUBES.
Luzzatto, Per una ipotesi sull'obbliga~ioneromana (1934) Nuda cautio. See CAUTIO. Ant. SATISDATIO.
64, 102; Daube, CambLJ 7 (1939) 23; M . Sargenti, Con- Nuda conventio. An agreement by which a person
tribute aNo studio della responsabilitd nossale (Pubblica- assumes an obligation without giving a real security
zioni Univ. Pavia, 104) 1949; M. Kaser, Das altrom. Iur,
1949, 223; Pugliese, St Carnelutti 2 (1950) 115.
or a surety. A mere agreement is also an agreement
which is not accompanied by the delivery of the
Noxa caput sequitur (D. 9.1.1.12). Noxal liability thing involved.
(see NOXA)followed the person of the offender when Nuda pactio. See NUDUM PACTUM.
his 'POn another's Power underwent a Nuda proprietas (nudurn dominium). Mere owner-
change. When after the wrong was committed, the ship, i.e,, when the owner has no right to use the
'lave Or the 'On came under the power of another object or to take the fruits thereof because these
Person, the liability of the master (or father), at the rights are vested in another either by a contract or
moment of the wrongdoing, was transferred to the through a personal servitude (see usus, u s u s ~ p u c .
master or father at the time when the noxal suit was TUS).-~. 7.25.
brought in. Consequently, if the slav'e was manu- M. Pampaloni, Mil Girard 2 (1912) 337.
mitted in the meantime or the son became inde- ~~d~ repromissio. seeCAUTIO,SATISDATIO,
pendent (sui iuris), there was no longer any noxal Nuda res. A thing itself, as opposed to proceeds and
action, but a direct action against the wrongdoer accessories thereof.
himself. Nuda stipulatio. See CAUTIO.
Lisowski, RE Suppl. 7 , 601; De Visscher, Nozaliti (1947) Nuda traditio. A simple handing over of a thing to
147.
another without any just ground (iusta causa).-See
Noxa solutus. Released from noxal responsibility. TRADITIO.
Noxae datio, deditio (dare, dedere). Handing over Nuda voluntas. A mere, formless expression of will
(surrendering) the slave who committed the wrong- not accompanied by the delivery of the thing which
doing for which his master was liable, was achieved is the object of a legal act.-See ADITIO HEREDITATIS.
by the transfer of the ownership of the slave to the Nudum dominium. See NUDA PROPRIETAS.
plaintiff of the noxal action. The noxae datio of a Nudum ius Quiritium. See D O M I N I U M DUPLEX, DO-
son was performed by the mancipatio of the son (ex M I N I U M EX IURE QUIRITIUM.O ne who has a mere
noxali causa mancipio dare). The son became thus ownership ex iure Quiritium of a thing (e.g., of a
not a slave of the injured person, but a person in slave) without holding it, because another is entitled
mancipio (in causa mancipii) ; see M A N C I P I U M . - S ~ ~ to hold it, "has less right in it than a usufructuary
NOXA (Bibl.), SCIENTIA DOMINI. or a possessor in good faith (POSSESSORBONAE
De Visscher, R H D 9 (1930) 411 ; Frezza, SDHI 5 (1939) FIDEI),"Gaius 3.166. In a constitution of Justinian
185. (C. 7.25.1) the term nudum ius Quiritium is qualified
602 A D O L F BERGER [TRANS. AMER.
PHII,. SOC.
as "an empty and superfluous word."-See I N BONIS by the law, was void.-See DONATIO,M ANCIPATIO
ESSE. N U M M O UNO. SESTERTIUS.
Nudum pactum (nuda pactio). A simple, forn~less Nuncupatio (nuncupare). A solemn oral declaration
agreement as opposed to stipulatio and contractus. before witnesses. I t was an essential part of the
A n u d u ~ npactum does not create an obligation but ancient acts (negotia) per aes et libram and had to
an exception (D. 2.14.7.4) .-See PACTUM. be expressed in prescribed words. I n a testament
Nudus. Deprived of means.-For nudus with regard per aes et libratn the nuncupatio contained the dis-
to certain legal institutions, see the foregoing and the positions of the testator to be executed by a man
following items. worthy of his confidence, the FAMILIAE EMPTOR. The
Nudus consensus. See CONSENSUS. pertinent rule was expressed in the Twelve Tables
Nudus usus. The right ( a servitude) to use another's (uti lingua nuncupassit = as one has disposed orally).
thing but not the proceeds (fructus) thereof. -See MANCIPATIO, NEXUM,PER AES ET LIBRAM,
Nullius momenti esse. See M O M E N T U M . TESTAMENTUM PER NUNCUPATIONEM.
Nullus. Nobody, no one ( = nenzo), not existing. Diill, R E 17; Anon., N D I 8 ; Cuq, D S 5 (s.v. tesfamen-
With regard to legal acts or transactions nullus t u m ) ; Sanfilippo, AnPal 17 (1937) 147; P. Noailles, Du
droit sacrd au droit civil, 1950, 300; Solazzi, S D H I 18
means invalid, void.-See RES NULLIUS.
(1952) 213.
Hellman, Z S S 23 (1902) 425.
Numen. Divinity. N u ~ n e nnostrum ("our divinity")Nundinae. A market, a fair; the period of time (eight
days) between two consecutive markets. Nundinae
is often used by later emperors in their constitutions.
Ensslin, Gottkaisev, SbMiinch 1943, 3rd issue. were frequently fixed as a term for the payment of
money debts. According to one opinion such payment
Numerare pecuniam. T o repay a debt in cash.
could be demanded by the creditor on the first day,
Pecunia numerata = a cash payment. Numerare
while other jurists held that the payment could be
pretiu~n= to pay the price of a thing purchased in
made duririg the whole eight-day-period.-D. 50.11 ;
cash.-See EXCEPTIO N O N NUMERATAE PECUNIAE,
C. 4.60.
NIARIA. Criminal matters in which the culprit was TORES, DEFERRE FISCO, DENUNTIATIO, CADUCA.
Berger, R E 17, 1475; Solazzi, B I D R 49-50 (1948) 405.
punished with a pecuniary fine = nu~nlnariaeres.
Nummularius. The owner of a small bank, primarily Nuntiatio operis novi. See OPERIS NOVI NUNTIATIO.
for money-changing transactions. See ARGENTARII, Nuntiator. ( I n criminal and fiscal matters.) A de-
MENSULARIUS. M E N S A N U M M U L A R I A . TESSERA N U M - nouncer. Syn. D E N L ? N T I A T O R . - N U ~= ~ ~one
~~Owho
Y
M ~ L ~ R l ~ . - N u l l t l n u ~ awere
r i i also officials of the mint protested against a new construction ; see OPERIS NOVI
(oficina nzonetae) who were concerned with the test ~ u ~ ~ 1 ~ ~ 1 o . - N t l n t i aalso
t o r was the title of an of-
of coins.-See MONETA.-C. 11.18. ficial of a lower rank in the later Empire who
Herzog, R E 17; Laum, R E Suppl. 4, 7 5 ; Saglio and publicly announced a felicitous event (e.g., the vic-
Humbert, D S 1 (s.v. argentarii) ; Voigt, ASiichGW 10 torious end of a war). He was prohibited from
(1880) ; Mitteis, Z S S 19 (1898) 203. accepting immoderate gifts.-C. 12.63.
Nummus. A coin, a sestertius; in the later Empire Berger, R E 17, 1475; 18, 559.
the smallest copper coin. I n nummis = in cash.- Nuntius. A messenger. Declarations of will through
See FALSA MONETA, CORPUS.
the medium of a messenger were valid as were those
Schwabacher, R E 17.
made by letter (per epistulant) except in cases in
Nummus unus. A sale (or lease) in which the buyer which one had to give the declaration personally (as
(lessee) paid a fictitious price (rent) in the form of a in a stipulatio, in acts concluded per aes et libram).
small sum of money (numnzo uno = for one piece of Carboni, Sul concetto di rz., Scr Chironi 1 (1915) ; Dill,
money) in order to disguise a donation prohibited Z S S 67 (1950) 163.
VOL. 43, PT. 2, 1953) ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 603
Nuptiae. Almost completely syn. with mutrimonium Obligatio. (From obligare.) Refers to both legal
in juristic language. It is apparently the earlier term obligations and moral duties. The definition of obli-
for marriage and is more related to the wedding gatio in the legal field, in Justinian's Institutes, which
ceremony than mutrimonium.-Inst. 1.10 ; D. 23.2 ; obviously goes back to a classical writing, says:
"obligatio is a legal tie (vinculum) by which we are
CONCUBITUS. forcibly bound (adstringimur) to pay a certain thing
Ehrhardt, RE 17. For further bibl, see MATRIMONIUM. (alicuius solvendae rei) according to the laws of our
Nuptiae incestae. A marriage concluded between nation" (Inst. 3.13 pr.). "The substance of an
persons who are prohibited to marry because of near obligatio consists in binding (obstringere) another
blood relationship or affinity. The marriage is not person to give us (dare) something, to do (facere)
valid, the wife is no uxor and the children are ille- or to perform (praestare) something" (D. 44.7.3).
gitimate (spurii) .-See INCESTUS. Praestare comprehends any performance by the debtor
Lombardi, Ricerche in tema di iuf gentium, 1946, 25. which is not a dare or facere, in particular, a payment
Nuptiae secundae. See SECUNDAE NUPTIAE. of a penalty in the case of a private wrongdoing
Nuptialis. Pertinent to a marriage, e.g., tabulae, in- (delictum), an additional liability, as, e.g., that of a
strument~~. seller or a lessor in the case of eviction, the liability
Nutrire. To nourish, to rear.-See ALIMENTA. for dolus and culpa, etc. Both definitions are not
Nutritor. A nourisher, a foster parent. The term fully satisfactory, but they reflect the essential ele-
refers primarily to persons who sustained with nour- ment of the tie (binding) expressed in the term
ishment (and education) a child not of their own (a ob-ligari (= to be tied around, obstringi, adstringi).
foundling). A nutritor "has no successorial rights Obligationes arose from wrongdoings (ex delicto)
of succession either under ius civile or honorarium" the wrongdoer being obligated to pay a penalty to
(C. 6.59.10).-See ALUMNUS. the injured person, and from contracts (ex con-
Nutus. A wink, a sign. Under certain circumstances t r a c t ~ ) when one party or both parties assumed
it might be considered as a valid expression of will, obligations through agreement ; see CONTRACTUS. TO
sufficient even for leaving a fideicom~nissum.-See embrace other kinds of obligations which did not
MUTUS. originate either in an agreement or in a crime, as,
e.g., from the management of another's affairs with-
out authorization (see NEGOTIORUM GESTIO) , from
Obicere. To oppose a counter-claim to the claim of the administration of a ward's property by a guardian,
the plaintiff. from the payment of a non-existing debt (see INDE-
Obicere bestiis. To expose to wild beasts a criminal BITUM),from a LEGATUM PER DAMNATIONEM, and
condemned to death ad bestias (= to fight with the like, a comprehensive term variae causarum figu-
them). Syn. subicere. rue (= various forms of causes, D. 44.7.1 pr.) was
Obicere crimen. To charge a person with a crime. used, a vague expression without any juristic con-
Obicere exceptionem. To oppose an exception in a tent. Nor much better are the two new categories
civil trial.-See EXCEPTIO. created by Justinian (Inst. 3.13.2) : obligations "which
arise quasi ex contractu" and "quasi ex delicto (male-
Oblatio. (From oferre.) An offer (to pay a debt,
ficio)," although the pertinent liabilities were known
to give a security, to pay the estimated value of a
already in classical times. As to the object of an
thing). Oblatio votorum, see VOTA.
obligatio (dare, facere, non facere), the fundamental
Oblatio curiae. See LEGITIMATIO PER OBLATIONEM requirements were the natural possibility of its ful-
CURIAE.
fillment (see IMPOSSIBILIUM NULLA OBLIGATIO) , the
Obligare. To tie around, to bind, in a moral and legal absence of a content which was against good customs
sense. (contra bonos mores), illicit (illicitus) or immoral,
Obligare rem. To "bind" a thing by the tie of a real and finally, a precise definition of the debtor's duties,
security (pignus, hypotheca) . Syn. pignerare, if the either from the origin, through later events, or through
thing is given to a creditor as a PIGNUS. Hence the arbitration by a third person. An obligation,
obligatus (e.g., fundus, ager, res, aedes), with or the determination of which was completely left to the
without the addition of iure pignoris (hypothecae) debtor or to the creditor was not admissible. The
= a thing given as a pignus or charged with a terminology for the extinction of an obligation alludes
hypothec. again to the binding '(tie"; see SOLUTIO (= loosing,
Brasiello, RIDA 4 (= MCI De Visscher 3, 1950) 203. unbinding), LIBERATIO (= setting free). For the
Obligari (se obligare). To assume an obligation. For various sources of obligations (contracts, delicts, etc.) ,
obligari civiliter (naturaliter), see OBLIGATIO CIVILIS see the pertinent items.-Inst. 3.13 ; 14; 21 ; 22; 27;
(OBLIGATIO NATURALIS).0 bligari actione = to be 29; 4.5; D. 44.7; C. 4.10.-See MORA, ACTIONES I N
suable by a specific action.-See OBSTRINGI ACTIONE. PERSONAM, PERPETUATIO,NOVATIO, IUS VARIANDI, and
G. Segre, St Bonfante 3 (1930) 501. the following items.
604 ADOLF BERGER [TRANS.
AMER.
PHIL.SOC.
Radin, R E 17; Huvelin, D S 4 ; Brasiello, N D I 8 (Bibl. licto, 1909; F. De Visscher, Etudes (1931) 255; F . Alber-
1196) ; Perozzi, Obbligazioni rom., 1903 (= Scr.giur. 2, tario, Studi 3 (1936) 88, 99; Lavaggi, S D H I 13-14, 1948,
1948, 313) ; idem, Obbligazioni e x dclicto (= Scr.giur. 2, 141.
1948, 441, ex 1915-16); Marchi, B I D R 25 (19121, 29
(1916) ; Cornil, M1l Girard 1 (1912) ; idem, S t Bonfa~zte
obligatio honoraria. seeOBLIGATIO CIVILIS,
3 (1930) 41; G. Pacchioni, Concetto e origine dell'obbli- E. Albertario, Studi 3 (1936) 31.
gaztone ronz., Append. to the Ital. translation of Savigny, Obligatio in solidurn. See DUO REI PROMITTENDI.
Ruiz, Mdl Cornd 1 (1926) 83 ; A. Hagerstrom, Der rdm. TERARUM OBLIGATIO, NOMIINA TRANSCRIPTICIA.--Inst.
Obligationsbegrifl 1 (1927), 2 (1943) ; G. SegrP, S t Bon- 3.21,
fante 3 (1930) 499; Biondi, A C S R 1931, 3, 251; Leifer,
K r V j 26 (1933) ; G. I. Luzzatto, Per un'zpotesi sulle Obligatio naturalis. An obligation, the fulfillment of
origini e la natttra delle obblig. rom., 1934; Lauria, S D H I which cannot be enforced by an action. The creditor
4 (1938) ; Albertario, Studi 3 (1936) 1 ; De Martino, has no means to compel the debtor to pa> his debt.
S D H I 6 (1940) 132; L. Maillet, Le thiorie de Schuld et Ant. obligatio civilis. ,An obligatio nntzlralis, how-
H a f t u w en dr. rom., ThPse Aix-en-Provence, 1944; Aran- ever, was not deprived of legal effects among which
gio-Ruiz, Fschr We~zger2 (1945) 56; Pfluger, Z S S 65
(1947) 121 ; G. Sciascia, Lineament; del sistema obliga- the most important was that the payment made "Y
torio rom., 1947; M. Kaser, Das altrom. I U S , 1949, 188; the debtor was valid and could not be claimed back
J. Macqueron, Cours de dr. rom. 2. Les obligations 1949; by him through condictio indebitz because an obligatio
F. Pastori, Profilo dogmatic0 e storico dell'obbligazio~ze naturalis was after all a debitum (a debt) and not
row., 1951; Biscardi, S t s e n 63 (1951) 40; v. Lubtow,
Betrachtungen zum Gajanischen Obligatio~zenschema, an indebitulll. An obligatio nofcc,,oiis could he the
A C I V e r 3 (repr. 1951) 241; A. de la Chevalerie, Obser- object of a NOVATIO and a surety (FIDEIUSSOR) ~0llld
vations sur la clarsification des obligations chez Gaius, guarantee the fulfillment thereof. Obligationes natu-
A D O - R I D A 1 (1952) 379. rules were the obligations contracted by a slave (to-
Obligatio civilis. Used in a double meaning: (a) wards his master, another slave, or another person)
an obligation under ius civile as opposed to obliga- or by a filius familias under paternal power (towards
tions recognized only by the IUS HONORARIUM (ob- his pater familias or another filius familias under the
ligatio praetoria, honoraria) ; ( b ) an obligation suable same paternal power). A filius fa~niliassued for the
by an action (civil or praetorian) as opposed to an repayment of debt (a loan) could oppose an exceptio
obligatio naturalis, not enforceable by an action at Senatusconsulti Macedoniani. New instances of ob-
all.-See OBLIGATIO NATURALIS. ligatio naturalis were added in later and Justinian's
Bbligatio condicionalis. (Syn. sub condicione.) An law.-See DONATIO,S ENATUSCONSULTUM MACEM-
obligation the existence of which depends upon the NIANUM.
fulfillment of a condition. The obligation does not Gradenwitz, Fg Schirmer 1900, 137; H . Siber, N.O., Leip-
exist until the condition is materialized. The legal ziger rechtmiss Studien 11, 1925; Beseler, T R 8 (1928)
situation became complicated when the debtor died 319; Lauria, R I S G 1 (1926) ; Vazny, S t Bonfa~zte4 (1931)
131; W. Flume, Stzcdien zur Akzessorietat der rom. Burg-
in the meantime or when the thing eventually due schaftsstipulationen, 1932, 70 ; Albertario, S t 3 (1936) 55 ;
perished. Such cases are dealt with in the sources, idem, S D H I 4 (1938) 529; Maschi, Concezione rraturalis-
but the decisions are not uniform.-See CONDICIO. tica, 1937, 121, 348; De Villa, StSas 17 (1939) 85, 185;
Vassalli, R I S G 56 (1915) 195; Bohacek, A~zPal11 (1923) 18 (1940) 13 ; idem, Le usurae e x pacto, 1937 ; Di Marzo,
329; Seckel-Levy, Z S S 47 (1927) 168; Riccobono, St S t Calisse 1 (1940) 75; Levy, Natural law (Unzv. Notre
Perozzi 1925, 349; Beseler, T R 10 (1930) 233; Flume, Dame Natural Law Proceedings 2, 1949, 62 (= S D H I 15,
T R 14 (1936) 19. 1949, 15) ; G. E. Longo, S D H I 16 (1950) 86.
Obligatio consensu contracta. See CONSENSUS. Obligatio post mortem. An obligation which had to
obligatio ex contnctu, An obligation arising from become effective after the death of the promisor (e.g.,
a contract. The obligatio is unilateral when only one a stipulatio "post mortem mea~n" creating an ob-
of the contracting parties assumes an obligation (as, ligation on the part of the heir). Such a ~ r o m i s ewas
e.g., in a mutuu,lt, a loan), Bilateral obligations not valid since according to an ancient rule "an
arise when both assume rKiprocal, but dif- obligation could not begin (incipere = to come into
ferent obligations.-See CONTRACTUS, CONTRACTUS
existence) in the person of an heir" (Gaius 3.100).
INNomNAn, and the entries dealing with the vari- Justinian admitted such obligations. An obligation
ous contracts.
"
cum moriar" ( = when I shall be dying), how-
Obligatio ex delicto (maleficio). An obligation aris- ever, was valid because it was held that the obligation
ing from a wrongdoing by which harm was done to referred to the last moment of the debtor's life. See
a private person; see DELICTUM,FuRTUM, RAPINA, DIES MORTIS, M A N D A T U M POST MORTEM,STIPULAT1O
Such a spectacuiar summons, if not justified, was o~~,pfft;obellicn.) I n addition to the occupation
regarded a personal insult (conviciunt) since the the enemy's land after a victorious war (see AGER
cerning the organization of legal studies. It was I.evy, Iura 3 (1952) 171.
addressed to the teachers of law and issued on the Ope consilio. By aid and counsel. The phrase is
same day as the Digest (December 16, A.D. 533). applied in criminal matters with reference to all
Oj~tnrjn is the first word of the enactment.-See kinds of accessories who help another in committing
DlCESTA IUSTINIANI. a crime. It occurs in connection with crimes against
Omnes. All men, the whole people (populus) .-See the state or the emperor, with adultery and, in the
RES C O M M U N E S O M N I U M . Omnes often refers to all field of private delicta, with the theft. I n the for-
jurists (e.g., inter ownes constnt, see CONSTAT). mula of actio furti the two words were attached to
Omnes (omnia). I n certain phrases, as per omnia ( = the name of the defendant whether he was the prin-
in every respect), in orl~nibuscnsiblrs ( = in any case), cipal thief or an accessory. In the first case the
ontnrs on~nino( = all throughout), owtnivtodo ( = at words covered the doing of the thief himself (acting
any rate), the word occurs frequently in interpolated with design, intention, see CONSILICM), in the second
sentences as an expression of the tendency of Jus- case they referred to abettors and instigators. Ope
tinian's collaborators toward generalizations. means physical help, consilio means no simple advice,
Guarneri-Citati, Indicc2 (1927) 63 ; idern, Fsrhr Koschaker but instructing and encouraging. "He who persuades
1 (1939) 144. and impels ahother to commit a theft and instructs
Omnia iudicia absolutoria sunt. See ABSOLUTORIUS. him with advice, is held to give a consil2uun, one who
Omnimodo. By all means, at any rate.-See OMNES. gives him assistance and help in taking away the
Guarneri-Citati, Indice* (1927) 62. goods is acting ope" ( D . 47.2.50.1).
Omnino. (Combined with omnes, omnia.) See M. Cohn, Beitrage sur Bearbeitung des riina. R., 1880, 10;
031 NES.
R. Balougditch, Etude sur la complicitk en d r . pknal Tom.,
1920, 44.
Onera hereditatis. Debts. liens. taxes. and all kinds
of charges by which an estate is encumbered. Ope exceptionis. Through an exceptio. Syn. per ex-
Onera matrimonii. Expenses connected with the com- ceptionem. Ant. IPSO IURE. The phrase is used to
mon life of married persons. "There should be indicate that the defendant had to oppose an exceptio
in order to repeal the plaintiff's claim.-See EXCEPTIO,
dowry where there are burdens of marriage" (D.
COMPENSATIO.
23.3.56.1) .-See DOS,PARAPHERNA.
Albertario, Studi 1 (1933) 295; Wolff, ZSS 53 (1932) Opera publica. Public constructions, such as buildings,
360; Dumont, . R H D 22 (1943) 34. bridges, harbors, roads. They were under the super-
Onerare libertatem. T o aggravate the liberty of a vision of the censors (see CENSORES), or special
func-
freedman by imposing on him at the manumission tionaries who from the time of Augustus had the
heavy duties exceeding the normal obligations of a title of curatores and depended upon the praefectus
freedman towards his patron (libertatis onerandae urbi.-D. 50.10 ; C. 8.11 ( 12) .-See PROCURATORES
cazrsa imposita). A stipulation of the freedman, as- OPERUM PUBLICORUM, EXACTOR.
suming such obligations in the event that he offended Lengle, RE 18; Humbert, D S 4; E. De Ruggiero, Lo Stato
e le opere pubbliche in Roma antica, 1925.
his patron, was void for the reason that he would
always have lived in fear of being forced to pay the Operae. ( P I . ; rarely used in sing. opera.) Labor in
penalty (metu exactionis). However, a promise tl.ade all its manifestations, both manual and intellectual.
by a slave to pay the patron a certain sum as a com- Syn. labor (from the fourth post-Christian century).
pensation for the manumission, and repeated by him Operae applies also to the work of animals (operae
after he was freed, was not regarded as a promise iumenti) . Operas braestare = to render services.
C. Astoul, Des charges imposkes par le maitre d la libertk, the phrase is opposed to acquisitions ex re = by
These Paris, 1890; Albertario, S f u d i 3 (1936) 397; C. means (money) taken from one's property.-See
Cosentini, Studi szii liberti 1 (1948) 95. LOCATIO CONDUCTIO OPERARUM, and the
following
or expenses. The term is applied primarily to a n F. De Robertis, Rapporti di laaoro, 1946, 13.
heir on whom the payment of legacies and fidei- Operae animalium. The right to use another's beasts
commissa was i m ~ o s e d . Hence onerosa hereditas an of burden. Such right was a personal servitude (usus
inheritance encumbered with excessive debts and iumenti, pecoris, ovium), usually left by a legacy
actiones in ius conceptae; see FORMULA I N IUS CON- army optio = a substitute of a centurio. There were
Paoli, Rev. des kt latines, 15 (1937) 326; Kunkel, Fschr in the civil administration, as, for instance, in the
Koschaker 2 (1939) 4. staff of the praefectus urbi. Optio was the leading
Oppidum. A town (originally any place surrounded official in the imperial mint.
by walls). The term was later replaced, usually by Lammert, R E 18 ; Vittinghoff, R E 17, 2044.
wzunicipium. Optio. A selection. Syn. electio. A selection between
Opponere. T o oppose. The term refers primarily to in a testament (see LEGATUM OPTIONIS j or established
exceptions (opponere exceptionem) which the de- in an agreement in behalf of a contractual party, as,
fendant opposed to the plaintiff's claim ; see EXCEPTIO. e.g., in a stipulation to give either the slave Stichus
fendant repeals the plaintiff's demand, a s e.g., op- Optio legata. See LEGATUM OPTIONIS.-D. 33.5.
ponere compensationem.-See COM PENSATIO. Optio servi. The election of a slave. It was granted
Opprobrium. An ignominious, disgraceful doing. a legatee as the right to select one slave among those
Syn. probrum. "Some doings are ignominious by who belonged to the estate. The legatee had the
nature, as theft or adultery, some by the customs of choice also when "a slave" was generally bequeathed
the country" (D. 50.16.42), as, e.g., bad management without any precise indication, and there were sev-
of a ward's affairs by his guardian, followed by a eral slaves in the estate. If the testator did not fix
condemnation in actio- tutelae. a dzte for the choice, the heir might ask the praetor
Optimates. A political group ("the best ones," the to settle a term. Non-execution of the selection by
aristocrats) composed of wealthy and influential sena- the legatee within the term fixed resulted in the loss
tors and senatorial families in the later Republic who of the right and the heir might offer the legatee a
controlled the ~ u b l i cadministration and finances as slave of his own choice.-See LEGATUM OPTIONIS.
an oligarchy, eager to defend their privileged, monopo- Optio tutoris. The choice of a guardian (tutor). A
listic position against the opposing group, the popu- husband under whose power (see MANUS)his wife
lures who fought for the extension of the political was, could in his testament dispose that she might
rights of the people and the defense of its interests. freely choose her guardian. The guardian appointed
The two groups were not political parties but assem- at the widow's request = tutor optivus. The perti-
blages of ambitious individuals and families struggling nent disposition of the husband could not be restricted
incessantly for the defense of the interests of their by the addition of a C O ~ ~ ~ ~ ~ O ~ . - TMULIERUM.
UTELA
own and their members. Sachers, R E 7A, 1592.
Strasburger, R E 18; L. R. Taylor, Party politics in the Opus. See LOCATIO CONDUCTIO OPERIS,ADPROBARE,
age of Caesar (Los Angeles, 1949) 11.
INTERDICTUM QUOD VI AUT CLAM.
Optare. See OPTIO. Opus metalli. See METALLUM.
Optimo iure (optima lege). Refers to persons and Opus novum. See OPERIS NOVI NUNTIATIO.
things, free from legal restrictions and charges. A Opus publicum. See OPERA PUBLICA,I NSCRIBERE
person optimo iure is one who has full legal capacity. OPERE PUBLICO.
A land optimo iure indicates a real property free from Opus publicum. (In criminal law.) Forced labor on
private charges (servitudes, pledge) and from taxes a public construction or a public work as a punish-
and public burdens as well.-See LEX TERENTIA. ment for crimes (datnnatio in opus publicum) com-
Kiibler, RE 18, 772; Ciapessoni, S t Bonfante 3 (1930) 661 ;
Beseler, S t Albertoni 1 (1933) 432; Kaser, ZSS 61 (1941) mitted by persons of the lower classes of the popula-
?C
LJ.
tion. Working in an opus publicurn comprised the
Optimus (princeps). An attribute ("the best") given construction or restoration of roads, cleaning of
to the reigning emperor (optimus princeps noster), sewers, service in public baths, bakeries, weaving-
sometimes enhanced by the addition of maximus (op- mills (for women) and the like. Condemnation for
tirnus maxitnusque princeps noster) . lifetime involved loss of Roman citizenship; in other
Optimus maximus. These words were usually added cases the status of the condemned person remained
in sales or legacies of immovables (e.g., fundus uti unchanged.
optirnus nzaximusque) to indicate the legal and factual Lengle, R E 18, 828; Ucrivain, D S 4 ; Brasiello, Repres-
sione penale, 1937, 361.
conditions of the land or building. Through this
clause a seller assumed the liability that the immov- Oraculum. An imperial enactment (in the language
able was free from easements (optimus) and had the of the imperial chancery of the later Empire).
size affirmed by him (maximus). Orare causam. See CAUSAS DICERE, CAUSAM PERORARE.
Kiibler, R E 18, 803; E. Rabel, Haftung des Verkaufers Oratio (principis in senatu). A speech of the em-
fiir Miingel i m Recht, 1912, 92. peror made in the senate by himself or by his repre-
VOL. 43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 611
sentative (a quaestor) in order to propose a sena- MENTI)before the discovery of the murderer. The
tusconsultum *hich alone became the law. This oratio settled that, if a slave was manumitted in the
procedure was observed in the first century of the testament. his child born in the meantime., i.e.., before
Principate alongside the other form of proposing se- the opening of the will, was free, and profits which
natusconsulta by high magistrates. From the time would have come to the slave if he were freed imme-
of Hadrian the proposals of magistrates fell into diately after the testator's death, belonged to him
disuse and the emperor's discourse in the senate, even although the testament entered in force much later.
made by his representative in his absence, became the Oratio Marci. (Of the Emperor Marcus Aurelius.)
normal way leading to a senatusconsultum. The em- On confessio in iure. The contents of this oratio is
peror's proposal was approved by the Senate without not quite clear; it is mentioned in connection with
discussion ; the approval became a simple formality. CONFESS10 I N IURE.
Hence oratio principis as a technical term replaced Giffard, RHD 29 (1905) 449; W. Piischel, Confessus pro
that of senatusconsultum which from the end of the iudicato est, 1924, 156; Wlassak, Konfessio, SbMunch
1934, 42.
second century was applied only to earlier senatus- Oratio Marci. (Of the Emperor Marcus Aurelius.)
consults. Thus, in the last analysis, the oratio prin-
O n marriages, forbade marriage between a sena-
cipio turned out to be an imperial law, promulgated
tor's daughter and a freedman, and between a tutor
in the senate. For more important orationes, see the
(or curator) and his ward. I n a monograph of
following items.-See CONSTITUTIONES PRINCIPUM.
Radin, R E 18; Pottier, D S 4 ; Orestano, NDI 9 ; Volterra,
Paul the latter prohibition appears as introduced by
NDI 12, 29; Cuq, Le consilium principis, Mimoires Acad. an oratio "divorum Marci et Commodi" (of the late
Insc. et Bclles Lettres, S6r. 1, v. 9 (1884) 424. Emperors Marcus and Commodus).
Oratio (orationes) Claudii. (On recuperatores, and Oratio Marci. (On transactions concerning alin~ony.)
on accusatores in criminal matters, A.D.42-51). The Ordered that they had to be confirmed by the praetor.
oration of the Emperor Claudius (there may have Oratio principis. See ORATIO.
been two orations), confirmed by a decree -of the Oratio Severi. (Of A.D.195.) Prohibited tutors (and
senate, set the age of twenty-five completed years for curators?) from alienating or pledging real property
RECUPERATORES, and declared guilty of calumnia those of their wards unless the transaction was allowed by
accusers in a criminal trial who without any just the praetor.
reason abandoned an accusation in a trial already in Sachers, RE 7A, 1550; G. Kuttner, Fschr Martits 1911,
course.-See ACCUSATIO, SENATUSCONSULTUM TUR-
247; Peters, Z S S 32 (1911) 299; E. Albertario, Studi 1
(1933) 477; Brasiello, St Solazzi 1948, 691 ; idem, R I D A
PILLIANUM, CALUMNIA. 4 ( = M i l De Visschrr 3, 1950) 204.
Editions: in all collections of Fontes (see General Bibl., Oratio Severi et Caracallae. Concerning donations
Ch. XII), the most recent in Riccobono, FIR 12, no. 44
(Bibl.) ; L. Mitteis, Grundziige und Chrcstomathie der between husband and wife, see DONATIO INTER VIRUM
Papyruskzcnde 2, 2 (1912) no. 370; Stroux, SbMiinch ET UXOREM.
1929, fasc. 3.-Woess, Z S S 51 (1931) 336. Orator. ( I n judicial proceedings.) One who assists
Oratio Hadriani. Prohibited an appeal from the deci- a party to a civil trial by advice and speech both
sions of the senate to the emperor; before the magistrate (in iure) and the judge (apud
Oratio Hadriani. (On fideicommissa.) Confirmed by iudicern), or who defends the accused in a criminal
a senatz(sconsultum, ordained that a FIDEICOMMISSUM trial. See ADVOCATUS, PATRONUS CAUSAE. Although
left to peregrines be confiscated by the fisc. trained in law, the orator needed the help of a pro-
Oratio Marci. (On APPELLATIO.)The Emperor fessional jurist in a difficult case ; in particular in civil
Marcus Aurelius ordered that terms fixed for &pel- matters such help in the first stage of the trial before
latio had to be reckoned as TEMPUS UTILE. the praetor might be necessary to write down the
Oratio Marci. On crimen expilatae hereditatis.-See formula and its complicated parts or when a new
C R I M E N EXPILATAE HEREDITATIS. kind of action was requested. Therefore the activity
Oratio Marci. (On I N IUS VOCATIO.) Prohibited of the orator as an assistant of the party has to be
from summoning one's adversary into court during distinguished from that of the jurists. See IURISPRU-
the harvest (messis) or vintage (vindemiae) except DENTIA. Some lawyers combined both professions,
in urgent cases, as, for instance, when the plaintiff but instances of a transition from one profession to
would lose his action through the lapse of time. the other are also known. Under the Principate the
Oratio Marci. (Of the Emperor Marcus Aurelius.) two professions are neatly separated. In the second
Admitted children to intestate succession of their stage of a civil trial before the private judge the
mother.-See ~ E N A T U ~ C ~ N ~ U L TORFITIANUM.
UM eloquence of the orator might exercise a greater in-
Oratio Marci. (Of the Emperor Marcus Aurelius.) fluence on the final decision since the proceedings were
Protected slaves manumitted in a testament of their closed after a recapitulation of the legal arguments
master who had been assassinated. According to and the results of the proofs by the representatives
SENATUSCONSULTUM SILANIANUM in such a case the of the parties. Rhetoric had an important role in
testament could not be opened (see APERTURA TESTA- judicial oratorship inasmuch as the rhetoricians in
612 ADOLF BERGER [TRANS.AMER. PHIL. SOC.
their capacity as teachers dealt with legal problen~son citizens are called to fulfill public services (munera).
the ground of real or fictitious cases.-See RHETORES -See the following items.
(Bibl.) , CAUSAM PERORARE, CAUSAS DICERE. Kubler, R E 18; Sachers, R E Suppl. 7, 792.
Himmelschein, SymD. Frib. Lenel, 1931, 373 ; Steinwenter, Ordo. (With reference to a group of persons.) The
Z S S 65 (1947) 106; J. Stroux, Rom. Rechtm'ssenschaft senate (ordo a~ltplissimus). For the municipal coun-
und Rhetorik, Potsdam, 1949; F . Schulz, History of R.
legal science, 1946, 108.
cil, see ORDO DECURIONUM. For ordo in the meaning
of a social class, see ORDO EQUESTER (persons of
Orbi. Married persons who have no children.-See equestrian rank) and ORDO SENATORIUS (persons of
LEX IULIA DE MARITANDIS ORDINIBUS, SENATUSCON-
senatorial rank). Ordo is also used of professional
SULTUM M E M M I A N U M .
groups, as, for instance, ordo publicanorum (tax-
Orbis Romanus. The Roman Empire. farmers, see PUBLICANI), or of persons in subordinate
J . Vogt, O . R . Zur Tcrmiitologie des rom. Imperialisrwrs,
1922.
service of the state (ordo scribaru~tz,apparitorum, and
the like), who were organized as associations.--C.
Orcinus libertus. See LIBERTUS ORCINUS.
10.61.
Orbitas. The state of being married and childless. Ordo amplissimus. The senate.-See SENATUS.
See ORBI. In imperial constitutions orbitas means the Ordo collegii. Indicates either an association, a guild
loss of either a child or a parent.-C. 8.57. (see C O L ~ E G I Uor
M )its administrative board.
Ordinare. ( I n the language of the imperial chancery.) Kiibler, R E 18, 931.
T o appoint ( a tutor, a curator, a procurator). Ordo decurionum. The municipal council. See
Ordinare iudicium (ordinatio iudicii). Comprises the MUNICIPIUM.The ordo decuriorwtn was the center
whole activity of the magistrate (the praetor) in the of the municipal administration and functioned also
proceedings in iure in a civil trial.-See the follow- as a superior instance for the decisions of municipal
ing item. magistrates in all administrative and certain judicial
Holder, Z S S 24 (1903) 201 ; Lenel, ibid. 335. matters. The decisions of the ovdo were passed by
Ordinare litem (ordinatio litis). Apparently a special a simple majority, in more important matters by two-
act in a trial concerning the status of a person as a thirds or three-fourths of the votes. Members of the
free man (causa liberalis), in particular of a defender council were appointed by the highest magistrates of
of the liberty of the person involved and the acceptance the municipality (see MAGISTRATUS MUNICIPALES), in
of a security (cautio) offered by him. The act is of some municipia by their citizens or by the council
importance since after litis ordinatio (lite ordinata) itself (see ADLECTIO).The new members paid a fee
the person whose liberty was under examination was of admission to the council (sumwza honorarii, see
considered free until the final decision was rendered. HONORARIUM).The membership in the ordo de-
With regard to other trials the phrase ordinare litem curionum was considered a dignity, and the families
seems to be of postclassical origin.-See CAUSA LIBE- of the decuriones constituted the local nobility. From
RALIS, ADSERTIO. the middle of the third post-Christian century the
Wlassak, Z S S 26 (1905) 395; Partsch, Z S S 31 (1910) situation of the decuriones changed radically to their
424; M. Nicolau, Causa liberalis, 1933, 116.
detriment as a result of the interference of the em-
Ordinare testamentum (ordinatio testamenti). T o perors in the municipal administration, especially in
make a testament. Ordinare refers also to codicils. financial and taxation matters. Heavy financial bur-
-1nst. 2.10; 6.23. dens were imposed on the decuriones ; the former local
Ordinarius. Normal, regular. With reference to pro- nobility became in the later Empire the most vexed
cedural institutions ordinarius indicates all those group of the municipal population. The membership
which are connected with the normal organization in the curia (this was the new name for the ordo
of the courts and the procedure before them (ordo decurionum, the decuriones being termed ever since
iudiciorum) . Ant. extra ordinem, extraordinarius. curiales) became hereditary. The few personal privi-
With regard to officials and offices a distinction is leges (as, for instance, to be judged by the governor
made between dignitates ordinuriae (officials in active of the province or to be exempt from the most severe
service) and dignitates honorariae which are only penalties or torture in criminal matters) meant very
honorific titles.-See IUDEX ORDINARIUS, IUS ORDI- little in face of the financial and personal burdens
NARIUM, IUDICIA EXTRAORDINARIA, HONORARII. they had to bear. They were liable for the amount
Born, R E 18. of taxes imposed on the citizens of the municipium.
Ordo. Generally means a sequence, an order or rather An extensive imperial legislation, of which a con-
a right order. Hence ordine = in a proper order. siderable portion is preserved in the Theodosian and
In the law of successions ordo refers to the order in Justinian Codes, dealt with the curiales, their duties
which a group (a class) of successors under praetorian and the penalties inflicted for violation of the perti-
law (bonorum possessores) are admitted to the in- nent laws and attempts to evade the obligations
heritance, see BONORUM POSSESSIO INTESTATI,EDIC- imposed. Under Justinian the curia became a kind
T U M SUCCESSORIUM.-Ordo is also the order in which of a penitentiary since the assignment to the curia
VOL. 43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 613
was applied as a punishment.-D. 50.2; C. 10.32-35; of his pater adoptivus. Municipal citizenship could
12.16.-See DECURIONES, ALBUM CURIAE, QUINQUEN- be granted by the municipal council to a person who
NALES, DUAE PARTES, MOTIO EX ORDINE. was born elsewhere. A person who had origo in a
Kubler, RE 4 (s.v. decurio) ; Kornemann, RE 16, 621. given community was subject to public charges there
Ordo dignitatum. See DIGNITAS. without regard to the circumstance whether or not
Ordo equester. See EQUITES. he had his domicile there.-C. 10.39.-See INCOLA,
Ordo iudiciorum privatorum. The ordinary civil, bi- MUNICIPIUM~ MUNERA.
Berger, RE 9, 1252; Cuq, DS 4 ; A. Visconti, Note pre-
partite proceeding in the classical period, to be dis- limirtarie sull'o. nelle fonti imper. rom., St Calisse 1940.
tinguished from proceedings extra ordinem. The Ornaments. Distinctive titles and insignia of high
term was coined in literature as a counterpart to the magistrates (ornamenta consularia, praetoria, quae-
extraordinary procedure, see COGNITIO EXTRA ORDI- storia) or of senators (ornamenta senatoria). Orna-
NEM.
menta were granted under the Principate as a personal
Sachers, RE Suppl. 7, 793; LCcrivain, DS 4.
distinction to persons who had never been magis-
Ordo iudiciorum publicorum. The normal criminal trates or had held a magistracy of a lower rank than
~rocedure(See Q U A E S T I O N E ~PERPETUAE)
in the last the ornaments bestowed on him. See ADLECTIO,
centuries of the Republic and under the Principate, HONORARII. Municipal magistrates and decuhones
distinguished from cognitio extra ordinem in criminal had also ornaments (ornaments decuriona,ia, duo-
matters which gradually superseded the quaestiones viralia) .-See INSIGNIA.
procedure owing to the imperial legislation and the Borcsik, RE 18; LCcrivain, DS 4.
transfer of the criminal jurisdiction to the emperor Ornaments (ornatus) aedium (domus). Things
and bureaucratic officials.-See ACCUSATIO, INQUI-
which serve to adorn a building. They are distin-
SITIO. guished from instruvnentum domus since the latter
Sachers, RE Suppl. 7, 797; Lkcrivain, DS 4.
"pertain to the protection of a house, and the orna-
Ordo magistratuum. See CURSUS HONORUM. ments serve for pleasure" (D. 33.7.12.16). T o
Ordo senatorius. A privileged social group from the ornamenta belong pictures, sculptures, and other
times of Augustus, composed of the members of the things which embellish a house.-See INSTRUMEN-
senate and their families (agnatic descendants until TUM.
the third degree with their wives) and of persons to ornaments iumentorum. ornamental equipment
the emperor granted the rank (see (caparison, trappings) of beasts of burden which they
CLAVUs LATUS). P~ssessionof property of the value used to wear when sold at the market. According
of at least one million sesterces was required. The to the aedilician edict which dealt with the sale of
ordo senatorius enjoyed various privileges both in domestic animals, the ornaments were considered
civil and criminal matters. The highest civil and sold together with the animals, and the buyer could
military offices in the state (firaefectus urbi, firae- claim them by a specific action.-See EDICTUM AEDI-
fectus aerarii, legati iuridici, commanders of legions, L I U M CURULIUM.
governors 'of provinces, etc.) were accessible only to Biondi, Actiones arbitrariae, AnPal 1 (1911) 153.
persons of senatorial rank. Lower in social rank was Ornaments mulierum. ornaments (jew-
the ordo equester (see EQUITES). Persons of eques- elry). The term is discussed by the jurists in con-
trian rank could obtain the admission to the sena- nection with legacies of ornaments mu he rum.-^.
torial rank from the emperor (see ADLECTIO).Both 34.2.-See SUMPTUS.
these privileged classes were referred to as uterque
Ornamenta triumphalia. Ornaments worn by a mili-
ordo when a legal norm applied to both of them. tary commander during his triumphal entrance in
Oriens. The Eastern part of the Empire.-See COMES Borzsik, RE 18, 1121.
ORIENTIS, DIOECESIS. Ornatio provinciae. The assignment of military units
Originalis. One who to a group Or 'Om- to a province for its security, together with the neces-
munity by birth (originalis colonus). sary provisions of food and money for the expenses
Originarii. Citizens of a community by birth (origo). of administration. ~h~ senate was the competent
-C. 10.39.-See INCOLA. authority.
Origo. The birth place. A person acquired the local O'Brien-Moore, RE Suppl. 6, 728.
citizenship in his origo if he was the son of a citizen os fractum. injury indicted on a and con-
of the same locality (municeps). H e became a civis sisting in the fracture of a bone. ~t is mentioned
suae civitatis (= a citizen of his city). Origo was already in the ~~~l~~ ~ ~ as abpunishable
l ~ crime~
different from the dovniciliuvn of a person, if he took by the side of membrum which comprises
domicile in another municipality than in that of his major damages to a human body.
birth. A manumitted slave acquired ius originis in Binding, ZSS 40 (1919) 106; Appleton, M i l Cornil 1
the origo of his patron, an adopted Derson in that (1926) 51 ; Di Paola, AnCat 1 (1947) 268.
614 ADOLF BERGER [TRANS.AMER. PHIL. SOC.
Osculum. A kiss. If a man kissed his fiancee at the Pactio collegii. The by-laws of an association (see
conclusion of the betrothal (osculo interveniente) COLLEGIUM) voted on and passed by the members to
and died before the marriage, the woman might keep deal with the internal organization of the association
one-half of the gifts he had given her; the other half (pactionem ferre, constitutere). Syn. lex collegii.
had to be returned to the heirs of the deceased, ac- Pactio libertatis (pro libertate). An agreement with
cording to postclassical law. the master of a slave under which money was given
M. B. Pharr, ClJ 42 (1947) 393. to him in advance (or promised) in order that the
Ostendere. T o prove. I t is a favorite term in Jus- slave be manumitted.
tinian's constitutions; it occurs also in some inter- Pactiones e t stipulationes. Pacts and stipulations
polated texts. between the interested parties served for the consti-
Guarneri-Citati, Indice2, 1927, 63. tution of praedial servitudes or of a usufruct on pro-
Ostentatio. A display, an exhibition. Consumable vincial soil by agreement, since mancipatio and in iure
things (see RES QUAE usu CONSUMUNTUR) could be cessio, the civil ways of the constitution of such rights,
the object of a gratuitous loan (COMMODATUM) if were not applicable to provincial land.-See SERVI-
they were used only for an ostentatious show (osten- TUTES PRAEDIORUM, USUSFRUCTUS.
tatio) and a vain display (pompa). Condanari-Michler, RE 18, 2150; P. Kruger, Die prae-
Ostia. A house door. A lease of a house or a dwelling torische Senn'tut, 1911; Frezza, StCagl 22 (1935) 98; B.
.Biondi, Serviid prediali, 1946, 215; S . Solazzi, Requisiti
could be unilaterally dissolved by the lessee if the e modi di costituzione delle servitd prediali, 1947, 109.
landlord refused (and Pactum. "The agreement ('laciturn) and of
jenedrae) which were in a bad condition. On the
two or more persons, concerning the same
other hand the tenant who provided the house with
(in idem)., ( D 2.14.1.2) Since the earliest times
doors at his Own expense had the right to take them
the term applied to any agreement Even in inter-
away (see ms TOLLEND1)after the en-
national relations an agreement betwe~ntwo states
trances to their former condition. (such as a peace treaty) or between the commanders
Ostiarius. A janitor, normally a slave. of two armies engaged in a fight, was termed pactum.
Otiosus. Idle, free charges. Otiosa In the law of obligations pactum (pacisci) is used in
pecunia = money not lent out on interest. the broadest sense, both with regard to contractual
Ovatio. See TRIUMPHUS. and delictual obligations. With regard to the latter,
Rohde, RE 18.
pactum referred to a composition between the of-
Ovile. An enclosure on the Campus Martius (= the fender and the injured by the wrongdoing
field of Mars in Rome) where the comitia centuriata (delictum) and still in classical law a transaction
gathered and (su.fragia ferre). The term be- with the person damaged excluded the availability
came a popular a place. The of the pertinent penal action (e.g., in the case of a
official term was saeptum- Saepta were also termed theft the furti, or in the case of INIURIA the
the enclosed places assigned to the single tribus or iniuriarum). such cases the pacturn pro-
centuriae for the purpose of voting. duced the extinction of an obligation. In the province
Rosenberg, RE 1A (s.v. saepta).
of contractual obligations the development of pacta
(formless agreements) was due to the praetorian
P Edict in which the praetor proclaimed: "I shall pro-
Pabulatores. Military units sent out to provide forage tect pacts convents (agreements, mutual understand-
for horses. ings) which were concluded neither by fraud, nor
Lambertz, RE 18. contrary to statutes, plebiscites, senatusconsulta, im-
Pacisci. See PACTUM,TALIO. perial decrees, or edicts, nor with the intention to
Pacisci de crimine. An agreement with a wrongdoer evade One those enactments" (D.
to the effect that one would not bring an accusation 2.14.7.7). The protection was granted in the form
against him (de non accusando) or would accuse him Of an if One Party was sued 'OntrarY to the
but conduct the accusation in a way to make the agreement reached in a formless pactum. In IUDICIA
BONAE FIDE1,governed good faith, an
culprit be absolved.-See PRAEVARICATIO, TERGIVER-
SATIO, SENATUSCONSULTUM TURPILLIANUM. was superfluous inasmuch as the judge had to pass
Kaser, RE 6A, 2416 ; Levy, ZSS (1933) 186; Bohacek, the judgment according to the principles of bona fides
St Riccobono 1 (1936) 343. which implied that any reasonable agreement between
paconius, unknown R~~~~ jurist of whom only the parties be taken into consideration.-D. 2.14; C.
one text is preserved in the Digest. He is probably 2.3.-See CONTRACTUS, EXCEPT10 PACT19 and the fol-
identical with Pacunius, also represented by a single lowing items.
text in the Digest. Condanari-Michler, RE 18; Beauchet, DS 4 ; NDI 9
(Anon.) ; Ferrini, Opere 3 (1929 ex 1892) 243; Manenti,
Berger, RE 19 (no. 6 ) . StSen 7 (1890) 85, 8 (1891) 1, 31 (1915) 203; G. Platon,
Pactio. See PACTUM. Pactes et contrats en droit romain et bysantin, 1917 ; Stall,
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 615
Z S S 44 (1924) 1 ; Koschaker, Fschr Hanausek 1925, 118; non petendo in personam and in rcnt, which seems to
P, Bonfante, Scritti 3 (1926) 135; Grosso, Efiracia dci be of postclassical origin. A pactullt de non petendo
patti nei bonae fidei iudiria, M e m T o r 3 (1928) ; idem,
StUrO 1, 2 (1927, 1928) ; Riccobono, S t Bonfante 1 (1930) could I)e modified or annulled by a later agreement
125 ; idem, Stipulationcs, contractus, pacta, Corso, 1934/S ; ut petere liceat giving the creditor the right to sue
V. De Villa, LC ztslirac ex parto, 1937; Boyer, L C pactc the debtor.
extinctif d'action, Iierucil de I'Acad. de lhgislation dc Tou- Condanari-Michler, R E 18, 2142; De Villa, NDI 9 ; Segrh,
louse, S6r. 4, v. 13 (1937) ; G. Lombardi, Rircrche in t e ~ n a KDColn 12 (1915) 1062; Rotondi, S r r giirridiri 2 (1922,
di ius gentiunt, 1946, 200; G. Gmsso, I1 sistcrna ro9nano e x 1913) 307; Koschaker, 1;schr Hanausek 1925, 118; Al-
dei contratti, 2nd ed. 1950, 186. bertario, St Calisse l (1940) 61 ; Guarino, St Scovza 1940,
P a c t u m adiectum. (A non-Roman term. ) An addi- 443.
tional agreement to a contract involving a change of P a c t u m de non praestanda evictione. See EVICTIO.
the typical content thereof. Thus, f i r instance, a P a c t u m de retro emendo (vendendo). An additional
pactum adiectugn in a sale was the ADDICT10 I N DIEM, clause in a sale by which the seller is granted the
or LEX COMMISSORIA. right to buy back the thing sold, within a certain
Condanari-Michler, R E 18, 2142; P . E. Viard, Les partes time at a fixed price. A contrary agreement was in
adjoints aux rontrats, 1929; Stoll, Z S S (1930) 551. favor of the buyer to the effect that he might sell
P a c t u m conventum. A term which seemingly was back the thing purchased to the seller. The terms
used as a technical one in the praetorian Edict (pacta de retro etnendo (vendendo) were coined in the lit-
conventa, see PACTUM).It is uncertain whether the erature.
expression is to be understood as two nouns (= pact P a c t u m d e vendendo pignore. See I U S DISTRAHENDI,
-agreement) or as a "pact agreed upon."-See PACTUM DE DISTRAHENDO PIGNORE.
IUDICIA BONAE FIDEI. P a c t u m displicentiae. An additional clause in a sale
P a c t u m custodiae. A n agreement by which one party to the effect that the buyer is entitled to return the
assumed the duty of custody of the other party's thing to the seller and to annul the sale within a
things. Such a duty could be the object of a special certain time if the thing does not suit him. Such a
contract (locatio conductio operarum) or of an hddi- sale is conditional, its validity depends upon the ap-
tional clause to another contract.-See CUSTODIA. proval by the buyer. The term pacturn displicentiae
P a c t u m d e constituto. See CONSTITUTUM. is not Roman.-See EMPTIO.
P a c t u m d e .distrahendo (vendendo) o r d e n o n dis- P a c t u m donationis. See DONATIO.
trahendo pignore. A n agreement between debtor P a c t u m dotale. agreement concerning the dowry,
and creditor concerning the sale (or non-sale) of the in particular its restitution in the case of dissolution
pledge in the case of the debtor's default. See IUS of the marriage by divorce or death of one of the
DISTRAHENDI. If in the sale of the pledge the creditor spouses.-D. 23.4; C. 5.14.-See DOS, INSTRUMEN-
T U M DOTALE.
obtained a sum bigger than the debt was, he had to
restore the surplus (SUPERFLUUM) to the debtor. P a c t u m ex continenti. A n additional clause (pactum
Manigk, R E 20, 1557. adiecturut) to a contract agreed upon by the parties
Pacturn d e ernendo pignore. A n agreement between at the conclusion of the contract. Ant. pactuiiz ex
debtor and creditor that the thing given a s a pledge interval10 = an agreement, reached afterwards, pri-
(pignus) might be bought by the creditor or by the marily in favor of the debtor.-See CONTINENS.
surety who guaranteed-the payment.-C. 8.54. Pacturn ex intervallo. See the foregoing item.
Manigk, R E 20, 1557. Pacturn fiduciae. See FIDUCIA.
P a c t u m d e n o n petendo. A formless agreement be- Pacturn in favorem tertii. See CONTRACTUS I N FA-
tween creditor and debtor by which the form'er as- VOREM TERTII.
sumed the obligation not to sue the debtor in court Pacturn legitirnum. ( I n the later Empire.) A form-
for the payment of the debt or for the fulfillment of less agreement protected by an action.
his obligation. Such a n agreement could be limited P a c t u m n e dolus praestetur. A clause attached to a
to a specific action, e.g., ne depositi agatur ( = not to contract governed by bona fides (see CONTRACTUS
proceed with the actio depositi) or not to sue for BONAE FIDEI) to the effect that the debtor is not
execution of a judgment-debt (actio iudicati) ; it could responsible for fraud (see DOLUS),for instance, in a
be also limited in time, i.e., not to sue within a contract of a deposit (see DEPOSITUM). Such a
certain sDace of time. A creditor who contrarv to clause was not admissible; it was considered as being
such a n agreement brought an action against the against good faith (contra bonarn fidern) and good
debtor could be repealed by an exceptio pacti. The customs (contra bonos mores) and as such it was
benefit involved in a Dactum de non Detendo could void. O n the other hand, however, the extension of
be strictly personal, i.e., granted solely to the debtor the liability of the debtor for culpa (see CULPA)in a
alone, or extended to all persons engaged in the given contract under which he normally was answerable
obligation (sureties, co-debtors, co-creditors) . This for dolus only (as in the case of a deposit), was valid
distinction is the basis of the terminology pacttiiiz de (pactaint u t et culpa praestetur) .-See DOLUS MALUS.
616 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
Pacturn nudum. See NUDUM PACTUM. poenitendi, These Lyon, 1890; J. Bendixen, Das ius poeni-
Pactum praetorium. A formless agreement the ful- tendi, Diss. Gottingen, 1889; W. Felgentrager, Antikes
Losungsrecht, 1933, 27.
fullment of which could be enforced by a praetorian
action (actio in facturn).--See FORMULAE I N IUS Paganus. (Adj.) See PECULIUM PAGANUM.
CONCEPTAE, RECEPTUM. Paganus. (Noun.) Used in different meanings : the
Pactum u t minus solvatur. An agreement concluded inhabitant of a PAGUS; the inhabitant of a lower
with an heir by which the creditors of the estate de- situated place, a valley, as opposed to an inhabitant
,Jared to be satisfied with the payment of a portion of a mountain Or a hill, montanus; a civilian person
of the debts if the inheritance was insolvent. (non-soldier), ant. miles, hence the' distinction
Guarino, St Scorza 1940, 443; idem, AnCat 4 (1949-50) peculium paganurn-peculium castrense; a heathen,
196; see Solazzi, Concorso dei creditori 4 (1943) 96. a pagan.-C. 1.10 ; 11.
Pactumeius Clemens. A jurist of the first half of the Kornemann, R E 18; Gilliam, Amer. Jour. of Philol. 73
second century after Christ ; he made a brilliant official (1952) 75.
career (consul A.D. 135). H e was frequentiy em- Pagus. In oldest times, an ethnic or tribal group com-
ployed by Hadrian and Antoninus Pius for official prising several settlements, an arrangement found in
missions into provinces. the primitive organization of peoples (populi) in
Hanslik, R E 18, 2154 (no. 3 ) . Italy. According to a not quite reliable source, Rome
Pacuvius Labeo. A jurist 4t the end of the Republic, under the last kings consisted of 26 pagi. A minor
father of the famous jurist LABEO,disciple of the unit was the v ~ c u s( = village). Under the Republic
prominent Republican jurist, Servius Sulpicius Rufus. pagus denotes a rural territory, an administrative
Berger, R E 18, 2176 (no. 9 ) . district. For larger territories with a larger popula-
Paedagogium. An educational institution where boys tion terms such as civitas, urbs, oppiduw, etc., were
were trained for service as pages in the imperial used. "To indicate a piece of land oqe should say
palace. in which civitas and pagus it is situated" (D. 50.15.4
Ensslin, RE 18, 2204; Navarre, D S 4. pr.). The inhabitants of a pagus = pagani. In
Paedagogus. A slave who escorted the master's chil- Italy and the provinces the head of the administration
dren to school and took care of them in school and of a pagus is called magister, praefectus, curator or
at home. A paedagogus enjoyed a privileged posi- praepositus pagi.
tion in the master's house and usually was manu- Kornemann, R E 18; Toutain, D S 4.
mitted sooner than other slaves.-In the later Empire Palam. Publicly, before witnesses, "in the presence of
paedagogus was the director of the PAEDAGOGIUM. many persons" (D. 50.16.33) .-See PROSCRIBERE.
Schuppe, RE 18 (s.v. paidagogos) ; Navarre, DS 4.
Palam cst. It is obvious, there is no doubt. The
Paelex (pelex, pellex). A mistress of a married man; locution occurs frequently in the language of the
a woman who lived with a man as his wife without jurists when they want to stress that the opinion
being married to him. "She is named by the true expressed is beyond any doubt.
name 'a friend' (amica) or by the name 'concubine'
fasere, To allnounce publicly.
which is a little more honorable" (D. 50.16.144).-
See CONCUBINA. Palatini. All persons in civil or military service in the
Erdmann, RE 1 8 ; C. Castello, In tema di matrimonio imperial palace. All functionaries in the financial
concubinato (1940) 9. imperial administration which was concentrated in
Paenitentia. (From paenitere,) A change of one's the office of the COMES SACRARUM LARGITIONUM and
mind concerning a transaction already concluded or the COMES RERUM PRIVATARUM, were among the
concerning the omission of the performance of a legal palatini. The palatini in the higher ~ositionsen-
act within a fixed term (e.g., non-acceptance of an joyed exemption from public charges (munera),
inheritance when the solemn form of CRETIO was pre- sometimes even after leaving their official post.-
scribed). Generally paenitentia is without any legal C. 12.23; 30.
effect. However, in Justinian's law there wer'e some Ensslm, RE 18; Cagnat, D S 4.
specific cases in which a person could unilaterally Palatini largitionum. See LARGITIONES.-C.12.23.
withdraw from a legal transaction by a simple change Palatium. The imperial palace (sacrum palatium).
of mind, if the other party had not as yet fulfilled his Qui in sacra palatio militant = persons employed in
obligation, and through an action condictio (termed the imperial palace.-C. 11.77; 12.28.-See ARCHI,+
in literature condictio propter paenitentiam, ex paeni- TER SACRI
tentiam) recovered what he had already paid. Thus, Palmarium. A compensation given (or promised) to
for instance, one who had made a donation to a
slave's master to have the slave be manumitted, could an advocate after a successful trial.-See HONORA-
RIUM.
revoke the donation before the manumission was per-
formed.-See ARRA,I US PAENITENDI. Paludamentum. A scarlet military cloak, part of the
E: Manns, PGv.ife,rzrecht, 1879; 0. Gradenwitz, Infer- insignia of a magistrate commanding troops outside
polationen in den Pandekton 1887, 146; N. Verney, Ius Rome.
VOL.43, PT. 2, 19531 E N C Y C L O P E D I C DICTIC)NARY O F R O M A N LAW 617
Pandectae. (From Greek = an all embracing work.) Papirius. (First name uncertain.) A fontifex maxi-
It was the second title given by Justinian to the Digest n u s about 500 B.c., author of a collection (called Ius
("Digesta seu Pandectae") ; see DIGESTA IUSTINIANI. Papirianum) of rules of sacral law, generally ascribed
The term is not an invention by Justinian, since it to the LEGES REGIAE. The existence of such a col-
was previously used as a title of comprehensive lection is based on the mention of a commentarv
juristic works by Ulpian (in 10 books) and by thereon written by a certain Granius Flaccus in the
Modestinus (in 12 books). time of Caesar or Augustus, entitled De iure Papi-
Pangere. T o agree. Syn. pacisci. Pangere ne petatzcr riano.
is syn. with PACTUM DE N O N PETENDO. Steinwenter, RE 10; 18, 3, 1006; Cuq, D S 3, 745; Zocco-
Panis. (From the fourth century after Christ.) Bread Rosa, N D I 7; idem, RISG 39 (1905) ; Oberziner, Hist 1
(1927) ; Di Paola, St Solaz,-i 1948, 634; Paoli, R H D 24-25
from the state bakeries gratuitously distributed in (1946/7) 157; C. W. Westrup, Illtrod. to early R. law 4,
Constantinople and other cities to meritorious persons 1 (1950) 47.
or to proprietors of houses in order to stimulate the Papirius Fronto. A little known Roman jurist of
construction of buildings (panis aedium, aedificio- the late second post-Christian century, author of a
r u i ~ l ) . Panis pop~rlaris(cizjilis, ciz~icus)= bread dis- collection of Responsa.
tributed to the poor.-See A N N O N A CIVILIS. Berger, RE 18, 3, 1059.
Kubler, RE 18, 3, 606; ident, S t Bottfai~te2 (1930) 351 ;
I).Van Berchem, Distribution de blh (Geneve, 1939) 102. Papirius Iustus. A jurist of the second half of the
P a n i s farreus. See CONFARREATIO. second post-Christian century, known only as the
Pantomimus. A pantomine, a stage-dancer. The pro- author of a collection of i m ~ e r i a lconstitutions in 20
fession was considered an ARS LUDICRA (dishonest). books, of which only eighteen excerpts were accepted
A pantomimtts could be killed on the spot when caught into the Digest. H e was the only jurist who edited
by the husband of an adulterous wife. itliperial constitutions in their original text. The
Papinianistae. The third year students in Byzantine edition was without any commentary :or criticism.
law schools, so called &cause tho chief subject of His official career is unknown.
Berger, RE 18, 3, 1059; Scarlata Fazio, S D H I 5 (1939)
their studies was the works of Papinian. 414.
Papinianus, Aemilius. A Roman jurist of the second/
Papirius, Sextus. A jurist of the early first century
third century after Christ. H e was praefectus prae-
B.c., disciple of Quintus Mucius Scaevola.
torio from 203 until 205. H e died in A.D. 212, ex- Munzer, RE 18, 3, 1012 (no. 25).
ecuted by order of the Emperor Caracalla. H i s lan-
guage shows some peculiarities which, however, do P a r causa (condicio). A legal situation in which sev-
not suffice for the assumption of his Syrian or Afri- eral persons (creditors, sureties) have equal rights.
can origin, but his style is a model of conciseness and "Among several persons in the same legal situation
precision. Papinianus is one of the most remarkable that one who is in possession (of the thing in dis-
figures among the Roman jurists. His opinions pute) is in the better case" (D. 50.17.128 pr.).
prove an independent mind, his solutions are based P a r imperium. The equal power (ilrtperilci~z)of magis-
on a profound understanding of the necessities of trates who are colleagues in office.-See COLLEGAE,
life, on equity, and, at times, on ethical more than IMPERIUM.
merely technical juristic arguments. See AEQUITAS. P a r ratio. Parem rationem adscribere = the entry in
His principal works were not comprehensive treatises a banker's ledger by which a debt is noted as paid.
but collections of cases (Qtiaestiones in 37 books, Parem rationem facere = to settle the balance of re-
ResPonsa in 19 books) in which other jurists' re- ciprocal clainls; syn. paria facere.
sbonsa, court decisions and imverial constitutions were Parangariae. Carriages used for the transportation of
often taken into consideration. Other works include : goods on by-roads.-C. 12.50.-See ANGARIA.
Definitiones (in two books) and a monograph on Seeck, RE 4, 1852; Humbert, DS 1, 1659.
adultery. Papinianus was appreciated by subsequent Parapherna. "Things which belong to the wife beyond
writers and Justinian more than any other classical the dowry (e.rtra dotem)" (C. 5.14.8). The wife
jurist. The so-called Law of Citations (see IURIS- might dispose thereof as she pleased and entitle her
PRUDENTIA) which attributed a particular importance husband with the administration. When the mar-
to Papinian's works, is an eloauent evidence of the riage was dissolved, the parapherna had to be restored
loftiness of his reputation in postclassical times.- to the wife or her heirs. I n the later Empire, the
See NOTAE. parapherna were held in defraying the burdens of the
Jors, R E 1, 572 (s.v. Aen~ilitts,no. 105) ; Orestano, NDI marriage (ONERAM ATRIMONII ) and certain legal
9; Berger, O C D ; W. Kalb, Rotrrs Jttristeit, 1890, 111 ; rules concerning the dowry were extended to the
Leipold, Uher die Sprache des Jtrristen Papinian, 1891 ; parapherna, as, e.g., the wife was granted a general
E. Costa, Papiitiarto, 1 ('1894); H. Fitting, Alter u r ~ d
Folge2, 1908, 71; Solazzi, A G 133 (1946) 8 ; Schulz, Scr hypothec on the husband's property as a guaranty for
Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 254: W. Kun- the restitution of the paraphema.-C. 5.14.
kel, Herktiitft tcrrd soziale Stelltirtg der riina. Jztristeii, P. Bonfante, Corso di dir. rom. 1 (1925) 373; Pampaloni,
fonti rom., 1913 (= Scr giuridici 1, 1923) ; A. Ehrhardt, an obligation, an action or an exception arises for
Iurta causa traditionis, 1931, 96. one or both parties involved.
Paraphrasis Institutionum Theophili. A Greek para- Parere. See SI PARET.
phrase of Justinian's Institutes (see INSTITUTIONES Paria facere. See PAR RATIO.
IUSTINIANI)by the Byzantine jurist Theophilus in Pariculum. See PERICULUM.
which the author, one of the compilers of Justinian's Paries communis. A party wall which separates two
Institutes himself, used in a considerable measure the adjoining buildings. It is held in common ownership
Institutes of Gaius. H e added some remarks (not by the owners of the two buildings. The situation is
always reliable) of an historical nature.-See THEO- governed according to the principles of com~fzunio
PHILUS, INSTITUTIONES CAI. except for such measures which are physically im-
Edition: C. Ferrini, I~~titlctionumgraeca parapltrasis, possible, as, for instance, a division.-See DEMOLIRE.
Theophilo vulgo tributa, 1-2 (1884, 1897); J. and P. Fougsres, D S 4 ; Brugi, RISG 4 (1887) 161, 363; Voigt,
Zepos, Ius Graeco-Rontar~um3 (Athens, 1931).-Kiibler, BerSh'chGW 1903, 179, 185; G. Branca, Danno temuto,
RE 5A, 2142; Ferrini, Opere 1 (1929) 1-228 (several 1937, 79.107; Arangio-Ruiz, FIR 3 (1943) no. 107.
articles of 18841887) ; Riccobono, BIDR 45 (1938) 1 ;
Nocera, RISG 12 (1937) 251 ; Maschi, Punti di vista Parricidas. A term the origin and primitive meaning
per la ricostr~rzior~edcl dir. classico, AnTr 18 (1946) ; of which are uncertain. It occurred allegedly in a law
idem, Scr Fcrrirri (Univ. Pavia, 1946) 321 ; Wieacker, attributed to the king Numa Pompilius (Festus 11.
Fscltr J. el. Gicrke 1950, 296. 221) in the following provision: "If soinebody know-
Parare (paratio). T o acquire either by purchase (for ingly and with evil intention killed (literally: deliv-
money) or otherwise. Syn. comparare. ered ta death) a free man, let him be a parricidas
Paratus. Ready, prepared, willing. The term is used (PARICIDAS ESTO)." It is not certain whether the
primarily of a debtor ready to pay his debt or to give term means here simply a murderer.-See PARRICI-
security, or of a debtor stlmmoned to court and will- DIUM.
ing to assume the role of a defendant in the trial and Leifer, RE 18, 4, 1472; Riccobono, FIR 1' (1941) 13
to cooperate in the continuation of the process (see (Bibl.) and p. X V I ; E. Costa, Crimini e perte, 1915, 20;
Pasquali, St Besta 1 (1939) 69; De Visscher, Etudes de
LITIS CONTESTATIO) . dr. rom, 1931, 466; Gernet, Rev. de philologie 63 (1937)
Paratitla. (In Byzantine juristic literature.) Supple- 13; Henrion, Rev. belge de philol. et histoire 20 (1941)
mentary appendices to single titles of Justinian's codi- 219; Leroy, Latomus 6 (1947) 17; Londres da Nobrega,
ibid. 9 (1950) 3.
fications (Digest and Code), edited, summarized, or
commented on by a Byzantine jurist. The paratitla Parricidium. The assassination of a (one's own?)
might contain references to additional texts from other pater familias (the head of a family group). The
titles, connected with the topic dealt with in a given identification of parricidiurn with homicide belongs
title as well as references to parallel texts. Justinian to a later development. Parricidiunz was one of the
specifically excluded such kind of commentatory re- first public crimes (crimina publica) prosecuted by
marks from his ban concerning the commentaries on the state.-D. 48.9; C. 9.17.-See PARRICIDAS, HOMI-
-
the Di~est.
Berger, Bull. Polish Inst. of Arts and Sciettces 3 (New
CIDIUM, QUAESTORES PARRICIDII, LEX POMPEIA DE
PARRICIDIO, POENA CULLEI.
York, 1945) 661 (= BIDR 55-56, Post-Bellum, 1951, 129). Ucrivain, DS 4 ; Berger, O C D ; Danieli, Archivio penale,
1949, 315.
Parens. A father, in a broader sense "not only the
father, but also the grandfather, the great-grandfather Pars. A part, a portion of a whole. Pro parte (= for
and all ascendants, as well as the mother, grand- a part) is opposed to in solidum (= for the whole)
mother, and great-grandmother" (D. 50.16.51). with regard to the liability of a person or to the
Parentes = parents. Parentes also includes the release of a debtor from an obligation.
slaves who are parents of a child born in slavery. Pars. (With reference to state territory.) A province,
a large administrative district.
Parens binubus. A man who married a second time.
If he had children from the first marriage, he could Pars. ( I n judicial proceedings.) A party to a trial.
not dispose of his property by testament without tak- Pars actoris = the plaintiff; pars rei = the defendant.
ing them into consideration. -See VICTOR.
Parens manumissor. A father who released a child P a r s dimidia. A half.-See LAESIO ENORMIS, S~ONSIO
TERTIAE PARTIS.
(a son or daughter) from his paternal power; see
EMANCIPATIO. H e was entitled to be the guardian P a r s diversa. The adversary in a trial.
of the emancipated child and had a certain right to P a r s (portio) hereditaria (hereditatis). The share
the intestate inheritance of the child. one has in an inheritance.
Kreller, RE 18, 4, 1456; Solazzi, Ath 5 (1927) 101; P a r s (portio) legitima. The share of an inheritance
Grosso, RISG 4 (1929) 251; W. Erbe, Fiduzia, 1929, due to an heir who would succeed under the law on
170; Buckland, JRS 33 (1943) 11. intestacy (heres legitimus, ab intestato). The fourth
Parere (pario). T o bring forth, to produce. The term part of the pars legitima (quarta ljgitimae partis)
refers to legal transactions or situations from which had to be left certain heirs among the next relatives
VOL. 43, PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 619
(descendants, ascendants, and later, consanguineous P a r t u s abactus (partum abigere). Abortion. A
brothers and sisters) in any form. Otherwise, i.e., woman guilty of criminal abortion was punished with
if the share left to them was less than the required exile. A person who gave a woman a poisonous
fourth, or if they were not mentioned in the testament liquid (poculum amatorium) to cause abortion was
at all or were unjustly disinherited, they had the punished with death if the woman died, otherwise
QUERELA INOFFICIOSI TESTAMENTI which might lead with deportation or, when the woman was of a lower
to the rescission of the whole testament. social class, with con~pulsorylabor in mines (iiletalla).
G. La Pira, La successione ereditaria ab intestato e contro Brecht, RE 18, 4, 2046; Humbert, DS 1 (s.v. obortio).
il testamento, 1930. P a r t u s ancillae. A slave child. Such children were
P a r s maior. A majority in a public or private cor- not considered proceeds (see FRUCTUS). If the
porate body. "What is done by the majority con- mother was given as a pledge, the child (partus
cerns all" (D. 50.17.160.1). ancillae pignoratae, partus pignoris) shares the legal
P a r s pro indiviso. A part of a thing expressed through situation of the mother.-C. 8.24.-See FRUCTUS REI
a fraction, when the thing cannot be physically divided PIGNERATAE.
into parts. Syn. pars indivisn; ant. pars pro diviso.- Brini, MemBol 4 (1909/10) ; V . Basanoff, P.u., Thltse
Paris, 1929; Carcaterra, AnCanz 12, 2 (1938) 51.
See COMMUNIO, INDIVISUS.
P a r s virilis. See VIRILIS,PORTIO HEREDITARIA. P a r t u s perfectus. A child born after a full time of
pregnancy. A seven-months' child was held to be a
Partes. (With reference to an official or a judge.) partus perfectits.
The official functions (activity) or duties of a magis- P a r t u s suppositus. ,4 fraudulently substituted (sup-
trate or a judge. Partes sustinere = to assume the posititious) child. Syn. partus subiectus, subditicius.
part or functions, primarily in a civil or criminal -See EDICTUM CARBONIANUM, INSPICERE VENTREM,
trial, such as that of a plaintiff, a defendant, a repre- SUBDITICIUS.
sentative, an accuser, etc. Syn. fartibus fungi.-See Kleinfeller, RE 4.4, 952 (s.v. suppositio portus) ; Brecht,
VICE. RE 18, 4, 2048; Saglio, DS 4, 1570.
Partes formulae. The parts of a formula in the formu- Pascuum. A pasture. The owner of a private pasture
lary procedure.-See FORMULA, INTENTIO,D EMON- land could allow the cattle of others to graze thereon
STRATIO, ADIUDICATIO, EXCEPTIO, PRAESCRIPTIO. either by a contract of lease (locatio conductio rci)
Partiarius. See COLONIA PARTIARIA, PARTITIO LEGATA. or by constituting a servitude (servitus pccoris pas-
Particeps fraudis. See c o ~ s c ~ FRAUDIS.
us cendi, ius pascui; see COMPASCERE). H e is liable if
Participare. T o partake, to share in common with poisonous grass injured or killed the others' animals.
others (in profits or losses). The term is used also -C. 7.41; 11.60; 61.
in a bad sense, to participate in a wrongdoing (fraud, Kubler, RE 18, 4, 2052.
theft). Pascuum publicurn. Public pasture land. The use of
Partitio legata. A legacy by which a fraction of an such a land by the citizens of a community was origi-
estate is left to the legatee (legatarius partiarius) who nally free. From the fourth century B.C. a fee
shares the inheritance with the heirs instituted in a (scriptura) had to be paid to the treasury of the
testament. The pertinent disposition of the testator community.-C. 11.61.
runs as follows: "my heir shall divide my estate with Kubler, RE 18, 4, 2054.
. . . ." A legatarius partiarizrs is not a universal suc- Passim. Simply, without any further examination of
cessor, therefore he cannot be sued directly by the the case under decision. The term is used in the
creditors of the estate. His proportional liability was juristic language as ant. to CAUSA COGNITA, i.e., after
settled through a special arrangement with the heirs, a scrupulous examination.-See CAUSAE COGNITIO.
namely, through reciprocal stipulations (stipulationes Passus. A pace. A Roman mile = one thousand paces
partis et pro parte) which at the same time guaran- (about 1620 English yards). Twenty miles were
teed the legatee the appropriate portion of the sums counted as one day's journey when a magistrate
paid by the debtors of the testator. Syn. legafztm ordered a party to appear in court.
partitionis.-See SENATUSCONSULTGM PEGASIANUM. Pastus. ( I n later imperial constitutions.) The supply
Wlassak, ZSS 31 (1910) 200; B. Biondi, Successione and distribution of provisions (primarily for the
tcstamentoria, 1943, 442. army).
Partus. A n embryo in the woml). Before birth it is Pastus pecoris. Pasturing cattle.-See ACTIO DE
considered a part of the woman and not a human PASTU PECORIS, SERVITUS PASCUI, PASCUUM, I U S PAS-
being. Partus can also mean a new-born child (see CENDI.
PARTUS PERFECTUS) .-See NASCITURUS, INSPICERE Cuq, DS 4, 340.
V E N T R E M , INFANTICIDIGM, AGNOSCERE LIBERUM, SE- Pater civitatis. Syn. with CURATOR C:VITATIS in the
NATGSCONSULTUM PLANCIANUM, and the following later Empire.
items. Pater. A father. "Father is he whom the marriage
Ambrosino, RISG 15 (1940) 3. indicates (as such)" D. 2.4.5. The term refers also
620 ADOLF BERGER [TRANS. A M I I R . PHII,. SOC.
to a grandfather.-See PATER FAMILIAS, PARENS. of certain rights (usrrs servitutis) on his property,
Pater familias. The head of a family, without regard such as ITER, ACTUS,and the like. This toleration
as to whether or not a person so designated has chil- was not understood as a simple passive attitude but
dren, whether he is married or is below the age of as a tacit expression of the will of the owner and a
puberty. A pater falrzilias must be a Roman citizen recognition as if the other were entitled to exercise
and not under paternal power of another. By the an easement on account of a previous agreement (the
death of a pater fantilias all sons (and grandsons constitution of a servitude). In classical law the
whose father was dead or had been emancipated) beneficiary could use the A C T I ~PUBLICIANA, in Jus-
who were directly under his paternal power, became tinian's law the fiatientia is identified with a volun-
patres falnilias. The pater famjzilias was the first in tary concession of a servitude (traditio servitutis) .
the family (prinreps fa~niliae)and was the master of See Perozzi, Scritti 2 (1948, ex 1897) ; Rabel, Mhl Girard
the "house" (in donco dot~ziniumnIzabet). His power 2 (1912) 394; Guarneri-Citati, Indice' (1927) 64; B:
Biondi, Servitli prediali, 1948, 229; S. Solazzi, Requisiti
lasted as long as he lived, without regard to the age e modi di costituzionc di servitzl pred., 1947, 149.
of the persons under his paternal power (patria
Patientiam praestare. T o tolerate another's ( a neigh-
potestas) or their official position. His power was
bor's) entering into one's property and performing
boundless and limited only by custon~ and social
there certain acts (such as the demolition of a con-
tradition. H e alone has the right to dispose of the
struction which was harmful to a neighbor's property
family property.-C. 4.13 ; 43.-See PATRIA POTESTAS,
and which the owner was obligated to carry out but
FILIUS FAMILIAS, BONUS PATER FAMILIAS, DILIGENS
failed). This occurred usually when a person other
PATER FAMILIAS, EMANCIPATIO, INTERDICTUM DE
than the owner of a landed property (his lessee, slave,
LIBERIS EXHIBENDIS.
Sachers, R E 18, 4, 2121 (Bibl.) ; Anon., N D I 9 ; Longo, or predecessor in title) built a construction which
B I D R 40 (1932) 201 ; C. Castello, Studi sul diritto fa- caused or threatened to cause damage to a neighbor's
maliare, 1942, 69; Volterra, R I D A 1 (1948) 213; idem, property. Such construction could be averted by a
R I S G 85 (1948) 103; Daube, St Albertario 1 (1952) 435; protesting action on the part of the neighbor (see
Sachers, Fschr Schulz 1 (1951) 319. OPERIS NOVI NUNTIATIO, ACT10 AQUAE PLUVIAE AR-
Pater naturalis. An illegitimate father, sometimes the CENDAE).If the harmful construction was not de-
father of an einancipated son or of one who has been stroyed by the owner or his lessee, the neighbor
adopted by another. might do it at his own expense (which, of course,
Lanfranchi, StCagl30 (1946) 47. had to be reimbursed by the owner) and the owner
Pater patratus. The head of the group of fetiales who had to tolerate such action on his land.-See the
as representatives of the Roman people declared war foregoing item.
upon an enemy or acted in the proceedings of deditio patre;. The oldest term denoting the members of the
(extradition of persons or things.)-See FETIALES, king's senate which presumably was composed of the
DEDITIO, BELLUM, BELLUM INDICERE. "fathers," i.e., the heads of the gentes (see GENS)
De Ruggiero, D E 3, 68; Muller, M n 55 (1927) 386;
Krahe, Arch. fur R e l i g i ~ n ~ s s e n s c h a f34
t (1937) 112. and prominent families. Livy says that the earliest
Pater patriae. The first emperor who was granted the senators were called patres for dignity's sake (propter
title of the "father of the fatherland" was Augustus. Itonorem). The relatives of the patres and their
Before him the title had been conferred on Caesar, descendants formed the class of patricii (patricians).
shortly before his death. After Augustus several Hence patres was used as syn. with patricii, as, e.g.,
emperors were honored by this title. in the norm of the Twelve Tables which forbade mar-
L. Berlinger, Beifrage zur inofiziellen Titulatur der rom. riage between plebeians and patricians (patres) .--See
Kaiser, 1935, 77; M . Grant, Front imperium to auctoritas, AUCTORITAS PATRUM.
Kiibler, RE 18, 4, 2222; Lbcrivain, D S 4 ; Di Marzo, .VDI Patrocinium vicorum (colonorum). Possessors of
9 ; Momigliano, OCD ; Oberziner, Patrkiato e plebe, small landed property in the later Empire (fourth
Pubbl. dell'dccad. Scientifico-Letteraria, Milan, 1 (1913) ;
Rose, J R S 12 (1922) 106; Picotti, Arch. storico ital., Ser. century), vexed by tax collectors and public charges,
7, vol. 9 (1928) 3; Fruin, T R 9 (1929) 142; Ensslin, Der used to render themselves under the protection of
Ko~zstailtinische Patriziot, Aiirlitaire de l'lnstitut de Philol. wealthy and influential men (POTENTIORES) as their
et d'Hist. orient. et slaves, 2 (1934) 361; Bernardi, Rend patroni. The latter ex~loitedthis situation for tax
Lomb 1945/6, 3. evasion. Imperial legislation tried to abolish these
Patricius (Patrikios). A prominent jurist and teacher practices but in vain. The land taken under pro-
in the Law School of Beirut in the second half of tection by the patrons remained in theii possession
the fifth century after Christ. Excerpts of his writ- and the former small land-proprietors became the
ings, mostly devoted to imperial constitutions, occur serfs of their protectors.-C. 11.51.-See COLONI,
in the scholia to the BASILICA. LATIFCNDIA.
Berger, R E 18, 4, 2244 (under no. 2). Kornemann, R E Suppl. 4, 265; M. Gelzer, Sttrdieil 2ur
Patrimonialis. See PATRIMONIUM CAESARIS. by;antitiischert Verwaltung Aegyptetzs, 1909, 69; F. De
Zulueta, De patrociniis zicoruill, Oxford S t itt Social artd
Patrimonium. The whole property of a person; in a Legal History A, 1909; Lewald. Z S S 32 (1911) 473; G.
narrower sense, the property inherited from one's Rouillard, L'adnzitzistration civile de I'Egypte rotii., 1928,
father (ancestor) .-See M U N E R A PATRIMONII, RES '10; Martroye, R H D 7 (1928) 201.
EXTRA PATRIMONIUM. Patrona. A woman who manumitted her slave, a
Pfaff, Zur Lehre v o m Vermifgen, Fschr Hanausek 1925, patroness of a freedman. See PATRONUS.Marriage
89; M. F. Lepri, !7aggi sul patritfzotzio 1 (1942) ; Albanese,
between a freedman and his patroness was prohibited.
Successione eredipria, AtzPal 20 (1949) 135; Scherillo,
Leziotzi I. Le rose (1945) 4. Patronatus. The relationship between the former
Patrimonium Caesaris (principis). Under the Princi- master*and his freedman. See PATRONUS, IUS PA-
pate the crown property of the emperor, inherited TRONATUS.In a broader sense, patronatus refers to
from his predecessor and left by him to his successor. any relationship between a person (patronus) who
I t gradually assumed larger and larger dimensions protects (defends) another and the protected person.
through inheritances, purchases, and confiscations It refers also to a legal adviser (lawyer) of a party
(see BONA DAMNATORUM) and was administered by to a trial (patronus causae).-D. 37.14; C. 6.4.-See
procuratores patrimonii. Transfer of objects belong- PATROCINIUM, CLIENTES, IUS APPLICATIONIS.
ing to the patrimoniuwz through sale or donation was Patronus. The master of a slave became after manu-
admitted. I n the later Empire the official term was mitting hinl the patronus of the freedmqn (libertus).
sacrum patrimonium. A comes sacri patrimonii was The freedman had various duties towards his manu-
at the head of the administration. The distinction missor; see OBSEQUIUM, REVERENTIA. "The person
between the patri~noniumprincipis and the privy purse of a patron should always appear honorable and
of the emperor (RES PRIVATA PRINCIPIS)was in the sacred to the freedman and his son" ( D . 37.15.9).
later Empire not so precisely observed as it was The freedman had to abstain from accusing the patron
before and revenues of the patrimoniam principis of criminal doings and from suing him with actions
went to the private property of the emperor. Many which involved infamy (actiones fnmosne). H e
details are still doubtful and the frequent changes in could, however, sue him by permission of the praetor.
the administration of the pertinent funds and lands For the obligation of the freedman to render certain
do not facilitate a neat distincton. The general tend- services to the patron, see OPERAE LIBERTI,I URATA
ency was to attribute as much as possible to the em- PRoafrssIo LIBERTI. Between the patron and his
peror. The adj. patrintonialis refers in the later freedman there was a reciprocal obligation of main-
Empire to persons and land pertaining to the sacruw tenance in the case of poverty. The patron had
patrimonium (coloni, fundi, agri, patrimoniales) .- certain rights of succession to the inheritance of his
C. 1.34; 11,6245.-See RES PRIVATA PRINCIPIS, RATIO freedman (see BONORUM POSSESSIO INTESTATI)a nd
PRIVATA, FUND1 PATRIMONIALES. he could demand the rescinding of alienations and
Lbcrivain, D S 4 and 3, 961; Orestano, N D I 9, 515; 0. other dispositions made by the freedman with the
(1905) 1 ; L.
Hirschfeld, Kaiserliche Vcrzoal~~r~r~~sl~eatntel purpose of defrauding the patron of his rightful
Mitteis, Ronz. Privatrerht 1 (1908) 358. inheritance (see ACTIO CALVISIANA). If a freedman
Patrocinari. T o give protection, to defend by legal who had no children or had disinherited them, did
remedies. not in his will reward his patron or his patron's sons,
Patrocinium. Patronage, protection, a relationship be- the praetor granted the patron a bonorum possessio
tween two persons in which one, the patronus, grants contra tabulos of one half of the freedman's property.
protection to the other. Potrociniui~ais also used of Marriage between a freedman and his patroness
the legal assistance given to a party in a trial by an (patrons) or with his patron's daughter was pro-
atlvocate. hibited. After the death of the patron, the patronate
Kornernann, R E Suppl. 4. went to his heirs, the patron might, however, assign
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIOINARY O F ROMAN LAW
the freedman to one of the heirs, see ADSIGNATIO ture a tendency to deny Paulus' authorship of a
LIBERTI.-D. 37.14; 38.1-3; C. 6.3-7.-See IUDICIU~~ number of writings, a tendency which is not free
OPERARUM, INCRATCS LIBERTUS, BENEFICIUhI COM- from exaggeration. For his Sententiae, see SENTEN-
PETENTIAE, LIBERTUS (Bibl.) . TIAE PAULI. Paulus was not an uncritical compiler;
La Pira, S t ifal. di filol. clas. 7 (1929) 145; J. Lambert, he often expressed opinions of his own and some of
Les operae liberti, 1934; .4. A. Schiller, Legal Essays ifi his critical remarks, in particular on the decisions of
tribute to 0. K . McMt~rray, 1935, 623; Kaser, Z S S 58 earlier jurists, give evidence of the sagacity of his
(1938) 88; K. Harada, ibid. 138; C. Cosentini, S t sui
liberti 1 (1948) 69, 2 (1950) 11. juristic thinking.
Berger, R E 10, 690 (s.v. Iulius) ; idem, O C D ; Orestano,
Patronus causae. Syn. ADVOCATUS. N D I 9 (s.v. Paolo) ; Kiibler, Lehrbuch der Gesch. des
Patronus clientis. See CLIENTES. r.R., 1925, 283; C. Sanfilippo, Pauli Decretorum libri tres,
Patronus civitatis (coloniae). See PATRONUS M U N I - Pubbl. Fac. Giur. Catania, 1939; De Robertis, R I S G 15
CIPII. (1940) 205; Scherillo, St Solazzi 1948, 439.
Patronus collegii. An honorary protector of an asso- Pauperes. Poor people. From the time of Nerva
ciation, usually a magistrate or an imperial official. Roman emperors ordered that public care be taken
In the later Empire associations concerned with the of children of poor parents and-that nourishment be
provision of food for Rome were supervised by provided them from public funds.-See PAUPERTAS.
patroni who were members of the associations. J. J. Esser, De paupertrn~ ctcra apud Romanos, 1903; A.
Lecrivain, D S 4, 359; W . Liebenam, Geschichfe u ~ t dOr- Miiller, Jugendfiirsorge in der rom. Kaiserzeit, 1903;
gagtisation des roll$. Vereinmvseris, 1910, 212. Biondi, Ius 3 (1952) 233.
Patronus fisci. See ADVOCATUS FISCI. Pauperies. See ACTIO DE PAUPERIE.
Patronus municipii (civitatis). llunicipalities used Paupertas. Poverty. I t was an acceptable excuse
to place themselves under the protection of one or from guardianship and also ground for exclusion from
more powerful persons (senators, ex-magistrates) being- an accuser in a criminal matter.-See PAUPERES.
who were selected (adoptare, later cooptare) by the Pax. Peace. A state of war between Roman and
municipal council and given the title patronus. The another state was normally ended by an armistice
pertinent decree was engraved on a bronze tablet (indutiae). Peace, pia et aeterna pax ( = a pious
(tabula patronatus) in two copies, one for the pa- and eternal peace), was achieved by a special, sol-
tronus, the other for the municipality. The patronage emnly enacted treaty, foedus, which might not only
was hereditary. The patronus defended the interests establish peaceful relations between the former bel-
of the municipality in public and private matters, ligerants but also arnicitia ( = friendship) and even a
subsidized the construction of monuments and public community of political interests (societas, see SOCII).
buildings, etc. The patronage of a colony was similar. The conclusion of a peace treaty was in the compe-
Kornemann, R E 16, 625; LCcrivain, D S 3, 299; Mommsen, tence of FETIALES or special embassies; the consent
Jurist. Schriftetz 1 (1905) 237, 345; Thouvenot, C R A I of the people and the senate was required. Under
1941, 133; 1947, 485. the Empire it was the emperor who concluded peace.
P a t r o n u s provinciae. Some provinces had a pro- Gaius (Inst. 3.94) mentions as the form for the con-
tector, patronus, who in case of abuse by a provincial clusion of peace the sponsio, an exchange of a ques-
official intervened with the Roman 'authorities in tion (pacem futuranz spondes?) and answer (spon-
order to obtain the prosecution of the wrongdoers. deo) between the emperor and the sovereign bf the
The patron was a distinguished and influential person other state.-See SPONSIO, AMICITIA,AMICUS POPULI
of the Roman nobility, often a descendant of the con- XOMANI.
queror of the province. D e Ruggiero, D E 2, 767; H . IKvy-Bruhl, Quelques pro-
Pauliana actio. See FRAUS. bl2mes du tris ancien dr. rom., 1934, 40.
Paulus, Iulius. A famous jurist whose prolific literary Peccatum. I n classical law a violation of a somewhat
activity (about 320 libri) gave Justinian's compilers criminal nature of a legal norm. A neat distinction
the opportunity to excerpt his writings very exten- between the term and crimen or delictum can hardly
sively for the Digest. The dates of his birth and be established. I n Justinian's law peccatum is not
death are unknown. H e was a member of the im- only a violation of human laws but also that of an
perial council under Septimius Severus and Caracalla, ethical norm.
and praefectzls praetorio under Alexander Severus. G. Segri., S t Ro~tfatzte3 (1930) 515; Roberti, S t Calisse
His works were written in the first decades of the 1 (1940) 161.
third century. H e was the author of an extensive Peculatus. Misappropriation of things belonging to
commentary on the praetorian Edict (in 80 books) the state, embezzlement of public money. Hence
and a treatise on ius civile (ad Sabinurn, in 16 peculatus is also named furturn peczlniae publicae,
books). Among his writings are also commentaries furtuln publicurn. A commanding general who ap-
on works of some earlier jurists and a great num- propriates the booty taken from the enemy or the
ber of monographs on various topics of public, fiscal, money obtained from its sale (manubiae) to his own
private, and criminal laws. There is in recent litera- profit was guilty of peczilatus. Augustus' Lex Iulia
624 ADOLF BERGER [TRANS.A M E R . P H I L . S O C .
Decttlatus, still in force in Tustinian's time. was the his enrichment). Both these actions, which were
basic s t a k e on the matter : "NO one should intercept introduced by the praetor, belong to the so-called
or appropriate any sacred, religious, or public money actiones adiecticiae qualitatis (see EXERCITOR NAVIS).
for his own profit unless he is permitted to do so -D. 15.1 ; 2 ; C. 4.26; 7.23.-See A C T I ~TRIBLTORIA,
by law" ( D . 48.13.1). The statute also defined LEGATUM PECULII,MERX PECULIARIS, and
the fol-
peculatus as a case in which a person "added any- lowing items.
thing to (alloyed) or mixed with, gold, silver, or V. Uxkull, R E 19; Anon., NDI 9; L. Lusignani, Con-
copper belonging to the state" (D. ibid.) , to the detri- sumaziorze jrocessuale dell'actio dc peculio, 1899 ; idem,
ment of the state. A particular form of embezzle- Ancora bztorno alla cotlsumaziotle, etc., 1901; Solazzi,
StSen 23 (1905) 113; idem, St Fadda 1 (1906) 347; idem,
ment occurred when a person who had received money St Brugi (1910) 203; idem, BIDR 17, 18, 20 (1905-1908) ;
from the treasury for a specific purpose did not spend Seckel, Fg Bekker 1907; L. LemariC, De l'actio tributoria,
the money thereon (pecuniae residuae). Later im- These Paris, 1910; Buckland, LQR 31 (1915) ; G. Longo,
perial legislation increased the penalties for peculatus ; A G 96 (1928) 184; idem, BIDR 38 (1930) 29; idcnz,
SDHI 1 (1935) 392; G. Micolier, Picrtle et (ajacitt!
Justinian ordered deportation or the death penalty, patrimoniale, ThPse Lyon, 1932; E. Albertario, S'ttrdi 1
according to the gravity of the case.-D. 48.13; C. (1933) 139; Biscardi, StSetz 60 (1948) 580; G. E. Longo,
SDHI 16 (1950) 99.
CULATUS, RESIDUA, PRAEDA.
Peculium adventicium. Used in the literature for
Brecht, RE Suppl. 7; Cuq, DS 4.
everything that a filius fawzilias acquired through his
Peculiaris. Connected with, or pertaining to, a PECU- own labor or the liberality of a third person ( a dona-
LIUM. Res peculiares = things belonging to a pecu- tion, a legacy). According to Justinian's law such
liu~a,such as money, claims, goods, business equip- acquisitions remained the son's property, the father
ment, and the like. Peculiari nomine, peculiariter having only a usufruct on it. : h t . peculzuwt pro-
= (to hold a thing) as belonging to a peculiuwz, or fecticiuln ('term not Roman), the normal peculiurn
(to buy one) from the means of the pecu1ium.-See granted by a father to his son (a pafre profectrlllz =
MERX PECULIARIS. coming from the father).
Peculium. A sum of money, a commercial or indus- Peculium castrense. Everything that a filius fairfilias
trial business, or a small separate property granted earned or acquired from, or during, his military
by a father to his son or by a master to his slave, for service (in castris). From the time of Augustus he
the son's (or slave's) use, free disposal, and fructi- was permitted to dispose of it by testament. Hadrian
fication through commercial or other transactions. extended this privilege to soldiers discharged from
The origin of the institution is to be found in the service and veterans. The peculit~l~zcastrense em-
increase in the econon~icneed of the Roman citizens braced the gifts which the soldier received when he
to use the services and activity of the persons under entered service and inheritances received from fellow
their paternal power and of their slaves able to de- soldiers. Later, a flius fawzilias might freely dispose
velop independent business activity in the interest of of his peculiuwz castrense since "with regard to it
the family group and its head. The peculiuwz re- he acts as a head of a family (pater fatnilias)," D.
mained the father's (master's) property, but was 14.6.2.-D. 49.17; C. 1.3; 12.30; 12.36.
separate from his own property; the son (the slave), Cagnat, D S 4; v. Uxkull, RE 19, 15; H. Fitting, Das
however, had the right to administer the separate p.c in seiner gesch. Entwicklung, 1871 ; Appleton, N R H D
fund or business and dispose thereof through various 35 (1911) 593; E. Albertario, Studi 1 (1933) 159; A.
transactions (not by donations). I n Justinian's law Guarino, BIDR 48 (1941) 41; Daube, St Albertario 1
(1952) 435.
the free administration of the peculium (libera ad-
wzinistratio peculii) had to be conceded expressly. Peculium paganum. The name given by Justinian to
A n existing peculiuwz could be increased (augeri) by an ordinary peculiuln, as distinguished from prctlliwn
additional funds or goods, diminished (wzinui) or castrense and peculium quasi castrense.
fully withdrawn (adirni) by the grantor. The con- Peculium profecticium. See PECULIUM ADVENTICIUM.
cession of a peculiuwz by a father (master) created Peculium quasi castrense. Everything that a filius
on the part of the grantor a civil liability for debts faqvtilias earned as a public official, as a lawyer, in
and obligations contracted by the son (slave) in the service of the Church, or by the liberality of the
transactions concluded with third persons. This lia- emperor or empress. The legal situation of a pecu-
bility was, however, restricted to the pecuniary value lium quasi castrense was the same as that of a pe-
of the peculiuwz (duwztaxat de peculio), after deduc- culiurn castrense.
tion of whatever the son (slave) owed to his father Uxkull, RE 19, 16; Orestano, AilMac 11 (1937) 118;
(master). The creditors of the peculiu?lt had a direct Archi, St Besta 1 (1939) 121.
action against the father (master), actio de peculio; Pecunia. Money. Originally the term denoted prop-
or, when the father (master) had a special profit from erty in cattle (pecus), as distinguished from other
the transaction concluded with the manager of the kinds of property ; see FAMILIA. I n classical language
peculiurn, an action called actio de in rern verso (for "the term pecunia comprises all things, both movahles
ADOLF B E R G E R
tance it is said (D. 41.1.34) that "it represents the Peto. ( I n the forn~ulaof a fideico~nwissrc~tr.) See
person of the defunct, not of the heir." FIDEICOMMISSUM.
Perterritus. Frightened. The tern1 is used of a per- Philosophi. Philosophers were exempt from the duty
son who acted wzetzt (= under fear).-See METUS. of assuming a guardianship. They were not reckoned
Pertinere a d aliquem. T o belong to a person as his anlong the professors and therefore they could not
property. The verb is used "in a very broad sense sue for a salary (see IIOXORARIUM) ; "they despise
. . . it applies also to things which we possess under mercenary services" (D. 50.13.1.4).
any title, although we have no ownership over them ; Piaculum. ( I n later imperial constitutions.) A crime
we also say pertineve of things which are neither in which required expiation (punishment). Pinrltlrli~z
our ownership nor possession but may become such" is also an expiatory sacrifice.
(D. 50.16.181), as, e.g., an inheritance "pertinet" to Piae causae. Pious, charitable purposes. Gifts to
the heir although he did not yet enter it. The phrase charitable institutions (foundations), such as orphan-
"is ad qzteln ea rcs pertinct" may indicate a person ages, hospitals, poorhouses, alinshouses for old people,
who is interested in. or concerned with. a certain and the like, were favored by Justinian's legislation.
matter. Pertinere ad aliqitem denotes solnetin~esa Such institutions were administered by directors who
legal or moral duty of a person ; when connected with were considered temporary and limited owners and
a magistrate or a judge, it refers to his official duty. were' authorized to appoint their own successors.-
Pervenire ad aliquem. What someone has obtained, See LEX FALCIDIA.-C. 1.3.
gained (fro111 another's property or to another's detri- Saleilles, Mhl Gkrardin 1907, 513; Cugia, S t Fadda 5
(1906) 229; A. Sarrazin, Etudes sirr les fondafioits, ThPse
ment). The term is important in the law of succes- Paris, 1909; P. W. Duff, Charitable foxndotioits of Bvzn~t-
sion since, in certain instances, the liability of the ti~rm,Cambridge Legal Essays prcsctrted to Bond, Bitck-
630 ADOLF BEKGER (TRANS. AMER. P H I L . SOC.
land, 1926, 83; idcrrt, personal it^^ in R . prkfate Ia~v,1938, Pignoris causa indivisa est. A thing given a creditor
203 ; L. Schnorr v. Carolsfeld, Gesclt. der juristiscl~en Per- as a pledge remains pledged until the debt is paid
son, 1 (1933) 15; J. hl. Casoria, De personalitate juridica in full.-See PIGNUS.
piarrirn causartrrn, (Naples) 1937; Bruck, Serrt 6 (1948)
18; Philipsborn, RIDA4 6 (1951) 141. Pignus. Both the thing given as a real security
Pictura. A picture, a painting. The controversial (pledge) to the creditor by the debtor and the per-
question whether a painting made on another's mate- tinent agreement under which the security was given
rial (tabttla) becan~ethe property of the owner of (pignerare, pignori dnre, pignus obligare). The
the material or ot' the painter was later decided in agreement was a contract concluded re, i.e., by the
favor of the latter. H e had, however, to compensate delivery of the pledge to the pledgee. Pigntrs implies
the owner for the material used. the transfer of possession (not ownership) of the
Bortolucci, B I D R 33 (1923) 151; idem, Pubbl. C'ttiz8.J f o - thing pledged to the creditor (creditor pigneraticius)
dcna 30 (1928) 14; Nardi, A G 121 (1939) 129; idem, St who held it until his claim was fully satisfied, see
srclla ritenzior~c,1947, 339. PIGNORIS c.4us.4. During this time he was protected
Pietas. Dutifulness, respectful conduct, sense of duty, in his possession of the pledge by possessory inter-
affection towards gods, parents, or near relatives; in dicts; see INTERDICTUM.For the rights of the
general noblemindedness, honest way of thinking. pledgee, see IUS DISTRAHENDI, HYPEROCHA, LEX COM-
"It is to be held that we are unable to commit acts MISSORIA, IMPETRATIO DOMINII. AS a matter of rule,
which injure our dutiful conduct (piefas), our repu- the creditor had no right over the proceeds (fruits,
tation (e.risti~t~atio),
our moral way of thinking, and rents, etc.) of the thing pledged unless it was agreed
generally speaking, are contrary to good customs." that he might take them as interest (see ANTICHRESIS) .
This saying is by Papinian (D. 28.7.15). Although Nor could the pledgee use the thing pledged. "A
heavily criticized and frequently ascribed to Jus- creditor who illakes use of the pledge commits a
tinian's compilers, it expresses a late classical idea. theft" (Inst. 4.1.6). The pledger could sue the
-See INTUITU. creditor for restoration of the pledge when he had
Koch, R E 20; H. Kriiger, Z S S 19 (1898) 6 ; Guarneri- fulfilled his obligation or when the deht was extin-
Citati, Indicez (1927) 66 (Bibl. for interp.) ; Rabel, St
Bonfante 4 (1930) 295; Th. Ulrich, P. als politischer Be- guished (for instance, when the proceeds of the thing
griff, 1930; E. Renier, E't sur l'histoire de la querela inof- had been taken by the creditor, in accordance with
ficiosi testantct~ti,1942, 61 ; Riccobono, Lineamenti (1949) an agreement with the debtor, and they exceeded both
71. interest and the principal). The same action, actio
Pietas. An honorific title of the emperors. From the pigneraticia, lay against a creditor through whose
time of Diocletian they used to speak of themselves fault the thing perished or deteriorated. O n the other
as "pietas nostra" tea) . hand, the pledgee had an action against the pledger
Pigneraticius creditor. A creditor who accepted a (actio pigneraticia contraria) for damages caused by
pledge from his debtor as a security. Pigneraticius the thing pledged through the fault (culpa) of the
jundtls = land given as a security (pignori datus). pledger, and for reimbursement of necessary ex-
For actio pigneraticia (iudiciztm pigneraticiuiit ) , see penses (inzpensae necessariae) incurred in the care
P I G N u S . - S ~ ~EXCEPT10 PIGNERATICIA. of the pledge. Pignus differed from other types of
Pigneratio, pignoratio (pignerare). Handing over security, FIDUCIA and HYPOTHECA, in that by fiducia
a thing to one's creditor as a pledge.-See PIGNUS. ownership was transferred to the creditor, and by
Pignoris capio. (By a magistrate.) Taking a pledge lzypotheca the thing was not handed over at all,
from a person who did not obey the magistrate's whereas through pignus only possession of the yes
command. This was one of the means of the coercive pignorata was conveyed to the creditor. In Jus-
power of a Roman magistrate (COERCITIO).Origi- tinian's law the differences between pignus and lzypo-
nally the thing was destroyed (pignus caedere), later theca were abolished.-D. 20.1 ; 3 ; 6 ; C. 8.13-32.
it was kept by the magistrate as pressure on the dis- For actio pigneraticia D. 13.7; C. 4.24.-See PRIOR
obedient citizen. This might finally lead to the sale TEMPORE, V I N C U L U M PIGNORIS.
of the thing or to restoration to the owner in case he Manigk, R E 20; Humbert and Lecrivain, D S 4; Pagge,
submitted. Syn. pignoris captio. N D I 9 (s.v. pegno) ; Berger, OCD (s.v. security) ; T . C.
Steinwenter, R E 20, 1231. Jackson, Justinian's Digest Book X X m'th Engl, transla-
tion, 1909; E. Rabel, Die Verfug14ngsbeschrankungen des
Pignoris capio. (Through judicial proceeding.) A Verpfanders, 1909; E. Weiss, Pfattdrechtliche Untersuchun-
way of executing a debt due, see LEGIS ACTIO PER gen, 1-2 (1909, 1910) ; F. Messina-Vitrano, Per la storia
PIGNORIS CAPIONEM, PIGNUS. Tax-farmers had the del ius distrahendi nel pegno, 1910; M . Fehr, Beitrage zrtr
right to take a pledge from a tax-debtor through this Lehre vow Pfandrecht, Uppsala, 1910; Biondi, AnPal 7
(1920) 233; U. Ratti, Sull'accessorieta del pegno, 1927;
legis actio. I n the provinces they could do so in Grosso, A T o r 65 (1929-30) 111; E. Volterra, Pegtzo di
simpler extrajudicial proceedings. cosa altrui, 1930; S. Romano, Appunti sul pegno dei frutti,
Steinwenter, R E 20, 1235; Carcaterra, AnBari 5 (1942) ; AnCam 5 (1931) ; La Pira, StSen 47 (1933) 61 : idem,
Hill, AmJPhilol 67 (1946) 60; M. Kaser, Das altromische S t Cammeo 2 (1933) 1 ; idem, S t Ratti 1934, 225; E. Car-
Ius, 1949, 205. relli, S t sull'accessorietd del pegno, 1934; Carcaterra,
VOL. 43, PT. 2 , 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F R O M A N LAW
A n c a m 12, 2 (1938) 51; Arnb, A T o r 75 (1939-40) ; ward's claims. Justinian granted legatees and fidei-
Rabel, Sent 1 (1943) 33; Kreller, Z S S 64 (1944) 306; commissaries the same right o17er the things belong-
Bartoiek, B I D R 51-52 (1948) 238; Provera, S t S o l a z i ing to the estate. The privileged position of the fisc
1948, 346; Koschaker, Scr Ferrilti 3 (Univ. Sacro Cuore,
Milan, 1948) 232. with regard to its debtors from contracts or for taxes
Pignus Gordianum. According to a reform of the is designated as velut iure pignoris, pignoris ?ice.-
emperor Gordian (A.D. 239) a creditor who had sev- D. 20.2; C. 8.14.
gans (apparitores). I n Justinian's law this kind of Pirata. A pirate. There was no special law concern-
execution was extended to all condemnatory sen- ing robbers on the high sea. They were punished
tences if the defendant refused to fulfill the judgment with death by the naval c o n ~ n ~ a n dwho
e r was engaged
voluntarily. in a fight against them or by the provincial governor
Manigk, R E 20, 1273; P. Dienstag, Die rechtliche Natrtr to whom they were handed over. A theft committed
des p.i.c.i.c., 1908; Sanfilippo, S t Riccobono 2 (1936) 521. during an attack of pirates was subject to a fourfold
Pignus nominis. A pledge the object of which is the penalty.-See LEX GABINIA DE PIRATIS.
debtor's claim (nomen) against a third person. The Krol,l, R E 2,4, 1042 (s.v. Secrnlrl~); Cary, O C D ; Lkcri-
uti1is.-See ACTIONES UTILES. rain, D S 4, 487 ; Ormerod, Prracy in nnricrrt zcvorld, 1924;
Levi, Riv. di $101. ed istr. classics, 2 (1924) 80; Riccobono,
creditor might sue the debtor's debtor by an actio F I R la, 1941, 121 (Bibl.); Jones, J R S 16 (1926) 155.
Pignus pignori datum. Named in literature by the Piscari (piscatio). Fishing in the sea and in public
non-Roman term subpignzrs, this occurs when a
streams (see F L U M I N A PUBLICA)
\\,as free ; the fisher-
creditor who received a pledge from his debtor gave man acquired ownership of the fish caught as of a
it in turn to his own creditor as a pledge. res nlrllius (see OCCUPATIO), unless a special and
Pignus praetorium. A pledge taken by the creditor exclusive right uf fishing was conferred by the com-
upon order of a magistrate; see PICNUS I N CAUSAM petent authorities to individuals or groups (conduc-
IUDICATI CAPTUM.The MISSIONES I N POSSESSIONEM
tores piscatirs) through a lease. There was appar-
had a similar function. I n Justinian's language pig- ently a tendency to protect the rights of professional
nus praetorium is "a pledge which is given by the fishermen. Fishing in private lakes or fish-ponds
iztdices." By this phrase the ~rzissiones are meant. (piscina) depended upon the pern~issionof the owner.
-C. 8.21. -See PORTUS. PISCATORES.
S. Solazzi, Concorso dei creditori 1 (1937) 208; Branca,
StUrb 1937, 105; M . F. Lepri, Note sulla nafura giuridica Kaser, RE Suppl. 7, 684; Lafaye, D S 4 ; Longhena, N D I
delle missioites, 1939. 11, 107; Rostow7ew, DE 2. 593: Bonfante, Corso 2, 2
(1928) 61 ; Lombardi, B I D R 53-54 (1948) 339.
Pignus publicum. (A non-Roman term.) A pledge
Piscatores. Fishermen.
constituted in a document (insfrttmentum) made be- Stockle, R E Suppl. 4, 460 (s.w. F i s c - l r c r c i ~ n c ~ c; ~Xi.
l~~)
fore a public official (publice confectum). I t was Bfaxey, Occu~atiortof the lorc~erclnsscs in Rornau society,
recognized as valid in a late imperial constitution Chicago, 1938, 12.
(A.D. 472). Justinian permitted setting up a pledge Pistores. Rakers. Under the empire the bakers of
in a private document, signed by three witnesses Rome were organized in an association. Their pro-
(instrumentunc quasi publice confectunt) . fession enjoyed particular protection by the authori-
Pignus rei alienae. A pledge of a thing which does ties; occasionally its exercise for a few years was the
not belong to the debtor. ground for granting Roman citizenship to a foreigner
Pignus taciturn (tacite contractum). See HYPO- ( a Latin). Bakers were exempt from the duty to
THECA TACITA. Certain specific claims involved a assume guardianship. Bakeries were under the su-
right of pledge (ius pignoris, hypotheca) under the pervision of the office of the pvncf~cfits onnonac.
law over the property of the debtor. An agreement The introduction of gratuitous tlistribution of h e a d
between the parties was not necessary. Thus, for to P O O ~ people by the emperors, and later, the sale
instance, a person who lent nloney for the construc- of bread at a low price contributed to giving the
tion or repair of a building or of a ship had the right I~akersthe character of puldic servants. Later im-
of pledge on the building or ship; from the time of perial legislation (C. Theod. 14.3) dealt frequently
Constantine the property of a tutor or curator was with the pi.rtorrs and their legal status and privileges.
charged with a general hypothec in favor of the Their union was calletl corpirs or ordo pistorir~rtand
632 ADOLF BEKGER [TRANS. AMER.
PHIL. SOC.
their task con~prisedthe baking of bread and its dis- Plautius. A jurist of the first post-Christian century.
trihution and sale.-C. 11.16. I l e is known only fro111comnlentaries written by later
Hug, R E 20; Besnier, D S 4; G. Gandi, Pis(orcs. Note jurists (Neratius, Pomponius, Javolenus, Paulus) on
storico-corporafive sui panificatori, 1931. his work which apparently dealt primarily with the
Pithana. Plausible, persuasive topics. This was the praetorian law. The attention paid by the classical
title of a collection of decisions in individual cases jurists to Plautius (Paul's conjmentary had no less
I)? Labeo. The work is known only from an epitome than 18 books) is evidence of the great esteem
by Paul. Plautius enjoyed with the later jurisprudence.
Jors, RE 1, 2551; Berger, R E 10, 723. Berger, O C D ; idcm, R E 10, 710; 17, 1835; Siber, R E 21
Pittacium. X term of Greek origin used in later im- (no. 60) ; Orestano, N D I 9; Riccobono, B I D R 6 (1893)
perial constitutions. A tablet, a short note. I t was 119; Ferrini, Opere 2 (1927, ex 1894) 205.
used in the administration of food supply for the Plebeii. See PLEBS,PATRICII.
ariny. Plebiscitum. A decision, decree or legislative measure
Placentinus. A glossator of the twelfth century. H e passed by the assembly of the plebeians (concilia
died in 1192. H e was the founder of a law school plebis). Originally the gatherings of the plebeians
in 1Iontpellier.-See CLOSSATORES. dealt only with matters which concerned the plebe-
Kuttner, NDI 9, 1118; P. De Tourtoulon, Placc)ttitt, 1876; ians. The most important matter was the election
H. Kantorowicz, Jortr Warbrrrg Ittst. 2 (1938) 22 ; Zanetti, of plebeian magistrates (fribztni, aediles plebis).
A G 140 (1951) 72. Later, the competence of the concilia plebis were
Placere. Placet, when referring to an individual jurist, on legislative enactments. F~~the histori-
is used for introducing his personal opinion. Placet cal development which finally the legal force
wihi = in my opinion. Placz~it,without reference to of plebiscita equal to that of leges passed by
a specific jurist or jurists, indicated the opinion of ,,,,itia of the R~~~~ people), see LEX VALERIA
several jurists which prevailed over the opinion of HORATIA, LEX PUBLILIA PHILONIS,LEX HORTENSIA,
other jurists. Syn. obiinitit. Plaruit principi refers LEX,CONCILIA PLEBIS,and the following
to an imperial decision or enactment.-See CONSTI- itenl.
TCTIONES PRINCIPUM. Siber, R E 21 ; Fabia, D S 4 ; Tilman, Muske Bclge, 1906;
Placitum. What private individuals agreed upon, an Baviera, St Brugi 1910; Guarino, Fschr Schuls 1 (1951)
agreement. The term is less frequently used than 458; Biscardi, R H D 29 (1951) 153.
its syn. PACTUM. With reference to legislative pro- Plebs. The great "bulk of the people" (nzultitudo)
visions placittctn denotes either a statutory norm .opposed to the noble families. I n the technical mean-
(placitztlr~ lcgis) or that of an imperial constitution ing plebs denotes a social class (group, "order") of
(placitrrii~principis). the free population of Rome, distinguished from the
Plagiarius. One who committed the crime of plagium, patricians (see PATRICII). The uncertainty of the
a kidnapper. Syn. p1agiator.-See PLAGIUM,LEX sources made of the origin of the plebs one of the
FABIA DE PLAGIARIIS. most controversial questions of early Roman history.
Plagium. The legal rules concernifig the crifnen plagii Originally the plebs probably consisted of various
were settled in the LEX FABIA de plagiariis which re- elements, such as the population of the surrounding
lllained in force in Justinian9s legislation, with some territories conquered by Rome, clients (see CLIENTES)
alterations introduced by the legislation of the em- of patrician families, who lost the protection of a
perors and the interpretation of the jurists.--D. noble gens, and foreigners who came to Rome as
48.15 ; C, 9.20.-see LEX FABIA,VINCULA,SUPPRI- workers or to exercise a small commerce. In histori-
M E R E , SUSCIPERE SERVUM. cal times the plebeians appear already as Roman
Berger, R E Suppl. 7, 386; Brecht, RE 20; LCcrivain, D S citizens although not enjoying full political and civil
4; Niedermeyer, S t Bonfante 2 (1930) 381; Lardone, Univ rights of the privileged social group, the patricians.
~ e t r o i t~ a Jw 1 (1932) 163; Lauria, AnMac 8 (1932) ; The plebeians were excluded from magistracies and
Berger, B I D R 45 (1938) 267.
priesthood, and marriage between patricians and
Plane. Certainly, to be sure, of Course. The particle plebeians was prohibited. During the first two ten-
was often used by the compilers to introduce an ex- tUries of the R~~~~ ~ ~ ~there ~ wasb a lcontinuous
i ~
plallatory or restrictive remark, mostly of a harmless struggle between the two classes during which the
nature. plebs gradually obtained the right to have magistra-
Guarneri-Citati, Indice' ( 1927) 66 (Bib].). cies of their own (tribuni plebis, aediles plebis) and
Plants. A plant Put in another's ground became Prop- the admission to magistracies and positions formerly
erty of the land-owner, provided that it had taken reserved for the patricians. For details, see PATRICII.
root there. See also PLEBISCITUM and the related items. Under
Plantare (plantatio). See PLANTA, SUPERFICIES CEDIT the Empire the distinction piebeii-patricii acquired a
SOLO,SATIO. quite different significance. Plebs generally refers to
Planum. See DE PLANO. the lower classes of the population without specific
vor.. 43, LIT. 2, I Y S ~ ] E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 633
connotations and is opposed to persons of senatorial some losses because of the unnecessary delay of the
or equestrian rank, to the classes of officials or wealthy trial. In Justinian's law the plaintiff lost the case
and influential persons; see HONESTIORES, HUMI- only if he maliciously persisted during the whole trial
I,IORES, POTENTIORES.--SeePATRICII (Bibl.) , TRAN- in his overclaim.-C. 3.10.
SIT10 AD PLEBEM. Schnorr v. Carolsfeld, R E 21; P. Collinet, La pvocddure
Siber and Hoffmann, RE 21 (Bibl. 102) ; Lkcrivain, D S par libelle, 1932, 483 ; Solazzi, S D H l 5 (1939) 231.
Pluvia aqua. Rain water.-See ACTIO AQUAE PLUVIAE
4 ; Di Marzo, N D I 9 ; Momigliano, O C D ; Vassalli, StSen
24 (1907) 131 ; J. Binder, Plebs, 1909; Bloch, La plebeARCENDAE, SERVITUS STILLICIDII.
rom., Rev. Historique 106-7 (1910-11) ; Giorgi, S t storici
Poena. Punishment, penalty. Poena is both punish-
per l'antichitb clas. 5 (1912) 249; Rosenberg, Hermes 48
(1913) 359; G. Oberziner, Patriciate e plebe (Pubbl. ment for public crimes (CRIMEN)and pecuniary
penalty to be paid to the person wronged by a private
Arrod. Srietrtif.-Lett., Milan, 1913) ; V. Arangio-Ruiz, Le
gel~tie la rittd, 1914, 64; Piganiol, Essai sur Ies origines
wrongdoing (see DELICTUM).The Roman system
de Rome, 1917, 53, 247; Rose, J R S 12 (1922) 106; Hoff-
of penalties was built up on the conception that
mann, Ncue Jahrburher fur das klos. Alterturn 1938, 82;
F. Altheirn, L e x sarrata. Die Anfange der plebeischenpunishment was of an expiatory and vindictive nature
Orgo~risation (Amsterdam, 1940) ; Last, J R S 35 (1945)and had to serve as a deterrent measure; correction
30; A. Dell'Oro, La formazione della stato patrizio-plebeo,
of the criminal was not taken into consideration.
1950, 59. Hence the death penalty was threatened in most cases.
Plecti. T o inflict a penalty. The term occurs in im- For the various kinds of execution, see CRUX,ANI-
perial constitutions.-See CAPITE PUNIRE. MADVERSIO GLADII, FURCA, CULLEUS, CREMATIO, OBICI
U. Brasiello, La repressione penale, 1937, 223. BESTIIS, DEICERE E S A X 0 TARPEIO, STRANGULATIO,
Plena pubertas. See MINORES. DECOLLATIO, METALLUM. The death penalty was one
Plenus. Full, complete, undiminished. The term is of the capital punishments (poena capitalis, poena
often connected with ius, proprietas, dominiurn, and capitis) which involved either loss of life or only loss
similar words. I t is a favorite adjective in the of liberty or citizenship (see CAPUT). The loss
language of the imperial chancery ; particularly fre- of liberty (see SERVUS POENAE)was connected with
quent are the superlatives plenissit~zusand plenissime. compulsory labor in mines for life (damnatio ad
Plerumque. See INTERDUM. fizetalla, see METALLUM)or in public works (see
Guarneri-Citati, Indice' (1927) 67. OPUS PUBLICUM).For the loss of citizenship see
Plumbatura. Soldering two pieces of metal with lead. DEPORTATIO, RELEGATIO, EXILIUM, INTERDICERE AQUA
The parts thus joined remain distinct and may be ET IGNI. Another group of penalties embraced pe-
separated when belonging to two different owners. cuniary penalties (poena pecuniaria, nummaria) such
Syn. adpl~r~nbatio.-See FERRUMINATIO. as seizure of property (see ADEMPTIO BONORUM, PUB-
Plures rei promittendi (stipulandi). See DUO REI. LICATIO, CONFISCATIO) and fines (see MULTA). Cor-
Plures tutores. See CONTUTORES. poral punishment was not strictly a poena but a
Pluris petitio. See PLUSPETITIO.
coercive measure (cocrcitio) or an aggravation of
Plus. See MINUS.
another kind of punishment (sometimes even applied
Pluspetitio (pluris petitio). Claiming ,more than is
before the capital execution) ; see CASTIGARE, FLA-
due, an excessive claim. A plantiff may overclaim GELLUM,FUSTIS,VERBERA.Imprisonment (see CAR-
( p h s petere) in substance (re) when he claims a CER)was applied as a measure of coercion to enforce
bigger amount than is due to him ; in time ( tempore) obedience to an order of a magistrate. Penalties to
when he claims before the payment is due; in place be inflicted for specific crimes were fixed in the
(loco), when he claims at a place (in a city) other statute which declared the pertinent wrongdoings as
than that where the payment had to be performed a crime to be prosecuted and punished as a crimen
(see ACTIO DE EO QUOD CERTO LOCO); or in cause publicurn, or in imperial constitutions which dealt
(cazrsa) when he claims a certain thing although the with criminal matters. Under the Empire penalties
debtor had the right to chose between two or more were differentiated according to the social status of
things. -According to the classical law, a plaintiff the person convicted (honestiores-hutniliores) , per-
who claimed in the I N T E N T I O of the formula more sons of lower classes being exposed to severer penal-
than he was entitled to, lost the case definitely. His ties ; in certain cases in which the honestiores (poten-
claim could be restored, however, by a RESTITUTIO I N tiores) were punished only by banishment, the hu-
INTEGRubr in circumstances in which this remedy was wziliores suffered the death penalty. Later imperial
available. -An overstatement in the part of the for- legislation introduced manifold reforms both in the
mula called DEMONSTRATIO did not produce the loss system of penalties and their applicability. Some of
of the case for the plaintiff. After the abolition of those reforms were of a short duration since the
the formula-regime the pluspetitio lost its actuality. emperors often modified the innovations of their
Imperial legislation modified the severe provisions predecessors. Private penalties which superseded
against overclaims ; the plaintiff was allowed to change private vengeance and retaliation of the earliest law
or limit his claim during the trial, but he incurred (see TALIO),consisted in the payment of a sum of
634 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
money to the person injured by a private crime (de- Poena pecuniaria. A fine, a penalty consisting in the
lictum), :, see FURTUM.RAPINA.INIURIA. The con- payment of a sum of money. The amounts were
denmation for a crimd involved certain other conse- originally fixed in the penal statutes, often in pro-
quences for the culprit although they were not con- portion to the injury caused. The severest form of
sidered a poena in the strict sense of the word; see a pecuniary penalty was the seizure of the whole or
POENA EXISTIMATIONIS, INTESTABILITAS, INFAMIA, of a part of the wrongdoer's property.-See MULTA,
IGNOMINIA.-D. 48.19; C. 9.47.-See moreover IUDI- ADEMPTIO BONORUM, CONFISCATIO, PUBLICATIO.
CIA PUBLICA, QUAESTIONES, COGNITIO, ACTIONES U. Brasiello, La reprcssione penale, 1937, 131.
POENALES. LEGATUM POENAE N O M I N E RELICTUM. Poena sanguinis. See SANGUIS.
COERCITIO, GRAVIS,
and the following items. Poenae temere litigantium. Penalties imposed on
Lhcrivain, DS 4 ; Brasiello, NDI 12 (sistema delle belle) ; reckless litigants, both plaintiff and defendant, who
Buonamici, I1 coltcefto della pena nel dir. giust., St Pessina initiated or continued a trial inconsiderately.-Inst.
2 (1899) 187; E. Costa, Crimini e pene da Romolo a Gius-
tiniano, 1921 ; Jolowicz, The assessment of penalties in
primitive law, Cambridge Legal Essays in honor of Bond, TIONES FAMOSAE, IMPENSAE LITIS, I U D I C I U X CON-
Bi~ckland,etc., 1926, 203 ; Ciulei, Rhein. Museum fur Philo- TRARIUM.
logie 91 (1942) 32; U. Brasiello, La repressione betiale, Poenalis. Connected with (involving) a penalty. See
1937; Levy, BIDR 45 (1938) 57; F. M. De Robertis, ZSS
ACTIONES POENALES. IUDICIA
POENALIA.Callsa boe-
59 (1939) 219; idem, RISG 14 (1939) 30; idem, AnBari
4 (1941) 17, 9 (1948) 1 ; idem, St in dir. penale vom., nalis = a criminal matter (trial).
1943, 101; idem, St Solazzi 1948, 168; idem, La variazione Poenitentia. See PAENITENTIA.
della petla nel dir. rom., Parte generale, 1950. Poetae. Poets. An imperial constitution of the middle
Poena. ( I n the law of obligations.) A penalty agreed of the third century (C. 10.53.3) stated: "Poets are
upon by the parties, to be paid by t h e debtor in the not granted any privileges of immunity" (from public
case of non-fulfillment of his obligation in due time. charges), c'ontrary to teachers and physicians.-See
A penalty clause could be added to any agreement MAGISTRI, MEDICI.
either in the form of a stipulatio (stipulatio poenae) Politio. A contract with a cultivator (politor) who
or of a formless bactum attached to a contractus bonae assumed the task of improving the productivity of
jidei. A penalty clause could be inserted in a testa- land. H e was rewarded with a portion of the pro-
ment to compel the heir to fulfill the testator's orders. ceeds. The agreement was a combination of a hire
-See STIPULATIO POENAE. and a partnership.
Brassloff, Z S S 25 (1904) ; Guarneri-Citati, BIDR 32
(1922) 241; P. Voci, Risarcimento e pew privata, 1939, Polliceri. T o promise. The term refers to promises
185. made both in a solemn form (stipztlatio) and in a
Poena capitalis (capitis). Denotes not only the death formless agreement. In his Edict the praetor used
penalty but also a penalty connected with the loss of the term to announce that in certain legal situations
caput (capitis deminutio maxima and media, see he would grant protection (auxiliuijz) throt~gha pro-
CAPUT),to wit, of liberty or citizenship. Locutions cedural remedy (actio, iudicilliiz, restitutio in inte-
such as capite plecti, puniri, and the like usually refer grutn), or in cases of succession, a B O N O R U M POS-
to the death penalty. Syn. poena vnortis. For the SESSIO.
various forms of execution, see POENA. The death Dull, Z S S 61 (1941) 28.
penalty was normally executed in public, unless exe- Pollicitatio. A promise of a gift in money made to
cution in prison was ordered. The execution of a a municipality by a person who obtained or sought
woman was not public. Execution was performed to obtain an official post in the municipal adtninis-
after the final judgment without delay; the execution tration. Such a promise was considered binding and
of a pregnant woman was postponed until after could be sued for. Another kind of bollicifntio was
delivery. a promise made by a person to a municipality to erect
Latte, RE Suppl. 7 (s.v. Todcsstrafe) ; U . Brasiello, La a construction on a public place ( a monument, a
repressione penale, 1937, 215 and passim. building for public purposes). The promisor was
Poena cullei. See CULLEUS. obligated by such a promise if the construction had
Poena dupli. See LIS INFITIANW. been commenced. H e had to finish the work or to
Dull, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 218. provide the sum necessary for that purpose.--D.
Poena exilii. See E X I L I U M . 50.12.
Poena existimationis. A penalty by which the esteem Anon., NDI 9 ; Brini, MemBol 1908; Ascoli, St Salandra
which a person enjoyed in society was destroyed.- 1928, 215; Archi, RISG 8 (1933) 563; E. Alhertario, St
3 (1936) 237; Villers, RHD 18 (1939) 1 ; Di~ll,Z S S 61
See EXISTIMATIO, INFAMIA,IGNOMINIA. (1941) 19; Biondi, Srr Fcrrini 1 (Univ. Sacro Cuore,
Poena metalli. See METALLUM. Milan, 1947) 131 ; Roussier, RIDA 3 (1949) 296.
Poena mortis. See POENA CAPITIS. Pollicitatio dotis. The constitution of a dowry trough,
Poena nummaria. See N U M M A R I A POENA,POENA a formless promise. A constitution of the emperor
PECUNIARIA. Theodosius I1 (C. 5.11.6, A.D. 428) introduced the
VOL. 43, PT. 2, 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW
pollicitatio dotis and made thus the solemn forms Pontifex maximus. The chief pontiff among the pon-
(dictio dotis, stipulatio dotis) superfluous.-C. 5.11. tifices, the head of the pontificial college. H e was
-S?e PROMISSIO DOTIS. "considered the judge and arbitrator over divine and
Riccobono, ZSS 35 (1914) 270 ; Landucci, A G 94 (1925) 39. human matters" (Festus). The pontifex maxi~nus
Pomerium. The territory of Rome within the original was appointed for life and could not be removed. H e
boundaries (walls) of the city. The pomerium, which was, in fact, the executor of the pontifical power in
from the beginning was somewhat connected with all more i m ~ o r t a n tactions. the other Dontiffs (see
sacral rites, and, later, the territory within the first ~ 0 ~ ~ 1 F I c E s ) ~ ~ e nacted
e r a lasl ~his council. H e ion-
milestones (see MILIARIUM)was the domain of the voked and presided over the comitia curiafa. H e
magisterial imperium domi (see DOMI). The comitia had the power of punishing the members of the pon-
curiata could gather only within the boundaries of tificial college and other priests, as well as the Vestal
the pomerium (intra pomerium), the comitia cen- Virgins (see VESTALES).The dignity of a ponfifex
turiata only outside of it (extra pomerium). The maximus was for a long period the privilege of the
emperors had the power to extend the pomerium ~atricians: the first ~ l e b d a n'bontifex , was - ~ i b e r i u s
beyond its former limits. Coruncanius (253 B.c.) ; see CORUNCANIUS. Under
Besnier, D S 4 ; Severini, N D I 9 ; Richmond, O C D ; 0. the Principate the emperors held the position of the
Karlowa, Intra p. und extra p., 1896; v. Blumenthal, R E
21, 2 (1952) 1867. pontifex maximus.-See LEX PAPIA,REGIA.
Pompa. See OSTENTATIO. G. Wissowa, Religion und Kultus der Riimer, 1902, 437;
M. F . Martroye, Le titre de p.m. et IPS empcreurs chrk-
Bomer, R E 21, 2 (1952) 1978. tiens, Bull. de la Socikth des Antiquaires de France, 1928,
Pomponius, Sextus. A prominent jurist of the time 192; Leifer, Klio, Beiheft 23 (1931) 122; Zmigryder-
of Hadrian and Antoninus Pius (around the middle Kono~ka,Eos 34 (1933) 361: L. R. Taylor, ClPhilol
of the second century). H e is the author of three 1942,227 ; ~ i o fredi,'~ull:
f Commissione archeol. Cowtunale
treatises on civil law written as commentaries on 71 (1945) 129.
works of earlier jurists (ad Quintum Mucium, ad Pontifices. High priests who took care of all matters
Plautium, ad Sabinum), of an extensive commentary connected with religion and public cult. They con-
on the praetorian Edict (known dnly from citations stituted a body (collegium) originally of three, later
by later jurists), and of a series of monographs on of six members (among them was perhaps the king).
various topics (on fideicommissa, on stipulations, on In further development the college of pontiffs had
senatusconsulta). For his brief history of Roman nine members (according to Lex Ogulnia four patri-
jurisprudence, see ENCHIRIDIUM. TWOextensive col- cians and five plebeians) ; their number increased
lections of casuistic material (Epistulae and Variae to fifteen and more. The pontiffs were creators,
lectiones) complete the picture of his literary activity guardians of, and experts in, divine and pontifical
which was abundantly exploited by Justinian's com- law (ius divinum, pontificium) and settled the rules
pilers of the Digest. for sacred rites (ius sacrum). The close connection
Berger, O C D ; Di Marzo, Saggi critici sui libri di Pom- between religion and law in the early Roman state
ponio A d Q . Mucium, 1899; Wesenberg, R E 21, 2 (1952) gave the pontiffs a particular position in legal mat-
2415. ters. They alone knew the law, divine and human
Ponderator. An official weigher who ascertained the (fas-ius), and the legal forms, which, being pre-
weight of money (primarily of gold coins) contrib- served in the archives of the pontifical college, were
uted by taxpayers (in the later Empire).-C. 10.73. accessible to them only. I n view of the fact that
Pondus. The weight.-See RES QUAE PONDERE,NU- formalism was the basic element of early law, the
MERO, etc. Fontifices acquired a kind of monopoly in the knowl-
Pone. (Imperative.) Let us suppose, assume. The edge of legal forms and rules, which through the
locution frequently occurs in juristic writings to in- first two centuries of the Republic remained their
troduce a specific, imaginary instance ("for instance" exclusive possession. Their activity in legal life was
= verbi gratia) for a better understanding of what similar to that of the jurists in later centuries. They
was said before.
advised the magistrates in legal matters and gave
Poners. Sometimes syn. with deponere (pecuniam,
answers (responsa) to juridical questions put before
~nagistratum), sometimes with opponere (e.g., ex-
them by private individuals and helped them in draft-
ceptionem).
Ponere. (With reference to agreements or testa- ing written documents and in the use of procedural
ments.) T o settle, to order, to dispose. and other forms. The Roman calendar was organized
Ponere diem. T o fix a date for the fulfillment of an by the pontiffs; they fixed the days on which trials
obligation or for certain procedural acts in a trial. could not take place. The popular assemblies, comitia
Pons. A bridge. A bridge over a public river (fEumen curiata, were convoked and presided by the highest
publicum) built up by the owner or owners of the priest among the fontific-cs, the j0ntife.r rnaximus,
opposite banks remained private property of the and since several acts connected with the family
builders. organization were performed there (such as adro-
G. Segrb, B I D R 48 (1941) 26. gatio, or a testament), the pontiffs, although primarily
636 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
interested in the sacral rites (sacra) of the family, noniic interests of the state.-See A E R A R I U M POPULI,
acquired a considerable influence in the province of RES POPULI, SENATUS POPULUSQUE R O M A N U S .
family law. The contribution of the pontiffs to the Volterra, StSas 16 (1938) ; G. Nocera, I1 potere dei
development of the Ronian law was considerable. c o m k i , 1940, 15; idem, ArrPer 51 (1946) 153; G. Lorn-
bardi, A G 126 (1941) 198; idern, Concctti fo~rdametrtali
As late as the third century after Christ, the jurist del ius gerrtirtm, 1942, 11 ; Cousin, R e v . Et Latitres, 1946,
Ulpian in the definition of jurisprudence mentions 66.
in the first place the diz~innrlrrr~rcrlllll notitia (See Portae. The gates of a city, They are considered as
IURISPRUDENTIA).-In the enactliients of tlie Chris- REs SANCTAE.
ti011 elllperors pontife-r = bishop.--See PoNTIFEX Portentum (portentosum). A n~onstrousoffspring ;
MAXIMUS,DIES FASTI, C O M M E N T A R I l SACERDOTUM, see MONSTRUM.It was not considered a human
LEX WMITIA,L EX OGULNIA. being, but was reckoned in favor of the mother for
Berger, R E 10, 1159; Bouchk-Leclerccl, D S 4 ; Frezza, the rus LIBERORUM and to the advantage of its
N D I 9 ; Rose, O C D ; A. Coqueret, De I'i~lfluetrce des in connection with the sanctions of the ,re%
pontijes sur le droit privi d Rorne, These Caen, 1895;
0. Tixier, Irrprtertce des pontifes sltr lc d c ~ v l o p p c ~ n c ndet I"lia et Papia POppaea against parents; see
la prockdrrre civile, 1897; G. Wissowa, Religion rtnd Kztl- ORBI, LEX I U L I A DE M A R I T A N D I S ORDINIBUS.
tus dcr Rome?, 1912; C. W. Westrue. R . Pontifical rol- Portio. In the language of later imperial constitutions,
Iege, 1929; Sogliano, Hist 5 (1931) ; G. Rohde, Kultsatzun- an an official post.
gen der rom. P . , 1936; F . De Martino, La giurisdizione,
1937, 13; Bruck, Sem (1945) 2 ; F, Schulz, History Portio hereditaria (hereditatis). The portion of an
of R . legal scierrce, 1946, 6 ; M . Kaser, Das altrdm, IUS, inheritance to which an heir was instituted by the
1949, passilri; idem, Religiotre c diritto iri Roma arcaica, testator. Porto virilis = a fraction of the inheritance
ArrCat 3 (1949) 77; Latte, Z S S 67 (1950) 47; P. Noailles, which an heir on irltestacy receives equally with other
Dit droit sacri art droit ciz'zl, 1950, 24.
heirs of the same degree of relationship.
Pontifices minores. Secretaries (scribae) of the pon- portoria. custom (export and import) duties, paid
tifical college. They assisted the pontiffs in their primarily ill harbors (portus).-See DEFERRE FISCO.
functions. Rostowzew, D E 3, 126; Bonelli, S t D o c S D 21 (1900) 40;
Pontificium. Used in later imperial constitutions in Clerici, Econo~nia c f i ~ ~ a n z ad ci Romani 1 (1943) 485;
the ~ileaningof power, right (even in the domain of S. J. De Laet, Portorizim. Etude sur I'orgattisation doua-
rri2re chez les Romains (Recueil de travaux de la Far. de
private law). Philosophie de I'Univ. de Gartd, 1950).
Populares. See OPTIMATES. Portus. A harbor. A portus belongs to the category
Popularis. (Adj.) See ACTIONES POPULARES, INTER- RES PUBLIC-E. Fishing therein is allowed as in
DICTA PRIVATA. public rivers (fEtwzina publica) .
Popularis. (Noun.) A member of the Populus (POPU- Poscere. T o ask, to demand. Used of requests made
lation) of a city. to public officials (magistrates), in particular, to
Populus. Cicero (Rep. 1.25.39) gives the following applications addressed to the praetor in matters of
definition of popttlus: "it is not any assemblage of voluntary jurisdiction (iurisdictio voluntaria, see
men brought together in some way, but an assem- IURISDICTIO CONTENTIOSA), as, e.g., appointment of
blage of a crowd associated by law agreedwpon and a tutor or curator.
by common interests." The term fopulus embraces Posits. Res positae. See ACTIO DE DEIECTIS.
all citizens, and in a narrower sense, all men gathered Posse. Indicates both physical and legal possibility
together in a popular assembly. (i.e., what the law permits).-See FACERE POSSE.
G. I. ~uzzatto,Epigrafia giuridica greca e romans, 1942, Possessio. The factual, physical control of a corporeal
45. thing (possessio or possidere corpore) combined with
P o ~ u l u s F b m a n u s (or populus &xnanus Quiri- the possessor's intention to hold it under physical
tium). The whole citizenry of the l b m a n State, control, normally as the owner (animus possidendi,
including both patricians and plebeians (orginally animus donzini). The first element, a material one,
only patricians). The PoPulus R ~ m a n u swas a col- gives the possessor the opportunity to exercise his
lectivit~of ~ h ~ s i cpersons
al which had its own rights, power over the thing, the second is a psychical one,
its existence ; it might be owner, debtor, creditor, based normally on a legal ground (causa possessionis)
legatee, heir, manumitter of slaves, vendor or buyer, by which the thing came under the power of the
etc. Its acts and legal transactions, however, ,were possessor. Possessio is distinguished from the mere
not equal to those of individual citizens and did not physical holding of a thing (tenere, in possessiolte
give origin to normal trials as between individual esse, see DETENTIO)On the one hand; on the other,
citizens, but to measures and remedies of an admin- it differs from ownership (proprietas, douninium)
istrative nature. The Roman jurists did not elaborate since at times one person may be the owner and
a theory of the state as a juristic personality; they another the possessor of the same thing. Poses-
dealt with the pertinent problems from the practical sio is qualified as a res facti, a factual situation, al-
point of view in order to protect the social and eco- though it produces legal effects and is protected by
VOI.. 43, PT. 2 , 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
the law inasmuch as public order and social interests (1922 = B I D R 30, 1920) 94; see Brassloff, P. in den
and security require that the existing possessory sit- Schriften der rom. Juristen, 1928; G. Longo, BIDR 42
(1934) 469; Bozza, AnMac 6 (1930) ; Grimm, St Ricco-
uations be protected against any one and any dis- bono 4 (1936) 173; Rabel, ibid. 203; Kunkcl, Sym6.
turbance. I n certain circumstances the possessor is Friburgenses Lenel, 1931 ; A. Carcaterra, Posscssio. Ri-
even protected against the owner if he is entitled cerche di storia e dognratica, 1938; idem, AnBari 4 (1941)
under the law or an agreement with the owner to 128; E. Albertario, Studi 2, 2 (1941, several articles) ; B.
Fabi, Aspetti del possesso rom., 1946; Riccobono, BIDR
have the factual control over the thing. Hence the 49-50 (1947) 40; Branca, St Solazzi (1948) 483; Lauria,
saying, D. 21.2.12.1 : "Ownership (proprietas) has ibid. 780; K. Olivecrona, Three essays in R. law, 1949, 52;
nothing in common with possessio." Possessio is J . De Malafosse, L'interdit momcntariac possessionis, Th6se
acquired when its basic elements, i.e., possideve Toulouse, 1949 ; Monier, St Albertario 1950, 197 ; Kaser,
Detentio, Deutsche Landesreferate zum 3. intern. Kongress
corporc and aniwto are materialized, to wit, when the fur Rechtmergleichung, 1950, 85 (Bibl.) ; Branca, S t Car-
obtains physical power over a thing and nelutti 4 (1950) 369; E. Levy, West Roman Vulgar Latc~,
has the intention to keep it under his power. Ac- 1951, passim.
quisition of possessio is either original when a thing Possessio a d interdicta. Possession which is pro-
which was not possessed before by another person tected by interdicta. Interdictal protection w a s
is taken into possession (see OCCUPATIO, RES NULLIUS) granted also to those who held another's thing ac-
or derivative. when one obtains bossessio of a thing- cording to an agreement with the owner and although
from its last possessor (see TRADITIO) . Possessio as they had no intention of possessing it as their own,
a factual situation is not transferred to an heir or they could not be disturbed in their right over the
legatee automatically; physical things belonging to thing. Thus a creditor holding a pledge (creditor
an estate must be taken into material fiossessio by the pigneraticius), one who received the thing as a PRE-
beneficiaries. The specific protection of possessio is CARIUM,a possessor of an ager vectigalis or ernphy-
achieved through interdicta (see INTERDICTUM) , in teuticarius, a sequester, all these might ask for an
particular the possessory interdicts which serve both interdict in the case of disturbance by a third person.
for the protection of existing possessory situations Other holders of another's things had either special
(interdicta retinendae possessionis), for the recovery interdicts introduced by the praetorian law for their
of lost possessio (interdicta recuperandae possessionis) protection (as the superficiarius, see INTERDICTUM DE
and for obtaining possession (interdicta adipiscendae SUPERFICIEBUS or the usufructuary, to whom an in-
bossessionis). An owner who has bossessio of the terdict was granted as interdictum utile, see INTER-
thing belonging to him may use all measures available DICTA UTILIA) or had no interdictal protection at all
for the protection of possession. The advantageous as in the case of depositurn or commodaturn.
position of the possessor found its expression in the Kaser, Z S S 64 (1944) 389.
saying: "He who has possession has through this Possessio civilis. See POSSESSIO NATURALIS.
very fact that he is possessor, a better right than he Possessio clandestina. See CLANDESTINA POSSESSIO,
who does not possess" (D. 43.17.2). One of the CLAM.
most important consequences of possessio is that the Possessio corporalis (corpore). T h e factual control
possessor of a thing who for certain reqsons did not over a thing; see POSSESSIO, POSSESSIO NATURALIS.
acquire ownership (for instance he bought bona fide Possessio ficta. See POSSESSOR FICTUS.
a thing from a non-owner) might become legal owner Possessio iniusta. Possession of a thing obtained
after acertain time through-usucaption (see USU- either vi (by force), cla+iz (secretly, clandestina pos-
CAPIO). There was a legal rule concerning possessio: sessio) or precario (upon request, see PRECARIUM).
netno sibi ipse causauz possessionis mutare potest (D. Syn. possessio vitiosa. Ant. possessio iusta = posses-
41.2.3.19) = no one can change by himself the ground sibn which is not affected by one of the defects men-
on which he obtained possession, which means that tioned. Possessio iniusta could be objected only by
one who acquired possession under a specific title, the person who was deprived of its possession by
e.g., by sale b r donation, cannot assert later that he the possessor iniustus. Against third persons the
acquired the thing as an heir or legatee; nor can one latter enjoyed the same protection as a possessor
who holds another's thing, e.g., as a depositee or iustus.--See EXCEPTIO VITIOSAE POSSESSIONIS, INTER-
lessee transform the detention into possession simply DICTUM UTI POSSIDETIS.
by having the intention to possess it for himself Possessio iuris (quasi possessio) . Possession of a
(anirntrs possidendi) .-D. 41.2 ; C. 7.32.-See A N I - right, as, for instance, of an usufruct. I n such cases
X U S DONINI, ANINC'S POSSIDENDI, DOLO DESINERE the classical terminology used the expression u s ~ s
POSSIDERE, ACT10 PUBLICIANA, ACCESS10 POSSESSIONIS, iuris. Since in classical law possession was limited
TRADITIO BREVI M A N U . CONSTITUTUM POSSESSORIUX, to corporeal things, the terms fiossessio iuris and
CONDICTIO POSSESSIO~IS, and the following items. quasi possessio are obviously a postclassical or Jus-
Beauchet, D S 4; Rossi, ,\'Dl 10; Berger, OCD ; Schloss- tinian's creation.
mann, Z S S 24 (1903) 13 ; Riccobono, Z S S 31 (1910) 321 ; Di Marzo, StSen 23 (1906) 23 ; Riccobono, ZSS 34 (1913)
ident, Scr Chironi 1 (1911) 377; G. Rotondi, Scr giur 3 251; Albertario, Stt~di2 (1941, ex 1912) 307, 337, 359,
638 ADOLF B E R G E R (TRANS.
AMER. PHIL. SOC.
369; G. StgrP, B I D R 32 (1922) 293; Denoyez, Fschr K O - 1931, 40; Maschi, L a conce,-ione nattcralistzca, 1937, 112;
schaker 2 (1939) 304; A. Carcaterra, I1 possesso dei diritti, Peterlongo, AnPer 50 (1938) 169; M. Kaser, Eigentum
1942; Sargenti, S c r Ferrini 2 (Univ. Pavia, 1947) 226; S. und Besifz, 1943, 169; idem, Detentio, in Deutsche Landes-
Solazzi, L a tutela dclle servitli, 1949, 139. referate z u m Dritten Intern. Kongress fur Rechtsz,er-
Possessio iusta. See I~OSSESSIOINIUSTA. gleichung, 1950.
Surnan, A V e n 76 (1917) 1607; E. H. Seligsohn, Iusta p., POssessiO vacua. See POSSESS1O.
1927. Possessio vitiosa. See ~ o s s ~ s s INIUSTA.
ro
Possessio libertatis. The tern1 possessio is sometimes PossessiOnes. Great landed Property, big estates.
applied with reference to the personal status of a P O S S ~ S( S
~ oO
s s~i d e n s ) . See p o s s E s s I 0 , PAR CAUS*,
person, e.g., to his liberty (possessio libertatis), citi- OCCUPAToRIUS.
zenship (possessio civitatis) or to his being a slave Possessor bonae fidei (possidere bona fide). One
(possessio servitittis) . who possesses a thing belonging to another, and
Peterlongo, St Albertoni 2 (1937) 195, 213 227. believes in good faith that he is the owner; for in-
Possessio momentaria. A vague, non-technical, post- Stance, one who bought a thing from a non-owner.
classical term referring to a temporary, provisional iVhen sued by the real owner for restitution oi the
possession settled through a possessory remedy (in- thing, he loses the case ; when he sues the owner who
terdictuln). The possrssio llzolllentaria is opposed to s w x e d e d in obtaining the thing back, the latter will
possession definitely decided upon in a trial (actio in oppose the exceptio iusti doininii claiming that he is
r e l ~ l )in which the question of ownership (caltsa pro- the right owner. Against third persons the possessor
priefatis) of the thing in dispute was involved. The bonae Fdei is protected by inferdicta and may also
confusion in the tern~inolog~ of imperial constitutions use the ACT10 PUBLICIANA. he ~ O S S C S S O Ybonae fidei
of the fourth and fifth centuries (the use of t ~ ~ o , n e n t i ~ i i t Owner under ius possession
for possessio ~ ~ l o ~ i ~ e n t aof r i aqztnestio
, molnenti
for during a c e ~ t a i nperiod; see U s u c A P I o . Ant Posses-
interdictzcaz ~i~otnentariae
possessionis) does not per- SOY llzalae fidei ( p o s ~ i d e r e mala fide) = one who
mit a clear picture. The interdict~l~tzlizomentariae that he is the Owner the thing he
possessionis which generally has been identified with unlawfully. The distinction between possessores
the I K T E R D I C T U M C U D E VI, perhaps served originally bonae fidei and gnalae fidei \\'as of importance; when
to protect possession held through a representative Sued by the owner and condenlned they had to return
(a friend, relative or slave) in the absence of the true the proceeds (see FRccTus) the Owner The
possessor, as a provisory arrangement until the absent !'osSflSoY bonae fidei was liable the fructzrs
person returned. extantes (still existing) and the fructus he gathered
Levy, S c r Ferrbti 3 (Univ. Sacro Cuore, Milan, 1948) (percepti) after the joinder of issue (litis contestfl-
111; idem, W e s t Ronzan Vulgar Lazw, 1951, 244; J . De f i o ) , whereas the possessor rnalae fidei was liable for
Malafosse, L'interdzt mome~ttariaefiossessionls, These Tau- all fyuctus, even F R U C T U ~PERCIPIENDI. AnalogOuS
louse, 1949. rules were applied in the case of the restitution of an
PosSeS~i0naturalis (naturaliter possidere). A sim- inheritance (see H E ~ E ~ ~ T A p E ~T IIT IsO ) ; the extension
~ l holding
e of a thing. The holder had no intention of the responsibility of the possessor of the estate
reln sibi habendi (= to have the thing for himself) depended upon the circumstance whether he was in
and there was no iltsta causa possessionis for his good or in bad faith.
holding the thing. Ant. possessio ciz~ilis which is Aru, R I D R 45 (1938) 191; De Martino, S t Srorza 1940,
based on a iusta cal4sa (= a just legal title) for the 275; Fahi, AnCnnz 16 (1942-44) 53; Daube, CantbLJ 9
acquisition of possession and which, under i u s civile, (1945) 31 ; P. Rarnelet, L'arqttisition drs fruits par l'usu-
fruitier et par Ic p.6.f.. 1945; Henrion, R I D A 4 ( = JfZlil
might lead in certain circunlstances to the acquisition D e Visscher 3, 1950) 579; Albanese, AnPal 21 (1950) 91.
of property through USUCAPIO. Possessio ciz~ilisis
Possessor fictus (possessio ficta). I n literature a
protected by the ACTIO P U B L I C T A N A . I n Justinian's
law a confusion was brought into the classical distinc- person who in reality does not possess the thing which
tion possessio civilis-possessio natzlrnlis inasmuch as is the object of a dispute but who maliciously feigns
certain possessory situations which in the classical law to possess it in order to deceive the plaintiff.-See
1.ITI S E OFFERRE, DOI.0 D E S I N E R E POSSIDERE.
were not covered by the term posscssio ciz)ilis were so
Arnb, d f c ~ n Acead.
. Torino, Scienze morali, 70, 2 (1939-
qualified by Justinian. I n classical law persons with 40) 39.
mental defects, and infants could not have a legally
p,ssessor malae fidei (possidere mala fide). See
valid will (aniillus) and consequently no josscssio POSSESSOR BONAE FIDEI.
civilis. Other cases of jossessio naturalis were those
of a lessee, depositee and a com~nodatariussince they Possessor p r o herede. One who holds an estate in the
are considered holding the thing for the owner; belief that he is the heir.-D. 41.5.
therefore they can not claim interdicta1 protection. pro possessore. One who an estate
Riccobono, ZSS 31 (1910) 32i ; idem, Scr and does not assert that he is the heir but when ques-
(1915) 377; Scherillo, RendLomb 63 (1930) 507: B ~ ~ t-ioned by the praetor about the title of his possession,
fantc, S r r gittr 3 (1926) 534; Kunkel, ~ y m b~ r i b ' ~ e n e 1 , he has no other answer than: "I possess~because I
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW
possess.'' H e is considered a possessor nzalae fidei Postulare. (In a civil trial.) "To expound one's
and treated as a PRAEDO.-D. 41.5. claim or that of one's friend in court (in iure) before
Possessorius. Connected with BONORUM POSSESSIO. the magistrate who has jurisdiction or to contradict
See HEREDITATIS PETITIO POSSESSORIA. For inter- the adversary's claim" (D. 3.1.1.2). Postulare refers
dictum possessorium, see BONORUM VENDITIO. to the request addressed to a magistrate for granting
Possidere. See POSSESSIO. an action, an interdict, an exception, an in integrun~
Carcaterra, A G 115 (1936) 168. restitutio, or a bonorum possessio. The parties usu-
Post. (Adv.) Syn. postea. See EX POST FACTO. ally acted personally, with the assistance of advocates
(see ADVOCATUS) or through representatives (see
Posteri. Descendants. Syn. descendentes, sometimes
COGNITOR, PROCURATOR). The praetorian Edict con-
syn. with postumi. In a broader sense posteri =
tained precise rules as to who might or might not
more distant relatives.
legally act in court. There were three categories of
Posterior lex. A statute later than another one refer- persons in this respect, first persons totally or par-
ring to the same matter. "A later statute is related tially excluded from postulare (such as minors under
to a former one unless it is contrary to it" (D. seventeen years, deaf persons). They might act
1.3.28).-See PRIOR LEX. through an advocate who was assigned by the praetor
Posteriora (libri posteriores). A posthumously if they had none by their own choice. The second
edited work. In Roman juristic literature, one such group were excluded from postlllare (acting) for
work only is known, the Posteriora of Labeo, alleg- other persons, but not from postulare for themselves
edly in forty books. A compilation of excerpts from (such as women, blind persons, persons condemned
this work (an epitome) was prepared by the jurist for a capital crime, gladiators). The third group
IAVOLENUS. included persons permitted to postulate for them-
Berger, R E 17, 1836; ident, B I D R 44 (1937) 91 ; Di Paola, selves; among them were persons dishonorably dis-
B I D R 49/50 (1947) 277; F. Schulz, History of Roman
Legal Science, 1946, 207. charged from military service, condemned for certain
crimes or in civil trials for acts committed against
Postliminium. A Roman citizen who had been caught
good faith in contractual relations with other persons.
by an enemy as a prisoner of war became a slave of
Persons enumerated in this group could act in court
the enemy, but he regained freedom and "all his
also in behalf of their nearest relatives, patrons, and
former rights through postliminiunz (iure postlimi-
the like.-D. 3.1 ; C. 2.6.-See INFAMIA.
nii)," when he returned to Roman territory. His
Solazzi, B I D R 37 (1929) 1.
marriage, however, which was dissolved through his
Postulare. (In criminal matters.) Syn. accusare.
captivity, did not revive; the same applied to posses-
Postulare interdictum. See INTERDICTUM.
sion, which was a factual situation (res facti, see
Postulare pro aliis. T o act in court in behalf of other
POSSESSIO) ; hence his things had to be taken into
persons.-See POSTULARE.
possession anew.-D. 49.15; C. 8.50.-See REDEMP-
Postulatio iudicis (arbitri). See LECIS ACTIO PER
TUS AB HOSTIBUS (Bibl.), CAPTIVUS, LEX CORNELIA
lowing items. I n the developetl classical law certain classes (see IIUMILIORES). 111 order to prevent such
postrtllti should 1)e instituted as heirs since otherwise abuses, in particular in civil trials, in~peri:\l legislation
the testanlent was void.-C. 6.29. ~rohibitedthe cession of claims as well as the alien:\-
Cuq, L)S 4 ; Robbe, NLll 10; iticrr~,I postrrrr~iriello s~tcccs- tion of a controversial thing to a potentior made in
sior~c festarrlc~rtariarorttar~n,1936; B. Biondi, S~tc(.cssiorrc order to aggravate the situation of one's oppol~entin
trstarrlottario, 1943, 114.
the trial.-C. 2.13; 2.14.-See DEFENSOR C I V I T A T I S ,
Postumus alienus. il child born after the death of HONESTTORES.
the testator, who would not have come under his Mitteis, 111bl Givard 2 (1912) 225; 1:. P a r i b c ~ ~ l'otril-
i,
power had he lived at the time of the birth. Syn. t iorcs.
bostu~il~ls e.ctranrlcs. Ant. bostl~~nzrssuits. Potestas. A term in both public and private law. I n
Postumus Aquilianus. A grandchild, born after the the first tiomain it generally indicates the power of
death of his grandfather (the testator), whose father a nlagistrate whether he is vested with I ? ~ I P E R I U Nur
( a son under paternal power of the testator) was not. Pofrstns embraces all the rights and duties con-
alive when the testament was made but died be- nected with a particular magistracy (ills cdiccndi,
fore the grandfather. The jurist Aquilius Gallus in- rights of an executive nature, such as ills ~rlltltae
vented a formula by which such a posflctntts had to dictionis, ius coFrcendi, and the like). Colleagues in
be taken into consideration in the grandfather's testa- office had equal power (par potcstas), wheteas the
ment in order to avoid its nullity. Such a postztuzlrs potestas of magistrates of a different rank in the
had to be conceived at the time of his father's death magisterial hierarchy was differentiated in rttaior and
(not at the time when the testament was made). minor potestas ( = greater and lesser power). See
Postumus extraneus. See POSTVMUS ALIENUS. MAGISTRATUS, IMPERIUM. At times potestas denotes
Postumus Iulianus. A crandchild born after the
u
the office, the official employment itself (similarly as
testament of his grandfather had been made, who ~nagistrattts). Potestas in the field of private law
became the grandfather's llcres sltus before his death refers either to the power of a head of a family over
through the previous death of his own (i.e., the its members (see PATRIA POTESTAS),or the -power
posflr~rl~rs') father. The term postz4111trsIulianzts was over a thing (res, among which are also the slaves,
coined in literature after the name of the jurist Julian hence the expression dolninica potestas is applied to
who admitted the institution of such as postuttilrs as the master's power over his slaves, although in the
an heir or his disinheritance in the grandfather's testa- Roman juristic language the expression is not found).
ment. Potestas is also used in the sense of physical power;
Postumus Iunianus. i?i posthumous child born after in particular, with regard to slaves, the master is not
a testanlent was made by his father, but before the considered to have in potestntc a slave who runs away
latter's death. The term Itrnianzts (also Vcllaeianlts), or cannot be found. I n its broadest sense botestas
given to such a posttti~~us in literature, originates in means either the physical ability ( = facliltas) or the
the LEX I U N I A VELLAEA which settled the rules con- legal capacity, the right (= i ~ r s )to do something.-
cerning his rights of succession. D. 1.12.
Postumus legitimus. A posthumous child born after De Villa, N D I 10; L. Wenger, Housgenlalt und Staats-
the death of his father or a grandchild born after gewalt, Miscrlla~tea Ehrle (Rome, 1924) 1 ; A. Caspary,
the death of his grandfather when his father was no S t Albertot~i 2 (1937) 384; De l7isscher, I1 corbcetto di
potesta, ConfCast 1940; idem, Nolrz,elles Etzrdc.?, 1950,
longer alive. 265; Helnhndez Tejero, A H D E 17 (1946) 605.
Postumus suus. A posthumous child who would have Potestas dominica. See POTESTAS, DOMINICUS.
come under the paternal power of his father if the Potestas gladii. See IUS GLADII.
had to be conceived at the time of the making of the statute, the strength of a law.
ment had been made, in a way other than by birth See REX.
(by adoption, arrogatio, conventio in ~~zanuuut).Pos- Potestas vitae necisque. See IUS VITAE KECISQUE.
tztttzi sui had to be either instituted as heirs or dis- Potestativa condicio. See COKDICIO POTESTATIVA.
Postumus Vellaeianus. See POSTUXIUS IUNIANUS. Potior in pignore. If a thing was successively pledged
Potentiores. I n the later Empire persons who because to several creditors, the creditor to whom it was
of their official position or wealth (great landowners) pledged first, had priority before the later creditors.
exercised a more influential economic and social If, however, a debtor pledged the same thing as a
power over their fellow citizens. Their powerful in- whole (in solidu+~z)to two creditors simultaneously,
fluence in society gave them the opportunity of abus- the legal situation of the creditor to whom the pledge
ing their privileges to the disadvantage of the poor was handed over was more ,advantageous (inclior
VOL. 43, PT. 2, IVSJ] ENCYCLOPEDIC DICTIONARY OF ROMAN LAW
condicio possidentis, D. 20.1.10) .-D. 20.4 ; C. 8.17. earlier tiines such ap1)ropriation was allowed.-See
-See PIGNUS,SUCCESSIO I N LOCUM PRIORIS CREDI- RES IIOSTILICS.
TORIS, 1US OFFERENDI PECUNIAM, POSSESSIO. Cagnat, D S 4 ; Vogel, ZSS 66 (1948) 396.
Pp. Abbreviation for proposita (sc. constitutio) , i.e., his successor arrived in the province.
pron~ulgated,officially published. The abbreviation is Praedes. (Sing. praes.) In the earlier law of the
applied in Justinian's Code to indicate the place and Republic sureties who assumed guaranty for a person
date of the promulgation of an imperial enactment. who concluded a contract with the state (e.g., a lease,
The indications are given at the end of the text of a locatio conductio operaruwt, etc.).
the constitution. The normal place was the locality Humbert and Lkcrivain, D S 4 ; Schlossmann, ZSS 26
where the emperor had actually resided, unless an- (1905) 285; P. Viard, Le praes, 1907; Mitteis, Aus rsm.
other place was specified. und burgerl. Recht, Fschr Bekker 1907, 120; Partsch,
ASachGW 32 (1920) 659; Gradenwitz, ZSS 42 (1921)
Praecellens, praecellentissimus. An honorific title 565; v. Mayr, ibid. 205; J. Maillet, Theorie de Schuld et
of high dignitaries in the later Empire. Syn. ex- Haftung, These Aix-en-Provence, 1944, 99.
cellentissimus. Praedes litis et vindiciarum. Sureties assuming guar-
Praeceptio. See LEGATUM PER PRAECEPTIONEM. anty for a thing being the object of a trial (lis =res)
Praecepta iuris. Legal norms.-See IUS. and for the proceeds (fructus) from it. Such praedes
E. Levy, Univ. of Notre Dame, Natural Law Inst. Proc. had to be given in the procedure through legis actio
2 (1949) 67 (= SDHI 15, 1949, 18) ; A. Carcaterra, Iu-
stitia nelle' font;, Bari, 1949, 81. sacrawtenti by the party to a trial concerning the
Praeceptor. A teacher. See MAGISTER, EDICTUM VES-
ownership of a thing to ,whom the praetor assigned
PASIANI, PROFESSORES, HONORARIUM, STUDIA LIBE- possession of it during the trial. The praedes war-
RALIA. ranted through stipulatio the restitution of the thing
Praecipere. With reference to statutes, the praetorian and its fructus in the case of defeat of the party to
Edict, or hnperial constitutions = to ordain, to decree, whom possession was assigned. Ih the later proce-
to set a legal rule.-See PRAECEPTA IURIS. dure for the recovery of a thing, connected with a
Praecipere. T o take beforehand, in advance (prae- sponsio (see AGERE PER SPONSIONEM), it was the
capere). The term applies to cases in which several defendant who stipulated a certain sum for such
claims of various persons occur' (as, e.g., in the event; See CAUTIO PRO PRAEDE LITIS ET VINDICIARUM.
-See REI VINDICATIO, PRAEDES (Bibl.) , VINDICIAE.
division of a common property or of an inheritance
V. Liibtow, Z S S 68 (1951) 338.
among the co-heirs, or when several creditors have
to be satiqfied from the debtor's property) and one Praedes sacramenti. Sureties for the payment of the
of the claimants had to be satisfied before the others. sacrawtentuvn in the procedure by LEGIS ACTIO SACRA-
See LEGATUM PER PMECEPTIONEM. The amount or MENTI. In the later development the amount of the
share which one of the claimants receives before the sacramentum was not deposited by the parties at the
others is termed praecipuum. beginning of the trial; it was orily promised and the
Praecipitare de saxo Tarpeio. See DEICERE DE SAXO payment was guaranteed by sureties.
TARPEIO. Praedia. Plots of land (estates) together with the
Praecipuum. See PRAECIPERE. buildings erected on them. Syn. fundus.-See the
Praecones. Criers, heralds. They belonged to the following items.
auxiliary ztaff of higher magistrates whose orders Humbert and Lkcrivain, D S 4.
they announced publicly, e.g., the convocation of a Praedia curialium (decurionum). Land belonging to
popular assembly. They also made public events CURIALES (DECURIONES) in the provinces could not
which interested the population and assisted in public be alienated in the later Empire without permission
auctions.-See APPARITORES, LEX
CORNELIA DE VI- of the provincial governor which was given only
GINTI QUAESTORIBUS.
when the necessity of the sale was proved.-C. 10.33.
Saglio, D S 4, 609.
Praedia fiscalia. Land owned by the fisc (see FISCUS) .
Praeda. The booty taken from the enemy in a war In the later Empire it was administered by a pro-
through an operation of the army. It became prop- curator praediorurn fisca1ium.-C. 11.72-74.-See
erty of the Roman state. The appropriation of such ACTOR PRAEDIORUM FISCALIUM.
things by an individual soldier was considered as a Praedia Italica. Plots of land in Italy. Syn. fundus
crime of embezzlement (see PECULATUS) to be pun- in Italico solo. Praedia Italica were among res man-
ished according to the LEX IULIA PECULATUS.In cipi and consequently were transferable only through
642 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
mancipatio or in iure cessio. They are distinguished seized another's property without legal grounds.
from PRAEDIA PROVINCIALIA (= provincial land) (D. 50.17.126 pr.) .-See POSSESSOR PRO POSSESSORE.
which were res net ~ a n c i p i . I n the later Empire Praeesse provinciae. T o govern a province. Is qui
there was no longer any difference between Italian and praeest provinciae = praeses provinciae.
provincial landed ~ r o ~ e r t y . - - s e eRES MANCIP1, SOLUM Praefectorius. (Adj .) Connected with, or pertaining
ITALICUM. to, the office of a praefectus.
Praedia provincialia. Plots of provincial land. They praefectianus. A subordinate in the bureau
were res nec ~ ~ t a n c i pand
i therefore not transferable ,f the PRAEFECTUs PRAETORIO,
through ~iaancipatioor in iure cgssio. T h e owners of
Praefectorius. (Noun.) A n ex-praefect.
provincial land were obliged to pay taxes, tributuvvt
(soli) in imperial provinces, stipendiuwz in senatorial Praefectura. Indicates either the official position of
provinces.-See PRAEDIA TRIBUTORIA, PRAEDIA STI-
a praefectus or the territory subject to his authority.
PENDIARIA, PRAEDIA ITALICA, PRAESCRIPTIO LONG1 For praefectrtra as an administrative unit after Con-
TEMPORIS. stantine's reform of the administration of the Empire,
P r a e d i a rustica. Landed property situated on the out- see DIOECESIS.-S~~ the following items.
Cagnat, DS 4; Belloni, A'DI 10.
side of cities and exploited for agriculture. Syn.
fundus, ager, locus. ~ ~pyaedia t . urbana,-See SER- Praefectura morum. The supervision of public morals.
V I T U T E ~PRAEDIORUM RUSTICORUM.-D.8.4; C. 11.70. T h e term is applied to the activity of the censors,
Guarneri-Citati, BIDR 43 (1935) 78. see CENSORES.
Praedia stipendiaria. "Land in those provinces which Praefecturae municipales. I n earlier municipalities
are held to be property of the Roman people" (Gaius, which were not granted political rights (sine suf-
Inst. 2.21), i.e., the senatorial provinces. The owners fragio) jurisdiction over the municipal citizens
of such land paid the fisc a tax called STIPENDIUM. (municipes) was vested in a praetor in Rome who,
Ant. PRAEDIA TRIBUTARIA.-S~~ PROVINCIAE POPULI however, exercised it by a special delegate, praefectus
ROMANI.
iuri dicundo. Hence the municipalities without ius
Solazzi, AnBari 5 (1942) 7.
sufragid were termed pvaefecturae.--See SUFFRA-
Praedia subsignata. Land pledged to a public body GIUM.
(the state or a municipality) as a security for a debt Sherwin-White, O C D 725; Fabricius, SbHeid 1924/5, 1,
assumed. The land was not handed over but could 29; E. Manni Per la storia dei wzunicipii, 1947, 69.
be afterwards seized by public authorities when the Praefectus. (Frirm praeficere = to place a person at
debt was not paid in due time.-See SUBSIGNARE. the head of a n office.) The chief of a n office in any
Praedia tributaria. "Landed property in the provinces branch of administration. Comnlanders of military
regarded as a property of the emperor" (Gaius, Inst. and naval units also had the title praefectus (alae,
2.21), i.e., the imperial provinces. The owners paid castrorzntz = of a military camp, centuriae, classis,
a land-tax called TRIBUTUM.-S~~ PROVINCIAE CAE- cohortis, legionis). I n sacral matters there were
SARIS, PRAEDIA STIPENDIARIA. praefecti of a more local character (praefectus rebus
Praedia urbana. Buildings, even when located in the divinis, sacrorzm, sacris faciendis). Some praefecti
country. Syn. aedes, aedificiuvvt. Ant. praedia rus- were also called praepositi.-The following items deal
tica.--S!€ SERVITUTES PRAEDIORUM RUSTICORUM. with the more important praefectttral offices.
Gardens connected with buildings are considered Liebenam, RE 6, 1644
pracdia urbnna, except when they are exploited for Praefectus Aegypti (also praefectus Alexandreae e t
commercial purposes, for instance, for viticulture Aegypti). The governor of Egypt. H e was the
(D. 50.16.198) .--D. 8.4; C. 11.70.-See SUBURBA- chief of the administration, and was appointed and
N U M PRAEDIUM.
recalled by the emperor. I n the provi'ncial admin-
Guarneri-Citati, BIDR 43 (1935) 73.
istration Egypt occupied a unique position, being
Praediator. The purchaser of a plot of land which more tied with the person of the emperor than anv
had been pledged to the state by a debtor and for- inlperial province. IIence the pracfcctzas was con-
feited. The sale (praediatura) was performed by a sidered a personal representative of the emperor. I n
t)ul)lic auction the conditions of which were fixed in jurisdictional matters he was assisted l l y a special
a lex praedintoria. official, the itrridirus .4cgypti (et Alexandreae), in
Liebenam, RE 5, 1824; 0. Karlowa, RBm. licrhtsgr- financial matters l ~ ythe IIII~I.OGU~.--D.1.17 ; C. 1.37.
schirhtr 2 (1901) 5.
--See FRAEI~EC1.US AUGUSTALlS, GNOhfON, IURIDICI.
Praedicere (praedictio). An oral declaration nlade at
De Ruggiero, D E 1, 278; 0. W. Rcinmuth, T h r I'rrfccts
the conclusion of a transaction, for example, 1)y the of Iigrlypt, Klio, Brihrft 34, 1935; H . F. K. Hiihncr, P.
seller of a slave al)out the latter's defects. For pme- Acg. von Dioklctinn his zum Eildc der Rom. Ilcrrschaft,
dircrc in an x ~ ~ c t i o seen , Arrcrro. lliss. I'rlangcn, 1948; A. Stein, Die Priifrktcn ?,on Acgyp-
Praedo. A rol)l)er, pillager; in a broader sense, any tcn in dcr riim. Kniscv,-cit, Bern, 1950.
1)ossessor i l l I)atl fait11 (possessor ntalae fidri) who praefectus aerarii militaris. See A I C R A R I U M M I I ~ T T A R E .
VOL. 13, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 643
Praefectus aerarii Saturni. See AERARIUM POPULI career; later it assumed the character of a mere hon-
ROMANI. orary post.-See the foregoing item (Bibl.) .
Praefectus alimentorum. A n official of senatorial H. C. Maue, Der p.f., 1887.
rank charged with distribution of provisions (ali- Praefectus frumenti dandi. (Called also curator fru-
m e n t ~ )among poor people and children.-See ALI- menti.) A n official in charge of the distribution of
MENTARIUS. corn (see FRUJIENTATIO) among the population of
Praefectus annonae. The head of food administration, Rome.
instituted by Augustus (A.D. 6). H i s was the task Rostowzew, R E 7, 176; Mommsen, Hrst. Schriftett 1 (1906,
to bring in-sufficient supplies of corn to the market ex 1870) 192.
in Rome; moreover, he supervised the prices. H e Praefectus iuri dicundo. X deputy jurisdictional of-
also had jurisdiction in matters connected with the ficial in a municipality or one who was temporarily
food administration (see CURA ANNONAE) and pun- assigned there to judicial inatters when the post of
ished offenses committed bv criminal machinations the permanent jurisdictional magistrate was vacant.
in the corn trade. The p r a e f e c t ~ sannonae was as- -See LEX PETRONIA (of 32 B.c.).
sisted by subordinate officials (procuratores) in the Kornemann, R E 16, 6'3; Cagnat, U S 4, 611.
provinces and in Italy as well as by guilds of pro- Praefectus legionis. The commander of a legion, of
fessionals active in the corn trade and transportation equestrian rank (eques). I n the development of the
(NAVICTLARII) .-C. 1.41; 12.58.-See JIENSORES Roman army, he was the successor of the LEGATUS
FRTMENTARII. LEGIONIS.
De Ruggiero, D E 1, 177; De Robertis, L a repressio~re Praefectus municipii. If a n~uilicipality elected the
pctralc ncllo rir~oscriziot~e dell'urbe, 1937, 35; idem, S t di emperor for its highest magistrate (ditovir)-this
dir. pctrolr roiitoilo, 1943, 35; Schiller, R I D A 3 (1949) 322. happened frequently-the eniperor delegated a prae-
Praefectus Augustalis. ( O r simply Augustalis.) The fectus as his substitute who administered the office
title of the praefertlrs Aegypti from the late fourth alone, without any colleague. A pracfecttts ~~zunicipii
century on.-D. 1.17; C. 1.37.-See PRAEFECTUS was also appointed when a member of the imperial
AEGYPTI. faillily was appointed and did not enter the office btit
De Ruggiero, DE 1, 824. in this case the pr-tzcfecttts lrzttnicipii had a dztovir as
Praefectus Caesaris (quinquennalis). See PRAEFEC- a colleague. Suc-h prncfccti were called praefectus
TUS M U N I C I P U M . Caesaris quinqucnnc~lcsbecause they served five years.
Praefectus civitatis (gentis, nationis). A military Praefectus orae maritimae. A military official, as-
administrator of a newly conquered territory on the sisted by a military detachment and appointed for the
frontiers of the Empire, before it was organized as control and defense of an important sector of the sea-
a province. shore, primarily in 1)rovinces. l i e also had jurisdic-
H. Zwicky, Die Vcrrurtrdtrtrg des Militiirs itt dcr Vcrzual- tion over crinies co~ninittedduring a shipwreck.
ticrtg der Koiserzeit, 1944, 11. Barbieri, Ri7ista di filologio classico 69 (1941) 268; 74
Praefectus castrorum. The commander of a military (1946) 166.
camp. Praefectus praetorio. The commander of a military
Liebenam, R E 6, 1642. unit in the imperial residence serving as .a body-guard
Praefectus classis. The commander of a fleet. of the emperor (cohors practorin, see PRAETORIUM).
Praefectus collegii. The chairman of an association The number of $r:acfccti practorro varied from one
connected with military service. to four. The prorfccti practorio acquired high politi-
Praefectus collegii fabrum. I n municipalities the title cal influence being steadily in personal touch with
of a person who, being a member of the municipal the emperor. Their military connmand was extended
council (ovdo drrzirion~rwt),directed the service of over the troops in Italy. They were assignet1 ad~iiin-
fireinen and was, normally, also the protector of istrative and juristlictional functions, the latter also
their association (patronus) .-See PRAEFECTUS FA- in criminal matters, from the third century on. Sonie
BRUM, FADRI. of the prominent jurists (Papininn, Ull)ian, I'a~tl)
Kornemann, R E 6, 1920; Jullian, D S 2, 956; Liehenam, were prarfccti practor.io. Altholigh only of equestrian
D E 3, 14; Bloch, Mushe Belge 7 (1903) ; 9 (1905). rank, the prtrcfrc trrs pt.nctor,io were the highest gov-
Praefectus fabrum. The head of the bodv of tech- ernmental officials :ultl tlle chief atlvisers of the cm-
nicians in the army in earlier times. I n the last perors in i~~ilitary and civil matters. After the divi-
centuries of the Republic ant1 under the I'rincipate sion of the territory of tlic Empire into folir
the prarfect~tsfabruln was an oflicer appointetl by a praefertrtrnc, each pl-oefec.trrr-nhad its pmrfertrrs prt~c-
praetor or proconsul, and later I)y the emperor, and torio.-l>. 1.1 1 ; C. 7.42; 12.4; for pl-nrfertrrs pl-ae-
employed by his superior for confitlential ~nissions torio Afl-icac C. 1.27 ; for prtr~frc-tus pr-urjtor-io Ol-irntis
(an adjutant). The connection with f a l r i is not quite ct Illyl-iri C. 1.26.-Sce E B I IN E N T I S S I M U S , EXCELLEN-
clear. Ffom the time of Augustus the service of a TISSI i I U S , E1)ICTA I'RAEFECTOKU h i PKAETORIO, 1)IOECE-
praefectus fabrugn was the beginning of an equestrian SIS.
644 ADOLF BEKCER
Cagliat, D S 4 ; Cuq, N R H D 23 (1899) 393 ; idenr. M i l Praefectus vigilum. One of the highest officials in
Boissicr 1903; E . Stein, U ~ ~ t ~ - r s ~ r c h r riil~er
n g ~ . das
n oftil,itr~,i the atlministration of the city of Konle. H e was the
dcs Priitorior~crpriifcktcnsrit Diorlctian, 1922; iticm, Dull.
Comm. nrchcol. com. di Roma, 52 (1924) 9 ; idcm, H e r 60 comn~anderof the fire brigade (vigilcs) and exer-
(1925) 94; iticm. Rhein. Muselrnz 74 (1925) 347; Rayncs, cised the functions of chief of the police. I-Ie had to
JItS 15 (1925) 204; J. Palanquc, Essili srrr I11 prPf, dtc take care of the security it1 the capital and had
prt:t. tilr I I I I s - E I I I ~1933;
~ ~ L * I)e
, liobcrtis, La rcprcssiorre juristlictional power in such criminal matters as
puni~le ncllil rirroscrisionr dell'lrrbe, 1937, 13; idem, St
rfi tiir. pelt. rum., 1943, 19; G. Lopuszaliski, Lo transfor- arson, robbery, l~urglary,and the like. His function
matio~rdu corps tirs offil.icrs s~rpbrirrrrs dc l'c~r~rric rom., in civil trials involved controversies arising from
Mhl. Ecolc F r a ~ ~ cRome, . 1938, 131 ; L. L. Howe, T h e leases of houses.-D. 1.15; C. 1.43.-See VICILES
Practoriurr Prcfrct A.D. 180-305, 1943; De Laet, R e v . (Bibl.).
Delgc dc Plrilol. ct d'lrist. 22 (1943), 25 (1947) ; Pastor;, 0. Hirschfcltl, Klcirrc Schriftcth, 1913, 96; F. M. De Ho-
StUrO 19 (1950-1951) 37. bertis, L a rcprcssiarrc pcrrolc nclla circoscrizio~ledcll'trrbc,
Praefectus sociorum. See soclr. 1937, 35; idcm, S t di dir. ronr. pcrrale, 1943, 35; Schiller,
Praefectus urbi(s). The prefect of 12ome. During R I D A 3 (1949) 322.
the period of kingship the pracfcct~rs zirbi was the Praegnans. The protection of a pregnant woman after
representative of the king in his absence. In the her divorce from the father of the child to be born
early Republic the practice of appointing a prarfccfzrs (nasciturrrs) was regulated by a special scnatzrscon-
rtrbi was continued when all higher magistrates were sultu~z dc ngnosccndis 1iberis.-D. 23.5.-See AG-
absent. Since the creation of the urban praetorship NOSCERE LIBEROS, SENATUSCONSULTUM PLANCIANUM.
(367 B.c.) the procfcctus zrrbi practically disappeared. Praeiudicare. T o prejudice, to impair, to damage.
O n one occasion only, when the national feast of the "A judgment which settled a controversy between
Latins (fcriae Latinae) was celebrated in the presence certain persons does not cause prejudice to others"
of all Roman magistrates, a special praefcc~us zrrbi ( D . 42.1.63). There were, however, some exceptions
feriarutn Latinarztm was instituted. Augustus also from this rule. I n Justinian's language praeiudicare
reestablished the office of a praefectzts urbi, only for is syn. with nocere.
the time of his absence from Italy; Tiberius, however, Praeiudicialis. See ACTIONES PRAEIUDICIALES, FOR-
transformed it into a permanent one. Originally the MULAE PRAEIUDICIALES, PRAEIUDICIUM.
praefect~is zirbi exercised criminal jurisdiction when Praeiudicialis multa. In later civil procedure a fine
he was delegated by the emperor, but later his juris- imposed on a party to a trial who appealed from an
dictional power increased constantly and when the interlocutory judgment ; see INTERLOCUTIO.
QUAESTIONES PERPETUAE ceased to function under Praeiudicium. A judicial proceeding for the examina-
Septimius Severus, the competence of the praefectus tion of a preliminary question upon which the deci-
urbi in criminal matters was almost unlimited not sion of a controversy depends. See ACTIONES PRAE-
only in Rome but also in the territory within one IUDICIALES.Since a negative solution of the preju-
hundred miles from the city. In the later Empire dicial question may eliminate the availability of an
the praefectzls urbi was the head of the administration action for the principal claim, praeiudicium is used
and jurisdiction in both civil and criminal matters. in the sense of prejudice, damage. For the use of
I n the first instance he was the exclusive, judge in an exception by a defendant in order to prevent that
matters in which persons of senatorial rank were the trial be not extended on questions which may be
involved. Appeals from judgments of the praefectus prejudicial to him for future claims (exceptio ne prae-
annonae, the praefectus vigilurn, and other officials iudicium hereditati Fat) see HEREDITATIS PETITIO.
of civil jurisdiction (cognitio extra ordinem) went to For praeiudicium with regard to interlocutory judg-
his court as far as the public order in the city was ments, see INTERLOCUTIO. When in a trial the ques-
affected. A small armed unit (cohortes urbanae) for tion arose as to whether a party therein involved
the maintenance of order was under his command.- was a free person (praeiudicium an liber s i t ) , this
D . 1.12; C. 1.28; 12.4.-See MILIARIUM,CUSTOS question was taken into examination before all.-
URBIS, Z E N O N I A N A E CONSTITUTIONES. D . 44.1; C. 3.8; 7.19; 9.31.
Cagnat, D S 4 ; De Ruggiero, D E 2, 780; Lambrechts, Humbert and Lkcrivain, D S 4 ; Weiss, RE 3A, 2234; H.
Philologische Studien, 1937, 13; P . E. Vigneaux, Essai stir Pissard, Les questions prdjudicielles en droit rom., 1907;
l'histoire de la pvaefectura u., 1896; Brancher, L a jurisdic- M . Nicolau, Causa liberalis, 1933, 156; Siber, Fschr W e n g e r
tion civile du p.ti., 1909 ; F. M. De Robertis, Origine della 1 (1944) 46; idem, Z S S 65 (1947).
giurisdizione criminale del p.u., 1935 ; idem, L a repressione Praelegare (praelegatio). T o make a legacy in favor
penale nella circoscrizione dell'urbe, 1937; idem, St di dir.
pen. rorn., 1943, 3 ; Schiller, R I D A 3 (1949) 322. of an heir who, in addition to his share in the inheri-
Praefectus vehiculorum. The postmaster of the im- tance, receives a specific thing as a legacy. The term
perial post in Rome (from the time of Hadrian an praelegatum used in the literature, is not of Roman
official of equestrian rank). Later, larger districts coinage.-See LEGATUM PER PRAECEPTIONEM.
C. Ferrini, Opere 4 (1930 ex 1895) 237; Scuto, R I S G 45
in Italy and the provinces had also their praefectus (1910) 3 ; Gangi, R I S G 47 (1912) 315; Beseler, Z S S 49
vehiculorum.-See CURSUS PUBLICUS. (1929) 155; B. Biondi, Successione testamentaria, 1943,
Humbert, D S 1, 1651. 466 (Bibl.) ; v. Liibtow, Z S S 68 (1951) 511.
VOL. 43. I"I.. 2, I Y S ~ ] ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 645
Praemature. Before a fixed term. A creditor who yes agatau) only for what is already due." In post-
asks for payment ~raemitatureasks for more than is classical juristic language pmrscriptio often replaced
due ; see PLUSPETITIO (tetnpore) -
the former r.rcrfifio and became a penera1 term for
Praemium. See N U N T I A R E FISCO,DEFERRIS. any kind of defense opposed by the defendant.-D.
Praenomen. See NOMEN. Under the Empire, for- 44.1 ; C. 7.40; 8.35.-See DENEGATIO ACTIONIS, EA RES
eigners who were granted Roman citizenship by a A G A T U R , FORMULA, EXCEPTIO.
decree of the en1l)eror took as a Prarnovnen the first Beauchet, D S 4, 626; Bortolucci, N D I 10; see Schloss-
name of the emperor. Hence the great number of mann, P. u ~ i dproescriQta vcrho, 1907; Wlassak, Z S S 33
(1912) 81; J. Petrau-Gay, E?~nlzctionhist. dcs exccptiones
Aurelii among the new citizens naturalized hy the et praesrriptiones, Thkse Lyon, 1916; Steinwenter, Z S S
en1i)eror Caracalla who bore the name Aurelius 65 (1947) 98.
among his praenornina.-See CONSTITUTIO A N T O N I - Praescriptio longi temporis. An institution similar to
NTANA, IMPERATOR. usucapio and applied to prsvincial land which could
Rosenberg, RE 9, 1148 (for p. imperatoris). not be usucapted under ius civile; see USUCAPIO. A
Praeponere (alicui rei). T o put a person at the head possessor of a provincial land might oppose this
(praepositus) of a commercial enterprise (see I N - praescriptio to a claimant who sued him for the de-
STITOR),of the bookkeeping service in a hank, or of livery of the land if he was in possession of it for
a ship (see MAGISTER NAVIS). Syn. praeficere. I n ten or twenty years. The period of ten ye,m sufficed
public law the term praepositus is used of the chiefs infer praesentes, i.e., if both parties lived in the same
(commanders) of an office, a public institution or a locality (later, in the same province) ; uninterrupted
military unit. I n some instances it appears in the possession through twenty years was required when
title of the official who directs the office; see the the parties lived in different cities (provinces). The
following items. possession of the defendant had to be based on a
Praepositura. The office of a praepositus. just cause (iusta causa) and acquired bona fide (see
Praepositus. See PRAEPONERE. Praefiositus is the USUCAPIO).Originally the praescriptio was a way
chief of subaltern officers in certain branches of ad- of defense against a rei vindicatio (praescriptio =
ministration, such as, for instance, the imperial post exceptio), but in later development such a qualified
(praepositus cursoruiit, tabellariorum) , the archives possession gave the possessor-the right to claim the
-(praepositus tabulariorum) . I n the military organi- recovery of the land if he lost possession. Thus the
zation praepositus is the commander of a detachment praescriptio longi tevnjoris became a mode of acquisi-
of a limited, territorial nature, for instance praepositus tion of property. I n Justinian's law the two insti-
castroruttt = the cofimander of a military camp.- tutions, usucapio and praescriptio longi temporis were
See SCHOLAE. fused into one. The new terminology was: usucapio
Cagnat, D S 4 ; Severini, N D I 10; J. E. Dunlap, in Boak for movables, praescriptio longi fei>?porisfor immov-
and Dunlap, T w o studies i n later R . and Byzantine adwin-
istration, 1924, 189. ables. Numerous inter~olationsbecame necessarv to
eliminate any connection between usucapio and im-
Praepositus sacri cubiculi. The chamberlain of the movables; the terms usucapio (ztsucapere) were sub-
imperial household.-C. 12.5.-See CUBICULUM.
stituted by longumn tetnpus, longa possessio (per
Dunlap, lor. cit. 160.
long~~nz tempus capere) .-C. 7.33-36 ; 40 ; 22.-See
Praerogativa. I n postclassical period, syn. with PRI-
ABSENTES, R O N A FIDES,and the following itenis.
VILEGIUM. Bortolucci, N D I 10, 203 (s.w. prescrizio~ze); Partsch, Die
Orestano, A n M a c 12-13 (1939) 29, 69. lotlgi tenzporis p., 1906; Wenger, Hist. Jahrb., 1940, 359;
Praerogativa centuria. See CENTURIA PRAEROGATIVA. Levy, B I D R 51/52 (1948) 352; idem, W e s t Roman Vztlgar
Law, 1951, 180; Schonbauer, Altzeiger Akad. W i s s . Wierz
Praes. See PRAEDES. 88 (1951) 431.
Praescripta verba. See ACTIO PRAESCRIPTIS VERBIS. Praescriptio longissimi temporis. See PRAESCRIPTIO
Praescriptio. I n the procedural formula an extra- QUADRAGI N T A A N N O R U M
ordinary part of the formula preceding the INTENTIO Praescriptio quadraginta annorum. The Emperor
(prae-scribere) and serving for a preciser delimitation Constantine ordered that any one who held another's
of the claim. Originally there were praescrijtiones thing for forty years could not be sued for its restitu-
in favor of the defendant (praescriptio pro reo) and tion no matter what the origin of his possession might
of the plaintiff (praescriptio pro actore). The former have been (praescriptio longissimi felllporis) . E x -
fell early into disuse and were replaced by exceptions, cluded froin this kind of acquisition were the lessees
as, e.g., the praescriptio ne praeiudiciumi~hereditati fiat of an immovable. Uninterrupted possession through
(see HEREDITATIS PETITIO,PRAEIUDICIUM) . A prae- forty years was also required for the usucaption of
scriptio pro actore was applied, for instance, in the things belonging to the emperor, the fisc, the church
case when the plaintiff sued for an installment of a and charitable foundations.-C. 7.39.
debt. I n order to save his right to 'sue later for Riccobono, F I R 1' (1941) no. 96; Arangio-Ruiz, ibid. 3
further installments, a praescrijtio was inserted at (1943) no. 101 (Bibl.) ; idem, Acgyptzrs 21 (1941) 261
the beginning of the formula: "Let the action be (ea and Ah'ap 61 (1942) 311.
646 ADOLF B E R G E R [TRANS.AMER. PHIL. SOC.
Praescriptio quadriennii. The emperor, the empress Praesidium. A military garrison.-See CURATOR PRAE-
and the fisc could validly sell things belonging to SIDII.
private individuals. The owners, however, could Praestantia. An honorific title of certain higher of-
claim indemnization within four vears.-C. 7.37. ficials in the later Empire. The emperors addressed
Praescriptio triginta annorum. According to an en; them in their letters with "praestantia tzta."
actment of Theodosius I1 (A.D.424)) any action was Praestare. (From praes stare.) T o be a guarantee,
extinguished if the plaintiff did not sue the debtor to be responsible for certain duties which arise from
within a period of thirty years from the time he contractual obligations in specific circumstances as,
could sue him except in those cases in which an for instance, for dolus, culpa, eviction, and the like
action expired in a shorter time.-C. 7.39.-See (e.g., dolum, culpam, damnum, custodiawt, etc., prae-
ACTIONES PERPETUAE, ACTIONES TEMPORALES.
stare). The verb appears in the definition of obligatio
Praescriptio viginti annorum. In Justinian's language and covers any liability of the debtor beyond the prin-
the normal PRAESCRIPTIO LONGI TEMPORIS of immov- cipal obligations of dare or facere. See OBLIGATIO.
ables which required uninterrupted possession for The term is elastic and is applied in the classical
twenty years inter absentes. language in a broad sense in various legal situations
Praescriptum (praescriptio) legis. A legal rule, a even those arising from delictual obligations and
norm settled in a statute. Syn. praecepta legis. u .
sometimes in connection with performances in which
G. Rotondi, Leges publ. populi Romani, 1912, 150.
no legal duty is involved.-See CUSTODIA, DOLUS.
Praesens (praesentes). See ABSENTES,STIPULATIO V. Mayr, ZSS 42 (1921) 198; F. Pastori, Projilo dog-
I N T E R ABSENTES. m a t i c ~e storico dell'obligazione vomarta, 1951, 143.
Praesentalis. A person who was employed in the Praestare actionem. T o cede an action to another.-
imperial palace. See CESSIO.
Praesenti die. Immediately, at once, without delay Praestare patientiam. See PATIENTIAM PRAESTARE.
(e.g., debere, solvere, dare). Syn. praesens. "In
all obligations in which a date was not fixed for pay- Praestatio. The performance, fulfillment of a duty.
ment, the debt is due at once" (D. 45.1.41.1). See PRAESTARE.For praestationes personales in ac-
tions for division of common property, see ACTIO
Praeses provinciae. ( O r simply praeses.) The gov- COM M U N I DIVIDUNDO.
ernor of a province. Originally only governors of
imperial provinces (legatus Augusti pro praetore) Praestituere. T o fix a date or a space of time (e.g.,
had the title praesides, later the term referred to all annum, diem, tempus) for the fulfillment of legal or
governors of provinces, both imperial and senatorial, procedural duties. I t is primarily used of terms fixed
and without distinction whether they were of sena- by legal enactments or by jurisdictional authorities.
torial or equestrian rank. "The title of praeses is a Praestituere aliquem. T o put a person at the head of
general one. Proconsuls, legatees of the emperor an office or a private enterprise. Syn. pmeponere,
and all who govern provinces are called by the name praeficere.
praesides" (D. 1.18.1). In newly acquired provinces Praesumptio. (From praesuwere = to presume.) A
the governor was regarded as a military commander presumption occurs when a fact is deemed proved
who had to subjugate the territory and take care there although it is not directly proved and its existence
for order, until a normal provincial administration is only logically inferred from another fact established
was introduced. The praeses was the highest official through evidence. Such kind of presumption is
in the province. "His functions embrace those of all termed in literature praesuwptio facti or praesumptio
magistrates in Rome" (D. 1.18.12). H e had the hominis. E.g., a child born to a married woman is
jurisdiction of the praetors in Rome, full imperiuwt, presumed to be the husband's child and consequently
and after the emperor, the greatest authority in his a legitimate child. A counterproof is admissible.
province. During his term of office a governor could Such presumptions are often introduced by phrases
not be removed. No one could become governor of like credi debet, creditur (= it is presumed). In
his native province without permission of the em- later (Justinian's) law there were some presumptions
peror. outside his province the governor was con- legally imposed to the effect that a fact had to be
sidered a private person. Syn. is qui praeest pro- considered proved in court as long as no counterproof
vinciae, rector provinciae (in later times) .-D. 1.18 ; was offered (praesumptio iuris) . Thus, for instance,
C. 1.40; 5.2.-See PROVINCIA (Bibl.), EDICTUM PRO- a presumption was fixed for the event that several
VINCIALE, EDICTA PRAESIDUM, VICE. persons died simultaneously (e.g., in a shipwreck) to
Chapot, DS 4 ; Orestano, NDI 10; F. Leifer, Einheit des the effect that children below the age of puberty were
Gewaltgedankens, 1914, 305; H . E. Mierow, T h e R. pro-
llincial governor as he appears in the Digest etc., Colorado presumed to have died before their parents, whereas
Springs, 1926; Solazzi, S D H I 16 (1950) 282, the elder children were presumed to have died after
Praesidalis. Connected with, or pertaining to the office them. I n certain exceptional cases a counterproof
of a provincial governor. was not admitted (praesumptio iuris et de iure).-
VOL.43, PT. 2, 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 64 7
D. 22.3.-See COMMORIENTES. year of service in Rome to provinces as governors.
Donatuti, N D I 10; idem, LC praesumptiones iuris in dir. When the permanent criminal courts (see QUAES-
rom., 1930; idem, Riv. dir. priv. 1933, 161. TIONES PERPETUAE) were established, their chairmen
Praesumptio Muciana. The jurist Quintus Mucius were taken anlong the praetors. The praetors were
Scaevola is considered the author of the presumption the highest magistrates in the Republic after the
that everything that a married woman possessed, was consuls and were vested with 1~111ili~Peritl~~t and far-
given to her by her husband unless she was able to reaching authority in military, administrative and
prove the contrary. judicial matters. But their principal domain was
Kubler, RE 16, 445; G. Donatuti, Le praesumptiones iuris jurisdiction; for their creative activity in the devel-
in dir. rorn., 1930, 15; G. Balis, Die P.M., M i l Streit opment of the law, see I U S HONORARIUM, I U S PRAE-
Athens, 1939.
TORIUM,IUS EDICENDI, EDICTUM PERPETUU~I. They
Praetendere. T o bring forward an excuse (a true or were obliged to reside in Rome and were not allowed
a false one), to pretend, for instance, the ignorance to leave the capital for more than ten days. Under
of the law. the Principate the activity of praetors was almost
Praeterire. See SENATU MOVERE. exclusively jurisdictional. Afterwards, when the
Praeterire. T o pass over in silence a person in a last jurisdiction was taken over by bureaucratic officials,
will. The so-called heredes sui (see HERES SUUS), the praetorship became an office without any impor-
natural or adoptive, had to be instituted or disin- tant activity. Its functions were limited to the ar-
herited (see EXHEREDATIO) ; otherwise if they were rangement of public games and spectacles.-D. 1.14;
not mentioned in the testament at all (praeteriti) the C. 1.39; 12.2.-See IURISDICTIO, STIPULATIONES PRAE-
latter was void and the testator was deemed intestatus. TORIAE,I N IURE, M A N U M I S S I O PRAETORIA, and the
-C. 6.28.-See POSTUMUS suus. following items.
Beseler, ZSS 55 (1925) 1 ; Sanfilippo, AnCam 12 (1938) Lkcrivain, D S 4 ; Anon., NDI 10; Treves, O C D ; F.
265. Leifer. Die Einheit des Gewalto~dankens,1916, 196: H.
Praeterita (scil. facta, negotia). Events which hap- ~ k v y - - ~ r u hPrudent
l, et prbteur:1916; G. T . Sadler, The
pened in the past, such as crimes committed before R. praetors, London, 1922; Wenger, Prator tmd Formel,
SbMiinch 1926; E. Betti, St Chiovenda 1927; Riccobono,
the issuance of a pertinent penal statute, legal acts T R 9 (1929) 6 ; F. Wieacker. Vom rb'm. Recht, 1944, 8 6 ;
and transactions concluded at a former time. Ant. Gioffredi, SDHI 13-14 (1948) 102.
futura = future events. The antithesis is connected Praetor aerarii. See AERARIUM POPULI R O M A N I .
with the problem of the retroactivity of legal enact- Praetor de liberalibus causis. A praetor with a spe-
ments. Non-retroactivity is the rule, but in a few cial jurisdiction in matters concerning the liberty of
exceptional cases some later imperial enactments, an individual, in particular, in controversies between
even of penal character, admitted retroactivity. Most slaves and their masters involving the liberty of the
of them are in the Theodosian Code.-See EX POST slaves. The office was still in existence in Justininn's
FACTO. times.
Siber, Analogie und Riickw'rkung im Strafrechte,
ASachGLY 43 (1936) ; Berger, Se?n 7 (1949) 6 3 ; Marky, M. Nicolau, Causa liberalis, 1933, 67.
B I D R 53-54 (1948) 241. Praetor fideicorn~issarius. A praetor instituted in
Praetextatus. See TWA PRAETEXTA, IMPUBES. the early Principate with jurisdiction in matters con-
Praetextus. See TOGA PRAETEXTA. cerned with fideico~rt~nissa.-See FIDEICOMMISSUM.
Kubler, DE 3, 75.
Praetor. I n the earliest times (before the introduction
of the consulship) the praetor was the highest official Praetor fiscalis. A special praetor with jurisdiction
(!rue-itor = one who goes in the front of the people). in controversies between the fisc and private indi-
As a magistracy (see MAGISTRATUS) the praetorship viduals. The office was instituted by the emperor
was created by the Lex Licinia Sextia (367 B.c.). Nerva (A.D. 96-98).
I t was assigned the civil jurisdiction which it took Praetor hastarius. A praetor who, in the later Prin-
over from the consuls. The office of the praetor cipate presided over the centumviral court.-See
urbanus was first created. Originally a patrician CENTUMVIRI, HASTA.
post, the praetorship was made accessible to plebeians Wlassak, RE 3, 1937.
since 337 B.C. The praetor urbanus had jurisdiction Praetor iuventutis. See MACISTER I U V E N U M .
(ius dicebat) in Rome; later (242 B.c.) a second Praetor liberalium causarum. See PRAETOR DE LI-
praetor was instituted and vested with jurisdictional BERALIBUS CAUSIS.
power in civil matters between foreigners (inter Praetor maximus. A controversial office ; see~ningly
peregrines) and between foreigners and Roman citi- the highest among three officials who at the beginning
zens (praetor peregrintls) . Since the government of of the Republic had the sovereign governmental power
provinces was originally directed I)y praetors their (dictator? magister populi?) .
number constantly increased (up to 16). Later, it Heuss, ZSS 64 (1944) 68; Wesenberg, ZSS 65 (1947)
became customary to send ex-praetors after their 319.
ADOLF BERGER
Praetor peregrinus. See PRAETOR. For the influence Pragrnatica sanctio. I n the later Empire an imperial
of the judicial activity of the praetor peregrinus on enactment of a particular importance and of a gen-
the developn~entof the so-called ills gentitlm, see IUS eral and permanent validity. It concerned the general
GENTIUM (Bibl.). administration, privileges granted larger groups of
Nap, T R 12 (1933) 170; Gilbert, Res Iudicatae 2 (Mel- persons, orders given to officials of a larger adminis-
bourne, 1939) 50; Daube, J R S 41 (1951) 66. trative body or corporations, etc. Letters by which
Praetor populi (plebis). An official instituted by the emperors of the Eastern and Western parts of the
Justinian (Nov. 13, A.D. 535) for criminal jurisdic- Empire reciprocally exchanged their enactments to
tion, with a competence similar to the former PRAE- be published in the other part of the Empire, were
FECTUS VIGILUM. also termed pragmatica sanctio. Syn. prag~natica
Praetor tutelarius (tutelaris). A praetor (from the inssio, pragmatica lex, or simply pragmatica, or prag-
time of hIarcus Aurelius) charged with the appoint- nzaticum. Special functionaries of the imperial chan-
ment of guardians and with jurisdiction in contro- cery, pragmaticarii, were entrusted with the drafting
versies between guardians and their wards. of such enactments.-C. 1.23.-See SANCTIO PRO
Preisendanz, R E 7A, 1608. PETITIOKE VIGILII.
times a hereditary succession, in fact, when an em- 78 (1947) 140; Dell'Oro, S D H I 13-14 (1947-1948) 316;
F. De Visscher, Nouvelles Etudes, 1949, 3 ; Beranger,
peror indicated his successor ( a natural or adoptive Museum Helveticum 5 (1949) 178; De Robertis, R I D A
son, or a near relative) by designating the latter as 4 (1950) 409.
his heir thereby implying the wish that his heir might Princeps. (Generally.) An outstanding personage,
be also his successor as the princeps. A similar a chief, in civil or military service.
designation of a successor might be expressed by the Princeps agentium in rebus. The chief of the AGEN-
appointment of a co-regent. he juridical structure TES I N REBUS.-C. 12.21.
of the Principate has remained controversial in spite Giffard, R H D 14 (1935) 239.
of a tremendous literature in recent times on the occa- Princeps centurio. See CENTURIO.
sion of Augustus' bimillenary. The Principate can Princeps civitatis. X leading man in the state.
hardlv be classified as a unifo;m constitutional svstem. Princeps coloniae (municipii). Not an administra-
I t started from the tendency of Augustus to keep in tive official but an outstanding personage in a colony
force certain Republican institutions, but in the course (municipiutn), usually an ex-magistrate of a higher
of time some authoritarian features were added at rank.
the expense of earlier democratic elements. so that Kornemann, R E 16, 626.
the constitutional aspect at the beginning of the Prin- Princeps iuvenum (iuventutis). The title of the em-
cipate was gradually disappearing in later times, par- peror's son when he put on the toga virilis and en-
ticularly under Hadrian and in the late first half of tered service in the cavalrv. H e was the head of the
the third centuri. With the reign of Diocletian a young men of equestrian rank.
new epoch started in the Roman constitutional devel- Weinstock, R E 6A, 2184; Cagnat, D S 4 ; Balsdon, OCD.
opment with an autocratic monarch at the head of the Princeps (principes) legionis. Soldiers of the second
empire (no more princeps, but imperator). This line in the legion, older than the first line infantry men
period is termed (perhaps not very appropriately) (hastati) and sent into combat after them. The com-
Dominate, the emperor being now (from the time mander of a centuria composed of principes also had
of Aurelian, A.D.27C-275) the master, dontinus, over the title princeps (centurio).
the territory and the population of the state. See, Princeps legibus solutus. This principle stating that
moreover, LEGATI CAESARIS, PROCURATOR CAESARIS, the emperor is above the law appears in Justinian's
RES PRIVATA CAESARIS, CONSILIUM PRINCIPIS, FISCUS, Digest as a general one. It is clear, however, that in
MAGISTRATUS, DIVUS, GENIUS, D A M N A T I O MEMORIAE, the source (D. 1.3.31) from which it was taken the
EPISTULAE PRTNCIPIS, DOMUS DIVINA, MAIESTAS, CON-
rule originally referred only to the exemption of the
SORTES IMPERII, RES GESTAE DIVI AUGUSTI, AUCTORI-
emperor from the restrictions imposed by the Lex
Iulia et Papia Poppaea. Under the Principate the
TAS PRINCIPIS, MANDATA PRINCIPUM.-POTthe legis-
rule had the meaning that the emperor might abolish
lative activity and legal policy of the individual em-
or change the laws as he pleased.-~ee LEG IULIA DE
perors, see General Bibliography, Ch. VI. MARITANDIS ORDINIBUS.
Cagnat, D S 4 ; Lecrivain, ibid. (s.v. principatus) ; Balsdon, De Francisci, BIDR 34 (1925) 321; Schulz, Engl. Hist.
O C D ; 0. Th. Schulz, Wesen des r5m. Kaisertums der Rev. 60 (1945) 155; A. Magdelain, Atirtoritas principis,
ersten -mei Jahrhunderte, 1916; Domaszewski, Die Con- Paris. 1947. 109.
sulate der rb'm Kaiser, SbHeid 1918, 6 ; Schonbauer, Z S S
47 (1927) 264; GagC, Rev. historique 177 (1927) 264; E. ~ r i n c e ~ officii.
s' See OFFICIUM PALATINUM. Any
Kornemann, Doppelprinzipat und Reichsteilung, 1930; L. head of an administrative office, civil or military, used
R. Taylor, The divinity of the R . Emperor, 1931 ; H . Siber. the title princeps, e.g., princeps agentiuflt in rebus.
Zur Entwicklung der rb'm. Prinzipatsverfassurtg, ASiich -C. 12.57.
G W 42 (1933), 44 (1940) ; A. Gwosdz, Der Begriff des Marchi, St Fadda 5 (1906) 381; E. Stein, Z S S 41 (1920)
rb'm. P., Diss. Breslau, 1933; M. Hammond, The Augus- 195.
tean Principate, 1933 ; L. Berlinger, Beitrage zur inofiziel-
Zen Titulatur der rbm. Kaiser, 1935; Hohl, Herm 70 Princeps scrinii. The head of an imperial bureau in.
(1935) 350; F. De Martino, Lo stato di Augusto, 1936; the later Empire. The principes scrinioru~n were
Wagenvoort, Philologus 91 (1936) 206, 323; W . Weber, subject to the magister oficiorum.
Princeps, 1936; S. Riccohono, Jr., Augusto e il problema Princeps senatus. A distinguished, leading mernher
della nuova costituaione. AnPal 15 (1934) 363; Arangio-
Ruiz, SDHI 1 (1935) 196, 2 (1936) 466, 5 (1939) 570; of the senate. I n the list of senators his name was
A. v. Premerstein, Wesen und Werden des Prinzipats, at the head. Augustus and his successors assutned
ABayAW 1937; Sickle, Changin.9 Oases of the R . im- this Republican title.
perial po7uer, AntCl 8 (1939) 153; Beranger, L'hhrhdith O'Brien-Moore, R E Suppl. 6, 699.
du Principat, Rev. Et Lat 17 (1939) 171 ; R. Syme, The Principales. (Noun.) In military service officers of
R . revolution, 1939, 313; P. De Francisci, Genesi e strut-
tura dcl principato au,qusteo, ,\fern. Accad. d'ltalia, Ser. a lower rank, technicians, n~usicians,etc., in the army.
VII, 1941 ; idem, Arcana imperii, 3 (1948) 169; Kolbe, They were organized in associations (collegia).
Klio 36 (1943) 22; Ensslin, SbMiinch 1943, 6 Heft; Waltzing, DE 2, 367; Drake, Univ, of Jlirhigan Studies,
Wickert, Klio 36 (1943) 1 ; De Laet, AntCl 14 (1945) Human. Ser. 1 (1904) 261.
vol.. 43, PT. 2, 19.531 ENCYCLOPEDIC DIC'TIt 3 N A R Y OF ROMAN LAW 65 1
Principalis. (Adj.) Connected with, pertaining to, or Privatim. Privately, in a private capacity. Ant.
originating from the emperor, as, e.g., principalis con- publirc = in public, pu1)licly. The distinction is
stitutio, iussio, cognitio, bcneficiu~~~. parallel to that between publicus and privatus. Pri-
Principalis. (Adj.) First in place, degree, or impor- vatinz refers also to official acts of the Draetor when.
tan'ce, as opposed to another person or thing of minor in exceptional cases, he perforn~edthem (as, for in-
or secondary importance. Thus rcs principalis ( = stance, nlanumissions) at home (in villa).-See DE
the principal thing) is distinguished from ACCESSIO; PLANO. I N TRANSITU.
heres principalis (= the principal heir) is opposed tb Privatus. (Noun.) A private person as opposed to
the substituted heir (see SUBSTITUTIO). a public official, a corporate body, the fisc, or a mem-
Principalis. (Noun.) The highest official in the ber of the military.-See UTILITAS PUBLICA.
n~unicipaladministration or in a specific office. Syn. Privatus. (Adj.) Connected with, or pertaining to,
a private person. Ant, publiczts = all that concerns
Principatus. The high position of the emperor (see the Roman people (populus Ro~tzanus= the state) .--
PRINCEPS) ; the highest rank in an office. See RES PRIVATAE, RES PRIVATA CAESARIS, ACTIONES
Principi placuit. See CONSTITUTIONES PRINCIPUM. PRIVATAE, DELICTUM, UTILITAS, INTERDICTA PRIVATA,
Principia. In military ternlinology the center of a ITER PRIVATUM.
military camp, the area about the tent of the com- Privignus. A stepson, i.e., a son of one's wife by a
manding general (praetorium). In the principia were former marriage or a son by concubinage. Privigna
the tents of higher officers and commanders of minor = a stepdaughter.
units. There was also the place where the higher Privilegium. A legal enactment concerning a specific
officers gathered to receive orders. person or case and involving an exemption from com-
Lecrivain, D S 4, 640; Saglio, D S 1, 945. mon rules. Originally privilegiunz might indicate un-
Principium. The initial words of an interdictal for- favorable treatment of the person involved. The
mula. S o ~ einterdicts are denoted bv their first Twelve Tables ordered that "privileges should not be
words, as, e.g., interdicta uti possidetis, utrubi, quorum imposed'' (privilegia ne imoganto) . - Later, however,
bonoruutl, quavn hereditafet~t. I n citations of texts the term assumed the meaning of an exceptional favor
of Justinian's legislation principium (= pr.) indicates granted an individual or an indefinite number of
the introductory passage of a text where numbered persons, as, for instance, a certain category of credi-
sections follow. tors (called privilegiarii) to whom a better-legal posi-
Prior. Prior in degree, rank, or time. Ant, posterior. tion was assigned than other creditors of the same
L e x prior = an earlier law. Prior heres (syn. prin- debtor. There is a distinction between privilegia
cipalis) = an heir first instituted, before the heir causae and privilcgiuutl personae, the first being con-
substituted to him; see SUBSTITUTIO. nected with the matter itself, as with certain specific
claims, the latter being attached to a person or a
Prior. In the election of magistrates, when a candidate group of persons with regard to their profession or
for a higher magistracy received a majority of the
social position. Only the first were transferable to
centuriae voting in the comitia centuriata, the voting the heir of the privileged person. Privileged claims
was not continued further. The magistrate so elected were, for instance, the claims of a ward against his
was designated as prior, e.g., prior (consul) factus est. guardian or curator, or the claim of a wife against
Liebenam, R E 4, 693.
her insolvent husband for the restitution of a dowry.
Prior tempore potior iure. - "He who is first in time Under the Empire privilegiuwz is used sometimes as
has a better (stronger) right" (C. 8.17.3). The syn. with IUS SINGULARE.
rule refers to a thing pledged successively to several Beauchet, DS 4; Anon., N D I 10; Legras, 2VRHD 32
creditors by the same debtor. The creditor to whom (1908) 584, 650; Ramadier, N R H D 34 (1910) 549; E.
the thing w9s pledged first had to be satisfied before Fais, Ricerche sztlla storia 1 (1915) 401 ; R. Orestano,
those to whom the thing was pledged subsequently.- Ius sifigulare e p., AnMac 12-13 (1939) 5.
D. 20.4; C. 8.17.-See PIGNUS,HYPOTHECA, POTIOR Privilegium exigendi. A right granted certain cate-
I N PIGNORE. gories of creditors against an insolvent debtor under
A. Biscardi, I1 dogma della collisione, 1935, 49; idenz, which they had to be satisfied before other creditors.
S D H I 4 (1938) 484. Orestano, AnMac 13 (1939) 24; S. Solazzi, I1 concorso
Priscus. Some jurists had the surname (cognowten) dei creditori 3 (1940) 132.
Priscus, anlong them Iavolenus and Neratius. There- Privilegium fisci. See IUS FISCI.-C. 7.73 ; 10.1 ; 5 ; 9.
fore, when a text appears under the name of Priscus, Privilegium fori. The privilege granted in the later
the authorship may be doubtful. The jurist Fulcinius Empire to ecclesiastical persons to have recourse to
(Priscus) enters also into consideration. ecclesiastical jurisdiction.
Berger, R E 16, 2549; 17, 1832. Genestal, N R H D 32 (1908) 162.
Privatiani. Officials subordinate to the COMES R E R U M Privilegium funerarium. The expenses for the fun-
PRIVATARUM . eral of an insolvent person had to be covered from
652 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
his property first, beiore the satisfying of the claims (see HERES EXTRANEUS, VOLUNTARIUS). When a
of his creditors. heres suus or heres suus et necessarius acted in the
Privilegium (privilegia) militurn. The privileges of way mentioned, his doings were qualified as se im-
soldiers in the field of private law, as, for instance, miscere (miscere) hereditati and resulted in his 10s-
their right to make a testament without observance ing the right to refuse the inheritance ( i u s abstinendi,
of the forms prescribed for civilians.-See MILITES. see ABSTINERE SE HEREDITATE).In order to avoid
Pro. (Connected with the title of a high magistrate, such consequences the person so acting could declare
proconsul, propraetor, proquaestor, or separately before witnesses (testatio) that his acts did not imply
written pro consule, pro praetore, pro quaestore.) the acceptance of the inheritance.
Originally indicated a magistrate who acted as a Berger, RE 9, 1108 (s.v. immiscere) ; Sanfilippo, AnCat
substitute for the magistrate involved. Under the 2 (1947-48) 166.
Republic a pro-magistrate was either a former magis- P r o here& usucapio. See U ~ ~ ~ A PRO HEREDE.
P I O
trate whose functioning was extended beyond the year P r o nihilo esse (haberi). T o be (considered) legally
of service for special reasons (see PROROGATIO) or an void.
.official who was temporarily appointed (not elected Hellrnann, ZSS 23 (1902) 426.
various titles which led to usucaption when the holder Sachers, RE 7A, 1525, 1585.
of a thing erroneously, but in good faith, assumed Probare. T o approve. The term is us:d to indicate
he was entitled to keep it as his. Thus the title pro the approval of one jurist's opinion by ariother jurist.
emptore possidere means that one held a thing which Syn. adprobare.
he acquired by purchase; pro legato was used when Probare. I n court or extrajudicially, to prove, to
one received a thing in fulfillment of a legacy; pro ascertain through evidence.-See ONUS PROBANDI,
donato, when one received a thing as a gift from a PROBATIO.
non-owner ; pro dote, when a husband received a Probare opus. I n connection with a locatio conductio
thing in a dowry; pro soluto, when a thing was given operis faciendi, see ADPROBARE.
in fulfillment of an obligation ; pro derelict0 when one Samter, ZSS 26 (1905) 125.
took a thing abandoned by a person whom he con- Probatio. Proof, evidence, the act of proving. In
sidered the owner. In all these cases the holder civil trials there was the rule: ei incumbit probatio
(possessor) of the thing was regarded as possessor pro qui dicit, non qui negat (he who affirms has to
suo since he possessed it in the belief that he was its prove, not he who denies, D. 22.3.2). The plaintiff
owner whereas in actual fact, he was not the owner therefore, has to prove the facts on which his claim
because the transferor himself (the seller, the donor, is founded, the defendant those facts which serve as
etc.) had not been the owner or the legacy or dona- a basis for his denial of the plaintiff's claim or for
tion were invalid.-D. 41.4-10.-See TRADITIO, USU- his exception opposed thereto. Each party has free
CAPIO,POSSESSIO, POSSESSOR PRO HEREDE,
acting in the presence of the party whofii ,he repre- Roman territory or of a Roman soldier or citizen
Procurator rationis privatae. See PROCURATOR REI denunciation of a crime to the authorities.-See
MAIESTAS, PERDUELLIO.
Procurator regionum urbis Romae. See REGIONES C. Brecht, Perduellio, 1938, 91 ; 191.
Procurator rei privatae. The administrator of the was an explorator ( = a soldier assigned to the recon-
emperor's private property. This high ranking of- noitering service) who betrayed military secrets to
ficial had also the title procurator rationis privatae the enemy. H e was punished with death. Syn. re-
or, in the provinces, rnagister rei privatae. From nuntiator.
656 ADOLF BERGER [TRANS.AMER. PHIL. SOC.
Proditus. (From prodere.) Originating from, intro- Professio liberorum (natorum). A declaration made
duced by (a statute or a praetor in his jurisdictional before competent authority by the father (mother or
capacity, as, e.g., an action or exception). grandfather) concerning -a new-born child. These
Profanum. A profane thing. Ant. sacrum; see RES returns served as the basis for entries into an official
SACRAE. Profanz(s locus is the ant. of religiosus register of births of legitimate children of Roman
locus. See RES RELIGIOSAE. A place in which a dead citizens. The registration was ordered by Augustus.
person was buried temporarily, merely to be trans- Cuq, DS 4, 675; idem, Mkl Fournier 1929, 119; F. Lan-
ferred later into a grave remained locus profanus. franchi, Ricerche sul valore giuridiro delle dirhiaracioni di
nascita, 1942; Weiss, BIDR 51/52 (1948) 317; Schulz,
Profecticius. See DOS PROFECTICIA, PECULIUM AD-
JRS 32-33 (1942, 1943 = BIDR 55-56, Post-Bpllum, 1951,
VENTICIUM. 70) ; Montevecchi, Aeg 28 (1948) 129.
Proferre. T o produce a document ( a testament) in Professor. Syn. magister, anteccssor. Professores
court, to present witnesses (testimonia, testes) ; to iuris cwilis = law teachers. Teaching law (civilis
produce i n public. sapdentiaf."should not be estimated nor dishonored
Proferre diem. T o prolong, to defer (the term of a by a price in money," since "the wisdom of law is
payment). a very sacred thing (civilis sapientia e2t res sanc-
Proferre sententiam. T o Dronounce a judgment in a tissivna," D. 50.13.1.5).-C. 10.53; 12.15.-See M A -
trial. Hence sententza prolata = a judgment pro- GISTER, ANTECESSOR, HONORARIUM.
nounced by a judge. Proficere. T o be useful. Profcit is said when a legal
Professio. (From prof teri.) A declaration (return) transaction or act serves- the plirpose for which it
made before an official authority (apud tnagistratuvn, was done. Ant. non proficere = to be of no legal
apud acta = for the records). The professiones con- effect (use).
cerned different matters, primarily personal connota- Proficisci (a, ab, ex). T o originate, to arise from
tions of a person (such as age, liberty, family status), (e.g., the praetorian edict, praetorian jurisdiction, a
the birth of children, and the like. The professiones testament).
could be made personally by the individuals involved, Profiteri. See PROFESSIO.
by a representative of an absent person or by a Profundere bona. T o dissipate one's property.-See
guardian for persons under guardianship.-See the PRODIGUS.
following items. Progenies. Descendants. The term occurs only in
Cuq, DS 4; Elmore, JKS 5 (1915) 125; Reid, ibid. 207. i m ~ e r i a lconstitutions.
Professio. Candidates for a magistracy had to declare Programma. A proclamation, a inanifesto of the em-
their willingness to compete for a certain magistracy peror or of a provincial governor. Whdn addressed
before the magistrate who convened the popular as- to a private person, the term denotes an edictal (pu1)-
sembly and later presided over the particular election lic) summons of an absent person.-C. 7.57.
(consul, praetor, plebeian tribune). A statute. of the F. v. Schwind, Zur Frage der Publikation, 1940, 114.
late Republic required a personal appearance on the Prohibere. T o prohibit, to forbid. The term is used
part of the candidate before the competent magistrate, of prohibitions issued in certain situations by a pri-
who in case of acceptance, put the candidate's name vate individual (e.g., by a co-owner or a neighbor)
on the list to be announced in public before thd and of prohibitive orders of a magistrate or of a
election. The magistrate had the power to refuse Statute. See IUS PROHIBENDI, C O M M U N I O . ACTIO
a candidate's admission, if the latter seemed to him PROHIBITORIA. INTERDICTUM. OPERIS NOVI NUNTIA-
ineligible for a specific reason.-See CANDIDATUS, TIO, IUS AEDIFICANDI. With reference to criminal
MAGISTRATUS.
offenses prohibere = to impede, to prevent. Gen-
Brassloff, R E 4, 1697.
erally no one is bound to intervene in order to pre-
Professio censualis. A declaration concerning his vent a crime except when the crime is directed against
family and property made by a citizen before the the state or in certain specified cases, such,'as counter-
censors during the CENSUS. These professiones served feit of coins, abduction, or murder of a near relative.
military and taxation purposes. Under the Empire In such cases one had to prevent the wrongdoer from
a perfected census system was set up by the imperial committing the crime if he could do it (cum prohibere
bureaucratic machinerv. Fraudulent returns were potuit) ; otherwise he risked heing treated as the
severely punished. criminal's accessory.-See FURTUM PROHIBITUM.
Schwahn, R E 7A, 55: Cuq, DS 4, 674. Honig, Fschr Heilfron 1930, 63.
Professio frumentaria. A return made by persons kohibitorius. See ACTIO PROHIRITORIA, INTERDICTA
who requested the admission to the list of those who PROHIBITORIA.
received gratuitous tlistribution of corn.-See FRU- Proiectio (proiectum). A part of a building project-
MENTATTO. ing over a neighbor's property. The construction of
Mitteis, ZSS 33 (1912) 171; Elmore, J R S 5 (1915) 125;
Gittardy, CIas Quarterly 11 (1915) 27; v. Premerstein, a proiectio could be prohibited by the neighbor.-See
ZSS 43 (1922) 59. PROTECTUM. OPERIS NOVI NUNTIATIO.
VOL.43, PT. 2, 19531 ENCYCLOPEDIC D I C T I ONARY O F ROMAN LAW 657
Proinde. See PERINDE. With reference to judicial trials (primarily civil),
Proles. Syn. with PROGENIES. the terms are used of declarations by both the magis-
Proletarii. Men without property. Originally the trate and the judge in the bipartite procedure as well
term was applied to persons not registered in the as by the jurisdictional magistrate in the cognitio
classes of the centuriate organization (see CENTURIA) extra ordinetn. Pronuntiare secund~wtz actorem
because they had not even the minimum property (reuwz) = to pass a judgment in favor of the claimant
required for the lowest class. Their sole possession (the defendant) ; pronuntiare adversus (or contra)
was their children, proles; hence the name. The actorem (reum) = to pass a judgment against the
proletarii were the poorest stratum of the population. plaintiff (the defendant). Pronztntiatio is often used
Ant. classici = those registered in the first class of a judicial decision concerning the status of a free
according to their property, see CLASSICUS.-SeeAD- man or slave, the validity of a testament or marriage,
SIDUI, CAPITE CENSI. etc. In so-called ACTIONES ARBITRARIAE and in the
Lbcrivain, DS 4; Gabba, A t h 27 (1949) 175; idenr, Riv. procedure before the emperor (in either the first or
di filologia classica 1949, 173. the appellate instance) pronztntintio is used in the
Prolytae. Fifth-year students in the Eastern law sense of an interlocutory decision.-See SENTENTIA,
schools.-See LYTAE.
Promercium. See C O M M E R C I U M . NUNTIARE).
Promiscua condicio. See C O N ~ I C I O MIXTA. G. Beseler, Beitriige zur Kritik 2 (1911) 139, 3 (1913) 3 ;
Promissio, promissum. (From promittere.) A E. Betti, L'antitesi di iudirare ( p . ) e dontrlare rtello svolgi-
mento dcl processo rom., 1915; M. Wlassak, Jrtdikations-
promise which created an obligation on the part of befehl, SbWien 197, 4 (1921) 77; Siber, ZSS 65 (1947) 3.
the promissor. It is a general term applied to both Pronuntiatio sententiarum. In the senate the an-
contractual and unilaterally assumed obligations, to nouncement by the presiding magistrate of opinions
written and oral, formal and formless promises. But expressed by individual senators on a topic on which
the specific application of the term is to obligations a vote was to be taken.
arising from a STIPULATIO, either by the principal O'Brien-Moore, R E Suppl. 6, 715.
debtor or by a surety.-See REUS PROMITTENDI, AD- Prope (propius) est. It is proper, adequate, easy to
PROMISSIO, CAUTIO. In Justinian's legislative work understand. The locution is frequent in the juristic
the terms promittere and pronzissio were substituted language.
for obligations which in earlier law had to be con- Propinqui (propinquitas). Near relatives, neighbors.
tracted through stipulatio. -See C O N C I L I U M PROPINQUORUM.
Promissio dotis. The constitution of a dowry by a
Proponere. T o submit a case (proposita species, qttacs-
formless promise. It replaced both the formal DICTIO
tio) to a jurist for an opinion. The respondent jurist
DOTIS and the stipztlatio dotis in later times and was
gave his view on the basis of the facts as alleged
substituted therefor in classical texts by Justinian's
by the questioning party (propositztm, in proposito) .
compilers.-C. 5.1 1.-See P O L L I C I T A T I ~ DOTIS.
Some jurists, therefore, used to give their opinion
Promissio operarum. See IURATA PROMISSIO LIBERTI.
with the reservation, "according to what has been
Promissio post mortem. See ~ B L I G A T I OPOST MORTEM.
alleged," or with a clause excluding or restricting a
Promittere. See PROMTSSIO.
certain decision (nihil proponi cur . . . = nothing
Promovere (promotio). T o confer a higher rank or
has been alleged as to why or why not . . . I .
an honorific title on an imperial official. The tern1 Proponere (propositio). (With regard to magisterial
occurs only in imperial constitutions. edicts and imperial enactments.) T o expose to pub-
Promulgare (promulgatio). T o publish, to promul- lic view. From the time of Hadrian, imperial re-
gate a law. In the Repuhlic, the text of a bill sub- scripts could be made public I,y propositio.-see
mitted to a popular assembly was promulgated in the PROSCRIBERE LEGEM, PP.
form of an edict by which the magistrate who pro- F. v. Schwind, Zur Fragc der Pttblikotion. 1910, 167.
posed the law publicly announced its text. Altera- Proponere actionem (interdicturn). T o announce in
tions were not permitted. Between the prowzul~jafio the uraetorian Edict an action and its forniula or an
and the gathering of the assembly convoked for the interdict to be granted in specific circumstances Ijy
purpose a lapse of time called trin~tndinzdnz(presum- the praetor acting in his jurisdictional capacity.
ably twenty-four days) was obligatory.-See PP. Propositio (propositum). A case presented for a
G. Rotondi, Lr,qcs prtl~licoe poptili Rolnani, 1912, 123; v. juristic opinion.--See PROPONERE.
Schwind, Zur Frogc drr Pttblikation, 1940. Propositurn. X poster.-See HORREARIUS. PROPONERE.
Pronepos (proneptis). A great-grandson (a great- Propositum. Intention. The term is used with refer-
grantltlaughter ) .-See NEPOS. ence to good or (more frequently) to evil intention
Pronuntiare (pronuntiatio). General terms for legally (e.g., to commit a crime, to steal).-See IMPETUS.
important ~~ronot~ncements (declarations) made I)y Propositus. E.g., proposita causa, species.-See n o -
officials, a&l on rare occasions by private persons. I'ONERE.
ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Propraetor (pro praetore). An ex-praetor as a gov- reward was offered for his head. ~he'ill-famedpro-
eriior of a senatorial province (provincia praetoria) ; scriptions by the dictator Sulla were ordered by the
a praetor whose term was prolonged for exceptional Lex Cornelia de proscriptione (82 B.c.). In later
reasons on advice of the senate.-See PRO,PROROGATIO imperial constitutions proscripti (proscriptio) is used
IMPERII,LEGATI PROCONSULIS,
Lkcrivain, D S 4 ; W. F. Jashemski, OrigCts and history of Proscriptio albi. Listing a person in the publicly
the proco~tsularartd propraetorian itnperiunz, Chicago, 1950.
exposed ALBUM DECURIONUM. Entry in the list with-
Proprietarius. See DOMINUS PROPRIETATIS. out a preceding election is without any. legal effect.
-
PROCURATORES (primarily for the financial adminis- Provincialis. (Noun.) An inhabitant of a province
tration) who were subordinate not to the governor "who has his domicile there, not one who is born in
but directly to the emperor. O n occasion, the em- a province" (D. 50.16.190) .-See D O M I C I L I ~ M .
peror sent special delegates in a specific mission who, Provisio. I n the sense of a legal enactment (provi-
too, were directly responsible to him. The soil of sion), the term prevails in the language of the imperial
imperial provinces (praedia tributoria) was consid- chancery of the later Empire.
ered property of the einperor and all imposts and Provocare. T o challenge, to provoke (a jurisdictional
revenues from these provinces went to the imperial measure in a trial). The term is primarily used of
fisc. See TRIBUTUM.Some provinces annexed to appeals from judgments of a lower instance to a
the empire were governed by imperial procuratores higher one; see PROVOCATIO.
of equestrian rank. The emperor exercised his power Provocare a d populum. See PROVOCATIO.
over those territories not by virtue of the imperiul~t Provocare sacramento. T o challenge the adversary
proconsulare vested in him by the people, but as the by a sacramentunz ; see LEGIS ACTIO SACRAMEXTO.
successor of their former sovereigns (kings or Provocare sponsione. T o challenge one's adversary
princes) .-See PROVINCIA. in a trial by a sponsio in order to make him pronlise
Provinciae consulares. Provinces assigned to ex- to pay a certain sum in case of defeat, e.g., "Do you
consuls by the Senate under the Republic.-See promise to pay me . . . if the slave is mine under
SENATUSCONSULTUM DE PROVINCIIS CONSULARIBCS. Quiritary law?"-See AGERE PER SPONSIONEM.
Provinciae populi Romani. See PROVINCIAE SENATUS. Provocatio (provocare). An appeal by a citizen con-
demned by a magistrate in a criminal trial, to the
Provinciae praetoriae. Provinces governed by ex-
popular assemblies (provocatio ad pop~al~nr~, a ~rtagis-
praetors as governors.
tratu, adversus *nagistratum) under the Republic.
Provinciae principis. See PROVINCIAE CAESARIS. An appeal from capital punishment went to the
Provinciae procuratoriae. Provinces of the emperor co~nitiaccnttiriata, from a pecuniary fine (MUI.TA)
governed by procuratores.-See PROVINCIAE CAESARIS. to the co~riitiafributa. Several Repuldican statutes
W. E. Gwatkin, Cappadoeia as a R. procuratorian provirtrc, regulated the procedure of proz~oratio: LCX Valeria
Univ. of Missouri Studies V , 4 (1930) ; P. Horowitz, Le de provocatione, Lex Valeria Hovatia, Lex Duilia,
principe de crkafion dcs provinces procuratorienlzes, Rev.
Belge de philol. ct d'hist., 1939. L c r Porcia. Lcx Sembronia. There was no bro-
Provinciae senatus. Provinces under the control of vocatio from a decisioi of a dictator, from a j;dg-
the senate. I n the Republic the senate directed the ment of the DECEMVIRI, or from that of the criminal
administration of the provinces through governors courts, quaestiones. Under the Empire an appeal
selected froin among former consuls and praetors was addressed to the emperor (provocatio ad inzpera-
(hence the distinction between provinciae consulares torem, ad Caesarem). In civil matters provoratio
and praetoriae). From the time of Augustus there is syn. with appe1latio.-C. 7.64; 70.-See A N Q U I -
were two categories of provinces, imper&l (see PRO- SITIO.
Lkcrivain, DS 4; Strachan-Davidson, Problelns of R.
V I N C I A E CAESARIS) and senatorial. Henceforth the rri?tzi?lal law 1 (1912) 127; Diill, Z S S 56 (1936) 1 ; G.
senate had full control only over the senatorial prov- Pugliese, Apptinti sui limit; dcll'imperium, 1939. 62 ;
inces. The governors of these provinces were p . 0 - Biecht, Z S S 59 (1939) 261; Siber, Z S S 62 (1942) 376;
consuls appointed by the senate and subject to its Heuss, Z S S 64 (1944) 104.
orders and instructions. From the second centurv on Provocator. H e who appeals through PROVOCATIO.
it became customary for imperial functionaries (COR- Proxeneta. A broker, an agent. H e could sue his
RECTORES, CURATORES CIVITATIS)t o supervise the client for compensation for his services in a cognitio
financial administration, which in these provinces was extra ordinem. Proxenetica~nt= a broker's (factor's)
the governor. The soil was considered the property Siber, IhJb 88 (1939-40) 177.
of the Roman people (see PRAEDIA STIPENDIARIA).Proximi. ( I n the administration.) Lower officials,
An impost (see STIPENDIUM) was levied on com- assistants to the head of an office and his substitutes
munities; they in turn assessed it on the inhabitants. during his absence. Generally they succeeded their
O'Brien-Moore, ICE Suppl. 6, 793; McFayden, The prin- superiors when the office becan~evacant. The vari-
ceps and the senatorial provinces, ClPhil 16 (1921) ; J. M. ous divisions of the imperial chancery each had their
Cobban, Senate and provinces ( 7 8 4 9 B.C.), Cambridge, proximi (proximi ab epistulis, a libellis, a nlc~rloria,
1935. a studiis, proximi scrinii) .-C. 12.19.
Provincialis. (Adj.) Refers to different matters (rcs Proximus agnatus. See AGNATUS PROXIMUS.
provincialis), both to persons soinehow connectetl Proximus infantiae (infanti), pubertati. See IN-
with a province and its administration and to pro- FANS, IMPUBES.
vincial soil (fundus provincialis, pracdium provin- Prudentes (prudentiores). In the sense of iuris pru-
ciale) .-See EDICTUM I ~ R O V I N C I A L E . dentes, see IURISCONSULTUS, IURISPERITUS.
VOL. 43, FT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 661
Prudentia. Used in imperial constitutions for iuris- ties concluded with other states were engraved on
prztdentia. two bronze tablets, one of which was posted on the
Pubertas. See IMPUBES,MINORES, HABITUS CORPORIS. Capitol in Rome. For the publication of edicts of
Pubertds plena. See MINORES. magistrates (praetors), see ALBUM. Senatusconsulta
Pubertati proximus. See INFANS. acquired legal force when deposited in the aerariuln;
Pubes. See IMPUBES. public exposition was not compulsory. As for im-
A. B. Schwarz, Z S S 69 (1952) 345. perial legislation, enactments of general import, bind-
Pubescere. T o become capable of procreation (pubes, ing throughout the whole empire or in a larger part
see IMPUBES). Ant. pubescere non @test = im- of it (all edicta and decreta of special significance),
potent; see SPADO. were sent to the provincial governors who took care
Publicani. Farmers of public revenues (taxes, salt of making them public in the cities.-See pp., PRO-
and metal mines, chalk pits, etc.). They were or- PONERE,PROMULGARE.
ganized in financial companies (societates publicano- Landucci, A t t i Accad. Padova, 2 (1896) ; G. Rotondi,
rum) which at the public auctions arranged by the Leges publicae populi Rom., 1912, 167; F. V. Schwind,
state for the lease of the pertinent rights acted col- Z u r Frage der Publikation inz rotn. R., 1940.
lectively through their representative (nzanceps) . Publice. I n public, in the public interest, in a public
Senators were prohibited from participating in co]- place (in court). S Y ~ in. pzrblico.-See INTEREST
lection of taxes or other imposts. The publicani were ALICUIUSj UTILIS PUBLICE.
businessmen of equestrian rank. During the Punic Publice venire. T o be sold at a public auction. Ant.
wars they acquired great fortunes and, subsequently, privatim venire.
also a great influence in political The of Publiciana in rem actio. See A C T I ~I N REM PUBLI-
the association of publicani were managed by a 'IANA.
magister societatis publicanorurn, assisted by a staff Publicum (publica). Public property (of the Roman
of subordinates throughout the territory (province) people), public treasury (see AERAR1uM).In pub-
in which the society had leased the particular revenues lic' = publice.
involved. The provincials suffered much under that Publicus. Connected with, pertinent to, available to,
Or in the interest of the Ron'an peoPle. Prop-
system of tax-collecting. The sociefasw as not dis-
solved by the death of a member; his heir could be erty (bona PubLica) is what the
accepted in his place. Tax-farming was also .prac- people" (D. 50.16.15). The adjective pzddiczls is
ticed in nlunicipalities.-D. 39.4.-See CONDUCT ORE^ to various concel'ts in contrast to Privatt's,
VECTIGALIUM, REDEMPTOR VECTIGALIUM, SOCII,EDIC- such as ius, kdicia, res, lcges, mltsa, ttfilitns, cri~ttina,
T U M DE PUBLICANIS.
oficium, etc.-See also RES PUBLICA,DELICTUM,
cagnat, DS 4 ; D~ villa, N D I 10 ; stevenson, OCD ; F. LOCUS PUBLICUS, INTERDICTA DE LOCIS PUBLICIS, AGER
Kniep, Societates publicanorurn, 1896 ; M. Rostowzew, PUBLICUS, ITER, VIA, MUNERA, MONUMENTA, VIS,
Gesch. der Staatspacht in der riim. Kaiserstit, Philologus, ABOLITIO, SERVI PUBLICI, PASCUUM, NEGOTIA PRIVATA,
Suppl. 9, 1903; 0. Hirschfeld, Die kais. VcrwaltungsDea?t~- OPERA PUBLICA,USUS, DISCIPLINA, SACRA,S U M P T U
ten, 2nd ed., 1905, 81 ; L. Mitteis, Rb'in. Privatrecht, 1908,
403 ; F. Messina-Vitrano, Sulla responsabilitd dei p., Circolo pUBLICO.
guiridico (Palerrno) 1909; Arangio-Ruiz, S t Perozzi 1925, Kaser, S D H I 17 (1951) 274.
231 ; Lotz, Studien iiber Steuerverpaclttung, SbMunch 1935 ; Pudicitia.
Chastity, a crime against chastity. The
Reinrnuth, ClPhilol 31 (1936) 146; B. Eliachevitch, L a LEX IULIA DE ADULTERIISis also called de pttdicifio.
personnalite' juridiqtrr en droit brive' ront., 1942, 305; E.
pudicitia adrernfitata = aq against the repu-
Schlechter, Le contrat de sociktk, 1947, 320; Arias Bonet,
A H D E 19 (1948-49) 218. tation of an honest woman committed in public (on
Publicatio bonorum (publicare bona). Confiscation
a street) by pursuing her constantly or making in-
of the property of a person convictecl of a crime
decent proposals. It was considered an INIuRTA and
against the state. The confiscated wealth became the
persecuted
property of the state (res publica). See CONFISCATIO,Puella. See PUER.
PROSCRIBERE BONA. Publicatio is also called the act Puer. Used in senses: a slave. Sollle
of expropriation for reasons of public utility (see names of slaves were conll)ined with plrcr, as, e.g.,
EMPTIO AB INVITO).-See SECTIO BONORUM.
Marcipor = ilIorci puer; ( b ) a boy, ant. purlla (= a
Hurnbert and LCcrivain, D S 4 ; U. Brasiello, Reprcssionc girl) ; (c) syn. for pfrrrilis fletfls, ptrrritin = youth.
penale, 1937, 112. The term purr is not technical and does not indicate
Publicatio legis. The making public of a statute. a specific age.
Under the Republic the publication of a statute passed Pueritia. See PUER. In D. 3.1.1.3 pueritin is used of
by the competent comitia was not obligatory. The the age of persons under seventeen. They were ex-
magistrate who proposed a hill could make it pul~lic, cluded from acting in court.
if he wished, by posting the text in the forzri~zor on Pugnus. A fist. Pzrgno prrc~ctrrr= striking a person
the walls of a temple (PROSCRIBERE). Some statutes with the fist. Such an action was considered a cor-
contained clauses concerning their publication. Trea- poral injury (initrrin) ; it was not, however, an out-
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 6 63
whether a person who wrote a testament for another AURELIA, ALBUM IUDICUM, SORTITIO, REIECTIO. S0llle
might be a witness thereto (D. 28.1.27). The case of the statutes which instituted the quaestioncs pcr-
became famous because of the rude answer of the petuae had particular provisions concerning the jurors
jurist who called the query "very stupid and ridicu- and the procedure. The trial started with an ACCU-
lous." The name Quaestio Domitiana was coined in SATIO by a citizen. Penalties were fixed in the per-
the literature.-See SCRIPTOR TESTAMENTI, TESTIS AD tinent statutes. The judgment of a majority of the
TESTAMENTUM ADHIBITUS. jurors was final; there was no appeal. There was,
C. Appleton, Mdl Girard 2 (1912) 1 ; Kretschmar, Z S S in criminal matters, another kind. of procedure, cog-
57 (1937) 52. nitio extra ordinem. in which bureaucratic officials
Quaestio facti. See RES FACTI. exercised jurisdiction through the whole process from
Quaestio per tormenta. Inquiry under torture! the investigation to the final judgment.-l). 18.18;
Slaves were interrogated in criminal trials under C. 9.41 ; 44.-See AMPLIATIO, IUDICIA P U B L I C A . LEX
torture until they confessed to the crime of which IULIA IUDICIORUM PUBLICORUM, ORDO I U D I C I O R U h I
they were accused, in particular when their masters PUBLICORUM.
were the accusers. Citizens could not be tortured Berger, OCD (s.v. quaestio) ; Belloni, N D I 10; A. H . J.
except those of the lower classes (humiliores) .-See Greenidge, The legal procedure of Cicero's tillte, 1901, 415;
TORMENTA. H . F. Hitzig, Die Herkunft des Schwurgerirhts im rim.
Lecrivain. D S 4. Strafp~ozess,1909 ; Fraccaro, RetzdLo?+tb52 (1919) 344 ;
Lengle, Z S S 53 (1933) 275.
Quaestio status. An examination (investigation) con-
cerning the personal status of a person (citizenship, Quaestores. T h e quaestorship was established at the
liberty) .-See STATUS, ACTIONES PRAEIUDICIALES, beginning of the Republic although certain sources
LIBERTINITAS. place its origin in the period of kingship. Originally
Quaestionarius. (Syn. a quaestionibus.) A military two quaestores were assistants of the consuls and
official attached to a military court for criminal mat- were appointed by them; later they were elected by
ters. the comitia tributa. The activity of the q~rnestores
Cagnat, DS 4. was concentrated on the financial affairs of the state.
Quaestiones. (As a type of juristic writing.) Col- During the Republican period their number con-
lections of cases, true or fictitious, discussed by the stantly increased and reached twenty under Augustus
jurists. Many of the cases might originate in the (from 45 B.C. there were forty). The large number
jurists' discussions in the classroom with their pupils. is to be explained by the fact that several quaestores
Other material for the Quaestiones came from cases accompanied the army commanders on expeditions to
with which the jurists dealt in their capacity as administer the finances of the military units. The
respondents (responsa) . Quaestiones which arose quaestores also managed the finances of the provinces.
from real discussions are identified bv the introduc- Those quaestores who remained in Rome (cl~aestores
tory term quaeritur, quaesitum est ( = it is [has been] urbani) supervised the treasury and the financial ad-
asked). Several jurists published Quaestiones (Cel- ministration of the state; see QUAESTORES AERARII.
sus, Africanus, Scaevola, Papinian, Paul, Callistratus, The quaestorship was the initial office in the magis-
and Tertullianus) . I n the juristic literature the terial career. Under the Republic the quaestores had
Quaestiones are among the most instrktive works ; no imperiu~n,no lictors, no sella curulis, but from
they reveal the acumen of juristic thinking of their the time of Sulla they were eligible to a seat in the
authors and the strength of their criticism of diver- Senate. I n the later Empire the quaestores functioned
gent opinions. as city officials with less important functions; their
Riccobono, N D I 10; Berger, RE 10, 1173. principal task was to organize public games.--D.
Quaestiones perpetuae. Permanent criminal courts, 1.13; C. 1.30; 12.6.-See IURARE I N LEGES,LEX
composed of persons of senatorial and (later) eques- CORNELIA DE VIGINTI QUAESTORIBUS and the following
trian rank. The first quaestio was established by the items.
LEX CALPURNIA (149 B.c.) to try extortions (see Kiibler, RE 14, 406; Lkcrivain, D S 4; Anon., NDI 10;
REPETUNDAE) committed by provincial governors. Stevenson, OCD ; Latte, TAvtPhilolAs 67 (1936) 24.
Later statutes introduced additional tribunals for Quaestores aerarii. Two quaestores in Rome charged
other crimes : treason ( MAIESTAS) , sacrilege (SACRI- with the supervision of the treasury; see AERARIUM,
LEGIUM) , embezzlement (PECULATUS) , forgery of with all its extended tasks. They made agreements
wills, documents, coins, weights, etc. (FALSUM), with contractors for the construction of public works
bribery and other corrupt practices at elections (AM- (opera publica) and with the tax-farmers (publi-
BITUS),and the like. The courts consisted of thirty cani) ; they executed payments requested by other
or more jurors and were normally presided over by high magistrates (primarily the consuls). Under the
a praetor. For the personal qualifications of the Principate the activity of the quaestores suffered con-
jurors (iudices) and the proceedings before the siderable restrictions because of the interference of
quaestiones, see LEX SEMPRONIA IUDICIARIA,L EX imperial officials, but the nature of the office remained
664 ADOLF B E R G E R [TRANS. AMER. PHIL.SOC.
unchanged. Two quaestores were assigned to the Quaestura. The office, the rank, of a quaestor. I n
emperor for his personal service; see QUAESTORES the later Empire = the office of the QUAESTOR SACRI
CANDIDATI PRINCIPIS. One quaestor accompanied PALATII.
the emperor on his travels and functioned as a pay- Quaestus. A profit, a gain. With regard to the con-
master. tract of partnership (SOCIETAS)the term is defined
De Ruggiero, DE 1, 204. as the profit which is derived from a partner's work
Quaestores aquarii. Quaestors entrusted with the (industry).-See LUCRUM, QUAESTUARIA MULIER.
supervision of the aqueducts. Quamvis. See LICET.
Quaestores candidati principis. Two quaestors ap- ~~~~~i ea res est. w h a t is the value of the thing.
pointed On the proposa1 the (candidati This clause, connected with the object of a pending
PrinciPis) to act as his private secretaries. They civil trial, occurred in the part of the procedural
read the addresses of the emperor in the senate. formula called CONDEMNATIO.It referred to the
Quaestores militares. Quaestors assigned to generals evaluation of the object of the controversy.
in the field for the administration of the legions.- certain formulae the clause referred to the past
See MANUBIAE. (quanti ea res fuit), i.e., to the time when the wrong
Quaestores municipales. T h e quaestorship was also committed (e.g., in actio furti or actio legis
a office in Some municiPia, charged with Aquiliae), in others to the present (est), i.e., to the
the financial administration. time of the litis contestatio (which was the normal
Quaestores Ostienses. One quaestor was obliged to case), or to the future (quanti et Yes grit), i.e., when
live in Ostia, the port of Rome, in order to supervise the evaluation was to be made at the tin,e of the
the grain supply for the capital. judgment.
Quaestores parricidii. Mentioned in the Twelve Steinweqter, R E 9, 1707; M . Kaser, Quanti en res est,
Tables. Possibly they had already been instituted in 1935; P. Voci, Risarcimento del danno, 1938, 16.
the regal period for the prosecution of the crime of Quanti minoris. See ACTIO QUANTI MINORIS.-D. 21.1.
PARRICIDIUM. Quarta pars. One-fourth of the whole. One-fourth
Quaestores Pro Praetore. Either governors of small (quarta) of an estate (heredifatis) refers to the so-
provinces or officials assigned to provincial governors called quarta Falcidia (see LEX F ~ L C I D ~ A ) an-
(proconsuls) as their assistants and substitutes.- other meaning, a simple fourth part of the inheritance,
See the following item. is evident.
Quaestores provinciales. Only in Senatorial prov- Quarta Afiniana. See ~ E N A T U S C O N S U L T U M AFINIA-
inces; see PROVINCIAE SENATUS. They had the rank NUM.
of propraetors and a limited jurisdiction correspond- Quarts Antoninas See puARTA DIvI PII.
ing to that of aediles curules in Rome. They super-
Quarta debitae portionis. See QUERELA INOFFICIOSI
vised the financial administration of the provinces.
TESTAMENTI.
Small provinces had quaestors for governors, but
generally the provincial quaestors assisted the gov- Quarta Divi Pii. (Called in literature quarta Anto-
ernors and acted in their place when one died or left A person puberty (see lMPuBES)
the province. had been adopted (see ADOPTIO), had the right to a
Q~~~~~~~~~sacri The quaestor sacri palatii fourth part of the inheritance of his adrogator, after
was one of the highest civil functionaries in the later being emancipated without just reason or unjustly
Empire, concerned with the preparation of enactments disinherited by the latter. This rule has been set by
and legal decisions to be issued by the emperor. H e an enactment of
Beseler, Szbbsiciva, 1931, 2 ; David, ZSS 51 (1931) 528.
was the principal legal adviser of the emperor and he
was therefore chosen from among persons with con- Quarta Falcidia. See LEX FALCIDIA.
siderable legal training. Quarta legitimae partis. See PARS LEGITIMA.
Quaestores urbani. Quaestors in Rome as Quarta Pega~iana. See SENATUSCONSULTUM PEGASIA-
quaestores aerarii. .4nt. quaestores municipales and NUM.
quaestores provinciales. Lemercier, RHD 14 (1935) 646.
Quaestores urbis. The office of a quaestor urbis was Quarta Trebelliana. The term used in the literature for
created by Justinian for the control of foreigners, the quarter of an inheritance analogous to the Quarta
heggars, and other suspected elements in Constanti- Pegasiana after the reform of the law of fideicomlnissa
nople. by Justinian on the basis of the Senatusconsulturn
Quaestorius. (Adj.) Connected with, or pertinent Trebel1ianum.-See FIDEICOMMISSUM, SENATUSCON-
to, the office of a quaestor. SULTUM PEGASIANUM.
Quaestorius. (Noun.) A former quaestor.-See AD- Quasi. A s if, as it were. The word is often used by
LECTIO. classical jurists when applying recognized institutions
Quaestuaria mulier (mulier quae corpore quaestum or rules to similar relations and situations (analogy).
facit). A prostitute.-See MERETRIX. This type of adaptation is accomplished by such
VOL. 43, IT. 2 , 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 665
phrases as : perinde (pro eo) est quasi (ac si), and Quattuorviri praefecti Capuam, Cumas. See VIGINTI-
the like. Such locutions allude at times to situations SEXVIRI.
in which an actio ficticia (see ACTIONES FICTICIAE) Quattuorviri viis purgandis. See VIGINTISEXVIRI.
might be given, since the situation was dealt with Querela inofficiosae dbnationis (dotis). A complaint
"as if." On the other hand, however, it cannot be made by an heir entitled to a legitimate share of the
denied that quasi is one of those elastic expressions estate (see PARS LEGITIMA, QUERELA INOFFICIOSI TES-
which fit into the mentality of the Byzantine jurists. TAMENTI),asking the rescission of an excessive
The adverb occurs frequently in Justinian's consti- donation which the testator made when still alive
tutions and is therefore suspect in many texts. But d t h the purpose of diminishing the heir's legitimate
its presence cannot be considered a decisive criterion share. See INOFFICIOSUS.The action for restitution
of interpolation.-See LEX AQUILIA,ACTIO QUASI of the gift was permissible against the donee and his
INSTITORIA, PECULIUM QUASI CASTRENSE. heirs provided it was brought within five years. An
Guarneri-Citati, IndiceZ (1927) 73 ; idem, St Riccobono 1 analogous remedy was the querela inoficiosae dotis
(1936) 735; Berger, ZSS 36 (1915) 186, 212, 220; Ricco- when the estate was diminished to the disadvantage
bono, Scr Ferrini (Univ. Pavia) 1946, 54.
of such an heir by an excessive dowry constituted by
Quasi contractus-quasi delictum. These terms, the testator.-C. 3.29: 30.
often used in modern literature, are not Roman. Donatuti, St ~ i c c o b o n o3 (1936) 427; H. Kriiger, ZSS
The Roman jurists speak of quasi ex contractu (quasi 60 (1940) 83.
ex delicto) nascitur obligatio, debere, teneri, obligari, Querela inofficiosae dotis. See the foregoing item.
which means an obligation arises, to be obligated, to Querela inofficiosi testamenti. A complaint of an
owe "as if from a contract (as if from a delict) ." I n heir who would be legitimate in intestacy but who
these locutions quasi is to be connected with the verb, was omitted (see PRAETERIRE) or unjustly disin-
and not with contractus or delictum (maleficium) . herited in the testator's will (see EXHEREDATIO).
The Roman idea was that from certain situations or The complaint was based on the ground that the
doings obligations arise analogous to those which testament was inoficiosum ( = contra oficium pieta-
originate from contracts or wrongdoings; the jurists tis, see INOFFICIOSUS), the testator having disregarded
did not create a category of "almost can'tracts" or his natural duties towards his nearest relatives. If
"almost wrongdoings." the plaintiff succeeded in his querela, the whole testa-
Vizioz, La notion de quasi-contrat, ThPse Bordeaux, 1912 ;
Radin, Virginia Law Rev. 23 (1937) 241. ment was declared null (testairlenturn rescissum) since
Quasi possessio. See POSSESSIO IURIS. it was assumed that the testator was not mentally
Riccobono, ZSS 34 (1913) 251 ; De Sarlo, StCagl 29 sound when he made his will (see COLOR INSANIAE). ,.
(1942) 155. and a succession in intestacy took place. The querela
Quasi usu'sfructus. An exceptional form of a usu- inoficiosi testajtlenti could be brought by the de-
fruct of things which are consumed in use. Such scendants of the testator, or, when there were none,
things were generally not susceptible of ususfructus. by ascendants; and later (from the time of Constan-
The usufructuary is bound to return the same quan- tine) by consanguineous brothers and sisters in the
tity of things of the same quality. The term quasi absence of descendants and ascendants. The qtierela
ususfructus was coined in Justinian law. If a usufruct was excluded when the heir received through the
of a complex of things was bequeathed and among testator's disposition ( a legacy or a donatio wortis
them were consumable things (res quae usu consu- caztsa) one-fourth of what he would have received as
muntur), the usufruct was valid, according to a his share in intestacy (qt~artalegititttae pnrtis). If
decree of the senate under Tiberius on the condition the testator left less than a quarter of the legitima
that security was given to the heir to the effect that pars to the heir entitled to it, the latter had the right
the same quantity of goods would be returned after to sue for the completion'of the pars lcgitinta. Under
expiration of the usufruct.-D. 7.5.-See u s u s ~ a u c - this action he obtained what was missing up to the
TUS. legitimate share (actio ad supplendam legitimam
Beauchet and Collinet, DS 5, 613; Pampaloni, BIDR 19 which probably was available from the fourth century
(1907) 95; P. Bonfante, Corso 3 (1933) 86; Grosso, BIDR after Christ). Justinian reformed thoroughly the
43 (1935) 237. querela and the action mentioned to the benefit of
Quattuorviri aediles (or quattuorviri iuri dicundo). the heirs.-Inst. 2.18; D. 5.2; C. 3.28; Nov. 115.-
A board of four officials in Italian and provincial See CENTUMVIRI, SEPTEMVIRALE IUDICIUM, PARS LE-
cities in colonies and municipalities appointed for ad- CITIMA, BONORUM POSSESS10 CONTRA TARULAS. PER-
ministrative and judicial functions.-See DUOVIRI IURI SONA TURPIS, TESTAMENTUM MILITIS.
DICUNDO. Dirll, RE 17, 1062 (s.v. Noterbrecht) ; De Crescenzio, NDI
Del Prete, NDI 10; Rudolph, Stadt und Stoat im rom. 10, 1032; C. Chabrun, Essai sur lo q. i. t., ThPse Paris,
Italien, 1935, 87; E. Manni, Per la storia dei mlcnicipii, 1906; Brugi, Mkl Fitting 1 (1907) 113; JobbC-Duval, ibid.
1947, 171 ; Degrassi, Atti Lincei, Ser. 8, Vol. 2 (1950), 437; idem, Mhl Cirardin 1907, 355; idem, NRHD 31
281 ; Vittinghoff, Romische Kolonisation und Biirgerrechts- (1907) 755; Naber, Mn 34 (1906) 365, 40 (1912) 397;
politik, Abh. Akad. Wiss. Mains 1951, no. 14, passim. A. Suman, Saggi rotttottktici, 1919, 3 ; G . La Pira, Suc-
crssiont trstomrntaria intestotc~,1930. 412; 1.; v. Woess, LARIA any one of the Roman 1)eol)Ie might act as a
Uos rom. Erbrt-cht und dic Erbanzoortrr, 1930, 207; E. plaintiff.
Hacz, Lrs rtstrictions d la liberti dc tester en dr. rom.,
ThPse Neufchatel, 1934; Donatuti. S t Ricc~ooo~ro 3 (1936) Quincunces usurae. Five 1)er cent interest pcr cznntrlrr
417; H. Kruger, Z S S 57 (1937) 94; idcm, Fsrhr Ko- (i.e., five-twelfths of zrstrra r.cntrsii~ln, 12 per cent).
sc.ltokcr 2 (1939) 256; idcrrt. BILIR 47 (1940) 63; Lavaggi, -See USURAE CENTESIMAE.
S D H I 5 (1939) 76; Nardi, illid. 450; E. Renier, Etttdc Quincunx. Five-twelfths of a whole (an AS or an in-
srir l'hist. dc In q. i. t., Liege, 1942; Siber, Z S S 65 (1947)
25. heritance, hence heres e.z- qltinctrncc = an heir who
Querela non numeratae pecuniae. The complaint of receives 3 of the estate).
a debtor who had issued a promissory note in atl- Quindecimviri sacris faciundis. See uvovIar SACRIS
vance and then (lid not receive the money which he FACIUKDIS.They supervisetl the foreign cults in
hat1 acknowledged to owe. Through the qtrerrln he Rome.
might obtain the annulment of the note, if he sued Bloch, D S 2, 428; Rose, O C D ; hi. W. Hoffmann,
Ati~JPkilol1952.
within a certain time (in Justinian law within two
Quingenarium sacramentum. A snrrnlrzrntlr~~cof
years). The clurrela is a counter-part to the EX-
500 asses; quinquagenariu~nsacra~t~cntullz = a sncra-
CEPTIO N O N N U M E R A T A E PECUNIAE with which the
menturn of fifty asses.--See LEGIS ACTIO SACRAMENTO.
defendant could oppose the plaintiff when the latter
sued for payment.--C. 4.30. Quinquaginta decisiones. Fifty constitutions issued
Collinet, Atti del I V . Corrgr. I~itcrir.di Papirologio, 1936, by Justinian after the publication of the first Code
89; Kreller, S t Riccoborto 2 (1936) 285; H. Kriiger, Z S S A.D. 529 but before the start of the work on the
58 (1938) 1; Archi, Scr Ferrijti (Univ. Pavia) 1946, 702; Digest, i.e., during 529 and 530. No collection of
Lemosse, S t Solazsi 1948, 470. these constitutions, which seemingly were separately
Queri. T o conlplain, to make a charge about a person Jors, RE 4, 2275 ; Anon., N D I 4, 593 ; P . Kruger, Fg Bek-
to a magistrate (for instance, when a slave complains kcr, Aus rorit. urld biirgerlichena Recht, 1907; S . Di Marzo,
Le Q. D., 1-2 (1899-1900) ; G. Rotondi. Scritti qiur. 1
about bad treatment by his master, a patron about his (1922) 227; P . Bonfante, B I D R 32 (1922) 278; Prings-
freedman, or a ward or his relatives about a guard- heim, A C D R Roma 1 (1934) 457.
ian). Queri is also used of all kinds of querelne (see Quinquefascales. Governors of imperial provinces
the foregoing items) and of a complaint against an (legati Augusti pro praefore), so-called because they
order of a magistrate. were each assigned five lictors (see L I C T O R E S ) . - - ~ ~ ~
Querimonia. A complaint made to a public official; LEGATI PROCONSULIS.
an appeal from the assignment of a public service (see Quinquennalis (quinquennalicius). .4 municipal
MUNERA).The term is used by the imperial chan- magistrate appointed for five years; he was also
cery. called quinquennalis perpetuus.-See MAGISTER COL-
Quid enim (tamen) si? . What, however, if? This LEGII, DUOVIRI QUINQUENNALES.
rhetorical question occurs often in juristic works as R. Magoffen, The q., Johns Hopkitls Ui~izj.Stitdies, Balti-
more, 1913; Larsen, ClPhilol 1931, 322
an introduction to a case slightly different from the
Quinquevirale iudicium. See I U D I C I U ~ ~QUINQUE-
case discussed immediately before. Some of these,
VIRALE.
and similar, rhetorical questions may be of later origin
Quinqueviri. A group of five officials who served as
(interpolations) but certainly not all of them.
the night police in Rome.
Guarneri-Citati, Iizdice2 (1927) 33, 75; G. Beseler, Beitviige
ztrr Kritik 1 (1910) 61 ; Berger, K r V j 14 (1912) 434; Am- Quinqueviri agris dandis assignandis. See T R I U M -
brosino, R I S G 1940, 18. V I R I COLONIAE DEDUCENDAE.
Quidem. In phrases such as si quidem . . . si vero De Ruggiero, D E 2, 430.
(sin atttevz, quod si), this occurs in juristic writings Quirites. The earliest name for the Romans. Accord-
when two different legal situations are taken into ing to an explanation given by Justinian (Inst.
consideration: if . . . ; if, however. . . . Such jux- 1.2.2), the name originates from Quirinus, a sur-
tapositions in classical texts are branded with the name of Romulus, the legendary founder of Rome.
suspicion of non-classical origin; but they are not -See I U S QUIRITIUM, DOMINIU.ll E X I U R E Q U I R I -
TIUM, NUDUM IUS QUIRITIUM.
fully reliable as criteria of interpolation. Severini, N D I 10; Kretschmer, Glotta 10 (1920) 147.
Quiescere. Actio quiescit = an action which tempo- Quodammodo. T o some extent, to a certain degree.
rarily cannot be brought. In the language of the This vague, elastic term is used by the Byzantines
imperial chancery quiescere frequently means to be- with predilection and is not rare in interpolated texts.
Quilibet ex populo. Any Roman citizen. In the so- and is applied by the jurist to underscore an analogy.
called ACTIONES POPULARES and INTERDICTA POPU- Guarneri-Citati, I?zdiceZ (1927) 76.
VOL.43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 667
R "therefore it should not be inquired into the reasons
Ramnep. One of the three tribes (see TRIBUS)into for what is being ordained (quae constituuntur),
which the population of R~~~ was divided at the time otherwise much that is secure would be undermined"
of the foundation of the city. The other two were (D. 1.3.21).-Another group of meanings of ratio is
~ i and~ L i ~~ l-he~~names ~are probably
~ ~of . with rationes = an account book. Thus
~connected
Etruscan origin. ratio may indicate an account, a calculation, a com-
Rosenberg, RE 1A. putation. See EXPENDERE (ratio accepti et expensi).
-Rationes refer to the complex of financial matters
Rapere. See RAPINA, RAPTUS.
of ,the emperor, of a public corporate body or of a
was considered a form of private individual, and to its financial management.-
furturn (theft) committed with the use of violence See ACT10 DE RATIONIBUS DISTRAHENDIS, A RATIONI-
(vis)' Only (vi bona rapta) be the BUS, CODEX RATIONUM DOMESTICARUM, REDDERE RA-
object of rapina. Rapine was a private wrongdoing TIONES,and the following items.
(delictum), prosecuted only at request of the person Lkcrivain, DS 4.
injured, under a praetorian, penal action, actio vi Ratio accepti et expensi. See EXPENDERE.
bonorum raptorum, which if brought within one year
of the time of the robbery, could lead to the condem- Ratio aequitatis. See AEQUITAS.
nation of the convicted defendant to a four-fold value Ratio Caesaris. Syn. with res privata Caesaris, ratio
of the things stolen as a penalty to be paid to the privata (sc. Caesaris).-See PATRIMONIUM CAESARIS.
plaintiff. After a year the condemnation was only PRIVATAE.
in simplum (see ACTIoNEs I N SIMPLUM).l-he con- Ratio castrensis. A part of the administration of the
demned robber was branded with infamy.-Inst. 4.2; imperial court, particularly concerned with the nlili-
D. 47.8 ; C. 9.34.-See INTERDICTUM DE VI, TURBA. tary treasury of the emperor and his residences in
Kleinfeller, RE 1 A ; Lkcrivain, DS 5 ; Brasiello, NDI 10; the provinces.
E. Levy, Konkurrenn der Aktionen 2, 1 (1922) 194. Rostowzew, DE 3, 106; Lkcrivain, DS 4, 812.
Raptor. See RAPTUS.
Ratio domus Augustae. The management of the
R ~ l-he ~abduction
~ of ~a ~ against. the will
financial matters of the imperial palace.-See DOMUS
of her parents. The abductor (raptor) was punished AUGUSTA.
with death from the time of Constantine, under whom Ratio Falcidiae. The deduction (computation) made
raptus became a crimen publicum, and so was the with regard to a legacy according to the LEX FAL-
woman (until Justinian) when she had consented. CIDIA.
Justinian's enactment (C. 9.13.1) extended the penal- Ratio (rationes) fisci. The financial administration of
ties for raptus (death and seizure of property) on the fist, fiscal funds (property). Syn. rationes im-
raptores of widows and nuns (sanctimoniales). perii.-See RATIONES.
Eger, RE 1 A ; Lkcrivain, DS 4. Ratio iuris. The reasonableness (rationality) of a legal
Ratihabitio. (From ratum habere.) Ratification, ap- provision, the logic of the law. The Roman jurists
proVal. Ratihabitio occurs when a person on whose stress the ratio iuris as a means of interpretation of
behalf another had concluded a transaction or accom- the law (ratio suadet, eficit, and the like).
pl.ished a legally important act (e.g., by appearing for Ratio legis. The reason (ground) of a written law (a
him in court and defending his interests) without statute), the spirit to be drawn from the law itself
authorization, approved of what had been done for (not from external elements), the purpose, the motive
him. "Ratihabitio is equivalent to a mandate" (D. which inspired the promulgation of a specific law, as,
46.3.12.4). Hence, by his approval the principal e.g., ratio legis Fa1cidiae.-See RATIO VOCONIANA.
party (dominus negotii) assumed any liability which Biondi, NDI 10; Gaudemet, RHD 17 (1938) 141.
resulted from the act done in his favor.-D. 46.8; Ratio naturalis. See NATURALIS RATIO, IUS NATURALE.
C. 5.74.-See NEGOTIORUM GESTIO, MANDATUM. Ratio privata Caesaris (principis). See RATIO CAESA-
C. Bertolini, L a ratifica degli atti giuridici, 1-2 (1889, RIS,RES PRIVATA CAESARIS.
1891) ; G. Bortolucci, R. nzandato comparatfrr, 1916; Dona- Ratio Voconiana. The motives which led to the issu-
tuti, ArtPer 36 (1922) ; Arangio-Ruiz, I1 martdato, 1949,
-.. .
197 ance of the L r x Voconia.-See I.EX VOCONIA.
Kiibler, ZSS 41 (1920) 24.
Ratio. Reason, a ground, a motive, consideration.
Rationrii~habere alicuius rci = to take into consid- Ratiocinator. A bookkeeper, an accountant.
eration. See RATIO IURIS. Ratio in the writings of Ratiocinia. (In financial administration.) Keeping
the Roman jurists is not a philosophical concept and accounts, concerning the financial management of
has no universal value. It is invoked only where it public institutions, works and 1)uildings (ratiocinin
seems opportune for a specific reason. Hence the operultz pltldicorlttlt) .-C. 8.12 ; 3.21.
saying: "It is impossible to give reasons for all that Rationalis. (Noun.) The title rationalis first appears
our ancestors laid down" (D. 1.3.20, Julian) and in the third century after Christ for provincial pro-
668 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
curators and for the head of the fisc. Later, it became apprehended him, was himself treated as a receptor.
more frequent, being used in both the fiscal adminis- -D. 47.16.
tration and that of the res privata of the emperor. Eger, R E 1 A ; Humbert and Lkcrivain, D S 4 ; Saviotti,
Rationalis was substituted for the former ~nagister AG 55 (1895) 353; H . Balougditch, Complicitd en droit
rom., These Montpellier, 1920, 83.
and procl.rrator ( a rationibus) and was afterwards
replaced by a comes. Thus the rationalis sumtnae rei Recepticia actio. See RECEPTUM ARGENTARII.
(the chief of the fiscal administration) became be- Recepticia dos. See DOS RECEPTICIA.
tween A.D. 340 and 345 comes sacrarulfz 1argitionutt.t Recepticius servus. A term known only in literary
and the rationalis privatae (rei) comes rei privatar. (non juristic) sources and already a subject of con-
Both these high officials had representatives also troversy among the ancient grammarians. I t prob-
called rationales (summarum or rerttm privatararjit ably indicated a slave who was returned to the seller
respectively) whose competence embraced the terri- because of physical Or defects.-See REDHI-
tory of a dioecesis of a provincia. The frequent
De Senarclens, TR 12 (1933) 390; Kornhardt, Z S S 58
changes in official titles in the postclassical bureau- (1938) 162; Solazzi, SDHI 5 (1939) 222.
cracy makes a precise delimitation of their compe-
Receptor. See RECEPTATOR.
tence extremely difficult.-D. 1.19.-See the follow-
ing item. Receptum. The term covers different transactions (see
Liebenam, R E 1 A ; Lbcrivain, D S 4 ; 0. Hirschfeld, Kais.
the following items) which have in common the sole
Verwalt1crtgsbeamte1 (1905) 34 ; E . Stein, Gesch. des spbt- point that they originated in so-called praetorian pacts
rotit. Reiches 1 (1928) 58. (see PACTUM PRAETORIUM) recognized by, and en-
Rationes. Various branches of the imperial financial forceable under, praetorian law. I t is likely that the
administration. Some had local divisions (stationes) pertinent obligations were a s s ~ m e dby the use of the
at important places. There were rationes metallorum word recipio (= "I accept'').
(for mines), rationes operum publicorurn (for public Klingmuller, R E l A ; Partsch, Z S S 29 (1908) 403.
buildings and enterprises), rationes bibliothecarum Receptum arbitrii. An agreement by which a person
(for libraries), etc. In all these offices, functionaries elected as arbitrator by the ~ ~ m m oomsent
n of the
called rationales fulfilled the tasks of accountants.- parties involved in a dispute assumed the duty to
See A RATIONIBUS. settle their controversy by an arbitration (arbitrium).
Liebenam, R E 1A ( s . ~ )ratio).
. -D. 4.8; C. 2.55.-See ARBITER EX COMPROMISSO,
Rationes. Account books of a banker.-See ARGEN- COMPROMISSUM.
TARII, RATIO. Wenger, R E 1 A ; Lkcrivain, D S 4 ; Frezza, N D I 11.
Ratum habere. See RATIHABITIO.-C. 5.74. Receptum argentarii. A formless promise to pay an-
Ratus. Legally valid (e.g., ratunz testamentum, lega- other's debt (see CONSTITUTUM DEBITI ALIENI) by
tarat). Ant. irritus. which a banker (argentarius) assumed the obligation
to pay a client's debt at a fixed date. The action
Raudusculum. A small rod of bronze used during the against the banker to enforce payment = actio recep-
performance of a MANCIPAT1O. The man who held ticia. Justinian abolished the action, primarily for
the (libripens) handed Over the raudusculum to the reason that under it the banker was liable even
the transferee who touched the scale with it, thereby when the original oMigation was not valid. In Jus-
indicating that he acquired the object mancipated. tinian's law the receptum argentarii was subjected to
Reatus. The state of being accused in a criminal trial. the general (reformed) rules concerning the CONSTI-
-See REUS,ACCUSATIO. N O M E N RECIPERE,I NSCRI- TUTUM DEBITI ALIENI.
BERE. Wenger, R E 1 A ; Frezza, N D I 1 1 ; Partsch, Z S S 29
Eger, R E 1A. (1908) 412; Platon, RHD 33 (1909) 157, 289; De Domi-
Recedere. T o withdraw, to retreat, to recede. "There nicis, APad 49 (1933) ; G. Astuti, St intorno alla promessa
del Pagumento 2 (I1 constitute), 1941, 282.
is no doubt that with the consent of the persons who
assumed reciprocal obligations, one may withdraw Receptum est. See OBTINUIT9 USUS.
R e c e ~ t u mnautae (cauponis9 stabularii). An agree-
from a sale, a lease and other similar obligations pro-
vided that everything remained unchanged" (D. ment by which a shipowner (the
of a stable) assumed goods for transportation or
'
an inn Or
2.14.58).
custody, with the addition of a specific proviso salvum
Receptaculum aquae. See CASTELLUM. fore (recipere), i.e., that the things confided them
Rece~tator(receptor). One who hides a thief or who will be safe. The responsibility of such persons was
receives stolen goods to be concealed. H e is subject greater than in a simple LOCATIO CONDUCTIO.They
to the same penalties as the principal wrongdoer. were not liable for vis maior (shipwreck or a major
Only hiding near relatives was punished more mildly. assault of robbers which could not be resisted) but
A man who received money or a part of the stolen they had to make good damages or destruction,caused
things and dismissed the robber when he could have by themselves or their personnel and they were
VOL.4 3, PT. 2, 19531 E N C Y C L O P E D I C D I C T I (3 N A R Y O F ROMAN LAW 669
answerable if the goods were stolen. Inn-keepers of a document agreed with the dictated text. The
were even responsible for any persons living per- acknowledgment of the authenticity of a seal on a
illailently in their inns. The extended responsibility document = recognoscere signutn (see SIGNUM).
of those persons was established in the praetorian Recognovi = I have verified.
Edict with the justification that the "dishonesty (im- Mommsen, Jur. Schriften 2 (1905 ex 1892) 179; F. Prei-
probitas) of this kind of persons" required such sigke, Die Iitschrift von Skaptoparene (Schriften der wis-
scnsch. Gesellschaft in Strassburg 30, 1917) 26.
nleasures (D. 9.4.3.1 ) .
Klingmiiller, R E 1 A ; Humbert and LPcrivain, D S 4 ; Reconciliare matrimonium. See REDINTEGRARE.
Severini, N D I ; L. Lusignani, Respoiisabilitd per custodia, Reconductio. The renewal of a lease (loc&ione~n
1 (1902); Schulz, GrZ 38 (1911) 41; H. Vincent, Res renovare). A tacit reconductio is assumed when the
rccrpta, Th6se Montpellier, 1920; P. Huvelin, Et d'hist.
dl4 droit contmercial rom., 1929, 138; Partsch, Z S S 29 tenant holds the thing (immovable) rented after the
(1928) 403; Bonolis, Scritti Zorli, 1929, 477; De Domini- expiration of the first lease. Securities given for the
cis, APad 49 (1933) ; Carrelli, RDlVav 4 (1928) 323; De original lease remain pledged for the following one.
Martino, ibid. 201 ; De Robertis, AitBari 12 (1952).
Recte (rectius, rectissime). With these terms the
Recidere. T o come back, to return into a former legal jurists used to express their approval of other jurists'
situation, e.g., to the same paternal power (in potes- opinions ( = correctly, rightly). Sometimes Justinian
tnfenz) under which one had been previously. Re- and his compilers manifested their approval of earlier
cidere sometimes has the sense of cadere, e.g., when legal norms in the same way.-Recte, when referring
said of an inheritance = to come, to accrue to a to the performance of a legal act, indicates that it
person, to fall to a person's share. was accomplished in conformity with the law being
Reciperatio (recuperatio). A treaty between Rome in force, in particular, that the prescribed solemn
and another state under which reciprocal protection forms were observed.
of the citizens of one state in the territory of the other Guarneri-Citati, IndiceZ (1927) 77; Riccobono, Z S S 34
was established, in particular in case of litigation for (1913) 224.
the recovery of property. The judges in the perti- Rector provinciae. The governor of a province. The
nent procedure were the reciperatores (recuperatores) title is not used in juristic writings but is frequent in
who later might also function as judges in trials be- later imperial constitutions.-C. 1.40.
tween Roman citizens.-See RECUPERATORES. Recuperatio. See RECIPERATIO.
Wenger, R E 1.4; LPcrivain, D S 4 ; Severini, IVDI 11.
Recipere. T o receive (e.g., an inheritance), to receive Recuperatores. A court composed of at least three
back what one has given, lent, or lost. Recipere judges for civil trials in various matters (actio iniuria-
means also to assume an obligation for oneself or rum, quaestiones status), acting under a somewhat
for another (as a surety, see RECEPTUM ARGENTARII). accelerated procedure. originally established in in-
When syn. with excipere, recipere = to reserve a ternational treaties, the court later became competent
certain right or advantage for oneself on the occasion in disputes between Romans and peregrines and be-
of the transfer of property (e.g., an easement, a tween Roman parties alone. The procedure was per
usufruct). formulas (see FORMULA) and the recuperatores wire
Wenger, R E 1 A ; De Robertis, AnBari 12 (1952) 15. private jurors acting as iudices in the second stage of
Recipere arbitrium. T o assume the function of an the trial (see I N IURE). Apparently there was no
a loan or whatever one owes to another; in a broader to the redeemer by a person who acted in the slave's
sense = dare. interest (for instance, one to whom the slave promised
Reddere actionem (iudicium). When referring to the services in the future or repayment of the loan after
judicial activity of a magistrate, syn, with DARE manumission). The redeemer was obliged to free
ACTIONEM. the slave but only a rescript of Marcus Aurelius and
Reddere interdictum. T o issue an interdict.-See Verus entitled the slave to seek a remedy in court
INTERDICTUM. (in a cognitio extra ordinem) for enforcing the
Reddere iudicium. See DARE ACTIONEM. manumission (D. 40.1.5 pr.). Syn. empfus suis
Reddere ius. Indicates the jurisdictional activity of numnzis.
the praetor. Seuffert, Loskauf von Sklawtz mit ihrem Geld, Fschr Uniz~.
Giessen, 1907; W . W . Buckland, L a w of slavery, 1908, 636.
Reddere pignus. T o return the pledge to the debtor
Redhibere. See the following item.
when the debt was paid. Syn. restifuere with regard Pezzana, R I S G 88 (1951) 274.
to FIDUCIA.
Redhibitio. The restitution of a purchased thing (e.g.,
Kreller, ZSS 62 (1942) 170.
a slave) to the seller because of its essential defects,
Reddere rationes (rationem). T o render an account while the seller returned the price to the buyer.
of management of another's affairs, and to pay the Such rescission of a sale was obtained by the buyer
remainder to the person entitled to it. I t was custo- under the actio redhibitoria; see EMPTIO. The term
mary to free a slave in a testament under the con- redhibitio comes from redhibere = "to have the seller
dition "si rationes reddiderit" (= if he paid what get back what he had before" (D. 21.1.1 pr.).-D.
remained over from the administration of the master's
21.1.
business to the latter's heir).
Redigere. T o bring a person (e.g., a slave) or a thing
Redemptor. (With references to taxes.) A tax- back into 'its former legal situation.
farmer (redempfor vectigalium) . Syn. conductor
Redigere pecuniam. T o obtain money, to gain a
vectigalium, manceps, publicanus.
pecuniary profit from a transaction.
Redemptor litium (causarum). One who buys credi-
tors' claims against third persons. Transactions of Redintegrare. T o renew (syn. renovare, e.g., a lease),
this kind were made in the form of CESSIO,chiefly by to restore to integrity or to former legal status.
Matrimonium redintegratum = a second marriage
speculators who acquired the claims at' a low price
concluded between persons who had been married to
in order to sue later the debtors for the whole. The
LEX ANASTASIANA (A.D. 506) made such speculative
each other and divorced. Syn. reconciliare. Such a
marriage abolished a pending actio rerum amotarum
activity unprofitable.
Severini, N D I 11. of the husband against the wife.
Redemptor operis. A contractor. Syn. conductor Reditus. Income, proceeds; often syn. with fructus.
operis.-See LOCATIO CONDUCTIO OPERIS FACIENDI. -Redifus civilis = revenues of the state from taxes,
Humbert, D S 4. etc.-C. 11.70.
Redemptor vectigalium. See REDEMPTOR. Redundare. T o devolve (e.g., a risk, liability, charges,
Redemptus ab hoste. A prisoner of war who was losses) from one person to another.
redeemed from the enemy by a ransomer. The re- Referendarius. See REGERENDARIUS.
deemed prisoner was bound to repay the ransom and Referre. T o enter (in public records, in census lists,
the ransomer had a lien on him until the debt was in account books). I n juristic writings referre is
discharged hy payment or by services. During this used to introduce a citation or a literal quotation
time the redevzptus had no ius postlinzinii (see POST- from another jurist's work (X refert hoc, apud
LIMINIUM). I n postclassical law the period of Labeonem relatu~$z est [refertur] Sabinum existi-
service to the ransomer was limited to five years. nzasse = it is related by Labeo that Sabinus' opinion
If a slave was redeemed from the enemy not by his was, and the like). Referre is also used when a
master, the latter might regain him by repayment of jurist relates the contents of an imperial rescript or
the amount to the ransomer.-D. 49.15; C. 8.50.- senatusconsult.
See CAPTIVUS, V I N C U L U M PIGNORIS. Referre. ( I n judicial matters.) T o make a report in
Pampaloni, B I D R 17 (1905) 125; Albertoni, Riv. di dir. postclassical procedure to a higher judge or to the
i;zterna~iotiale 17 (1925) 358, 500; Romano, R I S G 5 emperor on substantial circumstances of the matter
(1930) 3 ; H. Kriiger, ZSS 51 (1930) 203; 52 (1931) 351; in dispute.-D. 49.1 ; C. 7.61.
W. Felgentrager, Antikes Losungsrecht, 1933, 95; G.
Faiveiey, R. a. h., ThPse Paris, 1942; Levy, ClPhilol 38 Referre iusiurandum. See IUSIURANDUM NECESSA-
(1943) 159 (= B I D R 55-56, 1951, Post-Bellum, 70). RIUM.
Redemptus suis nummis (sc. servus). A slave re- Refert. I t is of importance. Multul~t(maxime) refert
deemed from his master by a third person, a fiduciary, = it is of great (greatest) importance. Ant. nihil
through payment of a s i m of money. The money (parvi) refert = it does not matter. The locutions
either came from the slave's peculium or was given are used by the jurists to stress (or exclude) the
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 67 1
importance of a factual or legal element in the Regimen morum. The control and supervision of
decision of a case. public morals. The regimen morum was a donlain
Reficere. T o restore an injured thing to its former of the censors' activity; see CENSORES. They exer-
condition. See INTERDICTA DE REFICIENDO. Repair- cised this control when selecting worthy persons for
ing (reficere) a building is considered a kind of the senate (see LECTIO SENATUS)o r when exclud-
aedificare; accordingly, it is exposed to a protesta- ing from that body those senators whose moral life
tion by a neighbor (see OPERIS NOVI NUNTIATIO)in was blemished (see SENATU MOVERE).The censors
the same way as a new building. had to qualify certain persons as unfit for public
Reficere testamentum. T o make a new testament. service by the NOTA CENSORIA which branded then1
Refragari. T o be opposed to, to be contrary to, to be with ignominy for the current five-year period (114s-
a hindrance. The term is applied t o legal acts or trunz). Syn. cura ?norum.
opinions which are contrary to a law, to ratio iuris, Regio. A territory of an indefinite extent, a locality.
to auctoritas iuris. -See CONSUETUDO REGIONIS, TRACTUS.
Seckel in Heumann's Handlexikong, 1907, 499; Berger, Regiones Italiae. Eleven administrative districts into
K r V j 14 (1912) 436; Guarneri-Citati, Indice2 (1927) 77. which Italy was divided probably by Augustus, simul-
Refuga. A runaway, one who escaped from prison or taneouslv with the division of Rome into fourteen
custody. regions; see REGIONES URBIS ROMAE. There were no
Refundere. T o repay, to reimburse, to refund (ex- changes in this administrative organization until
penses, proceeds lost). Constantine.
Refutatio (refutare). I n later civil procedure a R. Thornsen, T h e Italic regions f r o m Azrgustzts to the Loirl-
bard iirvasio)r, Copenhagen, 1947 ; v. Gerkan, Bonner Jahr-
written refutation by one party to a trial of the biichcr 149 (1949).
appeal made by the adversary. The refutatio was Regiones iuridicorum. See IURIDICI,DIOECESIS UR-
sent to the emperor's court, either in an appeal pro- BICA.
cedure or together with the lower judge's consultatio Regiones urbis Romae. The first division of the city
(relatio) by which the emperor was requested for of Rome into four districts (regiones or tribus ur-
an opinion in a specific case; see CONSULTATIO. I n banae) is attributed to the king Servius Tullius.
the latter instance both parties could oppose the Augustus divided Rome into fourteen administrative
judge's statement by written presentations preces regiones, each under the supervision of a magistrate
refutatoriae, libelli refutatorii. (praetor, tribune, aedil) . Under Hadrian each regio
Regens exercitum. A military commander. "His had two curatores urbis Rollzae who by the end of
duty was not only to order military discipline but also the second century were called procuratores regionunz.
to observe it" (D. 49.16.12 pr.). H e was forbidden In the regional organization established by Augustus,
to use a soldier for his private service or for his ad- the regiones were subdivided into vici, each of which
vantage (hunting or fishing). was under the control of four ~lzagistrivicorum (vico-
Regens provinciam. See RECTOR PROVINCIAE.
nzagistri) .-See VIGILES,REGIONES ITALIAE.
Regere fines. T o draw the boundaries between two
Graffunder, RE 1A, 480 ; Thedenat, DS 4 ; Richmond,
neighboring lands.-See ACTIO F I N I U M REGUNDORUM. OCD.
Regius. Either connected with the kings of the period
Regerendarius (referendarius). A n auxiliary official of Roman kingship or with the emperors of tlne
in the office of a PRAEFECTUS PRAETORIO, DUX,or Empire. Similarly regnnre ( = to reign) refers both
other high official in the provinces. In Justinian's to the kings and the en1perors.-See LEX REGIA,
times there were several referendarii palatii = officials LEGES REGIAE.
of the imperial court charged with tasks of a more
Regnum. Kingship, government I)y kings. Rrgnrenr
confidential nature. Their functions were established
refers to the earliest period of Rome's history, from
in Justinian's Nov. 10.
the foundation of Ronie (753 R.c.) until tlie con-
Regesta. A collection (register, list) of imperial enact- stitution of the Repuldic (tlie beginning of tlie sixth
ments or other official docunlents of lasting iniportance century n.c.) See R E X . In a broader sense rrgnrcltl
(regesfa oficii). T h e institution was introduced in = sovereignt!,. Rrgnullt refers also to foreign king-
the later Empire. tlonns (rcgntclii nlirnuli~).
Regia (sc. domus). The king's house. In historical Fustel de Coulangcs. DS 4. 824; Wcstrr~p../lrrlri~*rsd 'ltisf.
times rrgin was tlne official building in which the drr droit orirrrtcil 4 (1949) 8 s ; Coli. S D l I l 17 (1951) 2.
had his office. The pontiffs gath- Regradare (regradatio). T o regrade run official in
pontifcx ~rrnxir~trcs
ered there for their meetings and sole~nnn religious rank, in particular one in the emperor's service
ccretiionies. (do~itrstic~)for a longer unjustified absence from
Roscnl~crg,R E 1A. office.
Regia lex. See r.Es Rec;ri\. Regressus. (From rmrrdi.) A recourse, tilaking ~ s c
Regiae leges. See LEGI.:SREGIAE. o f a legal re~iiedy(a suit), in partictllar for recovery
BERGER [TRANS.
AMBR. PHIL. SOC.
of tlan~ages(e.g.. in 1 or ad] rlrnditornil in a case of 50.17 of the Digest, Dc rrg~ilisiltris (see REGULA).
eviction, c~diiiandc~torriii= for the reiml)ursement of The texts in the collections of Reglrlac are by far ilot
expenses). so concisely formulated as generally regatlac were.
Regula (iuris). 1211 aljstract legal principle of a illore Berger, R E 10, 1174.
general nature whether originating in jurisprudence Regulae Ulpiani. See ULPIANUS, TITULI EX CORPORE
or in an imperial enactment. "A rule is that which ULPIANI.
briefly expounds a matter" (rcln brcvitcr cnarrat, Regulariter. Regularly, nornlally. Kcgillavitcr dc-
D. 50.17.1). The legal rules are concise formtlla- finirc = to establish in the form of a rule.
tions drawn from the law which is in force; "the Rei vindicatio. An action which served for the pro-
law is not derived from rules (regulae) but a rule tection of quiritary ownership. Under this action
is derived from the existing law" (D. ibid.). There- the owner of a thing sued the possessor of his thing
fore the rule itself does not create law. Syn. (in for its recovery. The victorious plaintiff regained
the language of imperial constitutions) norma (not possession of the object claimed. If the defendant
used by classical jurists). The legal maxims set up denied the plaintiff's ownership, the plaintiff had to
in earlier law were at times criticized by the classical prove the acquisition of it under the rules of the ius
jurists inasmuch as they were no longer applicable civile from its previous quiritary owner. Such proof
to the developed economic relations and necessities might be difficult in certain circumstances and, if so,
of everyday legal life. The final title of the Digest the plaintiff could avoid it by using another action,
(D. 50.17), entitled "on various rules of the ancient ACTIO PUBLICIANA I N REM,in which he had only to
law" contains a collection of legal rules of the ius prove that, before having been deprived of the pos-
antiquuln. Some of them are a repetition of texts session of the thing in dispute, he possessed it under
inserted in former titles of the Digest; many of them conditions which normally led to usucaption (in con-
drawn out from the context in which they were ex- dicione usucapiendi) . The defendant, when defeated,
pressed in the original juristic writings, were thus had to return the thing cum sua causa (see CAUSA),
made applicable as general rules although originally i.e., with all that the plaintiff would have had if the
they referred only to specific situations. Other legal thing were delivered at the time of the litis contes-
rules of classical origin are to be found in the Digest tatio (proceeds, fructus) and was liable for damages
beyond the title 50.17, but some of them were limited done to the thing after the litis contestatio. The
in their general application through words like ple- liability, of the defendant for fructus and damages in
ruiizque ( = often), interdurn ( = sometimes), inserted the period before litis contestatio depended upon
by the compilers.-See CANON,NORMA,DEFINITIO, whether he held the thing in good faith (in the belief
the following items and some legal rules quoted under to be its owner) or in bad faith ; see POSSESSOR BONAE
NEMO, etC. FIDEI. If the defendant refused to deliver the thing
Riccobono, N D I 11; Leonhard, R E 1.4; Pringsheim, Fschr claimed, the plaintiff could estimate under oath
Lcnel 1921, 244; Brugi, S t Del Vecchio 1 (1930) 3 8 ;
Stella-Maranca, Rec Gkny 2 (1934) 91 ; Arangio-Ruiz, (iuramentunz in litem) the value which the actual
La rhgle de droit d a m l'antiquitb classique, Egypte Con- restitution represented to him (litis aestirnatio) . The
tevzporaine, 1938; Wenger, Canon, SbWien 220, 1 (1942) defendant was adjudicated to pay the sum but he
47; Riccobono, Scr Ferrini (Univ. Pavia, 1946) 22; G. retained the thing. Only Justinian admitted an exe-
Nocera, Ius publiczrm (D.2.14.38), Rome, 1946; Berger,
A C I V e r 2 (1951) 193 (= Sem 9 [I9511 42). cution on the thing itself, which was performed with
the assistance of public officials ( M A N UMILITARI).-
Regula Catoniana. (Also sententia Catoniana.) A D. 6.1 ; C. 3.32; 7.38.-See ACTIONES I N PERSONAM,
rule concerning legacies. "A legacy which would ACTIONES ARBITRARIAE, LEGIS ACT10 SACRAMENTO,
have been void if the testator died at the time of EXHIBERE, IUS TOLLENDI, IMPENSAE, QUANTI EA RES
making the testament, is invalid whenever he shall EST, LITIS AESTIMATIO, AGERE PER SPONSIONEM, FOR-
have died" (D. 34.7.1 pr.). This rule, whose author MULA PETITORIA, LAUDARE AUCTOREM, POSSESSOR
was one of the two Catones (see CATO),was in later FICTUS, DOLO DESINERE POSSIDERE, INTERDICTUM
classical law not fully valid.-D. 34.7. QUEM FUNDUM, DUCI VEL FERRI IUBERE, ADPREHEN-
Ferrini, N D I 2 ; 1143; Clerici, AG 77 (1906) 441; G.
Borgna, Origine e fondamento della r. C., 1909; Cicala, DERE, LIT1 SE OFFERRE, HEREDITATIS PETITIO, RESTI-
StSen 31 (1915) 21; J. Lambert, La r2gle Catonienrre, TUERE, UNUS CASUS.
These Lyon, 1925; Appleton, T R 11 (1931-32) 19; B. Leonhard, R E 1 A ; Beauchet, D S 4 ; Cuq, D S 5, 902;'
Biondi, Successione testamentaria, 1943, 416. Sternheim, N D I 11; Berger, OCD (s.v. vindicatio); H .
Siber, Passiz~legitimation bei der r. v., 1907) ; Last, GrZ
Regulae. A type of juristic writing. Under this title 36 (1909) 433; Lenel, GrZ 37 (1910) 515; Maria, E t
collections of rules were written by Neratius, Pom- Girard 2 (1913) 223; Betti, Fil 1915, 321; id en^, Rend
ponius, Gaius, Scaevola, Marcian, and Modestinus; Lomb 48 (1915) 503; E. Abgarowicz, Essai stlr la prcuzfe
Ulpian and Paul wrote even two compilations of d a m la r. v., These Paris, 1916; Herdlitczka, Z S S 49
(1929) 274; Kaser, Z S S 51 (1931) 92; idem, Restituere
Regulae. Excerpts from juristic collections of "rules" als Prozessgegenstand, 1932; idem, Eigentum zrnd Besitz,
show, however, a picture different from the title 1943 (passim) ; idem, Das altrom. ius, 1949 (passim) ;
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIOlNARY O F ROMAN LAW 673
Levy-Bruhl, RHD 11 (1932) 205 (= Quelques probllmes, ment in a criminal trial. In the latter case the
1934, 95) ; Qiill, Z S S 54 (1934) 101; Senn, RHD 15 relegatio was sometimes combined with additional
(1936) 401; F. Thormann, Der doppelte Ursprung der punishments, such as confiscation of the whole or of
aancipatio, 1943, 29.
a part of the property of the condemned person, loss
Rei vindicatio utilis. A rei vindicatio extended to
of Roman citizenship, confinement in a certain place.
cases lying beyond its normal applicability. Some of
A milder form of relegatio was the exclusion of the
these cases were introduced by praetorian jurisdic-
wrongdoer from residence in a specified territory.
tion, some by imperial legislation of a later period.
Illicit return was punished with death penalty.-D.
A rei vindicatio utilis was granted, for instance, when
48.22.-See EXILIUM,DEPORTATIO.
the action concerned a thing not identical with that Kleinfeller, RE 1A; Berger, O C D ;J. L. Strachan David-
which the owner originally possessed, e.g., a garment son, Problems of R. criminal law, 2 (1912) 6 4 ; E. Levy,
that had been made by the defendant from the plain- Rom. Kapitalstrafe, 1931, 30; U . Brasiello, Refiressione
tiff's wool, or a picture painted on the plaintiff's penale, 1937, 279; Zmigryder-Konopka, NRH 18 (1939)
tablet.-See SPECIFICATIO. 307.
Cuq, DS 5, 904; Mancaleoni, StSas 1 (1900) 11; v. Mayr, Relegatio dotis. Leaving on the part of the testator
Z S S 26 26 (1906) 83; Bortolucci, BIDR 33 (1923) 151; the amount of the dowry to the person to whom he
F. Pringsheim, Kauf mit fremdem Geld, 1916, 123. had to restore it in the event of a dissolution of his
Reicere. See REIECTIO. marriage.
Reiectio civitatis. Giving up Roman citizenship Relevare. T o relieve a person from his duties, obliga-
through the acquisition of the citizenship of another tions or charges.
state. Religio. When used with reference to public officials,
Reiectio iudicis. Rejection of a judge. A party to a judges, etc., conscientiousness, scrupulousness in the
civil trial had the right to reject a judge who was fulfillment of official duties.
inacceptable to him for personal reasons. See AL- Kobbert, RE 1A; idem, De verborum religio atque religi-
B U M IUDICUM,SORTITIO.Rejection was also per- osus usu, Konigsberg, 1910; W . Fowler, The Latin history
mitted in criminal trials in the procedure through of the word r., Transactions of the third intern. Cor~gress
QUAESTIONES. I t was executed by the accuser and for the History of Religion, 2 (Oxford, 1908).
the accused, each having the right to reject the same Religiosus. See LOCUS RELIGIOSUS, RES RELIGIOSAE.
number. In the year 59 B.c., a Lex Vatinia settled In the constitutions of the Christian emperors religio-
the rules for the rejection procedure. sus (and religiosissimus) is used of ecclesiastical per-
Liebenam, RE lA, 514; Steinwenter, RE 9, 2467; Momm- sons (bishops) and institutions (churches, ceme-
sen, Rom. Strafrecht, 1899, 214; G. Rotondi, Leges publicae teries).
populi R., 1912, 391; Sage, AmJPhilol 39 (1918) 367; Relinquere (rem). Syn. DERELINQUERE.-SeeDERE-
Gelzer, Hermes 63 (1928) 113.
LICTIO.
Reiectio militia. Dismissal from military service as
a punishment for a minor military offense. Syn. Relinquere. In the law of succession, to leave. Refers
exauctorare. either to the person (relinquere heredem = to leave
Reicere rem. T o throw away a thing. Syn. relin- an heir) who after the death of another is his heir
quere, dere1inquere.-See DERELICTIO. (either instituted in his testament or by intestacy),
Relatio. (From referre.) See REFERRE. or to an inheritance (relinquere hereditatem), a
Relatio. In civil procedure of the later Empire, see legacy (relinquere legatum, fideicommissum) or free-
CONSULTATIO.-D.49.1 ; C. 7.61.
dom (relinquere libertatem) .
LPcrivain, DS 4.
Reliquatio. (From reliquari.) An unpaid remnant
Relatio. In the senate (referre ad senaturn), a report of a debt.-See RELIQUUM, RESIDUUM.
made by the magistrate, who convoked the senate, to Reliquator. A person in arrears who owes a part of
the gathered senators concerning the subject matter his debt. A person who owed the fisc or a munici-
which had to be discussed and voted on. pality some money from the management of public
O'Brien-Moore, RE Suppl. 6. 707, 768. matters was excluded from honorific positions until
Relatio criminis. The bringing in of a counter- he repaid the rest. This measure did not apply to
accusation by the accused against the accuser in a those who were debtors through private transactions
criminal trial. Such a manoeuver did not impede with the fisc or municipalities.
the proceedings. Reliquator vectigalium. A tax-farmer who owed the
Relatum est. See REFERRE. fisc a part of the rent. H e was not admitted to a
Relegare pecuniam. T o order one's banker (argen- new lease until he had fully discharged his debt.
tarius) to make a payment from one's deposit. Syn. Reliquum (reliqua). The balance one owes to a pri-
dclegare ab argentario. vate person or a public body (tax-arrears).
Laum, RE Suppl. 4, 77. Relocatio (relocare). A renewal of a lease or a hire
Relegatio. The expulsion of a citizen ordered either (see RECONDUCTIO) . Relocatio operis = hiring an-
by an administrative act of a magistrate or by judg- other to finish a work which the first contractor failed
674 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
to complete by the day fixed.-See LOCATIO CON- or legacy). I n judicial proceedings removere = to
DUCTIO. exclude from acting in court (postulatio).
Remancipatio (remancipare). A retransfer of a Remunerare. T o give a reward to a person for a
thing through inancipatio to the person from whom service gratuitously rendered. T o give such a re-
one acquired it by mancipatio, or to a third person. ward is a kind of liberality since it is not a fulfillment
Remancipatio also was the retransfer of a son through of a legal duty and not even of an obligatio naturalis,
mancipatio to his father from whom the transferor the only motive being to recompense another for a
had acquired him through mancipatio and had held meritorious performance to which he was not obli-
him as persona in mancipio (see MANCIPIUM) .-See gated to do.
EMANCIPATIO, DIVORTIUM, COEMPTIO FIDUCIAE CAUSA. P. Timbal, Les donations rdmundratoires en dr. rom., 1925.
Kaser, ZSS 67 (1950) 492. Remuneratio. See REMUNERARE. The noun occurs in
Remansor. See EMANSOR. later imperial constitutions. Rema~neratiosacra = a
Remedium. Legal procedural measures introduced by remuneration (liberality) b y the emperor.
praetorian law, senatusconsulta or imperial legisla- Renovare locationem. See RELOCATIO, RECONDUCTIO.
tion, such as actio, interdicturn, exceptio, restitutio Syn. locare ex integro.
in integrum, appellatio, etc. Renuntiare. T o renounce (a right, a privilege, an
Guarneri-Citati, Indice2 (1927) 78.
inheritance or a legacy, a legal remedy such as an
Remissio. See REMITTERE. action, a querela).-Renuntiare is often syn. with
Remissio mercedis. A reduction of the rent, granted denuntiare.
to the lessee of a land in the case of a lean crop
Renuntiare mandatum. A unilateral withdrawal of
(sterilitas). The abatement could be conceded with
a mandatary from the mandate. It was admissible
the condition that it would be made -good if next
only at a time when the mandator notified of the with-
year's crop was abundant.
drawal could manage the matter himself or by an-
Remissio operis novi nuntiationis. See OPERIS NOVI
other mandatary.
NUNTIATIO.
V. Arangio-Ruiz, II mandato, 1949, 136.
Berger, RE 9, 1671; 17, 573; idem, IURA 1 (1950) 106;
117. Renuntiare societatem. See SOCIETAS.
Solazzi, Iura 2 (1951) 152.
Remittere. Sometimes syn. with mittere, permittere.
-See the following items, REMISSIO. Renuntiatio. ( I n military law.) Treason. A person
Remittere. With reference to wrongdoings and crimi- ( a soldier or a civilian) who betrayed to an enemy
nal offenses, to forgive, to condone (remittere crimen, important military information (renuntiatio consilio-
dolum, iniuriam) .-See REMITTERE POENAM. rum) was punished with death (by crernatio) .-See
PRODITOR.
Remittere actionem. T o renounce an action; also to
renounce an exception (remittere exceptionem) or a Renuntiatio. ( I n public law. ) The announcement
servitude (remittere servitufem) . of the names of the magistrates elected by the comitia.
Remittere causam (cognitionem). T o assign, to allot From that moment the magistrate was considered
a civil or criminal case to a judicial magistrate (a designatus; see MAGISTRATUS DESIGNATI.
praetor, a provincial governor, a praefectus) or to Klingmuller, RE 1A.
transfer a case to the imperial court. Renuntiatio legis. An official announcement that a
Remittere condicionem. T o release a beneficiary of statute was decreed by a popular assembly (comitia).
a testament from the necessity of fulfilling a condi- After the renuntiatio an INTERCESSIO (protestation,
tion imposed in the will.-See CONDICIO TURPIS,C ON- veto) was no longer admissible.
DICIO IURISIURANDI.
Klingmuller, RE 1A.
Remittere debitum (obligationem). T o release a Reparatio temporum. In late postclassical procedure.
person from an obligation. A plaintiff who did not appear in court before the
Remittere pignus. T o release a pledge (pignus) given end of a four-months' period after DENUNTIATIO
to a creditor by the debtor.-C. 8.25. LITIS lost the case. H e could, however, obtain a
Remittere poenam (multam). T o remit a penalty ( a restoration of the term and permission to appear in
fine). court at a later date if his non-appearance was ex-
Remotio suspecti tutoris. See TUTOR SUSPECTUS. cusable.-C. 7.63.
Removere. T o remove a senator from the senate (see Renuntiator. See PRODITOR.
MOVERE SENATU),to remove a guardian from the Repellere. I n civil trials the verb is used of exceptions
administration of his ward's property because of negli- entered by the defendant against the plaintiff's claim
gence or incapacity (see TUTOR SUSPECTUS).Remo- which, when successful, effected the loss of the case
vere oficio = to remove a public official from office by the plaintiff (see EXCEPTIO). When used of a
(propter neglegentia?n = because of negligence in ful- magisterial decision, repellere denotes that a peti-
fillment of his duties). Removere is also applied to tioner's claim was denied. Sometimes repellere =
the denial of a right of succession (to an inheritance renuntiare, repudiare (= to refuse the acceptance of
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 675
an inheritance or legacy).-See VIM VI REPELLERE even a senator who received money for expressing a
LICET. certain opinion in the senate. Sons of officials were
Repertorium. See INVENTARIUM. also guilty of repetundae when taking money with the
Repetere (repetitio). T o claim back, to reclaim what understanding that they would influence the activity
one gave to another (e.g., paying an indebitum). of their fathers. Manifold misdemeanors of officials
"What one received as his property, cannot be claimed and persons not embraced by the definition quoted
back" (D. 12.6.44) .-See CONDICTIONES. above (which in its general formulation may contain
Repetere accusationem. T o renew an accusation non-classical elements) were subject to the penalties
against the same person and for the same crime. A for crimen repetundarum. Originally the giver could
renewed accusation by the same accuser occurred claim the recovery of the sum he paid under extor-
when the judicial magistrate concerned with the tion; later, he could claim a double or fourfold
matter died or retired from office while the trial amount, within a year after retirement of the official
was still pending. A new accuser could repetere from service. In extreme instances, seizure of the
accusationem when the first accuser died or with- whole property of the condemned person took place.
drew his accusation. Syn. repetere reum. Persons who had a share in the bribe money (ad quos
Repetere actionem. T o sue a second time for the pecunia pervenit) were liable as well. A person con-
same claim. Such repetition was generally excluded demned for repetundae could not obtain a magistracy
according to the rule bis de eadem re ne sit actio; or membership in the senate; he would not be a wit-
see BIS IDEM EXIGERE.The defendant could oppose ness or representative of another in court, or function
the plaintiff with the exceptio rei iudicatae, when the as a judge. More drastic infractions were punished
matter had been decided by a judgment, or the ex- with exile. Penalties became more and more severe
cebtio rei in iudicium deductae. when the action in the course of time. The Lex Acilia (of 123 B.c.)
under which the claim was brought to court, had contained detailed provisions concerning the proce-
been conducted until litis contestatio. Only when dure in trial for extortion.-D. 48.11 ; C. 9.27.-For
the first trial was interrupted before litis contestatio, the statutes on repetundae: see LEX ACILIA, CAL-
a repetere actionem was admissible. PURNIA,CORNELIA, IULIA,SERVILIA;see also SENA-
TUSCONSULTUM CLAUDIANUM, CONCUSSIO.
Repetere reum. See REPETERE ACCUSATIONEM.
Kleinfeller, R E 1A ; Lecrivain, DS 4 ; Berger, OCD ; idem,
Repetita die. T o refer a claim to a former date, to R E 12, 2390; R. 0. Jolliffe, Phases o f corruption in Roman
antedate, to compute according to an earlier date. administration in the last half century o f the R . Re.public,
Repetita praelectio. See EDITIO SECUNDA. Chicago, 1919; Blum, Revue gdn. de droit 46 (1922) 197;
v. Premerstein, Z S S 48 (1928) 505; J. P. Balsdon, History
Repetitio. See REPETERE. of the extortion court at Rome, PBritSR 14 (1938) ; F.
Repetitio rerum. In international relations. The for- De Visscher, Les tdits d'duguste ddcouverts d Cyrene,
mal declaration of war by the fetiales had to be pre- 1940, 138; Sherwin-White, P B r i t S R 17 (1949) 5; idem,
J R S 42 (1952) 43; Henderson, J R S 41 (1951) 71.
ceded by repetitio rerum, i.e., a demand for redress
of the injury inflicted.-See CLARIGATIO. Repignerare. T o redeem a thing given as a pledge
C. Philippson, The intern. law and custom of ancient (Pignus) to a creditor by paying the debt.
Greece and Rome 2 (1911) 331. Replicatio. An exception (see BXCEPTIO) opposed by
Repetundae. Literally the term indicates things (res) the plaintiff to an exception of the defendant.
or money (pecuniae) which could be claimed back Through replicatio the plaintiff rejects what the de-
(repetere) by the person who gave them to an official fendant's exception asserted. T; a ' replicatio the
person ( a msgistrate, a provincial governor) under defendant may again reply by an exception called
extortion as a bribe. Hence crimen repetundaruvn duplicatio by Gaius, once triplicatio by Ulpian. An
= the crime of extortion. A series of Republican example of a replicatio is as follows : if the defendant
statutes from the Lex Calpurnia (149 B.c.) to the opposed to the claim of the plaintiff the exceptio jacti
Lex Iztlia (by Caesar, 59 B.c.) dealt with repetundae ; de non petendo, i.e., that the plaintiff had agreed not
the last statute was still in Justinian's legislation the to sue the defendant in court, the plaintiff might op-
foundation of the penal repression of extortion. Jur- pose a replicatio to the effect that by a later agreement
isprudence and imperial legislation contributed to the (pacturn) the first had been annulled or limited to
development of the concept of repetundae to be pun- a certain time.-Inst. 4.14.
ished under the statute. According to later legislation Leonhard, R E 1A.
any person who "exercising a magistracy, a power Replicatio legis Cinciae. See REPLICATIO, LEX CINCIA.
(potestas), a curatorship (curatio), an embassy, or If a donor claimed back the thing he had given as a
any other public office, charge or ministry accepted gift, as contrary to the provisions of the Lex Cincia,
money" (D. 48.11.1 pr.) was liable under the statute. and the donee opposed an exception that the thing
The Lex Iulia declared guilty of repetundae a judge had been donated and delivered (exceptio rei donatae
who took a bribe for rendering (or not rendering) a et traditae) and therefore could not be claimed back,
judgment, a witness for refraining from testimony, the donor might reply by replicatio legis Cinciae, to
676 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
the effect that the ownership of the thing donated was (libellus repudii) became mandatory in the later
not acquired by the donee, e.g., because the thing, a Empire. A repudium ex iusta causa caused pecuniary
res mancipi, was conveyed through traditio, and not losses (the loss of the dowry or nuptial denations) to
by MANCIPATIO, which was necessary for the transfer the party whose bad behavior justified the divorce.
of ownership of the thing donated. The term repudium occurs also in cases of a divorce
Reposcere. T o claim a thing which had to be returned of the spouses.-D. 24.2; C. 5.17.-See DIVORTIUM.
to the claimant, e.g., a deposit or a thing given as a Klingmiiller, R E 1A; E. Levy, Hergang der rom. Ehe-
PRECARIUM or COMMODATUM. scheidung, 1925, 55; Solazzi, B I D R 34 (1925) 312; Ba-
Repraesentare. T o pay, to perform an obligation, sanoff, St Riccobono 3 (1936) 175.
which is owed on a condition or at a fixed date, before Reputare (reputatio). T o calculate, to compute, in
the condition is materialized or before the due time. particular to take into account the counterclaims of
Commodu.~zrepraesentationis = the profit a creditor the debtor. Syn. computare, imputare.-C. 2,47.
has in such a case, when the debtor pays the debt in Requirere. T o inquire after, to search for somebody
advance before it is due.-In a more general sense (e.g., a runaway slave) or anything (e.g., a stolen
repraesentare = praestare, solvere, reddere (post- thing), to investigate. A particular application of
classical use). the term occurs with reference to persons absent
Schnorr v. Carolsfeld, Fschr Koschaker 1 (1939) 103. (fugitives) against whom a criminal trial was to be
Reprehendere (reprehensio). T o blame, to reprove, instituted, the so-called requirendi (the searched for
to find fault with a person. ones). Their names were publicly announced in
Reprehensa Mucii capita. (Also entitled Notata posters and their property was seized unless they
Mucii.) A collection of critical notes written by the appeared in court within a year from the public
jurist SERVIUS SULPICIUS RUFUS on the work of his summons.-;-D. 48.17; C. 9.40.
predecessor Quintus Mucius Scaevola, see MUCIUS. Res. Used in the juristic language in various senses;
Reprobare. T o disapprove, to reject (another's opin- it applies to both corporeal things and incorporeal,
ion). Ant. PROBARE. abstract conceptions. See RES CORPORALES. For the
Reprobus. False, forged. Reproba pecunia (reprobi division of things, see the items below.-D. 1.8; Inst.
n u m ~ z i )= false money (coins). Syn. adulterinus. 2.1.-Res (in sing.) also refers to the entire property
"Payment made with bad money does not discharge of a person (see EX RE ALICUIUS ADQUIRERE, I N REM
the payerw (D. 13.7.24.1). VERSIO)a nd in this sense it is syn. with BONA,PATRI-
Repromissio. (From repromittere.) A kind of CAU- M O N I U M . Res is often svn. with HEREDITAS.The
TIO by which a debtor promises through stipulatio the use of the term res by the jurists ranges from the
performance of an already existing obligation or of most general meaning of "everything that exists" (in
an obligation not suable under the law. rerum natura, in rebus humanis esse) to specific ob-
Repromissio secundum mancipium. A stipulation by jects. An interpretative rule by Ulpian says: "the
which the seller of a thing guarantees the buyer term res comprises both causae (legal relations,
against eviction.-See EVICTIO, SATISDATIO SECUNDUM judicial matters, see CAUSA)and iura (rights)," D.
MANCIPIUM. 50.16.23. The inclusion of the vague term causae
Repudiare. T o refuse to accept, to reject. The most renders this saying likewise indefinite. With refer-
frequent use of the verb is with reference to acquisi- ence to judicial trials, res means both the object of
tions to be made under a testamentary disposition (an the controversy (see QUANTI EA RES EST,QUA DE RE
inheritance, a legacy) or under the law (on intestacy) AGITUR)and the litigation itself; see RES IUDICATA,
from another's estate.-C. 6.19; 31.-For repudiare RES I N IUDICIUM DEDUCTA, ACTUS RERUM. I n the
~~zatri.tlzoniuwz,uxorem, see REPUDIUM.-In proce- law of contracts res indicates the physical delivery of
dural language repudiare = to reject (an appeal). a thing to another person which was the decisive
Repudiatio hereditatis (bonorum possessionis). See element in the so-called real contracts (contractus re
REPUDIARE. factus, obligatio re contracta, re contrahere, see CON-
H. Kriiger, ZSS 64 (1944) 394. TRACTUS) .-See OBLIGARE REM.
Repudium. A unilateral breaking up of a betrothal; Leonhard, RE 1A; Beauchet, D S 4 ; S. Di Marzo, Le cose
see SPONSALIA.The term refers also to the dissolu- e i diritti sulle cose, 1922; Grosso, St Besta 1 (1939) 33;
tion of a marriage existing made by one of the G. Scherillo, Lezioni. Le cose 1, 1945; Kreller, ZSS 66
(1948) 572.
spouses either by an oral declaration before witnesses,
by a letter, or through the intermediary of a mes- Res amotae. See ACTIO RERUM AMOTARUM, RETEN-
TIONES DOTALES.
senger (per nuntium) who transmitted to the other
party the wish that the marriage be solved (wzittere, Res capitalis. See CAUSA CAPITALIS.
remittere repudium, or nuntiu~z). The actual inter- Res castrenses. Things belonging to a PECULIUM
ruption of common living as husband and wife had CASTRENSE; also things used by a soldier during his
to accompany such declarations. The written form military service.
VOL. 43, PT. 2, 1 ~ 5 3 1 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 677
Res communes. Things belonging to two or more Res extra patrimonium (nostrum). Things which
owners (co-owners, co-heirs) as a common property. cannot be in private ownership (see RES PUBLICAE,
-See COMMUNIO, ACTIO C O M M U N I DIVIDUNDO.-C. RES C O M M U N E S O M N I U M nor
) , the object of any legal
4.52; 8.20. transaction between private individuals ; see RES C U I U S
Res communes omnium. Things which "by natural C O M M E R C I U M NON EST. Ant, res i n patrilnonio
law are the common property of all men" (D. 1.8.2 nostro = all things not expressly excluded from pri-
pr., I ) , such as air, flowing water, the sea and its vate ownership.
shores, etc. They could not he appropriated by % Scherillo, loc. cit. 29; Branca, ArzTr 12 (1941).
private individual.-See RES PUBLICAE, AER, AQUA Res facti. A matter of fact, a factual situation. Syn.
PROFLUENS, MARE, LITUS. quacstio facti, est facti. .Ant. res iuris = a matter
Pernice, Fg Dernburg, 1900; Debray, Rev. ginPrale de of law.
droit 45 (1921) 1 ; Branca, A n T r 12 (1941) ; G. Lombardi,
Kicerche in tema di ius gentitcm, 1946, 90. Res familiaris. Private property, patrimony.
Res corporales. Physical things which "by their nature Res fiscales. Things belonging to the fisc (FISCUS).
can be touched" (D. 1.8.1.1). Ant. res incorporales. "They are in some way private property of the em-
Naber, RStDIt 13 (1940) 379; Villey, R H D 25 (194647) peror" (D. 43.8.2.9).-C. 10.4.
209; Pfluger, Z S S 65 (1947) 339; Monier, R H D 26 Vassalli, StSen X X V (1908) 232 (= S t giuridici 2 [I9391
(1948) 374; idem, S t Solazzi 1948, 360; Albanese, AnPal 5).
20 (1949) 232. Res furtivae. Things taken by theft (FURTUM)fro111
Res cottidianae. The title of a work (in seven books) the owner or from whoever holds them in his name.
ascribed to the jurist Gaius, "the everyday legal They could not be acquired by USUCAPIO either 1)y
matters." It is of a rather elementary nature. The the thief himself or by any one who got them from
authenticity of the work which appears in the sources him, according to a rule of the Twelve Tables, and
also under the title "Aurea" ( = Golden words, rules) a later statute, the LEX ATINIA. Syn. res subreptae;
is not beyond doubt. in earlier times the stolen thing was called also fur-
Arangio-Ruiz, S t Bonfante 1 (1929) 495 ; Albertario, Stzcdi
3 (1936) 95; Felgentrager, Synab Frib Lenel, 1931, 365
(Bibl.) ; Di Marzo, B I D R 51-52 (1948) 1. Be'rger, R E 12, 2331; v. Liibtow, Fscltr Schulz 1 (1951)
263.
Res creditae. Things (money) given as a loan.-D.
12.1 ; C. 4.1.-See CREDERE, MUTUUM.
Res gestae divi Augusti. A n autobiography of the
Res cuius tquarum) commercium non est. Gen- emperor Augustus, written in the last months of his
erally in literature called by the non-Roman term res life (finished probably in A.D. 13). It contains a
extra co~nmercium= things which cannot be the record of the emperor's achievements, political and
object of exchange or of any legal commercial trans- military. The original, written in Latin was read
action between private individuals, such as RES DI- after his death in a solemn session of the senate:
V I N I IURIS, RES C O M M U N E S O M N I U M . - S ~C~
OMMER-
Greek translations were made and sent to Greek-
CIUM.
speaking provinces where they were engraved on
Scherillo, loc. cit. 29; G. Longo, S t Bonfante 3, 1930; bronze tablets and set up publicly. Extensive frag-
Biondi, S t Riccobono 4, 1936; W . G. Vegting, Donzairze ments in both languages are known (see M O N U M E N -
public et res extra c. (Alphen a. d. Rijn, 1950) ; Kaser. T U M ANCYRANUM). Augustus presents himself in
S t Ararzgio-Ruiz 2 (1952) 161. this "Index rerum a se gestarum" (= a register of
Res derelictae. See DERELICTIO. things achieved by himself) a s ' a head of the state
Res divini iuris. ~ h i n under
~ s divine law, as RES who governed it, authorized and supported by the
RELIGIOSAE, SACRAE, SANCTAE.They are not nego- confidence of the senate and of the people.-See
tiable and excluded from any legal transaction. Ant. AUCTORITAS PRINCIPIS.
RES HUMA,NI IURIS. Momigliano, OCD ; J. Gage, R . .q. d. A., Paris, 1935;
Scherillo. loc. cit. 40; Archi, S D H I 3 (1937) 5. Arangio-Ruiz, S D H I 5 (1939) 570; Volkmann, Bursians
Jahresberichte tiber die Fortschritte der klass. Altertltms-
Res dominica. The private property of the emperor. wissenschaft, Suppl. 276 (1942, Bibl.) ; Stadler, Z S S 62
C. 7.38 ; 11.67.-See RES PRIVATA CAESARTS. (1942) 120 (Bibl.) ; Acta Divi Augusti 1 (Regia Aca-
Res dubiae. Doubtful legal questions arising 'irom ani- demia Italica, Rome, 1945) ; P. De Francisci, Arcana zm-
biguous expressions used, e.g., by a testator in his perii 3, 1 (1948) 220; E. Schonbauer, SbWien 224, 2
(1946) ; Levi, Rivista di filologia, 1947, 209; A. Guarino,
last will., I n such cases, broadly discussed in D. 34.5, R . g d. A., Testo, traduzione e commerzto, 1947; Pugliese
"always preference should be given to the more Carratelli, Imp. Caesar Augustus, Index rerum a se gesta-
benevolent (benign, liberal, benigniora) interpreta- rum, 1947; Chilver, Augustus and the Roman Const~tution,
tion" (D. 50.17.56). The solution should be in favor Historia 1 (Baden-Baden, 1951) 408.
of the act and avoid its annulment. Res hereditariae. Things belonging to an inheritance
Berger, ACIVer 2 (1951) 187 (= S e m 9 [I9511 36). HEREDITAS.Syn. corpora hereditaria. Together, all
Res extra commercium. See RES CUIUS COMMERCIUM res hereditariae of one estate are also called U N I -
NON EST. VERSITAS (bonoruvlz). Res hereditariae are consid-
678 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
ered as belonging to no one until someone qualifies (pro veritate accipitur, D. 1.5.25). The sources speak
as heir (HERES). of an auctoritas (authority, validity, legal power) rei
Res hominum. See RES PRIVATAE. iudicatae, whereas auctoritas rerum similiter iudica-
Res hostiles. Things belonging to an enemy of the tarum ( = authority of identical judgments) is re-
Roman state, see HOSTIS. If at the outbreak of war ferred to as reflecting the judicial practice of courts
they are on Roman soil, they become property of the constantly (perpetuo) manifested through identical
occupants, and not public property (RES PUBLICAE). judgments in similar legal controversies (D. 1.3.38).
-See OCCUPATIO RERUM HOSTILIUM. Justinian ordered (C. 7.45.13) that "judgments
Res humani iuris. All things which are not res divini should be rendered not according to precedents (ex-
iuris. They are governed by human law. The dis- empla) but in conformity with the laws."-D. 42.1 ;
tinction between res humuni iuris and RES DIVINI C. 7.52.-See IUDICATUM.
IURIS is the main division of things (summa divisio Esmein,, M i l Gerardin 1907, 229; Weiss, Fschr Wach 2
rerum). Res humani iuris are either public (RES (1913b; E. Betti, Limiti soggettivi della cosa iudicata,
'1922; Guarneri-Citati, B I D R 33 (1924) 204; Dauvillier,
PUBLICAE) or private property (RESPRIVATAE). Iniuria iudicis, Recueil Acad. Ligisl. Toulouse 13 (1937)
Branca, A n T r 12, 1941. 147; Jolowicz, B I D R 46 (1939) 394; Vazny, B I D R 47
Res immobiles. Immovables : land (FUNDUS)and (1940) 108; Siber, Z S S 65 (1947) 1.
buildings (AEDES,AEDIFICIA). Syn. res soli, o r res Res iuris. See RES FACTI.
quae solo continentur ( = which consist in land). Res'litigiosa. The object of a pending suit after litis
Ant. RES MOBILES.AS early as the Twelve Tables, contestatio. Its alienatipn was void and so was its
a differentiation was introduced with regard to the dedication to a god in order to make it a RES SACRA.
acquisition through USUCAPIO,a nd the- interdictal The defendant holding the thing was protected against
protection was built ,up on the distinction between any claim by a third person through an exception
res immobiles and res mobiles. The distinction ac- (exceptio rei litigiosae) .-D. 44.6 ; C. 8.36.
quired particular importance in Justinian's law when Gradenwitz, Z S S 53 (1933) 409.
-
the division of things into RES MANCIPI and RES NEC Res lucrativae. Things which one acquired without
M ANCIPI became insignificant. any compensation, EX CAUSA LUCRATIVA (e.g., an
Schiller, A C D R , Rome 2, 1935; Kiibler, S t Bonfante 3, inheritance, a legacy, a donation). Such things were
1930; Naber, R S t D I t 14, 1941; Di Marzo, B I D R 49-50 in later law charged with a special tax, descriptio.--
(1948) 236.
C. 10.36.
Res in iudicium deducta. A judicial controversy
Res mancipi. Things the ownership of which is trans-
which after the joinder of issue (LITIS CONTESTATIO)
ferable only by thi solemn act of M A N C ~ P A T I O(hence
passed to the second stage of the trial, before the
the name) or by I N IURE CESSIO. Res mancipi in-
private judge (iudex). The defendant is protected
cluded buildings and land on Italian soil, rustic (not
against a reiterated claim in the same matter by an
urban) servitudes connected with such land. slaves.
exception that the claim has already been tlie object
of a trial (exceptio rei in iudicium deductae). This and farm animals of draft and burden, such as "oxen,
horses, mules, asses" (Gaius, Inst.. 1.120). All
exception is similar to the EXCEPTIO REI IUDICATAE.
these things and rights (servitudes) represented the
The difference is that the latter could be applied
highest value in a primitive rural econbmy, and the
\\.hen a judgment has already been rendered.-See
wealth of a Roman peasant consisted primarily in
I.ITIS CONTESTATIO.
M. Kaser, Restitucrc als Pro=essgegenstand, 1932. them. The distinction lost its importance in the later
Empire; officially it was not abolished until Justinian
Res in public0 usu. Things belonging to the state,
who destroyed its basic idea by abrogating the re-
the use of which is allowed to all people, as streets,
quirements of solemn formalities in the transfer of
theatres.
W. G. Vegting, Domaine public et res extra commercium ownership of res ~lzancifli. Ant. RES NEC MANCIPI.-
(Alphen a. d. Rijn, 1950) 52; H. Vogt, Das Erbbaurecht, See MANCIPATIO.
1950, 22. Marchi, A G 85 (1921) ; Bonfante, Scr giurirlici 3 (1918) ;
Res in patrimonio nostro. See RES EXTRA PATRI- De Visschcr, S D H I 2 (1936) 263 (= Nor~vcllcs Etitdcs,
1949, 236) ; Fcrrabino, S D I I I 3 (1937) ; Cornil, KH 1937,
MONIUM. 555; Clcrici, Economia e finanza di Roma 1 (1943) 311;
Res incorporales. Things "which cannot be touched, Hernandez Tejero, AlTDE 16 (1945) 290.
such as those consisting in rights, e.g., an inheritance, Res militaris. hlilitary matters, legal rules concerning
a usufruct, ol)ligationsl' (D. 1.8.1.1) , immaterial soltliers antl their legal situation, military discipline,
things. Ant. ~ 1 %CORPORALES.-Inst.2.2. antl organization, antl particularly military penal law.
Res integra. See INTEGER. Several jurists (Tarruntenus, Arrius Menander,
Res iudicata. "A controversy which was concluded I)y Macer, and l'aul) wrote monographs on military
the judgment of a judge" (D. 42.1.1). Res iudicatc~ law.-T). 49.16; C.12.35 (36).
creates a new legal situation between the parties to Res mobiles. Moval)les. Syn. ~itobilia. Ant. RES I M -
the trial thr~stinishetl antl "is consitlered as truth" Mnnrr.rs, r r s soli. The distinction is of importancr
VOL. 43, FT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 679
in various institutions of Roman private law and Therefore the res publicae may be used by every one,
procedure (POSSESSIO,USUCAPIO,MANCIPATIO, DOS, e.g., fishing in public rivers; see FLUMINA. O n the
INTERDICTA, etc.). A special category of res mobiles contrary RES COMMUNES O M N I U M were not consid-
(syn. res moventes, moventia) consists of RES SE ered property of the Roman people although their
MOVENTES. use was accessible to all citizens.-D. 50.8; C. 11.31.
Res nec mancipi. See RES MANCIPI. Vassalli, StSen 25 (1908) = St giuridici 2 (1939) ; G.
G. SegrP, ATor 1936; Solazzi, ACNSR (2. Congr.) 1931 ; Scherillo, Lezioni. Le cose 1 (1945) 89; G. Lombardi,
Tejero, A H D E 16 (1945) 290. Ricerche in tenza di ius gentium, 1946, 49; Branca, AnTr
12 (1941) 78; idem, St Redenti 1 (1951) 179.
Res nullius. Things belonging to nobody. H e who
takes possession of them (OCCUPATIO)acquires own- Res pupillares. The property (the affairs) of a ward
ership by this very act provided that they are ac (pupillus) .-D. 27.9 ; C. 5.37.
cessible to private ownership since some res nullius, Res quae pondere numero mensurave constant.
such as RES DIVINI IURIS,are excluded from it.-See Things which are weighed, counted or measured, such
HEREDITAS IACENS, FURTUM, SERVUS S I N E DOMINO. as wine, oil, grain, coined money, etc. When given
Riccobono, NDI 11. in loan, the debtor returns things of the same kind,
Res nummariae. See NUMMARIUS. and not the same things in specie.-See MUTUUM.
Res peculiares. Things belonging to the peculium of Brassloff, Wiener Studien 36 (1919) 348 ; Savagnone,
a slave or a filius familias, or affairs connected with BIDR 55-56 (1952) 18.
the management of a pecu1ium.-See PECULIUM. Res quae usu consumuntur. Things the normal use
Res praesentes. See HYPOTHECA O M N I U M BONORUM. of which consists in full or partial consumption. Such
Res principalis. See PRINCIPALIS. things, as e.g., articIes of food, cannot be the object
of transactions in which the restitution of the things
Res privata Caesaris (principis) . The purely private
given in use is involved, as usus, USUS~RUCTUS, COM-
property of the emperor. From the time of Septimius
MODATUM.-D. 7.5.-See QUASI USUSFRUCTU~.
Severus it was neatly separately from the PATRIMO-
N I U M CAESARIS. Syn. RATIO PRIVATA. Res religiosae. Things "dedicated to the gods of lower
Liebenam. RE 1A; Lkcrivain, D S 3, 961 ; L. Mitteis, Rom. regions" (diis Manibus, Gaius Inst. 2.4), such as
Privatrecht 1 (1908) 358; Haijje, Histoire de la justice tombs or burial grounds. They belong to the cate-
seignoriale 1. Les domaines des Empereurs, 1927. gory of RES DIVINI IURIS. A piece of land being in
Res privatae. Private property, things "belonging to private ownership became LOCUS RELIGIOSUS when the
individuals" (D. 1.8.1 pr.). Syn. RES HOMINUM, ant. owner or another person acting with his pern~ission,
RES PUBLICAE. burjed a human body in it. A burial by an unau-
Res propria. See RES SUA. thorized person did not render the soil religiosus.
Res publica (respublica). The term corresponds in With the permission of the pontiffs, the owner could
a certain measure to the modern conception of the remove the corpse, and had a praetorian action against
State, but is not synonymous with it. I t comprises the wrongdoer for damages. Res religiosae could not
the sun1 of the rights and interests of the Roman be the object of a legal transaction. The owner who
people, popztlus Romanus, understood as a whole. legally made a res religiosa of his land, especially
Therefore it often means simply the Roman people when-the funeral of the deceased Derson was his duty,
and is separate from the emperor, the Roman empire, had no ownership on the place, but he acquired a
the fisc as well as from other public bodies, such as special right on the grave, IUS SEPULCRI,which im-
municipia, or coloniae which are sometimes also plied various duties, such as taking care of the tomb,
called res publicae, but different from the Roman observing sepulcral cult, sacrifices, and the right to
one. The meaning of res publica is particularly mani- bury other dead there (itts mortuum inferendi).-
fest when the sources speak of services rendered to D. 11.7 ; C. 3.44.-See SACRILEGIUM.
the res publica, of holding a high office in the res Leonhard, RE 1A (s.zl. religiosa) ; Toutain, DS 4 ; C.
Publica or of a man's being absent in the interest or Fadda, St. e questioni di dir. 1 (1910) ; Cuq, R H D 9
(1930) 383; G. Scherillo, Lesior~i. Le cose 1 (1945) 48.
for the benefit of the yes publica (rei publicae causa
abessc) which saved him from detrimental conse- Res sacrae. Sacred things, i.e., consecrated to the gods
quences his absence might otherwise bring him.-See in heaven by virtue of a statute "through the authority
ABSENTIA, SENATUSCONSULTUM ULTIMUM, INTEREST of the Roman people, by a decree of the Senate"
ALICUIUS. (Gaius, Inst. 2.4; 5 ) , or by the Emperor. They
Rosenberg, RE l A ; R. Stark, R . P., Diss. Tubingen, 1937; belong to the RES DIVINI IURIS. I n Justinian's law
Lombardi, AG 126 (1941) 200; idem, Ricerche in tema di res sacrae were also gifts "duly dedicated to the serv-
ius gentium, 1946, 49; De Francisci, SDHI 10 (1944) 150;
Guarino, R I D A 1 (1948) 95; Nocera, AnPer 58 (1948) 5. ice of God" (Inst. 2.1.8).--See SACRILEGIUM.
Res publicae. Public property, such as theatres, mar- A. Galante, Condizionc gittridica dcllc cosc sacre, 1903;
G. Hertling, Koilsckmtion i r ~ u lr . s.. Diss. Miinchen, 1911 ;
ket places, rivers, harbors, etc. Publicunz is all that Brassloff, Studien zttr ruvr. Rrchtsgesch., 1925 ; G. Scherillo,
"belongs to the Roman people" (D. 50.16.15). Lezioni. Le cose 1 (1945) 40.
680 ADOLF BERGER [TRANS. A M R R . PHIL.SOC.
Res sanctae. Hallowed things, such as city walls and Rescissoria actio. See ACTIO RESCISSORIA,
gates, Any wrong clone to them was punished by Rescribere. T o answer by writing. The verb is used
death.-See RES DIVINI IURIS. both of written answersgiven by jurists to questions
Res se (sese, per se) moventes (or moventia). on which they were asked for an opinion (see RE-
Things n~oving by themselves, such as slaves and SPONSA PRUDENTIUM) and of written answers (deci-
animals. This type of things (mentioned first in the sions) of the emperors (see RESCRIPTA PRINCII'UM).
fifth century) was added to the twofold classification: Rescripta principum. Written answers given by the
RES IMMOBILES and RES MOBILES. emperor to queries of officials (relatio, cons~tltofio,
Res singulae (singulares). Single, individual things. suggsstio) or to petitions of private persons (prcccs
not composed of several things, but made up as a libellus, supplicatio) . The rescripts were issuetl
whole from one substance ( c o r p ~ squod ztno spiritit either on the petition itself 'in the form of a SUB-
contincfur). Ant. CORPUS EX COHAERENTIBUS, a com- SCRIPTIO or in a separate letter (EPISTULAE PRIN-
plex of things, such as an inheritance (HEREDITAS), CIPUM). A rescript expressed the emperor's opinion
the whole property of a person (BONA). upon a legal question or a decision in a specific case.
Bianco, N D I 4, 371 (s.71.cosr sriitplici). I t often gave rise to a legal innovation when the
Res soli. See RES MOBILES. emperor's view introduced a new legal rule which,
Res sua (propria). One was excluded from certain although in principle binding only in the case for
activities in affairs of one's own. e.g., from being which it was issued. nevertheless. because it emanated
judge (see ICDEX I N RE PROPRIA)or witness (see from the emperor's authority, easily could acquire a
TESTIS I N RE PROPRIA), or from giving consent as a general binding force. In particular, when a specific
guardian to his ward's transaction when his own rule was repeatedly expressed by various emperors
interests were involved. The affairs of one's father, (phrases like itn,beratores saepe rescripserunt, saepe
wife, children, and freedmen were also considered [saepissime] rescriptu~izest, and the like, occur fre-
res sirs. Syn. causa propria.-See COGNITOR I N REM quently in juristic writings), it became law in fact.
SUAM. PROCURATOR I N REM SUAM. For the developn~entof a special proceeding in civil
Gonnet, R H D 16 (1937) 196. matters by imperial rescript, see CONSULTATIO.-C.
Res subreptae. See RES FURTIVAE, LEX ATINIA. 1.23.-See CONSTITUTIONES PRINCIPUM, LEGITIMATIO
Berger, R E 12, 2331. PER RESCRIPTUM PRINCIPIS, LIBER LIBELLORUM RE-
Res turpis. Syn. turpis cai4sa.-See CONDICTIO OB SCRIPTORUM.
TURPEM CAUSAM. Klingmiiller, R E l A , 1668; Cuq, D S 4, 952; Lecrivain,
F. Schwarz, Dir Grzrndlagc dcr corzdictio, 1952, 169. D S 4 ; Berger, OCD ; Wilcken, Hermes 55 (1920) 1 ;
Res universitatis. Things belonging to a corporate Sickle, CIPhilol 23 (1928) 270; W. Felgentrager, Antikes
Losungsrecht, 1933, 3 ; F. v. Schwind, Zur Frage der
body, primarily of public law as civitafes, nzunicipia. Publikatiojt, 1940, 167; De Rohertis, AnBari 4 (1941)
Res universitatis include,. ex.. theatres and stadia.
- , 281; L. Vinci. AnCat 1 (1947) 320; De Dominicis. I desti-
Res uxoria. Dowry.-See DOS. ftatari dei rescritfi inrperiali, Ann. Univ. Ferrara 8, parte 3
(1950) ; Wolff, ZSS 69 (1952) 128.
Res vi possessae. Things taken by force from the
Rescriptio. RESCRIPTUM.See the foregoing item.
owner or from whoever possessed them for him.
Thev were barred from USUCAPIO to the same extent Rescriptum Domitiani de medicis. ( O n physicians.)
as Stolen things (RESFURTIVAE).-See LEX IULIA ET See EDICTUM VESPASIANI.
PLAUTIA, VIS LEX ATINIA. Residua (residuae pecuniae). Sums embezzled by
Berger, R E Suppl. 7, 405. public officials. The LEX IULIA PECULATUS contained
Resarcire. T o restore, to make good (losses, dam- some specific provisions concerning residua, hence
ages). Syn. sarcire. the statute was named also Lex Iulia de residuis.-
Rescindere (rescissio). T o annul, to make void, to D. 48.13.-See PECULATUS.
repeal. The verb applies to judicial judgments (sen- Arta Divi Augusti 1 (Rome, 1945) 165.
tentiae), agreements between private persons, legal Residuum. A remainder. The noun refers in par-
effects resulting from certain situations (e.g., ztsu- ticular to the sum which remained due because the
capio), wills, etc., annulled either by law, a magis- amount obtained by a creditor from the sale of his
terial order, a judicial judgment or another remedy debtor's pledge (pignus, hypotheca) did not cover
(e.g., in integruf~zrestitulio) at request of a person the whole sum owed.-See HYPEROCHA.
interested in the rescission.-D. 49.8; C. 7.50. Manigk, R E 20, 1257.
Hellmann, ZSS 24 (1903) 94. Resignare. T o unseal a document, primarily a sealed
Rescindere venditionem. T o annul a sale.-D. 18.5 ; testament either for the official opening (see APER-
C. 4.44.-See EMPTIO 'VENDITIO,
REDHIBITIO. TURA TESTAMENTI) or .by a private person for pur-
Rescindere usucapionem. See ACTIO RESCISSORIA, poses of a forgery. Illegal removing the seals from
USUCAPIO. a testament was punished under the Lex Cornelia
Rescissio. See RESCINDERE. de fa1sis.-See FALSUM.
VOL. 43, FT. 2, 19531 ENCYCLOPEDIC DICTIC)NARY O F ROMAN LAW 681
Resistere. T o oppose, to resist. The term is pri- the judge is free to follow the opinion he pleases."
marilj used of ~)hysicalresistance to another's force These rules are attributed hy Caius (Inst. 1.7) to a
(vis) in self-defense. reform by the emperor Hadrian. See CONDERE IURA,
~ e s o l v e r e . T o annul, to rescind a transaction either I U S RESPONDENDI, O P T I N E R E LEGIS VICEM. The term
by mutual consent of both contracting parties (con- responsa does not cover opinions of the jurists ex-
frario consensu) or, in specific circunlstances, by a pressed in theoretical discussions or in their literary
unilateral act of one of the persons involved. Resolvi products. The importance of the responding activity
to 1)e rescinded, to become void (e.g., a mandat0, of the iurists suffered sonlewhat after the codifica-
mnndafuiti, by the death of one party). tion of the praetorian Edict under Hatlrian (see EDIC-
Resolvi sub condicione. A conditional transaction or T U M PERPETUUM) and the granting of ius r e s p o n d e d
testamentary disposition became null through the ful- became certainly rarer (if practiced at all), while on
fillment of the condition if the act had contained a the other hand, the authority of those jurists who
clause providing for its rescission in the event of participated in the emperor's council (CONSILIUM
fulfillment. PRINCIPIS)became predominant. Some prol)lems in
Respicere. T o take into consideration, to have regard the field of the ius resbondendi have remained still
to. The jurists used the verb in calling attention to controversial despite the copious recent literature.
specific points which were decisive for the juristic As a matter of fact, collections of responsa (see
evaluation of the case under discussion. RESPONSA), reflecting the responding activity of the
Respondere. See RESPONSA PRUDENTIUM, IUS RESPON-
jurists, appear through the century after ~ a d r i a n .
DENDI, PROPONERE. For the influence of the responsa prudentium on the
development of the law, see IURISPRUDENTIA.
Responsa. A type of juristic writing. The jurists Berger, RE 10, 1167; Wenger, RE 2A, 2427; Cuq, DS 4
used to publish their answers (see RESPONSA PRU- (s.v. prudentium r . ) ; Anon., NDI 10 (s.v. prudentium r . ) ;
DENTIUM) in collections entitled Responsa. W e know Pringsheim, JRS 24 (1934) 146; Wieacker, in Romanis-
of responsa of Labeo, Sabinus, Neratius, Marcellus, tische Studien, Freiburger rechtsgesch. Abhandlungen 5
Scaevola, Papinian, Paul, Ulpian, and some. other (1935) 43; Arangio-Ruiz, StSas 16 (1938) 17; De Zu-
lueta, TulLR 22 (1947) 173; for earlier literature, see
jurists. The adaptation of the original responsa for Massei, Scr Ferrini (Univ. Pavia, 1946) 430; for further
publication required sometimes the addition of spe- recent literature, see IUS RESPONDENDI.
cific argumentation, particularly when opinions of Responsio (responsum). As a part of the STIPULATIO,
other jurists were being rejected. Some jurists dealt the answer of the debtor assuming an obligation to
with the cases, on which they had given opinions the question (interrogatio) of the creditor.
(responsa) as respondent lawyers, in other works, Responsio (respondere). In a trial the reply of the
such as Quaestiones, or Digesta (Celsus, Julian, Mar- defendant or his representative to the presentation of
cellus) and vice versa, they inserted some real or
the case by the plaintiff; see NARRATIO.Responsio
fictitious cases they discussed as teachers in the works comprises all means of defense (defensio) used by
published as Responsa. the defendant for the denial of the plaintiff's claim.
Berger, RE 10, 1173.
Responsa pontificum. Opinions of the pontiffs on Responsio in iure. The answer given by a party to
questions concerning sacral law, in particular, whether a trial questioned in iure by the magistrate; see
INTERROGATIO I N IURE.
an intended sacral act 'was admissible or an act al-
Betti, A T o r 50 (1914-15) 389.
ready performed was legal. Responsa Pontificum
were given also at the request of magistrates. Responsitare. A rare term indicating the responding
F. Schulz, History o f R. legal science, 1946, 16. activity (respondere) of the jurists.-See RESPONSA
PRUDENTIUM.
Responsa prudentium. Oral or written answers
(opinions), given by the jurists when they were Restipulatio. (In interdictal procedure.) See AGERE
queried by persons involved in a legal controversy PER SPONSIONEM, INTERDICTUM.
or in litigation. Responsa were given also to magis,- Restipulatio tertiae partis. See SPONSIO TERTIAE
trates or judges if they addressed themaelyes to a PARTIS.
jurist for opinion on a legal problem. The giving of Restituere. T o reinstate (a building, a construction,
responsa was an old Roman custom, going back to a road, and the like) to its former condition (in
the times ,when the pontiffs were the exclusive ex- pristinum statum). Restituere = "to take away what
perts in law (see RESPONSA PONTIFICUM).Responsa one did (constructed on another's property) or
are given in writing when they had to be presented to restore on its place what was taken away" (D.
in court. "The answers of the jurists are the views 43.8.2.43). In this sense restituere is used in the
and opinions of those to whom it was permitted to formulae of INTERDICTA RESTITUTORIA ("restituas") ,
lay down the laws (iura condere). If the opinions i.e., restoration into such condition as to enable the
of all of them agree, that which they so hold stands plaintiff to regain the full utility (omnis utilitas) he
in the place of a statute. However, if they disagree, had before the destruction or damage caused by the
682 ADOLF B E R G E R [TRANS.AMER. PHIL. SOC.
defendant. Restituere also involved the compensation Restitutio in integrum propter absentiam. Granted
for all losses and irreparable damages. to persons who because of their absence had incurred
Restituere (rem, hereditatem, bona). T o return, to damages, as, for instance, the loss of an action through
restore ( a thing, an inheritance) with all fruits and praescriptio, usucaption of the absent person's prop-
proceeds derived therefrom. "When the words 'you erty by a third person. Absence in the interests of
are to restore (restituas)' are used in a law, the the state, captivity, or absence enforced by duress,
proceeds also are to be restored although nothing was considered absence which justified a restitutio in
expressly has been said thereof" (D. 50.7.173.1). integrum. A request for restitutio had to be brought
Restituere with reference to guardianship or curator- within a year from the end of the period of absence
ship (restituere tutelam, curam) = to render accounts -C. 2.50.-See ABSENTES.
concerning the management of the ward's property Gallet, R H D 16 (1937) 407.
and affairs by the guardian (curator) when the Restitutio in integrum propter aetatem. Granted to
guardianship (curatorship) came to an end. minors (see MINORES)who had concluded a preju-
Levy, Z S S 36 (1915) 30; G. Maier, Priitorische Bereiche- dicial transaction. In the praetorian Edict there was
rungsklagen, 1931, 160; M. Kaser, R. als Prozessgegen- a section which concerned this kind of restitutio: "If
stand, 1932.
a transaction will be said to have been concluded with
Restitutio in integrum. A reinstatement into the a minor below twenty-five years of age, I shall give
former legal position. This was an extraordinary attention to the case according to its particular cir-
praetorian remedy (auxiliurn) granted at the request cumstances" (D. 4.4.1.1 ): Therefore this restitutio
of a person who had suffered an inequitable loss or in integrum was not conceded in just any case; the
was ihreatened by 'such a loss. A thorough investi- injured minor had to prove that it was only because
gation of the case (causae cognitio) preceded the of lack of experience due to his age that he had
in inteorunz restitutio as a result of which the Draetor concluded the transaction, since the m i n ~ r ' sright to
could annul through a decree (decretum) a trans- be protected by restitutio was considered a privilege
action, valid according to the ius civile. H e passed of age (benef cium aetatis) . There were several
such a decree when reasons of equity appeared to cases in which a restitutio was refused. The request
him sufficient enough to treat legally important events for annulment of the harmful transaction had to be
or transactions as non-existing and thereby to deprive made within a year after the minor attained the age
them of the consequences which were prejudicial to of majority.
the person involved. Granting a restitutio in inte- Solazzi, B I D R 27 (1914) 296.
grum was rather an act of the praetor's IMPERIUM Restitutio in integrum propter capitis deminutio-
than of his iurisdictio. The reasons and situations nem. A creditor who lost his claim against a debtor
in which this remedy could be applied, were mani- because of the latter's CAPITIS DEMINUTIO (when,
fold: the most tvpical are dealt -with in the. items
d.
e.g., he was adopted by arrogatio, or when a female
below. The praetor could also save a party from debtor concluded a marriage with conventio in ma-
unjust losses in another way; he might grant him n u w ) might request restitutio in integrum from the
an action, as if nothing had happened before and the praetor.
legal situation had remained unchanged, or, in the' Carrelli, SDHI 2 (1936) 141.
case of a person who was sued under a transaction Restitutio in integrum propter dolum. See DOI-us.
deserving annulment, grant him an exception. The Duquesne, MC1 Foumier 1929, 185.
reforms i n the civil Drocedure and the regime of -
bureaucratic jurisdiction gave the restitutio in inte-
Restitutio in integrum propter metum. Reestablished
the legal situation which existed before a transaction
:]rum a different aspect: from the extraordinary was concluded (or an act was done, e.g., the refusal
procetlural remedy depending on the discretion of of the acceptance of an inheritance) under duress.
the praetor, it became in the later Principate and The annulment of the pertinent transaction or act
the Empire a "henefcium" ( a legal benefit] and was decreed at the request of the person who had
other measures made it in certain cases superfluous. actetl under duress. In his Edict the praetor pro-
-D. 4.1 ; C. 2.21-41; 43; 46; 47; 49; 52; 53.-See claimed: "I shall not approve of what has been done
USUCAPIO, ALIENATIO I U D I C I I M U T A N D I CAUSA.
because of fear" (D. 4.2.1).-See METUS.
Klingmhller, RE 1 A ; Lkcrivain, D S 4 ; Sciascia, NDI 11 ;
I,. Charvet, Evolution de la restitution des mujeurs, Diss. Restitutio in ordinem. See MOTIO EX ORDINE.
Strasshourg, 1920; Lauria, St Bonfante 2 (1930) 513; Restitutio indulgentia principis. The restoration of
Johhk-l)uval, S t Bonfantc 3 (1930) 183; W, Felgentrager, a person, who had been contlemned to deportation for
Antifirs Losun,qsrecht, 1933, 101; Gallet, RHD 16 (1937)
407; Carrelli, S D f i l 4 (1938) 5, 195; idem, AnBari 1 a crime, into his former rights through an act of grace
(1938) 129; Berctta, K I S G 85 (1948) 357; Archi, St by the emperor. Such restitutio is also called resti-
Solnssi 1948, 740; Levy, Z S S 68 (1951) 360, tzitio in infegrum. The result was that the one so
Restitutio in integrum militum. Granted to soldiers ; restored (rcstitutus) was regartletl as if he never had
see the following item.-C. 2.50. I~eencandemnetl. Some restrictive clauses might be
VOL. 43, PT. 2, $9531 EXCYCLOPEDIC DICTIONARY O F ROMAN LAW 683
added to the emperor's decree and the return of con- donations which the husband had made to the wife
fiscated property had to be expressly granted. The under violation of the prohibition of such donations
imperial restitutio was also applied in cases when a (see DONATIO INTER VIRUM ET UXOREM). Reten-
person was condemned to forced labor in mines (see tiones propter impensas = retention because of ex-
METALLUM) .-See AROLITIO,INDULGENTIA. penditure made on the objects constituted as dowry.
Carrelli, AnBari 2 (1937) 55; Dessertaux, T R 7 (1927) Retentiones propter res amotas = retention because
281. of the husband's things which were taken away by
Restitutio natalium. See NATALIUM RESTITUTIO. the wife (see ACTIO RERUM AMOTARUM). I n the last
Restitutorius. See ACT10 QUAE RESTITUTIT OBLIGATIO- three instances the heirs of the husband also had the
NEM,INTERDICTA RESTITUTORIA. ius retentionis. The retentiones was materialized
Retentio. (From refinere.) The retaining of a thing through an exceptio doli opposed by the husband (or
by a person who normally is obligated to return it his heir) when he was sued for the restitution of the
to its owner. This kind of self-help could occur in dowry under the ACT10 RE1 UXORIAE. Justinianfs
various situations, especially when a Person had to reform of the dowry law abolished the rctcntiones.
bear expenses on another's thing (see IMPENSAE), The claims of the husband were partly suppressed,
which he was temporarily holding. When sued by partly (as those for ifizpensae) made suable under
the owner for recovery he might oppose a n exceptio specific actions or allowed to co~npensate for the
deli which, when proved justified, liberated him from reciprocal claim for the restoration of the dowry.
the restoration of the thing until his claims were ~ h comllilers
, replaced the term retentjo with the
satisfied. Retentio was admitted also when an heir terms eractio and co19zpensatio.-See R E T E ~ T I O .
claimed the quarta Falcidia (see LEX FALCIDIA)be- E. Nardi, St sulla riteit,-ioite 1 (1947) 146.
fore paying a legatunz o r a fideicommissum to the Retinere. See RETENTIO.
beneficiary. I t seems that the retentio was applicable R~~~~~~~~~ (retractatio). To revoke, to rescind a
in classical law in various legal situations which be- juristic act, to deny the validity (e.g., of a testament).
cause of alterations made by the compilers on the Leonhard, RE 1A.
pertinent texts are no longer The Retractare causam. To try in court anew ( r x infe-
retentionis (= the right to retain another's thing) gro) a case which had already been decided in a
was, not admitted in any instance in which previous trial. This was possible only illasllluc~l as
one who clain'ed a Payment fro''' another Person, was the rule his dc rg no sit nrtio (see RIS IDEM
the latter" Property a 'pecific E ~ ~ ~ E was R E not
) applicable and an E X C E ~ T I O REI
(for instance, as Or a gratuitous loan). Gen-
IUDICATAE could not be opposed. Retractnre car,sni,t
'rally, there 1''' '0 be a relations hi^ between the
was admissible only in exceptional cases, for instance,
thing retained and the claim.-The more important if it could be proved that the former judge had been
cases of retentio are dealt with in the following items. bribed or new docmments were found insfrtr-
Leonhard, R E l A ; Cuq, D S 4 ; D'Avanzo, NDI 11, 834;
Last, GrZ 36 (1909) 505; Riccobono, ( 1 ~ ~ 7 ) menta) which reversed the evidence presented in the
178; E. Nardi, Ritriiziorte c pcgrto Gordiar~o,1939; idriit, first trial. Imperial constitutions were particularly
A G 124 (1940) 74, 139; ide~ls.Scr Ferrirti 1 (Univ. Cat- innovating in this respect. The fisc was especially
tolica Sacro Cuore, Milan, 1947) 354; ideirt, St srilln ri- privileged in rcfmcfflrccalrsa,,l if it could offer new
tritziotle, 1. Foirti e cnsi, 1947; E. Protetti, Coittributo nllo
strtdio drll'cfficnci,l drll'c.zc. fi,lc di riteit,-io,,e, 1948.
evidence on its behalf, but only \vithin three years
Retentio pignoris. See PIGNUS G O R D I A N U M . from the first decision.-C. 10.9.
Biondi, S t Bonfnr~tc4 (1930) 96.
Retentio propter res donatas. See RETENTIONES
Retractare sententiam. T o change a judginent from
DOTALES.
Siber, St Ric.coboi~o 3 (1936) 241. which a party had appealet1.-See RETRACTARE CAU-
Retentiones dotales (ex dote). I n certain cases a SAM, ERROR CALCULI.
Hellman, ZSS 24 (1903) 87.
husband had the right to retain a portion of the
dowry when the restitt~tion thereof was to 1)e per- Retro agere. T o rescind a transaction ( a sale, a dona-
formed. Rrtrntionrs proptrv lihrros (= retention in tion).
favor of children) : ill the event of the wife's (leatl1, Retro dare. T o return, to repay a debt. Syll. soh-Ye'.
the husband coultl retain one-fifth of the dowry for Reus. A defendant in a civil trial. Syn. is c-rrm quo
each child. in the case of divorce 1)y fault of the wife c~gitirr. 'Ant. ncfor. There was a rule on btlhalf of
one-sixth. lmt in neither case more than a half alto- the tlefentlant : "Ilefentl;~~~tsare reg;~rtletlas cleser\.-
gether. Iirfcntionrs propfrr morcs = retention in ing illore fa\w-able trc;~tmcnt than plaintiffs" (D.
case of tlivorce arising from a ~lliscnntluct of the 50.17.125). Another rule tlefi~ictl: "That which is
wife: one-sixth when she was guilty of atl~~lter!. not 1)ermittetl to the tlefentlant shoulcl not be allowed
(morrs ~jrnviores), t~ne-eighth when hcr inll)roller to the plaintiff" (L). 50.17.41 p r . ) 13y opposing a n
conduct w;ts less grave (morrs 1rvior.c.s). Rrtcn- exception to the plaintiff's claim the tlefentlant as-
fionc~s propft=r YPS donafns = retcntion becat~se of sunietl the role of a plaintiff; see EXCIPERE, EXCEPTIO.
684 ADOLF BERGER [TRANS. AMER. PHII.. SOC.
In the so-called divisory actions (actio familiae er- Revocare alienationem. T o rescind an alienation.
ciscrrndac, ncfio corninlrni divid~rndo,actio finium re- Used of a creditor who called into question an aliena-
gztndonrm) each party to the trial is both plaintiff tion made by his debtor with the purpose of defraud-
and defendant.-See IUDICIA ~ u ~ r ~ ~ c ~ ~ . is- Ralso
e u s ing the creditors.-C. 7.75.-See FRAUS.
the accused in a criminal trial. In connection with a Revocare domum. See IUS REVOCANDI DOMUM.
specific crime (reus ho~nicidii,falsi, maiestatis) = Revocare donationem. I n classical law a donation
guilty. The death of the accused produced the dis- already accomplished (see DONATIO PERFECTA)was
continuance of the trial.-C. 9.6. irrevocable. In certain specific cases, however, the
Eger, R E 1A; LCcrivain, DS 4. postclassical law admitted the revocability of a dona-
Reus. (In obligatory relations.) Refers both to the tion, as in the case of a flagrant ingratitude of the
debtor (primarily) and to the creditor. See REUS donee or of donations made to villainous or irreverent
CREDENDI, REVS PROMITTENDI, REUS STIPULANDT, DUO children. A donation could also be revoked (from
REI. \Vitll reference to suretyship rcus is applied the third century after Christ on) if the donee did
both to the principal delltor (see REVS PRINCTPAI.IS) not fulfill the duty (see MODUS) imposed on him by
and to the surety (fideiussor). the donor. The revocation was allowed to the donor
Reus credendi. A creditor. Ant. rezts debendi = a alone, not to his successors. A patron might revoke
debtor.-See CREDITOR. a donation made to his freedman if the latter proved
Reus culpae. Guilty of negligence. Syn. reus ex ungrateful, see INGRATUS LIBERTUS.In the later law
ct!lpa.--See CULPA. (from the time of Constantine) a gift made to a
Berger, K r V j 14 (1912) 436. freedman by a childless patron could be revoked if
Reus debendi. See REUS CREDENDI, DEBITOR. the donor begot a child afterwards. A DONATIO
Reus excipiendo actor est. The rule applies to the MORTIS CAUSA was always revocable according to
defendant in a civil trial: by opposing an exception Justinian's law.-C. 8.55.-See PAENITENTIA.
to the plaintiff's claim the defendant acts as a B. Biondi, Successione testamentaria, 1943, 695; C. Cosen-
plaintiff.-See EXCIPERE, EXCEPTIO,REUS. tini, S t sui liberti 1 (1948) 223; S. Di Paola, Donatio mor-
tis causa, 1950, 66.
Reus principalis. The principal debtor as opposed to
a surety (fideil~ssor,adpromissor). Syn. principalis Revocare in patriam potestatem. From the time of
debitor. Constantine a father could recall an emancipated son
Reus promittendi. One who becomes a debtor by under his paternal power because of the latter's
assuming an obligation through stipulatio (qui pro- ingratitude.
nziftit, promissor). Ant. reus stipulandi. ~ e v o c ~ in r e servitutem. To revoke a manumission.
Reus stipulandi. One who becomes a creditor through A patron might revocare in servitutem an ungrateful
stipi/latio (qtri stipzdntur). Syn. stipulator. Ant. freedman (see INGRATUS LIBERTUS) in a case of par-
rezts proii<ittendi. ticular gravity.
De Francisci, MCl Cornil 1 (1926) 295.
Revendere. T o sell back. The term is applied to the Revocare legatum. See ADEMPTIO LEGATI.
sale of a freedman's services (operae liberti) to the Revocare mandatum. See MANDATUM.
freedman hiinself by the patron. Through such a Revocare Romam. T o call a judicial matter into a
transaction the freedman was released from the obli- Roman court. Already in the later Republic the
gation of perfornling further work for the patron. senate or the consuls cbuld order important iudicial
Passive revenire (re-veneo) = to be sold back. matters transferred from a province to Rome.
Reverentia. Respect due by children to their parents Revocare testamentum. T o revoke a testament by
or by a freedman to his patron.-See OBSEQUIUM. making another valid one or by annulment or de-
Kaser, Z S S 58 (1938) 117; C. Cosentini, S t sui liberti 1
(1948) 251. struction (e.g., by removing the seals, see LINUM).
Reverentissimus. A title given to high ecclesiastical This was a fundamental principle of the Roman law
dignitaries (archbishops, bishops, oeconolnus eccle- on testaments: "the will of a testator is changeable
sine). until the verv end of his life" (D. 34.4.4). This was
Reverti. To return. See A N I M U S REVERTENDI. Re- in conformity with the conception of the testament
verti is used of persons (slaves) who reverted under as the "last will'' (suprema, ultima voluntas) of the
the power of the same person under whom they had deceased. A testator could not relinquish that right
been before, and of things which returned to the by inserting in his testament a clause invalidating any
same owner to whom they had belonged. future testament. Such a clause was not binding;
Revocare (revocatio). T o revoke unilaterally a legal Justinian, however, required that the testator when
act (a donation, a testamentary disposition), to annul making a new testament should expressly declare
it by a manifestation of will to the effect that the that he was acting against his previous decision.
R. Bozzoni, I1 testamento r. primitive e la sua revocabilita,
previous legal situation be restored.-See REVOCARE 1904; De Francisci, B I D R 27 (1915) 7 ; Bohacek, St Bon-
ALIENATIONEM, REVOCARE DONATIONEM. fante 4 (1930) 307; B. Biondi, Successione testamentaria,
Leonhard, R E 1A; Cuq, D S 4. 1943, 591.
VOL. 43, IT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 685
Revocari per legem. T o be declared ineffective by a Rhetor. A rhetorician. See ORATOR.A rhctor giving
legal enactment ( a statute, the praetorian edict, an instruction in rhetoric was reckoned among teachers
imperial constitution). (magisfri), and his discipline among the artes libe-
Hellmann, Z S S 24 (1903) 104. mles. A rhetorician was at his request exempt from
Revocatio. See REVOCARE. the duties of a judge in a civil trial. For the privi-
Revocatio in duplum. A defendant condemned in a leges granted to the rhetoricians, see MAGISTRI.The
trial could without awaiting the plaintiff's action for problem of the influence of rhetoric on Roman iuris-
execution (ACTIOIUDICATI)challenge the judgment prudence is the subject of controversy. Attempts to
as invalid. Such a complaint was called revocatio in deny any influence are futile; but it is hardly possible
duplum since in the case of failure he had to pay to delimit this influence with any certainty. There
double the amount of the previous judgment. is also in the literature a tendenci to exclude certain
Biondi, S t Bonfartte 4 (1930) 92. words and phrases from the juristic language al-
Rex. During the period of kingship, which lasted about though they occur frequently in the language of the
250 years from the foundation of Rome, a king (rex) rhetoricians. Such a method applied
-.
in the search
was at the head of the Roman people as the holder for interpolations is erroneous. After all, the jurists
of the highest military and judicial power. The king studied rhetoric in their youth like all well educated
was also the highest priest and presided over the Romans, and it would be quite natural for them to
sacred ceremonies ; his religious duties were the most use words and locutions they heard from their
important in peace time. Tradition preserved the teachers.
names of seven kings from the legendary founder of Ziebarth, R E ZA, 765; Pasquali, Riv. di filologia e d'ist~u-
Rome, Romulus, to the last king, Tarquinius Super- zione classica 10 (1927) 228; F. Lanfranchi, I1 diritto nei
retori rom., 1938; Kiibler, S D H I 5 (1939) 285; Stein-
bus, whose expulsion (in 509 B.c.) marked the end wenter, Rhetorik und rBm. Zivilprozess, Z S S 65 (1947)
of the regal regime. The constitutional structure of 69; S. F. Bonner, Rom. declamation in the late Republic
the state and the legal institutions of this period are and early Empire, 1949; J. Stroux, Rom. Rechtswissen-
obscure in many details. Later historical sources are schaft und Rhetorik (Potsdam, 1949; contains a new ed.
not fdly reliable because of their tendency to retro- of the author's Summum ius summa iniurin, 1926; Italian
translation of the first ed. by Riccobono, AnPal 12, 1928).
ject me origin of certain Republican institutions back
to :he times of the kings. The power of the rex was Rhopai. A Byzantine juristic writing of the seventh
not hereditary; he was elected by the people for life, century composed in Greek by an unknown author
the election being confirmed by the senate. The com- and published under the title "On spaces of time from
position, election (nomination by the king?) and one moment (rhope = a moment) to one hundred
activity of the senate are also obscure. Its prin- years." I t is an exact collection of the various extents
cipal role might have been that of an advisory council of time which occur in Justinian's legislation, the
of the king. The number of the senators (patres), Novels included.
originally one hundred, was increased to three hun- Edition: K. E. Zachariae, Rh. oder die Schrift iiber Zeit-
abschnitte, 1836; J . and P. Zepos, Ius Graeco-Romcan~~m 3
dred. Popular assemblies (comitia curiata) also ex- (Athens, 1931) 273.-J. A. B. Mortreuil, Hist. du droit
isted already in the regal period.-See REGNUM, bgzantin 1 (1843) 40; Tamassia, A G 54 (1895) 175;
CURIA, LEGES REGIAE, IUS PAPIRIANUM. Scheltema, T R 17 (1941) 415.
Treves, O C D ; Fustel de Coulanges, D S 4, 824; De Ro- Rigor iuris. The severity, inflexibility, rigidity of the
bertis, N D I l l ; F. Bernhoft, Staat und Recltt der rom. law. A rule defined by the late classical jurist,
Konigszeit, 1882; F. Leifer, Die Einheit der Gewalt-
gedankens, 1914, 147; idem, Klio, Beiheft 23 (1931) 77; Modestinus (D. 49.1.19) recommended : "If a judg-
Gioffredi, Bull. Commissione Comunule archeol. di Roma, ment is rendered clearly against the rigor iuris, it
1943-1945 ; Nocera, AnPer 57 (1946) 171 ; S. Mazzarino, shall not be valid. and therefore the matter should be
Dalla monarchia a110 stato repubblicano, 1947 ; P . Noailles, brought again into court even without an appeal."
D u droit sacrk au dr. civil, 1950, 32; Westrup, Archives
d'hist. dl4 dr. oriental 4 (1950) 85 ; Coli, S D H I 17 (1951) Ripa. The bank of a river. If the bank of a public
54. river was in private ownership, its use was accessible
Rex sacrorum (sacrificulus). A priest who officiated to all for navigation, transportation, fishing, etc. The
at certain religious observances. The office was owner's right to repair or strengthen the bank (mu-
created at the beginning of the Republic ; the rex sacro- nire ripam) was protected by a special interdict,
rum first assumed the sacral functions of the king, interdictum de ripa munienda, against any interfer-
hence the title of rex was conferred on him. H e was, ence with the necessary repairs or improvements pro-
however, lower in rank than the PONTIFEX MAXIMUS, vided they did not impair navigation. On the other
who was his superior. The rex sacrorum existed hand the demolition of constructions which impeded
still in the Empire. navigation (quo navigatio deterior fit) could be en-
Rosenberg, R E 1A. forced by another interdict.-D. 43.12; 15.-See I N -
Rex socius. The king of a foreign country with whom TERDICTA DE F L U M I N I B U S PUBLICIS, INTERDICTA DE
Rome had a treaty of alliance.-See SOCII. REFICIENDO.
686 ADOLF B E R G E R [TRANS.
AMER.
PHIL. SOC.
Rogator legis. One who proposed a statute to a taining to, life and work in the country.-See PRAEDIA
their activity was called diribitio. such as sand, clay, quarry-stones) or cut down (such
Liebenam, RE IA, 5 (s.v. diribifio? ; G. Rotondi, Leges as trees). If separated froln the soil, they could be
Rogatu. At request.-See ROGO. selling the land. According to another opinion, they
ROgerius. A glossator the second the alwavs remained in the ownershiD of the seller unless
century.-See GLOSSATORES. they were expressly sold together with the land.
Kuttner, NDI 11, 906; H. Kantorowicz and W. W. Buck-
land, Studies it% the Glossatorso f the R. Law, 1938, 122. Rutiliana actio, constitutio. See ACTIO RUTILIANA,
Rogo. Used in the forn~ulaof a FIDEICOMMISSUM. CONSTITCTIO, RUTILIUS RUFUS, USUCAPIO E X RCTI-
Rogus. A funeral pile.-See BCSTUM,USTRINA. L I A N A CONSTITUTIONE.
Ziegler, RE 1.4; Cuq, DS 2, 1394. Rutilius Maximus. A jurist of the third post-Chris-
Roma. Rome. ''Roltza is our common fatherland" tian century, author of a one-book-dissertation on
(D. 50.1.33). Syn. urbs. After Constantinople be- the LEX FALCIDIA.
came the capital of the Empire, Rome was denoted Rutilius Rufus (Publius). A jurist of the first half
in imperial constitutions as the "ancient Rome" (z~etzrs of the first century B.c., a disciple of the famous
Rovtza) while the new capital was termed nova Ronzn. republican jurists, hlanilius, Brutus, and P. Mucius
Both cities were designated as zrtraque Roma.-See Scaevola. H e was in great demand for juristic
VOL. 43, PT. 2, 19.531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW
opinions (responsa). H e was the creator of the Saccus (sacculum). A sack, a money-purse. A
ACTIO RUTILIANA, and perhaps also of the actions deposit of a sealed purse containing money was
granted the patron for services due by his freedmen treated as a normal deposit (depositztnz) .-See DEPO-
( ~ ~ ~ ' I U D I C I UOPERARUM)
M which are attributed to a SITU hI IRREGULARE.
praetor Ruti1ius.-See CONSTITUTIO. Sacer. ( I n sacral law.) Sacred, consecrated to gods.
Miinzer, R E IA, 1269 (no. 34) ; Orestano, N D I 11, 948. -See LOCUS SACER,RES SACRAE, CONSECRATIO, DEDI-
CATIO, PECUNIA SACRA, IUS SACRUM.
Ganschinietz, R E lA, 1626.
Sabiniani. The name of a school (schola, secta) of Sacer. ( I n earlier penal law.) Some of the oldest
legal thought in the first and the early second cen- provisions of the Roman criminal law established as
turies after Christ. The name refers to the famous a punishment for certain crimes the sacratio of the
jurist Massurius Sabinus (see SABINUS),a prominent wrongdoer by proclaiming "sacer esto" ( = that he be
leader of the group. The "school" is called also consecrated to gods, be outlawed). This involved
Cassiani after the name of the jurist C. Cassius exclusion from the community, from divine and
Longinus, Sabinus' successor. The origin of the human protection. The death penalty was not in-
Sabiniani as well as that of the rival school of Pro- flicted directly, but killing a sacer ho~no was not
culians (Proculiani, Proculeiani) , so-called after the considered murder. Sacratio was decreed for crimes
name of their leader PROCULUS, goes back to the time against institutions which were under divine protec-
of Augustus. The founders may have been Labeo tion, for removing boundary stones (see T E R M I N U ~ ~
and Capito (the latter was predecessor of Sabinus). MOVERE), for fraud coillmitted by a patron against
A considerable number of controversial questions, on his client, and from the middle of the fifth century
which the opinions of the leading representatives of B.C. for an injury done to a plebeian tribune. In
the two groups differed, is known but it is difficult addition to the sacratio capitis the property of the
to find a common basis-a political, philosophical, or sacer was forfeited to gods (consecratio or sacratio
economic background-that will explain the differ- bonorutn).-See INTERDICERE AQUA ET IGNI, LEGES
ences in their opinions. According to a recent view SACRATAE, SACROSANCTUS, SACRAMENTUM, T E R h f I N I
the distinction between the two schools is based on MOTIO.
the real existence of two legal educational institu- Ganschinietz, R E IA, 1627; Lkcrivain, D S 4 (s.2~.sacratlo
rapitis) ; J . L. Strachan-Davidson, Problems of the R .
tions. Among the prominent Sabinians after Sabinus rrimirzal law 1 (1912) 3 ; W. W. Fowler, Rornan essays,
and Cassius were Iavolenus, Gaius, and Julian, among 1920, 115; Groh, St Riccoborzo 2 (1936) 5 ; M. Kaser, Das
the Proculians Pegasus, Celsus the Younger, and altrom. lus, 1949, 45.
Neratius.-See SCHOLA. Sacer. (With reference to the emperor.) Sacred,
Kiibler, R E 1A (s.v. Rechtssckulen) ; Berger, O C D (s.v. imperial. Imperial enactments are termed sarrcic
Sabinus) ; G. Baviera, Le due scuole dei giureconsulti rom., constitutiones. The term saccr is very frequent in
1898; Di Marzo, RISG 63 (1919) 109; Ebrard, Z S S 45
(1925) 134 ; P. Frezza, Metodi ed attivitd delle scuole ronz. later imperial constitutions and is applied to every-
di diritto, 1938; F. Schulz, History of R . legal science, thing connected with the emperor (snrrac srntcntinr,
1946, 119 ; 338. sacra oratio, sacrunt altditorilc~iz,etc.)-See PRAEPO-
Sabinus, Caelius. See CAELIUS SABINUS. SITUS SACRI CUBICULI, LARGITIONES SACRAE. C O h I E S
Sabinus, Massurius. A famous jurist of the early SACRARUM LARGITIONUM, COGNITIO S A C R A , IITDlCAPiS
first century after Christ, head of the school of VICE SACRA.
Sabinians (see SABINIANI), author of an extensive, Sacerdotes. A general term for priests. See PONTI-
systematic treatise on ius civile which was commented FICES, FLAMINES, AUGURES, FETIALES, FRATRES AR-
on by later jurists until the third century in works VALES,D UOVIRI (DECEMVIRI, QUINDECIMVIRI) SACRIS
entitled "Ad Sabinlr~n." The system adopted by FACIUNDIS, COLLEGIA SACERDOTUM. Under the Chris-
Sabinus in his fundamental work followed this tian emperors saccrdotcs = ministers of the Church;
scheme: law of successions (testamentary and on sometimes saccrdos indicates a bishop (episroplts) .
intestacy), law of persons, law of obligations and In Justinian's legislative work the term sarrrdotrs as
law of things. Sabinus wrote also a commentary to well as saccrdotium ( = priesthood, the office of a
the Edict, a collection of responsa, and a priest), even when cluoted from the work of a pagan
monograph on theft. jurist, is to be understood in the new sense.
Steinwenter, R E IA, 1600; Berger, O C D ; 0. Lenel. Dns Riewald, R E 1A ; Chapot, D S 4 ; Rose, O C D (s.7,.prirsts) ;
Sobirtrrssj~stem ( F g Ihering, Strassburg, 1896) ; F. Schulz, E. Pais, Rirrrrlrr srrlla storin 1 (1915) 27; Carter, T ~ or- P
Snl~irrrrsfrngrrtrrrtcitz Ulpians Snbirzrrskorn~rrortar,1906; P . pnrrisntiorz of the Romnrr prirsthoods nt tlrr beyinniny of tlrt,
Frezza, Osscrvazior~isopra il sistcrrta di Sabirto, RISG 8 Rcprlblir, Mcm. Amrr. Arndrmy in 12orrrc 1 (1916).
(1933) 412. Sacerdotes municipales. I'riests in municipnlities.
Saccularius. One who steals money from another's The municipia had their pontificcs, augurcs. flamincs.
purse, a pick-pocket. A sacculari~tswas more se- Vrstnles, and also priests whose sacral service was
verely punished than an average thief. co~lnrctetlwith a specific m~u~icipal drity. The ap-
688 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
pointment of saccrdofes nctinicipalcs was made by the Sacra privata. Sacrifices and religious rites performed
ordo decztrion~iw ( = the municipal council). "on behalf of individuals, families, and gentes" (Fes-
Riewald, RE l A , 1651. tus 245) .-See SACRA.
Sacerdotes provinciales. Priests in provinces. Their A . De Marchi, I1 rulto privato d i IZoma antica, 1896; R.
service was dedicated not only to gods, but also to Lefevre, Des s. p. crt droit rorilnin, 1928; Bruck, Scr Fcrrir~i
4 (Univ. Sacro Cuore, Milan, 1949) 6 ; 35.
the worship of the emperor.
Sacra publica. See SACRA,IUS SACRUM,IUS PONTI-
Sacra. ,111 kinds of relations between men and crods. FICIUM, SACRA GENTILICIA.
.
2
The most important domain of the sacra were the Sacrae largitiones. See LARGITIONES SACRAE.
sacrifices performed by bodies of public character Sacramenturn. An oath. For oaths in civil trials,
(including communities) and by private persons. see IUSIURANDUM, IURAMENTUM, IURARE.
Hence the division into sacra publica and sacra pri- P. Noailles, Du droit sarrh nu dr. civil, 1950, 275.
~~clta.The former were carried out at the expense Sacrarnenturn. I n the procedure through legis ac-
of the state or other public body (sumptu publico) tiones; see LEGIS ACTIO SACRAMENTO, I N I
U S T U M
and on I~ehalfof the people (fir; populo) by priests SACRAMENTUM.
and high magistrates without active participation of Levy-Bruhl, Revue des Etudes latines 30' (1952).
the people ; the latter were a private affair which con- Sacrarnenturn. In military and civil service, sacra-
cerned an individual or a group of individuals mentum = the soldier's oath of allegiance to the
(fancilia, gens). \Irithin the family group the sacra standards. I n the Empire the soldiers were sworn
fantiliarin included worship of a special deity, pro- in by an oath to the emperor. The violation of the
tector of the family (see LARES,PENATES), as well as sacramenturn 'rendered the offender an outlaw; see
of the ancestors of the family. These religious rites SACER. Magistrates and imperial officials (militia
were celebrated by the heirs, not only the descendants civilis) took a similar oath to observe the laws.-In
of the last head of the family, but also by heirs ap- later imperial constitutions, sacrarnentum = an official
pointed in a testament even when they were strangers post.-C. 10.55.
to the family. Thus the continuity of the sacra failti- Klingmiiller, R E 1 A ; Parker, O C D ; Cuq,. D S 4, 951;
liaria was intimately connected with the succession to A . v. Premerstein, Wesen und Werden des Prinzipats,
A B a y A W 15 (1937) 73.
the family property. Of an analogous nature but on a
larger scale were the sacra of a gens (sacra gentilicia), Sacrarium. In Justinian's language, a court-hall.
i.e., the c o n ~ n ~ oworship
n and religious rites cele- Sacratio. See SACER,CONSECRATIO, RES SACRAE, LEGES
brated by'the members of a gens. This community SACRATAE.
of sacra (conznzunio sacrorum) of the members of a Sacratissimus. Most sacred. This epithet was applied
gens was a strong tie uniting them (the gentiles). to the emperors and institutions connected with them
The pontiffs assisted private persons with advice as (see PALATIUM, AERARIUM) already during the Prin-
to rites and forms to be applied in the performance cipate. Sacratissima constitutio = an imperial enact-
of sacred ceremonies and exercised a certain super- ment. I n the later E m ~ i r echurches and ecclesiastical
vision of the pertinent activities.-See IUS SACRUM, institutions were termed sacratissimae.
IUS PONTIFICIUM, REX SACRORUM, DETESTATIO SACRO- Sacrificium. A sacrifice. See SACRA. Malum sacri-
RUM, M A N U M I S S I O SACRORUM CAUSA. ficiutn = a sacrifice in which a human being', was the
Geiger, RE 1 A : Toutain, DS 4 ; Severini, N D I 1 1 ; G. victim (hominem immolare). The offender was
Wissowa, Religion und Kultus der Romer, 2nd ed. 1912; punished by death. ~~~~h~~ sacrifices were for-
Bruck, Sem 3 (1945) 4 ; idem, Scr Ferrini 4 (Univ. Sacro
Cuore, Milan, 1949) 6 ; Biondi, Iura 1 (1950) 155. bidden by the emperor Constantius (A.D. 354, C.
Sacra familiaria (familiae). Sacra performed on be- 1.11.1). Imperial legislation of the fourth and fifth
half of a family (sacra falniliis) .-See centuries concerning pagan religious institutions and
FAMILIA,SACRA PRIVATA. customs (temples, sacrifices) is found in Justinian's
Sacra gentilicia. See SACRA,GENS. Syn. sacra pro Code, 1.1 1.-See SACRA,SUPPLICATIONES.
Latte, R E 9 (s.v. immolatio) ; Toutain, D S 4, 972; G.
genfih~cs. Some of the more influential gentes were Wissowa, Religion und Kultus der Riime?, 1912; Eitrem,
tion of Rome from the Goths). By this enactment see also the following items.-Inst. 4.11 ; 1.24; C.
Justinian ordered that his existing legislative work 2.56.
(the Institutes, the Digest and the Code) and all his Steinwenter, RE 2A; Severini, N D I ; R. De Ruggiero,
later enactments should be in force in Italy. Sqtisdatio e pigneratio nelle stipulacioni pretorie, St Fadda
Edition: App. VII in the edition of Justinian's Novels 2 (1906) 101.
(Corpzls iuris civilis, 3) by Schbll and Kroll (fifth ed. Satisdatio de opere restituendo. See OPERIS NoVI
1928) ; M. Conrat (Cohn), Gesch. der Quellert und Litera- NUNTIATIO.
tur des rom. R. im Mittelalter, 1891, 131. Berger, Iura 1 (1950) 117.
Sanctus. "What is defended and protected against Satisdatio legatorum. See CAUTIO LEGATORUM CAUSA.
men" (D. l.8.8) and "what is neither Satisdatio pro praede litis e t vindiciarum. See CAU-
sacred (sacrun') nor profane, but is confirmed T I 0 PRO PRAEDE LITIS ET VINDICIARUM.
a kind of sanction (sanctio) without being conse- Satisdatio rem pupilli salvam fore. See CAUTIo REM
crated to a god" (D. 1.8.9.3). See RES SANCTAE. PUPILLI SALVAM
are sanctae since are
Satisdatio secundum mancipium. A guarantee con-
a sanctio.
I n order to avoid the harmiul consequences of the chirograph~ritt,etc.). Quotations froin juristic writ-
ignorance of the law, one had to consult a professional ings are also introduced by scribere ("Labeo siribit")
lawyer, since "scicntin iltris is the knowledge one with or without indication of the work from which
has by himself or may acquire by consulting persons the quotation was taken.-See the following item,
illore learned in law (prudcntiorcs)," D. 37.1.10. SCRIPTURA.
Scieqtia iusti e t iniusti. The knowledge of what is Klingmuller, RE 1A.
just and what unjust. Appears in the definition of Scribere heredem (tutorem, exheredem). T o insti-
I r R I S P R U D E N T I A by Ulpian (D. 1.1.10.2). tute an heir (to appoint a guardian, disinherit a
Scientia legitima. See SCIENTIA IURIS. person) in a testament. Hence heres scriptus = an
Scilicet. Of course, certainly, evidently, to be sure. heir instituted in a testament. Ant. lzcvcs legitimlts.
See I D EST. Soine phrases introduced by scilicet may Scrinia. Subdivisions of the bureaus of the in~perial
have originated in marginal, explanatory glosses which chancery in the later Empire. Literally the term
later copyists inserted in the text of a juristic writ- indicates the buckets in which the official papers were
ing, and which subsequently were copied by the com- stored. The chiefs of those offices, which were called
pilers of the Digest. also sncra scrinia, the magistri, proximi, conzites, were
Guarneri-Citati, I i ~ d i c e(1927)
~ 80. subject to the MAGISTER OFFICIORUM. The various
Scipio Nasica (Gaius). A highly estimated jurist of scrinia were indicated by an additional term as to
the second century B.C. According to a (not fully their specific functions, e.g., scrinia epistularum, lihel-
relial~le) remark by Pomponius he was offered a 1orarnt.-See the following items.-C. 12.9.
Seeck, RE 2A; Lkcrivain, DS 4.
house at public expense in order to make him readily
accessible for consultation. Scriniarii. Officials employed in the SCRINTA.-C.
Munzer, RE 4, 1501 (no. 353). 12.49.
law) should not start the proceedings until a copy well known; in Justinian's time it no longer existed.
to remain until the end of the proceedings. still held by a private individual, the sector was
Scripturarius ager. See AGER SCRIPTURARIUS. granted a special interdict, the so-called interdictum
things in question.
Scutarii. Heavily armed bodyguards of the emperor Leonhard, RE 3 (s.v. bonorum s . ) ; Berger, RE 9, 1669
in the later Empire. They were among the scholares (no. 50) ; Humbert, DS 1 ( s . v . bonorum s . ) ; Klingmiiller,
of the SCHOLAE PALATINAE. RE 2A, 892; 0. Lenel, Edictum perpetuuma (1927) 456;
Seeck, RE 3A, 621. Rotondi, CentC'odPav. 1934, 103 ; Solazzi, Concorso dei
creditori 1 (1937) 242.
Secare partes. This expression occurred in the Twelve
Tables in connection with the creditors' right of exe- Sector. See SECTIO BONORUM, AUCTIO.
cution on the person of a debtor in default. The Secundae nuptiae. A second marriage. The conclu-
pertinent provision as related by Gellius (Noctes sion of a second marriage after the dissolution of the
Att. 20.1.52) ordained: "on the third market day previous marriage through death or divorce, was
they (scil. the creditors) might cut [the debtor] to generally permitted-to men, without restrictions, to
pieces; cutting more or less [of the body of the women (originally only widows, and later also di-
debtor] would not be a fraud." The meaning of vorced women) after ten months (later one year).
the phrase is not beyond any doubt; it seems to allude See LUCTUS, TURBATIO SANGUINIS. A~gUstUs'legis-
to an old custom of bringing an insolvent debtqr to lation (see LEX IULIA DE MARITANDIS ORDINIBUS)
the market on three consecutive market days and fostered even second marriages by inflicting financial
pronouncing publicly what he owed, in order to give disadvantages to unmarried and childless persons.
his relatives and friends an opportunity to pay for Under the influence of Christianity the later imperial
him. If they did not, the creditors were authorized legislation became unfavorable to second marriages.
to kill him. Whatever the meaning of this provision, From the fourth century on, it imposed upon men
literary sources note that no instance of such a and women married a second time various restrictions
cruelty on the part of creditors was known. of a financial nature in favor of children born of the
Riccobono, FIR 1% (1941) 33 (ad Table 4.6; Bibl.) ; F. first marriage.-C. 5.9; Nov. 22.-See UNIVIRA.
Kleineidam, Die Personalexecution der Zwolf Tafeln, 1904, Secundae tabulae. See TESTAMENTUM PUPILLARE.
224; J . Kohler, Shakespeare vor dem Forum der Jurispru- Secundarium interdictum. See IXTERDICTUM SECUN-
denz (1919) 50; Radin, AmJPhilol 43 (1922) 32; H. DARIUM.
Levy-Bruhl, Quelques problBmes du trBs ancien dr. ram.,
1934, 152; Diill, ZSS 56 (1936) 289; G. I. Luzzatto, Pro- Secundocerius. See PRIMICERIUS.-C. 12.7.
cedura civile ram., 2 (1948) 36; Georgescu, RIDA 2 Secundum. I n favor of, according to, e.g., to render
(1949) 367 ; Kaser, Das altrom. Ius, 1949, 187. a judgment in favor of the plaintiff (secundum ac-
Secretarium. A closed court-hall (in the later Em- toreln), to decide according to the testament (secun-
pire) in which trials were held and judgments ren- duln tabulas) in favor of the heir. .4nt. contra.
Securitas. Security, guaranty. Securitas rei publicae B.C.(consul 305 B.C.?), popularly known by the Greek
(publics) = the security of the state, public safety. epithet Sophos ( = Sapiens) because of his profound
Securitates. I n the meaning of receipts, syn. with knowledge of the law.-A similar case is that of the
apochae. They attested the debtor's discharge of his also unknown jurist, Publius Atilius (he appears in
debts. Official securitates were issued for the dis- Cicero as Lucius Acilius), of the second century B.c.,
charge of compulsory public services (munera) . who was honored with the title of Sapiens.
Securus. Irresponsible, free from responsibility, not Miinzer, RE 2, 1437 (no. 85) ; Klebs, R E , 1, 252; W.
exposed to an action or exception. Juristic decisions Kunkel, Herkunft told soziale Stellu~zgder rom. Juristen,
1952, 6, 10.
to the effect that a person is securus ( = secure) meant
that he need not fear a suit or judicial prosecution. Semuncja. One twenty-fourth part of a whole (e.g.,
Securus was also used of a creditor who received of a n inheritance).-See AS, EX ASSE.
sufficient securities (pledge, sureties) from his debtor. Senaculum. The place where the senate gathered.
Secutores. Soldiers, attendants (orderlies) assigned Originally, it was an open place in the forum, later
to the personal service of high military commanders, a building ( a curia or temple).
Klotz, R E 2A.
military tribunes, etc. ~ a v a commander
l had also
their secutores. Senatores. Members of the senate. See PATRES.
Fiebiger, R E 2A. After the admission of plebeians to the senate (the
Sedes. With reference to private persons, residence. time cannot be exactly fixed, probably at the begin-
Syn. dotnicilium. With reference to imperial offices ning of the Republic), a distinction between the patri-
(in the language of the imperial chancery), the office cian and plebeian members of the senate was reflected
itself. Sedes urbana (or urbicaria) = the office of in the expression patres (et) conscripti by which the
the praefectus urbi. Sedes praetoriana = the office of senators were addressed, the term conkcripti seem-
the praefectus praetorio. The emperors, in address- ingly referring to the plebeian senators (conscripti
ing high government officials, used to call their office = enrolled in the list of senators, see PATRES CON-
"sedes vestra."-See EXCELSA SEDES. SCRIPTI). The LEX PUBLILIA PHILONIS (339 B.c.)
Seditio. Open resistance, an uprising of a rather large abolished the differentiation between patrician and
group of persons with the use of-armed or unarmed plebeian senators. I n the later Republic a kind of
-force against magistrates; a violent disturl~anceof hierarchy among the senators came into existence,
a popular assembly or of a meeting of the senate. based on the magistracies the senators (ex-magis-
Leaders and instigators (auctores) were punished by trates) had held before. Those who had been MAGIS-
TRATUS CURULES (ex-consuls, ex-praetors, ex-aedils)
death. The participants (seditiosi) were tried under
the Lex Iulia de vi, or for crimen maiestatis. A sedi- preceded those who had held other offices (ex-tribunes,
tion in the army (mutiny) was treated with particular ex-aedils of the plebs) or none at all. Before the
LEX OVINIA (318-312 B.c.) senators were nominated
severity. Vociferous demonstrations or conlplaints
of soldiers, although called also seditio, were milder by the consuls or by the extraordinary magistrates
punished. (dictators) temporarily replacing the consuls. Ac-
Pfaff, R E 2.4; Humbert and Lkcrivain, D S 3, 1558. cording to an early custom, ex-magistrates of high
Seditiosi. Those who participated in a sedition (see rank became automatically members of the senate;
SEDITIO) and, according to imperial constitutions, after the Lez- Ovinia, by which the censors were
those who incited the lower class of the people entrusted with the selection of the senators. that
(plebs) against "the public order" (C. 9.30.1).- custom became a fixed rule. Eligible for member-
C. 9.30. ship in the senate were only Roman citizens who were
Seius. See NOMEN. free-born or sons of free-born fathers. Excluded
Sella curulis. See MAGISTRATUS CURULES, SUBSELLIUM. were women, persons condemned in an actio famosa
Semel heres semper heres. "Once an heir always and h a n d e d with infamy, persons who practiced an
an heir." One who at law or 1)y entry into an ignominious profession, and bankrupts. The age of
inheritance (see ADITIO HEREDITATIS) hecame an heir a newly-appointed senator varied according to the
of a deceased person, remained his heir (see HERES) magistracy he had held; see MAGISTRATUS. The
forever. heref fore an heir could not 1)e appointed youngest were the ex-quaestors (over thirty-one) .
for a limited period. Untler Augustus the nlininlunl age was lowered to
C. Sanfilippo, Evolu,-ione storica dcll'herctlitas, 1946, 9 3 : twenty-five. The financial independence of the sena-
Ambrosino, SDHI 17 (1951) 222. tors who generally came from the wealthiest families,
Semenstria. See C O M M E N T A R I I PRTNCIPUM. was guaranteed I)y the requirement of a minimum
Semenstris pensio. Payments (e.g.. rents) in six- property which was fixed 1)y Augustus at one mil-
month-installnlents. lion sesterces. Senators were forbidden to partici-
VOL. 43, FT. 2 , 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 695
pate in a business enterprise; see LEX CLAUDIA.- scnatits in the regal period, see REX. I n the Re-
D. 1.9; C. 3.24.-See SENATUS (Bibl.), ORDO SENA- public, the senate became the most important organ
TORIUS, SENATUM COGERE. of foreign and internal policy. Its activity was
Senatores. ( I n municipalities.) Members of the mu- not fixed by a written law; in particular, its rights
nicipal council (ordo decurionunz) . Syn. decuriones. with respect to the popular assemblies (coiiiitia) on
Kiibler, RE 14, 2321. the one hand, and to the magistrates on the other,
Senatores a b actis senatus. Senators entrusted by the were not defined by statutes. The pertinent rules
emperor with the edition and custody of the ACTA were customary law. I n the field of foreign relations
SENATUS. the senate received foreign anlbassadors and ap-
Senatores nondum lecti. Ex-magistrates not yet pointed embassies for missions abroad. Decision
selected by the censors for the senate. concerning war and peace lay with the people (see
Senatores pedarii. The term is not quite clear; its LEGES DE BELLO INDICENDO), but a previous opinion
origin was obscure to ancient writers, as related by of the senate was binding. I n case of war the senate
Gellius (Noct. Att. 3.18). Senatores pedarii were appointed the commanders for the various fronts and
either senators who had held a lower. non-curule designated the armed and naval forces therefor. In-
magistracy or ex-magistrates who had not yet been competent generals were removed by the senate.
enrolled into the list of senators by the censors. The Treaties with foreign countries were concluded by the
term pedarii was perhaps connected somehow with Senate but had to be ratified by a popular assembly.
the senate's way of voting by a division of the voters I n financial matters the senate decided about taxes,
(pedibus in sententiam ire, see DISCESSIO).The the sale of public land (ager publicus), expenses for
senatores pedarii could participate only in this form conducting a war, for sacred institutions, and the like ;
of voting and were excluded from taking part in it supervised the administration of public funds (see
discussion.-See MAGISTRATUS CURULES, LECTIO SE- AERARIUM POPULI ROMANI). The senate also had
NATUS. the control of the religious
- life, and could institute
O'Brien-Moore, RE Suppl. 6, 680; M.A. De Dominicis, the cult of new deities. I n matters of internal policy
Il ius sententiae nel senato ronz., 1932. the senate functioned as an advisory 1)ody (srntrntiai~z
Senatorius. Connected with, or pertaining to, sena- diccre) to the high magistrates (consuls, praetors).
torial rank (e.g., nuptiae, orna~~zenta,
dignitas, ordo, The magistrates who had the right of conroking the
etc.) .-See ORDO SENATORIUS. senate (ius agendi cunz patrihlis, in the Republic con-
Senatu movere. See MOVERE (DE) SENATU, NOT*CEN- suls, praetors, dictators, and later the plebeian tri-
SORIA,LECTIO SENATUS. The censors could refuse bunes) submitted to the senators for their opinion
the admission of an ex-magistrate who according to proposals for new laws, administrative ineastlres of
his rank was eligible to the senate, by omitting-his major importance, problems concerning the political
name (praeterire) from the list of senators. life of the state. and the like, but such consultation
O'Brien-Moore, RE Suppl. 6, 763. was only customary, not mandatory. Kor was the
.
Senatum cogere (convocare, vocare) T o convoke advice of the senate binding upon the magistrates.
the senate. See SENATUM HABERE. Senators were A clause "si nzagistratibus videbihr" (= if the magis-
required to reside in Rome and to attend the meet- trates deem it right) made compliance with the sen-
ings. They were subject to fines for unjustified ate's advice officially optional. Normally, howerer,
absence. the advice was followed, since it was not in the in-
Senatum consulere. See SENATUSCONSULTUM. terest of the magistrate to provoke a conflict with the
S e n a t u m dare. T o give persons (e.g., foreign ein- senate. For the administration of provinces, see PRO-
bassies, delegations from provinces, provincial gov- VINCIAE SENATUS. Only members of the senate
ernors) the opportunity of being heard by the senate (originally 300, later 600, under Caesar 900, in the
by convoking it for.this purpose. Empire 600 again) were admitted to the meetings
Senatum habere. To'convoke the senate in order to of the senate, which took place with the doors of the
present an important matter. to the senators (e.g., to meeting house open but with the public escluded.
propose a law, to ask for an opinion). The convok- I n the Principate the senate obtained legislative func-
ing magistrate presided over the meeting.-See SE- tions (see SENATUSCONSULI.A) and jurisdiction in
N A T U M DARE. criminal matters, primarily in criines involving the
S e n a t u m mittere (dimittere). T o declare a meeting state. Formally the senate elected the emperor (see
of the senate adjourned. PRINCEPS, LEX DE IMPERIO). I t also obtained the
Senatus. The senate was one of the earliest Roinan right to appoint the magistrates, but this right in
constitutional institutions; it remained in existence the course of time lost its importance since the em-
throughout the entire history of the Roman state, not, perors used to nominate candidates (see c . 4 DIDAT1
L ~
of course, without fundamental changes in its struc- CAESARIS)a nd the senate's approval hecnme a mere
ture and its legal and political iml~ortance. For the formality. Gradually the senate was coml)elletI to
ADOLF BERGER
give up much of its independence, and its powers and consulere) from one of the high magistrates (consul,
activity depended, in fact, upon the attitude of the praetor, tribunus plebis, under the Principate the
reigning emperor. In the late Empire the importance praefectus urbi) who after presenting the matter
of the senate declined continuously with the increase (verba facere) asked the senators for their individual
in the autocratic power of the emperor. Its func- opinions. From the very beginning a senatusconsul-
tions, as far as they were exercised i t all, became a fltm was what the name expresses: an advice to the
pure formality, as did also the election of the emperor, magistrate requesting it. The magistrate normally
which was performed to carry out the wishes of the followed the advice in exercising his functions or
army leaders. The supreme authority being vested incorporated it into his edict giving a more binding
in the emperor, the senate with its exorbitant num- character thereto. Some of the republican senattu-
ber of members (2,000) was nothing more than a conszilta made reference to .previous statutes and
municipal council of Rome (and Constantinople, since p1el)iscites. For the indirect influence of the senate
Constantine created a second senate there), with a on the legislative activity cf ,the popular assemblies,
specific competence in conferring honorific titles see AUCTORITAS SENATUS. AS to the legislative force
and t1istinctions.-See SENATORES, SENATUSCONSULTA, of the senafusconsulta, there is no doubt that about
AMI'LISSIMUS O R W , ORDO SENATORIUS, PATRES, AUC- the middle of the second century after Christ the
TORITAS PATRUJI, INTERREGNUM, PRONUNTIARE senatusconsulta acquired the legal force of statutes,
S E N T E N T I A M , PLEBISCITA, LECTIO SENATUS, S E N T E N - as attested by Gaius (Inst. 1.4) : "Senatusconsultum
T I A M ROGARE, CLARISSIMUS, ACTA SENATUS, ACCLA-
is what the senate orders and decrees ; it has the force
MATIO, ALBUM SENATORUM, ADLECTIO, MOVERE DE
equal to that of a statute (legis vicevn optinet) al-
SENATU, COMMENDARE, I U S T I T I U M , I U S A N U L I AUREI,
though this has been questioned." This remark sug-
L E S MAENIA, L E S PUPIA, PRODITIO, SOLUTIO LEGIBUS,
SOLIS OCCASUS, DISCESSIO, INTERROGATIO, RELATIO,
gests that under the Republic and the early Principate
LEGATI DECEM, VERBA FACERE, DECURIA, and the fore- the senate had no legislative power. Accordingly,
going and following items. one century later, Ulpian stated (D. 1.3.9) : "it is
O'Brien-Moore, R E Suppl. 6 ; Lbcrivain, D S 4 ; Volterra, beyond doubt that the senate can make the law."
,VDI 12; Momigliano, O C D ; P. Willems, Le sdnat de la From the third century B.C. it became customary to
Rdp. rom. 1-3 (1883-1885) ; Th. A. Abele, Der Senat unter write the decrees of the senate and to deposit a copy
d4t~gusttts,1907; Homo, Rcv. Historique 137 (1921) 161,
138 (1922) 1 ; P. Lambrechts, La composition dzc Sdnat in the AERARIUM SATURNI where they were preserved
rom. 117-192 de l'acccssion au trdne d'Hadrien, 1936 ; idem, under the supervision of the aedils. More important
La co~itpositiondu Sknat row. de Septlme Sevhre ct Dio- senatusconsulta were inscribed on bronze tablets
clktien, 1937 ; idem, Studien over Romeinsche instellingen,
I. De Senaat, 1937 ; S. J . De Laet, La composition du Sdnat posted in public. Under the early Principate the
row. 193-284 A.D., Budapest, 1937 (Dissert. Pannonicae senatusconsulta superseded the comitial legislation,
I , 8 ) ; idem, La comPositioit du Shnat rom. 28 B.C.48 A.D. but were later in turn superseded by imperial enact-
(Travaztx Fac. Pkilos. Gand, no. 9 2 ) , 1941 ; E. Stein, Dis-
parition du Sirtat ct la fin du sixihme sidcle, Bull. Acad. ments. The senatusconsulta were usually named
Bclg. 25 (1939) 308; G. Nocera, I1 potere dei comizi, 1940, after the proposer ( a magistrate or imperial official).
243; De F'rancisci, Rend. Accad. Pontificia di Archeologia, The senatusconsulta concerned various matters; a
1946-47, 275. considerable number of them dealt with private law.
Senatus legitimi. Regular meetings of the senate, nor- -D. 1.3.-See ORATIO PRINCIPIS, SENATUS, LEX
mally twice in a month. ~ x t r a o r d i n a r vsessions were VALERIA HORATIA, I M M U N I T A S , CENSERE, SCRIBENDO
frequently convoked, especially by the emperors.
ADESSE, PUBLICATIO LEGIS, and the following items.
Senatus municipalis (municipii). See ORDO DECU-
O'Brien-Moore, R E Suppl. 6 (1935) ; LCcrivain, DS 4 ;
RIOixUM. Volterra, N D I 12; Momigliano, O C D ; Loreti-Lorini, S t
Kubler, R E 4, 2319 ; Lbcrivain, D S 4 ; H. U . Instinsky, S. Bonfante 4 (1930) 377.
i m Gevzeir~euescrlporegrinen Rechts, Phil01 96 (1944).
Senatusconsultum Acilianum. Forbade legacies of
Senatus populusque Romanus (abbr. S.P.Q.R.). A things which were joined to buildings as their orna-
..
traditional formula., a ~ ~ l i eindofficial acts to indicate ments (e.g., statues, sculptures, vases). The purpose
-
the eovernment of the Roman state (in the Re~ublic of the senatusconsultu~~z was to protect buildings from
and even in the early Principate). It stresses the loss of their embellishment. I n practice the senatus-
part of the Roman people in the organization of the consultz:~~twas also applied to sales of such things.
government as a constitutional organ equal to the The name Acilianum is not preserved in the sources;
role of the senate. The abbreviation is preserved in it was coined in the literature from the name of one
many inscriptions. of the consuls, Acilius Aviola, under whose consul-
Mommsen, Ronz. Staatsrecht 3, 2 (1888) 1257; H . Dessau,
Inscriptiones Latinae Selectae, 3, 1 (1914) 589 ; G. Nocera. ship the senatusconsulturn was passed (A.D. 122).
I1 potere dei cotriizi, 1940, 244. Bachofen, Awsgewahlte Lehren, 1848, 209; Voigt, Die rom.
Baugesetze, BerSaclzGW 1903, 195; Bonfante, Corso 2, 1
Senatusconsulta. Decisions, decrees of the senate (1926) 266; M. Pampaloni, A G 30 (1883) 260 = Scr. giur.
issued in response to requests for advice (senaturn 1 (1941) 225.
VOL. 43, I.T. 2 , 1953) ENCYCL,OPEDlC DICTIONARY O F ROMAN I.AW 697
Senatusconsulturn Afinianurn. (Of unknown date.) I)y a cautio any sum to anyljody with regard to his
Dealt with the rights of succession of a child who activity as an advocate (advocatio) in the trial"
being one of three brothers was adopted by a third (Pliny, Ep. 9.4). They coultl, however, after the
person. H e had a right to a quarter of the adoptive conclusion of the trial pay an honorarium not exceed-
father's estate, even after his emancipation by the ing the an~ountof 10,000 sesterces; see SISNATUS-
latter. C O N S U I ~ T U M CLAC'DIANUM (under no. 1 ) .
G. Bergmail, Beitriige srrm rom. Adoptionsrechf (Lundj Senatusconsulta de aedificiis non diruendis. ( A . D .
1912) 76. 44 and 56.) Prohibited the acquisition of buildings
Senatusconsultum Apronianurn. (Under Hadrian.) with the intention of destroying them for profit (di-
Permitted awarding fideicommissa hereditatis to cities ruendo plus adquirere). SGch a transaction was void
(civitates) . and the buyer had to pay double the price to the fisc
Senatusconsulturn Articuleianurn. (A.D. 123.) Con- as a penalty. The two senatusconsulta are called
cerned fideicommissary manumissions in provinces. Hosidianum and Volusianutn after their DroDosers.
Senatusconsulturn Calvisianurn. (4 B.c.) Dealt with Riccobono, F I R 1' (1941) no. 45 (Bibl.) ; ~ r u ' p e ',ZSS 48
penal procedure in trials for crimen repetundarum (1928) 572; May, R H D 14 (1935) 1.
held in provinces. Senatusconsulturn de agnoscendis liberis. See AG-
Riccobono, F I R 1' (1941) p. 409; Stroux and Wenger, NOSCERE LIBEROS, SENATUSCONSULTUM PLANCIANUM.
A B a y A W 34, 2 (1928) 112; Arangio-Ruiz, Riv, di filo- Senatusconsultum de aquaeductibus. ( 11 B.c.) See
8 (1929) 59; I. G. Luzzatto, Epigrafia giuridica (1942) Riccobono, F I R 1' (1941) no. 41 ; Kornemann, R E 4, 1784 ;
239 (Bibl.), 278; J. H. Oliver, Mem. Amer. Acad. Rome, De Rohertis, La espropriasione per pubblica utilita, 1936,
Senatusconsulturn Calvisianurn. (A.D. 61.) Or- Senatusconsulturn de Asclepiade. (78 B.c.) Granted
dained that a marriage of a man over sixty with a various privileges (e.g., exemption from all taxes and
woman over fifty did not exempt them from the requisitions) to the captains of three Greek ships
sanctions of the LEX IULIA DE MARITANDIS ORDINIBUS. for the help given Rome in the Social War time.
Senatusconsulturn Claudianurn. 1. (A.D. 47.) For- It is preserved completely in Greek, partly in Latin.
bade advocates to claim more than 10,000 sesterces Riccobono, F I R 1' (1941) no. 35; Gallet, R H D 1937, 242;
387; E. H. Warmington, Remains of ancient Latin 4
as an hondrarium on pain of being prosecuted for (1940) 444; Pietrangeli, B I D R 51-52 (1948) 281.
Senatusconsultum d e collusione detegenda. See Romani against private individuals for the recovery
SENATUSCONSULTUM N I N N I A N U M . of vacant inheritances. The rules of the senatuscon-
Senatusconsulturn d e Iudaeis. (132 B.c.) A n an- sultuwz appear extended to Izereditatis petifiones
swer to the Jewish state concerning its con~plaints among private persons, but apparently a good part
against ,4ntiochus, king of Syria. The knowledge of of this extension belongs to later development, if
this senatzisconsitltzll?zz as of several others dealing u not to postclassical and Justinian's law. The scnatus-
with Jewish matters, comes from Flavius Josephus. c o n s ~ t l t u ~established
~z the liabilitv of an illegal holder
J. Juster, L c s J u i f s duns ?E?nfiire Rotn. 1 (1914) 133. of an estate who fraudulently sold objects l~elonging
Senatusconsulta d e ludis saecularibus. (17 B.C.and to the inheritance or gave up possession thereof (dolo
A.D. 47.) Partly preserved, concern the national desiit Bossidere) as well as-the dutv of restitution of
games called LUDI SAECULARES, in the arrangement products and bofits (interest) which the unlawful
of which the quindeciwz viri sacris faciundis played possessor of the estate derived therefrom. Distinc-
an important role. tion was made between possessors in good faith and
Riccobono, F I R 1' (1941) no. 40; Acta Divi Azryusti 1 such in bad faith.-See HEREDITATIS PETITIO.
(1945) 240; Nilsson, R E lA, 1696; Pighi, D e ludis snccu- Beseler, Beitrage 4 (1920) 13; Fliniaux, P H L ) 2 (1923)
larib~cs,1941. 8 2 ; J. Denoyez, L e S. I., 1926; Lewald, ZSS 48 (1928)
Senatusconsulturn d e nundinis saltus Beguensis. 638; C. Appleton, R H D 9 (1930) 1, 621 ; Fliniaux, ibid.
(A.D.138.) Granted market privileges to a locality 110; Huber, Die Ausdehnitng der N o r m c n des sc. J., Diss.
Erlangen, 1933; Carcaterra, A n B a r i 3 (1940) 104; A.
in the province of Africa. Guarino, Salz.. Izrlianzrs, 1P46, 82; B. Biondi. Istitnti fontla-
Riccobono, F I R 1' (1941) no. 47. mentali del dir. ereditario 2 (1948) 193; Santt Di Paola,
Senatusconsulturn d e pago Montano. (Of the first AnCat 2 (1948) 275; A. Carcaterra, L'a,-ionc Iiocditaria
century B.c.?) Prohibited the dumping of refuse in 2 (1948) 37.
certain zones outside of Rome. Senatusconsultum Largianurn. (A.D. 42.) Estab-
Riccobono, F I R 1' (1941) no. 39; Philipp, R E 16, 204. lished the order of succession for inheritances of
Senatusconsultum d e philosophis e t rhetoribus. LATIN1 IUNIANI.
(161 B.c.) Forbade Greek philosophers and rhetori- Senatusconsulturn Libonianum. (A.D.16.) Declared
cians to reside in Rome. testamentary dispositions in favdr of thk writer of
Senatusconsulturn d e provinciis consularibus. (51 the testament to be void. By an enactment of the
B.c.) Settled the rules for the relations between the Emperor Claudius the writer was in such a case sub-
senate and the magistrates of consular provinces. ject to the penalties of the Lex Cornelia de falsis.--
Senatusconsulturn d e surnptibus ludorum gladiato- D. 48.10.-See FALSUM.
riorurn rninuendis. (A.D.-176.) Issued provisions in De Martino, S c r in lnemoria di E. Alassari, 1938, 331.
order to diminish the expenses connected with gladia- Senatusconsulturn Licinianum. (A.D. 27 ? 45 ?)
torial games.-See LUDI GLADIATORII. Dealt with conspiracy to forge a testament and false
Riccohono, F I R 1' (1941) no. 49; L. Robert, Lcs gladia- testimony concerning a testament.
tcurs duns I'Oricnt grec, 1940, 284. Senatusconsulturn Macedonianurn. (Untler Vespa-
Senatusconsulturn d e Thisbensibus. (170 B.c.) sian.) Forbade loans to sons under paternal power
Concerned the relations with the city of Thisbae in (filii fawzilias). The transaction was not void, but
Boeotia. the son was protected by an e.vceptio (exccptio sena-
Riccobono, F I R 1' (1941) no. 31. tusconsulti Macedoniani) against the claim of the
Senatusconsulturn d e Tiburtinis. (159 B.c.) Granted lender even after the father's death.-D. 14.6; C.
a general amnesty to the city of Tibur. 4.28.-See STUDIUM.
Riccohono, F I R l 2 (1941) no. 33. Volterra, N D I 12, 38; Dekilla, St.Yas 18 (1941) 255;
Senatusconsulturn Gerninianurn. Extended the penal- Daube, Z S S 65 (1947) 261.
ties of the Lex Cornelia dc falsis on persons who Senatusconsultum Mernrnianum. (A.D. 63.) Con-
acceptetl money for a false testimony.-See FALSUhI. tained the provision that childless persons ( o r l ~ i )
Senatusconsulturn Hosidianurn. (A.D.44.) Directed could not evade the disadvantages introduced I)y the
against s1)eculation in house property.-See SENATUS- L E X I U L I A DE MARITANDIS ORDINIBUS by a fictitious
C 0 N S I ; L T A DE AEDIFICITS N O N D I R U E N D I S . adol,tion of children.
Dc Pachtitre, Mbl Cogrtat 1912; May, R H D 14 (1935) 1. Senatusconsulturn Neronianurn. (A.D. 57 ?) E x -
Senatusconsultum Iuncianum. (A.D. 127.) Estab- tended the provisions of the senatz/sconsultr~1r1
Silania-
lislletl again (see ~ E N A T U S C O N S U L T U MDASUM T A NI - A I ) niclri on the slaves of the widow of an assassinatetl
sonic rules concerning a fitleicomtilissary manuniission Waster.
of slaves in the case of absence of the person who for Senatusconsulturn Neronianurn d e legatis. (I3e-
any reason (ex qttacti~zqtiecnlrsa) hat1 to free them. tween A.D. 6 0 ant1 64.) Abolishetl the distinction
Senatusconsulturn Iuventianum. (Decreed untler among the various forms of legacies (lcgatn). It
Hadrian on the proposal of the jurist Iuvcntius tlecreetl that a legacy expressed in less appropriate
Celsus.) Dealt with claitlls of the acrni,i~ri~zpoplrli terms should I)e as valid as if it had been made in
VOL. 43, FT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 699
the most favorable form (optimo iure, i.e., per dam- Senatusconsultum Silanianum. (A.D. 10.) When a
nationem).-See LEGATUM, LEGATUM PER DAMNA- master of slaves was assassinated and the murderer
~ r o N ~ ~ . - T h e rwere
e several other senatusconsulta could not be found, all slaves who lived with him
decreed under Nero. "under the same roof" were subjected to torture
Volterra, N D I 12, 37; Ciapessoni, S t Bonfante 3 (1930) and eventually condemned to death. A slave who
649; piaget, ~e S . N. (Lausanne, 1936) ; C. A. Maschi, revealed the murderer was declared free by the
S t sull'interpretazione dei legati, 1938, 104; B. Biondi, Suc-
cessione testamentaria (1943) 282. praetor's decree.-See ~ E N A T U ~ C ~ N ~ U L TNERONIA-
UM
Senatusconsultum Ninnianum de collusione dete- NUM, PISONIANUM, ORATIO MARCI, TECTUM, VINDI-
CARE NECEM.
genda. (Under Domitian.) Contained provisions
Luzzatto, S t Ratti (1934) 545; Aru, ibid. 211; Acta Divi
against collusion between patron and freedman with Augusti 1 (1945) 258; Herrmann, A D O - R I D A 1 (1952)
a view to having the latter declared free-born.-See 495.
COLLUSIO. Senatusconsultum Tertullianum. (Of the time of
Senatusconsultum Orfitianum. (A.D. 178.) Gave a ~ ~ d ~ i ~ ~ a. mother ) who had the Ius
woman's children preference as to her inheritance LIBERoRUM a right of succession on intestacy to her
over her brothers, sisters, and other agnates.-An- children,s inheritance, but it gave priority to the
other senafusconsultum (of the same year) declared children's children, their father and some agnates.
testamentary manumissions of slaves valid when their ~~t~~ imperial legislation improved the of
identity could be established beyond doubt, even if succession of the mother. ~ ~ ~abolished t i the ~ i ~ ~
they were not indicated in the testament by name, as requirement of ius liberorum.-Inst. 3.3; D, 38.17;
the LEX FUFIA C A N I N I A required.-Inst. 3.4; D. C, 6.56.
37.17; c. 6.57. G. La Pira, La successione ereditaria intestata, 1930, 277;
G. La Pira, La successione ereditaria intestata, 1930, 293, G. Goutelle, De la lutte eittre agt~ationet cog~~atio~t
ci pro-
Lavaggi, S D H I 12 (1946) 174; Sanfilippo, Fschr Schulz pos du S . T., 1934; Sanfilippo, Fschr Schulz 1 (1951) 364.
1 (1951) 364. Senatusconsultum Trebellianum. (A.D. 56.) Or-
Senatusconsulturn Pegasianum. A.D. 73.) dered that "if an inheritance was delivered over to
Granted an heir the right to keep a part of anyone on account of a fidcicont,~zissum,the actions
the fideicommissa he had to deliver according to the which would lie at ius civile for, or against, the heir,
testator's will. This provision is analogous to that should also be given in favor of, or against, him to
of the LEX FALCIDIA with regard to legacies. The whom the inheritance has been made ( ~ ~ i ~ ~
initiative for the senatusconsultum was apparently I ~ 2.2~53) ~ ~h~ .
pertinent actions were proposed
taken by the jurist Pegasus. I n Justinian's legis- in the praetorian edict as actiones uti1es.-D. 36.1 ; C.
lation the senatusconsultum Pegasianum does not 6.49.-See EXCEPT10 RESTITUTAE HEREDITATIS, ITERE-
appear, references to it having been replaced by those DITATIS pETITIO FIDEICOMMISSA RIA^
to the SENATUSCONSULTUM T R E B E L L I A N U M . - A ~ O ~ ~ ~Lemercier,~ R H D 14 (1935) 623; B. Biondi, Szicccssior~e
senntusconsultum Pegasianunt (A.D.72) extended the tcstamcntaria (1943) 477; BartoSek, Scr Ferrirti 3 (Milan,
privilege of anniculi causae probatio to LATINI IU- 1948) 308.
N T A N I over thirty years of age; see CAUSAE PROBATIO. Senatusconsultum Turpillianum. (A.D. 61.) Con-
Solazzi, R I S G 86 (1949) 30. tained provisions against TERGIVERSATIO.-D. 48.16:
Senatusconsultum Pisonianum. (A.D. 57.) Con- C. 9.45.
cerned the sale of a slave who might be subject to VoIterra, StCagl 17 (1929) 114; Levy, Z S S 53 (1933)
torture and the penalties provided in the SENATUS- 213; BohaEek, S t Riccoborto 1 (1936) 361.
CONSULTUM SILANIANUM because his master was Senatusconsultum ultimum. A decree of the senate
found assassinated. The sale was null and the seller in times of extreme emergency (zrltinaa necessitns)
had to return the purchase price to the buyer. ordering "that the consuls see to it that the state (res
Senatusconsultum Plancianum. (Before the reign of pz~blica)suffered no harm" (Cic, pro Mil. 26.70) or,
Hadrian.) Ordered that a pregnant woman had to in other words, to defend the res publica. By virtue
notify (denuntiare) her divorced husband of her con- of such a decision the consuls (or the highest magis-
dition within thirty days after divorce. The husband trate available) were authorized to apply any extra-
Ilad either to send attendants (custodes) to watch the ordinary n~easuresrequired by the situation (tzn~zzrl-
woman until the child was born or to deny (contm t ~ ~ war),
s, even a temporary suspension of certain
t/pnl,nfiorc) his paternity.-D. 25.3.-See AGNOSCERE constitutional institutions (see IUSTITIUM).The first
~.TRERUM. application of this exceptional remedy was during the
W e i s , R E 3A. 1889; P. Tisset, Prbsomption, de patcrrtiti Gracchan movement (121 B.c.; it was proposed for
(Montpellier, 1921) 180. the first time in 133 n.c., but was rejected owing to
Senatusconsultum Rubrianum. (After A.D. 100.) resistance of the then consul, the jurist P. M. Scae-
Ordered the praetor to declare a slave free when lava).
the person who had to perform the n~anumissionac- O'Brien-Moorc, RE Suppl. 6, 756; Momiglia~io,OCD ; C .
cording to the testator's will refused to do SO. Rarl~agallo,U ~ f m dci Rotnani, il S. (I.,
n isrrro cccc~io~ralc
700 ADOLF BERGER [TRANS.AMER. PHIL.SOC.
1900; idem, RendLomb 35 (1902) 450; De Marchi, ibid. was either condemnatory (condemnatio, damnatio)
224, 464; Plaumann, K l 13 (1913) 321; Antonini, S. U., or absolutory (absolutio). I n the fornlulary pro-
1914; Last, J R S 33 (1943) 94; Wirszubski, Librrtas (Cam-
bridge, 1950) 55. cedure the condemnatory judgment was always for
a sum of money (see CONDEMNATIO PECUNTARIA)
Senatusconsultum Velleianum (or Vellaeanum). without regard to the object of the controversy. I n
(About A.D.46.) Forbade women to assume liability
the procedure through cognifio a condcntnatio pecu-
for other persons (intercedere, intcrcessio) . The
niaria was no longer exclusive. A judgment once
transaction was not void, but lost its efficacy if the
pronounced could not be changed or revoked by the
woman when sued by the creditor opposed the e.r-
judge who passed it. See ERROR CALCULI.The exe-
ceptio senatusconsulti Velleiani. She could also claim
cution of a judgment was achieved by a second action;
the return of what she had paid in fulfillment of her
see ACTIO IUDICATI.The judgment was pronounced
obligation. I n certain instances the exception was
orally, without indication of motives ; in the later law
inadmissible (e.g., against a minor, or when the
a written judgment was required in addition to the
transaction was in the interest of the woman). Sure-
oral pronouncement ; see SENTENTIAM DICERE. Sen-
ties and heirs of the woman might use the exception
tentia is also the judgment of an arbitrator; see
too. Justinian reformed the whole institution of
ARBITER, COMPROMISSUM.--Theterminology in crimi-
women's intercession by requiring a public act before
nal trials was also condetnnatio (da~nnatio)for con-
witnesses, and excluding the benefits of the senatus-
demnatory sentences, absolutio for an acquittal.-D.
consultum Velleianum if the woman renewed the
42.1; C. 7 . 4 3 4 7 ; 55; 10.9; 50.-See RES IUDICATA,
intercession after two years and in certain other spe-
IUDICATUM, RETRACTARE CAUSAM, APPELLATIO, PRO-
cific cases.-See INTERCESSIO, ACTIO QUAE RESTITUIT
VOCATIO, PERICULUM, SENTENTIAM PROFERRE, LITIS
(INSTITUIT)OBLIGATIONEM.-D.16.1 ; C. 4.29.
Leonhard, R E 9 (s.v. intercessio) ; Cuq, D S 3 (s.v. inter-
AESTIMATIO.
cessio) ; Volterra, N D I 12, 35; Carrelli, RISG 12 (1937) Wenger, R E 2 A ; Leonhard, R E 2 A , 1503; Kleinfeller,
6 3 ; idem, S D H I 3 (1937) 305; P. Pierret, Le s. Vrlldieiz, R E 2 A , 1505 ; Delaunay, M i l Boissier (Paris, 1903) 161 ;
1947; V o g t , Studien zum s.V., Bonn, 1952. G. Kuttner, Fschr Martitz 1911, 235; Biondi, S t Bonfante
4 (1930) 29 ; H . Appelt, Die Urteilsnichtigkeit i m rom.
Senatusconsultum Vitrasianum. (Before or during Prozess, 1937; I?. Vassalli, Studi 1 (1939) 405; Vazny,
the reign of Hadrian). Concerned the case of the B I D R 47 (1940) 108.
fideicommissary manumission of a slave when one of Sententia adversus fiscum. A sentence rendered
the co-heirs was a child. against the fisc.-C. 10.9.-See RETRACTARE CAUSAM.
Senatusconsultum Volusianum. (A.D. 56.) See ~ e ~ t e n t icontra
a constitutiones. A judgment ren-
SENATUSCONSULTA DE AEDIFICIIS NON DIRUENDIS. dered contrary to imperial constitutions. The judge
May, R H D 14 (1935) 1. who rendered such a judgment was guilty of crimen
Senectus (senex). Old age (an old man). There fa1si.-See FALSUM.
was no legal definition as to when a person had to be Biondi, S t Bonfante 4 (1930) 6 9 ; Levy, B I D R 45 (1938)
considered old. Senility, however, was taken into 138; De Robertis, Z S S 62 (1942) 255.
consideration as an excuse from guardianship, for Sententia definitiva. See DEFINITIVA SENTENTIA, IN-
exemption from ntunera personalia, and the like, as TERLOCUTIONES.
well as in certain agreements, for instance, concerning Sententia iudicis. See SENTENTIA.
alimony. A guardian who could not fulfill his duties Sententia legis (edicti, senatusconsulti). The in-
because of old age might ask for the assignment of a tention, the purpose, the spirit of a legal enactment
curator for the administration of the ward's property. (a statute, an edict, a senatusconsultum).-See EX
Seniores. I n military centuriae, see IUNIORES. LEGE.
Sensus. I n the legal field the capacity of understanding Wenger, R E 2 A , 1502.
the significance of one's doings, in particular, whether Sententia Minuciorum. See TERMINARE.
they are wrong or right. Children in infancy (see Sententia senatus. See SENTENTIAM ROGARE,
PRONUN-
INFANTES)have no sensus; likewise lunatics, except TIARE SENTENTIAM.
during INTERVALLA DILUCIDA.Sensus also means the Wenger, R E 2 A , 1496.
intention, the desire of a testator; syn. voluntas. Sententiae Pauli. A work by the jurist Paul in five
Sententia. (With reference to a jurist.) The opinion books, entitled Sententiarum ad filium libri quinque.
of a jurist expressed either in his writing or in a Excerpts of this work are to be found in the Digest,
RESPONSUM. Fragntenta Vaticana, Collatio, and Consultatio, and
Sententia. ( I n judicial proceedings.) The final judg- probably one-sixth of the whole work in an Epitome
ment in a civil trial, rendered by a judge (iudex) in appended to the Lex Romana Visigothorum. It is
the bipartite procedure or by a judicial official in the assumed (not without opposition) that the work was
cognitio extra ordinem. The sententia put an end to not written by Paul himself, but was an anthology
the controversy between the parties and the matter compiled about A.D.300 from various works of paul's
in dispute became now a res iudicata. T h e judgment by an unknown hand. The work as is preserved
VOL. 43, IT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 701
undoubtedly contains postclassical additions, and the (1901) 247; Milani, StDocSD 25 (1904) 5; C. Tumedei,
more important problem is to determine what in the La s. dei Ocni eredatari, 1927; Guarino, Z S S 60 (1940)
185; idem, SDHI 10 (1944) 240; Solazzi, I1 concorso dei
work is classical and what not. As a matter of fact. creditori 4 (1943) 1.
Constantine, less than a century after Paul's death Separatio fructuum. Separation of fruits from the
(C. Tlteod. 1.4.2, A.D.327 or 328), extolled the value thing which produced them.-See FRUCTUS, FRUCTUS
of the work in glowing terms and ordered that it SEPARATI.
should have full authority when produced in court. Separatim. See CONIUNCTIM.Syn. disiunctim.
The Law of Citations (see IURISPRUDENTIA) of A.D.
Septemvirale iudicium. A court composed of seven
426 reiterated the validity of Paul's Sentences.
Editions in all collections of Fontes Iuris Rom. (see Gen-
persons competent (presumably) to judge complaints
eral Bibl., Ch. X I I ) , the most recent by Baviera, FIR 2' concerning undutiful testaments; see QUERELA IN-
(1940).-Berger, RE 10, 731; M. Conrat, Der westgothi- OFFICIOSI TESTAMENTI.
sche Paultrs, Amsterdam, 1907; G. Beseler, Beitrage zur' Leonhard, RE 2A (s.v. septemviri) ; Eisele, Z S S 35
Kritik 1 (1910) 99; 3 (1913) 6 ; 4 (1920) 336; B. Kubler, (1914) 320.
Gcsch. dcs rom. R., 1925, 284; Schulz, Z S S 47 (1927) 39; Sepulcri violatio. See VIOLATIO SEPULCRI.
Levy, Z S S 50 (1930) 272; Lauria, AnMac 6 (1930) 33;
Volterra, ACDR 1 (Roma, 1934) 35; idem, Riv. Storia Sepulcrum (sepulchrum). A grave, a burial place
dir. ital. 8 (1935) 110 (Bibl.) ; Scherillo, St Riccobono 1 "where a corpse or bones are laid down" (D.
(1936) 39; E. Levy, Medievalia ct Humanistica 1 (1943) 11.7.2.5). A sepulcrum is a locus religiosus, also
14; idem, Paz~li S., a Palingenesia of the opening titles when a slave has been buried, but not the grave of
(Ithaca, 1945) ; idenz, BIDR 55/56 (1951) 226; F. Schulz,
Nistorjl of R. legal science, 1946, 176. an enemy. A monument (monuunentuw) erected "in
Sententiam dare. See SENTENTIAM DICERE. order to preserve the memory of a dead person"
Sententiam dicere. (In judicial proceedings.) T o (D. 11.7.2.6) is not a locus religiosus if the person
pronounce judgment. The judge had to do it orally, is not buried there.-D. 11.8; 47.12; C. 9.19.-See
in later law reading the decision from a written draft. ITER AS SEPULCRUM, IUS SEPULCRI, ILLATIO MORTUI.
Syn. sententiam dare, pronuntiare, proferre.-See C. Fadda, St e qusstioni di diritto 1 (1910) 147; Tauben-
schlag, ZSS 38 (1917) 244; M. Morel, Le s. (Annales
PERICGLUM. Uilrv. Grenoble) 1928; E. Albertario, Studi di dir. rom 2
Sententiam dicere. (In the senate.) See SENTENTIAM (1941) 1, 29, 39; Arangio-Ruiz, FIR 3 (1943) no. 80;
ROGARE. F. De Visscher, AntCl 15 (1946) 123; idem, SDHI 13-14
(194748) 278; idenz, RIDA 1 (1948) 199; idem, Le ri-
Sententiam rogare. T o ask the senators for their gime jurid. des plus anciens cimetikres chritiens, Anulecta
opinions. It was the presiding magistrate who re- Bollandiana 69 (1951) 39; Crichton, JurR 60 (1948) 138;
quested the senators to express their opinion by vote Biondi, Iura 1 (1950) 160; Dull, Fschr Schulz 1 (1951)
(sententiam dicere). Hence sententia often means 191.
the result of the vote, the final decision (ex sententia Sepulcrum familiare (hereditarium). See IUS SE-
senatus) .-See VERBA FACERE. PULCRI.
Sentire aliquid (or de aliqua re). T o have in mind, Sequela. (With reference to an obligation.) A sec-
to wish, to intend. to understand. The term occurs ondary obligation, as distinguished from the principal
frequently in texts dealing with the intention of a obligation of a debtor.
testator when the expressions he used in his will were Sequester. "One with whom the parties to a contro-
not fully clear.-See SENSUS,VOLUNTAS. versy deposit the object of the dispute" (D.
Sentire damnum. T o suffer damage (loss). Ant. 50.16.110). The sequester was a depositee and his
sentire comvtzodu~tz,lucruvtz. = to gain a profit. liability was the same as in the case of a normal
Separare. T o divide, to separate, to disjoin. See deposit; see DEPOSITUM.The recovery of the thing
ERUCTUS SEPARATI.With reference to a marriage = deposited could be claimed by an action, called actio
to divorce ; hence separatio = divortium. (depositi) sequestraria. Unlike the normal depositee,
Separatio bonorum. The separation of the heir's prop- the sequester was considered possessor of the thing
ertv from the estate he inherited. The sebaratio and was protected by possessory interdicts.
bonoruwz served to protect the creditors of the de- Weiss, RE 2A; Beauchet, DS 4 ; Arangio-Ruiz, AG 76
(1906) 471; 78 (1907) 233; Albertario, St Solmi 1 (1941)
ceased by reserving the estate for them and excluding 349; Diill, Fschr Schulz 1 (1951) 203.
the creditors of the heir, who might be insolvent.
Sequestrare (sequestratio). T o deposit a contro-
The institution. called beneficium sebarationis, was
versial thing with a third person as a sequester.
extended to the' benefit of the legatees: but not bf the
Syn. in sequestre deponere.-C. 4.4.-See SEQUESTER.
creditors of the heir when the inheritance was in-
solvent. See BENEFICIUM INVENTARII. The separatio Sequestre. I n sequestre, see SEQUESTRARE.
bonorum comprised the estate at the time of death, Sequi. Used of rights and obligations which are de-
together with subsequent products and accretions volved, after the death of a person, on his heir, as
which occurred afterwards.-D. 42.6; C. 7.72. well as of rights connected with an immovable (such
Ferrini, Opere 4 (1930, ex 1899-1901) 167; 175; .183; G. as servitudes) which in the case of its transfer pass
Baviera, I1 commodum separationis, 1901 ; Solazzi, BIDR to the acquirer.
702 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Sequi caput alicuius. See NOXA CAPUT SEQUITUR. are servitutes praediorum (also servitutes rerum, iura
Sequi condicionem alicuius. T o follow a person in praediorum). Among them there is a distinction
his personal status (freedom, citizenship). Legiti- between servitutes praediorum rusticorum and servi-
mate children share the status of the father; children tutei praediorum urbanorum according to the economic
born out of wedlock follow that of the mother.-See exploitation of the benefiting immovable, i.e., either for
VULGO CONCEPTI. agricultural production or for urban utilization (hous-
Sequi fidem alicuius. T o put one's trust, to have ing, commercial or industrial buildings) regardless of
confidence (faith) in another's promise or good faith, the location of the immovable in a city or in the coun-
to confide. try. Later (postclassical or Justinian's) law added to
Serenissimus (serenitas). A n honorific title of the the servitudes a new category, the personal servitudes
emperor in the later Empire (from the fourth cen- (servitutes personarum, hominum), in which the
tury on). The emperors used to speak of themselves beneficiary was a specific person. But only the term,
in their enactments serenitas nostra ("our serenity"). servitutes personarunz, was a later creation, the per-
Serva. A female slave. Syn. ancilla. tinent rights to use another's property (iura in re
Servare. T o take care of, to protect. T h e praetor aliena) were known in the classical law and dis-
used the term in his edict when he promised to pro- cussed and developed by the classical jurisprudence.
tect certain transactions or agreements (e.g., "pacta At the death of the beneficiary a personal servitude
conventa servabo") .-See MISSIO I N POSSESSIONEM was extinguished, whereas in predial (rustic or ur-
DOTIS (REI) SERVANDAE CAUSA,MISSIO I N POSSESSIO- ban) servitudes the death of the actual beneficiary
N E M LEGATORUM SERVANDORUM CAUSA. was without any effect on the existence of the ser-
Servare (ab aliquo). T o obtain by a suit what is due, vitude which as connected with the immovable passed
to recover (e.g., expenses made for another, indem- to the successor of the owner. Predial servitudes
nification). were of a vety different nature. Some of them were
Servari. I n locutions such as servandum est, servabitur, more typical and the extension of the pertinent rights
syn. with observari (= to be observed, to be acted vested in the owner of the dominant land were de-
according to the law). termined by law or custom. Modifications were, how-
Servi. Slaves.-See SERVUS. ever, admitted in specific cases; see MODUS SERVITU-
Servile supplicium. See CRUX.
- -
TIS. There was a legal rule: "Nemini (null;) res
Servilis. Connected with slavery or pertaining to sua servit" (D. 8.2.26, no one can have a servitude
slaves. Servilis condicio = the legal and social con- on a property of his own), since ownership as such
dition of a slave. Servilis cognatio, see SERVUS. implied all kinds of utilization of the thing. Another
Servire. Refers to the legal situation of a slave (see rule was that a predial servitude could not impose on
SERVUS)or to that of an immovable encumbered by the owner of the servient immovable the duty of
a servitude (praedium quod servit). The terms doing something. His liability went only so far as
praedium serviens and pmedium dominans, used in to abstain from doing something to the deriment of
the literature, are unknown in Roman sources. the beneficiary of the servitude or to tolerate the
Servitium. Comprised all persons who were in the latter using his property in some way. A predial
service of another. They constituted his familia (see servitude, being strictly connected with the dominant
FAMILIA) . I n the language of imperial constitutions immovable, could not be transferred to another person
servitium was used in the sense of any kind of service. unless the immovable itself was alienated. By the
alienation the new owner became the beneficiary of
Servitus. Slavery. "We compare slavery almost with
the servitude. A servitude was constituted through
death" (D. 50.17.209). "Slavery is an institution MANCIPATIO or I N IURE CESSIO when it was reck-
of the law of all nations (ius gentium) under which
oned among RES MANCIPI,a s the rustic servitudes
one is subject to the mastership (dominium) of an- were, or on the occasion of the division of a com-
other, contrary to nature" (D. 1.5.4.1) .-See SERVUS mon landed property in favor of the owners of the
(Bibl.), SERVITUTEM SERVIRE,REVOCATIO I N SERVI-
shares. In a last will a servitude could be granted
TUTEM, VINDICATIO I N LIBERTATEM.
only in the form of a LEGATUM PER VINDICATIONEM.
Servitus (servitutes). A servitude, an easement. Praetorian law introduced the establishment of a
Servitutes were classified among iura in re aliena
servitude by an agreement; see PACTIONES ET STIPU-
(= rights over another's property) since their sub-
stance consisted in a right of a person, other than LATIONES.I n Justinian's law the stipulation became
the owner, primarily the proprietor of a neighborly usual for this purpose. A predial servitude was ex-
immovable, to make,a certain use of another's land. tinguished when one of the two immovables, the
This right was vested in the beneficiary not as a per- servient or the dominant, was destroyed, or when
sonal one, but as a right attached to the immovable the owner of one acquired the other; see CONFUSIO.
(land or building) itself, regardless of the person --Sewitus in the language of Justinian indicates at
who actually happened to own it. These servitudes times restrictions imposed by the law on owners of
VOL. 43, FT
'. 2, 19531 ENCYCLOPEDIC DICTI(3NARY OF ROMAN LAW 703
immovables, as, for instance, in the buildings regula- Servitus cloacae immittendae. The right to have a
tions set in a constitution of the Emperor ~ e n o . See drain through a neighbor's land.-See CLOACA.
ZENONIANAE CONSTITUTIONES. The following items Servitus cretae eximendae. A rural servitude which
deal with typical predial servitudes, both rural and entitled one to take chalk from another's soil.
urban. Some of them appear in the sources as ius Servitus eundi. See ITER.
(iura) . For the so-called personal servitudes, see Servitus fumi immittendi. See FUMUS.
USUS, USUSFRUCTUS, HABITATIO, OPERAE SERVORUM. Servitus itineris. See ITER.
-1nst. 2.3; D. 8.1-3; C. 3.34.-See USUCAPIO SER- Servitus itineris a d sepulcrum. See ITER AD SEPUL-
VITUTIS, USUCAPIO LIBERTATIS, NON USUS, PATI, V I N - CRUM.
DICATIO SERVITUTIS, PERPETUA CAUSA SERVITUTIS, Servitus lapidis eximendi. A rural servitude to take
INTERDICTUM QUAM HEREDITATEM.
stones from a quarry belonging to another.
Leonhard, R E 2 A ; Beauchet, D S 4 ; Ciccaglione, N D I 12; Servitus luminis. The right to profit by the light
Berger, O C D ; Longo, B I D R 11 (1899) 281; Buckland, from a neighbor's land.
L Q R 42 (1928) ; idem, S t Riccobono 1 (1936) 277; Bon- Servitus ne luminibus officiatur. An urban servitude
fante, S t Ascoli (1931) 179; Arangio-Ruiz, Foro Ital., 59 which entitled the beneficiary to prevent his neighbor
(1932) ; Frezza, StCagl 22 (1934) ; Grosso, In tema di
costitusione tacita di sentitti, B I D R 42 (1934) 326; idem, from building a house which might shut him off from
S D H I 3 (1937) 274 ; idem, Riv. di dir agrario 17 (1938) the light. A counterpart to this servitude was the
174; idem, Problemi di diritti reali (1944) 26; Guarneri- right ius oficiendi lufninibus vicini which gave the
Citati, B I D R 43 (1935) 19; Ciapessoni, StPav 22 (1937) beneficiary the right to build on his land as he pleased,
107; B. Biondi, La categoria rom. delle servitutes, 1938; regardless of the neighbor's suffering a limitation or
idem, Le servitri prediali (Corso) 1946 ; E. Albertario,
Studi 2 (1941) 339; S. Solazzi, Requisiti e modi di costi- loss of light.-See SERVITUS ALTIUS N O N TOLLENDI.
tusione delle sentitti prediali, 1947; idem, Specie e estin- Servitus ne prospectui officiatur. This servitude gave
zione delle servitti prediali, 1948; idem, La tutela e il pos- the owner of an immovable the right to prevent his
sesso delle servitu prediali, 1949; E. Levy, W e s t Roman neighbor from building a house or planting trees
vulgar law, 1951, 55.
which might impede the beneficiary's pleasant view.
Servitus actus (ius agendi). See ACTUS,INTERDIC- -See SERVITUS NE LUMINIBUS OFFICIATUR.
T U M DE ITINERE ACTUQUE.
Servitus oneris ferendi. An urban servitude involv-
Servitus altius non tollendi (sc. aedes). An urban ing the right of the beneficiary to have his building
servitude which imposed on the owner of a building supported by the neighbor's wall. The latter was
the duty not to build higher over a certain limit. bound to keep his wall in good condition.
A counterpart was a servitude ius altius tollendi Ciccaglione, N D I 12, 1, 165 ; Riccobono, ibid. 218 ; Scialoja,
which gave the beneficiary the right to build higher. S t giur. 1 (1933, ex 1881) 84; G. SegrP, B I D R 41 (1932)
Buonamici, At~nali Univ. Toscane, 32 (1913) ; A. Perret, 52; idem, S t Ascoli (1931) 681.
l u s a. .tollertdi, ThPse Paris, 1924; Grosso, S t Albertoni 1 Servitus pascui (pecoris pascendi). See IUS PAS-
(1935) 453; Branca, S t A . Cicu 1 (1951) 105. CENDI.
Servitus aquaeductus (aquae ducendae). A rural Servitus praetoria. A servitude constituted in a form
servitude consisting in the right of the owner of the introduced by praetorian law.-See SERVITUS,PAC-
dominant land to-conduct water from. or across. TIONES ET STIPULATIONES.
another's land through pipe or canals. The servitus H. Kriiger. Die pratorische Scrvifut, 1911; Rabel, M t l
was protected by interdicts granted against any one Girard 2 (1912) 387; Berger, GrZ 40 (1913) 299; Maschi,
who prevented the beneficiary from exercising his B I D R 46 (1939) 274; B. Biondi, Le scrvittl prediali (1946)
213.
-
right or who tried to render the water or the ieces-
Servitus proiciendi. See the following item.
sary constructions useless.-See INTERDICTUM DE
AQUA, CASTELLUM. Servitus protegendi. An urban servitude which en-
Manigk, R E 10; Berger, R E 9, 1630; Gianziano, N D I 1 titled the beneficiary to project a roof on the neigh-
(s.v. acqtic private) ; Orestano, B I D R 43 (1935) 217; De bor's property. A similar servitude was seruitus
Robertis, AllBari 1 (1938) GI; Maschi, B I D R 46 (1939) Proiciendi concerning a balcony projected over the
313; Solazzi, Fschr Schiclz 1 (1951) 380. neighbor's land.-See PROTECTUM.
-
Servitus aquae haustus. The right to take water from Servitus servitutis esse non potest. A servitude can-
a fountain, a pond, or a spring located on another's not be irnposetl on a servitude. There was no possi-
property. This easement implied free access (iter) bility to transfer the exercise of a servitucte wholly
to the place. Syn. servitus aquae hauricndae.-See or in part to another.
FONS, INTERDICTA DE FONTE. Ferugi, BIDR 29 (1916) 181.
Leonhard, R E 2 ; Grosso, B l D R 40 (1932) 401. Servitus silvae caeduae. The right to cut wood on
Servitus arenae fodiendae. The right to dig for sand another's property.
in a land belonging to another. Servitus stillicidii. There were different servitudes
Servitus calcis coquendae. The right to burn lime connectetl with the use of dropping rain-water : ( a )
on another's land. servifus stillicidii imntittendi = the right to discharge
704 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
the dropping rain-water from the eaves or spouts of could not be made worse. The master was, however,
one's building on the property of a neighbor; the liable for delictual offenses of the slave (see DEr.rc-
latter was obliged to receive i t ; ( b ) semtitus stillicidii T U M ) ,but when sued with an actio noralis for the
avertendi = the right to divert the rain-water from slave's wrongdoing (see NOXA),he might free hini-
the roof of a neighbor's building to make it run on self from liability by handing over (surrendering)
the beneficiary's land ; (c) servitus stillicidii rcci- the slave to the person injured (noxne deditio). A
piendi = the right to receive.the rain drip from a slave could not be sued nor could he be plaintiff in
nei~hbor'sproperty. a trial. I n the earlier law the master had IUS VITAE
inon., N D I 12, 1, 905; Grosso, St Albcrtorti 1 (1935) 465; NECISQUE over the slave, and even during the period
Guarneri-Citati, RcrtdLomb 59 (1926) ; B . Biondi, La catc- of the Republic a slave had no protection against his
goria rom. delle seruitutes (1938) 129.
master's cruelty. See LEX PETRONIA.The law of
Servitus tigni immittendi. A n urban servitude which the Empire brought several restrictions to the master's
entitled the beneficiary to introduce a beam serving power. A master who killed his slave without just
for his building into the wall of a neighbor's building. grounds was punished, and in the case of ill-treatment
-See T I G N U M I U N C T U M . of a slave he could be compelled to sell him. The
Servitus viae. See VIA. pertinent provisions were frequently changed in the
Servitutem debere. Used of a land which is encum- later Empire in favor of the slaves under the influ-
bered with a d re dial servitude. Fundo sevvitus debe- ence of Christianity. A slave had no family; his
taw is used of a land the owner of which is the bene- marriage-like union was not considered a matri-
ficiary of a predial servitude. monium; see CONTUBERNIUM. Blood tie created
S. Solazzi, Tutela della s e m i t i prediali, 1949, 163.
through a servile union (cognatio servilis) was later
Servitutem servire. Denotes a factual (not legal) regarded as an impediment to a marriage between
condition of a person who although being free per- persons thus related, after their manumission. Spe-
formed services of a slave.-See LIBER H O M O BONA cific rules were in force in criminal law and procedure
FIDE SERVIENS. as far as slaves were concerned. Penalties inflicted
J. Ellul, Evolution et nature jurid. du mancipium (1936)
282.
on slaves were generally severer than those to which
free men were exposed. A slave was not allowed to
Servitutes personarum. See SERVITUS.
C. Sanfilippo, S . p. (Corso), 1944; Ciapessoni, CentCod
testify in a criminal trial against his master, except in
Pav (1934) 879; B. Biondi, Le servitli prediali, 1946, 50. the case of crimen nzaiestatis. A testimony contrary
Servitutes praediorum (rusticorum, urbanorum). to this rule was capitally punished. Usually, a slave
See SERVITUS. as a witness in criminal matters was subject to tor-
Servius Sulpicius Rufus. A prominent jurist of the ture ;'see QUAESTIO PER TORMENTA. Slavery arose by
second half of the first century of the Republic, consul birth from a slave mother. A foreigner of an enemy
in 51 B.c., orator and a famous legal teacher. His country became a slave in the Roman state when
writings amounted to 180 books; among them was taken as a prisoner of war. The same happened to
the first commentary on the praetorian Edict. Ac- a stranger belonging to a country, not allied with
cording to Cicero, he furthered the application of Rome with a treaty of friendship, even when he was
equity (see AEQUITAS)in settling legal disputes. caught not in time of war. Other causes of enslave-
Miinzer. R E 4 A , 851 (no. 95) ; E. Vernay, Servlus et son ment were: venditio trans Tiberim (= the sale of a
icole, 1909; Peters, Z S S 32 (1911) 463; Kiibler, A C D R free man beyond the Tiber, i.e., abroad, see ADDIC-
Roma 1 (1934) 9 6 ; Stroux, ibid. 130; Di Marzo, B l D R TUS), the case sanctioned by the SENATUSCONSCL-
45 (1938) 261; P . Meloni, S. S. R . e i suoi tempi, Annali T U M CLAUDIANUM, the case of an INGRATUS LIBERTUS
Fac. Lettere e Filosofia Univ. Cagliari, 13 (1946).
( = a freedman ungrateful towards his patron), and
Servus. A slave. Syn. terms : homo, mancipium, ancilla the case of a fraudulent sale of a free man (over
( a female slave), puer. Although a human being, twenty) 2s a slave who gave his consent to such a
legally a slave was considered a thing (res) without transaction in order to ~articipatein the price. For
any legal personality. H e belonged to his master as enslavement as a result of a condemnation for a crime,
a RES MANCIPI,and therefore the transfer of owner- see SERVUS POENAE. For the specific rules governing
ship of a slave was to be performed through manci- the sale of a slave and the liability of the master for
patio. All that the slave acquired belonged to his
physical and mental defects of the slave sold, see
master and he could not assume an obligation for 'his
EDICTUM AEDILIUM CURULIUM, DICTA, REDHIBITIO.
master. Hence there was no action against the latter
from transactions concluded by the slave. Excep- --D. f 1.3; 18.7; C. 6.1 ; 2 ; 7.7-9; 13.-See moreover,
ACTIO SERVI CORRUPTI, OPERAE SERVORUM, ANCILLA,
tions from this rule were introduced by the prae-
torian law; see PECULIUM, ACTIO TRIBUTORIA, INSTI- PARTUS ANCILLAE, HOMO, NOMEN, EVINCERE, M A N U -
TOR. Aside from these specific cases a general rule MISSIO, DEDITICII EX AELIA SENTIA, PECULIUM, LIBER
was that the legal situation of a master might be H O M O BONA FIDE SERVIENS, EXPONERE SERVUM, CAP-
improved by a contractual activity of his slave, but TIVITAS, SENATUSCONSULTUM SILANIANUM, FAMILIA,
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIOINARY OF ROMAN LAW 705
STATULIBER, PACTIO LIBERTATIS,
INIURIA,and the Servus fiscalis (fisci). A slave employed in the busi-
following items. ness of the fisc. Slaves came under the mastership
Westermann; R E Suppl. 6 (s.v. Sklaverei) ; Weiss, RE of the fisc when the master died without an heir, or
3A (s.v. Sklaverei) ; Beauchet and Chapot, D S 4 ; W. W. when the heir instituted in a testament refused to
Buckland, The Roman law of slavery, 1908; Berger, Streif- enter the inheritance (see CADUCA), or when the fisc
ziige durch das rom. Sklavenrecht, I. Philologus 73 (1914)
61; 11. Z S S 43 (1922) 398; Tumedei, RISG 64 (1920) seized the property of a person condemned for a
55; B. W . Barrow, Slaves in the R . Empire, 1928; H . crime f see CONFISCATIO. PUBLICATIO) .--See FISCUS.
LCvy-Bruhl, Quelques probllmes du trks ancien dr. rom., Servus fructuarius. A slave on whom a person other
1934, 15; Jonkers, De I'influence du Christianisme, Mn than the owner had a usufruct (see U~USFRUCTUS).
1934, 241; Juret, Rev. des ttudes Latines, 1937, 30; Del
Prete, Responsabilitb penale dello schiavo, 1937; De Mana- All that such a slave acquired ex re of the usufruc-
ricua, El matrimonio de 10s esclavos, Analecta Gregoriana, tuary (i.e., from his money or other property, or
23 (1940) ; E. Ciccotti, I1 tramonto della schiavitd nel from the peculium granted by him to the slave), or
mondo antico, 2nd ed. Udine, 1940; Kaser, SDHI 6 (1940) ex operis suis (= from the slave's labor), belonged
357, 16 (1950) 59; L. Clerici, Economia e finunza dei Ro-
mani 1 (1943) 128; Solazzi, SDHI 15 (1949) 187; Imbert, to the usufructuary; other acquisitions, such as an
Christianisme et esclavage, R I D A 2 (1949) 445; G. E. inheritance or legacies went to the profit of the slave's
Longo, SDHI 16 (1950) 86. master. A seruus fructuarius freed by his master
Servus actor. See ACTOR. without the fructuary's consent, became a servus sine
Servus alienus. A slave belonging to another. If domino ( = a slave without a master) ; under the law
another's slave was instituted as an heir in a testa- of Justinian he became free.-See EX RE ALICUIUS.
ment, his master acquired the inheritance. Freedom Berger, Philologus 73 (1914) 61, 91 ; idem, ZSS 43 ,(1922)
given to another's slave in a will was without any 398; Pringsheim, Z S S 50 (1930) 408; G. Dulckeit, Erblas-
semille und Erwerbm'lle (1934) 26, 101 ; Solazzi, B l D R
effect unless the testator ordered his heir to buy the 49-50 (1947) 373.
slave from his master and to manumit him, or the Servus fugitivus. A slave who ran away from his
testator rewarded the slave's master on condition master with the intention not to return to him. A
that he would free the slave.-See SUPPRIMERE SER- servus fugitivus also was a slave who ran away from
Desserteaux, R H D 12 (1933) 35; G. Dulckeit, Erblasser- pledge (creditor pigneraticius), or from a teacher,
Servus Caesaris. A slave belonging to the emperor a public organ or a private individual, a servus fugi-
either as servus patrimonialis (see PATRIMONIUM tivus had to be delivered to the master. Concealing
PRIVATA CAESARIS).
master was considered a theft; see LEX FABIA DE
Servus communis. A slave who belongs to more than PLAGIO. Syn. in fuga esse, fugitivus (noun). A
one master as a common property.-C. 7.7.-See fugitive could be usucapted if the man who held him
Servus corruptus. See ACTIO SERVI CORRUPTI. less slave).--See CAUTIO DE SERVO PERSEQUENDO.-
Berger, Philologus 73 (1914) 96; Cosentini, SDHI 9 through condemnation with capital punishment (death
(1943) 291. penalty, fight with wild beasts, forced labor in mines).
written declaration as his (subscriptio, subsignatio) . Simplaria venditio. A sale in which the seller did
Signunz is also the seal of a witness who was present not specify any particular quality or defect of the
at the making of a document. In certain specific thing sold (for instance, a slave sold as "no good,
instances sealing a document was legally required. no bad"). Such sales which normally concerned
See TESTAMENTUM SEPTEM SIGNIS (SIGILLIS)SIG- ordinary things of no great value, could not be
NATUM. Sealing a forged testament or an illicit rescinded by REDHIBITIO.
removing of a seal from a testament was punished Bruns and Sachau, Syrisch-rom. Rechtsbuch, 1880, 207.
under the Lex Cornelia de fa1sis.-See OBSIGNATIO, Simplicia interdicta. See INTERDICTA SIMPLICIA.
SIGNARE, ANULUS. Simplicitas. Simplicity, clearness. "Simplicity (clar-
Wenger, RE 2A; Chapot, DS 4 ; Erman, ZSS 20 (1899) ity) in laws seems to us more desirable than intri-
181; Wenger, Z S S 42 (1921) 611. cacy" (Justinian, Inst. 2.23.7).
Signum agnoscere. T o acknowledge a seal as one's Simpliciter. Simply, plainly. The adverb is used in
own. Syn. recognoscere. different meanings, depending on with what it is
ADOLF B E R G E R
contrasted. Thus, for instance, to promise (to give condemnation of the defendant, the tablet was sine
a donation, to bequeath a legacy) simpliciter = un- sufragio ( = without any vote) .-See CIVITATES SINE
conditionally (when opposed to sub conditione) ; to SUFFRAGIO.
assume an obligation simpliciter = without giving se- Sinere. See LEGATUM SINENDI MODO.
curity (when opposed to cum satisdatione) ; to stipu- Singulare ius. See IUS SINGULARE.
late simpliciter = without a penalty (when opposed Singuli. Individual citizens (as opposed to the whole
to a stipulatio under penalty). With reference to people, populus Romanus) ; members of an associa-
judicial measures to be granted by a magistrate siwz- tion (as opposed to the whole body, universitas).
pliciter is opposed to causa cognita (after investiga- Sistere aliquem. T o assume the obligation by giving
tion of the case, see CAUSAE COGNITIO). security (to guarantee) that a certain person engaged
Simplum. See ACTIONES I N S I M P L U M . in a lawsuit (primarily the defendant) will appear in
Simulare (simulatio). T o feign, to simulate, to pre- court (iudicio sistere) at a fixed date.-See CAUTIO
tend. I n contractual relations a simulatio occurred IUDICIO SISTI, VADIMONIUM, VINDEX.
when the parties with mutual understanding con- Sisti (se) iudicio. T o appear in court.-D. 2.10.
cluded a transaction while their intention was to Societas. A contract of partnership concluded be-
conclude another or none at all. The purpose of tween two or more persons with the purpose to
such fictitious transactions was either to give thereto share profits and losses. The contractual relation-
the appearance of a legal act, while in fact the trans- ship among the partners (socii) arose through simple
action was illicit (e.g., the parties covered a pro- consent (consensus) of the partners. The intention
hibited donation with a fictitious sale) or to feign to conclude a societas is termed afectio societatis;
that a legal situation existed which in fact did not it certainly makes no difference whether the term is
exist (e.g., an imaginary marriage, nuptiae simulatae, a classical or later creation since, in fact, it does not
to avoid the disadvantages imposed on unmarried denote more than consensus. The partners con-
persons by the Augustan legislation on marriages, tributed to 'the common business money, goods, rights,
see LEX IULIA ET PAPIA POPPAEA).Acts concluded claims against third persons, or their personal pro-
simulate (simulated acts) were not valid since they fessional skill and labor. Funds and things collected
were not intended by the parties; nor was the act became joint ownership of all partners, normally in
which the parties wanted to conclude valid if it was equal shares unless different shares were established
contrary to the law. The rubric of the title 4.22, of at the conclusion of the societas, when the contribu-
the Code, defines: "More valid is what is being done tions of the partners were not equal or when their
than what is being expressed in simulated terms." parts in labor or personal services were of a different
The rule lay stress in particular on the "truth of the value. Accordingly, the share of each partner in
matter" (veritas rei) and not on what had been profits and losses was fixed by agreement. The
feigned in a written deed.-C. 4.22.-See IMAGI- societas had no legal personality; the partners were
NARIUS, DICIS CAUSA. liable for the debts of the societas, without regard
Berger, RE 9, 1094 (s.v. imaginarius) ; Rabel, Z S S 27 to its funds, on the other hand the claims of the
(1906) 290; Partsch, ZSS 42 (1921) 122; idem, Aus nuch- societas against its debtors were claims of the partners.
gelassenen Schriften, 1931, 122; G. Longo, St Riccobono 3
(1936) 113; idem, AG 115 (1936) 117; 116 (1937) 35; A societas was dissolved by a mutual agreement of
Betti, BIDR 42 (1934) 299; idem, Fschr Koschaker 1 the partners (dissensus), by the death of one partner,
(1939) 297; idem, ACSR, I V Congr., 1938; G. Pugliese, his capitis deminutio or bankruptcy, or by renun-
La simulazione nei negozi giuridici, 1938. tiatio of one partner, i.e., his unilateral withdrawal
Sinceritas. A complimentary title used by the em- from the societas. Controversies among the partners
perors in official letters (rescripts) addressed to were settled in an action, actio pro socio, brought by
higher officials of the Empire ("sinceritas tua" = one partner against the other. The action was a n
your sincerity). actio bonae jidei; the defendant could be condemned
Sine die. Refers to obligations for the fulfillment of only in id quod facere potest (see BENEFICIUM COM-
which a term was not fixed. "What is due without PETENTIAE), but the condemnation involved infamy.
a date being fixed, has to be paid immediately" (D. The division of the common property of the partners
45.1.41.1). was achieved through ACTIO C O M M U N I DIVIDUNDO.
Sine die et consule. Without indication of the day The origin of societas goes back to the community of
and the consul, i.e., without a date. Constantine or-
property ( see C O N S O R T I ~among
M ) jilii familias, heirs
dained that undated imperial constitutions were not
valid. of their father, which served as a model for common
Niedermeyer, ACDR Roma 1 (1934) 366. ownership and comnlon management of affairs among
Sine domino. See SERVUS SINE DOMINO. persons not tied by the origin from a common an-
Sine re. See BONORUM POSSESS10 S I N E RE. cestor.-The term societas occurs at times in the
Sine suffragio. When a juror did not indicate on his sense of an association ( = collegium, L orpus) .-Inst.
voting tablet whether he was for the acquittal or 3.25 ; D. 17.2; C. 4.37.-See COMMUNIO, CONSORTIUM
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN 1,AW 709
ERCTO N O N CITO,ACTIO C O M M U N I DIVIDUNDO, COM- Socius. ( I n penal law.) An accomplice, an accessory,
MUNICATIO LUCRI ET DAMNI, ACTIO PRO SOCIO, an abettor, one who gives assistance (iuvat, adiltvat,
QUAESTUS, VIATICUM. adiutorium pracbct) to a criminal before, during, or
Manigk, R E 3A; Lkcrivain, D S 4 ; Rodino, NDI 12, 1 after the crime. Syn. conscius, consors, particeps.
(s.v, societd civile) ; C. H . Monro, Digrst 17.2. Pro socio As a matter of rule, the socius was punished by the
(Cambridge, 1902) ; E. Levy, Kortkurren= drr Aktioncn
2, 1 (1922) 139; E. Del Chiaro, LC cotrtmt de societi en
same punishment as the principal wrongdoer; excep-
dr. privk rorn., 1928; A. Poggi, I1 contratto di societd, 1-2 tions from this rule were introduced later in favor
(1930, 1934) ; Guarneri-Citati, B I D R 42 (1934) 166; F. of the accessory.-See OPE CONSILIO, LEX F A B I A .
Wieacker, Z S S 54 (1934) 35; idem, Societas, Hausgrnieirl- Pfaff, R E 3A; R. Balougditch, Etude sur la cotnplicitt
schaft und Erwerbsgesellschaft, 1936; Arangio-Ruiz, S t (These Montpellier, 1920) ; K. Poetzsch, Begriff und Bc-
Riccobono 4 (1936) 357; Daube, CambLJ 6 (1937) 381; deutung des s. i m riim. Strafrecht (Diss. Gottingen, 1934).
C. Arnb, I1 contratto di societd (Lezioni) 1938; Di Marzo, Socius. ( I n public law and international relations.)
B I D R 45 (1938) 261; Condanari-Michler, S t Brsta 3
(1939) 510; Pfliiger, Z S S 65 (1947) 188; E. Schlechter, An allied state with which Rome had a treaty of
Le contrat de sociktt en Babylon, en Grbce et d Rome, alliance (foedus) delimiting the ally's rights and
1947; Frezza, S t Solazzi (1948) 529; V . Arangio-Ruiz, duties towards Rome. I n internal administration
La societd in dir. rom. (Corso), 1950; Weiss, Fschr Schuk an allied state was autonomous in retaining its con-
2 (1951) 86; Solazzi, Iura 2 (1951) 152; Van Oven, T R
19 (1951) 448; idem, S t Arangio-Ruiz 2 (1952) 453; stitution, its government, its control of finances and
Wieacker, Z S S 69 (1952) 302. its legal system. Among its duties that of furnish-
Societas leonina. A societas in which one partner ing a contingent of troops under Roman command
participates only in the losses and is excluded from (praefecti sociorum) was the most burdensome.
sharing the profits. Such a contract was not valid. The privileges granted an ally were not uniform;
V. Arangio-Ruiz, La societd in dir. rorn., 1950, 110. their extension depended upon the closeness of his
Societas maleficii. A group of persons intent to com- attachment to the Roman state. A n ally had no
mit a crime together right to conclude a treaty with another state or to
Societas negotiationis. See SOCIETAS UNIUS NEGOTII. make war independently of Rome. During the third
and second centuries B.C. restrictions were gradually
Societas omnium bonorum. A partnership embrac- imposed on the autonomy of the allies. The situation
ing the whole property of all partners. Such a kind of the allies in Italy (socii Italici) turned to the
of societas was the earliest form of joint ownership worse; after the Social W a r (91-88 B.c.) Roman
of an estate Fmong the heirs; see CONSORTIUM. citizenship was granted to all cities in Italy which
V. Arangio-Ruiz, La societd in dir. rom., 1950, 16; Van
Oven, T R 19 (1951) 448. brought the expansion of Roman law and juris-
Societas publicanorum. See PUBLICANI. diction over the whole peninsula. There were also
socii beyond Italy, more or less dependent on Rome.
Societas quaestus. A partnership which comprises
Their number increased after the Roman victory over
gains obtained from the economic activity and legal
Carthage. After various modificati,ons the provin-
transactions (sales, leases) of the partners. Ex-
cialization of the former allies was achieved and the
cluded from the community are donations, legacies
Roman rule expanded over territories in which the
and inheritances.
autonomous institutions fell soon into oblivion giving
Societas re contracta. A societas existing independ- place to Roman power and governors.-See FOEDUS,
ently from the consent of the parties. This occurred CIVITATES FOEDERATAE, FOEDUS, AMICUS POPULI
when one or more things came into common owner- ROMANI.
ship of several persons. The notion of societas re Licrivain, D S 4, 1367; Sherwin-White, OCD; Matthaei,
contracta is a postclassical creation. Class. Quarterly Rev., 1907, 182.
Arangio-Ruiz, S t Riccobono 4 (1936) 357; idem, La so- Sodales. Members of an association (collegium, sodali-
cietd in dir. rom., 1950, 35.
tas). I n a more specific sense the term refers to col-
Societas unius negotii (societas negotiationis). A leges of a religious character, primarily to minor
partnership concerning a commercial or industrial priesthoods.
business. All juristic and economic operations con- Bailey, OCD.
nected with it are covered by the partnership. Sodales Augustales. A college of priests instituted by
Arangio-Ruiz, L a societci in dir. rom., 1950, 141.
the emperor Tiberius after the death of Augustus and
Societas unius rei. A partnership concerning one, charged with the cult of the late emperor. Later,
commercial or non-commercial, transaction (a sale, similar groups of priests were entrusted with the cult
a lease, etc.) -See POLITOR. of the emperors Titus, Hadrian, and Antoninus Pius
Societas vectigalium. See SOCIETAS PUBLICANORUM. (sodales Flaviales, Hadrianales, Antoniniani) .
-See PUBLICANI. Cagnat, D S 4.
Socius. ( I n private law.) A partner in a company Sodalicia. See the following item.
(see SOCIETAS), a co-owner, a member of an asso- Sodalitates (sodalicia). Groups of persons organized
ciation (collegium). under the chairmanship of a magister as a body for
710 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
specific purposes. In the political life the sodalitates This rule was accepted by Justinian as a general one
were a union of individuals who illegally worked for through its repetition in the final title of the Digest,
a candidate during the electoral campaign; see LEX De diversis regulis iuris antiqui (D. 50.17.183). I n
LICINIA DE SODALICIIS. the language of the imperial chancery the sollemnia
Pfaff, RE 3.4; Ziebarth, RE 3A; Riewald, RE 1.4, 1640; found a wide application, being connected with any
U. Coli, Collegia e sodalitates, 1913. act for which certain formalities were prescribed (e.g.,
Solacium. -An indemnification, a compensation for sollemnia accusationis, adoptionis, appellationis, iuris-
damages. In imperial constitutions the term is used iurandi, etc.),
in the meaning of a stipend or a salary. Riccobono, L'importanza e il decadimento delle forme sol-
Solarium. See SUPERFICIES. lenni, Miscellaneous Vermeersch 2 ( 1935j.
Solere. T o use to do something. Used of customs Sollemnia testamenti. Formalities required for the
and usages, practiced in legal and commercial life validity of a testament.
as well as in courts. Sollemnia verba. See VERBA CERTA ET SOLLEMNIA.
Solidare. In imperial constitutions to confirm, to Sollemnis. Prescribed by law, human or sacral, or
strengthen (a legal transaction). observed through tradition. See SOLLEMNIA (IURIS).
Solidum. (Noun.) A thing in its entirety, a whole, Hence sollemniter indicates any act performed under
a sum due as a whole. Solidum occurs primarily in observance of the prescribed formalities.
locutions in solidullz and pro solido, e.g., to acquire Sollemnitas, sollemniter. See SOLLEMNIA (IURIS),
or to sell a thing as a whole, to sue one of more debtors SOLLEMNIS.
for the whole debt. See DUO RE1 PROMITTENDI. For Sollicitator. A seducer.-See ACTIO SERVI CORRUPTI.
solidum in the law of successions, see CAPACITAS, Solum. See SUPERFICIES, RES MOBILES.
CAPAX! LEGES c~~ucARIAE.-SeePERVENIREAD AL1- Solutio. In a broader sense solutio indicates any kind
QUEM. of liberation of the debtor from his debt. Obligations
Solidus. (Adj.) Actiones solidae = lawsuits for the contracted in a specific form (litteris, verbis) had to
whole debt. Solida successio = the whole inheri- be extinguished in a similar form; see PRouT QUIS-
tance. QUE. Thus a literal obligation (litterarum obligatio)
Solidus- (No~ln.) AUREUs (syn. aureus solidus, was extinguished by EXPENSILATIO, a stipulatio by a
dus a u r e ~ s ) ,a gold coin containing from the time parallel oral form, the ACCEPTILATIO. I n a narrower
of Constantine 1/72 of a Roman pound (Libra) of gold. sense solutio denotes the payment, the fulfillment of
Justinian's compilers interpolated the solidus in ju- an obligation. Payment could be made by anyone,
ristic writings for the former one thousand sesterces not only by the debtor himself, but even without his
(see SESTERTIUM) ; thus both sestertium and sesterti~s knowledge and against his will. The creditor was not
disappeared in Justinian's codification. obliged to accept a part of the debt nor another thing
~ e g l i n g ,R E 3.4 ; Babelon, DS 4 ; S. Bolin, Der S., Acts in lieu of that which was actually due (aliud pro alio).
Instituti Rom. Regni Sueciae, 2 ser. 1 (1939) 144; Cesano,
Bull. Comm. Archeol. di Roma, 58 (1930), Bull. del Museo, Failure to pay at the term fixed produced for the
p. 42. debtor the disadvantages of a default (see MORA
solis occasus. sunset. ~ ~ to the ~~~~l~~ ~
DEBITORIS).
~ A dcreditor whoi refused ~ the acceptance
~
Tables a trial in court had to be closed before sunset of the Payment could also be in (in ;
by the pronouncement of a judgment by the judge. See MORA CREDITORIS.-D. 46.3; C. 8.42; 11.40.-
Meetings of the senate, which normally stai-ted early See OBLIGATIO, SATISFACTIO, ADIECTUS SOLUTIONIS
in the morning, - were to be ended at sunset. CAUSA, BENEFICIUM COMPETENTIAE, DATIO I N SOLU-
Solitarius. See PATER SOLITARIUS. TUM, APOCHA, USUCAPIO PRO SOLUTO.
Huvelin, DS 4 ; Leonhard, RE 3A; P. Kretschmar, Die
Solitus. Customary, usual.-See SOLERE. Erfullung, 1906; P. Thermes, Le paiement (Th6se Tou-
Sollemne ius. Opposed to the law created by the louse, 1934) ; S. Solazzi, L'estinzione dell'obbligocione, 2nd
praetor (ius praetoriuun, ius honorarium). Sollemne ed. (1935) 9.
;us is syn. with IUS CIVILE and refers primarily to Solutio imaginaria. The solemn acts of liberation of
the solemn formalities prescribed by that law. the debtor, the ACCEPTILATIO, and the SOLUTIO PER
Sollemnia (iuris). Legal formalities prescribed by the AES ET LIBRAM, are qualified as solutio imaginaria,
law for certain acts, such as the acts per aes et libram, see IMAGINARIUS. Through these acts the debtor was
testaments, legis actioltcs, stipulatio, etc. Syn. sol- liberated from his obligation whether or not he effec-
levlznitntes iuris. Praetorian law and imperial legis- tively paid the debt.
lation gradually alleviated and partly abolished the cSolutio indebiti. The payment of a debt which in
formalities of the earlier law. In a rescript issued fact did not exist.-See INDEBITUM, CONDICTIO I N -
in a particular case Emperor Marcus Aurelius stated : DEBITI.
"Although in solemn legal formalities changes should P. Voci, La dnttrina rom. del contratto (1946) 98.
not easily be made, yet where obvious equity (aequi- Solutio legibus. In the Republic the senate could
tc1.7) requires help must be granted" (D. 4.1.7 pr.). decree in exceptional cases that a law being in force
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 711
should not be applied in a specific case. Normally Sonticus morbus. A serious disease which prevented
such a decree of the senate had to be followed by a a person from the fulfillment of his duties. It was
confirming vote of a popular assembly. Such dis- a justified excuse for non-appearance in court.
pensations of magistrates from a strict application of ~ o r d i d amunera. See M U N E R A SORDIDA.
law, or of an individual person from a legal require- Soror. A sister. Soror was also a mother or steD-
ment, were issued as an exceptional measure in case mother who acquired in the family the legal situation
of urgency. This rule was not always observed and of a daughter through marriage with the father of
abuses were not rare. See LEX CORNELIA DE LEGIBUS the family combined with CONVENTIO I N M A N U M
SOLVENDO (of 67 B.c.). The right of the senate to and thus became a sister of the latter's children.-
grant a solutio legibus was still exercised in the early See FILIA FAMILIAS,M ANUS.
Principate. Sors. A lot. When two co-owners or co-heirs ap-
O'Brien-Moore, R E Suppl. 6 , 7 4 6 ; Mommsen, R o m . plied to a court for the division of the common prop-
Staatsrecht 3, 2 (1888) 1229; G. Rotondi, Leges Publicae erty (inheritance) under actio communi dividundo or
populi R o w . (1912) 165; 520.
actio familiae erciscundae, it used to be determined by
Solutio per aes e t libram. The payment of a debt lot which of the parties had to institute the trial as the
which arose from a transaction concluded in the plaintiff .-See SORTITIO.
solemn form PER AES ET LIBRAM. The liberation of Sors. A sum lent at interest, the principal.-See
SUBSORTITIO.
DAMNATIONEM.-SeeSOLUTIO IMAGINARIA.
Ehrenberg, RE 13, 1495 (s.v. Losung) ; Ltcrivain, DS 4,
Michon, Recueil Ghny 1 (1934) 42. 1417.
Solutionis causa adiectus. See ADIECTUS SOLUTIONIS Sortitio. ( I n public law.) I n centuriate assemblies
CAUSA. (covnitia centuriata) the centuria which had to vote
Solutum. See DATIO I N SOLUTUM. first (centuria praerogativa) was determined by lot
Solutus. See VINCTUS. (sortiri). If in an election of magistrates two can-
Solvendo esse. T o be solvent. "No one is considered didates received an equal number of votes, it was
solvent unless he is able to pay the whole debt" decided by lot which of the two was to obtain the
(D. 50.17.95). The term is applied both to persons magistracy. I n some other instances (of minor im-
and estates. Ant. solvendo non esse. An insolvent portance) designation by lot was alternative with the
person was exempt from the duty to assume a guard- decision by a superior magistrate.
ing item.
FRAUDATORIULI, IDONEUS, FACERE POSSE. signment of the various spheres of activity (pro-
vinciae) to colleagues in office (see COLLEGA), as
Pringsheim, ZSS 41 (1920) 252; Schulz, ZSS 48 (1928)
214; Kiibler, St Albertoni 1 (1935) 493; G. Nocera, In- consuls, praetors, municipal magistrates, etc. The
solvenza e responsabilitd sussidiaria (1942) 19. division of functions concerned primarily military
Solvere. To pay a debt. "We say solvere when some- command and jurisdiction. I t could be settled by
body did what he had promised to do" (D. 50.16.176). common agreement which made the drawing of lots
See SOLUTIO. In a broader sense solvere means to superfluous (sine sorte) . Sortitio was mandatory
dissolve a legal (contractual) relationship by mutual with regard to the functions of praetors.
agreement of the parties involved. For the rule that Spado. Incapable of procreation, either by nature or
through castration. A spado was permitted to marry
an obligation assumed .by a contract should be dis-
and adopt.-See PUBESCERE, CASTRATI, EUNUCHI.
charged (solvi) in the same way, see PROUT QUISQUE, Pfaff, R E 2 A .
etc. Hence verbal contracts had to be dissolved Spatium. Indicates both space in room (e.g., an in-
orally, through the use of prescribed words, and terval between two buildings, see AMBITUS)and in
literal contracts (see OBLIGATIO LITTERARUM) by time (a period of time within which a legal act had
written forms (litterae). Solvi = to be liberated to be accomplished).
from an obligation or any legal binding, to be dis- Spatium deliberandi. See DELIBERARE, TEMPUS
AD
solved (e.g., vnatrimonium) . DELIBERANDUM.
Solvere legibus. See SOLUTIO L E G I B U S . - ~LEX ~ ~ Specialis. Special ; specialiter = especially, expressly,
CORNELIA DE LEGIBUS SOLVENM). in particular. The words occur frequently in Jus-
712 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
tinian's constitutions and, together with ant. generalis sonal privileges similar to those of the clarissi*ni;
and generaliter, are among his favorite expressions. exemption from the decurionate (see ORDO DECURIO-
They are generally considered as criteria of inter- N U M )was their most iinl~ortantright. After a period
polations; their occurrence, however, in works of of nearly two centuries, during which the honorific
rhetoricians does not permit their definite exclusion titles were fluctuating, from the beginning of the fifth
from the language of the jurists. I n particular, the post-Christian century a strict distinction was made
atlverl, sbccic~liter often occurs in connection with aillong the three high-ranking groups, illttstres, spec-
specific clauses inserted in an agreement.-See GENE- fabiles and clarissimi.
RALIS, I U D I C I A GENERALIA, IURISDICTIO MANDATA, Ensslin, R E 3 A ; Chapot, D S 4 ; P. Koch, Byzantinisclte
NISI. Beamtetttitel (1903) 22; 0. Hirschfeld, Kleittc Schriften
Guarneri-Citati, I;tdice2 (1927) 83; Peters, Z S S 32 (1911) (1913) 664; 670.
183 ; E. Albertario, Sttrdi 4 (1946) 79. Spectaculum. A show. See LUDI. I t is characteristic
Species. An individual thing, to be distinguished from that the title 11.41 of Juikinian's Code deals with
genus = a kind, sort of things, with common quali- spectacztla together with attors and lenones (match-
ties. The distinction is of importance in obligatory makers).
relations; see GENUS. Species is also used of a spe- Spectare. Through spcctandutn cst the jurists used to
cific legal problem submitted for a decision or dis- call attention to specific circumstances which should
cussion. \Vhen connected with a legal institution be taken into consideration at the examination of a
(e.g., sbecics legati, fideico+ntnissi) species means the case. Spectare aliqueln = to concern a person (for
legal for111 in which an act was performed ( a legacy). instance, a debt, a risk).
Specicltt novaln facere = to make a new thing from Spectator. 4 mint official who tested coins. Syn.
a raw material; see SPECIFICATIO.I n later imperial ~zz~nzazz~1nritts.-SeeTESSERAE NUMMULARIAE.
constitutions species (in plur.) indicates natural, Regling, R E 13.
agricultural products; hence in speciebtts = in kind, Spectio. The activity and the right to observe celestial
in noturn. Sltb sjccie = under the pretext of. or other signs during the A U S P ~ C I A . They were a
Scarpello, NDI 12, 2 ; S . Perozzi, Scritti 1 (1948, ex 1890) prerogative of the highest magistrates.
241 ; Ferrini, Opere 4 (1930, ex 1891) 103 ; A, Hagerstrom, Marbach, RE 3A.
Der roiit. Obligntionsbegriff 1 (1927) 236; Savagnone, Speculatores. Soldiers or cavalrymen in the intelli-
BIDR 55-56 (1952) 241.
gence service of the army (normally ten in a legion).
Specificatio. Making one thing from another (raw Sbcrzrlatores were also ~articularlvclualified soldiers
< A
material). The term is not of Roman coinage; its who served as bodyguards of the emperor. They
origin is to be traced to the locution novaw speriewz were also employed as military couriers. At times
faccre; see SPECIES. Juristically specificatio becomes specztlator indicates an executioner.
iinportant if a person makes a thing from another's Lammert, R E 3 A ; Cagnat, DS 4, 637; Jones, J R S 39
material without the latter's authorization; the prob- (1949) 44; 0. Hirschfeld, Kleine Sclzriften (1913) 585;
lei11 as to who is the owner of the nova species, the 598.
owner of the material or the worker (the maker), Spes. See EMPTIO SPEI,E M P T I O REI SPERATAE.
was lariely discussed by the jurists and not always Bartoiek. R I D A 2 (1949) 20.
decided according to the same principle. The opin- Splendidiores personae. See HONESTIORES.
ions of the two schools, the Sabinians and Proculians. Spernere. T o repudiate (e.g., an inheritance, a legacy),
differed in this respect. Justinian solved the problem to reject, to condemn (the decision of an arbitrator
froin the point of view of the reducibility of the new in order to sue one's adversary before an ordinary
thing (nova species) to its former shape. If the new court)
thing was made partly from the maker's material, it Spolia. Weapons and armor taken from an enemy in
became property of the maker. For the various types time of war. They became the property of the vic-
of specifiratio, see COMMIXTIO, CONFUSIO, CONIUNC- torious soldier who killed him. Spolia was also used
TIO, TEXTURA, TABULA PICTA, ACCESSIO, PLANTA, of what a person condemned to death had on himself
SATIO. before his execution. H e was stripped of them and
Weiss, R E 3.4; Lecrivain, D S 4 ; R. Piccard, Recherchrs the executioner had the right to claim them.-See
stir l'ltist. de la s. (ThPse Lausanne, 1926) ; De Martino, SPECULATORES.
RDNav 3 (1937) 179; Kaser, Z S S 65 (1947) 242. Lammert, RE 3 A ; Cagnat, D S 4 ; Vogel, Z S S 66 (1948)
Speciosa persona. A person (man or woman), pri- 394.
marily of senatorial rank, who was entitled to be Spoliatio cadaveris. Larceny of property committed
distinguished by the appellative CLARISSIMUS.Syn. on a dead body.-See CADAVER.
spectabilis. Spondere. The decisive expression in the formula of
Spectabilis. An honorific title of higher officials in stipulatio by which a person promised to pay a sum
the later Empire. The spectabiles formed the second of money or assumed any obligation (spondesne ?
rank after the ILLUSTRES.They enjoyed various per- spondee). I n lieu of spondere, later other words
VOL. 43, IT.2, 19531 ENCYC1,OPEDIC DICTIONARY OF ROMAN LAW
were admitted. See STIPULATIO. The term spondcre one.-See LEX AI'ULEIA, LEX FURIA DE SPONSU, PRO-
also indicates the obligation assumed by a surety; see SI'ONSIONE, ACT10 DICPENSI, ACERE PER SPON-
VOCARE
SPONSIO, FIDEIUSSIO. SIONEM,
SPONDERE, and the following items.
Sponsa. A fiancee.-See SPONSALIA. Weiss, R E 3 A ; Anon., N D I 12; Mitteis, Fg Rekker
(1907) 109 ; E. Levy, Sponsio, fidepromissio, fideiussio,
Sponsalia. A betrothal. "Sponsalia are the promise 1907 ; idem. ZSS 54 (1934) 298; Wenger, ZSS 30 (1909)
(mentio) and the counterpromise for a future mar- 410; Partsch, ASiirhGW 32 (1920) 659; W. Iilume,
riage" (D. 23.1.1). I n ancient law the father of the Studicn ztir Akzessorietiit dcr rum. Biir.qsrhaftsstipula-
fiancee promised his daughter to the future husband tionen, 1932; G. Segri., R I D R 42 (1934) 497; Ph. Meylan,
Acreptilation et pnicmcnt (Lausanne, 1934) 69; Leifer,
or to his father in the solemn form a sponsio (ques- B I D R 44 (1936-37) 160: F. De Martino, Studi sulle
tion and answer). Later, a simple consent sufficed for qarenzie prrsonnli, 1-2 (1937, 1938) ; idem, S D H I 6
a betrothal. Sponsalia were not binding and even a (1940) 132; A. Magdelain, Essai sur les origines de la s.
penalty clause attached to the pertinent agreement (Thi.se Paris, 1943) ; J. Maillet, Ln Thhorie de Schuld
et Naftun.9 (1944) 144; Westrup, Notd sur sponsio, Kgl.
was void since "it was considered dishonest that mar- Danske Videnskab, Hist.-Filol. Meddedelser 31, 2 (1947) ;
riage be enforced by the tie of a penalty" (D. 45.1.134 Pastori, S D H I 13-14 (1948) 217; Seidl, Scr Ferrini 4
pr.). Sponsalia had nevertheless some legal effects, (Univ. Sacro Cuore, Milan, 1949) 168; M. Kaser, Uas
though of minor importance. Thus the conclusion altrom. Ius (1949) 256; Dull, Z S S 68 (1951) 209.
of a new betrothal before the former was dissolved, Sponsio. ( I n interdictal procedure.) See AGERE PER
involved infamy. A personal offense (iniuria) of t,he SPONSIONEM. INTERDICTUM.
fiancee could be prosecuted by her fiance. A fiance Sponsio. ( I n international relations.) An arrange-
could not be compelled to testify against his future ment concluded by the commanding Roman general
father-in-law and vice versa. A fiance could accuse with the enemy concerning an armistice. The com-
his fiancee of adultery. In the fourth century after mander acted on his own responsibility. The re-
Christ earnest money (arra sponsalicia) served as a diprocal duties were estal~lishedthrough the exchange
guarantee for the fulfillment of sponsalia since the of questions and answers.-See PAX.
party which broke off the betrothal without any just Neumann, RE 6, 2821; De Visscher, S t Riccobono 2
(1936) 11 ; H. LCvy-Bruhl, R H D 17 (1938) 533 (= Nou-
ground lost the arra given or had to return double vellei Etudes, 1947, 116) ; Frezza, S D H I 5 (1939) 191;
the amount received. Sponsalia could be dissolved F. La Rosa, Iura 1 (1950) 283.
by mutual consent or by a simple declaration of one Sponsio. ( I n trials concerning ownership.) See
party; see REPUDIUM.Gifts between betrothed per- AGERE PER SPONSIONEM (under 2 ) .
sons are termed sponsalia in imperial constitutions. Sponsio dimidiae partis. See SPONSIO TERTIAE
-D. 23.1; C. 5.1.-See MATRIMONIUM, ARRA SPON- PARTIS.
SALICIA (Bibl.), DONATIO ANTE NUPTIAS,F ILIA FA- Sponsio poenalis. A promise in the form of a sponsio
MILIAS, PATRIA POTESTAS, OSCULUM, REPUDIUM. (stipulatio) to pay a sum of money as a penalty in
Weiss, R E 3 A ; LCcrivain, D S 3, 1654; Koschaker, Z S S the case of non-fulfillment of an obligation or of a
33 (1912) 392; Solazzi, A T o r 51 (1916) 749; idem, St c 2
Albertoni 1 (1935) 42; Volterra, B I D R 40 (1932) 87; magisterial command (interdicturn) .-See POENA (in
idem, R I S Q 10 (1935) 3 ; idem, S D H I 3 (1937) 135; E. the law of obligations).
Herman, Die Schliessung des Verlobnisses i m Rechte Just., Sponsio praeiudicialis. See AGERE PER SPONSIONEM
Analecta Gregoriana 8 (1935) ; Massei, B I D R 47 (1940) (under 2 ) , LEX CREPEREIA.
148; Beseler, ConfCast 1940, 38; L. Anne, Les rites des
fiancailles (Diss. Louvain, 1941) ; A. Magdelain, Les ori- Sponsio tertiae (or dimidiae) partis. I n certain spe-
gines de la sponsio (1943) 98; Gaudemet, R I D A 1 (1948) cific trials any party could demand that his adversary
79; R. Orestano, La struttura giuridica del matrimonio promised through sponsio (stipulatio) to pay one-
rom., 1952, 339 (= B I D R 55-56, 1952, 221). third (tertia pars) or one-half (diwidia pars) of the
Sponsalicia largitas. Gifts given to a fiancCe by her amount claimed as a penalty in the case of defeat.
fiance. Syn, donatio sponsa1icia.-See WNATIO ANTE I n return the party who made such a promise could
NUPTIAS. demand a similar counterpromise (restipulatio dimi-
L. Caes, Le statut juridique de la s. I. echue B la m2re diae or tertiae partis) from the other party. The
veuve, 1949. recriprocal promises were given in the first stage of
Sponsio. (From spondere.) The earliest form of an the lawsuit before the praetor (in iure) and under
obligation under ius civile assumed through an oral his supervision. The purpose of these procedural
answer ("spondeo") to the future creditor's question sponsiones was to restrain inconsiderate 1itigation.-
("spondes;ze?"). The sponsio, conceived in this See CONSTITUTUM, ACTIO CERTAE CREDITAE PECUNIAE.
broader sense, was in the course of time absorbed by A. Palermo, I1 procedimento cauzionale (1942) 13.
the STIPULATIO.I n a narrower sense sponsio de- Sponsor. One who assumed an obligation as a surety.
noted the obligation of a surety who equally through The term was in earlier times probably applied to
exchange of question and answer obligated himself any person who through sponsio assumed an obliga-
to pay what another had promised; see ADPROMISSIO. tion as a principal debtor.-See SPONSIO.
This function of the sponsio was probably the earlier Daube, L Q R 62 (1946) 266.
714 ADOLF BERGER [TRANS.AMER. PHIL. SOC.
Sponsus. (Noun.) SPONSIO.-See LEX APULEIA,LEX Statio vicesimae hereditatium. A fiscal office con-
fiancC (fiancCe) .-See SPONSALIA. cerned with the inheritance taxes.-See APERTURA
FURIA DE SPONSU. TESTAMENTI, VICESIMA HEREDITATIUM.
Sponsus (sponsa). A betrothed man (woman), a Stationarii. Military police officers assigned to posts
Sponte. (With or without sua.) Spontaneously, throughout the country for the purpose of public
freely, of one's free will. The expression refers to security.-See LATRUNCULATOR.
the opposite of situations in which one is bound to do Lammert. R E 3A ; Lbcrivain, D S 4.
something by law, agreement, order of a magistrate Stationes fisci. Divisions of the fisc for the adminis-
or of the person under whose power he is, or by tration of revenue in fixed districts.
necessity (necessario, necessitate cogente) . Weiss, R E 3A, 2212.
Sportellarius (sportellaria). An exposed child.-See Stationes ius docentium et respondentium. Public
EXPONERE FILIUM. places (state buildings?) where jurists taught law
Sportulae. I n the later Empire fees to be paid to and gave opinions (responsa) in legal matters.
subaltern officials for their activity in judicial matters. Hug, R E 3A, 2210; S . Riccobono, Lineamerzti della storia
delle fonti, 1949, 65.
-C. 3.2.-See EXSECUTOR NEGOTII.
Wlassak, R E 4, 217; H ~ R ~E 3, ~ ~; e ~ ~D Si 4 ~; ~Stativa.
i ~ , A station of the state post. ' Syn. mansio,
Jones, J R S 39 (1949) 51. stati0.-C. 12.52 (52).
Sportulae decurionum. See HONORARIUM. Statores. Subordinate officials in the service of the
Hug, RE 3A, 1886 (under 2). emperor (statores Augusti) or high officials (provin-
Spurius. A child whose father is unknown ("a child cial governors). They-exercised police functions and
without a fathe;, as it were," Inst. 1.10.12). See were authorized to arrest private persons. They
VULGO CONCEPTUS.If the mother was a Roman were in Part successors of the VIGILES.
citizen, the spurius was also a Roman citizen. A Kiibler, R E 3A, 2228; Lammert, ibid. no. 2.
sfiurius became immediately sui iu& (free from Statua. A statue erected in public for, the embellish-
fiatria potestas) and proximus agnatus of his mother. ment of a place. It was withheld from the disposal
He was reckoned in favor of her IUS LIBERORUM.- of the PerSon who offered it. A PerSon who was
C. 5.12.-See FILIUS NATURALIS. honored by a public statue might act through the
Weiss, R E 3A, 1889; idem, Z S S 49 (1929) 260; Kuhit- interdictum quod vi aut clam against anyone who
schek, Wiener Studien 47 (1929) 130; Lanfranchi, StCagl removed it by force or stealth.-D. 34.2; C. 1.2.4.
30 (1946) 33. Brassloff, St Riccobono 1 (1936) 323.
Stabularius. A stable-keeper. The liability of a Statua Caesaris. See C-NFUGERE AD IjTATUAM CAE-
stabularius for the custody of horses assumed by SARIS.
agreement with the o ~ ~ n (receptu*~
er stabulaf'ii) was Statuere. T o ordain, to enact (e.g., lex, imperator
settled in the praetorian Edict, in the section con- statuit), to settle by an agreement.-See TEMPUS
cerning similar agreements with shipowners'and inn- STATUTUM.
keel'ers (receptuwz nautarum, caliponum).-D. 4.9; Statuliber. A slave manumitted in a testament by
47.5.-See RECEPTUM NAUTARUM. his master upon a suspensive condition. H e remained
De Robertis, AnBari 12 (1952) 125. a slave as long as the condition was not fulfilled. If
Stagnum. A pond.-See LACUS, F L U M I N A PURLICA. the condition consisted in an act of the slave himself
Stare (alicui rei). T o cling to, to hold on firmly to (e.g., he had to pay a certain sum to the heir, or to
(e.g., to an agreement), to fulfill exactly (e.g., a render accounts of his administration of the master's
testator's will). property), it was considered satisfied if the heir or
Stat per aliquem. It is one's fault, one is the cause another person prevented the fulfilling of the condi-
of.-See MORA. tion, and the slave became free despite the non-
Statim. Immediately. I n certain situations the jurists fulfillment of the testator's wish.-D. 40.7.-See
atlmittecl a rather liberal interpretation of the term MANUMISSIO SUB CONDICIONE.
if a payment had to he made statim. "It is under- Weiss, R E 3 A ; G. Donatuti, L o s., 1940; Bartoiek, R I D A
stood, of course, with a moderate extension of the 2 (1949) 32.
tinIe if something is to he paid immediately7' (D. Status. Generally indicates a legal situation or con-
46.3.105) .-See S I N E DIE. dition. With regard to an individual, the term refers
Statio. A pulllic place (at a forum or market) or an either to his official rank or to his position as a free
office where a TARET.T.TO exercised his notarial activity. citizen and head of a family. In the latter
statio. seeNAVTGTUM. .ytatio is also a station of the sense it is syn. with CAPUT. In the distinction status
state postal service; syn. MANSIO, STATIVA. libertatis, status civitatis, and status fa~.tziliaeonly the
Humhcrt, D S 1, 1655. first occurs in the sources. A change in one of these
Statio. I n military service. A station of military three fundamental ele~nentsof the legal status of an
guards.-See STATIONARTI. intlividual, lil~erty, citizenship, and headship of a
Lammert, RE 3A, 2211, 2213. family (mzttntio, pcrmutnfio stntlrs), cotild either im-
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 715
prove his legal condition (when a slave became free, Stellionatus. A crime committed by fraud, trickery,
a foreigner became a Roman citizen, a person alieni deception, or cheating, if such a wrongdoing in
i u r 3 became sui iuris) or make it worse (loss of specific circumstances is not qualified as another
freedom, of citizenshipTor of the position as head of crime (si aliuilz crimen non sit), for instance, a theft
a family). When the status of a person was doubtful (furtuwz) or forgery (falsum). There is no defini-
(quaestio, controversia status), in. particular when tion of stellionatus in the sources. The fornlula de-
it was uncertain whether he was free. free-born or fining that "what in private controversies gives origin
a slave, his condition was examined in a trial; see to an actio is in criminal matters prosecuted as stellio-
CAUSA LIBERALIS.-D. 1.5; C. 3.22.-See CAPUT, ntztus" (D. 47.20.3.1), is not precise enough to per-
Weiss, RE 3A,2433; LCcrivain, D S 4 ; Orestano, N D I 12; natus. Evil intention, deceit, shrewdness (calliditas).
Cicu, S t Simoncelli 1917, 61; Allen, LQR 46 (1930) 277. imposture (impostura) are mentioned in the various
Status civitatis. The legal status of a person as a cases of stellionatus, which seemingly primarily ap-
Roman citizen. Ant. the status of a stranger (PERE- plied to fraud in commercial relations. Perjury could
Status defuncti. T h e legal status of a person before was brought before the competent magistrate (prac-
his death, primarily th; question of whether he was fectus urbi, a provincial governor), it depended upon
free or a slave. I t could not be the object of a trial his decision whether or not a criminal proceeding
if five years elapsed after his death.-D. 40.15; C. (extra ordinem) would be started against the accused.
Status familiae. T h e legal connection of a person status of the culprit, temporary banishment for HO-
with a family either as its head (pater familias) or NESTIORES, forced labor for HUMILIORES.-D. 47.20;
C. 9.34.
Status legitimus. The age of majority. Pfaff, RE 3A; Beauchet, D S 4; Brasiello, AJDI 12; Vol-
terra, StSos 7 (1929) 107.
Status libertatis. The legal status of a person of
being free, and not a slave. With regard-to a free Stemma cognationum. A genealogical tree. :I pic-
person the question might arise as to whether He was ture containing the names of relatives (ascentlants in
free-born or a freedman.-See LIBERTAS,MANUMIS- six generations and descendants) of a person was
SIO, CAPITIS DEMINUTIO, STATULIBER, CAUSA LIBERA- found in some manuscripts of the LEX R O M A N A VISI-
LIS, LIBERTINITAS, INGENUITAS. GOTHORUM.
Editions : in all collections of pre-Justinian legal sources,
Status pristinus. The former factual or legal state see General Bibl. Ch. X I I ; the most recent one in FIR
(conditiori, situation) of a thing or a person.-See 1 (1940) 633.-Ferrini, Opere 1 (1926, ex 1900) 224; Po-
RESTITUERE, RESTITUTIO I N INTEGRUM. land, RE 3A.
Status rei publicae. The existence, organization, wel- Stephanus. A Byzantine jurist, law professor in Con-
fare of the state. T h e expression occurs in the stantinople (or Beirut?) under Justinian. H e was,
definition of ius p u b l i c ~ ~by ~ zLlpian (D. 1.1.1.2).- however, not the emperor's collaborator in the com-
See I U S PUBLICUM. pilation of the Digest, nor is he mentioned anlong the
E. Kostermann, S . 01s politischcr tcrtrtirt1rs irt dcr Atttikr, compilers of the Code. H e wrote an annotated SLIIII-
Ir'heblisckrs Mzrselinz 86 (1937) 225; Lornbardi, A G 126 mary (see INDEX) of the Digest and was highly
(1941) 206; Berger, I~iro1 (1950) 109. thought of by later Byzantine jurists. His work was
Statuti. See MINISTRI CASTRENSES. extensively exploited for scholia to the Basilica.
Statutum. A law, an enactment. Statuta ii~zprrialin Kubler, RE 3A, 2401 ; Heimbach, Rosilica 6 (1870) 13,
= imperial constitutions. 49, 78; J. A. B. Mortreuil, Histoirc dir droit byzclrrtrrr 1
Statutum tempus. A tern1 fixed either by an agree- (1843) 132, 148; Zachariae v. Lingenthal. ZSS 10 (1889)
270.
ment of the parties involvetl concerning the date on
which a certain act ( a payment) was to 1)e per- Sterilis pecunia. Money not loaned at interest. Syn.
formed, or I)y law ( a statute, the praetorian Edict, nltmflzi stcrilcs. The adj. stcrilis is used also of a
an iii~perial constitution) for certain legal achieve- dowry (dos) from which the husbantl had no protit.
nlents, such as ~rsirrapio,for actions or exceptions, Stillicidium. See S E R V I T L ~ SS T I L L I C I D I I .
Adren, Erorros (.4rta Philol. Srtrrotro) 43 (1945) 1
rrrtio, longi telltporis prarscriptio, etc. In Justinian's
legislation, in many classical tests the general, in- Stipendiarius. See CIVITATES S T I P E N I I I A R I A I.,. I'R.\IIDIA
definite term, statrrt~ri~t t c l ~ p ~ (statuta
rs tc~ilpoya)re- STIPENDIARIA, S T I P E N D I ~ I \ I (in pu1)lic la\\.).
placed the former exact indications of periotls of Stipendium. The soltlier's pay. 1;ronl the fourth
time if the latter hat1 heen changed hy postclassical post-Christian century on the soltliers receivetl the
or Justinian's legislation. stipcndiulrz in kind (see A N N O N Awhich ) in tinles of
Seckel, in Heumann's Norrdlr.riX.oiro (1909). s.zl. stotrrc-re, shortage was replaced by money.-See ADAERATTO,
p. 553; Stella-Maranca, .4rrBot-i 1929/II, 76. DONATIVUM.
716 ADOLF BE RGER [TRANS.
AMER. PHIL. SOC.
Laruniert, RE 3.4, 2537; v. Domaszewski, Neue Hcidel- only the fact that a stipltlatio had taken place. In
Dcrycr Jc~itrbiiciicr,1900, 218 ff ; Schlossmann, Archiv f u r the course of time, however, the praetorian law
Icit. Lcsikogroplrie 14 (1906) 211.
granted an exceptio doli to the debtor if the obliga-
Stipendium. ( I n public law.) A contribution im- tion he had assumed was not based on a just cause.
posed on the defeated enemy; it served to cover the UTitnesses at the conclusion of a sfipztlatio were not
expenses of war. During the armistice the enemy necessary. The elasticity of the stipulatio together
had to pay the Roiuan soldiers' salary (stipendium). with its sinlple formality made it the most common
This inay explain how the term came to mean con- instrument for providing any promise with legal
tribution. I n later times stipendilill~was the term efficacy. Originally accessible only to Roman citizens
for land-taxes paid by provincials. The rate of the (see SPONSIO), the stipzilatio was later made available
stipendili~rrwas fixed whereas the so-called TRIBUTUM to foreigners, and not only the realm of permissible
depended upon the value of the proceeds from the Latin words was extended (in lieu of spondeo the
soil.-See PRAEDIA STIPENDIARIA. use of dare [facers] prolnittere, and, for sureties:
Lamniert, RE 3A, 2538 (under no. 2) ; Cagnat, DS 4,
1515; Schlossmann, Arch. fur lat. Lcxikograplzic 14 (1906) fidcipro~~litterc,fideiubrre) but also Greek, and per-
211 ; Ciapessoni, Stzcdi st6 Gaio, 1943, 52. haps other languages. were admitted in order to
Stips menstrua. A monthly fee paid by nlembers of respond to the needs of con~n~ercial relations with
an association (collegiunt) for common purposes other nations. I n further development, written "stipu-
(e.g., banquets, celebrations of religious nature). lations" came into use under the influence of the
Kornemann, RE 4, 437; Hug, RE 3A, 2540. practice observed by other peoples. Provisions of
Stipulari. T o accept a promise made in the form of the agreement were written and the oral promise
stipulatio. I t is the creditor who stipztlatur (reus embraced in one phrase the promise "to give all that
stipulandi), i.e., who pronounced the question to be had been written down above" (ea onznia quae supra
answered accordingly by the debtor (reus prow%?zit- scvipta stint dari), which in the opinion of the Roman
trndi). Only in exceptional cases stipzrlari is used jurists contained in fact as many stipulations as there
of the debtor ( = to promise) .--See STIPULATIO. were provisions. The written docu~nentwas in origin
Stipulatio. A A i o~ ral, solemn contract concluded in the only a piece of evidence, but later the importance of
form ot' a question (intcrrogatio by the creditor: the written agreement prevailed so that in postclassi-
"spondcsnr centuln dave?" = "do you promise to pay cal times it could be stated: "if it was written in a
one hundred ?") and an affirming answer (responsio) document (instrumentut~~) that one made a promise,
of the debtor ("sponde~" = "I promise"). The an- it is considered as if an answer were given to a pre-
swer had to agree perfectly with the question; any ceding question" (Paul. Sent. 5.7.2; Inst. 3.19.17).
difference or restriction (addition of a condition) Thus, through a fiction, which normally excluded a
made the stiptilatio void. Presence of both parties counter-proof, it was held that a stipulatio had taken
was required, and any interruption between question place (STIPULATIOINTER ABSENTES) . I n Justinian
and answer was inadmissible. Sfipulatio was used law the stipulafio appears as a written act, without
for any kind of obligation, from the payment of a any formal requirements. For an oral stipulation
cevta verba were no longer a condition of its validity;
sum of money to the most complicated performances.
the debtor's answer could be expressed by signs and
It was employed for the promise of marriage (see after a brief interval, even some slight discrepancies
SPONSALIA), the constitution of a dowry (see DOS), between question and answer were not harmful. The
the various kinds of promises in the course of a civil intervention of an interpreter was permitted if one
trial (cautiones, stipltlationes praetoriae), a NOVATIO party did not understand the language used by the
and DELEGATIO, the assumption of a guaranty for an- other. The actions from a stipz4latio available to the
other's debt (sureties), the constitution of certain creditor in the classical law were: actio certae cre-
rights on another's property (see PACTIONES ET STI- ditae pecuniae (condictio certae pecuniae), when the
PULATIONES),etc. The stipulatio was abstract in stipulatio concerned the payment of a fixed sum of
content, to wit, the cause (causa) for which the debtor money, condictio cevtae rei when the object was a
assumed an obligation was not indicated in the stipu- certa yes (an individual thing), condictio triticaria
latio (e.g., whether it was for a loan or an unpaid when things were indicated generically (as a GENUS),
price of a thing purchased). A promise made throbgh and, finally, acfio ex stipulatu, when the object was
stipzilatio was suable if the oral exchange of question not precisely defined in a way mentioned above and
and answer was performed, without regard as to the stipulatory obligation concerned a certain per-
whether there was a ground for the obligation or formance by the debtor. The classical origin of some
not. Any obligation, contracted otherwise, could be denominations of these actions is not beyond doubt.
transferred into a stipulatio (stipulatio Aquiliana, see -1nst. 3.17-19; D. 45.3; 46.5; C. 8.37; 38.-See
ACCEPTILATIO).This brought the creditor the ad- besides the following items, ACCEPTILATIO, CAUTIO,
vantage in case of a controversy that he had to prove SPONSIO, NOVATIO, N E M O ALTER1 STIPULATITR, FAVOR
VOL.
43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 717
DEBITORIS, EXPROMISSIO, DONATIO, DIES MORTIS, Stipulatio cum moriar. A stipulatio for payment at
TRANSACTIO. death ("when I shall be dying") of either party was
Weiss, RE 3 A ; Cuq, DS 4; Riccobono, NDI 12; Carrelli, valid since it was held that a man was alive at the
ibid. 904; Berger, OCD; hlitteis, Aus rom. und biirgerl. moment of his death. However, a stipulatio con-
Recht, Fg Bekker (1907) 107; Collinet, Mil Girardin
1907, 75; Riccobono, ZSS 35 (1914) 214, 43 (1922) 262; cerning a payment "pridie quavn moriar" (= a day
idem. BIDR 31 (1921) 28; idem, AnPal 12 (1929) 540; before my death) or several days before the death
idem, Stipulationes, contractus, pacta. Corso, 1935 ; idem, either of the debtor or the creditor was void since
ACDR Rorna 1 (1934) 338; G. Segre, St Simoncelli 1917, until the actual death it could not be told when the
331; Scherillo, BIDR 36 (1928) 29; idem, St Borzfante 4 obligation was due. Justinian declared such a stipu-
(1930) 203; H. Steinacker, Die antiken Grundlagen der
fruhmittelalterlichen Privaturkunde (1927) 83; V . De latio valid.
Gautard, Les rapports entre la stipulatio et l'icrit stipu- Stipulatio de dolo (or cautio de dolo). A stifulatio
latoire (These Lausanne, 1931) ; F. Brandileone, Scritti imposed by the judge on the defendant in specific
2 (1931) 419 (= RStDIt 1, 1928) ; A. Segre, AG 108 circumstances, particularly in suits concerning claims
(1932) 179; idem, Annuaire de l'lnst. de Philol. et d'Hist.
orientales et slaves 7 (1944) 243 ; D. Ochsenbein, La trans- for a thing (actiones in revn). Under such a stipu-
missibilitt hereditaire de l'obligation conditionnelle ex stipu- latio the defendant stipulated that he had not com-
latu (These Lausanne, 1935) ; Leifer, BIDR 44 (1936-37) mitted, nor would commit fraud in the matter under
160; A. Hagerstrorn, Der rom. Obligationsbegriff 2 controversy. This stipulatio was a form of a stiju-
(1941) ; Archi, Scr Ferrini (Univ. Pavia, 1946) 688; G.
Lornbardi, Ricerche in tema di ius gentium, 1946, 175; M. latio iudicialis. Such a stipulatio could take place
Kaser, Das altrom. Ius, 1949, 267; Dekkers, RIDA 4 extrajudicially as when a creditor demanded a prom-
( = M i l De Visscher 3, 1950) 361; Dull, Z S S 68 (1951) ise from the debtor to abstain from any fraud in the
191; Nicolas, LQR 69 (1953) 63. fulfillment of the obligation.-See DOLUS.
Stipulatio aedilicia. A stipulatio imposed by a n aedile Stipulatio donationis. A promise of a donation made
to a party in a trial which took place under his juris- in the form of a stipulatio. T h e stipula{io created an
diction.-See, for analogy, STIPULATIO PRAETORIA. obligation of the donor to transfer the promised thing
Stipulatio aliquem sisti. The promise of a person (to pay the promised sum) to the donee.-See
who assumed the guaranty that a defendant in a trial DONATIO.
would appear in court on a fixed date.-See VINDEX, Stipulatio dotis. A promise of a dowry nlade in the
VADIMONIUM, SISTERE ALIQUEM. form of a stipz~latio.-See DOS, PROMISSIO DOTIS.
Stipulatio amplius non agi. See CAUTIO AMPLIUS Stipulatio duplae (sc, pecuniae). A stipillation by
NON AGI. the seller to pay the buyer double the price of the
Stipulatio Aquiliana. See ACCEPTILATIO. thing sold in the event of eviction of the thing by
Stipulatio argentaria. A promise made by a banker, a third person.-D. 21.2.-See EMPTIO VENDITIO,
in charge of a public auction, to the owner of the EVICTIO.
object to be sold, to the effect that the latter would P. F. Girard, Mil de droit rorn. 2 (1923) 78, 113; H. Vin-
receive the full proceeds from the sale, after deduc- cent, Le droit des idiles, 1922, 154; Kamphuisen, RHD 16
tion of the banker's fees and expenses. (1927) 610; Coing, Semittar 8 (1950) 9.
F. Kniep, S. a., Fg. der jur. Fakultat Jena, 1911 ; Platon, Stipulatio emptae et venditae hereditatis. See FIDEI-
N R H D 33 (1909) 142, 314. C O M M I S S U M HEREDITATIS.
Stipulatio certa. A stipulation in which the thing Stipulatio evictionis (or de evictione). See EVICTIO.
promised (quid = what), its quality (quale) and ~tipulatiohabere licere. A guaranty made in the
quantity (quantum) were precisely fixed. Ant. sti- form of a stipzrlatio by the seller to the buyer, to the
pulatio incerta. effect that the latter would peacefully possess and use
Stipulatio communis. A stipulation which could be the thing sold and take proceeds from it (hahere. uti
imposed during a civil trial either by the jurisdic- frui licere) .-See EMPTIO,EVICTIO.
tional magistrate (praetor, aedile) in iure or by the ~ t i ~ u l a t in i o diem. A stipztlatio in which payment on
judge in the second.stage of a civil trial (apud iudi- a fixed date is promised.
cenz) .-See STIPULATIO PRAETORIA, STIPULATIO IUDI- Stipulatio in faciendo. A promise through stipulatio
CIALIS. I n a different sense the phrase co~nlnuniter to do something, to render certain services to the
stipulari is used. I t refers to a stipulation on behalf creditor. Stipulatio operis focicndi = a sfipzllatio
of two or more creditors. concerning the construction (accomplishn~ent) of a
Stipulatio condicionalis (or sub condicione). A work. Ant. stipzrlatio in non fncicndo = a stipulatio
promise whereby one assumes a n obligation depending to abstain f r ~ > mdoing something.
on whether a certain event will happen or not.- Stipulatio incerta. See STIPULATIO CERTA.
See CONDICIO. Stipulatio inter absentes. A stiptrlatio between per-
Stipulatio conventionalis. A stipulatio based on an sons who were not together. Such a stipzrlatio was
agreement of the parties, as opposed to a stipulatio void in classical law since the stipulatory cluestion
ordered by a magistrate (stipulatio praetoria, aedi- and answer were to be exchanged without interrup-
licia) or a judge (stipulatio iudicialis). tion (intcr prarscntcs, see STIPULATIO) . Justinian
7 18 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
modified the rule in that if a written document stated an ordinary action lay against the contravening party.
that the parties were present, a counterproof was per- A refusal of the praetor's order or the absence of
initted only when both parties were in different locali- the party on who111 the stipulatio was to be imposed
ties on the day when the stipulatio allegedly took place. led to a AIISSIO I N POSSESSIONEM in favor of his atl-
Stipulatio iudicialis. A compulsory stipailatio imposed versary. If the plaintiff refused to make the stipula-
by the judge in a civil trial on one or both parties tory promise ordered by the praetor, he lost the case
during the second stage (apud iudicent), in order to through DENEGATIO ACTIONIS by the praetor. The
assure the normal continuation of the trial. praetorian stipulations were prinlarily applied for
Stipulatio operarum. See OPERAE LIBERTI. procedural purposes (see CAUTIO) . They could,
Stipulatio partis et pro parte. See PAR TI TI^ LEGATA. however, be ordered beyond a judicial trial at the
Stipulatio poenae. A stipzrlafio concerning the pay- 'equest the interested party. I n
ment of a penalty by a debtor if he failed to perform such a the adversary was sumnloned before the
his obligation as agreed upon. The penalty settled praetor.-D. 46.5.-See CAuT1O AG1,
in the stipttlafio might serve either as a substitute for CAUT1O DE CAUT1O IUDICATUM CAUT1O
PRAEDE ET VINDICIARUM.
the losses suffered by the creditor (in such a case he
Cuq, D S 4, 1520; Anon., N D I 12; JobbC-Duval, S t Ban-
might sue the debtor for the payment of the penalty fantr 3 (1930) 178; v. Woess, Z S S 53 (1933) 407; A.
without proving the amount of his actual losses) or Palerrno, I1 procedinzri~to tau,-tonale, 1942; Guarino, S D H I
as a mere penalty (poenne noinine) to be paid beside 8 (1942) 316.
the indemnification for effective losses.-See POENA Stipulatio pridie quam moriar. See STIPULATIO C U M
(in the law of obligations), SPONSIO POENALIS. MORIAR.
Debray, Revue git~traledtt droit 32 (1908) 97, 217, 289; Stipulatio pro praede litis et vindiciarum. See
Donatuti, S D H I 1 (1935) 299; Biscardi, StSerb 60 (1918) CAUTIO PRO PRAEDE LITIS ET VINDICIARUM.
589.
Stipulatio pure facta. A stipulatio not limited by a
Stipulatio post mortem. A stiP14latio under which
fixed date or a condition. Ant, stipulafio in diem,
one promised the payment of a debt after the death
stipxlatio sub condicionc (condicionalis).
of the creditor ("post 7iiortem ineauz dari spondes?")
Or after his Own death by his heir ("post
s~~~~~~~~~ rei uxoriae. See cAuTIo REI UxORIAE.
Stipulatio sortis et usurarum. A stipu/atio in which
tuarn dari spondes?"). Such stipulations were null
the payment of both principal and interest is prom-
since neither could an heir be obligated before enter- ised. Normally the promise of interest was made in
ing the inheritance nor could an obligation arise in a separate stipzilatio (stipttlatio tisurarum) .
his behalf. Consequently, a stipulatio by which the
Stipulatio sub condicione. See STIPVLATIO CONDI-
debtor assumed an obligation to the benefit of the
CIONALIS.
heir of the creditor ("do you promise to pay my
heir?") was without any legal effect. Justinian per- Stipulatio turpis. See TURPIS STIPULATIO.
illitted such stipulations.-See OBLIGATIO POST MOR-
Stipulatio usurarum. See sTIPULATIo ET uSU-
RARU M.
TE31, M A F D A T U M POST MORTEM, ADSIGNATIO LIBERTI,
ADSTIPULATIO, DIES MORTIS. Stipulator. The creditor in a stipulatio. Syn. retts sti-
Rouxel, Anltales Facultc' droit Bordeaux, S i r . jurid. 3 pulandi. "Ambiguous stipulations should be inter-
(1952) 7. preted against the creditor" (D. 34.5.26; 45.1 38.18).
Stipulatio praepostera (or praepostere concepta). Stella-Maranca, AizRari 3 (1929/II) 20.
A stipailafio under which one assumed an immediate Stipulatum. (Noun.) See STIPULATIO
obligation but made it depend upon the fulfillment Stirps. Descendants in a straight line from a common
of a condition in the future (e.g., a pron~iseto give ancestor. When an inheritance is divided in stirpes,
today when a certain event will happen afterwards). each son of the same father receives an equal part.
I n the classical law such a stipulatio was null, but All descendants of a son who died before his father
Justinian recognized its validity; payment could be receive together as much as any other son alive; if
demanded after the fulfillment of the condition. they are all of the same degree of relationship with
L. hfitteis, R o ~ Prizlatrecht,
. 1908, 180; Archi, R I S G 88 the deceased, e.g., all are grandchildren. The share
(1951) 225. of a stirps (i.e., the descendants of one son) is di-
Stipulatio praetoria. A stipulatio ordered by the prae- vided in capita (in the example mentioned among
tor in his capacity as a jurisdictional magistrate. the grandchildren) in equal portions.
Such a compulsory stipulatio could be imposed on Stela. A garment of an honorable, married woman.
one or both parties to a trial in order to ascertain -See MATRONA, TOGA.
the normal continuation of the trial and to prevent Bieber, RE 4.4; Leroux, D S 4.
an interruption as well as to assure a certain hehavior Strangulare (strangulatio). T o strangle a person
of the parties by making them assume the duty of with a rope (laqtteus) to death. This form of exe-
doing or refraining from doing something. If the cution was forbidden under the Principate.
promise embodied in the stipailatio was not fulfilled, Pfaff, RE 4.
VOL. 43, PT. 2, 19531 E N C Y C L O P E D I C D I C T I O VARY O F ROMAN LAW 719
Stratores. In the late Empire, subaltern officers in married woman is involved. Both parties were pun-
the imperial palace who took care of the emperor's ished by seizure of half of their property; the woman
horses. The stratores were subordinates of the c o ~ ~ l e s was acquitted if the man had used violence.-C. 9.9.
stabuli (the equerry). There also were stratores in -See MERETRIX.
the service of the praefectus urbi and provincial gov- Pfaff, R E 4.4; LCcrivain, DS 4 ; Guarino, ZSS 63 (1943)
184.
ernors in imperial provinces. Superintendents of
prisons were also called stratores.-C. 12.24.-See Stuprum cum masculo (puero). Pederasty. Origi-
CUSTOS. nally it was punished by death, later only with a fine
Lammert, R E 4A. of money. In the later Empire the death penalty was
Strena. A gift donated on the occasion of a festivity, inflicted again.-See LEX SCANTINIA.
Pfaff, R E 4.4, 424; Lbcrivain, D S 4, 1547.
in particular on New Year's Day (quod Kalendis
Januariis dari solet = what is used to be given on Suadere. T o give advice. The term is used of the
ICalends of January), e.g., to physicians. activity of lawyer's when consulted by clients for
legal advice.-See CONSILIUM.
Strepitus. A noise, a din. I n the language of the later Suae aetatis fieri. Not a precise technical term. It
imperial constitutions the term refers to voices of the may mean to become either maior (over twenty-five
audience in a court-room during a criminal trial. years of age) or Pztbes (over fourteen, see IMPUBES).
Hence it denotes sometimes a criminal proceeding. Berger, R E 15, 1862
Strictus. Rigorous, governed by precise rules.-See Suae mentis esse (fieri). T o be (become) mentally
IUS STRICTUM, IUDICIA BONAE FIDEI. sound. Ant. suae vzentis (or szrtrs) non esse = to be
Pringsheim, ZSS 42 (1921) 65. insane.
Structores. Workers (such as masons, carpenters, Suae potestatis esse. See SUI IURIS.
etc.) active in building a house or a ship. Primarily Suarii. Swine dealers. In the later Empire they were
freedmen and slaves, they were organized in associa- compulsorily organized in associations, as other food
tions (collegia). merchants.-C. 1.17.
Hug, R E 4 A ; Saglio, DS 5. Hug, R E 4A, 469; 12, 689; Baudrillart, DS 4, 923.
Studium (studia). Study, learning. Stzcdiorum causa Sub. (When prefixed to the title of an official.) An
= for the purpose of learning. Absence for such a assistant official, subordinate to the head of an office
reason was taken into consideration as an excuse (e.g., sztbcztrator operutn fiztblicoruln, subcurator
when a person was obliged to appear before a public aediutn sacrarztln, subpraefectus, sztbprocurator) .
authority (iustissit+za causa = the most just cause). Sub modo.
See DONATIO SUB MODO,L EGATUM SUB
law, a practicing lawyer (not a iurisconsultus en- Subdole. Deceitfully, deceptively. Syn. do1osc.-See
for setting up real securities in general.-See PRAEDIA puberty after becoming heir. In the later develop-
SUBSIGNATA. ment (still in classical law) it was held that a pupil-
Hardy, Three S p a n i ~ hcharters, 1912, 78. lary substitutio implied automatically an ordinary
Subsistere. T o defend oneself or another in a trial substitutio (substitutio vulgaris) unless the testator
against an adversary. See LAUDARE AUCTOREM. disposed otherwise. Ant. substitutio simplex = a
When used of a legal act (e.g., a testament, a judicial substitutio limited by the testator to one of the two
judgment) = to be valid. basic forms of substitutio.-See SUBSTITUTIO, SUB-
STITUTIO PUPILLARIS.
Subsortitio. A supplementary selection of a juror in
a criminal trial if after the selection (SORTITIO)of Substitutio mutua. See SUBSTITUTIO.
jurors for a specific trial . a seat became vacant by Substitutio pupillaris. The appointment of a substi-
death or election of a juror to a magistracy).-See tute by the father for his child instituted as an heir
Kiibler, R E 4A; Ehrenberg, RE 13, 1495. child, after the acceptance of the inheritance, died
before reaching puberty, i.e., before being able to Succedere (successio). T o succeed, to take the place
make a testament. Through substitutio PuPillaris the of a person either as his successor in office or as his
father provided in his testament for a successor to his heir. In the latter case a person (successor) enters
child. Substitutio PuPillaris was permitted only in into the legal situation of a defunct person (succedere
the father's testament, and then only along with the in ius, in locum, in ius et locum defuncti) both as
institution of the child as heir in the first place. See, creditor and debtor in all his legal relations except
however, TESTAMENTUM PUPILLARE.Justinian in- those which are extinguished by death (as, e.g.,
troduced a new form of substitutio, modeled on the mandatum, societas) or are merely factual, as pos-
substitutio pupillaris (ad exemplum pupillaris substi- sessio. In postclassical and Justinian's law the terms
tutionis, C . 6.26.9) for use with insane descendants. succedere and successio were extended to cases in
The father could appoint an heir for his insane de- which one succeeded in one specific relationship of
scendant to succeed in the event that the latter did the deceased (succedere in rem, in singulas res, in
not recover sanity. This form of substitutio is called rei dominium = in the owneiship of one thing) which
in the literature substitutio quasi pupillaris. The is opposed to successio in ttniversum ius (in univer-
testator (father or mother) had, however, to appoint sum dominium, in universa bo'na = in the whole prop-
first a nearest relative of the insane, and only in the erty). It is generally accepted that the definition of
absence of relatives could he appoint an heir of his successors, preserved in the Digest (39.2.24.1a) :
own choice.-Inst. 2.16; D. 28.6; C. 6.26.-See "successors are not only those who succeed to a
CURIANA CAUSA. whole property, but also-those who succeeded in the
La Pira, St Bonfante 3 (1930) 271; Wolff, St Riccobono ownership of one thing are covered by this term,"
3 (1936) 437; Vazny, BIDR 46 (1939) 68, 47 (1940) 31; is an interpolation by Justinian's compilers. Succe-
B. Biondi, Successione testamentaria (1943) 252 ; Cosen-
tini, Ann. di dir. comp. e di st. legislativi 22 (1946) 152; dere hereditario iure = to succeed as an heir. Suc-
Perrin, RHD 47 (1949) 335, 518; idem, in Varia, Et de cessio indicates at times the right of succession, and
droit rom. (Publications de l'lnstitut de droit rom. de it is used as a collective term embracing all heirs
1)Uni.J. de Paris, 9, 1952) 267. (descendants) of a person.-Inst. 3.2. ; 5 ; 7 ; C. 6.59.
Substitutio quasi pupillaris. See SUBSTITUTIO PUPIL- -See UNIVERSITAS, SUCCESSOR, HEREDITAS, BONORUM
LARIS. POSSESSIO, HERES, SUCCESS10 I N UNIVERSUM IUS.
Substitutio reciproca. See SUBSTITUTIO. Beauchet, DS 4 ; Longo, BIDR 14 (1902) 127, 224; 15
Substitutio simplex. See SUBSTITUTIO DUPLEX. (1903) 283; Bonfante, Scr giuridici 1 (1926) 250; Am-
Substitutio vulgaris. See SUBSTITUTIO. brosino, SDHI 11 (1945) 65; 94; B. Biondi, Istituti fon-
damentali 1 (1946) 9 ; B. Albanese, La successione eredi-
Subtilitas legum. In the language of Justinian's con- taria in dir. rom. antico, AnPal 20 (1949).
stitutions, severity, rigorous formalities of the earlier Successio graduum. See BONORUM POSSESSIO INTES-
law. The expressions subtilis, subtilitas, and sub- TATI, EDICTUM SUCCESSORIUM.
tiliter when used with regard to ancient law to stress De Crescenzio, NDI 12, 960.
its rigidity, are frequently interpolated. Successio in locum prioris creditoris. Succession into
Seckel, in Heumann's Handlc.rikolt8 (1907), s.zl. subtilis;
Guarneri-Citati, Indice' (1927) 84.
the place of a prior creditor. It h'appened when the
Subtrahere.~ T o take away, to remove. The term is same thing was hypothecated successively to several
used in connection with theft. Se subtrahere = to creditors: see HYPOTHECA. A creditor earlier in
withdraw illegally from public services (munera, date had priority over creditors to whom the thing
military service). was hypothecated later. Renunciation by one credi-
Suburbanum praedium. A plot of land located in tor or extinction of his claim (e.g., by payment)
the vicinity of a city. Its possibilities for economic caused the creditor next in order to enter in his
exploitation decided whether it qualified as urban place. Such a succession could also be agreed upon
(praedium urbanuwz) or rustic land (praedium rusti- between two creditors.-D. 20.4; C. 8.18.-See IUS
cum). Praedia suburbana were among the landed OFFERENDI P E C U N I A M , POTIOR I N PIGNORE.
properties the sale of which by a guardian was pro- Successio in possessionem (possessionis). Succes-
hibited by the ORATIO SEVERI. sion into the possession of a thing. In the case of
Suburbicariae regiones. Territories bordering on succession through inheritance an heir did not auto-
Rome. They are mentioned in a few constitutions matically succeed in possession through the accept-
of the Theodosian Code. They are not specific ad-
ance of the inheritance (see ADITIO HEREDITATIS).
ministrative units.-See VICARIUS I N URBE.
Subvas. See VAS. H e had to take physical possession of all things
Subvenire. T o come to the aid. Used of judicial belonging to the estate (res hereditariae). This gave
remedies granted primarily to persons who in par- him the-opportunity to continue and complete the
ticular situations or for specific reasons deserve such usucaption-of individual things if their possession by
help. The tern1 refers to restitutiones in integrum the defunct person satisfied the conditions of usucapio.
and exceptions. -See ACCESSIO POSSESSIONIS, USUCAPIO.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 723
Successio in universum ius. See SUCCEDERE, UNI- and in criminal courts (quaestiones). For abbrevia-
VERSITAS.-For universal succession in the property tions used see A, C, U.R. T O start voting = sufra-
of a living person, see ADROGATIO,
BONORUM VENDITIO, gium inire, ferre.-C. 4.3.-See CIVITATES SINE SUF-
CONVENT10 I N M A N U M . FRAGIO, TABELLAE, IUS SUFFRAGII, LEGES TABELLARIAE,
Catalano, AnCat 1 (1947) 314. ROGATOR, DIRIBITIO.
Successio ordinum. See BONORUM POSSESSIO INTES- Kubler, RE 4A ; Saglio, DS 4 ;. De Marchi, La sinceritd
TATI,EDICTUM SUCCESSORIUM.-D.38.15. del voto nei comizi rom., RendLomb 1912, 653 ; G. Rotondi,
De Crescenzio, NDI 12, 960. Leges publicae Populi Rom. (1912) 19; Fraccaro, La proce-
dura del voto nei comizi, ATor 49 (1913/14) 600.
Successio in usucapionem. See s u c c ~ s s ~I No POS- Suffragium. (In the later Empire.) Recommenda-
SESSIONEM, USUCAPIO. tion of a person to the emperor or a high official for
Successor. One who succeeded another in office or
an official position or a special privilege. The person
as his heir.-See SUCCEDERE.-C.10.63. on behalf of whom the sufqzgator intervened usually
Successor honorarius. A person who inherited an- promised an honorarium for the servid rendered;
other's property according to praetorian law, either
the pertinent agreement = contractus sufragii. An
under a testament valid according to praetorian law imperial constitution of A.D. 394 ordered that such
or according to the order of succession on intestacy a promise had to be made in the solemn form of a
established in the praetorian edict.-See BONORUM sponsio (C. 4.3.1). Suffragium is also used of gra-
POSSESSIO. EDICTUM SUCCESSORIUM.
tuitous recommendations or interventions on behalf
Successor legitimus. An heir inheriting under ius of another.-C. 4.3.-See SUFFRAGATOR.
civile. Ant. successor honorarius, praetorius. Kubler. RE 4A, 657.
Successor praetorius. See HONORARIUS. Suggerere. To advise, to prompt, to suggest. The
Successores ceteri. All other successors who inherit verb occurs in texts suspected of interpolation. It is
beside heredes and bonorum bossessores. Wherever rare in classical language, but frequent in imperial
the successores ceteri appear along with heredes or constitutions.
with heredes and bonorum possessores the expression Guarneri-Citati, IndiceP (1927) 84.
successores ceteri is interpolated. Through this ad- Suggestio. A query or a report presented by a lower
dition the compilers wished to extend certain legal official to a higher one or to the emperor. The term
rules applicablg to heirs, to other persons who under is used primarily in imperial constitutions.
any title acquired another's property. Sui. (In a general meaning.) The next relatives of
Longo, BIDR 14 (1902) 150; Guarneri-Citati, IndiceZ
(1907) 17. a person ; persons living in the same household under
Successorium edictum. See EDICTUM SUCCESSORIUM. the one head of the family.-See suus.
Succidere. See ACTIO ARBORUM FURTIM CAESARUM. Sui iuris (esse). To be legally independent, not under
Succurrere. To help. The term is used of procedural the paternal power (patria potestas) of another.
measures (exceptions, restitutio in integrum) by Syn. suae potestatis esse. Ant. ALIENI IURIS.-See
SUUS.
which the praetor saved persons who for special
reasons (e.g., minor age) deserved protection from Suicidium. A suicide. See iONSCISCERE SIBI MORTEM.
LIBERAE MORTIS FACULTAS. "A soldier who attempted
losses. Syn. subvenire.
Suffectus. A magistrate (e.g., a consul) elected to to commit suicide and did not succeed, is to be pun-
fill a vacancy which occurred during the service year. ished by death unless he wanted to die because of
Kubler, RE 4A. unbearable pains, sickness, affliction (mourning), or
Sufferre. To bear, to undergo, to suffer (losses or for another reason; in such cases he is to be dis-
penalties) either a pecuniary fine through a decision honorably discharged" (D. 48.19.38.12).
of a magistrate (see MULTA)or a penalty to be paid Sumere arbitrum (iudicem). To take an arbitrator
in accordance with an agreement for default in ful- or judge by common agreement of the parties in-
fillment of an obligation (see POENA)or, in a civil volved in a controversy.-See COMPROMISSUM, IUDEX.
trial, the disadvantage of a LITIS AESTIMATIO. J. Mazeaud, La nomination du iudex unus, 1933, 121.
Sufficere. To suffice. Often used of an action or Sumere poenam (supplicium). To exact punishment
another procedural remedy available to a person for (e.g., the death penalty).
putting forward his claim.. Summa. An enactment by Justinian through which
Suffragator. One who used his influence to support the first Code (see CODEX IUSTINIANUS) was promul-
another in an electoral campaign for a magistracy, gated (April 16, 529). The constitution starts with
or one who intervened with the emperor in favor of the words Summa rei publicae.
another person. Any such action = sufragatio.- Summa. See I N SUMMA.
See SUFFRAGIUM. Summa (pecuniae). A sum of money ; the term is
Kubler, RE 4A. frequently connected with a noun indicating the
Suffragium. A vote, the right to vote. Sufragium origin or nature of the obligation (summa debiti,
refers to both the vote in popular assemblies (comitia) sacramenti, sponsionis, dotis, condemnationis, etc.) .
724 ADOLF BERGER [TRANS. AMER. PHIL.SOC.
S u m m a honoraria. See HONORARIUM. legislation apparently was not successful since the
Kubler, R E 4 A . prohibitions, combined with high taxes, were fre-
Summa Perusina. A summary of imperial constitu- quently repeated. See LEX AEMILIA,FANNIA,OPPIA,
tions from the first eight books of Justinian's Code, ORCHIA. Luxurious funerals were also repeatedly
entitled Adnotationes Codicum Domini Iustiniani. prohibited, first by the Twelve Tables. Later on,
The author of the Summa which was written in the the censors frequently intervened with prohibitions.
seventh or eighth century and is preserved in one The last lex sumptuaria was LEX IULIA SUMPTUARIA
manuscript (now in Perugia) , is unknown. by Augustus.
Editions : Heimbach, Anecdota 2 (1840) ; Patetta, B I D R Kubler, R E 4 A ; LCcrivain, D S 4 ; G. Longo, N D I 7 (5.v.
12 (1900).-Monti, N D I 12, 1 ; M . Conrat, Gesch. der leges sumptuariae) ; Richter, N D I 12, 1 (5x1. sumptuariae
Quellen und Literatur des rom. R . i m fruhen Mittelalter leges) ; E. Giraudias, Etudes historiques sur les lois sump-
(1891) 182; Besta, Atti Accad. Palermo 1908. tuaires (Thkse Poitiers, 1910) ; G. Rotondi, Leges publicae
Summa res. See SUMM,AE RATIONES. populi Rom. (1912) 98.
Summae. Called in the literature brief abstracts (sum- Sumptus funeris (in funus). See SUMPTUS,ACTIO
maries) of Justinian's Digest and the Code which FUNERARIA,IMPENSAE FUNERIS.-D. 11.7; C. 3.44.
were written in Greek by Byzantine jurists soon Cuq, D S 2, 1408.
after the publication of Justinian's codification to Sumptus litis (in litem). The emperor Zenon (C.
make the large legislative works more easily accessi- 7.51.5, A.D. 487) introduced a general rule that any
ble to practitioners.-See INDEX. one who was defeated in a trial, plaintiff or defendant,
Summae rationes. The general fiscal administration whether he was in good or bad faith, had to pay the
of the Roman state. The officials charged with the victorious adversary the expenses connected with the
pertinent duties = tabularii summarum rationurn. trial. Syn. expensae litis.-C. 7.51.-See CALUMNIA,
Syn. summa res. POENA TEMERE LITIGANTIUM.
0. Hirschfeld, Kais. Vemaltungsbeamte' (1905) 32. Chiovenda, B I D R 7 (1894) 275; idem, R I S G 269 (1898)
3, 161 ; H. Erman, Restitution des frais de procks en dr.
Summatim cognoscere. A summary, simplified pro- rom., Lausanne, 1892.
cedure applied in the COGNITIO EXTRA ORDINEM in Sumptum ludorum. Expenses connected with the ar-
specific civil cases when a speedy investigation of the rangement of public games.-See LUDI, SENATUS-
matter (e.g., when alimony was sought) was desir- CONSULTUM DE SUMPTIBUS LUDORUM MINUENDIS.
able. With the cooperation of the parties the course Sumptus muneris. Expenses connected with the ful-
of the proceedings was hastened. Summatim rem fillment of public charges (MUNERA).If a person
exponere is used of lawyers who briefly summarized was assigned a certain public service together with
the case in court. others, but he alone fulfilled the duties imposed, the
Wlassak, R E 4, 213; Biondi, B I D R 30 (1921) 220; H.
Kriiger, Z S S 45 (1925) 39; Wenger, Institutes of the R. others who failed to cooperate had to reimburse him
civil procedure (1940) 324. for the expenses he incurred on their behalf.-C.
Summovere. T o exclude (e.g., from an inheritance 11.38 ; 10.69.
or guardianship). The principal application of the Suo nomine. See NOMINE.
term is with reference to procedural exceptions (see Supellex (suppellex). Household goods.-See LEGA-
EXCEPTIO)when the plaintiff's claim is successfully T U M SUPELLECTILIS.-D.33.10.
opposed by the defendant's exceptio. Super. When followed by an ablative it is syn, with
S u m m u m supplicium. The death penalty. Syn. ulti- de. A Grecism frequently occurring in the language
mum supp1icium.-See SUPPLICIUM. of the imperial chancery and in interpolated passages.
Summus. The highest. The superlative is primarily Guarneri-Citati, Indice' (1927) 85.
used of institutions and things that pertained to, or Superare aliquem. (When referring to a civil trial.)
were connected with, the emperor. T o be victorious over one's adversary, to win the
Sumptu publico. A t the expense of the state or a case. With reference to a criminal trial = to estab-
municipality.-See SUMPTUS. lish the guilt of the accused, to convict.
Sumptuariae leges. See the following item. Superexactio (superexigere). See EXACTIO.-C.
Sumptus. Generally all kinds of expenses (syn. I M - 10.20.
PENSAE),also those which one incurs for another in Flore, S t Bonfante 4 (1930) 345.
contractual relations or other legal situations. See Superficiariae aedes. A building built on leased land.
NEGOTIORUM GESTIO,POSSESSOR BONAE FIDEI. In a I t belongs to the owner of the land.
specific sense sumptus = expenses connected with a Superficiarius. (Noun.) One who has the right of
luxurious life. I n the Republic a series of statutes SUPERFICIES on another's land.
were issued in order to suppress the increasing luxury Superficiarius. ( Adj .) An immovable, land or build-
in Roman life (leges suwzptuariae). They prohibited ing, encumbered with the right of superficies on be-
luxurious clothes for women, the excessive use of half of a person other than the owner.-See SUPER-
jewelry, and prodigality in banquets and feasts. The FICIES.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 725
Superficies. All that is connected with the soil whether Superfluus. Unnecessary, superfluous. An imperial
it comes out from it (trees, plants, etc.) or is built constitution (C. 6.23.17) pointed out the distinction
upon, it. All this "goes with the soil" (superficies between necessary and unnecessary clauses in a con-
cedit solo, Gaius, Inst. 2.73, D. 43.17.3.7), i.e., it tract or testament. The omission of necessary clauses
becomes property of the owner (see INAEDIFICA- which are required for the validity of the act in-
TIO, PLANTATIO, SATIO)even if the material used for validated it whereas the addition of superfluous de-
constructions, plants, seed, etc., belongs to another tails because of exaggerated cautiousness did not
person.-Superficies as a right over another's prop- since "superflua non nocent" ( = superfluous additions
erty = the right to use all that is on the surface of do no harm).
another's land. The origin of superficies as far as Superindictio (superindictum). In the later Empire
buildings are concerned, arose from arrangements an extraordinary additional charge or tax levied when
made between the owner of a given piece of land and the normal taxes or public charges (nzunera) did not
the constructor of the building thereon (first on public suffice. A superindictio was primarily decreed in
land, later on private property). Under such agree- war time. The owners of large estates (possessores)
ments the builder acquired a right similar to that were the first to be charged with superindicti0.-C.
of a lessee (see LOCATIO CONDUCTIO REI), but per- 10.18.-See INDICTIO.
petual and hereditary. The superficiarizbs (= the Ensslin, RE 4 A ; Lkcrivain, D S 4 ; Thibault, Rev. gk116rale
person entitled to superficies) had a specific legal d t ~droit, de la ZPgislation 24 (1900) 112.
situation not only with regard to the owner of the Superior. I n the official hierarchy higher in rank.
land (to whom he paid an annual rent, solarium) SuPerius inzperium = the power of a magistrate
but also to third persons against whom he was pro- higher in rank; see IMPERIUM.~ n t inferior.
.
tected by a special interdict (interdictum de super- Superiores. Relatives in ascendant line.--See GRADUS.
ficiebus). In later development certain other actions Su~ernumerarii. In the later Empire, See MINIsTRI
were granted the superficiarius, actions which nor- CASTRENSES.
mally were available to owners only. In Justinian's SuPerscriPtio. The signature of a PerSon placed on
law the superficies appears as a fully developed in- a d~cumentalongside its seal (no~nenadscribere).
stitution, as a strong right on another's property, Such an additional signature was required in testa-
protected by legal means analogous to those which ments.-See SUBSCRIPTIO.
were granted to the owner. The development of the Supersedere. T o neglect, to omit. 'l%e term is used
sufieyfic-es, though doubtful in details, shows the of failure in fulfilling one's duties and of omission
transformation of the institution from a merely ob- of certain required procedural measures in due course.
ligatory relationship to a real right (ius in re aliena) Honig, Fg R. Schmidt 1 (1932) 21.
over another's property endowed with nearly all ad- Superstitio. Used of religions other than the Roman.
vantages which resulted from ownership.-D. 43.18. Thus the emperors Severus and Caracalla spoke of
-see AEDES, USUSFRUCTUs, ~ O S S E S S I OAD INTERDICTA. superstitio Iudaica (D. 50.2.3.3). TO Christian em-
Kiibler, RE 4 A ; LCcrivain, D S 4 ; Simoncelli, NDI 12; perors any non-Christian religion was superstifio
Berger, RE 9, 1647 ; idem, Teilungsklagen, 1912, 32 ; (haeretica, paganorum, Iudaica, etc.) .-In the later
Beseler, Beitriige 2 % Kritik
~ 1 (1911) 100, 3 (1913) 169; principate the profession of new religious doctrines
G. Baviera, Scritti giur. 1 (1909) 177; Arangio-Ruiz, AG
81 (1908) 436; Rabel, Mil Girard 2 (1912) 307; Buck- "by which human minds are perturbed" (Paul. Sent.
land, R H D 17 (1938) 666; B. Biondi, La categoria romano 5.21.2) was treated as a capital crime for which
delle seroitutes (1938) 443; idem, Le servitd pvediali persons of higher social classes (HONESTIORES) were
(1946) 70 ; E. Albertario, Studi 2 (1941, e x 1911, 1912) punished with deportation.-Superstifio also occurs
409, 459; Pugliese, Temi .Emiliana 20, 4 (1943) 119 ; So-
lazzi, SDHI 3-14 (1947/8) 307; idem, RISG 86 (1949) in the meaning of an excessive, superstitious fear of
23; Branca, RIDA 4 (1950) 189; M. vogt, D~~ Erb- a divinity in a rescript of the emperor Marcus Aure-
baurecht des klas. rom. R., 1950; E. Levy, West Roman lius (D. 48.19.30) by which a person who "made
Vulgar Law, 1951, 49, 80. weak-minded individuals terrified by a superstitious
Superficies cedit solo. See sUPERFICIES, INAEDIFICA- fear of a deity" was to be punished with deportation
TIO,ACCESSIO. to an island.-See APOSTATA, CHRISTIANI,HAERETICI,
Riccobono, AnPal 3-4 (1917) 508; Wenger, Philologw 42 IUDAEI.
(1933) 254; C. A. Maschi, La concesione naturolistica Pfaff, RE 4 A ; Mommsen, Religionsfrevel, Jurist. Schrif-
(1937) 284 ; idem, St Arangio-Ruia 4 (1953) 135. ten 3 (1907, e x 1890) 389; Martroye, RHD 9 (1930) 669.
Superficium. See SUPERFICIES. Superveniens. See MALA FIDES.
Superflua non nocent. See SUPERFLUUS. Supervivere. T o survive.-See COMMORIENTES.
Su~erfluum. What remains from a Sum of money Supplere. T o complete, to make full (e.g., usucapio-
after deductions have been made, e.g., from the price nct~z,fideicommissum, aetatenz, tempus, numerunz) .
of a pledge sold if the price exceeded the debt for Guarneri-Citati, SDHI 1 (1935) 153.
which the pledge had been given.-See PACTUM DE Supplere ius civile. See us HONORARIUM.
DISTRAHENDO, HYPEROCHA. Guarneri-Citati, SDHI 1 (1935) 157.
726 ADOLF BERGER [TRANS.
AMER.
PHIL. SOC.
Supplicatio. A petition directly addressed to the em- Surdus. Deaf. A deaf person could not promise by
peror with a request for his decision in a judicial stipulatio nor accept a stipulatory promise because he
matter. Syn. libellus, preces. The supplicatio devel- was unable to hear the question or the answer. H e
oped in later times into an appeal when a petitioner was excluded from personal participation in oral
asked the emperor for a renewed examination in a transactions and from being a witness thereto. A
matter in which normally no appeal was permitted person hard of hearing (tarde exaudire) is not con-
(e.g., from judgments passed by praetorian prefects). sidered surdus.-See CURATOR MUTI,TUTOR.-D. 37.3.
-C. 1.19. Susceptor (susceptio). (From SUSCIPERE.) I n the
Arangio-Ruiz, B I D R 49/50 (1947) 55. financial administration of the later Empire = a col-
Supplicationes. Bloodless sacrifices performed by pri- lector of taxes in money or in kind (grain, wine =
vate persons at home. Supplicationes also were sacri- sztsceptor vini, clothes = susceptor vestium) .-C.
fices celebrated by the whole nation and arranged by 10.72; 11.17.
public authorities in order to ask aid of the gods in Lammert, R E 4A.
times of national calamity or to thank them in the Suscipere. I n financial administration of the later
case of a happy event. Empire, see SUSCEPTOR.
Wissowa, RE 4.4; Toutain, DS 4 ; Rose, OCD. Suscipere. I n contractual and obligatory relations, to
Supplicium. Death, death penalty, penalty in general. assume a unilateral obligation (e.g., qnandatuu~,de-
For the kinds of execution, see POENA. p o s i t ~ ~commodatum)
, , to incur a debt (suscipere
Pfaff, RE 4A; LCcrivain, DS 4 ; Heinze, Arrhiv fur lat. ~nzltuunz, stiscipere aes alienum). Suscipere obliga-
Lexikogvaphie 15 (1908) 98 ; V. Brasiello, La repressiotte tionem = to assume an obligation as one's own or for
pettale, 1937, 246; Vergote, Les prittcipaux nzodes de szrp-
plice, Bz~ll.litst. Hist. Belge de Ronzc 10 (1939) 141. anothet (suscipere obligationem alienam) by releas-
Supplicium fustuarium. See FUSTUARIUM SUPPLI- ing the principal debtor or as his surety (fideiussor).
CIUM. Suscipere actionem (iudicium, litem). I n civil trials,
Supplicium servile. See SERVILE SUPPLICIUM,CRUX. wherl referring to the formulary procedure, this is
Supplicium summum. See S U M M U M SUPPLICIUM. synonymous with accipere iudiciuln (see LITIS CON-
Supplicium supremum. See S U P R E M U M SUPPLICIUM. TESTATIO). With reference to the procedure through
cognitio extra ordinem the term indicates that the
Supplicium ultimum. The death penalty. Syn. szint-
defendant assumed the role of the plaintiff's adver-
ltzuln supplicium, supremuvtz suppliciuln.
sary in the trial. Suscipere defensionem = to assume
Supponere. I n later imperial constitutions to give the defense of a defendant.
a creditor a thing as a pledge.
Suscipere filium (liberum). T o beget a child. Sus-
Supponere partum. See PARTUS SUPPOSITUS. Syn. cipi = to be born (susceptus) . Suscipere filiuln alie-
subicere partu~~z.--See SUBDITICIUS. nttm = to adopt another's child.
Supposita persona. See INTERPOSITA PERSONA. Berger, Jour. of juristic bapyrology 1 (1945) 30 (= B I D R
Suppressio. See SUPPRIMERE. 55-56, Post-Bellum [I9511 113).
Suppressor. See SUPPRIMERE SERVUM A L I E N U M . Suscipere servum alienum. T o give harbor to a slave
Supprimere (suppressio). T o conceal, to hide a thing who had left his master. Keeping the slave secretly
in order to defraud another ( a creditor, the fisc), (celare, supprimere) against the will of his master
to embezzle. was considered a crime (see PLAGIUM) and punished
Supprimere servum alienum. T o conceal another's under LEX F A B I A . - ~ SUPPRIMERE
~~ S E R V U M
ALIE-
was punished under the LEX FABIA. Suspectus. See HERES SUSPECTUS,SATISDATIO SUS-
Supprimere tabulas (testamentum). T o conceal a PECTI HEREDIS, TUTOR SUSPECTUS, IUDEX SUSPECTUS,
testament (or a codicil) to the detriment of the heir SUSPECTUS REUS.
instituted therein (or a legatee). See INTERDICTUM Suspectus reus. A person suspected of having com-
DE TABULIS EXHIBENDIS.A slave who believed him- mitted a crime. A slave suspected of a crime could
self to have been manumitted in a testament concealed be submitted to torture in order to obtain his con-
by the heir in order to frustrate the manumission, fession if other evidence was not available.-See TOR-
was permitted to accuse the latter on that charge MENTA, SUSPICIO.
(accusatio suppressi testamenti). Suspendere (laqueo). T o hang a person with a rope.
Supremum supplicium. The death penalty. See LAQUEUS, FURCA. This kind of punishment was
Supremus. Last, final. When connected with a noun practiced on slaves by some masters. The death of
referring to the will of a person (suprema voluntas, the slave was treated as homicide (lzonzicidiuwt).-
suprewaum iudiciunl, supremae tabulae, supremae C. 9.14.
preces) or simply suprema (plur. neut.) = a testa- Suspensa. Syn. res suspensae. See ACTIO DE DEIECTIS.
ment.-see IUDICIUM SUPREMUM, VOLUNTAS SU- Suspensus sub condicione. See CONDICIO,I N SUS-
PREMA. P E N S 0 ESSE.
VOL. 43, PT. 2, 19.531 ENCYCLOPEDIC DICTIC>NARY O F ROMAN LAW 727
Suspicio. Suspicion. The emperor Trajan ordered Syngraphe. In classical law a forill of literal obliga-
that "no one should be condemned on the ground of tion (see LITTERARUM OBLIGATIO) contracted between
suspicion alone" (D. 48.19.5). peregrines (Greeks) or between a Roiuan and a
Sustinere. T o undergo (an accusation or a punish- peregrine. The term and the institution came into
ment), to suffer (losses), to be liable (for a debt, Roman legal life early through the coinmercial rela-
expenses, etc.) . tions between Rome and Greece. A syngrnplle was
Sustinere actionem (iudicium). T o suspend pro- written in two copies and sigjned by both parties;
ceedings and judgment in a trial until a preliminary each kept one copy. I t is doubtful whether a syn-
(prejudicial) question was cleared up. If, e.g., a graphe was valid if the obligation assumed therein
noxal action (see ACTIO NOXALIS, NOXA)was brought by a party was not based on a real transaction.
against a master for a wrongdoing committed by his Kunkel, R E 4A, 1384; Beauchet, D S 4 ; Moschella, N D I
slave while a proceeding concerning the slave's liberty 12, 1, 1240.
was pending, the noxal trial was to be suspended until Synopsis Basilicorum. A collection of brief abstracts
the status of the slave was established.-See DILATIO. from the BASILICA, composed in alphabetical order by
Sustinere partem actoris (rei). T o assume the role an unknown author in the tenth century. The text
of the plaintiff (or defendant) in a trial. Sustinere is preserved in several manuscripts which suggests
personnvz alicuius = to represent a person. Thus, a that the collection was widely used. The Synopsis is
tutor or a curator represents the ward; an inheritance important for the knowledge of the missing parts of
represents the personality of the defunct (personawt the Basilica. The title of the collection is "Ecloge
defuncti sustinet) . and Synopsis of the sixty books of the Basilica with
Suum. All that belongs to a person, his whole prop- references thereto, arranged alphabetically." From
erty. The plural sua is also used in the same sense. this Synopsis, termed in the literature Synopsis Mnior,
Suum. sometimes means only what is due to a person a lesser abstract, also in alphabetical topical order
(suum petere). Suum facere aliquid = to acquire was composed about the beginning of the thirteenth
ownership of a thing. century under the title Nomimon kata stoiclzeion (=
Suum aes. See AES ALIENUM. a legal book in alphabetical order). The latter is
Suum cuique tribuere. See IUS. called Synopsis Basilicoruwt Minor.
SUUS. See SUI,SUI IURIS,SUAE POTESTATIS, SUAE AETA-
Editions : S. B. Maior: Zachariae, Jzis Groeco-Ro~tznnztnz5
(1869) ; J. and P. Zepos, Jus Gmrco-Romanzrirr 5 (Athens,
TIS, SUAE MENTIS. SUUS is often used for HERES 1931).--S. B. Mittor: Zachariae, op. (it. 2 (1851) ; Zepos,
SUUS. o p cit. 6 (Athens, 1931).-J. A. B. Mortreuil, Histoire du
Suus et necessarius heres. See HERES suus ET droit bycantin 2 (1844) 435, 3 (1846) 315.
NECESSARIUS.
Suus heres. See HERES SUUS.
Suus iudex. In the language of the imperial chancery Tabellae. W a x covered wooden tablets on which the
a judge designated by law to decide upon a specific voters in a popular assembly recorded their vote in
case. legislative and jurisdictional matters through appro-
Symbolum. A sign of recognition (k.g., a ring = priate abbreviations, such as A, c, U.R. I n elections
an~rlzts),a proof of authorization ( a document, pro- of magistrates votes also were made on tablets on
vided with a seal). A messenger of a creditor had which the names of the candidates were inscribed.
to prove by a synzboluvn to the debtor that he was The pertinent rules concerning the use of tablets in
authorized to receive payment. voting = leges tabellariae.
Bickermann, R E 4A, 1088. Liebenam, R E 4, 692; Lafaye, DS 5, 5.
Synallagma. Indicated in Greek law any agreement Tabellariae leges. See TABELLAE, LEGES TABELLARIAE.
from which an obligation arose. I n Roman sources Tabellarius. A messenger (courier) charged with the
it acquired a somewhat different meaning, referring delivery of private letters (tabellae). The term seems
only to agreements from which reciprocal- (bilateral) to have been applied also to officials of the CURSUS
obligations of both parties originated (D. 2.14.7.2; PUBLICUS (post service) concerned with the move-
50.16.19) ; the authenticity of the two texts is, how- ment of the official correspondence.-See STATIO.
ever, controversial. In postclassical and Justinian's Schroff, RE 4 A ; Lafaye, D S 5.
law synallagma is synonJmous with contractus. Tabellio. A private, professional person who drew up
Seidl, R E 4A; P. De Francisci, Synallagma. Storia e dot- written documents for private individuals. The jurists
trina dei cosidetti contratti iitnominati, 1-2 (1913, 1916) ;
J. Partsch, AUSnachgelassenen Schriften (1931) 16. and lawyers advised their clients about legal prob-
syndicus. A representative of a public or private lems; the tabelliones assisted them in writing legal
corporate body (civitas, municipiz~m, collegiuw) . documents (testaments, transactions) and applications
The term is of Greek origin. Syn. actor. (libelli, preces) to be addressed to the emperor or
Seidl, RE 4A, 1333; Chapot, D S 4 ; Albertario, Studi 1 higher officials. The fabelliones exercised their pro-
(1933) 121. fession on public places (fora, markets) or in offices
ADOLF BERGER [TRANS. AMER. PHIL.SOC.
(stationes) assisted by clerks and secretaries (scribae, Tabula Bantina. See LEX LATINA TABULAE BANTINAE.
notarii). Their activity was controlled by govern- Tabula Hebana. See DESTINATIO.
mental officials who were authorized to inflict penal- Coli, Parola del Passato 6 (1951) 433 ; idem, Iura 3 (1952)
ties for fraud or negligence or for cooperation in illicit 90; Staveley, AmJPhilol 74 (1953) 1.
transactions. Justinian required every tabellio to Tabula Heracleensis. See LEX IULIA MUNICIPALIS.
obtain official permission (auctoritas), and settled Tabula ~ i c t a . See PICTURA.
rules about the formalities to be observed by a tabellio Tabulae censoriae. Registers made by the censors
in his work (C. 4.21.17, A.D. 528, Nov. 44). I n the during the registration of the population (see CEN-
case of a dispute between the parties, the tabellio was SUS). The tabulae censoriae, also called libri censorii,
obliged to testify about the conformity of the docu- were first preserved in the censors' office, but were
ment with the transaction concluded with his coop- later transferred to the state archive (see AERARIUM).
eration.-The ceiling-price schedule issued by Dio- Tabulae censoriae actually comprised all documents
cletian (see EDICTUM DIOCLETIANI DE PRETIIS)fixed connected with the activity of the censors, in par-
the fees to be paid to a tabellio, by the lines of the ticular the contracts concluded by them with private
written document.-See INSTRUMENTUM, TABULA- persons (contractors) concerning professional serv-
RIUS. ices rendered to the state.-See CENSORES, TABULAE
Sachers, R E 4A ; Lkcrivain, DS 5 ; Rota, N D I 12; M. ICTNIORUM.
Tardy, Les tabellioi~csromains (These Bordeaux, 1901) ; Tabulae ceratae. Wooden tablets covered with wax
T. Pfaff, Tabellio ~lnd Tabularius, 1905; H . Steinacker, on which writing was done with a stylus. Syn. tabulae
Die antiken Grundlogrn der fruhmittelalterlichen Privatur-
kunde (1927) 79; A. Segri., B I D R 35 (1927) 87; J. C. ceraeque. O n the use of such tablets for documents,
Brown, Origin and early history of the o$ce o f notary see TABULA. DIPTYCHUM. TRIPTYCHUM. Manv such
(Edinburgh, 1936) 17; Berger, Jour. o f Juristic Papyrol- tablets have been preserved in the mines of Transvl-
ogy 1 (1945) 37 (= B I D R 55-56, Post-Bellum [I9511 vania Pompei, and in Herculaneum.
120).
Lafaye, DS 5, 12; Editions: in the Corpus Inscrlptionum
Taberna. -4 shop used for the sale of merchandise or Latinarum and in the collections of pre-Justinian sources
for an industrial or con~mercial activity. Taberna (Fontes, see General Bibliography, Ch. X I I ) , the most
argenfaria = a banker's shop. Usually, tabernae were recent one by Arangio-Ruiz, FIR 3 (1943). For the wax
built by private individuals on public ground along tablets of Herculanum: Maiuri, L a parola del passato 1
(1946/7) 373, 8 (1948) 165; Pugliese-Carratelli, ibid. 1,
streets and roads or in the vicinity of rqarketplaces, 379; Arangio-Ruiz, ibid. 8 (1948) 129; idem, R I D A 1
with the permission of local authorities. The builder (1948) 9.-P. Kriiger, Gesch. der QuellenZ (1912) 267.
was permitted to transfer the use of the taberna to Tabulae communes munici~ii. Account books con-
another person., cerning the administration of municipalities. They
Schneider, R E 4A, 1864; Kiibler, ibid. 929; Chapot, DS 5. also contained records of contracts concluded with
Tabernarius. The owner of a TABERNA.Tabernarius private persons.
(or tabernaria) was also the keeper of a n inn-tavern. Tabulae dotales (dotis). See INSTRUMENTUM DO-
Schneider, R E 4A. TALE, TABULAE NUPTIALES.
Tabula (tabulae). A tablet used for writing, in both Tabulae duodecim. See LEX DUODECIM TABULARUM.
public and private life. See TABULAE CERATAE. The Tabulae honestae missionis. See MISSIO,DIPLOMA
administration used tabulae of bronze or of wood MILITARE.
covered with white paint (see ALBUM)for public Lammert, R E 4A.
announcements, such as publication of laws, the prae- Tabulae iuniorum. Registers of young men to be
torian Edict, and imperial enactments (see PROMUL- called to military service. The tabulae were a part
GATIO)and in public offices for records, registration, of the TABULAE ~CENSORIAE.-seeIUNIORES.
accounting books, documents, etc. See TABULAE Tabulae nuptiales. A written marriage contract. Its
PUBLICAE.I n private life the use of tabulae (in the usage appears as early as the beginning of the Prin-
plural, since normally two tablets were joined to- cipate. The contract was not a requisite for the
gether, see DIPTYCHUM)w as widespread: in the validity of the marriage. I t contained among other
household for notes on income and expenses (see things provisions concerning the dowry, its constitu-
CODEX ACCEPTI ET EXPENSI), for records of the family tion, and restitution when the marriage would be
history, in banking for account books, and generally dissolved. The tabulae nuptiales acquired particular
for all kinds of transactions and legal acts. Thus
importance in Justinian's law (C. 5.27.10, A.D. 529)
the term tabula occurs in connection with the perti- inasmuch as children born of a non-marital union of
nent contractual relation (tabula emptionis, tabula two persons who later made an instrumentunt dotale
cautionis, tabula contractus, tabula chirographi, and considered a proof of the existence of a
the like). The most frequent use is tabulae testamenti marriage), were regarded as legitimate. Justinian
= a testament.-See TESTIMONIUM PER TABULAS.
Sachers, R E 4 A ; Lafaye, DS 5 ; H . Steinacker, Die
also made a written marriage contract mandatory for
antiken Grundlagen der friihmittelalterlichen Urkunde some marriages (e.g., with a slave [Nov. 22.1 1 ; 78.31,
(1927) 82. with actresses or their daughters). Syn. tabulae
VOL. 43, PT. 2, 1 9 5 3 ) ENCYCLOPEDIC DICTlONARY OF ROMAN LAW 729
l~ranchesof the general and financial administration
M E N T U M DOTALE. (rationes) and subject to a chief, praepositus tabu-
Kiibler, R E 4A, 1949; Castelli, S D H I 4 (1938) 208; lariorum. They were organized as a collegium.
J. P. P. Levy, R D H 30 (1952) 468. Tabularii were also found in 1)rovincial and municipal
Tabulae patronatus. See PATRONUS MUNICIPII. administration as well as in the army. Their connec-
Tabulae primae. See TESTAMENTUM PUPILLARE. tion with the archives and 1)ul)licrecords in the vari-
Tabulae publicae. Talllets used in public administra- ous offices (hence their official title).
, their collabora-
,
tion, in 1)articular records of the official activities of tion in drawing ul) public docun~entsin the different
the magistrates. When the year of service of a tlomains of pul)lic administration, and their experi-
magistrate was over, his official tabulae were trans- ence in such work led in the later Empire to their be-
ferred to the A E R A R I U M POPULI R O M A N I which served ing permitted to assist private persons in writing docu-
as a general state archive under the supervision (cura ments. The activity of fabularii in the private field
tabul(zrum publicarum) of the quaestors. In the became similar to that of private notaries (TABEL-
Principate the archive was under the control of LIONES). In post-Justinian times there was no dif-
rlrratores tabzdarzim publicarum who later were re- ference between tnbelliones and tabu1arii.-C. 10.71.
placed by praefecti. Sachers, R E 4 A ; Lafaye, D S 5 ; I. Pfaff, Tabellio und
Kornemann, R E 4A. tubularius, 1905; H . Steinacker, Die antiken Grtrndlagm
Tabulae quaestoriae. The account books of the der fruhmittrlaltrrlirhclt Privatz~rkunde, 1927, 78.
quaestores, concerning financial administration. Tacere. T o be silent, to give no answer. I n classical
Tabulae secundae. See TESTAMENTUM PUPILIARE. law there were no strict rules about the significance
Tabulae signatae (septem sigillis). A written testi- of the silence of a person who gave no answer in
mony signed and sealed by (seven) witnesses to court when questioned by a magistrate or judge.
serve as evidence that a transaction was concluded 'With regard to CONFESSIO I N IURE the jurists as-
or that a legally important event happened.-See sumed that "he who is silent does not confess at all,
T E S T I M O N I U M PER TABULAS, TESTATIO. but it is true that he does not deny" (D. 11.1.11.4).
Sachers, R E 4A, 1885; Kaser, R E 5A, 1027; Lecrivain, In Justinian's Digest the compilers promoted this
D S 5, 155 ; Brassloff, ZSS 27 (1906) 217. opinion to a general rule by placing it in the final
Tabulae testamenti. ( O r simply tabulae.) A writ- title "On legal rules" (D. 50.17.142). Only with
ten testament.-D. 37.2; 38.6.-See TESTAMENTUM, reference to I N T E R R ~ G A T I O I N IURE was silence on
BONORUM POSSESSIO SECUNDUM TABULAS, BONORUM the part of a person interrogated by the magistrate
POSSESSIO CONTRA TABULAS. considered a contempt of court and interpreted in
Archi, S t P a v 26 (1941) 63. his disfavor.-In certain contractual relations the
Tabulae triumphales. See TRIUMPHUS. silence of a party could be regarded as consent in
Tabularium. An archive in which documents (tabulae) particular when the renewal of an agreement was
were kent. The central archive was the AERARIUM at issue; see SILENTIUM, TACITE.
POPULI ROMANI. See TABULAE PUBLICAE. In addi- Tacite. Secretly, not expressly stated, self-understood.
tion, there here several special tabularia, as, e.g., one Some clauses are assumed to he agreed upon (tacite
in the temple of Ceres for plebiscita and senatuscon- inesse) if the parties do not exclude them. Thus,
sulta. Tabularium Caesaris = a general archive for e.g., in a pledge of rustic lands it is self-understood
the imperial administration, the emperor's corre- that the proceeds (fructus) are, also pledged.-See
spondence, reports from provincial governors, and TACERE, SILENTIUM, and the following items.
the like. In the provinces there were a special Tacitum fideicommissum. A fideicowztnissum based
tabularizrliz for the records of the provincial adinin- on a secret agreement between the testator and the
istration and a tabularium principis ( Caesaris) chiefly heir to the effect that after the testator's death the
concerned tvith the financial administration the im- heir was to deliver the legacy to an incapable person.
perial domains included. The latter was called also Such an agreement, concluded in order to defraud the
tabulariuwz pztbliczt~ii. The municipalities had a tpbu- law, was void, the thing involved was seized by the
lariuwz civitatis. fisc, and the heir becanle I N D I G N U S and was excluded
Sachers, RE 4 A ; Lafaye, DS 5 ; Del Prete, NDI 12, 1; from any'benefit under the testament.
Richmond, OCD.
Tacitum pignus (or tacite contractum). See HYPO-
Tabularium castrense. A special archive for military
administration. In the Empire it was a part of the
imperial archive. Tabularium legionis = the archive Taciturnitas. See SILENTIUM.
Tabularius. A subordinate official in the fiscal ad- SENSUS, and the foregoing items.
ministration, chiefly concerned with taxes. Originally Tacitus consensus omnium (or populi). Alleged as
slaves (servi publici), later freedmen, occupied the the foundation of customary law.-See CONSUETUDO,
posts of tabularii who were active in the various MORES.
730 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Talio. Retaliation, infliction of the same injury on the tio was in the case of IUSIURANDUM I N LITEM. The
delinquent as that done by him. Talio was a kind judge could impose on the plaintiff as the utmost
of private vengeance which was permitted under the limit his estimation of the value of the object in
earliest law. The institution is already established in litigation.
the Twelve Tables ( V I I I 2) as a sanction in the case Kaser, R E 5 A ; Levy, Z S S 36 (1915) 64.
of M E M B R U M R U P T U M . Retaliation was carried out Tectum. A roof. Tectuln praestare (exlzibere) aliczii
by the injured person himself or in the case of his = to grant someone a dwelling. Sztb eodellz fecfo =
inability by his nearest relative. The parties might, under the same roof, in the same household. The
however, agree on a pecuniary con~pensation to be last expression was broadly interpreted by the jurists
paid by the offender (facisci de talione redimenda), in connection with the SENATUSCONSULTU~I SILANIA-
according to the Twelve Tables; in this case the IGUM which submitted to investigation and torture all
application of talio was excluded. I n the penal law slaves. living sub eodenz tecto when their master was
of the later Empire penalties for certain crimes are assassinated and the murdered not discovered.-
somewhat reminiscent of the ancient idea of retalia- Tecta sarta (from sarcire) = roofs well repaired,
tion, e.g., in case of arson the culprit was punished buildings in good condition. The question as to who
by death through burning; see CREMATIO. is obliged to repair the roof of a house is discussed
Herdlitczka, R E 4 A ; Jolowicz, T h e assessment of penal- by the jurists with regard to a usufruct and use (ztsirs)
ties in primitive law, in Cambridge Legal Essays (1926) (igreed upon or bequeathed) of the house.
203 ; Genzmer, ZSS 62 (1942) 122. 0. Karlowa, Rb'm. Rechtsgeschichte 1 (1885) 247.
Talis. When used with reference to someone or some- Telum. A missile, a weapon of any kind. The mean-
thing (tale) mentioned before, instead of is (id), this ing of the term is discussed by the jurists in connection
is not classical Latin. I t occurs frequently in inter- with the LEX IULIA DE VI PUBLICA,under which an
polated passages. aggressor who used a felum against theLvictim or an
Guarneri-Citati, Indice' (1927) 86. armed thief was guilty of violence of a higher degree.
Tangere. T o touch. The verb appears in the defini- There the term was interpreted in the broadest sense ;
tion of corporeal things : quae tangi possunt (= which telum was anything by which a man could hurt an-
can be touched upon) .-See RES CORPORALES. other, "a stone, a piece of wood or iron thrown by
Tanta. Justinian's enactment of December 16, 533, hand" (D. 50.16.233.2).-See VIS ARMATA, TURBA.
by which the Digest was promulgated. The Greek Temere litigare. See POENAE TEMERE LITIGANTIUM,
version (not a literal translation) of this constitution TEMERITAS.
is called DEDOKEN (from the initial word). Both Temeritas. Rashness, lack of caution, of 'reflection, in
constitutions are very instructive for the understand- starting a lawsuit or accusing a person of a crime.
ing of the emperor's intentions and the nature of his -See CALUMNIA, POENAE TEMERE
LITIGAXTIUM.
legislative work, made up of excerpts taken from the Chiovenda, R I S G 26 (1898) 26.
writings of the classical jurists.-See DIGESTA IUSTI- Temo. A recruit-tax, levied primarily on landowners
N I A N I , DEDOKEN. to be used for wages for mercenary soldiers and for
Ehrard, Z S S 40 (1919) 113. payments to be made as commutation for actual serv-
Tarruntenus Paternus. A Roman jurist of the second ice in the army.-See A U R U M TIRONUM.Tei~zonarii
half of the second century after Christ. H e wrote a = collectors of the tax.
treatise De re milifari (= on military matters) which Kubitschek, RE 5A; Humbert, DS 1, 579.
dealt with tactics and with legal pro1)lems connected Temperare. T o moderate, to apply moderation. In
with the military service. From one excerpt of the the language of the imperial chancery tlie term is
work (D. 50.6.7) we know of a long list of profes- frequently used of the activity of jurisdictional offi-
sionals who worked for the army and were therefore cials in moderating the consequences of a strict appli-
exempt from pulllic services (nzunera). cation of the law.
Rergcr, RE 4A, 2405; W. Kunkel, Herklwtft ~rrrd.sosicilc Tempestas. A storm. A feil~pestnsis among those
Stcll~ciz!gder ram. Jzrristett, 1952. 219. unforeseen accidents (casus forfzrifi), like inundation
Taxatio. The establishment of a niaximum to which (vis puiiiinis = flood) which were accel)ted as an
thc tlefentlant in a civil trial could be contlemnetl. excuse for non-appearance in court.
The limit was expressetl in the part of the procetlural Templa. Places (edifices) in which solenln sacrifices
formula called C O N D E I I I N A T I O through a clause start- (e.g., nitspicia) were celebrated. The esta1)lishment
ing with the wort1 diruttn.rnt ( = not exceeding, only) ant1 surveyance of triitp/a were duties of the AUcuRes.
defendant's pcculirriit (dtriizta.t.nt de pectdio). Sce Templa pagana. Pagan temples. They were ordered
B E N E F I C I I J M C O M P E T E N T I A E . - A kind
~ O ~of
~ ~f(l.r(7-
~ closed hy Constantine (C. 1.11.1, A.D. 354).
because he lost his capacity (TESTAMENTI FACTIO) T e s t a m e n t u m per aes e t libram. See MANCIPATIO
later (e.g., through capitis deiitinz~tio when he lost FAMILIAE,F AMILIAE EMPTOR,I~UNCUPATIO, PER AES
liberty or citizenship) .-D. 28.3. ET LIBRAM, TESTIMONIUM DOMESTICUM.
Testamentum iure factum. A testament made by a Kamps, R H D 15 (1936) 142; Amelotti, S U H I 15 (1949)
testator able to make a will (see TESTAMENTI FACTIO) 34.
with all the formalities prescribed for its validity Testamenturn Per nuncupationem. See NUNCUPA-
observed. TIO. According to the civil law (ius civile) the oral
Testamentum iure praetorio factum. See TESTA- declaration made before seven witnesses should be
I ~ E N T U M PRAETORIUM. pronounced in a prescribed formula (Gaius, Inst.
Testamentum iustum. See TESTAMENTUM INIUSTUII. 2.204) in which the testator referred to his detailed
Testamentum militis. A soldier's testament. I t was written dispositions. The praetor, however, granted
exempt from all formalities. Soldiers might make a BONORUM POSSESS1O SECUNDUM even when
testament "in any way they want and can" (D. 29.1.1 the prescribed formula was not pronounced. Later
imperial legislation recognized a merely oral testa-
pr.). Even a will written by a soldier, dying in battle,
with his blood on the scabbard of his sword or with ment (testamenfulgl per nuncz4pationem), without any
the point of the sword on the sand, was valid. Sev- written document, when the testator announced his
eral legal rules which were binding with regard to will and appointed heirs in the presence of witnesses.
all other testaments were not applicable to a testa- An heir thus appointed = heres nt~ncz~patzu.-See
TESTAMENTUM PER AES ET
nzentum ~izilitis. A soldier could make two testa-
Solazzi, S D H I 17 (1951) 262, 18 (1952) 212.
ments, and he could dispose of a part of his property
Testamentum (iure, rite) perfectum. See PERFEC-
while the remainder went to his heirs on intestacy.
TUS, TESTAMENTUM IMPERFECTUM.
Xeither querela inoficiosi testa?glenti nor Lex Falcidia
Testamentdm pestis tempore. A testament made in
were apl~licahle to a soldier's testament. A testa-
time of pestilence. The witnesses were not bound to
11lentui7t ~i~ilitis
was the testament the soldier made
be present simultaneously.
during his service. I t was valid for one year after
Testamentum posterius. A later testament made by a
his discharge. Justinian made, however, an important
testator in order to revoke an earlier one. See REVO-
change, restricting the privileges to soldiers engaged
CARE TESTAMENTUM. T h e first testament was
in a battle with the enemy. Syn. testalrtentultt iure
vz~litarifncfunz.-Inst. 2.11 ; D. 29.1 ; 37.13; C. 6.21. "broken" (TESTAMFNTUM RUPTUM).
rent; a tablet hung on a slave offered for sale in the guage togatus was any state official wearing the
market. Titulus is also the title of a book, of a toga as his official robe. The term was also applied
chapter in a juristic work, or of a section in the to .lawyers pleading in court (togatus fori).
praetorian Edict (e.g., titulus de in ius vocando) .- Steinwenter, RE 6A. 1666; Philipp, ibid. 1662; Ehlers, RE
The word has a specific meaning in connection with 7A, 505.
the acquisition of ownership, predominantly in the Tollere. See IUS TOLLENDI.
field of USUCAPIO. Tollere altius. See SERVITUS ALTIUS N O N TOLLENDI.
Schulz, Z S S 68 (1951) 21. Tollere legem. To abolish a statute by promulgating
Toga. The outer garment (robe, cloak) of a Roman a new one.
citizen when he appeared in public (at the forum) ; Tollere liberum. T o lift a child. According to an
hence it was called vestis forensis (garment for .the ancient custom when a married woman bore a son,
forum). The use of a toga was prohibited to soldiers, the father (pater fawzilias) lifted him up from the
foreigners, and persons condemned to exile. Origi- earth, thus denoting symbolically that he was accept-
nally women also wore a toga, but it was soon re- ing him in the family as his son. The act had no
placed by the stola, the toga being reserved for women legal significance; the omission of this gesture was
of ill fame condemned in a criminal trial (iudicium without legal effects.
publicurn) or for adultery, and for prostitutes. The Declareuil, Mtl Girard 1 (1912) 326; Perozzi, St Simon-
normal toqa - of a Roman citizen (of white wool) was celli (1917) 213 (= Scritti 3 [I9481 93; Berger, Jour. of
also called toga fiura or libera.-See TRABEA, CLAVUS. Juristic Papyrology 1 (1945) 30 (= BIDR 5S56 [I9511
Courby, DS- 5 ;' Wright, OCD ; L. Wilson, he R. toga 114) ; Volterra, Fschr Schulz 1 (1951) 388; idem, Zura
(1924). 3 (1952) 216.
Toga candida. See CANDIDATUS. Tolli. With reference to legal acts and transactions,
Toga picta. A purple robe embroidered with gold. to be annulled, to become void (e.g., a testament, an
It was one of the insignia of higher Republican offi- agreement, an obligation, a stipulation). Actio tolli-
tur = the right to sue a person is abolished.
cials, worn only on the occasion of a triumph (see
TRIUMPHUS) or other solemn celebration. The cus- Tormentum. Torture. It was applied in Roman crimi-
tom was adopted by the emperors. Syn. toga pal- nal procedure as a means to extort (torquere) from
mata.-See TOGA PURPUREA. a person suspected of a crime a confession or a testi-
Ehlers, RE 7A, 505; Courby, DS 5, 349. mony from a witness. On the other hand, tormentum
Toga praetexta. A white robe with a purple border was applied as a penalty, in particular as an aggra-
stripe. It was one of the insignia of consuls, praetors, vation of the death penalty, in the Republic only to
and priests. In the Principate the emperor wore a slaves, in the Empire also to free citizens, as, e.g.,
toga praetexta when he appeared within the walls of in the case of crimen maiestatis or murder through
Rome in public. Young men over fourteen wore the poisoning. From the late second century on, dis-
toga praetexta as a sign of manhood before they put tinction was made between honestiores and humiliores
on the toga virilis. Hence togatus (praetextatus) = inasmuch as with regard to the former torture was
a youth in the age of manhood.-See IMPUBES. applied only in the case of heinous crimes (maiestas,
Goethert, RE 6A, 1659; Regner, ibid. 1451. magia). In the later Empire torturing became more
Toga pura. See TOGA. frequent.-The use of torture in questioning witnesses
(tormentum became almost synonymous with quaes-
Toga purpurea. A toga of purple color. It was the tio) was severely criticized by jurists and by-some
toga of the kings. Later it was used by a triumphant emperors. "Many persons undergo torture through
army commander when he entered Rome after a vic- endurance so that by no means can the truth be
torious war; see TRIUMPHUS.-See TOGA PICTA. extorted from them; others instead are so unable to
Toga sordida. A dark grey toga worn when one was suffer pains that they prefer to lie than to be tor-
mourning or appeared in court as an accused. mented. It so happens that they confess in different
Toga virilis. The normal white toga of a Roman ways incriminating not only themselves but also
citizen. There was no fixed age for wearing the others" (D. 48.18.1 pr.). A slave could not be com-
toga virilis; normally young men between sixteen and pelled by torture to testify against his master. Tor-
eighteen put on the toga virilis. After a solemn cere- ture as a penalty for crimes committed by slaves was
mony which usually took place at a religious feast, practiced i n a -large measure. &lasters were per-
dedicated to Bacchus, the youth wearing the white mitted to torture their slaves if the crime was directed
toga was introduced to the forum accompanied by his against the masters themselves (until the third cen-
parents and relatives, after which he ceased to wear tury). In other cases permission to torture had to
the toga praetexta.-See IMPUBES. be secured from the authorities. For the torture of
Regner, RE 6A, 1451; Hunziker, DS 5. slaves suspected as murderers of their master, see
Togatus. A Roman citizen wearing (or having the SENATUSCONSULTUM SILANIANUM. Torture was ap-
right to wear) the toga virilis. In later juristic lan- plied as a penalty against an accuser who initiated-a
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 739
criminal trial against another for treason (crimen had to offer in the law schools.-See TRADITUR,
maiestatis) and was not able to prove his accusation. TRADITIO.
-Tormenturn is also the instrument used for tortur- Traditio. (From tradere.) The transfer of ownership
ing.-D. 48.18; C. 9.41.-See QUAESTIO PER TOR- over a res nec wzancipi (see RES MANCIPI) through the
MENTA, TALIO, FUSTIS, SUPPLICIUM FUSTUARIUM, handing over of it to the transferee by the owner.
FLAGELLUM, VERBERA, MALA MANSIO. A simple delivery of res mancipi did not transfer
Ehrhardt, RE 6A; Lafaye, D S 5; Berger, OCD. ownership (see MANCIPATIO) , the transferee acquired
Torquere. See TORMENTUM. only the so-called bonitary ownership (see I N BONIS
Torrentia flumina. See FLUMINA TORRENTIA. ESSE)which could be converted in quiritary owner-
Tortor. One who executed the torture, the torturer. ship (under ius civile) through USUCAPIO. The clas-
He is to be distinguished from the quaesitor, the sical traditio required a just cause (iusta causa) since,
official who questioned the accused or a witness.- being only a transfer of possession of a thing from
See TORMENTUM, CARNIFEX. one person to another, it had, in order to transfer
Trabea. A toga with purple and scarlet worn by the ownership, to be based on a special legal relation-
kings and in the Republic by consuls on specific ship of an obligatory or another nature between
solemn occasions. Hence trabea is used in the mean- transferor and transferee. "A simple delivery of
ing of consulship, and the adj. trabeatus is syn. with a thing never transfers ownership, unless a sale
CONSULARIS. Certain high priests, as the flamen or another just cause preceded the delivery" (D.
Dialis, and persons of equestrian rank also wore the 41.1.31 pr.). A iusta causa also was a donation.
A ,
Transigere. See TRANSACTIO. TIS), the latter was not "transmittetl" to another.
Transire. T o pass over, to devolve to, to be trans- Some exceptions from this rule, however, were atl-
ferret1 to another (e.g., an inheritance, a right or an mitted in the later law. Two cases of trans~llissioare
obligation, ownership, a legal remedy such as an particularly important. First, the so-called trans-
actio, exceptio or cluerela). missio Theodosiana (C. 6.52.1), which occurretl when
Transire a d hostem. T o desert to the enemy. Syn. a testator appointed his descendant as an heir and
transjugere.-See TRANSFUGA. the latter died before the testament was openetl (see
Transitio a d plebem. Transition from the patrician APERTURA TESTAMENTI). In such an event the heir's
order to the plebeian. This brought the new plebeian mearest descendant had the right to accept the inheri-
the advantage of his eligibility to the plebeian tribu- tance. In a much larger measure the classical rule
nate. The transition was achieved through adop- was superseded by the so-called trans~tzissio Iusti-
tion by a plel~eianperformed in an assembly of the niana (C. 6.30.19) : if an heir (a testamentary one
~)lel~eians (CONCILIUM PLEBIS) . or on intestacy) died before a year elapsed from the
Kubler, R E 6 A ; Siber, R E 21, 125; Humbert, DS 2, 1509. time he had notice of the delatio or before the time
Transitus. See I N TRANSITU. for deliberation (see DELIBERARE, T E M P U S AD DELTBE-
Translatio diminii. See TRANSLATIO IURIS. RANDUM) expired, his heirs could accept the inheri-
Translatio iudicii. An alteration in the procedural tance during the rest of the time. If an heir died
formula in a specific trial after the issue was framed without having knowledge of the inheritance con-
(LITISCONTESTATIO) . Such alteration became neces- ferred upon him, the pertinent ternis (one year or
sary when a change of a person involved in the trial the tempus ad deliberandum, respectively) ran fully
occurred, e.g., the death of the judge, appointed in in favor of his heirs.-C. 6.50; 52.
the procedural formula, or of one of the parties or P. Bonfante, Corso di dir. rom., 6 (1930) 243; B. Diondi,
Successione testamentaria (1943) 251.
his represebtative (death of a COGNITOR, withdrawal
of, or loss of citizenship by, the cognitor). Minor Transversus. See LINEA,LATUS.
complications were caused if the change concerned Trebatius, Caius T. Testa. One of the last Repuh-
other representatives of a party, a procurator (see lican jurists, contemporary with, and friend of, Cicero,
PROCURATOR in a civil trialj, a guardian or a curator. teacher of Labeo. No direct excerpt from his works
The technical side of the translatio iudicii in the events is preserved in the Digest, nor is a title of a writing
mentioned is not quite clear, in particular, whether a of his cited. Literary sources make it clear that he
new litis contestatio, a restitutio in integrum, or a wrote a treatise on civil law (de iure civil;) and an
specific agreement between the parties, confirmed by extensive work on divine law. H e enjoyed high
the competent magistrate, was necessary. It is likely esteem with the classical jurists.
that all instances of translatio iudicii were technically Sonnet, R E 6A, 2251; Berger, R E Suppl. 7, 1619; idem,
OCD.
not treated in the same way.
Kaser, R E 6A, 2160; P. Koschaker, T. i. (1905) ; J. Du- Trecenarii. Imperial officials receiving the highest
quesne, T. i. (Paris, 1910) ; Wlassak, Judikatiorlsbefehl, annual salary of 300,000 sesterces. Lower groups
SbWien 197, 4 (1921) 234. were ducenarii (with a salary of 200,000 sesterces),
Translatio iuris. The transfer of a right from one centenarii (100,000) and sexagenarii (60,000).-See
person to another either by an act inter vivos (an PROCURATORES (IN PUBLIC LAW).
agreement, a donation) or mortis causa, through Kubitschek, R E 3 ; Seeck, R E 5 (s.v. ducenarii) ; A. Segrk,
nii) = the transfer of ownership.-See CESSIO,D OMI- Trecenarius. In the army, the highest officer (cen-
NIUM.
turio) in the PRAETORIUM.
T r e s faciunt collegium. The minimum number of their names were impressed on the coins. From the
members of an association was three (D. 50.16.85). time of Augustus their official title was tresviri aere
-See COLLEGIUM. nrgento auro fEando feriundo ( = the officials to blow
T r e s partes. I n some manuscripts of the Digest a and coin bronze, silver and gold). From the third
part of the second (middle) portion (see INFORTIA- century the masters of the mint bore the title prorura-
T U M ) ,to wit, from D. 35.2.82 until the end of book tores monetae; from the time of Diocletian they were
38, appears as a separate volume starting with the appointed for each dioecesis.
words "tres jartes." The division has no essential Strasburger, R E 7 A , 515.
significance a t all; it might be a jest of the scribe Tresviri nocturni. See VrcrNTrsExvrRr. ,They were
who saw in these two words an allusion to the divi- probably predecessors of the TRESVIRI CAPITALES.
sion of the Digest into three volumes.-See VULGATA. Strasburger, R E 7 A , 518.
Kantorowicz, T R 15 (1937) 40. T r i a veiba. See DO DICO ADDICO.
Tresviri (triumviri). A body of three officials asso- Paoli, N R H 30 (1952) 297.
ciated in the same official functions. Additional words Triarii. See CENTURIO.
indicate the office and functions for which they were Larnmert, R E 7 A ; H. M. D. Parker, The Rowtan legiot~s
appointed. They acted in common or separately if (1928) 10.
they agreed upon the divisidn of their functions Tribonianus. Justinian's principal collaborator and
among themselves.-See the following items. adviser in his legislative work. H e was a member
Strasburger, R E 7 A ( s . v , triumviri) ; Lkcrivain, DS 5. of the commission appointed by the emperor for the
Tresviri aediles. ( I n municipalities.) I n some MuNI- compilation of the first Code and presided over the
,-IPIA there were three aediles instead of two commissions which composed the Institutes, the Di-
VIRI AEDILES) . gest, and the second Code. Hence the changes made
E. Manni, Per la storia dei municipi (1947) 159. by the compilers on the texts of classical juristic
Tresviri (triumviri) agris dandis (or dividundis). writings and imperial constitutions, collected for Jus-
See TRESVIRI COLONIAE DEDUCENDAE. tinian's codification, are termed in the literature
Tresviri sere argent0 aura Hand0 feriundo. See elnblemata Triboniani ("Tribonianisms"). During
TRESVIRI MONETALES. the work on the codification he was-with a brief
Tresviri capitales. Magistrates of a lower rank i n t e r r u p t i o n 4 u ~ ~ sSACRI
~ o ~ PALATII and tempo-
(magistratus minores) belonging to the group of rarily MAGIsTER OFFICIORUM. H e probably also was
VIGINTISEXVIRI. They exercised police functions in the author of Justinian's earlier Novels. H e died
Rome and fulfilled certain tasks in criminal and civil about A.D. 545. I n spite of some critical remarks
jurisdiction (arresting suspect persons, castigating about his character by a contemporary writer ( Pro-
thieves and slaves, supervising executions of persons C O P ~ U S of Caesarea) the reliability of which are not
condemned to death). They also collected pecuniary beyond doubt, Tribonianus was the most prominent
fines (mzilfae), the sum of sacrawzentum from the personality of Justinian's elloch. The emlleror speaks
party defeated (see LEGIS AcTIo S ~ C R A M E N TifI )the , of him with the highest praise. His collection of rare
sum was not deposited before. A Lex Pafiiria of an juristic works which served the compilers in the
unknown date (between 242 and 122 B.c.) ordered preparation of the Digest, is emphasizetl
their election by conzitia tributa, presided over by the by J u ~ t i n i a n(Tanfa c. 17).
pracfor ztrhanzis. The treszriri caPitalrs still existed Kiibler, RE 6 A ; Berger, O C D ; E. Stein. Bull. de la Clossc
dcs Lcttres, Acad. Royalc dc Bclgique, 23 (1937) 365.
in the third century after Christ hut most of their
functions were performed under the Principate by Tribu moveri. See
the VIGTLES. Tribuere. T o grant, to concede. The term refers to
Strashurger, R E 7 A , 518; Lhcrivain, DS 5, 413; G. Ro- legal remetlies granted both by law ( a statute) and
tondi, Lcgcs p~thliraepop~rliRomnni (1912) 312. a juristlictional magistrate. Triblccrc appears in the
Tresviri (triumviri) coloniae deducendae. Three classical definition of justice (see IUSTITIA) : ius s l r a i ~ ~ z
commissioners appointed for the foundation of a rlciquc friOucrc ( = to rentler everyone his tlue).-
colony antl the tlistribution of plots of land among See TRrr%uTro,ncTro TRIRuToRrA, ur.TRo TRIRUTA.
the colonists. Their number increasetl in the course ~ ~ i b A~ ~ ~ lfor. a court, in the open air
of time (qztinqli.eviri, schte~nviri,dcrc~lzviri)antl their (untler princiIlate) in a lIasilica. ~h~ juristlic-
official title was enlarged through the atltlition of tional llis anti his council (ran-
wortls such as agri.7 dtrndis, assi!/nnndis, iudicandis. siliztrtz) were seatetl on the fri6unnl. The sent of the
Strashurger, ICE 7 A , 511 ; Schulten, Dl: 2, 429; Bayct,
Rr71. tlcs fitrtdrs I.uti~rcs 6 (1928) 270. presiding magistrate was in the mkltlle on the front
Tresviri monetales. hfnsters of the mint. They were of the tril~unal(pro tr,i/)rinnli). 7'hc magistrate actctl
lll;igistrates of lower ran]< (ilt(l,qistvatlts ~ l ~ i n and o ~ ~ ~ YO) iri/)zfnoli W ~ C I I tlecitlctl allnut bonorlr~tz Po.$-
I,clotlgetl to the groul) of officials calletl 114. the col- scssio, tnissionrs. rrstitrrtio in intc!jr.~rrr~.: ~ l > ~ m i t i t ~ n e ~ ~ t
lective n;Lme V I G I N T I S I : X V IL'ntlcr
RI. the Rel)ul)lic of g~l;lrtlians,atlol)tiotis, mn~i~unissiolis, ant1 tlic like.
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 743
Ant. DE PLANO. Tribunal was later used in the sense VII). There were six tribuni ljrilifttm in a legion;
of a court.-See I N TRANSITU, CENTUMVIRI. one of them assumed in times of war the command
Weiss, RE 6 A ; Chapot, DS 5 ; Severini, NDZ 12, 2 ; Per- of the whole legion. I n peace time their activity was
nice, Z S S 14 (1893) 135; Kuhler, Festschrift fur 0. manifold, as described by the jurist Macer, in his
Hirschfeld (1903) 58; H . D. Johnson, The R. tribtrglal,
Baltimore, 1927; Dull, Z S S 52 (1932) 174; Wenger, Z S S work "On military matters" (de re militari) : "to
59 (1939) 376. hold. the soldiers in the camps, to make them exercise
Tribunal. ( I n a military camp.) A higher platforn~ for training, to keep the keys of the gates, to make
on which a military commander and his retinue were sometimes the rounds of the watch, to supervise the
seated. distribution of the food, to examine the grain, to
Lammert, RE 6 A , 2430. restrain frauds attempted by the furnishers of food,
Tribunatus. The office of a tribune. in military service to punish offenses, to be frequently present in the
(in the army or in the imperial guard). headquarters, to hear the complaints of the legion-
Tribuni. The following items deal with the more im- naires, to inspect their healthy conditions," etc. (D.
portant officials bearing the title of tribunus. There 49.16.12.2). Under the Principate the title fribuni
were some more functionaries called tribuni, during militum was conferred on commanders of other units
the whole period of Roman history, for some specific of a more or less military character and on officials
functions of subordinate nature.. Several of-them of the imperial administration.-See LEX LICINIA
CASSIA.
were involved in the administration of military
Liehenam, RE 6 , 1639; Parker, O C D .
supplies.
Lengle, RE 6 A . Tribuni militum consulari potestate. Military trib-
Tribuni aerarii. Originally they were officials of the con-
unes with consular power. - T h e tribuni ~ttilitu~-~t
TRIBUS charged with the payment of stipend to sol-
sulari potestate were created first in 444 B.C. in the
diers, collection of the necessarv means for this place of consuls. Their number varied from three
(tributum) imposed on the members of the to six, and they were appointed as kxtraordinary
TRIBUS,and the management of contributions and magistrates by a decree of the senate. They disap-
booty taken from the enemy. Since these functions peared as a constitutional institution in 367 B.C.when
were assigned to financially reliable persons, the term the praetorship was established.
Lengle, RE 6 A , 2448; Bernardi, RerzdLomb 79 (1945-46)
fribuni aerarii was later applied to persons classified
in higher classes of the census. A lex Aurelia (70 Tribuni numerorum. See NUMERUS.
B.c.) ordered that one-third (300) of the jurors in
criminal courts (quaestiones) be selected among the Tribuni plebis. Plebeian tribunes. The office was
tribuni aerarii, but a statute issued under the dictator created in 494 B.C. after the first secession of the
Caesar abolished that privilege. Although the census plebeians to the Sacred Mount (LTlonsSacer). The
of fribuni aerarii was lower than that of persons of tribuni plebis were originally not magistrates of the
equestrian rank (see EQUITES),they belonged to the state but officials of the plebeian'order (see PLEBS).
well-to-do group of the society.-See LEX AURELIA Their number increased gradually from two to ten.
IUDICIARIA, TRIBUS. The development of the plebeian tribunate reflects the
Lengle, RE 6 A , 2432; Treves, O C D ; Hill, AmJPhilol 67 development of the rights and social situation of the
(1946)
, * 61.
plebs. The primary function of the tribuni was the
Tribuni celerum. See CELERES. defense of the plebeians against illegal acts and abuses
Tribuni civitatis. Military commanders and high of- of the patrician magistrates (ills nllxilii, see AUXI-
L I U M , INTERCESSIO TRIBUNICIA).The house of the
ficials of the civil administration in larger cities in
the later Empire (particularly in Egypt). tribuni had to be accessible even during the night; a
Lengle, RE 6 A , 2435. tribztnus coul'd not be absent from Rome longer than
Tribuni classis. Conlmanders of navy units, probably one day. Originally the tribunes were elected by the
of a lower rank than the praefecfus classis. plebeian assemblies (see CONCILIA PLEBIS),later by
Lengle, RE 6 A , 2436. comifia fribzrfa. The office and the person of a tri-
Tribuni cohortis. Military commanders of cohortes bunus were sacrosanct (see SACROSANCTITAS) ; one
praetoriae, suborditiate to the praefectus praetorio. who violated the sacrosanctity of a trihuntts became an
Later the title was given to specific (voluntary) units outlaw (see SACER, LEGES SACRATAE). For the right
of the military forces in the field. of the tribunes to protest against the administrative
Lengle, RE 6 A , 2436. acts and legislative proposals of the magistrates (ius
Tribuni laticlavii. Among all military tribunes who intercedendi), see INTERCESSIO I N PUBLIC LAW. A
normally were of equestrian rank, they ranked high- tribtbnus had the right to convoke a gathering of the
est since they belonged to the senatorial class. plebs (CONCILIA PLEBIS),to preside over it, and to
Tribuni militum. The highest officers in the legions, make proposals of bills to the plebeian assembly on
normally of equestrian rank (see TRIBUNI LATICLA- which the plebs voted (see PLEBISCITA) . The tribunes
744 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
obtained the greatest success in the field of legisla- Tribuni voluptatum. Police officers in the later Em-
tion when they were admitted to the meetings of the pire who had the supervision of public games and
senate and were granted the right to make legislative theatrical spectacles, and the control of public morals.
proposals which after approval by the senate were Tribunicia potestas. The fullness of power conferred
transmitted to the comitia tributa for a vote. Later, on plebeian tribunes. Caesar and Augustus had the
the tribuni were authorized to convoke the senate and title tribunicia potestate conferred on them in .order
under the Lex Atiniu (149 B.c.) they obtained a seat to be inviolable (sacrosanctus) .-See TRIBUNI PLEBIS.
in the senate after their term of service. Tribunes Mattingly, J R S 20 (1930) 78; Strack, Klzo, Neue Folge
had ius coercendi (see COERCITIO) over persons who 14 (1939) ; De Visscher, SDHI 5 (1939) 101 (= h'ouvelles
offended their dignity or opposed their orders. They Etudes, 1949, 27) ; Gioffredi, SDHI 11 (1945) 37; M.
Grant, From imperiuin to auctorctas, 1946, 446.
could order the arrest of the wrongdoer which was
made by the aediles plebis or the subordinates of the Tribunicius. (Adj.) Connected with the office of a
tribuni, the viatores. I n the field of jurisdiction the tribunus plebis.
tribunes assumed the competence of the former DUO- Tribunicius. (Noun.) A retired tribune.-See AD-
VIRI PERDUELLIONIS in cases qualified as PERDUELLIO LECTIO.
and decided upon offenses against their person. Gen- Tribunus et notarius. See NOTARIUS.
erally they inflicted fines (nzultae), but they had the Tribus. A tribe. The original three tribes, Ramnes,
power to pronounce even the death penalty. The Tities, and Luceres (see RAMNES)were of ethnic
latter and higher fines (over 3020 sesterces), how- character. The later division of the territory of Rome
ever, had to be confirmed by the comitia centuriata into four tribus (ascribed to King Servius Tullius)
or tributa (for fines). Only a plebeian could be a was a local one and superseded the ethnic division.
tribune (see TRANSITIO AD PLEBEM). The tribuni In 495 B.c., sixteen country tribus were added to
had no IMPERIUM, but their legal position became in the former urban ones and after 241 B.C. there were
the later Republic very similar to that of magistrates. thirty-five tribus altogether, the original four ur-
The great importance of the plebeian tribunate is ban tribus (tribus urbanae) and thirty-one "rustic"
evidenced by the fact that Augustus based his sov- (tribus rusticae) covering the whole country. In the
ereign power primarily on tribunicia potestas, against tribus rusticae the landowners were concentrated,
whereas the city-tribus embraced (since 304 B.c.) the
which no ius, iattercedendi (either by tribunes or by
non-owners of land. The tribus rusticae became thus
magistrates) could be applied. Consequently, the more distinguished and the assignment to an urban
tribunes lost much of their prestige although their ius tribus was implied in a tribu ltloveri (expulsion from
intercedendi against the orders of magistrates, the a tribus rustica) through a NOTA CENSORIA.Each
ius airxilii, and some minor rights as well as their Roman citizen had to be registered in a tribus during
honorific privileges remained undiminished. Men- the CENSUS. The registration gave him the right
tion of tribuni plebis still occurs in the fifth century, to vote in the popular assembly of the tribus (co~?zitia
but only as an honorary title.-See moreover, IUS tributa). The division in tribus served for calling
AGENDI C U M PLEBE,L EX AURELIA, LEX CORNELIA (on to military service and taxation within the tribus (tri-
tribunes), LEX HORTENSIA, LEX PUBLILIA PHILONIS, butim). The TRIBUNI AERARII functioned as chair-
LEX P O M P E I A LICINIA, LEX ICILIA, LEX PUBLILIA men of the tribus. Their principal duty was to pay
VOLEHONIS, LEX VALERIA HORATIA, TRIBUNICIA off the soldiers of the tribus (aes militare) and to
POTESTAS. collaborate in the assessment of the landed property
Lengle, R E 6A, 2454 (Bibl.) ; Lbcrivain, D S 5; Anon., for taxation purposes. In the later Republic the
N D I 12, 2 (s.zl. tribunato) ; Momigliano, O C D ; idem, Bull. territorial basis for the enrollment into a fvibzts was
Comm. archeol. comunale di Roma, 59 (1932) 157; F. not strictly observed. Under the Principate the tribus
Stella-Maranca, I1 tribunato della plebe dalla Lex Hor- became an organization for relief of its poor members
tensia alla lex Cornelia (1901) ; B. Kiibler, Privatrecht-
liche Kompetena der Volkstribunen in der Kaiserzeit who were entitled to some help in grain and food
(Fschr 0. Hirschfeld, 1903) ; E. Meyer, Kleine Schriften, from the State. See TESSERAE FRUMENTARIAE.-See
1910, 351 ; E. Cocchia, Tribunuto della plebe (1917) ;, E. CURIAE MUNICIPIORUM.
Pais, Ricerche sulla storia 3 (1918) 3 (on Fasti tribunicii), Kubitschek, R E 6 A ; Chapot, D S 5; Momigliano, O C D ;
227; G. Niccolini, I tribuni e il processo capitale, Atti della 0. Hirschfeld, Kleine Schriften (1913) 248; Niccolini, St
Soc. Linguistica Ligure di Scienae e Lett. 3 (1924) ; idem, Bonfante 2 (1930) 235; E. Taubler, SbHeid 1929130, Heft
Historia 3 (1929) 181 ; idem, I fasti dei trib. della plebe, 4; Last, J R S 35 (1945) 30; Gintowt, Eos 43 (1948/9) 198.
1934; H . Siber, Die plebeischen Magistratureit bis zur ler
Hortensia, 1936; Brecht, Z S S 59 (1939) 271 ; G. De Sanc- Tribus municipiorum. See CURIAE MUNICIPIORUM.
tis, Miscellanea G. Mercati, 5 (1946) ; C. W. Westrup, In- Tributarius. (Noun.) A taxpayer. The term refers
troduction to early R . law, 4, 1 (1950) 91 ; Siber, R E 21, to payers of taxes of any kind. Tributarius (adj.)
169.
= connected with, or pertinent to, the payment of
Tribuni scholarurn. See SCHOLAE. TRIBUTUM.-S~~ PRAEDIA TRIBUTARIA.
Tribuni vigilum. See VIGILES. A. Segr6, Trad 5 (1947) 103.
VOI..4 3, I'T. 2, 1qs.31 ENCYCLO1'EI)IC DIC'I'IONARY O F R O M A N LAW 745
Tributim. By trihlrs, e.g., voting trib~ltiirt in the ro- Trinoctium. Three consecutive nights. T h r o t ~ g h a
~tziliatri1)uta.-See TRIIIUS, LEX VALERIA HORATIA. wife's intentional al~sencefor tllrer nights from the
Tributio. (From tribzccrc.) I1istril)ution of an insol- colnnlon dwelling with her husband, the acquisition of
vent commercial peculizli~z 1)elonging to a slave or ~rzanus (power) over her throt~gh rlsrrs was inter-
filius fal~ziliasamong its cretlitors (see ACTIO TRI- rupted. T h e rnarriage conclt~tletl throtigh cohal)i-
I~UTORIA) .--See TRIBUTUM. tntion remained vnlitl ant1 coultl 11c continuetl when
Tributoria actio. See ACTIO T R I R U T O R I A . the wife returned to the common home.-See ITSIJR-
Tributum. I n earlier times an extraortlinary charge I'ARE.
in kind imposetl (indicerc) on citizens, non-soltliers, Levy-Bruhl, T R 14 (1936) 452 (=No~r.o.Etudes [I9471
in war tinie in order to secure equipment and nourish- 72) ; Wolff, T R 16 (1938) 145; Kascr, I u ~ ( I1 (1950) 72.
lllent for the army. After a victorious war the tri- Trinundinum. See N U N ~NAI.. I P R O M VIII.(;ARII,
I.I:X
blit~twtwas sometimes reimbursed to the payers if the cAr<crr<ri\DrDr,\. Syn. frinu~ltn~rndin~drrr.
I~ootyand contribution taken from the enemy was Kroll, RE 17, 1471; Treves, O C ' I ) ; G. Rotondi, I.eqes
publicae pop. IZom. (1912) 125.
large enough to cover the expenses of the war. Syn.
Tripertita. The title of the earliest I<oman juristic
tributio. Later, tributum became a general term for
treatise, written by the jurist Sextus Aeli~is Petus
taxes ; see the following items. For tributulll in the
Catus : see AELIUS.
provinces, see T R I B U T U M SOLI,STIPENDIUM, PRAEDIA
Tripertitum ius. See TESTAMENTUM TRII~F;RTITUSI.
TRIBUTARIA.-C.10.16; 21.
Schwahn, RE 7 A ; Lkcrivain, D S 5 ; Schlossmatin, Arch. Triplicatio. See DGPLICATIO, REPLICATIO.
fiir lateittische Lexicoyraphie 14 (1906) 25; Ciapessoni, S t Triptychum. Three wooden, wax coveretl, square
su Gaio (1943) 52; L. Clerici, Ecoizomia e finanza dei R o - tablets bound together like a booklet with six ])ages.
w~alti,1 (1943) 440; Van Oven, in Tractntus tributarii, of- Pages one and six were left blank, pages from two
fcred to P . J . A. Adriani (Haarlem, 1949) 29. to five contained the text of the document (script~cra
Tributum capitis. A tax imposed on the population interior on pages two and three was sealetl 1'4. the
of certain provinces. T h e tax was not uniform. It witnesses on page four, scriptura exterior was written
was either a tax from property other than land or a on pages four and five).-See TABuraAE, T A R U L A E
poll-tax levied as a capitatio plebeia (hai19tana) which CERATAE, DIPTYCHUM.
was paid by certain groups of the population subju- P. Kruger, Gesch. der Qzrcltc~l' (1912) 267.
gated.-See CAPITATIO in the provinces. Triticaria condictio. See CONDICTIO TRITICARIA.
Schwahn, RE 7A, 68; E. H. Stevenson, R o m a n provincial Triumphator. A military commander ( a n emperor or
admi~zistratioit,2nd ed. 1949, 151 ; Tcherikover, Jozrr. of
Juristic Papyrology 4 (Warsaw, 1950) 193. a high magistrate entering Rome under an imposing
Tributum soli. A land tax, the most important in~post ceremonial (see T R I U M P H U Safter
) a victorious war.
in the provinces paid either in kind or in money. I t As an honorific title the term was applied to emperors
was based on a survey of the land and an evaluation in the later Empire.
by experts. Originally there was no difference be- Triumphus. The solemn entrance of a military com-
tween stipendiwt and tributuw ; under the Principate mander in Rome after a victorious war. Under the
distinction' was made depending upon the circum- Republic it was only a dictator, a consul, or a praetor
stance whether the province was imperial or sena- (magistrates with imperiainz) who had the right to
torial: tributunz was paid in imperial provinces, sti- celebrate the victory of his troops (or the navy,
pendiunz in senatorial.-See PRAEDIA STIPENDIARIA,
tri~rtnphttsnavalis, maritimus) in this way, if they
PRAEDIA TRIBUTARIA. were still in office (in magistratu) and a previous deci-
Schwahn, R E 7A, 10; 62; 70; Anon., NDI 12, 2. sion of the senate granting the trizr~tzphaiswas passed
Tributum temerarium. A general extraordinary tax before they returned to the city of Rome (pome-
paid voluntarily ,in times of urgent necessity (emer- riuna). Only a victory over the enemy obtained by
gency) b y well-to-do persons in order to save the bloodshed (at least five thousand enemies killed) gave
state from financial calamity. T h e money given was the right to a triumphus, according to a lex Maria
considered a loan to be repaid by the state when its Porcia of 62 B.c., which fixed penalties for com-
financial situation would improve. T k e .tribzitttvn manders who gave false information about the num-
temerariu?lz was practiced only in the Republic. ber of enemies killed in war. I n the Empire, the
Schwahn, RE 7A, 58. triuwzphzis was a prerogative of the emperor. T h e
Triginta dies. A period of thirty days. I t was applied triumphator had the right to certain special insignia
in both criminal and civil procedure on various occa- (ornallzentn triztmphalia) such as a chariot richly
sions. Its origin was perhaps in sacral law (armis- ornamented with gold, ivory, and laurels (currats
tice) from which it was by statute or custom trans- friuinplzalis), a TOGA PICTA (ztestis triumfihalis), a
ferred into legal procedural practice.-See DIES IUSTI, laurel crown (corona triumphalis) on his head, while
T E M P U S IUDICATI, LEX PINARIA, L E X CICEREIA.
another crown (made of gold) was held over his
F. Kleineidam, Personalexecution der Z w o l f Tafeln (1904) head by a public slave, etc. A lesser triulupltus
130; Dull, Fschr Koschaker 1 (1939) 27. ( ~ ~ z i n otriumplzzrs),
r called ovatio, was also granted
746 A D O L F BERGER [TRANS. AMER.
PHIL. SOC.
by the senate in cases in which the military success T u n c enim (or autem, etenim, certe, deinde). Oc-
did not justify a full triumph or when the campaign curs in interpolated texts, in particular when the
was of lesser importance.-See ACCLAMATIO. locutions follow a negative conditional phrase (nisi
Ehlers, R E 7 A ; BorzsLk, R E 18, 1122; Rohde, RE 18, . . .) and serve to define precisely the exceptional
1890 (s.7'. ouatio) ; Cagnat, DS 5 ; Cuq, DS 3, 1155 ; G. case (tunc = in that case). The locutions, however,
Rotondi, Legcs publicae populi Rom. (1912) 382.
are not an absolutely reliable criterion of interpolation,
Triumvirale iudicium. I n postclassical times three as often has been assumed.
arbitrators chosen by the parties to settle a contro- E. Albertario, Fil 36 (1911) 801; Berger, K r V j 14 (1912)
versy between them. 419 ; Guameri-Citati, Indice' 1927, s.vv. erzim, furtc.
Triumviri. See TRESVIRI. T u r b a . A riot, a turmoil. Robbery committed during
Triumviri rei publicae constituendae causa. See a riot in which many persons ("not three or four,"
LEX TITIA. D. 47:8.4:3) were engaged was more severely pun-
Tryphoninus, Claudius. A jurist of the first half of ished thah a simple RAPINA. Tztrba also refers to a
the third century, member of the council of the em- multitude of persons whom a man gathered in order
Peror S e ~ t i m i u sSeverus, a disciple of the famous to enter with violence another's house for the purpose
jurist Cervidius Scaevola. H e wrote notes (notag) of plundering. If the accomplices were armed (turba
to his teacher's work and an extensive casuistic C O ~ - c u v tells), the culprit was punished by death.-D.
Jb;rs, R E 3, 2882; W . Kunkel, Herkunft und soziale Stel- Esmein, Mi1 Girard 1 (19J2) 458.
lung der rom. Jilristen, 1952, 231.
Turbatio. A tumultuous disturbance of public order
Tubero, Q u i n t u s A'elius. A jurist of the second half and peace.-~ee TURBA.
of the last century of the Republic. H e wrote on ~ ~ sanguinis.
~ SeebLUcTUs.~ ~ i ~
constitlltional law the senate) and on the duties Turma. A small cavalry unit, normally o{ thirty caval-
a judge. Of jurist the same name, rymen, one-tenth of all horsemen attached to a legion.
was consul in 118 B.c., very little is known. H e was seeEQUITEs LEGIONIS. commander of a turma was
highly praised hy Cicero. the decurio commanding the first decuria ( = ten cav-
Klebs, R E 1, 535 (no. 155), 537 (no. 156) ; Grosso, A T o r
78 (1942/3) 180. alrymen) of the turma. The decuria was the smallest
Tuditanus, Caius Sempronius. Consul 129 B.c., the unit. In the a larger unit was the
ALA which consisted of sixteen or more tttwnae.
first jurist who wrote on public law, author of a
Lammert, R E 7A; Cagnat, DS 5.
treatise on magistracies (at least in 13 books).
Munzer, R E 2A, 1441. Turmarii. Imperial officers in the later 'Empire con-
~ ~ T~ defend,
~ ~ to protect,
i .to take care, to admin- cerned with the enlistment of recruits for the cavalry.
ister carefully (one's property, affairs). The term is Turpis. See coND1clo TURPIS,CONDICT1O OB TURFEM
CA"SAM~ RES TURPIS,and the
frequently applied to legal institutions and procedural FAMOSAEj
such a protection was not avai]able.-See ~ p s oIGRE, excluded from guardianship and could not 'Ontest a
demned. For security given by the guardian, see Tutela mulierum. Guardianship over women sui iuris,
CAUTIO R E M PUPILLI SALVAM FORE. From the time i.e., who were neither under paternal power (patria
of Constantine the ward had a general hypothec potestas) nor under that of her husband ( m n u s ) .
(hypotheca omnium bonorum) on the guardian's prop- I n the developed stage of the institution the principal
erty. The guardian could seek a reimbursement of function of the tutor mulieris was to give his authori-
his expenses made in the interest of ward through zation (auctoritas) to more important transactions
actio tutelae contraria.-In Justinian's codification the or acts performed by the woman, such as manumis-
law of guardianship was thoroughly reformed. Al- sion of slaves, acceptance of an inheritance, making
terations of ciassical texts obscured many details in a testament, assuming an obligation, alienations, con-
the development of the institution and in the field of stitution of a dowry, and the like. The women's
the guardian's duties and responsibilities. Moreover, weakness of sex (see I N F I R M I T A S SEXUS) light-
the tendency towards equalization of the different mindedgess, and ignorance of business and court-
types of tutela with respect to the £oms of appoint- affairs are given as grounds for their protection
ments contributed considerably to the confusion of The appointment a
the picture'-Inst' 1'19159 17-227 24-26; D' guardian was made in the same way as the TUTELA
by testament of the perMn in whose
26'2'1-10' 27'1-9; C' 5'2w' 71-75 ; 9'10-See power (paternal or marital) she was, by law (tutela
moreover, EXCUSATIO, POTIORIS NOMINATIO, PRAETOR
legitima of the agnates and of of the gens,
ACT'' SUBSIDIARIA,INVENTARIUM, "1
'-
gentiles, in earlier times) or by a magistrate (tutela
CULUM TUTELAE,~ABDICAT1O, IN IURECESS1O TUTELAE,. dativa). The woman could enforce the auctoritas of
ACTIO RATIONIBUS DISTRAHENDIS, CONTUTORES, USU- the guardian in the case df an unjustified refusal of
RAE PUPILLARES, and the following items. approval by applying to a magistrate. The tutela
Sachers, RE 7 A ; Beauchet and Collinet, D S 5 ; Solazzi, mulierum was still in force under Dioqetian. In the
NDI 12, 2 ; Berger, OCD 400 (s.v. guardianship) ; Renard,
N R H (1901) 634; Peters, ZSS 32 (1911) 1g8; R. Tauben- Theodo~ianCode there is no mention thereof.-See
schlag, Studien (1913) ; Solazzi, Tutele e curatete, RISG COEMPTIO FIDUCIAE CAUSA, OPT10 TUTORIS, IUS
53 (1913) 263, 54 (1914) 17, 273; idem, RendLomb 49 RORUM, VESTALES, TUTOR AD CERTAM REM, LEX
(1916) 638, 53 (1920) 121; idem, Istituti tutelar; (1929) ; CLAUDIA DE TUTELA MULIERUM, USUCAPIO EX
RUTI-
idem, StPav 6 (1921) 115; idem, St sutta tutela, Pubbl. LIANA CONSTITUTIONE~
and was to become sui iuris at the death of the tes- regard as deserving particular confidence inasmuch
tator, the nearest agnates, the same who succeeded had been selected by the testator.-Inst. 1a14;
ab intestato, had to be the guardians of the persons D. 26.2; C. 5.28.-See cAuT1o REM PUPILLI SALVAM
mentioned. If such relatives were lacking, the Twelve CONFIRMARE TUTOREM, DATIVUS.
Tables called members of the testator's gens (gentiles) Tutelaris (tutelarius). See T~~TJTEL~RIUS.
nearest in relationship. Justinian's reform of the suc- Schneider, RE 7A, 1608.
cession on intestacy (Nov. 118) devolved guardian- Tutor. A guardian. Only citizens could be
shiptothecognatesofthedeceased.-Inst.1.15;17; guardians(someexce~tio~swereadmittedinfavor
18; D. 26.4; C. 5.30. of Latins, see LATINI). Minority was a ground for
Tutela legitima parentip. A father who emancipated from assuming a guardianship; Justinian
his son (parens manumissor) before the latter became Set the age as the minimum age
pubes was under the law (see LEGITIMUS) the guard- tutors. Persons with physical defects (dumbness,
ian of the son.-Inst. 1.18.-See PARENS MANUMIS- deafness) were excluded whereas mental defects were
SOR,E MANCIPATIO. only a ground for excuse. Soldiers could not be
Tutela legitima patroni. A patron (and after his appointed as guardians. Women were not admitted
death his son) became guardian of his freedman to guardianship, since it was considered a man's work
whom he manumitted from slavery when the slave (munus masculorum, munus virile). From A.D. 390
was below the age of puberty.-Inst. 1.17. grandmothers and mothers were permitted to assume
VOL.43, FT. 2, 19531 ENCYCLOPEDIC DICTI(3NARY O F ROMAN LAW 749
the tutorship of their grandchildren or children if they Tutor honorarius (honoris causa datus). An hon-
were widows and solemnly declared not to marry orary tutor. He was free from any responsibility
again, and if there was no testamentary or legitimate since he actually did not participate in the manage-
tutor (C. 5.35.2).-For the rights and duties of a ment of the ward's affairs.
tuto?', see TUTELA.-D. 26.5 ; C. 5.34; 35.-See NOMI- Sachers, RE 7A, 1522, 1578; Levy, ZSS 37 (1916) 71.
NATIO POTIORIS. Tutor in litem. A tutor especially appointed for the
Solazzi, RISG 64 (1920) 2 ; Frezza, StCagl 22 (1934). defense of the ward's interest in a trial against his
Tutor ad augmentum datus. An additional guardian guardian. In Justinian's law a curator accomplished
appointed to assist the primary guardian when the such a task.-See TUTOR PRAETORIUS.-C.5.44.
ward's property substantially increased (e.g., through Tutor legitimus. See TUTELA LEGITIMA.
an inheritance). Tutor mulieris. See TUTELA MULIERUM.
Tutor ad certam rem. A guardian could not be ap- Tutor notitiae causa datus. A guardian appointed in
pointed for one specific affair. An exception was the a testament, in addition to the principal guardian, who
tutor praetorius, appointed for a woman under guard- had to assist and instruct the latter (ad instruendos
ianship, for the constitution of dowry if the guardian contutores') in the administration of the ward's af-
under law (tutor legitimus) was unable to exercise fairs. ~ o i m a l he l ~ w B the testator's freedman who
his functions. In the case of larger estates consist- was acquainted with the ward's affairs.
ing of distant properties the appointment of a tutor Sachers, RE 7A, 1552; Levy, ZSS 37 (1916) 49.
for certain locally delimited affairs was admissible; Tutor optivus. See OPTIO TUTORIS.
see TUTOR AD A U G M E N T U M DATUS, TUTOR ADIUNCTUS.
Tutor praetorius. In the case of a controversy be-
Tutor adiunctus. An additional tutor appointed by a tween the guardian and the ward during the guardian-
magistrate when the principal tutor was temporarily ship the praetor appointed a special tutor who pro-
unable to fulfill his duties (e.g., he became a prisoner tected the ward's interests in the trial. Under Tus-
of war).-C. 5.36. tinian's law a curator was appointed for this purpose.
Sachers, RE 7A, 1524.
-See TUTOR I N LITEM.
Tutor Atilianus. See LEX ATILIA. Peters, ZSS 32 (1911) 221.
Tutor cessans. One of two or more guardians (see Tutor suspectus. A person who for various reasons
CONTUTORES) who did not participate in the manage- (primarily of moral or financial nature) was not suit-
ment of the ward's affairs at all. Originally he was able for a specific guardianship. A guardian could
not liable but later he could be compelled by the prae- be considered suspectus not only before he started the
tor to fulfill his duties, and from the time of Marcus administration of the ward's property, but also when
Aurelius he could be sued by an actio tutelae utilis he later performed an act or concluded a transaction
for damages if he did not excuse himself within fifty from which by his fraud or negligence a considerable
days.-See TUTOR GERENS. loss resulted for the ward, or when through his in-
Sachers, RE 7A, 1577; Solazzi, RISG 54 (1914) 35.
excusable absence he proved that he did not care for
Tutor cessicius. See I N IURE CESSIO TUTELAE. the ward's interest. Theie were also other cases
Tutor dativus (datus). A guardian apbointed by a which rendered the tutor suspect, among them his
magistrate: in Rome by the praetor urbanus (see open enmity against the pupillus and his family or his
LEX ATILIA), in the provinces by the governor under
moral conduct (mores) which clearly indicated that
the Lex Iulia et Titia. Under the Principate consuls
he did not deserve confidence. A tutor suspectus
and praetors appointed guardians, and from the time
of Marcus Aurelius a special praetor was concerned could be denounced to the tutelary authority (postu-
with tutelary matters ; see PRAETOR TUTELARIUS. The lare, accusare tutorem suspectum) by any one, but
term tutor dativus refers sometimes to a tutor ap- not by the ward himself; when the allegations of the
pointed in a testament.-D. 26.5; C. 5.47. accuser proved true in a special proceeding (de sus-
Sachers, RE 7.4, 1512; Solazzi, RISG 54 (1914) 17, 273. pecto tutore cognoscere), he could be removed (re-
Tutor ex lege Iulia et Titia. See LEX IULIA ET TITIA. movere, remotio) from the guardianship. The re-
-1nst. 1.20. moved tutor was branded with infamy only when his
Tutor falsus. See FALSUS TUTOR, PRO TUTORE GERERE, actions were fraudulent. The accusatio suspecti tu-
ACT10 PROTUTELAE. toris (called also crimen suspecti tutoris) known al-
Tutor fiduciarius. See TUTELA FIDUCIARIA. ready in the Twelve Tables, was in postclassical law
Tutor gerens. A guardian who factually administered extended to curators.-Inst. 1.26; D. 26.10; C. 5.43.
the ward's property (gerere), alone or together with Sachers, RE 7A, 1556; Solazzi, La minore etd (1912) 259 ;
another tutor (see CONTUTORES) and performed acts R. Taubenschlag, Vormundschaftliche Studien (1913) 27;
Berger, ZSS 35 (1914) 39; Solazzi, BIDR 28 (1915) 131 ;
connected with the guardianship as a whole (admin- idem, Istituti tutelari (1929) 207; R. Laprat, Crimen sus-
istratio tutelae). Ant. tutor cessans.-D. 26.7. perti tutoris (1926) ; Kaden, ZSS 48 (1928) 699; Car-
Sachers. RE 7A, 1523; Solazzi, RISG 54 (1914) 35. dascia, RHD 28 (1950) 312.
750 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
Tutor temporarius. A guardian temporarily appointed (1930) 303; Buckland, LQR 38 (1922) 38; 53 (1937) 508';
when the tutor testamentarius or legitimus was absent Volterra, S D H I 3 (1937) 158; F. De Zulueta, S t Besta 1
(1939) 137; Schulz, History of R . legal science (1946)
(e.g., in the interest of the state) or temporarily un- passim; Solazzi, A G 133 (1948) 3 (on Libri Disputa-
able to fulfill his duties (e.g., because of sickness). tionum) ; Wolff, Zur ifberlieferungsgesch. Ulp. Libri ad
Sachers, RE 7A, 1521. Sab., Fschr Schulz 2 (1951) 145; W. Kunkel, Herkunft
Tutore auctore. Refers to acts of the ward which trnd soziale Stellung der rom. Juristen, 1952, 245.
could be performed only with the authorization of his Ultimum supplicium. The death penalty. Syn. sum-
guardian ; see AUCTORITAS TUTORIS,TUTELA,TUTELA '.
Inumn sub blicium.
MULIERUM. Ultimus. See DISPOSITIO ULTIMA. VOLUNTAS ULTIMA.
Tutorio nomine agere. Tc? act in court as a guardian Ultro. Voluntarily, spontaneously, i.e., without any
in the interest of the ward. obligation, authorization or mandate. The term is
Tutrix. A woman appointed as guardian. I n classical applied to acts accomplished for another by a nego-
tiorztmn gestor.
law women were excluded from guardianship. Ex-
ceptions were introduced in postclassical law.-C. Ultro citroque. Reciprocal, on both sides. The ex-
3.27.-See TUTOR. pression is used of reciprocal obligations arising from
a bilateral agreement and of the pertinent actions
which are available to each party against the other.
U.R. Abbreviation for uti rogas. See A. Ultro tributa. Public works (constructions and build-
ings) assigned at a public auction to contractors who
Ugo (Ugolino dei Presbiteri). A glossator of the offered to build them at the lowest price.-See RED-
first half of the twelfth century. EMPTORES, OPERA PUBLICA.
Kuttner, N D I 12, 2, 680. Kiibler, Gesch. des rom. Rechts (1925) 92; ide~it.RE 4A,
Ulpianus, Domitius. A jurist whose works were ex- 484; Mommsen, Staatsrecht 2, l 3 (1887) 432, 443.
cerpted in a large measure by the compilers of the Uncia. One-twelfth of an AS. Hence the twelfth part
Digest; nearly one-third thereof originates from of a whole. in articular of an inheritance. ~ e r e s
, A
Ulpian's pen. H e was born in Tyre (Phoenicia). unciarius or heres ex uncia = an heir whose share
H e held various high imperial offices, was prefect in the inheritance was one-twelfth.
of the ~raetoriansfrom A.D. 222. and died in 228. Babelon, D S 5, 590.
assassinated by his subordinates. Contemporary with Unciae usurae. One-twelfth of ustcvae centesimne
Paul (see PAULUS)and like Paul a very productive (= 12 per cent), i.e., one per cent per annum.
author, he had a perfect knowledge of the juristic Unciarium fenus. See FENUS UNCIARIUM.
literature ; opinions of other jurists are amply quoted Unciarius heres. See UNCIA.
by him, but no auotation from Paul occurs in his Unde cognati (legitimi, liberti, vir et uxor). The
works. H e was an elegant writer, more of a compiler sections of the praetorian Edict which fixed the four
than an original thinker, but far from being a slavish groups of successors under praetorian law (see BONO-
copyist. H e wrote many treatises, monographs (some R U M POSSESSIO INTESTATI) .-D. 38.6-8 ; C. 6.14 ;
of which are quite extensive) on topics, such as par- 15: 18.
ticular statutes, public law, imperial offices (e.g., Unde vi. Three interdicts against dispossession
proconsuls, consuls, praefectus urbi, praetor tutela- through violence were proposed under this title in
rius), on procedural problems, etc. I n addition, ele- the praetorian Edict; see INTERDICTUM DE VI.-D.
mentary works (Institutiones) and collections of legal 43.16 ; C. 8.4.
rules (REGULAE) and
, ., definitions (see DEFINITIONES) Berger, R E 9, 1677.
opinions (see OPINIONES)are among his writings. Universaliter venire. T o be sold at a lumr, sum.
Two collections of Regulae appear under the name of Universi cives. See POPULUS ROMANUS.
Ulpian, one (in 7 books) represented in the Digest Universitas. A union of persons or a complex of
by a few texts only, and another, Liber singularis things, treated as a unit (a whole). As far as a
Regularurn, preserved in a manuscript under the universitas of persons is concerned, the term is applied
title "Selections from Ulpian's works"; see TITULI by the jurists in the field of both public (persons
EX CORPORE ULPIANI. O n Ulpian's Notes to the associated in a community, civitas, muniripia, col-
writings of Papinian, whose younger contemporary he legia of a public character) and private law (private
was, see NOTAE. Ulpian's standard works were a collegia, societates) . Universitas of persons is dis-
commentary on the praetorian Edict (Libri ad edic- tinguished from its members (singuli). As a uni-
tuin, in 81 books) and an incomplete treatise on the versitas of things are treated things which economi-
ius civile (Libri ad Sabinum, in 51 books). cally (e.g., a herd = grex, a building = universitas
Jars, RE 5, 1435 (no. 88) ; Berger, O C D ; Orestano, N D I aedificii, aedium) or socially are consihered a whole.
12, 2 ; Pernice, Ulpian als Schriftsteller, SbBerl (1885) In the last instance universitas comprises the conlplex
443; H . Fitting, Alter und Folge der Schriften rom. Juris-
ten' (1908) 99; F. Schulz, Sabinusfragmente in Ulpians of things and rights connected with an individual, such
Sabinuskommentar (1906) ; H . Kriiger, S t Bonfante 2 as an inheritance (hereditas, unizlersitas bonorum),
4 3, I.T. 2, 19531
~01.. ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 75 1
or in a more restricted sense, a pecliliurii, a dowry. Unus casus. A unirlue case. Contrary to the basic
In this sense irnizfersitcrs is opposed to singulae res, rule concerning the RI<I V I N D I C A T I O in one case only
singula corpora which refer to the individual things (unus casus)-accortling to Justinian's Institutes,
embraced by the term universitas as a whole. In 4.6.2.-a plaintiff could sue his atlversary although
later imperial constitutions ztniversitas occurs in con- he himself hat1 possession of the thing vindicated.
nections such as jideicoiizmissirm universitatis, donatio The case has remained unknown despite the various
zrniversitatis. The term universitas has been suspected attempts on the part of scholars to fintl it in the
as non-classical for various (not always convincing) Digest where it should I)e fount1 according to Jus-
reasons.-D. 3.4; 38.3; 403.-See ACTOR UNIVERG- tinian's assertion.
TATIS, INTERDICTA DE UNIVERSITATE, RES HEREDI- R. Henle, U. c. (1915); Berger, GrZ 42 (1916) 725; Scia-
TARIAE, PIAE CAUSAE. loja, St Simoncelli (1917) 511 (= St 2 [I9341 273) ; Nico-
lau, R H D 13 (1934) 597, 14 (1935) 184.
Cuq, DS 5 ; Bortolucci, NDI 12, 2 ; Guarneri-Citati, Indice'
(1927) 88, St Riccobono 1 (1936) 742, Fschr Koschaker 1 Unus iudex. See IUDEX UNUS,IUDICIUM LEGITIMUM.
(1939) 155 (for interpolations) ; F. Milone, Le universi- Unus testis. See TESTIMONIUM UNIUS.
BIDR 42 (1934) 150, 43 (1935) 128; Schnorr v. Carols- Urbana (urbicaria) praefectura. Praefectura urbis,
feld, Zur Gesch. der juristischen Person 1 (1933) 59; Al- see PRAEFECTUS URBI.
bertario, St 5 (1937) 323, 4 (1946) 65; P. W. Duff, Urbanus. See PRAEDIA URBANA, SEDES,PRAETOR, VILLA.
Personality in R , private law (1938) 35 ; Carcaterra, Rend-
Lomb 73 (1939-40) 701 ; B. Biondi, Istituti fondamerrtali Urbicarius. Connected with, or pertinent to, the capi-
di dir. ereditario 1 (1946) 42; V. Olivecrona, Three es- tal (Rome, and later Constantinople). The adjective
says i t R. law, 1949, 5 ; Volterra, CambLJ 10 (1949) 202. occurs only in imperial constitutions.
Universitas agrorum. All plots of land within the Urbicum edictum. The edict of the praetor urbanus.
limits of one city (civitas). They are the territory . -See EDICTUM PRAETORIS.
(territorium) of the civitas (D. 50.16.239.8). Urbicus. Refers only to Rome (see URBS); the term
Universitas 'facti-Universitas iuris. These non- does not occur in Justinian's Code.
Roman terms were coined in the literature to dis- Urbs. . In the Digest this refers to Rome, in later im-
tinguish a group of things which though physically perial constitutions to Constantinople. Distinction is
separated are treated as a whole, their single com- made between urbs = the city surrounded by walls,
ponents not being taken in consideration, universitas and Roma as a topographical concept: it is the com-
facti (e.g., a library, a collection of pictures), from a plex of buildings (continentia aedificia) regardless of
group of persons or things which as a whole has a the walls (muri, D. 50.16.2 pr.; 87).-See REGIONES
legal existence, distinct from that of its members or URBIS, MURUS, CONTINENTIA, V I C A R I U S I N URBE,
lines.
Universitas, Iudaeorum. Occurs only in a rescript of Urere. T o burn.-See CADAVER.
the emperor Caracalla (C. 1.9.1) in connection with Urgere (urguere). T o press, to urge. The term is
a legacy bequeathed to it. The emperor declared the very rare in the Digest, but frequent in imperial
legacy not suable. In. the case in question the term constitutions, particularly in those of Diocletian. It
was used by a testatrix with reference to the Jews is used in the sense of suing an adversary (debtor)
living in Antioch, and eiridently not as a legal tech- in court in order to obtain satisfaction.
nical term, but in the meaning universi Iudaei. Urseius Ferox. A jurist of the late first century after
Schnorr v. Carolsfeld, Zur Gesch. der Juristischen Person Christ. H e is primarily known through a commen-
1 (1933) 69. tary by Julian (Ad Urseiunz Ferocem, in four books) ;
Universitas iuris. See UNIVERSITAS FACTI. the title of Urseius' work itself-apparently - -
of a
Bortolucci, NDI 12, 2. casuistic nature-is unknown.
Universum ius. See SUCCESSIO I N U N I Y E R S U ~ IUS, Ferrini, Opere 2 (1929) 505; Baviera, Scr giur. 1 (1909)
HEREDITAS, UNIVERSITAS. 99; Guarino, Salvirrs Julianus (1946) 48.
Univira (univiria). A woman who after the death of Usitatum (usitatius, usitatissimum) est. It is usual,
her husband remained unmarried. Women twice customary, it is generally held. The adjective is used
married9were socially less esteemed. Augustus' legis- of both legal customs and common juristic opinions.
lation (LEXIULIA DE MARITANDIS ORDINIBUS), how- Ustrina (ustrinum). A place for burning the dead.
ever, cdmpelled widows and divorced women to marry The establishment of such places was-subject to
a second time by inflicting on them considerable various restrictions (not within the boundaries of a
material disadvantages.-See LUCTUS, SECUNDAE city). With regard to Rome, according to Augustus'
NUPTIAE. order, they had to be located at least two thousand
Frey, Recherches de science rkligieuse 20 (1930) 48. steps beyond the city.
752 ADOLF BERGER [TRANS.
AMER. PHIL. SOC.
Usuarius. (Adj.) A thing (res usuaria) or a slave PUBLICIANA, PRAESCRIPTIO LONGI TEMPORIS, and
the
(servus usuarius) of whom a person other than the subsequent items.
owner had the right of usus. ~ u q ;DS 5 ; Bortolucci, NDI 12, 2 ; Zanzucchi, AG 72
(1904) 177; see Galgano, I limiti subbiettivi dell'antica
Usuarius. (Noun.) A person who has the right of usucapio (1913) ; Suman, RISG 59 (1917) 225; Bonfante,
usus on another's thing or slave. Scr. giur. 2 (1926) 469-758; Collinet, Mkl Fournier (1929)
Usucapere (usu capere). T o acquire ownership over 71; Voci, St Rafti (1934) 367; idem, SDHI 15 (1949)
another's thing through USUCAPIO.-See the follow- 159; idem, St Carnelutti 4 (1950) 155; J. Faure, Iusta
causa et bonne foi (Lausanne, 1936) ; M, Kaser, Eigentum
ing items. und Besifz (1943) 293; Meyers, Scr Ferrini 4 (Univ.
Usucapio. Acquisition of ownership of a thing be- Sacro Cuore, Milan, 1949) 203.
longing to another through possession of it (possessio) Usucapio ex Rutiliana constitutione. If a man bought
for a period fixed by law. Further requirements of a res mancipi from a woman who acted without the
usucapio under ius civile were (a) bona jides (good auctoritas of her guardian (see TUTELA MULIERUM),
faith), i.e., the possessor's honest belief that he ac- he did not acquire ownership, but he could usucapt
quired the t,hing from the owner (while, in fact, he the thing. The woman could, however, interrupt the
acquired it from a non-owner, a non domino), and usucapio if she paid back the buyer the price.-See
through a transaction which legally was suitable for CONSTITUTIO.
the transfer of ownership (while, in fact, it was not, Usudapio libertatis. Refers to landed property en-
if, e.g., the thing which was a res mancipi was con- cumbered by a predial servitude. The owner of a
veyed by traditio),. Good faith was required on the land on which another h i d a servitude could free his
part of the possessor only at the beginning of his land from the servitude if through a construction or
possession. If he lost later his good faith by getting a definite action he prevented the person entitled from
knowledge of the true situation, the completion of exercising his right and the latter tolerated it for a
the usucapio was not impaired; (b) a just cause certain time (two years in classical law, ten or twenty
(iusta causa, also called iustus titulus) ; see PRO in under Justinian law), D. 41.3.4.28.-See N O N USUS.
connection with. possession. Such a just cause was Grosso, Foro Italiano 62 (1937) part 4, 266; B. Biondi,
either an act of liberality (donatio) of the owner or ServifiL prediali (1946) 267.
an agreement with him ( a purchase) which would Usucapio pro derelicto. Usucaption of a thing aban-
justify the acquisition of ownership if there were not doned by a non-owner and possessed by the usucaptor
a defect in the transaction itself (e.g., traditio of a pro derelicto (as if abandoned by the owner).-D.
res mancipi instead of mancipatio) or in the person 41.7.-See PRO (in connection with possession).
of the transferor ( a non-owner). An erroneous H. Kriiger, Mnem. Pappulia (1934) 163 ; 'A. CuPnod, U.
belief of the usucaptor that there was a just cause fi d. (ThPse Lausanne, 1943).
(e.g., a valid sale or donation) did not suffice for Usucapio pro donato. Usucaption of a thing received
usucapio. Possession of the. usucaptor had to be con- as a gift from a person who was not the owner of it
tinuous and uninterrupted. If he lost possession and possessed by the usucaptor pro donato (as if
during the period required for usucapio (according donated by the owner).-D. 41.6; C. 7.27.
to the Twelve Tables two years for immovables, one Bonfante, Scr giur. 2 (1926) 563; Levet, R H D 11 (1932)
387, 12 (1933) 1.
year for other things) the previous time during
Usucapio pro dote. Usucaption of a thing which a
which he possessed under conditions sufficient for husband received among the things constituted as a
usucapio did not count any longer. Usucapio was dowry and which was not owned by the person who
accessible only to Roman citizens and on things on constituted the dowry. This ztsucapio starts from the
which Quiritary ownership was admissible. Things time of the conclusion of the marriage.-D. 41.4;
belonging to the fisc and res publicae were excluded C. 7.28.-See ~ o s P, RO (in connection with posses-
from usucaption. For provincial land and the later sion).
development, see PRAESCRIPTIO LONGI TEMPORIS. I n Bonfante, Scr giuridici 2 (1926) 569.
Justinian's law the term usucapio refers only to usu- Usucapio pro emptore. Usucaption of a thing by the
caption of movables for which possession for three buyer to whom it was sold and delivered and who,
years was required. Excluded from usucapio were however, did not acquire ownership thereof because
stolen things (res furfivae, see LEX ATINIA) and of a legal defect in the act of transfer or because the
things taken by violence (res vi possessae, see LEX seller was not the owner. The possession of the thing
IULIA ET TITIA) even when possessed by a person by the buyer is pro emptore (as if the purchase were
who acquired them bona jide from the wrongdoers. valid).-See D. 41.4; C. 7.26.-See EMPTIO,PRO (in
-D. 41.3; Inst. 2.6; C. 7.30; 31.-See POS~ESSIO, connection with possession).
MANCIPATIO, ACTIO AUCTORITATIS, INTERPELLATIO, EX- P. Bonfante, Scr giuridici 2 (1926) 575.
PLERE, ACCESS10 POSSESSIONIS, SUCCESS10 I N POSSES- Usucapio pro herede. If a person possessed a thing
SIONEM, BONA FIDES, MALA FIDES, USURPATIO, ACTIO which was a part of an inheritance and of which the
cated by an appropriate term (see the foregoing Generally such usurae were not enforceable. "If in-
items) .-D. 41.10. terest was agreed upon by a mere pact (pactum
P. Bonfante, Scr giur. 2 (1926) 631; Albertario, S t d 2 nudunz), the pact is invalid" (Paul. Sent. 2.14.1).
(1941) 185; H. H. Pfliiger, Enverb des Eigentums (1937) If the interest agreement was connected with a con-
42.
tract governed by good faith (contractus bonae fidei)
Usucapio servitutis. The acquisition of a servitude the judge could take into consideration the question
(see SERVITUS)through the exercise (usus) of the of interest and condemn the defendant to pay it ac-
rights connected with it for a certain period of time. cording to the agreement, especially if such pay-
Usucapio servitutis was admitted in earlier law prob- ment was customary. In certain specific cases, as in
ably only with regard to rustic servitudes, namely loans given by cities, in loans of fungibles other than
iter, actus, via, and aquaeductus; it was later forbid- money (in later classical law), or in loans made with
den by the LEX SCRIBONIA. bankers (under Justinian), a pact concerning interest
Ascoli, AG 38 (1887) 51, 198; B. Biondi, Le servitd pre- was considered valid.
in due time. The fisc, however, did not pay interest Usurarius. (Ad].) A debtor who had to pay interest
at all except when it inherited a debt from which on the sum he owed. Usuraria pecunia = money lent
interest was due.-C. 10.8.-See FISCUS. at interest.
Usurae legitimae. The rate of interest which was Usureceptio. Regaining ownership through USUCAPIO
imposed or fixed by law. I n the late Republic the (usu recipere) of a thing of which one was previously
highest admissible rate was twelve per cent (USURAE the owner, as, e.g., if one had transferred the owner-
CENTESIMAE).Higher interest was granted in a ship of a thing legally (through mancipatio or in iure
FENUS NAUTICUM until Justinian limited it to twelve cessio) to another ( a relative or a friend) to look
per cent. Under his law the normal rate was six per after it as a trustee (fiduciae causa) and later regained
cent (C. 4.32.26.2) ; merchants could demand eight possession of the thing without the ownership being
per cent, persons of higher social rank (personae retransferred to him. A usu.receptio also took place
illustres) only four per cent.-See LEGITIMUS. when a thing was given to the creditor as a pledge
G. Billeter, Gesch. des Zinsfusses (1898) 267. in the form of FIDUCIA ( i t . , ownership thereof was
Usurae maritimae. See FENUS NAUTICUM. transferred to him) and later, after the debt was paid,
Usurae niorae. See USURAE EX MORA. possession of the thing (but not ownership) was re-
Usurae pupillares. Interest which a guardian was turned to the debtor, its former owner (Gaius, Inst.
liable to pay to his ward if he negligently failed to 2.59-61). The usureceptio disappeared when fiducia
place the ward's money at interest, if he lent it to as a form of pledge and the transfer of ownership as
insolvent debtors, or used it for his own profit (D. a trust (fiduciae causa) went out of use. There is
26.7.7.10) .-C. 5.56.-See TUTELA IMPUBERUM. no mention of usureceptio in Justinian's legislation.
Usurae &ae in obligatione consistunt. Interest Manigk, R E 6, 2305; Cuq, DS 5, 607; Grosso, RISG 4
(1929) 260; Bortolucci, NDI 12, 2 ; W . Erbe, Fiduzia
which was promised in a separate stipulatio and was (1940) 64; Levy, S t Albertario 2 (1950) 221.
enforceable independently from the principal obliga- Usureceptio ex praediatura. Usucapio of a thing by its
tion. Ant. usurae, quae oficio iudicis praestantur, former owner who had given it to the fisc as a pledge.
actionable only together with the principal obligation If the latter sold it afterwards at auction and the
and as far as the latter was enforceable, but the deci- former owner regained possession, no matter how,
sion as to whether they are due or not, and to what he could acquire ownership through usucapio (Gaius,
extent, iay with the judge (oficium iudicis). T o the Inst. 2.61) .-See PRAEDIATOR.
latter category belonged USURAE EX MORA;interest Bortolucci, NDI 12, 2, 806; Cuq, DS 5, 607.
to be paid by a manager of another's property (a Usurpare. T o usurp, to take unlawfully (physical
guardian, a mandatary) when he used money en- power over a thing). In a quite different meaning
trusted to him for his own profit or when, through ( = to interrupt) the tern1 is used with regard to
negligence, he failed to place the administered funds usus ( a form of acquisition of marital power, manus
at interest; interest due to minors, to the fisc or to over the wife) as a result of the so-called TRINOCTIUM
charitable institutions. (abesse a viro usurpandi causa = to leave the hus-
Usurae quae officio iudicis praestantur. See the fore- band in order to interrupt sc. the usus, Gellius, Noct.
going item. Aft. 3.2.12-13). Similarly usurpare is used of the
C. Fadda, S t e question; di diritto, 1 (1910) 229. interruption of USUCAPIO.-S~~ USURPATIO (USUCA-
Usurae quincunces. Five-twelfths of USURAE CEN- PIONIS).
TESIMAE, i.e., five per cent per annum. LCvy-Bruhl, Revue de philologie 62 (1936).
Usurae rei iudicatae. Justinian ordered that a debtor Usurpatio (usucapionis). An interruption of an
who did not pay a judgment debt within four months usucapio. It occurred when the usucaptor lost pos-
after the judgment was rendered or confirmed on session of the thing to be usucapted.-D. 41.3.-See
appeal, had to pay twelve per cent interest from the USUCAPIO, INTERPELLATIO.
judgment sum.-C. 7.54. Cmq, DS 5.
P. De Francisci, Saggi romanistici, 1913, 61. Usus. (From uti.) In a general sense, the act of
Usurae semisses. See USURAE CENTESIMAE. using a thing. See FURTUM USUS, RES QUAE usu
Usurae ultra duplum. Interest exceeding the prin- CONSUMUNTUR. I n usu esse = to be used by an
cipal. Syn. usurae ultra alterum tantum. The ac- individual or by all (in usu publico). The locution
cumulation of interest due and not paid could not in usu is applied to legal institutions that are in gen-
exceed the amount of the debt; a debtor never had to eral use (e.g., a testament), primarily those connected
pay in overdue, interest more than the amount of the with civil procedure (actiones, legis actiones, excep-
debt. Justinian extended the rule to interest already tiones). 1n a more s~ecificsense usus and the locu-
paid, to wit, no interest could be demanded by the tion in usu esse refer to customs and customary rules
creditor once the interest paid equaled the sum due. in legal relations. Usu receptum est is said of a rule
Usurae usurarum. Compound interest.-See ANATO- which has been established by custom.-See cow-
CISMUS. SUETUDO, IUS SCRIPTUM, LONGAEVUS USUS, USUS LOCI.
VOL. '43, PT. 2 , 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 755
Usus. As a personal servitude, the right to use (ius rerunz substantia, D. 7.1.1). The usufruct is reck-
utendi) another's property, without a right to the oned by Justinian among personal servitudes (see
produce (fructus) of the thing (contrary to usu- SERVITUS).AS a strictly personal right the ususfruc-
fruct). Usus was strictly personal. When it was tus is neither transferable nor alienable. A transfer
granted for dwelling in another's house, the bene- of a ususfructus through I N IURE CESSIO was possible
ficiary (usuarius) could reside therein together with only from the beneficiary of the ususfructus (usufruc-
his family, household, slaves and guests, but he could tuarius, fructuarius) to the owner of the thing. A
not leave the house and let it as a whole to others. usufruct was usually constituted in the last will of
Normally usus was left as a legacy. If no other use the owner through a legacy, but it could arise from
of the thing was possible than by taking the fruits a transaction between the owner and the usufructuary
(e.g., a vegetable garden or an orchard), the usuarius through in iure cessio and, later, under praetorian law,
could use the fruits for himself and his household but by formal or formless agreement ; see PACTIONES ET
because in corrupt texts the erroneous construction utilitatem) , i.e., either for public utility (welfare), or
may have originated from a copyist's error or negli- on behalf of certain categories of individuals (such as
gence. It can hardly be assumed that the compilers minors, lunatics, absent persons) or for general ex-
did not know that ut had to be followed by a sub- pediency and suitableness for practical purposes,
junctive. "When new rules are introduced, their utility must
Guarneri-Citati, Indice' (1927) 80 and Fschr Koschaker 1 be evident as to whether a law which has been con-
(1939) 155. sidered just for a long time is to be changedu (D.
U t puta. See UTPUTA. 1.4.2).
Uterini. Brothers (uterinus frater) and sisters (uterina Orestano, AnMac 11 (1937) 56 ; Biondi, Scr Ferrini (Univ.
soror) born of the same mother.-See FRATER. Pavia, 1946) 219.
Uterus. I n utero = in the womb. Syn. venter.-See Utilitas communis. See UTILITASPUBLICA. "It can
NASCITURUS. be proved by innumerable instances that many rules
Usani, Bollettino di filol. clarsica 16 (1910) 85. have been introduced by the ius civile in the public
Uti. To use.-See usus, u s u s ~ ~ u c ~ u s . interest against the principles of reasoning" (D.
Uti. Technical term for the use of procedural remedies 9.2.51.2).
(e.g., uti actione, interdicto, formula, exceptione, de- Utilitas contrahentium. The benefit of the contract-
fensione) or of benefits granted by specific laws (e.g., ing parties.-see CULPA.
uti lega Falcidia = to claim the quarta Falcidia accord- Utilitas publica. The welfare (interest) of the state.
ing to LEX FALCIDIA).-See UTIMUR HOC IURE. "Consideration of the public interest is preferable to
Uti frui habere possidere. To use, to take proceeds, the convenience of private individuals (commodis pri-
to hold, to possess. The four words (sometimes with vatorurn)," Paul, Sent. 2.19.2. "Public welfare is
omissions) are used in leases of public land and in to be preferred to private agreements (privatorum
treaties with autonomous cities (civitates liberae) to contractibus)," Diocl., C. 12.62.3.-Utilitates publicae
indicate the most important functions of ownership (in the later Empire) = public services (contribu-
of landed property which are granted to a lessee to tions in money or labor, so-called liturgies) rendered
be exercised by him without the right of ownership. by the citizens or certain groups of them for the benefit
Kaser, Z S S 62 (1942) 22. of the state or municipalities.-C. 1.22.-See MUNERA.
Uti optimus maximus. See OPTIMUS MAXIMUS. F. M. De Robertis, L'espropriazione per pubblica utilitd,
1936; v. Premerstein, V o m Wesen und Werden des Prin-
Uti possidetis. See INTERDICTUM UTI POSSIDETIS. zipats (1937) 194 ; Steinwenter, Fschr Koschaker 1 (1939)
Uti rogas. (Abbreviation u.R.) See A. 84; v. Liibtow, Z S S 66 (1948) 486; Berger, Iura 1 (1950)
Uti iure suo. To make use of (to exercise) one's 110; Gaudemet, R H D 29 (1951) 466; Levy, West Roman
vulgar law, 1951, 100.
right. Several legal rules empower a person to make
use of his right regardless of whether or not another Utiliter. See UTILIS. Utiliter agere = either to sue
a loss a~~ one is considered
successfully (syn. utiliter experiri, petere, intendere)
to act fraudulently (dolo fecere), to commit a wrong or to sue with an actio utilis; see ACTIONES UTILES,
INTERDICTA UTILIA. Utiliter in connection with other
(damnurn facere), or to use violence (vim facere)
who avails himself of his right (qui iure utitur)u verbs, indicates the validity of an act performed or
(D. 50.17.55 and 155.1).-see AEMULATIO, NEM
O to be performed (e.g., utiliter testari, instituere here-
D A M N U M FACIT, NEMO VIDETUR DOLO, etC.
creditor to his del)tor on the occasion of I N rvs gations (D. 44.7.1 pr.) beyond the typical ones (con-
VOCATIO, by which he inll~osetloil the latter, who (lid scnslrs, rrs, vcrba, littcrae).-See OBLIGATIO.
not follow Ilitll iininediately to court. the duty to Variare. See I U S VARIANDI.
alq)ear on a certain (lay and hour "ante tribunal prac7- Varius Lucullus. An unknown juriht of the first cen-
toris urbani" (= before the tribunal of the urban tury of the Principate ( ?), mentioned but once ill
praetor). The declaration was followed by a stiptt- the Digest.
latio under which the summoned debtor a s s ~ m ~ ethe
d Kunkel, Herkunft urrd sosiale Strlluncl drr rurn. Jirristen,
pertinent obligation. 1952, 140.
Arangio-Ruiz, La parola drl possato, fasc. 8 (1948) 138. Varro, Marcus Terentius. (Died 27 B.c.) The fa-
Vadimonium iureiurando. In provincial practice mous author of Le lingua Latina (On the Latin
(only in Egypt?) the stipulatory promise of a ?qadi- Language) and Res rusticne (Country-life) , cited as
tilonitr~itwas strengthened by an oath. the author of a treatise (in fifteen books), De i ~ r e
La Pira, St Albcrtoni 1 (1935) 443. ciz~ili,which is not preserved. Valuable juristic ma-
Vadimonium Romam faciendum. A promise of a terial is to be fount1 in the works just mentioned above.
z~adit~~oniwnt made in a municipal court, before which Dahlmann, RE Suppl. 6, 1254; Sanio, Varrorzinna irt den
Schriften rom. Juristerl (1867) ; Conrat, Z S S 30 (1907)
the plaintiff's claim was brought, to appear on a fixecl 412 ; Bonfante, BIDR 20 (1908) 254 ; idem, RrndLotnb 42
day before the praetor in Rome in the same matter. (1909) 318; Stella-Maranca, ACSR 1935. 4 (1938) 45;
I'liniaux, DS 5, 621 ; Lenel, Edictutn perpetuu~rr' (1927) F. Schulz, History of R. legal science (1946) 41, 169;
55; La Pira, St Albertoni 1 (1935) 443. Weiss, Z S S 67 (1950) 501.
Vadiinonium recuperatoribus suppositis. A promise Varus. See ALFENUS VARUS.
of a vaditnonilrtn in which it was stipulated that, in Vas. (PI. vades.) A surety which guaranteed the
the case of the defendant's non-appearance in court, appearance of the defendant before the magistrate in
the matter was to be presented immediately to the the earliest law, in the procedure by LEGIS ACTIO.
tribunal of RECUPERATORES who could condemn him Origin and details are obscure but a connection with
to the sun1 of the vadivtonium without delay. V A D I M O N I U M is beyond any doubt. According to
Yvonne Bongert, in Varia (Publications de I'lnstitut de Varro, d e I. Lat. 6.74, vas = qui pro altero vadimo-
droit rom. de I'Univ. de Paris, 9) 1952, 165.
nium promittebat (he who promised a vadimoniuwt
Vagari. T o stroll from place to place. A vagrant slave for another). A zns could himself offer security
= ERRO. through a surety, subvas. Vades were also acceptable
Valens. See ABURNIUS. in criminal matters in the earlier procedure.
Valere. With regard to legal transactions and acts, Steinwenter, RE 7A, 2054 (s.v. vodimonium) ; Fliniaux,
to be legally valid (effective). Syn. effectum, vires DS 12, 2, 615; Lenel, Z S S 23 (1902) 97; Schlossmann,
I~abere (tenere), iure consistere, ratum esse. Ant. ZSS 26 (1905) 285; E. Levy, Sponsio, fidelussio (1906)
26; Mitteis, Fschr Bekker ( A u s rom. und burgerl. Kecht,
non valere, ntcllius esse nzomenti. With regard to - 1912) 285; De Martino, SDHI (1940) 141; L. Maillet, La
things valere = to have a certain value. thtorie de Schuld et Haftung en droit rom. (1944) 91 ; M.
Hellman, Z S S 23 (1902) 423. Kaser, Das altrom. Ius (1949) 270.
Valerius Probus. See NOTAE IURIS. Vasa. Vessels. I n a legacy of wine, the testator's
Valerius Severus. (Also mentioned as Severus Va- vessels in which the wine was kept were understood
lerius.) 4 n unknown jurist of the first century of to be included.
the Principate. H e is cited by Julian and Ulpian. Vasaria publica. Public archives in which the records
Kunkel, Herkunft und soziale Stellung der rom. Juristen, concerning the census of the population were pre-
1952, 154. served (from the fifth century after Christ on).
Valetudo. Health. The term is generally used for Vasarium. Allowance of money given to the provin-
bad health, physical or mental disease. I n specific cial governor for food, transportation, clothing, do-
-
circumstances sickness was recognized as an excuse mestic establishment, and salary of his staff.-See
for non-appearance in court or for exemption from SALARIUM, CIBARIA.
assuming a guardianship.-See MORBUS. Vates. See VATICINATOR.
Validus. Strong, important, legally valid. Ant. in- Vaticana fragmenta. See FRAGMENTA VATICANA.
validus, nullus, null& momenti.-see VALERE. Vaticinatio. Fortune-telling, prophecy ; see VATICI-
Vallare. T o strengthen the efficiency or validity of a NATOR, DIVINATIO.
legal transaction or act by a stipulatio, or by 'some Vaticinator. A fortune-teller, a soothsayer. The pro-
better means of evidence.. The term occurs- in the fession of a vaticinator was reckoned among artes
language of the imperial chancery. magicae which endangered the public order since
Vanus. Legally worthless, useless. For vanus homo, "through human credulity public morals were cor-
timor vanus, see METUS. rupted and the minds of the people confused" (Paul,
Variae causarum figurae. Various types of causes. Sent. 5.21.1). 4 vaticinator was punished in the
This general expression includes all sources of obli- later Empire by exile, after castigation, and by death
VOL. 43, PT. 2, 19531 E N C Y C L O P E D I C D I C T I O N A R Y O F ROMAN LAW 759
if he prophesied about the health of the emperor or Velamentum. A pretext, an excuse (real or false).
the welfare of the state. The same penalty was in- Velamento under the pretext (syn. sub praetextu).
flicted on anyone who asked about such matters.- The term which occurs only in imperial constitutions,
See MAGIA,MATHEMATICI. particularly of Diocletian) was used when a person
BouchC-Leclercq, D S 2, 317 ; Pease, OCD 292 (s.v. dizlina- under a true or false excuse tried to rescind the con-
tion, no. 4 ) . sequences of his former acts (e.g., on the excuse his
Vectigal. The rent paid by the lessee of an ager lawyer's absence or of lack of experience). I n all
publicus.-See AGER VECTIGALIS, ACTIO VECTIGALIS, cases the decision was against him.-See EXCUSA-
I U S VECTIGALE. TIONES.
Vectigal (vectigalia). A general term denoting all Velati. See ACCENSI.
sorts of public revenues, such as rents and periodic Velites. Light armed troops, 1,200 (later 1,500) me11
payments made by lessees of public land (ager pztb- in the four earliest legions of the Roman army, re-
licus, see the foregoing item), pastures, woods, salt cruited from poor citizens. They disappeared about
mines, lakes, rivers, etc., as well as all kinds of taxes, the end of the second century B.C.
imposts, and custom duties, collected by tax-farmers Cagnat, D S 5.
(see PUBLICANI), whether they were paid in kind Velitis iubeatis. A request addressed to the gathered
(originally) or in money.-D. 39.4; C. 4.61 ; 62.- people by a magistrate, presiding over a popular as-
See A U R U M VICESIMARIUM, VICESIMA MANUMISSIO- seilibly for approval of a proposed statute ("please,
NUM, VICESIMA HEREDITATIUM, PORTORIUM, CENTE- approve and order") .-See ROGATIO LEGIS.
S I M A RERUM VENALIUM, FRAUDARE VECTIGAL, C R I M E N Velle (volo). Refers to the wish (will) of a person,
FRAUDATI VECTIGALIS, RELIQUATOR VECTIGALIUM, to the expression of his will, and more narrowly to
CONDUCTORES VECTIGALIUM. the declaration of will by a person who had a right
Schwahn, R E 7A, 25; Cagnat, D S 5 ; Anon., N D I 12, 2 ; to choose (eligere, optare, see ELECTIO,LEGATUM OP-
Stevenson, O C D ; Bonelli, Le imposte indirette in R, antica,
StDocSD 21 (1900) 27, 287; R. Cagnat, Les impdts in- TIONIS,OPTIO SERVI) between two or more things.
directs chez les Romains, 1882; Pugliese, CentCodPav The expression of will was taken into consideration
1934, 527; Tibiletti, A t h 26 (1948) 182. only when it was free from compulsion or fear. "He
Vectigal frumentarium. A tax levied in kind (grain) who obeys his father's or master's command is not
in certain provinces, primarily Egypt in order to held to express his own will" (D. 50.17.4). "Volo"
supply Rome. (= I wish) was the expression a testator used in
Rostowzew, R E 7, 157. his testament when he ordered a manumission, desig-
Vectigal rerum venalium. A sales tax. See CENTE- nated a guardian, or bequeathed a legacy ("dari
SIMA RERUM VENALIUM. Under the later Principate VO~O") .-See VOLUNTAS, NOLLE.
the sales-tax, originally introduced for auctions, be- Venaliciarius. A dealer in slaves.
came more general (Ulpian, D. 50.16.17.1) .-See V. Arangio-Ruiz, La societd (1950) 141.
SILIQUATICUM. Venalicium. See VECTIGAL RERUM VENALIUM.
Vectigalis. Connected with, or pertinent to, any kind Venalis (venalicius). Offered for sale at a market
of VECTIGALIA.-See ACT10 VECTIGALIS. or public auction. In another sense = venal, capable
Vectigalis ager (fundus, vectigale praedium). See of being bought for money (bribed), e.g., venalis
AGER VECTIGALIS. sententia (a judgment which could be obtained by
Vector. A ship passenger or an owner of merchandise bribing the judge).
being shipped. Venatio. Hunting. A hunter acquired ownership of
Solazzi, R D N a v 6 (1940) 248. a wild animal (see FERAE),not domesticated l y an-
Vectura. Goods to be transported or the sun1 paid other, even when he killed or caught it on another's
(or charged) for their transportation. The term is property. If the animal was only wounded, it was
primarily used with regard to transportation by sea. held to belong to the hunter as long as he had chased
If the ship was lost, restoration of any freight charges it. Justinian decided that only the capture of an
paid in advance could be claimed. animal made it the property of the hunter. Among
Vel. Or, also, even. The conjunction, which fre- other controversial questions was whether game was
quently occurs in Justinian's constitutions and in among the proceeds (jutictus) of the landed property
doubtless interpolated passages in various combina- and consequently belonged to the usufructuary or not
tions and structures (vel etiam, vel maxime, vel . . . (see U S U S F R U C T ~ SThe
) . prevailing opinion was in
aut . . . , vel . . . sive . . . , and the like), is nev- the affirmative, if hunting was the only source of
ertheless not a reliable criterion of alterations made profit of the usufructuary who hat1 no other proceeds
by Justinian's compilers on classical texts accepted from the land. The owner of a land could prohibit
into the Digest. hunting on his property, but even then a hunter
Guarneri-Citati, Indice' (1927) 90; De Martino, A N a p 58 acquired ownership of an animal he caught or killed.
(1937) 292 (on vel etiam). H e could, however, be repelled .1, the owner acting
760 ADOLFBERGER [TRANS. AMER. PHIL.SOC.
in self-defense. Weapons used for hunting were Venia. In criminal matters, remission of a penalty by
considered part of the INSTRUMENTUM FUNDI when way of indulgence and forbearance for particular
the chief gain from the land came from hunting.- personal reasons (mental deficiency, error, or juvenile
C. 11.45.-See INCREDI I N FUNDUM ALIENUM, OCCU- imprudence of the culprit) or because of circum-
PATIO. stances which recommended forgiveness. Venia was
Kaser, RE Suppl. 7 , 684 (s.v. occupatio) ; Reinach, D S 5 ; granted by the senate, later by the emperor (see
Landucci, N D I 2, 588 (s.v. caccia) ; Schirmer, Z S S 3
(1882) 23; B. Kayser, Jagd und Jagdrecht in Rom
.
INDULGENTIA PRINCIPIS) Venia might also be
(1895) ; V . Ragusa, Brevi appunti sulla v., 1929; P . Bon- granted in civil wrongdoings with regard to the lia-
fante, Corso 2, 2 (1928) 57; Lombardi, BIDR 53-54 bility of the defendant if his act, though of a delictual
(1948) 273. nature, was excusable for specific reasons.-See RE-
Vendere, venditio. See EMPTIO.-S~~ EXCEPTIO REI STITUTIO INDULGENTIA PRINCIPIS.
VENDITAE ET TRADITAE, LEX VENDITIONIS. Gatti, AG 115 (1936) 44.
Vendere actionem. To sell a claim against someone Venia aetatis. A privilege granted by the emperor to
to a third person. Syn. venditio nominis. Such a a minor whereby he was considered to have attained
transaction was possible either as part of the sale his majority before the age of twenty-five; the hon-
of one's whole property (see BONORUM VENDITIO, esty of his life and his sagacity could recommend such
VENDITIO HEREDITATIS) or as the cession of a single a benefit. Venia aetatis gave the minor full capacity
claim (see CESSIO) .-D. 18.4 ; C. 4.39. to conclude legal transactions (except alienation and
Vendere hereditatem. See EMPTIO HEREDITATIS.- hypothecation of immovables) ; in addition, he was
D. 18.4; C. 4.39. freed from curatorship. In the later Empire, velria
Venditio bonorurn. See BONORUM VENDITIO. aetatis was granted only to men over twenty and to
Venditio nominis. See VENDERE ACTIONEM. women over eighteen. Venia aetatis is also used as
Venditio sub corona. Sale of a war prisoner into syn. with beneficium aetatis = the advantage of being
a minor and enjoying protection through restitutio
slavery. He was crowned with a chaplet.
Ehrhardt, RE Suppl. 7 , 96.
in integrum-C. 2.44.
Berger, R E 15, 1888 (s.v. minores) ; R. C . Fischer, Ent-
Venditio sub hasta. See HASTA, AUCTIO.-Syn. SUB- wicklung der v . ae. (1908).
HASTATIO. Venire. (From veneo.) To be sold, to be offered for
Venditio trans Tiberim. See SERVUS,
ADDICTUS,
TI- sale.-See VENUM D A ~ E .
BERIS. Venire. For dies venit, see CEDERE.
Venefici. Poisoners. According to the LEX CORNELIA Venire ad aliquem. To come (fall) to a person (by
DE SICARIIS ET VENEFICIS (under Sulla's dictatorship) inheritance or legacy). In another sense, the ex-
a veneficus was "one who killed a man by the hateful pression means to sue a person in court, to hold one
means of poison or magic practices, or one who pub- responsible.-Venire ad aliquid = to obtain (e.g.,
licly sold poisonous drugs" (Inst. 4.18.5). Venefici possession, inheritance, ownership, freedom).
were also those who prepared or kept poison for Venire contra aliquem. To sue a person, to go to
killing me?.-D. 48.8; C. 9.16.-See VENEFICIUM, court as a plaintiff against another person. Venire
VENENUM. contra (adversus) aliquid = to act against the law
Veneficium. A murder by poison. Capital punish- or contrary to an agreement.
ment was inflicted on the poisoner. Persons of lower Venire ex. To originate from; hence venientes ex
social status (humiliores) were crucifies or con- aliquo = one's descendants.
demned to fight wild animals.-See VENENUM, VENE- Venire in aliquid. To be taken into consideration
FICI. (e.g., in actionem, iudicium, cornpromissum, stipula-
LCcrivain, D S 5. tionem, collationem), to be computed (in hereditatem
Venenum. Poison. A poison to be used for criminal = in an inheritance). The phrase venit in iudicium
purposes, venenum malum, was distinguished from is used of the object of a judicial trial to be con-
venenum bonum, a drug which, although poisonous, sidered by the judge.
was used for treatment in certain diseases. Venenum Venter. The womb. Syn. uterus. Qui in ventre est
amatorium = a love potion. Severe penalties (de- = NASCITURUS.-D.37.9.-See BONORUM POSSESSIO
portation, forced labor in the mines) were inflicted VENTRIS NOMINE, MISS10 I N POSSESSIONEM VENTRIS
for giving a woman such a drink to cause an abortion NOMINE, INSPICERE VENTREM, SENATUSCONSULTUM
(syn. poculum, venenum amatorium), the death pen- PLANCIANUM.
alty if she died. Venuleius Saturninus. A jurist of the second half of
Venerabilis. Worthy of veneration. In the later Em- the second century after Christ, author of extensive
pire the adj. is applied to the emperor and his family, treatises on actions, on interdicts, and on stipulations.
to the senate, and to the Church (also veneranda Minor works of his deal with the proconsulship and
Ecclesia). Similar was the use of venerari and with criminal procedure (iudicia publics). No details
veneratio. about his official career are known. He has fre-
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 761
quently been identified with two other jurists by the Veredi. See ANGARIA.
name of Saturninus, Claudius S., and Quintus S.- Verginia. The tragic story of Verginia, as related by
See ,SATURNINUS. Livy (book 44) and Dionysios of Halicarnassus
H. Kriiger, GrZ 41 (1915) 318; W. Kunkel, Herkunft und (11.28-37), is connected with the history of the
soziale Stellung der rom. Juristen, 1952, 181.
Twelve Tables (see LEX DUODECIM TABULARUM) and
Venurn dare (venumdare). Vendere (to sell) ; ve- the downfall of the decemvirs (see DECEMVIRI LEGIBUS
num ire, venire (from veneo) = to be sold privately SCRIBUNDIS).It gives an interesting picture of a
or at a public auction. causa liberalis, a trial over the personal status of a
Verba. Words. When referring to an oral declaration girl Verginia, whom the tyrannical decemvir Appius
of a person, the verba are distinguished from either Claudius (450 B.c.) wanted to have declared a slave
his intention (VOLUNTAS, MENS,ANIMUS, SENSUS)o r in court (vindicatio in servitutem) . The presentation
a written document (see SCRIPTURA) . Another dis- of the case by the historians touches upon a series of
tinction is verba-consensus, as sources creating a problems connected with the earliest procedure in a
contract : on the one hand contracts concluded through CAUSA LIBERALIS, no matter whether the story is true
the use of prescribed oral formulae, on the other hand or legendary.
contracts arising from a simple formless consent of C. Appleton, R H D 24 (1924) 592; M. Nicolau, Catcsa
the parties.-~ee CONCEPTA VERBA,CONCEPTIO VER- liberalis (These Paris, 1933) 98; P. Noailles, lus et Fas
BORUM, ACT10 PRAESCRIPTIS VERBIS, OBLIGATIO VER- (1949) 187; v. Oven, TR 18 (1950) 159.
BORUM, INTERPRETATIO, and the following items. Veritas. Truth. The search for truth (veritatem
Verba certa ac (et) sollemnia. Words the use of quaerere, exquirere, perquirere, inquirere, requirere,
which is prescribed for the validity of an act con- spectare) is frequently stressed in both criminal and
cluded (e.g., stipulatio, acceptilatio, dictio dotis, con- civil trials. For the rule res iudicata pro veritate
farreatio, appointment of a cognitor in a trial, etc.). accipitur, see RES IUDICATA. In veritate esse = to be
In the earlier law. the use of words other than the real, true. The phrase occurs in discussions about
certa ac sollemnia, rendered the whole transaction the real value of a thing which is the object of a
void. Gradually, minor changes became permissible. judicial trial, as opposed to the value (interest) it
For the development of the stipulatio, the most typical represents to the plaintiff. Hence, ex z~eritateaesti-
act performed by the use of certa et sollemnia verba, mationem facere = to estimate a thing according to
See STIPULATIO.-See OBLIGATIO VERBORUM. its real value (vera aestimatio rei).
Verba facere. In the senate, to make a report, as the Verna. A slave born in the house of his parents'
presiding magistrate or as the proponent of a law, on master. Such slaves generally received better treat-
the t o ~ i csubmitted to the senate for discussion or ment.
vote. ?he report was followed either by an immediate Starr, ClPhilol 1942, 314.
vote or by an exchange of opinion among the senators
Versari. T o act. The term is used primarily of per-
upon request of the chairman (sententias rogare) .
Senators who were functioning magistrates could par- sons who administer the affairs of others (guardians,
ticipate in the discussion but could not vote.-See curators, negotiorum gestores) when their manage-
DISCESSIO. ment is incorrect or to the disadvantage of the bene-
O'Brien-Moore, RE Suppl. 6, 709. ficiaries because of fraud, negligence, or lack of
Verba facere ad populum. See CONTIO. experience on the part of the managers. Versari
Verba formulae. The text of the procedural FORMULA. (in passive voice) = to be taken into account, to be
-See CONCEPTA VERBA, ACTIO PRAESCRIPTIS VERBIS. examined (e.g., the factual and legal elements of a
Verba legis (edicti, senatusconsulti). The text of a case by a judge or by a magistrate when he was
statute ( a n edict of a magistrate or a senatusconsul- requested to grant an action or in the course of a
tum). Sometimes the reference to the verba legis is cognitio) . Syn. verti.
followed by a literal quotation. From the text of a Versum in rem. (Sc. patris, or domini.) What
legal enactment is distinguished its spirit, its intention turned to the advantage of a father (or master of a
(ratio, mens, sententiu) . slave) from a transaction concluded by a son (filius
Verberare (verberatio). See CASTIGARE, FUSTIS,FLA- familias) or slave. Under the actio de in rem verso
GELLUM.
Ecrivain, D S 5.
(see PECULIUM)the father was liable only to the
Verbi gratia. For example. The locution is frequent extent of the enrichment he obtained through the
in Gaius. transaction (even when he had given his consent
Verborurn obligatio. See OBLIGATIO VERBORUM. thereto), if the son (or slave) did not fulfill the
Verecundia. Respect, reverence for another person (a obligation assumed in the transaction. The term
parent or a patron), conscientiousness, honesty. versio in rem, used in the literature, is not Roman.
LCcrivain, N R H D 14 (1890) 487; Cicogna, StSefr 54 -C. 4.26.
(1940) 53. Solazzi, St Brugi (1910) 205.
762 AD0I.F BERGER [TRANS. AMER. PHIL.SOC.
Versura. The conversion of a loan at interest into Vestis collatio (vestis militaris). i\ tax for military
another loan at a different rate of interest. equipment.
G. Billeter, Gescli. dcs Zinsjrrssrs (1898) 138. Cagnat, D S 5, 773.
Verti. See VERSARI. Vestis forensis. See TOGA.
Verum est. I t is true, it is correct. Through this Vestis militaris. Clothes for soldiers; they were to
expression which occurs very frequently in juristic 1)e furnished by the provincial 1~ol)ulation (in the
writings, the jurists either underscored indisputable Ellll'ire) in the same way as food (see A N N O N A
opinions or limited a previous rule by referring it MILITARIS).-C. 12.39.
solely to a specific situation: "this holds true only Cagnat, D S 5 ; A. W. Persson, Stant aind Mart~rjaktrrrim
row. Reiche (Lund, 1923) 97.
when . . ." (quod ita detnum verilnt est, si . . . ,
or tofiens quotiens = in any case whenever . . .). Vetare. T o forbid, to prohibit. The term is used of
The jurists also used a negative formula with vcruttt legal enactments (statutes, illll)erial constitutions)
est (quod non, or iilininze verum est) to express their which forbade a transaction Or act (lex of
disagreement with another opinion. Sometin~esan magistrates who issued a prohibitive order, or of
approval expressed in the form of veyuffl est may private Persons (a principal, a a who
originate from the pen of Justinian's conlpilers, espe- within the framework of their authority forbade per-
cially when two divergent opinions are cited. The Sons depending upon them to do something. or
same is true of the loclltion quad verum (veyizrs, the vim fieyi veto (or a sinlple veto),
verissimum) est, when a discussion is closed by such INTERDICTAPROHIBITORIA, 'IER1
IUDICARE VETARE.
a statement (or qzrae sentenfia Vera cst). The deci-
sion as to whether such a clause in a specific text is Veteranurn mancipium. See Novlclus.
interpolated or not is a very difficult one, since, after A who his years of
all, the jurists must have had and used certain ex- service and was discharged. to
pressions to stress their agreement with another au- an enactment of Augustus, a legionnaire was dis-
thor's opinion.-See VERUS. charged after twenty years of service. The veterani
Guarneri-Citati, Indice' (1927) 91 and St Riccobono 1 were united in an elite detachment which had its own
(1936) 719 (s.v. esse). standard, vexillui~z; hence the unit was called vexilla-
verus.~ ~true,~ authentic.1 , is opposed to falsMs tio veteranorum. It could be called to service in the
(e.g., verus tutor, verum testanzentum, veri codicilli, event of enlergency; see EVOCAT1. The
verum testimoniunl). For vera rei aestii.natio, see enjoyed various privileges among which the most
important was exemption from con~pulsorypersonal
VERITAS. The adjective is also used to indicate the
services to the state (munera) ; they were, however,
(not Or fictitious) lega1 quality of a
not exempt from charges which were imposed on real
transaction Or personal situation (e'g., verW emPfor, property pafyimonii) and they paid taxes.
debifor, heres, dominus, Vera donatio, verum divm- penal law certain more humiliating penalties (such
tiunz). Sentenfia vera = a just, correct legal opinion; as flogging, castigatio fustibus, forced labor in mines
see VERUM EST. or public works) were not applicable to veterans.
Vestales virgines. Priestesses (originally five or even Generally they were not compelled to assume a
fewer, later six) of the goddess Vesta, the symbol guardianship or curatorship except when the ward
of chastity. Their legal situation was similar to that was a child of a soldier or of a veteran. Veterans
of the pontifices and fEamines. They were not subject were permitted to have their own associations, C O ~ -
to patria fotestas nor bound by any family ties. yor legia veteranoruiiz. Syn. vetus nziles.-D. 38.12;
were they under TUTELA MULIERUM.They were sub- 49.18 ; C. 5.65 ; 12.46.-See PECULIUM CASTRENSE,
ject to the jurisdiction of the pontiffs for negligence MISS1Oj EXCUSAT1ONES A MUNERIBUS.
Mispoulet, D S 5 ; Waltzing, DE 2, 350, 368; Schehl, Das
in the fulfillment of their religious duties; there was Edict Diocletians iiber die Immtinitaten der Veterancn, Aeg
no appeal from the judgment of the pontifices. For 13 (1933) 137.
unchastity they were scourged to death. The Vestales Veterator. See NOVICIUS.
were selected among girls of six to ten years of age, Veteres. The ancestors. With regard to earlier jurists,
born of patrician parents whose marriage had been the term is used of jurists who lived in more or less
concluded through confarreatio. orm mall^ their serv- remote times. In postclassical and Justinian sources
ice lasted thirty years, thereafter they weie permitted the term refers to the classical jurists without dis-
to leave and to marry.-See LEX PAPIA,LEX VOCONIA. tinction as to whether they lived in the Republic or
Hild, D S 5 ; Rose, OCD ; G. Wissowa, Religion und Kultus the early or late Principate.-See ANTIQUI.
der Rdmer' (1902) 433; Aron, N R H D 28 (1904) 5 ; Vetus consuetudo. See CONSUETUDO. Syn. veteribus
Brassloff, Zeitschr. fur vergleichende Rechtm'ssenschaft moris fuit (= the ancients used to).
22 (1909) ; T. C. Worsfold, The history oj the Vestal Vir-
gins of Rome, London (1934) ; Miinzer, Philologus 92 Vetus ius. Ancient law, the law of past times, an old
(1937) 47, 199; Solazzi, SDHI 9 (1943) 113. legal principle. The term may refer to a legal horm
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 763
which originating in earlier times was still in force viae praetoriae when their construction was ordered
or to an earlier legal norm which was amended by by a consul or praetor. Several Republican statutes
later law. Imitatio veteris iuris = a new law which dealt with the construction and maintenance of public
followed the pattern of former law.-See IUS A N - roads. Construction was in the hands of the higher
TIQUUM. magistrates and the censors, the administration and
Vetustas. Ancient times in Justinian's constitutions, supervision was assigned to the aediles, later (under
e.g., iura vetustatis. Syn. antiquitas. In the language the Principate) to special CURATORES VIARUM. In the
of the jurists vetustas is used of situations of very later Empire, the owners of bordering property were
long duration which were considered as legal if there generally bound to maintain the roads running along
was no evidence to the contrary. The rule that their property (Cod. Theod. 15.3). Erection of
"vetustas is considered as a law" (pro lege habetur, monuments on public roads was prohibited. The use
D. 39.3.2 pr.) was of particular importance in rela- of viae publicae by the population was under inter-
tions between neighbors when the owner of land from dicta1 protection; see INTERDICTUM DE VIIS PUBLICIS.
time immemorial had certain profits from a neighbor's -D. 43.8; 10; 11.-See QUATTUORVIRI VIIS I N URBE
property (e.g., use of water). In another sense, PURGANDIS, DUOVIRI VIIS EXTRA URBEM PURGANDIS.
vetustas indicates the bad state of a building (e.g., Chapot, D S 5 ; Voigt, Rom. System der Wege, BerSachGW
dilapidation) which required repair because of its 1872.
"old age." The owner was bound to repair the Viae consulares, praetoriae. See VIAE.
defects for the benefit of the tenants. Viae militares. Roads built for military purposes.
Vetustiores. Ancestors. Viae vicinales. Roads which are in, or lead to, vil-
Vetustus. Ancient, old. Vctustuin (vetustissimunz) lages. They were generally public if they served
ius, vetustae leges = the ancient law (laws). for traffic to, and from, the village even when main-
Vexare. T o molest, to harass (vexare adversarium tained by the owners of the adjacent lands.
litibus = to harass one's adversary with lawsuits). Viasii vicani. Beneficiaries of public land (AGERPUB-
-See CALUMNIA. ~ r c u s )to whom plots situated alongside a public
Vexillarius. The soldier who bore the standard or a road were assigned. They were bound to maintain
soldier of a military detachment (see VEXILLATIO) . the corresponding sections of the road.
Vexillatio. (From vexillum = a military banner.) A Grenier, D S 5, 857.
military detachment. The term applies to infantry Viaticum. Travel expenses. A plaintiff who incon-
units, cavalry squadrons, auxiliary troops and ma- siderately (temere) summoned another to court had
rines, even to smaller units to which a special military to reimburse him for the expenses connected with his
task was assigned. Sometimes vexillum is used in appearance before the magistrate. Expenses also had
the sense of vexillatio. For vexillatio veteranoruin, to be paid to a partner in a societas who made a
see VETERANUS. In the later Empire, military units journey in its interest. A small amount of money
serving in the imperial palace (vexillationes palatinae. which exiled persons were permitted to take with
Cagnat, DS 5 ; Liebenam, RE 6 , 1606; M . Mayer, Vexil- them when going into exile, was also' called viaticztm.
lum and vex,illarius (Diss. Strassburg, 1910). Finally, viaticum was the travel money given to am-
Vi bona rapta. Goods taken away from the owner (or bassadors sent on an official mission abroad.
possessor) by force.-See RAPINA. Lkcrivain, DS 5.
Via. A rustic servitude (see SERVITUTES PRAEDIORUM Viatores. Subordinate officials, assigned to the office
RUSTICORUM) which entitled the owner of a land to of a high magistrate or of a plebeian tribune, who
use a road on his neighboi's land for driving in a carried out orders of their superiors, summoned or
carriage or riding on horseback. The seruitus viae arrested persons and brought them to court, trans-
automatically implied the right to walk and pass mitted messages to senators or other magistrates,
through (see ITER) as well as to drive draught ani- intervened in the convocation of the senate, and the
mals and vehicles (see ACTUS)through the other's like. They belonged to the lower official personnel
property. (see APPARITORES).-SeeLEX CORNELIA DE VLGINTI
Severini, N D I 12, 2 ; Arangio-Ruiz, St Brtbgi (.1910) 247; QUAESTORIBUS.
Aru, StCagl24 (1936) 405 ; Biondi, St Besta 1 (1939) 267 ; Lengle, RE 6A, 2488; LCcrivain, D S 5.
Solazzi, S D H I 17 (1951) 257. Vicanus. An inhabitant of a village (v~cus).-C.
Viae. Roads. A distinction was made between pri- ll:57.-see VIASII.
vate and public roads. Private roads (viae privatae, Vicarianus. ( O r VICARIUS, adj.) Connected with, or
called also agrariae) were the roads which led through pertinent to, a vicarius, the governor of a dioecesis
private land. Use could be granted by the owner to (in the later Empire).
private individuals or to groups of neighbors, in an Vicarius. One who acts in another's place as his
unlimited or limited measure (see VIA,ITER,ACTUS). substitute. Syn. vice agens.-See VICE.
Public roads (viae publicae) were open to the use Vicarius. In public law, the chief of the administra-
of the people. They are also called viae consulares or tion (governor) of a DIOECESIS in the later Empire.
764 ADOLF BERGER !TRANS. AMER. PHIL.SOC.
They were purely civil officials also charged with the De Ruggiero, DE 1 , 354; Cantarelli, Bull. Comm. Archcol.
administration of justice.-C. 1.38. Comunalc di R o r ~ ~1890,
a , 28 ; Cuq, N R H D 23 (1899) 393 ;
Ucrivain, DS 5 ; De Villa, NDI 12, 2. A. Stein, Hcrmcs 60 (1925) 97.
Vicarius in urbe (Roma), Following Diocletianps Vice sacra. (Acting) in place of the emperor. The
reform of the administration, the vicarius residing in praefecti praetorio in the praefecturae of the Empire
Rome was the head of the administration of the and the praefectus urbi in Ronie (after Diocletian's
southern part of the dioecesis Italia (the so-called reform of the administration) were considered as
suburbicariae regiones and the islands) except for acting vice sacm.-See IUDrCANs 'ICE SACRA.
the district subject to the praefectus urbi. Under Vicem legis obtinere. See LEGIS VICEM OBTINERE.
Constantine he the functions of the former Vices (vicem' vice) agens. A in Pro-
vicarius praefecttcrae urbis and had from that time vincial and
De Ruggiero, DE 1 , 353.
the title of vicarius urbis Romae.
RE 5, 7 3 1 ; F. M . De Robertis, La Vicesima hereditatium. A five per cent inheritance
penale nello circoscrigione dell'urbe (1937) 43 ; idem, Studi tax paid by Roman citizens on testamentary and intes-
di diritto penole rom. (1943) 43. tate successions worth 200,000(?) sesterces or more.
Vicarius Italiae. The chief of the administration of It was introduced by Augustus. Responsibility for
the northern part of the dioecesis Italia (the districts collecting the vicesiirza hereditatium was in the hands
north of the Apennines) after Diocletian's reform of special officers, procuratores hereditatiu1lz.-C. 6.33.
of the administration. His residence was in Milan. -See APERTURA TESTAMENTI, LEX IULIA
( ? ) DE
official (e.g.7 vice praesidis, legat;, proconsulis) this much as they determined the extent to which one
indicates an official (a procurator) in the provinces neighbor might use the property of the other. Con-
who temporarily assumed the functions of an absent troversies between neighbors arose for various rea-
or dead governor. Syn. agens vices (partes) prae- sons involving actual or threatened violation of the
sidis, partibus praesidis fungi. Vice alicuius fungi = rights of one by the other.-See CAUTIO DAMNI
to act in place of another. Vice alicuius rei (e.g., INFECTI, OPERIS NOVI NUNTIATIO, ACT10 AQUAE PLU-
testamenti, legati, pignoris) = to be considered as VIAE ARCENDAE, PARIES COMMUNIS, TIGNUM IUNC-
being in the place of (a testament, a legacy, a pledge). TUM, ACT10 FINIU* REGUNWRUM, CONTROVERSIA DE-
however, not a punishment for a culprit condemned. Juncker, Gedachtnisschrift fur E. Seckel (1927) 209; Diilf,
Ant. vincula privata = fetters applied by private per- ZSS 54 (1934) 98; P. Noailles, Du droit sacrb au droit
civil (1950) 52.
sons, see VINCULA.-See CUSTODIA REORUM.
iuris. A lega1 tie (bond). The Vindicare necem (mortem). T o avenge the assas-
sination of a man by an unknown murderer by
is used in the definition of OBLIGATIO.
cuting all the slaves who lived with him in the same
Vinculum ~ignoris. he tie by which a pledge (Pig- household.-see SENATUSCONSULTUM SILANIANUM,
nus) is bound on behalf of the creditor. Vinculum QUAESTIO PER TORMENTA, TECTUM.
pignoris is the right a ransomer Over the Vindicatio (vindicare). In earlier times, the act of
prisoner war whom he redeemed from the enemy; avenging an offense, self-defense against the violence
see REDEMPTUS AB HOSTE. of an aggressor. Later, the term was applied to the
G. Faiveley, Redemptus ab hoste (These Paris, 1942) 112.
defense of one's property by seeking its recovery in
Vindemia. The vintage SeaSon (tempus vindemiae>
.
vindemiarum). It was taken into consideration by
court. Gaius (Insf, 4.5) called all actioner in rem
(see AcTIoNEs I N vindicationlsand jus-
the law in the same way as the harvest period tinian accepted his terminology (Inst. 4.6.15). See
(tempus messis vindemiaeve). During these seasons VINDICATIO. Vindicatio is also used for the
jurisdictional activity was exercised only in cases prosecution of certain wrongdoings, such as ADuL-
which might be lost to the plaintiff because of lapse TERIUM,Or cOrruPtiO albi (see ACTIo DE ALBO COR-
time (PraescriPtio, Or usucaPio On the Part the R U P T ~ ) For
. other applications of the term, see the
defendant) or when perishable things were inv'lved. following items.-see LEGATUM PER VINDICATIONEM.
-See ORATIO MARCI on I N IUS VOCATIO. Vindicatio coloni (or in colonatum). I n the later
index. or the vindex intervening for a Person Empire, the claim of a landowner asserting that a
summoned to court, see I N IUS VOCATIO.The vindex was his COLONUS.
guaranteed the appearance of the defendant at a fixed Vindicatio familiae pecuniaeque. The earliest form
later date. Should the defendant fail to do so, the HEREDITATIS PETITIO.
vindex was liable to the plaintiff and could be sued vindicatio filii. ~h~ claim of the head of a family
under the formulary ~rocedureby a praetorian actio for the delivery of his son held by another. Analo-
in factum. A vindex was acceptable to the magis- gous was the vindicatio of a wife being under the
trate only if he was wealthy enough to guarantee the marital power (in manu) of her husband, by the
eventua1 payment.-* vindex (guarantor) was latter since her legal situation was that of a daughter
permissible in the LEGIS ACTIO PER MANUS INIECTIO- (filiae loco).-See INTERDICTUM DE LIBERIS EXHI-
NEM to save the defendant, who had been con-
BENDIS.
demned in a previous trial and did not pay the vindicatio gtegis. seeGREX.
judgment debt, being led the plaintiff'^ Vindicatio hereditatis. See HEREDITATIS PETITIO,V I N -
house and put in fetters. The vindex had either DICATIO =AMILIA= PECUNIAEQUE.
to pay the judgment debt of the principal debtor at Vindicatio in ingenuitatem. See the following item.
once or to defend him by denying that the manus in- vindicatio in libertatem. action in favor of a
iectio was justified. When defeated in the trial, the free person held by another as a slave. See ADSERTIO,
vindex had to pay the plaintiff double. Both kinds CAUsA LIBERALIS. A Similar case was the vindicatio
of vindices disappeared in later law. In Justinian's in ingenuitatem whereby one defended the status of
legislation they were replaced by the fideiussor iudicio another man as free-born; see INGENUITAS, Ant,
sistendi causa (qui aliquem iudicio sisti promiserit = vindicatio in whereby the claimant as-
one who promised to bring another to court).-D. serted that another man was his slave though gen-
2.10.-See VADIMONIUM, IUDICATUM,MANUS I N - erallv considered free.
IECTIO. Vindicatio in servitutem. See VINDICATIO I N LIBER-
Cuq, D S 5; Severini, NDI 12, 2; I?. Kleineidam, Die Per-
sonalexekution der Zwiilf Tafeln (1904) 146 ; Lenel, ZSS TATEM,VERGINIA'
26 (1905) 232; Schlossmann, ;bid. 308; G. Cicogna, V. e Vindicatio pignoris. Often applied to the action of
vadimonium (1911) : N. Corodeanu. Sur la fonction du v. a creditor who claimed the recovery of a pledge from
:
(Bucharest, 1919) ~ e n e Edictum
~, erpetuum' (1927) 65;
Diill, ZSS 54 (1934) 112; Leifer, Ztschr. fur vergl. Rechts-
the debtor on the ground that his dbligati& h a been
d s . 50 (1935) 5; L. Maillet, La thborie de Schuld et
discharged.-see HYPOTHECA, ACTIO QUASI SERVIANA.
~~f~~~~ ( ~ h ~+ ~i ~ ~ . ~ 1944) ~ -84; p pugliese, Vindicatio
~ ~ ~ ~ ~ ~ ~ , servitutis. The action of a person against
RIDA 2 (1949) 251 ; Kaser, Das altrdm. IUS (1949) 194; the owner of land on which the plaintiff claims a
P. Noailles, Du droit sacrC au droit civil (1950) 143. servitude. The action is also called actio confessoria.
Vindex civitatis. ' See DEFENSOR CIVITATIS. On the other hand, the landowner was protected
Vindicare (vindicatio). Eventually assumed a gen- against any one to whom he denied a servitude on
era1 meaning-beyond the domain of REI VINDICATIO his property by an action called actio negatoria or
--of laying claim to, asserting one's right to.-See actio negativa. Similar was the use of an action
the following items. termed actio prohibitoria (its origin is controversial)
va. 43, PT. 2, W S J ] ENCYCLOPEDIC DICTIO NARY OF ROMAN LAW 767
by which the landowner asserted his right to prevent examined. The controversial ol~ject was touched
another from exercising a servitude on his land. with a rod by the person asserting his ownership.
Leorrhard. RE 4, 871 (s.v. confessoria actio) ; V . Arangio- Gaius (Inst. 4.16) identifies vindicta with PESTUCA.
Ruiz, Roriora (1946, e x 1908) 1; G. Segre, MI1 Girard 2 According to a recent opinion, the term is derived
(1912) 511; Biondi, AnMes 3 (1929) 93; Buckland, LQR
46 (1930) 447; Boha?ek, BIDR 44 (1937) 19, 46 (1939) from vim dicere (vis dicta), indicating the act I)y
142; Solazzi, Tutela delle servitri prediali (1949) 1 ; Alba- which the parties emphasized their power over the
nese, AiiPal 21 (1950) 24; Grosso, St Albertario 1 (1951) thing in dispute.-D. 40.2 ; C. 7.1.
593. Cuq, DS 5 ; Beseler, Hermes 77 ( 1942) 79 ; M. Kaser, Das
Vindicatio tutelae. The claim for guardianship of a altrom. Ius (1949) 327; P. Noailles, Ius et Fas (1948) 46
(= R H D 19-20 11940-411 1) ; P . Meylan, MI1 F. Guisan
person who was entitled by law to I)e the guardian (Lausanne, 1950) 29.
(tutor fegitinzzu) of a near relative.-See TUTELA
Vindicta. With regard to criminal offenses, vengeance,
LEGIT1 MA.
retribution, a penalty inflicted in return for an of-
Virrdicatio ususfructus. Analogous to vindicatio ser- fense, criminal prosecution.
vitutis when a usufruct on another's man property is
Vindius Verus. A little known jurist of the second
claimed.-See VINDICATIO SERVITUTIS.
G. Grosso, I problenzi dei diritti reoli (1944) 132; Sc~ascia, century, member of the council of the emperor
BIDR 49-50 (1948) 471. Antoninus Pius.
Vindicatlo uxoris. See VINDICATIO FILII. Kunkel, Herkunft urtd snziale Stellung der rom. Juristen
1952, 167.
Vindiciae. Possession of a thing which was the object Vinum. For crimes committed by intoxicated person
of a judicial trial under the procedure of LECIS ACTIO (per vinum), see IMPETUS.~runkenness= ;brieta:
SACRAMENTO and which was assigned for possession
(vindicias dicere) to one of the parties, normally to
the actual possessor, by the jurisdictional magistrate. violatio sepulcri. Violation, desecration, of a gravc
If this party lost the case (VINDICIAE FALSAE), he had Different offenses were punished as a crimen viola
to hand over the thing together with double the pro- sepulcri, in the first place burglarizing a grave bc
ceeds he may have received from it in the meantime. longing to another or opening one in order to b u ~
In earlier Latin vindiciae (or vindicia) was the thing a dead body therein. The wrongdoer could be suc
itself about which there was a controversy.-See for damages by the person who had the IUS SEPULC
PRAEDES LITIS ET VINDICIARUM, CAUTIO PRO PRAEDE
over the grave under the ACTIO SEPULCRI VIOLA-
LITIS ET VINDICIARUM.
This was an actio popularis so that if the persl
Cuq, DS 5 ; E. Weiss, Fschr Peterka (Prague, 1929) 69. interested in the first place did not accuse the culpl
Vindiciae falsae. Occurred if the party to a trial who any Roman citizen could do so. Penalty for mir
received temporary possession of the thing in dispute infractions was a fine of 100,000 sesterces and infan
from the praetor (see VINDICIAE) lost the case under Major violations, such as taking away a corpse
the judgment. According to the Twelve Tables he robbery committed with the help of armed acco
had to restore to the adversary the thing itself and plices, were punished by death.
Pfaff, RE 2A, 1625; Gerner, RE 7A, 1742; Gcrivain,
double the proceeds (fructus duplio). The assign- 4, 1208; Cuq, R H D 11 (1932) 109; E. Wesenberg,
ment of possession by the praetor to the wrong party strafrechtliche Schutz der geheiligten Gegenstande ( I
was termed vindicias f ~ l s a sdicere. Gottingen, 1912) 95; A. Parrot, MalIdiction et viok
E. Petot, Etudes Girard (1912) 229; Weiss, Fschr Peterka des tombes (1939) ; Arangio-Ruiz, FIR 3 (1943) no
(Prague, 1929) 72; Ratti; St Riccobono 2 (1936) 421; Violentia. Violence, use of physical force.-See
Levy, Z S S 54 (1934) 306; M. Kaser, Restituere als Niedermeyer, St Bonfante 2 (1930) 281.
Proressgegenstond (1932) 16 ; idem, Eigentum und Besitz
(1943) 72. Vir bonus. An honest, upright man (a Roman
M. Kaser, Eigentum und Besitz, 1943, 76. those governed by good faith (bona fides), the j.
Vindicias dicere secundum libertatem. Occurred in ment (arbitrium) of a third impartial and hc
a person, the praetor ordering that he be considered by a contractor or an artisan (locatio cond
a free man until the final decision.-See CAUSA LIBE- operis). The moral qualifications of a vir t
P. Noailles, Du droit sacrb ou droit civil (1950) 192; Van T. Sinko, De Romanorum viro bono, Transactions
Oven, T R 18 (1950) 172. prawy) of the Academy of Sciences in Cracow 36
Vindicta. A rod used for symbolic gestures in the 251 ; v. I.iibtow, ZSS 66 (1948) 520.
enfranchisement, called MANUMISSIO VINDICTA,and Vires. (Pl. of vis.) The financial strength (m
the question of Quiritary ownership of a thing was of goods ( a dowry, a peculium).-See FACUL'
Virga. A rod, a whip used for flogging.-See CASTI- not regarded as possessing by force (vi). In the
CARE. field of penal law, the distinction between vis pri-
Virgo Vestalis. See VESTALES VIRGINES. vatu and vis publica is fundan~ental: "whatever is
Virilis. Befitting a man (not a woman) ; see OFFICIUM done by violence is either a crime of vis publica
VIRILE;a share in an intestate inheritance pertaining or of vis privata" (D. 50.17.152 pr.). The zds
to one heir and equal to the shares of other heirs = privata, force used against a private individual in
pars viri1is.-See PORTIO HEREDITARIA. order to commit robbery, was considered a private
Viripotens. A marriageable woman.-See IMPUBES. delict, like theft (furtum), and was prosecuted by a
Viritim. Personally, individually. Viritim donatus penal action (actio poenalis) of the person injured,
the actio vi bonorum raptorum; see RAPINA. The
civitate Romana (in inscriptions) = a foreigner who
conceDt of vis bublica, a crime committed with vio-
was personally granted Roman citizenship. Viritim lenceLand prosecuted by the state in a criminal trial
distribuere = to divide (e.g., an inheritance) among (iudicium publicum), was first established in the LEX
several persons in equal shares.-See VIRILIS. PLAUTIA DE VI (78-63 B.c.?) and, later, by the coni-
Virtus. Bravery, courage. Competition in ,athletic prehensive legislation of Augustus, LEX IULIA DE VI
games was considered a contest in bravery (certamen PUBLICA and LEX IULIA DE VI PRIVATA. The distinc-
in virtute) .-See LEX CORNELIA DE ALEATORIBUS. tion which was neatly defined in this legislation was
Vis. The power one has over a free person (vis ac later distorted through imperial enactments and in
potestas) . With reference to legal enactments (vis Justinian's compilation. The sources are frequently
legis), to contractual relations (vis stipulationis), or contradictory in the qualification of certain outrageous
unilateral acts (vis testament;) = validity, effective- acts as vis publica or privata. The original distinc-
ness. Hence vim (vires) habere = to be valid; vim tion may have been based on whether the crime vio-
(vires) accipere, optinere = to become legally valid. lated direct interests of the state (vis publica) or
Ant. nullas vires habere. those of a private person (vis privata). "Many crim-
Vis. Violence, force. The term occurs in both private inal offenses are covered by the term of violence"
and penal law, but it is defined differently for the (C. 9.12.6) ; among the instances of vis'publica are
two provinces. Whereas in the first the concept of mentioned acts of violence committed in public with
vis is taken in a broader sense and even in different the assistance of armed bands in order to- provoke a
implications, for the penal law it is understood as a riot or sedition, disturbing a trial in court, a popular
major infraction and qualified as crimen vis (crime assembly during a vote or election, or the senate,
of violence). In the law of obligations, vis (the use exercising pressure on a judge, appearance in public
of physical force or moral compulsion by one person with arms or armed bands to DreDare - . an attack
against another) might provoke fear (metus) in the against temples or city gates, disturbing a funeral,
latter. Hence the two elements "force and fear" (vis etc. Various kinds of abuses committed by officials
ac metus) are mentioned together in discussions of and major breaches of official duty were also punished
the influence of METUS on legal transactions. The as vis publica. Even in certain cases of vis privatn
praetorian Edict dealt with vis not only in the section (more atrocious assaults, the use of arms) public
concerning duress (metus) but also with regard to prosecution of the crime was possible in addition to
possession when a person was dispossessed by force. the private penal action of the individual injured.
In several provisions the praetor forbade the use of Together with the extension of the instances of vis
force to disturb existing possessory situations (see fublica more severe punishment was inflicted in the
VIM FIERI VETO),o r he protected public works and later imperial legislation (deportation combined with
institutions against any hindrance ("ne vis fit") confiscation of property became the normal penalty,
which might impair their public use. Such actions and from the time of Constantine the death penalty
were considered as vis. no matter whether real force was very frequent).-D. 4.2; 43.16; C. 2.19; 8.4; 5.
was actually applied or not. See INTERDICTA PRO- For vis publica Inst. 4.2; D. 47.8; C. 9.33.-See UTI
HIBITORIA, INTERDICTUM QUOD V I AUT C L A M , INTER- SUO IURE, INTROIRE DOMUM, VIS ARMATA, V I BONA
DICTUM DE VI. Thus arose the rule: "All that one RAPTA,LEX POMPEIA DE VI, TUMULTUM, TURBA, and
has done when he was prohibited (from doing it) is the following items.
considered to have been done with violence" (.D. LCcrivain, D S 5 ; Berger, RE 9, 1614, 1663, 1677; Nieder-
meyer, St Bonfartte 2 (1930) 400; U. v. Liibtow, Der
50.17.73.2). Vis appears among the so-called vztia Edictstitel quod metus causa (1932) 101 ; C. Longo, B l D R
possessionis (legal defects of possession) inasmuch as 42 (1934) 99; Nardi, SDHI 2 (1936) 120; Castello, RISG
possession acquired by force was qualified as pos- 14 (1939) 279 ; M. David, Interdit quod vi aut clam (1947)
sessio vitiosa (iniusta) . See EXCEPTIO VITIOSAE POS- 25. For vis publica: Mommsen, Rom. Strafrecht, 1899,
SESSIONIS, INTERDICTUM UTI POSSIDETIS, RES V I POS- 653; J . Coroi, La violence en droit crim. rom. (1915) ;
Berger, Gottingische Gelehrte Anzeigen, 1917, 344; Costa,
SESSAE. H e who uses force to defend and retain his RendBol2 (1917/18) 23; Flore, St Bonfattte 4 (1930) 335;
possession, when illegally attacked by another, is Aru, AnPal 15 (1936) 163.
VOL. 43, FT. 2, 19531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 769
Vis armata. Violence committed with the use of arms a commentary on the work of Vitellius (ad Vitel-
(arma). By arms are understood not only all kinds lium) ; it seems, however, that he did not use Vitel-
of weapons (see TELUM)but also stones and clubs lius' writings directly, but Sabinus' commentary ad
(justis). The term vis armafa occurs in connection Vitellium.
with the dispossession of another from his property. Berger, RE 10,713 ; Kunkel, Herkunft und so-hle Stellung
If the aggressor was armed but did not make use of der rom. Juristen, 1952, 117.
the arms, his assault was nevertheless considered as Vites. Vines. Gaius used vines as an example to
vis armata since his having arms alone produced f e a ~ illustrate the necessity imposed by the Twelve Tables
(terror armorum) in the person attacked.-D. 43.16. of applying the precise words of that legislation in the
See INTERDICTUM DE VI. legis actiones. "If one sued another for having cut
Berger, RE 9, 1680. down his vines and used the word vites, he lost the
Vis atrox. Violence committed in a particularly atro- claim because the Twelve Tables, on which his claim
cious manner.-See INIURIA ATROX. was based, spoke of 'trees' and therefore he had to
Vis divina. See VIS MAIOR. refer to trees cut down in his claim" (Inst. 4.11).
Vis ex conventu. Violence under agreement, a simu- Vitiari. To be legally defective, to have no legal
lated violence used by one of the parties to a con- effectiveness.
Hellmann, ZSS 23 (1902) 413.
troversy about possession of an immovable after the
pertinent interdict (e.g., uti possidetis) was issued. Vitiose. Used of acts, transactions, possession, securi-
The interdict being only a provisory settlement of the ties, etc., which suffer from a legal defect (see VI-
case, it was necessary, in order to bring the contro- TIUM) and, consequently, are invalid. Ant. sine vitio.
versy to an end, that one of the parties act against Vitiosus. See VITIOSE. "What is defective (vitiosum)
the order of the praetor vim fieri veto by dispossessing from the very beginning cannot become valid by a
the actual possessor. Instead of using real force, this lapse of time" (D. 50.17.29).-See TRACTUS TEM-
was accomplished by agreement of the partits through PORIS, POSSESS10 INIUSTA, VITIUM POSSESSIONIS.
a violenceless, peaceful dispossession which made the Vitium. When referring *toa legal act or transaction,
post-interdicta1 procedure possible. See INTERDICTT:,I a legal defect resulting from non-observance of the
SECUNDARIUM. The connection of the vis ex conventti prescribed formalities or the legal inability of the
(to which only Gaius, Inst. 4.170, alludes, without acting person. Hence sine vitio = blameless, without
using the term itself) with an institution mentioned any defect. Vitium is also used in the sense of a
solely by Cicero (pro Caec. 7.20 ; 10.27; 11.32 ; 32.95 ; loss, damage (damnum), as, e.g., vitium facere, or
pro Tullio 8.20; vis ex conventu: Cic. pro Caec. of a fault (culpa) .-See the following items.
8.22), deductio quae moribus fit (putting one out Cuq, D S 5.
[of possession] according to the customs), is not Vitium aedium. A defective and dangerous condition
quite clear. of a building or other construction (of a work done
Berger, RE 9, 16%; Saleilles, N R H D 16 (1892) 32; Mit- vitium operis). Syn. aedes vitiosae.-See DAMNUM
teis, Z S S 23 (1902) 298; Chabrun, N R H D 32 (1908) 5; INFECTUM.
Costa, Cicetone giureconsulto2 1 (1927) 125.
G. Branca, Danno temuto (1937) 105 and passim.
Vis fluminis. A great flow of water in a river, a flood. Vitium animi. A mental (psychical) defect or dis-
It is considered equal to an earthquake or storm as ease. Ant. vitium corporis (corporale) = a chronic
a FORTUITUS CASUS which excused a person from physical defect (e.g., blindness, deafness). The dis-
appearance in court at a fixed date.-See VIS MAIOR, tinction is discussed in connection with the sale of
CASUS.
slaves and the remedies granted by the aedilician
Vis maior. Superior force, an accident which cannot Edict in the case of unvisible defects of slaves sold.
be foreseen or averted because of "human infirmity" -See ACTIONES AEDILICIAE, MORBUS, ERRO,SERVUS
(D. 44.7.1.4$, such as an earthquake (see TERRAE FUGITIVUS, REDHIBITIO, ACT10 QUANTI MINORIS.
MOTUS),a flood (see VIS FLUMINIS), a storm (see H. Vincent, Le droit des idiles (1922) 43; R. Monier, L a
TEMPESTAS), incursion of an enemy, violent attack by garantie contre les vices cachis duns la vente romaine
robbers or pirates (not a simple theft) which ,cannot (1930).
be repulsed, and the like.-See RECEPTUM NAUTARUM,Vitium corporis (corporale). See VITIUM A N I M I .
CASUS, TUMULTUS. Vitium operis. See VITIUM AEDIUM. Vitium operis,
De Medio, BZDR 20 (1908) 157; D. Behrens, Die vis m. when referring to a construction of a building, is
und das klassische Haftungssystem, Giessen (1936) ; G. I.
Luzzatto, Caso fortuito e forza maggiore 1 (1938) ; Con- distinguished from vitium soli = the bad condition of
danari-Michler, Fschr Wenger 1 (1944) 236. the soil on which the construction was built. If the
Vis privata, vis publica. See vrs. building (construction, opus) collapsed because of a
Vita. See IUS VITAE NECISQUE. defect in the construction, the contractor was liable;
Vitellius. A little known jurist of the time of Augus- if, however, this happened because of the bad state of
tus, contemporary with Labeo. The jurist Paul wrote the soil, the owner had to bear the loss.
770 ADOLF BERGER (TRANS. AMER. PHIL.SOC.
Vitium possessionis. See POSSESSIO INIUSTA,EXCEP- fects only if it was free, i.e., not produced by error
T I 0 VITIOSAE POSSESSIONIS, CLAM. (see ERROR),fraud (see DOLUS)or by violence (see
Vitium rei. A legal "defect" in a thing which renders VIS, METUS). Except for cases for which the law
its acquisition through usucapio impossible (e.g., prescribed a specific form (words, witnesses, writing)
stolen things = res furtivae, things taken by violence the formless manifestation of will could be expressed
= rcs vi possessae, things belonging to the fisc). orally (verbis), in writing (in scriptis, scriptura) , by
Vitium soli. See VITIUM OPERIS. signs (see NUTUS)or by acting in a way which did not
Vitium verborum. A defect in a written or oral dec- admit of any doubt about the person's will (tacitc,
laration, resulting from the use of words other than see SILENTIUM).Hence the distinction between a
those prescribed by law. voluntas factually expressed in one way or another
Vivianus. A little known jurist of the first century and the z,olttntas the person really had. "There is a
after Christ, author of a commentary on the prae- difference between a will which was expressed (vo-
torian and aedilician Edicts. luntas ewpressa) and one which really exists" (D.
Vocare (vocatio). T o summon a person to appear 45.1.138.1). "If there is no ambiguity in the words
in court. A magistrate could summon a witness to used, a query about the will (voluntas) should not be
testify, a guardian to render an account of his admin- admitted" (D. 32.25.1). Doubts arise when one's
istration of a ward's property, an accused in a crimi- voluntas was expressed in obscure, ambiguous words,
nal matter (vocare in crimen). written or spoken. "In an ambiguous (equivocal)
Cuq, DS 5. saying we do not say both one and another thing,
Vocare ad hereditatem. T o designate an heir. The but only that one we want to say; but he who says
tern] is used both of an intestate inheritance (lex anything other than what he wished, neither says
7locnt) and of the appointment of an heir by a testator what the words (vox) signify because he does not
in his will. want it, nor what he wants because he did not say it"
Vocari ad munus. T o be called by an official order (D. 34.5.3). I n the earlier law a contrast between
to render conlpulsory personal service or to assume voluntas and its expression through verba or scripta
a certain charge (munus) in the interest of the state. was not taken into consideration. I n a formalistic
Vocatio. See EVOCATIO. legal system, only what had been expressly said had
Vocatio in ius. See I N IUS VOCATIO. legal value. But already at the end of the Republic
Vociferatio. See CONVICIUM. a contradiction between volu.rttas and verba became a
Voconiana ratio. See LEX VOCONIA, RATIO VOCONIANA. problem which did not escape the jurists' interest.
Volcatius. An unknown jurist of the early first cen- The remark in Quintilian (Inst. orat. 7.6.1) "the
tury B.c., a disciple of the renowned jurist Quintus jurists very frequently raise the question of written
Mucius Scaevola. words and intention (voluntas) and a major part of
Kunkel, Herkunft und soziale Stellung der ront. Juristetz, controversial law (ius controversum) depends upon
1952, 20. it," was not a fantasy of the famous rhetorician, who
Volens. One who agrees, who gives his consent. expressly states (7.5.6) that his saying refers not
"There is no injury done to a person who consents only to statutes but "also to testaments, agreements,
(in zlolentem)" (D. 47.10.1.5).-See FRAUDARE. stipulations and any written documents, and to oral
Severino, NDI 12, 2, 1135. declarations as well." The once widely diffused doc-
Volgo. See VULGO. trine in the Romanistic literature to the effect that
Volo. See VELLE. expressions like animus, afectio, mens, voluntas, con-
Voluntaria iurisdictio. See IURISDICTIO CONTENTIOSA. cerned with the individual will of a person, as well as
decisions based on taking it into consideration, are
Voluntarii. Voluntary soldiers organized in special
suspect in the writings of classical jurists, may now be
units, cohortes voluntariorum.
considered exaggerated and misleading. The rules
Voluntarius heres. See HERES VOLUNTARIUS. set by Papinian, "It has been held that in agreements
Voluntas. A wish, a desire, a will, an intention. between contracting parties the will should be rather
Volttntas as an element of one's action in the legal taken into consideration than the words" (D. 50.16.
field acquires importance in the legal life of a social 219), and with regard to testaments, "in conditions
group and of an individual when it is expressed
settled in a testament the will (sc. of the testator)
orally or in writing or is manifested in some other
manner in a clear, unambiguous way, either in a should be considered (considerari) rather than the
unilateral act (a testament) or in a contract. The words" (D. 35.1.101 pr.) doubtless reflect the opinion
manifestation of will is taken into consideration as prevailing in his time in favor of the element of
valid only if the person involved is able to express volition. I n Justinian's law voluntas reached its
his will. Infants and lunatics (see FURIOSUS)were climax in the whole legal system as a decisive element
considered not td have a will at all. The will of a in the evaluation of the validity, and in the interpre-
person, appropriately expressed, produced legal ef- tation, of manifestations of will.-Voluntas sometimes
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTI( rIARY O F ROMAN LAW
means consent, approval (voluntatem dare). For the priests of the divinity had any action against the
voluntas of persons committing crimes or illicit acts promisor.
( = evil intention), see DOLUS MALUS, ANIMUS, CONA- Toutain, D S 5 ; Ferrini, NDI 12, 2, 932; Eitrern, O C D ;
TUS, C O N S I L I U M , INTENTIO.-See, moreover, VERBA, Brini, RendBol 1908; Wissowa, Religion und K~tltusder
Rome? (1912) 380.
NUDA VOLUNTAS, ANIMUS, MENS, AFFECTIO, SILEN-
TIUM,SIMULATIO, IOCUS,INTERFRETATIO, and the fol- Vox. A spoken word, an oral declaration.-See vo-
LUNTAS.
lowing items.
Guarneri-Citati, Indice' (1927) 91 ; idem, St Riccobono~l Vulgare. T o make public officially (e.g., an imperial
(1936) 743; idem, Fschr Koschaker 1 (1939) 156 (for rescript). The term is found in the language of the
interpolations) .-Donatuti, BIDR 34 (1925) 185 ; Soko- imperial chancery.
lowski, Mil Corrtil 2 (1926) 425; Brasiello, StUrb 3
(1929) 103; Levy, ZSS 48 (1928) 74; Jolowicz, LQR 48 Vulgaris. Common, commonly used. The term also
(1932) 180; Albertario, St Bonfante 1 (1930) 645 (= Studi refers to actions (vulgaris formula, actio, vulgare
5, 1937, 112) ; Hirnmelschein, Symb Frib Lenel (1931) iudicium) but has no technical meaning. It indicates
373; Pringsheim, L Q R 49 (1933) 43, 379; Grosso, St Ric- an ordinary action as opposed to those granted ex-
cobono 3 (1936) 163; Riccobono, Mil Cornil 2 (1926)
357; idem, ACDR Roma 1 (1934) 177; idem, BIDR 5314 ceptionally in specific circumstances (as actiones
(1948) 356; idem, Scr Ferrini 4 (Univ. Sacro Cuore, utiles, actiones in facturn).
Milan, 1949) 55; idem, Fschr Schulz 1 (1951) 302; Vulgaris cretio. See CRETIO.
Voluntas defuncti. The wish of the deceased ex- Vulgata. ( S c . littera.) Manuscripts of the Digest
pressed in his testament.-See VOLUNTAS, VOLUNTAS of the eleventh and following centuries. They are
TESTANTIS, M E N S TESTANTIS. . also called Littera Bononiensis because they were
used in the University of Bologna.
Voluntas legis. The intention of a statute.-See Kantorowicz, Die Entstehung der Digesten-Vulgata, ZSS
M E N S LEGXS, RATIO LEGIS, SENTENTIA LEGIS. 30 (1909) 183, 31 (1910) 14; P. Kretschrnar, Z S S 48
Voluntas postrema. A testament. Syn. voluntas (1928) 88; idem, Mittelalterliche Zahlensjrmbolik und die
suprema, ultima. Entstehung der Digesten-Vulgata (1930) ; idem, ZSS 58
(1938) 202; Mor, CentCodPav (1924) 559.
Voluntas sceleris. The intention to commit a crime. Vulgo. Generally, commonly. It is used of legal rules
Syn. volmtas ma1eficii.-See VOLUNTAS, COGITATIO, and sayings generally recognized (vulgo dicitur, re-
CONATUS.
ceptum est, respondetur) .
Voluntas testantis. The wish of a testator expressed
Vulgo conceptus (or quaesitus). A child born out
in his last will. Syn. voluntas defuncti. See VOLUN-
of wedlock, neither in a legitimate marriage nor in
TAS. Very frequently the jurists stress that the deci.
a concubinage (see CONCUBINATUS) or CONTUBER-
sion in a specific case concerned with a testamentary
NIUM, the offspring of a promiscuous intercourse.
disposition depends upon the inquiry into the testa-
Such a child had no father, since the latter was un-
tor's wish (quaestio voluntatis) .
E. Costa, Popiniano 3 (1896) ; A. Suman, Favor testamenti known. The mother was bound to maintain the child
e v . testontium, 1916; idem, La ricerca della v . t., Fil 1917; who was admitted to her intestate inheritance.
Donatuti, BIDR 34 (1925) 185; G. Dulckeit, Erblasser-
wille und Erwerb-lle,' 1934; idem, Fschr Koschaker 2
(1939) 316; Grosso, St Riccobono 3 (1936) 155; C. A.
Maschi, St sull'interpretazione dei legati. Verba e volun-
Xenia. Small gifts (also called xeniola) made to a
tas (1938) ; idem, Scr Ferrini 1 (Univ. Sacro Cuore, provincial governor ; they were originally permitted.
Milan, 1947) 317; Koschaker, ConfCast (1940) 106. '
Later imperial legislation, however, forbade, donations
Voluptariae impensae. See IMPENSAE VOLUPTARIAE. to governors and higher officials of the provincial
Volusius. See MAECIANUS. administration, except on the occasion of their leav-
Vota. ( I n the later Empire.) Gifts offered to the ing the post.
emperor on New Year's Day. Vota p r e salute im- Brillant, DS 5.
peratoris (from the time of Augustus) = vows on the Xenodochium. A hospital. Xenodochia were reck-
occasion of prayers for the health of the emperor oned among PIAE CAUSAE. Legacies and donations
and his family. to them were favored by the later imperial legisla-
Vota matri'wonii (nuptiarum). In later imperial con- tion.-C. 1.3.
stitutions, syn. with NUPTIAE.
Votum. (From vovere.) A solemn vow (promise)
z
made in favor of a divinity. A votum was not suable Zenonianae constitutiones. Enactments of the em-
under the law, but the promisor (and after his peror Zeno (A.D.474-491). Some of them are men-
death, his heir) was obligated to the divinity (nurnini tioned by Justinian in his Institutes ; they are inserted
obligatus) under sacral law. It is doubtful whether in full in his Code. The most renowned among this
772 A W L F BERGER [TRANS.AMER. PHIL. SOC.
emperor's enactments is C. 8.10.12 (the exact date fused to finish the construction he was obligated to
is unknown). It was concerned with the construc- build was ~unishedby a fine: in the case of insol-
tion of buildings in Constantinople and contained vency and consequent impossibility of continuing the
provisions about the height of buildings, the distance work, he was castigated and expelled from the city.
between neighboring houses, staircases, etc. There Jurisdiction in all these matters was vested in the
were also procedural rules concerning controversies praefectus urbi.-See AEDIFICATIO.
aniong neighbors. Penalties for contravention were H. E. Dirksen, Hinterlmsene Schriften 2 (1871) 229;
set not only against the owner of the ground but also Brugi, RISC 4 (1887) 395; Voigt, BerSiichCW 1903, 190;
the architects and workmen. A contractor who re- Biondi, BIDR 44 (1937) 362.
ENGLISH-LATIN GLOSSARY
773
Distribution of money among people. Missilia, iactus Equipment of a house (land). Instrumentum, instruc-
missilitt m tum domus (fundi)
Districts, administrative in Rome (Italy). Regiones Equity. Aequitas
Disuse of a law. Desuetudo Error concerning law. Ignorantia (error) iuris
Divine law. Izts divinum, ius sacrunt, fas Estate (inheritance). Hereditas, res hereditariae
Division of conlmon inheritance. See ACT10 F A M I L I A E Estate tax. Vicesiijza hereditatium
ERCISCUNDAE Esteem. Existimatio
Division of common property. See ACTIO COMMUNI Estimation. Taxatio, aestimatio
DIVlDUNDO Evade law. Circui~lvenire,fraudare legem, in fraudem
Division of process (bipartition). See IN IURE, APUD legis agere
IUDICEM Evade summons in court by hiding. Latitare
Divorce. Divortili~iz,repudium, separatio Evidence. Probatio
Document. Insfrumentuiiz, charta, scripfura Evidence, circumstantial. Indicium
Door. Osfia Examination of a case in court. Causae cognitio
Dowry. Dos, res un-oria Examine (confirm) the correctness of a copy. Recog-
Draft by lot. Sortitio noscere
Draft, written of a judgment. Pariculunz Excessive claim. Pluspetitio
Drunkenness. Ebrietns, temulafio, see VINUM Exchange. Permutatio
Dumb. Mutus Exclude from the senate. Senatu movere
Duress. See METUS Excuse. Excusatio, velamentum
Duties, public, for the state or city. Munera Execution of a judgment. See ACTIO IUDICATI,M A N U S
INIECTIO
Formless agreement. Pactum ( n u d u m ) , placitum Guaranty for eviction. See ACTIO AUCTORITATIS,
STIPU-
Formless promise of a dowry. Pollicitatio dotis LATIO DUPLAE
Formularies for documents. Formulae Guardian. Tutor
Hold a thing. Detinere, naturaliter possidere Interest, public. Utilitas publica, see INTERESTE UTILIS
Holidays. Feriac Intermediary. Interposita persona
Honest man. Vir bonus Interruption (of usucaption) . Interpellatio, usurpatio
Honesty. Bona fidcs, Probitas Intestate succession. Hereditas lcgitima (ah intestato),
Honorarium for intellectual services. Salariunt bonorum possessio intestati
Hospital. Xcnodochi~tm Intoxication. Ebrietas, temulatio. See V I N U M
Hostage. Obses Inundation. k7is $urninis
House. Domus, ardcs Invade another's property. Introire, ingredi
Hunting. Venatio Invalid, legally. Irritus, invalidus, nullus, nttllius mo-
Husband. Maritus menti
Invest money. Collocare pecuniatlz
Ignorance of 2 fact (law). Error, ignorantia facti Investigator. Quaesitor
(iuris) Inviolable. Sacrosanctus
Illegal. Illicit us Island. Insula
Illegitimate child (father). Filius (pater) naturalis Issue a decree. Decernere
Illiterate. Ignarrrs litterarum (see LITTERAE) Issue an interdict. Reddere interdictum
Imaginary marriage. Nuptiae simulatae
Immovables. Res ilitrnobiles Jail. Career
Imperial council. Consilium principis, consistorium Jettison. Iactus mercium
Imperial enactments. Constitutiones principum Joinder of issue. Litis contestatio
Impulse. Impetus Joinder of possessions. Accessio possessionis
I n court. Pro tribunali Joint debtors. Correi, duo rei promittendi
Inaction. Silentium Joint creditors. Duo rei stipulandi
Incapable to be a witness. lntastabilis Judge. Iudex
Income. Reditus Judgment. Sententia
Independent of another (legally). Sui iuris Judgment debt. Iudicatum
Individual thing. Species Judicial matter. Causa
Ineffective, legally. Inutilis Jurist. Iurisprudens, prudens, iurisconsultus, iuris pe-
Infamous. Qui notatur infamia ritus
Infantrymen. Pedites Just titli. lusta causa
Informal proceedings, out of court. De plano
Informer. Denuntiator, index, delator Keeper of stables. Stabularius, see RECEPTUM NAUTAE
Inhabitant. Incola Keys. Claves
Inheritance. Hereditas Kidnapper. Plagiarius, plagiator
Inheritance tax. Vicesitnu hereditatium Kidnapping. Plagium
Innkeeper. Caupo, see RECEPTUM NAUTAE Kind of things. Genus
Inquire. Quaerere King. Rex
Insane. Demens, fztriosus, mente captus Kingship. Regnum
Insubordination. Contumacia Kiss. Osculum
Insult. Contumelia, iniuria, convicium Knowledge. Scientia
Intellectual profession (services). Artes (operae) Knowledge of law. Iuris scientia, iurisprudentia
liberales
Intent to commit a crime. Consilium, voluntas sceleris Labor (manual and intellectual). Operae
Intention. Animus, affectio, mens, cogitatio, voluntas, Lack of knowledge of the law. Ignorantia iuris
Propositurn Lack of professional skill. Imperitia
Intention of a statute. Mens, sententia legis Lampoon. Carmen famosum, libellus famosus
Intentionally (with evil intention). Dolo malo, dolose Land (plot of land). Ager, fundus, praediuwz
Intercourse with an unmarried woman. Stuprum Land dedicated to the gods. Locus sacer
Interest. Usurae, fenus Land for agricultural production. Praediutrt rusticum
Interest for default. Usurae morae Land for urban utilization. Praedium urbanum
Interest from interest. Usurae usurarum, anatocismus Land in Italy (provinces). Fundus Italicus (provin-
Interest of twelve per cent. Usurae centesimae ciulis), solum, praedium Italicum (provinciale)
VOL. 43, PT. 2, 19531 ENCYCLOPEDIC DICTIONARY OF ROMAN LAW 779
Land-register. Libri censuales Manager of another's affairs. Procurator; without
Land-tax (in provinces). Tributum soli, stipendium authorization = negotiorum gestor
Large estate. Latifundium Manslaughter. Homicidium
Last will. Postrema, ultima voluntas, testamentum Manumission tax. Vicesima manumissionum
Law. Ius, lex Maritime loan. Fenus nauticum, pecunia traiecticia
Law, customary. See Customary law Market. Nundinae
Law originating in edicts of magistrates (praetors). Market place. Forum
Ius honorarium (praetorium) Marriage. Matrimonium, nuptiae
Lawsuit. Actio, petitio, persecutio Marriage contract, written. Tabulae nuptiales (dotales)
Lawfully. lure, recte, rite, licite Marriage, incestuous. Nuptiae incestae, see INCESTUS
Lawyer. See Advocate Marriage-like union of slaves. Contubernium
Lawyer pleading in court. Togatus fori aster of a slave. Dominus
Lease. Locatio conductio Master of ceremonies. Magister admissionu~it
Lease in perpetuity. See E M P H Y T E U ~ ~ S Matter of fact. Res (quaestio) facti
Leave (inheritance, legacy). Relinquere Matter of law. Res (quaestio) iuris
Leave of absence. Commeatus Meeting, informal, of the people. Contio
Legacy. Legaturn, see FIDEICOMMISSUM Members of a corporation (association). Socii, sodales,
Legacy of a fraction of the estate. Partitio legata corporati, collegiati
Legacy, additional, to an heir. Praelegatum Merchandise. Merx
Legal rule. Regula iuris, norma, canon Merchants. Negotiatores, mercatores
Legally. See Lawfully Messenger. Nuntius
Legitimate son. Filius legitimus Messengers in office. Viatores
Lend money. Credere pecuniam Milestone. Milliarium
Lessee. Conductor Military court. Iudices militares
Lessor. Locator Military delicts. Delicta militum
Letter. Epistula, litterae Military law. Ius militare (militurn)
Letter of commendation. Prosecutoria Military service. Militia
Liable, to be. Teneri Mines. Metalla
Liberation from an obligation. Solutio Minor magistrates. See VIGINTISEXVIRI
List of property. Inventarium Minority. Minor aetas
Litigation. Lis, controversia Mint. Moneta
Litigation tax. Quadragesima litium Mistake. Error
Loan for ccnsumption. Mutuum, creditum Money. Pecunia, nummi
Loan of a thing for use. Commodatum Money lent. Pecunia credita
Long-term lease. Emphyteusis, ius in agrb vectigali Monk. Monachus
Loss. Damnum Moral duty. Oficium pietatis
Loss of profit. Lucrum cessans Motive of a statute. Ratio legis
Lower imperial officials. Proximi Mourning. Luctus
Lunatic. Furiosus, demens, mente captus Movables. Res mobiles
Luxury, laws against. Leges sumptuariae Move to another place. Migrare, see INTERDICTUM DE
MIGRANDO
Majority in a corporation. Maior pars Municipal senate (council). Consiliumn (ordo) de-
Make a copy. Describere curionum
Make a gift. Donare Municipality'. Municijium
Make a testament. Testari, testamentum facere Murder. Homicidium, see PARRICIDIUM
Make good losses. Resarcire, sarcire Murder by poison. Veneficium
Malicious trial. Calumnia Murderer. Sicarius
Manage another's affairs. Negotia (aliena) gerere.
administrare Name. Nomen
Management
- of another's affairs without authorization. Natural law. Ius naturale (naturae)
Negotiorum gestio Navy. Classis
Manager of a commercial enterprise. Institor Negligence. Czllpa
7 80 ADOLF BERGER [TRANS.AMER. PHIL.SOC.
Omit a person in a will. Praeterire, omittere Person not belonging to a family. Extraneus
Order of a magistrate. Decretum, iussum Plead in court a case. Causam dicere, perorare
Order of payment from a bank deposit. Relegare pe- Plebeian assembly. Concilium plebis
Order to lend money. Mandatum pecuniae credendae Plurality of debtors. Duo rei prornittendi
Return (give back). Reddcrc Security for appearance in court. Cnzrtio izcdicio sisti,
Revocation of a legacy. Adefilptio lcgati Seizure by the fisc. Confiscatio, occupatio a fisco
Right of life and death. Izts zlitae nerisque Se!l-defense. See VIM VI REPELLERE,
VINDICARE
Right on another's property. Ilrs in re aliena Sell at a public auction. Publice vendere; to be sold =
Right to pronlulgate edicts. Ilrs edicendi publice venire
Right to take produce of another's property. Ins fru- Senators. Patres ("fathers"), senatores
endi, see U S U S F R U C T ~ S Senility. Senectus
Right to use another's property. Izrs utendi, see usus Sequence in magisterial career. Cztrsus honorum
Right to vote. I ~ r ssufragii Serfdom. See COLONATUS
Rights of way on another's property. See ITER,VIA, Servitude of dwelling in another's house. Habitatio
ACTUS Servitudes, rustic. Servitutes praediorum rusticorztnz
Riot. Tugnultus, seditio Servitudes, urban. Servitutes praediorum ttrbanorztln
Risk. Periculu~il Set off. See COMPENSATIO
Risk in a sale. Pericirltrtiz ~ e vendifae
i Settle a controversy. Transigere
River. Flz~nten,rivlrs Share of an inheritance. Portio (pars) hereditatis
River bed. Alvetts Ship. Navis
Roads. Viae Shipowner. Navicularius, nauta, see RECEPTUM NAU-
Robber. Praedo TAE
Robbery. Rapina Shipper. Excrcifor navis, nauclerus
v o ~ . 4. 3, PT. 2, 19531 ENCYCLOPEDIC DICTIC>NARY OF ROMAN LAW 7 83
S11il)wreck. hraufragiu.tt~ Succession according to praetorian law. Bonorum pos-
Shorthand writing. Notae srssio
Shrewdness. Dolus bonus Sue in court. Venire contra aliquettt, convenire
Sign. S~tbscribere,subnotare Suicide. Suicidiltnz, consciscere sibi wiortenz, libera
Signattire. Subscrijtio facultas nzortis
Silence. Silentiu~iz,see TACERE Suit, written. Libellus conventionis
Slander. See DEFAMATIO Sum lent at interest. Sors, caput
Slanderous poem. Carmen farnosum, libellus farnosus, Summary. Index
see ~ C C E N T A R E Summary civil proceeding. Sutntnatim cognoscere
Slave. Servus, homo, mancipium, puer Summons to court. In ius vocatio, denuntiatio, evocatio
Slave, female. Ancilla Supposititious child. Partus subditicius, subiectus,
Slave manumitted on condition. Statuliber suppositus
Slave of a slave. Servus vicarius Superior force. Vis maior
Slave of the state. Servus publicus Supervision. Cura, curatio
Slavery. Scrvitus Surety. Sponsor, fideiussor, fideipromissor, see ADPRO-
Social classes, higher. Potentiores, honestiores, altiores MISSIO, PRAEDES
Social classes, lower. Huntiliorcs, tenuiores Surety in process. Vindex, vas, praes
Soil. Solttttt Surname. Cognomen
Soldier. Miles Surrender of a son or slave for damages. In noxam
Soldier's pay. Stipendizrm dedere
Soldier's will. Testamentum militis Surrender of an enemy. Deditio
Solidarity in obligations. See Correality Survive. Supervivere, see COMMORIENTES
Solvent. Solvendo esse, facere posse Suspension of judicial activity. Iustitium
Son under paternal power. Filius familias Sustenance. Alimenta
Sorcery. Magia, see EXCANTAXE
Space between neighboring houses. A~nbitus Taking possession of an ownerless thing. Occupatio
Speech of the emperor. Oratio principis Taking upon death of a person. Mortis causa capio
Spendthrift. Prodigus Tax. Vectigal
Sphere of competence. Provincia T a x assessment officials. Censuales
Spy. Explorator, proditor T a x collector. Susceptor
State. See RES PUBLICA T a x evasion. Fraudare vectigal
State land. Ager publicus T a x farmer. Publicanus redenzptor, conductor
Status of a freeborn. Ingenuitas T a x farmers' association. Societas publicanorurn
Statute. Le.v T a x office, regional. Statio
Statute of a collegium (association). Lex collegii T a x officials. Tabularii
Statute of limitations. Praescriptio longi temporis T a x on inheritance, Vicesima hereditatium
Statutes against luxury. Leges sumptuariae T a x on manumissions. Vicesima manumissionum
Statutes on voting. Leges tabellariae T a x on sales. See Sales tax
Statutory norm. Placitum legis T a x payer. Tributarius
Steal. Furari, subripere Taxes in provinces. See TRIBUTUM, CAPITATIO. STI-
Stepson. Privignus PENDIUM
Stipulatory promise. Stipulatio Teachers. Magistri, praeceptores, professores, ante-
Storehouse. Horreum, thesaurus cessores
Storm. Tempestas Ten-men group. Decuria
Straw man. Interposita (supposita) persona Tenant. Habitator, inquilinus, conductor
Subject to another's power. Alieni iuris, in potestate Tenement house. Insula
Submission to arbitration. Compromissum Territory of Rome. See P O M E R I U M
Subordinate personnel in offices. Apparitores Testament, capacity to make one or to take under one.
Subscribe. Signare Testamenti factio
Substitute heir. Heres substitutus, heres secundus Testify. Testari
Substitute of an official. Vice agens, vicarius Testimony. Testimonium, testatio, attestatio
Substitute of a provincial governor. See IUDEX Testimony, written. Testimonium per tabulas, tabulae
Succeed as an heir. Succedere hereditario iure signatae
7 84 ADOLF BERGER [TRAM. AMER. PHIL. SOC.
-. 1946. History of Ronian legal science. Oxford, Claren- -. 1942. Studi sul diritto familiare e geritilizio roniano.
don Press. Milan, Giuff rl..
-. 1951. Classical Roman law. Oxford, Clarendon Press. COLI, U. 1913. Collegia e sodalitates. Bologna, Seminario
SCHWIND, F. V. 1950. Romisches Recht 1. Geschichte, Rechts- giur. dell' Universitl. .
gang, System des Privatreclits. Vienna, Springer. CORRETT, G. 1930. The Roman law of marriage. Cambridge,
SCIALOJA,V. 1934. Corso di istituzioni di diritto romano. Univ. Press.
Rome, Arionima Romana Editoriale. COSTA,E. 1894. Papiniano. 2. Bologlia, Zanichelli.
SEIDL, E. 1949. Romische Rechtsgeschichte und romisches DUFF, A. M. 1928. Freedmen in the early Roman Empire.
Zivilprozessrecht. Hannover, Wissenschaftliche Verlagsan- Oxford, Clarendon Press.
stalt. DUFF,P. W . 1938. Personality in Roman private law. Cam-
SERAFINI,F . 1920. Istituzioni di diritto romano. 10th ed. bridge, Univ. Press.
Turin. Utet. ELIACHEVITCH, B., 1942. La personnalitt juridique en droit
SHERMAN, C. P. 1937. Roman law in the modern world. 2nd privh romain. Paris, Sirey.
ed. N. Y., Baker & Voorhis. FADDA,C. 1910. Diritto delle persone e della famiglia.
SIBER,H. 1925-1928. Romisches Recht in Grundziigen. 2 v. Naples, Alvano.
Berlin, Sack. K ~ ~ B L EB.R , 1938. Die vormundschaftliclie Gewalt im riimi-
SOHM,R. 1928. Institutionen des romischen Rechts. 17th ed. schen Recht. St.Besta 1.
(by L. Weriger and L. Mitteis). Berlin, Duncker & LAUM,B. 1914. Stiftungen in der gtiechischen and romischen
Humblot (English, translation by Ledlie, 3rd ed. Oxford, Antike. Leipzig, Teubner.
Clarendon Press ; New York, Frowde ; Spanish translation LAURIA,M. 1952. Matrimonio, Dote. Naples. Arte Tipo-
by W. Roces. Madrid, Suarez). grafica.
STEPHENSON, A. 1912. History of Roman law with a com- LEVY, E. 1925. Der Hergang der rum. Ehescheidung.
meritary on the Institutes of Gaius and Justinian. Boston, Weimar, Bohlau.
Little & Brown. LONGO,G. 1940. Diritto romano. 3. Diritto di famiglia.
TAUBENSCHLAG, R. 1920. Das romische Recht zur Zeit Rome, Forgo Italiano.
Diokletians. Bulletin of the Polish Academy in Cracow. MORIAUD,P. 1910. Le la simple famille paternelle en droit
VOCI,P. 1946. Diritto romano. 3 v. Milan, Giuffr6. romain. Geneva, Georg.
-. 1949. Istituzioni di diritto romno. Milan, GiuffrP. ORESTANO, R. 1951. La struttura giuridica del matrimonio
VOIGT.M. 1892-1902. Romische Rechtsgeschichte. Stuttgart, romano dal diritto classic0 al diritto giustinianeo. Milan,
Cotta. Giuff rl..
WALTON,F. P. 1920. Introduction to Roman law. 4th ed. DE ROBERTIS, F. M. 1934. Contributi alla storia delle corpora-
Edinburgh-London, Green. zioni a Roma. AnBari 6-7.
WEISS, E. 1936. Grundziige der romischen Rechtsgeschichte. -. 1938. I1 diritto associativo romano. Bari, La Terza.
Reichenberg, Stiepel. SALEILLES,R. 1910. De la personnalitt juridique. Paris,
-. 1949. Institutionen des rom. Privatrechts. 2nd ed. Rousseau.
Basel, Recht und Gesellschaft. SCHNORR V. CAROLSFELD, L. 1933. Geschichte der juristischen
WENGER, L. 1953. Die Quellen des romischen Rechts. Vienna, Person, 1. Munich, Beck.
Akademie der Wissenschaften. (In press.) SCHUPFER,F. 1876. La famiglia second0 il diritto romano.
VAN WETTER,P . 1909-1911. Pandectes. 5 v. Paris, Librairie Padua, Sacchetto.
Ghnhrale de droit. SOLAZZI,S. 1913-1914. Tutele e curatele. RISG 53-54.
WINDSCHEID,B. 1906. Lehrbuch des Pandektenrechts. 9th -. 1921. Fantasie e riflessioni sulla storia della tutela.
ed. (by T. Kipp). Frankfurt, Riitten and Loening StPav 6.
(Italian translation by Fadda, Bensa and Bonfante, richly -. 1923, 1926. Studi su tutela. PubMod 9, 13.
enlarged. 5 v. 1925-1930, Turin, Utet; Greek translation -, 1926. Istituti tutelari. Naples, Jovene.
by Polygenes, 2 v. 1932-1934). -. 1939, 1942. Sui divieti matrimoniali delle leggi Augustee.
WOLFF,H . J. '1951. Roman law. An historical introduction. ANap 59, 61.
Oklahoma Univ. Press. TAUBENSCHLAG, R. 1913. Vormundschaftsrechtliche Studien.
Leipzig, Teubner.
11. ROMAN P R I V A T E L A W VOLTERRA, E. 1946. Diritto di famiglia. Lezioni. Bologna,
A. L A W OF PERSONS Edizioni Universitarie.
WALTZING, J. P. 1895-1899. Etude historique sur les corpora-
(Family, marriage, guardianship, slavery, corporations) tions professionnelles chez les Romains. Louvain, Peeters.
A ~ E. 1933.~ studi di ~diritto romano
~ 1. persone
~ ~WESTRUP, ~C. W. 1934-1944.
~ Introduction
~ , to early Roman law.
famiglia. Milan, Giuffrl.. Comparative sociological studies. The patriarchal joint
-. 1942. Matrimonio e dote. Corso. Milan, Giuffrl.. family. 1. The house community (1944) ; 2. Family prop-
erty (1934) ; 3. Patria potestas (1939). Copenhagen.
ALLARD,P. 1914. Les esclaves chrhtiens depuis les premiers
WOLFF,H. J. 1939. Written and unwritten marriages in Hel-
temps de 1'8glise. 5th ed. Paris, Lecoffre.
BARROW, R. H. 1928. Slavery in the Roman Empire.
London, lenistic and postclassical Roman law. Haverford, Cost.
Methuen.
BERGER, A. 1914, 1922. Streifziige durch das romische Sklaven- B. LAW OF THINGS
recht. Philol. 73 : 61-108 ; ZSS 43 : 398-416. (Ownership, possession, servitudes, real securities)
BIONDI,B. 1938. La categoria romana delle servitutes. Milan, ARCHI, G. G. 1946. Indirizzi e problemi del sistema contrat-
2 v. Paris, Broccard.
Giuff ri.
--. 1913. Figure e rcalti nella terminologia dell'obbligazione ARNB,C. 1938. Diritto ereditario. Turin. Giappichelli.
ronlana. i l i ~ r ~ t r o r idrll'Uttiz~crsittf
o Maccrata, Bianchini. RIONDI,B. 1943. Successione testamentaria. Milan, Giuffrt?
DE MARTINO, F . 1940. L'origine delle garenzie personali e il -, 1946, 1948. Istituti fondamentali di diritto ereditario
concetto dell'obbligazione. S U H I 6. romano. 2 v. Milan, \'ita e Pensiero
NOCERA,G. 1942. Insolvenza e responsabilith sussidiaria nel CAMUS,E. F . 1942. Derecho succesorio. 2nd ed La H a -
diritto romano. Rome, Edizioni Italiane. bana, Universidad.
OLIVER,D. T. 1937. Digest XI1 1 and 4-7, XI11 1-3, De CARCATERRA, A. 1948. L'azione ereditaria nel diritto romano.
condictionibus. Cambridge, Univ. Press. 2 v. Rome.
PACCHIONI, G. 1912. Concetto e origine dell'obbligazione ro- COSTA,E . 1897. Papiniano. 3. Favor testamentorum e volun-
mans. La pecuniarieth dell'obbligazione. App. I and I11 to tas testantium. Bologna, Zanichelli.
the Italian translation of C. F. v. Savigny, Das Obligationen- CUCIA,S. 1910. Indagini sulla dottrina della causa del negozio
recht. Padua, Milani. giuridico. L'espressione mortis causa nel diritto romano.
PARTSCH, J. 1931. Das Dogma des Synallagma im romischen Napoli, Sa~igiovanni.
und byzantinischen Recht. -411s nachgelassenen Schriften, DAVID,M. 1930. Studien zur heredis institutio ex re certa im
3-96. Berlin, Springer. klassischen romischen und justinianischen Recht. Leipzig,
PASTORI, F . 1951. Profilo dogmatic0 e storico dell'obbligazio~~e Weicher.
romana. Varese, Istituto editoriale Cisalpino. DROPSIE,M. A. 1892. The Roman law of testaments, codicils,
PEROZZI.S. 1903. Le obbligazioni romane. Bologna, Zani- etc. Philadelphia, Johnson.
DULCKEIT, G. 1934. Erblasserwille bei Antretung der Erb-
chelli. schaft. Weimar, Bohlau.
PRINCSHEIM, F . 1916. Kauf mit fremdem Geld. Leipzig, Veit. -. 1939. Voluntas and fides im Vermachtnisrecht. Fschr.
RI~COBONO, S. 1929. L a formazione della teoria generale del Koschakcr 1. Weimar, Bohlau.
contractus nel periodo della giurisprudenza classics. S t . FADDA,C. 1900, 1902. Concetti fondamentali del diritto eredi-
Bonfantc 1. Milano, Treves. tario rornano. Milan, Giuffrt. (Reprinted 1949.)
-. 1930. Lineamenti della dottrina della rappresentanza FERRINI,C. 1889. Teoria generale dei legati e fedecommessi
diretta in diritto romano. AnPal 14 (St. Vivante, 1931) Milan, Hoepli.
-. 1935. Stipulatio. contractus, pacta. Corso, Milan, Giuffre. KOROSEC, V. 1927. Die Erbenhaftung nach romischem Recht.
-. 1939. La teoria dell'abuso nella dottrina romana. B I D R Leipzig, Weicher.
46. L A PIRA,G. 1930. La successione ereditaria intestata e contro
DE ROBERTIS, F . hf. 1946. I rapporti di lavoro nel diritto ro- il testamento. Firenze, Vallecchi.
mano. Milan, Giuff rP. L ~ v Y - B R U H H.
L , 1947. Observations generales sur le regime
ROTONDI, G. 1922. Scritti giuridici. 2. Studi sul diritto ro- successoral de Douze Tables, in Nouvelles Btudes de droit
mano delle obbligazioni. Milan, Hoepli. romain. Paris, Sirey.
SCHLOSSMANN, S. 1904. Altromisches Schuldrecht und Schuld- LONGO,C. 1901, 1903. L'origine della successione particolare.
verfahren. Leipzig, Deichert. B I D R 14, 15.
SCIALOJA,V. 1933. Negozi giuridici. Rome, Foro Italiano. MASCHI, C. A. 1938. Studi sull'interpretazione dei legati.
SCIASCIA,G. 1947. Lineamenti del sistema obbligatorio ro- Verba e voluntas. Milan, Vita e Pensiero.
mano. Camerino, Universita, Facolth di giurisprudenza. MICHON,L. 1921. La succession ab intestat dans le plus ancien
SOLAZZI,S. 1935. L'estinzione dell'obbligazione. 2nd ed. droit romain. N R H 45.
Naples, Jovene. NARDI,E. 1938. L a reciproca posizione dei coniugi privi di
conubium. Milan, Giuff r t .
-. 1936. Appunti di diritto romano marittimo. R D N a v RABEL, E. 1930. Die Erbrechtstheorie Bonfante's. Z S S 50.
2 : 113, 168.
SANFILIPPO, C. 1937. Studi sull'hereditas. AnPal 17.
-. 1937;1943. I1 concorso dei creditori. 4 v. Naples, -. 1946. Evoluzione storica dell'hereditas. Corso. Naples,
Jovene. '
-. 1944-1945. Revoca degli atti fraudolenti nel diritto Humus.
SCHULZ, M. 1935. Einfluss Kaiser Justinians auf das Erbrecht.
romano. 2 v. 3rd ed. Naples, Jovene. Diss. Erlangen.
TEDESCHI,G. 1899. I1 diritto marittimo dei Romani. Monte- SCIALOJA,V. 1933. Diritto ereditario romano. Concetti fon-
fiascone. damentali. Rome, Anon. Romana Editoriale.
VERMOND, E. 1937. De iure obligationum. Principes fonda- S E G R A.~ , 1930. Ricerche di diritto ereditario romano. Rome,
mentaux. 2 v. Paris, Boccard. Foro Italiano.
VIARD,P . E. 1919. Les pactes adjoints aux contrats en droit S E G R ~G., 1905. Note esegetiche sui legati in diritto romano.
romain classique. Paris, Sirey. St Scialoja 1.
DE VISSCHER, F. 1931. Les origines des obligations ex delicto, SOLAZZI,S. 1932-1933. Diritto ereditario romano. 2 v. Na-
in Btudes de droit romain. Paris, Sirey. ples, Jovene.
VOCI, P . 1938. Risarcimento del danno e process0 formulare. SUMAN,A. 1916. Favor testamenti e voluntas testantium.
Milan, Giuff re. Rome, Athenaeum.
-. 1939. Risarcimento del danno e pena privata nel diritto TIMBAL,P . 1940-1941. Questions de droit successoral romain
romano classico. Milan, Giuff rP. du Bas-Empire. R H D 19-20.
-. 1946. La dottrina romana del contratto. Milan, Giuffrt?. VACCARU-DELOGU, R. 1941. L'accrescimento nel diritto eredi-
WYLIE,J. K. 1923. Studies in Roman Law 1. Solidarity e tario romano. Milan, Giuffre.
correality. Edinburgh, Oliver. DE VILLA, V. 1939. L a liberatio legata nel diritto classico e
giustinianeo. Milan, Giuff ri..
D. LAW OF SUCCESSION VOCI, P . 1935. La responsabilitP dell'erede nell'adempimento
dei legati per damnationem e nei fedecommessi. S D H I 48.
ALBANESE,B. 1949. L a successione ereditaria in diritto ro- WLASSAK,M. 1933. Studien zum altromischen Erb- und Ver-
mano antico. AnPal 20. machtnisrecht. SbWien 215.
ALBERTARIO, E . 1946. Studi di diritto romano 4. Erediti. W o ~ s s ,F. V. 1911. Das romische Erbrecht und die Erban-
Milan, Giuff r t . warter. Berlin, Vahlen.
VOL. 43, IT. 2, 19.531 ENCYCLOPE:DI(' DICTl(3NARY OF ROMAN LAW 701
E. CIVIL PROCEDURE SAMTER,R. 1911. Nichtformliches Gerichtsverfahren. Wei-
mar, Bohlau.
ALBERTARIO, E. 1946. Studi di diritto romano. 4. Proccsso. SANTA-CRUZ TEIJEIRO,J. 1947. Principios de derecho procesal
Milan, Giuff rl.. romano, Valencia.
ALVAREZ S UAREZ,U. 1951. Curso del derecho romano. 2. SCHOTT,R. 1903. Gewahren des Rechtsschutzes im romischen
Derecho procesal civil. Madrid. Zivilprozess. Jena, Fischer.
ANDT,E. 1920. La prockdure par rescrit. Paris, Sirey. STEINWENTER, A. 1914. Studien zum romischen Versaumnis-
APELT,H . 1937. Die Urteilsnichtigkeit im riimischen Prozess. verfahren. Munich, Beck.
Schramberg (Schwarzwald), Salzer & Hahn. - . 1947. Rhetorik und romischer Zivilprozess. Z S S 65.
ARANCIO-RUIZ, V. 1935. Cours de droit romain. I.es actions:' VOLKMANN, H . 1935. Zur Rechtssprechung im Prinzipat des
Naples, Jovene. Augustus. Munich, Beck.
-. 1920. La privata difesa del proprio diritto. R I S G 65. WENCER,L. 1935. Abriss des romischen Zivilprozessrcclits.
ARU,L. 1934. I1 processo civile contumaciale. Rome, Anon. 2nd ed. (Appendix to Joers and Kunkel, Romisclics Pri-
Rom. Editoriale. vatrecht). English translation of the 1st ed. by A. A. Schil-
-, 1936. Appunti sulla difesa privata in diritto romano. ler, T u l L R 5, 1931. .
AitPal 15. -, 1940. Institutes of the Roman law of civil procedure
BALOGH, E. 1936. Beitrage zum justinianischen Libellprozess. , (translation by 0. H . Fisk). N. Y., Veritas Press. Ger-
S t Riccobono 2. Palermo, Castiglia. man ed. Institutionen des rbmischen Zivilprozessrechts.
BEKKER, E. I. 1871, 1873. Die Aktionen des rijmische~~ Privat- Munich, Hiiber, 1925. Italian translation by R. Oresta~io.
rechts. 2 v. Berlin, Vahlen. Milan, Giuff r t , 1938.
BETHMANN-HOLLWEG, M. A. 1864-1866. Der rvmische Civil- WLASSAK,M. 1888, 1891. Romische Prozessgesetze. 2 v.
prozess. 3 v. Bonn, Marcus. Leipzig, Duncker & Humblot.
BIONDI,B. 1935. I1 processo civile giustinianeo. A C D R Ronta -. 1919. Zum romischen Provinzialprozess. SbWicn 190.
2. Pavia, Fusi. -. 1921. Der Judikationsbefehl der riimischen Prozesse.
CHECCHINI, A. 1923-1924. Studi sull'ordinamemto processu- SbWictt 197.
ale. I1 processo romano. tStCag1 14. -. 1924. 'Die romische Prozessforn~el. SbWieit 202.
COLLINET, P . 1947. La nature des actions, des interdits et des
exceptions dans l'ceuvre de Justinien. Paris, Sirey. 111. CRIMINAL L A W A N D P R O C E D U R E
COSTA,E. 1918. Profilo storico del processo civile. Rome,
Athenaeum. BRASIELLO, U. 1937. La repressione penale in diritto
romauo.
D ~ . L LR.
, 1931. Der Giitegedanke im romischen Zivilprozess. Naples, Jovene.
Munich, Beck. -. 1938. Linee e fattori dello sviluppo del diritto penale
EISELE,F. 1889. Abhandlungen zum romischen Zivilprozess. romano. A G 120.
Freiburg i. Br., Mohr. -. 1946. Note introduttive a110 studio dei crimina romatii.
GIFFARD,A. 1932. L e ~ o n sde prochdure civile romaine. Paris, S D H I 1 2 : 148.
Domat Monchrestien. BUSEK,V. 1935. Die Gerichtsbarkeit in Strafsachen im ro-
GIRARD,P. F. 1901. Histoire de l'organisation judiciaire des mischen Recht. ACII 1.
Romains. Les six premiers sitcles de Rome. Paris, COSTA,E. 1921. Crimini e pene da Romolo a Giustiniano.
Rousseau. Bologna, Zanichelli.
GREENIDGE, A. H. J. 1901. Legal procedure in Cicero's time. -. 1921. I1 conato criminoso. B I D R 31.
HAJJE,A., Histoire de la justice seigneuriale. La justice privee v. in 2nd ed.) Padua, Zannoni.
dans les domaines des empereurs. Paris. Boccard. FERRINI,C. 1899. Diritto penale romano. Teorie generali.
HERDLITCZKA, A. 1934. Skizzen zum romischen Zivilprozess. Milan, Hoepli.
Vienna, Hofels. -. 1909. Esposizione storica e dottrinale del diritto penale
JOBBI?-DUVAL, E. 18%. etudes sur I'histoire de la procedure romano (Enciclopedia di diritto penale, 1, ed. Pessina).
civile chez les Romains. Paris, Rousseau. HITZIC, H . 1909. Die Herkunft des Schwurgerichts im
JORS, P. 1892. Untersuchungen zur Gerichtsverfassung der romischen Strafprozess. Zurich, Orell & Fussli.
romischen Kaiserzeit. Leipzig, Hirschfeld. 'LAURIA,M. 1934. Accusatio-inquisitio ' .4.Vnp 56.
JUNCKER, J. 1927. Haftung un& Prozessbegriindung im altro- LEVY,E. 1931. Die romische Kapitalstrafe. SbHeid.
mischen Rechtsgang. Gedachtnisschrift fur E. Seckel. -. 1938. Gesetz und Richter im kaiserlichen Strafprozess.
Berlin, Springer. B I D R 45. (See Statute and judge in Roman criminal law,
LEIFER,F. 1947. Vorlesungen iiber romischen Zivilprozess. Washington Laev lour. 13.)
Vienna, dsterreichische Staatsdruckerei. LOTMAR, P. 1918. Litiscontestation im romischen Accusations-
LEMOSSE, M. 1944. Cognitio sur le r6le du juge. Paris, Lesot. prozess. Schzc~cizcrische Ztschr. fur Strafrecht 31.
LEVY,E. 1918, 1922. Die Konkurrenz der Aktionen und Per- DI MARZO,S. 1898. Storia della procedura criminale romana.
sonen. 2 v. Berlin, Vahlen. La giurisdizione dalle origini alle XI1 Tavole. Palermo,
LUZZATTO, G. I. 19461950. Procedura civile roipana. 3 v. Reber.
Bologna, Zuffi. MOMMSEN, T . 1899. Romisches Strafrecht. Leipzig, Duncker
DE MARTINO,F. 1937. La giurisdizione nel diritto romano. & Humblot (French translation by Duquesne, 1909.)
Padua, Cedam. PUGLIESE,G. 1939. Appunti sui litniti dell'imperium nella
PALERMO,A . , 1942. I1 procedimento cauzionale. Milan, repressione penale. MenzTor. Turin, Istituto giur. dell'-
Giuff r6. Universita.
PARTSCH,J. 1905. Die Schriftformel im romischen Provin- DE ROBERTIS, F . M. 1939. La variazione della pena pro quali-
zialprozess. Breslau, Fock. tate personarum nel diritto penale romano. R I S G 14
PUCLIESE,G. 1939. Actio e diritto subbiettivo. Milan, Giuffr6. .
- 1940. La variazione della pena pro mod0 admissi nella
-. 1948. Lezioni sul processo civile romano. I1 processo cognitio extra ordinem e nel processo postclassico. Bari.
formulare. Milan, Montuoro. -, 1942. Studi di diritto penale romano. Bari, Macri.
REDENTI,E. 1907. Pluralita di parti nel giudizio civile. Di- -. 1947. La variazione della pena e la sua causa determi-
ritto romano. A G 79. nante. AnBari 9.
ADOLF BERGER
-. 1950. La variazione della pena nel diritto romano. Bari, -. 1946. Die Reichsbeamten von Achaia in spatromischer
Cacucci. Zeit. Budapest, Dissertationes Pannonicae, ser. I , 14.
SCHISAS,F . M. 1926. Offences against the state in Roman law. GROSSE,R. 1920. Romische Militargeschichte von Gallienus
London, Univ. Press. his zum Reginn der byzantinischen Themenverfassung. Ber-
SIBER,H . 1936. Analogie, Amtsrecht und Ruckwirkung im
lin, Weidmann.
Strafrechte des rijmischen Freistaates. ASachGLY 43.
GUARINO, A. 1947. L a democrazia romana. AnCat 1.
STRACHAS-DAVIDSOX, J . L. 1912. Problems of the Roman
HAMMOND, M. 1951. City state and world state in Greek
criminal law. 2 v. Oxford, Univ. Press. and Roman political theory until Augustus. Cambridge
VRIJHEID, H . M. 1918. Schuld en schuldverband in het (Mass.), Harvard Univ. Press.
Iiomeinsche Strafrecht. Amsterdam, Kruyt. HERZOG,E 1884. Geschic!~te und System der romischen
WLASSAK, R I . 1917, 1921). Anklage und Streitbefestigung im Staatsverfassung. I. Konigszeit und Republik. Leipzig,
Kriminalrecht der Romer. S b W i e n 184. 194. Teubner.
HECSS,A. 1933. Die vijlkerrechtlichen Grundlagen der romi-
IV. R O M A N P U B L I C L A W schen Aussenpolitik in republikanischer Zeit. Klio, Beiheft
33.
(Constitution, administration, international relations) -. 193%. Abschluss und Beurkundung des romischen Staats-
ABBOTT, F. F. 1915. History and description of Roman politi- vertrages. K l 27 : 14, 218.
cal institutions. Boston-London, Ginn. HIRSCHFELD, 0. 1905. Die kaiserlichen Verwaltungsbeamten
ABBOTT, F. F., and A. C. JOHNSON.1926. Municipal adminis-
bis auf Diokletian. 2nd ed. Berlin, Weidmann.
tration in the Roman Empire. Princeton Univ. Press.
HOMO,L. 1950. Les institutions politiques romaines. D e la
ARIASROMOS, J. 1948. Compendio de derecho publico romano
citlt d l'gtat. 2nd ed. Paris, Michel. (English translation
e historia de las fuentes. 4th ed. Valladolid, Martin. by Dobie, N. Y., Knopf, 1929.)
ARKOLD, W . T . 1914. The Roman system of provincial ad- HOBNICKEL, 0. 1930. Ehren- und Rangpraedikate in den
ministration to the accession of Constantine the Great. 3rd Papyrusurkunden. Romisches und byzantinisches Titel-
ed. Oxford, Blackwell. wesen. Diss. Giessen.
BAVIERA,G. 1914. I1 diritto pubblico romano. Lezioni.
HOFVE,L. L. The praetorian Prefects from Cornmodus to
Palerrno, Castiglia.
Diocletian. Chicago, Univ. Press.
BESTA,E. 1946. I1 diritto internazionale nel mondo antico
KOCH,P. 1903. Byzantinische Beamtentitel von 400 bis 700.
Coin~ii~rnica,-ioni e studi dell'lstituto di Diritto internasionale Jena, Universitatsbuchdruckerei. 4
ancient Greece and Rome. 2 v. London, MacMillan. BERNHART, M. 1926. Handbuch zur Miinzkunde der riimischen
PREMERSTEIN, A. V. 1937. Vom Wesen und Werden des Kaiserzeit. 2 v. Halle, Reichman.
Prinzipats. ABayA W. BONELLI, G. 1900. Le imposte indirette di Roma antica.
RAUMER,F. 1923. Die romische Staatsverfassung. Munich, StDocSD 21 : 27,287.
Allgemeine Verlagsanstalt. CAGXAT,R. 1882. etude historique sur les impots indirects
DE REGIBCS, L. 1949. L'evoluzione politica del govern0 romano chez les Romains. Paris, Imprimerie Nationale.
da Augusto a Diocleziano. Corso. Genoa, Di Stefano. CHARLESWORTH, M. P . 1926. Trade-routes and commerce of
REID, J. S . 1913. The municipalities of the Roman Empire. the Roman Empire. 2nd ed. Cambridge, Univ. Press.
Cambridge, Univ. Press. (Italian translation, Milan, 1940.)
REVON,M. 1891. De l'existence du droit international sous CLARK,E . C. 1913. Numismatic illustrations of the history of
la Rkpublique romaine. Revue ghnhrale de droit 15: 394, Roman law, Essays in legal history (ed. Vinogradoff).
504. Oxford, Univ. Press.
DE ROBERTIS,F. M. 1942. Dal potere personale alla com- CLERICI,L. 1943. Economia e finanza dei Romani, 1. Bologna,
petenza dell' ufficio. SDHI 8. Zanichelli.
-. 1946. I1 potere di imperio dalla concezione personalistica CULLEN.C. 1921. The Roman revenue svstem. Washinaton
a quella istituzionale. Bari, Luce. u ~ L Studies.
. St. Louis, Missouri.
ROSENBERG, A. 1913. Der Staat der alten Italiker. Berlin, F R A N KT, . 1935-1940. An economic survey of ancient Rome.
Weidmann. 5 v. Baltimore, Johns Hopkins Press.
R o s ~ o w z ~ wbf.
, 1903. Geschichte der Staatspacht in der GRANT,M. 1946. From imperium to auctoritas. A historical
Kaiserzeit. Philologus, Suppl. 9. Leipzig, Dieterich. study of aes coinage in the Roman Empire (49 B.c.-A.D.14).
ROTONDI,G. 1920. Problemi di diritto pubblico romano (re- Cambridge, Univ. Press.
published in Scritti giuridici 1, 1922, Milan,, Hoepli). HEICHELHEIM, F . 1938. Wirtschaftsgeschichte des Altertums.
RUDOLPH,H . 1933. Stadt und Staat im romischen Italien. 2 v. Leiden, Sijthoff.
Leipzig, Dieterich. JONKFRS,E. J. 1933. Economische en sociale toestanden in het
D E RUGGIERO, E. 1921. L a patria nel diritto pubblico romano. Romeinsche rijk, blijkende uit het Corpus iuris. Thesis
Rome, Maglione. Utrecht. Wageningen, Veenman.
SCALA,R. V. 1898. Die Staatsvertrage des Altertums. Leip- LANDUCCI,L. 1932. I1 diritto agrario nelle Istituzioni di
zig, Teubner. Giustiniano. Atti dello Soc. ital. per il progress0 delle
SCHULZ, 0. T . 1916. Das Wesen des romischen Kaisertums in scienze 1 : 442.
den ersten zwei Jahrhunderten. Paderborn, Schijningh. LOAXE,H . J. 1938. Industry and commerce of the city of
.
- 1919. Vom Prinzipat zum Dominat. Paderborn, Schon- Rome. 50 B.c.-A.D. 200 Baltimore.. -Johns Hopkins Univ.
ingh. Press.
SEGRE,G. 1934. Alcune osservazioni sulla costituzione dell' Lours, P . 1922. Le travail dans le monde romain. Paris,
Impero da Diocleziano a Giustiniano. A C D R Roma 1 : Alcan.
209-233. Pavia, Fusi. MAUNIER,R., and A. GIFFARD. 1930. Sociologie et droit ro-
SERAFINI,F. 1896. I1 diritto pubblico romano. L'eta regia. main. Paris, Domat-Montchrestien.
L'eta repubblicana. Pisa, Mariotti. MAXEY,M. 1930. Occupation of the lower classes in Roman
SHERWIN-WHITE, A. N. 1939. The Roman citizenship. Ox- society. Chicago, Univ. Press.
ford, Clarendon Press. MICKWITZ,G. 1932. Geld und Wirtschaft im romischen Reich
SIBER,H . 1933. Zur Entwicklung der romischen Staatsver- des I V . Jahrhunderts. Helsingfors, Akad. Buchhandlung.
fassung. ASachG W 42. OERTMANN, P. 1891. Volkswirtschaftslehre des Corpus Iuris
SIBER,H . 1936. Die plebeischen Magistraturen bis zur Lex Civilis. Berlin.
Hortensia. (Leipziger Rechtswissenschaftliche Studien PERNICE, A. 1898. Uber wirtschaftliche Voraussetzungen
100.) Leipzig, Weicher. romischer Rechtssatze. Z S S 19 : 82-139.
STARR,C. G. 1941. The Roman imperial navy (31 B:c.-A.D. PERSSON,A. W . 1933. Staat und Manufaktur im romischen
324). Ithaca, Cornell Univ. Press. Reiche. Lund, Bloms.
794 ADOLF BERGER [TRANS.AMER.PHIL. SOC.
POHLMANN, 1925. Geschichte der sozialen Frage und -. 1939. L'opera di Augusto e lo sviluppo del diritto
R. V.
des Sozialismus in der antiken Welt. Munich, Beck. imperiale. AnPal 18 : 363-507.
DI RENZO,F . 1950. I1 sistema tributario di Roma. Naples, SIBER,H . 1933. Das Fuhreram: des Augustus. Abhandlungen
Libreria Intern. Treves. Sb'chsische Ges. der Wissenschaften 42.
DE ROBERTIS, F. M. 1945. Lineamenti di storia sociale roniana. -. 1935. Casars Diktatur und das Prinzipat des Augustus.
Bari. zss 55 : 99.
R o s ~ o w z ~ wM., 1910. Studien zur Geschichte des romischen DE VISSCHER,F . 1938. Auguste et la rkforme de la justice.
Kolonats. Leipzig, Teubner. Annales de droit et de sciences politiques (Louvain).
ROSTOFTZEFF, M. 1926. The social and economic history of VOLKMANN, H . 1935. Zur Rechtssprechung im Prinzipat des
the Roman Empire. Oxford, Clarendon Press. (Spanish Augustus. Munich, Beck.
translation by Lopez Ballebteros, Madrid, 1937. Italian
translation by Sasena, 1933.) For further bibliography see PRINCEPS. RES GESTAE DIYI AUGUSTI ;
SALEILLES, R. 1905. Le droit romain et la dkmocratie. St B. Biondi, Diritto rom. Guida bibl. (1944) 127; Alvarez
Scialoja 2 : 711. Milan, Hoepli. Suarez, Horizonte actual de derecho rom., 59 (1944) ;
SALVIOLI,G. 1929. I1 capitalism0 antico. Bari, Laterza. Magdelain, Auctoritas principis, 117 (1947).
(French translation by Bonnet. Paris, Iriard.)
SCHEEL,H . V. 1867. De Corporis Iuris Civilis principiis TIBERIUS '
economicis. Halle (Italian translation : I concetti eco-
nomici fondamentali del Corpus Iuris, Biblioteca di storia CIACERI, E. 1934. Tiberio, successore di Augusto. Milan,
economica, 1 . Milan, Soc. Edit. Libr.). Albrighi & Segati.
S c r ~ c ~ z0, . T . 1925. Die Rechtstitel und Regierungspro- ROGERS,R. S. 1936. Criminal trials and criminal legislation
gramme der romischen Kaisermuilzen von Caesar bis under Tiberius. Middletown, Conn., Amer. Philol. Assoc.
Severus. Paderborn, Schoningh. SIBER, H . 1939. Die Wahlreform des Tiberius. Fschr Ko-
S E G R ~.4.,
1922. Circolazione monetaria e prezzi nel mondo schaker 1. Weimar. Bohlau.
antico. Rome, Libreria di Cultura.
SEECK,0 . 1889. Zeitfolge der Gesetze Konstantins. Z S S 10. OPMENT O F ROMAN LAW.
Wiirzburg.
( F o r Christianity see Chapter V I I I )
-. 1947. Idee vecchie e nuove intorno alla formazione del STROUX,J. 1934. Griechische Einflusse auf die Entwicklung
diritto romano. Scritti Ferrini 1. (Univ. Sacro Cuore) der romischen Rechtswissenschaft gegen Ende der republi-
Milan, Vita e Pensiero. kanischen, Zeit. A C D R Roma 1 : 111-132 (republished in
GOUDY,H . 1906. L'artificiality of Roman juristic classifica- the following book). Pavia, Fusi.
tions. St Fadda 5. Naples, Pierro. -. 1949. Romische Rechtswissenschaft und Rhetorik. Pots-
-. 1910. Trichotomy in Roman law. Oxford Univ. Press. dam. (See RHETOR.)
(German translation by E. Ehrlich. Leipzig, Duncker & TAUBENSCHLAG, R. 1934. Einfluss der Provinzialrechte auf
Humblot.) das romische Privatrecht. A C D R Roma 1 : 281-316.
G ~ o s s o , G. 1948. Problemi generali di diritto attraverso il Pavia, Fusi.
diritto romano. Turin, Giappichelii. VILLEY,M. 1951. Logique d'Aristote et droit romain. R H D
GUARNERI-CITATI, A. 1927. Fattori del diritto romano gius- 29 : 309.
tinianeo ed il problema della sua codificazione. AnMac. VOLTERRA, E. 1937. Diritto romano e diritti orientali. Bo-
GUIBAL,11. P . 1937. De l'influence de la philosophie sur le logna, Zanichelli.
droit romain et la jurisprudence de l'kpoque classique. Paris, -. 1949. Western postclassical schools. Cantbridge LJ, 10:
Sirey. 196.
J o ~ o w ~ c zH, . F . 1932. Academic elements in Roman Law. -. 1949. Introduction a l'histoire du droit romain dans ses
L Q R 48: 171. rapports avec I'Orient. Archives d'hist. dlc droit oriental
KAMPHUISEN,P . W . 1922. De codificationsgedachte in het 4 : 117.
Romeinsche rijk. (Thesis Leiden.) Celeen, Erkens- -. 1951. Storia del diritto romano e storia dei diritti ori-
Franssen. entali. R I S G 88: 134.
K ~ ~ B L EB.R , 1930. Der Einfluss der griechischen Philosophie WEISS, E. 1934. Der Einfluss der hellenistischen Rechte auf
auf die Entwicklung der Verschuldungsgrade im romischen das romische. A C D R Rollla 1 : 243-254. Pavia, Fusi.
Recht. Rechtsidee -und Staatsgedanke. Fg Binder, 63.
-. 1934. Griechische Einflusse auf die Entwicklung des VIII. C H R I S T I A N I T Y A N D R O M A N L A W
riimischen Privatrechts. A C D R Roma 1: 79-98. Pavia,
Fusi. ALLARD,P . 1925. Le Christianisme et 1'Empire romain de
LAURIA,h l. 1936. Indirizzi e problemi romanistici. I1 Foro Nerva a Thkodose. 9th ed. Paris, Lecoffre.
Italiano 4 : 491. ALVAREZSUAREZ,U. 1941. La influencia del Cristianismo.
LEVY,E. 1929. Westen und Osten in der nachklassischen Ent- Rezista del derecho prizlado 28.
wicklung des romischen Rechts. Z S S 49. BAVIERA,G. 1912. Concetto e limiti dell'influenza del Cris-
-. 1943. Vulgarisation of Roman law in the early Middle tianesimo sul diritto romano. Mhl Girard 1 : 67-121. Paris,
Ages. Medievalia et Hunzanistica 1 : 14 (= B I D R 55-56, Rousseau.
Post- Bellum, 222, 1951). -. 1935. La codificazione giustinianea e il Cristanesimo.
- . 1951. West Roman vulgar law. The law of property. A C D R Roma 2 : 125-128. Pavia, Fusi.
Philadelphia, Mem. Amer. Philos. Soc. 29. BECK, A. 1935. Christentum und nachklassische Rechtsent-
DE MARTINO, F . 1943. Individualismo e diritto romano pri- wicklung. A C D R Roma 2 : 91-122. Pavia, Fusi.
vato. Annuurio di diritto comparato e di studi legislativi 16. -. 1939. Zur Frage der religiosen Bestimmtheit des ro-
MASCHI,C. A. 1937. La concezione naturalistica del diritto e mischen Rechts. Fschr Koschaker 1. Weimar, Bohlau.
degli istituti giuridici romani. Milan, Vita e Pensiero. BOUCAUD, C. 1914. La premikre ebauche d'un droit chretien
MEYER,E. 1951. Die Quaestionen der Rhetorik und die An- dans le droit Romain. Paris, Trolin.
fange juristischer Methodenlehre. Z S S 68 : 30. BRASIELLO, U. 1946. Sull'influenza del Cristianesimo in ma-
MITTEIS, L. 1891. Reichsrecht und Volksrecht in den ost- teria dell'elemento subbiettivo nei contratti. Scr Ferrini
lichen Provinzen des romischen Kaiserreichs. Leipzig, (Univ. Pavia) 505. Milan, Hoepli.
Teubner. (Reprinted 1935.) - . 1947. Premesse relative a110 studio dell'influenza del
MONIER,R. 1938. Mkthodes de reconstruction de l'evolution Cristianesimo sul diritto romano. Scr Ferrini (Univ. Sacro
historique du droit romain. Memoires de la Societe des Cuore) 2. Milan, Vita e Pensiero.
Sciences de Lille. BUSSI, E. 1935. L'influenza cristiana nello svolgimento storico
PITTS, T. J. 1929. The rise and progress of the Roman Law. dei patti. Cristianesimo e diritto romano (Pubbl. dell'liniv.
Amer. Law Rev. 63 : 200. del Sacro Czrore 43). Milan, Vita e Pensiero.
PRINGSHEIM, F. 1940. The character of Justinian's legislation.
L Q R 56. CHIAZZESE,L. 1948. Cristianesimo e diritto. B I D R 51-52 :
.
- 1944. The unique character of Roman classical law.
.-,.-,-
LLL.
V A N OVEN, J. C. 1935. L C droit r o m a i ~ ~a ux Pays-Bas. C O L V I NM. , M . 1038. Romati ant1 civil elrmrnts in sources of
ACDlZ Rolo!lrto 2 : 23-56. Pavia, I7usi. the law ol tlie U ~ i i t r dStates. S / A l b ~ r / o ~3r i: 113. Patlua,
PATETTA,F. 1891. Per la storia del tliritto romano nel Mrdio Crdan~.
Evo. RISG 12. COI.VIN,11. M. 1943. Particil);~tioti oi tliv CTnitetl States of
1591-1892. C o ~ ~ t r i b u;ills t i storia del diritto romano nel Anierica witli tlie IZep~~blics oi Latin America i t 1 tlie coni-
Metlio Evo. B l D R 3 : 4. nlon Iicritacc of Ronian ant1 civil law. Pror. Eiylttla Allrer.
PITZOKNO, 13. 1934. 11 tliritto ronla~ioco~iictliritto co~ihuctutli- Sric.rrtifir Cortyrrss. We~slrir~gton, M a y 1940. 1 0 : 467.
nario. Ct~rtCotlPuv. Pavia, Tipografa Cool)crativa. COOI'ER,T. A!. 1950. The Common Law ant1 tlic Civil I.a\v.
RAREL. E . 1935. I)ie Rezcption dcs r i i n ~ i s c l i c ~IZrclith ~ ill A Scot's vicw. Horvarrl Law R t v . 63: 468.
~ e u t s c l l l a l l t l ,' 4 ~ 1 ~)o ~ o . r l r2r: o 183-190, ptlvia, ~ : ~ ~ ~ i L)oltsl;.rr,
, 12. J. C. 1935. T l ~ cRoma~ianti com~nonlaw. .4CDR
RICCO~~OK S.O
.1917. Ilal tliritto rotn;ilio classico ;11 tliritto llolo~~rrn 2 : 361. Pavia, 1;uai.
motlerlio. AnPr~l3-4.
DUFF, P. W . 1947. Roma11 law totlay. T u l L R 22.
s A V I G N Y , C, V, 1834-1851, Gescllicllte ties rollliscllellliccllts FISIIWM. G. 1947. Scotlantl alitl the I:olilall law. T111f.R
22: 12-23.
in1 Mittelalter. 211d ctl. Heitlclberg, R[olir. (Italian
translation hy Rollati. Turin, G i a n i ~ ~ 1853-1857; i, French HAI.~.,A. R. 1927. Tlie comlnoll !;I\\, its tlcbt to Ronic. Cclircl-
translation by Guc.noux. 1839.) ditrrc n o r Rcz,. 5 : 639, 715.
H A N M L T RR. Y , I.. 1931. Tlie ~)laccof Nonian la\\ i l l teacliing
S C I A ~ C IG. A , 1947. Ilircito rolnano c tlireito civil 13rasilciro.
of law totlay. Jorrr. Socicty I'rthlir 7'~~oc.lrrr.s0 j Lnztr 1 :
Textos e al)ontarnentos extravagantes. S i o Paulo.
14-25.
SICII.IASO-\'II.I.A I.. N ~1912.
E V ADiritto
. Riza~itino. Eirciclo- HART,W, G, 1930. tllc custom of London,
prtiitr :lilrriifirn Iti~lic~rrcr4 ( 5 ) : 36-95. hlilan, Soc. l.:ditricc L ~ 46: R 49,
Libraria. HOI.DS\VORTM, W . S . 1939. Ronian law and English common
SIMONIUS,A. 1934. W a s bedruten fiir uns die Pandekten. law. Toror~toLaat, Jorrr. 3 (rel)rintetl in Essays i ~ rluzc, arrd
Ztsclrr. fiir Sch~c~cizcrisclrcs Rcclrt 53. history 1946, 71). Oxford, Clarendon Press.
STEINWENTER, A. 1934. Der Einfluss des riimischen Reclits , LV. 1902-1903. R~~~~ and
H ~ , \ . ~ W, law in A ~ ~ ~ ; ~
auf den antike~ikanonisclien Prozess. A C D R Bolo,qirn 1 : Harznrd Lazw Rczf. 16: 342.
225-241. Pavia, Fusi. -. 1905. Studies in civil law and its relations to the juris-
STOICESCO, C. 1935. L'influence du droit roniain sur le droit prudence of England and America. 2nd ed. Boston, Little
TRIFONE,R . 1934. I1 diritto giustinianeo nel mezzogiorno -. 1907. The study of Roman and civil law. .4rirer. La7v
d31talia. A C D R Bologna 1 : 1-16. Pavia, Fusi. Rrzl. 41.
-. 1938. Ronia conimu~iis patria nel pensiero dei giuristi IRELAND, G. 1945. Roman and comparative law in tlie Ameri-
dell'eta intermedia. R S t I l I t 11. cas after the war. T u l L R 19: 553.
VACCARI,P . 1936. Dall'unitd ronlana a1 particolarismo giuri- LEE, R. W . 1935. Roman law in the British Empire, particu-
dico del Medio Evo. Pavia, Universita. Colla~iadi studi larly in the Union of South Africa. A C D R Bologna 2 : 251.
storico-politici. Pavia, Fusi.
V A Z N Y , J . 1935. Idee romane nel diritto civile nioderno. -. 1944. Interaction of Roman and Anglo-Saxon law.
A C D R Bologna 2 : 439-450. Pavia, Fusi. Soictlz Africarc Lnzo Jotir. 61 : 155.
V I N O G R A ~ ~PF. F ,1929. Roman law in Europe. zl1d LEONHARD, R. 1938-1909. American remembrances of a Ger-
ed. by F . De Zulueta. (Italian translation by S. Riccobono, man teacher of Roman Law. Yale Lazcl Jour. 18: 584.
Milan, Giuff re, 1950.) -. 1912-1913. The vocation of America for the science of
DE VISSCHER.F. 1935. Le droit romain en Belgique. .4CIlR Roman Law. Ilnnrard Laev Rez~iczw26 : 389.
Boloyrra 2 : 203-214. Pavia, Fusi. LOBINGIER, C. S . 1916. T h e value and place of Roman la\\. ill
W E N G E R L. , 1947. Riimisches Recht als Weltrecht. Ostcr- the technical curriculum. Amer. Laew Rev. 4 9 : 349.
reichiscltc Ztsclzr. fiir offerztliclrcs Recht 1: 241. .
- 1932. Modern expansion of the Roman law. Unizl. of
YNTEMA,H . E . 1949. Roman law and its influence on Western Cincinnati Law Rev. 6 : 152.
civilization. Cornell Lazo Q~rart.35 : 77. L Y M A N ,R. W . 1921. Roman responsa prudentium and Eng-
ZACHARIAEV. LIXGEXTHAL,K. ~ E . 1892. Geschichte des
. griechisch-romischen Rechts. 3rd ed. Berlin, Weidmann.
lish case law. Dickitzson La7cl Rev 2 5 . 153
MCGINLEY, G. J. 1927. Roman and
influence in
America. ,!Jotre Dame Laecycr 3 : 70-88.
MCILWAIN,C. H . 1941. O u r heritage from the law of Rome.
X. R O L I A N L A W A N D T H E ANGLO-
Foreign Affairs 19: 597.
AMERICAN WORLD
MACKINTOSH, J. 1926. O u r debt to Roman law. Juridical
Rev. 38.
ALBERTI,A . 1937. Scuole italiane e giuristi italiani nello svi- MACKINTOSH, J. 1934. Roman law in modern practice. ~ d ; ~ -
luppo storico del diritto inglese. Bologna, Zanichelli. burgh, Green.
BALDWIN,S. E . 1911. The study of Roman law in American MAINE,H . S. 1880. Roman law, and legal education. Village-
law schools. Awter. Bar Association Report. communities in the East and West, 330-383. N. Y., Holt.
BRYCE,J . 1901. Methods of law making in Rome and Eng- MUXRO, W . B. 1908-1909. The genesis of Roman law in
land.-The history of legal development a t Rome and in America. Harvard Law Rev. 22: 579.
England.-Extension of Roman and English law throughout NEFF, C. M. 1937. Influence of Roman law upon American
the world. In Studies in History and Jurisprudence, X . Y., jurisprudence. B I D R 44 : 433.
Oxford Univ. Press. NYS, E . 1910. Le droit romain. L e droit des gens. Pages
BUCKLAXD, LV. W., and A. D. MCNAIR. 1952, Roman law and d'histoire du droit en Angleterre. Brussels, Weissenbruch.
common law. 2nd ed. by H . F . Lawson. Cambridge Univ. OLIVER,D . T . 1926. Roman law in modern cases of English
Press. law. Cambridge legal essays in honor o f Bond, Buckland
CAMPBELL,J . 1942. Romanization of Scottish law. Boston and Kenny. Cambridge, Heffer.
Univ. Law Rev. 22. PLUCKNETT,T . F. T. 1940. Relations between Roman law
COLEMAN-NORTON, P . R. 1950. W h y study Roman L a w ? and English common law down t o the sixteenth century.
Jolrr. Legal Edlrcatiort 2 : 473. Univ. of Toronto L a w Jour. 3 : 24.
~ 0 1 . . 43, IT. 2, 19531 ENCYC1,OPEDIC DICTIONARY OF ROMAN LAW 799
PO\VEI.I.,R. 1952. Roma11 contributions to the reform of BISCARDI, A. 1951. I1 tliritto romano e I'ora prese~ite. Itrs, N.
English law. C'~trrcntLcgal Problents 5 : 229-250. Lon- S., 2 : 287.
don, Stcvcns. DE BLBCOURT, A. S. 1937. P r o excolcndo en de rechtsge-
P H I N ( ; S I I E I1I;. I , 1935. The inner relatio~~ship
between English schiedenis. Groningen, Wolters.
and Roman law. CatrtbLJ 5 : 347. BRASIEI-LO, U. 1951. Lo studio storico del diritto romatlo ill
RAHEI.,E. 1950. Private laws of Western civilization. Part 1. rapport0 al diritto moderno. A G 141 : 5%78.
The sigtiifica~~ce of Roman law. Lotiisiana Lanv Rev. 10. CARREI.I.I,0. 1943. A proposito di utla crisi del diritto romarlo.
I ~ A D I hl.N , 1935. lioman law in the United States. ACDiZ S D H I 9 : 1-20.
/?olo,qrln 2 : 343-360. Pavia, Fusi. CIIIAZZESE, L. 1930. Nuovi orientamenti della storia del diritto
R l c c o a o ~ o ,S. 1935-1939. Diritto romano in America. B I D R romano. A G 103: 87-115, 165-228.
43 : 314 ; 44 : 419. 45 : 335 ; 46 : 328. DAVID,M. 1937. Der Rechtshistoriker und seine Aufgahe.
I~OIIINSO J .NE. . 1915. American recognitiot~ of the Roman Leiden, Sijthoff.
and civil law. Illinois Law Rcv. 9. FEENSTRA, R. 1952. Interpretatio multiplex. Eel1 beschouw-
r\ I .S~EI.T.,
.. F . 1937. The practical value of the study of Roman ing over de zgn. crisis van het Romeinse recht. Zwolle,
law. N I D R 44: 445. Tjeenk Willink.
S.\HFATI,M . 1938. Influenza reciproca del diritto romano e DE FRANCISCI, P . 1923. Dogmatica e storia nell'educazione
del diritto anglo-sassone. S t Albertoni 3 : 563-575. giuridica. Rivista internazionalr di filosofia del diritto.
S(.I<I~TTON, T . E. 1885. The influence of Roman law on the -. 1949. Punti di orientamento per lo stutlio del diritto.
law of England. Cambridge, Univ. Press. R I S G 86 : 69.
SENIOR W, . 1930. The Roman law in England before Vacarius. GAUDEMET, J. 1947. MCthode historique et droit romain.
l.QR 4 6 : 191. R H D 24-25 : 67-95.
S I I K H M A C. N , P. 1911. The value of the Roman law to the GEORGESCU, V. A. 1939. Remarques sur la crise des etudes de
American lawyer. Univ. of Pennsylvania Lanv Rev. 60: 174. droit romain. T R 16 : 403-433.
--. 1935. Roman law it1 the United States of America, the , 1946. Premesse generali al corso di diritto romano.
G ~ o s s o G.
present revival of Roman law study. A C D R Bologna 2 : Turin, Giappichelli.
321-341. Pavia, Fusi. -. 1950. Crisi e sorti del diritto romano. AnTriest 20: 13.
-. 1937. Roman law in the modern world. 3rd ed. N. Y., HENRION,R. 1947. La recherche scientifique en ancietl droit
Baker & Voorhis. romain. Latomus 6 ( 2 ) : 97.
-. 1945. Roman law in the Quebec Civil Code. Boston JOLOWICZ, H. F. 1949. Utility and elegance in civil law studies.
C'uiv. Lonu Rev. 25: 196. L Q R 4 9 : 323.
\VEN(;ER.L . 1939. Romisches Recht in America. St. Besta 1 : KOSCHAKER, P . 1938. Die Krise der runiischen Rechtswis-
151-169. senschaft. Munich, Beck.
WII.KE,G. 1927. Romisch-rechtliche Einfliisse auf die Rechts- -. 1940. Probleme der heutigen romanistischen Rechtswis-
entwicklung im britischen Weltreich. Archiv fur Rechts- senschaft. Deutsche Rechtswissenschaft (Hamburg) 5.
ulrd Wirtschaftspkilosophie 2 0 : 293. -. 1947. Europa und das romische Recht. Munich, Biber-
WILLIAMS,J . 1904. Roman law in English decisions. Law stein.
in English decisions. Law Magazine and Rev. 2 9 : 139. LAURIA,M . 1938. Indirizzi e problemi ron~anistici. Rome,
WILSON,J . D. 1897. On the reception of Roman law in Scot- Foro Italiano.
land. JurR 9 : 361. LAUTNEP,J. G. 1927. Die Methoden einer antik-rechtsge-
YKTEMA,H . E . 1937. Roman law as the basis of comparative schichtlichen Forschung. ZVR 47: 27-76.
law. A century of progress, 1835-1935, 2: 346. New York LEVY-BRUHL, H . 1925. Pour le droit romain. Revue inter-
University, School of Law. nationale d'enscigncmrnt 79 : 88.
--. 1950. Roman law and its influence on Western civiliza- MITTEIS,L. 1918. Antike Rechtsgeschichte und romanistisches
tion. C o r ~ ~ rLow l l Qrcart. 357. Rechtsstudium. Mitteilungen des Vereins der Freunde des
humanistischen Gymnasiums ( Vienna) 18 : 5 6 7 6 . (Italian
See also Berger, A., and A. A. Schiller. 1945, 1947. Bibliog- translation by B. Biondi and G. Funaioli, AnPal. 12 : 477-
raphy of Anglo-American studies in Roman law, etc., 1943-1947. 499, 1928, followed by an article by S. Riccobono, Punti di
S e m 3: 75-94 ; 5: 62-85. vista critici e ricostruttivi, 5 0 M 3 7 ) .
NOAILLES,P. 1943. La crise du droit romain. Memorial des
XI. R O M A N L A W A N D LEGAL E D U C A T I O N . Etudes Latines, offertes a Marouzeau.
ORESTANO, R. 1950. Diritto romano, tradizione romanistica e
(Ancient legal history, methods of instruction, the so-called studio storico del diritto. R I S G , 3 ser , 4 : 156.
"crisis" of Roman law study.) -. 1951. I1 diritto romano nella scienza del diritto. Izts. N.
S., 2 : 141.
APPLETON,C. 1926. Notre enseignement du droit romain, ses PUGLIESE.G. 1941. Diritto romano e scienza del diritto. A I I
ennemis et ses dkfauts. M t i Cornil 1. Gand-Paris, Sirey. Mac 15: 1.
BERGER,A,, 1915. L'indirizzo odierno degli studi di diritto RICCOBONO, S. 1935. Mos italicus e mos gallicus nella Interpre-
romano. Prolusione. Rivista critica di scienze sociali 2 : tazione del Corpus iuris. ACII 2 : 377-398.
1-40. Florence. -. 1930. Nichilismo storico e critic0 nel campo del diritto
BELVAUX, P. A. 1925. Le r61e du droit romain dans la forma- Discorso. Annuario Univ. Palermo.
tion du latiniste. Revue de l'Unizlersitk Libre de Bruxelles -. 1942. Vom Schicksal des romischen Rechts. Studia
30: 205. Humanitatis. Fschr. zur Eroffnung des Instituts Studia
B E ~ IE., 1937. Methode und W e r t des heutigen Studiums des Humanitatis 33. Berlin, Kiipper.
romischen Rechts. TR 15 : 137-174. D E SARLO,L. 1934. Indirizzi, metodi e tendenze della moderna
.
- 1339. L a crisi odierna della scienza romanistica in scienza del diritto romano. A G 111 : 9%117.
Germania. RDCom 37: 120-128. SCHONBAUER, E . 1939. Zur Krise des romischen Rechts.
BIONDI, B. 1933. Prospettive romanistiche. Milan, Vita e Fschr. Koschakcr 2 : 385-410.
Pensiero. SCHWARZ,A. B. 1928. Pandektenwissenschaft und heutiges
-. 1950. Crisi e sorti dello studio di diritto romano.. An romanistisches Studium. Festgabe Schweizer Juristen-
Triest 20 : 11. verein. Zurich.
800 ADOLF BERGER [TRANS.AMER. PHIL.SOC.
SECKEL,E. 1921. Das romische Recht und seine Wissenschaft Codex Theodosianus cum Constitutionibus Sirmondianis et
im Wandel der Jahrhunderte. Berlin, Norddeutsche Buch- Leges Novellae ad Theodosianum pertinentes. Ed. T .
druckerei. Mommsen and P . M. Meyer. 1905. 3 v. Berlin, Weid-
SIMONIUS,A. 1934. Was bedeuten fiir uns die Pandekten. mann.
Vortrag. Basel, Helbing & Lichtenhahn. COGLIOLO,P. 1911. Manuale delle ionti del diritto romano
STELLA-MARANCA, F . 1927. Sul metodo di insegnamento delle second0 i risultati della p i t recente critica filologica. Turin,
Pandette. AnBari. Utet.
WENGER,L. 1907. Die Stellung des offentlichen romischen Corpus Iuris Civilis. 1. Institutiones. Ed. P. Krueger. Di-
Rechts im Universitatsunterricht. Vienna, Manz. gesta. Ed. T. Mommsen and P. Krueger. 15th stereotype
-. 1905. Romische und antike Rechtsgeschichte. Graz, edition, 1928. 2. Codex Iustinianus. Ed. P . Krueger.
Leuscher. 10 ster. ed., 1929. 3. Novellae. Ed. R. Scholl and G.
- . 1927. Heutiger Stand der romischen Rechtswissenschaft. Kroll. 5th ster. ed., 1928. Berlin, Weidmann.
Erreichtes und Erstrebtes. Munich, Beck. Corpus Iuris Civilis. French translation. 1803-1811. Le Di-
-. 1930. Wesen und Ziele der antiken Rechtsgeschichte. geste (by M. Hulot, 1-7). Les Institutes (by 14. Hulot,
S t Bonfante 2. Milan, Treves. 8 ) . Le Code (by P.-A. Tissot, 9-12). Les Nouvelles (by
-. 1938. Sur le droit romain, le droit comparC et I'histoire M. Bkrenger, 13-14). Metz.
du droit. fitudes du droit compare E. Lambert 1. Paris, Corpus Iuris Civilis. German translation by C. E. Otto, B.
Sirey. Schilling, C. F. F . Sintenis, 1831-1839. 7 v. Leipzig, Focke.
-. 1947. Romisches Recht in historischer und juristischer Corpus Iuris Civilis. Italian translation. 1858-1862. Corpo
Anschauung. Forschungen und Fortschritte 22. del diritto corredato dalle note di D. Gotofredo e di C. E .
-. 1951. Um die Zukunft des romischen Rechts. Fschr Freiesleben . . . a cura di G. Vignoli. Latin text and
Schul: 2 : 364-386. translation into Italian. Contains also translations of Gaius'
DE ZULUETA,F. 1920. Study of Roman law today. Lecture. Institutes, Ulpian, Paul, Fragmenta Vaticana etc. Naples,
Oxford, Clarendon Press. Morelli.
-. 1929. L'histoire de droit de l'antiquitk. Mbl Fotirnier. Corpus Iuris Civilis. Spanish translation. 1874. By R. de
Paris, Sirey. Fonseca, J. M. de Ortega, A. de Bacardi. 2 v. Barcelona.
Corpus Iuris Civilis. English translation by S. P. Scott. 1931.
XII. SOURCES The Civil Law including the Twelve Tables, the Institutes
of Gaius, the Rules of Ulpian, the Opinions of Paulus, the
(Editions, textual criticism, juristic language. For enactments of Justinian and the Constitutions of Leo. 17 v.
interpolations, see Ch. X I I I ) Cincinnati. Central Trust C o m ~ a n v .
ACTA DIVI AUGUSTI. 1945. Ed. Riccobono, Festa, Biondi, David, M. 1948. Gai ~nstitutionei. '1. Leiden, Brill.
Arangio-Ruiz. Rome, Regia Academia Italica. Digesta Iustiniani Augusti. 1918, 1931. Ed. P. Bonfante, C.
ALBERTARIO, E. 1937. Glossemi e interpolazioni pregiustinia- Fadda, C. Ferrini, S. Riccobono, V. Scialoja. 2 v. Milan,
nee. Studi 5: 377. See also p. 385. Milan, Giuffr;. SocietP Editrice Libraria.
-. 1937. Elementi postgaiani nelle Istituzioni di Gaio. EISELE, F. 1896. Zur Latinitat Justinians. Beitrage zur
Stridi 5 : 439. Milan, Giuffrk. romischen Rechtsgeschichte. Freiburg-Leipzig, Mohr.
.
- 1937. Glossemi nei Frammenti Vaticani. Stztdi 5: 551- FELGENTRAGER, W . 1932. Die Literatur zur Echtheitsfrage der
559. Milan, Giuffr6. romischen Juristenschriften. Syfnbolac Friburgenses Lenel.
APPLETON,C. 1929. Les interpolations dans Gaius. RHD 8 : Leipzig, Tauchnitz.
197-241. .
- 1935. Zur Entstehungsgeschichte der Fragmenta Vati-
ARANGIO-RUIZ, V. See under Fontes iuris Romani anteiusti- cana. Romanistische Abhandlungen. (Freiburger Rechts-
niani. geschichtliche Abhandlungen 5 : 27.) Freiburg i.B., Waibel.
-. 1946. La compilazione giustinianea e i suoi commentatori FERRINI, C. 1884, 1889. Institutionum Graeca Paraphrasis
bizantini. S c r Ferrini (Univ. Pavia), 81. Milan, Hoepli. Theophilo vulgo tributa. 2 v. Milan, Hoepli. Berlin,
ARANGIO-RUIZ, V., and A. GUARINO.1943. Breviarium iuris Calvary.
Romani. (Reprint 1951.) Milan, GiuffrP. FITTING,H . 1908. Alter und Folge der Schriften der rvmi-
ARCHI, G. G. 1937. L'Epitome Gai. Studio del tardo diritto schen Juristen. 2nd ed. Halle, Niemeyer.
romano in Occidente. Milan, GiuffrP. Fontes Iuris Romani Anteiustiniani. 1940-1943. 1. Leges
BAVIERA,G. (5.) See under Fontes iuris Romani anteiusti- (ed. S. Riccobono). 2nd ed. 1941. 2. Auctores, Leges
niani. saeculares (ed. J. Baviera, C. Ferrini, J. Furlani). 2nd
BIONDI,B. 1952. L a terminologia romana come prima dom- ed. 1940. 3. Negotia (ed. V. Arangio-Ruiz). 1st ed.
matica giuridica. S t Arangio-Ruiz 2 : 73. Naples, Giovene. 1943. Florence, BarbPra.
BIZOUKIDES, P. C. 1938-1939. Gaius. 3 v. (Prolegomena, Fontes Iuris Romani antiqui. See above under Rruns and
Institutioncs, Adnotationes, Fragmenta Gaiana; written in Mommsen.
Greek). Salonika ; Leipzig, Harrassowitz. GIRARD,P. F. 1937. Textes de droit romain. 6th ed. by F .
BREMER, F. P. 1896-1901. Iurisprudentiae Romanae quae su- Senn. Paris, Rousseau.
persunt. 3 v. Leipzig, Teubner. GRUPE,E. 1895-1897. Zur Sprache der Gaianischen Institu-
BRUNS,C. G., and T . MOMMSEN.1909-1912. Fontes iuris tionenfragmente in Justinians Digesten. Z S S 16-18.
Romani antiqui. 7th ed. by 0. Gradenwitz. 3 v. (Ad- GUARINO, A. 1952. Guida a110 studio delle fonti giuridiche ro-
tlitamcnta, Simulacra.) Tiibingen, Mohr. mane. Kaples, Pellerano.
. G., and E. S A C E I A U .1880. Syrisch-romisches
R R L I N SC. HAENEL,G. 1857. Corpus legum ad imperatoribus Romanis
Rechtshuch. Berlin, Reiner. ante Iustinianum latarum. Leipzig, Hinrichs.
RUCKLAND, W. W. 1930. Digest 47.2 (De furtis) and the HARDY,E. G. 1912. Roman laws and charters. Oxford,
methods of the compilers. TR 10: 117-142. Clarendon Press.
CECI, L. 1892. Le etimologic degli giureco~lsulti romani. -. 1912. Three Spanish charters ant1 other documents. Ox-
Turin, Loescher. ford. Clarendon Press.
Codex Gregorianus et Hermogenianus. Ed. P . Krueger. 1890. HEIMRACII,G. E. 1833-1870. Basilicorum libri L X . 5 v.;
~ nntci~rstilliarii3. Berlin, Wcidmann.
Collectio l i b r o r ~ i niltris Prolegomena, Manuale, v. 6 ; Sul~pl. 1. ed. K. E . Zacl~ariae
VOL. 43, PT. 2, 1953) ENCYCLOPEDIC DICTI(3NARY O F ROMAN LAW 801
v. Lingenthal, 1846. Leipzig, Barth; Suppl. 2 ed. C. SCHULZ, F. 1926. Die Epitome Ulpiani des Cod. Vat. Reginae
Ferrini and G . Mercati. Milan, Hoepli, 1897. 1128. Bonn, Marcus & Weber.
HUSCHKE,P. E . 1908-1927. Iurisprudentiae anteiustinianae SECKEL,E. See above under Huschke, Kiibler.
reljquiae. 6th ed. by E. Seckel and B. Kiibler. 1 (1908), SIBER, H . 1934. Das Problem vorjustinianischer Textver-
2, 1 (1911), 2, 2 (1927) Leipzig, Teubner. anderungen. A C D R Roma 1 : 413-430. Pavia, Fusi.
KALB, W . 1888. Das Juristenlatein. 2nd ed. Nuremberg, SOLAZZI,S. 1934-1953. Glosse a Gaio. S t Riccobono 1:
Ballhorn. 71, 1936; P e r il X I V Centenario della Codificazione
-, 1890. Roms Juristen nach ihrer Sprache dargestellt. Giustinianea, Pavia (1934) 293450; S D H I 6 : 320-356,
Leipzig, Teubner. 1940; Scr Ferrini, 139-199, Universiti Pavia, 1946; St
- 1911. Wegweiser in die romische Rechtssprache. Leip- Arangio-Ruiz 3: 89-113 (Naples, Jovene, 1953).
zig, Nemnich. Theophili Paraphrasis. See above under Ferrini.
.
- 1923. Spezialgrammatik zur selbstandigen Erlernung der THIELE,G. 1910, 1912. Lateinkursus fiir Juristen. 2 v. Ber-
romischen Sprache fur Rechtsstudierende. Munich, Nem- lin, Vahlen.
nich. DE VISSCHER,F . 1935. Les sources du droit selon le Code de
KIPP, T . 1919. Geschichte der Quellen des romischen Rechts. Justinien. A C I I 1: 51-68 (= Nouvelles etudes, 1949, 353).
4th ed. Leipzig, Deichert. VOLTERRA, E . 1935-1936. Indice delle glosse, interpolazioni
KNIEP, F. 1911-1917. Gai Institutionum commentarii. 5 v. nelle fonti pregiustinianee occidentali. 1. Pauli Sententiae,
~ e n a F, isher. 2. Consultatio, 3. Tituli ex corpore Uliani, 4. Collatio.
KOOIMAN,C. L. 1913. Fragmenta iuris Quiritium. Amster- Rivista di storia di diritto italiano 8-9.
dam. WARMINGTON, E. H . 1940. Remains of old Latin 4. Loeb
KR~~GE P.R , See above under Corpus Iuris Civilio. Classical Library.
-. 1877. Codex Iustinianus (ed. maior). Berlin, Weid- WEISS, E. 1914. Studien zu den romischen Rechtsquellen.
mann. Leipzig, Meiner.
-. 1923, 1926. Codex Theodosianus, libri I-VIII. Berlin, WLASSAK, M. 1884. Kritische Studien zur Theorie der Rechts-
Weidman. quellen. Graz, Lubensky.
-. See above under Huschke. ZACHARIAE V. LINGENTHAL, C. E. 1856-1884. Ius Graeco-
KRWGER,P., T. MOMMSEN,and G. STUDEMUND, 1878-1923. Romanum. 7 v. Leipzig. (Greek edition by J and P.
Collectio librorum iuris anteiustiniani. 1. Gai Institutiones Zepos, 8 v. Athens, 1931.)
(6th ed. 1923). 2. Ulpiani Regulae. Pauli Sententiae DE ZULUETA,F. 1946, 1953. The Institutes of Gaius. 2 v.
(1878). 3. Fragmenta Vaticana, Mosaicarum et Roma- 1. Text with critical notes and tral~slation. 2. Commen-
narum Legum Collatio, Consultatio, Codices Gregorianus et tary. Oxford, Clarendon Press.
Hermogenianus, etc. (1890). Berlin, Weidmann.
K ~ ~ B L EB.. R . and E. SECKEL. 1939. Gai Institutiones. 8th ed. X I I I . I N T E R P O L A T I O N S I N J U S T I N I A N ' S LEGISLA-
~ e i p z i g ;Teubner. TIVE WORK
LENEL, 0. 1899. Palingenesia iuris civilis. 2 v. .Leipzig,
Tauchnitz. ( F o r glosses and so-called pre-Justinian ititerpolations,
-. 1927. Das Edictum perpetuum. Ein Versuch zu seiner see Ch. X I I )
Herstellung. 3rd ed. Leipzig, Tauchnitz. ALBERTARIO, E. 1935. Introduzione storica all0 studio del
L ~ v Y - B R U HH L ., 1924. Le Latin et le droit romain. Revue diritto romano, 39-79. Milan. GiuffrP.
dcs Etrrdrs Latines 2 : 103. -. 1937. A proposito di "Interpolationenjagd." Stlrdi di
MOMMSEN, . T . See above under Codex Theodosianus and diritto rorltarto 5 : 309. Milan, GiuffrP.
Corpus Iuris Civilis. -. 1937. L a critica della critica. Stttdi cit. 5 : 321.
-. 1866-1870. Digesta Iustiniani Augusti. 2 v. (Ed. -. 1937. Giustiniano interpolante se stesso. Strrdi cif. 5 :
maior) . Berlin, Weidmann. 345.
MONRO,C. H. 1904, 1909. The Digest of Justinian. 2 v. -. 1937. Ancora sulle interpolazioni giustinianee tielle cos-
(Books I-XV.) Cambridge, Univ. Press. tituzioni giustinianee. Strrdi cit. 5 : 355.
MOYLE,J. B. 1913. The Institutes of Justinian. 5th ed. Ox- -. 1953. Several articles in Stttdi cit. 6 : 1-55, 427.
ford, Clarendon Press. AMBROSINO, R. 1939-1940. In tenia di interpolazioni. Rrrld
NIEDERMEYER, H . 1934. Vorjustinianische Glossen utid Inter- Lonzb 73 : 69.
polationen und Textiiberlieferung. A C D R Roma 1: 351- APPLETON, C. 1916. Les negatiotls intruses ou onlises datis les
384. Pavia, Fusi.
Pandectes Florentins. R I I D 40: 1-61.
NOVELLAE
IUSTINIANI.See above under Corpus Iuris Civilis. APPLETON, H . 1895. Des ititerpolatioris dans Ies Pandectes et
P H A R R ,C., M. B. P H A R R and , T . S. D A ~ I D S O N1952.
. The des m6tliodes A les dicouvrir. Paris, Lerose.
Theodosian Code and Novels and the Sirmondian constitu- ARANGIO-Rurz, V. 1938. Roniatiisti e Latinisti. S t ~ f n t t m l r -
tions. A translation with commentary, glossary and bibliog- orti, StSns 16: 15-34.
raphy. Princeton, Univ. Press.
Rrccono~o,S. See above under Fontes Iuris Romani Anteiusti- BERGER, A. 1912. Review of G. Bescler. R e i t r a r ~ ctrtr liritik
niani. der riimisclicti Rcclitsquellen 1-2 (sic below). KrlTj 14:
-. 1936. La Codificazione di Giustiriiano e la critica con- 397-445.
teniporaiiea. AjtMac 10. ~ E S E I . E G.
R , V. 1910-1931. neitriige zrtr Kritik tlcr roniiscliel~
ROTONDI,G. 1912. Leges publicae populi Romani. Elelico Reclitsquclleti. 5 v. Tiibingeti, Molir.
cror~ologicocon una introduzione sull'attivith legislativa dei -. 1923-1937. Scveral articles it1 Z S S 43-47. 5&53. 56.
comizi romani (Iistr. tlall' Et~ciclol)ctliagirlritlica italiatia.) 57.
Milan, Socicti Etlitrice Libraria. -. 1919. Juristische hlitiiatureti. Lripzig, Noske.
S a c r r ~ u E.
, 1907-1908. Syrisclie Reclitsbiichcr. 1 v. Uerliti, -. 1929. Stll)siciva. I.eipzifi, Noske.
SANIIARS, T. C. 1933. Ilistitt~tes of Justil~iari. 17th inipr. -. 1928-1936. 7'1< 8. 1 0 ; .Vt IZirrohorro 1. Pnlrrtiio. Casti-
Lontloti, Lotigni;ttis & Green. glia.
SCIIEHTI.I.O, G. 1939. Cot~tril~rtti ;tlla storin clclle Novelle Post- BONFANTE, P . 1933. Stori:~tlcl cliritto ronl:tlio. j t l i cd. 2 :
tcodosialie. S t Rrstn 1 : 197-321. hlilati, Giriffri.. 121. Ronie. Istitrtto tli tliritto romntio.
802 ADOLF SERGER [TRANS.A M I ' R . I ~ H ISOC.
I..
D , W. 1924. Interpolations ill the 1)igest. Yale -. 1922. Indice dei ricliiami a1 diritto nei tcsti c x t r a ~ i u r i -
B U C K L A N\Y.
La~clJartr. 33 : 343. dici. (Posthumous edition.) Scritti yilcritlici 1 : 490.
-. 1941. Interpolations in the Digest. Ilarrard Law Rev. Milan, Hoepli.
54: 1273. ACTA MARTYRUM
COI.I.INET,P. 1952. La genese du Iligeste, ctu Code et des
I~lstitutes de Justitlien. (Postliunious edition.) Paris, LIEBERMAN, S. 1945. Roma~llegal i ~ ~ s t i t u t i o ~ini searl) Kab-
Sirey. binics and Acta Martyrum. Jezvish Quart. Rev. 35 : 1-58.
CIIIAZZESE, L. 1931. Confronti testuali. C o ~ ~ t r i b u talla
o dot- RAMBAUD, J. 1907. Le droit criniillel romai~idans Ics Actes
trina delle i~~terpolazionigiustinianee. Parte generale. des Martyrs. 2nd ed. Lyons-Paris, Witte.
AirPal 16. DE RECIBUS,L. 1926. Storia del diritto liegli Acta Martyrurn.
EBRARD, F. 1918. Die Grundsatze der modernen Interpolatio- Turin, Societh Editrice Inter~iazio~~ale.
nenforschung. Z V R 36: 1.
GRADENWITZ, 0. 1887. Interpolationen in den Patidekte~~. AGRI MENSORES
Berlin, Weidmann.
- . 1889. Interpolaziotii e ititerpretazioni. B I D R 2 : 3-15. See l*alld-surveyOrs.
-. 1886, 1893. Interpolationen it1 den Pandekten. Z S S 7, APULEIUS
14.
GUARNERI-CITATI, A. 1927-1939. Indice delle frasi NORDEN,F. 1912. Apuleius von hladaura u ~ i ddas romische.
costrutti, ritenuti indizio di interpolazione nei testi giuridici Privatrecht. Leipzig, Teubner.
romani. Milan, Hoepli. Suppl. 1, S t Riccobono 1 : 701,
Palermo, Castiglia, 1936; Suppl. 2, Fschr Koschakcr 1 : BO~~THIUS
117, Weimar, Biihlau, 1939.
Index Interpolationum quae in Iustillialli Digestis inesse dicuntur. DIRKSEN,H. E. 1871. Hinterlasse~ie Schriftell 1 : 163-184.
Editionem a L. Mitteis inchoatam et ab aliis viris doctis Leipzig, Teubner.
perfectam curaverunt E. Levy et E. Rabel. 1929-1935. 3 v., CASSIUS DIO
Suppl. 1 (1929). Weimar, Bbhlau.
KALE,W . 1897. Jagd nach Interpolationen in den Pandekten. VRIND,G. 1923. De Cassii Dionis vocabulis quae ad ius pub-
Sprachliche Beitrage zur Digestenkritik. Fsclzr Autenrieth. licum pertinent. Diss. Amsterdam. The Hague, Mensing.
Nuremberg. Programm des Melanchtongymnasiums.
KALINKA,E. 1927. Digestenkritik und Philologie. Philo-
logische Anrnerkungen zu Reselers Methode. Z S S 47: 319- ARCANGELI,A. 1927. I contratti agrari nel De agricultura di
354. Catone. St. Zanzucchi. Milan. Vita e Pensiero
KASER,M. 1952. Zum heutigen Stand der Interpolationenfor-
schung. Z S S 69: 60-101. CICERO
KRETSCHMAR, P . 1939. Kritik der Interpolationenkritik. Z S S
59: 102-218. COI.EIIAN-NORTON, P . R. 1950. Cicero's co~itributioti to the
KRUGER,P . 1910. Interpolationen im Justinianischen Codex. text of the Twelve Tables. ClJ 46: 51.
Fg Giiterbock. Berlin, Vahlen. COSTA, E. 1899. Le orazioni di diritto privato di Cicerone
LENEL,0. 1925. Interpolationenjagd. Z S S 45 : 17-38. ( P r o Quinctio, P r o Roscio, P r o Tullio, P r o Caecina) . Bo-
- 1929. Kritisches und Antikritisches. Z S S 49: 1-23. logna, Zanichelli.
-. 1930. Wortforschung. Z S S 50: 1-17. -. 1927-1928. Cicerone giureconsulto. 2nd ed. 2 v. Bo-
MARCHI,A. 1906. Le interpolazioni risultanti dal confront0 logna, Zanichelli.
tra il Gregoriano, I'Ermogeniano, il Teodosiano, le Novelle GASQUY, P. 1887. Ciceron jurisconsulte. These Lettres, ,4ix-
Postteodosiane e il Codice Giustinianeo. B I D R 18. en-Provence.
MITTEIS, L. 1912. Interpolationenforschung. Z S S 33 : 180- LBNGLE,J. 1934. Romisches Strafrecht bei Cicero und den
211. Historikern. Leipzig, Teubner.
PETROPOULOS, G. 1940. On traces of Interpolations in Justin- PALLASSE, M. 1945. C i d r o n et les sources de droit. Attr~ales
ian's Code (in Greek). Mimoires Andrtades, 433. Athens. U~tiw.Lyon, 3 sbr.
RICCOBONO, S. 1952. Fine e conquiste delle indagini interpo- ROBY,H . J . 1902. Essay on the-law in Cicero's private ora-
lazionistiche. B I D R 55-56: 396-408. tions. Cambridge, Univ. Press.
SCHULZ,F. 1930. Interpolationen in den Justinianischen Re-
formgesetzen des Codex Iustinianus vom J. 534. St. Bolt- COUNCILS OF THE CHURCH
fante 1. (See also Z S S 30: 212-248.)
-. 1935. Umarbeitungen Justinianischer Gesetze bei ihrer CASTELLO, C. 1937-1939. Raffronti fra Concilii della Chiesa e
Aufnahme in den Codex Iustinianus von 534. ACII 1 : 83. diritto romano. RendLomb 71, 72.
.
- 1951. Die Ulpianfragmente des Papyrus Rylands 474 JONKERS,E . J. 1952. Application of Roman law by councils
und die Interpolationenforschung. Z S S 68: 1-29. in the sixth century. TR 20: 340-343.
SIBER,H . 1925. Beitrage zur Interpolationenforschung. Z S S LARDONE, F. G. 1935. I1 diritto romano e i Concilii. ACII
45 : 146-187. 2 : 101-122.
SOLAZZI,S. 1936. L'interpolazione della rubrica. S D H I 2 : STEINWENTER, A. 1934. Die Konzilsakten als Quellen pro-
325-332. fanen Rechts. Mnemosyna Pappoulia. Athens.
STROUX, J. 1950. Die neuen Ulpianfragmente und ihre Bedeu-
tung fiir die Interpolationenforschung. Miscellanea Aca- ENNIUS
delnica Berolinensia 2 (2) : 1.
STELLA-MARANCA, F .
1928. Quinto Ennio e lo studio del
XIV. ROMAN L A W I N NON-JURISTIC SOURCES diritto romano. Hist. 1.
GENERAL
GELLIUS
ROTONDI, G. 1922. L a codificazione giustinianea attraverso le
fonti extragiuridiche. Scritti gilrridici 1 : 340. Milan, DIRKSEN, H. E. 1871. Hinterlassene Schriften 1; 21-63.
Hoepli. Leipzig, Teubner.
VOL. 43, IT.2, 19531 I<N<:YCLOPEDIC DICTIC)NARY O F ROMAN LAW 803
I)E (;I.OEL)F.N,J. 1813. Auli Gellii cluae ad ius pertinent. PATRISTIC LITI.:RATURE. NEW TESTAMENT
Rostock.
HICI~TZ, M. 1868. Auli Gellii quae ad ius pertinent capita. BAI.I., W. E. 1901, Paul and the Roman law. Edinburgh,
Breslau. Friedrich. Clark.
OI.IVER, 1). T . 1933. Roclla~l law of Aulus Gellius. CambLJ BECK,A. 1930. Rumisches Recht bei Tertullian und Cyprian.
5. Schriften der Kiinigsberger Gelehrten Gesellschaft, 2 .
GRAMMARIANS
Halle, Niemeyer.
RIONDI,B. 1940. L'i~~fluenzadi S ~ I AmbrogioI sulla legisla-
DIRKSEN,H . E. 1871. Hinterlassene Schriften 1 : 64-19. zione religiosa del suo tempo. Sant'Ambrogio 11e1 X V I
Leipzig, Teubner. cente~lariodella ~ ~ a s c i t aMilan,
. Vita e P e ~ ~ s i c r o .
MORASSO, M. 1894. Stutli sui grammatici latic~iin relazione a1 -. 1951. La giuridicita del Vangelo. /us 2 : 23.
diritto romano. RISG 17 : 101-125. RRUCK,E. F . 1944. Ethics v. Law. St. Paul, the Fathers of
the Church and the cheerful giver. 7'rud 2.
GRATIANI DECRETUM
Buss, S. 1901. Roman law and history ill the New l'estan~e~lt.
N. Y.-London.
VETULANI, A. 1937. Les Nouvelles de Justinien dans le Dkcret CAHUSI,E. 1906. Diritto romano e Patristica. St 1;addu 2 :
de Gratien. R H D 16: 461-479. 69-97. Napoli, Pierro.
-. 1947. Gratien et le droit romain. RHD 24-25: 11-48. CAVIGLIOLI, G. 1935. Impro~ltedi diritto rotllano nel carteggio
di S. Paolo e nella Vulgata del Nuovo Testame~~to.ACII
HORACE 2 : 89-100.
CONRAT,M. 1904. Das Erbrecht in Galaterbrief. Zeitschr.
DIRKSEN,H . E . 1871. Hinterlassene Schriften 1: 335-341 (on fur neutcstamentliche Wissenschaft 5 : 204
the scholia to Horace). Leipzig, Teubner. CUMONT,F . 1903. Ambrosiaster et le droit romai~l. Revlre
STELLA-MARANCA, F .
1933. I1 diritto romano nell' opera di d'histoire et de littdrature rdligieuses 8: 437.
Orazio. AnBari, Parte I1 : 71-89.
DIRKSEN,H . E. 1871. Hinterlassene Schriften 1 : 149-162,
-. 1935. Introduzione allo studio del diritto romatio nelle 185-203. (On Sidonius Apollinaris and Isidore of Seville.)
opere di Orazio. Hist. 9 : 3, 369, 531. Leipzig, Teubner.
----. 1935. Orazio e la giurisprudenza romatla. Eloquenza DUVAL-ARNOULD, L. P. E. 1888. Etudes sur quelques points
25. d'histoire de droit romain d'apres les lettres et les po6mes de
----.
1935. Per le studio del diritto romano nell'opera di Sidoine Apollinaire. These Paris.
Orazio. AGII 4: 31-88. EGER,0. 1917. Rechtsworter und Rechtsbilder in den Pauli-
RAZZINI,C. S. 1913. Il diritto romano nelle Satire di Jovenale. GASPARINI-FOGLIANI, T. 1928. Cipriano. Contributo alle
BEKKER, E. I. 1892. Die romischen Komiker als Rechtszeugen. SANTACRUZ,J. 1943. Seneca y la esclavidud. A H D E 14:
Z S S 13 : 53-1 18. 612-620.
COSTA,E . 1890. I1 diritto romano nelle commedie di Plauto. STAMPA-BRAUN, J. M. 1950. Las ideas penales y criminolo-
Turin, Bocca. gicas de L. A. Seneca. Valladolid.
DEMELIUS,G. 1861, 1863. Plautinische Studien. Ztschr. fur STELLA-MARANCA, F. 1924. Seneca Giureconsulto. Prolusione.
Rechtsgescltichte 1 : 351-372 ; 2 : 177-238. Rome.
FREDERSHAUSEN, 0. 1906. De iure Plautino et Terentiano.
Gottingen, Goldscbmidt ; idem, Hertnes 47 : 210, 1912.
GREEN,W . M. 1929. Greek and Roman law in the Trinummus DIRKSEN,H . E. 1871. Auslegung einzelner Stellen des Sue-
of Plautus. Cl. Philol, 24. tonius. Hinterlassene Schriften 1 : 213-242. Leipzig, Teub-
V A N K A N , J. 1926. L a possession dans les comedies de ner.
Plaute. M i l C o r d 2 : 1-11. Gand-Paris, Sirey. INVREA,E. 1913. Ricerche di diritto pubblico nelle Vite dei
PARTSCH,J . 1910. Riimisches Recht in Plautus' Persa. Cesari di Suetonio. Fil 481.
Herntes 45. LENCLE.See above under Cicero.
PERNARD, L. 1900. Le droit romain et le droit grec dans le
theitre de Plaute et Terence. SUIDAS
STELLA-MARANCA, F. 1932. 11 diritto ereditario e le com- D ~ H. E, ~ 1871. ~ ~ i schriften
~ 1~~: 287-296.
, ~ ~
medie di Plauto. Hist. 10.
STEVENS, A. P. 1913. Rornan law in the Roman drama. Jour.
SYMMACHUS
Soc. Co?ilparative Legislation 15: 542.
DIRKSEN,H. E. 1871. Hinterlassene Schriken 1 : 149-162.
PLINY T H E OLDER Leipzig, Teubner.
DIRKSEN,H . E. 1871. Die Quelleti der Historia naturalis, TACITUS
insbesondere die rvmisch-rechtlichen. Hinterlassene DIRKSEN,H . E, 1871, Die romiscll~reclltlic,lenMitteilungen
Schriften 1 : 133-148. Lcipzig, Teuhner. in Tacitus' Geschichtsbuchern. Hinterlassene Schriften 1 :
204-212. Leipzig, Teubner.
PLINY T H E YOUNGER LENGLE.See above under Ciccro.
OLIVER,D. T . 1932. Roman law as illustrated in Pliny's ict-
ters. Cavrb. Lazw Jour. TERENTIUS
PULCIANO,C. E. 1913. I1 diritto privato nelle e~istole di
Plinio il Giovatie. Exccrpta iuridica Pliniana. Turin, An-
see above under Plautus (Bekker, Fredershausen, Pernard,
. . Stevens).
fossl. COSTA,E. 1893. I1 diritto privato nelle cotnrnedie di T c r c ~ ~ z i o .
S C I I N E I T I I EJH
. ,A. 1827. Loca e Plinii junioris scriptis quac Bologna, Fava. (See AG 50, 1893.)
at1 ius civilc pertinent. Groningen, Van Boekereti.
SOI.IMENA, C. 1905. Plinio il Giovinc e il diritto puhhlico di VARRO
Ronia. Naples, Picrro.
Z A N E ,J . M. 1914. A Roman lawyer. Illinois Lnnv Jotrr. 8 : S A N I OF
, . D. 1867. Varroniana in den Schriften romisclicr
575. Juristen. Leipzig.
PLUTARCH STEI.I.A-MARANCA, F. 1934. Varronc giureconsulto. Annnri
167.
I)IKKSES,H. 17. 1871. Hil~terlassetic Schriften 1 : 281-312. VIRGIL
I.r.ipzig, Tcuhncr.
POETS Scc ahovc utltlcr Poets.
STEI.I.A-MARANCA, F . 1930. I1 diritto roln;ltio e l'opera di
COSTA,E. 1898. I1 tliritto tici pocti di Roma. Bologna, Zatii- Virgilio. Bari. Scc also ]list 4, 1930.
cliclli.
H E N R I O TE., 1865. Mocurs juridiclues ct jutliciaircs tlc I'an- XV. LATIN INSCRIPTIONS
cictit~cRome tl'aprbs les poi.tes latitls. 3 v. Paris, Firniiti-
1)itlot. AI.IIIRANDI, I. 1896. Dcll' uso dci niotiumctiti epigrafici per
M U H I S O NA., I;. 1935. The law in tllc Idatin pocts. ACIIR l ' i ~ ~ t c r l ) r c t a z i ttlrllc
c lcggi rornatic, 23-46. Rome, Tipo-
ltolttn 2 : 609-639. Pavia, Fusi. ~ r a f i aPolyglotta.
VOL. 43, m.2, 19.531 ENCYCLOPEDIC DICTIONARY O F ROMAN LAW 805
ARANCIO-RUIZ, V. 1936, 1939. Epigrafia giuridica greca e SCHUBART, W . 1918. Einfiihrung in die Papyruskunde. Ber-
romana. SDHI 2: 429-520, 1933-1935; 5: 521-633, 1936- lin, Weidmann.
1938. SEIDL, E. 1935-1949. Juristische Papyruskunde. SDHI 1 :
Dizionario epigrafico di antichita romane. Ed. by De Ruggiero, 450, 1935; 2: 239, 1936; 3: 213, 487, 1937; 4: 278, 580, 1938;
5 v. (to be continued by G. Cardinali). Rome. 5: 293, 634, 1939; 6 : 206, 433, 1940; 15: 319, 1949.
GATTI,G. 1885. Dell' utilita che lo studio del diritto romano STEIN~VENTER, A. 1952. Was bedeuten die Papyri fiir die
pub trarre dall' epigrafia. StDocSD 6: 3-23. praktische Geltung des justinianischen Rechts. Aeg 32:
GIRARD,P . F . 1912. L'epigraphie latine et le droit romain. 131-137.
Mhl dc droit romain 1 : 342-414. Paris, Sirey. TAUBENSCHLAC, R. 1929. Geschichte der Rezeption des
LUZZATTO, G. I. 1942. Epigrafia giuridica greca e romana. romischen Privatrechts in Agypten. St Bonfante 1: 369:
Rome, Pubblicazioni dell' Istituto di diritto romano. 440. Milan, Treves.
-. 1951. Epigrafia giuiridica greca e romana, 1939-1949. -. 1944, 1948. The law of Greco-Roman Egypt in the light
S D H I 17, Suppl. Rome, Apollinaris. of the papyri, 322 B.C.440 A.D. 1, N. Y., Herald Square
STELLA-MARANCA, F . 1926. Epigrafia giuridica romana. Pro- Press; 2, Warsaw, Polish Philological Society.
lusione. Rome, Bardi. -. 1945. Survey of juristic papyrological literature and
publications of papyri in Journal of Juristic Papyrology 1
XVI. J U R I S T I C PAPYROLOGY and ff .. since 1945.
-. 1952. Introduction to the law of the papyri. A D O -
(General presentations of the law of Greco-Roman
Egypt, introductory manuals, comprehensive R I D A 1 : 279-376.
bibliographical surveys) WENCER,L. 1929. Die rechtshistorische Papyrusforschung.
Ergebnisse und Aufgaben. Archiv fiir Kttlturgeschichte 19:
ARANCIO-RUIZ, V. 1910-1948. Rivista di papitorogia giuridica. 10.
B I D R 22 : 208-266, 1910 ; 24 : 204-276, 1911 ; Doxa 1 : 248, -. 1936. Nationales, griechisches und romisches Recht in
1948. Aegypten. Atti del Congresso Internazionale di papirologia,
BoYB, A. J. 1929. Droit romain et papyrus d'ggypte. L'Egypte Firenze, 1935, 159-182. Milan, Vita e Pensiero.
contempovainc 20 : 529. -. 1930-1941. Juristischer Literaturiibersicht. ArPap 9 :
CALDERINI, A. 1920. Bibliografia metodica degli studi di pa- 103, 257, 19\30; 10 : 98, 279, 1932 ; 12 : 103, 247, 1937 ; 13 :
pirologia. Acgyptus l ff. (since 1920). 155, 243, 1939; 14: 181, 1941.
-. 1944. Papyri. Guida allo studio della papirologia greca DE ZULUETA,F . 1928-1935. Survey of juristic papyrology in
e latina. 2nd ed. Milan, Vita e Rensiero. lour. Egyptian Archaeol. 14: 131, 1928; 15 : 110, 1929; 16:
COLLINET,P. 1934. La papyrologie et I'histoire du droit. 120, 1930.; 17: 117, 1931; 18: 77, 1932; 19: 67, 1933; 20:
Miirtchener Bcitrage nzlr Papyrusforschung 19: 186. 94, 1934; 21 : 91, 1935;. Continued by H . F. Jolowicz, 22:
Munich, Beck. 74, 1936; 23: 97, 1937; 24: 105, 1938, and by F. Pringsheim,
DAVID,M., and B. A. VAN GRONINCEN.1946. Papyrological 26 : 139, 1941.
orimer. 2nd ed.
FRESE, B. 1909. AUS dem graeko-aegyptischen Rechtsleben.
Halle, Niemeyer. XVII. COLLECTIONS O F SOURCE M A T E R I A L F O R
GRADENWITZ, 0 . 1900. Einfiihrung in die Papyruskunde. TEACHING PURPOSES
Leipzig, Hirzel. ARANCIO-RUIZ,
V., and A. GUARINO.1943. Breviarium iuris
HENNE, H. 1950. La papyrologie et les etudes juridiques. Romani. (Reprinted with corrections 1950.) Milan, Giuf-
Conferences a 1'Institut de droit romain en 1947. 77-102. I--
I1 C.
-. 1920. Juristische Papyri. Erklarung von Urkunden zur LEVET,A., E. PERROT, and A. FLINIAUX. 1931. Textes et docu-
Einfiihrung in die juristische Papyruskunde. Berlin, Weid- ments pour servir l'enseignement du droit romain. Paris,
mann. Sirey.
MITTEIS,L. 1912. Second P a r t : Juristischer Teil of Grund- MISPOULET, J. B. 1889. Manuel des textes de droit romain.
ziige und Chrestomathie der Papyruskunde by U. Wilcken Paris, Plon-Nourrit.
and L. Mitteis (two parts in four volumes). Leipzig, PARTSCH,J. 1909. Formules de procedure civile romaine.
Teubner. Geneva, Kundig.
MODICA,M. 1914. Introduzione allo studio della papirologia POUND,R. 1914. Readings in Roman law and the civil law
giuridica. Milan, Vallardi. and modern codes as developments thereof. 2nd ed. Cam-
D'ORS, A. 1948. Introduccion al estudio de 10s documentos del bridge, Harvard Univ. Press.
Egipto romano. Madrid. SCHOTT,R. 1931. Hilfsbiichlein fiir die Vorlesungen iiber
PEREMANS, W., and J. VERCOTE. 1942. Papyrologisch Hand- Institutionen, Geschichte und Zivilprozess des romischen
boek. Leuven. Beheer van Philologische Studien. Rechts. Berlin, De Gruyter.
PREISENDANZ, K. 1933. Papyrusfunde und Papyrusforschung. SCHULZ,F . 1916. Einfiihrung in das Studium der Digesten.
Leipzig, Hiersemann. Tiibingen, Mohr.
-. 1950. Papyruskunde. Handbuch der Bibliothekswissen- -. 1925. Texte und Ubungen im rijmischen Privatrecht.
schaft 1 : 163-248. Stuttgart, Koehler. Bonn, Marcus & Weber.
806 ADOLF BERGER [TRANS. AMER. PHIL. SOC.
SIIERXIAN, C. P . 1937. Epitome of Roman Law ill a single Festschrift Paul Koschaker. 1939. 3 v. Weimar, Bnhlau.
book. A co~icise collectioli of almost 700 selectetl texts. Studi in memoria di P. Koschaker. I!Europa e il Diritto
N. Y., Baker Sr Vorliis Romano. 1953. ( I n press.) Milan, GiuffrP.
STAXIMLER, R. 1919. Aufgaben aus dem runiischen Reclit. Recueil d'Ctudcs en l'hotirieur d'l~douartlI.a~iihcrt. 1938. .1 v.
4th cd. Leipzig. l'eit. Paris, Sirey.
ZEVENBEHCEN, C. 1947. Texten ten gebruijke bij de studie van Syrnbolae Friburgenses in lio~iore~li Ottonis I.cncl. 19.31. I,eil~-
het Ronieinsclie Reclit. Utrecht, De Vroede. zig, Tauchnitz.
ZITELXIANN,E. 1925. 1)igestenexegese. Zwanzig Falle aus Scritti di diritto ed economia in onore di Flaniinio Mancaleotii.
tleni riiniischeli Recht. Berlin-Grunewald, Rothscliild. 1938. StSas, ser. 2, 16. Sassari, Gallizzi.
Miscellanea Giovanni Mercati 5. 1946. Citta del Vaticano.
S \ . I I I . COI.I,ECTIVE W O R K S Synibolae ad ius et historiam antiquitatis pertinetites J. C. van
Oven dedicatae. 1946. Leiden, Brill.
A. STUDIES I N HONOR OF SCHOLARS
Mnemosyna Pappoulia. 1934. Athens. Pyrsos.
(111 alphabetical order of the narnes of the persons honored) studi in oliore di silvio perozzi, 1925, palermo, castiglia.
Studi ill ~ne~iloriadi Emilio Albertario. 1952. 3 v. (oart .. Studi in nienioria di Umberto Ratti.. 1934. Milan. Giuffrk.
Studi in onore di Enrico Redenti. 1951. 2 v. M i a n , GiuffrP.
still in press). Milan, GiuffrP.
Studi in nienioria tli Aldo Albertoni. 1935-1938. 3 v. Padua, Studi in onore di Salvatore Riccobo~io. 1936. 4 v. Palernio,
Cedam. Castiglia.
Rtudes dedihes a la menloire d'AndrP AndrCades. 1940. Athens. Scritti giuridici in onore di Santi Romano 4. 1940. Padua,
Melanges Cliarles Appleton. 1903. Lyons, Rey ; Paris, Rous- Cedam.
seau. Scritti della Facolta giuridica delllUniv. di Roma in onore di
Studi in onore di Vincenzo Arangio-Ruiz. 1952-1953. 4 v. Antonio Salandra. 1928. Milan, Vallardi.
Naples, Jovene. Festschrift Fritz Schulz. 1951. 2 v. Weimar, Bohlau.
Scritti vari dedicati a1 Professore Carlo Arnb. 1928. PubMod Studi di diritto romano pubblicati in onore di Vittorio Scialoja.
30. Modena, Utiiversita. 1905. 2 v. Milan, Hoepli.
Studi in onore di Alfredo Ascoli. 1931. Messina, Principato. Studi in memoria di Bernardino Scorza. 1940. Rome, Foro
Aus riiniischem und biirgerlichem Recht. Gewidmet Ernst Im- Italiano.
nianuel Bekker. 1907. Weimar, Bbhlau. Gedachtnisschrift fiir Emil Seckel. 1927. Berlin, Springer.
Studi di storia e diritto in onore di Enrico Besta. 1937-1938. Studi giuridici in onore di Vittorio Simoncelli. 1917. Naples,
4 v. Milan, GiuffrP. Jovene.
Studi in onore di Pietro Botifante. 1929-1930. 4 v. Milan, Studi in onore di Siro Solazzi. 1948. Naples, Jovene.
Treves. Studi di storia e diritto in onore di Arrigo Solmi. 1941. 2 v.
Studi in niemoria di Guido Bonolis. 1942-1945. 2 v. Milan, Milan, GiuffrP.
Giuff re. Melanges Fernand De Visscher. 1949-1950. 4 v. ( R I D A
Studi in onore di Biagio Brugi. 1910. Palermo, Gaipa. 2-5). Courtrai, Imprimerie Groeninghe.
In memory of W . W. Buckland. 1947. TltlLR 22. Festschrift fiir Leopold Wenger zu seinem 70. Geburtstag.
Studi di storia e diritto in onore di Carlo Calisse. 1940. 3 v. 1944-1945. 2 v. (Munchencr Beitrage zur Papyrusfor-
Milan, GiuffrP. schung, 34-36). Munich, Beck.
Scritti giuridici in onore di Francesco Carnelutti. 1950. 4 v. Studi dedicati alla memoria di Pier Paolo Zanzucchi. 1927.
Padua, Cedam. Pitbblica~ionid e l l ' l ~ ~ t i zCattolica
~. Sacro Cuore, Milait, 1 4 ) .
Conferenze romanisticlie tenute nella R. Universiti di Pavia Milan, Vita e Pensiero.
nell' anno 1939 a ricordo di Guglielmo Castelli. 1940.
Milan, Giuff rP. B . STUDIES PUSLISHED ON PARTICULAR OCCASIONS
Scritti giuridici dedicati a Giampietro Chironi. 1915. 3 v.
Turin. Bocca. (Congresses, anniversaries)
Melanges he droit romain dkdies a Georges Cornil. 1926. 2 v. Acta Congressus Iuridici Internationalis (Romae 12-17 Novem-
Gand-Paris, Sirey. bris 1934) 1935. 2 v. Rome, Pontificium Institutum utri-
Scritti giuridici in onore di Carlo Fadda. 1906. 6 v. Naples, usque iuris.
Pierro. Atti del Congresso Internazionale di diritto romano. Bologna e
Studi in memoria di Francesco Ferrara. 1943. 2 v. Milan, Roma, 17-27 Aprile 1933. 1934-1935. 2 v. Pavia, Fusi.
Giuff rP.
Scritti di diritto romano in onore di Contardo Ferrini, pubblicati Atti del Congresso lnternazionale di diritto romano e di storia
dalla R. Universith di Pavia. 1946. Milan, Hoepli. del diritto, Verona, 27-28-29 Settembre 1948. 1951-1953.
Scritti in onore di Contardo Ferrini pubblicati in occasione della 4 v. Milan, GiuffrL..
sua beatificazione. 1947-1949. 4 v. Pubblicazioni dell' Augustus. Studi in onore del bimillenario qugusteo. 1938.
Univ. Cattolica del Sacro Cuore, Milati, 17, 18, 23, 28. Rome, Accademia del Lincei.
Milan, Vita e Pensiero. Conferences faites h 1'Institut de droit romain en 1947. 1950.
Melanges Hermann Fitting 1907-1908. 2 v. Montpellier, Im- Paris, Sirey.
primerie du Midi. Conferenze Augustee nel bimillenario della nascita, 1939. (Pubb-
Melanges Paul Fournier. 1929. Paris, Sirey. licazioni dell'univ. Cat. del Sacro Cuore, Milan.) Milan,
Recueil d'fitudes sur les sources du droit en l'honneur de Vita e Pensiero.
F r a n ~ o i sa n y . 1934. 3 v. Paris, Sirey. Conferenze per il X I V centenario delle Pandette. 1931. (Pubb-
hfelanges E. Gkrardin. 1907. Paris, Sirey. licazioni dell'liniv. Cat. del Sacro Cuore, Milan 33.) Milan,
Btudes d'histoire juridique offertes h Paul Frederic Girard par Vita e Pensiero.
ses 6lPves. 1913. 2 v. Paris, Geuthner. Essays in Legal History read before the International Congress
Melanges P . F. Girard. 1912. 2 v. Paris, Rousseau. of historical studies in London, in 1913. Ed. P . Vinogradoff.
Abhandlungen zur antiken Rechtsgeschichte. 1905. Festschrift 1914. London, Humphrey Milford.
Gustav Hanausek. Graz, Moser. Per il Centenario della Codificazione giustinianea. Studi di di-
Melanges ila memoire de Paul Huvelin. 1938. Livre du X X V ritto pubblicati dalla Facolth di giurisprudenza dell' Univer-
anniversaire de I'Rcole fran~aisede Beyrouth. Paris, Sirey. sita di Pavia. 1934. Pavia, Tipografia Cooperativa.
v o l . . 43, 11.r. 2, 1 ~ 5 3 1 ICN(.:YCI.OPEDIC DIC'I'IONAIIY OF ROMAN I.AW 807
C . COLLECTED WORKS OF INDIVIDUAL SCIIOLARS LEVY,E. 1930. Ergunzu~igsintlcxzu Ius untl Lcgcs. Wcimar,
Bijlilau.
AI.BEI~TARIO, E. 1933-1953. Studi di tliritto romano. 1. Per- LONGO, G. 1899. Vocabolario tlcllc costituzioni lati~lctli Giusti-
solie e faniiglia, 1933. 2. Cose, diritti rcali, l~osscsso.1941. nia~io, I ~ l D I ?10.
3. Obbligazioni, 1938. 4. Eredith c procrsso. 1946. 5 . MAYR, R. V. 1923-1925. Vocabulariuni Cotlicis Iusti~iialli.
Storia, metodologia, esegcsi, 1937. 6. Saggi critici c stutli Pars laatilia I. Pars Gracca 11, ed. M. Sat1 NicolO -Corrcc-
vari, 1953. Milan, GiuffrP. tions notcd by P . Kriigcr, %SS 47: 387-396. 1927. Prague,
AI.~BRANDI, I. 1896. Ol~ere git~ritlichc. Rome, Tipografia Ceska Graficki U~lic.
Polyglotta. MONIER, R. 1949. Pctit vocahulaire tlc tlroit rotnai~i. 4th ctl.
ARANGIO-RUIZ, V. 1947. Rariora. Rome. Edizioni to ria e Paris, Domat-Molitchrcstie~~.
Letteratura. Nuovo Iligesto Italiano. 1934-1940. Turin, Unionc Tipografica
UAVIERA, G. 1909. Scritti giuridici. Palermo, Gaipa. Editrice.
BONFANTE, P . 1916-1926. Scritti giuridici vari. 4 v. Rotile, Oxford Classical I>ictio~~ary.1949. ICtl. by M.Cary and otlicrs.
Saml~aolesi. Oxfortl, Clarc~idonPress.
BORTOI,UCCI, G. 1906. Studi rotnanistici. Padua, Gallilia. Pauly's Reale~iz~klopadie der klassisclie~iAltertuniswissc~~schaft.
BRASSI.OFF. S. 1925. Studien zur riimischen Rectitsgescliichte. New edition by G. Wissowa, W . Kroll, K. Mittclhaus.
\Jic~ina,l:ro~iime. 1894-1953. 1-21 (A- Pont), 1A-7A (R- Val), Suppl. 1-7.
CASTELLI.G. 1923. Scritti giuridici. Milan, Hocpli. T o bc continued undcr the direction of K. Ziegler. Stutt-
NOAILLES,P. 1948. Fas et ius. Btudes de droit romaiii. dica. Doxa 1 : 97, 193.
Paris, Les Belles Lettres. BERGER, A., and A. A. SCHILLER.1945, 1947. Bibliography of
PEROZZI, S. 1938. Scritti giuridici. 3 v. Milan, Giuffre. Anglo-American studies in Roman Law, etc. .Ycm 3 : 75-94,
ROTONDI, G. 1922. Scritti giuridici. Milan, Hoepli. for 1939-1945 ; 5 : 62-85, for 1945-1947.
SCIALOJA,V, 1932-1936, Studi giuridici, v, Rome, Ano- BERTOLINI,C. 1912. Bibliografia 1895-1899. Diritto romano
S E G R ~G., 1930, 1938. Scritti giuridici. Vol. 1, 2, 4. Cor- 111-156, 264-303, 1908; 22 : 267-334, 1910 ; 23 : Appendix,
VASSALLI,F . 1939. Studi, giuridici. 2 v. Rome, Foro Italiano. 26: 289-358, 1913. F . Vassalli, ibid. 2 9 : 185-216, 1916.
XI^. E N C Y C L O P E D I A S , D I C T I O N A R I E S ,
lished by UniversitP Cattolica del Sacro Cuore, Milan).
VOCABULARIES
Ser. 111, Discipline giuridiche. Milan, Vita e Pensiero.
AMBROSINO, R. 1942. Vocabularium Institutiwum ~ustiniani. romain. In the Polish periodical Czasopismo historyczno-
DIRKSEN,H . E. 1837. Manuale Latinitatis fontium iuris civilis operum ad ius Romanum pertinentium. Ser. I , 1-3: Opera
-. 1912. Index ad partem primam Brunsii Fontium iuris COLLINET, P. 1930. Bibliographic des travaux de droit romain
Romani antiqui. Tiibingen, Mohr. en langue franqaise. Paris, Les Belles Lettres. Completed
GUARNERI-CITATI, A. Indice delle parole, etc. See Ch. X I I I . by P. Ciapessoni, Ath 10: 93-96, 1932.
Pogc
Between Adesse and Adfatus insert: Adf-. See 613. Origo, bibl. line 2. Read : l(1940) 89 (instead
AFF-. of : 1940).
Adoptio, line 14. Cancel: DATIO I N ADOPTIO- 621. Patricii, line 28. Transfer the phrase : "admis-
NEM. sion to the highest pontificate (LEX OGUL-
Left col. Cancel: Adf-. See AFF-. NIA,300 B.c.)," into line 33, before the words
Alimenta, line 10. Read : C.5.25 (instead of : "and finally."
C.5.26). 648. Precarium, bibl. line 6. Read : Carcaterra.
Animus novandi, line 2. Read : Scialoja. 676. Repudium, line 7. Read : dissolved (instead of :
Auctoritas principis, bibl. line 5. Read : solved).
Pugliese-Carratelli (instead of : Pugliese and 712. Specificatio, line 1s. Read : PICTURA (instead
Carratelli) . of : TABULA PICTA).
Censores, bibl. line 4. Read : 1912 (instead of : 712. Spectator, bibl. Read : 3A (instead of : 13).
1909). 728. Tabulae ceratae, line 6. Read : Herculanum.
Cognitio extra ordinem, bibl. line 4. Read:
73 1. Tempus, bibl. line 1. Read : 2,58 (instead of:
Orestano. 258) ; line 2. Read : 1913 (instead of : 1912).
Collatio legum, line 3. Read : 438 (instead of :
732. Tessera nummularia, bibl. line 1. Read: 5A
428).
(instead of : 13).
Curator minoris, bibl. line 3. Read: V.
Arangio-Ruiz. 733. Testamentum iniustum, line 2. Read : lacked
Read : Damnum (instead of : Damnus) emer- (instead of : backed).
gens. 735. Testimonium unius, line 3. Read: Imperial
Read : Depositum irregulare. constitutions of A.D.284 and 334 (C. 4.20. 4 ;
Edictum perpetuum Hadriani, bibl. line 11. 9 ).
Insert after Albertario: l(1953). 742. Tribonianus, line 17. Read : is (instead of:
Exsecutor testamenti, line 3. Read : testaittenti. are).
Femina, bibl. line 3. Read: Kubler (instead of 758. Varro, line 2. Read De (instead of : Le).
Brassloff) . line 4. Read : Brassloff (instead 773. Right col : line 33. Read : Astrologus = Astrolo-
of : idem). geu.
Read : Fideicommissum libertatis. 775. Right col. line 2. Read : Deceit.
Fundus provincialis, line 1. Read: praedium 775. Right col. line 33. Read : Dependent.
(instead of : predium) . 786. Textbooks, line 34. Insert : BONFANTE, before :
Haeretici, line 17. Read: See C. 1.5 (instead P. 1925-1933.
of: 1.15). 787. Right col., RADIN,line 2. Read: California LR
Hereditatis petitio, bibl. line 5. Read: 1926 (instead of : TulLR) .
(instead of : 1920). Civil Procedure, line 11. Insert : ARANGIO-
Ius humanum, line 6. Read: MATRIMONIUM
(instead of : NUPTIAE) .
Metatum, line 5. Insert : by, before: paying.
I
791.
RUIZ, Vittorio, before: 1920. La privata
difesa.
'
Read : CHAUVEAU (instead of : CHA-
Militaris, line 4. Read : AERARIUM MILITARE, 792. Left col.
VEAU ) .
AES MILITARE (instead of : MILITARIS).
Mutuum, bibl. line 1. Read: Kreller (instead 799. Right col. J o ~ o w ~ cline z , 2. Read : 65 (instead
of : Kaser ) . of : 49).
Read : Novellae (instead of Novelles) post- 800. Right col. HAENEL,line 1. Read: ab (instead
Theodosianae. of: ad).
Obligatio ex delicto, line 4. Cancel: INIURIA 806. Collective works, line 4 (Studi Albertario) .
DATUM. Read: 1953. 2 v. (instead of : 1952, 3 v.).