Remedies

(b) Criminal proceedings

Then there was, of course, the possibility of laying a criminal charge against the wrongdoer. Whether criminal and civil proceedings could be cumulated was disputed. Carpzov^[5606] and Voet^{[5607] [5608] [5609] were prepared to allow cumulation, but a substantial number of authors argued against it; both actions, the latter argued, were "mere poenalis", and the wrongdoer should not be punished twice on account of one and the}

173

same crime.

(c) Amende honorable

But the latest, and most interesting, addition to the arsenal of remedies was what came to be referred to (particularly in Roman-Dutch law) as amende honorable.¹⁷⁴ Essentially, it constituted an amalgam of three originally distinct institutions. First of all, there was the declaratio honoris: a formal declaration, on the part of the offender, that he had made his allegation in heat and without any intention to defame the other. It had its roots in Germanic customary law.^{[5610] [5611] [5612] Furthermore, there was the notion of recantatio, revocatio or palinodia: the retraction of the defamatory words as being untrue. It had the effect of repairing the injured person's honour and derived from medieval canon law.1 The Church, of course, had jurisdiction over defamation matters ratione peccati, and one of the fundamental prerequisites for the remission of sins in general was restitution: "peccatum non dimittitur, nisi restituatur ablatum.1,177 It was the famous Dominican scholar Albertus Magnus who applied this principle to the sin of defamation, since he argued that restitution of fama was possible:}

"[I]d quod possidetur, invitissime amittitur: fama autem carius possidetur, quam aurum et argentum, ergo invitissime amittitur; ergo videtur quod maxime debet restitui."^[5613]

Based, ultimately, on fundamental precepts of iustitia distributiva,^[5614]the idea of a remedy concerned with restitutio laesae famae commended itself to secular courts and writers and was generally recognized as being moribus recepta.^[5615]

Finally, we encounter the concept of a deprecatio Christiana: an acknowledgement by the person who had committed the iniuria that he had done wrong, combined with a prayer that he may be forgiven. It is obvious that this institution, too, had its origin in the teachings of the Christian Church. As God forgives us, so we are bound to forgive those who trespass against us; but the trespasser, in turn, must repent before a true reconciliation can take place:

"Si quis rixam faciat de clericis aut ministris Dei, hebdomadam dierum poeniteat.

Of these three constituent elements of the amende honorable, the actio ad palinodiam emerged as the dominant ingredient in the course of the late ius commune.¹⁸² How exactly it related to the other two was unclear. According to Stryk,¹⁸³ the declaratio honoris was applicable "quando dubium est, an verba sit injuriosa, et contumeliosa, nee in proferente animus injuriandi liquido apparet", the deprecatio Christi­ana, by and large, in cases of slighter injuries ("quando alter alteri aliquid imputavit quod crimen magnum non importat, aut si eo modo fit improperatio, ut adsit quaedam injuriantis excusatio, vel levior honoris laesio, vel etiam, si injuriae quidem leves non sunt, injurians tamen et injuriatus ejusdem est conditionis, status atque dignitatis"), and the palinodia "quando injuria illata admodum atrox, quae famam honesti viri gravissime violat".

(d) The relation between amende honorable and amende profitable

Controversial, too, was the question whether amende honorable and actio iniuriarum aestimatoria (or, as it was often called, amende profitable) could be cumulated. Since it was obvious that the amende profitable was mere poenalis,¹⁸⁴ the answer depended, in the first place, on the proper qualification of the amende honorable. If it was mere reipersecutoria, the two remedies could be cumulated, but if it also had a penal character, a regime of elective concurrence was bound to be the consequence. In view of the fact that palinodia originally aimed at reparation of the injured party's honour, it is not surprising that the first alternative was favoured by many; particularly in Holland the custom appears to have prevailed to institute an action for honourable and profitable amends at one and the same time.¹⁸⁵ But the second alternative also found its champions.

^1M1 Poenitentiale Viviani, as quoted by Wallenrodt. (1864Ì 3 Zeitschrift for Rechtsqeschichte 265.

^:L Cf.. for example, the discussion by Lauterbach. Collegium theoretico-practkum, Lib. XL VII. Tit. X. XLVII sqq.

^IK3 Vsus modmuts pandectantm. Lib. XLVII. Tit. X. § 30; cf. also Wolter, op. cit.. note 176. p. 73. Leyser. Meditationes ad Pandectas, Spec. DXLIII. I states that there arc no rules specifying which remedy is available when, "sed ex arbitrio judicis pendet".

^1H4Cf. supra, p. 1070 (note 1627.

¹⁸⁵ Voet. Commentarius ad Pandectas, Lib. LXVII. Tit. X. XVII; cf. also Ranchod. op. cit.. note 90. p. 66; De Villiers, op. cit.. note 113. p. 179. function of insisting on recantation was to hurt one's opponent^[5616]—an opinion that found some support in the fact that the circumstances under which the latter was made to repent were often of a somewhat humiliating nature: he had to fall on his knees, appear bare-footed, slap himself on his mouth, or even suffer the sombre presence of a hangman.^[5617]

IV.