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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).

1. Per sponsionen.

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.

2. Per formulam petitoriam.

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


hide References (8 total)
  • Cross-references from this page (8):
    • Cicero, For Lucius Murena, 12
    • Cicero, For Aulus Caecina, 33
    • Livy, The History of Rome, Book 3, 47
    • Livy, The History of Rome, Book 3, 56
    • Livy, The History of Rome, Book 3, 58
    • Gellius, Noctes Atticae, 20.10
    • Gellius, Noctes Atticae, 20.6
    • Gellius, Noctes Atticae, 20.9
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