I. INTRODUCTION

While the Roman law of contracts can be transposed without much difficulty into modern terms, there is in the law of delicts a great deal which is quite foreign to our ways of thought, and even to those of a Roman of the time of Gaius or Justinian.

In any system of law which has not undergone a radical revision or codification there will be fossils—features which reveal and preserve ideas deriving from a way of life which has otherwise disappeared. English law, for example, at the beginning of the nineteenth century contained a great number of such fossils, and, though many have since then been removed by the hand of the legislator, some still survive. In Rome the legislator had, until Justinian’s reign, little interest in such revision of the law, and Justinian himself left much undone.

The most obvious fossils are to be found in the formal acts, such as mancipatio, with its weighing out of uncoined bronze, and the act before the comitia curiata. These are at worst inconvenient and at best picturesque. The fossils to be found in the law of delicts, however, are of a different kind, and affect the character and substance of the law. But here again the most obvious, such as the survival, even in the law of Justinian, of noxal liability or the distinction between manifest and non-manifest theft, are less important than the survival of the principle which underlies them all, the principle of vengeance. The history of this part of the law can be seen as a movement, never completed in Roman times, from the principle of vengeance for an injury to that of compensation for damage done.

Crime and delict. Modern law makes a distinction between, in English terms, a crime and a tort, or more accurately, since the same act (e.g.

theft) may be both a crime and a tort, between the criminal and tortious aspects of an act. Broadly defined, the distinction is between an act which endangers the order or security of the state, and one which is an infringement of an individual’s rights (but is not exclusively a breach of contract). And to the difference in the character of the act there corresponds a difference in the sanction. In a criminal proceeding the primary purpose of the sanction is to punish the wrongdoer, and if there is an incidental benefit to be derived from the punishment, as in the case of a fine, it goes to the state and not to the person, if any, who has suffered from the act; but in a proceeding in tort the purpose of the sanction is normally to compensate the injured party and not to punish the wrongdoer. It is for this reason that a criminal conviction does not normally bar a remedy in tort.

The corresponding distinction in Roman law is between crime, which falls within the province of the public law, and delict, which is a matter of private law. But there is this important difference between delict and tort that the delictal sanction, which originated as a substitute for private vengeance, retained to the very end, though in varying degrees, a punitive character. It is for this reason that, for example, even in the law of Justinian three distinct proceedings could be brought against a thief: a criminal prosecution, a delictal claim for a money penalty to be paid to the victim, and either a claim in rem for the return of the thing or a claim in personam for its value. It is the last two remedies, and not the claim in delict, which correspond to the action in tort. Elsewhere—in the case of wrongful damage to property, for example—there was no separate compensatory remedy and the delictal action served both purposes, but it still retained, as we shall see, some penal characteristics.

It is a comijion generalization that in primitive law the criminal sanction develops later than the delictal (in the sense of the exercise of private vengeance or its substitute).

Whether this was wholly true of Roman law we cannot tell, for already in the Twelve Tables some very serious offences, such as murder, treason and arson, entailed what we should call a criminal sanction, since the penalty (death) was imposed by direct intervention of the public authority without any hint of its being a substitute for private vengeance. But the number of such offences was small, and until the last century of the Republic the law of delict did very largely discharge what we should

consider to be the functions of the criminal law. In the disturbed conditions of the late Republic, however, the private sanction was no longer adequate and there was a rapid expansion of the criminal law. There came thus to be two punitive sanctions for the same act (though of course not every crime was also a delict, nor every delict a crime). This in turn led to a shift of emphasis in the law of delict. In theft, for example, the delictal sanction was probably little used, and in other delicts the law thought increasingly, but never exclusively, in terms of compensation.

Penal character of delictal actions. The Twelve Tables preserve all the different stages in the development of the private penal action which are commonly found in primitive systems, with the exception of group liability—the law of the vendetta—of which there is no trace. Self-help still survives, subject to differing degrees of control. In its crudest form this control amounted to no more than a definition of the circumstances in which a killing should be guiltless. Thus, if a thief came by night or if, even by day, he defended himself with a weapon, the victim of the theft might kill him, provided only that he called out, presumably so that the neighbours might verify the lawfulness of the killing. In the case of the manifest thief—the thief caught with the goods in his hand—the control was slightly more positive.

There was still no trial, since the guilt was plain,¹ but the victim might not wreak his vengeance on the thief until he had brought him—no doubt with the goods still on him— before a magistrate, who had him scourged (here the element of ‘criminal’ sanction intrudes) and then formally assigned him to the victim. In the case of severe bodily harm {membrum ruptum) on the other hand, there apparently was a trial, and the victim was entitled not to the entire physical subjection of the wrongdoer but only to retaliation in kind—the lex talionis. He could indeed accept a money composition, as could the victim of manifest theft, but he could not be compelled to do so. In other delicts, however, this stage of merely voluntary composition had been passed, and the victim was bound to accept a sum of money. This was either an arbitrary amount (300

¹ There is a close parallel here with the ‘hand-having’ thief of Anglo-Saxon law; cf. Pollock and Maitland, History of English Law, vol. ii, p. 579. asses for the breaking of a bone—os fr actum—25 asses for lesser assaults) or a multiple of the loss suffered (twofold the value of the thing for non-manifest theft), or else was assessed by the iudex at the trial. It was only in default of payment that the victim could take execution on the person of the wrongdoer (a proceeding which was indeed open to all creditors at this time).

Delictal actions were classified as penal (ad poenam persequendam) by contrast with all other actions, whether in rem or in personam, which were ad rem persequendam (sometimes rendered in English as ‘reipersecutory’). A reipersecutory action commonly results in the payment of compensation, and a penal action in the payment of more than compensation, but the essential distinction is to be found in the punitive or vindictive character of the penal action. This had four main practical consequences.

If a delict was committed by two or more persons jointly, each was separately liable for the full amount. The purpose of the action being punitive, it was irrelevant that in this way the victim would be paid several times over. Similarly, as we have already seen in the case of the theft, the bringing of a penal action did not bar a reipersecutory action. Again, if the wrongdoer died before the action was brought, it would not lie against his heir: the victim could claim to revenge himself only on the wrongdoer. (In the language of the civilians, the action was ‘passively intransmissible’.) On the other hand, if it was the victim who died, the action normally did lie (it was ‘actively transmissible’), but an exception was made in the case of the action for iniuria,¹ because of its peculiarly vengeful character. Finally, if the wrongdoer was a slave or a son in potestate the action was noxal.² These characteristics were common to all penal actions. In addition, most praetorian penal actions were subject to a limitation period of one year, perhaps on the ground that resentment should in that time have run cold.³

The classification of the Institutes. Justinian follows Gaius in listing only four types of delict: furtum (theft), rapina (robbery), damnum iniuria datum (loss wrongfully caused), and iniuria (insult). The classification is unsatisfactory, both in what it includes and, more particularly, in what it leaves out. On the one hand

¹ See below, pp. 215 ff. ² See below, p. 223.

³ The civil law had, in principle, no limitation period. See above, p. 122. rapina is hardly more than a variety of furtum, and does not deserve a separate mention in so short a list, and on the other hand, while it was reasonable to leave out the many minor penal actions, civil and Praetorian, the omission of the two major Praetorian actions—for dolus (fraud) and metusstyle='font-size:14.0pt'> (duress)—left the student with a quite inadequate picture of the resources of the law.^{^[89]}

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

I. INTRODUCTION

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