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Carnifex

(103 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The hangman, who in Roman society as in virtually every place and time fulfilled a despised function, to be performed beyond the pale of civic life. Execution of  capital punishment by the carnifices was supervised under the Roman Republic by the   tresviri capitales . Whether they were state slaves, as was generally supposed in the past, is entirely uncertain. In Cumae and Puteoli it was the independent undertakers, during the imperial age soldiers too, who fulfilled the duties of the carnifex. Schiemann, Gottfried (Tübingen) Bibliography W. Kunkel, Staatsordnung …

Vindicta

(93 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In the Roman legal procedure of legis actio sacramento in rem ('legal assertion of claim'): the staff that was symbolically applied to the slave or item of property in order to give concrete expression to the plaintiff’s claim and the defendant’s counterclaim to the item. The etymology of vindicta is disputed (cf. most recently [1. 47 f.12]). The most probable connection appears to be with vim dicere ('to assert that one has - legally founded - power over the item'). Rei vindicatio Schiemann, Gottfried (Tübingen) Bibliography 1 A. Bürge, Römisches Privatrecht, 1999.

Caelibatus

(260 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The unmarried state ( caelibatus) was a significant object of social evaluation and legal regulation in Rome. In the Republican period, perhaps following early precursors as early as 403 BC (Val. Max. 2,9,1), the censor (102, not 131 BC) Q. Caecilius Metellus Numidicus spoke out against the unmarried state and childlessness in a speech to the people (Gell. NA 1,6). Augustus took this up, expressly to justify the lex Iulia de maritandis ordinibus, in the first main piece of his legislation relating to marriage (18 BC) (Liv. 59). This law made it obliga…

Spado

(156 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Latin term for a eunuch, but also for someone who is sterile without having been castrated ( castratio ; Ulp. Dig. 50,16,128). In Roman law, special family and inheritance rights applied to a spado: whereas we have a regulation from the 2nd cent. AD that, in general, allowed a spado to adopt (Gai. Inst. 1,103), under Justinian (6th cent. AD), a distinction was made: the earlier rule applies only to a natural s pado, not to a castrated person (Inst. Iust. 1,11,9). This corresponds to a  general trend against castration in Late Antiquity: permission to marry for a s pado, but …

Rescriptum

(223 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (the 'reply letter') is one of the most important sources for Roman imperial law. In Gai. Inst. 1,5, the rescriptum is simply called epistula ('letter'), but classed as belonging to the constitutiones ('imperial laws'). Already in the Principate, the emperor received queries and proposals from officials and private persons on every matter imaginable. The emperor replied commensurate with the preparation in the chancellery ab epistulis with a rescriptum, a draft of which was archived. Starting with Hadrian (beginning of the 2nd cent. AD), the rescripta more and mo…

Divinatio

(235 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Roman term for the procedure of allowing one of several litigants in a private case (  delatio nominis ) to appear before a public criminal court ( iudicium publicum); the origin of this term is unknown. What Gellius NA 2,4 has to say about the word expresses no confidence; it would therefore seem that its history was no longer known to Romans of the 2nd cent. AD. The employment of a religious term would indicate a very early origin. There is however no basis for a reconstruction. In [1] it is convincingly s…

Iactus

(175 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The technical term in Roman law for ‘jettison’, the unloading of goods at sea from a ship in distress. The so-called lex Rhodia de iactu held that in these cases a community of endangerment of all involved existed: between the damaged party, the mariner ( nauta) and the owners of the salvaged load. In fact, this lex was a customary law throughout the Hellenistic world. Specifically, the damaged party could demand his share of compensation from the mariner in a service contract suit ( actio locati), while the mariner could in turn demand a compensation from the oth…

Lending

(381 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Handing an object to someone for use free of charge probably occurs in all societies every day. Legal conflicts hardly ever result from it. Many legal systems therefore manage without special regulations for these circumstances. It was probably generally the same in antiquity. Roman law, however, equally contains two institutions for the social phenomenon of the loan: the precarium (loan at request) and the commodatum, a binding contract by which the lender is obligated to hand over the object until the end of its usage or until the expiry of …

Libellus

(790 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Libellus in civil actions Libellus (‘small document’) was, from around the mid 5th cent. AD, the technical term for the complaint in a Roman civil action, which by this time was less ponderously arranged than in the formerly customary procedures of the litis denuntiatio . The libellus contained the facts upon which the complaint was based, without detailed explanatory statements, and a motion to summon the respondent ( postulatio ). The judge firstly addressed the legitimacy of the summons request (‘conclusiveness test’), reaching a sententia

Iurgium

(94 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A term in the Law of the Twelve Tables ( c. 450 BC,   Tabulae duodecim ). Its significance in legal history is still very disputed. Iurgium is a milder form of dispute than the litigation before court (  lis ); otherwise a general term for a dispute. It is conceivable that iurgium meant an out-of-court settlement, perhaps with the support of the pontifices. In the classical period (1st cent. BC - 3rd cent. AD) this form of resolution had long fallen out of use. Schiemann, Gottfried (Tübingen) Bibliography M. Kaser, K. Hackl, Das röm. Zivilprozeßrecht, 21997, 58).

Basilics

(144 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The ‘Basilics’, after the Greek term basiliká (n.pl.: ‘imperial’; sc. law books), are a compilation in Greek of the most important parts of the   Corpus iurisDigesta and   Codex (II)Iustinianus, as well as extracts from   Institutiones and   Novellae C.) from the time of the Byzantine emperor Leo(n) [9] VI (886-912). For five-and-a-half centuries the Basilics secured the continuance of Roman law in Byzantium (I. B.3). At the same time, they are an invaluable secondary source for the survival of the Corpus iuris, above all the Digesta (A.3). The Basilics also f…

Absolutio

(227 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] in Roman court proceedings is the opposite of ‘condemnation’ (  condemnatio ). In civil proceedings the formula in which the praetors set down the programme for the iudex ends stereotypically with the judicial command ... condemnato. Si non paret, absolvito. Both absolutio and condemnatio were final and absolute, in other words the decision -- apart from the special case of   appellatio -- was irrevocable, the dispute was definitively concluded and the exceptio rei iudicatae (demurrer of legal force) stood in the way of a new action. The saying omnia iudicia absolutor…

Adfinitas

(91 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (relations by marriage). Gai. Inst. 1,63 speaks of adfinitas in connection with the statement: Item (scil. uxorem ducere non licet) eam, quae nobis quondam socrus, aut nurus, aut priuigna, aut nouerca fuit. According to this in classical Roman law (possibly since Augustus' marriage legislation) marriage to mother-in-law, daughter-in-law, stepdaughter and stepmother is forbidden. This impediment to marriage was extended in late antiquity to relations by marriage of the first degree in the collateral line (brother's wife, wife's sister) (Cod. Theod. 3,12,2). Sch…

Concussio

(159 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Digests (Title 47,13) label cases of a forced granting of benefits to an officeholder as concussio (blackmail). Possibly, this is a further development of the reclamation procedure (  repetundarum crimen ). Punishable behaviour in office due to concussio was not prosecuted by a iudicium publicum but by extraordinaria   cognitio . Therefore, it was probably only considered an independent offence in the Imperial period (2nd cent. AD). The sources present pretending a (higher) official authority, orders of a superior and threats of an unfounded suit as means of concu…

Law [2]

(4,230 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] I. General The most important foundations of later European conceptions of law were laid in OT Judaic law, in Greek law as practical counterpart to the beginnings of philosophical reflection on justice ( Pre-Socratics; Justice), and above all in Roman law as the defining authority for the development of secular European jurisprudence since the late Middle Ages ( Reception). Law always comprises regulation on the part of a sizeable community for the settlement of conflicts between…

Paelex

(65 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a statement by the Roman jurist, Paul (Dig. 50,16,144) the meaning of paelex (also pelex, pellex, different in Greek pallakḗ ) is that of a female partner to whom one is not married (i.e not uxor, Marriage III.C.). The legal status of paelex was treated in Roman law mainly in the context of concubinage ( concubinatus ). Schiemann, Gottfried (Tübingen)

Scriptura

(124 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'that which is written down'), in the field of law, denoted all Roman documents, and (as literacy increased) from the Principate, but esp. in late antiquity, e.g. the testament, the note of hand ( cheirógraphon ), generally the contract, but also a legal opinion or a legal ruling, provided that these were given in writing. In a narrower sense, probably arising from the fact that the Roman tax farmers ( publicani ) 'marked down' transactions of relinquishment of public pasture to private (sub-)lessees, scriptura was the payment the lessee had to make for…

Diffarreatio

(51 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The actus contrarius of a   confarreatio , which dissolved a marriage joined in this form and followed the same ceremony. At the same time it effected the termination of the (former) husband's spousal powers (  manus ). Schiemann, Gottfried (Tübingen) Bibliography 1 W. Kunkel, s.v. matrimonium, RE 14, 2277 2 Treggiari, 24.

Auctoratus, Auctoramentum

(202 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An auctoratus is, according to Gai. Inst. 3,199, a dependent person, who is named together with the minor children and wives as well as the indentured servants ( iudicati). The position of the auctoratus probably rested on a willing subjection by oath ( auctoramentum), perhaps also on a duty of service on behalf of the   pater familias of the auctoratus to the employer. Since the end of the Republic, a free man could commit himself as auctoratus as a  gladiator, which did not protect him from the   infamia which was otherwise associated with the pos…

Concubinatus

(520 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law a permanent union between man and woman without affectio maritalis, i.e. without the intention of both parties of permanently entering a legal bond for forming a household, procreating and raising children. Since the marital laws of Augustus, the concubinatus increasingly became a form of living together if marriage was prohibited. Thus, senators and their descendants were prohibited under the l. Iulia de maritandis ordinibus from marrying a freedwoman, actress or daughter of an actor. Freeborn Romans could not enter into a marriage…

Decollatio

(197 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law the ‘simple’ death penalty by decapitation (whence also: capitis amputatio), as opposed to being burned alive (  crematio ) and crucifixion (  crux ). All three methods of execution appear in Paulus, Sent. 5,17,2 as summa supplicia (most severe punishments). Certainly from the time of Caligula capital punishment by damnatio ad bestias (animal combat in the arena) was also current practice. Decollatio was typically reserved for higher-status freemen (  honestiores ), while crematio and crux were carried out on ordinary freemen (  humiliores ) and slaves. D…

Revocatio

(161 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ('Revocation') occurs in two special senses in Roman law: (1) as revocatio in servitutem (' revocatio into slavery'), the revocation of manumission, probably only current in Late Antiquity (cf. Cod. Iust. 6,7,2 pr.); (2) in civil actions. There, the convicted party, having already paid, could demand retrial ( restitutio ) only with the risk of being compelled to pay the claimant for the litigation a second time by revocatio in duplum (' revocatio for double the value') if the restitution failed. This applied for the formula procedure ( formula ) and…

Tergiversatio

(193 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'to turn your back'). In Roman law, the term refers to the turning away of the private accuser in a criminal trial ( accusatio , delatio nominis ) from the case he had brought against the defendant. Beginning with the SC Turpillianum (AD 61), the tergiversatio led to a case against the accuser himself. When the withdrawal was unjustified, the tergiversatio was punished with a fine (Dig. 47,15,3,3). Beyond that, the private accuser lost his right to hold an office as well as his civic honour ( infamia , Dig. 48,16,2). The defendant who had…

Nervus

(63 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An iron chain used to tether a debtor's feet  ( ferreum vinculum, quo pedes impediuntur, Fest. 162,1-2). According to the Twelve Tables (Lex XII tab. 3,3),  a creditor was apparently permitted to use the nervus to take the debtor into a kind of coercive detention, if the latter did not pay his debts despite having been sentenced.  Schiemann, Gottfried (Tübingen)

Indulgentia

(284 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The technical term from the beginning of the 3rd cent. AD for a criminal law pardon by the Roman emperor (e.g. Cod. Just. 9,23,5 of the year 225). However there had long been pardons in Rome. They could happen during criminal proceedings (e.g. Mod. Dig. 48,16,17) as well as after them in order to lift the sanction imposed, and even before the initiation of any prosecution. In this way, Julius Caesar ordered the people's tribune M. Antonius to arrange a plebiscite to pardon those condemned according to Pompey's law on electoral fraud (  ambitus ) (Caes. …

Synallagma

(288 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (συνάλλαγμα/ synállagma, literally: 'mutual exchange'). Greek expression for a (business) transaction, sometimes for any type of legal obligation regardless of its creation, be it an offence or a contract. It did not have a precise juridicial meaning. Nevertheless, the Roman jurists M. Antistius [II 3] Labeo (about the time of the birth of Christ) and Titius Aristo (late 1st cent. AD) adopted the Greek word synallagma in Latin to refer to agreements that resulted in obligations for both parties. These might be so-called innominate contracts th…

Citations, law governing

(318 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The law known in modern literature as the law governing citations is an order by the Roman emperor declaring which jurists from earlier centuries should be drawn on and cited in legal decisions. With the crisis of the Roman empire in the mid 3rd cent. AD even Roman jurisprudence (  iuris prudentia ) lost the political, social and economical conditions for productive continuation. Legal literature from the 1st cent. BC, the beginning of its ‘classical’ period, therefore changed from being a fund for a discourse o…

Tabulae nuptiales

(226 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (lit. 'marriage tablets'). Marriage contracts in Roman law, set out in documents from the Imperial period onwards (cf. Tac. Ann. 6,45,5 on Messalina [2] and Silius in AD 48). In Roman law, marriage itself was not a (formal) contract, it was sexual communion with the intention of living a married life ( affectio maritalis). The subject of the TN, by contrast, were question of property connected with marriage, primarily the pledging of a dowry ( Dos ) to the husband for the wife's maintenance, in Late Antiquity probably also the husband's…

Repudium

(187 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law, initially the unilateral repudiation of a wife by her husband. From the literal sense (from pudor, 'shame', 'chastity'), repudium would have had serious misconduct (especially adultery, adulterium ) by the wife as a prerequisite. According to the Twelve Tables, as reported by Gai. Dig. 24,2,2,1, for repudium, the man had to call upon the woman to leave ( baete foras) and to take her things with her ( tuas res tibi habeto). As early as the 3rd cent. BC, repudium was possible without any fault committed by the woman (cf. Gell. NA 4,3,1 f.); no late…

Compensatio

(709 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Compensatio (charging to account) was a rather complicated institution in Roman law. The basic idea, however, is simple: when two parties involved in a court case have claims against each other, the claims are not treated separately, but are offset one against the other -- as far as the amounts cover each other. Both claims are thereby paid off, so that the complaint becomes groundless and the defendant can no longer sue for his counter-claim. The complication in Roman law resulted from the different legal procedures connected to the different reasons leading to claims. Ga…

Partus ancillae

(220 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The offspring of a slave which, according to Roman law - similar to the young of a domestic animal which belonged to the owner of the female animal - were born as slaves of the dominus of their mother. This was in accordance with the general principle that a child acquired the status of its mother (Gai. Inst. 1,81f.). No legal relationship with the father existed. Only in the time of Justinian [1] (AD 527-565) attempts were made, regarding a (freed or freeborn) father and child to allow them the legal consequences in terms of succession accorded to illegitimate offspring ( natura…

Imaginarius

(208 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally: ‘imaginary’) in Roman law the term for a legal transaction which expressed something other than what the parties actually intended. The most graphic example is the  mancipatio nummo uno, a transfer against, and by payment of, a merely symbolic copper coin ( aes). Its outward appearance was that of a cash purchase; its actual effect, however, was to enable transfer for any purpose, it could thus be ‘abstract’ - an imaginaria venditio (Gai. Inst. 1,113). In early Roman law, surety meant subjugation to the power of seizure vested in the creditor. Release ( solutio…

Dispensator

(169 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ( ab aere pendendo, Varro, Ling. 5,183). In earlier times the dispensator would presumably weigh unminted precious metals for his master or the state. The post developed into that of bookkeeper, cashier and steward, much like the Greek oikonómos. It is frequently encountered in Roman inscriptions. Many dispensatores were slaves or freedmen. In Gaius Inst. 1,122 they are distinguished as a special type of slaves: servi, quibus permittitur administratio pecuniae, dispensatores appellati sunt (‘slaves entrusted with the management of money are called dispensatores…

Anquisitio

(149 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] is a part of Roman criminal proceedings of the republican period in crimes against the state. The comitia passed judgement on them in a iudicium publicum. The anquisitio preceded this: first of all the peoples' tribunes, as the magistrates responsible, pleaded the intended charge three times before the assembled people (  contio ). Contrary to the opinion of Mommsen [1], the comitia were not just a pardoning body which decided after a   provocatio against the sentence previously passed by the magistrate. As Brecht [2] and Kunkel [3] discovered from their studies, the anqu…

Nomen

(61 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (pl. nomina). In Roman law, the term for debts. Gai. Inst. 128-133 distinguishes between ‘cash debts’ ( nomina arcaria), which arose e.g. from loans ( mutuum , see also condictio ), and ‘ledger debts’ ( nomina transscripticia), which arose by an entry in the ‘ledger’ of the creditor as an obligation from a litterarum obligatio . Schiemann, Gottfried (Tübingen)

Instrumentum

(362 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The term instrumentum (an object that has been ‘erected’ or ‘set up’) has widely differing meanings in Roman legal terminology: 1. in the Imperial period, especially in late antiquity, instrumentum was the document recorded by a document writer (  Tabellio ) concerning a civil legal transaction or (as instrumentum publicum) by an authority regarding a private or public matter. The instrumentum publicum and the instrumentum of the document writer, which was attested as authentic by three witnesses and also by the tabellio in writing, had full status as proof in…

Lex, leges

(2,519 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Concept Lex (‘law’, pl. leges) in Roman law denotes stipulation by a private individual, an office-bearer or a legislative body. The etymology is obscure. A derivation from legere (‘to read out’), referring to the method of stipulation by way of a ceremonial formula (cf. B. below on nuncupatio) remains speculative. Crucial to the lex is its mandatory character. On the other hand, in the original use of the term it lacks the ‘abstract’ (claiming general validity) and ‘general’ (directed at a large number of people) character of mod…

Naturales liberi

(370 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (also known as liberi naturales ). In Late Antiquity, ‘natural children’ were the issue of an illegitimate union ( concubinatus ). Compared to other children of illegitimate descent ( spurius ), they were privileged in many respects. Thus, the possibility of a legitimation, that is the eventual acquisition of the legal status of legitimate offspring ( legitimi), existed only for NL. In what was probably initially intended as an incentive to contract marriage with one's partner in concubinage, the parents' marriage brought about the ful…

Communio

(722 words)

Author(s): Schiemann, Gottfried (Tübingen)
Joint ownership of an object in Roman law. [German version] A. Past history The most important circumstances that led to the formation of a communio entailed a community of purchasers ( societas quaestus) or a community of heirs. Regarding both, the communio did not gain acceptance until late, towards the end of the Republic. Before that, multiple heirs were joined in a community of ercto non cito (after erctum ciere: to make a division), as we know from the papyrus find of 1933, containing Gaius, Institutiones 3, 154a, b. It originally meant a community of property that exclude…

Capitatio

(111 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The poll-tax of the late Roman Imperial Age from Diocletian (AD 297). As capitatio plebeia, it was probably levied on the urban population. With regard to the taxation of the rural population, it is disputed whether the capitatio was raised independently or was -- as an indicator of income -- only an important unit in the calculation of the land-tax ( iugatio). Widows and orphans, soldiers and veterans were entirely or partly exempted from the capitatio.  Annona;  Iugum Schiemann, Gottfried (Tübingen) Bibliography W. Goffart, Caput and Colonate: Towards a Histo…

Abortio

(196 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] also partus abactio, is  abortion in late Roman law. For a long time abortion in Rome was apparently not punishable, any more than it was in Greek law (  amblosis ). This was consistent with a legal system which even allowed abandonment of children. It is possible, though, that the censor made sure there was effective social control with regard to evident abuses. Not until a rescript of Sept. Severus and Caracalla (cf. Marcianus Dig. 47,11,4) was exile imposed on married and divorced women w…

Deportatio

(214 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Banishment to an island or a desert oasis was a capital punishment in Roman law; in the Principate (at the latest from Trajan's time, soon after AD 100), it replaced the   aqua et igni interdictio , which had replaced the death penalty for upper-class citizens towards the end of the Republic. The aqua et igni interdictio and deportatio involved lifelong loss of citizenship rights and property. As the offender had not escaped penalty by voluntary flight into exile, banishment ─ generally to a quite specific location (Dig. 48,22,6,1) ─ bec…

Nuptiae

(178 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (from nubere, ‘to cloak oneself, to put on a veil’) refers to marriage in Roman society (Marriage III.B.). A title of the Digesta (23,2: De ritu nuptiarum) with 68 fragments is devoted to wedding customs (III.). This indicates that Roman jurists gave close attention to the requirements for a legal marriage ( iustum matrimonium ). Since fulfilling the matrimonial requirements at the time of the nuptiae was of critical importance for legal recognition of the marriage, the term nuptiae eventually came to be used as a synonym for matrimonium in referring to marriage in g…

Institutiones

(404 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Roman jurists were probably the first who derived institutiones as a title for elementary textbooks from the term institutio (teaching course) in the 2nd cent. The significance of this Roman genre for European legal history extends far beyond what one might expect of ancient introductory didactic works: when the work of codifying Roman juristic law in the form of the  Digesta had advanced to a point that their success seemed certain, in AD 533 emperor Justinian commissioned his minister of justice  Tribonianus as well as the Byzantine l…

Notary

(88 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ( notarius). In legal cultures favouring the written record of acts of law, a notary is needed as an officially appointed scribe. This function was held, in Ptolemaic and Roman Egypt for example, by the agoranómoi , and in the Roman Imperial period and especially in Late Antiquity, the tabellio (documentary scribe). The Latin technical term notarius designates in Late Antiquity a senior official or officer with a special imperial mission, and also the secretary of the consistorium (as tribunus et notarius). Schiemann, Gottfried (Tübingen)

Criminal procedure

(366 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a historical perspective it is only possible to speak of a criminal procedure (CP) in the technical sense if we can distinguish a field of criminal prosecution in the public (state) interest ( Punishment; Criminal law) from legal prosecution in the civil interest (including any civil law penalties, Lat.   poena ). The fact, for example, that private  revenge is channelled via the obligation to conduct a judicial procedure still does not constitute a CP: to protect public peace and state authority, only the …

Carmen famosum

(180 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The carmen famosum (CF) (according to Paulus, Sent. 5,4,6) or malum carmen (defamatory poem) is a criminal offence like the   occentatio placed beside each other in the Tabulae duodecim (8,1). It is possible that this crime was only barely comprehensible even for ancient writers (e.g. Cic. Rep. 4,12), particularly because of the extremely severe penalty for mere defamation: probably  death penalty. It was a matter of private punishment, though, so it was barely more than a legally p…

Litis contestatio

(653 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Term In Roman legal language, lis is the expression for a dispute, in particular when it is taken to court. Litis contestatio (LC) thus refers to the ‘witnessing’ of such a dispute (Fest. p. 34,50 L.). The instigation of a claim (action) and defence (repudiation of action) in front of witnesses determined the course of a (civil) law suit. Until the predominance of the imperial cognitio procedure around AD 300, LC was the crucial point [1. 77] in the entire proceedings. Schiemann, Gottfried (Tübingen) [German version] B. Legis actio procedure The necessity of summonin…

Vincula

(309 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'chains'). In legal provisions as early as the Twelve Tablets (Tab. 3,3; Tabulae Duodecim ) a creditor could place a debtor in vincula for the purpose of legal enforcement. In this way a culpability was established. Initially its goal was to force the payment of a debt by the debtor himself or a third party, but was also a transitional stage in taking control, after the expiry of a deadline, of the person of the debtor in order to sell him e.g into slavery or to have him work off the amount he was convicted of in bonded labour. This former function of vincula is alluded t…

Contumacia

(299 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Derived from contemnere (to despise; this meaning of the word survives today in the contempt of court of British law). In Roman law the contumacia meant above all the defendant's failure to obey a legal summons in the exercise of extraordinaria  cognitio . No similar use of the word contumacia is encountered before the introduction of this procedure in the Principate and of the contumacia, probably under Claudius. Admittedly a comparable function existed in earlier civil proceedings after the XII Tables (5th cent. BC) in a judge's ruling for o…
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