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p1198 Vindicatio

Article by George Long, M.A., Fellow of Trinity College
on pp1198‑1200 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

VINDICATIO. Actiones In Rem were called Vindicationes: Actiones in Personam, "quibus dari fieri oportere intendimus," were called Condictiones (Gaius, IV.5). Vindicationes therefore were actions about the title to res Corporales, and to Jura in re (Gaius, IV.3). The distinction between Vindicationes and Condictiones was an essential distinction which was not affected by the change in the form of procedure from the Legis Actiones to that of the Formulae. The Legis Actiones fell into disuse (Gaius, IV.31) except in the case of Damnum Infectum and a Judicium Centumvirale, and from this time both Vindicationes and Condictiones were prosecuted by the Formulae. [Actio.] The peculiar process of the Vindicatio belonged to the period when the Legis Actiones were in force.

The five modes of proceeding Lege (Gaius, IV.12), were Sacramento; Per judicis postulationem; Per condictionem; Per manus injectionem; Per pignoris capionem. [Per Judicis Postulationem; Per Condictionem; Manus Injectio; Per Pignoris Capionem.]

A man might proceed Sacramento either in the case of an Actio in personam or an Actio in rem. The part of the process which contained the sacramento contendere, or the challenge to the deposit of a sum of money originally, and afterwards to the engagement to pay a penalty, was applicable both to an action in personam and an action in rem. The condition of the penalty was in fact the existence or non-existence of the right claimed by the plaintiff, whatever the right might be; and the process thus assumed the form of a suit for the penalty. It was the Sacramentum which gave to this form of action its peculiar character. When the parties were in judicio, they briefly stated their cases severally, which was called causae conjectio. If it was an Actio in rem, that is a Vindicatio, moveable things and moving things (mobilia et moventia) which could be brought before the Praetor (in jus), were claimed before the Praetor (in jure vindicabantur) thus: he who claimed a thing as his property (qui vindicabat), held a rod in his hand, and laying hold of the thing, it might be a slave or other thing, he said: "Hunc ego hominem ex jure Quiritum Meum esse aio secundum causam sicut dixi. Ecce tibi Vindicatum imposui;" and saying this he placed the rod on the thing. The other claimant (adversarius) did and said the same. This claiming of a thing as property by laying the hand upon it, was "in jure manum conserere," a phrase as old as the XII Tables (Gell. XX.10). The Praetor then said: "Mittite ambo hominem," and the claimants obeyed. Then he who had made the first vindicatio thus addressed his opponent: "Postulo anne dicas qua ex causa vindicaveris." The opponent replied: "Jus peregi sicut Vindictam imposui." Then he who had made the first vindicatio proceeded to that part of the process called the Sacramentum, which was in the form of a wager as to the Right; he said: "Quando tu injuria vindicavisti D Aeris sacramento te provoco." The opponent replied by giving the Similiter: "Similiter ego te."

The process of the Sacramentum, as already observed, was applicable to an actio in personam; but as that was founded on an obligatio, there was of course no specific object to claim. In the case of a Vindicatio the Praetor declared the Vindicatio in favour of one of the parties, that is, in the meantime he established one of the parties as Possessor, 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."

The Praetor took security from both for the amount of the Sacramentum; for the party who failed paid the amount of the Sacramentum as a penalty (poenae nomine) which penalty belonged to the state (in publicum cedebat). The sums of money were originally deposited in sacro: the successful party took his money back, and the deposit of the unsuccessful party was paid into the aerarium (Varro, de L. L. 180, Müller; Festus, s.v. Sacramentum).

The Poena of the Sacramentum was quingenaria, that is, quingenti asses, in cases when the property in dispute was of the value of a thousand asses and p1199upwards; and in cases of smaller value it was fifty asses. This was a provision of the XII Tables; but if a man's freedom (libertas) was in issue, the poena was only fifty asses.

If the property claimed was a piece of land, the claimants appeared In jure and challenged each other to go on the land in the presence of witnesses (superstites, Festus, s.v.; Cic. pro Murena, 12), where each made his claim. In the time of Twelve Tables says Gellius (XX.10) the Magistratus who presided in the court accompanied the parties to the land in order to perfect the process in jure; but this mode of procedure, which might do in very early times and within a small territory, must have become inconvenient. Accordingly it became the practice for one of the claimants to go through the form of ejecting the other from the land, which was called the Vis Civilis (Compare Gellius, XX.10; Cic. pro Caecina, 1, 7, 32, pro Tullio, 20). In course of time there is became the practice to bring into court a clod of earth, or a bit of a column, as a sign of the thing; and even in the case of moveable objects, a part was often brought into court to represent the whole; and the Vindicatio was made as if the whole thing was there. It seems that the process might also be begun by the parties performing the ceremony of the Deductio on the ground before they came In jus, where however they performed the fiction of going to the premises and returning. The change in the form of procedure, which change was accomplished "contra Duodecim Tabulas, tacito consensu, led to the phrase "ex jure manum conserere" (Gell. XX.10), which is explained thus: one party called the other out of court (ex jure) "ad conserendam manum in rem de qua agebatur": the parties, he says, then went together to the land in dispute, and brought a clod of earth from it, "in jus in urbem ad Praetorem;" and the clod of earth was viewed as the whole "ager."

When the Legis Actiones fell into disuse, the process of the Vindicatio was altered and became that of the Sponsio. The term Sponsio is best explained by giving the substance of a passage in Gaius (IV.91, &c.). In the case of an actio in rem, a man might proceed either Per formulam petitoriam, in which the Intentio of the plaintiff was, that a certain thing was his property; or he might proceed Per sponsionem which did not contain such an Intentio. The defendant was challenged to a Sponsio in such terms as these: "Si homo quo de agitur ex jure Quiritium meus est sestertios XXV Nummos dare spondes?" The Intentio in this formula was that if the slave belonged to the plaintiff, the sum of money contained in the Sponsio ought to be paid to the plaintiff (sponsionis summam actori dari debere). The Sponsio evidently took its name from the verb Spondeo. If the plaintiff proved the slave to be his property, he was intitled to a judgment. Yet the sum of money was not paid, though it was the object of the Intentio, for, says Gaius, "it is not poenalis, but praejudicialis, and the sponsio is introduced merely as a means of trying the right to the property, and this explains why the defendant has no restipulatio." The sponsio was said to be "pro praede litis et vindiciarum," because it took the place of the praedium, which when the Legis actiones were in use, was given "pro lite et vindiciis," that is, "pro re et fructibus" by the possessor to the plaintiff. [Praejudicium; Praes.]

This Sponsio Praejudicialis was merely a technical mode of converting an actio in rem into an actio in personam, and we must suppose that there was some good reason for the practice. It might be conjectured that it introduced in order to obviate the trouble and difficulties attendant on the old process of the Vindicatio.

From the expression of Gaius, it appears that there was also a Sponsio Poenalis, that is both the defendant made a sponsio and the plaintiff made a restipulatio. Thus in the case of "certa pecunia credita," the defendant's sponsio was made at the risk of losing the sum, if he could not sustain his denial of the plaintiff's claim; and the plaintiff's restipulatio was made at the like risk if he could not support his claim. The poena of the Sponsio and restipulatio belonged to the successful party (Gaius, IV.13). There was also a Poenalis sponsio in the case of Interdicts (Gaius, IV.141, 165, &c.), and Pecunia Constituta. In the case of Certa Pecunia the sponsio was to the amount of one-third of the sum demanded, which was called legitima pars (Cic. pro Rosc. Com. 4, 5). In the case of Constituta Pecunia the sponsio was to the amount of one-half (Gaius, IV.171). These stipulationes were fixed by law; in other cases they were fixed by the Edict.

These sponsiones were introduced probably partly with a view to check litigation, and partly with a view to give compensation to the party who ultimately obtained a verdict; for otherwise there do not appear in the Roman law to be any direct provisions as to the costs of suits. Thus Gaius (IV.174) enumerates four modes in which the Actoria calumnia is checked; the Calumniae judicium, Contrarium judicium, Jusjurandum, and the Restipulatio. The Restipulatio, he says, "is allowed in certain cases; and as in the Contrarium judicium the plaintiff has in all cases judgment against him, if he cannot sustain his case, and it matters not whether or not he knows that his claim was not good, so in all cases the plaintiff (that is if he cannot sustain his case) is condemned in the penalty of the restipulatio."

As to the form of the Sponsio the passage of Gaius already referred to is an example; and there is another in the oration of Cicero, pro P. Quintio (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 and the party affirming. Cicero (pro Caecin. 23) alludes to the use of these words (sive, nive). Brissonius (de Formulis, &c. V.7 p348) has collected instances of them.

The other mode of procedure in the case of Vindicatio, that was in use after the Legis Actiones fell into disuse was, Per Formulam Petitoriam, in which the plaintiff (actor) claimed the thing as his property (intendit rem suam esse). In this form of proceeding there was the Stipulatio called Judicatum solvi, by which the defendant engaged to obey the decree of the Judex (Gaius, IV.91). This formula was adapted also to the cases of Praetorian ownership and the Actio Publiciana (Gaius, IV.34, 36). In cases which were brought before the Centumviri, it was the practice, at least in the Imperial period, to come first before the Praetor Urbanus or Peregrinus in order that the matter might be put in the old form of the Sacramentum (Gaius, IV.31, 95; Gell. XX.10).

An hereditas was sued for like any other thing p1200either by the Sacramentum, so long as it was in use, or the Sponsio, or the Petitoria Formula (Gaius, IV.11, 31; Walter, Geschichte des Röm. Rechts; Puchta, Inst. II § 161).

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