The Ancient Library
 

Scanned text contains errors.

On this page: Interc – Intercolumnia – Interdictio Aquae Et Ign – Interdictum

642

INTERDICTUM.

his colleagues, which was the case in the matter of L. Scipio. [TuiBUNi.]

The term Intercessio and the verb intercede also applied to the tribunitian opposition to a roga-tio. (Liv. vi. 35 ; Cic. de Orat. ii. 47.) [G. L.]

INTERCl'SI DIES. [DiEs.]

INTERCOLUMNIA. [templum.]

INTERDICTIO AQUAE ET IGNIS. [Ex-silium, p. 516, b.]

INTERDICTUM. " In certain cases (certis eoc causis) the praetor or proconsul, in the first in­stance (principaliter), exercises his authority for the termination of disputes. This he chiefly does when the dispute is about Possession or Quasi-possession ; and the exercise of his authority con­sists in ordering something to be done, or forbidding something to be done. The formulae and the terms, which he uses on such occasions, are called either Interdicta or Decreta. They are called De-creta when he orders something to be done, as when he orders something to be produced (ecchiberi) or to be restored : they are called Interdicta when he forbids something to be done, as when he orders that force shall not be used against a person who is in possession rightfully (sine vitio \ or that no­thing shall be done on a piece of sacred ground. Accordingly all Interdicta are either Restitutoria, or Exhibitoria, or Prohibitoria." (Gaius, iv. 139,140.)

This passage contains the essential distinction between an Actio and an Interdict-urn, so far as the praetor or proconsul is concerned. In the case of an Actio, the praetor pronounces no decree, but lie gives a Judex, whose business it is to investi­gate the matter in dispute, and to pronounce a sentence consistently with the formula., which is his authority for acting. In the case of an Actio, therefore, the praetor neither orders nor forbids a thing to be done, but he says Judiciura dabo. In the case of an Interdict, the praetor makes an order that something shall be done or shall not be done, and his words are accordingly words of com­mand : Restituas, Exhibeas, Vim fieri veto. This immediate interposition of the praetor is appropri­ately expressed by the word " principaliter," the full effect of which is more easily seen by its juxta­position with the other words of the passage, than by any attempt to find an equivalent English expression.

Savigny observes that it may be objected to this exposition, that in one of the most important In­terdicts, that De Vi, the formula is>, Jttdicium dabo-. (Dig. 43. tit. 16. s. L) Bttt> as ne observes, the old genuine formula was, Restituas (Cic. pro Caecin. 8, 30) ; and the " Judicium dabo " must have been introduced when the formulae of the two old Interdicts {De Vi Armata and De Vi Quotidiana) were blended together, and at a time when the distinctions between the old formulae had become a matter of indifference.

The mode of proceeding as to the Interdict was as follows t — The party aggrieved stated his case to the praetor,, which Was the foundation of his de­mand of an Interdict, and was therefore analogous to the Postulatio actionis. If the praetor saw sufficient reason, he might gfant the Interdict, which was often nothing more than the words of the Edict addressed to the litigant parties ; and in doing so, he used his " auctoritas finiendis contro-versiis " in the first instance, or immediately tnd .without the intervention of a judex (principuttter), and also " certis ex causis," that is, in cases already

INTERDICTUM.

provided for by the Edict. If the defendant either admitted the plaintiff's case before the interdict was granted, and complied with its terms, or sub­mitted to the interdict after it was granted, the dispute was of course at an end. This is not stated by Gaius, but follows of necessity from the nature of the case ; and when he goes on to say " that when the praetor has ordered any thing to be done or forbidden anything to be done, the matter is not then ended, but the parties go before a judex or recuperatores," he means that this fur­ther proceeding takes place, if the praetor's Inter­dict does not settle the matter. The whole form of proceeding is not clearly stated by some modern writers, but the following is consistent with Gaius.

The complainant either obtained the Interdict or he did not, which would depend on the case that he made out before the praetor. If he failed, of course the litigation was at end ; and if he ob­tained the interdict, and the defendant complied with its terms, the matter in this case also was at an end. If the defendant simply did not obey the terms of the Interdict, it- would be necessary for the complainant again to apply to the praetor, in order that this fact might be ascertained, and that the plaintiff might give full satisfaction. If the defendant was dissatisfied with the Interdict, he might also apply to the praetor for an investigation into the facts of the case : his allegation might be that there was originally no ground for the Interdict. He might also apply to the praetor on the ground that he had satisfied the terms of the Interdict, though the plaintiff was not satisfied, or on the ground that he was unable to do more than he had done. In all these cases, when the praetor's order did not terminate the dispute, he directed an in­quiry by certain formulae, which were the instruc­tion of the judex, recuperatores, or arbiter. Ac­cordingly, the process of the Interdict belonged to the ordo judiciorum privatorum, but the judi-cium was constituted by the peculiar process of the Interdict. The inquiry would be, Whether anything had been done contrary to the Praetor's Edict* ; or, Whether that had been done, which he had ordered to be done: the former inquiry would be made in the case of a Prohibitory Inter­dict ; and the latter hi the case of an Exhibitory or Restitutory Interdict.

In the case of Interdicta Prohibitoria there was always a sponsio ; that is, the parties were re­quired to deposit or give security for a sum of money, the loss of which was in the nature of a penalty (poena) to the party who failed before the judex : this sponsio was probably required by the praetor. In the case of Interdicta Restitutoria and Prohibitoria, the proceeding was sometimes per sponslonem, and therefore before a judex or re­cuperatores, and sometimes, without any sponsio, per formulam arbitrariam, that is, before an arbiter. In the case of these two latter Interdicts, it seems to have depended Oil the party who claimed the inquiry whether there should be a sponsio or not: if such party made a sponsio, that is, proffered to pay a sum of money, if he did not make out his

* " Edict" is the word used by Gains, but he means Interdict. He uses Edict, because the In­terdict would only be granted in such cases as were provided for by the Edict (certis ex causis), and thus an Interdict was only an application of the Edict to a particular case.

Pages
About | First | English Index | Classified Index | Latin Index | Greek Index

641

642

643
letter/word  
page #  
Search this site
Google


ancientlibrary.com
WWW
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of Isidore-of-Seville.com.