Roman Law Terms with Letters А

A. Abbreviation for absolvo written by judges of crim­inal courts (see quaestiones) on wooden tablets (see tabellae) to indicate a vote for acquittal. See absolutio. A condemnatory vote was expressed by the letter C — condemno ( = I condemn).

A. Abbreviation for antiquo, written by the partici­pants in a popular assembly (see comitia) on wooden tablets, indicated a vote against the proposed bill. Antiquo — I leave it in the ancient state, I reject. On the contrary, the abbreviation UR = uti rogas (as you propose) was used for an affirmative vote. —See LEX, ROGATIO.

A, ab. These prepositions appear in the official titles of the heads of certain divisions in the imperial chan­cery ; see the following items. Some of these officials were later called magistri.

A censibus. An official of the imperial chancery charged with the examination of the financial situa­tion of persons who aspired to admission to the sena­torial or equestrian rank. Such admission depended upon the possession of a considerable property.—See CENSUS, ORDO SENATORIUS, EQUITES.

Kalopothakes, DE 2, 114.

A cognitionibus. The chief of the division of the imperial chancery concerned with judicial matters.— See COGNITIO.

De Ruggiero, DE 2, 320; v. Premerstein, RE 4, 220.

A commentariis. See commentarii, commentari­ensis.

A consiliis. See A STUDIIS.

A diplomatibus. See diploma.

A libellis. The head of the division of the imperial chancery which dealt with all kinds of petitions ad­dressed to the emperor. His later title was magister libellorum.—See libellus.

Thedenat, DS 3, 1174; v.

A memoria. A high official of the imperial chancery who prepared the drafts for the emperor’s public allocutions.

Bloch, DS 2, 723; Fluss, RE 15, 655.

A rationibus. The head of the division of the imperial chancery which was concerned with the emperor’s financial matters and the control of the fiscal admin­istration throughout the whole empire. From the time of Claudius he was an official of the state and not an imperial functionary.—See procurator a RATIONIBUS, RATIONES.

Rostowzew, DE 3, 133.

A studiis. An imperial official (from the middle of the first century) somewhat connected with the em­peror’s judicial activity, probably his special counsel in more complicated legal and governmental matters. Later his title was magister a studiis. A similar office may have been that of the a consiliis.

Kübler, RE 4A, 397; Chapot, DS 4, 1546; O. Hirschfeld, Kaiserl. Verwaltungsbeamte² (1905) 332; Bersanetti, Epi- graphica 9 (1947) 56.

Ab actis. See acta.

Ab epistulis. The director of the imperial secretariat which was subdivided into two departments, one for Latin (ab epistulis Latinis) and one for Greek letters (ab epistulis Graecis). The office was concerned with the private and official correspondence of the emperor, in both civil and military matters, and also with the appointment of military officers.—See epistula, SCRINIUM EPISTULARUM.

Rostowzew, RE 6, 210; Bloch, DS 2, 712; De Ruggiero, DE 2, 2133.

Ab intestato. See intestatus.

Abactor. See abigeus.

Abactus. A magistrate forced to resign his office by the decision of a popular assembly.—See lex Sem­pronia DE ABACTIS.

Abactus partus. See partus abactus.

Abalienare. See alienatio. The term is used pri­marily of alienations through mancipatio.

Berger, Kritische Vierteljahresschr. für Gesetzgebung und Rechtswiss. 14 (1912) 414; De Visscher, Rev. Etudes Latines 1936, 130 (=Nouvelles Etudes, 1949, 257).

Abdicatio. Renunciation, abandonment.

Leonhard, RE 1; Neumann, RE 1; Humbert, DS 1; for abdicatio tutelae: Perozzi, RendBol 1918/9 (= Scritti 3, 215) ; Solazzi, RendLomb 51 (1918) 873; idem, St. Pavia 6 (1921) 116; Sachers, RE 7 A, 1532; for abdicatio libero­rum: Düll, ZSS 63 (1943) 71.

Abigeatus. Cattle stealing (rustling) from a stable or pasture. Unlike an ordinary theft (see furtum) it was prosecuted as a public crime (see crimina pub­lica) and punished more severely.—D. 47.14; C. 9.37.

Hartmann, RE 1; Humbert, DS 1; Berger, Sem 2 (1944) 23.

Abigeus. A cattle thief, a rustler. Syn. abactor.—See ABIGEATUS.

Abiurare. To deny a debt on oath; to hold back fraud­ulently. See IUSIURANDUM.

Wlassak, RE 1; D. Daube, Studies in biblical law, 1947, 229.

Aboleri. See ABOLITIO.

Abolitio. (From abolere.) In penal law, the annul­ment of an accusation and consequently of the whole trial through deletion of the name of the individual

charged with a crime from the list of accused persons. See accusatio. Abolitio publica (= general aboli­tion) was ordered by the emperor on the occasion of some happy event or of thanksgiving festivities (gratu- latio). Withdrawal of the accusation by the accuser {desistere) or his death produced abolitio. Aboleri — extinction of the right of suing or prosecuting a person in civil or criminal matters.—D. 48.16; C. 9.42; 43.45.

Saglio, DS 1; A. Leschtsch, A. paschalis, Diss. Freiburg, 1904; P. Duparc, Origines de la grace dans le droit penal rom., 1942, 24.

Abortio (abortus). Abortion. For abortio caused by a poisonous drink {poculum abortionis), see VENENUM.

Waszink, RAC 1 (1950).

Abrogate legem. To annul a statute in its entirety by an abrogating legislative act. A law may also lose its binding force by disuse (desuetudo) which is the expression of a “tacit consent of the whole people” (D. 1.3.32.1). See DEROGARE.

Absens, absentia. (In judicial trials.) The Twelve Tables already provided that the absent party auto­matically lost the case to the party present. Under the formulary procedure a plaintiff who did not appear in court was deemed to have renounced his claim. The absence of the defendant in the first stage of the trial before the magistrate (in iure) might under certain circumstances lead to the seizure of his property; see missio in bona; his non-appearance before the judge (apud iudicem) might lead to his condemnation; see CONDEMNATIO, CONTUMACIA, EREMODICIUM. The normal consequences of the absence could be annulled by an extraordinary praetorian measure (restitutio in integrum) if it was justified by important reasons such as sickness, acting in the interest of the state, and the like.

Wlassak, RE 1; Kipp, RE 6, 417; Fliniaux, £t Girard 1, 1912; Solazzi, 57. Sitnoncelli, 1917; idem, Concorso dei creditors 1 (1917) 66, 70 (Bibl.).

Absentes, absentia. Persons absent enjoy a particular protection in cases in which the defense of their rights required their presence. The remedies were various. In the case of justified absence the praetor could annul by means of restitutio in integrum any rights ac­quired to the prejudice of the absent person; see the foregoing item. Property of persons absent in service of the state (such as governors of provinces, officials, soldiers) could not be* acquired by usucapio. Such persons were also excused from civil charges, as tutela, cura. A particular defense was granted to Roman citizens who became prisoners of war. See captivi, postliminium. In contractual relations the absence of the creditor does not interrupt the pre­scription of his actions. The distinction absentes— praesentes is of importance in the conclusion of verbal and consensual contracts: whereas the former require the presence of the contracting parties, the latter can be concluded inter absentes by means of a letter (epistula) or a messenger (nuntius).—In Justinian’s rules on LONGI TEM PORTS PRAESCRIPTIO, inter prae- sentes means that the owner of the immovable and the factual possessor live in the same province.

Wlassak, RE 1; Guarneri-Citati NDI 1 (s.v. assenza).

Absolutio. (From absolvere.) Refers to a judgment by which the defendant in a civil trial or the accused in a criminal one was absolved. In the formulary pro­cedure the term was expressly used in the formula to authorize the judge to render an absolutory judgment (absolvito).—See sententia.

Wlassak, RE 1; Leonhard, ibid.

Absolutorius. There was a maxim in classical Roman law (Gai Inst. 4, 114) : omnia judicia absolutoria sunt = all civil trials may lead to an absolution (of the defendant). If the defendant satisfied the plaintiff after litis contestatio but before the judgment (sententia), the judge had to render an absolutory judgment. The rule was accepted by some jurists only with regard to iudicia bonae fidei, but by the second century it was generally recognized.

Abstinere(se)hereditate. The praetorian law granted the so-called sui et necessarii heredes the right to refuse the paternal inheritance (ius abstinendi) in order to avoid the acceptance of an insolvent inheri­tance which otherwise would fall to them automati­cally. C. 2.38. See PRO HEREDE GERERE.

Absumptio. See res quae usu consumuntur.

Aburnius Valens. A Roman jurist under Hadrian and Antoninus Pius, author of an extensive treatise on fideicommissa.

Jors, RE 1 (no. 2) ; Orestano NDI 1.

Abusus. See RES QUAE USU CONSUMUNTUR.

Abuti. To abuse, to make bad use of a thing or a right, particularly with the intention to harm another.—See AEMULATIO.

Riccobono, BIDR 46 (1939) 1; Appleton, Rev. generate du droit 55 (1931) 115.

Accensi. Non-armed soldiers without any property qualification. They were mustered into a special centuria and formed a reserve troop which in battle took the place of fallen legionaries. Syn. velati ( = clothed with a military cloak).—Accensi were also the orderlies of higher magistrates (with imperium).

Cichorius—Kubitschek, RE 1; Humbert—De la Berge— Saglio, DS 1; De Ruggiero, DE 1; Vogel, ZSS 67 (1950) 86.

Acceptilatio. An oral form of dissolving oral obliga­tions, according to the rule that obligations contracted verbis had to be dissolved in the same way (orally). The stipulatory debtor asked his creditor: “What I promised to you, have you received it (habesne ac- ceptum)?” The latter answered “I have (habeo).” Later, Greek words were admitted. In order to dis­solve an obligation other than an oral one by accepti- latio, which was the safest form of receipt, the parties transferred the obligation into a stipulatio to which an acceptilatio was afterwards applied. This exten­sion of acceptilatio was introduced by the jurist aquilius gallus who composed the formula of the novating stipulatio, called stipulatio Aquiliana.—D. 46.4 ;C. 8.43.

Leonhard, RE 1; Natalucci, NDI 1; De Ruggiero, Scritti A. Marghieri (1921) 415; Wlassak, ZSS 42 (1921) 394; Bohacek, AnPal 11 (1923) 379; Cugia, A. solutioni com­paratur, 1924; idem, St. Mancaleoni, 1938, 111; idem, St. Bonolis I (1942) 247; Michon, Rec. Geny I (1934) 42; Solazzi, Estinzione dell’obbligaAone I² (1935) 246; P. Meylan, A. et paiement, 1934; G. Lombardi, Ricerche in tcma di ius gentium 1946, 185; Daube, ZSS 66 (1948) 119. Acceptum habere. See acceptilatio; syn. acceptum jacere, accepto jerre.

Acceptum rogare. The debtor’s question in accepti­latio.

Accessio. (From accedere.) The union of one thing (land or movable) with another either by natural forces or artificially (mechanically, iungere) so that they form an organic unity (a whole, accessio mate­riae). The cases of accessio were very manifold. If the things mixed, melted, woven, etc., belonged to different owners, the question of ownership over the new whole might involve difficulties. A general rule was that when one of the things was only an accessory of the other, the ownership of the latter was decisive. Outward appearance, usage or custom determine which was principal and which accessory.—D. 22.1. —See ferruminatio, intexere, litterae, pictura, PLANTARE, SUPERFICIES, EXHIBERE.

Leonhard, RE 1; Baudry, DS 1; Sanfilippo, NDI 1; Ricco- bono, AnPal 5 (1917) ; Guarneri-Citati, AnMac 1926, 1929; idem, AnMes 1927; AnPal 14 (1930).

Accessio possessionis. Addition of possession. In some particular cases (longi temporis praescriptio, USUCAPld, interdictum utrubi), the periods of pos­session of two or more successive holders were added together to the benefit of the last one. Syn. accessio temporis.

Zanzucchi, AG 72 (1904) 177, 353; 76 (1906) 3; P. Krüger, ZSS 26 (1905) 144; Suman, RISG 59 (1917) 225; Ratti, St Bonfante 1 (1930) 263.

Accessio temporis. See accessio possessionis. Accipere iudicium. See iudicium accipere.

Acclamatio. A demonstration of esteem and friendly feeling in the form of fixed cheers, tendered to high magistrates and later to the emperors when they ap­peared in public on certain occasions. A victorious general was acclaimed by a loud salutation when he entered the city of Rome in triumph. In the senate, acclamation was a sign of approval of the emperor’s oratio (see oratio principis). It was considered a vote and noted in records of the senate (acta senatus). See TRIUMPHUS.

De Ruggiero, DE 1, 72; Saglio, DS 1; Klauser, RAC 1 (1950) 221; Dessau, Ephemeris epigraphica 7 (1892) 429; Seeck, Rheinisches Museum 48 (1893) 199; O. Hirschfeld, Kleine Schriften, 1913, 691; Charlesworth, J RS 33 (1943).

Accursius. A famous glossator (1182-1260), profes­sor at the law school in Bologna. He compiled the glosses of other glossators (see glossatores) in a general collection called glossa ordinaria.

Monti, NDI 1; E. Landsberg, Die Glosse des A., 1883; Genzmer, Fschr Wenger 2 (1945) 223; Torrelli, RStDIt 7 (1934) 429.

Accusatio. (From accusare.) Except for a few in­stances of a civil nature this means accusation in criminal affairs in the Roman criminal procedure of the last century of the Republic. Prosecution began at the initiative of a citizen (not a magistrate) who assumed the role of the accuser by denouncing the wrongdoer and filing a charge against him with the chairman of the competent criminal court (quaestio). This first step of the accuser was called nomen dejerre (nominis delatio), he being the delator (denouncer). If the magistrate accepted the accusation (nomen re­cipere), normally presented by writing (libellus accu­satorius), he ordered its registration (inscriptio) in the official record of persons to face a criminal trial. The accusatio could be supported by the signatures (subscriptio) of additional accusers. In order to prevent malicious accusations, an oath (iuramentum calumniae) was imposed on the accuser.—In civil matters, accusatio is used in connection with a guard­ian alleged to be dishonest or negligent (see tutor suspectus), with a freedman, ungrateful to his patron (see ingratus), and with an undutiful testament (see QUERELA INOFFICIOSI TESTAMENTI). D. 48.2; C.

9.1 ; 2. See CALUMNIA, CAPITIS accusatio, edictum

CONSTANTINI, PRAEVARICATIO, TERGIVERSATIO, REPE­TERE ACCUSATIONEM.

Leonhard, RE 1; Vinet, DS 1; Lauria, NDI 1; idem, A.-inquisitio, ANap 56 (1934) ; Wlassak, SbWien 184, 1 (1917), 194 (1920) ; Hitzig, RE 4 (s.v. delatio nominis).

Accusator. An accuser in a criminal trial. Accusatorius libellus. See accusatio.

Acilius (Atilius ?), Lucius. A jurist of the early sec­ond century b.c., author of a commentary on the Twelve Tables.

Klebs, RE 1, 252 (no. 7).

Acqu-. See ADQU-.

Acta. Records drawn up by officials, concerning their activity and proceedings developed before them as well as certain binding declarations of private indi­viduals (donations, testimony, etc.) made before them (apud acta). Syn. gesta, sometimes commentarii. The term for the performance of binding deeds, en­tered into the acta, is in later times insinuare.—Ab actis = a general designation for officials concerned with acta (secretaries — scribae, the subordinate per­sonnel in the pertinent offices).

Kubitschek, RE 1; Weiss, RE Suppl. 7 {s.v. gesta) ; Humbert, DS 1; De Ruggiero, DE 1.

Acta Caesaris. Acts performed or ordered by an em­peror before his death. They had to be respected by his successor who was obliged to take an oath to that effect upon accepting the throne. A similar oath with regard to acta Caesaris was also compulsory for sena­tors. Syn. acta principis, which may also mean the records of imperial orations, decisions, etc.

Acta diurna. An official law bulletin, introduced by Caesar for the publication of statutes and decrees of the senate (senatusconsulta) as well as of impor­tant news concerning the state, and the imperial family.

Acta militaria. Records pertaining to the administra­tion of larger military units, as, e.g.; legions, in which there was a file for each soldier summarizing his service and his financial affairs (proceeds, savings, and the like).

Kubitschek, RE 1, 286; Humbert, DS 1; O. Hirschfeld, Kleine Schriften, 1913, 682.

Acta populi. Another designation for acta diurna. They were also called acta urbis, urbana, publica, since they contained news about important local events.

Acta senatus. Records of the discussions in the senate, another of Caesar’s innovations (see acta diurna). Orations of the emperor delivered in the senate were also published there.

Humbert, DS 1; De Ruggiero, DE 1, 45; O’Brien Moore, RE Suppl. 6, 770; O. Hirschfeld, Kleine Schriften, 1913, 689.

Actio. In the definition of the jurist Celsus, “nothing else than the right of an individual to sue in a trial for what is due to him” (D. 45.1.51; Inst. 4.6 pr.). In the formal sense actio is referred to the action of a plaintiff by which he initiates a suit (actione ex­periri, actionem exercere) as well to the whole pro­ceedings, or to the formula granted for a specific claim. In this last meaning actio is synonymous with indicium, both being applied to particular formulae. —See IUDICIUM, PETITIO, DARE ACTIONEM, DENEGARE, repetere actionem, perire.—Inst. 4.6; D. 44.7; C. 4.10.—In the following presentation the different types of actions appear under action es; the specific actions are dealt with either under the name of the legal institution with which they are connected or under their own denomination.

Wlassak, RE 1; Anon., DS 1; Landucci, NDI 1; Brugi, ND! 1 (s.v. asione) ; Albertario, In tema di classificasione delle asioni, 1928 (—Studi 4 [1946] 219) ; Arangio-Ruiz, Cours de droit romain. Les actions, Naples, 1935; G. Pugliese, Actio e diritto subbiettivo, 1939; Biondi, ACDR, Roma II (1935) 185.

Actio ad exhibendum. See exhibere.

Actio ad supplendam legitimam. See pars legitim a ;

QUERELA INOFFICIOSI TESTAMENTI.

Balis, ZSS 55 (1935) 272.

Actio aestimatoria. See actio quanti mi noris, aestimatum, emptio.—D. 19.3.

Actio aquae pluviae arcendae. Action against the owner of a neighboring plot of land for having con­structed a work which might change the natural flow of rain-water to the detriment of the plaintiff’s prop­erty. The actio had to be brought before damage was done; the defendant when defeated had to re­move the construction. Originating in the Twelve Tables, the actio acquired a different aspect in Jus­tinian’s law since its availability was considerably reformed.—D. 39.3.

G. Baviera, Scritti 1 (1909) ; Berger, ZSS 31 (1910) 405; Schonbauer, ZSS 54 (1934) ; M. Sargenti, L’a.a.p.a., 1940.

Actio arbitraria. See actio de eo quod certo loco, ACTIONES ARBITRARIAE.

Actio arborum furtim caesarum. The Twelve Tables introduced this actio against anyone who secretly cut down trees belonging to another’s property. The fixed penalty of 25 asses for each tree was later changed to double value by the praetorian action de arboribus succisis, modeled after 4he decemviral ac­tion. Moreover, the wrongdoer could be sued for the damage done through the actio legis aquiliae. —D. 47.7.

P. Huvelin, Le furtum, 1915, 67; Fliniaux, St. Bonfante 1 (1929) 523; Berger, St. Riccobono 1 (1936) 614; E. Carrelli, SDHI 5 (1939) 327; idem, AnBari 2 (1939); Kiessling, Jour, of jur. papyrology 4 (1950) 317.

Actio auctoritatis (de auctoritate). The transferor of quiritary ownership over a res mancipi through man ci patio was obliged to defend the transferee against a claim of ownership (rei vindicatio) by a third person (see evictio). In this context auctori­tas means a kind of guaranty in case of eviction. If the transferor failed to do so or the transferee lost the case, the latter had actio auctoritatis for double the price paid. This liability on the part of the niancipio dans (the transferor) lasted according to the Twelve Tables two years for immovables, one year for all other things, because after these periods the trans­feree acquired full ownership through usucapio. Where usucapio by the transferee was excluded, as, for instance, in the case of stolen things, or of a trans­feree who was a foreigner (hostis) the liability for auctoritas of the transferor was unlimited in time, “eternal” (aeterna auctoritas).

Leist, RE 2, 2276; Ferrini, NDI 1 (s.v. auctoritatis a.) ;

E. Levy, Die Konkurrens der Aktionen, 2, 1 (1922) 238; P. F. Girard, Melanges 2 (1923) 5, 153, 290; Leifer, ZSS 56 (1936) 136; v. Liibtow, Fschr Koschakcr 2 (1939) 117; De Visscher, RHD 16 (1937) 574; (= Nouvelles Etudes, 1949, 179); Giffard, RHD 17 (1938) 339; P. Noailles, Fas et ius, 1948, 339; M. Kaser, Eigentum und Besits, 1943, passim; idem, ZSS 68 (1951) 168, 174; Magdelain, RIDA 5 (—Mcl De Visscher 4, 1950) 145.

Actio calumniae. See iudicium calumntae.

Actio calumniosa. An action brought by a plaintiff only with the purpose of chicanery.—See c alumni a.

Actio Calvisiana. The patron’s right to inherit from his freedman was protected by this action against fraudulent alienation by the latter in the case of in­testacy. If the freedman’s testament contained dis­positions to defraud the patron the analogous action for annulment of such dispositions was the actio Fabiana.—See fragmentum de formula fabiana.

E. Levy, Privatstrafc und Schadenscrsats (1915) 69.

Actio certae creditae pecuniae. See mutuum.

Actio civilis in factum. See actio praescriptis verbis.

Actio civilis incerti. See actio praescriptis verbis. Actio commodati. See commodatum.

Actio communi dividundo. Aetion among co-owners for division of common property. Along with this primary function, the actio served for the settlement of all other controversial questions that might arise from common ownership, e.g., from unequal distribu­tion of profits from, or expenses on, the common thing. The actio belongs to the category of iudicia bonae fi dei ; thus the judge had the possibility of taking into account and adjusting the various recipro­cal liabilities among the co-owners (praestationes per­sonates).—D. 10.3; C. 3.37; 38.—See communio, COMMUNIS, SOCIETAS, DIVISIO, ACTIONES DUPLICES, ADIUDICATIO.

A. Berger, Zur Entwicklungsgeschichte der Teilungsklagen im klassischen röm. Recht, 1912; Albertario, Studi 4 (1946, ex 1913) 167; Arangio-Ruiz, RISG 52 (1912) 223; Biondi, AnPer. 1913; Ein, BIDR 39 (1931) 73; Frezza, RISG 1 (1932) 3.

Actio conducti. See locatio conductio.

Actio confessoria. See vindicatio servitutis, con­fessio in iure.

Actio constitutoria. See constitutum.

Actio curationis causa utilis (iudicium curationis utile). The name given by Justinian to the action granted the curator of a minor for recovery of ex­penses or losses he had incurred in connection with the management of the ward’s affairs.—See minores, curator minoris.

Actio damni infecti. See damnum infectum.

Actio de aestimato. See aestimatum.

Actio de albo corrupto. Action for spoiling, damag­ing or falsifying the praetorian edict promulgated on the album. The actio is penal, in factum, and popu­lar. See ACTIONES IN FACTUM, ACTIONES POPULARES, ALBUM, EDICTUM.

Actio de arboribus succisis. See actio arborum FURTIM CAESARUM.

Actio de deiectis vel effusis. A praetorian action against a householder for throwing things or pouring liquids from his dwelling, so as to harm people on the street. The householder is responsible also if his slave, guest, or child did so. Justinian listed such cases among obligations which arise “as if from a delict” (obligationes quae quasi ex delicto nascuntur). Similar responsibility arose when things were located or suspended on the outside of a house or in a window in such a way as to endanger passers-by. The pertinent action was actio de positis ac suspensis. See HOSPES.

Fioretti, NDI 5 (j.z'. effusa) ; G. A. Palazzo, Obbligazioni quasi ex delicto, 1919.

Actio de dolo. See actio doli.

Actio de dote (dotis). In some interpolated passages the name for the action for recovery of a dowry (actio rei uxoriae), thoroughly reformed by Justinian. —See DOS.

Actio de eo quod certo loco. If someone promised by stipulatio a performance at a certain place, the creditor could sue him only there since the fulfillment of the obligation at another place might be more ex­pensive to the debtor. By this praetorian action the judge was given the possibility of taking into account the difference. The action is also termed arbitraria for a reason which is not quite clear; its classical formula had not the arbitri um-clause which was the characteristic feature of the so-called actiones arbi­trarie.—D. 13.4; C. 3.18.—See pluris petitio loco.

G. v. Beseler, Edictuni de eo quod certo loco, 1907 ; Dumas, NRHD 34 (1910) 610; Arangio-Ruiz, BIDR 25 (1912) 130, 26 (1913) 147; Biondi, AnPal 1 (1916) 19; idem, BIDR 26 (1913) 5, 153; Lend, ZSS 37 (1916) 121 ; Beseler, TR 8 (1928) 326; S. G. Huwardas, Beitriige zur Lehre von den actioncs arbitrariae, 1932; Astuti, AnCani 11, 2 (1937) 157; L. Wenger, Institutes of the R. law of civil procedure, 1940, 151; Biscardi, StSen 60 (1948) 656 (Bibl.); D’Ors, RIDA 4 (1950) 435.

Actio de in rem verso. See peculium.

Actio de modo agri. If land is transferred by manci­patio the transferee has this actio against the trans­feror if the area of the transferred land proves to be less than asserted by the former owner. The latter must pay double the proportionate part of the price. Cuq, DS 3, 1958.

Actio (iudicium) de moribus. The action of a hus­band against his wife in case of divorce for miscon­duct. The actio, which in ancient times may have been merely a criminal accusation, is penal in char­acter and, under certain circumstances, may cause the divorced wife to lose her whole dowry. The action was abolished by Justinian.—C. 5.17.

Klingmiiller, RE 9 (s.v. iudicium, de m.) ; Cuq, DS 3, 2001 ; Wolff, ZSS 54 (1934) 315 (Bibl.) ; Volterra, RISG 85 (1948) 115.

Actio de pastu pecoris. Action for damage caused by another man’s cattle grazing on the plaintiff’s property. Belongs to the category of actiones NOXALES. See NOXA.

Fliniaux, Mèi Cornil 1 (1926) 245; Carrelli, AnBari 2 (1939) 3.

Actio de pauperie. Action for damage done by a domestic four-footed animal (quadrupes). Its owner had either to compensate for the damage (pauperies) or surrender the animal (noxae dedere). See noxa. Justinian extended the actio to another case of lia­bility of animal owners. Keeping a dog or a savage animal near the road was prohibited by the edict of the aediles and the injured victim was entitled to redress. Justinian granted an actio de pauperie in such a case in addition to the aedilician action.

Robbe, NDI 9 (s.v. pauperies) ; Haymann, ZSS 42 (1921) ; E. Levy, Konkurrenz der Aktionen, 2, 1 (1922) 225; Biondi, AnPal 10 (1925) 3; Kerr Wylie, St. Riccobono 4 (1936) 459; Robbe, RISG N.S. 7 (1932) 327; Lenel, ZSS M (1937) 2; Visconti, St. Solmi 1 (1941) 157; Dull, ZSS 61 (1941) 1; Condanari-Michler, Fschr Wenger 1 (1944) 236.

Actio de peculio. See peculium.

Actio de pecunia constituta. See constitutum.

Actio de positis ac suspensis. See actio de deiectis VEL EFFUSIS.

Actio de rationibus distrahendis. Action for double damages against a guardian guilty of embezzlement; it was available only after the termination of the guardianship.—D. 27.3.

Sachers, RE 7 A, 1563; Solazzi, Rend Lomb 50 (1917) 178; 53 (1920) 121; Levy, Konkurrenz der Aktionen 2, 1 (1922) 247.

Actio de servo corrupto. See actio servi corrupti. Actio de termino moto. Action against the person who intentionally removed and set at another place a boundary stone in order to change the boundary of a landed property to the prejudice of the owner. Such an action could be brought by any citizen.—See ter­minum MOVERE, ACTIONES POPULARES.

Actio de tigno iuncto. See tignum iunctum.

Actio de universitate. A postclassical name for here­ditatis petitio.

E. Albertario, Studi 4 (1946) 65.

Actio depensi. A surety by sponsio who paid the principal debtor’s debt because the latter failed to do so, had an actio depensi according to the Lex Publilia (about 200 b.c.) if within six months after the pay­ment he was not reimbursed by the principal debtor. —See SPONSIO.

Eisele F., Beitrage zur rom. Rechtsgesch., 1896, 25.

Actio depositi. See depositum.

Actio doli (de dolo). Action for fraud {dolus, dolus malus), introduced by the praetor Aquilius Gallus in 66 b.c. In the praetorian edict, it was generally prom­ised for restitution of damages by the following an­nouncement: “When acts are alleged to have been done dolo malo (by fraud), if there is no other action available in such a case and there appears to be just cause, I shall grant an action” (D. 4.3.1.1). Its applicability was gradually extended, even in Jus­tinian’s law. Actio doli belongs to the category of actiones in factum ; it is of penal character, in­faming, limited to one year (after Constantine to three years) from the time the fraud was committed, and available only when no other remedy, particularly a contractual one, could be applied. Because of its general applicability the actio is called by Cicero “a drag-net of all ill-will” {De nat, deorum 3.30.74).

F. Litten, Festg. K. Guterbock, 1910, 255; G. Maier, Pratorische Bereicherungsklagen, 1932, 35; F. Palumbo, L’azione di dolo, 1935; Buckland, LQR 55 (1939); G. Longo, Contributi alia dottrina del dolo, 1937.

Actio dotis. See ACTIO DE dote.

Actio empti (ex empto). See emptio.

Actio ex stipulatu. See stipulatio.

Actio ex testamento. Action of a legatee against the heir to enforce a legacy bequeathed per damnationem or sinendi modo. See legatum.

Actio exercitoria. See exercitor.

Actio Fabiana. See actio calvisiana.

Actio familiae (h)erciscundae. Action among co­heirs (coheredes) in order to bring about division of the common property inherited.—D. 10.2; C. 3.36; 38. See DIVISIO, FAMILIA.

Frezza, NDI 1; Sciascia, AG 132 (1945) 75; see actio COMMUNI DIVIDUNDO.

Actio fiduciae. See fiducia.

Actio finium regundorum. Action between neighbors to settle a dispute over the boundaries {fines) of their lands. The judge (an arbitrator, often an expert land-surveyor = agrimensor) could transfer a piece of land from one party to another into full ownership (adiudicatio). D. 10.1; C. 3.39.

Humbert, DS 2 (s.v. finium reg. a.) ; Arangio-Ruiz, BIDR 32 (1922) 5; Buckland, RHD 15 (1936) 741.

Actio funeraria. The praetor granted an action to a person who arranged a funeral at his own expenses without being obliged to do so. The heir who did not fulfil his duty of piety towards the deceased be­cause of negligence or absence, was liable.—D. 11.7; C. 3.44. See FUNUS, SUMPTUS FUNERUM.

Cuq, DS 2, 1405; De Francisci, Fil 40 (1915); idem, AnPer 32 (1920) ; E. Levy, Privatstrafe und Schadenser­satz, 1915, 33; Donatuti, SDHI 8 (1942) 18.

Actio furti. See FURTUM.

Actio furti concepti. See FURTUM CONCEPTUM.

Actio furti non exhibiti. See furtum non exhibi­tum.

Actio furti oblati. See furtum conceptum.

Actio furti prohibiti. See furtum prohibitum.

Actio hypothecaria. See hypotheca.

Actio incerti. ACTIO EX STIPULATU and ACTIO EX TES­TAMENTO have sometimes the addition incerti. Actio civilis incerti is a Justinian creation.—See actio PRAESCRIPTIS VERBIS, LEGATUM, STIPULATIO.

De Villa, A.i. 1932; Giffard, SDHI 3 (1938) 152; idem, RHD 16 (1937) 670.

Actio in iudicem qui litem suam facit. See iudex qui, etc.

Actio iniuriarum. See iniuria.

Actio institoria. See institor.

Actio institutoria. See actio quae instituit obli­gationem.

Actio interrogatoria. See interrogatio.

Actio iudicati. See iudicatum.

Actio iurisiurandi. See iuramentum voluntarium.

Actio legis Aquiliae. See lex aquilia.

Actio legis Plaetoriae. See lex plaetoria.

Actio locati. See locatio conductio.

Actio mandati. See mandatum.

Actio negatoria (negativa). Action brought by the owner of a landed property against anyone who, with­out denying the plaintiff’s ownership, claimed a servi­tude or usufruct over his property. The aim of the actio was judicial recognition that the plaintiff has full ownership not encumbered by any right of the defendant. See actio prohibitoria, vindicatio ser­vitutis, CAUTIO DE NON AMPLIUS TURBANDO.

Arangio-Ruiz, Asioni confessorie e negatorie, 1908 ; Biondi, AnMes 3 (1929) ; Bohacek, BIDR 44 (1937), 46 (1939).

Actio negotiorum gestorum. See negotiorum gestio. Actio oneris aversi. Aetion against the master of a ship for fraud committed in the delivery of cargo.

P. Huvelin, Le Furtum (1915) 511; Solazzi, RDNav 2 (1936) ; De Santis, SDH I 12 (1946) 89.

Actio operarum. See operae liberti.

Actio Pauliana. See fraus, interdictum frauda­torium.

Actio pigneraticia. See pignus, hypotheca.

Actio praescriptis verbis. Not a classical term; the classical jurists speak of agere praescriptis verbis when “common and usual names of actions are lacking,” that is to say, when the foundation of an action is a bilateral transaction for reciprocal performances which do not conform to the typical and recognized species of contracts. The name praescriptis verbis originates from the fact that in the respective formula the fac­tual background of the action had to be described, praescriptis verbis rem gestam demonstrare. Jus­tinian’s collaborators created the term actio prae­scriptis verbis and extended the applicability of the action although the formulary procedure had been out of use for centuries. It was qualified by Jus­tinian as an actio bonae fidei and had a general func­tion, being adaptable to very different legal situations in which the plaintiff after performing his duty claimed the performance of the reciprocal duty by the de­fendant. The terminology is not stable, the actio is also called actio civilis incerti, civilis in factum, and by other names.—D. 19.5 ; C. 4.64.

Audibert, Mèi. Gérardin, 1907 ; P. Meylan, Origine et nature de l’a.p.v. 1919; P. De Francisci, Synallagma, 1-2 (1913/16); Kretschmer, ZSS 59 (1939) 190; Thayer, Tulane LR 19 (1949) 62; P. Voci, Contratto (1946) 234. Actio principalis. See actiones directae.

Actio pro socio. See SOCIETAS.—Syn. IUDICIUM SO­CIETATIS.

Actio prohibitoria. An action similar to actio nega­toria. Its existence in classical law is controversial. It is assumed that its intentio aims at recognition of the plaintiff’s right to forbid the defendant to exer­cise a certain right (servitude, usufruct) over the plaintiff’s property. See vindicatio servitutis.

Bortolucci, BIDR 21 (1909) ; R. Henle, Unus casus, 1915, 138; Biondi, AnMes 3 (1929).

Actio protutelae. Action against a person who acts as a guardian (pro tutore) without having been legally appointed.

Peters, ZSS 32 (1911) 243; Solazzi, AS 91 (1924) 150.

Actio Publiciana in rem. An honorary action (actio honoraria) created'by a praetor named Publicius and granted to the bonitary (in bonis) owner of a thing for reclaiming property of which he has lost pos­session. The plaintiff has to prove only that he acquired the thing under conditions which put him

in the position to usucapt it. It is an actio ficticia, the fiction being that the plaintiff had already ac­quired full property by a completed usucapio. The function of the actio Publiciana was the same as that of rei vindicatio, which, however, the plaintiff could not use because he had no quiritary ownership.— D. 6.2. See ACTIONES FICTICIAE, EXCEPTIO IUSTI

DOMINII.

Lecrivain, DS 4 (s.v. Pubi, a.) ; Montel, NDI 10; Perozzi, BIDR 7 (1894) ; V. Seeler, ZSS 21 (1900) ; Pflüger, ibid. 42 (1921) 469; Carrelli, SDHI 3 (1937) 20; De Sario, St Solazzi (1948) 203.

Actio quae instituit obligationem. Improperly called institutoria, a term unknown to the sources. If a woman intervened for another person by assuming a contractual obligation for him, her intercession being void, the praetor granted the creditor an action directly against the real debtor who personally was not obliged. See INTERCESSIO, SENATUSCONSULTUM

VELLAEANUM.

Bortolucci, A.q.i.o., 1915; Carelli, RISG 12 (1937) 63; Beretta, RISG N.S. 2 (1948) 367.

Actio quae restituit obligationem (restitutoria). When a creditor lost his actio against his debtor be­cause of a novatory intercession by a woman, the praetor granted him the primary action since the woman’s intercession was void. See intercessio, SENATUSCONSULTUM VELLAEANUM.

Carrelli, SDHI 3 (1937) 305; Beretta, RISG 2 (1948) 368. Actio quanti minoris. See emptio.—D. 21.1.

Pringsheim, ZSS 69 (1952) 234.

Actio quasi institoria. See institor.

Actio quasi Serviana. See pignus, hypotheca.

Actio quod iiissu. See iussum.

Actio quod metus causa. See metus.

Actio rationibus distrahendis. See actio de ratio­nibus distrahendis.

Actio recepticia. See receptum argentarii.

Actio redhibitoria. See emptio.

Actio rei uxoriae. See dos.

Actio rerum amotarum. Aetion for recovery of things stolen by the wife from her husband in view of an imminent divorce. The milder qualification “for having taken things away” instead of “having stolen” (furtum) was chosen to avoid the infaming actio furti between husband and wife.—D. 25.2; C. 5.21.— See RETENTIONES DOTALES.

Zanzucchi, RISG 42 (1906) ; 47 (1910) ; Kretschmar, ZSS 59 (1939) 199.

Actio rescissoria. In a few cases an action is granted for the annulment of a legal situation created by spe­cial circumstances, as in the case of the return of a soldier from captivity or of a person who had been absent in public service. By bringing this actio within a year after their return, they could rescind the usucapion (rescindere usucapionem) achieved dur­ing their absence. See absentes.

Carrelli, SDHI 3 (1937) 20; P. Collinet, La nature des actions, 1948, 457.

Actio restitutoria. See actio quae restituit obli- GATJONEM.

Actio Rutiliana. An action devised by the praetor Rutilius to the benefit of the purchaser of the prop­erty of a bankrupt debtor (bonorum emptor). For debts due to the latter, whose universal successor the bonorum emptor was, he sued in the name of the other (see intentio), but asks for condemnation in his own name. Another actio granted to the bonorum emptor was the so-called actio Serviana by which he sued under the fiction "as if he were the heir” (ficto se herede) if the bankrupt died. See actiones fic­ticiae, CONVERTERE, BONORUM VENDITIO.

Actio sepulcri violati. A praetorian, penal action in case of violation of a grave.—D. 47.12; C. 9.19.— See SEPULCRUM, VIOLATIO SEPULCRI.

Actio sequestraria. See sequester.

Actio servi corrupti (de servo corrupto). Action by a slave’s master in case of his slave’s corruption. Those liable were persons who persuaded the slave to commit robbery or some other crime, moral mis­conduct or luxury, to flee from his master, and the like, so that the slave became worse (deterior factus). The corruptor (instigator, sollicitator) is responsible only when he did it purposely (dolo malo). He had to pay not only the lessening in value of the slave but also double damages done by the slave.—D. 11.3; C. 6.2.

Kleinfeller, RE 4; Schiller, Columbia Law Rev. 30 (1930) 839; idem, St. Riccobono 4 (1936) 79.

Actio Serviana. See pignus, hypotheca.

Actio Serviana. Of the bonorum emptor, see actio RUTILIANA, VENDITIO BONORUM.

Actio subsidiaria. An action granted to a ward against a municipal magistrate for having appointed an incapable guardian or having failed to demand adequate guarantee from the appointed guardian (see cautio rem pupilli salvam fore). Roman and provincial magistrates were not answerable under this action.—D. 27.8; C. 5.75.

Sachers, RE 7 A, 1581; E. Levy, Privatstrafe und Schaden- sersatz, 1915, 41; Brugi, Mel Girard 1 (1912) 143; Berger, KrVj 16 (1914) 84.

Actio tributoria. A praetorian action lying against a father or master whose son (or slave) doing commer­cial business with his peculium, contracted debts with the knowledge of the father (master), and the pecu­lium subsequently became insolvent. The remainder of the peculium was to be shared proportionally among the creditors and the father (master) if anything was due to him. Claims on the part of the creditors that an unfair distribution has been made by the father (master) could be sued by actio tributoria.—D. 14.4. —See peculium.

L. Lemarie, De I’a.t., These, Paris, 1910.

Actio tutelae. See tutela.—D. 27.3.

Actio vectigalis (actio quae de fundo vectigali pro­posita est). See AGER vectigalis.

Actio venditi. See emptio.

Actio vi bonorum raptorum. See vis, rapina. Actiones adiectiliae qualitatis. See exercitor navis. Actiones aediliciae. Actions introduced by the aedi- lician edict. They were concerned with the sale of slaves and animals (see emptio) and damages caused by animals, see actio de pauperie.—C. 4.58.—See EDICTUM AEDILIUM CURULIUM.

Actiones annales. See actio temporales.

Beretta, RISG 2 (1948) 353.

Actiones arbitrariae. Actions the formula of which contained the so-called arbitrary clause authorizing the judge to bid the defendant by an arbitrium (arbi­tratus), an interlocutory order, to satisfy the de­fendant’s claim by restoring or producing (exhibere) the object claimed (“nisi arbitrio tuo [of the judge] res restituatur, exhibeatur”). If the defendant did so, he was absolved; if not, the final judgment con­demned him to pay a sum of money, which was more disadvantageous to him than the immediate fulfill­ment of the judge’s order (he might be condemned to a higher amount, he had to pay a fourfold amount in the actio quod metus causa [see metus], he in­curred infamy in actio doli, etc.). It is controversial whether the words “arbitrio tuo” were in the formula and whether the term arbitrariae actiones was used by the classical jurists.

Biondi, BIDR 26 (1913) 1, 153; idem, St suile actiones arbitrariae e l’arbitrium iudicis, 1913; May, Mel Girard 2 (1912) 151; Lenel, Fschr Sohm, 1914, 201; Berger, KrVj 16 (1914) 122; Levy, ZSS 36 (1915) 1; R. Düll, Der Gütegedanke, 1931; Μ. Kaser, Restituere als Pro­zessgegenstand, 1932; G. Huwardas, Beiträge zur Lehre von den a.a., 1932; Herdlitczka, Zur Lehre vom Zwischen­urteil bei den a.a., 1930; idem, Skizzen zum röm. Zivil- Prozess, 1934; Schönbauer, St. Riccobono 2 (1936) 371;

F. Schulz, Class. R. Law, 1951, 37.

Actiones bonae fidei. See iudicia bonae fidei.

Actiones (formulae) certae. Actions with a precisely specified object, sum of money or a thing, claimed by the plaintiff. Ant. actiones incertae. In the formu­lary procedure the object in dispute was defined in the intentio of the formula. Hence the distinction: intentio certa and incerta. In the latter the plain­tiff’s claim is directed to “quidquid” (= whatever it will appear that the defendant has to pay or do).

Actiones civiles. Actions which protected rights rec­ognized by the i us civile. Their origin lay in the Twelve Tables, in certain statutes or in the creative activity of the jurists. Ant. actiones honorariae, see ACTIONES PRAETORIAE, ACTIONES AEDILICIAE.

Actiones contrariae. See actiones directae.

Actiones directae. (1) Actions the formula of which could be extended through an appropriate modifica­tion to analogous factual circumstances, not covered by the original formula. The modified formula was an actio utilis, as opposed to the original actio di­recta. (2) Actions arising from certain contracts which normally created liability in one party, as, e.g,, in the case of a deposit or mandate the action of the depositor or mandator, were actiones directae. Un­der exceptional circumstances, however, the party primarily bound, the depositee or the mandatary, had a claim against the other party. Such actions are called by Justinian contrariae as opposed to the actiones directae of the parties who as a matter of rule are creditors in such contracts. The same holds true for non-contractual situations, such as guardian­ship, since the guardian had an actio contraria (indi­cium contrarium) against the ward. Other terms for actio directa are actio principalis, and rarely, indicium rectum. The concept of actio contraria is controversial.—D. 27.4; C. 5.58.

Manigk, RE 9 (s.v. indicium contrarium) ; J. Partsch, Studiai zur negotiorum gestio, 1913, 47; Biondi, AnPal 7 (1920) 59; Kùbler, ZSS 38 (1917) 73; Lend, Edictum perpetuum 3 (1927) 318; G. Proverà, SDHI 8 (1942) 113; idem, St. Sola zzi, 1948, 345; V. Arangio-Ruiz, II mandato, 1949, 45.

Actiones duplices. See iudicia duplicia.

Actiones famosae. Actions in which the condemna­tion of the defendant involved infamia: he became infamis (ignominiosus). Such actiones were: ac­tiones furti, vi bonorum raptorum, iniuriarum, de dolo, mandati, depositi, and others. Syn. actiones turpes.

Sachers, RE 7A, 1434; Zanzucchi, RISG 42 (1906) 1; 47 (1910) 3, 237.

Actiones ficticiae. Praetorian actions adapted by the use of a fiction in the formula to legal situations not protected by the original formula. For instance, some actions became available to foreigners under the fiction “as if they were Roman citizens.” In the actio Publiciana the claim for recovery of a thing was based on the fiction that usucapio has been com­pleted. Actions granted to, or against, a successor by praetorian law (bonorum possessor) contained the fiction “as if he were heres”

Riccobono, TR 9 (1929) 1.

Actiones hereditariae. Actions in favor of, or against, the heir, connected with an inheritance.—Inst. 4.12 ; C. 4.16.

Actiones honorariae. Actions originating in prae­torian or aedilician law.—See actiones aediliciae, actiones praetoriae. Ant. actiones civiles.

M. Kaser, Das altrom. ius, 1949, 94.

Actiones in bonum et aequum conceptae. This term, mentioned only once (D. 4.5.8), refers to cer­tain actiones in jactum, primarily in cases of torts in which the condemnatio contained the clause quan­tum bonum et aequum (or simply aequum) videbitur. It authorized the judge to fix the sum of condemna­tion at his discretion “as it would seem to him just and fair.” The foundation of the actiones was not a contractual relation between the parties but a be­havior of the defendant which caused some harm to the plaintiff. Such actions were, e.g., actiones rei uxoriae, funeraria, iniuriarium, sepulcri violati, and the action against the judge qui litem suam facit. In origin, there certainly were formal and substantial differences between these actiones and iudicia bonae fidei. The disappearance of the formulary procedure furthered their equalization fully completed in Jus­tinian law.

Thomas, NRHD 25 (1901) 541; Pringsheim, ZSS 52 (1932) 85; Kaser, RIDA 2 (1949) 512.

Actiones in duplum. See actiones in simplum.

Actiones in factum. See formulae in ius con­ceptae.

Actiones in id quod pervenit. Actions by which the plaintiff claimed only what the defendant obtained to his detriment.—See actiones poenales, pervenire AD ALIQUEM.

F. Schulz, Die actiones in id etc., Diss. Breslau, 1905;

G. H. Maier, Praetorische Bereicherungsklagen, 1932; E. Albertario, Studi 4 (1946) 289 (seven articles).

Actiones in ius conceptae. See formulae in ius CONCEPTAE.

Actiones in personam. Actions in which the plain­tiff based his claim on a contractural or delictual obligation of the defendant. Ant. actiones in rem = actions in which the plaintiff asserts a right to a certain thing (ownership, servitude) possessed by the defendant. This basic distinction is expressed by a different wording of the intentio in the formula: in the actiones in personam the defendant is sued for dare, facere, praestare oportere (— to give, to do or to perform something), in the actiones in rem the plaintiff affirms that the corporeal object he claims is his or that he has a certain right over the adver­sary’s property. The former actions lie against the person obligated by a contract or a wrongdoing, the latter may be brought against any person who with­holds the thing involved from the plaintiff. Actiones in rem are also called vindicationes (rei vindicatio, vindicatio servitutis) ; to actiones in personam the term condictiones is applied, in post-classical and Justinian law the term actiones personales.

G. Segre, BIDR 41 (1933) ; S. Grosso, Problemi di diritti reali, 1944, 74; Albertario, Studi 4 (1946) 221; B. Biondi, Le servita prediali nel dir. rom., 1946, 14.

Actiones in rem. See actiones in personam.

De Villa, NDI 6 (in rem a.) ; Kaser, Besitz und Ver- schulden bei dinglichen Klagen, ZSS 51 (1931) 92.

Actiones in simplum. It is a general rule that the aim of each action is the simple value of what the plaintiff claims (simplum). There are, however, actiones in which the defendant is condemned to pay twofold (duplum), threefold (triplum), even four­fold (quadruplum) the value. The liability of the defendant is doubled, for instance, in certain actions when he deliberately denies. See infitiatio. Higher rates of condemnation occur in cases of theft.—See FURTUM, DUPLUM.

Actiones incertae. See actiones certae.

Actiones interrogatoriae. See interrogatio in iure. Actiones mixtae. The term, doubtless of non-classical origin, is used in various meanings, iudicia duplicia are so called likewise actions which simultaneously serve different purposes (recovery of a thing and penalty), finally actions which are both in rem and in personam (actiones quod metus causa, see ac­tiones in personam).

Berger, St Simoncelli, 1915, 184 (Bibl.); idem, ZSS 36 (1915) 218; U. v. Liibtow, Ediktstitel quod metus causa, 1932, 292; P. Voci, Risarcimento e pena privata, 1939, 91. Actiones mutuae. See mutuae petitiones.

Actiones noxales. See noxa.

Actiones perpetuae. Generally actions could be brought without limit of time. Such were all actiones civiles. A constitution of Theodosius II (a.d. 424) introduced a thirty-year period of prescription for all actions with a few exceptions. Since then all actions which extinguished after thirty years, we called perpetuae.—Inst. 4.12; C. 7.39.—See prae­scriptio TRIGINTA ANNORUM.

Actiones personales. Postclassical and Justinian term for ACTIONES IN PERSONAM.

Actiones poenales. Also called actiones quibus poenam persequimur. Actions by which the plaintiff sued for payment of a penalty because of a private offence committed by the defendant. Penal actions are trans­missible only to the heir of the plaintiff, but not to the heir of the defendant, except in certain cases for his enrichment (in id quod ad eum pervenit, or quan­tum locupletior factus est).—See delicta.

P. De Francisci, St sopra le asioni penali, 1912; E. Levy, Privatstrafe und Schadensersats, 1915; Riccobono, ZSS 47 (1927) ; G. Maier, Praetorische Bereicherungsklagen, 1932; P. Voci, Risarcimento e pena privata (1939) 6, 150; E. Albertario, St 4 (1946) 303, 371; Beretta, RISG 2 (1948) 353.

Actiones populares. Actions which can be brought by “any one among the people” (quivis [quilibetJ ex populo). They are of praetorian origin and serve to protect public interest (ius populi). They are penal, and in case of condemnation of the offender the plaintiff receives the penalty paid. Such actions are: actiones de albo corrupto, sepulchri violati, de termino moto, de positis ac suspensis, etc. There are instances, however, established in statutes or local ordinances, in which the penalty was paid to the state or municipal treasury, or divided between the aera­rium and the accuser, as, e.g., provided in a decree of the Senate in the case of damage to aqueducts.— D. 47.23.

Cuq, DS 4 (s.v. popularis actio); Ki'ibler, RE 4A, 157; C. Fadda, Asione popolarc, 1894; T. Mommsen, Gesam­melte Schriften 3 (1905) 375.

Actiones praeiudiciales. Actions in which decision in a preliminary question is passed (praeiudicium) being decisive on a second suit. E.g., when a patron wants to sue his freedman for failure in accomplish­ing his duties, the preliminary question is an libertus sit, i.e., whether the defendant is really his freedman. In such actions absolution or condemnation is not implied, the judge’s statement (pronuntiatio) being only an answer to the question involved.—See for­mulae PRAEIUDICIALES, PRAEIUDICIA, INTENTIO. Siber, Fschr Wenger 1 (1944) 69.

Actiones praetoriae. Actions originating in pretorian law. They either contained an extension of civil actions (actiones civiles) to analogous new cases or granted protection to legal transactions or situations not recognized by ius civile. The most creative innovations among the actiones praetoriae were the actiones (formulae) in factum, actiones ficticiae, and actiones utiles. See actiones temporales.

Beretta, RISG 2 (1948) 353.

Actiones praescriptis verbis. See actio praescriptis VERBIS.

Actiones privatae. Actions protecting the private in­terests of an individual. Ant. actiones populares. Similar in meaning is the term iudicia privata cover­ing civil trials in private affairs subject in classical law to the judgment of a private judge, but in later times, after the nationalization of the civil proceed­ings, without this feature.

Actiones quibus poenam persequimur. See actiones POENALES.

Actiones quibus rem persequimur (actiones rei per­sequendae gratia comparatae). Also called in the literature rei persecutoriae = actions in which the object of the trial is a thing, a sum of money, resti­tution or indemnity. Such are all actiones in rem and actiones in personam of contractual origin. Ant. actiones poenales. There are actiones arising from offences of a delictual character in which the plain­tiff’s claims embrace both objectives, redress and penalty, as for instance in case of theft, or of actiones in duplum. The distinction is important as far as the liability of the heirs is concerned.—See actiones MIXTAE, IN SIMPLUM, POENALES.

A. Giffard, £tudcs sur les obligations ct les actions, II Les actions pcrsonnclles reipcrsccutoircs, 1941.

Actiones speciales. See iudicia generalia.

Actiones temporales (temporariae). Actions which could be brought only within a limited period of time. Such were actiones praetoriae, mostly lim­ited to one year (actiones annales), actiones aedi­liciae were limited to six months only.—Inst. 4.12. See ACTIONES PERPETUAE.

Actiones stricti iuris. See IUDICIA bonae fidei.

Actiones turpes. See ACTIONES famosae.

Actiones utiles. Actions introduced through the ac­tivity of praetors and jurists by a modification of an already existing formula to cover legal situations and transactions for which the original formula did not suffice. The mechanism of the actiones utiles contributed considerably to the development of the law. The original action is called directa.—See ACTIONES DIRECTAE.

I. Alibrandi, Opere 1 (1896) 149; Scckel, in Hcumann’s Ilandlexikon⁹ (1907) 608; G. Bortolucci, A. utilis, 1909; Riccobono, TR 9 (1929) 33; Dekkers, Rev. Univ. Bruxelles 41 (1935/6) 232; P. Collinet, La nature des actions, 1947, 403.

Actiones vulgares. Common, usual actions, opposed to actiones utiles, or actiones in factum.

Actor. The plaintiff in a civil trial, particularly after the litis contestatio. Syn. is qui agit, agens, peti­tor. Before the litis contestatio he is designated as is qui agere vult. Actrix — a female plaintiff. Ant. reus, is cum quo agitur.—See reus, agere.

Wlassak, RE 1.

Actor. In private law, a manager of another's business or affairs, an agent. Frequently a slave is appointed for this purpose.—C. 5.61.

Daube, LQR 62 (1946) 269; A. Burdese, Autorissasione ad alienare, 1950, 25.

Actor domus augustae. See actor rei privatae. Actor praediorum fiscalium. The administrator of landed property belonging to the fisc.—C. 11.72.

Actor publicus. See actor universitatis.

Actor rei privatae (actor domus augustae). The administrator of the Emperor’s private property. See RES PRIVATA, DOMUS AUGUSTA.

De Ruggiero, DE 1.

Actor rei publicae. See actor universitatis.

Actor universitatis (collegii, municipii). The agent, representative of a corporate body by whom “is being acted and done (agatur et fiat) all that has to be acted and done on the common behalf” (D. 3.4.1.1). Corporate bodies of public law had also their adores (actor municipum, actor civitatis), who in case of litigation represent them in court both as plaintiffs and as defendants. In this character they are also called defensores. Sporadically the term actor rei publicae or actor publicus also appears.—D. 3.4.

Habel, RE 1, 330; Humbert, DS 1 (a. publ.) ; De Rug­giero, DE 1, 66; Ramadier, £t. Girard 1 (1913) 259.

Actrix. See actor in a civil trial.

Actum. Added at the end of a written document and followed by the name of the locality refers to the place where the deed was performed (“done at...”).

Actus. The right to drive a draft animal or vehicles over another’s property. It is a rustic servitude and also implies the right of passage (ius eundi). See SERVITUTES PRAEDIORUM RUSTICORUM, INTERDICTUM DE ITINERE ACTUQUE PRIVATO. D. 43.19.

Leonhard, RE 1, 331; De Ruggiero, DE 1, 70; Scialoja, St giur. 1 (1932) 389; Arangio-Ruiz, St Brugi, 1910; Landucci, AVen 65 (1906) 1307; Meylan, St Albertoni, 1 (1935) 134.

Actus legitimi. Certain formal legal transactions gov­erned by the strict formalism of the ancient law, which could not be subject to a suspensive condition or a term (dies), such as formal conveyance of prop­erty (through MANCIPATIO or IN IURE CESSICr), AC­CEPTILATIO, and a few others. In these transactions no interval was admitted between their conclusion and their effectiveness.—See dies.

E. F. Bruck, Bedingungsfeindliche Rechtsgeschäfte, 1904.

Actus rerum. Court days on which the judicial activ­ity of the private judges (jurors — iudices) was ex­ercised (cum res aguntur).—See iudex.

Wlassak, RE 1.

Ad exemplum. See exemplum.

Adaeratio. Calculation in money for payment in cash instead of supplies in kind to the state (annona) or in matter of wages.

Seeck, RE 1; ^leichelheim, OCD; Persson, Staat und Manufaktur (Lund, 1923) 104.

Adcrescendi ius. See ius adcrescendi.

Addicere (addictio). To assign, adjudge, adjudicate a thing being the object of a controversy. When property is conveyed by in iure cessio the praetor addicit rem. Addicere iudicem (or arbitrum) = to appoint a judge (or an arbitrator). Addicere is also referred to persons: a free man caught in the commis­sion of a theft was assigned to the person from whom he has stolen. For addicere in auctions, see auctio. —See also ADDICTUS.

Wlassak RE 1; Cogliolo, NDI 1; Carrelli, AnBari 1939, 122; Levy-Bruhl, Nouvelles etudes sur le tres ancien dr. rom., 1947, 141; Kaser, Fschr Wenger 1 (1944) 117.

Addictio bonorum libertatum servandarum causa.

In order to prevent testamentary manumissions from becoming void when the appointed heir refused to accept an insolvent inheritance, an enactment of Marc Aurel made it possible to assign the inheritance to another person, primarily to the slaves freed in the last will, who had to carry out all the dispositions concerned with manumissions.—Inst. 3.11.

Humbert, DS 1.

Addictio in diem. An agreement between buyer and seller giving the latter the right to declare the sale annulled if, within a certain time, he received an offer of a higher price (adiectio) for the object sold. In such a case the first buyer had the possibility to increase his bid and to keep the thing.—D. 18.2.

Cogliolo, NDI; Senn, NRHD 37 (1913); Longo, BIDR 31 (1921) ; H. Sieg, Quellenkritische Studien sur Besser- gebotsklausel im rom. Kaufrecht, 1933; Archi, St Ratti, 1934, 325 ; Levy, Zu den Riicktrittsverboten des rom. Kaufs, Symbolae Frib. Lenel, 1932; Romano, StPav 22 (1937) ; Henle, Fschr Koschaker 2 (1939) 169; Alvaro D’Ors, In diem addictio, Madrid, 1945.

Addictus. A debtor who had failed to pay his debt and against whom a personal execution (manus iniectio) was initiated could be adjudged to the creditor in the earliest times and held prisoner by the latter (under the Twelve Tables). He remained free, but after sixty days he could be sold beyond the boundaries of Rome (beyond the Tiber river = trans Tiberim) which effected loss of ctitizenship and of freedom.—See dies iusti, tiberis.

Leist, RE 1; Humbert, DS 1.

Ademptio. From adimere. Cancellation, revocation of a prior disposition, as, for instance, withdrawal of a peculium which had been granted to a son or slave (ademptio peculii).—See ademptio legati, ADEMPTIO LIBERTATIS.

Ademptio bonorum. Confiscation of property by a public authority as an act of punishment.—See con­fiscatio, PUBLICATIO BONORUM.

U. Brasiello, Repressione penale, 1937, 324.

Ademptio legati. A legacy could be annulled by the testator either expressly by a statement in a later will or codicil, or through a subsequent, intentional (animus adimendi legatum) alienation of the thing bequeathed or through its transfer to another legatee (translatio legati). In a similar manner a testa­mentary manumission could be revoked either ex­pressly or tacitly when the testator alienated the slave or bequeathed him to another person (ademptio libertatis).—Inst. 2.21; D. 34.4; 40.6.

Leonhard, RE 1; Messina-Vitrano, AnPal 3 (1917) 3; Solazzi, Scritti Mancaleoni, StSas 16, (1938) 186; San­filippo, AnPal 17 (1937) 105, 120; Koschaker, Conf Cast 1940, 87; Albertario, 57 4 (1946) 42; Arno, L’alienasione della cosa legata, MetnTor 44 (1939).

Ademptio libertatis. See ademptio legati.—D. 40.6. Adesse. In a judicial trial, to be present in court aS a party to the proceedings; to assist a party as his advocate.—See advocatus.

Adfatus. An imperial enactment (in the language of the imperial chancery).

AdfineS. See ADFINITAS.

Adfinitas. Relationship between one consort and near relatives (parents, brothers and sisters, children) of the other consort. Marriage between persons so related was forbidden: it was void and punished as incestuous.—See INCESTUS.

Leonhard, RE 1; Baudry, DS 2; A. Guarino, A ffinitas, 1939; Castello, Osservasioni sui divieti di matrimonio fra parenti ed affini, RendLomb 72 (1939) ; idem, Diritto familiare, 1942, 142.

Adfirmator. A person who affirms the trustworthi­ness or solvency of another before an official. He was answerable for fraudulent false information.

Leonhard, RE 1.

Adgnatio, adgnatus. See agnatio, agnatus.

Adiectio. See addictio in diem. Adiectio = a higher bid at an auction.—C. 10.3.—See auctio, subhas­tatio.

Adiectus solutionis causa. A person to whom a debt due to another, the primary creditor, was to be paid.

S. Cugia, A.s.c., Naples, 1919; Riccobono, AnPal 14 (1930) 401; G. Wesenberg, Verträge 2U Gunsten Dritter, 1949, 21.

Adire hereditatem. See aditio hereditatis.

Aditio hereditatis. The acceptance of an inheritance by an heir (heres) appointed in a last will or in­heriting under the law. Only a certain category of heirs (see heres voluntarius) was obliged to de­clare expressly their willingness to accept the estate, whereas the nearest relatives belonging to the family of the testator (heres necessarius, heres suus et necessarius) acquired the inheritance automatically under the law (ipso iure) without any particular for­mality. The ancient form of.aditio hereditatis was CRETio, later forms were: acting as an heir (pro herede gerere) and an informal declaration of in­tent (aditio nuda voluntate). An acceptance once made was irrevocable.—D. 29.2; C. 6.30.

Solazzi, I modi di accettazione deli eredità, StPav 1919; Dulckeit, Erblasserzville und Erzverbszville bei Antretung der Erbschaft, 1934; H. Krüger, ZSS 64 (1944) 394.

Aditus. Syn. ius adeundi. With some rustic servi­tudes there is connected the right of walking to the place burdened with the servitude if the exercise of the servitude by the person so entitled would other­wise be impossible.—See servitutes praediorum RUSTICORUM.

Adiudicatio. The part of the procedural formula by which the judge was permitted to adjudge (adiudi- care) the object to the parties to the trial in so- called divisory actions (actio communi dividundo, actio familiae erciscundae). Beyond the controver­sies, concerned with the division of common prop­erty, adiudicatio by the judge also occurs when he adjudicates someone’s property to another or to the fisc.

Wlassak, RE 1 ; Baudry, DS 1 ; Arangio-Ruiz, BIDR 32 (1922) 5.

Adiutores. Assistant officers in the various branches of administration of the Empire, as well as in the imperial chancery and household.

De Ruggiero, DE 1 ; Habel, RE 2 ; Saglio, DS 1 ; Berger, CIPhilol 43 (1948) 233; Jones, JRS 39 (1949) 54.

Adi-. See ALL-.

Adlecti. Subordinate officers in the emperor’s secre­tariat and in other imperial offices.—See the follow­ing item.

Adiectio. The emperors used to confer the title and rank of ex-magistrates (adiectio inter consular es, praetorios, quaestorios, tribunicios) on persons who never before had been in service or had held an office of a rank lower than that which was conferred on them. The person thus distinguished (adiectus) became qualified for the next higher magistracy. An adiectus inter praetorios, for instance, could be elected to the consulship. Moreover, the adlecti be­came members of the senate in the group of retired magistrates of the rank given them. An adiectio in senatum was frequently practiced with regard to im­perial procuratores of equestrian rank. See lectio senatus.—Another kind of adiectio was the admis­sion of persons of plebeian origin to the patriciate. —Adiectio is also the admission of a new member into a corporation, as well as that of a new citizen into the municipales (adiectio inter civ es, see lex cassia) or of a new councillor into the ordo de­curionum.------------------- See DECRETUM DECURIONUM.

Schmidt, RE 1 ; Humbert, DS 1 ; De Ruggiero, DE 1 ; O’Brien-Moore, RE Suppl. 6, 760 (a. in senatum) ; Borz- sak, RE 18, 1110 (s.v. ornamenta).

Adminiculum. A legal support or remedy which strengthens a person in his legal situation or gives him the possibility to improve it (e.g., an appeal, see appellatio).

Administrare (administratio). Refers both to the management of private affairs (property, peculium, tutorship) and to the exercise of a public office (magistracy, governorship, administratio rerum pub­licarum). Hence administrator is used of the highest officials of the state.—D. 26.7; 50.8; C. 5.37; 11.31; 38; 1.49.—See excutere rationes.

Orestano, St Bonolis 1 (1942) 11.

Admissionalis. See the following item.

Seeck, RE 1.

Admissiones. Admission to an audience with the emperor was granted by a special office, officium ad­missionum, under the supervision of a magister ad­missionum. The intervening officer was the admis­sionalis.

Schmidt, RE 1; De Ruggiero, DE 1, 92.

Admissum. A general and not sharply defined term for criminal offenses. It is used particularly in later sources. In admisso deprehendere = to catch in the very act.

Berger, KrVj 16 (1912) 414; De Dominicis, AVen 92 (1932/3) 1215.

Admittere. To commit an illicit act (a wrongdoing). Adnotatio. A decision of the emperor written in the margin of a petition addressed to him. In some texts it is distinguished from an imperial rescript (re­scriptum) from which it differed in form, not in content. The differences between adnotatio and re­scriptum which might have arisen from the fact that the adnotatio was originally a written instruction for drafting a rescript by the imperial chancery, gradu­ally vanished. In criminal proceeding adnotatio (from adnotare) means noting a person on the list of those who are to be summoned or deported.

Seeck, RE 1.

Adoptio. Through adoptio a person who is under the paternal power of the head of his family comes under the patria potestas of another {adoptator, pater adop­tivus). The change of family {mutatio jamiliae) is the characteristic feature of the adoptio, while in an adrogatio, i.e., the adoption of a person sui iuris who is himself the head of a family, there is a fusion of two families since the adrogatus enters into another family together with all persons subject to his paternal power. The legal effects are equal in both cases; the adopted persons have the. same rights (succes­sion) and duties {sacra) as natural sons.—D. 1.7; Inst. 1.11; 3-10; C. 8.47.—See the following items, DATIO IN ADOPTIONEM, ADROGATIO (Bibl.).

Leonhard, RE 1; Baudry, DS 1; Bellelli, NDI 1 (s.v. adozione) ; Wenger, RAC 1 (1942) ; De Ruggiero, DE 1; C. G. Bergmann, Beitrage zum rom. Adoptionsrecht, 1912; Albertario, St. Ratti 1934, 667; Monier, St Albertoni 1 (193'5) 235; M. H. Prevost, Les adoptions politiques d Rome, 1949.

Adoptio in fratrem. See frater.

Adoptio minus plena. A weaker form of adoptio in Justinian law by which the ties with the former family of the adopted person were not completely destroyed, particularly in the field of the rights of succession. Ant. adoptio plena which produced the effects of the ancient adoptio.

Lavaggi, SDHI 12 (1946) 45, 115.

Adoptio per populum. Refers to adrogatio since in earlier times the approval by the people {auctoritas populi) was required for the validity of a change of family (mutatio familiae).

Castelli, Scritti giuridici, 1923, 189.

Adoptio plena. See adoptio minus plena.

Adoptivus. Connected with adoption. Filius adopti­vus, or simply adoptivus = the adopted person. Pater adoptivus — the adopting father.

Adoratio purpurae. Worshipping the emperor by kneeling before him and kissing his purple garment. Seeck, RE 1; Avery, Mem. Amer. Acad. Rome 17 (1940).

Adp-. See APP-.

Adplumbatio. See ferruminatio, plumbatura. Leonhard, RE 1; Pampaloni, Scritti 1 (1941) 7.

Adprehendere rem. To take hold of a thing. It is a symbolic gesture to affirm the right of ownership in a trial (rei vindicatio) or in the act of transfer of ownership through mancipatio. In a larger sense, to take physical possession of a thing.

Adprobare. To approve, as another jurist’s opinion. According to a statute, lex aelia sentia, exceptional manumissions of slaves contrary to the rules therein set forth had to be approved by a special court.— Adprobare opus = to approve of a work {opus) done by a hired craftsman. Adprobare was an important act in the hire contract (locatio conductio operis faciendi) since after approval the risk of destruc­tion or deterioration of the work passed upon the person who ordered it.—Syn. probare.

Samter, ZSS 26 (1905) 125.

Adpromissio (adpromissor). The obligation of a surety who guaranteed for the debt of the principal debtor through stipulatio. The different forms of suretyship were sponsio, fideiussio, fidepromissio, according to the expression used by the surety {sponsor, fideiussor, fidepromissor) when he as­sumed liability in a stipulation additional to that of the principal {spondeo, fide mea esse iubeo = I bid you trust my faith, fide promitto — I pledge my faith). The obligation of the surety was for the same thing and could not be assumed for a larger sum or under heavier conditions than that of the principal. As a matter of rule, the accessory char­acter of the suretyship depended upon the validity and the existence of the principal obligation, but in the case of sponsio and fidepromissio this rule was weakened. Besides, the liability arising from these two forms lasted only two years and did not bind the heirs. In Justinian’s law all three forms were fused into one, the fideiussio, whereas in earlier times sponsio was accessible only to Roman citizens, and sponsio and fidepromissio could be applied to guar­antee only obligations from verbal contracts. In Justinian’s law all these and other minor differences vanished.—Inst. 3.20; D.46.1; C. 2.23; 8.40.—See LEX APULEIA DE SPONSU, LEX CICEREIA, LEX COR­NELIA DE ADPROMISSORIBUS.

Leonhard, RE 1 ; 6 (s.w. fideiussio, fidepromissio) ; Cuq, DS 3, 557; Anon. NDI 5 (s.v. fideiussio) ; E. Levy, Spon­sio, fidepromissio, fideiussio, 1907 ; Donatuti, AnPer 38 (1927) 1; Solazzi, BIDR 38 (1930) 19; Buckland, RHD 7 (1928), 460; 12 (1933) 116; W. Flume, Studien zur Akzessorietdt der rom. Burgschaftsstipulationen, 1932 ; G. Bo, Contributi alla dottrina dell’obbligazione fideius­soria, 1934; Archi, ConfCast, 1940, 259; F. De Martino, Garenzie personali dell’obbligazione, 1 (1940) ; G. Nocera, Insolvenza e responsabilità sussidiaria, 1942, 59; Levy, Sem 2 (1944) 6 (= BIDR 55-56, Post-Bellum [1951] 207) ; Beretta, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 80.

Adpulsus pecoris ad aquam. The right to drive one’s cattle through another’s (the neighbor’s) property to water. The right is connected with certain rustic servitudes to secure the access of the cattle to the watering-place.

Adquirere (adquisitio). To acquire (ownership, pos­session, an inheritance, an obligation). The ability to acquire for other persons is dealt with by Inst. 2.9; 3.28; C. 4.27; the acquisition of an inheritance D. 29.2; C. 6.30; of ownership D. 41.1 ; of possession D. 29.2, 07.32; through adrogatio Inst. 3.10. Leonhard, RE 1, 284.

Adquirere per universitatem. See universitas.

Adrogatio. See adoptio, adoptio per populum.^— Inst. 3.10.

Leonhard, RE 1 ; Humbert, DS 1 ; Bellelli, NDI 1 ; G. Beseler, Subsiciva, 1929, 1; Bellelli, AG 116 (1936) 65; idem, SDH I 3 (1937) 140; Lavaggi, SDH I 12 (1946) 115; Cosentini, AnCat 2 (1948) 235.

Adrogatio per rescriptum principis. Adoption of a person sui iuris granted by a rescript of the emperor. No further formalities were necessary.

Adscribere. When referring to last wills, to make a legacy or to add a specific clause (e.g., a condition, a term) to a testamentary disposition.

Adscripticii. A class of coloni in the later Empire who were bound to their landlord’s soil which they cultivated. Although their legal status was that of free men and citizens, they were subject, to certain personal restrictions and burdens which made their position similar to serfdom.—See colonatus.

Saumagne, Byzantion 12 (1937).

Adsertio. (From adserere.) Any assertion made be­fore court. An adsertio acquired particular impor­tance when the personal status of a person was con­tested. Hence, adsertor libertatis was he who, in a trial about the status of an alleged slave, asserted and defended his liberty. In the form of enfranchise­ment called manumissio vindicta (= manumission in the form of a fictitious trial) the intervention of an adsertor libertatis was necessary. He claimed the liberty of the slave involved, and the manumittor then failed to deny this assertion.—C. 7.17.—See INGENUITAS, VINDICATIO IN LIBERTATEM.

Leonhard, RE 1; DS 1 (s.v. assertor) ; M. Nicolau, Causa liberalis, 1933, 122; Noailles, Rev. des Btudes Latines 20 (1942) 121; Van Oven, TR 18 (1950) 159, 177; P. Noailles, Du droit sacre au droit civil, 1950, 177.

Adsertor libertatis. See the foregoing item.

Adsessores. Legal advisers.who assisted magistrates and judges in judicial activity. They belonged to the consilium (council), hence their name consiliarii. In the later classical period their activity was very extensive. The jurist Paul who wrote a monograph on the duties of adsessores enumerates as lying in the sphere of their activity: cognitiones, postulationes, libelli, edicta, decreta, epistulae. The terms cover the whole magisterial and judicial activity in court and beyond procedural questions. Under the later Empire each official had at least one adsessor. The adsessores were appointed by the government with a salary. An adsessor who helped a magistrate or judge in drafting a decision was responsible for ad­vice given in ignorance or inconsiderateness (impru­dentia). The opinion of adsessores was not binding on the magistrate or judge.—D. 1.22; C. 1.51, 52.

Seeck, RE 1 (assessores) ; Humbert, DS 1; De Ruggiero, DE 1; Kiibler, RAC 1 (1943) 803; Hitzig, Die Asses­sor en der rom. Magistrate, 1893.

Adsessorium. Appears in the title of works by the jurists, Sabinus and Puteloanus, each work cited only once in the Digest. Thus the character of those writings cannot be specified. They probably dealt with cases which the authors drew from their asses- sorial practice.—See adsessores.

Adsidui. The term appears in the Twelve Tables in connection with processual guarantees (see vindex). “For an adsiduus only an adsiduus may be a guar­antee, while for a proletarius any one may guaranty” (Gell. n. Att. 16.10.5). Adsidui, are those who be­long to the five classes of the so-called Servian con­stitution (centuriae) with a patrimony from 100,000 down to 12,500 asses. Syn. locupletes, classici. Ant. proletarii.

Kubitschek, RE 1; Pascal, Rivista di filol. e istruzione classica 30 (1902) ; M. F. Peterlongo-Lepri, Saggi sul patrimonio 1 (1942) 25.

Adsignatio. The assignment of public land (ager publicus) to private individuals, municipalities or colonies in ownership or usufruct. The distribution was regulated by statutes (agrarian legislation = leges agrariae) which fixed the size and conditions of the grant.

Kubitschek, RE 1; Vancura, RE 12, 1155; De Ruggiero, DE 1; Fraccaro, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 262.

Adsignatio liberti. According to a decree of the senate of the early Empire, the patron of a freedman was permitted to assign (assignor e) his right of patronage, those of inheritance included, to one of his children or grandchildren under his paternal power. The patron who thus disposed, either in a last will or orally, is called adsignator.—Inst. 3.8; D. 38.4.

Leonhard, RE 1; De Ruggiero, DE 1; G. La Pira, La successions intestata, 1930, 203; Harada, ZSS 59 (1939) 498; E. Cosentini, St sui liberti 2 (1950).

Adstipulatio (adstipulator). A promise by an addi­tional stipulatio, in which the debtor of the original stipulation promised the same thing (idem) to an­other person (adstipulator). The latter is entitled to sue the debtor in the case of non-payment. The internal relation between the first and the subsidiary creditor is normally a mandate (agency), therefore the first creditor or his heirs might recover the sum paid to his agent (procurator) through actio mandati. Adstipulatio was primarily applied when a person wanted to make sure that the payment would be made after his death, since a direct stipulation post mortem was invalid.—See mandatum, lex aquilia, stipu­latio POST MORTEM.

Pernice, ZSS 19 (1898) 178; Pringsheim, ZSS 42 (1921) 305; Desserteaux, Capitis deminutio 2 (1919) 229; R. Orestano, lus singulars, AnMac 11 (1937), 79; F. de Martino, Le garenzie personali dell’obbligazione, 1940.

Adtributio. The assignment of debts owed to, or by, an inheritance, by a judge or an arbitrator on the occasion of its division. With reference to ager pulicus adtributio is syn. with adsignatio.—See ACTIO FAMILIAE HERCISCUNDAE.

De Ruggiero, DE 1, 111.

Adulescens. A person under twenty-five years of age, but over fourteen.—Syn. minor, adultus.—See iuve- NIS, MINORES.

Berger, RE 15, 1861 (Bibl.) ; Axelson, Melanges Marou- zcau, 1948, 7.

Adulter, adultera. See adulterium.

Adulterator. A counterfeiter of coins.—See falsum.

Adulterinus. Counterfeit, e.g., a coin, a last will.— Syn. falsus, reprobus.

Adulterium. A statutory punishment of adultery, which was considered a criminal offence only when committed by a married woman (adultera) was in­troduced by the Augustean law, Lex Julia de adul­teries co'crcendis (before 18 b.c.). Earlier customary law admitted only immediate revenge of the husband on the adulteress or punishment by him after con­sultation with the family council (consilium propin­quorum) in a procedure similar to a judicial trial (see iudicium domesticum). Under the Julian statute, the father of the adulterous woman was permitted to kill her and her partner (adulter) if he surprised them in his or her husband’s house. The husband’s rights were rather limited; he was forced to divorce her, for otherwise he made himself guilty of match­making (lenocinium). Besides, he or his father had to accuse the adulteress of adulterium which now became a public crime prosecuted before a criminal court. Any Roman citizen could bring in the accusa­tion if the husband or his father did not do so within two months after the divorce. The statutory term for other accusers was four additional months. The penalty was banishment of the adulteress and con­fiscation of one-third of her property, together with the loss of a part of her dowry. The legislation of Constantine, later confirmed by Justinian, introduced the death penalty for adulterium.—D. 48-5; C. 9.9.— See LEX IULIA DE ADULTERIIS, LENA, ACTIO DE MORI­BUS, BINAE NUPTIAE.

Hartmann, RE 1; Humbert, DS 1; Chiazzese, NDI 1; C. W. Westrup, Observations sur la notion de la fidelite, 1927; Volterra, StCagl 1928; idem, RendLomb 63 (1930) 182; St Bonfante 2 (1930) 109; Bandini, St Ratti, 1934; C. Corsanego, La repressione romana delfcadulterio, 1936; Biondi, StSas 16 (1938) ; De Dominicis, SDHI 16 (1950) 1.

AdultUS. See ADULESCENS.

Adventicium (adventicius). Acquisitions made by a slave or filius familias with means not taken from the master’s or father’s property.—See dos, peculium ADVENTICIUM.

Leonhard, RE 1; Albertario, Studi 1 (1933) 283.

Adversarius. The adversary in a lawsdit.

Advocatio. Both the profession of an advocate and his assistance to a party in a legal controversy.—See ADVOCATUS.

Advocatus. The term is applied to persons who exer­cise the profession of an advocate (advocatio), i.e., a legal adviser, while iurisperitus is a legal scholar, expert in law, a man learned in law. The advocatus assisted his clients (clientes) with juristic advice be­fore and during the trial, in both civil and criminal matters, and pleaded for them in court. The latter activity was originally reserved to persons specially trained in rhetoric (oratores). Under the Republic the advocatus was not paid for his services; under the Principate compensation was gradually permitted. See HONORARIUM, PALMARIUM, LEX CINCIA. Syn. patronus, causidicus.—C. 2.7; 9; 12.10; 61.—See SENATUSCONSULTUM DE ADVOCATIONE, SENATUS CON­SULTUM CLAUDIANUM, ERROR ADVOCATORUM.

Kubitschek, RE 1; Humbert, DS 1; De Ruggiero, DE 1; Seidl, RE 4A (s.v. syncgoros) ; M. Travers, Les corpora­tions d’avocats sous I’Empire rom., These, Paris, 1894; Pierantoni, Gli awocati di Roma antica, 1900; Weiss, ZSS 32 (1911) 363; Tamassia, APad 33 (1917) 51; White, Amer. Law Rev. 53 (1919) 481; Wenger, Die Anwaltschaft im rom. Recht, in J. Magnus, Die Rechtsan- waltschaft, 1929, 452; E. P. Parks, The R. rhetorical schools as a preparation for the courts, Baltimore, 1945; F. M. De Robertis, I rapporti di lavoro, 1946, 189; U. E. Paoli, La vita romana, 5th cd. 1948, 252.

Advocatus fisci. First appointed by Hadrian for the defense of the interests of the fisc both extrajudicially and in courts. He is not directly concerned with the fiscal administration.—Syn. patronus fisci.—C. 2.8.

Kubitschek, RE 1 ; Humbert, DS 1 ; De Ruggiero, DE 1, 125.

Aedes. (In sing.) A building of sacred character (often aedes sacra) of a lower degree sacrally than a temple (templum). See depositio in aede. (Pl.) In juristic texts, syn. for aedificium and is applied primarily to urban buildings while the rustic ones are called villae. Juristically the terms aedes and aedi­ficium include the soil (solum) and what is built upon it (superficies). Moreover, everything that is within the building and serves for perpetual use (e.g., tubes for water supply) is a part of the building as its accessory and shares the legal situation of the whole.—See vitium aedium.

De Ruggiero, DE 1; Weinstock, RE 5A (templum).

Aedificatio. Building a house. The construction of houses is governed by building regulations (statutes, senatusconsulta, imperial enactments) and is subject to the supervision of magistrates (aediles, censores for public buildings, under the Empire the praejectus urbi and his staff). Among the imperial enactments the building regulation by the Emperor Zeno (C. 8.10.12, 474-491) is the most important. The in­terests of the neighbors are protected by operis novi nuntiatio, a kind of protestation against a new construction which may be detrimental to the owners of adjacent buildings or lands. On the other hand, the house builder who gives sufficient guaranty is protected by a special interdict ne vis fiat aedificanti (= that force should not be used against the builder of a house) against any disturbance. Unless special permission is granted, building on public places is prohibited. Demolition of constructions already erected may be enforced by an interdict interdictum de locis publicis.—See lex iulia de modo aedi-

FICIORUM, ZENONIANAE CONSTITUTIONES, OPERIS NOVI NUNTIATIO. C. 8.10.

Leonhard, RE 1; Berger, RE 9, 1656, 1670; Voigt, Die rom. Baugesetze, BerSdchGW 1903; Biondi, BIDR 44 (1936/7) 363; Capocci, SDHI 7 (1941) 155.

Aedificia. There is a distinction between private buildings (aedificia privata) which are in private ownership and public buildings (aedificia publica) which are res publicae and under the management and supervision of public officials.—See aedes, aedi­ficatio, opera publica.—C. 8.10.

De Ruggiero, DE 1.

Aediles cereales. These officials were created by Caesar in 44 b.c. and given specific functions in the administration of grain for the city of Rome.

De Ruggiero, DE 1, 222.

Aediles curules. Created in 367 b.c. as a patrician magistracy ranking in the hierarchy between the praetors and the quaestors. Their charges which in certain measure coincided with those of the aediles plebis, were rather extensive: public order and secur­ity in Rome, the traffic in the city, management of public buildings, cur a annonae (food supply) as well as water supply, the supervision over markets, mar­ket transactions (such as the sale of slaves and ani-

mals), and weights and measures used in the market, and the like. A particularly heavy burden of theirs was the cura ludorum, arrangement of the public games, on which they often spent considerable sums of their own in order to obtain the support of the people in the furtherance of their careers. The creation of this magistracy is linked with the organi­zation of the games inasmuch as the aediles plebis were not rich enough to afford such expenses. The aediles curules had criminal jurisdiction in minor offenses. They were magistrates without imperium. See ACTIONES AEDILICIAE, EDICTUM AEDILIUM CU­RULIUM, CURA ANNONAE, DIES FASTI.

Kubitschek, RE 1; Humbert, DS 1; Stella-Maranca, NDI 1 (aedilitas) ; Anon., NDI 5 (edili) ; H. Vincent, Le droit des ediles, 1922; De Ruggiero, DE 1; Sherwin - White, OCD; E. Manni, Per la storia dei municipii, 1947, 245.

Aediles plebis. Plebeian officers elected by the plebe­ians, to serve as assistants of the plebeian tribunes whose orders they had to carry out (collegae mi­nores). Until the creation of the aediles curules (patrician magistrates), their responsibility was rather large and embraced the same fields which were later assigned to the new magistracy, the aediles curules. They enjoyed inviolability like the tribunes of the plebs. After the creation of the patrician aediles, they were somewhat in the shadow in spite of a certain similarity in function. The plebeian aediles had no outward sign of their official rank. For their activity in the archives see lex valeria horatia on SENATUSCONSULTA.

Siber, RE 21, 168; De Ruggiero, DE 1, 220; Humbert, DS 1; Momigliano, Bull, della commissione archeologica comunale di Roma 60 (1932/3) 218; E. Manni, Per la storia dei municipii, 1947, 221.

Aedilicius. Connected with the activity of the aediles. See ACTIONES AEDILICIAE, EDICTUM AEDILIUM CU­RULIUM.

Aelius Gallus (Caius). A little known jurist of the end of the Republic, author of a juristic glossary: “On the meaning of juristic terms.”

Klebs, RE 1, 492, no. 58.

Aelius Paetus Catus (Sextus). Consul in 198 b.c.; he published a manual under the title “Tripertita,” divided into three parts: the Twelve Tables, a com­mentary on them, and the forms of legis actiones (procedure). The work was later called Ius Aelianum.

Klebs, RE 1, 527, no. 105; Danneberg, RE 10 (ius Aeli­anum) ; Zocco Rosa, NDI 7 (ius Aelianum) ; F. Schulz, History of Roman legal science, 1946, 35.

Aelius Tubero. See tubero.

Aemulatio. Making use of a right not for one’s own profit, but only with the intention of doing damage to another. The term is not of Roman juristic coin­age, it was created in the Middle Ages and means abuse or misuse of a right. The classical rule,, stressed several times in the sources, that “there is no fraud, no wrong, no violence when one does something he has the right to do,” or “when one avails himself of his own right” (D. 50.17; 55; 155.1) was somehow modified in Justinian’s law under the influence of Christian ethics.—See nemo (NULLUS) VIDETUR, etc., NEMO DAMNUM, etc., UTI SUO IURE.

Riccobono, NDI 1; De Villiers, Nuisances in Roman Lazv, LQR 17 (1901) 387; Μ. Rotondi, CentCodPav, 1934; Riccobono, La teoria dell’abuso di diritto nella dottrina romana, BI DR 46 (1939) 1; Stella-Maranca, S'/ Albertoni 2 (1933) 449; Kreller, Missbrauch der Rechte, Ztschr für ausländisches und internationales Privatrecht 2 (1937) 1; Bartosek, ACIVer 3 (1952) 191 (Bibi. 235).

Aequitas (aequum). Related to justice (iustitia, iustum) but distinguished from the positive law, ius. One of the fundamental principles which direct or should direct the development of law; it is the cor­rective and creative element in such development. A law which is guided by aequitas is ius aequum, its antonym is ius iniquum. In the legal sphere aequitas may be realized either by interpreting the existing law or by supplementing it where an exact legal provision is missing. Aequitas, as the word itself indicates, implies the element of equality. Trans­ferred into the province of law it postulates equal treatment of all according to the conceptions nurtured in the social (common) conscience of the people which change, of course, when social and economic conditions undergo a change. The Roman aequitas fulfilled its functions in the development of the Roman law. When the legal norms established in earlier law, written or not written, became inadequate to the social and economic necessities of the later age, the aequitas went into operation both in private law and in civil procedure as well as in judicial practice. The ius honorarium was a large field in which the postu­lates of equity were realized. On the other hand, the jurists also contributed a great deal in the same direction. · Since the end of the Republic many juristic decisions were inspired by the principle of aequitas; among the classical jurists the most prolific contributor was Papinian. This is the meaning of the famous definition of the jurist Celsus—put at the very beginning of the Digest (D. 1.1.1 pr.)—“ius est ars boni er aequi” (= law is the art of finding the good and the just) which has recently been depre­ciated—unjustly—as an empty rhetorical phrase. The Roman jurists as well as the officials who ad­ministered the law were perfectly aware of the nature of aequitas although they have not left an exact definition of the word. It was precisely through their exercise of that “art” and by their perfect understanding what was bonum et aequum that the Roman jurists brought ius to the peak it reached in the classical period. Aequitas sometimes appears to be opposed to the ius then in force, particularly when it enters into its corrective function (when, for in­stance, the aequitas of the praetor is placed ahead of the rigidity of the ancient law, ius civile), and, at times, it is strongly connected with ius, even being presented as its substance, as in the Ciceronian say­ing, “the law is the established aequitas” (aequitas constituta, Top. 9) where ius and aequitas appear inseparable. Aequitas has its natural foundation in any human society, in its customs, and in its ethical and social conceptions as well, and becomes law either through customary practice or by legislative enact­ments (this is the Ciceronian aequitas constituta) ; the connection between aequitas and ius naturale is evident. Hence the frequent references to aequitas naturalis, reminiscent of the references to naturalis ratio. It is often adduced by the jurists as the reason for criticism of, or doubts about, the fairness of an existing legal rule. The classical aequitas was a fer­tile soil for the influence of Christian ethical doc­trines. The evolution found its expression in Jus­tinian’s codification in which not only the conception of aequitas acquired a broader aspect but the terminol­ogy was also enriched by the addition of references to terms like pietas, caritas, humanitas, benignitas, dementia. Many interpolations referring to these ideas testify to that tendency of the emperor, but not all of them added new doctrines and rules to the classical Roman law, since the aequum was too deeply rooted in the conscience of the jurists. The place the classical aequitas acquired in Justinian’s legal system is neatly characterized by the following detail. A principle of fundamental importance for­mulated in a rescript of the emperor Antoninus Pius (doubtless at the suggestion of a jurist of his council) to the effect that “though changes in solemn forms are not easily to be admitted, yet where aequitas demands it help should be granted” (D. 4.1.7 pr.) is repeated, as a general rule, in the final title of Justinian’s Digest On Rules of Ancient Law, under the name of the jurist Marcellus (D. 50.17.183) from whose Digesta the quotation of the rescript was ex­cerpted in one of the initial books of the Digest. Attempts to eliminate all references to aequitas, aequum, aequissimum est, aequitas naturalis, etc., wherever they appear in excerpts of classical juristic works, must be rejected as one of those uncritical exaggerations which have been so frequent in the modern search for interpolations, although nobody will deny that some of those references belong to the compilers.—See ius, ius est ars boni et aequi, BENIGNUS.

Kipp, RE 1 ; Humbert, DS 1 ; Riccobono, NDI 1 ; Jonkers, RAC 1 (1941) ; Fadda, L'equità ed il metodo dei giure- consulti гот., 1880 ; W. W. Buckland, Equity in Rom. law, 1911; Brice, Rom. aequitas and English equity, George­town Law Journal 2 (1913) ; Beseler, ZSS 45 (1925) 453; Guarneri-Citati, Indice² (1927) 7; idem, St Ricco­bono, 1 (1936) 704; idem, Fschr Koschaker 1 (1939) 120; Sokolowski, St Bonfante 1 (1929) 190; Ragusa, Diritto e equità da Cicerone ai giureconsulti classici, AG 103 (1930) 87, 224; Giannini, A G 105 (1931) 194; Pringsheim, ZSS 52 (1932) 86; C. A. Maschi, La concezione naturalistica, 1937, 311; M. P. Guibal, De ^influence de la philosophic sur le dr. rom., 1937, 162; Albertario, Studi 5 (1937) 107; Devilla, Ae. naturalis, StSas 16 (1938) 125; Bastnagel, BIDR 45 (1948) 356; Condanari-Michler, St Besta 3 (1939) 505; Biondi, Scr Ferrini (Pavia, 1947, reprints, 1943) 210; Riccobono, BIDR 53/4 (1948) 32 (= AnPal 20 [1949] 39) ; idem, Lineamenti della storia delle fonti, 1949, 108; Ridder, Aequitas non equity, Archiv fur Rechts­und Sozialphilosophie 39 (1951) 181.

Aequum et bonum. See bonum et aequum, aequi­tas, IUS EST ARS BONI ET AEQUI.

Aer. The air. Belongs to the category of res com­munes OMNIUM. See CAELUM.

Lardone, Air Law Rev. 2 (1931) ; Riccobono, Riv di diritto aeronautico 1 (1938).

Aerarii. Citizens excluded from the centuriate and tribal organization (tribus) by the censors and sub­ject to the payment of a special poll-tax. They were not permitted to vote in comitia centuriata and comitia tributa. Assignment to the aerarii was a form of administrative punishment.—See nota censoria.

Kubitschek, RE 1; Humbert, DS 1; De Ruggiero, DE 1, 311.

Aerarium militare. A special military treasury insti­tuted by Augustus. It provided pensions for veterans and was supported by donations of the emperor and by the income from sales—and inheritance taxes. The funds of the aerarium militare were administered by praejecti aerarii militaris.—See centesima rerum VENALIUM, VICESIMA HEREDITATIUM.

Aerarium populi Romani. State treasury, also called aerarium Saturni because it was located in the temple of Saturn. It was also a central archive for docu­ments connected with the financial and general ad­ministration, for statutes passed by the popular as­semblies (lex licinia iunia), senatusconsulta, and generally for all documents in which the state was interested, such as contracts with private individuals (see tabulae publicae, tabulae censoriae). Orig­inally under the directorship of the quaestors, then of the praetors, it was submitted by Augustus to the control of the senate. In the Principate the chiefs of the aerarium were the praejecti aerarii Saturni. The aerarium populi Romani is to be distinguished from the treasury of the emperor (see Fiscus). The distinction gradually lost importance since the im­perial treasury absorbed the revenues of the aerarium more and more.—See tabularium.

Kubitschek, RE 1; Sachers, RE 4A, 1964; Humbert and Guillaume, DS 1; De Ruggiero, DE 1, 309; Stella- Mar anca, NDI 1; Foligno., NDI 5 (j.v. erario) ; Frank, JRS 23 (1933) 143; S. v. Bolla, Die Entwicklung des Fiscus, 1938; Sutherland, Amer. Jour, of Philology 67 (1945) 151; Mattingly, OCD; O’Brien-Moore, RE Suppl. 6, 790; Jones, JRS 40 (1950) 23.

Aerarium Saturni. See aerarium populi romani.

Aes. A copper coin, often syn. with as. In a broader sense = money.—See the following items.

Kubitschek, RE 1; Mattingly, OCD; idem, Numismatic Chronicle, 1943, 21.

Aes alienum. “What we owe to another,” a debt. Ant. aes suum = “what another owes to us” (D. 50.16.213.1).

Humbert, DS 1 ; De Ruggiero, DE 1, 312.

Aes confessum. See confessio in iure.

Aes equestre. The sum of money allotted to a cavalry­man for the purchase of a horse.—See equites, legis ACTIO PER PIGNORIS CAPIONEM.-

Kubitschek, RE 1 ; Humbert, DS 1.

Aes et libra. See per aes et libram.

Lévy-Bruhl, LQR 60 (1944) 51.

Aes hordearium (hordiarium). The allowance for the purchase of fodder for a cavalryman’s horse.— See EQUITES, LEGIS ACTIO PER PIGNORIS CAPIONEM.

Schwahn, RE 7A, 57 ; Humbert, DS 1.

Aes militare. The soldier’s pay.—-See tribus, legis ACTIO PER PIGNORIS CAPIONEM.

Aes publicum. See collatio.

Aes rude. Uncoined bronze which served to estimate the value of things before coinage was introduced.

Aestimatio. The valuation in money of things, or of damages and all kinds of losses one suffered through another’s wrongful doing or by his non-fulfillment of a contractual obligation. Particularly important in the recovery of damages was the estimation of the interest (interesse) of the person who endured them.—See VERITAS.

Orestano, AnCam 10 (1936) 227.

Aestimatio dotis. The valuation in money of the things which are constituted as a dowry. When the restitution of the latter (dos aestimata) became an issue, only its fixed value entered into consideration, if a choice between restoration in kind and the return of a sum of money has not been agreed upon.

Volterra, RendLomb 66 (1933), 1014; Wolff, ZSS 53 (1933) 331.

Aestimatio litis. See litis aestimatio.

Aestimatorius. See aestimatum, actio quanti minoris, iniuria.

Aestimatum. A transaction by which one receives goods, estimated at a fixed amount, from another on the condition that within a certain time the recipient will either return the goods or pay the sum agreed upon. Such agreements were generally made with second-hand dealers who kept the profit when they sold the goods at a higher price. In the meantime the ownership normally remained with the real owner, who did not care whether the recipient finally decided to buy the things for himself or sold them to another.. In the case of non-fulfillment of the transaction the owner had an action called de aesti­mato or aestimatoria.—D. 19.3.

De Medio, Il contractus aestimatorius, 1900; De hrancisci, Synallagma 1 (1913) 85; Buckland, Mei. Cornil 1 (1926) 139; idem,RHD 12 (1933) 217; P. Voci, Contratto (1946) 256; Pezzana, AG 140 (1951) 53.

Aetas. When used without any specific attribute (as, for instance, aetas minor, maior, perfecta, adulta), the word may indicate any human age. In particular, in locutions connected with the protection of minors (such as remedium or beneficium aetatis, venia aeta­tis), aetas refers to minors, whereas when it is ap­plied to the age of persons liberated from public charges (munera) or tutorship (tutela), elderly peo­ple are meant. For the influence of the various stages of human life on legal capacity, see infans PUBERES, IMPUBERES, MAIORES, IMPRUDENTIA, SUAE aetatis fieri, minores.—See also the following entries.

Leonhard, RE 1; Berger, RE 15, 1862.

Aetas legitima. Not a technically exact term. Usu­ally refers to persons who have attained their ma­jority, as in phrases like post legitimam aetatem, legitimam aetatem complere. A favorite word in the language of Justinian’s compilers and appears fre­quently in interpolated texts. Sometimes there is doubt about its actual significance because of the lack of precision in the term legitimus in Justinian’s lan­guage. See LEGITIMUS.

Berger, RE 15, 1683.

Aetas perfecta. Not a technical term. Generally re­fers to the age of majority.

Berger, RE 15, 1682.

Aetas pupillaris. See pupillus.

Aetatis suae fieri. See suae aetatis fieri.

Aeterna auctoritas. See actio auctoritatis.

Aeterna urbs. Rome (in later imperial constitutions). —See URBS, ROMA.

Aeternitas. Eternity, immortality. The term was one of the titles of the emperor in the later Empire (aeter­nitas imperialis, aeternitas nostra).

Cumont, Rev. d’hist, et litterature religieuse 1 (1896) 435; L. Berlinger, Titulatur der rom. Kaiser, 1935, 25; Charlesworth, Harvard Theolog. Rev. 29 (1936) 122; Ensslin, Gott-Kaiser, SbMiinch 1943, 6. Heft, 77.

Adf-. See AFF-.

Affectio (affectus). A favorable disposition of one’s mind towards a person or a thing. See affectio maritalis. With reference to juristic transactions the term is used in the same sense as animus ( = will, intention) and is charged with the same suspicion of Byzantine origin (see animus). The value which a person attaches to an object (the so-called pretium affectionis) is generally irrelevant when restitution of damages done to it is demanded.

Guarneri-Citati, Indice (1927) 8.

Affectio maritalis. Conjugal affection conceived as a continuous (not momentary) state of mind is a basic element of intent in the Roman marriage. It pre­sumes the intention of living as husband and wife for life and of procreating legitimate children. The attempt to eliminate the affectio maritalis from the conception of marriage by the assumption that the pertinent texts are interpolated must be considered a failure.—See CONCUBINATUS.

Ehrhardt, RE 17, 1479; E. Albertario, Studi 1 (1933) 197; G. Longo, BIDR 46 (1939) 119; E. Volterra, La conception du mariage (Padova, 1940) 37; Wolff, ZSS G7 (1950) 296 (Bibl.) ; P. Rasi, Consensus facit nuptias, 1946.

Affect io societatis. Used with reference to the inten­tion of the parties to a contract of partnership.—See SOCIETAS.

Salvadore, Rivista di dir. civile 3 (1911) 681; Arangio- Ruiz, La società, 1950, 63; van Oven, TR 19 (1951) 452. Africanus, Sextus Caecilius. A Roman jurist of the middle of the second century after Christ, a younger contemporary of Julian and probably his pupil. He is the author of a collection of responso, published under the title of Quaestiones (in nine books) ; many of them represent the opinion of Julian. From his twenty-book-collection of Epistulae one text only is preserved.

Jors, RE 3 (s.v. Caecilius, no. 29) ; Orestano, NDI 1 ; Buhl, ZSS 2 (1881) 180; Lenel, ZSS 51 (1931) 1; Degrassi, Epigraphica 3 (1941) 23.

Agens vice (vicem, vices). See vice.

Agentes in rebus. Since the fourth century after Christ, a body of more than a thousand persons whose official duties varied widely in character. They acted chiefly as police officers. Their competence also em­braced the provinces where during their frequent travels, they had to inspect the state post and to report about misdemeanors and corruption of officials in other fields of administration. They developed a 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. A group of them charged with the control of the cursus publicus ( = state post) were called curiosi in allusion to their inquisitive activity.—C. 12.20; 21. —See SCHOLAE.

Seeck, RE 1; Humbert, DS 1; De Ruggiero, DE 1, 355; O. Hirschfeld, Kleine Schriften, 1913, 624; E. Stein, ZSS 41 (1920) 194; A. E. R. Boak, Univ, of Michigan Studies, Human. Series, 14 (1924) 68.

Ager. Any kind of rural land, both arable and pasture, not including buildings and villae (country-houses, farm-houses). The principal division is: ager pri­vatus, in private ownership, and ager publicus, state land considered to belong to the Roman people. The various types of public land assigned to private indi­viduals are explained in the following items. The nature of some of them varied in the course of time owing to the manifold agrarian legislation (see leges agrariae). In the last analysis, through the gradual assignment of the ager publicus to private individuals by various forms, all the land which in the earliest times was ager publicus became ager privatus.

Kubitschek, RE 1 ; De Ruggiero, DE 1 ; Kaser, Typen der röm. Bodenrechte in der späteren Republik, ZSS 62 (1942) ; Μ. Weber, Röm. Agrar geschickte in ihrer Be­deutung für das Staats- und Privatrecht, 1891 (Italian translation in Biblioteca di Storia economica, 2, 1891,1894).

Ager adsignatus. See adsignatio.

Ager colonicus. Land destined as the territory of a new colony. It was assigned to the colonists in own­ership.

Ager compascuus. Pasture land assigned to the in­habitants of the adjacent plots, for their collective use at a small fee (scriptura).

Ager desertus. Land abandoned by its owner and not cultivated. Imperial legislation took care of bringing such land into agricultural economy.—C. 11.59.

Leonhard, RE 5, 249; Humbert, DS 2 (s.v. deserti agri) ; Kaser, RE Suppl. 7, 690; Charvin, Les constitutions du Code Théod. sur les a.d., La Belgique judiciaire 58 (1900) ; Meyer-Collins, Derelictio (Diss. Erlangen, 1930) 89; E. Levy, West Roman Vulgar Law, 1951, 194.

Ager emphyteuticarius (emphyteuticus). Land which is the object of a contract of emphyteusis. Syn. ager vectigalis.—See emphyteusis.—D. 6.3.

Ager limitaneus. See limen.

Ager limitatus. Land, the boundaries of which were settled by a land-surveyor.

Ager occupatorius. (1) Enemy land occupied by the Romans and annexed to the territory of the state; (2) part of the ager publicus which was open to free occupation and use by anybody, the ownership, however, being reserved to the state which had the right to claim it back at any time. Holders of such land (possessores) could dispose of it by various trans­actions and by testament. The agrarian legislation (see leges agrariae) imposed some limits on the extension of an ager occupatorius.

Kaser, RE Suppl. 7, 689; idem, ZSS 62 (1942) 27; F. Bozza, Possessio dell"ager publicus, 1939.

Ager privatus. See ager.

Ager privatus vectigalisque. Land which originally was ager publicus became quiritary property of the buyer when sold by public sale. The acquirer had to pay an annual rent to the state. The ager privatus vectigalisque passed to the heirs of the owner as part of his succession, but it could not be sold by him. Later agrarian legislation introduced some modifica­tions.

Kaser, ZSS 62 (1942) 6.

Ager provincialis. See fundus provincialis.

Ager publicus. The land which belongs to the state (the Roman people). The principal source of its increase was military conquest. Portions of the ager publicus could become private property by assign­ment (adsignatio, ager adsignatus) or by sale (ager quaestorius, since such sales of state property are made by the quaestors). Lease of the ager publicus to individuals was also practiced, either in perpe­tuity, for long terms or for short periods. The lessee paid a rent (vectigal).—See ager, leges agrariae, AGER SCRIPTURARIUS.

Kubitschek, RE 1 ; Schwahn, RE 7A, 10 ; Humbert, DS 1 ; Albertario, NDI 1 ; Jones, OCD; De Ruggiero DE 1 ; Guiraud, Rev. des questions historiques 44 (1909) 397; T. Frank, JRSt 17 (1917) 141 ; Zancan, ATor 67 (1932) ; idem, A.p., P. bl. Facoltà Lettere Univ. Padova, 8 (1935); F. Bozza, Possessio delia.p., 1939; Carcaterra, AnBari 4 (1941) 101; Kaser, Eigentum und Besits, 1943, 239 and passim; Tibiletti, Ath 26 (1948) 173, 27 (1949) 3.

Ager quaestorius. See ager publicus.

Kaser, ZSS 62 (1942) 43.

Ager Romanus. The Roman soil comprising the terri­tory of the city of Rome, later, the territory divided into thirty-five tribes (tribus), and, finally, the whole of Italy.

Ager scripturarius. A plot of public land granted to private individuals for pasture on payment of a spe­cial tax (scriptura).

C. Trapenard, L’a.s., 1908.

Ager stipendiarius, tributarius. See praedia stipen­diaria, PRAEDIA TRIBUTARIA.

Ager vectigalis. Land belonging to the state or municipality and leased in perpetuity. Originally the lease of state land was performed by the censors and the term was limited to five years (leges cen­soriae, leges locationis). In postclassical law, the ager vectigalis is identified with ager emphyteuti­carius. It was hereditary and the lease could not be annulled if the lessee or his heir paid the rent regularly. The pretorian action for the recovery of such land from a third person holding it unlawfully was modeled after the rei vindicatio although the lessee was not a full owner (actio vectigalis or quae de fundo vectigali proposita est). In the largest sense, any public land given in lease to an individual for a rent (vectigal) is called ager vectigalis.—See AGER PRIVATUS VECTIGALISQUE.

Humbert, DS 1; Bolla, NDI 1; Bassanelli, La colonia perpetua, 1933; Beseler, SDH I 3 (1937) 360; Lanfranchi, Studi sull’ager vectigalis 1 (1938) 2 (AnCam 13, 1939, 163) 3 (AnTriest 11, 1940); Kaser, ZSS 62 (1942) 34. Ager viritanus. Public land assigned individually (viritim) to a private person, mostly under the form of ager privatus vectigalisque. This assignment is not connected with the foundation of a colony.

Kiibler, Gcschichte des rbm. Rcchts, 1925, 120.

Agere. In a civil trial, the procedural activity of the plaintiff (is qui agit). Ant. is cum quo agitur = the defendant.—See actor, is qui agit.

Wlassak, RE 1 (s.v. actor) ; Fadda, NDI 1.

Agere. When referring to the activity of the jurists, indicates their activity as legal advisers in a specific controversy. In particular, they assisted the party to a trial in drafting the formula to be used by him, in advising him about the use of prescribed oral forms, in acting personally in the first stage of the trial before the magistrate, or in instructing the party’s advocate. This activity gave the jurists the opportunity to develop new, unprecedented formulas. Berger, RE 10, 1162.

Agere causas. See causas dicere.

Agere cum plebe, populo, senatu. See ius agendi CUM PLEBE, populo, senatu.

Agere iumentum. See ius agendi iumentum.

Agere per sponsionem. (1) In interdictal proceed­ings, a special form of trial when the defendant did not immediately obey the praetor’s order. At the plaintiff’s demand a normal trial was initiated in order to establish whether or not the defendant had fulfilled the interdictal order. The sponsio trial in­volved a penal element since the defendant bound himself by a stipulation (sponsio) to pay the plain­tiff a penalty (poena) if his failure to obey the inter­dict was proved. In the case of an interdictum duplex each party had to promise to pay a penalty if defeated, the defendant by sponsio, his adversary by restipulatio. Thus a counterpart to agcre per sponsionem is agere ex restipulatione. The sponsio was only a measure to compel the party involved to fulfil the command of the magistrate. If, however, the restitution or exhibition ordered by the magistrate was still not accomplished, or if the defendant con­tinued to interfere with the plaintiff, contrary to a prohibitory interdict issued, a specific action followed, called iudicium secutorium, the aim of which was to procure for the plaintiff full satisfaction for all damages and losses he had suffered from the obstinate behavior of the defendant. (2) Another form of agere per sponsionem is applied when the question of ownership of a thing is involved. The party in pos­session of the thing promised the adversary a certain sum by sponsio (stipulatio) in the event that the latter proved his ownership over the controversial thing. The action which followed was based on the sponsio and the decision thereon was actually a deci­sion on the ownership. Here the sponsio had no penal character and therefore the defeated possessor did not pay the sum stipulated in the sponsio, the function of which is described as follows: “through it, it is judged over, the thing itself” (per earn de re ipsa iudicatur, Gaius, Inst. 4.94). Hence it is called sponsio praeiudicialis because the legal situation es­tablished in the decision in the sponsio suit was preju­dicial for all claims connected with the ownership (the delivery of the thing, or of its fruits, and the like).—See sponsio, provocare sponsione.

Berger, RE 9, 1693; Jobbe-Duval, Et sur la procedure civile I. Agere p.s., 1896; Bozza, St Bonfante 2 (1930) 589; Car cater r a, AnBari 2 (1940) 52; Kaser, Eigentum u. Besits, 1943, 282; Siber, Fschr Wenger 1 (1944) 69; Arangio-Ruiz, La parola del passato 8 (1948) 142; v. Liibtow, ZSS 68 (1951) 337.

Agere praescriptis verbis. See actio praescriptis verbis.

Agerius. See AULUS.

Agnasci. To enter by birth (or by adoption) into the agnatic group. The term is primarily used with ref­erence to a person (son or grandson) born after�?the death of a testator. He becomes the testator’s heir (heres suus) by reason of the fact that he would have fallen in directly under the testator’s paternal power if the latter were still alive. See postumi. The term is also applied to children born during the testator’s lifetime after a will has been made.—See the fol­lowing items.

Agnatio. The relationship among persons (agnati) who are under the paternal power (patria potestas) of the same head of a family (pater familias) or who would have been if he were still alive. The agnatic tie is created by descendance in the male line from a common ancestor. From earliest times agnatio was the basis for rights of succession by intestacy accord­ing to the ius civile. Guardianship also falls on the nearest agnatus.—Ant. cognatio.—Inst. 1.15; 3.2.— See HERES SUUS.

Leonhard, RE 1; Baudry, DS 1; Paoli, NDI 1; Lend, ZSS 37 (1914); Perozzi, BIDR 31 (1921) 88; Michon, Mel Cornil 2 (1926) 113; G. Goutelle, La lutte.entre lagnation et cognation ä propos du Sencons. Tertullianum, 1934; Carcaterra, AnBari 2 (1940); C. Castello, Diritto familiare, 1942, 123; Guarino, SDHI 10 (1944) 290; idem, AnCat 1 (1947) 330, 3 (1949) 204; Lepri, St Solassi, 1948, 299; Solazzi, ANap 63 (1950).

Agnati (agnatus). See agnatio, agnasci.—Ant. COGNATI.

Agnatio postumi. See agnasci, postumi.

Agnatus proximus. The nearest relative among the agnati. In matters of intestate succession and guard­ianship an agnatus proximus excludes the agnatus of a remoter degree.—Ant. agnatus inferioris gradus. Lenel, ZSS 37 (1917) 129.

Agnitio bonorum possessionis. The request of a person addressed to the praetor that he be granted the possession of an inheritance (bonorum possessio) as successor according to the praetorian law (bono­rum possessor). See BONORUM POSSESSIO.

Leonhard, RE 1; Arangio-Ruiz, FIR 3 (1943) no. 61; H..Krüger, ZSS 64 (1944) 397, 405.

Agnoscere. A general term for the assumption of legal duties or the acknowledgment of a specific legal situation or transaction.—D. 25.3.

Agnoscere bonorum possessionem. See agnitio bo­norum possessionis. Syn. petere bonorum posses­sionem.

Agnoscere liberum (partum). To acknowledge the paternity of a child. A senatusconsultum de agnos­cendis liberis established certain rules in the case of pregnancy of a divorced wife, designed to protect her rights against the former husband as well as the latter’s if the child was not his. The wife had to declare formally to the husband se ex eo praegnatem esse.—D. 25.3— See senatus consultum plan- CIANUM.

Agnoscere signum. See signum.

Agrimensores. Land (field) surveyors. Syn. men­sores agrorum, agrarii, or simply mensores. The earliest were priests (augures) since the Romans at­tached a religious significance to the boundaries of a city or of a settlement and the act of tracing the boundaries was celebrated with sacred rites. Later, they were private individuals, experts in surveying. An agrimensor engaged for the delimitation of a plot of land was not considered to be hired by locatio con­ductio; his services were treated as liberal, not sal­aried, services. See honorarium. He was respon­sible, however, for fraud committed in the fulfillment of his professional duties. A special action was granted against an agrimensor who made a false report on boundaries (qui falsum modum dixerit). Under the Principate the agrimens ores were trained in special schools. Some were appointed as state officials, chiefly for military purposes (division and assignment of conquered land, limitation of mili­tary camps). In their private activity they functioned as arbitrators in controversies about boundaries of private property or as experts in judicial trials on. such matters.—See controversy de fine, de loco. —D. 11.6; C. 12.27.

Fordyce and Balsdon, OCD (v. gromatici) ; Kubitschek, RE 1; Schulten, RE 7 (gromatici) ; Fabricius, RE 15 (mensor) ; Humbert, DS 1; Bolla, NDI 1; De Ruggiero, DE 1; E. Levy, Privatstrafe und Schadensersats, 1915, 52; idem, Konkurrens der Klagen 2, 1 (1922) 241; Beeson, Cl Philol 23 (1928) 1; Albertario, SDHI 9 (1943) 27.

Aio. “I affirm.” The word is used by a party to a trial to stress his rights to the object in dispute, or to assert the status of liberty of a man (hunc homi­nem liberum esse aio).

Ait (aiunt). In juristic writings, opinions of other jurists are thus introduced in this way, e.g., Labeo ait. In the commentaries on the praetorian edict, the words praetor ait (inquit) precede a literal quota­tion. Excerpts from statutes, senatusconsults 'and im­perial enactments are also often attached to ait.

Ala. A cavalry unit of about five hundred men within the auxiliary armies (auxilia) under the command of a praef ectus alae (since Augustus). The auxiliary cavalry has to be distinguished from the cavalry units within the legions (equites legionis).

Cichorius, RE 1; Kubler, RE 6, 279; De Ruggiero, DE 1. Album. A board painted white, exposed in public and accessible to the people, on which announcements (edicta) of the magistrates were written. Forgery of the text or damage intentionally done to the album (corrumpere, corruptio) can be prosecuted by any citizen through the actio de albo corrupto.—See ALBUM PRAETORIS, ACTIO DE ALBO CORRUPTO.

Schmidt, RE 1; Guillaume-Saglio-Humbert, DS 1; Anon. NDI 1; Schulz, JRS 32 (1942) 88.

Album collegii. A list of the members of a collegium as well as the bulletin board for internal announce­ments in an association.

De Ruggiero, DE 1, 393.

Album curiae (decurionum, ordinis decurionum). The list of the members of municipal councils. It was published on a white board.—See curia, de­CURIONES, PROSCRIPTIO ALBI.—D. 50.3.

De Ruggiero, DE 1, 392; Kornemann, RE 4, 587; V. Hoesen and Johnson, Jour. Egyptian Arch., 12 (1926) 116.

Album iudicum. The list of citizens qualified to as­sume the function of juror in judicial trials, both civil and criminal. Under the Republic the. album iudicum was prepared every year by the praetorian office. Political points of view often influenced the composition of the list. The jurors for a specific trial were selected by agreement of the parties or by lot (sortitio). The parties had the right to reject persons inacceptable to them (reicere, reiectio).— See FERRE IUDICEM.

Steinwenter, RE 9, 2466; Guillemin-Saglio-Humbert, DS 1; Fraccaro, RendLomb 52 (1919) 335; Kreller, ZSS 45 (1925).

Album praetoris. A white board on which the prae­torian edict was publicly announced together with its legal rules, procedural formulae (actions, exceptions, interdicts) and praetorian measures. A plaintiff who wanted to sue his adversary might lead him before the album and indicate there the formula of action he wished to apply against the defendant.

Album senatorium. The list of the members of the senate.

De Ruggiero, DE 1, 390.

Aiea. In juristic language the term indicates any game of chance (not only dice). Claims arising from such games, which were generally forbidden, were not actionable. The Justinian law admitted certain ex­ceptions. See LEX ALEARIA, LEX CORNELIA DE ALEA­TORIBUS, LEX TITIA DE ALEATORIBUS. C. 3.43.

Leonhard-Hartmann, RE 1; Humbert, DS 1.

Aleator. A gambler.—D. 11.5; C.3.43.—See alea.

Alfenus Varus. A Roman jurist of the end of the Republic, pupil of Servius Sulpicius Rufus, author of an extensive work, Digesta, in forty books.

Klebs-Jbrs, RE 1; Orestano, NDI 1; H. Kruger, Si Bonfante 2 (1930) 326; L. De Sarlo, Alfeno Varo e i suoi Digesta, 1940.

Alienatio. Alienation, the transfer of property through a transaction (sale, donation). Certain things are not alienable (res litigiosae, land constituted as a dowry, fundus dotalis) and, on the other hand, certain persons are not permitted to alienate their property because of the lack of legal ability to act by them­selves (persons under guardianship or curatorship). Insolvent debtors were prohibited from alienating their property fraudulently to the detriment of the creditors (in fraudem creditorum). See inter­dictum fraudatorium. For fraudulent alienation by a freedman to the detriment of his patron, see actio calvisiana. For the alienation of a thing bequeathed in a last will to a legatee, see ademptio legati.—Inst. 2.8; C. 4.51; 52.

De Ruggiero, DE 1; Del Prete, NDI 1; De Robertis, AnBari 2 (1939) 71; Brasiello, SDHI 15 (1949) 114; A. Burdese, Autorissasione ad alienare, 1950.

Alienatio hereditatis. The transfer of an inheritance before or after its acceptance by the heir is achieved by in iure cessio hereditatis. The alienation of an anticipated inheritance of a person still alive by a presumptive successor was not only void, but the seller also became unworthy (indignus) losing thereby his right to receive anything from that particular inheritance.

Alienatio in fraudem creditorum. See alienatio, INTERDICTUM FRAUDATORIUM.

Alienatio iudicii mutandi causa facta. The transfer of a thing which is expected to be the object of litiga­tion in the near future, in order to change the con­ditions of the trial to the disadvantage of the adver­sary. The transaction could be rescinded by the praetor through in integrum restitutio. In particular an alienation to a person of greater power (poten- tiores) was forbidden.—D. 4.7; C. 2.54.

Partsch, De I’edit sur I’a.i.m., 1900; Mitteis, ZSS 30 (1909) 451; Lenel, ZSS 37 (1916) 104; Kretschmar, ZSS 40 (1919) 136, 48 (1928) 566; L. Charvet, La restitutio in integrum des majeurs, 1920, 93.

Alieni iuris esse. To be legally dependent upon the power of another. Syn. alieno iuri subiectus, in pot estate alicuius esse. The power (ius, potestas) of another fell into different types and consequently there was a distinction among persons alieni iuris. The most important group was that of persons subject to the paternal power (patria potestas) of the head of the family (pater familias). Other persons alieno iuri subiecti were wives under the power of the husbands (manus), persons in mancipio (see mancipium), and slaves (servi) under the dominica potestas of their masters. Ant. sui iuris esse. Per­sons alieni iuris might become sui iuris either through legal acts, which differed according to the form of potestas, or in consequence of certain events. Per­sons subject to paternal power become sui iuris through the death of the pater jamilias, unless they then come under the power of another person, as, e.g., a grandson became subject to the patria potestas of his father if they both had been under the potestas of the grandfather. The release of a person alieni iuris from paternal power in the lifetime of the father was achieved by emancipatio, that of a slave by MANUMISSIO.—See PATER FAMILIAS, PATRIA POTES­TAS, sui iuris esse.—Inst. 1.8; 4.7; D. 1.6; 14.5; C. 4.26.

Alienigenus. A foreigner (born in a foreign country). Alieno iuri subiectus. See alieni iuris esse.

Alieno nomine. In the name (in behalf) of another (e.g., agere, possidere, etc.). See nemo alieno nomine.—Ant. suo (proprio) nomine. Acting alieno nomine was subject to various restrictions which in the course of time were gradually repealed. G. Beseler, Juristische Miniaturen, 1929, 92.

Alienum. (Noun.) All that belongs to another. Alienum aes. See aes alienum.

Alienum negotium. Another man’s affair. See nego­tiorum gestio. The law intervened in cases in which a person managed another’s affairs without being authorized by him.

Alienus. See alienum. Ant. PROPRIUS.

Alimenta. Nourishment, the necessities of life, means of support. Under the Principate a reciprocal right to, and duty of, sustenance between parents and chil­dren was established. Imperial constitutions and the jurisdiction of the cognitio extra ordinem enlarged the circle of persons obliged to reciprocal support (grandparents and grandchildren, wards, even ille­gitimate children), which reached its apogee in Jus­tinian’s law. This introduced a general obligation to provide alimenta for impoverished relatives as a duty of piety (officium pietatis). For alimenta as a public institution, see ALIMENTARIUS, FACULTATES, ORATIO marci.—D. 25.3; C. 5.26; 50.

De Ruggiero, DE 1, 408; Roberti, II diritto agli alimenti, Miscellanea Vermeersch 2 (1935) ; E. Albertario, Studi 1 (1933) 249; Lanfranchi, SDHI 6 (1940) 5; G. Longo, AnMac 17 (1948) 215; Sachers, Fschr Schulz 1 (1951) 310.

Alimenta legata. Legacy of sustenance. It com­prised food (cibaria), clothing (vestiaria) and lodg­ing (habitatio). The extent of such a legacy is broadly discussed by the jurists in D. 34.1. It was normally combined with landed property as security. —See LEGATUM PENORIS.

B. Biondi, Successione testamentaria, 1943, 463.

Alimentarius. Connected with the distribution of ali­menta (provisions) among the poor. Pueri alimen­tarii (puellae alimentariae) are indigent children who received alimenta from either imperial or private foundations (arca alimentaria, pecuniae alimentariae). The supervision of all such organizations in Italy and in the provinces was assigned to special procuratores (quaestores, praejecti) alimentorum.

Kubitschek, RE 1; Orestano, NDI 1; De Ruggiero, DE 1, 402, 408.

Alluvio. What a river has gradually added to the land along its bank. The landowner acquires owner­ship of the added soil (accessio). If, however, a river swept away a piece of land and attached it to another’s property, the former owner did not lose his rights to the land carried away unless the acces­sion had became inseparable from the neighbor’s land, as when, for instance, the trees stroke roots into the latter.—C. 7.41.

Leonhard, RE 1 (adluvio) ; Baudry, DE 1; Pampaloni, StSen 43 (1929) 214; Naber, Ath 10 (1932) 37; Guarneri- Citati, BIDR 43 (1935) 25; Branca, AnTr 12 (1941) 50.

Alma urbs. In later imperial constitutions refers to Constantinople.

Alter alteri obligatur (tenetur). Each party is obli­gated to the other contractual partner. The phrase applies to reciprocal obligations in consensual con­tracts in which each party is bound to “what each has to perform for another ex aequo et bono (accord­ing to what is just and fair),” Gai Inst. 3.137, lust. Inst. 3.22.3.

Altercatio. A legal controversy. Altercationes = al­ternating speeches of the advocates in a trial. Also a cross-examination of a witness.

Steinwenter, ZSS 65 (1947) 92.

Alterum tantum. As much again. Syn. duplum. The expression is applied to actions in which the plaintiff is condemned to pay twofold the value of the object in dispute. See ACTIONES IN SIMPLUM, DUPLUM.

Altiores. Persons of the highest social rank.—See HONESTIORES.

Alumnus. A child nourished and brought up by a person not related to him by blood.—See expositio.

De Ruggiero, DE 1; Volterra, S7 Besta 1 (1939) 455^

Alveus derelictus. A river bed abandoned by the flowing water. It belonged to the landowners on the banks in proportion to the extent of their hold­ings, while the new river bed was in the same legal situation in which the former was: it became a flumen publicum (a public river) if it had been such before. See FLUMINA.

De Ruggiero, DE 1; Scialoja, St 1 (1933, ex 1889) 391; Andrich, AG 56 (1896) 101, 57 (1896) 59; Riccobono, 37 Schupfer 1 (1898) 217; Guarneri-Citati, AnMac 1 (1926) 107; Branca, AnTr 12 (1941) 54.

Amatorius. See venenum.

Ambigere. To doubt, dispute, call into question. Legal decisions or rules are often introduced apodic- tically by non est ambigendum, non ambigitur ( = there is no doubt).

Berger, 14 (1912) 415; Guarneri-Citati, Indice* (1927) 10.

Ambigua vox. An obscure, ambiguous term. When it is used in a statute, “that meaning of it ought rather to be accepted which is blameless (vitio caret = free from fault), particularly when the intention of the law can also be thereby concluded” (D. 1.3.19).— See INTERPRETATIO.

Ambiguitas (ambiguus). Ambiguity, vagueness. The terms are used with predilection by Justinian and his compilers. But the phrase non est ambigui iuris ( — it is a certain law) is frequent in Diocletian’s constitutions. The monograph “De ambiguitatibus” ascribed to the jurist Julian may be a collection of doubtful questions collected in a later period from the jurist’s works.—See ambigere, ambigua vox.

Himmelschein, Symbolae Friburgenses Lenel (1932) 409. Ambire. To canvass in elections for magisterial posts. Ambitio. Bias, partiality (e.g., of a judge). Ambitus. Unlawful maneuvers in elections. A series of statutes (see LEX AURELIA, CALPURNIA, CORNELIA, CORNELIA BAEBIA, CORNELIA FULVIA, IULIA, POETELIA, pompeia) dealt with dishonest and corrupt electoral practices by the candidates for magistracies (bribery, banquets, circus plays, canvassing by unworthy means). The legislation against ambitus may not have been very effective since the various prohibi­tions had to be repeated under the Republic time and again and the penalties became more and more severe (pecuniary fines, loss of ius honorum, exclu­sion from the senate [lex Calpurnia of 67 b.c.], in­famy, exile) until the lex lulia of Augustus of 18 b.c. introduced some moderations.

Hartmann, RE 1; Humbert, DS 1; G. Chaigne, L’ambitus et les tnceurs elector ales des Romains, 1911.

Ambitus. An open space two and a half Roman feet in width (duo pedes et semis — sestertius pes) be­tween neighboring houses. Originally required by the Twelve Tables, it fell later into disuse. See paries communis, servitus oneris ferendi. New building regulations were introduced by the Emperor Zeno (474-491). See aedificatio, zenonianae constitutiones.

Brugi, RISG 4 (1887) ; Berger, AC DR Roma, 1 (1934) 57.

Ambulare. The passing of a thing, a right or posses­sion, from one person to another or successively to several persons by a change in the legal situation.

Arnica. See paelex.

Castello, Matrimonio e concubinato (1940), 31, 41.

Amici Augusti. Outstanding persons, senators or knights (equit es), admitted to solemn receptions by the emperor. They have no official position. From Diocletian’s time the title amici Augusti was auto­matically granted to higher court officials.

Oehler, RE 1, 1831; Ciccotti, DE 1.

Amicitia (foedus amicitiae). A treaty of friendship between Rome and another state establishing peaceful and friendly relations.—See amicus populi romani.

Gallet, RHD 16 (1937) 235; Heuss, Klio, Beiheft 31 (1933) 12, 78; Paradisi, Scr Ferrini 2 (Univ. Sacro Cuore, Milan, 1947) 178; Manni, Rivista di filol. clas. 1949, 79.

Amicus populi Romani. A title granted by the senate to individuals who rendered special services to the Republic. A state with which Rome has a friendship treaty. See amicitia. A stronger degree of inter­national relations with Rome was that of societas, by which a foreign state became an ally (socius) of the Roman state (populi Romani) and was bound to give military aid in the event of war.

V. Ferrenbach, Die amici p. R. republikanischer Zeit, 1895.

Amovere. To purloin, put aside. The term has a milder color than furari (furtum committere — to steal) and is applied when there is no real theft, as, for instance, when important documents or things belonging to an inheritance are hidden by the heir. For amovere between spouses, see actio rerum amotarum.

Ampliatio. In Roman criminal procedure the reitera­tion of all the evidence when the jury declared that the case has not been sufficiently elucidated and required further (amplius) investigation.

Humbert, DS 1; Berger, OCD; Balsdon, Papers of the Brit. School at Rome, 1938, 109.

Amplissimus ordo. The senate.—See senatus.

Amplitude. A distinctive title of the highest func­tionaries in the later Empire (“your Excellency”).

Anastasianae leges. See leges anastasianae.

Anatocismus. The transformation of interest due and not paid into a new interest bearing principal. The term is unknown in juristic sources. Syn. usurae usurarum. Although forbidden, it was practiced in Cicero’s time as anatocismus anniversarius ( = an­nually compounded interest). Justinian forbade it definitely.

Leonhard, RE 1; Caillemer, DS 1.

Anatolius. A law professor in Beirut, one of the compilers of the Digest. Anatolius (the same?) is known as a commentator on Justinian’s Code.

Hartmann, RE 1, 2073; Berger, Вуз. 17 (1945) 1 (Bibl.).

Ancilla. A female slave.—See partus ancillae, PROSTITUERE.

De Ruggiero, DE 1; F. M. De Robertis, La огдапігзазіопе e la tecnica produttiva, 1946, 156.

Aneglogistus. Exempt from the duty of giving ac­count. The term is used on a guardian appointed in a testament and relieved by the testator from giving account of his administration of the ward’s property. The guardian was, however, liable for fraud in spite of the testator’s order.

Arangio-Ruiz and Colombo, Jour, of Juristic Papyrology 4 (1950) 121.

Angaria (angariae). Compulsory service in the im­perial post or in the transportation of persons or things in official business (cursus publicus). The same term indicates the animals (oxen, horses = veredi) as well as the carriages to be provided for that purpose. Later imperial legislation dealt with the organization of official transportation and postal service, which had become a great burden to land­owners.—C. 12.50.

Seeck, RE 1; Humbert, DS 1, 1659; Rostowzew, Klio 6 (1906) 249.

Angustus clavus. A narrow purple stripe on the tunic, a distinctive mark of the equestrian rank.—Ant. latus clavus (for senators).—See clavus latus.

Hula, RE 4, 6; De Ruggiero, DE 2, 306.

Animadversio (animadvertere). Any kind of punish­ment, but most often capital punishment. Animad­versio gladio (animadversio capitis) = decapitation. Animadversus = a man who was executed in con­formity to a death sentence.

Animalia. A distinction was made between wild ani­mals living in a natural state of liberty (ferae bestiae) and those who go away and come back to their former place (pigeons, bees, stags). The latter belonged to the occupant and as long as they retain the habit of returning to his property (consuetudo, animus re­vertendi). See FERAE, ANIMUS REVERTENDI, ACTIO

DE PAUPERIE.

Animalia quae collo dorsove domantur. Domestic animals of draft and burden (horses, oxen, asses, mules, but not elephants and camels). They are res MANCIPI.—See PECUS.

Animus. The intention (will) of a person concluding a transaction with another or acting unilaterally in order to accomplish an act with legal effects. Animus is also connected with certain wrongdoing in order to stress that the person acted intentionally (animus furandi, iniuriae faciendae, occidendi, etc.). With reference to last wills and testaments, the syn. term voluntas (testantis, testatoris) prevails. Intention is distinguished from what a person declared orally whether by solemn, prescribed words or informally or in writing. A contradiction between intention (animus, voluntas) and the words expressed (verba) might influence the validity of the act accomplished. After the archaic and preclassical periods of rigid formalism in legal transactions, the importance of the animus (voluntas) with regard to the validity of the act was gradually recognized already in classical time, although there is in the modern Romanistic literature a tendency to ascribe all occurrences of animus in Justinian’s codification, chiefly in the contractual do­main, to the emperor’s innovation or at least to post- classical origin. The tendency mentioned is doubtless an exaggeration though the interpolation of many texts in which the animus is emphatically stressed is beyond the question. The connection between animus and various legal institutions differs in intensity; its significance in the Roman doctrine of possession (animo possidere) is particularly well elaborated. Syn. with animus is sometimes affectio (affectus), sometimes mens, as in the phrase eo animo ut (ea mente ut) — with the intention that.—See voluntas and the following items.

Guarneri-Citati, Indice² (1927) 10; idem, Fschr Ko- schaker 1 (1939) 122; Donatuti, BIDR 34 (1925) ; Soko­lowski, Mel Cornil 2 (1926) ; Riccobono, ibid. 378; idem, ACDR Roma 1 (1934); Pringsheim, LQR 49 (1933) 45; Albertario, Studi 5 (1937) 125; Maschi, Studi sull'inter- pretasione dei legati. Verba e voluntas, 1938.

Animus adimendi legatum. See ademptio legati.

Animus contrahendi. (Or animus contrahendae obli­gationis.) Occurs in a few texts. Sometimes the type of the contract is specified: animus emendi, vendendi, transigendi, promittentis, stipulantium, compensandi, etc.

Animus damni dandi. The intention to damage a thing. It is used in connection with damages done to testaments.

Animus decipiendi. The intention to deceive (de­fraud) another.

Animus derelinquendi (derelinquentis). See dere­lictio.

Animus donandi. The intention to make a gift.— See DONATIO.

Pringsheim, ZSS 42 (1921) 273; Biondi, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 133.

Animus furandi (furis, furti faciendi). See furtum. Berger, BIDR 32 (1922, printed 1915) 182; Albertario, A.f. (1923, = Studi 3 [1936] 209).

Animus iniuriae (faciendae). See iniurta.

Animus intercedendi. See intercessio.

Animus legandi. See legatum.

Animus liberorum procreandorum. Procreation of children is considered to be an element of intent in concluding a marriage.

Animus lucrandi (lucri faciendi). See furtum.

Animus negotia aliena gerendi. See negotiorum GESTIO.

Riccobono, AnPal 3/4 (1917), 170; Rabel, Si Bonfante 4 (1930) ; Erhardt, in Freiburger Rechtsgesch. Abhand­lungen 5 (Romanist. Studien 1935).

Animus novandi. See novatio.

Guarneri-Citati, Indice 2 (1927) 11; Scialaj a, Si Perozzi⁹, 1925; Сотії, Mèi Fournier, 1907, 87; Hàgerstróm, Der rom. Obligationsbegriff 2 (1941) Beil. p. 199.

Animus occidendi. The intention to kill a man.

Animus possidendi. The term, common in literature, is rare in juristic sources, which also speak of animus possidentis, but mostly of animo adquirere possessio­nem or retinere possessionem.—See possessio.

Rotondi, BIDR 30 (1920) 1 (= Ser giur. 3, 1922, 94).

Animus recipiendi. Refers to the intention of a per­son acting on behalf of another without authorization (negotiorum gestor) to be reimbursed subsequently for his services.

Animus revertendi. Used of animals which have the habit of returning to their quarters. Thus, their owner does not lose ownership. See animalia. Similarly the master of a slave retained his power as long as the slave had the intention to return to the master.

Animus societatis. See societas.

Annalis actio (or exceptio). An action (or excep­tion) available for only one year to anyone who wished to make use of it. See actiones temporales. Both these remedies are of praetorian origin.

Anniculus. A one-year-old child.—See causae pro­batio.

Anniversarius. See anatocismus, canon.

Annona. Has different meanings which all, however, are somehow connected with the supply of provisions : the general supply of grain for the city of Rome, the free distribution of grain and bread to needy people, food for the army, food sold by the government to the people for cash, taxes in natural products, and, finally, the central administration of the food supply. Originally the responsibility for the provisioning of Rome was vested �?with the aediles, under the later Republic and in the Empire the cura annonae was enlarged under the supervision of the praefectus an­nonae assisted by a staff of auxiliary officials.—D. 48.12; C. 40.16.—See annona civica, annona MILITARIS, CURA ANNONAE, PRAE1ECTUS ÀNNONAE, PROSECUTOR, LEX IULI A DE ANNONA.

Schwahn, RE 7A, 76; Stevenson, OCD; Kalsbach, RAC 1 (1950),; Oehler, RE 1; Humbert, DS 1; Rostowzew, RE 7 (frumentum) ; De Ruggiero, DE 1 ; A. Segrè, Byz. 16 (1943) 392.

Annona civica (civilis). The supply of food from Egypt and Africa for the provisioning of Rome, and later of Constantinople. The term is also used to indicate the gratuitous distribution of food to the poor, also known as annona publica.—C. 11.25.—See FRUMENTATIONES, LEGES FRUMENTARIAE.

Van Berchem, Les distributions de blé etc. sous ГEmpire, 1939.

Annona militaris. Provisions supplied by the popula­tion in the provinces for the maintenance of troops and government officials. In the later Empire this, originally an emergency measure, became a perma­nent institution as a form of taxation in kind.— C. 12.38.

De Ruggiero, DE 1; A. Segre, loc. cit.; Van Bcrchem, Mem. de la Societe des Antiquaires on France 80 (1937) 117.

Annona publica. See annona civica.

Annonarius. (Adj.) Connected with food adminis­tration. See ANNONA.

Annua bima trima die. A frequent clause in legacies of annual payments (pensions): the bequeathed sum was to be paid over a period of three years in equal installments. The phrase also appears in sales when the price was to be paid in the same way.

Annus continuus. A full calendar year of 365 con­secutive days. Ant. annus utilis.

Annus utilis. A one-year period (365 days) not count­ing the days during which the party involved was unable to act in court for personal reasons (disease, captivity, absence in official business) or because of the absence of his adversary or the inactivity of the judicial authorities.—See dies utiles, tempus utile. Kiibler, RE 5A, 485.

Annuum. A payment or an allowance which recurs every year. Annua legata — legacies consisting of annual payments.—See legatum annuum.

Anonymus. An anonymous juristic writer of the late sixth century after Christ, author of a concise sum­mary (index) of the Digest which served as a basis for the compilation of the Digest portion of the basilica. He can be identified as the author of a collection of ecclesiastical and lay legal sources, the so-called Nomocanon 14 titulorum, and of a compila­tion of allegedly controversial rules in Justinian’s Digest. From the title of the latter work (Peri enantiophaneion), later Byzantine authors invented the name Enantiophanes of a jurist. The identity of the author of the Digest index and the compila­tions mentioned is controversial but without good reasons.

Peters, Die ostrbm. Digestenkommentare, BerSachGW 1913, 11; Spulber, Archives d'hist, du dr. oriental 1 (1937) 307; Pringsheim, Seminar 4 (1946) 21 (—BIDR 55-56, Post-Bellum, 1951, 302) ; Scheltema, Ri'D 30 (1952) 14.

Anquisitio. The earliest form of judicial trial in criminal matters conducted by a magistrate in the presence of an informal assembly of citizens (contio) who attended the whole proceedings, the examination of the accused and the hearing of witnesses, in order to be able to pass final judgment in case the accused appealed from the condemnation by the magistrate. An acquittal by the latter is final, however.

Hartmann, RE 1; Brecht, ZSS 59 (1939) 271.

Antecessores. Prominent teachers in the law schools of the late Empire.

Humbert, DS 1.

Antestatus. One of the solemn witnesses at a manci­patio in the earliest law. His role in the act is not quite clear and he disappeared soon (there is no mention of him in Gaius).

Leist, RE 1; Kaser, RE 5 A, 1025; Kunkel, RE 14, 999; De Ruggiero, DE 1, 491; Schupfer, RISG 47 (1910) 333; Bonfante, Corso di dir. rom. 2, 2 (1928) 138.

Anthianus. See furius anthianus.

Antichresis. An agreement between creditor and debtor by which the former was granted the right to use the thing pledged (land or house) and to obtain income therefrom in lieu of interest. The creditor might lease the property, live on it, or use it otherwise. He kept possession until the debt was paid.

Leonhard, RE 1; Manigk, Gldubigerbefriedigung durch Nutzung, 1910; idem, RE 20, 1276.

Antinomia. Justinian uses this Greek term, for which he did not find a Latin synonym, to indicate a con­tradiction between legal norms. He proudly, though mistakenly, stresses that his codification is free from contradictory statements {Deo auctore 8 = C. 1.17.1.8).

Antipherna. Gifts given by the husband to the wife as a counterpart to the dowry (in Greek pherne).— See DONATIO ANTE NUPTIAS.

Antiqui. As a noun, or as an adjective in connection with legum auctores, conditores, prudentes, etc., refers to former jurists, particularly those of more remote times. In Justinian’s language by antiqui the classi­cal jurists are meant.—See veteres, ius antiquum.

Antiquo. See a (abbreviation for antiquo). Antiquum ius. See ius antiquum, vetus ius.

Anulus. A ring. It was an old Roman custom that freeborn men wore rings signandi causa, i.e., for seal­ing written instruments they made or witnessed (e.g., last wills). Syn. anulus signatorius.—See ius anuli AUREI, EQUITES.

Apertissimus. Most evident, conclusive. It is one of Justinian’s favorite superlatives, often applied to means of evidence {apertissimae probationes).—See PROBATIONES.

Guarneri-Citati, Indice² (1927) 11.

Apertura testamenti (tabularum, codicillorum). In connection with the introduction of an inheritance tax (vicesima hereditatium), certain formalities were fixed for the opening of a last will in the pres­ence of a special official. From Hadrian’s time the competent office was the statio vicesimae. After the acknowledgment of the signatures and seals by' the witnesses, the testament was opened {aperire) and read aloud in public {recitatio testamenti). Later it was deposited in the archives together with a record of the whole act of apertura. Persons interested in the document were permitted to see it {inspicere) and to make a copy {describere).—D. 29.3 ; 6.32; 52.

Wenger, RE 2A, 2407; B. Biondi, Successione testamen­taria, 1943, 601; Arangio-Ruiz, FIR 1943, nos. 57, 58.

Apices. When used with a pertinent adjective, such as divini, sacri, augusti, indicates an imperial letter.

Apices iuris. Juristic subtlety, sophistry.

Apocha. A written receipt in which the creditor de­clares that he has received {“scripsi accepisse”) the sum due him. In Justinian’s law an apocha was fully valid only if it was not gainsaid within thirty days. Apocha publica = an official receipt issued for the payment of taxes. Syn. securitates.—C. 10.22.

Leonhard, RE 1; Paoli, NDI 1; Frese, ZSS 18 (1897) ; Appleton, St Scialoja 2 (1905) 503.

Apochae Pompeianae. Receipts on wax tablets found in 1875 in the house of a banker in Pompei.

Arangio-Ruiz, FIR (1943) 400.

Apostata. A person who abandoned the Christian faith. Penalties imposed on apostates by the Chris­tian emperors included infamy, loss of the right to make a last will or to take under one, and loss of the right to receive a donation. Constantine added confiscation of property for those who turned to Judaism.—C. 1.7.

Humbert, DS 1 (apostasie).

Apostoli. See appello. Syn. libelli dimissorii.— D. 49.6. See LITTERAE DIMISSORIAE.

Apparitores. Subordinate officials performing aux­iliary services in the offices of magistrates and im­perial officials, such as secretaries {scribae), mes­sengers {viatores), heralds {praecones). The ap­paritores normally served for longer periods of time and thus became valuable aides to their superiors who were appointed for one year only. Their influ­ence increased considerably during the Empire. They were organized in associations {collegia, de­curiae apparitorum). In the absolute monarchy they constituted an important element in the bureaucratic organization of the government. A series of im­perial constitutions of the fourth and fifth centuries dealt with the privileges and duties of the apparitores of the higher officials, as we learn from Justinian’s Code 12.52(53)—59(60); 61(62).—See immunes, DECURIAE APPARITORUM.

Habel, RE 2; Humbert, DS 1; De Ruggiero, DE 1; Waltzing, DE 2, 351, 369; Eliachevitch, La personnalite juridique, 1942, 241; Diill, ZSS 53 (1943) 393.

Appellatio (appello). An appeal by a litigant to a higher judicial court when the judgment of the lower one was not in his favor. Introduced in the extra­ordinary proceedings {cognitio extra ordinem) as a new procedural remedy, then gradually reformed, finally by Justinian, the appellatio developed into a general institution applicable to all judgments, in both civil and criminal matters, except those of the praetorian prefect and decisions of a merely admin­istrative character. Frivolous appeals were punished by pecuniary fines. Later, appellatio became syn. with provocatio, which in earlier times applied only to criminal cases.—D. 49.1-13; C. 7.62-70.—See CONSULTATIO, EDICTUM DE APPELLATIONIBUS, INIUS- tus, oratio marci, and the following items.

Kipp, RE 2; Hartmann, ibid.; Humbert, DS 1; Orestano, NDI 1; E. Perrot, L’appel dans la procedure de l^fordo iudiciorum, 1907; Lauria, AG 97 (1927); Sanfilippo, AnCam 8 (1934); Düll, ZSS 56 (1936) ; Wenger, RAC 1 (1942).

Appellator. The party to a trial who appeals from an unfavorable judgment.—See appellatio, apello.

Appellatorii libelli. See appello.

Appello. “I appeal/’ This word was pronounced by a litigant in order to announce that he was appealing from the judgment or decree of a magistrate to a higher court. When made in writing in so-called libelli appellatorii the appeal had to be filed with the judge of the lower court whose decision was being opposed. The latter then wrote a report (litterae dimissoriae, libelli dimissorii, apostoli) by which he “dismissed” the case and transmitted the appeal to the higher court through the intermediary of the appellator himself. Until the decision of the higher tribunal was rendered, the first judgment remained without effect.

Appius Claudius Caecus. A renowned jurist of about 300 b.c.

Münzer, RE 3, 2681; Schulz, History of Roman legal science (1946) 9.

Applicatio. See clientes, ius applicationis.

Apud. Connected with the name of a jurist (e.g., apud lulianum), used to introduce a specific opinion of the jurist, or of a critical or explanatory remark (nota) made by a later jurist to the opinion of an earlier one (e.g., apud Labeonem Proculus notat).— See NOTAE.

Sciascia, BI DR 49-50 (1947) 430.

Apud acta. See acta.

Apud iudicem. See in iure, in iudicio.

Aqua. Often employed for the servitudes of using water from or through another’s property. In this meaning it is syn. with ius (servitus) aquae. Dis­tinctions are made as to the time during which the right may be exercised. Thus aqua aestiva can be used only in the summer time, aqua cottidiana every day, aqua diurna only in the daytime, and aqua noc­turna at night.—D. 43.20; C. 3.34.—See servitus aquaeductus, servitus aquae haustus.

Aqua et igni interdictio. See interdicere aqua et IGNI.

Aqua pluvia. Rain water. See actio aquae pluviae arcendae, servitus stillicidii.

Aqua profluens. Flowing water. It ranks among the RES COMMUNES OMNIUM. See FLUMINA.

Aqua publica. (Syn. aqua in usu publico.) Flowing or stagnant water destined for the common use of the population of a community. The category em­braces waters in FLUMINA PUBLICA, LACUS, STAGNUM, FOSSA.

De Ruggiero, DE 1; E. Costa, Le acque nel diritto rom., 1919; Bonfante, Scritti giur. 4 (1926) 242; Μ. Lauria, AnMac 8 (1932) 243; G. Longo, RISG 1928, 244; idem, St Ratti, 1934, 57; Grosso, Scritti Santi Romano 4 (1940) 175.

Aquaeductus. Aqueducts for public use were under particular protection of the law. A decree of the Senate of 11 b.c., statutes (such as the lex quinctia) and frequent imperial enactments, especially in the later Empire, contained detailed provisions, backed by penal sanctions, designed to prevent damage to aqueducts.—Water conduits for private purposes were protected by interdicts.—C. 11.43.—See servi­tus aquaeductus, interdictum de aqua, actiones populares.

Leonhard, RE 2; Labatut, DS 1; De Ruggiero, DE 1, 537; Gianzana, NDI 1 (s.v. acque private); Herschel, The two books on thè water supply of Frontinus, New York, 1913; Kornemann, RE 4, 1784; Weiss, ZSS 45 (1925) 87; De Robertis, La espropriazione per pubblica utilità, 1936, 95; Riccobono, FIR I² (1941) 276.

Aquaeductus Venafranus. See edictum de aquae­ductu VENAFRANO.

Aquae haustus. See servitus aquae haustus.

Aquarius. A subordinate officer in the water admin­istration. In a private household, aquarius is usually a slave who takes care of the water supply.

De Ruggiero, DE 1, 587.

Aquila, lulius. A little known Roman jurist, con­temporary with Ulpian, author of a collection of responsa.

Berger, RE 10, 167.

Aquilia( Aquilia lex). See lex aquilia.

Aquiliana stipulatio. See acceptilatio, aquilius GALLUS.

Aquilius Gallus, Gaius. One of the most creative jurists under the Republic, praetor in 66 b.c. His name is linked with the introduction of the stipu­latio aquiliana and the actio doli.—See also POSTUMI AQUILIANI.

Klebs-Jòrs, RE 2, 327 ; Orestano, NDI 1 ; Beseler, BIDR 50 (1931) 314.

Ara. An altar for sacrifices located either in a temple, in any locus sacer, as a sanctuary, or in any other place. Along with the consecration of an ara, rules (lex arae) were issued concerning its use.

De Ruggiero, DE 1, 578.

Ara legis Hadrianae. The stone on which the inscrip­tion concerning the so-called Lex Hadriana was found (in Tunisia).—See lex manciana.

Riccobono, FIR I² (1941) 493.

Arbiter. In a judicial trial, in controversies which required specific professional or technical knowledge the magistrate could appoint an expert (arbiter) in­stead of a judge (iudex) so that the judgment should be rendered by someone better qualified than the average Roman citizen listed in the panel of judges (album iudicum). The discretionary powers of an arbiter in making his decision were not so severely restricted by the praetor’s instructions as in ordinary trials. The division of common property (communio)

or a common inheritance was assigned to an arbiter as was the establishment of boundaries between ad­joining lands. See ADDICERE, ADIUDICATIO, LEGIS

ACTIO PER IUDICIS ARBITRIVE POSTULATIONEM, IUDEX.

Wlassak, RE 2; De Ruggiero, DE 1; R. Düll, Der Güte­gedanke im röm. Civilprosessrecht, 1931; Kaser, Fschr Wenger 1 (1944) 115.

Arbiter datus (delegatus, pedaneus). A person ap­pointed by a judicial magistrate to examine a par­ticular point in dispute in a civil trial, e.g., to check accounts, to establish the solvency of a guarantor, or to calculate the quarta Falcidia (see lex falcidia). Wlassak, RE 2, 410.

Arbiter ex compromisso. An arbitrator chosen by voluntary agreement of the parties (compromissum) to decide their dispute. His decision (sententia, pro­nuntiatio arbitri) could be enforced only when the parties had, through reciprocal stipulations strength­ened by penalties, assumed the obligation of fulfilling the arbitrator’s judgment. Generally the duties of the arbiter were fixed in the parties’ agreement, the arbiter had more liberty, however, than a iudex bound by the formula in the formulary proceedings. The appointment of an arbiter is an extrajudicial arrangement; later it received protection of the prae­tor, who, by coercive measures, might compel the arbiter to carry out the duties conferred on him by the parties involved and assumed by him without the intervention of a magistrate.—See receptum arbitri, compromissum (Bibl.).

Arbitrari. The activity of an arbiter.

Arbitrarius. Depending upon the decision of the judge (iudex).—See ACTIONES ARBITRARIAE.

Arbitratus. See arbitrium.

Arbitratus (arbitrium) iudicis. See actiones arbi­trariae.

Arbitrium. A judgment, decision of an arbitrator. Syn. arbitratus. See arbiter. The entire proceed­ings ending with a decision by an arbiter is also called arbitrium, as is the interlocutory decision which could be handed down by the judge (iudex) in a civil trial (in literature arbitrium de restituendo) under authority of the clause in the formula (clausula arbitraria) : neque et res arbitrio trio (sc. iudicis) restituatur, see actiones arbitrariae.—See the fore­going entries, IURGIUM, RECEPTUM ARBITRI.

Wlassak, RE 2.

Arbitrium (arbitratus) boni viri. The judgment, opinion of an honest, upright man to whom a contro­versial point has been submitted.

Scaduto, AnPal 11 (1923) 24; Riccobono, Mel Cornil 2 (1926) 310; Albertario, Studi 3 (1936) 283, 329; Grosso, SDH I 1 (1935) 83; idem, Riv. di dir. commerciale 402 (1942) 227; Frezza, Nuova Riv. di dir. com. 2 (1949) 41. Arbitrium iudicis (iudicantis). See actiones arbi­trariae, ARBITRIUM.

Arbitrium liti(s) aestimandae. Proceedings for the estimation of the value of an object in dispute in money.—See litis aestimatio.

Kipp, RE 1, 687; Huvelin, Mel Gerardin, 1907, 319.

Arbitrium tutelae, actio (iudicium) tutelae. See tutor.—C. 5.57.

Arbores caedere. For conflicts arising in connection with the cutting of trees by a neighbor or by an unauthorized person, see interdictum de arboribus CAEDENDIS, ACTIO ARBORUM FURTIM CAESARUM.---------------

D. 43.27; 47.7.

Arca. A cash-box, in a larger sense the treasury of a community (arca municipalis) or of a public or private corporation (arca collegii). Arca publica is the treasury of Rome; its divisions connected with specific purposes are arca frumentaria, arca olearia, etc., for revenues and expenses resulting from the sale and purchase of grain, oil and the like. Area fisci (fiscalis, Caesaris) is the state treasury under the Empire. Arca praefecturae is a particular treas­ury under the administration of the praefectus prae­torio.

Habel, RE 2; Humbert, DS 1; Fuchs, DE 1, 627; Beseler, ZSS 46 (1926) 86.

Arca alimentaria. See alimentarius.

Arca collegii. The treasury of an association.—See COLLEGIUM.

De Ruggiero, DE 1, 629.

Arca fisci, praefecturae, publica. See arca.

Arca provincialis. The treasury of a province, sup­ported by contributions of the provincial municipali­ties primarily for religious expenditures and for the public games.

Arcadius Charisius. See charisius.

Arcarius. The treasurer (cashier) in an area. In public arcae, he is the chief officer in charge of the treasury.—C. 10.72.—See arca.

Habel, RE 2; Humbert, DS 1; Fuchs, DE 1, 633. Arcarius. (Adj.) See nomina arcaria.

Archiater sacri palatii. A physician-in-ordinary to the emperor and the imperial family.—C. 12.13.

Archiepiscopus. An archbishop.

Architectus. The profession of an architectus was considered one of the noblest liberal professions. An architectus who deceived his client in the accomplish­ment of the work ordered was prosecuted by an action similar to that against a dishonest land­surveyor. See AGRIMENSORES.

Area. See locus.

Arenarii. Men who hired themselves out for fights with wild beasts in the circus (arena). They were free men but were treated as slaves by their em­ployers, and belonged to the most despised social class. Pollack, RE 2.

Argentaria. A banker’s business. Syn. mensa argen­taria.

Argentarii. Bankers, owners of a banking firm. They performed various financial operations such as money changing, purchase and sale of coins, loans on in­terest, and on mortgage, and the like. Exact and honest bookkeeping was obligatory of them since their books (rationes) enjoyed public confidence (fides publica), and had to be produced (edere ra- tiones, editio rationum) in trials in which their clients were involved, as evidence even when the banker himself was not a party. The duty to produce their books in court was precisely formulated in the prae­torian edict, and a special action was granted against an argentarius who refused to do so. When suing his customer for a money debt (actio qua argentarius experitur) the argentarius had to deduct from his claim whatever he owed to the customer (agere cum compensatione) since, when he demanded “one penny more” (plus nummo uno), he lost the case because of pluspetitio.—Women were excluded from the banking business.—D. 2.13.—See mensa, relegare PECUNIAM.

Oehler, RE 2; Saglio-Humbert, DS 1; De Ruggiero, DE 1; La Fortuna, NDI 1; Voigt, ASächGW 10 (1888) 516; A. Rossello, Argentarii 1, 1891; Mitteis, ZSS 19 (1898) 203; R. Beigel, Rechnungswesen und Buchführung der Römer, 1904, 206; E. Levy, Privatstrafe und Schadenser­satz, 1915, 61; Platon, NHRD 33 (1909) 10; L. De Sarlo, Il documento come oggetto dei rapporti, 1935, 257; Solazzi, Compensazione 2 (1950) 31.

Argentum. (1) Silver money; (2) the silver objects in a household. They might be altogether the object of one legacy (argentum legatum).—D. 34.2; C. 10.78.

De Ruggiero, DE 1.

Arguere. To accuse (and generally, to convict) a person of a crime.

Argumentum. A general term for all means of evi­dence. See PROBATIO, ARRA.

Aristo, Titius. A Roman jurist, member of the council of the emperor Trajan, author of annotations (notae) to the works of some jurists of the Augustan period. See DECRETA FRONTIANA.

Orestano, NDI 1, 206; Mommsen, Jurist. Schriften 2 (1905) 22; Sciascia, BIDR 49-50 (1948) 415.

Arma. See vis armata, telum.

Arra (arrha). A sum of money or a thing (a ring, for instance) given as an earnest at the conclusion of a sale. In the classical law it was considered a means of evidence only (argumentum emptionis contractae). The origin of the institution lies in Greek sale prac­tices. In Justinian’s law the buyer might withdraw from the purchase by forfeiting the arra, whereas the seller had to double the amount he received from the buyer if he wanted to cancel the sale. This function of the arra—the parties’ right to cancel the sale. (hence the name arra poenitentialis in literature)— evidently was excluded when the formalities set by Justinian (written deed, intervention of a notary) had been completed.

Foligno, NDI 1; G. Calogirou, Die a. im Vermögensrecht, 1911; Senn, NRHD 37 (1913) 571; F. Bergold, Gesch. und Wesen des arrhabo und der a., Diss. Erlangen, 1923; Cornil, ZSS 48 (1928) 55; E. Popesco, La fonction peni- tentielle des arrhes dans la rente, 1925; Carusi, St Bonfante 4 (1930) 503; J. Partsch, Aus nachgelassenen Schriften, 1931, 262; Levy, Symb Frib Lenel, 1931, 133; Simonetos, Fschr Koschaker 3 (1939) ; Massei, BIDR 48 (1941) 215; Steinwenter, RAC 1 (1943) ; F. De Zulueta, The Rom. Law of sale, 1945, 22; F. Pringsheim, The Greek lazv of sale (Weimar, 1950) 333.

Arra sponsalicia. See sponsalia.—C. 5.1.

Koschaker, ZSS 33 (1912) ; Cornil, ZSS 48 (1928) ; Volterra, RISG 2, 4, 5 (1927-1930) ; Grattier, Dictionnaire de droit canon. 1 (1935) 1050.

Arrianus. A Roman jurist of the classical period, known only as the author of a monograph on inter­dicts.

Jors, RE 2, 1229.

Arrius Menander. A Roman jurist who lived under Septimius Severus and Caracalla (early third cen­tury) and was a member of their councils (consilia). He is the author of a treatise on military law (De re militari).

Jors, RE 2, 1257.

Ars magica. See magia.

Artes liberales. See operae liberales, studia li­BERALIA.

Articulus. A legal rule or a special provision in a written legal enactment.

Artifices. Artists versed in fine arts or skilled in the practice of a manual art. They were exempt from compulsory public services (munera) in order to be given the opportunity of developing their knowledge and skillfulness and of instructing others. A consti­tution of the Emperor Constantine of a.d. 337 (C. 10.66.1) contains a list of some forty professions entitled to such exemptions. Along with physicians and veterinarians there are mentioned painters, sculptors, architects, goldsmiths, silversmiths, potters, armorers, glaziers, fullers, carpenters, etc.

Arvales fratres. Arvai brethren, a group of twelve priests of senatorial origin whose duty it was to ob­serve certain rituals and to perform sacrifices in honor of the goddess Dea Dia and the deities wor­shipped as protectors of agriculture. Protocols of their priestly functions are preserved epigraphically. After the reorganization of the college of Arvais by Augustus their activity was more and more devoted to the glorification of the Emperor (who was auto­matically a member of the group) and his family.

As. A Roman coin, originally of one pound of bronze (as libralis). As a monetary unit the as was divided into twelve unciae. In juristic language, the term served as a conception of a whole; hence an heir who inherited the entire estate was named heres ex asse. Similarly, parts of an inheritance were indicated by the corresponding terms used for an uncia and its multiples. Heres ex semisse was an heir whose share was a half of the estate. In general, the term involves the whole of an object referred to, as, for instance, a legacy ex asse or ex asse possidere. In later times the as was reduced to four, and then to two ounces (unciae).—See ASSIS DISTRIBUTE), uncia.

Kubitschek, RE 2Capito. See capito.

Athanasius. A Byzantine jurist of the second half of the sixth century, author of an epitome of Jus­tinian’s Novels (about a.d. 572) systematically ar­ranged in 22 titles.

Edition: C. G. E. Heimbach, Anecdota 1, 1838; Berger, BIDR Suppl. Post-Bellum, 55/56 (1951) 135.

Athleta. Athletes who exercised their profession for the sake of glory and bravery (gloriae et virtutis causa) were granted certain privileges, such as ex­emption from public charges (munera) and taxes. The Lex Aquilia does not apply when an athleta killed his adversary in the fight by accident because the element of iniuria was lacking. See lex aquilia. Unlike actors and gladiators, athletes enjoyed high esteem.—C. 10.54.

Atilianus tutor. See lex atilia.

Atilicinus. A jurist of about the middle of the first century after Christ.

Joers, RE 2; Ferrini, Opere 2 (1929) 87.

Atilius. An unknown jurist of the second century b.c. See SEMPRONIUS.

Atrox. Atrocious, dreadful. The attribute is applied to certain crimes accomplished with particular vio­lence and cruelty, hence involving greater culpability and more severe punishment.

Atrox iniuria. See iniuria atrox.

Atrox vis. See vis.

Attestatio. Unknown in the classical juristic language, the term is used in later imperial constitutions in the sense of testimony. Syn. testatw, testimonium.

Auctio. A public sale by auction. It was applied in certain cases. See sectio bonorum, bonorum ven- ditio. When the auction was in the interest of the state, the auctio was performed by a quaestor, whereas when the sale of the property of an insolvent debtor was ordered at the request of his private creditors, a representative of the latter managed the sale. The owner himself might initiate a public sale of his prop­erty on his own behalf. The conditions of the auctio were publicly announced (praedicere); the assign­ment to the highest bidder addicere.—See hasta, SUBHASTATIO, LICITARI.

Leist, RE 2, 2270; Humbert, DS 1; Platon, NHRD 33 (1909) 137.

Auctor. A person who by giving his approval, i.e., exercising his auctoritas, made valid the transaction of another person who was not able to conclude a transaction by himself. Such a person acting as an auctor was primarily the guardian (tutor) who aucto­ritatem suam interponit to the transaction concluded by his ward by declaring: auctor fio (“I approve”). Of the legally incapable ward it is said that he acts tutore auctore. Auctor is also used for the prede­cessor in title who transfers his right on another (a seller, for instance) and through the transaction as­sumes the guaranty that the acquirer will not be evicted from the thing transferred.—See laudare AUCTOREM.

Auctor. In penal law, the person by whose influence, instigation or order, a crime was committed.

Humbert, DS 1.

Auctor legis. The proposer of a statute. Syn. rogator. Similarly, an emperor is named as auctor senatus­consulti, i.e., of the senatusconsult decreed on his proposal. Of the senators who by their auctoritas (approval) promote the passage of a law in the popular assemblies, it is said patres auctores fiunt.— See AUCTORITAS SENATUS.

Auctorati. Persons who hired themselves out for fighting as gladiators. Their condition was not far from that of slaves.—See arenarii, gladiatores. Kiibler, DE 1, 769.

Auctores. With or without the qualifiers iuris, or iuris scientiae, or scholae — jurisprudents.

Humbert, DS 1.

Auctoritas. Authority, prestige; it is rather a moral power than a legal one. The term is used with re­gard to groups or persons who command obedience and respect. In this sense, legal and literary texts speak of auctoritas of the people (populi), of the emperor (principis), of the magistrates, judges, and jurisconsults, of a father or parents, as well as of that of a statute, of the law in general or of judicial judgments. A legally technical meaning auctoritas acquired in some fields of the private and public law. The significance of auctoritas varies according to the context in which it is used. Thus, in private law auctoritas occurs when a tutor acts as an auctor giv­ing his assent (auctoritatem interponere) to a trans­action concluded by his ward (pupillus) or by a woman under his guardianship. By his auctoritas he gives legal weight to the transaction. Auctoritas is also the guaranty assumed by the vendor when trans­ferring his property.—See auctor, actio auctori­tatis, DENUNTIATIO EX AUCTORITATE, and the follow­ing items.

Leist, RE 2; Bozzi, NDI 1; Heinze, Hermes 60 (1925) 348; De Visscher, RHD 1933, 603 {—Nouvelles Etudes, 1949, 141) ; idem, La jurisprudence romaine et la notion de l’auctoritas, Recueil Geny 1 (1934) 32; idem, RHD 1937, 573; F. Fürst, A. im Privat- und öffentlichen Leben der röm. Republik, Diss. Marburg, 1934; F. Schulz, Prin­ciples 1936, 164; Kahrstedt, Das Problem der a., Göttin- gische Gelehrte Anzeigen 200 (1938) 17; R. Heinze, Vom Geist des Römertums (1938) 1; Wagenvoort-Tellen- bach, RAC 1 (1943); Staedler, ZSS 61 (1941) 77, 100; 63 (1943) 384; H. Levy-Bruhl, Ann. Univ. Lyon 1942 (=Nouvelles Etudes, 1947, 14); De Francisci, Arcana imperii, 3, 1 (1948) 245 (Bibl.) ; Amirante, St Solazzi (1948) 375; Brasiello, ibid. 689; Schönbauer, St Wien, 224, 2 (1946) 68; P. Noailles, Fas et ius (1948) 223; idem, Du droit sacre au droit civil, 1950, 236; Magdelain, RIDA 5 (=Mel De Visscher 4, 1950) 127; Roussier, RHD 29 (1951) 231.

Auctoritas patris. The approval by, the authority of, the head of a family (pater familias).

Solazzi, lura 2 (1951) 133.

Auctoritas patrum. The ratification of statutes (and elections) voted in the popular assemblies by the senate (patres auctores fiunt). The word “patrum” is reminiscent of the original senate composed of patricians. Originally given subsequent to the vote of the comitia, the auctoritas patrum became later rather a mere formality when the procedure was changed and the senate gave its authorization before the matter passed to the comitia or concilia plebis.— See AUCTORITAS SENATUS, SENATUS, LEX MAENIA, LEX VALERIA HORATIA.

Lengle, RE 6A, 2467; O’Brien-Moore, RE Suppl. 6, 668, 677; Humbert, DS 1; Biscardi, BI DR 48 (1941) 403; Guarino, Studi Solazzi (1948) ; Biscardi, RHD 29 (1951) 151.

Auctoritas populi. Mentioned in cohnection with ADROGATio for the validity of which the approval by the people assembled was necessary.

Auctoritas praefecti (praesidis). The personal au­thority and influence of the prefects (particularly of the praefectus praetorio) or of the provincial gov­ernors.

Auctoritas principis (principalis). The use of aucto­ritas with reference to the emperor first appears in the autobiography of Augustus (see res gestae) in which he affirms, after having transferred the res publica to the senate and the people and after having received the title Augustus (January, 27 b.c.) : “I was superior to all others in authority (auctoritate praestiti), but I had no more power (potestas) than my colleagues in the magistracy.” Auctoritas means here personal authority, moral and social influence, while potestas embraces legal power. Auctoritas has no specific legal content, although after Augustus it entered the official terminology. Generally speaking, it is the personal prestige, the authority,· the high esteem which the emperor enjoyed as the first citizen in the state (princeps). It gave all his acts and orders a particular importance and significance in legislative, judicial, and administrative fields. Sena- tusconsults were issued ex auctoritate principis and the authorization of the jurists to give answers to legal questions addressed to them (ius respondendi) was referred to the auctoritas principis. In a few texts the auctoritas of certain emperors is stressed (Hadrian, Septimius Severus). Some emperors de­fine their auctoritas as the source of their commands and decisions (ex auctoritate nostra) or underline the auctoritas of their rescripts and enactments. Thus their auctoritas is transferred to their ordinances themselves. Through the increasingly binding force of the imperial constitutions, the frequency of ad­ministrative orders of the emperors, and the privi­leges and distinctions granted to individuals by them, the content of auctoritas principis went beyond the mere personal authority and assumed sometimes the aspect of sovereignty. The term was never legally defined, not even under the absolute monarchy, al­though it is very frequent in imperial constitutions of the fourth and fifth centuries.—See constitutiones PRINCIPUM, PRINCEPS.

A. v. Premerstein, Vom Wesen und Werden des Prin­zipats, 1937; Kiibler, KrVj 30 (1938) 29; A. Magdelain, A.p., 1947; P. De Francisci, Arcana imperii 3, 1 (1948) 303; Kunkel, ZSS 66 (1948) 437; M. Grant, From im­perium to auctoritas, 1946, 424; Pugliese and Carratelli, La parola del passato 10 (1949) 29; Last, J RS 40 (1950) 119.

Auctoritas prudentium. See auctoritas.

Auctoritas rei iudicatae, auctoritas rerum similiter iudicatarum. See res iudicata.

Auctoritas senatus. The previous or subsequent ap­proval by the senate of statutes or elections voted in the popular assemblies. It is syn. with auctoritas patrum in the earlier centuries of the Roman history. In the later Republic the term is applied to those de­crees of the senate which did not become senatus­consulta because of a formal defect or the inter­cession of a magistrate. In phrases like auctoritas senatusconsulti, auctoritas means the same thing as in references to statutes or other enactments.—See SENATUSCONSULTUM, AUCTORITAS, LEX PUBLILIA PHI­LONIS, AUCTORITAS PATRUM, INTERCESSIO.

Leist, RE 2, 2275; O’Brien-Moore, RE Suppi. 6, 718; Humbert, DS 1, 545; Volterra, NDI 12, 44; Kunkel, ZSS 66 (1948) 437.

Auctoritas tutoris. The cooperation (consent) of the guardian in transactions concluded by the ward (an impubes, a woman).—Inst. 1.21; D. 26.8; C. 5.59.— See AUCTORITAS, TUTELA.

Sachers, RE 7A, 1554; Solazzi, ANap 57 (1935) 212;. idem, SDH I 12 (1946) 7; De Visscher, ibid. 9 (1943> 116; Solazzi, lura 2 (1951) 133.

Audientia. Unknown in the language of the classical jurists the term is used in later imperial constitutions for legal proceedings, the judgment included.

Albertario, SDHI 2 (1936) 161.

Audientia episcopalis. See episcopalis audientia.

Auditores. Law students attending the lectures of jurists. A group of pupils of the jurist Servius Sulpicius Rufus appears in the Digest as auditores Servii.

Auditorium. The audience hall in the imperial palace, used also as a court room. Later auditorium often means the court itself, sometimes even not an im­perial one.

Kubitschek, RE 2; Humbert, DS 1.

Aufidius Chius. An unknown Roman jurist, of the first post-Christian century, mentioned only once in the Digest.

Jors, RE 2, 2291 (no. 17).

Aufidius Namusa. One of the last Roman jurists un­der the Republic, a pupil of Servius Sulpicius Rufus and the editor of an extensive work composed of excerpts from the writings of Servius’ disciples (audi­tores Servii). See AUDITORES.

Jors, RE 2, 2294 (no. 31) ; Kiibler, RE 4A, 858.

Aufidius Tucca. Another of the pupils of Servius Sulpicius Rufus, like Aufidius Namusa.—See audi­tores.

Jors, RE 2, 2296 (no. 39).

Augures. A college of high priests among the sacer­dotes populi Romani. Originally they were only three, but later their number gradually increased until 15 (16?). Certain priestly rituals were in their exclusive competence, in particular the interpreta­tion of all kinds of auspices (auspicia, auguria) on any occasion when consultation of the will of the gods was obligatory (the appointment of high priests, of the flamen Dialis or of high magistrates [= in­auguratio], the opening of comitia meetings, the per­formance of an important public action). Besides these official augures (augures publici), there were numerous augures privati, both in Rome and in Italy, who assisted citizens in their private auspicia. See AGRIMENSORES, LEX DOMITIA, AUSPICIA, LEX OGULNIA, TEMPLUM, IUS AUGURIUM, COMMENTARII SACERDOTUM, DIVINATIO.

Wissowa, RE 2; idem, Religion und Kultus der Romer, 1902, 450, 523; Muller and Waszink, RAC 1, 975; Spinaz- zola, DE 1; F. David, Le droit augural et la divination officielle chez les Rom., 1905; H. Baranger, La theorie des auspices, These, Paris, 1941, 102; Coli, SDHI 17 (1951) 73.

Augusta. An honorary title of the emperor’s wife conferred by the senate. The first Augusta was Livia, Augustus’ wife; the title was conferred on her after her death. Exceptionally, the title was given also to a daughter of the emperor.

Neumann, RE 2, 2371; De Ruggiero, DE 1, 925.

Augustales. Persons associated in colleges devoted to the cult of Augustus. They were either priests (sodales Augustales, in Italian municipalities seviri [sexviri] Augustales) or private individuals cor­porate in a collegium (corpus) Augustalium.

Neumann, RE 2; Humbert, DS 1; v. Premerstein, DE 1, 828,834; L. R. Taylor, TAmPhilolA 45 (1914) 238; Nock, Mèi Bides 2 (1934) 627; Hammond, OCD (1949) 783.

Augustalis. See praefectus augustalis.—D. 1.17; C. 1.37.

Augusti. Two emperors, each being simultaneously head of the state.—See consors imperii.

Augustus. An honorary title conferred on the first Roman emperor, the founder of the Roman Princi- pate, C. lulius Caesar Octavianus (27 b.c.-a.d. 14), and then given by the Senate to his successors. It became later the usual title of the emperors. Jus­tinian called himself Semper Augustus.—See con- SORTES IMPERII.

Neumann, RE 2; Schònbauer, Sb Wien, 224, 2 (1946) 67; M. Grant, From imperium to auctoritas, 1946, 444 (Bibl.).

Augustus. (Adj.) Connected with, or originating from, the emperor. The word occurs frequently in imperial constitutions.—See domus augusta.

A (ulus) Agèrius. In Gaius’ Institutes this fictitious name is used in the formulae of several actions for the plaintiff (is qui agit, hence Agerius). The de­fendant appears there as N(umerius) Negidius, an imaginary name originating in the words numerare and negare, since the defendant is the man who has to pay and normally denies the plaintiff’s claim. Wlassak, RE 1, 794.

Aurea. Golden words (sentences). It is the second title of Gaius’ Res Cottidianae, probably added to the work in a later time.—See gaius, res cotidianae.

Aureus. A Roman gold coin of high value. As a monetary unit it was introduced by Caesar, equal to one hundred sesterces. Its gold content gradually diminished with the various monetary reforms. In Justinian’s legislation it was substituted for one thousand sesterces (sestertium) in classical texts. Syn. SOLIDUS.

Lenormant, DS 1 ; Cesano, Bull, della Commissione archeol. comunale di Roma, 5, 6 (1929, 1930) ; Mattingly, OCD 210 (s.v. coinage) ; M. Bahrfeldt, Die rom. Gold- munzenprdgung, 1923.

Aurum argentumque. A special tax imposed on merchants once in five years. Syn. collatio lustralis. Ferrari, AVen 99, 2 (1939/40) 193.

Aurum coronarium. A conquered country had to provide the victorious Roman general an amount in gold as a contribution to be used for the manufac­turing of a crown for the triumphant commander when he returned to Rome.—See triumphus.—C. 10.76.

Kubitschek, RE 2 ; Humbert, DS 1 ; Moschella, NDI 4 (s.v. coronarium aurum) ; Schubart, Arch, fiir Papyrus- forschung 14 (1941) 44; T. Klausen, Mitt. Deutsch. Archdol. Inst. Rom, Rom. Abt. 59 (1944, published 1948) 129; idem, RAC 1, 1014; Lacombrade, Rev. etudes an­cienne s 51 (1949) 54.

Aurum tironicum. See temo.

Kubitschek, RE 1; Humbert, DS 1.

Aurum vicesimarium. See vicesima manumissi­onum.

Auspicato. After having obtained approval of the gods through favorable auspicia.

Auspicia. The observation of certain natural phe­nomena by competent priests (augures) in order to explore whether or not the gods approve an impor­tant public action about to be launched. When the signs observed {ex coelo = from the sky, such as thunder, ex avibus = from the flight of birds, ex tripudio = feeding chickens from a tripedal vessel, etc.) were interpreted by the priests in an unfavor­able sense, the action was dropped. The right to order auspicia {ius auspiciorum) was a prerogative of the higher magistrates and was sometimes misused in order to thwart an action proposed by another magistrate. The non-observance of auspicia or action in defiance of an unfavorable prediction {contra aus­picia facta) might lead to the annulment of the whole action by the competent magistrate.—See OBNUNTIATIO.

Wissowa, RE 2; idem, Religion u. Kultus der Römer, 1902, 454; Bouche-Leclercq, DS 1; Stella-Maranca, NDI 1; Ericsson, Arch, für Religionswiss. 33 (1936) 294; H. Baranger, La theorie des auspices, These, Paris, 1941; Coli, SDHI 17 (1951) 96.

Authenticum. The original of a written document. Authenticae tabulae testamenti = the original written will of a testator.—Ant. tabulae descriptae ( = a COpy). See EXEMPLUM.

Authenticum (or Authenticae sc. Novellae). A col­lection of 134 Novels promulgated by Justinian be­tween a.d. 535 and 556, after the publication of the second edition of his Code. The Greek Novels are translated into Latin therein, not always quite cor­rectly. The date (eleventh century?) and place of the origin of the Authenticum are unknown. It was first considered a forgery, but the Law School in Bologna established its authenticity (hence the name Authenticum).—See novellae iustiniani.

Tamassia, AV en 1908; Scherillo, ACSR 1935; Index titu­lorum Authentici in novem collationes digesti, Sem 2 (1944) 82.

Auxilia. Military units recruited in the provinces from men lacking Roman citizenship {peregrini) and therefore excluded from service in the legions. The auxiliarii (= the soldiers of the auxilia) were dis­charged after twenty-five years of service {missio honesta). On that occasion they were granted Roman citizenship in a document called a diploma.

De Ruggiero, DE 1, 952; Corpus Inscr. Latinarum 16; Riccobono, FIR P (1941) 223; Porteous, OCD; G. L. Cheesman, The a. of the imperial army, 1914; R. Marichal, L’occupation rom. de la Basse Egypte. Le Statut des auxilia, 1945.

Auxiliarii. See auxilia.

Auxilium. The assistance, protection given by the plebeian tribunes, first to plebeians only and later to

all citizens, against wrongful acts of the magistrates. See TRIBUNI PLEBIS, INTERCESSIO.

Aversio. Emere per aversionem {in aversione or aversione) to buy with a lump sum.

Avulsio. The term does not appear in Roman juristic language, but is familiar in literature. It indicates a piece of land carried away from its owner’s property by flowing water and attached to another’s land.— See ALLUVIO.

Leonhard, RE 2; Pampaloni, Scritti 1 (1941) 431 (ex 1884), 507 (ex 1885) ; idem, StSen 43 (1929) 214.

Azo (Azzo). A famous glossator (see glossatores), professor in the Law School in Bologna (1190-1229), renowned for his commentary to Justinian’s Code {Summa Codicis).

Orestano, NDI 2, 172 (s.v. Azzone) ; Maitland, Select passages from the works of Bracton and Azo, 1895.