VINDICA´TIO
VINDICA´TIO Actions were divided by the Roman
jurists into two classes: real (
in rem) and
personal (
in personam). Actiones in rem or
actions about the title to ownership (
donminium) and
other real rights were called
vindicationes;
actiones in personam or actions for the enforcement of obligations arising
from contract and delict were called
condictiones (Gaius, 4.2-5; Ulpian,
Dig.
44,
7,
25, pr.).
Vindicatio in this wide sense includes not only strictly proprietary
actions, but also actions respecting family rights and rights of status; as,
e.g., an action asserting that a man is free
(cf. the expressions
in
[p. 2.958]libertatem, in servitutem,
iningenuitatem vindicatio). The term
vindicatio is, however, generally used in legal writings in a
narrower sense, signifying simply an actio in rem by which dominium of a
corporeal thing is claimed (
rei vindicatio).
Condictio also came to have a much more
restricted meaning. [
ACTIO] The
distinction between
vindicationes and
condictiones is an essential distinction, which is
not affected by changes in the form of procedure, such as that of the
substitution of the formulae for legis actiones. The forms of the legis
actio procedure bring most clearly to light the characteristics of a
vindicatio, showing how distinctly the early Romans had conceived the idea
of individual ownership of property. They also explain the origin of the
word
vindicatio. The five modes of proceeding
lege (Gaius, 4.12) were
sacramento, per judicis postulationem, per condictionem, per manus
injectionem, per pignoris capionem (P., J. P., P. Cm, Mas Ino, Per
Pign. Cm). A man might proceed
sacramento either in the case of an actio in personam or in
rem, this action being a general one applicable in all cases where there was
no other prescribed by law (Gaius, 4.13). It was the only legis actio by
which an actio in rem could be brought. In this action it was necessary that
each party should make himself liable to a penalty (
summa
sacramenti) in the event of his failing in the cause. The
condition of the penalty was in fact the existence or non-existence of the
right claimed by the plaintiff, whatever that right might be. Thus the
process assumed the form of a suit to determine which of the parties had
forfeited the penalty, owing to the assertion of right, on which he had
staked it, proving unfounded ( “utrius sacramentum justum, utrius
injustum sit,”
Cic. pro Caec. 33, 97;
pro Domo, 29, 78), though the real object
of the proceeding was to determine the dispute between the litigants. The
Praetor took security (
praedes) from both
parties for the amount of the sacramentum; which the party who failed paid
as a penalty (
poenae nomine) to the public
treasury (
AERARIUM]. The sums
of money were originally deposited
in sacro;
what was forfeited was devoted to sacred purposes, whence the term
sacramentum, the successful party receiving his
money back (Varro,
L. L. 5.36, 180; 4 “utrique ad
pontem deponebant,” Fest. s. v.
sacramentum: cf. Voigt,
Zwölf Tafeln,
2.6, n. 3, who compares with the sacramentum the
πρυτανεῖα of Athenian procedure; Meier and
Schömann,
Att. Pr. 603). The
poena of the sacramentum was
quingenaria; that is, quingenti (500) asses, in cases when the
property in dispute was of the value of 1,000 asses and upwards; and in
cases of smaller value it was 50 asses. This was a provision of the Twelve
Tables; but if a man's freedom (
libertas) was
at issue, the poena was never more than 50 asses. The penalty appears to
have been originally a fixed number of cattle (Voigt,
op.
cit. 2.61). Gaius (4.16) describes in some detail the form of the
actio sacramenti when it was a proceeding for vindicating ownership
(
rei vindicatio). The forms of the action
must have been in some respects modified when its object was a servitude or
an inheritance.
In the, case of an actio sacramenti in personam, there would be no assertion
of quiritary right over a specific object, but simply a claim by the
plaintiff against the defendant on account of an obligatio between them. If
it was an actio in rem--that is, a rei vindicatio--movable things and moving
things (
mobilia et moventia) that could be
brought or led into court were claimed before the Praetor (
in jure vindicabantur) thus (Gaius, 4.16): he who
claimed a thing as his property (
qui
vindicabat), holding a rod in his hand, and laying hold of the
thing, it might for instance be a slave, said, “This man I claim as
mine by due acquisition by the law of the quirites” ( “Hunc
ego hominum ex jure quiritium meum esse aio secundum suam
causam:” cf. Plaut.
Rud. 5.3, 86;
Cic. pro Mur. 12, 26. For a
different interpretation of the words
secundum suam
causam, see Voigt,
Zwölf Tafeln, 2.74,
n. 11). “See, as I said, I have put my spear on him” (
“sicut dixi, ecce tibi, vindictam imposui” ); and, saying
this, he placed his rod on the thing. The other party then said the same
words and performed the same acts. The laying hold of the thing by the
vindicant seems to be a symbolical act of self-help, by which possession of
the object is taken, while the putting the wand on the thing, which Gaius
tells us was a substitute for a spear, is an act of pretended violence (
“vis civilis et festucaria,”
Gel. 20.10,
6),
signifying the intention of the claimant to maintain himself in possession
by force against any attack. Accordingly the word
vindicare (
vindicere, vim dicere）
perhaps originally meant to declare force; that is, to assert one's right to
a thing by force. (O. Müller,
Etym.
Erörter.; Bethmann-Hollweg,
Civ. Proc. i.
§ 40, n. 23; Voigt, 1.53, n. 25; 2.74.) Cf. Cicero's definition of
vindicatio (
de Inv. 2.53, 161). This claiming of a thing as
property by laying the hand on it, and by using solemn words, together with
the touching the thing with the spear or wand, was, when it had been
completed by both parties to the action, “in jure manum
conserere,” --that is, the parties thus contended before the
magistrate for the thing, each asserting by words and acts that he was owner
of it ( “manu asserere liberali causa” is to take hold in a
vindication claiming the liberty of a slave, Plaut.
Poen.
4.2, 84; 5.2, 4, 42, &c.): this phrase is as old as the Twelve
Tables (cf.
Gel. 20.10,
9, “in jure apud Praetorem manum consererent” ). (For
the different modern interpretations of the words
manum
conserere, see Bethmann-Hollweg,
Civ. Proc.
1.40.) It is to be noticed that in the vindication no distinction is made
between plaintiff and defendant, each party claiming ownership in exactly
the same form.
The parties having vindicated the object in turn, the Praetor then said:
“Mittite ambo (rem) hominem” ( “Let the (thing) man
alone” )--a command which the claimants obeyed, thus surrendering
possession of the property to the magistrate. It would seem that the
representative of the state here intervenes in the quarrel in order to
prevent the parties from committing a breach of the peace by taking the law
into their own hands. Then he who had made the first vindicatio thus
addressed his opponent, “Postulo anne dicas qua ex causa
vindicaveris” ( “I demand a statement of the ground of your
claim:” cf.
Cic. pro Mur.
12, 26). The opponent replied, “Jus feci sicut vindictam
[p. 2.959]imposui” ( “I did what I was
entitled to do, when I put my spear on him” ), thereby refusing
to give the ground of his claim (cf. Voigt,
op.
cit.). Then he who had made the first vindicatio said, “Quando tu
injuria vindicavisti,
D aeris sacramento te
provoco” ( “Since you claim him without any right, I challenge
you to stake 500 (or 50 asses, as the case might be), upon the issue of
a trial” ), to which the other answered by a corresponding
challenge. A day was now fixed on which the parties were to appear before
the decemvirs or centumvirs for the trial of the issue, or else they were
ordered to appear again before the Praetor on the thirtieth day
ad judicem capiendum. [
JUDEX] The Praetor then awarded to one of the
claimants possession of the thing pending the suit, and compelled him to
give security to his opponent for the thing in dispute and the mesne
profits, or, as it was technically expressed, “jubebat praedes
adversario dare litis et vindiciarum” (Gaius, 4.16: cf.
Liv. 3.47,
56,
58;
Gel. 20.10,
9). The expression
its et
vindiciae seems to be redundant, the word
vindiciae (the object of the
vis) by itself meaning the thing or things which are vindicated
(Festus, p. 376 a; cf. Voigt,
op. cit. 2.74, nn. 30,
44).
The Praetor awarded interim possession to one of the claimants (
“secundum alterum eorum vindicias dicebat” ); no doubt he
would as a rule give it to the party who was in possession at the time when
the vindication was brought, unless he had acquired possession from the
other claimant by violence, or furtively, or by his permission (
vi, clam, precario). The party to whom possession
was given on this ground would occupy the advantageous position of defendant
in the trial before the judex, the burden of proof being on the other side.
But in an action between a civis and the Roman people the vindiciae always
belonged to the latter (Festus, s. v.
vindiciae); and in the case of suits respecting a man's freedom,
the person whose status was in question was allowed his liberty till the
matter was determined, whatever his previous state may have been (
vindiciae secundum libertatem). If the property
which was the subject of vindicatio was land, the Praetor originally went
with the parties to the place in question, so that the vindication might
there be made. It was possibly the practice for one of the claimants to go
through the form of forcibly ejecting the other from the land, which was
called the
vis civilis, or
vis ex conventu--an act of pretended violence, which would
perhaps correspond with the
festucaria vis in the
case of movables. [DEDUCTIO; FESTUCA.] This
pretence of an ejectment (
cf. English procedure in
the old action of ejectment, Keller,
Civ. Pr. § 28,
n. 328) is described by Cicero as a part of the proceedings in an actio in
rem by sponsio, and is known as “deductio quae moribus fit,”
but it seems likely that it originated in the legis actio in rem.
The practice of the Praetor going with the parties to the land in question,
which was a means by which the subject of dispute could be exactly defined,
was in course of time modified as the Roman state increased in size. Thus it
became the practice at the commencement of the action before the Praetor in
the forum for each party to challenge his opponent to follow him to the land
which he had formally claimed and specifically described in court, the
object being “ad conserendam manum in rem de qua agebatur;” the
parties then at the command of the Praetor went together to the land
accompanied by witnesses (
Cic. pro
Mur. 12, “suis utrisque superstitibus praesentibus
istam viam dico, inite viam:” cf. Festus, s. v.
superstites); and having come to an understanding as
to the subject of their dispute and gone through the requisite forms, which
would include the feigned ejectment--a supposed conflict between the parties
(
manure conserere)--they returned to court
bringing back a clod of earth from the land, which was regarded as the whole
ager in the subsequent proceedings.
This change in the form of procedure, which change was accomplished
“contra duodecim tabulas tacito consensu,” led to the
phrase “ex jure manum conserere.” By the time of Cicero the
proceeding had been further simplified. Before the action commenced the
parties went to the land and brought back a sod of earth with them; the
summons in court to proceed to the land was obeyed by the parties going
round the sod of earth, which had been placed at some distance from the
tribunal, and returning with it into court. (Cic.
l.c.;
Gel. 20.10: “ex jure manum consertum verba
sunt ex antiquis actionibus, quae, cum lege agitur et vindiciae
contenduntur, dici nunc quique apud Praetorem solent.” )
When the formulae became the ordinary mode of procedure instead of the legis
actiones [
ACTIO], actiones in rem
were framed after the new system, although it continued to be possible to
bring a legis actio in rem so that it might go to the centumviral court for
trial (Gaius, 4.31, “Tantum ex duabus causis permissum est lege agere;
damni infecti et si centumvirale judicium sit” ). The conveyance
called
in jure cessio is derived from the actio
sacramenti in rem. [CESSIO IN JURE.]
There were two modes of maintaining an actio in rem under the formulary
system: 1,
per sponsionem, which was the
earlier, and 2,
per formulam petitoriam (Gaius,
4.91).
The earliest formulae appear to have been derived from the legis actio
per condictionem, which was perhaps based on a sponsio, and so to have
been actiones in personam. There was no formula in rem concepta
(Bethmann-Hollweg,
Civ. Proc. 2.89). The sponsio,
however, which was a wager entered into in court by question and answer,
originally perhaps a matter of private agreement between the parties,
was used as a means of framing a formula for trying an actio in rem,
which was analogous in some respects to the use of the sacramentum in
the legis actio procedure. The right in rem, which was in question, was
made the subject of the sponsio, but the wager itself in this case was
pure matter of form for the purpose of framing a formula on it (
sponsio praejudicialis), the amount of it
(
summa sponsionis) not being really
paid by the unsuccessful to the successful party, as was the case when
the sponsio was
poenalis (Gaius, 4.94). The
defendant was challenged by the plaintiff to a sponsio in such terms as
these: “Si homo de quo agitur ex jure quiritium meus est,
sestertios xxv. nummos dare spondes?” (Cf. Cic.
pro
[p. 2.960]Quint. 8, 27.) [The use of the
word
si or
ni
in the sponsio would depend on the fact which was affirmed or rather on
the mode of affirmation. Cicero (
pro
Caecin. 23, 65) alludes to the use of these words (
sive, nive). Brissonius (
de
Formulis, 5.7, p. 348) has collected instances of them.]
The intentio in this formula [
ACTIO] was that if the slave belonged to the plaintiff the sum of
money contained in the sponsio ought to be paid by the defendant to the
plaintiff (Gaius, 4.93, “deinde (i.e. after the sponsio had been
entered into) formulam edimus qua intendimus sponsionis summam nobis
dari oportere” ). If the plaintiff proved the slave to be his
property, he was entitled to a judgment, by which he only obtained a
judicial declaration of his right; the
summa
sponsionis, which was the supposed object of the action,
not being in fact paid to him. Thus, though the action had the formal
appearance of an actio in personam, it was in fact simply an actio in
rem. We learn from a passage of Cicero (
pro
Caecin. 7, 20) that when land was the subject of a sponsio, a
form of fictitious ejectment (
deductio quae
moribus) was gone through, which perhaps was derived from
earlier procedure. The defendant would be allowed by the Praetor to
retain interim possession of the property in dispute, unless he had
acquired it from the plaintiff
vi, clam, or
precario; but he was obliged to give
security to the plaintiff for restitution of the thing, together with
mesne profits, if judgment was given for the plaintiff. This security
was called “satisdatio pro praede litis et vindiciarum,”
corresponding to the “praedes litis et vindiciarum” of the
legis actio in rem. The judgment in favour of the plaintiff in the actio
on the sponsio only declared the right of the plaintiff to the property
in question; it did not entitle him to execution, in case the defendant
refused to surrender the thing with the profits he had made by it; the
summa sponsionis having been the formal
object of the action, and not damages, no liquidated sum had been fixed
for the purpose of execution. Hence a supplementary action for the
purpose of assessing damages was necessary, as had also been the case
after a legis actio sacramenti in rem; this was called
arbitrium litis aestimandae.
The sponsio, owing to the indirect way in which its formula submitted the
right in question to the judex, was not a convenient mode of prosecuting
an actio in rem, having the defect of obliging the plaintiff, if he was
successful, to maintain a further action in order to obtain execution
against the defendant, and not allowing the use of equitable pleas
(
exceptiones), since the judex had
simply to decide whether or not the right claimed legally belonged to
the plaintiff (Keller,
Civil-Process, § 27).
Hence a new kind of formula was invented, called the
formula petitoria, by which these inconveniences were avoided.
The formula appears to be well established in the time of Cicero (
Cic. Ver. 2.12). The following is given by
Keller (
op. cit. § 28) as an example of
it:--“Titius Judex esto. Si paret, illam rem (e.g. hominem
Stichum, fundum Cornelianum, L. Annii hereditatem) qua de agitur ex
jure Quiritium Auli Agerii esse, neque eam Numerius Negidius Aulo
Agerio arbitratu tuo restituet, quanti ea res erit, Numerium
Negidium Aulo Agerio condemnato, si non paret, absolvito”
(cf. Cic. in
Verr. 2.12, 31; Gaius, 4.92). Here, as
Keller has observed, the object is at once attained, which in the actio
in rem per sponsionem required a number of acts, viz.: 1, the entering
into the sponsio before the Praetor; 2, the publication of the formula
ex sponsione; 3, the arbitrium litis
aestimandae, in case the plaintiff succeeded. The intentio of the
formula is a direct claim of ownership on the part of the plaintiff, the
defendant not being named in it as in an actio in personam (Gaius,
4.87). The words from
neque to
restituet make the formula a formula arbitraria,
of which class of formulae it was the typical instance; the condemnatio
from
quanti to absolvito authorises the judex
either to condemn the defendant in damages, which the judex is to assess
( “quanti ea res est,” the thing, “cum omni
causa,” i. e. with fructus and other accretions [
ACTIO]), or to absolve him.
Thus it is the duty of the judex in the first place to pronounce
(
pronuntiatio) whether the thing
belongs to the plaintiff, or whether restitution is due to him from the
defendant. If the finding is for the plaintiff, the defendant has the
opportunity of avoiding condemnation by making restitution; if he does
not do so, damages are assessed against him. The plaintiff could only
claim pecuniary damages under the formulary system, not specific
restitution; but the defendant, after there had been a pronuntiatio
against him, would often make specific restitution, so far as he was
able, in order to avoid the liability to condemnation in heavy damages.
The formula by combining the judicium and arbitrium dispenses with the
necessity of an arbitrium litis aestimandae, and allows all equitable
pleas to be taken into account. In this form of proceeding there was the
stipulatio called
judicatum solvi, by which
the defendant, the possessor of the thing claimed, engaged before the
Praetor to obey the decree of the judex (Gaius, 4.91). The
vindicatio rei was brought by a person who
claimed to be owner of property (
petitor）
against the person who was in possession of it, or who had fraudulently
made away with the possession of it (
possessor). It was incumbent on the owner to prove his
ownership, and such proof might be a matter of the greatest difficulty
where the title of the claimant was a derivative one, since he would
have to prove the right of his predecessors in title; the shortness of
the period of usucapion, however, greatly facilitated the proof of
ownership. The proof of ownership on the part of the plaintiff did not
as a matter of course entitle him to judgment in his favour, since the
defendant might have a right to keep the thing from the owner, as if he
were pledgee or usufructuary, or when he had a lien over the thing for
his outlay on it. [
DOMINIUM] Not only a vindicatio rei was maintained by formula
petitoria. but also an action respecting a servitude or inheritance. The
formula was adapted by means of a fiction to praetorian actiones in rem,
of which the actio Publiciana is the chief example (Gaius, 4.36). The
formula petitoria ceased with the system of procedure to which it
belonged, but the principles on which it was based were still adhered
to. (Kritz,
Darstellung, Bk. i.; Wetzell,
Der rom.
Vind.; Klagen,
Der Lehre vom Eigenthum;
Brintz,
Pandekten, § § 167, 168;
Windscheid,
Pand. § 193;
DOMINIUM）
[
E.A.W]
