Roman Law Terms with Letters C

C. Abbreviation for condemno.—See A.

Cadaver. A dead body. Burning or burying a corpse within the boundaries of the city of Rome was pro­hibited by the Twelve Tables. An insult to the body, before or during the funeral, was considered an insult to the heir, who had the actio iniuriarum directly against the offender since “a contumely done to the deceased concerns the heirs’ reputation” (D.

Cadavera punitorum. The bodies of persons con­demned to death and executed; these must be deliv­ered to their relatives for burial.—D. 48.24.

Cadere causa. To lose a case in court, primarily for an excessive claim (plus petere).—See pluspetitio. Caduca. Testamentary dispositions made in favor of persons who, according to certain statutes (leges caducariae), were incapable of acquiring under a will. The term indicates also the inheritance itself or the legacy which became vacant because of the incapacity of the heir or legatee or because of other reasons (death of the beneficiary before the opening of the testament or his refusal to accept the gift). Dis­positions which became void during the testator’s life

are styled in causa caduci. The treatment of caduca and the things in causa caduci was identical: they were assigned to persons who benefited by the testa­ment if they had children, If such heirs or legatees were lacking the caduca went to the “treasury of the Roman people” (aerarium, later fiscus). Already in the later Empire some cases of caduca were abolished. In an extensive constitution Justinian abrogated the whole institution of caduca (“De caducis tollendis,” C.

Leonhard, RE 3 (s.v. bona c.) ; Humbert, DS 2 (s.v. bona c.) ; Barbieri, St Bonfante 1 (1929) 565; Levet, RHD 14 (1935); v. Bolla, ZSS 59 (1939) 546; Vaccaro Delogu, L’accrescimento net dir. ereditario, 1941, 145; Solazzi, SDHI 6 (1940) 165; idem, ANap 61 (1942) 71; B. Biondi, Successione testamentaria, 1943, 143; Besnier, RIDA 2 (1949) 93.

Caducorum vindicatio. The claim of a beneficiary to whom vacant parts of an inheritance or vacant lega­cies were awarded.—See caduca, coelibes, orbi.

Caecilius Africanus. See africanus.

Caecus. Blind (caecitas — blindness). A blind man could not witness a written testament. He was also unable to assume a guardianship.—See testamen­tum caeci.

Caelebs, caelibatus. See coelebs, coelibatus.

Caelestis. Celestial, divine. Referred in the later Empire to the emperor’s enactments or letters.

Caelius Sabinus. A Roman jurist (consul in a.d. 69), who was the head of the Sabinian group. He wrote a commentary on the aedilician edict.—See sabini- ANI, EDICTUM AEDILIUM CURULIUM.

Jors, RE 3. 1272 (no. 32).

Caelum (coelum). The aerial space over a private or public property (supra locum, caelum agri). Al­though air is not in private ownership, the immediate space over any property must remain free (liberum) from another’s interference in so far as its use, neces­sary to the owner, is impaired by a neighbor or anybody else.—See fumus, proiectio, servitutes LUMINUM, AER.

Pampaloni, Sulla condizione dello spazio aereo, AG 48 (1892) 32; Bonfante, Corso di dir. rom. 2, 1 (1926) 219. Caesar. The name was originally a cognomen ( = sur­name) of the emperor Augustus as adoptive son of C. lulius Caesar and was used as such by the mem­bers of his adoptive family.

Neumann, RE 3, 1287.

Caesariani. Originally all servants in the imperial household were so termed. Later the term was ap­plied to subordinate fiscal officials, concerned pri­marily with the seizure (confiscation) of property.

Calata comitia. See comitia calata.

Calator. A slave assigned to the personal service of his master and at his disposal on call. Calatores (kalatores) were also servants of the members of pontifical guilds.

Samter, RE 3; De Ruggiero, DE 2.

Calculus. In Justinian constitutions, the judgment of a judge or an arbitrator. In the meaning of calcula­tion (reckoning) calculus is syn. with computatio.— C. 2.5.-------- See ERROR CALCULI.

Solazzi, RendLomb 58 (1925) 307.

Calendarium. See kalendarium.

Calliditas. Shrewdness.—See stellionatus.

Callistratus. A Roman jurist, presumably of Greek origin. He lived under Septimius Severus and Cara­calla, and wrote Institutiones, Quaestiones, and works on criminal and fiscal law. The term edictum moni­torium which appears in the title of one of his writ­ings, is not clear.

Kotz-Dobrz, RE Suppl. 3; Orestano, NDI 2; H. Krüger, St Bonfante 2 (1930) 327; J. B. Nordeblad, Index ver­borum quae Callistrati libris continentur 1 (A-Is), Lund, 1934; Schulz, History of Rom. legal science, 1946, 193.

Calumnia. Trickery, deception in legal transactions or in the interpretation of legal norms or of mani­festations of will. In a technical sense calumnia re­fers to both civil and criminal matters. In the first case it is a malicious vexation (vexare) of a person with suits (litibus) “brought merely in order to trouble the adversary and with the hope for success through a mistake or injustice of the judge” (Gai Inst.

Hitzig, RE 3; Humbert, DS 2; Lauria, NDI 2; G. Maier, Prätorische Bereicherungsklagen, 1932, 55; E. Levy, Vom römischen Anklagevergehen, ZSS 53 (1933) 151; Lauria, St Ratti, 1934, 97.

Calumnia notatus. A person convicted of crimen calumniae (malicious accusation).—See calumnia, CALUMNIATOR.

Calumniari. To commit calumnia.—See calumnia, CALUMNIATOR.

Calumniator. A person “who harasses others with suits brought through fraud and deception,” D. 50.16.233 pr. (calumniari). A calumniator proved and pronounced guilty of crimen calumniae was ex­posed to various penalties.—D. 3.6; C. 9.46.—See CALUMNIA.

Calumniosus. Involving calumnia.—See calumnia, ACTIO CALUMNIOSA.

Cancellare. To mark crosses over a written document (a testament, a promissory note) in order to annul it. Sanfilippo, AnPal 17 (1937) 133.

Cancellarii. Auxiliary officials in the chancery of a high functionary, charged with secretarial services. They seem to have been of importance in the offices of the provincial governors.—C. 1.51.

Candidati. Members of the body-guard of the emperor (in the later Empire). They are first mentioned in a.d. 350.

Seeck, RE 3, 1468.

Candidatus. An aspirant to a magistracy. The com­petitors for a magisterial post appeared in public during the electoral period in glittering white togas (toga candida, hence the name candidatus), sur­rounded by friends and slaves, to appeal for the support of the voters. Unfair practices were for­bidden and punished if they constituted the crime of AMBITUS. See moreover LEX POMPEIA, NOMEN­

CLATOR, PROFESSIO (in elections).

Kübler, DE 2.

Candidatus Caesaris (or principis). A candidate rec­ommended by the emperor to the senate for an offi­cial post. The following appointment by the senate was a mere formality. The emperor’s recommenda­tion was considered a distinction; it is found as such in numerous inscriptions.—See quaestores candi­dati PRINCIPIS.

Kubitschek, RE 3, 1469; Kübler, DE 2, 65.

Canon. The term (of Greek origin and unknown in Justinian’s Institutes and Digest) appears in two different meanings in later imperial constitutions and Justinian’s Novels: (1) a regular annual payment of a fixed (fixus) amount as a rent in a lease for a long term or in perpetuity (emphyteusis) or as a land-tax paid to the state. As a tax it was only exceptionally increased or lessened (see peraequatio) by the tax assessors.

Humbert, DS 1; L. Wenger, SbWien 220, 2 (1942); Berger, Fschr Schulz 2 (1951) 9.

Canon anniversarius. A tax or duty paid per annum. The term appears with reference to an impost paid by Jewish synagogues.

Canon aurarius. A tax or duty paid in gold. Ant. canon frumentarius = a tax or duty paid in kind.— C. 11.23.

Canon emphyteuticarius (emphyteuticus). The an­nual rent paid by an emphyteuta to the landlord (the emperor or a private individual) in a lease in per­petuity or for a long term.—See emphyteusis.

Canon frumentarius. See canon aurarius.

Canones ecclesiastici. The rules of the Church (ec­clesiastical laws).

B. Biondi, Giustiniano Primo, principe e legislatore catto­lico, 1936, 92. �?

Canones largitionalium titulorum. See largitio­nalia.—C. 10.23.

Canonica. Regular taxes (duties) paid by the pos­sessors of fundi emphyteuticarii or of land belonging to the private patrimony of the emperor.

Canonicarius. A collector of taxes (canones).

Seeck, RE 3; Wenger, Canon (see above), 46.

Canticum. A defamatory poem. Syn. carmen famo­sum.

Capacitas. (Adj. capax.) A general conception of legal capacity is unknown to the Romans. The term is used only with reference to certain acts or legal transactions. Elsewhere capacitas is expressed by ius (= the right to do something) or by a specific term, as, for instance, the capacity to make a will = testa­menti factio. More frequent is the use of the adjec­tive capax (= capable, able) to denote physical or mental capacity and legal capacity as well (e.g., to contract an obligation or to accept the payment of a debt). Restrictions of legal capacity are manifold and they vary pursuant to certain personal qualities of the individual involved (age, sex, citizenship, de­pendency upon paternal power, etc.) or to the legal domain to which they apply (obligations, acquisition of property, procedure, etc.). Persons capable (ca­paces) in one regard may be incapable in another.

For capacitas in the law of successions, see the fol­lowing item, COELIBES, ORBI, LEX FURIA, LEX VOCONIA, LEX IULIA ET PAPIA, CADUCA, TESTAMENTI FACTIO.

Leonhard, RE 3; B. Biondi, Successione testamentaria, 1943, 133.

Capax. In the law of succession, a person able to take under a will (= qui capere potest). See capaci­tas. A person might be fully capax {capax solidi) when he could take the whole gift (inheritance or legacy) left to him in a last will and testament, or partially capax {capax portionis) when only a por­tion thereof was accessible to him.

Capax doli. A person capable of perceiving the fraud­ulent character of his action. Those who are below the age of puberty generally are not considered capaces doli, nor are persons with mental defects, who are not responsible for their actions.—See IMPUBES.

Capere. To acquire either by usucapio or (more fre­quently) on the occasion of a person’s death {mortis causa).—D. 39.6.

Capio. Sometimes syn. with usucapio. Mortis causa capiones — all kinds of benefits a person receives through, or on the occasion of, another’s death (con­ditionalgifts) “except those forms of acquisition which have specific names” (D. 39.6.31 pr.), such as here­ditas, legatum, fideicommissum.—D. 39.6; C. 8.56.— See PIGNORIS CAPIO.

Ferrini, NDI 2 (s.v. capioni).

Capitalis. A criminal matter in which the penalty may be death, loss of liberty or loss of Roman citizenship. —See CAPUT, CAUSA CAPITALIS, CRIMEN, QUAESTIO, POENA CAPITALIS, SENTENTIA, TRESVIRI CAPITALES.

Levy, Die rom. Capitalstrafe, SbHeid 1931; Brasiello, RBSG 9 (1934) 220.

Capitatio. A general expression for taxes paid per head {caput), either as a poll-tax {capitatio humana) or an animal tax {capitatio animalium). The capi­tatio humana—to be distinguished from land tax, iugatio terrena—was paid only by persons of lower classes (hence it was called also capitatio plebeia), not wealthy enough to pay taxes ex censu, i.e., on their whole property as evaluated on the occasion of a censtis. The capitatio humana became a general institution under Diocletian. In earlier times the poll-tax {tributum capitis) was paid only in certain provinces. Exemptions were admissible; they were granted to minors, widows, etc. Only healthy per­sons able to work (men from 14 to 65) were assessed, but not in equal measure.—C. 11.49.

Seeck, RE 3; Humbert, DS 1; F. Leo, Die c. plebeia und die c. humana, 1903; A. Piganiol, L’impdt de la c., 1916;

F. Lot, RHD 4 (1925) 177; idem, L’impdt fonder et la capitation personnels (Bibliotheque des Hautes Etudes, 253), 1928; C. Bellieni, C. plebeia e c. humana, 1931; Piganiol, Rev. historique 166 (1935) ; A. Deleage, La c. du Bas-Empire, 1945; A. Segre, Trad 3 (1945) 114.

Capitatio animalium. A tax levied per head of cattle (from the times of Diocletian.)—See capitatio.

Thibault, Rev. generale de droit et de la legislation 23 (1899) 320.'

Capitatio humana (or plebeia). See capitatio. Schwahn, RE 7A, 68; Lecrivain, DS 5, 435; Thibault, Rev. gen. du droit et de la legislation 23 (1899) 290.

Capite censi. Persons registered not as to their prop­erty which was below the lowest census for military service, but simply as to their existence as living individuals, primarily as heads {caput) of a family. —See PROLETARII.

Gabba, Ath 27 (1949) 198.

Capite minuti. Persons who have undergone a capitis deminutio.—Inst. 1.16; D. 4.5.—See capitis demi­nutio.

Capke puniri (or plecti). To suffer the death penalty. —See CAPITALIS, POENA.

Capitis accusatio. An accusation of a crime which carried the death penalty for the culprit.

Capitis amputatio. Decapitation. Syn. decollatio.

Capitis deminutio. The loss of caput (the civil status of a person which implies the legal ability to conclude legally valid transactions and to be the subject of rights recognized by the law) through the loss of one of the three elements thereof, freedom, Roman citizenship or membership in a Roman family. Syn. minutio capitis. For the various degrees of capitis deminutio, see caput.—Inst. 1.16; 4.5.—See resti­tutio in integrum propter capitis deminutionem.

Leonhard, RE 3; Baudry, DS 1; A.non., NDI 2 (s.v. deminutio) ; Berger, OCD (s.v. deminutio c.) ; F. Desser- taux, Etudes sur la formation hist, de la c. d., 1-3 (1909— 1928); idem, TR 8 (1928) 129; U. Coli, Saggi critici suite fonti del dir. rom. I. C. d., 1922; Ambrosino, SDHI 6 (1940) 369; Kaser, lura 3 (1952) 48.

Capito, Gaius Ateius. A jurist of the Augustan epoch. He adhered to older doctrines and was highly esti­mated by his contemporaries. He wrote a treatise on pontifical law and an extensive collection of Mis­cellanies ( Coniectanea).

Jors, RE 2, 1904 (no. 8); Berger, OCD 164; Grosso, Quaderni di Roma 1 (1947) 335; L. Strzelecki, De A. Capitone, nuptiarum caerimoniarum interprete, Wroclaw, 1947.

Capitulum. Some statutes were divided into chapters, capitula.—Capitulum is also a single provision of an agreement.

Captatorius. A disposition in a will by which the testator instituted an heir or bequeathed a legacy on the condition that the beneficiary shall grant a gift to another person in his will was called captatoria insti­tutio {scriptura) or captio. Such a disposition was not valid.

Captio. See the foregoing item.—See also pignoris capio.

Captivitas. Captivity. When a Roman citizen was captured as a prisoner by an enemy {hostis) with whom the Romans were at war, he became a slave of the enemy. The same rule was observed by the Romans with regard to foreigners whom they made prisoners in a war. After his return the Roman war prisoner (captivus) regained his legal status by virtue of a specific Roman legal institution (see post­liminium). A Roman captured (kidnapped) by a bandit (latro) did not become his slave; his legal status remained unchanged.—D. 49.16; C. 1.3.—See POSTLIMINIUM, REDEMPTUS AB HOSTIBUS, LEX COR­NELIA.

Leonhard, RE 3; L. Sertorio, La prigionia di guerra, 1915; Ratti, RISG N.S. 1, 2 (1926-27) ; idem, BIDR 35 (1927) 105; idem, AnMac 1 (1927); H. Kruger, ZSS 51 (1931) 203; Levy, CIPhilol 38 (1943) 159; Di Marzo, St Solassi, 1948, 1; Leicht, RStDIt 22 (1949) 181; L. Amirante, Captivitas e postliminium, 1950.

Captivus. A prisoner of war.—D. 49.15; C. 1.3.—See the foregoing item.

Caput. In Roman sources the term has different mean­ings. Generally it signifies an individual, hence the distinction between caput liberum ( = a free person) and caput servile (= a slave). In connection with deminutio (deminutio capitis = the loss of caput) caput = the civil status of a Roman citizen, for which three elements were necessary: to be a free man (status libertatis), to have Roman citizenship (status civitatis) and to belong to a Roman family (status familiae) either as its head (pater familias) or as a member. The loss of one of these elements involved the capitis deminutio, with all its legal consequences. The gravest effects were connected with the loss of freedom (capitis deminutio maxima) in the case of enslavement of a citizen or reducing a freedman to slavery, because the loss of liberty entailed the loss of citizenship and family ties. A lesser degree (capitis deminutio media) in which a person lost citi­zenship without losing liberty also resulted in loss of membership in family. See interdicere aqua et igni. Loss of family (capitis deminutio minima) occurred when a person’s agnatic family ties were dissolved either by his entry into another family (adoptio, adrogatio, marriage of a woman with in manum conventio) or by his becoming the head of a new family (emancipatio). The consequences of this lowest degree of capitis deminutio were originally perceptible only in economic and social fields (loss of the rights of inheritance in the former family, dissolution of partnership, extinction of personal servitudes, and the like). Some of these conse­quences were later mitigated by the praetorian law which recognized cognatic family ties. Thus the capitis deminutio minima gradually lost its original significance; under Justinian it is almost without any importance at all. See capitis deminutio.—Other meanings of caput are: a section of a statute, edict or imperial constitution (syn. capitulum) ; the prin­cipal of a debt as distinguished from the interest; in tax administration, caput denotes a tax unit or an individual person as a tax-payer. For caput in con­nection with the death penalty, see animadversio,

CAPITE PUNIRI, CAPITIS ACCUSATIO, CAPITALIS, POENA capitis, consecratio.—Inst. 1.16; D. 4.5.

Radin, Mel Fournier, 1929; Gioffredi, SDHI 11 (1945) 301; Lot, L’etendue de caput fiscal, RHD 4 (1925) 5, 177; A. Deleage, La capitation du Bas-Empire, 1945.

Caput aquae. The place where the water originates (aqua nascitur). It is either the source or the river or lake from which the water is initially drawn. The servitude of aquaeductus could be constituted on any caput aquae.—See fons.

Carbonianum edictum. See bonorum possessio ex CARBONIANO EDICTO.

Career. A jail. Imprisonment was not a repressive measure, it served only for the detention of persons during investigation or trial, or after sentence pend­ing execution.

Berger, OCD (s.v. prison) ; Grand, La prison et la notion d’emprisonnement, RHD 19 (1940) 58.

Career privatus. A private prison. It was used for the incarceration of recalcitrant slaves, and—in earlier times—of debtors who failed to pay their debt. Pri­vate prisons were prohibited by the emperors Zeno and Justinian.—C. 9.5.—See nexüm.

Humbert, DS 1; Hitzig, RE 3.

Caritas. Love, affection. Appears in a few juristic texts as a psychological and humane element which had to be taken into consideration in certain legal situations which required mild and benevolent treat­ment. Caritas belongs to the group of terms, such as benignitas, dementia, humanitas, which are put forward to recommend an exceptionally benignant dealing with a specific case. Reminiscences of Chris­tian caritas may occur in some interpolated texts, but the term cannot be excluded from the language of the classical jurists since it is used in contemporary literary texts.—See benigne.

Albertario, Studi 5 (1937) 21; Maschi, AnTr 18 (1948) 51; idem, lus 1 (1950) 266.

Carmen famosum. A defamatory poem (libel), lam­poon, pasquinade. Syn. c antic um, libellus famosus. It is one of the graver cases of personal offense (iniuria) and is punished by deportation.—See the following item.—See libellus famosus, intesta- BILIS.

Leonhard, RE 3; Brasiello, NDI 2.

Carmen malum. Sometimes identified with carmen famosum. Originally it was a specific wrongdoing, a kind of sorcery (mentioned already in the Twelve Tables) committed by pronouncing magic formulae to bring harm to a person or his property.—See occentare, incantare.

Carnifex. An executioner. He was not permitted to live in Rome.

Cartilius. An unknown jurist of the late Republic. H. Krüger, St Bonfante 2 (1930) 328.

Cascellius. A jurist of the late Republic, author of the formula called iudicium cascellianum.

Jörs, RE 3, 1634; Ferrini, Opere 2 (1929) 53.

Cassare. To annul (a law, an agreement).

Cassiani. See cassius, sabiniani.

Cassius, Gaius Cassius Longinus. A prominent jurist of the first century after Christ. He followed Sabinus in the leadership of the so-called Sabinian school (sabiniani), hence also called cassiani. His prin­cipal work was an extensive treatise on ius civile.— See GAIUS.

Jors, RE 3 (no. 63) ; C. Arno, Pubbl. Fac. Giuridica Modena 4 (1925); idem, Mèi Cornil 1 (1926) 97.

Castellum. A small fortified place (diminutive of cas­trum). People living in a castellum sometimes had an organization similar to that of small communities (vici, pagi).—C. 11.60.

Kubitschek, RE 3; De Ruggiero, DE 2.

Castellum (aquae). A water reservoir, public or pri­vate (syn. receptaculum). A servitude of drawing water from another’s castellum (ius aquae ducendae ex castello) was protected by a special interdict de aqua ex castello ducendo.—D. 43.20.

Berger, RE 9, 1631; De Ruggiero, DE 2, 132; Thierry, DS 1, 937; Orestano, BIDR 43 (1935) 297.

Castigare (castigatio). To chastise, castigate. Cor­poral punishment was applied to both slaves (with a whip, flagellum) and free persons (with a club, fustis) either as an additional punishment, or in lieu of a pecuniary fine when the culprit could not pay, or as a coercive measure for minor offenses. Soldiers were punished by castigatio for disobedience or vio­lation of military discipline. Outside the penal law fathers, masters, and instructors were permitted to castigate their sons, slaves and apprentices, respec­tively. Syn. verberare (verb eratio).

Hitzig, RE 3 ; Humbert, DS 1 ; Fougères, DS 2 (s.v. flagellum) ; Lécrivain, DS 5 {verb er) ; U. Brasiello, Repressione penale, 1937, 386.

Castra. A military camp serving either as a permanent quarter for troops or a temporary center of attack or defense, or for a short night stay of a military unit in march. In castris = during the military service, in war time.

Domaszewski, RE 3; De Ruggiero, DE 2; Saglio, DS 1, 941.

Castratio. Emasculation, castration. Castratus = eunuch. The imperial legislation of the early Empire (Domitian, Hadrian) tried to suppress this custom practiced primarily on slaves, but without success, since the prohibition of castratio was repeated sev­eral times and the penalties were constantly aggra­vated, until Constantine and later Justinian, imposed the death penalty.—C. 4.42.—See eunuchus.

Hitzig, RE 3 ; Humbert, DS 1.

Castrense peculium. See peculium castrense.

Castrensiani. Servants and subordinate employees in the imperial household. Syn. familia castrensis.— See ministeriales.—C. 12.25.

Ensslin, RE Suppl. 6, 493; Dunlap, Univ, of Michigan Studies, Humanistic Ser. 14 (1924) 215; Giffard, RHD 14 (1935) 239.

Castrensis (procurator castrensis). The superin­tendent of the imperial household. His title was also castrensis sacri palatii.

Seeck, RE 3; Heron de Villefosse, DS 1; Dunlap, loc. cit. 207.

Casus. An accident, an event which happened with­out any human intervention or fault. Terminology is varied: casus, casus fortuitus, casus maior, vis maior. According to a general principle “no one is responsible for a casus” (casus a nullo praestatur, D. 50.17.23), the owner of a thing suffered the damage caused by a casus unless another has assumed re­sponsibility for such losses. In the contractual field casus might make it impossible for the debtor to ful­fill his obligation (e.g., destruction of the thing to be delivered to the creditor). Normally, the debtor was not liable for such accidents unless there was a special agreement extending his risk to such cases.— See CUSTODIA, DILIGENTIA, FORTUITUS.

De Medio, BIDR 20 (1908) 157; F. Schulz, Rechtsver­gleichende Forschungen iiber die Zufallshaftung, ZVR 25, 27 (1910, 1912) Buckland, Harvard LR 46 (1933) ; G. I. Luzzatto, Caso fortuito e forza maggiore 1 (1938); Con- danari-Michler, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 102.

Catholicus. (Adj.) Connected with the Christian faith (fides, religio) or Church (ecclesia).

For bibl. see B. Biondi, Guide bibliografiche, Dir. rom. (1944) s.v. Chiesa Cattolica, p. 139.

Cato, M. Porcius Cato. Surnamed also Censorius (or Maior), consul 195 b.c., censor 184 b.c. He is named by Cicero “an expert in ius civile, the best of all” (De orat. 1.171). His work “On agriculture” (De agricultura, written about 160 b.c.) contains forms of agrarian contracts. He was the initiator of the Senatusconsultum de Bacchanalibus. His son, M. Porcius Cato Licinianus, is known as the author of an extensive work De iuris disciplina, probably a treatise on the ius civile. One of the two (more likely the son) was the author of the so-called REGULA CATONIANA.

Jors, Rom. Rechtswissenschaft (1888) 267, 283; Mc­Donald, OCD 173 (no. 1).

Catoniana regula. See regula catoniana, cato.

Caupo. An inn-keeper. He assumed liability for things left in his custody by an agreement, receptum cauponum. The praetorian Edict fixed the pertinent rules equally to the responsibility of ship-owners and keepers of public stables.—D. 4.9; 47.5.—See re­ceptum NAUTARUM.

Causa. One of the vaguest terms of the Roman juristic language. Starting from the basic meaning of cause, reason, inducement, the jurists use it in very different senses. Thus, causa indicates a legal situation in such phrases as in eadem causa est, or alia causa est. Causa is the reason for which some judicial measures (actions, exceptions, interdicts) were introduced by the praetor. Causa is also the purpose for which an action is brought in a specific controversy, or a legal disposition is made (causa dotis, causa legati). Not infrequently causa refers to the trial itself or the matter from which it originated; see causae cognitio. Sometimes causa is roughly identical with animus when it alludes to the sub­jective motive, intention, or purpose of a person. In this sense its use is simply unlimited because it may be applied to elements recognized by the law as well as to inducements which are immoral and condemned by law (causa turpis, iniusta, illicita, and similar). Causa receives a specific juridical content when it implies the legal title or foundation on which a per­son bases its claim against another or a legal situation is created, as, e.g., in phrases like causa venditionis, donationis, hereditaria, legati, fideicommissi, iudicati, etc. In certain legal institutions causa, particularly when qualified as iusta causa, acquires a specific col­oration, as in TRADITIO, USUCAPIO, MANUMISSIO, etc. In the domain of the law of contracts, i.e., in bilateral transactions, the Romans did not elaborate a special doctrine of causa. There are mentions of causa with regard to some specific contracts, but a general theory can hardly be drawn out. Finally, with reference to certain things (land, slaves) when their restitution cum sua causa is involved, causa means the acces­sories, proceeds, fruits, or the child born of a slave. See the following items.—See cadere causa, falsa causa, iusta causa, and the following items.

Leonhard, RE 3; Briinelli, NDI 3; Bonfante, Scr. giur. 3, 125 ; V» A. Georgescu, Le mot causa dans le latin juri- dique, Jasi, 1936 (reprinted in Et. de philologie juridique, Bucharest, 1939) ; De Bois-Juzan, De la c. en dr. franc ais, 1939, 155; Bibl. in Betti, Istitusioni 1 (1942) 122; Mini­coni, Rev. Et. Latines 21 (1943/4) 82; De Sarlo, BIDR 51/2 (1948) 99; P. J. Miniconi, Causa et ses derives, These, Paris, 1951; F. Schwarz, Die Grundlage der Con- dictio (1952) 120.

Causa cadere. See cadere causa.

Causa capitalis. A criminal matter or trial in which the loss of the defendant’s caput (life, freedom or Roman citizenship) was at stake. Syn. res capitalis, crimen capitate; ant. causa pecuniaria.

E. Levy, Die rotn. Kapitalstrafe, SbHeid 1931. Causa cognita. See causae cognitio, passim. Causa criminalis. A judicial matter connected ’with a crime.

Causa Curiana. See curiana causa.

Causa iudicati. See iudicatum.

Pfiueger, ZSS 43 (1923) 153.

Causa liberalis. A trial in which the question, whether an individual was a slave or a free man, was involved. Syn. indicium liberate.—D. 40.12; C. 7.16.—See PRAETOR'DE LIBERALIBUS CAUSIS, ORDINARE LITEM, VERGINIA.

Nicolau, C. 1., Paris, 1933; H. Kruger, St Riccobono 2 (1936) 227; P. Noailles, Le proems de Virginie, Rev. Et. Latines, 20 (1942) 106 (= Fas et ius, 1948, 187) ; Di Paola, AnCat 2 (1948) 266; Van Oven, TR 18 (1950) 159.

Causa lucrativa. A matter in which one acquires a thing without any reciprocal, equivalent expenditure.

DONATIO, LEGATUM, USUCAPIO PRO HEREDE are SO named.—See res lucrativae.

Di Marzo, BI DR 15, 17 (1903, 1905).

Causa manumissionis. See causae probatio, manu­missio.

Causa pecuniaria. A judicial matter in which the issue is the payment of a sum of money (debts, damages, fines). Ant. CAUSA CAPITALIS, CRIMINALIS.

Causa poenalis. See iudicia poenalia, poenalis.

Causa possessionis, traditionis, usucapionis. See possessio, traditio, usucapio.

Causa turpis. See condictio ob turpem causam.

Causae coactio. See causae coniectio.

Causae cognitio (causam cognoscere). The judicial examination of the case, particularly of its factual background in the course of the proceedings, both in the first stage of the trial before the magistrate (in iure) and in the second (apud iu dicem) before the private judge. Several ordinary and extraordinary measures to be ordered by the judicial magistrate, as, e.g., in integrum restitutio, missiones in possessionem, cautiones, could be applied only causa cognita, i.e., after a thorough causa cognitio. Ant. citra causae cognitionem.

Wlassak, RE 4, 206; Levy-Bruhl, TR 5 (1924) 383; M. Lemosse, Cognitio, 1944, 185.

Causae collectio. See the following item.

Causae coniectio. A summary presentation of the case before the juror (iudex) by the parties or their advocates. Syn. causae collectio.

Wlassak, RE 4 (j.z/. coniectio).

Causae probatio. A special procedure designed to examine certain factual elements in matters involving Roman citizenship or personal status. Erroris causae probatio: when a marriage was concluded in error by persons of differing legal status. Anniculi causae probatio: a latinus iunianus, who had been freed before the age of thirty and had married a Roman woman, acquired Roman citizenship if there was a one-year-old child born in this marriage. The wife and child became Roman citizens too. Also in some exceptional cases of manumissio (of a slave under thirty years or as a token of particular gratitude) the fairness of the motives was examined by the compe­tent official through a causae probatio.—See senatus­consultum pegasianum.

Leonhard, RE 3; De Dominicis, AnPer 58 (1947-48) 109.

Causam perorare (orare). To argue the case before the judge (see iudex).

Causa perpetua. See perpetua causa.

Causaria. See missio.

Causas agere. See the following item.

Causas dicere. To plead the causes of others before the courts as an advocate. Hence causidicus = the advocate. Syn. causas agere, orare.

Causidicus. See causas dicere, advocatus. Kubitschek, RE 3; Conrat, Mel. Fitting I (1907) 303.

Cautela. Used by Justinian’s compilers in lieu of cautio.—See cautio.

Guarneri-Citati, Indice² (1927) 16.

Cautio. Denotes the obligation assumed as a guaranty for the execution of an already existing obligation or of a duty which is not protected by the law. The simplest form (nuda cautio) is a promise by a mere stipulatio (nuda stipulatio, repromissio) which gives the creditor the advantages of a stipulatory obliga­tion. Other forms were a pledge (pignus or hypo­theca) or guaranty assumed by a person other than the principal debtor (a surety). “A thing gives more security than a person” (D. 50, 17, 25). Also an oath (cautio iuratoria) was used to strengthen an obligation. For the different application of cautiones, which frequently are called simply stipulationes, see the following items. Cautio is also used to indicate a written declaration of the debtor confirming his obligation and issued for the purpose of evidence. For the application of cautio with reference to a preceding stipulatio, see cautio stipulatoria.—See STIPULATIO, SATISDATIO, IDONEUS, REPROMISSIO.

Leonhard, RE 3; Humbert, DS 1; Laborderie, Revue generale de droit 33 (1909) 439; A. Palermo, Il procedi- mento causionale nel dir. rom., 1942.

Cautio amplius non agi (peti). A cautio given by the plaintiff who acts on behalf of another person as his procurator (procuratorio nomine) to guarantee the defendant that he would not be sued for the same claim again by the principal.—See procurator.

Debray, NHRD 36 (1912) 3; A. Palermo, Procedimento causionale cit., 23.

Cautio damni infecti. A security given against ap­prehended damage. The pertinent stipulatio created a legal tie between the owner of the immovable threat­ened and the owner of the adjacent building the run­down conditions of which endangered the former’s property. If the cautio damni infecti was refused and later damage was really done, the praetor granted the owner of the damaged property an action with a fictitious formula based on the fiction that cautio damni infecti had been given.—D. 39.2.—See dam­num INFECTUM, MISSIO IN POSSESSIONEM DAMNI IN­FECTI CAUSA.

G. Branca, Danno temuto, 1937; Palermo, op. cit. 35.

Cautio de bonis (dotibus) conferendis. A cautio by which an emancipated son or draughter promised to accomplish their duties of collatio.—See collatio BONORUM, COLLATIO DOTIS.

A. Guarino, Collatio bonorum, 1937.

Cautio de dolo. See dolus, stipulatio de dolo. Cautio de evictione. See evictio.

Cautio de non amplius turbando. A cautio given by the defendant in an actio negatoria to the effect that he will not disturb the owner of a plot of land by claiming a servitude thereon. A similar cautio is given in an actio confessoria to the beneficiary of a servitude by the defendant binding himself not to

[TRANS. AMER. PHIL. SOC. put any obstacle in the exercise of the servitude.— See VINDICATIO SERVITUTIS.

Cautio de rato (cautio ratam rem dominum habi­turum). A cautio given in a trial by a representa­tive (procurator) of the creditor to the effect that the latter (the principal, dominus negotii) will ap­prove of what his procurator had done and will not sue the debtor a second time in the same matter. Tutors and curators as well had to gjve such a security in the name of their wards. In later law the cautio de rato was required only when there were reasonable doubts about the powers of the representa­tive (for-instance, in the case of absence of the prin­cipal. See PROCURATOR, TUTOR, CAUTIO AMPLIUS

NON AGI.

Palermo, op. cit. 23.

Cautio de servo persequendo. A security given by a person holding another’s slave for the pursuit of the latter in case he would run away.—See servus fugi­tivus.

Cautio ex lege Falcidia. A security given the heir by the legatee to return what he might receive beyond the limits established by the lex Falcidia.—See lex FALCIDIA.

Cautio ex operis novi nuntiatione. See operis novi NUNTIATIO.

Cautio fructuaria. See cautio usufructuaria (syn.).

Cautio indemnitatis. A security given a person that he would not suffer any loss or damage from a trans­action or an event which may happen.

Cautio iudicatum solvi. See iudicatum.

Brunelli, NDI 3 ; Duquesne, Mèi Gerardin, 1907 ; idem, Mèi Fitting 1 (1907); Palermo, op. cit. 22; P. Gay- Lugny, C.i.s., Thèse, Paris, 1906.

Cautio iudicio sisti. A security given by the defendant to appear in court.—See vadimonium, exsecutor.

Cautio iuratoria. The strengthening of an obligation by oath.—See iusiurandum, cautio.

Cautio legatorum nomine. A security given by the heir that all that the testator ordered in connection with a legacy would be fulfilled. In the case of re­fusal by the heir to assume this obligation by stipu­latio the legatee might ask the praetor to be put in possession of the heir’s property (missio in possessi­onem legatorum servandorum causa).—See legatum, missio in possessionem.

Palermo, op. cit. 41, 93; Solazzi, RISG 86 (1949) 38.

Cautio Muciana. A security given by a legatee (ex­tended later to heirs) to whom a legacy was be­queathed under a negative condition that he would not do a certain thing. The fulfillment of such a condition could be established only at the death of the legatee. In order to give the legatee the oppor­tunity of receiving the legacy during his lifetime this cautio was introduced (by the Republican jurist Q. Mucius Scaevola) by which he obligated himself not to act against the condition imposed. If, despite this promise he did the act forbidden, he was com­pelled to return all that he benefited by the legacy including the profits (fructus).

Kübler, RE 16, 445; Bozzi, NDI 3; Levy, ZSS 24 (1904) 122; H. Krüger, Mel Girard 2 (1912) ; Beseler, ZSS 47 (1927) 60; Solazzi, SDHI 10 (1944) ; B. Biondi, Succes­sione testamentaria, 1943, 545; idem, BIDR 49-50 (1947) 241.

Cautio pro praede litis et vindiciarum. A security connected with the proceedings with sponsio (agere per sponsionem) and given by the party who re­ceived the temporary possession of the object in dis­pute, in order to guarantee its restitution together with the fruits in the case he lost the suit.—See praedes LITIS ET VINDICIARUM.

Palermo, op. cit. 21.

Cautio ratam rem dominum habiturum. See cautio DE RATO.

Cautio rei uxoriae. A stipulation concerning the resti­tution of the dowry in case of divorce.—See dos.

Cautio rem adulescentis salvam fore. See the fol­lowing item.

Berger, RE 15, 1878.

Cautio rem pupilli salvam fore. A guaranty given by the guardian to the effect that his administration of the ward’s patrimony will not prove detrimental to it. Testamentary guardians were free from giving such a security. A similar cautio (rem adulescentis salvam fore) was imposed on the curator of a minor. —Inst. 1.24; D. 46.6; C. 5.42.—See tutela, curator MINORIS.

Sachers, RE 7A, 1569; H. Weymuller, Contribution ä l’histoire de radio tutelae, 1901; Rotondi, Scritti 2 (1922, ex 1912) 268; Palermo, op. cit., passim.

Cautio stipulat oria. (A non-Roman term.) A writ­ten declaration by a debtor confirming that he as­sumed an obligation through stipulatio. The frequent usage of such documents in postclassical development influenced the transformation of the stipulatio, into a written form of promise since the legislation of the later emperors considered a written declaration of promise a sufficient proof that an oral stipulatio had taken place regardless of whether this has happened or not.—See STIPULATIO.

Platon, NHRD 33 (1909) 438; Riccobono, ZSS 35 (1914) 217; 43 (1922) 262; H. Steinacker, Die antiken Grund­lagen der frühmittelalterlichen, Urkunde, 1927, 83; P. Collinet, Etudes historiques sur le droit de Justinien 1 (1912) 59; V. De Gautard, Les rapports entre la stipu­lation et l’ecrit stipulatoire, These, Lausanne, 1931; A. Segre, Aeg 25 (1945) 65.

Cautio suspecti heredis. See satisdatio suspecti HEREDIS.

Cautio usufructuaria. A security given by the usu­fructuary to the owner of the res in usufructu to guarantee that he would fulfill his duties and would not abuse his rights as an usufructuary.—D. 7.9.

R. de Ruggiero, St Scialoja 1 (1905) ; Grosso, A Tor 72 (1936) ; Palermo, op. cit. 39, 102.

Cautio vadimonium sisti. See vadimonium.

Cautum (caveri) iubere. The order of the praetor to give security (cautio). Ant. cautum denegare.

Woess, ZSS 53 (1933) 378; Palermo, Procedimcnto cauzionale, 1942, 62.

Cavere. To give security through a cautio (stipu­latio, pignus, surety).—See idoneus.

Cavere. (When referring to the jurists’ activity.) Drafting agreements (sponsiones, mancipationes) and last wills which the jurists composed upon request of private individuals.

Leonhard, RE 3, 1085; Berger, RE 10, 1162.

Caveri. (When referring to provisions of statutes [“lege cavetur”], senatusconsults, etc.) The statute (senatusconsult) provides that.... With reference to last wills and testaments caveri denotes the dis­positions of the testator.

Cedere. (Transitive.) To cede, transfer to another a right or an action or to constitute a servitude (cedere usumfructum, aquaeductum, etc.) in favor of an­other.—See CESSIO.

Cedere. (Intransitive.) With regard to terms fixed for the fulfillment of an obligation: dies cedit means the day “on which the sum is beginning to be owed”; dies venit = the day “on which the sum due can be demanded (sued for)” (D. 50.16.213 pr.). For legacies, See DIES CEDENS.

Cedere actione (lite). To recede from, to withdraw, an action. Syn. desistere.

Leonhard, RE 3.

Cedere actionem. See cessio.

Cedere bonis. See cessio bonorum.

Cedere foro. To leave the forum, i.e., when a money­banker (nummularius) gave up his place of business on the forum because of bankruptcy.

Cedere in iure. See in iure cessio.

Celeres. Cavalrymen in the earlier times. They were organized in three centuriae, each recruited from one of the original three Roman tribus, and were com­manded by tribuni celerum.—See tribus, ramnes.

Kübler, RE 6, 272; Saglio, DS 1; Berger, RE Suppl. 7, 397 (s.v. Lex lunia).

Celsitudo. An honorific title of the emperor (celsitudo imperatoria). The emperors addressed the praefecti praetorio in rescripts with celsitudo (“your high­ness”).—Syn. AMPLITUDO.

P. Koch, Byzantinische Beamtentitel, 1905, 108.

Celsus, P. luventius. A prominent Roman jurist of the first decades of the second century after Christ. He succeeded his father, P. luventius Celsus the Older, a less known jurist, in the leadership of the Proculian School. Celsus was praetor, consul and member of the Emperor Hadrian’s council. Among his works Digesta, Epistulae and Quaestiones are of a high value.

Diehl, RE 10, 1363 ; Orestano, NDI 3; Gianturco, St Fadda 5 (1906) ; F. Stella-Maranca, Intorno ai frammenti di Celso, 1915.

Censere. Used for the resolutions of the senate (sena­tus censuit or censuerunt [jc. senatores]). Censere, with reference to censors and their subordinates, in­dicates the activity connected with the evaluation of the citizens’ property for tax purposes.

Censitores. (Syn. censores.) Appraisers, special of­ficials in the later Empire sent to provinces for the purpose of estimation of landed property in connec­tion with the assessment of taxes.—C. 11.58.

Censitus. (From censeri.) A taxpayer whose prop­erty has been estimated and charged with a land-tax. Later, the payer of a poll-tax was also called censitus. Ant. incensitus.—C. 11.48; 50.

Censores. Censorship was created in 443 b.c. as a non-permanent magistracy. Censores were elected once in five years (lustrum) and were in office for eighteen months. Thus through three years and a half there were no censors at all, and during that time their functions passed to other magistrates, chiefly the consuls. The censores had no imperium, and yet their authority was exceptionally great so that even ex-consuls competed for censorship. Their ordinances were valid for the whole quinquennial period until the appointment of new censors. Their most important tasks were the preparation of the census and making the list of the senators (lectio senatus). For further functions of the censores and various problems connected with censorship see CURA MORUM, NOTA, LEGES CENSORIAL, TABULAE CEN­SORIAL, LEX DE CENSORIA POTESTATE, LEX AEMILIA, LEX OVINIA, LEX PUBLILIA PHILONIS, TRIBUS, CENSUS equitum. The censorship lost its importance in the late first century after Christ.

Kubitschek, RE 3; Humbert, DS 1; Manca, NDI 3; De Ruggiero, DE 2; Treves, OCD; Μ. Nowak, Die Strafverhängungen der c., Diss. Breslau, 1909; O. Leuze, Zur Gesch. der röm. Zensur 1 (1909) ; E. Schmähling, Die Sittenaufsicht der Zensoren, 1938; Klotz, Rheinisches Museum für Philologie, 1939; Plachy, BIDR M (1940) 104; R. V. Cram, Harvard St of Class. Philology 51 (1940).71; A. Calderini, La censura in Roma antica, 1944; Siber, Fschr Schuh 1 (1951) 466.

Censorius. (Adj.) Connected with the office and functions of the censors. See NOTA, LEGES CENSO­

RIAE, LEX DE CENSORIA POTESTATE.

Censorius. (Noun.) An ex-censor.

Censu manumissio. See manumissio censu.

Censuales. Officials of the later Empire, in Rome and Constantinople, subordinate to the praefectus urbi and concerned with the taxation of senators and various other matters, similar to those which in the Republic belonged to the tasks of aediles (games, administra­tion of public buildings, survey of students studying in the capital, police functions, and the like). In other cities censuales were primarily active in making taxation lists.—See magister census.—C. 10.71.

Seeck, RE 3.

Censualis. (Adj.) See census, forma censualis. Census. The registration of citizens combined with the estimation of their property and their assignment to centuriae. Upon summons by the censors the head of a family had to appear before them and make a declaration under oath (professio censualis) con­cerning his family and property. Taxation (as long as direct taxation in Italy existed, i.e., until 167 b.c.) followed the evaluation of the property. By an edict preceding the census (lex censui censendo), the censors announced publicly the principles to be observed in making the returns required, and the rules they would follow in the evaluation of the moral conduct of the citizens.—See nota censoria, forma censualis, a censibus. Census is also the term for the list of the taxpayers.—D. 50.15; C. 11.58; 49.

Kubitschek, RE 3; Seeck, RE 5, 1184; Schwahn, RE 7A, 63; Kalopothakes, DE 2; Stevenson, OCD; Garofalo, BI DR 13 (1900) 273; Cavaignac, Revue de philologie 1934, 72; Bourne, Classical Weekly 45 (1951/2) 152.

Census equitum. The inspection of cavalrymen and their horses by the censors.

Centenarius. An official with a salary of 100,000 sesterces (since the time of Hadrian). Also a pri­vate individual with a property valued at the sum mentioned above.

Centesima. (Sc. usura.) One per cent interest per month, i.e., 12 per cent per annum.—See usurae centesimae.

Kubitschek, RE 3; Humbert, DS 1.

Centesima rerum venalium. A tax on sales at auc­tion (one per cent) introduced by Augustus, reduced by Tiberius to ducentesima (one-half per cent), then again restored as centesima.

Kubitschek, RE 3; Moschella, NDI; Rostowzew, DE 2, 582; R. Cagnat, Lt. historiques sur les impots indirects d Rome, 1882, 227.

Centonarii. Voluntary firemen.—See fabri.

H. J. Loane, Industry and commerce in R., 1938, 73.

Centumviri. A special court for trials concerning in­heritances and property affairs (vindicationes) of a higher value. The centumviral panel was composed originally of 105 jurors (3 from each of the 35 tribus) divided into groups (tribunalia). Later their number increased to 180. After the normal procedure in iure (before the magistrate) the mat­ter went to a court selected from the centumviral list. The form of proceeding before the centumviri was always the legis actio, even when this form was generally substituted by the formulary procedure. The centumviri disappeared in the third century after Christ.—See lex crepereia, hasta, provo­catio.

Wlassak, RE 3; Gayet, DS 1; Moschella, NDI 3; De Ruggiero, DE 2; Berger, OCD; Olivier-Martin, Le tri­bunal des c., 1904; Jobbe-Duval, NRHD 28-29 (1904­1905) ; F. Bozza, Sulla competenza dei c., 1928; Koschaker, ZSS 50 (1930) 679; M. Nicolau, Causa liberalis, 1933, 35.

Centuria. Tradition ascribes to the king Servius Tul­lius the organization of the Roman people (well-to-do men, capable to military service) in centuriae (units of about a hundred persons) which assembled in so- called comitia centuriata. The connection of this political reform with the military formations is ob­vious. This tradition is rejected by many scholars as unreliable. As a military unit the centuria is a group of one hundred (later less) soldiers, under the command of a centurio. In later development sixty centuriae formed a legion.—See comitia cen­turiata (Bibl.), PROLETARII.

Kubitschek, RE 3 ; Humbert, DS 1 ; Moschetta, NDI 3 ; De Ruggiero, DE 2; Mattingly, OCD; A. Rosenberg, Zenturienverfassung, 1911; Giorgi, Le origini dell'ordina­mento centuriato, St storici per l'antichità classica 5 (1912) ; Arangio-Ruiz, La riforma dell'ordinamento cen­turiato, Scr Amò, 1928; H. M. D. Parker, The Rom. legions, 1928; Fraccaro, St Bonfante 1 (1929) 103; idem, Ath 12 (1934) ; De Sanctis, Riv. di filol. e d'istruzione class. 1933; Zancan, ARen 1933-34, 869; G. Giannelli, Atene e Roma 37 (1935); Cavaignac, RIDA 2 (—Mèi De Risscher 1 (1949) 173.

Centuria praerogativa. The centuria which, selected by lot, voted first in the comitia centuriata.

Centuria vigilum. See vigiles.

Centurio. The military commander of a centuria. The centuriones of the first line (hastati) were of a lower rank than those of the second line (principes) ; the latter were of a lower rank than those of the third line (triarii). The first centurio in the legion was the centurio primi pili or primipilus.—See centuria (Bibl.).

Domaszewski, RE 3; Parker, OCD; Th. Wegeleben, Die Rangordnung der rom. Centurionen, Diss. Berlin, 1913 ; Parker, IRS 26 (1936) 45; De Laet, AntCl 9 (1940) 13.

Cerae. Wax-tablets. They were used for short letters, receipts, brief written agreements, testaments and codicils (codicilli cerati). Syn. tabellae ceratae.—See APOCHAE POMPEIANAE.

Lafaye, DS 5, p. 3 (s.v. tabellae).

Cernere hereditatem. See cretio.

Certa et sollemnia verba. See verba certa et sol­lemnia, sollemnia verba.

Certamen. (From certare = to fight.) Applied to lawsuits.

Certum. (Noun.) A fixed sum or quantity of things being the object of an obligation or of a claim in a trial (obligatio certi, condictio certi, certum petere). Certum is “where the object (quid), the quality (quale), and the quantity (quantum) is expressly evident” (D. 45.1.74). Ant. incertum. The dis­tinction certum—incertum is important in the law of obligations and in the civil procedure.—C. 4.2.—See CERTUS, CONDICTIO CERTI, CONDICTIO INCERTI, LEGIS ACTIO PER CONDICTIONEM, LEGIS ACTIO PER IUDICIS POSTULATIONEM.

Certus. Exactly determined, such as a sum of money, a specific object, the price in a sale (pretium), a slave indicated by name, a limited plot of land (fundus Cornelianus), a date fixed by calendar, a determined place (see actio de eo quod certo loco), etc.—See CONDICTIO CERTAE PECUNIAE, CONDICTIO CERTAE REI.

Cessare (cessatio). When referring to actions, proce­dural measures, or statutory provisions, to become inapplicable, unsuitable, to lose validity. When used of a person bound to do something (a guardian, procurator, debtor) = to neglect, to fail to fulfil his duties.

Cessicius tutor. See TUTOR CESSICIUS, IN IURE CESSIO TUTELAE.

Cessio. The transfer of a creditor’s rights to another person. It was not directly feasible in Roman classi­cal law. The obligatory relationship (obligatio) was strictly personal. The transfer could, however, be managed in another way, either by a novatory promise of the debtor to pay to a new creditor (the trans­feree) the thing he owed the former creditor, or by the transfer of the action against the debtor by ap­pointment of the transferee as the creditor’s repre­sentative through a mandate (cedere, mandare, trans­fer re actionem) to sue the debtor. The cessionary was procurator in rem suam (a representative on behalf of his own) inasmuch as the condemnation of the debtor was in his favor. This form of cessio was more popular because the first way (novatio) was impossible if the debtor refused to cooperate. But certain inconveniences were involved in a cessio actionis, too, because the debtor might pay the former creditor until the action of the cessionary was brought against him, and, besides, the appointment of the transferee by mandatum became invalid through the death of the primary creditor (the mandator). In the later law a notification of the cession performed, made to the debtor by the creditor, improved the situation of the cessionary. In further development the cessionary was granted, in certain specific cases, an actio utilis against the debtor. This became a general rule in Justinian’s law.—See beneficium CEDENDARUM ACTIONUM, LEX ANASTASIANA.

Biondi, NDI 3; Schulz, ZSS 27 (1906) 82; Eisele, ibid. 46; Beseler, Beitrage 3 (1913) 172; Drechsler, Actio utilis des Cessionars, Diss. Freiburg, 1914.

Cessio bonorum. A debtor who became insolvent without his fault might voluntarily surrender his property to the creditors in order to avoid an execu­tion by a compulsory sale thereof which involved infamy. The measure was introduced in favor of the debtors by the Lex lulia de cessione bonorum. —D. 42.3; C. 7.71.

Wlassak, RE 3; Weiss, RE Suppl. 6, 61; Humbert, DS 1 (s.v. bonorum c.); Donatuti, NDI 3; Zanzucchi, BIDR 29 (1918) 71; Guenoun, La c. b., Paris, 1920; Woess, ZSS 43 (1923) 485; S. Solazzi, Cone or so dei creditori 4 (1943) 130; Acta Divi Augusti 1 (1945) 152 (Bibl.).

Cessio in iure. See IN IURE CESSIO.

Ceteri (ceterae). Used by the compilers in order to introduce a generalization of what originally referred only to a certain category of persons or things (as, for instance, heredes et ceteri successores, ceteri con-

tractus).-- See BONORUM POSSESSIO, SUCCESSORES

CETERI.

Guarneri-Citati, Indice delle parole, etc.⁸ (1927) 17.

Charisius, Aurelius Arcadius. A little known jurist of the late third or the first half of the fourth century after Christ. He wrote monographs on the office of the praefectus praetorio, on witnesses and on public charges (munera).

Jors, RE 3, 2146.

Charta. The material on which a document is written. In the later Empire the term (or chartula) indicates the document itself.

L. De Sarlo, Il documento oggetto di rapporti, 1935, 33.

Chartularius. An official in the late Empire dealing primarily with the registers of taxpayers.—C. 12.49. Chirographum. A promissory note written by the debtor and delivered to the creditor. Gaius men­tions it as a litterarum obligatio used by peregrines (the name [= handwriting] reveals the Greek origin of the institution). Used by Romans the chiro­graphum had the value of any written document, and was considered only an evidence of a previous stipulatio. It was later applied even without a pre­ceding stipulatory promise. An exceptio non nu­meratae pecuniae (i.e., an objection to the effect that the creditor did not give any money to the debtor) could be opposed to a claim from a chirographum, but only within five years after the issuance of the chirographum (two years in Justinian’s law). Later it could not be oppugned at all.—C. 8.26.

Lecrivain, DS 5, 156; M. Kroell, Le role de I'ecrit dans la preuwe de contrat, 1906, 137; Messina-Vitrano, AG 80 (1908) 94; Riccobono, ZSS 43 (1922) 320; Arangio-Ruiz, FIR 3 (1943) no. 130; L. de Sarlo, Il documento come oggetto dci rapporti (1935) 7, 35.

Christiani. In pagan Rome Christians were considered enemies of the state (hostes publici) and as such they were exposed to persecution and punishment for crimen maiestatis. Besides, the secret meetings of the Christians were punishable under the lex lulia de collegiis as illicit associations (collegia illicita). Still in the early third century mentions of illicita Christianorum coitio (gathering) appear; it is likely that a special enactment was later issued against Christian associations. A milder practice was exer­cised with regard to the so-called collegia funera­ticia (tenuiorum), but administrative coercive measures ordered in police proceedings (coercitio) by the discretionary power of the magistrates were always applicable. Refusal to take part in religious ceremonies dedicated to the celebration of gods or the emperor as a god was considered as a confession to profess Christianity in the same measure as an open declaration, “I am a Christian,” sufficed for an accusation of crimen maiestatis. A particular prac­tice was introduced in connection with the persecu­tion by the emperor Decius; the production of a certificate that an individual participated in pagan

[TRANS. AMER. PHIL. SOC. sacrifices issued by a competent commission was an evidence that he was not a Christian; see libellus libellatici.—C. 1.10.—See crimen maiestatis, ECCLESIA.

M. Conrat (Cohn), Die Christenverfolgungen, 1897; Mat­tingly, OCD (s.v. persecutio) ; Mommsen, Juristische Schriften 3 (1907, ex 1890) 389; R. Rota, Il delitto poli­tico nell'età antica, 1907, 138; Costa, Crimini e pene, 1921, 105 (Bibl.) ; Saleilles, Mèi Girard 2 (1912) ; Vitale, Rev. de philologie 49 (1925) ; Schnorr v. Carolsfeld, Gesch. der juristischen Person 1 (1933) 243; P. W. Duff, Per­sonality in Rom. private law, 1938, 169; Levy, BIDR 45 (1938) 122; G. Bovini, La proprietà ecclesiastica e la condizione giuridica della Chiesa, 1949, 145.

Cibaria. Food, provisions. ■ Interpretative rules for cibaria in legacies are abundant in juristic writings. Cibaria is also the daily remuneration granted to imperial officials during their service travels through the empire.—D. 34.1.—See salarium.

Fiebiger, RE 3; Fournier, DS 2.

Cingulum. A girdle. In later imperial constitutions it denotes symbolically the rank of a high civil or military state official.

Kubler, RE 7 A, 2024.

Cinna. An unknown jurist of the first half of the first century after Christ.

Berger, RE Suppl. 3, 250.

Cino da Pistoia. A renowned postglossator (died 1314). See GLOSSATORES.

Monti, NDI 3 (Bibl.).

Cippus. A boundary stone. Syn. terminus.—See ter­minare.

Circumcisio. Circumcision was first generally pro­hibited by Hadrian. Later Antoninus Pius permitted it as a special concession to Jews. The interdiction of circumcisio of slaves was always in force, but evi­dently it was practiced since several imperial consti­tutions repeated the prohibition. A circumcised slave became free.—C. 1.10.

Hitzig, RE 3 ; Zmigryder-Konopka, Les Romains et la circoncision des Juifs, Eos 33 (1931) 334.

Circumscribere (circumscriptio). To defraud the partner in a transaction. It is a statutory term in the lex Plaetoria which forbade the circumscriptio adulescentium (defrauding young men).

Humbert, DS 1.

Circumvenire legem. To evade a law by trickery.

Citra causae cognitionem. Without investigation of the truth. Certain declarations of individuals made before an official (professiones) were accepted for registration only on the ground of the person’s alle­gations. Similarly some orders of the praetor were issued on the assumption that what has been proffered by the party was true, without any further examina­tion of the factual or legal situation. A typical case of such procedure is the issuance of an interdict.— See CAUSAE COGNITIO, INTERDICTUM.

Montevecchi, Aeg 28 (1948) 145.

Citare. To call a person to court as a witness. The term is not syn. with in ius vocare (see in ius vocatio).

Civilis. Connected with the cives (citizens) or a civitas (state, city, community). When opposed to criminalis, civilis means a private matter as contrasted with a criminal one. Another juxtaposition is civilis—naturalis (possessio, obligatio) in which civi­lis alludes to a connection with the ius civile, whereas naturalis lacks such a connection and means only a natural, real state of things.—See ius civile, NATURALIS.

Civiliter. Opposed to criminaliter = through a civil trial; opposed to naturaliter = according to ius civile. Civis. A Roman citizen (also civis Romanus), unless a citizen of another city or state is meant.—See CIVITAS ROMANA.

Civis Romanus. A Roman citizen, i.e., any person who either by birth or otherwise became an integral part of the Roman people {populus Romanus) and as such enjoyed public and private rights connected with Roman citizenship. Only a small group of citizens (not born as Roman citizens) was deprived of public rights, e.g., cives sine suffragio, former slaves (freedmen) and in certain cases former pere­grines. See CIVITAS, ROMANA, CIVITATES SINE SUF­

FRAGIO.

De Ruggiero, DE 2; Levy-Bruhl, ACDR Roma 2, 471.

Civitas. Romana. Roman citizenship. Beside freedom (status libertatis) Roman citizenship was an essential condition for being subject of rights, both private and public. Citizenship was acquired principally by birth of parents, Roman citizens. A child born in a legiti­mate marriage, was Roman citizen, even if the father alone was citizen, for children took status of their fathers. Therefore, a child born ex iustis nuptiis of a peregrine father and a Roman mother, was a pere­grine. Decisive was the status at the time of con­ception. See lex minicia. Through manumission a slave became not only free but also a Roman citizen. Admission of peregrines to Roman citizenship was effected by a special concession either in favor of individuals or larger groups, inhabitants of a city or country. Under the Republic, Roman citizenship was granted by the Roman people and later by the em­peror. Particular services rendered to the state (military service or special merits, see also lex visellia) were the occasion for granting citizenship to individuals (viritim, singillatim). Political tend­encies dictated the acceptance of foreign elements in larger groups into the orbit of Roman citizenship. Between 90 and 87 b.c. the whole of Italy obtained Roman citizenship; later it was extended gradually to cities and provinces abroad until the Emperor Caracalla (a.d. 212, Dig. 1.5.17) granted Roman citizenship to all inhabitants “of the Roman world” (in orbe Romano), with the exception of dediticii.

See constitutio antoniniana. The rights of the Roman citizens comprized the right to compete for a magistracy (ius honorum), to vote in public assem­blies (ius suffragii), to appeal to the people in the case of condemnation in a criminal trial, to conclude a Roman marriage, full legal capacity and admission to solemn legal Roman forms. Among the duties of a Roman citizen the principal was military service in a legion and payment of taxes which in the course of times were subject to various reforms. The loss of liberty (capitis deminutio maxima) involved the loss of citizenship, but there was also a loss of citizenship without loss of liberty (capitis deminutio media), as in the case of interdictio aqua et igni or deportatio. See CAPUT, REIECTIO CIVITATIS.

Kornemann, RE Suppl. 1, 304; Humbert, DS 1; De Ruggiero, DE 2; Colagrosso, ND! 3, 201; Sherwin-White, OCD (s.v. citizenship) ; C. E. Goodfellow, Roman citizen­ship, 1935; Zancan, AVen 95 (1935/6) ; Bernardi, Ath 16 (1938) 239; A. N. Sherwin-White, The Roman citizenship 1939; Lombardi, AG 126 (1941) 192; De Visscher, La dualite de droits de cite dans le monde romain, Bull. Cl. de Lettres Acad. Royale de Belgique 33 (1947) 50; idem, AnCat 3 (1949) 1; Arangio-Ruiz, Scr Carnelutti 4 (1950) 53; Schonbauer, Anzeiger Akad. d. Wissensch. Wien, hist.-philos. Klasse, 1949, 343; idem, Jour. Juristic Papy- rology 6 (1952) 17; Niccolini, Atti Accad. Lincei, 1946; C. Castello, L’acquisto della cittadinanza e i suoi riflessi nel dir. rom., 1951; De Visscher, ADO-RIDA 1 (1952) 401.

Civitas optimo iure. Roman citizenship granted to foreigners (or municipalities) with all the rights enjoyed by a native Roman citizen.

Civitates (civitas). All cives (citizens) of a larger or smaller territorial, political unit (state, city, colony, municipality) form a civitas. Hence the term is also applied to an autonomous unit itself and the Romans speak of their own state as a civitas (“nostra”) as well as of other states (civitas Atheniensium) or a group of states (civitates Graecorum). The term is, however, especially used with regard to foreign civi­tates (civitates peregrinae) in the sense of a large group of free individuals living together and organ­ized as a legal social unit (societas; Cicero: coetus hominum iure sociati, De republ. 6.13.13).—See the following items.

Kornemann, RE Suppl. 1, 300; Sherwin-White, OCD 195; De Ruggiero DE 2; Lombardi, AG 126 (1941) 193.

Civitates foederatae. Allied cities and communities in Italy and the provinces with which Rome concluded a treaty (foedus). They enjoyed certain privileges and exemption from taxation and lived according to their own laws (suis legibus uti), but they were sel­dom granted exemption from military service.—See FOEDUS.

Kornemann, RE Suppl. 1, 302; De Ruggiero, DE 2, 255; Sherwin-White, The Roman citizenship, 1939, 157.

Civitates liberae et immunes. Free cities enjoying a high degree of self-government and exemption from taxes. The status of a civitas libera was granted either by a lex data (a charter decreed by the Roman people, the senate, or later, by the emperor) or by a treaty of alliance (foedus) with Rome (civitates liberae et foederatae), by which the autonomous posi­tion of the civitates liberae vms guaranteed in a stronger way since the treaty could not be unilaterally revoked, except in the case of war. According to a Roman conception “a people is free when it is not subject to the power of another people” (D. 49.15. 7.1).

De Ruggiero, DE 2, 258; Sherwin-White, op. cit. 150; Heuss, Die völkerrechtlichen Grundlagen, Klio, Beiheft 31 (1933) 99; Vittinghoff, ZSS 68 (1951) 472.

Civitates sine suffragio. Cities with limited Roman citizenship, being deprived of the right to vote in the popular assemblies. They were not enrolled into a Roman tribus, and thus their accession to comitia tributa was excluded.

Kühler, RE 4A, 1897; Kornemann, RE Suppl. 1, 309; Zmigryder-Konopka, Eos 32 (1929) 587; Bernardi, Ath 1938, 239; Sherwin-White, op. cit. 38; E. Manni, Per la storia dei municipii, 1947, 56.

Civitates stipendiariae. Civitates subject to the pay­ment of tributes and imposts to Rome. Ant. civitates immunes.—See Stipendium.

Clam. Secretly. An act is committed clam when it is done with the intention to conceal it (animo celandi) before another person since otherwise a controversy with the latter would be unavoidable. The term is of particular importance in the doctrine of possessio (see CLANDESTINA POSSESSIO) and 1П the INTERDIC­TUM QUOD VI AUT CLAM.

Μ. David, L’interdit quod vi aut clam, 1947, 18.

Clamor. A friendly call, applause. It is the most usual element of acclamatio. As a cry in danger it had a certain importance in connection with the theft (furtum) when a person surprised and attacked by a burglar called for help. Already the Twelve Tables mention the clamor applied in a similar situation (endoplorato).

Berger, St Albertoni 1 (1933) 381; Wieacker, Fschr Wenger 1 (1944) 129.

Clandestina possessio. Possession acquired secretly (see clam) against or without the will of the owner or the actual possessor. Such possession was stig­matized as possessio vitiosa (= defective) and was exposed to an exceptio vitiosae possessionis by the person from whom the thing had been taken away. —See possessio, iniusta.

Clara persona. A senator or his wife. Execution on their property in the case of insolvency was made in a milder form (honestius); there was no missio in possessionem and the sale of the property was per­formed according to a senatusconsult (of an unknown date) by a special curator (curator distrahendorum bonorum gratia).

Clarigatio. A solemn oral declaration addressed by the fetiales in the name of the Roman people to a foreign state. It concerned territories or things claimed by the Romans. If the claims were not satisfied by the foreign state, a formal declaration of war followed.—See indictio belli.

Volterra, Scr Carnelutti 4 (1950) 245.

Clarissimatus. The dignity of a person who belongs to the class of clarissimi. Syn. dignitas clarissima.— See clarissimus.

Clarissimus. (Clarissimus vir, clarissima persona.) An honorary title of senators and high officials of senatorial rank. A senator’s wife had the right to the title clarissima.—C. 3.24; 5.33.—See clara per­sona, spectabilis.

Seeck, RE 3, 2628; P. Koch, Byzantinische Beamtentitel, 1903; De Ruggiero, 2, 267; O. Hirschfeld, Kleine Schriften, 1913, 647.

Classiarii. (5c. milites). Marines in the Roman navy (classis). Syn. classici.—C. 11.13.

Classici. See classiarii.

Classicus. A person enlisted in the first class of wealthy persons on occasion of the census. The property required was 100,000 asses. Persons listed in the lower classes were infra classem.—See lex voconia.

Kühler, RE 3, 2628; Gabba, Ath 27 (1949) 173.

Classis. The Roman navy. Also the name of the five groups of citizens distinguished according to their wealth in the politico-military reform ascribed to Servius Tullius (see centuria). The classes com­prized only the foot-soldiers of the army.—See nau­archus.

Kübler, RE 3, 2630; De Ruggiero, DE 2, 271; C. G. Starr, Jr., The Rom. Imperial Navy, 31 b.c.-a.d. 324 (Ithaca, 1941) ; Wickert, Würzburger Jahrbücher für die Altertumswissenschaft 4 (1949) 100.

Claudius. This name, particularly in notes to the Digesta of the jurist, Q. Cervidius scaevola, refers to the jurist, Claudius tryphoninus.

Clausula. A specific legal provision of a statute, a senatusconsult or of the praetorian edict. Also a particular clause of an agreement between. private individuals (e.g., of a stipulatio).—See dolus malus, NOVA CLAUSULA.

Leonhard, RE 4.

Clausula doli. (De dolo malo.) See dolus malus.

Clausus (elusus). A slave put into jail by his master. —See CARCER PRIVATUS.

Wenger, ZSS 61 (1941) 357.

Claves. Keys. The delivery of claves (traditio cla­vium) of a storage-room (a granary or a wine-cellar) was considered in later law the delivery of the mer­chandise itself by the seller to the buyer. Such kind of delivery is called in literature a “symbolic tradi­tion.”

Riccobono, ZSS 34 (1913) 197; F. Schulz, Einführung in das Studium der Digesten, 1916, 68.

Clavus latus. A broad purple stripe on the toga or tunic. The clavus latus (laticlavus) on the tunic was a mark of distinction of senators and their sons, hence the senatorial rank itself is indicated as latus clavus (the bestowal by the emperor = conf erre latum cla­vum; to obtain the senatorial rank upon request = impetrare latum clavum). The privilege of a latus clavus was later extended to higher dignitaries of the empire {laticlavii). Ant. clavus angustus — a narrow stripe on the border of the toga, a distinction mark for persons of equestrian rank.—See toga prae­TEXTA, ADLECTIO.

Hula, RE 4, 6; De Ruggiero, DE 2, 306; Balsdon, OCD. Clementia. Referred to gracious acts of the emperor. Later emperors, Justinian included, like to speak of their clemency {placet nostrae clementiae).

Dahlmann, C. Caesaris, Neue Jahrb. fiir Wissensch. und Jugendbildung 70 (1934) 17.

Clementissimus. A title of the emperors since the third century.

De Ruggiero, DE 2.

Clerici. The title of the Code of Justinian, 1.3 {De episcopis et clericis) contains a series of imperial constitutions of the Christian emperors (a.d. 313­534) concerning the particular legal situation of ec­clesiastical persons and various privileges granted to clergymen (in judicial matters, with regard to testa­mentary dispositions, exemption from guardianship and public charges, etc.).

Genestal, NRHD 32 (1908) 161; F. Ferrari dalle Spade, Immunitd ecclesiastiche, AVen 99 (1939—1940) 115, 162, 171, 196.

Clientela. See clientes,

Clientes. In the earliest period clientes were strangers who had migrated to Rome where they submitted themselves to patrician families {gentes) in order to obtain their protection. Men from vanquished coun­tries also looked for a similar relation. (See dedi­tio.) Clientship created reciprocal duties. The clientes worked for their patrons, who in turn gave them protection in case of need, especially in judicial matters. The clientes were free men, but in fact their situation was half servile. Later their situation improved considerably although their social authority and dignity remained always low. They were per­mitted to acquire property and many of them became gradually well-to-do people. The clientes had to assist the patron and his family in the case of need, and to ransom him when he had fallen into captivity. They appeared in public as his retainers and were subject to his jurisdiction. The whole relationship being based on reciprocal confidence {fides') the pa­tron could not sue his client before court nor testify against him. A reciprocal duty bound the client. Fraud committed by the patron on his client stood under religious sanctions; the pertinent provision derives from the Twelve Tables {sacer esto). Client­ship {clientela) was hereditary but lost its original force and meaning in the course of time. The clientes were gradually absorbed by other strata of the population, primarily by the plebeians. In quite a different sense clientes is used with reference to the clients of an advocate.—See ius applications, do­tare, GENS.

Premerstein, RE 4; Humbert, DS 2; Anon., NDI 3; Momigliano, OCD; G. Curis, Clientela e schiavitù, 1902; S. L. Mohler, Class. Studies in honor of J. C. Rolfe, Phila­delphia, 1931, 239; Lemosse, RIDA 3 (~Mél De Visscher 2, 1949) 46.

Cloaca. A sewer. Protection of public health {salu­britas civitatum) and of private interests required at times the intervention of judicial or administrative authorities in the case of defective sewers.—See in­terdicta DE CLOACIS, INTERDICTA DE REFICIENDO, SÉRVITUS CLOACAE IMMITTENDAE.—D. 43.23.

Coactio causae (in breve). See causae coniectio.

Coactor. A collector of taxes or of money paid by sellers at a public auction.

Leist, RE 2, 227; v. Premerstein, RE 4; De Ruggiero, DE 2, 314; Platon, NRHD 33 (1909) 149.

Coactus volui. An expression used in the doctrine of metus (duress), indicating that an individual al­though acting under duress is nevertheless acting willingly, something he would not have done if he were free (e.g., accepting an inheritance under duress). This opinion was shared only by a few jurists.—See metus.

U. v. Lübtow, Quod metus causa gestum erit, 1932, 61.

Codex. Wooden tablets covered with wax or sheets of papyrus or parchment, bound together in book form. A booklet of few pages = codicilli. In the late Empire, collections of imperial constitutions were designated as codices (see below).

Wünsch, RE 4.

Codex accepti et expensi (depensi). A cash-book into which a Roman used to note the sums received {acceptum) and paid out {expensum). A codex {liber) rationum domesticarum was used for similar purposes. The entries might be used as evidence in a trial, but they did not have the force of full proof. Only bookkeeping of bankers enjoyed particular con­fidence. See ARGENTARI!, NOMINA ARCARIA, NOMINA

TRANSSCRIPTICIA.

Humbert, DS 1 ; Leonhard, RE 4 ; Aru, NDI 3 ; R. Beigel, Rechnungswesen und Buchführung der Römer (Karlsruhe, 1904) 181; Voigt, ASächGW 10 (1888) 544, 552.

Codex Gregorianus. The earliest private, systematic collection of imperial constitutions, published not be­fore a.d. 291 by an unknown author (Gregorius?). The oldest constitution is by Hadrian. The Codex Gregorianus is not preserved and is known in ex­cerpts only from the fragmenta vaticana, collatio, CONSULTATIO, LEX ROMANA BURGUNDIONUM, LEX romana visiGOTHORUM, and an appendix thereto. A continuation of this collection is the Codex Hermo- genianus. Both compilations acquired seemingly a considerable authority although composed as private enterprises, since Justinian refers to them as the sources for his Code.

Editions: G. Haenel, Corpus iuris anteiustiniani 2 (1837) ; P. Krüger, Collectio 3, 224; Baviera, FIR 2² (1940) 655. Bibl.: Baudry, DS 1; Jörs, RE 4; Scherillo, NDI 4; Rotondi, Scritti 1 (1922, ex 1914) 111; Scherillo, St Ratti, 1934, 247; F. Schulz, History of R. legal science, 1946, 287, 309.

Codex Hermogenianus. A collection supplementary to the Codex Gregorianus containing constitutions of Diocletian from 291 until 294. The composer of the compilation was one Hermogenianus (not identical with the jurist Hermogenianus?). Excerpts of the Codex Hermogenianus are preserved in the same sources as those of the codex gregorianus. Several constitutions of the years 295-305, 314, and 364—365 were added later to the original Code.

Editions: G. Haenel, Corpus iuris anteiustiniani 2 (1837) ; P. Krüger, Collectio 3, 249; Baviera, FIR 2² (1940) 665. Bibl.: Baudry, DS 1; Jörs, RE 4; Scherillo, NDI 4; idem, St Ratti, 1934, 247; Rotondi, Scritti 1 (1922, ex 1914) 118.

Codex Justinianus. In 528 Justinian charged a com­mission composed of high officials and lawyers with the task of compiling a collection of imperial con­stitutions. For earlier imperial enactments the three Codices, Gregorianus, Hermogenianus, and Theodosi­anus, had to be used. The Code published April 7, 529, soon proved obsolete because of the copious later legislative activity of the emperor. Therefore a new edition (Codex repetitae praelectionis) was ordered in 533, and published in the middle of December, 534. The latest constitution therein is of November 4, 534, the.earliest by Hadrian who is represented in the Code by one enactment only (6.23.1). The Code is divided into twelve books, the books into titles. Within each title the constitutions are chronologi­cally arranged and provided with information con­cerning the emperor, the destinatary to whom they were issued and the date of issue. As in the Digest, the compilers were authorized to make appropriate changes in the texts of the constitutions of former emperors for which a comparison with the pertinent texts in the Codex Theodosianus is very instructive, showing both the technique and the extent of the interpolations accomplished.—See quinquaginta

DECISIONES.

Editions: P. Krueger, Codex lustinianus 1877; idem, Corpus Iuris Civilis 2¹⁰ (1929). Vocabularies: Longo, Vocabolario delle costitusioni di Giustiniano, BIDR 10 1898) ; Marchi, Le interpolasioni risultanti dal confronto etc. BIDR 18 (1906) ; Chiazzese, Confronti testuali, AnPal 17 (1933) ; R. Mayr-M. San Nicolo, Vocabularium Codicis lustiniani, 1-2 (1920, 1923); Bibl.: Baudry, DS 1; Jörs, RE 4; Anon., NDI 3 (i.-y. Codice di Giustiniano) ; Berger, OCD 2C7; Rotondi, Tecnica dei compilatori del Cod. Giust., Studi suile fonti del Cod. Giust., Scritti giur. 1 (1922) 71, 110; Schulz, ZSS 50 (1930) ; idem, St Bonfante 1 (1929) ; idem, ACII 1 (1935) ; Collinet, L’originalite du Code de Just., ACII 1 (1935) ; for the remnants of the first edition of the Code Schulz, History of R. legal science, 1946, 318; Berger, BIDR 55-56 (1952) 110; for Justinian’s legisla­tion during the compilation of the Digest: Longo, BI DR 19 (1907) 132; De Francisci, BIDR 22, 23, 27, 31 (1910, 1911, 1915, 1921).

Codex (liber) rationum domesticarum. A housebook in which proceeds and expenses were entered.—See CODEX ACCEPTI ET EXPENSI.

Codex repetitae praelectionis. See codex iustini- ANUS.

Codex Theodosianus. An official collection of impe­rial constitutions from a.d. 312 (Constantine) until 438 when the Code was published by Theodosius IL The Code is divided into sixteen books, the books into titles. The compiling commission was author­ized by the emperor to omit obsolete provisions and superfluous phrases, to make additions, emendations and alterations. A large portion of the Theodosian Code found acceptance in the Lex Romana Visigo- thorum, and later in Justinian’s Code, not without abridgements and alterations. The Theodosian Code was in force in the East until its abrogation by the Code of Justinian (first edition 529) and in Italy until the conquest by Justinian in 554. The Codex Theodosianus is not preserved as a whole; a great portion thereof is known through the Lex Romana Visigothorum, the existing manuscripts contain only parts of the codification.—See codex iustinianus, interpretationes.

Editions: Mommsen, Theodosiani libri XVI, 1905; P. Krueger, C.Th. 1923-1926 (only books I-VIII); Engl, translation: C. Pharr, The Theodosian Code and Novels, and the Sirmondian Constitutions, Princeton, 1952. Vo­cabulary: Gradenwitz, Heidelberger Index sum Theodosi­anus, 1925, Suppl. 1929. Bibl.: Mommsen, Juristische Schriften 2 (1905), several articles; Baudry, DS 1; Jors, RE 4; Scherillo, NDI 3; Gradenwitz, ZSS 34 (1913), 38 (1917) ; G. Ferrari, Osservasioni sulla trasmissione diplo- matica del C. T., 1915; Wieacker, Lateinische K ommentare sum C. Th., Symb. Frib. Lenel, 1931; Scherillo, St Ratti, 1934, 247; idem, St Albertoni 1 (1935) 515; Archi, SDHI 2 (1936); Scherillo, SDHI 6 (1940) 408, 8 (1942) 5; Higgins, Reliability of titles and dates in C. Th., Bys 10 (1935) 621; Solazzi, Glossemi e interpolasioni, SDHI 10 (1944); 13-14 (1948).

Codicilli. A written document containing dispositions of a testator to be valid after his death (mortis causa), but not the institution of an heir which was per­missible only in a testament. The recognition of codicilli is somehow connected with the institution of fideicommissa (under Augustus). Distinction is made between codicilli testamento confirmati (a codi­cil confirmed in a later or earlier testament) and non confirmati (not mentioned in a testament). While the former codicil might contain various dis­positions (legacies, manumissions, appointment of a guardian) and was considered as a part of a testa­ment (pars testamenti), the latter was reserved for fideicommissa only. There were also codicilli ab intestato, i.e., codicilli in which the testator charged his heirs on intestacy with fideicommissa. In classical law no specific form was required for codicilli. Later imperial legislation required the presence of wit­nesses. Justinian introduced even oral codicilli, A testator might dispose in his testament that in case of its invalidation because of formal deficiencies, it should be treated as a codicil.—Inst. 2.25; D. 29.7; C. 6.36.

Seeck, RE 4; Saglio, DS 1; Accardi-Pasqualino, NDI 3; De Ruggiero, DE 2; B. Biondi, La convalidazione del codicillo, 1911; Kortenbeutel, Ein Kodisill eines rom. Kaisers, APrAW 1939, no. 13; Scarlata-Fazio, La suc­cessione codicillare, 1939; Guarino, ZSS 62 (1942) 209; idem, SDHI 10 (1944) 317; Biondi, Successione testa­mentaria, 1946, 612.

Codicillus. A diploma of appointment of an official by the emperor or granting a special privilege.—See ILLUSTRIS, EPISTULA.

Piganiol, CRAI 1947, 376.

Coelibes (caelibes). Unmarried persons. The Augus­tan legislation excluded coelibes of a certain age wholly or partially from inheritance.—See lex iulia DE MARITANDIS ORDINIBUS.—C. 8.57.

Leonhard, RE (s.v. caelibatus) ; Manca, NDI 3 (s.v. caelibes).

Coemptio. A contractual form of acquisition of manus over the wife by the husband (conventio in manum) through a fictitious sale (mancipatio) by which the woman, and consequently the power over her, were transferred to him by her father. When the woman was not under paternal power (sui iuris), she herself accomplished a self-mancipation. Coemptio is closely connected with the conclusion of a marriage (coemp­tio matrimonii causa facta) except in the case of coemptio fiduciae causa.—See manus, and the fol­lowing item.

Leonhard, RE 4; Kunkel, RE 14, 2269; Anon., NDI 4; Pezozzi, Scritti 3 (1948, ex 1904) 528; Carrelli, AnMac 9 (1933) 189; E. Volterra, La conception du mariage (Padova, i940) 23; Dull, Fschr Wenger 1 (1944) 211; H. Levy-Bruhl, Nouvelles Etudes 1947, 74; Kostler, ZSS 65 (1947) 47; Kaser, Das altrom. ius, 1949, 315.

Coemptio fiduciae causa (fiduciaria). A coemptio concluded not for the purpose of matrimony but in order to get rid of a disagreeable guardian. After the coemptio has been made the woman “is remanci- pated by her partner (coemptionator) to another man of her_K choice and having been manumitted by him, she has him as a guardian (tutor fiduciarius).” This form of coemptio was applied also (until.Ha­drian) to give the woman the possibility to make a testament (Gaius, Inst. 1.114-115a).

W. Erbe, Fiducia, 1940, 165.

Coemptionator. See coemptio fiduciae causa.

Coercitio. (From coercere.) The magistrates had the power of enforcing obedience to their commands and of punishing minor disorderly offenses by certain coercive or repressive measures (prison, fines, pledge). Generally there was no appeal against acts of magis­terial coercion which were made without any ordinary proceeding at the discretion of the individual magis­trate.—See MULTA.

Neumann, RE 4; Kiibler, RE 14, 421; Lecrivain, DE 3, 1528; De Dominicis, NDI 3; Brasiello, Repressionc penale, 1937, 32; Lengle, RE 6A, 2475.

Coetus amplissimus. In later imperial constitutions, the senate.

Cogere. See COACTUS VOLUI, necessitas. Cogere senatum. See senatum cogere.

Cogitatio. A thought, an intention, a design. “No­body is punished for his thoughts (intentions)” (cogi­tationis poenam nemo patitur, D. 48.19.18). “The intention to commit a theft does not make a person a thief” (D. 47.2.1.1).

Cognati. Relatives united by the cognatic tie.—See COGNATIO, AGNATI.

Solazzi, La successione dei cognati, ANap 58 (1937) 63.

Cognatio. Blood relationship. Normally the agnati are also cognati even when the natural tie does not occur. Thus, adopted family members are not only agnati (under the same paternal power) but also cognati. Cognatio includes persons related through females, as well as former agnati who given in adop­tion, emancipated or otherwise, lost the agnatic kin­ship. The praetorian law protected the rights of succession of cognati which finally superseded those of agnati. The distinction agnatio—cognatio gradu­ally lost its practical significance.—Inst. 3.5.—See AGNATI (Bibl.), UNDE COGNATI.

Baudry, DS 1; Leonhard, RE 4; Anon., NDI 3; Perozzi, SV Brugi, 1910 (= Scritti 3, 61) ; Maschi, La concezione naturalistic a, 1937, 143; C. Castello, Diritto familiare, 1942, 123; Guarino, SDHI 10 (1944) 290.

Cognatio civilis (legitima). See agnatio.

Cognatio ex transverso gradu. Collateral relation­ship (in the side line).

Cognatio legitima, cognatio civilis; see agnatio. Cognatio naturalis. Cognatio. Ant. cognatio civilis.

Also applied to the relationship between a mother and her illegitimate child, and to the relationship between slaves (syn. cognatio servilis).

Cognatio servilis. See cognatio naturalis, servus. Cognitio. (From cognoscere). The examination of a judicial case (and eventually a decision) by a magis­trate or a juror (iudex). The cognitio comprehends all that is done by the judicial authority during the proceedings, civil or criminal, in order to establish the facts which led to the controversy (hearing of the parties and their counselors, of witnesses and experts, examination of documents and other means of evidence). The extension of the activity, termed as causae cognitio, depended upon the competence of the inquiring person (qui cognoscit) as well upon the matter involved in the causae cognitio. Thus, for instance, the causae cognitio by the praetor took one form when he was requested to grant an in integrum restitutio and another when he ordered a missio in possessionem or a cautio, or appointed a guardian. The cognitio also differed in the various strata of the Roman civil procedure. In criminal matters

cognitio covers the whole proceeding, judgment in­cluded. See CAUSAE COGNITIO.

Wlassak, RE 4; Kleinfeller, RE 4, 218; Thédénat, DS 1; De Ruggiero, DE 2; Lauria, ANap 56 (1934) 305; M. Lemosse, Cognitio, étude sur le role du juge, 1944.

Cognitio caesariana. See cognitio sacra.

Cognitio extra ordinem (extraordinaria). The latest form of civil proceedings which, originally concurrent with the formulary procedure as “extraordinary” {extra ordinem, sc. iudiciorum privatorum), later became exclusive. The cognitio extra ordinem was based on the idea that the administration of justice is a function of the state, while in the previous forms of proceedings the trial was dominated by the parties under the moderation and supervision of the magis­trate. The characteristic feature of the cognitio extra ordinem which appeared at the beginning of the Empire, is that the private juror disappears and his place is taken by a public official acting as a delegate of the emperor or of a high functionary. When the new procedure became general, there was no more bipartition of the trial nor a formula, the whole pro­ceeding being under control of the same functionary or his delegate. In criminal matters the new proce­dure under the Principate, cognitio extra ordinem, was opposite to the procedure before perpetual courts (see quaestiones). Here, too, the imperial jurisdic­tional official held the trial in his bands from begin­ning to end and rendered the final sentence.—The jurisdiction of the cognitio extra ordinem in which the jurists efficiently collaborated assisting the juris­dictional officers with their advice, contributed con­siderably to the development of the law.—D. 50.13. See APPELLATIO.

Wlassak, RE 4; Sachers, RE Suppl. 7, 793; R. Samter, Nichtformliches Gerichtsverfahren, 1911 ; Riccobono, La c.e.o. e il suo influsso sul ius civile, Mei Cornil 2 (1926) ; Balogh, ACDR Roma 2 (1935) 269; Drestano, StCagl 26 (1938) 153; De Robertis, AnBari, N.S. 4 (1941) 3; Santi Di Paola, AnCat 2 (1948) 252; Riccobono, RIDA 3 (=Mél De Visse her 2 (1949) 277.

Cognitio sacra (or caesariana). The examination and decision of a judicial matter by the emperor or his delegate.—See a cognitionibus.

De Laet, AntCl 1945, 145.

Cognitionalis. Connected with judicial cognitio. The term is widely used in later imperial constitutions.

Cognitor. A representative of a party in a civil trial. He was appointed in a prescribed, solemn form in the presence of the adversary, contrary to another type of a representative in litigation, the procurator, who was informally appointed. The intervention of a representative found its expression in the procedural formula since the principal was mentioned in the intentio, while the condemnatio was formulated in favor of the representative. In practice the cognitor had the actio indicati for the execution of the judg­ment (see cessio), but a praetorian remedy {trans­late iudicii) was foreseen to make the formula work

[TRANS. AMER. PHIL. SOC. for the real creditor. In Justinian’s law the only representative in litigation is the procurator.—See exceptio cognitoria, iudicatum, and the following item. Cognitor in later imperial constitutions = a judge {qui litem cognoscit).—See the following entry. Leist, RE 4; C. Wirbel, Le c., 1911; Debray, NRHD 36 (1912) ; Berger, GrZ 40 (1913) 663.

Cognitor in rem suam. A plaintiff in a trial, formally appointed as a cognitor and being in fact the real creditor as the cessionary of the original creditor who transferred his right against the debtor to him. See cessio. Similar is the situation of a procurator in retn suam.

Cognitores praediorum. Vouchers (examiners) who on their responsibility certified the correctness of the data concerning landed property, given as a pledge {subsignatio) by persons who assumed certain obli­gations towards a municipality.

E. G. Hardy, Three Spanish charters (1912) 80, 110.

Cognomen. A surname following the first name {prae­nomen) and the name of the gens of a person {nomen gentilicium).—See nomen.

Cognoscere. See COGNITIO.

Cohaerere. See corpus ex cohaerentibus.

Coheredes. Co-heirs. When an estate was left to more than one person, instituted as heredes, or when several persons inherited it in intestacy, in equal or unequal shares, they were coheredes and had the same legal position as co-owners.· Division could be obtained either by arrangement or through judicial proceeding by an actio familiae ercis'cundae.—See FAMILIA, DIVISIO, ACTIO FAMILIAE ERCISCUNDAE.

Cohors. A contingent of five hundred (in the legions) or thousand soldiers (in certain auxiliary troops).

De Ruggiero, DE 2.

Cohors. In administration, the subordinate personnel in the office of a high magistrate, an imperial official or a provincial governor. Of particular importance were the cohortes attached to the office of the prae­fecti praetorio {cohortes praetoriae), organized as military units under their command. They became in the course of time a highly influential military and political factor in the empire until their abolition by Constantine.—See praetorianus, praetorium.

Cagnat, DS 5, 603; M. Durry, Les cohortes pretoriennes, 1938; A. Passerini, Le coorii pretorie, 1939.

Cohortes vigilum. See vigiles.

Cohortales (cohortalini). Subordinate officials in the office of the praefecti praetorio and provincial gov­ernors in the later Empire.—C. 3.25 ; 12.57.—See COHORS.

Coire. See ius coeundi.

Collatio (conlatio). The contribution of money {pe­cunia, aes) for the erection of a monument, a grave­stone or a public building. When the contributor was a municipality or another public body, the con­struction was designated as erected acre publico.

De Ruggiero, DE 2, 602.

Collatio bonorum. A contribution to the estate to be made by emancipated children {collatio emancipati) and.including all their gains made after the emanci­pation, if they wanted to participate together with the non-emancipated children in the intestate inheritance of their father according to praetorian law {bonorum possessio unde cognati). The reason was that if the emancipated children had remained under the pa­ternal power of the deceased, all their acquisitions would have increased his property. On similar prin­ciples was based the collatio dotis with regard to the dowry which a daughter had received from her father. This collatio applied also to testamentary successions. The rules concerning the collatio dotis which were somewhat different from those of the collatio emanci­pati, influenced the development of the latter towards an extension to cases which were not foreseen at its origin. Collationes were made originally through an effective import of the goods acquired, later an appro­priate cautio sufficed; see cautio de bonis conferen­dis.—D. 37.6; C. 6.20.

Leonhard, RE 3, 704 (s.v. bonorum c.) ; Baudry, DS 1 (s.v. bonorum c.) ; A. Guarino, Collatio bonorum, 1937; idem, RendLomb 73 (1939), ZSS 59 (1939) 509, and Le collasioni ereditarie (Corso, Napoli, 1944), BIDR 49-50 (1947) 259.

Collatio donationis. Based on the same principles as collatio bonorum. It was introduced by Jus­tinian for all kinds of donations made by ascendants to their descendants and for all kinds of succession.

Collatio donationis ante nuptias. A collatio intro­duced in the late fifth century after Christ and applied to gifts made by a man to his betrothed. See donatio ante nuptias. The rules were similar to those of the collatio dotis.—See collatio bonorum.

Collatio dotis. See collatio bonorum.—D. 37.7; C. 6.20.

Pringsheim, SDHI 4 (1938) ; Leonhard, RE 3, 705 (s.v. bonorum c.).

Collatio emancipati. See collatio bonorum.

Collatio legum Mosaicarum et Romanarum. An anonymous compilation composed between a.d. 390 and 428 with the purpose to compare some selected Roman legal norms, chiefly of penal character, with the Mosaic law. The collection is known also under the name Lex Dei because some manuscripts have the title Lex Dei quam Dominus praecepit ad Moysen.

Editions: P. Krüger, Collectio 3; Kühler in Huschke’s Jurisprudentia Antcjustiniana 2, 2 (1927).—Jörs, RE 4; Moschella, NDI 3; F. Triebs, Studien zur Lex Dei, 1-2 (1905-1907); Μ. Hyamson, Mos. et Rom. L. Coll. 1913; N. Smits, Mos. etc. Coll., Haarlem, 1934; E. Volterra, MemLinc 1930; Ostersctzer, Revue Etudes Juives, 99 (1934); Kiibler, ZSS 56 (1936) 356; K. v. Hohenlohe, Ursprung und Zweck der C., 1935; idem, Archiv für kath. Kirchenrecht, 1939; Schulz, SDHI 2 (1936) 20; idem, The manuscripts of the C., Symbolae van Oven, 1946, 313 (=BIDR 55/56 Post-Bellum, 1951, 50), and History of Rom. legal science, 1946, 311, 344; Wolff, Scr Fcrrini 4 (1949) 77. For glosses: Voltcrra, RStDIt 9 (1936) 366.

Collatio lustralis. See aurum argentumque.

Collationes. In the later Empire, the term covers various contributions, ordinary and extraordinary, in kind, money or labor, imposed on possessors (lessees) of emphyteuticary land belonging to the emperor {fundi patrimoniales), to the fisc or to public cor­porate bodies {civitates). The term occurs in the rubrics of several titles in Justinian’s Code (10.28; 11.65; 74; 75) although it does not appear in the single imperial constitutions therein. Possessions of the dom us augusta and the res privata of the em­peror were exempt from such collationes.—C. 11.75.

Collator. A tax payer (in later imperial constitutions). Collectarii. Money-changers. They were united in associations.—See argentarii.

Platon, NRHD 33 (1909) 23.

Collectio causae. See causae coniectio.

Collegae. Members of the same association {colle­gium). Also co-guardians and co-heirs are collegae. In public law collegae are officials who simultaneously hold the same office and “have the same power” (D. 50.16.173 pr.), as e.g., consuls, praetors in the same year of service).—See comparatio.

Neumann, RE 4; Kiibler, RE 14, 407; Frezza, St Solazzi, 1948, 508.

Collegatarii. Legatees to whom the testator bequeathed the same object. The ius adcrescendi applies to a common legacy.—See concursu partes fiunt.

Collegia. Associations of both private and public char­acter, unions of different kinds and for different pur­poses (professional, cultural, charitable, religious). There were collegia of priests {collegia sacerdotum, pontificum) of tradesmen, craftsmen and workmen, of public officials, clubs for social gatherings, etc. Originally they had (probably since the Twelve Ta­bles) the right to assembly {coire, ius coeundi), they were permitted to issue statutes concerning their organization, activity, and the rights and duties of their members (leges collegiorum). Gradually, particularly under the imperial legislation, they have been granted certain rights as associations, such as both to have and to free slaves and to acquire legacies under a testament. The rule “if anything is owed to a universitas, is not due to its members,” and vice versa “what the universitas owes, the members do not owe” (D. 3.4.7.1) shows that the conception of a universitas {collegium) as a corporate body (cor­poration), separated from the individual members, came through. Generally they had a common fund (arca) and a representative (actor universitatis) who acted on their behalf. From the beginning, re­strictions were imposed on collegia to prevent them from acting against the laws and engaging in sub­versive activities. When doing so, they were con­sidered illegal {illicita), were dissolved and a crimi­nal prosecution of the members followed. Analogous terms are: corpus, universitas, societas, sodalicium. —D. 47.22.—See the following items, lex clodia,

LEX IULIA DE COLLEGIIS, LEGES COLLEGIORUM, CON­VENTUS COLLEGII, FABRI, ORDO COLLEGII, PACTIO COLLEGII.

Kornemann, RE 4 ; Baudry-Gayet-Humbert, DS 1 ; Berra, NDI 3 ; De Martino, NDI 9, 931 ; Waltzing, DE 2 ; idem, Études historiques sur les corporations professionelles, 1-3 (1895-1899) ; Groag, Vierteljahreschr. fiir Soziai- und Wirtschaftsgesch. 2 (1904) 481 ; U. Coli, Collegia e sodali­tates, 1913 ; La Piana, L’immigrazione a Roma, Ricerche religiose 2 (1926) 508; De Robertis, AnBari 1933 II, 3; idem, Il diritto associativo romano, 1938; Lo Bianco, Storia dei collegi artigiani dell’impero, 1934; Schnorr v. Carolsfeld Zur Geschichte der juristischen Person 1 (1933) ; A. Calderini, Le associazioni professionali in R. antica, 1933 ; P. W. Duff, Personality in Rom. private law, 1938; A. P. Torri, Le corporazioni romane, 1940; B. Eliachevitch, La personnalité juridique en dr. privé rom., 1942; Accame, Bull. Comm. Archeol. del Governorato di Roma, 10 (1942) App. 12; Arangio-Ruiz, FIR 3 (1943), nos. 32 ff; Berger, Epigraphica 9 (1947) 44; F. Schulz, Rom. classical law, 1951, 95.

Collegia apparitorum. Associations of apparitores. Waltzing, DE 2, 351 ; 369.

Collegia familiarum. Associations of the members of a family for the construction and maintenance of a common grave.

De Ruggiero, DE 3, 30.

Collegia funeraticia. Associations of poor men for the purpose of assuring each member of a decent funeral. The expenses were from a common fund collected through monthly fees {stips menstrua) paid by the members. Named also collegia tenuiorum. Early Christian communities were organized as col­legia tenuiorum.

Cuq, DS 2, 1402 ; De Vincenti, DE 3 ; Saleilles, Mel Girard 2 (1912) 470; M. Roberti, St Zanzucchi (Pubbl. Univ. Sacro Cuore, vol. 14, Milan, 1927) ; Besnier, Mel Albert Dufourcq, 1932; De Robertis, AnBari 1933, I, 101; Monti, St Riccobono 3 (1936) ; G. Bovini, La proprietà ecclesiastica, 96 (1947) 114.

Collegia illicita. Associations that were considered il­legal, not because they lacked formal requirements (authorization), but because their aims and purposes were ostensibly directed against the state or the public order. They are frequently mentioned in the last period of the Republic.—See collegia, lex iulia DE COLLEGIIS.

F. De Robertis, AnBari 1933, I, 134; idem, St di dir penale rom., 1943, 94.

Collegia magistratuum. Not collegia in the strict sense of the word; they are groups of magistrates who were COLLEGAE in office.

Fadda, St Brugi, 1910, 139.

Collegia sacerdotum. Colleges of priests performing the same priestly duties {collegia pontificum, augu- rum, flaminum, jetialium, etc.)—See nominatio.

Collegia tenuiorum. See collegia funeraticia. Collegia veteranorum. Associations of veterans.

Waltzing, DE 2, 350; 368.

Collegiati. Members of corporate bodies, particularly in the provinces. In Rome and Constantinople the term corporati prevailed. The membership in asso-

[TRANS. AMER. PHIL. SOC. ciations of artisans and workmen was compulsory. —C. 11.18.

Kornemann, RE 4, 460 ; G. Kühn, De opificum Romanorum condicione, Diss. Halle 1910, 27.

Colliberti. Slaves simultaneously manumitted by their master. Usually manumissions of a larger number of slaves were ordered in testaments.—See lex fufia CANINIA.

Thibault, Mèi Fournier, 1929, 725.

Collocare domicilium. See domicilium.

Collocare filiam in matrimonium. To give away a daughter in marriage.

Collocare pecuniam. To invest money {in nomina = in loans).

Kübler, Mèi Girard 2 (1912) 49.

Collusio. (From colludere.) A secret understand­ing between two or more persons for the purpose of obtaining fraudulently an illegal profit or injure a third person, primarily through a fictitious {perlu­sorium iudicium) trial. Collusion frequently occurred between a patron and his freedman in order to make the latter be declared free-born.—D. 40 16; C. 720. —See SENATUSCONSULTUM ninnianum.

Leist, RE 4; H. Krüger, 57 Riccobono 2 (1936) 247.

Colonatus. In the late Empire from the fourth cen­tury on, the legal, economic, and social situation of coloni, i.e., rural laborers bound to the soil which they cultivated for the landowner. Their connection with the soil was so close that its alienation i ivolved their transfer to the acquirer. The original condition of coloni was that of perpetual tenants. It became hereditary in the course of time and assumed the aspect of serfdom from which they could be freed under certain circumstances. Legally they were free and Roman citizens. Desertion from the land did not change their status since they could be reclaimed by the landowner. People in distress voluntarily accepted the condition of coloni.—C. 11.48; 51-53; 64 ; 69.—See adscripticii.

Seeck, RE 4 ; Humbert, DS 1 ; Schulten, DE 2 ; Bolke­stein, De colonatu romano, Amsterdam, 1909; H. F. Pel­ham, The imperial domains and the colonate, Oxford, 1911 ; Rostowzew, Studien zur Geschichte des Kolonats, 1910; idem, The problem of the origin of serfdom, Jour, of land and public utility economics, 1926, 148; R. Clausing, The Rom. colonate, New York, 1925; Saumagne, Byzantion 12 (1937) 487; Collinet, Recueil de la Sociètè J. Bodin, 2 (Bruxelles, 1937) 85 and Studi Bizantini e Neoellenici 5 (1938) 600; Ganshof, AntCl 14 (1945) 262.

Coloni. Citizens of a colony ’{colonia) ; farmers on land taken on lease. For coloni in the later Empire, see colonatus.

Coloni adscripticii. See adscripticii.

Coloni dominici. Coloni on land belonging to the private property of the Emperor.—C. 11.69.

Coloni partiarii. Tenant-farmers who gave the land­owners a portion of the products as a rent (instead of a rent in money). They shared profits and losses with the owner as if there existed partnership {socie­tas) between them and the owners.

V. Bolla, RE 18, 4, 2480; Ferrini, Opere 3 (1929, ex 1893) 1; P. Brunn, Die colonia partiaria, Diss. Berlin, 1907.

Coloni patrimoniales. Coloni on land belonging to the PATRIMONIUM PRINCIPIS.

Coloniae. The first Roman colonies composed of Roman citizens were founded on the Roman coast line.’ Later colonization expanded through Italy for military, naval, political, and commercial purposes. Some colonies were founded on the basis of ius lath granted to their citizens (colonia Latina, Latini coloniarii). Under Augustus colonization comprized the provinces on the Mediterranean. Colonies were named after their founders. Their organization, set­tled in a charter (lex coloniae, leges colonicae), varied with the times. They were administered by duoviri iuri dicundo whose competence was similar to that of consuls and praetors in Rome.

Kornemann, RE 4, 567; Lenormant, DS 1; Scherillo, ND1 3; Schulten, DE 2, 415; Sherwin-White, OCD (s.v. colonization) ; J. S. Reid, Municipalities of the R. empire, 1913, 60; Abbott, CIPhilol 10 (1915) 123; E. Pais, Storia della colonizzazione della Roma antica, 1 (1923) ; Salmon, JRS 26 (1936) 47; A. N. Sherwin-White, The Roman citizenship, 1939; Degrassi, Atti Accad. Lincei, Ser. 8, vol. 2 (1950) 281; Vittinghoff, ZSS 68 (1951) 440.

Colonia Latina. A colony the citizens of which were granted only the ius lath, and not Roman citizen­ship. They were Latini coloniarii. A Roman citizen who took domicile in a colonia Latina at its founda­tion, lost Roman citizenship and became a Latin.

Vittinghoff, ZSS 68 (1951) 475.

Colonia partiaria. See coloni partiarh.

Comes domesticorum. The commander of the court garrison.

Seeck, RE 4, 648.

Comes domorum. The superintendent of imperial buildings.

Seeck, RE 4, 651.

Comes formarum. See comites.

Comes Orientis. The ruler of the Dioecesis Orientis (Syria, Palestine, etc.).—C. 1.36; 12.56.

Seeck, RE 4, 662; G. Downey, A study of the C.O. and the consulares Syriae, Diss. Princeton, 1939.

Comes portus. See comites.

Comes rei militaris. Military commanders who re­ceived this distinctive title after important achieve­ments in the provinces.—C. 12.12; 1.47.

Seeck, RE 4, 662; Grossi-Gondi, DE 2, 516.

Comes rei privatae (rerum privatarum). These di­rected the administration of the imperial domains. Property confiscations of persons condemned in criminal trials, vacant inheritances and seizures of all kind belonged to his competence.—C. 1.33; 12.6. —See PROCURATOR REI PRIVATAE, COMES SACRI PATRI­MONII.

Seeck, RE 4, 664; Grossi-Gondi, DE 2, 497.

Comes sacrae vestis. The supervisor of the imperial wardrobe.

Seeck, RE 4, 671.

Comes sacrarum largitionum. The highest officer in the financial administration of the state and head of the state treasury. He is also the highest judicial authority in tax matters. There was no appeal to the emperor against his decisions.—C. 12.6; 1.32.— See LARGITIONES.

Samonati, DE 4, 409; Grossi-Gondi, DE 2, 495; Seeck, RE 4, 671.

Comes sacri cubiculi. The chamberlain of the im­perial palace.

Comes sacri palatii. The marshal of the imperial resi­dence. His fuller title was comes et castrensis sacri palatii.—C. 12.13.

Comes sacri patrimonii. The chief of the adminis­tration of the emperor’s patrimony. The office, created at the end of the fifth century, assumed a part of the duties of the comes rerum privatarum.— C. 1.34.

Seeck, RE 2, 675.

Comes sacri stabuli. The imperial equerry.

Seeck, RE 4, 677.

Comitatenses largitionum. The staff of the office of the COMES SACRARUM LARGITIONUM.—See LARGI­TIONES.

Comitatus. All the comites forming the retinue of the emperor.

Comites. In the Republic and the early Empire, sub­ordinate officials in the office of a magistrate (see cohors) or provincial governor.

Comites. In the later Empire, comes was the title of high military and civil officials. In almost each branch of the administration it was conferred on more important functionaries who under the Princi- pate were simply curat ores. Thus a comes formarum headed the administration of water supply, a comes portus had the supervision of the ports, a comes riparum et alvei Tiberis et cloacarum supervised the rivers, the Tiber and the sewers. Some of those officials of particular significance in the government of the later Empire are mentioned in the following items. The dignity of a comes — comitiva. There were three degrees of comitivae: primi, secundi, tertii ordinis. Besides, the title of a comes was granted to meritorious persons, even such who never had served in official capacity. The comites in gen­eral, but particularly those of the highest class resid­ing in the imperial palace and in daily contact with the emperor, became the most influential persons in the later Empire.—C. 12.6; 10-14.—See the fore­going and the following items.

Seeck, RE 4; Humbert, DS 1; Grossi-Gondi, DE 2.

Comites Augusti. These appear about the middle of the second century as advisers of the emperor during his travels.

Seeck, RE 4, 626.

Comites commerciorum. Supervisors of the trade with the adjacent states and custom officers.

Seeck, RE 4, 643; Grossi-Gondi, DE 2, 507.

Comites consistoriani. Members of the imperial coun­cil {consistorium).—C. 12.10.

Sceck, RE 4, 644; Grossi-Gondi, DE 2, 482.

Comites dispositionum. Directors of the department of the imperial chancery for private (not govern­mental) matters of the emperor {scrinium disposi­tionum).

Seeck, RE 4, 647.

Comitia. Assemblies of the Roman people {populus Romanus) for legislative and judicial purposes as well as for elections. They are to be distinguished from the assemblies of the plebs alone, concilia plebis. For the various comitia, see the following entries. The comitia were convoked by a high magistrate who had the ius agendi cum populo. Only matters pre­sented by the convoking magistrate could be sub­mitted to vote and amendments to the proposals were not admitted. An informal gathering of the people, contio, might take place before the comitia assembled in order to discuss the subjects on which the citizens had to vote in the comitia.

Liebenam, RE 4; Humbert, DS 1; Ferrini, NDI 3; De Ruggiero, DE 2, 804; Mattingly, OCD; G. W. Botsford, The Rom. assemblies, 1909; Marchi, L’infrequentia nei c., RendLomb 45 (1912) 72; E. Pais, Ricerche sulla storia 4 (1921) 49; Siber, ZSS 57 (1937) 233; Brecht, ZSS 59 (1939); G. Nocera, Il potere dei comi A, 1940; Cosen- tini, AG 131 (1944) 130.

Comitia calata. One of the ancient forms of comitia convoked {calata) by the pontifex maximus for special religious purposes. There the opportunity to make a will was given the citizens {testamentum calatis comitiis).

Kübler, RE 4; B. Biondi, Successione testamentaria, 1943, 47.

Comitia centuriata. A popular assembly based upon the division of the people into centuriae, classified according to the value of the property of the individ­ual citizens. Primarily a military unit, the centuria was also a voting unit with one vote only, determined by the majority of its members. Originally the comitia centuriata had large legislative functions, but they lost them gradually to the benefit of comitia tributa. They retained, however, other prerogatives, such as the election of magistrates, the decision about war and peace, and jurisdiction as a court of appeal in capital matters.—See lex de bello indicendo, POMERIUM, PROVOCATIO.

G. Rotondi, Leges publicae populi Romani, 1912,31 (Bibl.) ; Tibiletti, Ath 27 (1929) 172, 210; Siber, ZSS 57 (1937) 263; Momigliano, SDH I 4 (1938) 509; Guarino, 37 So- lazzi, 1948, 27; Dell’Oro, La parola del passato 14 (1950) 132; De Visscher, RHD 29 (1951) 34; Gallo, SDHI 18 (1952) 128.

Comitia curiata. The earliest legislative assembly based upon the division of the people into curiae. At the beginning of the Republic they were deprived of their legislative functions and their competence was limited to voting the lex curiata de imperio by which the magistrates were vested with imperium,

[TRANS. AMER. PHIL. SOC. and to approving certain legal acts connected with the family system, as adrogatio and testaments.—See pomerium.

Siber, RE 21, 128.

Comitia tributa. The basis of this popular assembly of patricians and plebeians was the division of the Roman territory into local, district organizations, tribus. Originally limited to less important matters (the election of minor magistrates, restricted juris­diction as a court of appeal) their competence in­creased in the second hall· of the fourth century b.c. when they superseded the comitia centuriata in legis­lative matters.—See lex cqrnelia pompeia, tribuni plebis, provocatio.

G. Rotondi, Leges publicae populi Rom., 1912, 36 (Bibi.). Comitialis morbus. See morbus comitialis. Comitiatus maximus. See comitia centuriata.

E. Pais, Ricerche sulla storia 1 (1915) 408.

Comitium. The place at the forum of Rome where the curial assemblies {comitia curiata) took place.

De Ruggiero, DE 2. Comitiva. See comites. Commeatus. In military service, a furlough. A sol­dier on leave of absence is not considered absent in the interest of the state. He becomes an emansor when he does not return in time, or a desertor, when his absence lasts a longer time.—C. 12.42.

Commendare (commendatio). Recommendation of a candidate for an office in Roman or provincial ad­ministration by the emperor when the appointment depended upon a popular assembly or the senate (from the time of Tiberius).—See candidatus principis.

Brassloff, RE 4; De Ruggiero, DE 2; Balsdon, OCD; O’Brien-Moore, RE Suppl. 6, 780.

Commendare. See deponere.

Commentariensis. An officer in a record-office. In the military administration he had similar functions as the a commentariis.—Commentarienses were also officials in public prisons. One of their tasks was to superintend the execution of corporal punish­ments. See COMMENTARII.

V. Premerstein, RE 4, 759; De Ruggiero, DE 2, 540.

Commentarii. Records (a journal) kept in the offices of higher magistrates about their official activities {commentarii consulares, censorii, commentarii of provincial governors). The recording officers = a commentariis (as, e.g., a commentariis praefecti prae­torio, praefecti vigilum). This also was the title of the director of the pertinent division of the imperial chancery.—As a type of juristic writings commentarii has no technical meaning. Apparently they were notes for lecturing purposes. The Institutes of Gaius are divided into four commentarii; he denoted his other works also as commentarii.

V. Premerstein, RE 4, 726, 759; Thedenat, DS 1 (s.v. commentarium) ; De Ruggiero, DE 2; Kiibler, RE 6, 499;

F. Schulz, History of Roman legal science (1946) 340.

Commentarii beneficiorum. A special register in the imperial chancery for enactments granting personal privileges. See BENEFICIUM.

V. Premerstein, RE 4, 741; De Robertis, AnBari 1941, 185.

Commentarii principum. Records kept in the im­perial chancery for imperial enactments. There were apparently separate divisions in the imperial record office in which various types of imperial constitutions (commentarii epistularum, edictorum, etc.) were kept under the supervision of one or more a commentariis. The Semestria (Semenstria) of the emperor Marcus Aurelius had perhaps some connection with his legislative activity as excerpts from the commentarii made public every six months. Of particular im­portance were the commentarii of civil and criminal trials which had taken place before the emperor.

V. Premerstein, RE 4, 739; Bresslau, ZSS 6 (1886).

Commentarii sacerdotum (pontificum, augurum). Records (diaries) kept in the archives of the various colleges of priests. The commentarii pontificum con­tained reports on their activities, statutes of their temples, rules of sacral law, and the like.

V. Premerstein, RE 4, 729; Rose, OCD; G. Rohde, Kultsatzungen der rom. Pontifices, 1936; F. Norden, Aus rom. Priesterbiichern, Lund, 1939; C. W. Westrup, Intro­duction to early R. lazv, 4, 1 (1950) 35.

Commercium. The right to buy and to sell recipro­cally (Epit. Ulp. 19.5). In other words the legal ability to conclude valid transactions in order to ac­quire or to sell goods. Commercio interdicere = to deprive a person (for instance, a spendthrift) of this right. Similarly certain things are exempt from being the object of commercium; see res cuius com­mercium non est. For commercium in interna­tional trade relations, see ius commercii.—C. 4.63. Leonhard, RE 4; Humbert, DS 1; M. P. Charlesworth, Trade routes and commerce in the R. Empire, Cambridge, 1926; O. E_k Powers, Studies in the commercial vocabulary of early Latin, Chicago, 1944; Sautel, in Varia. Et. de droit rom., Paris, 1952; Kaser, St Arangio-Ruiz 2 (1952) 131.

Comminatio. A threat applied by a magistrate to a party in a trial to the effect-that certain consequences will result if his order is not followed, as, e.g., pay­ment of interest if the debt is not paid at the date fixed.—C. 7.57.

Commiscere ^(commixtio). To mingle things to­gether. The product resulting from the mixing to­gether of materials belonging to different owners was owned by them in common, when the materials were of the same kind, or when they were of different but inseparable sorts.

Pampaloni, BIDR 37 (1929) 38.

Commissoria lex. (In sales.) An additional clause in a sale (emptio venditio) under which the seller had the right to rescind the contract if the buyer failed to pay the price or its remainder within a cer­tain time.—D. 18.3.

Leonhard, RE 4; Humbert, DS 1; F. Wieacker, Er- füllungszzvang und Widerruf im röm. Kaufrecht, 1932 ; Levy, Symb Frib Lend 1932; Archi, St Ratti, 1934, 325 ; Biscardi, StSen 60 (1948) 611.

Commissoria lex. (In a pledge.) An agreement be­tween creditor and debtor by which the former be­comes owner of the pledge if the debtor fails to pay the debt at the date fixed. Constantine forbade such agreement.—C. 8.34.—See ius distrahendi, pignus.

Naber, Mn 32 (1904) ; Raape, Verfallsklausel beim Pfand, 1 (1913) ; A. Burdese, L. c. c ius vendendi (Mem. 1st. Giur. Torino, 63) 1949; Kaser, ZSS 67 (1950) 557.

Commissum. In fiscal law, a confiscation of goods, primarily for the violation of custom provisions.— D. 39.4; C. 4.61.

Commissum. In penal law, a criminal offence. Syn. admissum.

Humbert, DS 1; De Dominicis, AVen 92 (1932-33) 1215. Committere. To commit an unlawful act (committere crimen, delictum, scelus, furtum, adulterium). In contractual law: to forfeit a right or an advantage or to incur a penalty by committing an act to which according to the agreement of the parties involved such consequences were attached (committere stipu­lationem). In passive form (committi), as in phrases like stipulatio (cautio) committitur, the term indi­cates that a certain obligation becomes binding be­cause the suspensive condition under which the prom­ise was given was realized.

Committi fisco (or similar). To incur a confiscation. —See commissum (in fiscal law).

Commixtio. See commiscere.

Commodator. See commodatum.

Commodatum. A gratuitous loan of a thing (origi­nally movables, later also immovables) to be returned by the borrower to the lender (commodator) on the terms fixed in the agreement or reasonably corre­sponding to the purpose of the loan. Commodatum belongs to the so-called real contracts concluded by the delivery (re) of the thing and is governed by bona fides. Normally commodatum was to the ex­clusive benefit of the borrower; therefore his liability for the use of the thing is extensive (diligentia, cus­todia). He is not responsible for damages caused to the thing by accidents beyond his control (casus). The lender had an action (actio commodati) against the borrower for the misuse or the return of the thing, whereas the borrower might sue with actio commo­dati contraria for the recovery of extraordinary ex­penses and for damages caused by the fault of the lender.—D. 13.6; C. 4.23.—See fiducia cum amico.

Leonhard, RE 4; Humbert, DS 1; C. Ferrini, Opere 3, 81; G. Segre, St Fadda 6 (1906) 313; R. De Ruggiero, BIDR 19 (1907) 5; Cicogna, ibid. 235; Schulz, GrZ 38 (1911) 12; J. Stock, Zum Begriff der donatio, 1932; Pflüger, ZSS 65 (1947) 121.

Commodum. Advantage, profit. Legal benefits, re­sulting from statutes or senatusconsulta are desig­nated as commoda, similarly the rights connected with a certain legal situation (possession, ownership) as well as proceeds, such as interest, wages, and the like. Ant. incommodum, onus, “It is natural that he who suffers the disadvantage of a thing should have also the profits thereof” (Inst. 3.23.3; D. 50.17.10). A similar saying is: “he who bears the risk should have also the profit.” The rule applies to the contract of sale {emptio venditio) to the effect that the buyer who bears the risk {periculum) of deterioration, destruction or disappearance of the thing purchased but not yet delivered has the right to its products and increase after the conclusion of the sale.—See emptio venditio.

Commodum repraesentationis. See repraesentare. Commonitorium. A letter of reminding, an order. Commonitorium sacrum — an order of the emperor to an official.

Seeck, RE 4.

Commorientes. Persons who died in the same acci­dent (e.g., a shipwreck). There were certain rules concerning the simultaneous death of parents who died together with their children: children below the age of puberty {impuberes) were presumed to have died before their parents, whereas children over that age {puberes) had to be considered dead after their parents. The rules, which probably originate in Justinian’s law, had to be observed in the case of succession. Syn. simul {pariter) perire {decedere). Ant. supervivere { — to survive).

Beseler, ZSS 44 (1924) 373; G. Donatuti, Le praesump­tiones nel diritto rom., 1930, 22; idem, Rivista di dir. pri­vato 3 (1933) 198.

Communicare. To share a thing with another by making him co-owner thereof or by dividing it or its proceeds with him.

Communicare lucrum cum damno. To share profits and losses with another. This is a fundamental prin­ciple of the contract of partnership {societas) except for losses caused by fraud or negligence of one of the partners. In relations among successors, espe­cially when an heir was obliged to deliver the inheri­tance wholly or partially to a fideicommissarius, re­ciprocal stipulations were made in order to guarantee the common participation in profits and losses {de lucro et damno communicando).

Communio. Common ownership. It arises when two or more persons buy or acquire through inheritance or legacy the same thing in common. They have either equal or unequal shares thereof, the thing remaining physically undivided {pro indiviso). The co-owners have the same legal situation with refer­ence to the whole and participate according to their shares in the produces {fructus) and expenses. Each of them may freely dispose of his share but not be­yond it. Division of the common property becomes necessary when the co-owners disagree {communio est mater rixarum = common ownership is the mother of disputes). It is achieved by the actio communi dividundo, or in the case of common inheritance by the actio jamiliae {h)erciscundae. These divisory actions offer an opportunity for settling other con­troversies among co-owners, such as restitution of expenses made on the common thing by one co­owner, equalization of profits and damages and the like (so-called praestationes personales).—D. 10.2; 3; C. 3.36; 37; 38; 4.52.—See adiudicatio, ius PROHIBENDI, ACTIO COMMUNI DIVIDUNDO, IUS AD- CRESCENDI, NEMO INVITUS.

Leonhard, RE 4 ; Biondi, NDI 4 ; A. Berger, Zur Ent- wicklungsgeschichte der Teilungsklagen, 1912; Bonfante, BIDR 25 (1912) ; Riccobono, Dalla communio del diritto quiritario, Oxford Essays in legal history, 1913 ; idem, Dal diritto^ rom. classico al dir. moderno, AnPal 3-4 (1917) •165; Ein, BIDR 39 (1931) ; Branca, RISG 6 (1931) 215, 7 (1932) 247; Borettini, RISG 7 (1932) 459; J. Gaudemet, Le regime juridique de 1’indivision en dr. rom., 1934 ; Solazzi, ANap 57 (1935) 127; Arangio-kuiz, La società (Corso), 1950, 32; Ambrosino, SDHI 16 (1950) 188.

Communio incidens. The term is used in literature to. indicate common ownership which arose without interference of the co-o’wners, as in the case of an inheritance or legacy awarded to two or several persons who thus “fell in together into common property” {“incidimus in communionem”).

Arangio-Ruiz, 57 Riccobono 4 (1936) » 355 ; Donatuti, St A lb ertario 1 (1952).

Communio sacrorum. See sacra.

Communis. (Adj.) A thing may be communis (com­mon property) to all (see res communes omnium), or belong to a corporate body {corpus, collegium) or to two or more persons, res communis (see com­munio). Commune (a noun) embraces all that sev­eral persons have in common. It may be ownership, or another right, as superficies, ius in agro vectigali. In the denomination of the actio communi dividundo, commune is used in this large sense. Communis is also what is in the interest of more persons or the whole society {communis utilitas) or concerns more persons {communis culpa, periculum). Communia (pl. noun) = rules which equally apply to similar legal institutions; several titles in the Code contain such common rules, as, e.g., communia de legatis et fideicommissis (C. 6.43).—See ius commune, utili­tas.

Communiter agere. To act on behalf of more per­sons or a corporation.—See stipulatio communis.

Comparare. See parare, comparatio litterarum.

Comparati©. An agreement between colleagues in office concerning the division of competence or the assignment of the performance of a specific official act to one of them.—See collegae.

Comparatio litterarum. The comparison of hand­writings. Experts on handwriting {comparatores) were heard in a trial when doubts about the authen­ticity of a written document arose.

Compascere. To exercise the right of common pas­turage {ius compascendi, ius compascui).

Compatroni. Co-patrons who manumitted a common slave.

Compendium. A profit. Syn. lucrum, ant. dispendium. Compensatio. Occurred in classical law when the judge on grounds of good faith (only in a bonae fidei iudicium) took into consideration what the plaintiff owed to the defendant from another transaction and condemned the defendant to pay the balance only if his debt was larger. Later a set off of reciprocal debts was available under certain circumstances through exceptio doli. The practice of the cognitio extra ordinem favored the development of the institution and thus it became a general form of extinction of obligations which operated even beyond the judicial courts. In this final stage compensatio worked ipso iure (= by the force of law) and not ope exceptionis (through an exception) when reciprocal debts be­tween two persons met together.—D. 16.2; C. 4.31. See ARGENTARII, DEDUCTI0.

Leonhard, RE 4; Humbert, DS 1; Biondi, NDI 3; Brass- loff, ZSS 22 (1901); P. Kretschmar, Entwicklung der Compensation, 1907; Leonhard, Mel Girard 2 (1912); B. Biondi, La compensazione, AnPal 12 (1929); Solazzi, La compensazione² (1950) ; Kreller, lura 2 (1951) 82.

Comperendinatio. (In a criminal trial, particularly on extortion, repetundae.) Compulsory division of the case into two proceedings (actio, prima, actio se- cunda). Voting took place at the end of the second hearing.—See lex servilia de repetundis and the following item.

Kipp, RE 4, 790; Balsdon, Papers of the British School of Rome, 1928, 98.

Comperendinus dies. The third following day. On that day after the appointment of the iudex the par­ties had to appear before him (in the legis actio pro­ceedings).—Syn. perendinus dies.

Kipp, RE 4 (s.v. comperendinatio) ; Humbert, DS 2, 177 (s.v. dies) ; Ferrini, NDI 3.

Competens. When applied to procedural elements as actio, iudex, poena, tribunal, etc., indicates the action, the judge, etc., pertinent (competent) to the specific case. Justinian’s compilers often substituted the term competens in place of the classical expression which in Justinian’s time was obsolete because of the reformed organization of the procedure and admin­istration of justice.

Guarneri-Citati, Indice² (1927) 19; Berger, Krl⁷j 1914, 142.

Competere. Actio competit is used of actions which were granted by the ius civile, while praetorian ac­tions are “given” (a praetore dantur). When used with reference to other actions than those of ius civile the term may be frequently of compilatory origin.

P. Kruger, ZSS 16 (1895) 1; Guarneri-Citati, Indice² (1927) 19; Vinci, AnCat 2 (1948) 365.

Competitor. (In later imperial constitutions.) An im­perial official of the treasury charged with the seizure of goods submitted to confiscation. Syn. (some­times) petitor.

Componere (compositio). To draft the text of a legal instrument (a testament, a codicil, a stipulatio, a compromise, or a procedural formula).

Componere controversiam. To settle a dispute by a compromise.

Compos mentis. Fresh of mind, mentally healthy. Ant. demens.

Comprobare. See adprobare. Syn. probare.

Compromissum (compromittere). An agreement of the parties to submit their controversy to an arbi­trator {compromittere in aliquem de aliqua re). It normally provided for the payment of a penalty by the defeated party defaulted in the fulfilment of the arbitrator’s decision (pecunia compromissa).—See ARBITER EX COMPROMISSO.

Leist, RE 4; De Ruggiero, DE 1, 615; La Pira, St Ricco- bono 2 (1936) 187; Roussier, RHD 18 (1939) 167.

Computare. To reckon, to include in an account (e.g., in quartam Falcidiam). Syn. calculus. Error com­putationis = ERROR CALCULI.

Conatus. (In penal law.) An attempt to commit a crime. The Roman jurists did not elaborate a general theory of the criminal attempt, nor did they establish any rule as to when an attempt should be punished. With regard to some crimes preparations made with criminal intent were declared to be liable to punishment (as, for instance, some cases under the Lex Cornelia de sicariis), with regard to others they were not. Nor is a clear distinction made between intent to commit a crime (consilium, voluntas sceleris) and an actual but unsuccessful attempt. However, juristic and literary texts distinguish between in­tended and not committed crimes (cogitata, non perfecta scelera) and those actually carried out (exi­tus, factum, eventus). In a rescript of Hadrian we read: “With regard to crimes intention is taken into consideration, and not the result (exitus)” (D. 48.8.14). Similarly a late imperial constitution of a.d. 397 (preserved in the Theodosian Code 9.26.1, but not accepted into Justinian’s Code) contains, in connection with the Lex Julia de ambitu, the rule: “Statutes (the laws) punish equally a crime and the intention to commit it (sceleris voluntas)” These dicta not only did not become a general rule but are even contradicted by other texts in legal sources.— See COGITATIO.

Costa, Il conato criminoso, BIDR 31 (1921) 20.

Concedere. To concede, to grant another a right (e.g., a servitude). Sometimes syn. with cedere. When referring to a debt = to remit, to release from an obligation.

Concepta verba. Appears in a text by Gaius (4.30) as synonymous with the formula in the formulary procedure. See CONCEPTIO VERBORUM.

Solazzi, Fschr Wenger 2 (1945) 54.

Conceptio. A conception. The time of conception is decisive for the personal status of the child. In classical law the child was free if at any time be­tween the conception and the birth the mother was a free person. Similarly the time of conception is of importance in the doctrine of posthumous children (postumi), inasmuch as there was a difference ac­cording as the conception took place before or after the testament was made.

Conceptio verborum. The drafting of a legally im­portant oral declaration (an oath, a stipulation) or a written procedural instrument (formula, interdic­tum, libellus).

Conceptus. Conceived and not yet born. See con­ceptio. Syn. in utero esse. The law protects the interests of a child not yet born, in particular his rights of succession and for this purpose the child whose birth is expected (nasciturus) is treated as if it were already born (pro nato habetur).—See pos­TUMI, NASCITURUS.

Albertario, St 1 (1933) 3; Castello, St Solassi, 1948, 232; idem, RIDA 4 (1950) 267; Bastosek, RIDA 2 (1949) 28.

Concilia plebis. Assemblies of the plebs alone. They met originally by curiae and later (lex publilia voleronis) by tribus (concilia plebis tributa). Reso­lutions passed by the concilia plebis = plebiscita. Three statutes are cited in connection with the legis­lative power of the plebeian assemblies (lex pub­lilia PHILONIS, VALERIA HGRATIA, HORTENSIA) but the extant evidence is not precise enough to admit of an exact understanding of their significance. The last statute (287 b.c.) is the most concrete in this obscure history. The plebiscites were passed upon the motion of the plebeian tribunes.—See plebiscita, TRIBUNI PLEBIS.

Kornemann, RE 4; Humbert, DS 1; Vaglieri, DE 2;

G. W. Botsford, The Roman assemblies, 1909,.119.

Concilia provinciarum. Provincial assemblies com­posed of leading personages as representatives (le­gati) of the various political entities in the prov­ince. The original purpose of these gatherings was of a religious character: to celebrate the cult of the divinity of the emperor (Augustus) in the capital of the province. Their activity developed consid­erably. They maintained a direct contact with the governor of the province through envoys and exer­cised a kind of control over his activity which might result in a criminal prosecution of the governor at Rome. In the second half of the third century they began to disappear.

Kornemann, RE Suppl. 4 (s.v. koinon = the Greek term for c.); E. G. Hardy, St in R. history, 2nd ed., 1910, 235.

Conciliabulum. A settlement, a community of lesser extent than a municipality (municipium). The or­gans of local administration were similar to those of a municipality, including an administrative council (ordo decurionum). ' Some conciliabula may have been important market places since conciliabulum often appears in connection with a forum.—See municipium.

Schulten, RE 4; Grenier, DS 5, 856.

Concilium manumissionum. An advisory board of five senators and five equites constituted to examine the. reasonableness of exceptional manumissions (of slaves under thirty or when the master was under twenty). Such councils existed also in the provinces under the chairmanship of the governor.

Concilium propinquorum. See consilium propin­quorum.

Concipere. See CONCEPTA VERBA, CONCEPTIO VERBO­RUM, CONCEPTIO, CONCEPTUS.

Concordans matrimonium. (Syn. concordantes vir et uxor.) A marriage in which husband and wife live in perfect accord. The terms occur in connection with the problem of whether the father of the wife may exercise his patria potestas in order to dissolve such a marriage.

Volterra, RIDA 1 (1948) 232.

Concubina. See concubinatus.

Concubinatus. A concubinage. The sources do not contain any definition of concubinatus. It is a per­manent, monogamous union of men and women not legally married. It differs from marriage through the lack of affectio maritalis and of the honor matrimonii (the social dignity of a woman living with a man in a legitimate marriage). Concubinatus was not prohibited by law and the lex iulia de adul­teriis did not apply to persons living in concubinatus. Restrictions· which barred the conclusion of a valid marriage were also binding with regard to concubi­natus. The relation did not produce any legal con­sequences. Justinian favored the transformation of the concubinatus into marriage by establishing the presumption that a union with a free woman of honest life (honestae vitae) is considered a valid marriage unless the parties declared in a written document before witnesses that they were living in concubinatus. —D. 25.7; C. 5.26.—See paelex.

Leonhard, RE 4; Baudry, DS 1; De Ruggiero, DE 2; P. M. Meyer, Der rom. Konkubinat, 1895; Costa, BIDR 11 (1900) 233; J. Plassard, Le concubinat rom. sous le Haut-Empire, 1921; G. Castelli, Il concubinato e la legis- lasione Augustea, Scritti 1 (1923) 143; Bonfante, St Perozzi, 1925, 283 ( =Studi 4, 563) ; E. J. Jonkers, Invloed •van het Christendom op de romeinsche wetgewing betref­fend het concubinaat, 1938; C. Castello, In terna di matri­monio e concubinato nel mondo rom., 1940; Janeau, De radrogation des liberi naturales, 1947, 29.

Concubitus. Coition. The term occurs in the classical rule concerning the conclusion of a marriage. Nup­tias non concubitus, sed consensus facit (= consent, not intercourse, constitutes marriage, D. 35.1.15; 50.17.30).—See matrimonium, nuptiae.

Concurrentia delicta. See delicta concurrentia.

Concurrere. Said of actions which lie in favor of one person for the same thing (de eadem re). Actiones concurrentes are to be distinguished from actions which arise from the same fact but have different aims, as for instance in the case of a theft, see fur­tum. The claimant could sue only with one of the concurrent actions de eadem re according to the rule “if one was chosen the other is consumed” (D. 47.7.34 pr.; D. 50.17.43 pr.).

Leonhard, RE 4; Humbert, D$ 1; Peters, ZSS 32 (1911) 179; I. Alibrandi, Del concorso delle asioni, Opere 1 (1896) ; E. Levy, Die Konkurrens der Aktionen, 1-2, 1 (1918, 1922) ; Liebman, Asioni concorrenti, St Ratti, 1934; Naber, Mn 52-53 (1924-25) ; Betti, Istitusioni I² (1942) 335 (Bibl.).

Concursu partes fiunt. When the same thing (inheri­tance, legacy) or the same right is assigned to several persons all share equally therein, unless the testator disposed otherwise.

Concursus causarum. Occurs when a person to whom a determined thing is due becomes owner thereof under a different title. The obligation to deliver the thing automatically becomes void, “because what is ours cannot be given to us” (Gaius Inst. 4.4). Thus the performance of the duty becomes impossible. In later development another more equitable solution was found. The obligation of the debtor was extinguished only when the creditor got the thing gratuitously (ex causa lucrativa), for instance, by legacy or donation.

C. Ferrini, Opere 3 (1929, ex 1891) 385; Schulz, ZSS 38 (1917) 114.

Concussio. (From concutere.) Extortion of money or gifts through intimidation, misuse of authority by an official or by a person who falsely assumes an official character.—D. 47.13; C. 12.61.

Hitzig, RE 4.

Condemnare. To conuemn the defendant in a civil trial to the payment of a sum of money (see con- dem natio) or the accused in a criminal trial. Ant. absolvere.

Hitzig, RE 4 (for criminal procedure).

Condemnatio. (In formulary proceedings.) “That part of the formula by which the judge (iudex) is empowered to condemn or to absolve the defendant” (G. 4.43). In the condemnatio either a fixed amount was indicated (condemnatio certa) or a maximum sum was fixed which the judge could not exceed (dumtaxat = not exceeding). In certain formulas no sum at all was indicated, the judge being authorized to fix the sum of the condemnation at his discretion by expressions such as the following: quanti ea res est (or erit = what the -value of the matter in dispute is, sc. at the time when the formula was set or when judgment will be pronounced respectively), or simply by quidquid (“whatever” may appear appropriate to the judge, as in cases when the obligation concerned an incertum), or, in exceptional cases, by the phrase quantum aequum videbitur (= as much as will appear equitable to the judge). In the so-called iudicia bonae fidei the condemnatio contained the clause ex fide bona (according to [in] good faith).—See sen- tentia, taxatio, egredi, and the following items.

Leist, RE 4; Beretta, St So lassi 1948, 264.

Condemnatio certa (certae pecuniae). A condem­natio in which the judge is instructed to condemn the

defendant to pay a fixed sum. Ant. condemnatio incerta. See CONDEMNATIO.

Condemnatio cum deductione. See deductio.

Condemnatio incerta (incertae pecuniae). A con­demnatio in which the sum is indefinite. Ant. con­demnatio certa. The condemnatio incerta is either unlimited or limited by a maximum (cum taxatione). See CONDEMNATIO.

Condemnatio in quantum facere potest. (Sc. the defendant.) A condemnation to what the defendant is able to pay.—See beneficium competentiae.

Condemnatio pecuniaria. A condemnatio to pay a sum of money. The classical law did not admit of any other condemnation in a civil trial than a pe­cuniary one. In suits in which the plaintiff claimed the delivery of a specific thing an evaluation in money (see litis aestimatio) was necessary to make the conversion into money in the condemnatio possible, unless the defendant preferred to satisfy the plaintiff by the delivery of the thing in dispute before the judgment was passed.—See absolutorius.

Pfaff, Juristische Vierteljahresschr., 18 (1902) �?49; Schloss­mann, IhJb 46 (1904); Levy, ZSS 42 (1921) 476; M. Nicolau and P. Collinet, RHD 15 (1936) 751; S. Ricco- bono, Jr., AnPal 17 (1937) 43; Wenger, ZSS 59 (1939) 316; Gioffredi, SDH I 12 (1946) 136; idem, Contributi allo studio del processo civ. rom., 1947, 46; v. Lubtow, ZSS 68 (1951) 321.

Condere iura. To establish, to create law. In refer­ring to jurists, the term conditores iuris is used to mean those of them who, through their responsa given on the ground of their ius respondendi, contributed to the development of the law.—See ius respon­dendi, RESPONSA, INTERPRETATIO.

Magdelain, RHD 28 (1950) 6.

Condicere. In the earliest civil procedure syn. with denuntiare (= to announce, to give notice, to de­clare). It applies to the act of the claimant in the legis actio per condictionem, by which he sum­moned the defendant in iure to appear before the magistrate again after thirty days to continue the proceedings with the appointment of the iudex. Since this legis actio served only for claims in personam and for a specific object, the terms condicere and condictio were used for actiones in personam by which a dare facere oportere (obligations to give or to do) was claimed. For further development, see condictiones and the entries referring to the various condictiones. —See ACTIONES IN PERSONAM.

Condicio. The legal or social status of a person. In the imperial criminal law the social condition of a person was of importance for the kind of penalty to be applied to him.—See honestiores, humiliores, POTENTIORES.

Condicio. A condition, i.e., a clause added to a trans­action or a testamentary disposition which makes the validity thereof dependent upon the occurrence or non-occurrence of a future event; the clause is in­troduced by si or nisi (si non). The event may be either a natural one when it is independent of human activity, or it is a fact to be done or not done by the party involved or by a third person (condicio potesta­tiva}. Until the fulfillment of the condition (pendente condicione) there is a state of uncertainty about the effects attached to its realization, to wit, as to whether the transaction will enter into force (suspensive con­dition) or be dissolved (resolutive condition). The technical terms for the period between the conclusion of the transaction and the fulfillment of the condition are in suspenso esse, suspensus sub condicione, and the like. Conditions may be added to almost all legal transactions and acts (stipulations, sales, leases, in­stitutions of heirs, legacies, manumissions, etc.) ex­cept the so-called actus legitimi.—D. 28.7; 35.1; C. 6.25 ; 6.46.—For the various kinds of condicio see the following items; see disiunctivo modo, dies ce­dens, DIES CERTUS, NUBERE.

Leonhard, RE 4; Orestano, NDI 3; De Ruggiero, DE 2; E. F. Bruck, Bedingungsfeindliche Rechtsgeschäfte, 1904; Vassalli, BIDR 1915 Scritti 1, 1939, 245) ; R. Popovic, Condicionis implendae causa datum, Zürcher Beiträge zur Rechtswissenschaft 73, 1919; Bohacek, AnPal 11 (1924) 329; Riccobono, 5/ Perozzi, 1925; G. Grosso, Contributo allo studio dell'adempimento della condizione, MemTor 1930; idem, ATor 65 (1929) 455; V. Scialoja, Negozi giuridici, 1933, 96; D. Ochsenbein, Transmissibilité héré- ditaire de l’oblig. conditionnelle, Genève, 1935; Fiume, TR 14 (1936) 19; Donatuti, SDHI 3 (1937) ; idem, Lo statulibero, 1940, 16; Betti, Retroattività della condizione, Scr Ferrini (Univ. Pavia, 1946) ; Grosso, SDHI 8 (1942) 290.

Condicio deficit. The condicio is not fulfilled. Condicio facti. See condicio iuris.

Condicio illicita. See condicio turpis.

Condicio impletur (impleta est). The condicio is ful­filled. Syn. condicio existit (extitit). Sometimes a condition ₍ which has not been fulfilled is considered as if it were fulfilled. This is the case primarily, “when the person who is interested in the non-fulfill­ment of the condition acts so as to prevent its fulfill­ment’' (D. 50.17.161 = 35.1.24). Such a fiction is applied to manumissions imposed upon an heir under a condition the realization of which depends upon himself. The rule was later extended to stipulations.

G. Grosso, La finzione dell' adempimento della condizione, 1930; Donatuti, SDHI 3 (1937) 63; B. Biondi, Succes­sione testamentaria, 1946, 537.

Condicio impossibilis. A condition which in the na­ture of things cannot be fulfilled. A typical example is “if you will touch the sky with your finger.” For testamentary dispositions the doctrine of the Sabi- nians, who considered such a condition non-existent (pro non scripta) was accepted by later jurists and Justinian.

I. Alibrandi, Opere 1 (1896) 192; R. De Ruggiero, BIDR 16 (1904) ; Manenti, St Scialoja 1 (1905) ; Cugusi, 57 Fadda 5 (1906); Beseler, SDHI 7 (1941) 186; Cooper, Tulane LR 16 (1942) 433.

Condicio institutionis. A condition attached to the institution of an heir by the testator.—D. 28.7.—See CONDICIO TESTAMENTI.

Condicio iuris. A requirement imposed by law for the validity of a legal transaction. Condiciones iuris are not real conditions, since they are neither uncertain nor do they make the validity of the transaction de­pend upon a future event. They are indispensable requisites fixed by the law. Where they are not observed, the transaction is void. Ant. condicio facti = real conditions imposed by the will of the party (testator, donator) or parties involved.

Condicio iurisiurandi. A testamentary condition im­posed on an heir or legatee to take an oath that he would fulfill the testator’s wish. Such conditions were usual in testamentary manumissions. When added to other dispositions such a condition might be dis­pensed with by the praetor or replaced by a cautio. Cuq, DS 3, 772; Messina-Vitrano, AnPer 33 (1921) 600.

Condicio mixta. A condition which partly depends upon, and partly is independent of, the will of the party involved, as, for instance, when its fulfillment depends partly upon a natural event or the will of a third party.-—Syn. condicio promiscua.

Condicio pendet. See condicio.

Condicio potestativa. A condition the realization of which depends upon the will of a specific person. It may consist in doing (condicio faciendi) or not doing (condicio non faciendi) something. In the latter case only after the death of the person upon whom the condicio was imposed could it be estab­lished that he had not acted against the condition. See cautio muciana. The term condicio potesta­tiva is not of classical origin; the classical jurists speak of condicio in pot estate (arbitrio) alicuius ( = a condition depending upon one’s capacity or will).

Condicio tacita. A condition which is understood in a transaction, as, for instance, the conclusion of a marriage with regard to a dowry constituted in advance.

Condicio testamenti. A testamentary condition con­nected with the institution of heirs, legacies, fidei- commissa, manumissions. Specific rules apply to such conditions. The underlying one is that in the first place the testator’s intention is decisive.—See condicio impossibilis, turpis.—D. 28.7; 35.1; C. 6.46.

I. Alibrandi, Opere, 1895.

Condicio turpis (illicita). A condition the fulfillment of which involves the perpetration of an act violating a legal or moral norm (contra bonos mores). Such conditions made the contract void; when added to a testamentary disposition, originally they had to be vacated by the praetor, later they were considered as condiciones impossibiles and were treated as if they were not written (pro non scriptis).—See condicio IMPOSSIBILIS, ILLICITUS.

R. De Ruggiero, BIDR 16 (1904) 167; Suman, Fil 1917; Messina-Vitrano, I negozi iuris civilis sotto condizione illecita, AnPer 33 (1921) 583; Cicogna, StSen 54 (1940) 48.

Condicionalis. A legal transaction {obligatio, stipu­latio, emptio, etc.) or testamentary disposition (in­stitution of an heir, legacy, manumission) attended with a condition. Ant. purus = unconditional.

Condicionaliter. See sub condicione. Ant. pure.— See PURUS.

Condiciones disiunctivae. See disiunctivo modo.

Condictio (condictiones). As actio in personam it arose from the ancient legis actio per condictionem (see condicere). The condictiones acquired increas­ing application. Gaius (Inst. 4.5; 17) defines con­dictio as “any actio in personam by which we claim {intendimus) an obligation to give or to do {dare jacere oportere)without giving any specific cause of action. Originally limited to a fixed sum {certa pe­cunia) and a specific thing {certa res), the condictio was extended to uncertain claims {incertum) and Justinian admitted them for all kinds of things, mov­ables and immovables, fungibles and not fungibles. A particular domain of the application of condictio is an unjust enrichment when a person acquires something from another’s property at the latter’s expenses, without any legal ground {sine causa) or dishonestly {ex iniusta causa). “It is a matter of natural equity that no one should be enriched to the detriment of another” (D. 12.6.14; see locupletior fieri). This doctrine of Justinian infiltrated the classical texts through numerous interpolations and made the condictio a general action for thè most varied claims when a specifically termed action was not available.—See actiones in personam, condi­cere, and the following items.

Kipp, RE 4; Humbert and Lécrivain, DS 4 (s.v. per con­dictionem actio); Landucci, NDI 3; I. Koschembahr- Lyskowski, C. als Bereicherungsklage, 1-2 (1903, 1907) ; R. v. Mayr, Die c. des rom. Privatrechts, 1905 ; M. Freu­denthal, Zur Entvuicklungsgesch. der. c., 1910; F. de Visscher, La c. et le système de la procedure formulaire, 1923 ; E. Beaudonnat, Devolution générale des conductions, Paris, 1926; Haymann, IhJb 11 (1927) 188; G. H. Maier, Die prdtorischen Bereicherungsklagen, 1932 ; A. P. Leyval, De la notion d’enrichissement en dr. rom., Thèse, Alger, 1935; Oliver, D. 12.1, etc. De condictionibus, Cambridge, 1937; Robbe, SDHI 1 (1941); Frezza, Nuova RDCom 2 (1949) 42; Solazzi, ANap 62 (1941); Donatati, Studi Parmensi 1 (1951) 35 ; U. von Lubtow, Beitràge sur Lehre von der condictio, 1952; F. Schwarz, Die Grundlage der c. im klassischen rom. Rechi, 1952.

Condictio causa data causa non secuta (ob causam dati or datorum). An action granted a person who has given something to another in anticipation of a specific event (e.g., a dowry given for a future mar­riage) or the performance of a specific act by the receiver, upon the failure of the expected event or act to materialize. Through this condictio the giver recovered the thing given.—D. 12.4; C. 4.6. Kretschmar, ZSS 61 (1941).

Condictio cautionis. An action of the debtor for the return of a written acknowledgment of his debt which he had repaid.

Condictio certae pecuniae. An action for the pay­ment of a fixed sum promised by a stipulatio.

Condictio certae rei. An action based on a stipulatio for the delivery of a specific thing {certa res). This condictio is also called condictio triticaria, a term which was originally applied when a fixed amount of wheat {triticum) was due, and was generalized by Justinian to apply to all kinds of fungible goods.— D. 13.3.

Beretta, SDHI 9 (1943) 223.

Condictio certi. An action for a certum. A Justinian creation, “it lies when a certum is claimed from any cause, from any obligation” (D. 12.1.9 pr.).—See CERTUM.

Giffard, Conf Inst 1947 (1950) 55.

Condictio ex causa furtiva. See furtum.

Condictio ex iniusta causa. See condictio ob inius- TAM CAUSAM.

Condictio ex lege. This name was given by Justinian to the post-classical condictio, which became a gen­eral action employed for the prosecution of any claim which an imperial enactment acknowledged as action­able without giving the action a specific name.— D. 13.2; C. 4.9.—See condictio.

Condictio ex paenitentia. See paenitentia.

Condictio furtiva. (Syn. condictio ex causa jurtiva.) See FURTUM.

Condictio incerti. A condictio by which an incertum is claimed. The term appears mostly in interpolated texts.—See CERTUM.

Trampedach, ZSS 17 (1896) 97, 365; Pflüger, ZSS 18 (1897) 75; idem, Condictio und kein Ende, Fg P. Krüger, 1911; v. Mayr, ZSS 24-25 (1903-1904) ; Benigni, Fil 31 (1906) ; Naber, RStDIt 8 (1935) 284; Kretschmar, ZSS 59 (1939) 128; Giffard, RIDA 4 (1950) 499.

Condictio indebiti. An action for the recovery of a payment made in error for a not existing debt {in­debitum). Both the parties, the giver and the re­ceiver, must have acted in error. If the latter took the payment in bad faith, he was treated as a thief. Indebitum was also a debt which existed at ius civile, but could be annulled by an peremptory exception. —D. 12.6; C. 4.5.

Solazzi, ANap 59 (1939) ; idem, SDHI 9 (1943) 55; C. Sanfilippo, C.i., 1943; F. Schwarz, ZSS 68 (1951) 266.

Condictio liberationis. A post-classical form of a condictio incerti, granted to a debtor against his creditor in order to obtain from him a formal release from a debt which became invalid.

Archi, 5/ Solazzi, 1948, 740.

Condictio ob causam datorum. See condictio causa DATA CAUSA NON SECUTA.

Condictio ob iniustam causam. An action for the recovery of money paid for an illegal cause, as, e.g., for a debt contracted under duress.—D. 12.5; C. 4.9. —See USURAE.

Pflüger, ZSS 32 (1911) 168.

Condictio ob turpem causam. An action for the re­covery of money the acceptance of which by the re-

ceiver was immoral, as, e.g., for not committing a crime.—D. 12.5 ; C. 4.7.

Condictio possessionis. An action for the recovery of possession of a thing which the adversary had obtained from the plaintiff without legal cause. In comparison with the interdictal protection (see in­terdicta), the condictio had the advantage of being an actio perpetua.

De Villa, 575^ 10 (1932).

Condictio sine causa. An action for the recovery of a thing given for a specific purpose (causa) which failed afterwards, as, e.g., a dowry given in view of a future marriage which, however, was not con­cluded, or a gift made by a donor in contemplation of his imminent death (mortis causa), which then did not occur.—D. 12.7; C. 4.9.

Condictio triticaria. An action for the return of a quantity of grain (triticum) or other fungibles which had been given as a loan.—See condictio certae rei, mutuum.—D. 13.3.

Collinet, Si Perozzi, 1925; Kretschmar, ZSS 59 (1939) 128.

Conditores iuris. See iurisconsultus, condere iura. Conductio. See LOCATIO.

Conductor agri vectigalis. See ager vectigalis.

Conductor operarum. See locatio conductio ope­rarum.

Conductor operis. See locatio conductio operis FACIENDI.

Conductor rei. See LOCATIO conductio rei.

Conductores. Lessees. Holders of large private and public estates used to sublease small portions thereof to minor lessees (coloni) for a rent (a third or higher part of the produce) and personal services.—C. 11.72.

Rostowzew, DE 2, 586; Lecrivain, DS 3, 967.

Conductores vectigalium. Persons who leased from the state the right to collect vectigalia (revenues from state property, such as land, mines, salt-works).— C. 10.57.--- See VECTIGAL, PUBLICANI.

Rostowzew, DE 2.

Confarreatio. The earliest form of conventio in manum in order to conclude a marriage between patricians. It was a solemn ceremony in the pres­ence of ten witnesses and a high priest. The term comes from the use of a cake of spelt (far, panis farreus) in the ceremony. When the confarreatio fell into disuse, it remained obligatory only for the marriage of flamines.

Leonhard, RE 4; Kunkel, RE 14, 2270; De Ruggiero, DE 2; S. Perozzi, Scritti 3 (1948, ex 1904) 528; Fowler, JRS 6 (1916) 185; Brassloff, St Bonfante 2 (1929) 363; Carrelli, AnMac 9 (1933) 207; Noailles, RHD 15 (1936) ;

E. Volterra, La conception du mariage (Padova, 1940), 14; Koestler, ZSS 65 (1947) 44; M. Kaser, Das altrom. lus, 1949, 342.

Conferre. To contribute money or goods; see con­ferre IN SOCIETATEM, collatio, collatio bonorum, COLLATIO DOTIS, COLLATIO DONATIONIS.

[TRANS. AMER. PHIL. SOC.

Conferre imperium (magistratum, potestatem). To confer power upon a high magistrate or the em­peror.—See IMPERIUM, LEX CURIATA DE IMPERIO, LEX DE IMPERIO.

Conferre in societatem. To contribute a share as a partner of a company (societas).—See societas.

Guarneri-Citati, BIDR 42 (1934) 183.

Confessio. (From confiteri.) Admission of liability by the defendant in full or partial conformity with the plaintiff’s claim. Confessio may occur in either stage of the civil trial, in iure or apud iudicem.—D. 42.2;

C. 7.59.—See the following items.

Kipp, RE 4; Cuq, DS 3, 744.

Confessio apud iudicem. An acknowledgment of the plaintiff’s claim by the defendant before the judge. It was treated only as a means of evidence. The judge could evaluate it at his discretion.

Confessio in iure. An acknowledgment of the plain­tiff’s claim made by the defendant (confessus) before the magistrate in the stage of the proceedings in iure. A confessus “is like a iudicatus (condemned by the judge’s judgment) since he is condemned to a cer­tain degree by his own judgment” (D. 42.2.1). The rule goes back to the Twelve Tables with regard to claims of a fixed sum. They ordered that an amount of money admitted by the defendant (aes confessum) was subject to execution in the same way as a thing adjudged by a judgment. When the defendant ad­mitted his liability but did not express it in a fixed sum, immediate execution was impossible and the whole matter went as a suit based on confession (actio confessoria) to the judge whose task was to assess the liability of the defendant. By his confessio the latter avoided condemnation to a double amount (duplum) in those actions in which his denial (see infitiatio) would have produced such effect.

Kipp, RE 4; Cuq, DS 3; A. Giffard, La c., 1900; Betti, APen 74 (1915) 1453; idem, ATor 50 (1914-15) 700; Collinet, NRHD 29 (1925) ; W. Püschel, Confessus pro iudicato est, 1924; Wlassak, Konfessio in iure, SbMünch 1934; Wenger, ZSS 59 (1939) ; Pflüger, ZSS 64 (1944) 360; S. di Paola, Confessio in iure 1 (Milan, 1952).

Confideiussores. Two or more sureties, fideiussores, for the same debt.—See beneficium divisionis.

Confinium. A strip of land constituting a border be­tween two adjoining plots. It was to be left un­ploughed and was excluded from usucapio. Syn. fines. See ACTIO FINIUM REGUNDORUM, CONTRO­

VERSY DE FINE.

Confirmare tutorem. To confirm a guardian. In certain cases, when the testamentary appointment of a guardian was not quite certain, when the testament was defective, or when the appointment was made by a person who had no patria potestas over the ward (the mother, or the father of an emancipated son) the praetor could take the will of the testator into con­sideration and confirm the guardian appointed.—

D. 26.3; C. 5.29.

Sachers, RE 7A, 1511; Solazzi, RendLomb 53 (1920) 359

Confirmatio codicillorum. See codicilli.

Confirmatio donationis. A donation which might be invalidated by an exception opposed by the donor (exceptio legis Cinciae) became valid if the donor died without having revoked the donation. According to an oratio of the emperors Severus and Caracalla a donation between husband and wife (donatio inter virum et uxorem) became valid, if the donor con­firmed the donation in his testament.

Siber, ZSS 43 (1933); De Robertis, AnBari 1935; Biondi, Successione testamentaria (1943) 666, 714.

Confiscari (confiscatio). Seizure by, and for, the fisc. —See publicatio.—C. 9.48.

Humbert, DS 1.

Confiteri, confessus. See CONFESSIO. Syn. fateri.

Confuga. (From confugere.) A pers.on persecuted by an enemy, by creditors or for a crime, who takes refuge in a place which is inviolable, e.g., in a temple (in aede sacra) or under a statue of a reigning or dead emperor (ad statuam Caesaris).—C. 1.25.

P. Timbal Duclaux de Martin, Droit d’asile, 1939, 27; Gioffredi, SDH I 12 (1946) 187.

Confugere ad ecclesiam. To take refuge in a church. —C. 1.12.

Confusio. (From confundere.) Mingling of liquids. When they belong to different owners, the mixture is owned by them in common as in the case of COMMISCERE.

Pampaloni, BIDR 37 (1929) 38; Baudry, DS 1; Leon­hard, RE 4.

Confusio. In the law of obligations this occurs when the right of the creditor and the obligation of the debtor meet in the same person, as when the debtor becomes heir of the creditor or vice versa. Confusio effects the extinction of the obligation.

Baudry, DS 1; Leonhard, RE 4; S. Cugia, Confusione extinguitur obligatio, 1927; item, La confusione dell’obliga- zione, Corso, 1943; S. Solazzi, L’estinzione dell’obligazione, I² (1935) 277; A. Hollfelder, Die c. im rom. R„ 1930; G. Wesenberg, Der Zusammenfall in einer Person von Hauptschuld und Biirgschaftsschuld, 1935; Biondi, Istituti fondamentali del dir. ereditario 2 (1948) 126.

Confusio. (In the law of servitudes.) If ownership of an immovable, encumbered by a servitude, and the right of servitude meet in the same person, the servi­tude, praedial or personal, is extinguished through confusio, which in such cases is also termed con­solidatio.

Congiarium. Money or valuable commodities dis­tributed among the people on specific occasions. This custom, introduced by Caesar, was followed by the emperors as a gesture of liberality (liberalitas) on such occasions as accession to the throne, a victory in war, or anothejr solemn event. The example of the emperors was imitated by triumphant generals and wealthy individuals. Tokens (tesserae num­mariae) redeemable in money, were also thrown to the people on such occasions.—See missilia.

Rostowzew, RE 4; Berve, RE 13 (s.v. liberalitas) ; Espe- randieu, DE 2; Thedenat, DS; D. Van Berchem, Distri­bution de ble et d’argent, Geneve, 1939.

Coniectanea. A collection of miscellanea. The word appears as the title of juristic works of Capito and Alfenus Varus.

Coniectio. See CAUSAE CONIECTIO.

Coniunctim. Jointly. Heirs instituted coniunctim be­came co-heirs with equal shares. A condition im­posed coniunctim upon several persons is binding on all. Ant. disiunctim, separatim.

Coniunctio. An institution of several heirs for the same estate or of several legatees for the same thing in common. The estate (or legacy) became common property of the coheredes (or collegatarii). The heirs or legatees thus awarded are termed coniuncti. See CONIUNCTIM.

Coniunctio maris et feminae. A basic element of the Roman marriage when connected with affectio maritalis and intended as a community for ever (consortium omnis vitae).—See nuptiae.

Coni-. See COLL-.

Connubium. See conubium.

Conrei. See CORREI.

Consanguinei. See consanguinitas. Ant. uterini. The distinction has significance in the law of suc­cession.

Leonhard, RE 4.

Consanguinitas. The relationship between brothers and sisters begotten by the same father. In a larger sense, blood relationship.—See ius consanguinita­tis, NECESSITUDO.

Conscientia (conscius). Knowledge of a crime com­mitted by another. Such knowledge did not entail punishment except in cases in which denunciation to the authorities was obligatory, as, e.g., in case of high treason (see maiestas, perduellio).

Consciscere sibi mortem. To commit suicide. Sui­cide committed by a person accused of a crime in order to avoid condemnation was considered a con­fession of guilt and his property was confiscated. Trials for high treason were continued in spite of the suicide of the accused.—Syn. manus sibi inferre.— D. 48.21; C. 9.50.—See suicidium, libera facultas mortis.

Rogers, TAmPhilolAs 64 (1933) 18; Volterra, RStDIt 6 (1933) 393; F. Vittinghoff, Der Staatsfeind in der rom. Kaiserzeit, 1936, 52.

ConSClUS. See CONSCIENTIA.

Conscius fraudis. One who participates in a debtor’s fraudulent activities in order to deceive the latter’s creditors. Syn. particeps fraudis. A praetorian ac­tion for damages lies against him.—See fraus.

Humbert, DS 1.

Conscribere. To write down a legal document, in par­ticular a testament or codicil.

Conscripti. See PATRES CONSCRIPTI.

Consecrare (consecratio). See res sacrae.

Consecratio. As a sanction for a crime committed against the state or community this was the assign­ment of the offender and his property to the gods; this made him an outlaw (sacer), deprived him of protection by men and excluded him from human society. The consecratio, both capitis and bonorum, is the lot of a person whom the laws declared sacer. —See LEGES SACRATAE.

Wissowa, RE 4; De Ruggiero, DE 1, 144.

Consecratio. (With regard to deceased emperors.) The enrollment of the dead emperor among gods, deification.—See divus.

G. Hertling, Konsecration im rom. Sakralrecht, 1911; S. Brassloff, Studien zur rom. Rechtsgeschichte, 1925 ; Bicker­man, Arch, fur Religionswissenschaft 27 (1929) ; F. Vit- tinghoff, Der Staatsfeind in der rom. Kaiser zeit, 1936, 77; Bruck, Sem 7 (1949) 12 (Bibl.).

Consensus. (From cons entire.) In private law = con­sent. It is either unilateral when a person gives his assent (approval) to an act performed by another (consensus curat oris, of a father or parents, of a magistrate), or bilateral when two persons agree upon a transaction. The consensus must be complete (in unum = on the same matter) and free from any external influence (duress = vis, metus, error). Al­though consensus is the basic element of all agree­ments between two or more persons, there are some contracts (emptio venditio, locatio conductio, man­datum, societas) which are concluded (obligatio con­sensu contracta) when merely a consensus of the parties exists and is expressed (nudus consensus), as opposed to other contracts for the conclusion of which further elements are required, such as the delivery of a thing (res), the use of words (verba) or a written form (litterae). Consensus may be given expressly in spoken or written words, or tacitly, sim­ply by gesture or other behavior leaving no doubt as to the consent of the party (tacite, tacitus consensus). —Inst. 3.22. See CONTRACTUS, NUTUS.

Leonhard, RE 4; Perozzi, 57 Schupfer, 1 (Turin, 1898) ; Hagerstrom, ZSS 63 (1943) 268.

Consensus. In public law this refers to the manifesta­tion of the collective approval of the people (consensus populi), the senate (consensus senatus), a municipal council, and the like.

De Ruggiero, DE 2.

Consensus contrarius. A consensual contract (see consensus) could be rescinded by a contrary agree­ment of the parties if neither of them had yet fulfilled his obligation (re integra, re nondum soluta). Syn. dissensus.

Siber, ZSS 42 (1922) ; Stoll, ZSS 44 (1924). Consentire. See CONSENSUS.

Conservi. Fellow slaves belonging to the same master. Consignare (consignatio). To seal a written docu­ment (e.g., a testament). Syn. signare.

Consiliarii (consiliarii Augusti). Members of the emperor's consilium; generally members of any council.

De Ruggiero, DE 2, 616; Checchini, AVen 58 (1909).

Consilium. Advice. It is to be distinguished from a mandate (mandatum) and does not create any responsibility for the person who gave it if it pro­duced bad results. “Everybody may decide for him­self whether the advice is to his advantage” (17.1.2.6). —Consilium of the person who performs a deed means his decision, intention, particularly when referring to prohibited acts.—See ope consilio.

Last, AnPal 15 (1936) 253.

Consilium decurionum. A municipal senate.—See DECURIONES.

De Ruggiero, RE 2, 611.

Consilium magistratuum. Higher magistrates (con­suls, praetors, censors, aediles, governors of the prov­inces, prefects, etc.) used to have advisory boards composed of jurists and experts in various fields. They asked the consilium for advice in important matters, but were not obliged to follow it.—See ADSESSORES.

Liebenam, RE 4; De Ruggiero, DE 2, 610; G. Cicogna, I consigli dei magistrate romani e il c. principis, 1910.

Consilium principis. The imperial council. Follow­ing a Republican institution, the council of the magis­trates (consilium magistratuum), the emperors beginning with Augustus used to consult a body of advisors convoked in cases of particular importance. Hadrian organized it as a permanent council com­posed of members (jurists, high imperial function­aries of equestrian rank, and senators) appointed for life (consiliarii, from the time of Diocletian a consiliis sacris). In the later Empire the council, called con­sistorium (sacrum), functioned rather as a privy council of the emperor in legislative, judicial and administrative matters. Many famous jurists of the classical period were members of the consilium. They exercised a great influence on the development of the law as crystallized in imperial enactments. The par­ticipation of the praetorian prefects gave the consilium principis also a political character.

Orestano, NDI 3; Balsdon, OCD; Seeck, RE 4, 926; De Ruggiero, DE 2, 614; Cuq, Memoires de I'Academic des Inscr. et Belles-Lettres, 1 S. 9 (1884) ; Cicogna, Il con­silium principis, consistorium, 1902; idem, I consigli dei magistrate romani e il cons, princ., 1910; Orestano, Il potere normative degli imperatori, 1937, 51.

Consilium propinquorum (necessariorum). A fam­ily council composed of older members. Sometimes friends participated therein (consilium propinquorum et amicorum). According to an ancient custom the head of a family used to consult this council before punishing a member of the family for criminal of­fenses, for instance his wife or daughter for adultery (see adulterium). But he was not bound by the opinion of the consilium, which was only an advisory board to assist the head of the family in internal family matters, and had no judicial competence.

De Ruggiero, DE 2, 609; Volterra, RISG 85 (1948) 112.

Consilium publicum. The senate.

De Ruggiero, DE 2, 610.

Consilium quaestionis. The jury in a criminal trial. —See QUAESTIONES.

Consistentes. Persons who sojourn temporarily at a place which is neither their birth-place nor their domicile. The term is applied primarily to merchants (negotiatores).

Kornemann, RE 4, 922 ; De Ruggiero, DE 2.

Consistere (eum aliquo, adversus aliquem). To sue a person for a civil claim or to denounce another for an unfair action (e.g., a slave denounces his master for concealing a testament).

Consistorium. See comites consistoriani, consi­lium PRINCIPIS.

Seeck, RE 4, 930 ; Humbert, DS 1 ; De Ruggiero, DE 2, 618; Mattingly, OCD\ Cicogna, Il consilium principis, consistorium, 1902.

Consobrini. Children of brothers or sisters, cousins. Children of two brothers = patrueles (fratres or sorores).

Consolidatio. The extinction of a personal servitude by merger when the ownership of an immovable, burdened with a servitude and the right thereto meet in the same person. It happens, for instance, when the owner becomes heir of the usufructuary (fructuarius) or vice versa.—See confusio.

Consortes imperii. Colleagues in power. Colleagues in the tribunate = consortes tribuniciae potestatis. Syn. participes. With reference to emperors, the consors of the reigning emperor was his colleague only formally being appointed solely to secure the succession after the death of the emperor, who alone had the title Augustus. Normally he was the em­peror’s son appointed in the same manner as the emperor. In this way the imperial power was per­petuated in the family.—See collegae.

De Ruggiero, DE 2; Lécrivain, DS 4, 651.

Consortes litis. Two or more plaintiffs or defendants in the same trial.—C. 3.40.

Redenti, AG 99 (1907).

Consortium. (In ancient law.) The community of goods among co-heirs after the death of their pater familias when the property remained undivided. This common enjoyment of family property served as a model for a contractual consortium among individ­uals, members of different families, not connected by a tie of common succession. The consortes had broader powers to act for the whole group, with regard both to acquisitions and alienations (manu­mission of slaves) since each was considered the owner of the whole. According to Gaius (3.154a), this ancient consortium was “a legal and simulta­neously a natural societas, called ercto non cito” (with ownership not divided).

Sachers, RE 18, 4, 2149; Frezza, NDI 3; idem, Riv. di filol e istr. class. 1934, 33; Cicogna, St in mem. P. Rossi·, StSen 1932; Rabel, Mnemosyna Pappoulia, 1934; Arangio- Ruiz, BIDR 42 (1934) 601; P. Noailles, Etudes de dr. rom. 51 ; Lévy-Bruhl, Atti IP Congr. Intern. Papir. giur. (Firenze, 1935) 293 (=Nouvelles Ét., 1947, 51); C. A. Maschi, Disertiones, Ricerche intorno alla divisibilità del c. nel diritto rom. clas., 1935 ; idem, Concezione natura­listica, 1937, 306; Albertario, Studi 5 (1937) 467; Wie- acker, Hausgenossenschaft und Erbeinsetzung, 1940; So- lazzi, SDHI 12 (1946) 7; E. Schlechter, Contrai de société, 1947, 182; De Visscher, Nouvelles Études, 1949, 267; Albanese, Successione ereditaria, AnPal 20 (1949) 9; Daube, Juridical Review 62 (1950) 71 ; Arangio-Ruiz, La società (Corso), 1950, 3; Weiss, Fschr Schulz 2 (1951) 84. Consortium omnis vitae. A community for the whole life. It is a basic element of the Roman marriage, mentioned in the definition of marriage by Modestinus (D. 23.2.1) ; see nuptiae. It is not affected by the possibility of divorce.

Solazzi, AnMac 5 (1930) 27; Erhardt, ZSS 57 (1937) 357. Conspiratio. A plot by several persons for criminal purposes (e.g., to bribe witnesses, to break out of prison).

Constante matrimonio. During the existence of a valid marriage.

Constantinopolitana urbs (Constantinopolis). The former Byzantium, refounded by Constantine in a.d.

330 as Nova Roma. It replaced Rome as the capital of the Empire and “enjoyed the prerogatives of an­cient Rome (Roma vetus) ” C. 1.2.6.

Oberhummer, RE 4; Mattingly, OCD.

Constare. See res quae pondere... constant.

Constat inter omnes. It is the common opinion of the jurists. Syn. generaliter constat, omnes consentiunt.

Schwarz, Fschr Schulz 2 (1951) 208.

Constituere. To constitute, create a legal situation, relation or an obligatory binding (servitutem, obliga­tionem, dotem, etc.)—See the following items.

Leonhard, RE 4; Baudry, DS 1.

Constituere debitum. See constitutum debiti.

Constituere iura (ius). To create laws. The expres­sion is applied to all kinds of legislative activity (of the people, the praetor, the senate, the empérors, and the jurists) and even to legal customs (ius moribus constitutum).—See condere iura.

Constituere procuratorem (tutorem). To appoint a representative (a guardian).

Constitutio. (In the meaning of a legal rule) out­side the domain of imperial legislative activity (see constitutiones principum). Very rarely used in texts that are not free from the suspicion of post- classical origin. In one postclassical source appears a constitutio Rutiliana which established a specific rule regarding a defective purchase of a res mancipi from a woman without the approval of her guardian (Fr. Vat. 1). Its author was probably the Republican jurist Publius Rutilius Rufus.

Constitutio Antoniniana de civitate. A constitution of the emperor Caracalla (a.d. 212) by which all inhabitants of the empire, organized in civitates with local autonomy, were granted the Roman citizenship, except the so-called peregrini dediticii. The con­stitution is preserved on a Greek papyrus (of Giessen, I no. 40, ed. P. M. Meyer). There is, however, a lacuna on a decisive point which has led to an abun­dant literature. The problems involved are still con­troversial.—See praenomen.

Kiibler, RE 19, 641; Anon., NDI 5 {Editto di Caracalla); Bry, Et. Girard (1912); G. Segre, BIDR 32 (1922); idem, St Perozzi, 1925, 137; E. Bickerman, Das Edikt des Kaisers Caracalla, 1925; Capocci, Mem Line, Ser. 6, 1, 1925; P. M. Meyer, ZSS 46, 1926; Schonbauer, ZSS 51 (1931) 303; Stroux, Philologus 88 (1933) 272; Wilhelm, Amer. Jour, of Archaeology 38 (1934) ; Jones, JRS 26 (1936) 223; Sherwin-White, The R. citizenship (1939) 218; Schubart, Aeg 20 (1940) 31; Heichelheim, Jour, of Eg. Arch. 26 (1940) ; A. Segre, Rend. Pontif. Accad. di Archeol., 16 (1940) 181; Riccobono, FIR 2² (1941) no. 88; Wenger, ArPap 14 (1941) 195; D’Ors, Emerita 11 (1943) 297; idem, AHDE 15 (1944) 162, 17 (1947) 586; Arangio- Ruiz, L^fapplication du droit rom. en Egypte apres la c. A., Bull, de I'Institut d* Egypte 29 (1947) 89; Bell, JRS 37 (1947) 17; Wenger, RIDA 3 (1949) 527; Keil, Anzeiger Akad. Wiss. Wien, 1948, 143; D. Magie, Rom. rule in Asia Minor 2 (1950) 1555; Henne, Conflnst 1947 (1950) 92; De Visscher, AnCat 3 (1949) 15; Schonbauer, Jour, juristic papyrology 6 (1952) 36; Taubenschlag, ibid. 130 (Bibl.).—For imperial constitutions preserved in papyri, Taubenschlag, ibid. 121.

Constitutio Rutiliana. See constitutio.

Constitutionarius., An official entrusted with copying the imperial constitutions and keeping them under control.

Constitutiones generales. See constitutiones prin- CIPUM, CONSTITUTIONES SPECIALES.

Constitutiones imperiales. See constitutiones PRINCIPUM.

Constitutiones personales. Imperial enactments by which private individuals were granted personal privi­leges as a reward for meritorious service rendered to the emperor or the state.

De Robertis, AnBari 4 (1941) 360.

Constitutiones principum (principales, imperiales, sacrae). Constitutiones is a general term which em­braces all types of imperial enactment; see edicta, DECRETA, MANDATA, RESCRIPTA. “What the emperor ordained (principi placuit) has the force (vigor) of a statute (lex)” or “... is applied as if it were,a statute (legis vicem obtinet)” (D. 1.4.1 pr.; Gaius 1.5). Such principles were established in the early second century after Christ. We are told by Gaius (loc. cit.) that there never had been any doubt about it, and yet in the early Principate the emperor used to present his legislative proposals personally’ in an oratio before the senate for its approval by which they acquired full legal force. This approval afterwards became a simple formality, so that the oratio itself was considered a law. A legislative character was attributed in the first place to the edicta and to those enactments indicated as constitutiones generales (de­creta, rescripta) in which the emperor expressly de­clared that his decision issued in a specific case should henceforth be applied in analogous cases. Rescripts and decrees issued without such a clause also acquired the force of legal norms in the last analysis, since on the one hand the judges normally followed the principles settled therein (although legally they were not bound to do so) and on the other hand by appeal to the imperial court a contrary decision of a lower court might be changed in accordance with the rules issued by the emperor in previous cases.—D. 1.4; C. 1.14.

Jörs, RE 4; Costa, NDI 3; Berger, OCD; Riccobono, FIR 2² (1941) 295; Fass, Arch, für Urkundenforschung 1 (1908) 221; E. Vernay, Et. Girard 2 (1913); Kreller, ZSS 41 (1920) 262; Lardone, St Riccobono 1 (1936); Orestano, Il potere normativo degli imperatori e le costi­tuzioni imperiali, 1937; Volterra, St Besta 1 (1939) 449;

F. v. Schwind, Publikation der Gesetze, 1940,' 129 ; De Ro­bertis, Suirefficacia normativa delle cost, imperiali, AnBari 4 (1941, 1, 281); idem, ZSS 62 (1942) 255; Luzzatto, Ser.· Ferrini (Univ. Pavia, 1946) 263.

Constitutiones Sirmondianae. A private collection of sixteen imperial constitutions issued between 333 and 425 concerning ecclesiastical matters (first edited by J. Sirmondi, 1631). The collection was compiled by an unknown author in the Western Empire. Ten of the constitutions are preserved in the Codex Theo­dosianus, but their text in the Constitutiones Sirmon­dianae is more complete.

Edition: in Mommsen’s edition of the Codex Theodosi­anus.—JÖrs, RE 4; Schedilo, NDI 3.—Translation, in C. Pharr, Codex Theodosianus (Princeton, N. J., 1952) 477.

Constitutiones speciales. Imperial constitutions gen­eral in character but limited to particular categories of persons or legal relations. Ant. constitutiones generates binding on the whole people, and consti­tutiones PERSONALES.

De Robertis, AnBari 4 (1941) 340.

Constitutum. A formless promise to pay an already existing debt, either of one’s own (constitutum debiti proprii) or of another (constitutum debiti alieni) on a fixed date and at a fixed place. The sum so prom­ised is called pecunia constituta. This is not a nova­tion, the creditor being able to sue the debtor according to the previous terms. The fulfillment of a constitu­tum may be claimed by a special action, actio de pecu­nia constituta (constitutoria). It is an actio in factum, strengthened by the promise of a penalty of one half of the original debt (sponsio dimidiae partis). A constitutum could also cover debts originating from wrongdoings. The institution was reformed by Jus­tinian in many respects.—D. 13.5; C. 4.18.—See the following items.

Humbert, DS 1 ; Anon., NDI 3; J. De jardin, L’ action de pec. const. 1914; A. Philippin, Le pactc de constitut, 1929; Willems, Mèi Cornil 2 (1926) 615; G. Astuti, La promessa di pagamento 1, AnCam 11 (1937), 2 (Pubbl. Catania 7, 1941).

Constitutum debiti alieni. A promise to pay (con­stitutum) another’s debt. This is a formless kind of surety. Its validity depends upon that of the prin­cipal debt.------------ See RECEPTUM ARGENTARII.

Constitutum debiti proprii. A constitutum between parties already involved in an obligatory relationship. See constitutum. The purpose of this constitutum, also called pactum de constituto, is to modify some elements of the previous obligation, such as the date or the place of the payment.

Kpschaker, ZSS 63 (1943) 470.

Constitutum est. When referring to a legal norm, this indicates that it originates from an imperial con­stitution. See CONSTITUTIONES PRINCIPUM.

Constitutum possessorium. Not a classical terni. In literature it denotes the legal situation of a person who transferred possession (possessio) of a thing to another but continued to hold it (detinere) under another title. Possessory protection is consequently given to the new possessor. A constitutum posses­sorium took place when the seller of an immovable remained therein as a tenant. A contrary change of a possessory situation, when the actual holder of a thing (detentor) acquired possession thereof was traditio brevi manu, since the thing was not delivered over by traditio but remained in the detention of the same person.—See detentio.

Aru, ND! 3; F. Schulz, Einführung in das Studium der Digesten, 1916, 73; Buckland, RHD 4 (1925) 355; Luz- zatto, AG 108 (1932) 244; H. H. Pflüger, Zur Lehre vom Erwerb des Eigentums, 1937, 65.

Constitutus. Said of a person or a thing that is in a certain legal situation; it also means settled by law (imperial constitutions), legally established. The term appears frequently in interpolated texts, particularly when constitutus is substituted for a specific period of time (tempus constitutum) which had been fixed in the ancient law and was then changed in post- classical or Justinian’s law.

Guarneri-Citati, Indice, 2nd ed. (1927) s.v. constituere.

Consuetudo. (Also consuetudo longa, inveterata, ve­tus.) A custom, usage. Syn. mores, mores diuturni, mores (or mos) maiorum (= custom observed by the ancestors). Consuetudo constantly observed through a long period is the source of the so-called customary law, generally observed by the people. Cicero (De invent. 2.22.67) defines it as the law which has been approved by the will of all being observed for a long time, and classical jurists speak of a silent consent of the people (tacitus consensus populi, tacita civium conventio, D. 1.3.32.1; 35). Yet it is not an autonomous source of law. Without legislative action by a law-making organ, through a statute, the praetorian edict, a senatusconsult, or im­perial enactment, it was not binding upon the judge, though its influence on jurisdiction or on the inter­pretation of the will of the parties to a transaction may have been considerable. “Custom is the best interpreter of statutes” (D. 1.3.37). In ancient times, before the first Roman codification in the Twelve Tables, the whole law was customary. Legal customs observed constantly and generally in relations with foreigners, could easily acquire statutory force when confirmed by the praetor. To change legal customs regularly and immutably observed was not easy and the emperors had frequently opposed customs, par­ticularly those imported from the provinces in their enactments. A custom could not abrogate an existing law (desuetudo).—D. 1.3; C. 8.52.—See ius scrip­tum, LONGAEVUS USUS, USUS, INTERPRES.

S. Brie, Zur Lehre vom Gewohnheitsrecht, 1899; E. Lam­bert, Etudes de droit commun 1 (1903) 111, 389; O. Kniebe, Zur Lehre vom Gewohnheitsrecht im vorjust. Recht, Heidelberg, 1908; Solazzi, A G 102 (1929) 3; idem, St Albertoni 1 (1935) 35; Steinwenter, 57 Bonfante 2 (1930) 419; A. Lebrun, La coutume, These, Caen, 1932, 198; Schiller, Virginia Lazv Rev. 24 (1938) 268; Gaude- met, RHD 17 (1938) 141; Riccobono, BIDR 46 (1939) 333; Kaser, ZSS 59 (1939) 59; Rech, Mos maiorum, Diss. Marburg, 1936; Senn, Introduction d retude du droit com­pare, 1 (1938) 218; B. Paradisi, Storia del diritto italiano (Lezioni) 1951, 228; Lombardi, SDHI 17 (1951) 281.

Consuetudo civitatis (provinciae, regionis). Legal customs of a local character observed in autonomous cities, provinces or particular regions.

Niedermeyer, Bysant.-Neugriech. Jahrb. 2 (1921) 87.

Consuetudo fori. A constant court practice. The term is mentioned only once in juristic sources (D. 50.13.1.10) with reference to the honorarium of an advocate; a judge, when settling a lawyer’s fee, should have taken into consideration the practice of the court among other circumstances. In Justinian’s language analogous expressions are usus iudiciorum and obser­vatio iudicialis. In all instances the court practice refers to procedural matters and not to substantive law. The term usus fori which occurs in the litera­ture is not Roman.

Consuetudo revertendi. See animalia, animus REVERTENDI.

Consulares. Ex-consuls. They became members of the senate after their year of service. Governors of provinces, dictators, and censors were often chosen from among the consulares. See adlectio. Hadrian created the institution of four circuit-judges to ad­minister law in Italy and they, too, were called con­sulares. In the later Empire some governors of provinces had the title consulares.

Kiibler, RE 4; Humbert, DS 1; Paribeni, DE 2.

Consulere (iurisperitum). To ask a jurisconsult for an opinion in a legal matter.—See iurisconsulti.

Consules. The supreme Roman magistrates in the Republic, as successors to the royal power (potestas regia). Two consules elected by the people in cen­turiate assemblies governed the state for one year. Originally both consules were patricians, since 367 b.c. one had to be a plebeian (see lex licinia sextia ). The creation of other magistracies and the activity of the senate and the popular assemblies pro­duced a gradual weakening of their originally un­limited power, which further was hampered by the plebeian tribunes (intercessio). Their functions as military commanders remained undiminished, how­ever. Their jurisdictional attributions were checked by the right of appeal to the comitia in criminal mat­ters; in civil affairs they lost them to the praetors. Under the Principate the consulship remained in existence but gradually became a merely honorary function. The consules were appointed for short periods (four, or even two months) but they kept some political rights (convocation of, and presidency in, the senate) and exercised some minor adminis­trative functions. Their social position remained high, however, since they were granted all honors and insignia of the highest magistrates, as in the earliest Principate. They continued to give their name to the year until this system of dating was abolished by Justinian in 537. They retained some competence in manumissions when they were in active service, but as a whole their official functions were insignificant.—D. 1.10; C. 12.3.—See dictator, con­sulares, MAGISTRATUS, PROCONSUL, IMPERIUM, SE­NATUSCONSULTUM ULTIMUM, DIES ET CONSUL, and the following items.

Kiibler, RE 4; Humbert, DS 1; Anon., NDI 3; De Rug­giero, RE 2, 679 (a list of consuls by Vaglieri, ibid.) ; Treves, OCD; De Sanctis, Riz’ista di filologia, 1929, 1; Groag, Wiener Studicn, 1929, 143.

Consules honorarii. Persons to whom the emperor granted the title of consul as an honorary distinction in the late Empire. They had no effective functions. Consules ordinarii. Consuls who entered office on January 1 and whose names were given to the whole year in the official dating system.

Consules suffecti. Consuls elected by extraordinary vote when the post of a consul became vacant during the year of service because of death or some other reason.

Consultatio. (From consultare.) A request addressed by a lower judge in a proceeding of cognitio extra ordinem to his superior, the future appellate judge in the case, for an opinion in a legal matter to be decided upon. This practice led to the development of a specific procedure whereby a consultatio was addressed to the emperor by a judge whose decision was subject to an appeal to the imperial court. The consultatio was made in a detailed report (relatio) containing a statement of the subject of the contro­versy and the written objections (preces refutatoriae, libelli refutatorii) of the parties, who had been in­formed in advance of the contents of the judge’s report. The emperor decided on the basis of the written materials submitted to him. In particular, judicial matters of the provinces were transmitted in this way to the emperor who expressed his point of view in a rescript sent to the first judge. The latter in turn notified the parties of the imperial decision. The parties themselves were forbidden to address the imperial chancery directly unless a year elapsed with­out an answer. This was the procedure of a con­sultatio before judgment (ante sententiam). The same procedure was used in the case of an appeal to the imperial court (appellatio more consultationis) from the time of Constantine. Justinian’s prede­cessor, Justin, admitted a hearing of the parties before the imperial court in the course of this pro­ceeding.—D. 49.1 ; C. 7.61; 62.—See rescriptum.

Lecrivain, DS 4 (s.v. relafio) ; Kipp, RE 2, 206; 4, 1142; Partsch, Nachr. Ges. der Wissenschaften Gottingen, 1911; E. Andt, Procedure par reserit, 1920.

Consultatio veteris cuiusdam iurisconsulti. An anonymous booklet written in the Western Empire in the late fifth or early sixth century containing a collection of juristic opinions on real and imaginary cases. The author used the Sentences of Paul and a number of constitutions from the three Codices, Gregorianus, Hermogenianus and Theodosianus.

Editions: P. Kriiger, Collectio 3 (1890) 201; Kiibler in Huschkc’s I uris prudentia antciustiniana*, 2, 2 (1927) 490; Baviera, FIR l² (1940) 593.—Jors, RE 4; Moschella, NDI 3; Conrat and Kantorowicz, ZSS 34 (1913) 46; Vol­terra, ACII 2. (1935) 399; idem, RStDIt 8 (1935) 144 (for glosses and interpolations).

Consultator (consultor, consulens). One who asks a jurist for his opinion in a legal matter.—See con­sulere, iurisconsulti.

Berger, RE 10, 1165.

Consultissima lex. A well-considered law. Consultissimus vir. A man learned in the law. Consulto. See DOLUS.

Consumere. See abusus, res quae usu consumun­tur.

Leonhard, RE 4.

Consumere, consumi. (With regard to actions.) When a plaintiff has two different actions against the same adversary for the same claim, “through the use of one action the other is extinguished” (“con­sumed,” per alteram actionem altera consumitur). This principle does not apply to actiones poenales. A “consumptive” effect is also connected with the litis contestatio, to wit, that the plaintiff loses the right to repeat an action once litis contestatio has been achieved.—See concurrere, bis de eadem re.

Leist, RE 4, 1147 {consumptio actionis) ; Gradenwitz, Festg. Bekker, Aus rbm. und burgerl. Recht, 1907, 383.

Consumere fructus. See fructus consumpti.

Contendere. To litigate, hence contentio — a dispute brought to trial.

Contentio. See the foregoing item.

Contentiosus. See IURISDICTIO CONTENTIOSA.

Contestatio. (From contestari.) A declaration made before witnesses. The term is connected with the invitation extended to persons to be witnesses to a fact or an oral statement, by the words “testes estote” ( = be witnesses). Later contestatio is also used with regard to declarations made before a public official. See TESTATIO, TESTIS, TRANSFERRE DOMI­

CILIUM.

Contestatio litis. See litis contestatio.

Contextus. The content of a written document, e.g., of a testament. With regard to testaments, it is required that they be made uno contextu, i.e., in one act, without interruption.

B. Biondi, Successione testamentaria, 1943, 57.

Continens. In {ex') continents = immediately, with­out delay. Ant. ex intervallo. The locution in con­tinents is used in connection with the right of a father to kill an adulterous daughter caught in flagranti; -see ADULTERIUM, LEX IULIA DE ADULTERIIS.

Continentia (aedificia). Buildings outside of Rome, but adjacent to the walls of the city. They were con­sidered part of Rome and consequently a child born therein was held to have been born in Rome.—See URBS.

Continuus. See ANNUS, TEMPUS CONTINUUM.

Contio. A popular informal meeting convoked by a magistrate in order to communicate to the people {verba jacere ad populism) news of an important military event or an edict issued by him, or to inform them about subject matters to be dealt with in the next formal comitia, which might even be held on the same day. Thus, laws, elections and judicial matters were discussed in a contio before they were subject to vote or decision in the assembly propei where discussion was not permitted. A contio was less solemn and was not preceded by auspicia. No voting took place. Plebeian tribunes were wont to use contiones for political purposes.

Liebenam, RE 4; Humbert, DS 1; De Ruggiero, DE 2; Treves, OCD.

Contra. Against (e.g., to decide, to render judgment). Ant. SECUNDUM.

Contra bonos mores. See boni mores. “It is to be held that we may not do things {jacta) which violate good customs” (D. 28.7.15). A condition imposed on a person not to marry or not to procreate children in a legal marriage, suing parents or patrons in court, a mandate to commit a theft or to hurt another, and the like, were considered to be contra bonos mores.— See CONDICTIO TURPIS, CONDICTIO OB TURPEM CAU­SAM, ILLICITUS.

Koschembahr-Lyskowski, Mel Cornil 2 (1926) ; J. Mac- queron, L’histoire de la cause immorale dans les obligations, 1924; H. R. Mezger, Stipulationen und letzwillige Ver­fügungen c. b. m. 1929 (Diss. Gottingen) ; Siber, St Bon­fante 4 (1930) 103; Kaser, ZSS 60 (1940) 100; Riccobono, Ser. Ferrini (Univ. Pavia) 1947, 75.

Contra legem facere. See fraus legi facta.

Contra tubulas. Contrary to the testamentary dis­positions of the testator.—See bonorum possessio CONTRA TABULAS.

Contra vindicare. See in iure cessio.

Contractus. (From contrahere.) A contract. There is no exact definition of contractus in the sources, nor did the Roman jurists develop a general theory of contracts. The characteristic element of a contractus is the agreement, the concurrence of the wills of the parties, to create an actionable, obligatory bond be­tween them. (Much larger is the use of the verb contrahere which at times appears in a sense other than the creation of a contract; locutions such as contrahere delictum or contrahere crimen have noth­ing to do with a contractual obligation.) Originally limited to obligations recognized by the ius civile, the term contractus even in the classical period ac­quired a wider sense, embracing obligatory relations recognized by the praetorian law and covering the whole domain of contractual obligations, so that the jurist Paul could say: “Every obligation should be considered a contract, so that wherever a person assumes an obligation he is considered to have con­cluded a contract” (D. 5.1.20). The term contractus, although not rare in classical sources, is therefore far less frequent than obligatio. The real picture of the Roman concept of contractus was overshadowed by the fact that for some typical contracts specific names were created, such as emptio venditio, locatio con­duct™, depositum, commodatum, etc. (see below) ; on the other hand, for the fundamental element of a contract, the consent of the contracting parties (see consensus), other expressions were available which covered both the consent itself and the whole trans­action {conventio, pactio, pactum conventum, also negotium). In the Roman system of obligations, the contractus appears as the source of four principal classes of obligations according to the fundamental division established in Gaius’ Institutes (4.88) : “every obligation arises either from a contractus {ex contractu) or from a wrongdoing {ex delicto).” The subdivision of the contracts into four groups, formulated also by Gaius (4.89 ff.) and accepted by Justinian (Inst. 3.13 ff.), is based on specific elements which create unilateral or bilateral obligations. The four groups are: (1) Contracts which are validly concluded by the mere consent {nudo consensu) of the parties. As a matter of fact, all contracts require consent of the contracting parties, but this particular category requires nothing more than the consent. It includes sale {emptio venditio), lease and hire {locatio conduct™), mandate {mandatum), and partnership {societas). (2) Contracts concluded by res {obliga- tiones re contractae), i.e., the handing over of a thing by one party (the future creditor) to the other (the future debtor). Such contracts are loan {mutuum), deposit {depositum), a gratuitous loan of a thing {commodatum) and pledge {pignus). (3) Con­tracts concluded by the pronunciation of solemn, pre­scribed words {certa verba, obligatio verbis con­tractu) ; such are stipulatio, dotis dictio and iurata promissio liberti. (4) Contracts concluded through the instrument of littcrae {obligatio litteris contracta), i.e., of written entries in the account books of a pro­fessional banker or any private individual; see no- mina transscripticia, expensilatio. For the spe­cific contracts, see the pertinent entries; for the sub­jective elements of importance in the conclusion of a contract see CONSENSUS, voluntas, error, metus, dolus; see also conventio, negotium, pactio, pac­tum, transactio and the following items.

Leonhard, RE 4; Riccobono, NDI 4, 30; Brasiello, NDI 8, 1203; Berger, OCD', De Francisci, Synallagma, 1-2 (1913, 1916) ; Bonfante, Scritti 3 (1926) 107 (several articles); Riccobono, AnPal 3-4 (1917) 689; idem, La formazione della teoria generale del contralto, St Bonfante 1 (1930) 123; Bortolucci, ACH 1 (1935); Nocera, La definizione bisantina di contralto, RISG 11 (1936) 278; Collinet, LQR 98 (1932) 488; Lauria, SDHI 4 (1938) 135; Brasiello, SDHI 10 (1944); Grosso, II sistema ro­mano dei contratti, 2nd ed. 1950; P. Voci, Scr. Ferrini (Univ. Pavia, 1946) 383; idem, La dottrina del contratto, 1946; Archi, Scritti Ferrini (Univ. Pavia, 1946) 659; Van Oven, Iura 1 (1950) 21; Dulckeit, Fschr Schulz 1 (1951) 153.

Contractus bonae fidei. A term created by Justinian for contracts which in the classical period gave rise to actiones (formulae, iudicia) bonae fidei. They in­volved the good faith of the parties and required fairness in the performance of the duties assumed. All consensual contracts as well as the real contracts (re, the latter with the exception of the loan, mutuum) belong to this category of contracts.—See contrac­tus, USURAE EX PACTIO, IUDICIA BONAE FIDEI.

S. Di Marzo, B. f. c., 1904; Bibl. in Guarneri-Citati, Indice, St Riccobono 1 (1936) 713.

Contractus (pactum) in favorem tertii. The term is unknown in the sources. The Romanistic litera­ture considers as such a contract a transaction in which a person who is not a representative of a third person, accepts a promise in favor of the latter, who does not himself participate in the transaction. As a matter of principle, such a transaction was void and the third person did not acquire any action therefrom. See nemo alteri stipulari potest. Only a son could conclude such a transaction in favor of his father, a slave for his master, a guardian for his ward. In Justinian’s law some exceptions were admitted.

Riccobono, AnPal 14 (1930) 399; G. Pacchioni, Contratti in f. t., 3rd ed. 1933; Bonfante, Studi 3 (1926) 243; idem, CentCodPav (1934) 211; Vazny, BIDR 40 (1932) ; idem, St Riccobono 4 (1936) 261; Cornil, St Riccobono 4 (1936) 241; Albertario, Fschr Koschaker 2 (1939) 16 (Bibl.) ;

G. Wesenberg, Verträge zugunsten Dritter, 1949; Frezza, NuovaRDCom 3 (1950) 12.

Contractus innominati. Unnamed contracts. The term, unknown in the sources, is used for trans­actions which, although of a certain typical structure, were not termed by a specific name. Once only the expression “anonymous synallagma” appears in a Byzantine text. From contractus innominati arise bilateral duties: each party assumes the obligation to give (dare) or to do (facere) something. Four types of such contracts are distinguished: (1) do ut des (one party transfers the ownership of a thing to another who has to do the same in return) ; (2) do ut facias (one party gives the other a thing whereas the other has to perform a service) ; (3) facio ut des (an inverse transaction to that under 2); and (4) facio ut facias (a reciprocal exchange of performances of the most different kinds). If one of the parties fulfilled his duty and the other did not, the former has an action for the recovery of the thing given or for indemnification for the service performed (con­dictio CAUSA DATA CAUSA NON SECUTA, ACTIO DOLl). Some of the contractus innominati became so typical that already in classical times they received a spe­cific denomination (permutatio, aestimatum) ; others were discussed by the jurists and solved in various manners, particularly with regard to the question whether the party who first performed his obligation had an action to compel the other to per­form his. Some jurists were not disinclined to such an action (in factum, with a description of the agree­ment in the formula, praescriptis verbis agere). The history and theory of such contracts appear in the sources in a somewhat confused picture because the pertinent texts are thoroughly interpolated, leaving the classical ideas hardly recognizable, and because of the multiform terminology concerning the remedies granted to the one party who had performed his duty to enforce the reciprocal performance on the part of the other.—See actio praescriptis verbis.

P. De Francisci, Synallagma, Storia e dottrina dei cosi­detti contratti innominati, 1-2 (1913, 1916) ; Partsch, Aus nachgelassenen Schriften, 1933, 3; Collinet, Mnem Pap- poulia, 1934, 93; Kretschmar, ZSS 61 (1941) ; Grosso, Il sistema romano dei contratti, 2nd ed. 1950, 176; Giffard, Conf Inst 1947 (1950) 68.

Contractus iudicum. In Justinian’s language, con­tracts concluded by high administrative officials in Constantinople and the provinces as private indi­viduals. The emperor greatly limited their liberty to conclude certain transactions. Forbidden were purchases of immovables and movables (except for personal use), contracts for the construction of a building for their private use, and the acceptance of gifts, unless with a special permission of the emperor. Such transactions made by iudices (a general Jus­tinian term for high governmental officials) were void.—C. 1.53.

Contractus suffragii. See suffragium.

Contradicere (contradictio). To oppose, object, make a contrary statement, deny, particularly with regard to a claim in a judicial proceeding.—See narratio.

P. Collinet, La procedure par libelle (1932) 209, 295; Lemosse, St Solazzi, 1948, 470.

Contradictor. The opponent in a trial who contests the plaintiff’s claim, particularly in trials concerning paternity or the personal status of a person (as a free man or a free-born).

Contradictorii libelli. See libelli contradictorii.

Contrahere. Used in different applications: conclud­ing a marriage or betrothal, committing a crime, as­suming an obligation through a bilateral agreement (see contractus), accepting an inheritance, per­forming procedural activities, and in a general sense, performing any act of legal significance.

Betti, BIDR 25 (1912) 65 and 28 (1915) 3, 329; P. Voci, Dottrina del contratto (1946) 12; Grosso, Il sistema ro­mano dei contratti, 2nd ed. 1950, 32.

Contrarius. See consensus contrarius, actiones directae.

Contrectatio (contrectare). Laying hands on an­other's thing with a view to taking, misappropriating, meddling with, misusing another’s thing. The term appears in the Roman definition of theft (furtum) and its application goes far beyond the simple taking away of another’s property without his consent.

Buckland, LQR 57 (1941) 467; Cohen, RIDA 2 (1949) 134; Niederländer, ZSS 67 (1950) 240.

Contrectator. A thief.—See contrectatio.

Controversia. A general term for a legal controversy between private individuals, a dispute before a court. With regard to jurists and their works, controversia means a difference of opinion among persons learned in the law, particularly between representatives of the two juristic schools, the Sabinians and Proculians.— See PROCULIANI, SABINIANI.

Albertario, Studi 4 (1940) 263.

Controversia de fine (finibus). A dispute between neighbors about the boundaries of rural property when only the five-foot-border strip was involved. The controversy was called iurgium (not lis) and was settled in a friendly manner by arbitrators, usu­ally with the assistance of experts (agrimensores). See lex Mamilia roscia. When the controversial strip of land was wider than five feet, the quarrel became a controversia de loco.

Kubier, RE 9, 959; Brugi, NDI 4 (controversiae agro­rum) ; Schulten, DE 3, 93.

Controversia de loco. See the foregoing item.

Contubernales. A man and woman living together but not united in a legal marriage (iustae nuptiae). See contubernium. Inscriptions show that not only slaves but also free persons and freedmen were thus designated.—See contubernium.

De Ruggiero, DE 2, 1188; Castello, Matrimonio (1940) 32.

Contubernales (milites). See contubernium (mili- tary).

Contubernium. A permanent, marriage-like union between slaves. Masters favored the maintenance of slave families. Children of such unions were liberi naturales. Contubernium is also a lasting union of a master and his female slave.—See contubernales, SENATUSCONSULTUM CLAUDIANUM.

Fiebiger, RE 4; Masquelez, DS 1; Brugi, NDI 4; A. de Manaricua, El matrimonio de los esclavos, Analecta Gre- goriana, 23* (1940) ; C. Castello, Matrimonio (1940) 32.

Contubernium. (Military.) A group of ten soldiers living under the same tent. Hence contubernales = tent-companions.

De Ruggiero, DE 2.

Contumacia. (Adj. contumax.) Non-obedience to an order 'of a magistrate in general, to a judicial magistrate or a judge in particular, the refusal to answer or another form of contempt of court. A specific form of contumacia is non-appearance in court in spite of a summons or hiding to avoid a summons. See ABSENS, EREMODICIUM, EDICTA PEREMPTORIA.

Kipp, RE 4; Humbert, DS 1; P. Petot, Le defaut in iudi- cio, 1912; A. Steinwenter, Versäumnisverfahren, 1914; Solazzi, St Simoncclli, 1917; Volterra, I3IDR 38 (1930) ; Brasiello, StUrb 7 (1933) ; L. Aru, Il processo civile contumaciale, 1934.

Contumacia. (In military service.) Insubordination, disobedience to a superior’s order. Contumacia to­wards a high commander or the governor of a prov­ince in his military capacity was punished by death. Petulantia is more serious insubordination (impu­dence, audacity), as when a soldier raised hand against his superior. It was punished by death when the superior was of a higher military rank.—See DELICTA MILITUM.

Contumaciter. (In imperial constitutions.) To behave as a contumax, to be guilty of contumacia in a civil trial. Syn. per contumaciam.—See contumacia.

Contumax. See contumacia.

Contumelia. An insult. It is considered a kind of iniuria, but it is not precisely defined. It is char­acterized as synonymous with the Greek hybris.—See CONVICIUM.

Contutores. Two or more guardians of the same ward (plures tutores). Such plurality could be established •by testament, by appointment of the magistrate, or by law, when two tutores legitimi were entitled to the same guardianship being relatives of the ward in equal degree. Co-owners manumitting a common slave might become co-tutors, too.—D. 26.7; C. 5.40; 42; 52.—See tutor gerens, tutor cessans.

Sachers, RE 7A, 1526, 1551, 1575; Peters, ZSS 32 (1911) 226; Levy, ZSS 37 (1916) 14; A. Lecompte, La pluralite des tuteurs, 1927; Solazzi, ANap 57 (1935) 212; Arangio- Ruiz, ibid. 61 (1942) 271; G. Nocera, Insolvenza, 1942, 227; Solazzi, SDHI 12 (1946) 7; Frezza, St Solazzi, 1948, 514.

Conubium. The legal capacity of a man to conclude a valid marriage. Conubium is “the faculty to marry (uxorem ducere) legally” (Epit. Ulp. 5.3).—See ius CONUBII, MATRIMONIUM, MATRIMONIUM IUSTUM.

Leonhard, RE 4; Kunkel, RE 14, 2262; Humbert, DS 1; De Ruggiero, DE 2, 265; C. Cosentini, St sui liberti 1 (1948) 50; E. Nardi, La reciproca posizione successoria dei coniugi privi di c., 1938; Costanzi,' Sul divieto di c. fra patrizi e plebei, ACSR 2 (1929) ; Volterra, St Albertario, 2 (1950) 347; De Visscher, ADO-RIDA 1 (1952) 401.

Convalescere. To become legally valid after an origi­nal invalidity or uncertainty about the validity. As a matter of rule, “what is defective (vitiosum) in the beginning cannot become valid by lapse of time” (D. 50.17.29).

Conveniens est (convenit). It is proper, suitable (e.g., to equity, to good faith, or to what has been said before). The phrase conveniens est dicere (= it is proper to say) frequently precedes juristic deci­sions.

Convenienter. Used similarly to conveniens est.

Convenire. (1) To come together, “to assemble from different places in one place” (D. 2.14.1.3). It refers to gatherings of members of an association (colle­gium) and the like. (2) When said of two persons = “to agree upon a thing from different impulses of the mind” (D. ibid.). Hence “conventio is a general term and applies to all matters upon which persons dealing one with another agree in order to conclude a contract or to settle a dispute.” The term is so comprehensive that “there is no contract, no obliga­tion, which does not involve an agreement” (D. ibid.). Convenire may denote the agreement as a whole or single clauses thereof (nominatim convenire).—Syn. consentire.

Convenire aliquem. To sue a person in court.

Convenit. (Generally said.) It is held, assumed, gen­erally accepted.—See conveniens est.

Conventio. See convenire under (2). Later classi­cal jurists distinguished three kinds (species) of con­ventiones: publicae (ex publica causa), such as peace treaties concluded by the commanding generals; pri­vatae (ex privata causa), agreements in private mat­ters such as contracts at civil law (conventiones legitimae) and at ius gentium (conventiones iuris gentium).

Condanari Michler, RE 18, 2135; Riccobono, 37 Bonfante 1 (1930) 146; G. Lombardi, Ricerche in tema di ius gen­tium (1946) 193, 215.

Conventio. In later procedural terminology, see libel­lus conventionis.—See convenire (aliquem).

Conventio in manum. An agreement accompanying the conclusion of a marriage, by which the wife en­tered into the family of her husband and acquired the legal position of a daughter (filiae familias loco) dependent upon his power (manus).—See manus (Bibl.), COEMPTIO, CONFARREATIO, USUS.

Conventionalis. Based on a conventio, i.e., an agree­ment between the parties. The term is applied to stipulations (stipulationes) to be distinguished from stipulationes praetoriae, imposed by the praetor in certain proceedings, and stipulationes iudiciales, im­posed by the judge.—See STIPULATIONES PRAETORIAE.

Conventiones legitimae, publicae, privatae. See con­ventio.

Conventum. Occurs only in combination with pactum. See PACTUM CONVENTUM.

Conventus. A gathering of the people in the provinces for judicial purposes (hence the name conventus juri­dicus) on days fixed by the governor, who, during his travels through the province, made a halt in larger cities in order to administer justice. The institution was created at the beginning of the Principate.

Kornemann, RE 4, 1173; Schulten, DE 2, 1189; Humbert, DS 1; Accardi-Pasqualino, NDI 4.

Conventus civium Romanorum. A permanent organ­ization of Roman citizens in the provinces, under the chairmanship of a curator (civium Romanorum).

Kornemann, RE 4, 1179; Schulten, DE 2, 1196.

Conventus collegii. A meeting of the members of an association.

Conventus iuridicus. See conventus.

J. Coroi, Lc c. i. en Egyptc aux trots premiers sitcles de I’Empire rom., 1935.

Convertere. (With regard to the formula in the for­mulary proceedings.) To transfer the condemnatio clause of the formula to a person other than the one mentioned in the intentio, for instance, when the plaintiff’s representative in the trial is the cessionary (procurator in rem suam) of the primary creditor, or when the bonorum emptor acquired the creditor’s property.—See CONDEMNATIO, INTENTIO, TRANSLATIO IUDICII, ACTIO RUTILIANA, BONORUM EMPTIO.

Convicium. A verbal offense against a person’s honor. It is considered an iniuria when committed by loud shouting in public (vociferatio).—See ingratus.

Convincere. To convict a person of a crime as his accuser (see accusatio) or to prove one’s rights in a civil trial against the assertions of th,e adversary.

Convocare. (In public law.) To convoke the senate, a popular assembly, a contio. In criminal law: to assemble a number of accomplices (turba) to com­mit a criminal assault together.

Cooptatio. The election of hew members of a colle­gium by its existing members. It was also practiced in priestly colleges (collegia sacerdotum). Co­optatio took place in the college of the tribunes if the full number of tribunes was not elected by the plebeian assembly or if the post of a tribune became vacant. The lex trebonia abolished the tribunician cooptatio.

Wissowa, RE 4; Paribeni, DE 2.

Copulare matrimonium (nuptias). To conclude a marriage.

Cordi. An enactment by Justinian, beginning with the word “Cordi” by which the second edition of his Code was promulgated (November 16, 534).—See CODEX IUSTINIANUS.

Cornicularii. Soldiers who received the distinctive military sign, corniculum. They were used as adju­tants of their military commanders and for secre­tarial work. Under the Empire higher civil officials also had their cornicularii.—C. 12.57.

Fiebiger, RE 4; Pottier, DS 1; Breccia, DE 2.

Corona. See VENDITIO SUB CORONA.

Corporalis. Corporeal, connected with a corpus.— See RES CORPORALES.

Corporaliter. (Adv., syn. corpore). See possessio. Corporati. Members of a compulsory association (guild) of professional artisans.—See collegiati. Leonhard, RE 4, 1645.

Corpore possidere. See possessio, possessio natu­ralis.

Corpus. A human body (alive or dead). Corpus liberum = a free person.—See vitium corporis.

Corpus. A corporeal thing; it is syn. with res corpo­ralis and opposed to non-corporeal things, to rights (ius, iura). Corpora nummorum = pieces of money, coins, distinguished from a sum of money (summa). Corpus is also used to denote a whole, embracing a number of things, as, for instance, corpus patrimonii = the whole estate, corpus gregis — the whole herd, corpus servorum = all the slaves belonging to one master. With regard to a union of persons, a cor­porate body, corpus is syn. with collegium.—D. 47.22.

Schnorr v. Carolsfeld, Zur Gesch. der juristischen Person, 1 (1933) 147; De Robertis, Il diritto associativo rom. 1938; De Visscher, Scr Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 43; K. Olivecrona, Three essays in R. law, 1949, 18.

Corpus. (With reference to the literary activity of a jurist.) Refers to the whole of his writings (e.g., corpus Ulpiani). Syn. universa scripta.

F. Schulz, Epitome Ulpiani, 1926, 20; idem, History of R. legal science, 1946, 181; Albertario, Studi 5 (1937) 497.

Corpus ex cohaerentibus. (Corpus quod ex pluribus inter se cohaerentibus constat.) A thing composed of several, physically united things of the same or different material, which serves a given economic or social use (e.g., a building, a ship). Through the junction the component parts lose their legal indi­viduality and share the legal situation of the whole. They become property of the owner of the whole. The term universitas rerum, when used for such kind of things, is probably of postclassical origin. Ant. res singularis on the one hand, corpus ex dis­tantibus on the other.—See accessio, ferruminatio, and the following item.

Corpus ex distantibus. An agglomeration of things, physically not united but considered one thing, a unit from the economic and social point of view. The typical example is a herd (grex). Legally such a corpus is treated as a whole and may be, as such, the object of legal transactions (sale, lease) or claims (vindicatio gregis). But the individual things be­longing to such a corpus may also be made the object of transactions and claims, without, however, chang­ing the collective character of the whole. Ant. corpus ex cohaerentibus.

Bianco, NDI 4, 371 (s.v. cose semplici).

Corpus Hermogeniani. See codex hermogenianus. Corpus iuris civilis. A collective designation of the Emperor Justinian’s codification, used first in the edition by Dionysius Gothofredus (Godefroy) in 1583. The denomination embraces the instituti­ones, the digesta (or pandectae), the codex (co­dex iustinianus) and the novellae. No collective title was given to his codification by Justinian himself. He mentions only once (C. 5.13.1 pr.) omne corpus iuris (== the entire domain of.law).

Riccobono, NDI 4; Ebrard, Die Entstehung des C. I. nach den acht Einführungsgesetzen Justinians, Schweizer Bei­träge zur allgem. Gesch. 5 (1947) 28; E. H. Kaden, Jus- tinien legislateur, Memoires de la Faculte de droit de Geneve 6 (1941) 41; F. Wieacker, Rom röm. Recht, 1944, 146; De Clercq, Dictionnaire de droit canonique 4 (1947) 644.

Correctores civitatium. Imperial officials supervising the financial administration of certain municipia. In the later Empire, corrector appears as the title of high governmental dignitaries, in particular of pro­vincial governors.

V. Premerstein, RE 4 ; Cagnat, DS 1 ; Orestano, NDI 4 ; Mancini, DE 2.

Correi (conrei). Two or more debtors owing the same debt.—See DUO REI.

Leonhard, RE 4 (conreus) ; Willems, Mèi Cornil 2 (1926).

Corrumpere. To bribe (a judge, an arbitrator, a mag­istrate) ; to forge a document (a testament = corrum­pere tabulas testamenti, accounts = rationes, a prom­issory bill = corrumpere chirographum).

Corrumpere album. See album, actio de albo cor­rupto.

Corrumpere servum. See actio servi corrupti.

Corruptio (corruptor) servi. See ACTIO SERVI COR­RUPTI.

Kleinfeller, RE 4.

Coruncanius, Tiberius. Consul in 280 b.c. and the first plebeian to be chief pontiff. He is also men­tioned as the first jurist who explained the law in public by discussing private cases and giving opinions in legal questions (responsa).

Jòrs, RE 4 (no. 3).

Cratinus. A law professor in Constantinople and mem­ber of the commission which compiled the Digest.

Creatio. The election of a magistrate in a popular assembly or the appointment of a magistrate or a pontiff. See magistratus. In the later Empire, creatio is appointment to any public service.—C. 10.68; 70.

Brassloff, RE 4.

Credere. To trust, to have confidence in a person as an honest debtor (fidem sequi). Hence pecuniam (rem) credere — to lend money (a thing). Pecunia (res) credita is the sum of money (the thing) given in loan. In a larger sense, credere is syn. with mutuum dare (i.e., to lend money) and creditum with mutuum. In a narrower sense, creditum is a loan when the same object is to be returned to the loan­giver, creditor. �?�?A creditor is not only he who lent money but anyone to whom anything is due for any reason whatsoever” (D. 50.16.11), in other words “anybody who has any action, a civil one, an hon­orary one or an actio in factum” (D. 44.7.42.1).— D. 12.1; C.4.1.—See fraudare.

Leonhard, RE 4.

Creditor. See CREDERE.

Creditor pigneraticius. A creditor who received se­curity from the debtor in the form of a pledge (pig­nus). See PIGNUS, FRUCTUS REI PIGNERATAE, FUR­

TUM POSSESSIONIS.

Ratti, StUrb 1 (1927) 3.

Creditum. See credere, ius crediti.

Creditur. It is presumed.—See praesumptio.

Crematio (vivi). Death by being burned. It was al­ready known in the Twelve Tables as a penalty for arson. Syn. exurere, exurendum damnari, igni ne­cari. See INCENDIARIUS.

Cretio. (From cernere.) The earliest form of ac­ceptance of an inheritance (see aditio hereditatis) by the heir appointed in a testament. The prescribed formula of the oral declaration of acceptance was “Whereas A appointed me as his heres in his testa­ment, I deliberately accept (adeo cernoque) (Gaius 2.166). The testator might impose this solemn form as obligatory and disinherit the heir in the case of omission. Normally cretio had to be declared within one hundred days from the time when the heir had notice of his appointment (cretio vulgaris) if the tes­tator did not dispose otherwise. Cretio was formally abolished in a.d. 407.

Leonhard, RE 4; Levy-Bruhl, NRHD 38 (1914) 153; Buckland, TR 3 (1922) 239; Solazzi, StPav 5 (1919); Besnier, RHD 10 (1931) 324; G. Dulckeit, Erblasserwille und Erwerbswille, 1934, 115; Archi, SDH I 2 (1936) 44; Arangio-Ruiz, FIR 3 (1946) nos. 59, 60; B. Biondi, Istituti fondamentali del dir. ered. 2 (1948) 49; idem, St Solazzi, 1948, 67; F. La Rosa, AnCat4 (1950) 372.

Crimen. May denote the accusation of a crime and the following trial as well as the crime itself, if it is punishable by a public penalty after condemnation of the culprit in a trial conducted under a formal accusation in the forms prescribed for criminal mat­ters. Ant. is delictum which, in classical terminology, applied to private offenses to be prosecuted by the aggrieved person himself and punished by a penalty to be paid to the latter. In postclassical language the two terms are used interchangeably since public prose­cution absorbed the wrongdoings previously classified as delicta. The Roman criminal legislation did not produce a comprehensive penal code. Under the Republic, a series of statutes dealt with crimes and their punishment; a further development was brought by some decrees of the senate and in a large measure by imperial constitutions. Through an extensive in­terpretation the jurists contributed to the application of older statutes to crimes not comprised by the original statute. This happened, for instance, with the Lex Cornelia de jalsis and the Lex Cornelia de sicariis et veneficis and many others. But, generally speaking, only a few juristic writings dealt with merely criminal matters.—D. 47.11; C. 3.15.—See DELICTUM, MALEFICIUM, ADMISSUM, POENA, and the following items. For the individual criminal offenses, see the pertinent entries.

Hitzig, RE 4; Humbert, DS 1; Brasiello, NDI 4; Berger, OCD 489; Albertario, Delictum e crimen, 1924 (=Studi 3 [1936] 143) ; Lauria, SDH I 4 (1938) 188.

Crimen annonae. Unfair machinations, connected with the food supply and perpetrated in order to in­crease prices. See ANNONA, LEX IULIA DE ANNONA.

Crimen calumniae. See calumnia.

Crimen capitale. See capitalis.

Crimen expilatae hereditatis. Plundering an inheri­tance before the instituted or legitimate heir entered it. It did not become a criminal offense until an enactment of Marcus Aurelius. Until then not only was it not punished but it might even lead to the acquisition of ownership over the things lawlessly appropriated through usucapio pro herede.—D. 47.19; C. 9.32.

Leonhard, RE 4; Baudry, DS 2 (s.v. expilatio) ; Solazzi, RendLomb 69 (1936) 978.

Crimen fraudati vectigalis. The crime of tax evasion. —See FRAUDARE VECTIGAL, VECTIGAL.

Crimen legis Fabiae. See lex fabia, plagium.

Crimen maiestatis. (Sc. imminutae, laesae, violatae.) A crime “committed against the Roman people and its security” according to the lex iulia maiestatis (D. 48.4.1.1). A crimen maiestatis could be committed not only by Roman citizens and not only on Roman ter­ritory. Several kinds of wrongs were termed crimen maiestatis : high treason, sedition, criminal attack against a magistrate, desertion, and the like. Under the Principate the term was extended to any offense where the safety of the emperor or his family is involved. In the later period, the term maiestas covered the sphere of perduellio, hence a distinc­tion between these two crimes can hardly be made. The profession of Christianity was treated as crimen maiestatis.—D. 48.4; C. 9.8.—See lex Cornelia de MAIESTATE, LEX VARIA, LEX APULEIA, OBSES.

Kiibler, RE 14; Humbert and Lécrivain, DS 3; Charles- worth, OCD (all s.v. maiestas) ; Berger, ibid. 663 ; Anon., NDI 7 (s.v. lesa maestà) ; E. Pollack, Der Majestätsge­danke im röm. Recht, 1908 ; Ciaceri, St storici per ? antichità classica 2-3 (1909-1910) ; Robinson, Georgetown LJ 8 (1919) 14; F. Vittinghoff, Der Staatsfeind in der röm. Kaiserzeit, 1926; P. Μ. Schisas, Offences against the state, London, 1926; A. Mellor, Les conceptions de crime poli­tique sous la Rep. rom., 1934; C. A. Brecht, Perduellio, 1938; idem, ZSS 64 (1944) 354; Cramer, Sem 9 (1951) 9.

Crimen repetundarum. See repetundae.

Crimen suspecti tutoris. See tutor suspectus. Crimina extraordinaria. See crimina- publica. Crimina levia (leviora). Minor wrongdoings which are tried and punished by a magistrate in a simplified procedure (de piano).—See coercitio, de plano.

Crimina publica. Crimes against the public and so­cial order which were defined by special statutes (leges iudiciorum publicorum) and tried in iudicia publica. The pertinent statutes (listed under lex) settled also the penalties. The prosecution of crimina publica started with accusatio. The procedure was regulated either by the specific statute or by a general one, as the lex iulia iudiciorum publicorum. Ant. crimina extraordinaria (quae extra ordinem coercen­tur) are opposed to the crimina publica which legibus coercentur. Their repression was introduced by im­perial legislation, in a large measure in instructions given to the provincial governors. New kinds of crimes, unknown in the past, were thus submitted to criminal prosecution, and some wrongs previously defined as private offenses (as some kinds of theft, abigeatus, stellionatus) were treated as public crimes and prosecuted through public accusation.— D. 47.11.—See iudicia publica, quaestio.

Criminalis. Connected with a criminal matter (crimi­nalis accusatio, causa). Ant. civilis.

Criminaliter. See civiliter.

Crux. A cross. It was used as an instrument for the execution of persons condemned to death (in [ad] crucem damnare). Crucifixion was considered the most cruel form of the death penalty. Therefore it was applied to slaves; hence the term servile supplicium. Under the Empire crucifixion was also used for Ro­man citizens, but only in the case of individuals of the lower class (humiliores) convicted of particu­larly heavy crimes. It was abolished by Constantine. A wooden pillar to which slaves were bound to be flogged, was also called crux.

Cubicularius. A groom in the imperial chamber (cubiculum).—C. 12.5.

Rostowzew, RE 4; Saglio, DS 1; Besta, NDI 4; J. E. Dunlap, Univ. Michigan Studies, Human. Ser. 14 (1924) 182.

Cubiculum. The bed-chamber of the emperor and the empress.—See cubicularius, praepositus sacri CUBICULI.

Cesano, DE 2, 1280.

Culleus. A leather sack used for the execution of the death penalty by drowning the culprit (poena cullei). The penalty was applied in the case of murder of a near relative (parricidium).—See lex pompeia.

Hitzig, RE 4; Humbert, DS 1; Radin, J RS 10 (1920) 119; Dull, ACDR Roma 2 (1935).

Culpa. (In contractual relations.) A negligence on the part of a debtor who failed to foresee the conse­quences of his behavior with regard to the perform­ance of the duties assumed in a contract. “There is no culpa if everything was done that a very careful man should have done” (D. 19.2.25.7). The respon­sibility of the debtor for his culpa is not settled in a uniform way for all kinds of contracts. There is no general rule in this respect, although * some under­lying ideas are not lacking, such as the liability for culpa of a contracting party who has received profit from a transaction (utilitas contrahentis) or in con­tractual relations governed by good faith (bona fides). Among those responsible for culpa were artisans and experts who took on a piece of work and afterwards proved lacking in the necessary professional knowl­edge (imperitia). On the other hand, in actions in which condemnation would have rendered the de­fendant infamous, his culpa is not taken into con­sideration. “In contracts we are liable sometimes only for dolus (fraud), sometimes also for culpa'⁹ (D. 13.6.5.2). The whole question of liability for culpa in the Roman contractual law is among the most crucial points in the literature, primarily because of the manifold changes introduced into classical texts by Justinian’s compilers, guided by the tendency to increase the debtor’s responsibility, and because of the absence of precise classical definition of various more or less technical terms in this domain, such as custodia, diligentia, neglegentia. In spite of a copious literature on the problem, the opinions of scholars are still divergent in fundamental points.—Culpa in crimi­nal offenses or wrongdoings harmful to others is not so problematical. In some instances it means simply a fault of the guilty wrongdoer for which he is held responsible. As to private wrongs (crimina privata, delieta), culpa as negligence (“when a man failed to foresee what a careful [diligens} man would have foreseen,” D. 9.2.31) it is scarcely conceivable in many cases (theft, robbery). In damage to property (damnum) a negligent behavior (carelessness) was taken into consideration and the jurists frequently dealt with cases of this kind. With regard to damage to property (see lex aquilia) Justinian extended the liability of the wrongdoer to the “slightest negli­gence” (culpa levissima, D. 9.2.44 pr.). Crimina pub­lica were punished only when the offender acted in­tentionally (sciens dolo malo) ; negligence remained without penalty. Where, in a later development, culpa was held to deserve a penalty, the latter was a minor one. Among such instances of punishable negligence were acts committed under a sudden im­pulse (impetus) or in a state of intoxication (ebrietas, per vinum).—Although in delictual matters culpa appears in a somewhat different light from that in the contractual sphere, the conception that culpa is something intermediate between dolus (dolus malus = evil intention, fraud) and casus (accident) is com­mon to both domains.—See dolus, casus, imperitia, NEGLEGENTIA, CUSTODIA, DILIGENTIA, and the fol­lowing items.

Leonhard, RE 4 ; Baudry, DS 1 ; De Medio, St Fadda 2 (1906); idem, BIDR 17, 18 (1905-1906); Kübler, Das Utilitatsprinsip, Fg Gierke, 2 (1911) 256; Gradenwitz, ZSS 34 (1914) ; Binding, ZSS 39 (1919); K. Heidrich, Verschulden beim Vertragsabschluss, 1924; Kübler, Rechts­idee und Staatsgedanke (Fschr Binder, 1930), 63 ; Arangio- Ruiz, Responsabilità contrattuale, 2nd ed. 1933; Vazny, ACH 1 (1935) 345; Kübler, Les degrès de faute, Études Lambert 1 (1938) ; Pflüger, ZSS 65 (1947) 120; Brasiello, SDHI 12 (1946) 148; Condanari-Michler, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 28; Marton, RIDA 3 (= Mèi De Visscher 2, 1949) 182; Visky, ibid. 437; F. H. Lawson, Negligence in the civil law, 1950, 36.

Culpa in concreto. (A term unknown in Roman juris­tic language.) Occurs when a person does not apply the same care (diligentia) in the interest of his creditor which he observes in his own matters (dili­gentia quam suis). Such degree of attention is re­quired of a partner in a societas, of a guardian in the administration of the ward’s affairs, and of a husband in the administration of the dowry.

L. Sertorio, La c. i. c., 1914.

Culpa in eligendo. Negligence involved in choosing an inappropriate person for a work which someone assumed to do. Under certain circumstances the person who made the negligent choice was responsi­ble for the damages caused by the unskilled workman (particularly in locatio conductio operis faciendi).

Culpa in faciendo. A negligent doing which caused damage to another’s property or body. Ant. culpa in non faciendo = negligent omission.

Culpa lata and culpa levis. These constitute a distinc­tion according to the gravity of the negligence. There are no specific criteria, the estimation of the degree is left to the judge. “Culpa lata is an immoderate negligence, i.e., not understanding what all under­stand” (50.16.213.2). Culpa lata (also called culpa latior or culpa magna) is considered equal to dolus (D. 50.16.226). Ant. culpa levis, a lower degree of culpa, is called once, in connection with the lex Aquilia, culpa levissima (D. 9.2.44 pr.).

De Medio, Binding, ll. cc. under culpa; Lenel, ZSS 38 (1918) 263.

Cum re. See BONORUM POSSESSIO cum re.

Cunabula (iuris, legum). Basic principles, elements of the law.

Cura (curatio). Appears as a technical term both in public (administrative) and private law. In the first domain cura embraces the duties of public officials connected with various branches of administration, in the second field it comprises duties of private indi­viduals to protect the interests of private individuals who because of physical or mental defects, youth or absence, cannot take care personally of their affairs. The cura in private law, known already in the Twelve Tables, is similar to guardianship (tutela). The differences which had existed originally between the • two institutions as far as the rights and duties of the tutors and curators were concerned, were gradually abolished; in postclassical and Justinian law the equalization is completed, in a large measure through the insertion of cura into texts which originally dealt with tutela. Persons entrusted with cura are called curatores, both in public and private law. In the following entries the curae of the private law are listed under curator, those (more important) of the public law under curatores.—Inst. 1.23; D. 26.7; 27.5; 7; 9; 10; C. 5.31-34; 36-49; 57; 60-69.—See EXCEPTIO CURATORIA.

Kornemann, RE 4; Leonhard, ibid. 4; Thedenat, DS 1; Anon., NDI 4; Solazzi, NDI (s.v. tutela) 12; De Rug­giero, DE 2.

Cura annonae. The care for corn supply. Under the Republic the aediles were responsible for the cura annonae and all matters pertaining to it (regulation of prices, prevention of monopolies, supply of corn to the troops in Italy, and the like). Their adminis­tration was often a failure and created catastrophic situations. Augustus reorganized the whole matter of provisioning of Rome by the creation of a new office under the direction of the praefectus anno­nae. See ANNONA.

Humbert, DS 1.

Cura minorum. See curator minoris, minores.

Cura morum. The supervision of public morals. The term corresponds to the regimen morum of the censors under the Republic. It is particularly con­nected with Augustus and his “care for law and morals” (cura legum et morum).

A. v. Premerstein, V om Wer den und Wesen des Prinzi- pats, ABayAW 15 (1937) 149; Schmahling, Die Sittenauf- sicht der Zensoren, 1938.

Cura prodigi. See curator prodigi, prodigus.

Curatio. Syn. with cura, in both private and public law.

Curator adiunctus tutori. See curator impuberis. Curator bonorum. The administrator of the estate of an insolvent debtor. He was appointed in certain cases only when the creditors, who were granted possession thereof (missio in possessionem), had no right to sell it (e.g., the heir being a pupillus, absent in the interest of the state, or a prisoner of war). A curator bonorum was also appointed when it was uncertain whether there would be an heir or not. His duty was to protect the estate from losses.— D. 42.7.

G. Solazzi, Concorso dei creditors 2 (1938).

Curator collegii. A leading functionary in profes­sional, religious and other kinds of associations. If there was a magister collegii (a chairman), the curator was his deputy. His functions depended upon the character and aims of the association.

Kornemann, RE 4, 122.

Curator distrahendorum bonorum gratia. See dis- TRACTIO BONORUM. See CLARA PERSONA.

Curator furiosi. A curator of an insane person of whom it is said: “he cannot make any transaction because he does not understand what he is doing” (D. 50.17.5). The curator took care of the person and administered the property of his ward. He could be appointed by the father of the lunatic in a testa­ment; if there was no testamentary disposition, the nearest agnate was, according to the Twelve Tables, entitled to assume the cura furiosi. When the cura­torship was ended the curator could be sued in an actio negotiorum gestorum for bad management of the ward’s patrimonial affairs.—D. 27.10; C. 5.70:— See FURIOSUS, IUDICIUM CURATIONIS.

De Francisci, BIDR 30 (1921) 154; Guarino, SDH1 10 (1944) 374.

Curator impuberis (pupilli). Wards who had a guardian (pupilli), in exceptional cases could have (besides the tutor) a curator, appointed by a magis­trate at the request of the guardian and at the latter’s responsibility (curator adiunctus, actor, adiutor). This occurred when the tutor was old or perma­nently ill—which was not a ground for his removal— or when the property of the pupillus was large and located at distant places. In Justinian’s law the curator adiunctus became an autonomous institution; he was appointed by an official and the tutor was not responsible for his assistant’s activity.—D. 27.10.— See IMPUBES, PUPILLUS.

Sachers, RE 7A, 1526; R. Taubenschlag, Vormundschafts- rechtliche Studien, 1913, 47; Solazzi, C. i., 1917.

Curator minoris. A curator of a minor (a person under twenty-five) sui iuris. Originally appointed for. specific matters in order to protect the inex­perienced minor against transactions in which his youth might have been exploited, the curator minoris became under Marcus Aurelius a legal institution, since the remedy of the lex plaetoria and the prae­torian RESTITUTIO IN INTEGRUM proved insufficient. Appointed at the request of the minor the curator assisted him in concluding transactions by giving his consent (consensus). The remedy of the restitutio in integrum remained in force for minors acting without a curator. It was a general rule that a minor could not make his position worse when he acted without the approval of his curator. In post- classical and Justinian’s law the curator minoris be­came a matter of rule and was assimilated to tutela in many respects.—See cura minores (Bibl.), lex PLAETORIA, IUDICIUM CURATIONIS, TUTOR SUSPECTUS. Berger, RE 15, 1870; Albertario, ZSS 33 (1912) 245 (—Studi 1 (1935) 407; G. Solazzi, La minore età, 1913; idem, RISG 54 (1914) ; Y. Arangio-Riuz, Il mandato, 1949, 23; A. Burdese, Autorizzazione ad alienare, 1950, 14.

Curator muti, surdi. A curator of a dumb or deaf person. His attributions were analogous to those of other curators. Similarly a person who suffered from a chronic disease which did not permit him to manage his affairs, might have a curator.

Curator prodigi. A curator of a spendthrift.. He is known as early as in the Twelve Tables ; he was appointed on behalf of the nearest relatives of the spendthrift in order to save his property for his pre­sumptive heirs. The rights and duties of a curator prodigi are similar to those of a curator furiosi (ex­cept the care for the person of the prodigus). The appointment of a curator prodigi was preceded by a decree of the praetor, inter die tio bonorum, which excluded the spendthrift from the administration of his property. See interdicere bonis. For trans­actions by which the prodigus assumed duties or alienated something from his property, he needed the consent of his curator. He was not permitted to make a testament.—See prodigus.—D. 27.10; C. 5.70.

De Francisci, BI DR 30 (1921) 154; Solazzi, St Bonfante 1 (1930) 47.

Curator pupilli. See curator impuberis.

Curator surdi. See curator muti.

Curator ventri datus. A curator appointed for the defense of the interests of a child not yet born.—See VENTER, NASCITURUS, CONCEPTUS.—D. 37.9.

Anon., NDI 4; Solazzi, RISG 54 (1914) 277.

Curatores. (In public law.) Commissioners entrusted with certain branches of the administration. Augus­tus appointed several curatores and charged them with the administration or supervision (cura, curatio) of public institutions and works which under the Republic attributed to quaestors and aediles, such as public roads (curatores viarum), aqueducts (curatores aquarum), public buildings (curatores operum publi­corum) and the conservacy of the bed and banks of the Tiber (curatores alvei et riparum Tiberis). Cura­tores were active also in municipalities.—See magis­tri, procuratores and the following items.

Kornemann, RE 4; Sacchi, NDI 4; De Ruggiero, DE 2; Thedenat, DS 1, 1621.

Curatores aedium sacrarum. Curatores of imperial buildings. See SUBCURATOR.

Kornemann, RE 4, 1787.

Curatores alvei Tiberis. See curatores.

Thedenat, DS 1, 1623.

Curatores annonae. See cura annonae.

Curatores aquarum. Curatores of aqueducts and ad­ministrators of the water supply.—See subcurator. Kornemann, RE 4, 1784; De Ruggiero, DE 1, 548; T. Ashby, Aqueducts of ancient Rome, 1935, 17.

Curatores civitatis. See curatores rei publicae.

Curatores civium Romanorum. See conventus ci­vium ROMANORUM.

Curatores frumenti. See praefecti frumenti dandi.

Curatores kalendarii. See kalendarium.

Kornemann, RE 4, 1805.

Curatores ludorum. Curatores for extraordinary games (ludi) given by the emperor to the people. Kornemann, RE 4, 1798.

Curatores operum publicorum. Officials for the man­agement of public buildings (administration, lease, construction, contracts with contractors, etc.). Their competence.was sometimes extended to other public institutions which found expression in their official title, appropriately enlarged.—See subcurator, OPERA PUBLICA.

Kornemann, RE 4, 1787, 1802; Thedenat, DS 1, 1622.

Curatores praesidii. Administrative officers in mili­tary garrisons.

Youtie, TAmPhilolAs 81 (1950) 110.

Curatores regionum. See curatores urbis romae.

Curatores rei publicae (civitatis). Officials in Italian cities appointed by the emperor for the supervision and administration of municipal finances. They had jurisdiction in matters connected with the financial administration and intervened in transactions con­cerning municipal property. In the later Empire their competence appears somewhat diminished as a result of a general centralizing tendency in the ad­ministration of the state.

Kornemann, RE 4, 1806; Lacour-Gayet, DS 1, 1619; Mancini, DE 2; Liebenam, Philologus 56 (1897) 290; Lucas, JRS 1940, 56; Cassarino, AnCat 2 (1948) ; A. Lecrivain, Le c. r. p. 1920; D. Magie, Rom. rule in Asia Minor 2 (1950) 1454.

Curatores urbis Romae. Officials who took care of the districts (regiones) of the city of Rome.—See regi­ones urbis romae.

Curatores viarum. Officials charged with the main­tenance and supervision of public roads (cura vi­arum). Primarily the adjacent communities had to contribute funds and labor for constructing and re­pairing the roads. But the state treasury and the imperial fisc made also considerable contributions. There were also special curatores for larger roads, as curatores viae Appiae, Flaminiae, etc.

Kornemann, RE 4, 1781; Chapot, DS 5, 788.

Curiae. The earliest units, probably based on a terri­torial principle, into which the Roman people was divided. There were originally thirty curiae, ten in each tri bus. It seems that in the original stage only patricians belonged to the curial organization; later the plebeians were admitted. The political character of the curiae manifested itself in the comitia curiata in which each curia had one vote. Their purpose was also military, since each of them had to con­tribute one hundred men for the infantry and ten for the cavalry. A land plot was assigned to the airia for common use. The leader of a curia was the curio, the head of all curiae was the curio maxi­mus, originally perhaps identical with the king. A flamen curialis took care of the common worship and religious matters of the members of the curiae. For curiae in the later Empire, see ordo decurionum.

Kiibler, RE 4; Momigliano, OCD; Lacour-Gayet, DS 1; Gervasio, DE 2; Besta, NDI 4.

Curiae municipiorum. The citizens of the municipali­ties (municipes) were organized in groups called curiae or tribus. Curia is also the council of admin­istration, the senate, of a municipium (syn. ordo decurionum), and the building in which the council held its sessions.—See ordo decurionum.

Gaudemet, lura 2 (1951) 44.

Curiales. Members of a municipal council (curia, ordo decurionum) in the later Empire. Syn. decuriones. —C. 3.25 ; 10.22.

Gaudemet, lura 2 (1951) 44.

Curiana causa. A famous trial (c laris sima causa) be­fore the centumviral court dealing with a case of a substitutio pupillaris for a son whose birth was ex­pected but did not materialize. The case in which the jurist Q. Mucius Scaevola appeared for the heirs on intestacy, is mentioned in several writings of Cicero. See CENTUMVIRI.

Perrin, RHD 27 (1949) 354; J. Stroux, Rom. Rechts­wissenschaft und Rhetorik (Potsdam, 1949) 42.

Curio. See CURIA.

De Ruggiero, DE 2.

Curiosi. See AGENTES IN REBUS.------------ C. 12.22.

Humbert, DS 1, 1667; Hirschfeld, SbBerl 39, 1 (1891).

Cursor. A courier, messenger in imperial postal service. Cicolini, DE 2.

Cursus honorum. The order in which the Republican magistracies had to be held by a Roman citizen to make him a capable candidate for a higher magis­tracy. The lowest degree in the magisterial career was the quaestorship which was followed by the aedilship and praetorship. The consulship was the top magistracy. Censorship did not belong to the cursus honorum. Syn. ordo magistratuum. In the Empire there was not a fixed cursus honorum, either in the senatorial or equestrian career, since the em­peror had full liberty to confer official titles on persons who never before had been in service (see ADLECTIO).—Sec LEX CORNELIA DE M AG1STRAT1 BUS, LEX VILLIA.

Kiibler, RE 14, 405.

Cursus publicus. The official postal service organized in the early Principate for the transportation of of­ficial personages or of things in the interest of, or belonging to, the State or the emperor, or connected somehow with the administration. It served also for the official correspondence with the rest of Italy and the provinces. Reorganized by Hadrian, who charged the fisc with its supervision, the postal service was again reformed by Diocletian and his successors and became a compulsory service (munus) shouldered by landowners and wealthy people who had to contribute in various ways to a proper functioning of the insti­tution.—C. 12.50.—See cursus velox, agentes in REBUS, ANGARIA, DIPLOMA, EVECTIO, MANSIO, PARAN­GARIA, VEREDI, PRAEFECTUS VEHICULORUM.'

Seeck, RE 4; Humbert, DS 1; Bellino, DE 2; A. E. R. Boak, Univ, of Michigan Studies, Human. Series 14 (1924) 74; E. J. Holmberg, Zur Gesch. des c. p., Uppsala, 1933;

H. G. Pflaum, Essai sur le c. p. dans le Haut-Empire, Mem. Acad. Insc. et Belles-Lettres, 14, 1 (1940) 189; Labrousse, Mel d’archeologie ct d’hist, de I’Ecole franc, de Rome, 1940, 150.

Cursus velox. Fast post-service (see cursus publi­cus) to be distinguished from cursus clabularis (from clabula — a heavy carriage) for the transpor­tation of food and luggage for soldiers.

Curulis. Refers to magistrates who had the right to seat on a sella curulis during their official activity. See MAGISTRATUS, AEDILES CURULES.

Custodela. An ancient Latin term, syn. with custodia. It appears in the form prescribed for the testamentum per aes et libram. The familiae emptor assumed the custody of the hereditary things. The custodela is a counterpart to a likewise ancient term mandatela, used in the same formula and indicating the wish (order) of the testator concerning the distribution of the inheritance.

Weiss, ZSS 42 (1921) 104.

Custodes corporis. Bodyguards of the emperor and of high military commanders in peace as well as in war.—See EQUITES SINGULARES.

Paribeni, DE 2, 1237; idem, Mitteilungen deutsch. kais. Archdol. Instituts, Rom. Abt. 20 (1905) 321.

Custodia. Custody, safe keeping, watching. The term appears in connection with the responsibility of the debtor in some specific contracts. It belongs to those not precisely defined and oscillating expressions con­cerning contractual responsibility (see culpa), which through manipulations of the compilers of the Digest became nebulous. Moreover, the custodia itself is sometimes accompanied by adjectives, such as dili- gens, plena, which seem to presuppose a gradation thereof. Expressions like exactissima diligentia cus­todiendae rei exclude a precise separation of the terms combined. Responsibility for custodia arose when it was expressly agreed upon or from contracts con­cluded primarily in the interest of the party who held another’s thing to be returned later to the owner, as in the case of a gratuitous loan (commodatum) or when persons were involved whose business it was to assume the custody of other people’s things, as store­house keepers, shipmasters, innkeepers, etc. (see re­ceptum nautarum) or in certain cases of locatio conductio operis faciendi (see fullo). Since on the one hand custodia is linked with culpa, negle­gentia, or diligentia, on the other hand it is opposed to vis maior (see casus), it has been assumed that custodia entailed a higher degree of responsibility than for culpa only; in particular, it involved the duty of a more careful custody, and consequently, liability for a simple, lesser accident (not for vis maior), such as theft which through a more attentive guarding by the debtor could be prevented. Another theory does not consider custodia a specific degree of responsibility between culpa and vis maior, but a diligent care for things belonging to another. One who expressly promised custodia (custodiam prae­stare, see pactum custodiae) or concluded a trans­action which involved custodia, was obliged to apply particular diligence and to perform the pertinent duties with every possible means being also responsi­ble for persons employed therefor. In cases of custodia even a slight omission created the liability of the debtor. Custodia is not to be separated from diligentia, for there is no custodia without diligentia. —Custodia is also used in the normal meaning of the word, outside the domain of contracts, as, e.g., with regard to the custody of things belonging to an inheri­tance by the familiae emptor (see testamentum per AES ET LIBRAM, FAMILIAE EMPTOR), OT that of the missus in possessionem (see missiones in possessi­onem). Custodia is identified there with observatio rerum (— watching, guarding things).—See culpa, SARCINATOR.

Rabel, NDI 4 ; Humbert, DS 1 ; Lusignani, Responsabilità per c., 1-3 (1902, 1903, 1905) ; Schulz, Ztschr. für verglei­chende Rechtswiss. 25 (1911) 459, 27 (1912) 145; idem, KrVj 50 (1912) 22; Seckel, in Heumann’s Handlexikon⁹ (1914) 117; Haymann, ZSS 40 (1919) 167, 48 (1928) 318; Kunkel, ZSS 45 (1925) 268; Vazny, AnPal 12 (1926) 101; J. Paris, La responsabilité de la c., 1926; Carrelli, RBSG 6 (1931) 604; V. Arangio-Ruiz, Respon­sabilità contrattuale², 1933, 62 ; G. I. Luzzatto, Caso for­tuito e forza maggiore I. Responsabilità per c. 1938; Kriickmann, ZSS 63 (1943) 48, 64 (1944) 1; Pflüger, ZSS 65 (1947) 121; De Robertis, AnBari 10 (1949) 58; Rosenthal, ZSS 68 (1951) 222.

Custodia reorum. Detention of persons involved in a criminal matter in a jail, to have them at the dis­posal of the inquiring officials. After condemnation the culprits were held in prison for the execution of the sentence.—D. 48.3; C. 9.4.—See carcer.

Berger, OCD (s.v. prison).

Custodire partum. See inspicere ventrem.

Custos. A jailer. See custodia reorum. Prisoners who escaped from jail profiting by the negligence of the custodes received a milder punishment than those who broke out by their own efforts (effractores) or in conspiracy with other prisoners.

Custos. (In a traditio.) The buyer of a larger amount of merchandise could appoint a custos ( = a guard, an attendant) before taking it away. The delivery of the things (traditio) was considered fulfilled by such appointment, and the seller was free from any risk.

Riccobono, ZSS 34 (1913) 200.

Custos iuris civilis. Title given the praetor by Cicero. Custos urbis. Refers to the praefectus urbi.

Keune, RE 4, 1903; Humbert, DS 1.

Custos ventris. See senatusconsultum planci- anum.

Cyrillos. See KYRILLOS.