The Edictal Provisions

In the Edict as settled by Julian De Iniuriis is Title XXXV. It contains eight provisions.The last four can safely be described as adjective or procedural: 194, Of iniuriae committed against slaves; 195, Of the actio iniuriarum in noxal form; 196, If an iniuria shall be said to have been committed against one who is in another's potestas; 197, Of the counter- iudiciumfor iniuria.^{[77] [78] For the substance of the category it is the first four which matter: 190, The general edict; 191, Of convicium; 192, Of affronts to sexual propriety; 193, Let nothing be done to cause infamy? The last three are about conduct easily described.}

i. Of convicium (shouted invective)

Convicium is shouted invective. Not every maledictum but the maledic­tion cum vociferatione, with vociferation. Suppose that I stand outside your house and yell out complaints against you: �You're a cheat and a liar!' Or, more specifically, �Just because you own half the town you think you need not pay your bills.' These are convicia. There is no need to multiply examples.

If I did these things I would quickly enough have a crowd around me, and very likely I would prefer to mount the demonstration with some friends rather than in lonely isolation. A case can be made that a crowd, a coetus, is an essential element of a convicium or that it was so at one time. There is a very good reason why that cannot be decided finally. Convicium was just a part of iniuria. Nothing turned on its exact definition. Certainly not in developed law.

The edict promised a trial (iudicium) against anyone who perpetrated or brought about the perpetration of a convicium contra bonos mores, meaning �against decent standards of behaviour'. Its presence shows that some convicia were thought allowable, even when directed at a specific victim.

We do not know whether, when one supposed oneself victim of a convicium contra bonos mores, the formula would allege the matter gener­ally as a convicium or would recite the specific vociferation: �Whereas Numerius Negidius shouted against Aulus Agerius that he was an extor­tionate and corrupt landlord.' Nor do we know whether the words �contra bonos mores' would be inserted or had to be. I think the probability is that the allegation was specific, not general, and that the words contra bonos mores were usual but not necessary. If they did appear they consti­tuted a reference in the demonstratio to a standard apparently distinct from bonum aequum. On closer inspection the two standards would tend to merge in that, under the different words, consonance with prevailing standards must correspond with what a judge thinks decent and fair. Nevertheless, even if the standard was the same in both formulations, the double mention would have the attraction of allowing a formal separ­ation of issues of liability from issues of quantification.

ii.

The Latin rubric is �De adtemptata pudicitia'. It is not easy to translate. Pudicitia is the sense of restraint and propriety in sexual matters which is sometimes referred to as �modesty', though the usage has become old- fashioned. �Chastity' is not quite right. �Of modesty affronted' is probably the safest literal rendering.

The edict envisaged three cases: a) Comitem abducere, removing a companion from a woman, a girl or a boy. The idea is better conveyed by substituting �chaperone' for �companion'. The adult male is tacitly supposed to be the hunter, these others the prey. Left alone by the abducere they are exposed to impropriety, threatened, endangered.

b) Appellare. This is seduction, urging or soliciting sexual intercourse.

c) Adsectari. This is following around after the object of one's desire, dogging their footsteps. It is a familiar enough way of pressing attention on another. In the case of appellare and adsectari the edict again used the phrase contra bonos mores. What was said in relation to convicium applies here too. There were allowable versions of these activities, honourable or even just light-hearted.

The texts are not quite steady on the question whether the gist is affront to feelings or damage to reputation, a narrower base. But I think the classics would certainly have said it was affront.

iii. �Let nothing be done to cause infamy'

Ne quid infamandi causa fiat. We do have a specimen demonstratio for this but unfortunately it is crucially incomplete. It is given in a text from Paul in Collatio, 2.6.5. Daube's reconstruction goes in effect �Whereas Numerius Negidius wore sack cloth and ashes against Aulus Agerius for the sake of infaming him.'^[79] Only sack cloth and ashes is the Biblical, not the Roman, manifestation of grief and mourning. The Roman version is �going unkempt', with your hair unbrushed and beard untended. This case is conspicuous both in Digest texts^[80] and Seneca the Elder.^[81] By traipsing around after someone in mourning clothes one could, according to the other prevailing circumstances, raise an innuendo about that person.

Both examples have in common that they involve conduct other than spoken words, facta not dicta, aimed at bringing infamy on the plaintiff: infamandi causa facta, things done to bring an infamy.

The praetor did not promise a iudicium. He simply said �animadvertam (I shall look into it)', and we are told that this meant there would be a more active than usual inquiry in iure. It is easy to see why. In principle

the edict could be offended by almost any conduct, however lawful on its face, if only a defendant was ingenious enough to make it convey a message about the plaintiff. There is always an argument about the floodgates of litigation, especially when the liability in question is not tied down to a specific type of conduct. The promise to look into the matter before sending it on to trial is probably an answer to that fear.

Daube says that there was another limiting factor.¹¹ The edict was concerned with only very serious forms of defamation. â€?For the sake of infaming’ did not mean just â€?for the sake of damaging reputation' but â€?for the sake of bringing on civil disabilities’. Magistrates could impose disabilities on those who were infames, had incurred infamia, depriving them of citizen rights, as to make a will, to represent and be represented in court. Daube’s view is that the edict intended to remedy only attempts to bring on that technical infamy. However his argument is fragile and has not found support.

The gist is damage to reputation even if not in the aggravated way which Daube maintains. It is useful to recall how defamation and affront relate. Defamation is narrower. One who defames me affronts me, but one who affronts me does not necessarily defame me.

iv. The general edict de iniuriis

This came before the other three. They have been discussed first only because their content is easily captured. The edictum generale made no reference to any specific type of conduct. The only qualification to be put on that is this: the specimen formula under the edict necessarily did recite a concrete case. Its demonstratio described a slap or similar blow on the plaintiff’s cheek: �Whereas Aulus Agerius was struck on the cheek by a fist...’ Hence we know that physical blows fell within this area. But in itself, the example tells us nothing about the limits, about what did not fall within it.

The edict itself contained instructions about how to plead: �Anyone who maintains an actio iniuriarum must say for certain what by way of iniuria has been done and must insert a taxatio (i.e. a maximum award) not less than the sum fixed for vadimonium (security for reappearance)'.^[82]

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Daube (n.8), 47off.

There may also have survived in Julian's redaction of the edict a clause on the lines: �If anyone has suffered an iniuria I will appoint recuperatores to assess an award of damages.' For Aulus Gellius tells us in Noctes Atticae that the praetors stated by edict that they would give recuperatores for the estimation of iniuriae.^[83]

At least in the classical law this category included many more types of conduct than physical blows. That is to say, not only did the general edict embrace and include the other three special edicts, but also it reached many types of wrongful conduct other than, on the one hand, the blows illustrated in its formula and, on the other hand, convicia, adtemptata pudicitia and infamandi causa facta. The classical delict is made up of these four segments, three of which are finite while the fourth, though containing physical injuries, is open-ended. The scope of this compound delict in the classical law is the subject of the next section.

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