1

A.V. RUDAKOV1
PIGNORIS CAPIO IN THE ROMAN PUBLIC LAW

Institution of pignoris capio in the roman private law was studied by a great number of scholars in different
times; however, we still do not have any full description of the pledge seizure by the roman magistrates in the sphere
of public law. Moreover even pignoris capio of roman magistrates mentions only in connection with the forming of
lien as an institution of private law2. And as the rule if a public aspect became the topic of independent research it
was just a short description.
In the scientific literature one of the first definitions was suggested by J.J. Bachoffen as far back as the
middle of the 19th century: - “the mean of compulsion of both private persons and senators to obedience and
carrying out of duties”.3 So A. Schteinwenter suggested defining roman magistrates’ pignoris capio as “a lien which
concerned to the methods used by roman magistrates on the ground of coercitio in the cases of insubordination of
their orders”4. P. Willems offered more detailed definition: “Ius pignoris capionis it is a right of the highest roman
magistrates for confiscation or even destroying of property which gives them opportunity to punish person who
opposed their orders or committed something illegal concerning their person”5. The highest magistrates had the ius
pignoris capionis as well as the right for imposing of fine. Curator aquarum got the right for seizure of pledge and
for imposing of fine after the lex Quincia (9 A.D.)6. Concerning other magistratures of the republican period we
have no any evidence.

1
Alexey Vladimirovich Rudakov – graduate student of “Centre of Roman law history and European law systems”, General
History Institute, Russian Academy of Sciences, Moscow.
2
Bachofen J.J.. Das römische Pfandrecht. Basel. 1847. S. 4; Rudorff A.A. Römische Rechtsgeschichte. Leipzig. 1859. S. 86 - 87,
100 - 105; Дыдынский Ф.М. Залог по римскому праву. Варшава. 1872. С. 17; Минервин А.Е. Исходные моменты учения о
закладном праве. Ярославль. 1874. С. 28 - 29; Maine H.S. Lectures on the Early History of Institutions. NY. 1875. P. 257 –
261; Mommsen T. Römisches Staatsrecht. Leipzig. 1876. Bd. 1. S. 152 - 153; Виллемс П. Римское государственное право.
Киев. 1890. Вып. I - II. C. 217 - 220, 257 - 261, 378 - 381; Ростовцев М.И. История государственного откупа. СПб. 1899.
С. 88 - 93, 272 - 275; Greenidge A.H.J. Roman Public Life. L. 1901. P. 170 - 171; Idem. The Legal procedure of Cicero’s time.
Oxf. 1901. P. 336; Steinwenter A. Pignoris capio // RE. Hbd. 39. Stuttgart. 1941. S. 1234 - 1239; Hill. H. History of pignoris
capio // AJP. 1946. № 67; Kaser M. Das altrömische Ius. Studien zur Rechtsvorstellung und Rechtsgeschichte der Römer.
Göttingen. 1949. S. 179 - 190; Levy-Bruhl H. Recherches sur les actions de la loi. Paris. 1960. P. 313 - 337; Pugliese G. Il
processo civile romano. I. Le legis actions. Roma. 1962. P. 321 - 336; Idem. Gai 4.32 e la “pignoris capio” // Melanges Philippe
Meylan. Recueil de travaux publies par la Faculte de droiy de l’Universite de Lausanne. 1963. Vol. 1. P. 279 - 292; Buckland W.
W. A Textbook of Roman Law from Augustus to Justinian. Cambridge. 1963. Р. 622 - 626; Fuenteseca P. Las “legis actions”
como etapas del proceso romano // ANDE. 1964. № 34. P. 209 - 233; La Rosa F. Ricerche sul “pignus”. Catania. 1977; Schiller
A.A. Roman law: mechanisms of development. NY. 1978. P. 211 - 213; Solinas G.P. Spunti processuali nell’opera letteraria di
Catone il Censore // Studi in onore di E.T. Liebman. Milano. 1979. P. 433 - 474; Nicosia G. Il processo privato romano. I: Le
origini. Torino, 1986. P. 95 – 98; Idem. Agere lege // Silloge. Scritti 1956–1996. Vol. II. Catania, 1998. P. 433 – 463; Pugliese G. Qual
nuova osservazione sulla pignoris capio dei publicani e Gai 4.32 // Collatio iuris Romani. Amsterdam. 1995. Vol. 2; Kunkel W.,
Wittman R. Staatsordnung und Staatpraxis der Römischen Republik. München. 1995. S. 152 – 167; Салогубова Е.Л. Римский
гражданский процесс. М. 2002; Гарсиа Гарридо М.Х. Римское частное право: казусы, иски, институты. М. 2005. С. 180.
3
Bachofen J.J. Das römische Pfandrecht. Basel. 1847. S. 4.
4
Steinwenter A. Pignoris capio // RE. Hbd.39. Stuttgart. 1941. S.1234-1235.
5
Виллемс П. Римское государственное право. Киев. 1890. С. 261.
6
Front. De aq. 129. Et qui D. M. qui eorum ita fecerit, id omne sarcire, reficere, restituere, aedificare, ponere et celere demolire
damnas esto sine dolo malo atque omnia ita ut quicumque curator aquarum est, erit, si curator aquarum nemo erit, tum is praetor
qui inter cives et peregrinos ius dicet, multa, pignoribus cogito, coercito, eique curatori aut si curator non erit, tum ei praetori eo
nomine cogendi, coercendi, multae dicendae sive pignoris capiendi ius potestasque esto. (and in addition, whoever shall
maliciously do any of these things shall be condemned to repair, restore, re-establish, reconstruct, replace what he has damaged,
and quickly demolish what he has built — all in good faith and in such manner [as the commissioners may determine]. Further,
 2
In scientific literature there are no any detailed opinions about initial meaning of roman magistrate’s pignoris
capio. But it is necessary to notice that in the end of the 19th century H.S. Maine supposed that ius pignoris capionis
was initially a compulsion measure which was used by roman aristocracy against plebeian debtors7. Our sources do
not provide us with enough evidences of this and that is why definition of A.H.J. Greenidge seems more well-
grounded. According to this opinion roman magistrates’ pignoris capio was used first of all against roman officials
or as some kind of penal measure because in some cases seized property could be destroyed.8 And indeed as we will
see below the valuable interest did not play the main role and moreover initially pignoris capio did not give any
proprietor's rights on the seized assets. Seizure of the pledge very often applied against magistrate and was a
punishment for some legal offence, moreover this procedure executed in public – in conspectu populi Romani. And
even when property dispute took place, seized assets could not be used for clearing of debt.9 We can also mention
Russian scholar’s A.V. Minervin opinion who noticed a sacral ground of pignoris capio in the public law following
the laws of XII tables 10. So in archaic Rome if the defendant refused to obey magistrate’s order the seized property
passed to clergy for sacrifice and as usually it was cattle11. The hypothesis of pignoris capio sacral ground used by
roman magistrates looks more logical if we take into account a thesis that all roman archaic social institutions had
religious origin. Moreover L.L. Kofanov mentioned that particularly all social institutions in archaic Rome had
sacral nature and magistrates’ duties were held by priests’ collegiums.12
Pignoris capio of magistrates was close to the archaic seizure of pledge mentioned in the laws of XII tables
but usually realized only as legis actio of ancient private law13. In connection with this R. Ihering defined pignoris
capio as arbitrariness but arbitrariness ceremonial with observance of certain formula14. W. Kunkel consider that
archaic pignoris capio of the private law was some kind of lawful self-help (erlaubte Selbsthilfe) and had
extrajudicial pattern15. It was in some way pure pledge possession: that means pledge could not satisfy claim but
only established a pressure on debtor and the pledge could not be sold but it could be only destroyed if there was no
any other means of compulsion. And here we can give an opinion of E.I. Bekker that rather often pignoris capio was
some kind of ceremony during the period of Republic and the property did not pass into possession of the pledge
holder and on practice it was sui generis the beginning of the process16. Further trial began only in case of
defendant’s obstinacy17. From Bekker’s point of view this can explain that roman officials used both pledge seizure
and fine imposing. And this seems was true as for private and public law. Rather well-grounded looks the opinion of

whoever is or shall be water-commissioner, or in default of such officer, that praetor who is charged with judging between the
citizens and strangers, is authorized to fine, bind over by bail, or restrain the offender. For that purposes, the right and power to
compel, restrain, fine, and bind over, shall belong to every water-commissioner, or if there be none, to the praetor).
7
Maine H.S. Lectures on the Early History of Institutions. NY. 1875. P. 257.
8
Greenidge A. H. J. Roman Public Life. L. 1901. P. 170.
9
Schiller A.A. Roman law: mechanisms of development. NY. 1978. P. 211.
10
XII tab. XII.1 (=Gai. Inst. IV.28).
11
Минервин А.Е. Исходные моменты учения о закладном праве. Ярославль. 1874. C. 29. Pignoris capio of the cattle was
probably widespread not only in the time of the laws of XII tables bur during the later roman history. Ulpianus in the 3rd book on
“On the Duties of Consul” tells that magistrates of the Roman people at first should take in execution movable property, such as
animals (Dig. 42.1.15.2). Moreover in one of the Constantine’s I constitutions specified that rather often officials seized
agricultural animals or slaves as a pledge(C.Th. 2.30.1). See also Dig. 9.2.29.7.
12
Кофанов Л.Л. Атрибуты власти магистратов в архаическом Риме // Древнее право. Ius antiquum. 1998. № 1 (3). С. 35.
See also Idem. Сакральное право: от человеческих жертвоприношений к правовым санкциям // Религия и община в
Древнем Риме. М. 1994. С. 20ff.
13
Kunkel W., Wittman R. Staatsordnung und Staatpraxis der Römischen Republik. München. 1995. S. 165. Compare with
Дыдынский Ф.М. Залог по римскому праву. Варшава. 1872. С. 17.
14
Иеринг Р. Дух римского права на различных ступенях его развития. СПб. 1875. Ч. 1. С. 130.
15
Bekker E.I. Die Aktionen des Römischen Privatrechts. B. 1871. S. 42: …staatswegen anerkannte und geregelte Selbsthülfe…
16
It is necessary to notice that we do not know anything about other ceremonial or ritual actions following seizing of pledge
except spelling of verbal formula mentioned by Gaius (Gai. Inst. IV. 29). For more details see Karlowa O. Der Römische
Civilprozess zur Zeit der Legisactionen. B. 1872. S. 205.
17
Bekker E.I. Op. cit. S. 55.
 3
C.R. Noyes that such kind of self-help was the form of traditional law that was still actual during the later periods of
Roman history. But of course in the archaic period pignoris capio was used rather more frequently. It was the reason
that ancient legal procedures were closely connected with private vengeance. So American scholar supposed that
archaic pignoris capio both in the private and public law had a common ground and it was an act of violence but this
violence was kept within the limits of law18. And may be because of this all archaic pignoris capio procedure carried
out directly by claimant in extrajudicial order.
Public institution of pignoris capio by roman magistrates had extrajudicial nature like in private law of
archaic period and moreover it did not lead to satisfaction of claim. During the period of the Late Republic and
Early Empire it was essentially the mean of compulsion. Because of this seized pledge could not become state
property and could not be sold but in some cases it could be immediately destroyed (pignora caedere)19. According
to this O. Karlowa distinguished coercional pignoris capio of roman magistrates and publicans and characterized the
first one as some method of administrative impact in case of disobedience to the authorities.20
Probably the practice of the pledge destruction was based on an old tradition. And if in archaic time the
pledge became a sacrifice i.e. destroyed, later this destruction could be just an observance of ancient ritual. However
sale of pledge in the private law started to implement much later. Moreover we have no evidence of pledge
collection for benefit of the state property. Destruction of pledge was usually applied in case of disobedience to
magistrate’s order. And it looks more reasonable as the mean of compulsion to obedience than amercement which
was more suitable in the case of property claims. Later during the period of the Late Empire the pledge was usually
given back to the owner after the execution of magistrate’s order according to established procedure.21
Probably we should not apprehend pignoris capio of roman magistrates as some supplementary instrument.
On the contrary pignoris capio was used by the roman magistrates during the Republic period as an independent
mean of compulsion22. Here we can refer to aforementioned fragment of Frontinus where he mentioned sui generis
formula - coerceo, multa dico et pignoris capio23, that proves to us independence of pignoris capio implementation
as an administrative measure. And at this point raising a question: why did roman magistrates use both imposing of
fine and seizure of pledge? Probable explanation is that in contrast to imposing of fine, pignoris capio had
administrative nature and so it was rather more prompt.
Moreover from the W. Kunkel’s point of view we do not know anything about value limitation of seized
pledges.24 This statement was at first made by T. Mommsen.25 And indeed the first mention about the limitation of

18
Noyes С.R. The institution of property: a study of the development, substance, and arrangement of the system of property in
modern Anglo-American law. Clark, New Jersey. 2007. P. 143.
19
Schiller A.A. Op. cit. P.212.
20
Karlowa O. Römische Rechtsgeschichte. Leipzig. 1901. Bd.2. S.34.
21
Dig. IX.2.29.7. Magistratus municipales, si damnum iniuria dederint, posse Aquilia teneri. Nam et cum pecudes aliquis pignori
cepisset et fame eas necavisset, dum non patitur te eis cibaria adferre, in factum actio danda est. Item si dum putat se ex lege
capere pignus, non ex lege ceperit et res tritas corruptasque reddat, dicitur legem Aquiliam locum habere: quod dicendum est et si
ex lege pignus cepit. Si quid tamen magistratus adversus resistentem violentius fecerit, non tenebitur Aquilia: nam et cum pignori
servum cepisset et ille se suspenderit, nulla datur actio. (Municipal magistrates who have committed wrongful damage can be
held liable under the Lex Aquilia; for where any of them has taken cattle of yours in execution, and allows them to die of hunger,
by not permitting you to give them food an action in factum should be granted. Moreover, where he thinks that he is levying an
execution in accordance with law, but does not actually do so, and restores the property worn out and ruined, it is held that the
Lex Aquilia will apply; and this, indeed, can also be stated where the execution was levied in compliance with the law. Where,
however, a magistrate committed violence against a party who was resisting, he would not be liable under the Lex Aquilia, for
when one took a slave in execution and the latter hanged himself, no action was granted.)
22
For more details see Kunkel W., Wittman R. Op. cit. S. 164.
23
Front. De aq. 129.
24
Kunkel W., Wittman R. Op. cit. S. 165.
25
Mommsen T. Römisches Staatsrecht. Leipzig. 1876. Bd. 1. S. 143.
 4
seized pledges value refers only to 56 A.D. – period of Emperor Nero’s reign26. However in connection with this it
is necessary to pay certain attention to the legis actio per sacramentum. In this case sacramentum intrinsically means
a pledge and according to Gaius they had well-defined limitations of value. (Gai. IV.12-16). And therefore we can
suppose that pignoris capio could have the similar limitations.
However it is evident that the roman officials frequently preferred distress to fine that is most obvious in the
period of the Late Republic because of high inflation and currency reduction in price. And later during the imperial
time the unequal development of finance in different provinces made pignoris capio quite universal remedy of
compulsion.
And now let me apply to the material of sources. As for period of Republic relatively big volume of sources
are available for us. We have evidences of public pignoris capio for consuls, praetors, censors, aediles and curators
aquarum.
Analysis of available sources gives us an opportunity to retrace within certain limits the history of public law
pignoris capio development. The main source about pignoris capio of archaic period is the laws of XII tables and it
does not contain any information about usage of pignoris capio as an institution of private law27. According to this
fragment it is better to connect pledge seizure with sacral law. In the comments to this regulation Gaius tells that
pignoris capio was used by publicans and the military and it straightly indicates that pignoris capio was also used in
the sphere of public law28. But in spite of this pledge seizure is traditionally determined as an action of private law.
From the other sources we know that the highest roman magistrates with imperium also had ius pignoris
capionis. The pledge could be captured from the person who did not execute magistrate’s order or insulted him
personally.
Our sources rather often tell us about seizure of pledge from senators who did not visit session without valid
reason as a mean of attendance ensuring. In this case the person who convened the session had the right for pignoris
capio29. One of the first example of this practice was mentioned by T. Livius and dates to the middle of the 5th
century B.C. Dicemviri, who were compilers of the laws of XII tables, tried to convene the session of senate but
senators ignored this. So dicemviri had to use their ius pignoris capionis as a mean of attendance ensuring30.

26
Tacitus Ann. XIII.28. Cohibita artius et aedilium potestas statutumque, quantum curules, quantum plebei pignoris caperent vel
poenae inrogarent. (Restrictions were also put on the powers of the aediles and a limit fixed to the amount of bail or penalty
which curule and plebeian aediles could respectively exact).
27
XII tab. XII.1. (=Gai. Inst. IV.28): Lege autem introducta est pignoris capio uelut lege XII tabularum aduersus eum, qui
hostiam emisset nec pretium redderet; item aduersus eum, qui mercedem non redderet pro eo iumento, quod quis ideo locasset, ut
inde pecuniam acceptam in dapem, id est in sacrificium, inpenderet… (The detention of property in this manner was also legally
authorized, for instance, by the Law of the Twelve Tables against a party who bought a victim for sacrifice and did not pay for it;
and likewise against one who did not pay the hire of a beast of burden which he had leased for the purpose of raising money to
meet the expenses of a festival, that is to say, of a sacrifice…).
28
Gai. Inst. IV. 27. Introducta est moribus rei militaris nam [et] propter stipendium licebat militia ab eo, qui aes tribuebat, nisi
daret, pignus capere; dicebatur autem ea pecunia, quae stipendii nomine, dabatur, aes militare. Item propter eam pecuniam licebat
pignus capere, ex qua equus emendus erat; quae pecunia dicebatur aes equestre. Item propter eam pecuniam, ex qua hordeum
equis erat conparandum; quae pecunia dicebatur aes hordiarium. (It was introduced through custom into military affairs; for a
soldier was entitled to employ this proceeding against the paymaster for his pay, if he did not give it, which compensation was
designated aes militare, and he could also distrain for money for the purpose of purchasing a horse, which was called aes
equestre, as well as for money with which to purchase barley for his horse which was called aes hordiarium). Compare with
Gell. VI.10. Gai. Inst. IV. 28. item lege censoria data est pignoris capio publicanis uectigalium publicorum populi Romani
aduersus eos, qui aliqua lege uectigalia deberent. (…In like manner, the right to distrain was granted by the law of Censors to the
farmers of the revenue of the Roman people, against persons who owed taxes under any law). For more details see Кофанов Л.Л.
Государственные контракты в римском республиканском публичном праве // Древнее право. Ius Antiquum. 2006. №2
(18). С. 50, 54.
29
Gell. XIV.7. …dictatorem, consules, praetores, tribunos plebi, interregem, praefectum urbi… Deinde extraordinario iure
tribunos quoque militares, qui pro consulibus fuissent, item decemviros, quibus imperium consulare tum esset, item triumviros
reipublicae constituendae causa creatos ius consulendi senatum habuisse.
30
Liv. III.38.12. Postquam citati non conueniebant, dimissi circa domos apparitores simul ad pignera capienda sciscitandumque
num consulto detractarent referunt senatum in agris esse. (Not meeting according to summons, apparitors were dispatched to all
 5
According to A. Gellius, even author of the 1st century B.C. M. Varro in his book of notes about the administration
of Rome, which he composed for Pompeius, told about pignoris capio as one of the mean to compel senators to
attendance at the sessions31.
Another well-known author of the 1st century B.C., Cicero, described very interesting case when he refused
because of his illness to attend senate session according to demand of M. Antonius. As the result M. Antonius sent
workers who had not only to capture Cicero’s house as a pledge but even destroy it (pignora caedere)32. This
fragment gives us a lot of information about the seizure of pledge from the senators. Cicero considered that this
measure could be used only if senate discussed some very important question or in some extraordinary situation.
Otherwise senator could miss session by this or that reason and for Cicero this situation seems ordinary. If it was
really necessary senator could be compelled by pignoris capio but anyway pignora caedere was not applicable and
ha not been used before.
Further we can mention another example of consul’s pignoris capio against senator in 91 B.C. M.L. Crassus
rudely spoke about consul Lucius Marcius Philippus and for this reason Crassus should be punished by pignoris
capio. Moreover it should take place in public (in conspectu populi Romani) and apparently the pledge should be
destroyed33. As we can see the situation here has much in common with the previous one but for both Crassus and
Cicero the using of pignoris capio seem lawful. It means that destruction of seized property was permissible if
magistrate was insulted personally and it was not applicable if senator did not execute his official duties.
Another widespread practice was the pignoris capio from the person who insulted or disobeyed higher
magistrate. In 63 B.C. Caesar was accused of participation in Catilina’s conspiracy. But this accusation appeared
false and one of squealer was punished by pignoris capio34. Here we can also see that magistrate’s insulter was
subjected not only to pignoris capio but also to distraction of his property. But in contrast to Cicero Svetonius does
not use phrase pignora caedere and he tells about direpta supellectile. In spite of terminology differences this
situation has munch in common with aforementioned cases. Here we can also concern one interesting case described

their houses, to levy the penalties, and at the same time to discover whether their non-attendance was owing to design, and these
brought back an account that the members of the senate were in the country).
31
Gell. XIV.7.10. Praeter haec de pignore quoque capiendo disserit deque multa dicenda senatori, qui, cum in senatum venire
deberet, non adesset.
32
Cic. Phil. I.11-12. Quid tandem erat causae, cur in senatum hesterno die tam acerbe cogerer? Solusne aberam, an non saepe
minus frequentes fuistis, an ea res agebatur, ut etiam aegrotos deferri oporteret? Hannibal, credo, erat ad portas, aut de Pyrrhi
pace agebatur, ad quam causam etiam Appium illum et caecum et senem delatum esse memoriae proditum est.
De supplicationibus referebatur, quo in genere senatores deesse non solent. Coguntur enim non pignoribus, sed eorum, de
quorum honore agitur, gratia, quod idem fit, cum de triumpho refertur. Ita sine cura consules sunt, ut paene liberum sit senatori
non adesse. Qui cum mihi mos notus esset, cumque e via languerem et mihimet displicerem, misi pro amicitia, qui hoc ei diceret.
At ille, vobis audientibus, cum fabris se domum meam venturum esse dixit. Nimis iracunde hoc quidem et valde intemperanter.
Cuius enim maleficii tanta ista poena est, ut dicere in hoc ordine auderet se publicis operis disturbaturum publice ex senatus
sententia aedificatam domum? Quis autem tanto damno senatorem coegit, aut quid est ultra pignus aut multam?
33
Cic. De or. III.4. Hic cum homini et vehementi et diserto et in primis forti ad resistendum Philippo quasi quasdam verborum
faces admovisset, non tulit ille et graviter exarsit pigneribusque ablatis io Crassum instituit coercere. Quo quidem ipso in loco
multa a Crasso divinitus dicta esse ferebantur, cum sibi illum consulem esse negaret, cui senator ipse non esset. "An tu, cum
omnem auctoritatem universi ordinis pro pignere putaris eamque in conspectu populi Romani concideris, me his existimas
pigneribus terreri? Non tibi illa sunt caedenda, si L. Crassum vis coercere: haec tibi est incidenda lingua, qua vel evulsa spiritu
ipso libidinem tuam libertas mea refutabit.
34
Svet. Caes. 17. id uero Caesar nullo modo tolerandum existimans, cum inplorato Ciceronis testimonio quaedam se de
coniuratione ultro ad eum detulisse docuisset, ne Curio praemia darentur effecit; Vettium pignoribus captis et direpta supellectile
male mulcatum ac pro rostris in contione paene discerptum coiecit in carcerem; eodem Nouium quaestorem, quod compellari
apud se maiorem potestatem passus esset. (Caesar, feeling that this treatment was not to be borne, appealed to Cicero himself,
whether he had not voluntarily made a discovery to him of some particulars of the conspiracy; and so baulked Curius of his
expected reward. He, therefore, obliged Vettius to give pledges for his behaviour, seized his goods, and after heavily fining him,
and seeing him almost torn in pieces before the rostra, threw him into prison; to which he likewise sent Novius the quaestor, for
having presumed to take an information against a magistrate of superior authority).
 6
by Plutarch in the biography of Cato: in 58 B.C. he threatened his friend Munatius by pignoris capio because of
ignoring of several Cato’s invitations to the dinner35.
Another reason for pignoris capio was some sort of damage of public property. It was topical as for Republic
period as for Principate. So in the 70s of the 2nd century B.C. freedman of tribunus plebes Publius Rutilius had to
demolish a wall on the Sacra via opposite public buildings as it was constructed on the public land. The freedman
tried to resist this decision but censors seized a pledge from him and condemned to the fine36.
And according to above-mentioned lex Quinctia (9th B.C.) curator aquarum (or praetor in his absence) had
the right for pignoris capio if someone damaged any water facilities or made something that decreased water
supplies to Rome37. Following Frontinus curator aquarum possessed special ius ducendae tuendaeque aquae.38 This
magistrate did not possessed imperium and his office was not curulis but in spite of this he had the right not only for
pledge seizure but also for arrest (coerceo) and fine (multa dico). In connection with this we should notice that the
office of curator aquarum was established in 11 B.C. and before it was carried out by censors or by aediles curulis
and in their turn they possessed ius pignoris capionem. Probably because of such authority division curators
aquarum got ius pignoris capionem and another forms of coercitio.39
Moreover pignoris capio was used by roman magistrates against citizens who refused to enlist in the army.
According to Dionysius Halicarnasensis consuls Marcus Fabius and Lucius Valerius in 483 B.C. used pignoris capio
when many Romans refused from the conscription40. Conscription dodging was an enormous offence for Romans in
all times and because of this, consuls had the right not only for pignoris capio but they could destroy even
immovable property and ravage estate. It is obvious that Dionisius tells us about pignora caedere and we do not see
any doubt in the legality of this measure41. And here it is necessary to notice that destruction of immovable property
and ravage of estate was still applicable during the imperial period. So Pomponius noticed that following judicial
decision it was possible to destroy defendant’s house and to cut down all the trees42. Roman jurist is obviously
telling here about this measure concerning the private law, moreover we do not see any mention of pignoris capio or
destruction of pledged property. It is important that the principle was the same and was in use during the whole
roman history.
Another interesting example of pignoris capio usage lies in sacral sphere. Seizure of the pledge could be
implemented by the superior priest versus inferior one. This fact confirms once again a sacral ground of pignoris
capio. T. Livius gives us two examples of such practice43. Supreme pontiff P. Licinius did not allow Q. Fabius
Pictorus to leave for province, who was flamen of Quirinus and the praetor at the same time. The reason of this was

35
Plut. Cato. 37.
36
Liv. 43. 16. 1 - 5.
37
Front. De aq. 129.
38
Front. De aq. 94. Sequitur, ut indicemus, quod ius ducendae tuendaeque sit aquae: quorum alterum ad cohibendos intra modum
impetrari beneficii privatos, alterum ad ipsorum ductuum pertinet tutelam.
39
Буров А.С. О праве проведения и охраны воды в Древнем Риме (по трактату Фронтина De aquis urbis Romae) //
Древнее право. Ius Antiquum. 1997. №1 (2). С. 56 - 57.
40
Dion. Hal. ant. VIII.87.5. See also Liv. II. 42. 6 - 9.
41
For more details see Kunkel W., Wittman R. Op. cit. S. 165.
42
Dig. X.3.20 Pomponius libro tertio decimo ad Sabinum. Si is, cum quo fundum communem habes, ad delictum non respondit
et ob id motu iudicis villa diruta est aut arbusta succisa sunt, praestabitur tibi detrimentum iudicio communi dividundo: quidquid
enim culpa socii amissum est, eo iudicio continetur. (Where a person with whom you hold land in common does not answer in the
case of an offence, and on this account the house is demolished, or the trees are cut down by order of the judge; damages can be
recovered by you in an action for the partition of common property, for whatever is lost through the negligence of a joint-owner
is included in this proceeding).
43
Liv. 37.51.1-5. Priusquam in prouincias praetores irent, certamen inter P. Licinium pontificem maximum fuit et Q. Fabium
Pictorem flaminem Quirinalem, quale patrum memoria inter L. Metellum et Postumium Albinum fuerat. consulem illum cum C.
Lutatio collega in Siciliam ad classem proficiscentem ad sacra retinuerat Metellus, pontifex maximus; praetorem hunc, ne in
Sardiniam proficisceretur, P. Licinius tenuit. et in senatu et ad populum magnis contentionibus certatum, et imperia inhibita ultro
citroque, et pignera capta, et multae dictae, et tribuni appellati, et prouocatum ad populum est. religio ad postremum uicit; ut
dicto audiens esset flamen pontifici iussus; et multa iussu populi ei remissa.
 7
that command in province was incompatible with permanent presence in Rome which was obligatory for the priest.
According to this supreme pontiff implemented pignoris capio as a guarantee of inferior priest’s obedience. At the
same time Q. Fabius also used seizure of the pledge probably according to his praetor’s power. Pignoris capio was
also used here by both sides to guarantee the presence on senate’s sessions or in people’s court. Here T. Livius also
mentions about similar situation which took place in 242 B.C. At the same way supreme pontiff L. Metellus did not
allow A. Postumius, who was also flamen of Mars and the consul at the same time, to go to the troops because it was
not in line with the priest’s duties.
So let me summarize development of the pignoris capio in public law of Roman Republic. Roots of the
pignoris capio lie in the customary law and sacral sphere. This institution was still used in religious sphere during
the republic period but it also found its usage both in public and private law. Pignoris capio in the field of the state
law got with the lapse of time rather clear forms: were clearly determined basic spheres and cases of application,
circle of authorized persons and probably was limited maximum value of the pledged property.
Different types of sources tell us about rather wide spreading of pignoris capio in the roman public law.
Moreover it seems that seizure of pledge in this form led to the stability of the whole state system. And what is the
ground of such common thesis? As we have shown it previously, every public person was responsible by his own
property for the effectiveness and correctness of his activity before roman people. If some deeds of magistrate or
senator broke established order or was just illegal, roman populus had the right to seize their property to provide
appropriate execution of duties.
Archaic institution got clear forms but in spite of this it maintained features of ancient arbitrariness: certain
group of magistrates (usually with imperium) had ius pignoris capionis; a pledge was seized in case of disobedience
to magistrate’s order or his personal insult, in case of unlawful capture of the state property. All this procedures
carried out in extrajudicial form according to magistrate’s decision. A pledge was usually returned to owner after the
execution of magistrate’s order otherwise it could be destroyed. But with the lapse of time destruction of pledge was
used rarely and interpreted like exceptional measure. During the Principate orderliness of pignoris capio was
continued that led to the limitation of the highest possible rate of captured pledge at least for aediles44. The general
trend of the pignoris capio development was the gradual limitation and integration with the legal system. According
to this step by step it was losing autonomy and features of arbitrariness which were inherited from the archaic times.
From the opposite side pignoris capio was an important legal instrument in the hands of the magistrates. And
this provides some kind of balance. It means that magistrates could use pignoris capio to provide appropriate
execution of their duties. Magistrates obtained coercitio and so they could exert pressure on the roman citizen by the
several measures including pignoris capio. Simply it worked like this: if someone ignored his public duties society
enforce him with the help of its representatives – magistrates.
Further it is necessary to speak about pignoris capio of Roman magistrates during the Imperial period. The
main sources here are the Digest, Theodosian and Justinian Code.
The nature of Roman magistracy changed really significant but the certain group of magistrates still had the
right for the pledge seizure. Above-mentioned sources allow us to form some general notion. Several officials used
this right: praetors, curators, praesids and procurators of provinces who in their term delegated this authority to
curiales and praefectus pacis45. The lowest magistrates needed permission (auctoritas) of the province’s
administration for seizure of pledge for the lack of appropriate jurisdiction.

44
Tacitus. Ann. XIII.28. Cohibita artius et aedilium potestas statutumque, quantum curules, quantum plebei pignoris caperent vel
poenae inrogarent.
45
C.I. VIII.13.11 (February 28, 293) emp. Diocletianus, Maximianus.
 8
Ius pignoris capionis of Roman magistrates acquired universal characteristics, i.e. it started to be used both in
the public and private law and in codification of Justinian we can see pignoris capio as a systemized legal
instrument.
In the private law practice the most widespread was pignus in causa iudicati captum46. The distress in this case
had a supplementary nature, but the principles of functioning remained the same like in the ancient times47. Moreover,
probably non-execution of judgment could be interpreted like insubordination to magistrate’s person and pignoris capio
remained the mean of ensuring magistrate’s decisions48. And like in previous periods of roman history pignoris capio
was closely connected with imposition of a fine. At least formula pignus aut/et multa was constant during the several
centuries of the roman history.
Most likely that pignus in causa iudicati captum was also widely used during the period of Principate and
majority of emperors’ constitutions concerning this question are dated the 3rd century A.D. It is necessary to notice that
even in these constitutions mentioned that also earlier different emperors paid their attention to this question.49 So we
can be absolutely sure that the procedure of pignus in causa iudicati captum formed not later than in the beginning of
the 3rd century A.D. The most detailed it was described in the 1st title of the 42nd book of the Digest “Concerning res
iudicata and the effect of decisions, and interlocutory decrees” and in the 22nd title of the 8th book of the Justinianian
Code “If any property is seized to enforce a judgment”50.
Officials executed judgment and if a debtor dragged out pay-off, magistrates could seize a pledge to execute
judgment as fast as it was possible. If this measure appeared ineffective the pledge would be sold in two months51. The
term of payment was defined according to property status of defendant, and if there were some forcible arguments this
term could be changed. The sale of pledge should be produced by the stuff of the judge but not by the person for the
benefit of whom this judgment was delivered52. If there was no opportunity to sell the pledge it could be turned over to
creditor53. And if creditor accepted possession of the pledged property, by this way concluded some kind of amicable

46
Dienstag P. Die rechtliche Natur des pignus in causa judicati captum. München. 1908.
47
Street T.A. The Theory and Development of Common-Law Actions. Washington. 1999. P. 281.
48
Dig. XXV.4.1.3 … pignoraque eius capienda et distrahenda, si contemnat, vel multis coercenda.
49
For example: С.I. VIII.22.1: Emp. Antoninus (July 28, 213, Rome) – to Gabinius. Res ob causam iudicati eius iussu, cui ius
iubendi fuit, pignoris iure teneri ac distrahi posse saepe rescriptum est (It has often been stated by rescript that property may be
seized, as a pledge, and sold, to enforce a judgment, by order of the judge who has jurisdiction, for the authority of the one
ordering the seizure takes the place of a just obligation under a contract). Roman jurists Ulpianus and Callistratus also refer to
the some rescript of emperor Antoninus Pius (2nd century A.D.).
50
C.I. VIII.22 Si in causa iudicati pignus captum sit; Dig. XLII.1 De re iudicata et de effectu sententiarum et de interlocutionibus.
51
Dig. XLII.1.31 Callistratvs libro secundo cognitionum. Debitoribus non tantum petentibus dies ad solvendum dandi sunt, sed
et prorogandi, si res exigat: si qui tamen per contumaciam magis, quam quia non possint explicare pecuniam, differant
solutionem, pignoribus captis compellendi sunt ad satisfaciendum ex forma, quam Cassio proconsuli divus Pius in haec verba
rescripsit: 'His, qui fatebuntur debere aut ex re iudicata necesse habebunt reddere, tempus ad solvendum detur, quod sufficere pro
facultate cuiusque videbitur: eorum, qui intra diem vel ab initio datum vel ex ea causa postea prorogatum sibi non reddiderint,
pignora capi eaque, si intra duos menses non solverint, vendantur: si quid ex pretiis supersit, reddatur ei, cuius pignora vendita
errant (Callistratus, Judicial Inquiries, Book II. Time for payment should not only be granted to debtors who request it, but it
should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than
because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim,
according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, "Time for payment should be
granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as
appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or
after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two
months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution."); C.I.
VIII.22.1 (213) emp. Antoninus.
52
C.I. VIII.22.2 pr. (223) emp. Alexander Severus to Valerian. Cum in causa iudicati aliqua res pignori capitur, per officium eius
qui ita decrevit venumdari solet, non per eum, qui iudicatum fieri postulavit. (When property is levied on by reason of a
judgment, it is usually sold by the official staff of the judge who makes the order, not by the man who asks that the judgment be
enforced.)
53
C.I. VIII.22.3 (239) emp. Gordianus to Antizonus. In causa iudicati pignora ex auctoritate praesidis capta potius distrahi quam
iure dominii possideri consuerunt. si tamen per calliditatem condemnati emptor inveniri non potest, tunc auctoritate principis
dominium creditori addici solet. (Property levied on, to enforce a judgment, by the authority of the president, is generally sold
 9
adjustment. And even if pledge was less than the sum of the debt, according to Ulpianus opinion, creditor could not
demand remained debt54. Defendant always had an opportunity to redeem a pledge, but only if it had not been yet sold
or was not given into the property of the creditor. It was appointed at first to seize movable property as a pledge then
immovable and only after that – obligations55. Even incomes from the awards could be in causa iudicati captum56.
Moreover, a pledge could be seized even if defendant’s money were in the keeping of the bankers. One of not
numerous exceptions was military stipendia – from these funds it was prohibited for officials to seize the pledge57.
Officials were responsible by their own property for the safekeeping of the seized property.58 And if this
property was returned to the owner defective he could bring an action according to lex Aquilia59.
Concerning the public law of the Late Roman Empire we can notice that significant spreading had seizure of
pledge from the debtor of fiscus60. Like in the ancient times agricultural animals and slaves seized as pledge in the first
place. This measure still seemed efficient for the provincial administration. Agricultural population was the main
taxpayer and there were nothing more effective to stimulate them to the payment than the loss of the means of
production. But from the opposite side widespread use of this measure by the rectors of provinces and their assistants
led to the significant losses for the fisc. As the result of the means of production loss agricultural population became
unable to pay at all. Because of this in 315 A.D. emperor Constantine forbad rectors of provinces and their stuff to
capture agricultural animals as a pledge in case of tax delays because it could become a reason of rather more
significant deliquesces of tax payments61.

rather than seized to be held by right of ownership. But if no purchaser can be found through trickery of the judgment debtor,
ownership of the property is usually assigned to the creditor by authority of the emperor.)
54
Dig. XLII.1.15.3.
55
Dig. XLII.1.15.2 In venditione itaque pignorum captorum facienda primo quidem res mobiles et animales pignori capi iubent,
mox distrahi: quarum pretium si suffecerit, bene est. Si non suffecerit, etiam soli pignora capi iubent et distrahi. Quod si nulla
moventia sint, a pignoribus soli initium faciunt: sic denique interloqui solent, si moventia non sint, ut soli quoque capiantur: nam
a pignoribus soli initium faciendum non est. Quod si nec quae soli sunt sufficiant vel nulla sint soli pignora, tunc pervenietur
etiam ad iura. exsequuntur itaque rem iudicatam praesides isto modo. (Hence, in the judicial sale of anything which has been
taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well
and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no
movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no
movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not
sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus
that the Governors of provinces execute judgment.)
56
Dig. XLII.1.40
57
C.I. VII.53.4: (June 3, 216). Emp. Antoninus to Marcellus, a soldier. Stipendia retineri propterea, quod condemnatus es, non
patietur praeses provinciae, cum rem iudicatam possit aliis rationibus exsequi. (The president of the province will not allow your
salary to be detained to satisfy a judgment against you, so long as he is able to compel it to be satisfied by some other method).
58
For more details see: Корбино А. Место Lex Aquilia в римском учении об ущербе // Древнее право. Ius antiquum. 2007.
№ 1 (19). С. 37 – 44.
59
Dig. IX.2.29.7 Magistratus municipales, si damnum iniuria dederint, posse Aquilia teneri. Nam et cum pecudes aliquis pignori
cepisset et fame eas necavisset, dum non patitur te eis cibaria adferre, in factum actio danda est. Item si dum putat se ex lege
capere pignus, non ex lege ceperit et res tritas corruptasque reddat, dicitur legem Aquiliam locum habere: quod dicendum est et si
ex lege pignus cepit. Si quid tamen magistratus adversus resistentem violentius fecerit, non tenebitur Aquilia: nam et cum pignori
servum cepisset et ille se suspenderit, nulla datur actio. (Municipal magistrates who have committed wrongful damage can be
held liable under the Lex Aquilia; for where any of them has taken cattle of yours in execution, and allows them to die of hunger,
by not permitting you to give them food an action in factum should be granted. Moreover, where he thinks that he is levying an
execution in accordance with law, but does not actually do so, and restores the property worn out and ruined, it is held that the
Lex Aquilia will apply; and this, indeed, can also be stated where the execution was levied in compliance with the law. Where,
however, a magistrate committed violence against a party who was resisting, he would not be liable under the Lex Aquilia, for
when one took a slave in execution and the latter hanged himself, no action was granted.)
60
To this question devoted C.I. X.21. De capiendis et distrahendis pignoribus tributorum causa (Concerning the seizure and sale
of pledges on account of taxes).
61
C.Th. II. 30. 1: (June 2, 315). Emp. Constantinus to all provincials. Intercessores a rectoribus provinciarum dati ad exigenda
debita ea, quae civiliter poscuntur, servos aratores aut boves aratorios pignoris causa de possessionibus abstrahunt, ex quo
tributorum illatio retardatur. si quis igitur intercessor aut creditor vel praefectus pacis vel decurio in hac re fuerit detectus, a
rectoribus provinciarum capitali sententiae subiugetur. (Enforcement officers appointed by governors of the provinces for the
collection of those debts which are demanded in civil proceedings are dragging away from landholdings slave plowmen and
plow oxen as pledges and, as a result, the payment of tribute is being delayed. Therefore, if any enforcement officer or creditor
 10
Pignoris capio could be not only the way of struggle against the tax payment delinquencies. It could be
implemented in case of failure to carry out some civil duty (munus civile) for imperial fisc62. It is necessary to notice
that like in ancient times pledged property did not satisfy debt and in the first place it should be some kind of stimulus
to fulfill a debenture. And only if did not occur, the pledge could be sold in order to discharge a debt63.
Besides the pignoris capio in connection with tax debts (that was the most frequent) the pledge could be seized
from the property of former magistrate if he had not returned any state funds after his retirement64. Like in other cases it
implemented in the extrajudicial order. Notable that if official was exposed as embezzler it should be produced an
appropriate action. But if the issue concerned an ex-magistrate, according to Labeo’s opinion, he was a private debtor
of the fisc. In this case the debt could be exacted by the official with the appropriate authority using seizure of a pledge,
arrest or imposing a fine.
Rather wide was the use of the pignoris capio in the relationships of nominator and nominee for some
administrational position. One of the Deocletian’s constitutions (February 27, 293) tell us that: “It is unlawful for a
party who nominates (a man to an office or position of trust) to seize without the authority of the president the
pledged property of the person nominated”65. A person appointed or proposed someone for municipal post was
responsible for the nominee66. Above mentioned constitution shows that nominator had the right to seize a pledge in
the case of failure to comply with some duties. But we should notice that it was possible only with the sanction of
the province’s administration because an appointment of municipal magistrates as under the jurisdiction of
provincial praeseses and rectors. This system was very advantageous for the state and protected it from the probable
financial losses. Generally this system worked like this: if somebody was appointed for some magistracy or for
execution of some liturgy, he was personally responsible by his own property. For example, if someone was
appointed for collection of military annona but according to some reasons was not able to carry out the liturgy, he
was obliged to pay missing sum from his private assets. Otherwise nominator by himself was to pay all debt to fisc.
Nominator as we see was also responsible by his property, but he had a right to implement pigoris capio against his

or prefect of the peace or decurion should be detected in this practice, he shall be subjected to a capital sentence by the governor
of the province).
Interpretatio. Multi pro fiscali debito servos cultores aut boves aratorios de possessionibus causa pignoris auferre praesumunt, de
quorum laboribus tributa redduntur, et ideo si quis creditor vel curator pacis vel curialis aut quicumque exactor hoc facere
praesumpserit, a provinciae iudice puniatur. (Interpretation: Many persons presume to carry off from landholdings as pledges for
a fiscal debt, slave cultivators and plow oxen from whose labor the tribute is paid. Therefore if any creditor or curator of the
peace or decurion or any tax collector whatsoever should presume to commit this offense, he shall be punished by the judge of
the province).
62
C.I. IX.12.1: (July 1, 205, Rome). Emp. Severus and Antoninus to Pelia. Ob debitum viri vel civile munus res uxoris qui
pignori capiunt, vim contrahere videntur. (Persons, who destrain the property of a wife for the debt or civic obligation of her
husband, appear to commit unlawful violence).
63
C.I. X.21.2: (December 14, 320, Thessalonica). Emp. Constantine to Restitutus, President of Sardinia. Satis sit debitorem
annonarum ad solvendi necessitatem capione pignorum conveniri. (Let it suffice, in compelling a debtor of the provisions-tax
(annonarum) to pay, to seize his property as security).
64
Dig. XLVIII. 13.9.6. Eum, qui pecuniam publicam in usus aliquos retinuerit nec erogaverit, hac lege teneri Labeo libro
trigensimo octavo posteriorum scripsit. Cum eo autem, qui, cura provincia abiret, pecuniam, quae penes se esset, ad aerarium
professus retinuerit, non esse residuae pecunia actionem, quia eam privatus fisco debeat, et ideo inter debitores eum ferri: eamque
ab eo is, qui hoc imperio utitur, exigeret id est pignus capiendo. Corpus retinendo, multam dicendo. sed cam quoquc lex lulia
residuorum post annum rcsiduam esse iussit. (He, also, who retains any public money destined for a certain use and does not
employ it for that purpose is liable under this law; so Labeo says in the Thirty-eighth Book of his Last Works. Anyone who,
departing from the province where he has held office, renders an account to the Treasury of the money remaining in his hands,
and holds it, is not liable to an action to recover the balance, for the reason that he is a private individual indebted to the
Treasury, and therefore should be classed among debtors; and he who is invested with authority can collect it from him, either by
seizing his property, arresting him, or imposing a fine; but the Julian Law orders that, after the lapse of a year, this money shall
be classed as a balance due.)
65
C.I. VIII.13.11: Imperatores Diocletianus, Maximianus Nominatori pignori capere sine praesidis auctoritate res nominati non
licet.
66
About relationships and mutual responsibility of nominator and nominees in details see C.I. V.75 De magistratibus
conveniendis и C.I. XI.36 Quo quisque ordine conveniatur.
 11
nominee to force him for execution of his duties though it was possible only with the sanction of province’s
government which had an appropriate jurisdiction67.
So let me draw a short summary. The history of pignoris capio is really long. This institution was already
known in archaic period in customary law and during the Republic it was used by magistrates with the imperium in
case of their orders neglect, insult to their person or if any threat for public interests took place. Initially pignoris capio
had extrajudicial nature and resembled arbitrariness or personal vengeance. But with the lapse of time institution of
pignoris capio became ordered and got clear juridical borders. Moreover it became universal and used both in private
and public law. Roman officials continued to use pignoris capio along with the fine imposing but they followed clear
procedures. Because of these regulations were limited the terms of seizure, types of property and was assigned
responsibility of official for the safety of the pledge. In the sphere of private law the most widespread was pignoris in
causa iudicati captum. In the public law it was used more often against debtors of fiscus and in the case of non-
compliance with some public duties.

67
The most successive description see in C.I. XI.36.2: Emp. Gordian to Valens.