Definition
A Latin phrase meaning "by force or secretly" (from *vi aut clam*, "by force or clandestinely"), designating a civil law action available against a person who unlawfully erected or demolished a structure on their own or another's land either by open force or by stealth, and in doing so caused injury to another. The object of the action was twofold: to compel restoration of the affected property to its prior condition, and to recover damages for the harm caused. The phrase *aut clam* is sometimes used as shorthand for the fuller form *vi aut clam*, which identifies the two modes of wrongful conduct the action addressed.
Why It Matters in Research
This term appears almost exclusively in historical and civil law contexts. Researchers encountering *aut clam* or *vi aut clam* in primary sources should understand it as a procedural and remedial concept drawn directly from Roman law — specifically the interdict *quod vi aut clam* found in the Digest (Dig. 43.24) — rather than as a common law cause of action. The distinction matters because English common law did not adopt this action wholesale; Bracton incorporated it into his treatment of English remedies, creating a bridge text that blends Roman and early English doctrine. Sources citing Bracton on this point may appear to domesticate the concept for English law, but later English practice did not sustain a discrete *vi aut clam* action in anything like the Roman form.
Researchers working in early English legal materials, particularly pre-1600 treatise literature, may find *aut clam* invoked analogically rather than as a technically operative remedy. In American sources, the term is essentially absent from case law and appears only in legal dictionaries and civil law treatises discussing Roman or Continental origins. A researcher who encounters it in an American secondary source should treat it as a Roman law reference point, not as a statement of operative doctrine.
The phrase also appears in broader philosophical and canonical discussions of wrongful interference with property — the "force or stealth" dichotomy carried through into natural law writing and early treatises on trespass. Understanding the Roman source (Dig. 43.24) is essential to interpreting any such passage accurately.
Historical Dictionary Support
Burrill's Law Dictionary defines the term through its civil law context, identifying both the conduct addressed (forcible or clandestine building or demolition) and the remedy sought (restoration plus damages), and traces the action to Digest 43.24.1. Burrill also notes that Bracton gave the action a place in his system of remedies — a significant observation because it signals the attempted reception of Roman interdict procedure into medieval English legal thought.
The Digest passage (43.24) establishes the interdict *quod vi aut clam* as addressed to work done on land in defiance of a neighbor's protest (*vi*) or without the neighbor's knowledge (*clam*). The interdict was restitutory rather than purely penal in character, aiming to undo the physical change rather than simply punish the actor. Burrill's entry reflects this accurately.
What historical dictionaries in this tradition tend to understate is the limited operational life of the concept in English law after Bracton. Bracton's reception of *vi aut clam* was part of his broader project of rationalizing English remedies through Roman categories — a project that did not fully take hold in subsequent common law development. Researchers relying solely on Burrill or similar dictionaries may overestimate the doctrine's reach in English or American courts.
Jurisdictional Note
*Aut clam* has no operative common law or statutory counterpart in United States jurisdictions. Its relevance is confined to Roman law scholarship, civil law comparative research, and the interpretation of early English treatise literature, particularly Bracton. Civilian jurisdictions in the Continental tradition may retain analogous remedies under different names.