The History

The story can be divided into two parts. At a quite early date, probably about 200 bc, the praetor made his first excursion into the field with his edict announcing that he would have iniuriae reckoned up in money awards adjusted to the particular case.

i. The edictal phase

The single question which matters is the relationship between the general edict and the three special edicts. We know that by the early Principate the three were within the one, just special cases identified in a longer list. Labeo is the authority.^[84] Had they always been? Or were they in origin separate wrongs which were brought within the actio iniuriarum by a synthesising jurisprudence? It is obvious that the choice between these two possibilities bears directly on the original nature of iniuria itself, the entity to which, back in 200 BC, the praetor first directed his attention. The very same choice can be re-stated. Was iniuria at first a narrow category dealing with some quite specific type of objectionable conduct? Or was it from the start wide, loose and comprehensive?

There is much to be said for both views. The argument is long and complex. My own preference is for the picture in which iniuria is always wide, and the special edicts always inside it. Most scholars would say the opposite.

The dominant view is that iniuria starts as physical injury, possibly as physical injuries less than wounding. The blow to the face used in the specimen formula thus exemplified the only kind of conduct envisaged by the new estimatory machinery. Then, at some date no later than the early first century bc, convicium and adtemptata pudicitia were recognised as being iniuriae despite being founded on separate edicts.

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There is one thing strongly in favour of this account. In building on an original equation between iniuria and physical assaults, it ties in with the most easily supported view of the pre-edictal content of the delict. As we shall see, there are acute difficulties in accepting the pre-edictal iniuria in any other shape.

Also in its favour is that this pattern of growth is better able to account for the birth of the special edicts. If convicium and the others had always been actionable within the actio iniuriarum, would the praetor ever have needed to pronounce on them? However, this is less strong. In the case of all three special edicts, there is a problem arising from the prima facie lawfulness of at least some of the conduct in question. The use of the words contra bonos mores in two of them show this. Take adtempta pudicitia. You can hear people laughing at the thought of an action for courting. If damages had to be paid for following a girl about, no-one would be safe. The serious implication in this is that the bad case cannot be reached without catching the good too. The edict puts paid to that. It affirms that a line can and will be drawn by the judge's perception of decent standards. Even if the whole story was going on inside the actio iniuriarum this kind of problem would still have needed this kind of solution.

Without forgetting that the pre-edictal history may possibly carry this account over all its difficulties, we can say without unfairness that all the other evidence runs the other way, in favour of a category always broad. It can be condensed into five points: (a) The name �imuria’ and the plural of �actio iniuriarum become more mysterious the narrower is supposed to be the actual content of the category. An �action for grievances (wrongs, complaints, trespasses)' does not suggest a category confined to blows. The edict's injunction to �say for certain what iniuria had been done' reinforces the impression that the content of the action was contemplated as very various. (b) The Rhetorica ad Herennium of about 80 bc tells us that poets reviled from the stage had already in the second century bc been allowed to bring actiones iniur­iarum.^[87] (c) The same book gives a definition of iniuria which makes it include blows, convicia and any turpitude violating another's life, an expression much wider than adtemptatapudicitia.^[88] (d) Servius Sulpicius, praetor in 65 bc and murdered in 43 bc, gave an actio iniuriarum against one who sold a pledge to infame another who owed him nothing.^[89] (e) The Augustan orators and advocates reported by the Elder Seneca appear in their debate not to be discussing Daube's issue, whether actionable infamandi causa facta could be counted as iniuriae, but rather whether conduct ostensibly lawful and indeed duty-bound, mourning a father, could be actionable at all if done to defame.^[90] They seem to know nothing of Ne quid. In debating whether lawful conduct can be actionable, the only head they have in mind is the actio iniuriarum. I mourn my father. I happen to choose to do it wherever you are.

One general consideration can be added to these five points. The other view has to suppose �blows' expanding to capture other wrongs. It is difficult to find a practical reason why that should have been necessary. Reduction of entities is a good in itself, simplifying and enlightening. But it is a good sought by jurists given to reflection and organisation. The end of the second century bc is the wrong time for that kind ofjurisprudence. Hence some practical reason for the assimi­lation of categories has to be found. It is not obvious what it might be. Nor is it clear why the scope of iniuria would have been expanded piecemeal. If, for example, the Greek notion of hubris had caught the juristic imagination of this early age, one would have expected the re-alignment of old categories to happen all at once.

So, this is the picture which I make out. The praetor said you could sue for damages for any grievance. The question whether you would get anything was measured by bonum aequum, the standard of decent fairness in the formula. Working out the measure of the award put focus on wounded self-respect and this gave shape and direction to the category. The special edicts were introduced to eliminate doubts and difficulties. They were, so to say, reinforcements inside the one cat­egory, not accessions deprived of once independent existence.

The weakness of this view is the strength of the other. The decem- viral law must now be considered.

ii. The pre-edictal phase

The Twelve Tables are reported to have contained a tariff of responses to blows.

Against one who has injured another’s body, if no agreed settlement is reached, let there be retaliation. [The Latin for this deed is membrum rumpere. Its meaning may have been narrower than in this translation.]

Against one who has broken a bone let the poena be 300 asses where the victim was free, 150 asses where he was a slave. [This is osfrangere; notice these Aquilian verbs.]

Against one who iniuriam alteri faxsit (has committed an iniuria against another) let the poena be 25 asses.

There is no doubt that the jurists later regarded the third of these provisions as including minor blows. Labeo is reported by Aulus Gellius as having explained the praetor’s intervention by means of a

story of one Lucius Veratius.^[92] With inflation, the fixed penalty became derisory. Lucius amused himself by slapping faces and imme­diately paying out the decemviral poena. His game pointed up the need for awards adjusted to the case. Hence the praetor's estimatory machin­ery. Nobody else mentions Lucius Veratius, but Gaius, in a paragraph which understands inflation solely as growth in real wealth, paints the same picture. It is G.3.223:

The poena for iniuriae under the text of the Twelve Tables was, for membrum rumpere, retaliation, while for a bone broken or crushed it was 300 asses if it was done to a free man and 150 if to a slave; for other iniuriae (propter ceteras vero iniurias) a poena of 25 asses was set up. Those paltry money poenae (istae pecuniariae poenae) seemed suitable enough in that age of extreme poverty.

It is nowhere made clear either expressly or by secure implication that the classical jurists thought that the iniuria provision of the Twelve Tables was confined to physical attacks. It is only certain that they thought it included them. However, the restriction is imposed by another consideration. The character of the decemviral provisions is such that one cannot reasonably accept that they would have embraced a wide variety of conduct in a single term.

If this is right, the �steady state' account of the edictal phase must be wrong. The edictal iniuria must have been an expanding category, beginning from the narrow decemviral category which the praetor first reformed. Is it right?

The mystery of the nomenclature persists. The earlier the date the less time and scope there is for a technical accident to happen to �un-right'. It is not the easiest act of faith to believe that in the mid-fifth century bc �un-right' would suggest itself to the legislator as a suitable word for �body blow'. It is not impossible though. If it were, scholars would never have accepted the equation.

It is impossible to take what at first sight seems the easiest way out. That is, knock out the assumption that the decemviri would never have dealt with a variety of conduct under one label. That would mean believing that they offered 25 asses, in value supposed to equal two and a half sheep, for any wrong suffered, any wrong not visited more severely elsewhere in the code. The difficulty of fitting that vague and abstract provision into the character of the Twelve Tables is too great.

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There is one other way. It is possible that, looking back as we might to a period before James VI and I, the jurists themselves did not know with certainty what the old iniuria provision was about. They may have reconstructed its meaning by reference to the specimen formula under the edict de iniuriis and to any other scraps of information. If that happened the continuity between the edictal actio iniuriarum and the iniuria provision of the Twelve Tables may be imaginary, the invention of a later age. This kind of thing does happen. The English action on the case, matrix of the modern common law, was found an origin in ch. 24 of the Statute of Westminster, 1285. Everyone believed it. Till Plucknett showed that the story could not quite be made to knit together.^[93]

There is a different reconstruction which I have proposed.^[94] It focuses on os frangere. The Twelve Tables fixed poenae for breaking bones. What if someone retaliated in kind, ignoring the fixed sums? That would be wrong but less so than an act of first aggression. For membrum rumpere it remained the proper course, in the absence of agreement. It is possible that the poena of 25 was intended to cover the case of wrongful retaliation. This version would still have room for Lucius Veratius, albeit one less debonair. When the bronze as lost its value, a victim would be found who would tender the 25. That way, threatening immediate retaliation, he stood some chance of getting more than the no less depreciated 300 which the statute offered for his broken leg.

This too may be fiction. But so also may be the other story. It is a question whether the obscure pre-edictal history ought to be allowed to mould our impression of the edictal period. If it is discounted altogether, the steady-state account of the run-up to the classical law is preferable. If it is not, the other may be better. My own view is that it is not. I do not believe that the actio iniuriarum was ever �the claim for bodily attacks'.

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