Roman Law
11/26/2007
Outline
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III. THE POOR AND THE PRAETOR—KELLY’S EVIDENCE
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INIURIA; CALUMNIA; THE POOR AND THE PRAETOR
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1.
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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.”
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2.
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D.47.10.15.16–23 (Ulpian, Edict, book 57)
attemptare pudicitiam
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3.
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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.”
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4.
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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.”
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6.
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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.”
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7.
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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.”
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8.
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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.”
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9.
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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.”
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10.
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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.”
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11.
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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.”
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1.
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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.”
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2.
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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.”
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3.
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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.”
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1.
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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?”
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2.
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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.
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3.
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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.
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