Some Ancillary Features

i. Recollections in tranquillity

At home after a long day you might be able to recall a dozen iniuriae which caused you a moment's irritation, or might have done if you had the time and inclination.

The rule is summed up in these words: Haec actio dissimulatione aboletur, this action is extinguished by dissimulation. What exactly is the dissimulation envisaged? You smart, but you pretend not to be angry. As at the dinner party just mentioned. That would often be the proper course. To penalise that difficult dissimulatio would encourage a lack of restraint. The pretence which the rule aimed at was more likely that induced by the recollection of an opportunity to claim damages. The temptation would be, to pretend that one had not been indifferent or complaisant.

ii. A year to sue

The defendant could, and no doubt would if there was room on the facts, get an exceptio annalis inserted in the formula. It would make the order to condemn conditional on there having been less than a year since the action could have been brought. According to the words of his exceptio, the time runs not from the event but from the potestas experiundi, the possibility of suing. This can be tied into contumelia, with the last rule just discussed.

iii. The counter-iudicium

The actio iniuriarum was itself a means of bringing infamy on the defendant. If he was condemned he became officially infamis. That was right enough. But if the plaintiff lost, the defendant would have suffered some preparatory dishonour. Before the praetor he could ask to have attached to the plaintiff's formula a further clause requiring the judge to condemn the plaintiff, if he did not win, for one tenth part of the amount he had claimed. This was only one of a variety of measures which a defendant could use against vexatious or foolhardy litigation.

iv. The lex Cornelia de iniuriis

This was one of Sulla's criminal statutes. It allowed a person guilty of certain grave iniuriae to be charged before a quaestio, a criminal court. There were three cases: verberare, pulsare, vi domum introire. The first two are varieties of beating up, the line being none too easy to draw between them. The third is violent intrusion into someone's home. The exact relationship between the lex and the ordinary actio iniuriarum is not clear. It has been suggested that the lex displaced the actio iniuriarum from its three cases, but Gaius certainly does not think so, since his first examples are types of beating and he never says that the plaintiff could only complain under the lex.²⁷ In the Digest the expo­sition of the lex is incorporated into his exposition of iniuriae.²⁸ It may be that the statutory action was not criminal in any sense, except that it was heard by the quaestio. That is, just an actio iniuriarum with proced­ural modification and reinforcement.

v. Dependent persons

(a) Iniuria to children in potestate (in paternal power). Suppose that someone made improper advances to your daughter or struck your son. The normal rule was that they could not sue themselves.

G.3.220.

²⁸ D.47.10.5 (Ulpian, 56 On the Edict).

(b) Iniuria through children in potestate. There is nothing artificial in saying that an attack on your children is an attack on you too. You suffer, and not vicariously. Mistreatment of a daughter for example is as much an iniuria to the father himself as would be for instance a violent entry into his home. There is no comparison intended here between the home and the girl: the point is that the iniuria is equally direct in both cases. So the paterfamilias here has an action filiae nomine and another suo nomine, one for his daughter and one for himself. Whether the two counts could be combined in the one formula I am not sure.

Suppose an emancipated son finds that his parents have suffered an outrage. Their home has been broken into and they have been mis­treated. Can he sue for the outrage to himself? Sons do suffer in such circumstances. So also wives when husbands are attacked. The answer is that nature is not given full reign. The law imposes artificial restric­tions. Subject to one exception, only the paterfamilias can sue under this head. The exception is the husband where his wife, not being in his potestas, is wronged.

My daughter is married to Titius. He is sui iuris. She is still in my potestas. She was married sine manu. She suffers a wrong. There is the count for herself. I must deal with that, as her paterfamilias. And I have a count for myself. So I have two. Then Titius, her husband, has a claim for himself. He is sui iuris. He brings that himself. The wrongdoer pays three awards.

(c) Iniuria to slaves. All issues of economic loss are taken care of under the lex Aquilia. They can be ignored here. Then, many events which would be iniuriae to free persons are permissible in relation to slaves.

The edict contained a special provision. It promised a iudicium against anyone who flogged another's slave contra bonos mores or put him to torture without the owner's consent. Further, for anything else done to a slave, the praetor would send it on to trial if that seemed the right course after examination of the case. It is this edict which gives Gaius the occasion for his one explicit reference to contumelia. According to his analysis the action under this edict is to be regarded as domini nomine.

It is the second of the two things discussed in relation to children.²⁹ There is no such thing as an iniuria to the slave himself and therefore no action servi nomine. The passage is G.3.222:

To a slave himself no iniuria is held to be committed. The wrong is understood to be committed to his master through him. The modes by which this can happen are not the same as those which result in one suffering iniuria through our children and wives. Instead, only when something rather grave is done, of a kind to be clearly in contempt of the master. As where someone flogs another’s slave. For that case there is a published formula. But there is no such published formula for shouting at or punching a slave. Nor is one lightly given to a plaintiff who petitions for one.

On this analysis the edict has nothing to do with any vestigial humanity of the slave. It is not protecting him at all, except fortuitously. The outrage is to the master, a usurpation of his right to decide how his slaves shall be punished.

There is another case in which the slave is not made to suffer, or not unduly, but is made the vehicle for an attack on the master. Episodes of this kind would usually fall under Ne quid, deeds done to defame. Suppose the slave is compelled to behave absurdly in public or com­manded not to go about the business on which he has been sent. Such antics can be used to make it plain that the master is a person of no account. Similarly, a convicium directed in substance at the master might be uttered at his slave. In such cases there would be no need for the special edict.

29

Above, 245.