Roman Law Terms with Letters M

Macer, Aemilius. A jurist of the first half of the third century, author of monographs on procedure, mili­tary law, and provincial governorship.

Jörs, RE 1 (s.v. Aemilius, no.

Machinatio. (From machinari.) Appears in the defi­nition of dolus malus as a “trick (ruse) used to de­ceive, to cheat, to defraud another” (D. 4.3.1.2).

Macula. A taint of infamy or of immoral behavior.

Maecianus, Volusius. A jurist of the middle of the second century, law teacher of Marcus Aurelius, and later, after a brilliant official career, member of the imperial council. His principal work was Questiones de fideicommissis (concerning fideicommissa), in 16 books. He wrote also on penal procedure and a monograph on the Lex Rhodia.

H. Krüger, St Bonfante 2 (1930) 314; Levy, ZSS 52 (1932) 352.

Magia. Sorcery, the exercise of magical arts. Magia was a crime when it was performed with an evil intention to harm or defraud another. The term covered various kinds of sorcery, such as the use of magic formulae, nocturnal sacrifices made in order to produce supernatural results, the use of magic liquids, and the like. Penalty for sorcery was death, for both the sorcerer and his associates. Possession of magic books was forbidden and punished by death or relegation; the books were burnt in public. Syn. magica ars.—See fruges excantare, occentare, MATHEMATICI.

Kleinfeller, RE 14; Hopfner, ibid. 301; Hubert, DS 3; P. Huvelin, Magie et droit individuel, Annee sociologique 1905-6; Stoicesco, Mel Сотії 2 (1926) 455; Martroye, RHD 9 (1930) 669; C. Pharr, TAtnPhilolA 63 (1932) 269; E. Massonneau, La magie dans I'antiquitt romaine, 1934; V. A. Georgescu, La magie et le dr. rom., Revista clasica 1-2 (Bucharest, 1939-40) ; Cramer, Sem 10 (1952).

Magica ars. See magia.

Magis. More. The term is applied in various phrases, such as magis est, placet, videtur, dicendum est, etc., to give preference to one legal opinion over another (= it is preferable, more correct, more proper to say that...).

Guarneri-Citati, Indice² (1925) 51 (Bibl.).

Magister. A general term (title) indicating a person who exercises high (or the highest) functions in an organization, association, or a public office. For the various magistri, whose particular function is nor­mally indicated by the specification of the body in which they function as a magister, see the following items. Magister is also a teacher “in any field of learning (cuiuslibet disciplinae praeceptor),” D. 50.16.57 pr. The services of teachers were reckoned among operae liberales and could not be the object of contract of hire (see locatio conductio opera­rum). Teachers enjoyed exemption (immunitas, vacatio) from certain public charges (munera civilia). The emperor Constantine considerably enlarged the privileges of professores litterarum and protected them against “vexation.”—C. 10.53.—See immuni­tas, OPERAE LIBERALES, EDICTUM VESPASIANI.

Cagnat, DS 3; De Dominicis, NDI 8; A. E. R. Boak, The R. magistri in the civil and military service*, Harvard Stud­ies in Class. Philology 26 (1915) ; idem, Univ, of Michigan Studies, Humanistic Ser. 14 (1924) 123; Herzog, Urkun- *den zur Hochschulpolitik der rom. Kaiser, SbBerl 1935, 967; S. Riccobono, Jr., AnPal 17 (1937) 50; T. O. Martin, Sem 10 (1952) 60.

Magister admissionum. The master of ceremonies in the imperial court.—See admissiones.

Magister auctionis. The manager of a public auction. See AUCTIO, BONORUM VENDITIO, MAGISTER BONO­RUM.

Magister bonorum. A man appointed by the creditors of an insolvent debtor to prepare and direct the sale of the debtor’s property.—See bonorum venditio.

Solazzi, Concorso dei creditori 2 (1938) 70.

Magister census (censuum, a censibus). The highest officer among the censuales. He was concerned with matters of taxation of the senators.

Seeck, RE 3, 1191.

Magister census. An official who kept a register of students of liberal arts who came to Rome for studies. He supervised their conduct and took care for their moral discipline. For bad behavior students were publicly flogged, expelled from Rome and sent back to their place of origin.

Seeck, RE 3, 1192.

Magister collegii. See curator collegii. He was the leading functionary of a collegium both in private associations and in colleges of public officials and priests. Some collegia had several magistri whose attributions in the management were different. They were elected for five years, hence their appellation “quinquennales.”

Magister creditorum. See magister bonorum.

Magister epistularum. The chief of the division of the imperial chancery concerned with the correspond­ence of the emperor.—See ab epistulis, epistulae, SCRINIUM EPISTULARUM.

Magister equitum. The commander of the cavalry. He was the deputy of the dictator who appointed him. He was the first-in-command when the dictator was absent. For the magister equitum in the post- Constantinian epoch, see magister militum.—See MAGISTER POPULI.

Westermayer, RE Suppl. 5, 631; Cagnat, DS 3; Momig­liano, Bull. Commissione archeol. comunale di Roma 58 (1930) 35.

Magister iuvenum (iuventutis). The head of the organization of young men of noble families {iuvenes) in Italian cities. In some places his title was praetor iuventutis.—See IUVENES.

Magister libellorum. The chief of the bureau of the imperial chancery concerned with libelli, scrinium libellorum.—See a libellis.

V. Premerstein, RE 13, 20.

Magister memoriae. The chief of the bureau a me­moria of the imperial chancery. “He dictates all adnotationes and sends them out; he gives also an­swers to petitions {preces, Notitia Dign. Occid. XVII, 11).—See A MEMORIA, ADNOTATIO.

Seeck, RE 2A, 896; Fluss, RE 15, 656. ’

Magister militum.

Cagnat, DS 3, 1526; R. Grosse, Rom. Militargeschichte, 1920, 180.

Magister navis. One “who is entrusted with the care of the entire ship” (D. 14.1.1.1). See exercitor navis. His agreement with the owner of the ship was either a contract of hire {locatio conductio opera­rum) or a mandatum when he assumed the duties gratuitously.

A. E. R. Boak, Univ, of Michigan Studies, Human. Ser. 14 (1924) 134; Ghionda, RDNav 1 (1935) 327.

Magister officiorum. In the later Empire, the highest official among the court offices {officia palatina) with extensive and manifold functions. He was entrusted with the supervision of certain court bureaus and the secretariat.—C. 1.31; 12.6.—See officium, offi­ciales, SCRINIA.

De Dominicis, NDI 8, 2; Boak, RE 17, 2048; idem, The Master of the Offices, Univ, of Michigan Studies, Human. Ser. 14 (1924).

Magister officiorum (operarum). In private service. Large private estates employing a great number of slaves were divided into units each with a separate management {officium) headed by a magister.—C. 1.31; 12.6.—See scholae palatinae.

Magister pagi. See pagus.

Boak, Univ, of Michigan Studies, Human. Ser. 14 (1924) 136.

Magister peditum. See magister militum. Cagnat, DS 3.

Magister populi. In the Republic, the title of a dic­tator as the commander of the army, whereas the commander of the cavalry was the magister equitum. Westermayer, RE Suppl. 5, 633.

Magister rei privatae. See procurator rei privatae. From a.d. 340 his title is comes rerum privatarum.

Magister sacrarum cognitionum. The head of the imperial bureau concerned with judicial matters brought before the imperial court (from the end of the third century).—See a cognitionibus.

Magister scrinii. The head of any bureau in the im­perial chancery in the later Empire. His deputy was proximus scrinii.—See scrinium.—C. 12.9.

Magister societatis publicanorum. A leading per­sonality in the association of tax farmers.—See publicani.

Magister universitatis. A magister in a corporate body.—See magister collegii.

Magister utriusque militiae. See magister militum. Magister vici. The chief of the local administration of a village, or of a vicus in Rome.—See vicus, REGIONES URBIS ROMAE.

Boak, Univ, of Michigan Studies, Human. Ser. 14 (1924) 136; De Robertis, Hist 9 (1935) 247.

Magisterium (magisteria potestas). The office of a magister whatever his special functions were. The term is frequent in imperial constitutions. Magis­terium refers also to the employment of a magister navis as well as of a teacher.—See the foregoing items. Magistratus. Denotes both the public office and the official himself. Magistracy was a Republican insti­tution; under the Principate some magistratus con­tinued to exist but with gradually diminishing impor­tance; in the post-Diocletian Empire some former magistracies still exist but reduced nearly completely to an honorific title. The magisterial power is based on two fundamental conceptions, imperium and potestas, of which the first is the broader one. For the distinction between imperium domi and imperium militiae, see domi. The imperium domi was ham­pered by the right of intercession of magistrates of higher or equal rank, and primarily of plebeian tri­bunes (see intercessio). The most characteristic features of the Republican magistracy were the limited duration (one year) and colleagueship since each magistracy was covered by at least two persons (see collegae) with equal power. Colleagueship meant complete equality of competence and functions; col­leagues in office could act in common or divide their functions by agreement.

Kubler, RE 14; Brassloff, RE 4, 1686 (s.v. creatio) ; Le- crivain, DS 3; De Dominicis, NDI 8; Treves, OCD; F. Leifer, Die Einheit des Gewaltgedankens im rbm. Staats- recht, 1914; Buckland, Civil proceedings against ex-magis­trates in the Republic, J RS 37 (1937) ; H. Siber, Die ple- beischen Magistraturen, 1938; Gonnet, RHD 16 (1937) 193; Nocera, Il fondamento del potere dei magistrate, AnPer $7 (1946) 145; T. R. S. Broughton and M. Pat­terson, The magistrates of the R. Republic, New York, 1951.

Magistratus curules. Magistratus who had the right to be seated on a folding ivory chair, sella curulis, when acting officially (dictators, consuls, praetors, censors, aedils). The sella curulis belonged to their official insignia and was carried about everywhere they had to perform an official act.—See subsellium, SELLA CURULIS.

Kubler, RE 2A (s.v. sella curulis) ; Chapot, DS 4 (s.v. sella c.).

Magistratus designati. Magistrates elected for the next term (normally in July) during the whole period which preceded their entering on the official duties (since 153 b.c., January first).—See kalendae, re­nuntiatio.

Magistratus maiores—minores. The magistratus

maiores were elected by the comitia centuriata, the magistratus minores by comitia tributa (see magis­tratus). The magistratus minores were officials of minor importance, they had no imperium and were vested with a restricted jurisdiction and some func­tions in specific fields. The collective denomination for a group of magistratus of a lower degree was vigintisexviri. The tenure of a minor magistracy opened the way for the quaestorship, the first step in the career of magistratus maiores.—See cursus honorum.

Lecrivain, DS 3; Kubler, RE 14, 401.

Magistratus minores. See magistratus maiores.

Magistratus municipales. Magistrates in municipali­ties (municipia) who managed the local adminis­tration, finances, and jurisdiction. They were elected by the local assemblies, later by the decuriones and from among the members of the municipal council, ordo decurionum. The principles of colleagueship were also applied to them as well as the institution of intercessio. They had no imperium.—C. 1.56. —See DUOVIRI IURI DICUNDO, QUATTUORVIRI, QUAES­TORES MUNICIPALES, DUOVIRI AEDILES, PRAEFECTI IURI DICUNDO, HONORARIUM, NOMINATIO.

Lecrivain, DS 3; Kubler, RE 14, 434; E. Manni, Per la storia dei municipii, 1947.

Magistratus patricii—plebei. The distinction is based on the circumstance whether a magistracy was ac­cessible only to patricians or to plebeians. In the course of time all magistracies which originally were reserved to patricians, could be obtained by plebeians. Specifically plebeian magistrates were the plebeian tribunes and the aediles plebis.—See transitio ad PLEBEM.

Magistratus populi Romani. Magistrates in Rome; ant. MAGISTRATUS MUNICIPALES.

Magistratus suffecti. Magistrates (chiefly consuls) elected when a magistracy became vacant by death or resignation of the magistrate in office.—See con­sules ORDINARII.

Magna culpa. “Equal to dolus (dolus est),” D. 50.16.226.—See culpa, culpa lata, dolus.

De Medio, St Fadda 2 (1906).

Magnificus (magnificentia). A title of high imperial functionaries in the later Empire.

P. Koch, Byzantinische Beamtentitel, 1903, 45; O. Hirsch- feld, Kleine Schriften, 1913, 672.

Magnitudo. Occurs in the imperial correspondence as a term of address to the highest dignitaries of the Empire (“magnitudo tua”).

Magus. See MAGIA.

Maiestas. Dignity, supremacy, the greatness of the state (maiestas populi Romani). Maiestas was also an honorific title of the emperor.—For maiestas in penal law, see crimen maiestatis, quaestio de MAIESTATE.

Maior. A person higher in official rank.—See magis­tratus MAIORES.

Maior (natu). Older, in particular one who is over twenty-five years of age. Ant. minor, maior aetas = the age over twenty-five.—C. 2.53.

Maiores. Ascendants of a person, from the sixth de­gree. Generally maiores = ancestors, forefathers, when referring to their customs (mos, mores maio­rum) or their legal opinions (maiores putaverunt) and institutions.

H. Roloff, Maiores bei Cicero, Diss., Gottingen, 1938.

Mala fides. See bona fides, fides. The term mala fides superveniens appears in the doctrine of usu­capio, i.e., bad faith of the holder of another’s thing who at the beginning when he took possession thereof believed in good faith that it belonged to him, but later, before the usucaption was completed, became aware that he had no title to own the thing.

Levet, RHD 12 (1933) 1; A. Hagerstrom, Der row. Obligationsbegriff 1 (1927) 145; 2 (1940) 364.

Mala mansio. See mansio mala.

Malae artes. Syn. artes magicae. See magia.

Malae fidei possessio (possessor). See possessio BONAE FIDEI.

Male. (With reference to legal acts or transactions.) Unlawfully, inefficiently (e.g., to sue), unjustly (e.g., to pass a judgment).

Maleficium. A crime, wrongdoing. It is not a tech­nical juristic term and is used as syn. with both crimen and delictum. At times it is syn. with magia; see maleficus.—See obligatio ex delicto.

Taubenschlag, RE 14; Lauria, SDH I 4 (1938) 182; Al- bertario, Studi 3 (1936) 197.

Maleficus. (Noun.) Commonly denotes a sorcerer. Syn. magus, see magia. In similar connection male­ficus (adj.) is syn. with magicus.—C. 9.18.

Malle. To prefer. The term is applied when a person has a choice between two or more things (in con­tractual relations or legacies). Malle in the meaning of to wish, want (= velle) is listed among the words suspected of- interpolation since it frequently occurs in later imperial constitutions.

Guarneri-Citati, Indice² (1927) 55.

Malum carmen. See carmen malum, incantare. Malum venenum. See venenum.

Manceps. One who at a public auction, conducted by a magistrate, through the highest bid obtained the right to collect taxes (a tax farmer) or custom duties, the lease of public land (ager publicus) or other ad­vantages (a monopoly).—In postal organization man- ceps was a post-station master.

Steinwcntcr, RE 14; M. Kaser. Das altrom. I us, 1949, 140; P. Noailles, Du droit sacre an droit civil, 1950, 224.

Mancipare. See mancipatio. Syn. mancipio dare.

Mancipatio. In historical times a solemn form of conveyance of ownership of a res mancipi, accom­plished in the presence of five Roman citizens as witnesses and of a man who held a scale (libripens), with a prescribed ritual and the solemn utterance of a fixed formula by the transferee (the buyer when the mancipatio involved a sale). The formula was: “I declare that this slave (this thing) is mine under Quiritary law and be he (it) bought by me with this piece of bronze and the bronze scale.” The assertion was not denied by the transferor. The transfer of ownership over a res mancipi could be achieved only in this way, otherwise the transferee did not acquire Quiritary ownership, but only possession which might lead to such an ownership through usucAPio. The transaction was perhaps originally called mancipium (from manu capere = to grasp with the hand, which was one of the decisive gestures performed during the act). Mancipatio was also applied for other purposes as, e.g., to make a dona­tion, to constitute a dowry, to hand over a thing to another' as a trustee, fiduciae causa (see fiducia). In all these instances the external aspect of the act was that of a sale although the “price” paid was fictitious, a small coin being given as compensation (mancipatio nummo uno). In the further develop­ment other legal transactions were performed in the form of mancipatio such as the transfer of power over the wife to the husband, emancipating a child (see emancipatio), making a testament per aes et librata, or constituting a servitude. Various clauses might be added to the oral formula of the mancipatio, except the restriction of the transfer by a condition or term (see actus lecitimi). Such additional declarations of transferor were covered by the term nuncupatio. Later, specific duties of the parties were assumed by stipulatio. The increasing use of written documents deprived the mancipatio of its importance. In Jus­tinian’s law it does not appear any more. Mention of it in classical texts, accepted into Justinian’s codi­fication, was omitted and substituted by the formless traditio; mancipare was replaced simply by dare. —See ACTIO AUCTORITATIS, ACTIO DE MODO AGRI, SATISDATIO SECUNDUM MANCIPIUM, NUMMUS UNUS, RAUDUSCULUM.

Kunkel, RE 14; Lécrivain, DS 3; Volterra, NDI 7 ; Berger, OCD; W. Stintzing, Mancipatio, 1904; S. Schloss- man, In iure cessio und in., 1904; A. Hägerström, Röm. Obligationsbegriff 1 (1927) 35, 372; 2 (1940) 301; Hus­serl, ZSS 50 (1930) 478; D. Hazewinkel-Suringa, Μ. en traditio, Amsterdam, 1932; De Visscher, RHD 12 (1933) 603; G. G. Archi. Il trasferimento della proprietà, 1934, 79; Leifer, ZSS 56 (1936) 136, 57 (1937) 172; S. Romano, Nuovi studi sul trasferimento della proprietà, 1937, 55; H. Pflüger, Enuerb des Eigentums, 1937, 97 ; v. Lübtow, Fschr Koschaker 2 (1939) 114; K. F. Thormann, Der doppelte Ursprung der Μ., 1943; Μ. Kaser, Eigentum und Resits, 1943, 107; idem. Das altröm. Ins, 1949, passim; Meylan, Scr Ferrini 4 (Univ. Sacro Cuore, 1949) 190; idem. Conf Inst 1947 (1950) 173; P. Noailles, Du droit sacre au droit civil, 1950, 199.

Mancipatio familiae. The oldest form of a testament made by mancipatio through which the testator trans- fered his property to a trustee (a friend) with an oral instruction (nuncupatio) as to how the trustee, who formally was the buyer of the estate, familiae emptor, had to distribute it after the testator’s death. Since the trustee was the immediate successor (heredis loco) and had to convey the single objects to the persons indicated by the testator, this kind of succes­sion was a succession into specific things and not a universal one.—See familiae emptor, nuncupatio.

Kamps, RHD 15 (1936) 142, 413; Leifer, Fschr Koschakcr 2 (1939) 227; Bruck, Sem 3 (1945) 11; C. Cosentini, 57 sui liberti 1 (1948) 24; Levy-Bruhl, RIDA 2 (-Mel De Visscher 2, 1949) 163; idem, Fschr Schuls 1 (1951) 253;

B. Albanese, Successione ereditaria, AnPal 20 (1949) 164, 294.

Mancipatio fiduciae causa. See fiducia.

Brasiello, RIDA 4 (=Mel De Visscher 3, 1950) 201.

Mancipatio nummo uno. The conveyance of property through mancipatio for a fictitious price (a piece of money) for various purposes (making a donation, constitution of a dowry).—See mancipatio, nummus unus.

Kunkel, RE 14, 1009; Rabel, ZSS 27 (1906) 327; G. Pugliese, La simulasione 1938, 76.

Mancipatus. The service of a postmaster (manceps) in the postal organization; see manceps, cursus publicus.

Steinwenter, RE 14.

Mancipi res. See res mancipi, mancipium.

Mancipio accipiens. The transferee of property in a mancipatio. Mancipio dans = the transferor.

Mancipium. Belongs to the earliest juristic terminol­ogy. The original meaning (much discussed in litera­ture) is rather obscure—it expressed the idea of power over persons and things—but its later appli­cations show a considerable variance. For its syno­nymity with mancipatio (mancipio dare, mancipio accipere), see mancipatio. In the technical term res mancipi (mancipii) there is a reminiscence of the original meaning (a thing taken with the hand in the formal act of mancipatio). Personae in mancipio ( = in causa mancipii) are free persons who were conveyed through mancipatio to another (adoptio, emancipatio, noxae deditio). Finally mancipium is often syn. with servus (a slave).—C. 11.63.—See mancipatio, satis­datio SECUNDUM MANCIPIUM.

Humbert and Lecrivain, DS 3; Volterra, NDI 8; Pam- paloni, Persone in causa mancipii, BI DR 17 (1905) ; J. Ellul, Etudes sur revolution de la notion juridique du m., 1936; Giffard, Rev. de Philologie, 1937, 396; Cornil, Fschr Koschaker 1 (1939) 404; J. G. A. Wilms, De wording van het rom. dominium, Gent, 1939-40, 13; Monier, RHD 19-20 (1940-41) 364; K. F. Thormann, Der doppelte Ursprung der mancipatio, 1943, 58, 175; Tejero, AHDE 15 (1945) 310; P. Noailles, Fas et ius, 1948, 144; M. Kaser, Eigentum u. B esit 2, 1943, 107; idem, Das altrom. Ius, 1949, 136, 328; De Visscher, Nouvelles etudes, 1949, 193; M. David and H. L. Nelson, TR 19 (1951) 439.

Mandare. See mandata principum, mandatum. Mandare actionem. See cessio.

Mandare iurisdictionem. See iurisdictio mandata. Mandare tutelam. To appoint a guardian.

Mandata principum. Judicial and administrative rules or general instructions issued by the emperors to high functionaries of the empire, primarily to provincial governors to be applied by them in the exercise of their official functions. They were binding only in the province for which they were issued. When an imperial mandatum affected lower officials or the provincial population, it was made public by an edict of the governor. The jurists did not include the mandata principum into the imperial constitutions but mentioned them as a particular group of imperial enactments.—C. 1.15.

Finkelstein, TR 13 (1934) 150.

Mandatela. See custodela.

Mandator. One who orders, commissions another to do something. In the consensual contract mandatum mandator = is the person on whose order another assumes the duty to perform something without com­pensation. In penal law mandator is the person who orders another to commit a crime.

Mandator causae. One who orders another to de­nounce or to accuse a third person of a crime. He is responsible for malicious information or accusation made by a delator on his order.—See delatores.

Mandatum. A consensual contract by which a person assumed the duty to conclude a legal transaction or to perform a service gratuitously in the interest of the mandator or of a third person. The mandatum was based on a personal relationship of confidence (friendship) between the parties, it therefore ended by the death of one of them, by revocation by the mandator or renunciation of the mandatary. Gra­tuity of the service was essential, since if compensa­tion was given, the agreement was a hiring of services (locatio conductio operarum or operis faciendi). The mandatary could not sue for an honorarium, but he might claim the reimbursement of expenses by an actio mandati contraria. The mandator’s action against the mandatary for restitution of what the latter gained by executing the mandate or for dam­ages caused by fraudulent acting was the actio man­dati (directa). The actions were bonae fidei (see iudicia bonae fidei ), the condemnation of the man­datary involved infamy. Beyond the field of the contractual mandatum, mandare and mandatum are used in a broader sense of an order or authorization given by one person to another, as e.g., by a creditor to his debtor to pay the debt to a third person, or of a commission given to one’s representative to ad­minister his affairs or a specific affair (negotium, see procurator).—Inst. 3.26; D. 17.1; C. 4.35.—See ADSIGNATIO LIBERTI, RENUNTIARE MANDATUM.

Kreller, RE 14; Cuq, DS 3; Donatati, NDI 8; Lusignani, Responsabilità per custodia, 2 (1905) ; Pampaioni, BIDR 20 (1908) 210; Donatuti, AnPer 39 (1927) 1; Kreller, Arch, für civilistische Praxis 133 (1931) ; Frese, St Ricco- bono 4 (1936) 397; Pringsheim, St Besta 1 (1937) 325; F. Bossowski, Die Abgrenzung des m. und negotiorum gestio (Lwów, 1937) ; Sachers, ZSS 59 (1939) ; Pflüger, ZSS 65 (1947) 169; Sanfilippo, AnCat 1 (1946-7) 167; idem, Corso di dir. rom., Il mandato, Catania, 1947; G. Longo, Scr Ferrini 2 (Univ. Sacro Cuore, 1948) ; Kreller, ZSS 66 (1948) 58; Arangio-Ruiz, Fschr Wenger 2 (1945) 60; idem, Il mandato, 1949; A. Burdese, Autorizzazione ad alienare, 1950, 57.

Mandatum generale. A general authorization con­cerning the administration of all affairs (universa negotia) of the mandator.

Peters, ZSS 32 (1911) 280.

Mandatum incertum. A mandatum in which the object of the mandate is not precisely defined.

Donatuti, BI DR 33 (1924) 168; G. Longo, Scr Ferrini 2 (Univ. Sacro Cuore, 1948) 138; Arangio-Ruiz, Il mandato, 1949, 110.

Mandatum mea (tua) gratia. A mandatum “to my (your) advantage,” a distinction based on the cir­cumstance whether the mandatum is in the interest of the mandator (mea) or the mandatary (tua gratia). Mandatum aliena gratia — a mandatum in the in­terest of a third person. A mandate in the exclusive interest of the mandatary is treated as an advice ; see CONSILIUM.

F. Mancaleoni, Μ. tua gratia, 1899; Last, AnPal 15 (1936) 252; Rabel. Si Bonfante 4 (1930 ) 283; Arangio-Ruiz, Il mandato, 1949, 120.

Mandatum pecuniae credendae. An order given a person to lend money to a third person (mandare alicui ut credat). It created on the part of the man­dator the obligation to secure the mandatary against losses from such a transaction. Such a mandate (called by a non-Roman term mandatum qualifica- tum) made the mandator a surety to the mandatary. —C. 8.40; 5.20.

G. Segrè, RISG 28 (1900) 227 (=Scr giur 1, 1930, 267) ; Bortolucci, BIDR 27 (1914) 129, 28 (1915) 191; G. C. Müller, Kreditauftrag als m. qualificatum, Zürich, 1926;

C. G. Constadaky, Le mandat de crédit en dr. rom., Thèse Paris, 1932; Last, AnPal 15 (1936) 237; Arangio-Ruiz, Il mandato, 1949, 118.

Mandatum post mortem. An order which had to be fulfilled by the mandatary (normally the heir) after the death of the mandator. Such a mandatum is void, because an obligation could not arise in the person of an heir.

Sanfilippo, Si Solazzi 1948, 554; Arangio-Ruiz, Il man­dato, 1949, 142; Rouxel, Annales Faculté de droit Bor­deaux, 3 (1952) 87.

Manere. To remain. The term is applied to legal situations or remedies (actions), to the status of a person or to a contractual relationship which remain valid as they were (in sua causa) in spite of some legal or factual changes which occurred therein.

Manifestare. To make public, manifest. Manifestari = to be made evident, apparent. The term is used of imperial constitutions by which a certain legal rule is settled. Manifestare and the adj. manifestus (mani­festissimus) are frequent terms in the language of the imperial chancery of the later Empire and of Justinian.

Manifesti (manifestissimi) iuris est. See iuris est. Manifestissimus (manifestissime). Most evident.—

See EVIDENTISSIMAE PROBATIONES, PROBATIONES. Guarneri-Citati, Indice² (1927) 55.

Manifestum furtum. See furtum manifestum.

Manilius, Manlius. A prominent jurist under the Republic, consul 149 b.c., author of a collection of juristic formularies (known under the name Monu­menta Maniliana, Actiones Manilianae) ; see for­mulae. He enjoyed high esteem among his con­temporaries who consulted him on the forum and at home.

Münzer, RE 14, 1135.

Manipulus. A smaller unit within the legion, com­posed of one hundred and twenty to two hundred men. Originally there were thirty manipuli, each composed of two centuriae.—Manipularius = a com­mon soldier.

Liebenam, RE 6, 1594; Cagnat, DS 3, 10511

Mansio. A post station located on the principal post roads, with quarters for night’s lodging of passengers. Syn. STATIO.—See MANCEPS.

Kubitschek, RE 14; Humbert, DS 1, 1655.

Mansio mala. An instrument of torture (see tor- mentum) which immobilized the culprit who was bound to a board.

Taubenschlag, RE 14.

Mansuetudo. Mildness, clemency. The Christian em­perors used to speak of themselves in their enact­ments “mansuetudo nostra."

Manu iniuriam (damnum) dare. To hurt, to inflict damage by the use of hands.

Manu militari. Through official organs. The term is applied to the execution of judicial orders and judgments in later civil procedure with the assistance of public functionaries.—See rei vindicatio.

Cagnat, DS 3.

Manubiae. Money obtained from the sale of war booty (see praeda). The sale was directed by the military quaestors and was performed by auction.— See PECULATUS.

Lammert, RE 14; Brecht, RE Suppl. 7, 919; Vogel, ZSS 66 (1948) 408; L. Clerici, Economia e finanza dei Romani, 1943, 143, 153.

Manum inicere. See manus iniectio.

Manumissio. (From manumittere.) The release of a slave from the power (see manus) of his master by the latter, i.e., “giving freedom, datio libertatis'' (D. 1.1.4). Originally the slave became not fully free (even as late as second century b.c. the term servus is applied to freedmen) and the rights of his former master, the manumitter, were more extensive than in historical times, when the manumitted slave became free, sui iuris (independent from paternal power) and a Roman citizen, except in certain spe­cific cases in which his liberty was somewhat limited. For the forms of manumissio, see the following items; for limitations concerning the number of slaves to be manumitted by one master, the age of the slave owner and of the slaves themselves, see lex fufia caninia, LEX IUNIA NORBANA, LEX AELIA SENTIA. The per­tinent restrictions were abolished or, at least, con­siderably softened, by Justinian who also generally suppressed the distinctions in the legal status of freedmen which according to earlier statutes de­pended upon the kind of manumissio and the age of the slave. The manumissio did not tear all ties between the manumissor and his former slave. Even a restricted right of punishment remained from the former ius vitae necisque. The freedman was materially independent but could be obligated to services on behalf of his former master (see iurata promissio liberti) who moreover, had the right of tutorship over his libertus and a right of succession when the latter died without leaving legitimate heirs. —Inst. 1.6; D. 40.1-9; C. 4.14; 7.10; 11; 15.—See LIBERTUS, LIBERTINUS, PATRONUS, TUTELA LEGITIMA, CAUSAE PROBATIO, CONCILIUM MANUMISSIONUM, IUS ACCRESCENDI, LATINI IUNIANI, FAVOR LIBERTATIS ITERATIO, ONERARE LIBERTATEM, INGRATUS, SERVUS DOTALIS.

Weiss, RE 14; Lecrivain, DS 3 (s.v. libertas) ; De Do­minicis, NDI 8; S. Perozzi, Scritti 3 (1948, ex 1904) 511; F. Haymann, Freilassungspflicht, 1905; Lotmar, ZSS 33 (1912) 304; Kaser, ZSS 61 (1941); De Visscher, SDHI 12 (1946) 69 (=Nouvelles Studes, 1949, 117); De Do­minicis, AnPer 52 (1938), 57-58 (1947-48) 111; Cosentini, AnCat 2 (1947-8) 374; Lemosse, RIDA 3 (=Mel De Visscher 2, 1949) 39.

Manumissio censu. A manumission of a slave through his enrollment in the list of Roman citizens, with the consent of his master, during the operation of the census by the censors.

Daube, J RS 36 (1946) 60; C. Cosentini, Si sui liberti 1 (1948) 14; Lemosse, RHD 27 (1949) 161; De Visscher, SDHI 12 (1946) 69; Danieli, SDHI 15 (1949) 198.

Manumissio fideicommissaria. A manumission or­dered through a fideicommissum: a testator requested in his testament the heir or any person awarded by him in his last will to manumit a slave through a formal manumission. The slave did not become free �? until the manumission was performed and the fidei- commissary manumitter became the patron of the slave freed. A senatusconsult under the Principate declared the slave free if the heir refused the ac­ceptance of the inheritance or if for any other reason the performance of the manumissio became impossi­ble. The manumissio fideicommissaria could be ap­plied with regard to a slave of the heir or of a third person. In the latter case the heir was bound to buy the slave in order to manumit him. Manu­missio fideicommissaria is termed also manumissio fiduciaria.—See libertas fideicommissaria, sena­tusconsultum DASUMIANUM, SENATUSCONSULTUM RUBRIANUM, senatusconsultum vitrasianum.

V. De Villa, Liberatio legata, 1939.

Manumissio fiduciaria. See the foregoing item.

Manumissio in convivio (convivii adhibitione). See MANUMISSIO INTER AMICOS.

Manumissio in ecclesia. A manumission performed in a church in the presence of the Christian congre­gation and priests, with consent of the master. It was introduced by Constantine. The slave manu­mitted became a Roman citizen.

De Francisci, RendLomb 44 (1911); Mor, ibid. 65 (1932); Gaudemet, Rev. d’histoire de I’Eglise de France, 1947, 38; Danieli, StCagl 31 (1947/1948) 263.

Manumissio in fraudem creditorum. A manumission performed by an insolvent debtor in order to de­fraud the creditors. The manumissio could be an­nulled at the request of the creditors.—See frau­dare, FRAUS, LEX AELIA SENTIA.

Schulz, ZSS 48 (1928); Beseler, TR 10 (1930) 199.

Manumissio inter amicos. A formless manumission by the declaration of the master, made before wit­nesses, to the effect that the slave be free. If made at a banquet before the guests = manumissio in con­vivio.

A. Biscardi, Manumissio per mensam, 1939, 9.

Manumissio per epistulam. An enfranchisement of a slave by a letter of the master addressed to the slave. This form of manumissio could be applied to an absent slave.

Manumissio per mensam. An informal manumission of a slave through his admission to the master’s table and a pertinent declaration of the latter.

Wlassak, ZSS 26 (1905) 401; Funaioli, BIDR 44 (1936- 37); Paoli, SDHI 3 (1936) 369; A. Biscardi, M. per mensam (Florence, 1939); Henrion, Rev. Beige de philol. et hist., 1943, 198.

Manumissio praetoria. A manumissio performed in a less formal act by the slave’s master who had no quiritary ownership (dominium ex iure Quiritium) over the slave, but only possessed him in bonis (for instance, if the slave was not conveyed to him through mancipatio, but through an informal traditio). Other forms of manumissiones praetoriae were manumissio per mensam, inter amicos and per epistulam. They are called in the literature “praetorian” because they were not recognized by the ius civile. The freedom of slaves so manumitted was protected by the praetor (in libertate tueri) under certain conditions although they had no full rights of freedmen. Therefore their status is described as in libertate morari (= to live in freedom), or “to be in freedom through the pro­tection of the praetor” (tuitione praetoris).

Wlassak, ZSS 26 (1905) 367; A. Biscardi, M. per men­sam e affrancazioni pretorie, 1939.

Manumissio sacrorum causa. A manumission of a slave who assumed the duty to perform sacral rites in behalf of his patron.

Manumissio servi communis, A manumission of a slave owned by two or more masters in common. The classical law required manumission by all co­owners for the validity of the manumissio of such a slave.—See ius adcrescendi.

Manumissio sub condicione. A manumission under a condition, i.e., the liberty of the slave became effec­tive only when the condition was fulfilled. Such a manumission could be made only in a testament. During the intermediary period the slave remained slave, his liberty being in suspense until the realiza­tion of the condition. Such a slave was sold as a slave, but the condition remained in force. Usually the condition consisted in the slave’s payment of a sum to the heir. Such slaves were called during the period of suspense statuliberi. A child of a statu­libera was a slave. A similar situation was a slave manumitted ex die, i.e., when the manumissio became valid at a fixed date. In the meantime, the slave con­tinued to be a slave.—See statuliber.

G. Donatuti, Statuliber, 1940.

Manumissio testamento. A manumission through a testamentary disposition of the slave’s master ex­pressed in a traditional formula “my slave X shall be free {liber esto)” or “I order that my slave X be free {liberum esse iubeo).” The slave became free without any further formality, immediately after the acceptance of the inheritance by the heir. A slave thus manumitted could be instituted as an heir in the same testament. See heres necessarius. In classical law the institution of a slave as an heir not combined with his manumission was void. In Jus­tinian’s law in such a case the manumission was assumed as self-understood and the slave instituted as an heir became automatically free.—D. 40.4; C. 7.2.—See REDDERE RATIONES.

Tumedei, RISG 64, 65 (1920); C. Cosentini, St sui liberti 1 (1948) 17.

Manumissio vindicta. A manumission before a magistrate, performed through a fictitious trial in which a third person, with the agreement of the slave’s master, claimed that the slave was free. The process was similar to a rei vindicatio (suit for the recovery of a thing) in the legis actio procedure. The master did not oppose such affirmation where­upon the magistrate pronounced the slave free. The use of a rod {vindicta) with which the slave was touched by the claimant explains the name of this kind of manumissio.—D. 40.2.—See vindicta, ad- sertio.

Ch. Appleton, Mel Fournier 1929; Levy-Bruhl, St Ricco- bono 3 (1936) 1; Aru, St Solmi 2 (1941) 301; C. Cosen­tini, 57 sui liberti 1 (1948) 11 (Bibl.) ; Monier, Si Alber- tario 1 (1952) 197; Kaser, SDH I 16 (1950) 72; Meylan, RIDA 6 (1951) 113.

Manumissor. See manumissio, manumittere.

Manumittere. To free a slave; see manumissio. Manumittere is also used with reference to the re­lease of a person from the status of mancipium and of a son from paternal power.—See mancipium, emancipatio.

Manum depellere. See depellere manum.

Manupretium (manus pretium). Wages paid for handicraft, the value of an artisan’s work.

Manus. Originally the term indicated the power of the head of a family over all its members and the slaves (manumissio = de manu missio). Later nianus was only the husband’s power over his wife, and that over his children was the patria potestas. The husband acquired manus through a special agree­ment (see conventio in manum) which accom­panied the conclusion of a marriage. The wife under the power {in manu) of her husband had the legal position of a daughter {filiae familias loco).— See MATRIMONIUM.

Manigk, RE 14; Lecrivain, DS 3; Anon., NDI 8; E. Vol­terra, La conception du manage (Padova, 1940) ; idem, St Solazzi (1948) 675; Bozza, Manus e matrimonio, AnMac 15 (1942) 111; Dull, Fschr Wenger 1 (1945) 204; v. Schwind, Scr Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 131; Kaser, lura 1 (1950) 64; Danieli, StUrb 1950; VolUrra, ACIVer 3 (1951) 29.

Manus inferre. To lay hands upon a person, to hit. It is considered an iniuria re facta.—See iniuria.

Manus iniectio (manum inicere). See legis actio per manus iniectionem (Bibl.)—Manus iniectio was also the symbolic act (touching the debtor’s shoulder) performed by a plaintiff when he sum­moned the debtor into court (see in ius vocatio).— See LEX VALLIA, DEPELLERE MANUM.

Taubenschlag, RE 14; Lecrivain, DS 3; Noailles, Revue des Etudes Latines 20 (1942) 110; idem, Fas et ius, 1948, 147; idem, Du droit sacre au droit civil, 1950, 120; M. Kaser, Das altrom. Ius, 1949, 191.

Manus iniectio iudicati. Introduced by the Twelve Tables for the execution of judgment-debts.—See LEGIS ACTIO PER MANUS INIECTIONEM.

P. Noailles, Du droit sacre au droit civil, 1950, 110.

Manus iniectio pro iudicato. A manus iniectio “as if upon a judgment,” i.e., an execution of certain kinds of debts in the form of legis actio per manus iniectionem as in the case of a manus iniectio for judgment-debts. In the oral formula pronounced by the plaintiff the words pro iudicato were added. There was, however, no preceding judgment.—See LEGIS ACTIO-PER MANUS INIECTIONEM, ACTIO DEPENSI.

Manus iniectio pura. A manus iniectio which was neither iudicati nor pro iudicato but was introduced by special statutes for specific claims; see lex furia testamentaria, lex marcia against usurers. The defendant was permitted to remove the plaintiff’s hand {depellere manum) and defend himself per­sonally {pro se lege agere).—See lex vallia, and the foregoing items.

Manus sibi inferre. To commit suicide. Syn. con­sciscere sibi mortem.

Marcellus, Ulpius. A jurist of the second half of the second century after Christ, author of an extensive work, Digesta, of a collection of Responsa, and of a commentary on the Digesta of Julian in the form of Notae.

Orestano, NDI 7; Sciascia, BIDR 49-50 (1948) 424.

Marcianus, Aelius. One of the last jurists of the classical period (later first half of the third century), author of Institutiones in 16 books, richly exploited by the compilers of the Digest. He also wrote a collection of Regulae and a few monographs, chiefly on criminal procedure.

Jors, RE 1, 523 (no. 88); Ferrini, Opere 2 (1929, two articles of 1880 and 1901); H. Kruger, St Bonfante 2 (1930) 312; Buckland, St Riccobono 1 (1936) 273; De Robertis, RISG 15 (1940) 220.

Mare. The sea is a res communis omnium. “By nature it is open to everyone” (D. 1.8.2.1; Inst. 2.1.1). Everybody has the right of fishing therein. —See LITUS.

Costa, Rivista di dir. internasionale 5 (1916) 337; Maroi, RISG 62 (1919); Biondi, St Perozzi 1925; Branca, AnTr 12 (1941) 5, 91; G. Lombardi, Ricerche in tema di ius gentium, 1946, 99.

Margarita. A pearl.—See gemma.

Maritalis affectio. See affectio maritalis, concu- BINATUS.

Maritimus. See usurae maritimae.

Maritus. A husband. Mariti may sometimes refer to husband and wife.—See ius mariti.—C. 4.12.

Berger, Amer. Jour, of Philology, 67 (1946) 332.

Martinus. A glossator of the twelfth century (died 1166?), a disciple of Irnerius.—See glossatores.

Anon., NDI 6 (s.v. Gosia Martino) ; H. Kantorowicz, Si in the Glossators of R. Law, 1938, 86.

Mater. “The mother is always certain” {semper certa est, D. 2.4.5), no matter whether the child was born in a legitimate marriage or not. The legal status (liberty, citizenship) of an illegitimate child depends upon that of the mother. A widow-mother was in postclassical times admitted to the guardianship over her children.—C. 4.12; 5.46.—See femina, tutela, manus, and the following item.

Wenger, ZSS 26 (1905) 449; Frezza, StCagl 12 (1933- 34); Sachers, Fschr Schulz 1 (1951) 327.

Mater familias. A woman, a Roman citizen, was either a mater familias (i.e., not under the power of another person, suae potestatis) or a filia familias (i.e., under the paternal power of a pater familias, either as his wife, uxor in manu, or as his daughter, or daughter-in-law being uxor in manu of a filius familias). Originally mater familias was the wife of a pater familias married to him cum manu. In a broader sense, from a moral and social point of view, any woman who lived “not dishonestly” was a mater familias whether she was married or a widow, free born or a freedwoman. Syn. matrona.

Kunkel, RE 14; Bickel, Rhein. Museum für Philol., 65 (1910) 578; Carcaterra, AG 123 (1940) 113; C. Castello, St sul dir. familiare, 1942, 97; R. Laprat, Le role de la femme mariée, Mèi Gonnard 1946, 173.

Mater tutrix. See tutor.

Materia (materies). The material, the substance of which a thing is made, in particular the materials used for the construction of a building. “He who is the owner of the material is also the owner of what has been made of it” (D. 41.1.7.7).—See specifi­catio.

C. Ferrini, Opere 4 (1930, ex 1891) 103; S. Perozzi, Scritti giur. 1 (1948, ex 1890) 225.

Materna bona. See bona materna.

Mathematici. Astrologers, persons who exercise the ars mathematica, casting horoscopes. It was reck­oned among artes magicae (see magia) and pro­hibited as a condemnable {damnabilis) divination.— C. 9.18.

Matricula. An official list of public officials, primarily of military ones.

Ensslin, RE 14; Boak, RE 17, 2050.

Matrimonium. A marriage; in legal language syn. with nuptiae. According to a definition by the jurist Modestinus matrimonium was “a union between a man and woman, an association for the whole life, a community of human and divine law” (D. 23.2.1). The definition, which has not remained without heavy attacks as to its classicality, expresses, however, a basic truth about the moral and ethical elements of the Roman marriage, without saying anything about the legal aspect of the institution. The Roman mar­riage was a factual relation between man and woman, based on affectio maritalis (intention to be husband and wife) and cohabitation as husband and wife, i.e., with the social dignity of a legitimate marriage (see honor matrimonii, concubinatus). The aim of the matrimonium was the procreation of legitimate children (see LIBERORUM QUAERENDORUM CAUSA). The marriage was monogamie and the common living started with the deductio in domum mariti. Legal requirements of a valid marriage were ius conubii and consent of the parties. “A marriage is con­cluded by consent” ( = consensus facit nuptias, D. 50.17.30). “A marriage cannot be concluded be­tween persons who do not want to conclude it” (D. 23.2.22). If the future spouses were under paternal power {alieni iuris), the consent of the heads of the family was necessary; likewise the consent of the guardian of a woman sui iuris was required. Im­puberes (persons below the age of puberty) and lunatics were incapable of concluding a marriage. Soldiers were not permitted to marry ; see matrimo­nium militum. For the interdiction of marriage between persons related by blood, see incestum, nuptiae incestae. Adoptive relationship and af­finity (see adfinitas) created incapability of inter­marriage to.a certain degree. There were also specific prohibitions of marriage, as, for instance, senators and their sons were forbidden to marry freedwomen; persons of senatorial rank could not marry actors or actresses; a tutor or curator could not marry his ward; a high provincial official was forbidden to marry a woman living in his province. In the later Empire marriage between Christians and Jews was prohibited. The legal situation of the mar­ried wife depended upon the circumstance whether or not the marriage was accompanied by a conventio in manum; see manus, conventio in manum. A matrimonium was dissolved—aside from divorce (see divortium, repudium)—when one of the spouses lost the legal ability to conclude a marriage (see ius conubii) through the loss of liberty (see servus poenae, captivity) or citizenship. The legislation of the Christian emperors and Justinian was consid­erably influenced by Christian doctrines, in particular by the dogma of the insolubility of marriage.—Inst. 1.10; D. 23.2; C. 5.4; 6; 7.—See affectio mari­talis MANUS, CONFARREATIO, COEMPTIO, USUS, IUS CONUBII, LEX CANULEIA, LEX IULIA DE MARITANDIS ORDINIBUS, BINAE NUPTIAE, CONCUBINATUS, DOS, DONATIO INTER VIRUM ET UXOREM, DONATIO ANTE NUPTIAS, ACTIO RERUM AMOTARUM, SECUNDAE NUP­TIAE, LUCTUS, ADULTERIUM, BENEFICIUM COMPETEN­TIAE, POSTLIMINIUM, CONCUBITUS, DIVORTIUM, RE­PUDIUM, SPONSALIA, ORATIO DIVI MARCI, and the following items.

Kunkel, RE 14; Erhardt, RE 17 (s.v. nuptiae) ; Lécrivain, DS 3; Piola, NDI 8; Berger, OCD (s.v. marriage); Weiss, ZSS 29 (1908) 341; Di Marzo, Lesioni su matri­monio, 1 (1919) ; P. G. Corbett, The R. law of marriage, 1930; Albertario, Studi 1 (1933, three articles); Vaccari, St Pavia 21 (1936) 85; Lévy-Bruhl, Les origines du mariage sine manu, TR 14 (1936) 453; M. Lauria, Matri­monio e dote, Naples, 1952; Lanfranchi, SDHI 2 (1936) 148; Koschaker, RHD 16 (1937) 746; Nardi, StSas 16 (1938) 173; H. J. Wolff, Written and unwritten mar­riages in Hellenistic and postclass. R. law, Haverford, 1939 ; R. Ballini, Il valore giuridico della celebrazione nusiale cristiana dal primo secolo all'età giustinianea, 1939; De Robertis, AnBari 2 (1939) ; C. Castello, In tema di matrimonio e concubinato, 1940; Nardi, SDHI 7 (1941); Orestano, BIDR 4,7 (1940) 159, 48 (1941) 88, 55-56 (1952) 185; the three articles published in a volume La struttura giuridica del matrimonio rom., 1951 ; idem, St Bonolis 1 (1942) ; idem, Scr Ferrini (Univ. Pavia, 1946) 343; idem, Scr Ferrini 2 (Univ. Sacro Cuore, Milan, 1947) 160; Guarino, ZSS 63 (1943) 219; C. W. Westrup, Re- cherches sur les antiques formes de mariage (Danemark Akad. 30, 1943); P. Rasi, Consensus facit nuptias, 1946; Kòstler, ZSS 65 (1947) 43; E. Volterra, La conception du mariage d’après les juristes romains, Padua, 1940; idem, RISG 1947, 399; idem, RIDA 1 (1948) 213; idem, St Solassi 1948, 675; Wolff, ZSS 67 (1950) 288.

Matrimonium incestum. See incestum, nuptiae INCESTAE.

Matrimonium iniustum. See matrimonium iustum.

Matrimonium iustum. A marriage validly concluded between Roman citizens or by a Roman citizen with a non-Roman who was granted ius conubii. Ant. matrimonium iniustum (non iustum) between a Roman and a peregrine without conubium. It is not a matrimonium iuris gentium; the latter term occurs in the literature, but is unknown in Roman sources.

Corbett, LQR 44 (1928) 305; idem, The R. law of mar­riage, 1930, 96; Gaudemet, RIDA 3 (=Mel De Visscher 2, 1949) 309.

Matrimonium legitimum. In Justinian’s language syn. with matrimonium iustum.

Matrimonium militis. Soldiers could not conclude a valid marriage. The influence of the husband’s en­listment on the existence of the marriage is contro­versial. The sources do not give a precise answer as to whether the marriage became automatically null or only suspended. Children conceived and born during the soldier’s service are illegitimate. The emperor Hadrian granted, however, such children rights of succession on intestacy (bonorum possessio) upon the father’s death.

Tassistro, SDocSD 22 (1901); Stella-Maranca, ibid. 24 (1903); Marenti, StSen 33 (1917) 108; P. Corbett, The R. law of marriage, 1930, 41; Castello, RISG 15 (1940) 27; Menkman, TR 17 (1941) 311; Wenger, Anseiger Akad. Wiss. Wien, 1945, 104; Berger, Jour, of Jur. PaPy- rology 1 (1945) 25, 32 (=BIDR Suppl. Post-Bellum 55-56 [1951] 109, 115).

Matrimonium subsequens. A marriage concluded be­tween persons living in concubinage.-—See legiti­mate PER SUBSEQUENS MATRIMONIUM.

Matrona. An honorable wife of a Roman citizen even when he is not pater jamilias and is still under paternal power. See mater familias. When sum­moning a matrona into court (in ius vocatio), the plaintiff had to abstain from touching her body. In public a matrona appeared in dress reserved for married women (a stola with a purple border). Hence a matrona, particularly of a higher social rank = jemina stolata, and the right to wear a stola = ius stolam habendi. Matronalis habitus = dignified be­havior, the dress of a matrona.

Schroff, RE 14.

Mauricianus, lunius. A jurist of the second half of the second century after Christ, author of an exten­sive commentary on the Lex Julia et Papia Poppaea. Kroll, RE 10 (no. 93).

Maxime si (or cum). Particularly, especially. The term is often interpolated in order to introduce a special case or a restrictive element to what was said by a classical jurist.

Guarneri-Citati, Indice* (1927) 51.

Maximus. See optimus maximus.

Mederi. To apply a legal remedy in order to “cure” an uncertain legal situation. The verb is frequently used by Justinian’s chancery.

Medici. Physicians were considered to exercise a lib­eral profession (ars liberalis), for this reason their services were not compensated in earlier times. See honorarium. They could, however, demand a pay­ment if they assumed their duties by contract (locatio conductio operarum). The physician was responsible for inexpert (imperite) treatment or operation and could be sued either by a contractual action ex locato or by a delictual one, ex lege Aquilia. The latter was originally applicable only when a slave was the victim of an inexpert treatment. Later the action was avail­able when a free man was involved. Physicians enjoyed exemption from public charges (munera).— C. 10.53.—See edictum vespasiani, excusationes A MUNERIBUS.

Heidrich, IhJb 88 (1940) 139; Herzog, RAC 1, 722.

Meditatio de pactis nudis. A Byzantine dissertation on simple pacts (the Greek title is Melete Peri psilon symfonon). The pamphlet, composed about the middle of the eleventh century, seems to be the opinion of a judge given in an actual trial. The unknown author reveals a considerable knowledge of the Digest.

H. Monier and G. Plafon, NRHD 37-38 (1913-14).

Meditatum crimen. A crime committed with pre­meditation.

Medium tempus. The intervening time. Medio tem­pore ( = in medio) — in the meantime, between two legally important events, as, for instance, between the making of a testament and the death of the tes­tator; between setting a condition and its fulfillment (syn. pendente condicione) ; while an appeal is pend­ing or when a man is in captivity.

Mela, Fabius. A little known jurist of the Augustan Age.

Brassloff, RE 6, 1830 (no. 117).

Melius est. Introduces a legal opinion which is prefer­able to another melius est dicere, dici, probari, melius est ut dicamus and the like). The locution is not free from suspicion of non-classical origin when used to cut short a discussion.

Guarneri-Citati, Indice² (1927) 56, 29; idem, Fschr Ko- schaker 1 (1939) 142.

Melius aequius. See bonum et aeQuum.

Membranae. Appears only once as the title of a juristic work by neratius (in 7 books). The mean­ing of the word is not quite clear. It refers either to the material (parchment) on which the manu­script was written, or it indicates the nature of the work as “short notes” which the author put down first in a rough draft on loose parchment sheets and of which he later made a collection.

F. Schulz, History of R. legal science, 1946, 228.

Membrum ruptum. See os fractum.

Binding, ZSS 40 (1920).

Memoria. See a memoria, scrinium memoriae. Memoria damnata. See damnatio memoriae. Memoriales. Officials in the various bureaus of the imperial chancery (scrinia).

Ensslin, RE 15.

Memorialia. Things worthy to be remembered. It appears only once as a title of a juristic work by the jurist Sabinus (in eleven books). The work seems to have been more of an antiquarian than juristic nature.

Menander. See arrius menander.

Mens. Intention, volition (syn. voluntas), purpose, design. Ea mente, ut (syn. eo animo, ut) = with the intention that.—See animus, mente captus, com­pos MENTIS.

Mens legis. The intention, the sense of a statute.

Mensa. See MANUMISSIO PER MENSAM.

Mensa. (In bankers’ business.) A table (counter) at which money changing transactions were done (mensa argentaria, nummularia). This kind of banker was called mensularius. They accepted alsb deposits in cash.—See ARGENTARII, NUMMULARII.

Kruse, RE 15, 945.

Mensis intercalaris. An intercalated month (in Feb­ruary). “It consists of 28 days” (D. 50.16.98.2).— See LEX ACILIA DE INTERCALANDO.

Mensor. (In the later Empire.) A high imperial official who had to provide quarters for the emperor, his family and staff in Rome and during)their travels, a quartermaster. High officials in the provinces and prefectures had also their mensores.

Fabricius, RE 15, 959; Albertario, 57 6 (1953) 417.

Mensores aedificiorum. Experts in urban construc­tions.

De Ruggiero, DE 1, 206.

Mensores agrorum. See agrimensores.,

Mensores frumentarii. Measurers, surveyors of trans­portation of corn in Italian ports. They assisted the praefectus annonae in the administration of the sup­ply of corn for Rome.

Cardinali, DE 3, 301.

Menstruum. (Adj. menstruus.) A monthly pay (sal­ary). Syn. menstrua merces. Alimony in money and sustenance in kind (menstrua cibaria, menstruum frumentum) were normally paid every month.

Mensularius. See mensa, argentarii.

Mensura. Mensuration, the activity of mensores (agrimensores). Mensura is also an instrument for measuring. The magistrate could order its de­struction if it was false and used for fraudulent pur­poses.—See RES Quae pondere nomero mensurave CONSTANT, GENUS.

Mensura delicti. The gravity of a crime. It influ­enced the severity of the penalty.

Mente captus. A mentally disordered individual. He is subject to curatorship (сига).

Mercator. A tradesman, a merchant on a lower scale than a negotiator. Sometimes syn. with emptor ( = a buyer). See NEGOTIATOR.

Cagnat, DS 3; Brewster, Roman craftsmen and tradesmen of the early Empire, (Menasha, Wis.) 1917.

Mercennarius. A hired laborer who works for pay (merces). Servus mercennarius = a slave who is hired out by his master to another for money.—See LOCATIO CONDUCTIO OPERARUM.

Merces. A payment (wages, salary, rent) in money agreed upon in a lease or hire of services (see loca- tio conductio). A recompense paid for any kind of services, without a preceding agreement (e.g., for saving one’s life) is called also merces.—See re- MISSIO MERCEDIS.

Longo, Mèi Girard 2 (1912) 105.

Merere (mereri). To deserve. The verb is used in connection with favors granted to deserving persons (e.g., a judicial remedy, the emperor’s grace). It is used also when a person deserves an unfavorable treatment (a punishment, a disinheritance). Merere occurs also in the meaning of earning through one’s labor or under a testamentary disposition.

Meretrix. A prostitute. Syn. mulier quae palam cor­pore quaestum facit ( = a woman who publicly earns money with her body). Palam means “in a house of ill-fame, in inn-taverns, without choice” (D. 23.2.43 pr. 1). A meretrix was branded with infamy even after she ceased to exercise her profession; a legal marriage freed her, however, from the stigma. Mere- trices had to register with the aediles. They were excluded from testimony before court, from legacies and inheritance, from visiting public spectacles and were prohibited to wear garments reserved for honest women (stola). They paid a special tax, vectigal meretriciuyi. Senators and their sons were prohibited from marrying meretrices, actresses, ill-famed women or those whose parents were connected with such professions. Relations with meretrices were not pun­ished as stuprum. Syn. f emina famosa (probrosa). See MINUS, LUDICRA ARS.

Schneider, RE 15; Navarre, DS 3; Nardi, StSas 16 (1938); Solazzi, BI DR 46 (1939) 49; C. Castello, In tema di matrimonio, 1940, 120; Wedeck, Cl Weekly 36 (1943); Grosso, SDHI 9 (1943) 289.

Merito. (Adv.) Justly, rightly, with good reason. Merito is frequently couped with iure (iure ac me­rito). Jurists used the term when they approved of another jurist’s opinion.

Meritum. With reference to a high imperial office, dignity.

Meritum (merita) causae. The essential points of a litigation.

Merx. Merchandise, goods, which can be the object of a sale. Only movables (with the exclusion of slaves) are covered by the term.—See emptio.

Merx peculiaris. Goods belonging to a son’s or a slave’s peculium (primarily in a commercial busi­ness).

Messis. A harvest.—See oratio divi marci, ven- DEMIA.

Messius. Probably a jurist. He is mentioned only once linked with Papinian. No further details about him are known.

H. Krüger, St Bonfante 2 (1930) 331.

Metallarii. Miners. Their work was supervised by public officials.—C. 11.7.

Metallum. A mine. According to the principle that whatever is under the earth belongs to the owner of the land, mines were either in private ownership or belonged to the state. Public mines were exploited through the intermediary of tax-farmers (publicani) who paid the state a fixed sum. In the first century of the Principate the mines in Italy and the provinces came gradually under the imperial administration whose control was exercised through procuratores of equestrian rank. The system of leasing the mines to private farmers (conductores) was still in use but the more intensive supervision by imperial offi­cials benefited both production and labor. The ad­ministration of stone-pits (lapidicinae) and quarries of marble was managed in a similar way.—C. 11.7.— See LEX METALLI VIPASCENSIS.

Rostowzew, DE 3, 128; Orth, RE Suppl. 4, 145, 152 (s.v. Bergbau) ; Fiehn, RE 3A., 2280 (s.v. Steinbruch) ; Mis- poulet, Le regime des mines, NRHD 31 (1907) 354. For further bibl. see lex metalli vipascensis. Another lex metallis dicta in Riccobono, FIR I² (1941) no. 104 (Bibl.) ; L. Clerici, Economia e finanza dei Romani, 1 (1943) 466.

Metallum. In metallum (metalla) damnare. To condemn a criminal to work in a mine (or a quarry) for life. This was the severest punishment after the death penalty (proxima morti = nearest to death) since work in mines in addition to rigorous labor involved being kept in fetters. Damnatio in metallum implied loss of freedom (servi poenae). A milder degree of punishment was damnatio in opus metalli.

U. Brasiello, La repressione penale in dir. rom., 1937, 373.

Metatum. (In later imperial constitutions.) Quarters for soldiers. Metator = a quartermaster. The owner of an immovable on whom the duty of billeting soldiers was imposed could be released from the obligation paying a sum of money (epidemetica).— C. 12.40.

Metus. Fear. Use of duress in order to compel a person to conclude a transaction, to assume an obli­gation or to make a payment, is a private crime (delictum) which may be prosecuted by the person who acted under duress by a special action, actio quod metus causa (sc. gestum est — for what was done because of fear). If sued for the fulfillment of a promise given under duress, he might oppose the exceptio metus. Under certain circumstances a resti­tutio in integrum was granted. Metus is defined as “a trepidation of mind because of an imminent or a future danger” (D. 4.2.1), but not any fear, “only the fear of a greater evil” (D. 4.2.5). A groundless fear (timor vanus, metus vani hominis) is not taken into consideration. The original name of the action might have been formula Octaviana since it was in­troduced by a praetor Octavius (about 80 b.c.). Later it was called simply actio metus causa. The action was penal (actio poenalis). If brought within a year, the defendant (the extortioner) was con­demned to a fourfold value of the property extorted. —D. 4.2; C. 2.19.—See coactus volui, actiones ARBITRARIAE, TIMOR.

L. Charvet, La restitution des majeurs, 1920, 27; Schulz, ZSS 43 (1922) 171; v. Liibtow, Der Ediktstitel quod metus causa, 1932; G. Maier, Praetorische Bereicherungs­klagen, 1932, 44.91; Sanfilippo, AnCam 7 (1934); C. Longo, BIDR 42 (1934) 68; C. Castello, Timor mortis, AG 121 (1939) 195.

Meum. My property. “Mine is what I have the right to claim through vindicatio” (D. 6.1.49.1). “Meum esse ex iure Quiritium” (= it is mine under Quiri- tary law) was the assertion of the plaintiff in the legis actio sacramento in rem when he claimed a thing from the defendant.—See rei vindicatio.

Migrare. To move from one’s dwelling.—D. 43.22.— See INTERDICTUM DE MIGRANDO.

Miliarium (milliarium). A milestone marking the distance of a thousand paces (mille passus). Civil trials within the first milestone of the city of Rome (intra primum urbis Romae miliarium) belong to the category of iudicia legitima.—The competence of the praefectus urbi embraced the territory within the hundredth milestone of the city.

Schneider, RE Suppl. 6; Lafaye, DS 3; O. Hirschfeld, Kleine Schriften, 1913, 703.

Militare. To serve as a soldier. In later times, to serve in a public office, civil or military.—See MILITIA, MILITES.

Militaris. (Adj.) Connected with, or pertaining to, soldiers or military service.—See milites, militia, IUS MILITARE, MANU MILITARI, RES MILITARIS, AERA­RIUM MILITARIS, AES MILITARIS, INTERCESSIO MILI­TARIS, DELICTUM MILITARE, DIPLOMA MILITARE, VES­TIS MILITARIS.

Militariter punire. To punish according to military penal law.

Milites. Soldiers enjoyed various privileges in the field of private law. They were allowed to make a testament without the observance of the formalities of the civil or praetorian law, see testamentum militis. The liability of a soldier instituted as an heir for the testator’s debts was limited to the amount of the inheritance. The rights of succession on intestacy of a soldier’s children born during his mili­tary service, which were denied by the ius civile, were recognized by the emperor Hadrian. Soldiers who were under paternal power (filii familias) were granted the right to have a peculium castrense. A special privilege of soldiers was that under certain circumstances they could be excused on the ground of ignorantia lURis. On the other hand, however, various restrictions were imposed on milites. They had no ius conubii during the time of service and could not conclude a valid marriage; see matri­monium militis. They were forbidden to belong to an association (collegium) in castris (see castra), and were not admitted to act as, or through, a pro­curator in a civil trial. In the field of criminal law there were special military crimes which were severely punished. Punishments were different from those applied to civilians; see delicta militum. Soldiers were able to appear in court and to act for them­selves. In the later Empire special military courts (iudices militares) assumed jurisdiction in civil mat­ters when the defendant or both parties were soldiers. An imperial constitution of the later Empire (a.d. 458) prohibited soldiers from taking in lease another’s land or from assuming obligations for others as sure­ties, agents or mandataries. “They should be busy with their military service (arms) and not with other people’s affairs” (C. 4.65.31). Soldiers who were peregrines in auxiliary troops (auxiliarii) were granted Roman citizenship after their discharge.— C. 1.46.—See TESTAMENTUM IN PROCINCTU, BENE­FICIUM COMPETENTIAE, AES MILITARE, COM MEATUS, EXPLORATIO, LEX PORCIA DE PROVOCATIONE, MISSIO, DIPLOMA MILITARE, NEMO PRO PARTE, MILITIA, SUICI- DIUM MILITIS, DELICTA MILITUM.

D. Jacomet, Les militaires en dr. rom., Lyon, 1882; A. Segre, Il diritto dei militari peregrini, Rend Accademia Pontificia, 1940-1941, 167.

Militia. Military service (sometimes the term refers to service in war time). Militiae se (or nomen) dare — to enlist in the army. Ant. legi (from legere) = to be compulsorily enrolled. Illegal enlistment of a person who was not permitted to serve in the army (a slave, a person who was condemned to fight with wild beasts, a former deserter) was punished with death. Voluntary enlistment in order to evade capi­tal punishment or deportation did not offer release from the punishment. After Constantine militia ac­quired a broader meaning since it also covered em­ployment in civil administration in the various im­perial offices and in provincial government, militarily organized. At times in this period a distinction is made between the service in the army (militia ar­mata) and the civil service (militia cohortalis, Pala­tino or simply militia). The militia which already in classical times (second post-Christian century) appears as the object of a sale or legacy, may refer to a lower public service (in the fire-brigade, appari­tores). In the later Empire the purchase of an official post was frequently practiced.—C. 12.33.— See MUTATIO MILITIAE, REICERE MILITIA, IRREVERENS.

Mommsen, Röm. Staatsrecht 3 (1887) 450; Marchi, AG 76 (1906) 291; G. Kolias, Ämter und Würdenkauf im früh­byzantinischen Reich, 1939.

Militia armata, cohortalis. See militia.

Milita equestris. Military service of a high grade officer in the cavalry.

Militia palatina. See militia. Milliarium. See miliarium.

Mimus. An actor in mimes, a dancer. A troupe of actors sold as an ensemble is considered a unit; hence the sale of the whole can be rescinded because of defects in one of the group. The same rule applies to tragic actors (tragoedi). Mimae (= actresses, dancers) are socially equal to meretrices.

Wüst, RE 15, 1743.

Minicius. A jurist of the first century of the Prin- cipate, a disciple of Sabinus. His work is known by an extensive commentary of Julian.

Steinwenter, RE 15, 1809 (no. 3); Riccobono, BI DR 7 (1894 ) 225, 8 (1895) 169; A. Guarino, Salvius Julianus, 1946, 38; H. Krüger, 57 Bonfante 2 (1930) 332.

Minime. By no means, not in the least. The fre­quency of the adverb in late imperial constitutions, and particularly in those of Justinian, in the meaning of a simple negation (non) makes its authenticity in classical texts rather suspect when it appears there in the place of non.

Guarneri-Citati, Indice⁹ (1927) 56.

Minister. A servant, a subordinate (assistant) of an official under the Empire. In exceptional instances it refers to higher officials, both civil and military. When mentioned in connection with a crime = an abettor, an accomplice. In the Christian Empire, when connected with ecclesiatical service = a Church servant, a minister (ministeria ecclesiarum).

Ensslin, RE Suppi. 6.

Ministeriales (ministeriani). Officials in the imperial palace of a rather subordinate rank. They had to take care of the imperial household (in the later Empire). They were appointed by the emperor and enjoyed exemption from humble public services (munera sordida). The magister officiorum ex­ercised jurisdiction over them.—C. 12.25.—See cas­trensiani, MINISTRI CASTRENSES.

Ensslin, RE Suppi. 6; J. E. Dunlap, Univ, of Michigan Studies, Human. Ser. 14 (1924) 212; Giffard, RHD 14 (1935) 239.

Ministeriani. See ministeriales.—C. 12.25.

Ministerium. The office (activity) of a minister or of a ministerialis.—In criminal matters ministerium is the assistance in committing a crime, complicity.— See MINISTER.

Ministerium divinum (ecclesiae). A divine service. Ministerium, publicum. A public office. The term is also applied to municipal offices (ministeria munici­palia).

Ministerium sacrum. Service in the imperial palace. Syn. ministerium sacri palatii, sacri cubiculi. The emperors speak of their palace staff as "nostrum sacrum ministerium”

Ministerium servorum (servile, servitutis). Slaves’ work, services rendered by slaves. Hence ministeria denotes all slaves in the service of the same master. —C. 3.33.

Ministri castrenses. See castrensiani. There were two kinds of ministri castrenses: statuti == members of the regular staff, and supernumerarii = additional members who were promoted to the rank of statuti to fill vacancies.

J. E. Dunlap, Univ, of Michigan Studies, Human. Ser. 14 (1924) 213.

Minor aetas. Minority. Syn. adulta, imperfecta aetas. Ant. maior aetas.—See aetas, minores.

Berger, RE 15, 1769 (s.v. Minderjährigkeit), 1862.

Minores. An abridged expression for minores viginti quinque annorum (annis) or minores annorum (an- nis). Minores were persons who exceeded the age of iMPUBERES and were under twenty-five years of age. Similar expressions, although not technical in the juristic language, are adultus, adulescens, and iuvenis. Within the minority there is a special term for the age under eighteen, plena pubertas, the classi- cality of which is doubtful. It had no particular legal importance. A minor sui iuris (not under paternal power) was considered unable and not experienced enough to manage his affairs because of his juvenile light-heartedness and weakness of mind (infirmitas animi, aetatis). Until the curatorship of the minors, cura minorum (see curator minoris) was intro­duced as a general institution, a minor was protected against fraud (see circumscribere) by the lex plaetoria and the praetorian remedy of restitutio in integrum which remained the most efficient pro­tective measure during the classical period. Under Justinian the cura minorum became compulsory. The ability of a minor to appear in court was re­stricted by Constantine who ordered that the minor had to be assisted by a curator. In Justinian’s codification the cura minorum appears completely assimilated to tutorship (tutela). This was per­formed through innumerable interpolations but not with consistency. Some details in the development of the cura minorum have remained therefore obscure and the nature of the duties of a curator minoris is still controversial. He certainly was something more than a simple adviser and was not excluded at all from the administration of the ward’s property.— D. 4.4; C. 2.21-42; 5.71.—See curator minoris, IUSIURANDUM MINORIS;

Berger, RE 15 (Bibl. p. 1889); Cuq, DS 3; Albertario, Studi 1 (1933, ex 1912) 407, 427, 475, 499; idem, SDH I 2 (1936) 170; G. Solazzi, La minore età, 1913; idem, AVen 75 (1916) 1599; Lenel, ZSS 35 (1915).

Minus. Less. “The minus is always included in what is greater (plus)” (D. 50.17.110 pr.). Therefore, “he who is allowed to do what is greater (plus) should not be prohibited from doing less” (D. 50.17.21).

Minus solvere. To pay less than one owes. “He who pays later pays less” (D. 50.17.12.1).

Minutio capitis (minui capite). See capitis demi­nutio, CAPUT.

Miscere. See COM MISCERE, MIXTUS.

Miscere (se) hereditati. See immiscere, pro herede GERERE.

Miserabilis persona. See persona miserabilis.

Missilia. Money thrown as largesse to people in the theatre or on the street by emperors, high officials or wealthy individuals. The coins became the prop­erty of the persons who picked them up.—See tra­ditio IN INCERTAM PERSONAM, TESSERAE NUMMARIAE. Berger, RE 9, 552 (s.v. iactus) ; Fabia, DS 3; Meyer- Collings, Derelictio, Diss. Erlangen, 1930, 2.

Missio. A discharge from military service. Honesta missio — an honorable discharge after the completion of twenty-five years of irreproachable service. Ant. ignominiosa missio when the dismissal was occa­sioned by the soldier’s committing a common or military crime. Missio causaria (or simply causaria) = discharge because of mental or physical disability. For missio of peregrine soldiers, see auxilia.—See DIPLOMA MILITARE.

Lammert, RE 15, 1666; 4A, 1949; Rowell, Yale Classical St 6 (1939) 73.

Missio in bona. See missiones in possessionem.

Missio in possessiopem. See the entries below, after MISSIONES IN POSSESSIONEM.

Missio in rem. See missiones in possessionem. The typical case of such missio by which a claimant was given possession of a single thing (an immovable) be­longing to his adversary is missio in possessionem DAMNI INFECTI NOMINE.

Missiones in possessionem (in bona). A coercive measure, applied by the praetor by virtue of his im­perium, by which a claimant was authorized to enter into possession of his adversary’s property, in whole or in a part (see missio in rem). The purposes of missiones were different and so were in the various cases their effects. The praetorian decrees concern­ing missiones were issued either in order to assure the normal progress of the trial and to prevent the defendant’s attempts to sabotage it, or to secure the debtor’s property for the satisfaction of his creditors, or to induce the debtor to assume a special obligation through stipulatio (stipulationes praetoriae) for se­curity purposes if he refused to do it voluntarily. The legal situation of the missus in possessionem created by missio varied from real possession to simple cus­tody and control (custodia et observantia) of the things the holding of which he obtained only to assure that the debtor’s property would remain intact and be used exclusively for the benefit of the creditors. At times the situation of the missus in possessionem was comparable to that of a creditor who received a pledge (pignus praetorium, the term may be not classical), since the missio led finally to the sale of the debtor’s property if he did not satisfy the creditors in the interim. Protection was given certain persons (such as impuberes, or those absent in the interest of the state) in that their property generally could not be sold. The edictal clause in which the praetor announced the issue of a wtsrio-decree was in the most cases: “bona possideri proscribi veniriquc iu- bebo” ( = I shall order the property to be taken into possession, advertised for sale and sold”). The praetor’s mi^fo-decree was withdrawn and the missus in possessionem ordered to surrender possession (de­cedere de possessione) if the debtor came to an arrangement with the creditor. Missiones were acts designed to exert pressure on the debtor and were, if successful, of a temporary character. They were generally successful when the missus entered into a property occupied by the owner who had to suffer his continuous presence and control. In certain cases the missus in possessionem enjoyed interdictal pro­tection; see INTERDICTA NE VIS FIAT EI QUI IN possessionem missus est.—For the various missiones in possessionem or in bona, see the following entries. —D. 42.4.

Weiss, RE 15; Cuq, DS 3; S. Solazzi, Concorso dei creditori 1 (1937); M. F. Lepri, Note sulla natura delle m.i.p., 1939; Branca, St Solazzi 1948, 483.

Missio in possessionem Antoniniana. Introduced by the emperor Caracalla, who admitted a missio in possessionem legatorum servandorum causa also into the property of the heir if, within six months after the presentation of a claim by a legated, he did not give sufficient guaranty for the payment of the legacy. The legatee missus in possessionem might take the products (fructus) from the heir’s property to satisfy his claim.—See missio in possessionem legatorum SERVANDORUM CAUSA.

Lepri, op. cit. 123; F. M. De Robertis, Di una pretesa innovazione di Caracalla, AnBari N.S. 1 (1§38) 99.

Missio in possessionem bonorum (bona) pupilli. A missio into the property of an impubes if in a suit over a transaction concluded by his guardian the former (the pupillus) was not defended by his tutor. The missio was rescinded when the tutor or a relative of the pupillus assumed the defense.

Missio in possessionem damni infecti nomine. When the owner of a defective immovable refused to give cautio damni infecti for damages threatening the neighbor’s property, the praetor allowed the latter to enter into possession (missio in rem) of the im­movable. If the first decree (missio ex primo de­creto) did not produce the desired effect (repairing of the building or giving the cautio) the praetor issued a second decree (missio ex secundo decreto) which put the missus in the position of a possessor ad usucapionem, i.e., he might usucapt the immov­able.—See USUCAPIO.

Lepri, op. cit. 89; Branca, Danno tcmuto, 1937, 130.

Missio in possessionem dotis servandae causa. One of the cases of the missio in possessionem rei ser­vandae causa. It was granted a divorced wife or a widow in order to secure her claim for the resti­tution of the dowry.

Solazzi, Dote e nascituro, RendLomb 49 (1916) 312.

Missio in possessionem ex edicto Hadriani. In order to assure the prompt payment of the estate-tax (vicesima hereditatium) Hadrian ordered that an heir instituted in a testament apparently valid might take possession of the testator’s estate immediately after the payment of the tax. This kind of missio, which differs essentially from the normal missiones, no longer existed in Justinian’s time.—C. 6.33.

Missio in possessionem legatorum servandorum causa. If an heir refused to give a cautio legatorum servandorum causa for the payment of a legacy (or a fideicommissum) left under condition or. to be paid at a fixed date {ex die), the legatee could ask for this missio in order to enter into possession of the estate (but not of the private property of the heir) and remain there, together with the heir, as long as the heir did not furnish security. He held the prop­erty custodiae causa (=for safekeeping).—D. 36.3; 4; C. 6.54.—See cautio legatorum nomine, missio IN POSSESSIONEM ANTONINIANA.

Lepri, op. cit. 113.

Missio in possessionem (bona) rei servandae causa. Decreed by the praetor in various circumstances dur­ing a trial: when the defendant was absent in court and was not defended by a representative, when he intentionally kept hiding {latitare) so as to avoid being summoned to court; or when he was considered indefensus because of his refusal to cooperate in the progress of the trial, as, for instance, when he refused to accept the procedural formula approved by the praetor. See indefensus. This missio is also the initial stage of the property execution against a de­fendant who has been condemned by judgment {iudi- catus) or is considered as such {pro iudicato), as the confessus in iure was (see confessio in iure). The function of this missio was similar in the case of an insolvent debtor or an insolvent inheritance. The creditor or creditors could obtain possession of the debtor’s property or estate which would eventually be sold; see venditio bonorum, curator bonorum.

Weiss, RE 15; Cuq, DS 3; P. Ramadier, Les effets de la tn. in b., 1911; H. R. Engelmann, Die V oraussetzungen der tn. in b., 1911; Rocco, Studi sulla storia del fallitnento, RDCotn 1913 (=11 fallitnento, 1917); S. Solazzi, Il con­corso dei creditors, 1-4 (1937, 1938, 1940, 1943); Lepri, op. cit. 43.

Missio in bona suspecti heredis. See satisdatio SUSPECTI HEREDIS.

Missio in possessionem ventris nomine. A missio for the protection of the rights of an unborn heir. Its function was similar to the bonorum possessio ven­tris nomine when the father of the child was dead. —D. 25.5; 25.6; 37.9.

S. Solazzi, Il concorso dei creditors, 1 (1937) 20.

Missus in possessionem (bona). A person who by the decree of the praetor was granted a missio in possessionem of the property of his debtor or adver­sary in a trial.—See missiones in possessionem.

Mittendarii. Imperial officials sent to remote provinces with special imperial messages to the governor or in order to collect special taxes.

Mittere. To send (a letter = epistulam, a messenger = nuntium, a person to perform a specific official or private mission). For mittere in possessionem, see missiones in possessionem. For mittere repudium, see REPUDIUM.

Mittere. (With reference to soldiers.) To discharge from military service {ab exercitu, militia).—See MISSIO, DIPLOMA MILITARE.

Mixtus. (From mis cere.) With reference to legal

institutions {munera, condiciones) or procedural remedies {actiones, inter dicta) = of a hybrid, mixed nature. The term reflects more the Byzantine men­tality than the exact legal thinking of the classical jurists and is suspect as being a late postclassical or Justinian creation.—See actiones mixtae, impe­rium MERUM, INTERDICTA MIXTA, MUNERA.

Berger, Vol. onoranse Sitnoncelli, 1915, 183; Guarneri- Citati, Indice² (1927) 57.

Mobiles res. See RES MOBILES.

Moderatio. (From moderare, moderari = to restrain, limit, rule.) The observing of reasonable limits, temperateness. When referring to their acts of grace, or indulgence the emperors used to speak of “modera­tio nostra.”—A similar expression, moderamen, ap­pears in late constitutions.

Moderator. A ruler. Moderator provinciae = the gov­ernor of a province.—See praeses provinciae.

Modestinus, Herennius. One of the last representa­tives of the classical Roman jurisprudence, a pupil of Ulpian, and a high official in the administration of Rome about a.d. 240. He wrote an extensive collection of Responsa (in 19 books), a work on Differentiae { = controversial questions) and Regulae ( = legal rules). He was also the author of a Greek treatise on exemptions from guardianship {excusa­tiones). Modestinus was one of the jurists distin­guished in the Law of Citations (see iurispruden- tia).

Brassloff, RE 8 (s.v. Herennius, no. 31); H. Krüger, St Bonfante 2 (1930) 315.

Modicus. Moderate-sized, moderate, restrained. The term, applied to punishments, losses, expenses, lack of preciseness. Modicum tempus = a short time. Modicus appears in texts suspected of interpolation. Guarneri-Citati, Indice² (1927) 57.

Modus. A measure, a limit. In the meaning of a burden, a duty imposed in acts of liberality (dona­tions, legacies, manumissions) on a beneficiary, the term is of late origin. It appears in the language of the chancery of later emperors, and in the lan­guage of Justinian and his compilers. Sometimes the term covers what was a condicio (condition) in the classical language. In the classical law it was dis­putable whether a duty imposed as a modus created on the part of the beneficiary a binding obligation. The emperor Gordian set a general rule that the person interested in the fulfillment of a modus of pecuniary value could sue the heir or legatee for fulfillment.—D. 35.1 ; C. 6.45.—See donatio sub modo.

Weiss, RE 15; Cuq, DS 3; F. Haymann, Schenkung untar Auflage, 1905; P. Lotmar, Freilassungsaufiage, ZSS 33 (1912) 304; Messina-Vitrano, St Riccobono 3 (1936 ) 99.

Modus aedificiorum. A limit regulating height in the construction of buildings.—See lex iulia de modo aedificiorum.

B. Biondi, La categoria romana delle servitutes, 1938, 23; Berger, lura 1 (1950) 121.

Modus agri. The boundary of a plot of land.—See AGRIMENSORES, ACTIO DE MODO AGRI.

Modus donationis. Limits imposed on the amount of donations or with regard to the formalities to be accomplished to render a donation valid. See lex cincia. In another sense modus is used with refer­ence to gifts ; see MODUS, DONATIO sub modo.

Modus facultatum. The financial situation of a person, mentioned in connection with the constitution of a dowry or with alimony which has to correspond to the financial means of the person obligated.—See FACULTATES, BENEFICIUM COMPETENTIAE.

Modus legatorum (or legis Falcidiae). The limits imposed on the amount of legacies by the lex fal­cidia. For legatzim sub modo, see modus.

Modus servitutis. A modification of the typical con­tent of a servitude limiting the rights the beneficiary has in the exercising of the servitude, for instance, the size of carriages he may use in the servitus actus.

S. Perozzi,* Scritti 2 (1948, ex 1888) 29; Biondi, Scr L. Barassi 1943, 57 ; idem, Le servitù prediali, 1946, 46.

Modus usurarum. The limit of the rate of interest imposed by law.—See usurae.

Moliri. To start the construction of a building.—See OPERIS NOVI NUNTIATIO.

Momentaria possessio. See possessio momentaria. Momentum. Weight, importance. Nullius momenti esse = to’ be void, of no legal force. Syn. inefficax, nullus, effectum non habere. Ant. valere.

Hellmann, ZSS 23 (1902) 421.

Momentum. An instant, a moment. When for legal effectiveness a certain period of time must elapse (as, e.g., for usucapio) the time is reckoned in full completed days, not according to hours or specific moments (a momento ad momentum).

Monachi. Monks. They were in Justinian’s law in­capable of being guardians. Their property was in­herited by their monastery if they died without leav­ing a testament and there were no near relatives. Several Justinian Novels (5.76.79.123.133) deal with monks and monastic life.—C. 1.3.

Granic, Byzantinische Ztschr. 30 (1930) 669; Schaefer, AC11 1 (1935) 173; Tabera, Professio monastica causa divortii, ibid. 189.

Monachium. See monasterium.—C. 1.3.

Monasterium. A monastery. The ability of a monas­tery to own property was recognized in the fifth cen­tury. Legislation of the Christian emperors, par­ticularly that of Justinian, dealt frequently with monasteries, their legal situation, and specifically with their ability to benefit by testaments as heirs or lega­tees.—See monachi.—C. 1.3.

A. Ferradou, Des biens des monastires d By sauce, 1896; Branic, Byzantinische Ztschr. 29 (1929 ) 6; Schnorr v. Carolsfeld, Geschichte der juristischen Person 1 (1933) 394; P. W. Duff, Personality in R. law, 1938, 185; 196.

Moneta. Minted money. See falsa moneta. Mo­neta may also mean the mint itself. Moneta sacra = the imperial mint. The theft of coins from the mint is punished with work in mines (metalla) or exile.— See triumviri monetales, nummularius, tessera nummularia, optio.

Monetarii. Workers in the imperial mint. They could leave their occupation only with difficulty.— C. 11.8.—Monetarius is also the counterfeiter of coins.

Monitor. (In the later Empire.) An official who reminded the tax-payers of taxes due.—In private enterprises — an overseer (over slaves).

Monitorium edictum. See edictum monitorium.

Monopolium. A monopoly, i.e., the exclusive right to sell and deal in a specific type of merchandise. An imperial constitution of the emperor Zeno (a.d. 483, C. 4.59.2) forbade the monopolization of the sale of certain commodities (clothes, foodstuffs) or items of common use, as well as of the performance of certain works. There were many other similar prohibitions carrying the penalty of confiscation of property and exile for life.—C. 4.59.

Heichelheim, RE 16 (Bibl. 199).

Monstrum. An unnatural, monstrous creature (mon- struosum, prodigiosum, portentosum aliquid, osten- tum) which has not the shape of a human being (contra formam humani generis) is not considered a child. A law ascribed to Romulus allowed the killing of such an offspring immediately after birth. —See portentum.

Kiibler, ZSS 30 (1909) 159; Ambrosino, RendLomb 73 (1939/40) 70.

Montanus. See paganus.

Monumenta. Written documents, records. Publica monumenta (= public records) offer a stronger evi­dence than the testimony of a witness, according to a decree of the senate.

De Visscher, AntCl 15 (1946) 122.

Monumenta Maniliana. See manilius, formulae. Monumentum. See sepulcrum.

Monumentum Ancyranum. Called a stone monument on which a great part of Augustus’ autobiography (see res gestae divi augusti) is preserved. Monu­mentum Antiochenum = fragments of the same work found in Antioch (Pisidia).

Kornemann, RE 16; Momigliano, OCD; Robinson, Amer. Jour, of Philology, 47 (1926); W. M. Ramsay and A. v. Premerstein, Klio, Beiheft 19, 1924; H. Volkmann, Bur- sians Jahresberichte 279 (1949, Bibl. for 1914-1941); Luzzatto, SDHI Suppl. 17 (1952) 167.

Mora. Default. In mora esse = to be in default. “He from whom a payment cannot be demanded because of an exception (he has against the claim) in not in default” (D. 12.1.40). “A thief (fur) is al­ways in default” (D. 13.1.8.1) with regard to the restoration of the thing stolen.—See mora debitoris.

Mora accipiendi. See the following item.

Mora debitoris—creditoris. There is a distinction between mora debitoris, an unjustified failure of a debtor to pay his debt, and mora creditoris, which occurs when the creditor refuses to accept the pay­ment offered him by the debtor in due time, without any just reason or when he makes it impossible for the debtor to discharge his debt by, for instance, being absent. In the case of mora debitoris (mora solvendi, solutionis) the liability of the debtor is aug­mented : an accidental destruction of the thing due is at his risk, he has to pay interest (usurae morae) when the debt is of a sum of money, and he has to restore all proceeds he had from the time he has been in default (in mora). The debtor is not responsible, however, for a default caused by no fault of his own. The default of the debtor causes the obligation to become everlasting (obligatio perpetuatur). Mora creditoris involves also certain disadvantages to the creditor: the thing due is now at his risk and the debtor is responsible only for fraud (dolus), even if the original obligation imposed on him a larger re­sponsibility. The debtor has the right to free himself from his obligation through a deposition of the sum due; see depositio in aede. The consequences of the mora come to an end (purgare, emendare moram) when, in the case of mora debitoris, the debtor offers full payment to the creditor, and, in the case of mora creditoris (syn. mora accipiendi), the latter accepts the payment. The usual expressions for mora are stat per debitorem (or per creditorem) quominus solvatur (= it is caused by the debtor or creditor that the payment is not being made). A general rule (D. 50.17.88) is “there cannot be a mora where there is no claim (petitio).”—See interpellare, mora.— D. 22.1.

Kaser, RE 16; Cuq, DS 3; Montel, ND! 8; C. Scuto, La mora del creditors, 1905; Siber, ZSS 39 (1909) ; Graden­witz, ZSS 34 (1913); Bohacek, AnPal 11 (1924) 341; Guarneri-Citati, ibid. 232; Genzmer, ZSS 44 (1924) 86; Arno, AG 100 (1928) 443; A. Montel, Mora del debitors, 1930; Niedermeyer, Fschr Schulz 1 (1951) 399.

Mora solvendi, solutionis. See mora debitoris.

Morari. To delay, to defer (a payment) ; see mora debitoris.—Morari ( = to stay, to abide at a place) is used of certain lasting legal situations of a person, e.g., morari in possessione (= to be in possession of a thing), in libertate (—to live as a free man).— Morari means also to detain. The formula by which the presiding magistrate dismissed the senators after the meeting, was “nihil vos moramur” ( = I do not detain you any longer).

Morbus. A disease. The jurist deals with morbus (D. 21.1.1.7: “an unnatural state of the body which impairs its use”) in connection with the liability of the seller of a sick slave. Morbus is distinguished from vitium inasmuch as morbus is “a temporary sickness of the body while vitium (a defect) is a perpetual impediment of the body” (D. 50.16.101.2). —See emptio.

Morbus comitialis. Epilepsy. If a case of epilepsy occurred in a popular assembly an immediate inter­ruption and postponement of the gathering took place, since the disease was considered a bad omen.

Seidl, RE 16.

Morbus perpetuus. A chronic disease. Ant. morbus temporarius.—See curator muti.

Morbus sonticus. A grave, acute sickness. If in­curred by a judge or one of the parties during a trial, an adjournment took place. A morbus sonticus of the debtor was considered a valid excuse for non­fulfillment of his obligation.

Lecrivain, DS 3.

More. (Abl.) According to usage (custom); in the way (fashion) of, e.g., more iudiciorum Judicially, in court, by the normal procedure.

Mores (mos). Customs, “the common consent of all people living together; if observed for a long time (mos inveteratus) it becomes a consuetudo.” Certain legal institutions originate from mores (moribus re­ceptum, introductum est)_f as, for instance, the inter­diction of gifts between husband and wife (donatio inter virum et uxorem), or the management of the affairs of a spendthrift by a curator (cura pro­digi).—See DEDUCTIO QUAE MORIBUS FIT, CONSTI­TUERE iura, ius constitutum, consuetudo, and the following items.

Mores boni. See BONI MORES, CONTRA BONOS MORES.

Mores civitatis (provinciae, regionis). Customs of local character observed in a limited territory (city, province, district).

Mores diuturni. Customs observed during a long period and “approved by the consent of the people who apply them, are tantamount to a statute” (legem imitantur, Inst. 1.2.9).—See mores, consuetudo.

Mores (mos) maiorum. Customs of the forefathers, tradition of ideas, usages, customs. For mores maio­rum as legal customs, see consuetudo. For mores as norms of moral and social correctness, see boni mores, contra bonos mores. An edict of the censors of 92 b.c. (Suetonius, de rhet. 1) said: “all new that is done contrary to the usage and customs of our ancestors, seems not to be right.” In later imperial constitutions and those of Justinian references to ancient customs (mos vetus, antiquus, veterum, anti­quitatis, and the like) are very frequent.—See mores.

Steinwenter, RE 16; Cuq, DS 3; Rech, M.m., Diss. Mar­burg, 1936; Schiller, Virginia L Rev 24 (1938) 271; Kaser, ZSS 59 (1939) 52; Volkmann, Das nene Bild der Antike 2 (1942) 246; Gioffredi, SDH I 13-14 (1948) 80; Volterra, RendLinc Ser. VIII, 4 (1949) 530.

ADOLF BERGER

Mores mulieris. Misconduct of a wife.—See actio de MORIBUS, RETENTIONES DOTALES.

Moris est. It is usual, customary.

Mors. Death. Certain contractual relations, as man­date (mandatum) and partnership (societas) are dissolved by the death of one of the parties. Gen­erally the death of a creditor has no influence on the further existence of the obligation; the death of the debtor extinguishes his obligation if it had to be ful­filled by him as a personal performance. The death of a legatee before the day on which he became en­titled to claim the legacy (dies cedens) makes the legacy void. Personal servitudes are extinguished with the death of the person entitled; see servitutes personarum. A person accused of a crime who died before judgment was rendered, was considered blame­less (integer) since death effaced the crime, except in cases of maiestas and repetundae. In these instances the heir was given the opportunity to de­fend the deceased, otherwise the latter’s property was seized. Penal actions for private offenses (see ac- tiones poenales) ceased to be available when the offender died.—See dies mortis, poena mortis, MORTIS CAUSA, CONSCISCERE SIBI MORTEM, COMMO- RIENTES, obligatio POST MORTEM, LIBERA MORTIS FACULTAS, MANDATUM POST MORTEM, STIPULATIO post mortem, reus (in a criminal trial).

Mors litis. See LIS MORITUR, IUDICIA LEGITIMA. Mortalitas. Used in the meaning of mors, this is of postclassical origin.

Guarneri-Citati, Indice² (1927) 57.

Mortis causa. In view of the death (e.g., dispositions made by a testator), because of the death (acquisi­tions made on the occasion of another’s death).— D. 39.6.—See donatio mortis causa, capio.

S. Cugia, Indagini etc. L’espressione mortis causa, 1910; Brini, RendBol 6 (1912-1913).

MOS. See MORES, MORES MAIORUM.

Mos iudiciorum. See more.

Motio ex ordine. (From movere.) Exclusion of a member from the municipal council (ordo decurio­num). It was decreed when the member was guilty of a crime or bad behavior. The motio could be ordered for a certain time only, after which the mem­ber regained his position (restitutio in ordinem).— C. 10.61.

Kiibler, RE 4, 2329.

Motus animi. An impulse, a motive which incites a person to do something, to conclude a transaction with another person (in unum consentin').—See consensus.

Motus iudicialis. (In imperial constitutions.) A court decision.

Motus terrae. See terrae motus.

Moventia. See res mobiles, res se moventes.

Movere. To set in motion, to initiate a judicial meas­ure, to sue (movere controversial^ litem, actionem, interdictum, querelam), to accuse (movere accusa­tionem).

Movere. (A person.) To induce, to influence (a praetor, a judge). In juristic discussions movere = to bewilder, to confuse, to induce one to change his mind. “Movet me (or moveor) quia" a jurist used to say to introduce an objection against what was said before. Phrases like “nec me movet” or “nec nos movere debet” are used to introduce the rejection of an eventual objection.

Ratti. RISG 2 (1927) 53.

Movere (de) ordine. See motio ex ordine.

Movere (de) senatu. To deprive a senator of mem­bership in the senate. Under the Republic the ex­clusion was decreed by the censors through a nota censoria, under the Empire by the emperor.

O’Brien-Moore, RE Suppl. 6, 688.763.

Movere terminum. See terminus, actio de termino moto.

Muciana cautio. See cautio muciana.

Mucius. There were three jurists by the family name of Mucius. The most prominent among them was Quintus Mucius Scaevola, a pontijex maximus who was consul in 95 b.c. and died in 82. He was an outstanding jurist; his treatise on ius civile is the most important juristic work written under the Re­public. It was the first attempt of a systematic presentation of the private law and was commented on by later jurists (Gaius, Pomponius). The Mucian system was adopted by several writers on ius civile. See definitiones.—His predecessors were Publius Mucius Scaevola, consul in 133 b.c., also a pontijex maximus and Quintus Mucius Scaevola, consul in 117 b.c., an augur and teacher of law (Cicero at­tended his lectures). As jurists they are of lesser importance in the history of Roman jurisprudence.

Kiibler and Münzer, RE 16, 437.442; Orestano, NDI 12, 1158; G. Lepointe, Q. Mucius Scaevola, Paris, 1926, Bruck, Sem 3 (1945) 16; Kreller, ZSS 66 (1948 ) 573; on P. Μ. Scaevola: Münzer 425, no. 17; on Q. Μ. Scaevola, the augur: Münzer ibid. 430, no. 21.

Mulier. Sometimes indicates any woman, whether mar­ried, or not, sometimes only a married woman ( = uxor). Syn. femina.—See tutela mulierum, senatusconsultum velleianum, LEX VOCONIA, MUNERA.

P. Pierret, Le senatusconsulte Velleien, 1947, 21.

Mulier quaestuaria. See meretrix.

Multa. A pecuniary penalty, a fine. Syn. poena num­maria, pecuniaria. In earlier times it was paid in cattle. The power of fining (multam dicere, irrogare) was a prerogative of magistrates, who used it as a measure of coercion (coercitio). Some statutes fixed the maximum amounts of fines. Multa was the normal penalty for disobeying a magisterial order. It could be inflicted by a higher magistrate on a lower one for disciplinary offenses, by the presiding magistrate in the senate on senators for unjustified absence, by censors for untrue declarations made in the census proceedings, and the like. Pecuniary pen­alties were also established in penal statutes for of­fenses committed in ordinary criminal proceedings before a magistrate or before comitia. The final decision in cases involving fines lay with the comitia (tributa) as an appellate court. A multa could not exceed half of the defendant’s property. Under the Empire multae were largely applied in the cognitio procedure and as a coercive measure. The right to impose fines (ius multae dicendae, dictionis) was granted all prefects in Rome, the provincial gov­ernors, and higher administrative officials. The fines were paid to the state. Condemnation to a multa did not involve infamy.—C. 1.54.—See lex aternia TARPEIA, LEX JULIA PAPIRIA, MULTA PRAEIUDICIALIS, and the following items.

Hellebrand, RE Suppl. 6; Lecrivain, DS 3; P. E. Huschke, Multa und Sacramentum, 1874; E. Mayer, TR 8 (1928) 35; U. Brasiello, La repressions penale, 1937, passim; L. Clerici, Economia e finanza dei Romani, 1 (1943 ) 491.

Multa. (For the violation of a grave.) A penalty settled in a testament of a Roman citizen for such a wrongdoing. The penalty was not paid to the heir but to the fisc, unless the testator made other dis­position.

Pfaff, RE 2A (s.w. Sepulcralmulten) ; Lecrivain, DS 3, 2019; J. Merkel, Sepulcralmulten, Fg Ihering 1897; G. Giorgi, Le multe sepolcrali, 1910; A. Berger, Strafklauseln in den P^apyrusurkunden, 1911, 96, 100; Arangio-Ruiz, FIR 3 (1943 ) 257.

Multa fisco debita. (In literature called multa fis- calis.) A fine to be paid to the fisc by one of the parties to a contract in the case of non-fulfillment of his obligation. The insertion of such a clause into* a written contract was adopted from provincial prac­tice.

Kiibler, itE 4A, 157; A. Berger, Die Strafklauseln in den Papyrusurkunden, 1911, 34, 93; G. Wesenberg, Vertrage zugusten Dritter, 1949, 56.

Multa testamentaria. A fine imposed by a testator on an heir or legatee for non-fulfillment of his wish. Multae dictio. The imposition of a pecuniary fine by a magistrate in the exercise of his coercive power (COERCITIO).—See MULTA.

Multare. (Syn. multam dicere, multam irrogare.) See MULTA.

Mundum. A fair copy (original) of a document.

Munera. Public services, charges, duties or offices which every individual living in the state is obliged to fulfill on behalf of the state or the city (muni­cipium) in which he was born or has his domicile (see domicilium, incola, origo). The munera also embrace taxes whether paid in money or in kind. Munera have to be distinguished from public offices (magistratus) which are a privilege, a dignity (honos) and not a burden. There was one public office which, originally a honos, later became the most burdensome munus, the decurionatus (see ordo decurionum, de- curiones). The systematization of the various munera is a creation of later times and, forced on classical texts, obscured the earlier conceptions. Thus, for instance, the term munera publica is now far from being clear, since in one instance guardian­ship (tutela) is defined as munus publicum, in an­other it is not. More evident is the distinction be­tween munera personalia, which are performed by personal work (among them is tutela, cura), and munera patrimonii which encumber property and are performed by the payment of money as a contribu­tion to the costs of public works. Some munera are of a mixed, personal and pecuniary nature (munera mixta) ; see munera possessionum. The mainte­nance of public roads, buildings, waterworks, river banks, the contribution of means of transportation for public purposes (for corn supply), were among the munera publica. Exempt from munera personalia were persons over seventy and under twenty-five, women, fathers of several children, and individuals who for personal reasons (weakness, poverty) were unable to fulfill the pertinent duties; see excusa­tiones a muneribus. Exemptions from munera patrimonii were rarely granted.—D. 50.4; C. 10.41- 56; 10.64.—See immunitas, vacatio munerum, notitia, nominatio potioris, sumptus muneris, navicularii, negotiatores, notitia, officium vi­rile, PALATINI, POETAE, QUERIMONIA, MAGISTRI, VETERANUS, VOCARI AD MUNUS.

Kubler, RE 16; Kornemann, ibid. 630; Lammert, RE 7 A, 2028; F. Oertel, Liturgie, 1917, 62.

Munera civilia. All kinds of munera except those imposed on members of the military. Ant. munera militaria.

Munera militaria. Duties connected with, or in the interest of, the military service. Ant. munera civilia.

Munera municipalia. Services to be rendered by a citizen to his municipality.—See domicilium, origo.

Munera patrimonii. See munera.

Munera personalia. See munera.

Munera possessionum. Munera which incumber im­movable property (land and buildings) without re­gard to whether or not the owner has his origo or domicilium where the immovable is situated.

Munera sordida. Mean, humble services, such as working in mills, mines, limepits, constructing build­ings, roads, bridges. Lists of such munera are given in imperial constitutions of the later Empire. The distinction as to what is a munera sordidum and what is not, was important because of exemptions from them which were granted to various categories of persons, such as those employed in imperial service, lessees of imperial property, philosophers, rhetori­cians, grammarians, and the like.—See excusationes A MUNERIBUS.

Ferrari Dalle Spade, Immunità ecclesiastische, A Ven 99 (1939-40) 122.

Munerarius. A private individual or an official who arranged public games, especially gladiatorial combats (ludi gladiatorii) or fights with wild animals.

Schneider, RE 16.

Municipalis. (Noun.) A member of the municipal council. Municipalis (adj.) connected with, or per­taining to municipia.—D. 50.1.—See decuriones, MUNERA MUNICIPALIA, LEX MUNICIPALIS TARENTINA, LEX IULIA MUNICIPALIS, MAGISTRATUS MUNICIPALES, and the following items.

Municipes. Citizens of a municipality (municipium). One became a municeps by birth (see origo), adop­tion by, or manumission by a municeps. The ety­mology of the term (munera capere, muneris parti­cipes) indicates the principal duties of a municeps towards his municipality: rendering public services and assuming charges for the welfare of the com­munity. The municipes have twofold citizenship, since they are Roman citizens and citizens of their municipium. In,their first capacity they participated in the political life of the state when present in Rome, as citizens of a municipium they took part in the local administration. By a decree of the municipal council (ordo decurionum) municipal citizenship could be granted to individuals who were not entitled to it (adlectio inter cives).—D. 50.1; C. 10.39.—See ACTOR MUNICIPUM, CURIAE MUNICIPIORUM, INCOLA, ORIGO, MUNICIPIUM.

A. N. Sherwin-White, The Roman citizenship, 1939, 36; E. Manni, Per la storia dei municipi fino alia guerra so­ciale, 1947.

Municipium. Any town in Italy except Rome ( = urbs). The term superseded gradually analogous expressions (oppidum, colonia, praefectura) and was later applied also to cities in the provinces. Syn. civitas, and, to a certain extent, res publica. Origi­nally there were municipia cum suffragio (with the right to vote in popular assemblies) and cum iure honorum (the right of their citizens to be elected as magistrates in Rome), and municipia sine suffragio (deprived of such rights). The municipia had, how­ever, the privilege of local autonomous government and jurisdiction. An attempt of a general regulation of the municipal organization was made in the so- called lex iulia municipalis. Other municipal statutes, preserved in inscriptions, are lex munici­palis TARENTINA, LEX RUBRIA DE GALLIA CISALPINA, LEX COLONIAE GENETIVAE IULIAE, LEX MALACITANA, lex salpensana. A uniform organization of the municipal administration was not fully established, and differences in the titles of the municipal magis­trates, and their functions, as well as the functions of the municipal councils, were never completely eliminated. Under the Republic a municipium could not be instituted as an heir, but this situation im­proved in the course of time. First fideicommissa in favor of a municipium were admitted, then a fidei­commissum hereditatis (see senatusconsultum apronianum), and finally under Hadrian the full capacity of municipia to be instituted as an heir or legatee was recognized.—D. 50.1.—See decuriones, ORDO DECURIONUM, DUOVIRI IURI DICUNDO, DUOVIRI AEDILES, CURIAE MUNICIPIORUM, PATRONUS MUNI­CIPII, MAGISTRATUS MUNICIPALES, TABULAE COM­MUNES.

Kornemann, RE 16; Toutain, DS 3; Sacchi, NDI 8; W. Liebenam, Städteverwaltung in der Kaiserzeit² (1900) ; L. Mitteis, Röm. Privatrecht, 1908, 376; J. Declareuil, Quel- ques problemes d'hist, des instit. municipales, 1911; Rama­cher, Ptudes Girard, 1 (1912) ; J. S. Reid, The municipali­ties of the R. Empire, 1913; F. F. Abbott-A. C. Johnson, Municipal administration in the Roman Empire, 1927; H. Rudolph, Stadt und Staat im röm. Italien, 1935 ; B. Eliache- vitch, La personnalite juridique en droit prive rom., These Paris, 1942, 57; E. Manni, Per la storia dei m. fino alia guerra sociale, 1947; Solazzi, BIDR 49-50 (1947) 393; Schönbauer, Iura 1 (1950) 124; Vittinghoff, ZSS 68 (1951) 455; idem, Römische Kolonisations- und Bürger­rechtspolitik unter Caesar und Augustus, Abh. Akademie Wiss. Mainz, 1951 (no. 14) 33.

Munire ripam. See ripa.

Muniri. To be protected, supported by law (ipso iure) or by a legal remedy (exceptiones, praescriptiones). The term is frequent in the language of the imperial chancery.

Munus. See MUNERA.

Munus. A gift presented on a special occasion (on a birthday = munus natalicium, on a wedding = munus nuptiale nuptalicium).—See donare.

Munus. A public festival (game) arranged by a pri­vate person (munus dare, edere). It was customary to bequeath a legacy to a municipality in order that public festivities be made ad honorem civitatis ( = to the honor of the city).

Munus nuptiale (nuptalicium). A wedding gift. Such a gift was customary but not obligatory. There­fore a guardian who gave his ward’s mother or sister a wedding gift could not deduct the expense from the ward’s property.

Murilegulus. A fisherman skilled in catching purple- fish.—C. 11.8.

Murus. A wall. City walls were res sanctae. In Rome persons who lived in extramural buildings were considered inhabitants of Rome.—See res divini IURIS, ROMA, URBS, PARIES.

R. I. Richmond, The city walls of the imperial Rome, 1930.

Mutare causam possessionis. See nemo sibi ipse CAUSAM POSSESSIONIS, etc.

Mutare testamentum. To change a last will. A tes­tator had full power to do so, but if the motive for which he changed his mind and which was expressed in the later testament proved false, the former testa­mentary disposition might be taken into considera­tion. If, for instance, the testator believed that the heir first instituted was dead, the latter could claim the inheritance according to an imperial constitution. Mutat. In the phrase non mutat si (quod or sim.) — it does not matter if.... The locution is used to state that a legal rule which was expressed before­hand, has to be applied to another legal situation.

Mutatio. In the postal service, see mansio.

Mutatio domini. A change in the person of the owner of a thing. It has no influence at all on the rights of a usufructuary or of a person who has a servitude over the thing.

Mutatio familiae. A change in the family status of a person. It takes place when a member of one family enters into another (marriage with conventio in manum) or when a person sui iuris comes under the paternal power of another through adrogatio, or vice versa, when a person alieni iuris becomes sui iuris and consequently the head of a new family (emanci­patio). Mutatio familiae produces capitis deminu- tio minima because the ties with the former family are torn.—See ADOPTIO, STATUS.

Mutatio iudicii. See alienatio iudicii mutandi CAUSA.

Mutatio iudicis. A replacement of a judge after litis contestatio, when, for instance, the first judge died before rendering the judgment or became somehow unable to continue his activity.—See translatio iudicii.

Steinwenter, RE Suppl. 5, 351; P. Koschaker, Translatio iudicii, 1905, 311; Wlassak, Der Judikationsbefehl, SB Wien 197, 4 (1921) 232; Duquesne, La translatio iudicii, 1910, 221.

Mutatio militiae. The transfer of a soldier to an­other branch of service as a punishment for a minor offense. Syn. in deteriorem militiam dare.

Mutatio nominis. A change of name (nomen, cogno­men). It was allowed if it was not intended for fraudulent purposes.—C. 9.45.

Mutatio rei. A change of the substance of a thing. It occurs when land became a pond or a marsh through inundation or when a forest was cleared and made into field. “Through mutatio rei an usufruct is extinguished” (D. 7.4.5.2).

P. E. Cavin, L’extinction de I'usufruit rei tnutatione, 1933. Mutatio status. See status.

Mutua pecunia. A sum of money given as a loan.— C. 10.6.—See mutuum.

Mutua substitutio. See substitutio.

Mutuae petitiones. Reciprocal claims between two persons who sue each other in separate actions. The claims could be united in one trial in order to be examined and decided by the same judge. Syn. mutuae actiones.

De Francisci, Synallagma 2 (1916) 539; Levy, ZSS 52 (1932) 517; S. Solazzi, Compensazionc² (1950) 107.

Mutuari (mutuare). To borrow, to receive a loan.— See MUTUUM.

Mutus. A mute person. If he is able to understand the meaning of the transaction he wants to conclude, he can express his will by signs (nutu).—D. 37.3.— See INTELLECTUS, NUTUS, CURATOR MUTI, TUTOR.

Mutuum. A loan. The creditor = qui mutuam pe- cuniam (mutuo) dat, credit; the debtor = qui mutuum (mutuo) accipit. A loan is concluded re, i.e., when its object (a sum of money, an amount of fungibles) was handed over to the debtor. The latter is obligated to return in due time the sum of money or the same quantity of fungibles of the same quality as was lent to him. He can be sued for return through the actio certae creditae pecuniae, when money was involved, of through condictio triticaria if fungibles were bor­rowed. The borrower becomes owner of the things given to him for consumption. Interest (usurae) must be promised by a special agreement (normally a stipulatio). The loan itself could also be vested in the form of a stipulatio if the debtor promised the payment through stipulatio (a verbal contract).— See RES QUAE PONDERE, etc., FENUS, USURAE.

Kaser, RE Suppl. 6; Cuq, DS 3; G. Segre, St Simoncelli 1917, 331; C. Longo, 11 mutuo (Corso) 1933; P. E. Viard, Mutui datio, Paris, 1939; Robbe, SDH I 7 (1941) 35; P. Voci, Il sistema rom. dei contrattr (1950) 123; Seidl, Fschr Schulz 1 (1951) 373.

Mutuus dissensus. See consensus contrarius.