Roman Law
11/26/2007
Outline

 

I. INIURIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. CALUMNIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. THE POOR AND THE PRAETOR—KELLY’S EVIDENCE

 

INIURIA; CALUMNIA; THE POOR AND THE PRAETOR

 

1.

D.47.10.15.3 (Ulpian, Edict, book 57)

“One who is said to have loudly shouted at someone (convicium cui fecisse) contrary to sound morals or one through whose efforts such shouting is effected contrary to sound morals, against him I will give an action.”

2.

D.47.10.15.16–23 (Ulpian, Edict, book 57)

attemptare pudicitiam

3.

D.47.10.15.27–8 (Ulpian, Edict, book 57)

“Let nothing be done for the sake of defaming. If anyone acts to the contrary, I will deal with it according to the nature of the issue.”

4.

D.47.10.15.34 (Ulpian, Edict, book 57)

“Where a man shall be said to have thrashed another’s slave or to have submitted him to torture, contrary to sound morals, without the to me in the action for insult.”

6.

D.47.10.11.9 (Ulpian, Edict, book 57)

“9. There can be no doubt that the action is available to one alleged to be a slave but who maintains his free status against the man who declares himself his master. This is true whether the prospective plaintiff is being claimed from liberty into slavery or himself is asserting his freedom out of slavery. For here we make no distinction.”

7.

D.47.10.13.7 (Ulpian, Edict, book 57)

“7. If someone prevent me from fishing in the sea or from lowering my net (which in Greek is sagene), can I have an action for insult against him?  There are those who think that I can. And Pomponius and the majority are of opinion that the complainant’s case is similar to that of one who is not allowed to use the public baths or to sit in a theater seat or to conduct business, sit or converse in some other such place, or to use his own property; for in these cases too, an action for insult is apposite. The older jurists, however, gave a tenant, assuming that he was a state tenant, the interdict since there is a prohibition on the use of force to prevent a tenant enjoying what he has hired. Now what are to say if I forbid someone to fish in front of my house on my approaches (praetorium)?  Am I or am I not liable to the action for insult?  In this context, it has been frequently stated in rescripts that the sea and its shores, as also the air, being common to all, no one can be prohibited from fishing; no more can a person be from fowling, unless it be a case where he can be barred from entering another’s land. However, the position has been adopted (by landowners), although with no legal justification, that one can be banned from fishing before my house or my approaches; hence, if someone be so barred, there can, in those circumstances, be an action for insult. But I can prohibit anyone from fishing in a lake which I own.”

8.

D.43.8.2.9 (Ulpian, Edict, book 68)

“9. If anyone is prevented from fishing or navigating in the sea, the interdict [to prevent things being done in public ways or places] will not serve him, any more than it will the person who is prevented from playing on the public sports ground, washing in the public baths, or being spectator in the theater. In all these cases, an action for injury must be employed.”

9.

D.19.1.25 (Julian, Digesta, book 54)

“The buyer of grapes on the vine, if he should be prevented by the seller from gathering the grapes and then sued for their price, may employ against him the defense ‘unless the money in question is sought for something sold and not delivered’. However, if after delivery he should be forbidden to tread the crop of grapes or to take away the unfermented wine, he may bring an action for production (ad exhibendum) or for insult, just as if he were forbidden to take away any other property of his.”

10.

D.47.10.18.4 (Paul, Edict, book 55)

“But when someone thinks a son-in-power to be a head of household, he cannot be regarded as insulting the son’s father any more he insults her husband when he thinks a woman to be a widow; for no insult is directed to their person, and there can be no transferring of the imputation to them from the person of the son since the intention of the insulter (affectus iniuriam facientis) is directed to the son as being a head of household.”

11.

47.10.15.15 (Ulpian, Edict, book 57)

“If someone accost maidens, if, moreover they be in slave’s garb, his offense is regarded as venial, even more so if the women be in prostitute’s dress and not that of a matron. Still if the woman be not in the dress of a matron and someone accost her or abducts her attendant, he will be liable to the action for insult.”

 

1.

GI.4.171–3:

171. Rash litigation (temeritas agentium, restored from JI.4.16.pr–1) on the part of both plaintiffs and defendants is restrained in some cases by a pecuniary penalty, in some by the sanctity of an oath, and in some by fear of infamy. ... [approximately 25 illegible letters]. Restraint by pecuniary penalty is exercised on defendants in certain cases by the liability in the action being doubled if liability is denied: examples are an action on a judgment debt, or on a payment by a sponsor, or for wrongful damage to property, or on a legacy left by damnation. In certain other cases there is permission to enter into a sponsio, as in the actio certae creditae pecuniae and the actio de pecunia constituta, sponsio being in the former action for one third and in the latter for one half. 172. But where the defendant is subjected to the risk neither of a sponsio nor of double damages, and the action is not one which from the very outset is for more than simple damages, the praetor permits an oath to be exacted from him to the effect that he is not denying liability vexatiously. Hence, though heirs and those standing in the place of heirs are liable to no pecuniary penalty (?) and women and pupils are excused from the risk of sponsio, the praetor nevertheless requires them to take the oath. 173. Actions which from the outset are for more than simple damages are, for example, the actio furti manifesti for fourfold, that for furtum nec manifestum for twofold, those for furtum conceptum and furtum oblatum for threefold. For in these cases and in some others the action is for more than simple damages, whether the defendant denies or admits liability.”

2.

GI.4.174–81:

174. Vexatious litigation (calumnia) on the part of plaintiffs is also subject to restraint, sometimes by a iudicium calumniae, sometimes by a iudicium contrarium sometimes by an oath, sometimes by a counter stipulatio. 175. The iudicium calumniae is allowed in response to any kind of action; it is for a tenth of the amount claimed, except that against an assertor of another’s liberty it is for a third. 176. Defendants are free to choose between resorting with a iudicium calumniae and exacting an oath that the action is not being brought vexatiously.  177. A iudicium contrarium exists only in certain cases-where the action is an actio iniuriarum, or where a woman is sued on the allegation that, having been put in possession on behalf of her child in utero, she has fraudulently transferred possession to someone else, or when an action is based on the allegation that the plaintiff was sent into possession by the praetor, but was not admitted by the defendant. The action is for a tenth when it is in face of an actio iniuriarum, but for a fifth in face of the two other actions mentioned. 178. The restraint exercised by a iudicium contrarium is the more severe. For in the iudicium calumniae a man is not condemned in the tenth unless he knows he is suing unjustifiably and has brought the action merely in order to annoy the other party, trusting for success to some mistake or injustice on the part of the iudex rather than to the true merits of his case. For calumnia, like furtum, depends on intention. On the other hand, in a iudicium contrarium a plaintiff who has lost his action is condemned in all cases, even if he mistakenly believed his suit to be justifiable. 179. Naturally in those cases in which a iudicium contrarium is possible a iudicium calumniae is also open; but one may bring only one or other. Upon the same principle, if an oath disclaiming calumnia has been exacted, just as a iudicium calumniae is not allowed, so the iudicium contrarium ought not to be. 180. In some cases a penal counter-stipulatio is entered into; and just as in a contrarium iudicium a plaintiff who has lost his case is invariably condemned, without inquiry as to whether he was aware that his suit was unjustified, so here, if he has failed in his suit, he is invariably condemned in the penal sum of the counter-stipulatio. 181. A plaintiff who incurs the penalty of a counter-stipulatio is not faced with a calumniae iudicium, nor is he required to take the oath. And in such a case a contrarium iudicium is clearly inapplicable.”

3.

D.3.6.1 (ULPIAN, On the Edict, book 10):

“An actio in factum is available against a person who is alleged to have received money to bring or not bring a lawsuit with vexatious intent. Within the year it is for four times the sum he is alleged to have received after a year for the simple amount. 1. Pomponius writes that it is not only in civil cases but also with criminal offenses that this action has to do, especially as anyone receiving money to bring or not bring a lawsuit vexatiously is also liable under the lex repetundarum.”

 

1.

A minor rhetorician of the first century of our era named Asconius reports that the censors excluded a man named Antonius (not the Antonius) from the senate in 70 B.C. because he had “ripped off allies of Rome, refused judgment, sold off land because he was deeply in debt, and did not have control over his goods.”  Since there were wealth criteria for membership in the Senate, the last two would seem to have been sufficient reason for the action all by themselves. The first would probably be sufficient reason all by itself.  The question is what does iudicium recusare mean?  The term appears quite frequently in the Digest and also in Cicero. It seems to have a technical meaning, and it refers to a procedure somewhat like a common-law demurrer. One refuses to enter into a litis contestatio on the ground that the plaintiff has not stated a cause of action. As is the case in much of the old procedure, we are not fully informed as to what happens if the defendant guesses wrong.  It probably led to a missio in possessionem. What we do know is that doing it wrongfully could lead to infamia. Now, I must confess that I do not understand why Kelly (who says all of these things) automatically assumes that Antonius had done something more, had physically resisted a summons. His evidence for this is a joke, a scene in Plautus’s Poenulus where the putative defendant in a case says that he’ll hang himself rather than going to law, and one of the characters doing the summoning asks him if he is refusing judgment. If I’ve got it right, we can put the joke into our own terms by imagining a scene in which a process-server shows up, the potential defendant says “don’t give that to me; I’ll shoot myself if you do” and the process-server says “Are you demurring to the pleadings or demurring to the evidence?”

2.

The second scene may or may not be historical—both have been argued. It appears in Seneca’s Controversiae (10.1.30), though it seems to refer to an earlier period. (p. VII.B.25)  A poor man’s father has been murdered. The father had been overly frank in his speech and had offended a rich man. The son suspected the rich man of having had his father killed. The son follows the rich man around in mourning clothes. The rich man finally turns on the poor man and says “If you think I killed your father, why don’t you prosecute me?”  “What me, the poor man says, a poor man prosecute a rich man?”  Later in describing what had happened to crowd, the poor man makes clear that the rich man thinks of himself as being above the law. His threat was, he says: “What would I not dare to do to you if you accused me, when I had a man  killed who only had a quarrel with me?”  The follow-on of the story is interesting. The poor man succeeds in persuading the crowd that the rich man is a murderer and he is defeated in an election. The rich man then turns around and sues the poor man for iniuria.

3.

I agree with Kelly that much in the Roman law of iniuria reflects shaming practices that are used to bring social pressure on people who cannot be reached in another way. It may well be that the actio iniuriarum was expanded to cover just these situations. I also agree with Kelly, though he does not make as much of it as I would that the existence of such practices cuts in two different directions. It shows, in the first place, that social sanction could be a powerful force, particularly in the Rome of the late Republic. It also shows that the praetor was making efforts to move the action off the streets and into the courts. Notice how Paul says in D.47.10.18.1 says: “It would not be right and proper that a person should be condemned for putting to shame a wrongdoer; for the sins of those who do wrong should be noted and noised about.”  Whether that means that upper-class values would then prevail is a matter about which one may argue.

 

 

Download this outline.


[Home Page] [Syllabus] [Announcements] [Lectures]

Please send comments to Rosemary Spang

URL:  http://courses.law.harvard.edu/faculty/cdonahue/courses/rlaw/c21.out.html
last modified:  12/14/08

Copyright © 2007. Charles Donahue, Jr.