Glossary of Legal Terms

selected by Janet Brooks from Berger, A. 1953. Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society. Transactions of the American Philosophical Society, New Series, Volume 43, Part 2. Full text at the Internet Archive.

Accusatio. (From accusare.) Except for a few instances of a civil nature this means accusation in criminal affairs in the Roman criminal procedure of the last century of the Republic. “Prosecution began at the initiative of a citizen (not a magistrate) who assumed the role of the accuser by denouncing the wrongdoer and filing a charge against him with the chairman of the competent criminal court (quaestio).” This first step of the accuser was called nomen deferre (nominis delatio), he being the delator (denouncer). If the magistrate accepted the accusation (nomen recipere), normally presented by writing (libellus accusatorius), he ordered its registration (inscriptio) in the official record of persons to face a criminal trial. The accusatio could be supported by the signatures (subscriptio) of additional accusers. In order to prevent malicious accusations, an oath (iuramentum calumniae) was imposed on the accuser. (340)

Advocatus. The term is applied to persons who exercise the profession of an advocate (advocatio) , i.e., a legal adviser, while iurisperitus is a legal scholar, expert in law, a man learned in law. The advocatus assisted his clients (clientes) with juristic advice before and during the trial, in both civil and criminal matters, and pleaded for them in court. The latter activity was originally reserved to persons specially trained in rhetoric (oratores). Under the Republic the advocatus was not paid for his services; under the Principate compensation was gradually permitted. (352)

Bona. The whole of a person’s property. The term has a specific application in the praetorian law (in bonis esse, missio in bona), and in the law of succession, both civil and praetorian. See bonorum possessio. Bona as a whole embraces not only corporeal things but also rights and debts. In certain loculations, however, it is employed in the sense of corporeal things only. Syn. (often) patrimonium. (374)

Calumnia. Trickery, deception in legal transactions or in the interpretation of legal norms or of manifestations of will. In a technical sense calumnia refers to both civil and criminal matters. In the first case it is a malicious vexation (vexare) of a person with suits (litibus) “brought merely in order to trouble the adversary and with the hope for success through a mistake or injustice of the judge” (Gai Inst. 4.178). In civil proceedings the defendant too may commit calumnia if he denies the plaintiff’s claim merely for chicanery. The principal remedies to prevent calumnia in civil trials is iusiurandum (iuramentum) calumniae applicable to either party, and (in classical law) iudicium calumniae only in favor of a defendant maliciously sued. In the field of the private law there is still another form of calumnia if a person receives money in order to annoy another with vexatious trials (civil, criminal or fiscal). The person to whose detriment such an illicit arrangement was made, was granted against the man who received the money a praetorian action, proposed in the Edict, for four times the sum which had been given him as the price of his complicity.—In criminal law calumnia (crimen calumniae) was committed when a person accused another in full knowledge that the latter is innocent. Such a falsa accusatio made in bad faith was punished by branding the calumniator with the letter K (abbreviation for kalumniator) on the forehead, and by the imposition of various disabilities: infamy, inability to be in the future a prosecutor in a criminal trial, other procedural disadvantages, and exclusion from competition for a public office. The crimen calumniae of the falsus accusator had to be proved in a special proceeding; the mere acquittal of the person he had accused was not sufficient to stigmatize him as a calumniator. A lex Remmia (about 80 b.c.) set the rule that a calumniator was to be tried before the same tribunal (quaestio) before which he had prosecuted the innocent accused. — D. 3.6; C. 9.46. (378-379)

Causa. One of the vaguest terms of the Roman juristic language. Starting from the basic meaning of cause, reason, inducement, the jurists use it in very different senses. Thus, causa indicates a legal situation in such phrases as in eadem causa est, or alia causa est. Causa is the reason for which some judicial measures (actions, exceptions, interdicts) were introduced by the praetor. Causa is also the purpose for which an action is brought in a specific controversy, or a legal disposition is made (causa dotis, causa legati). Not infrequently causa refers to the trial itself or the matter from which it originated; see causae cognitio. Sometimes causa is roughly identical with animus when it alludes to the subjective motive, intention, or purpose of a person. In this sense its use is simply unlimited because it may be applied to elements recognized by the law as well as to inducements which are immoral and condemned by law (causa turpis, iniusta, illicita, and similar). Causa receives a specific juridical content when it implies the legal title or foundation on which a person bases its claim against another or a legal situation is created, as, e.g., in phrases like causa venditionis, donationis, hereditaria, legati, fideicommissi, iudicati, etc. In certain legal institutions causa, particularly when qualified as iusta causa, acquires a specific coloration, as in traditio, usucapio, manumissio, etc. In the domain of the law of contracts, i.e., in bilateral transactions, the Romans did not elaborate a special doctrine of causa. There are mentions of causa with regard to some specific contracts, but a general theory can hardly be drawn out. Finally, with reference to certain things (land, slaves) when their restitution cum sua causa is involved, causa means the accessories, proceeds, fruits, or the child born of a slave.  (382-383)

Causam perorare (orare). To argue the case before the judge. (383)

Causas dicere. To plead the causes of others before the courts as an advocate. Hence causidicus = the advocate. (383)

Competens. When applied to procedural elements as actio, index, poena, tribunal, etc., indicates the action, the judge, etc., pertinent (competent) to the specific case. Justinian's compilers often substituted the term competens in place of the classical expression which in Justinian's time was obsolete because of the reformed organization of the procedure and administration of justice. Guarneri-Citati, Indice 2 (1927) 19; Berger, KrVj 1914, 142. (401)

Componere (compositio). To draft the text of a legal instrument (a testament, a codicil, a stipulatio, a compromise, or a procedural formula). (401)

Coniunctim. Jointly. Heirs instituted coniunctim became co-heirs with equal shares. A condition imposed coniunctim upon several persons is binding on all. Ant. disiunctim, separatum. (407)

Coniunctio. An institution of several heirs for the same estate or of several legatees for the same thing in common. The estate (or legacy) became common property of the coheredes (or collegatarii). The heirs or legatees thus awarded are termed coniuncti. — See coniunctim. (407)

Constitutio. (In the meaning of a legal rule) outside the domain of imperial legislative activity (see constitutiones principum). Very rarely used in texts that are not free from the suspicion of postclassical origin. In one postclassical source appears a constitutio Rutiliana which established a specific rule regarding a defective purchase of a res mancipi from a woman without the approval of her guardian (Fr. Vat. 1). Its author was probably the Republican jurist Publius Rutilius Rufus. (409)

Convicium. A verbal offense against a person’s honor. It is considered an iniuria when committed by loud shouting in public (vociferatio). (416)

Crimen. May denote the accusation of a crime and the following trial as well as the crime itself, if it is punishable by a public penalty after condemnation of the culprit in a trial conducted under a formal accusation in the forms prescribed for criminal matters. Ant. is delictum which, in classical terminology, applied to private offenses to be prosecuted by the aggrieved person himself and punished by a penalty to be paid to the latter. In postclassical language the two terms are used interchangeably since public prosecution absorbed the wrongdoings previously classified as delicta. The Roman criminal legislation did not produce a comprehensive penal code. Under the Republic, a series of statutes dealt with crimes and their punishment; a further development was brought by some decrees of the senate and in a large measure by imperial constitutions. Through an extensive interpretation the jurists contributed to the application of older statutes to crimes not comprised by the original statute. This happened, for instance, with the Lex Cornelia de falsis and the Lex Cornelia de sicariis et veneficis and many others. But, generally speaking, only a few juristic writings dealt with merely criminal matters. (418)

Defensio. The activity of defendere oneself or another in a civil or a criminal trial. Defensio is also the procedural means by which one combats his adversary’s claim, an exceptio, for instance. “No one of those who deny their debt is prohibited from using another kind of defense” (D. 50.17.43).—Defensio is also the payment of another’s debt. (428)

Delatores. Accusers in a criminal trial ; see accusatio. Some individuals professionally assumed the role of accusers for political reasons. Malicious prosecution was punished. — C. 10.11. — See quadruplatores, nuntiare fisco, deferre fisco.Kleinfeller, RE 4; Humbert, DS 2; De Ruggiero, DE 2; Flint, CIJ 8 (1912); G. Bossiere, L’ accusation publique et les delateurs, 1911. (429)

Denuntiare. (Syn. nuntiare.) To give notice, to intimate, to announce. The term applies both to official declarations addressed to private individuals and to announcements made by the latter to the competent authorities. Similarly, there was a denuntiare when a private person gave notice to another of a legally important fact or of his intention where such an act was necessary for proceeding with a legal remedy. Denuntiare was prescribed, for instance, in the case of evictio: when sued by a third person for recovery of the thing bought the buyer had to notify the seller thereof. A creditor who was going to sell the pledge had to give the debtor notice. Similarly a creditor who ceded his rights against the debtor to another (see cessio) had to act in order to compel the debtor to pay the new creditor. An heir who had a right on intestacy, when disinherited by the testator, had to denuntiare his intention to sue for the nullification of the testament. — See condicere, senatusconsultum planianum, commissoria lex. Kipp, RE 5; Humbert, DS 2; A. Burdese, Lex commissoria, 1949, 15. (429)

Denuntiare testibus testimonium. To summon a witness in a criminal trial. It could be done either by a magistrate or by the accuser. Kaser, RE 5A, 1049. (429)

Denuntiatio ex auctoritate. Summons of the adversary (in the late Empire) authorized by a public official. — See denuntiatio litis. A. J. Boye, La denuntiatio, 1922, 206. (429)

Denuntiatio litis. A summons of the defendant by the magistrate in the procedure cognitio extra ordinem of the classical period. In the later Empire the summons was a private act with the assistance of an official person and under official authorization (denuntiatio ex auctoritate). — See reparatio temporum. (429)

Describere. To make a copy of a document, a private one (a testament) or one which was deposited in a public archive. — See liber libellorum. (433)

Exhibere. To display, “to produce (a thing, a slave) in public (i.e., during a trial) in order to give the plaintiff the chance to proceed with his suit.” (D. 10.4.2). (463)

Factum. A thing done by a human being, also an event, a happening independent of human influence. Factum is often opposed to ius. Res facti — res iuris = a matter of fact — a matter of law; facti esse — iuris esse, questio facti — quaestio iuris. Condicio facti — condicio iuris — a condition depending upon a fact — a condition imposed by the law. For the distinction actiones in factum — actiones in ius conceptae, see formulae in ius conceptae; for the distinction error facti — error iuris (in iure), see error facti, ignorantia iuris. (466)

Insimulare (insimulatio). To accuse (in imperial constitutions of the third and later centuries). (503)

Libellus. A small booklet (liber), a pamphlet. The term is applied to all kinds of petitions or letters addressed to the emperor or a high official. Syn. preces, supplicatio. Written complaints in civil or criminal matters (accusations) as well as written declarations (attestations, issued by an official or a private person) are also termed libellus. In the Roman civil procedure of the later Empire a libellus (= petition, complaint) of the plaintiff was the start of proceedings called per libellum.—See a libellis, epistula, and the following items. (561)

Libellus inscriptionis. A written accusation of a crime brought against a person by an accuser (accusator). It contained a detailed description of the wrongdoing and was used by the competent office as the basis for the registering of the case in the official records (see inscriptio). This initiated the investigation and the criminal trial. — See libellus accusatorius, inscriptio in crimen (562)

Iudicium (iudicia). Used in various technical senses. It is frequently syn. with actio and comprises the whole process without regard to bipartition; at other times it indicates only the second stage, apud iudicem, i.e., the proceedings before the private judge. Not seldom iudicium refers to the written formula (iudicium in rem, in factum) and at times to the act which separates the two stages of the classical process, the litis contestatio (e.g., ante iudicium, iudicium contestari). The elasticity of the term diminishes in the cognitio proceedings in which the distinction in iure — apud iudicem no longer exists. There it denotes the whole trial and refers generally to any proceedings before an official acting in a jurisdictional capacity. Finally iudicium is used of the judgment itself (syn. sententia) by which the trial is brought to an end. This last use is hardly classical. Justinian’s compilers frequently inserted the term iudicium to replace references to the bipartition of the classical process, in particular when the classical text alluded to the stage in iure or when mention of a classical institution obsolete in Justinian’s time had to be deleted (see vadimonium). In criminal matters iudicium refers to the trial as a whole as well as to its initial act (accusatio) and the process pending (see iudicia publica). The various meanings of iudicium are clarified by the context in which the word appears. — D. 5.1; C. 3.1. — See exceptio rei in iudicium deductae and the following items (iudicia for various types of actions, iudicium for specific actions, both civil and penal). (520)

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. (520)

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. (520)

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. (520)

Patronus causae. Syn. advocatus. (623)

Praefectus urbi(s). The prefect of Rome. During the period of kingship the praefectus urbi was the representative of the king in his absence. In the early Republic the practice of appointing a praefectus urbi was continued when all higher magistrates were absent. Since the creation of the urban praetorship (367 b.c.) the praefectus urbi practically disappeared. On one occasion only, when the national feast of the Latins (feriae Latinae) was celebrated in the presence of all Roman magistrates, a special praefectus urbi feriarum Latinarum was instituted. Augustus also reestablished the office of a praefectus urbi, only for the time of his absence from Italy; Tiberius, however, transformed it into a permanent one. Originally the praefectus urbi exercised criminal jurisdiction when he was delegated by the emperor, but later his jurisdictional power increased constantly and when the quaestiones perpetuae ceased to function under Septimius Severus, the competence of the praefectus urbi in criminal matters was almost unlimited not only in Rome but also in the territory within one hundred miles from the city. In the later Empire the praefectus urbi was the head of the administration and jurisdiction in both civil and criminal matters. In the first instance he was the exclusive judge in matters in which persons of senatorial rank were involved. Appeals from judgments of the praefectus annonae, the praefectus vigilum, and other officials of civil jurisdiction (cognitio extra ordinem) went to his court as far as the public order in the city was affected. A small armed unit (cohortes urbanae) for the maintenance of order was under his command. — D. 1.12; C. 1.28; 12.4. — See miliarium, custos Urbis, zenonianae constitutiones . . . (644)

Provocare. To challenge, to provoke (a jurisdictional measure in a trial). The term is primarily used of appeals from judgments of a lower instance to a higher one; see provocatio. (660)

Provocatio (provocare). An appeal by a citizen condemned by a magistrate in a criminal trial, to the popular assemblies (provocatio ad populum, a magistratu, adversus magistratum) under the Republic. An appeal from capital punishment went to the comitia centuriata, from a pecuniary fine (multa) to the comitia tributa. Several Republican statutes regulated the procedure of provocatio: Lex Valeria de provocatione, Lex Valeria Horatia, Lex Duilia, Lex Porcia, Lex Sempronia. There was no provocatio from a decision of a dictator, from a judgment of the decemviri, or from that of the criminal courts, quaestiones. Under the Empire an appeal was addressed to the emperor (provocatio ad imperatorem, ad Caesarem).  In civil matters provocatio is syn. with appellatio. — C. 7.64; 70. (660)

Provocator. He who appeals through provocatio. (660)

Pupillus. “One below the age of puberty (impubes) who ceased to be under the power of his father by the latter’s death or through emancipation” (D. 50.16.239 pr.).  (662)

Referre. (In judicial matters.) To make a report in postclassical procedure to a higher judge or to the emperor on substantial circumstances of the matter in dispute.—D. 49.1; C. 7.61. (670)

Res familiaris. Private property, patrimony.  (677)

Responsio (respondere). In a trial the reply of the defendant or his representative to the presentation of the case by the plaintiff; see narratio. Responsio comprises all means of defense (defensio) used by the defendant for the denial of the plaintiff’s claim. (681)

Rogare. To request, to ask another for a service, as, e.g., to be a witness (see testis rogatus) or surety, or for the permission to use his property (see commodatum, precarium). — See rogo. (686)

Subscriptio. (From subscribere.) A signature. With regard to private documents (subscriptio instrumenti, subscriptio chirographi) there were signatures of both parties who concluded an agreement, or only of the party who assumed an obligation, and eventually of his surety. The subscriptio consisted of the name of the subscriber and a brief summary of the content of the document or of the nature of the obligation the subscriber assumed. The signatures of witnesses (testis) contained the indication that they acted as witnesses. With the increase of the use of written documents the imperial legislation issued detailed provisions concerning the signatures of the parties, the notary involved, and the witnesses. The subscription of the party became an important element in a document when its body was written by another person. — See subscriptio testamenti, superscriptio. (720)

Subscriptio. (In a criminal trial.) A written accusation (see inscriptio) or an oral accusation written down in the records of the competent office and signed by the accuser. The accuser and those who signed the accusation together with him to support the accusation = subscriptores. — C. 7.57. (720)

Tutela impuberum. Guardianship over persons sui iuris (not under paternal power) who were below the age of puberty (see impubes) . . . “A tutor does not only administer the property of the ward (res pupilli) but he also has to take care of his moral behavior.” (mores, D. 26.7.12.3).” (747)