Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book LVI. Something done contrary to law is designated an injury, for everything which is illegal is held to be injurious. This, generally speaking, is the case, but, specifically, an injury is defined to be an insult. Sometimes, by the term “injury” damage caused by negligence is meant, as we are accustomed to state in the Aquilian Law. At other times, we call injustice an injury, as where anyone has rendered a wrongful or inequitable decision, and this is styled an injury because it is in violation of law and justice as not being legal. The term “insult” is derived from the verb “to despise.” 1Labeo says that an injury can be caused by a thing, or by words. By a thing, when the hands are employed; by words, when the hands are not used, and the outrage is committed by speech. 2Every injury involves either the person or the honor of him who is the object of it, and has a tendency to render him infamous. It is directed against the person, when he is beaten; against his honor, when a matron is deprived of her attendant; and it tends to render anyone infamous when his or her modesty is attacked. 3Again, an injury is committed against anyone by a person himself, or by others: by the person himself, where it is committed directly against the head, or the mother of a family; by others, where it is committed indirectly, as for instance, against my children, my slaves, my wife, or my daughter-in-law. For injury concerns us when it is directed against those who are subject to our authority, or are entitled to our affection. 4If an injury is perpetrated against the body of a deceased person, of whose estate we are the heirs, or the prætorian possessors, we can bring an action for injury in our own name; for an injury committed in this manner involves our reputation. The same rule applies if the reputation of him whose heirs we are is attacked. 5Moreover, any injury committed against our children is an attack upon our honor; so that, if anyone sells a son with his own consent, his father will be entitled to an action for injury in his own name, but the son will not, because no injury is committed against one who consents. 6Whenever an injury is committed against the funeral of a testator, or his corpse, and this is done after the estate has been entered upon, it must be said that it is, to a certain extent, committed against the heir, for it is always to the interest of the latter to protect the reputation of the deceased. If it was committed before the estate was entered upon, the action will rather be acquired by the estate, and transmitted by it to the heir. Finally, Julianus says, there is no doubt that if the body of the testator is detained before the estate has been entered upon, the right of action will be acquired by the estate. He also thinks that the same rule will apply if any injury is committed against a slave belonging to the estate before it has been entered upon, because the right of action is acquired by the heir through the estate. 7Labeo says that if anyone, before the estate has been entered upon, strikes a slave forming part of it, who has been manumitted by will, the heir can bring an action for injury. But if he should be struck after the estate has been entered upon, whether he knows that he is free or not, he can bring the suit. 8But whether he knows that it is my son or my wife, or whether he does not, Neratius says that I will be entitled to this action in my name. 9Neratius also says that from one injury sometimes a right to proceed against three persons will arise, and that the right of action of one is not extinguished by that of another; as, for instance, when an injury has been committed against my wife who is a daughter under paternal control, the action for injury will lie in favor of me, of her father, and of the woman herself.

2 Paulus, On the Edict, Book L. When an injury is committed against a husband, his wife cannot bring the action, because it is proper for wives to be defended by their husbands, and not husbands by their wives.

3 Ulpianus, On the Edict, Book LVI. It is said, by way of reciprocity, that those who can suffer an injury can also commit it. 1There are, however, some persons who cannot do this, for example, a lunatic, and a minor who is not capable of criminality, since they can suffer injuries but cannot commit them; for as an injury can only take place with the intention of him who commits it, and the result will be that such persons, whether they resort to blows, or use insulting language, are not considered to have committed injury. 2Hence, anyone can suffer an injury without perceiving it, but he cannot commit one unless he is aware of it, even if he does not know against whom it is committed. 3Therefore, if anyone strikes another in jest, or while he is contending with him, he will not be liable for committing an injury. 4When anyone strikes a freeman, thinking that he was his slave, he is in such a position that he will not be liable to an action for injury committed.

4 Paulus, On the Edict, Book L. If, when intending to strike my slave with my fist, I should unintentionally strike you, while you were standing near him, I will not be liable for injury.

5 Ulpianus, On the Edict, Book LVI. The Cornelian Law relating to injuries has reference to a person who wishes to bring suit for injury, because he says that he has been struck and beaten, or that his house has been entered by force. It is provided by this law that he cannot, in such a case, preside as judge, who is either the son-in-law, father-in-law, stepfather, stepson, cousin, or is any more nearly connected with the plaintiff by either relationship or affinity, or who is the patron, or the father of any of the abovementioned persons. Therefore, the Cornelian Law grants an action for two causes, namely, where anyone has been struck or beaten, or where his house has been forcibly entered. Hence it is apparent that every injury which can be committed by the hands is included in the Cornelian Law. 1The following difference exists between striking and beating, so Ofilius says: to beat is to cause pain, to strike is to inflict blows without pain. 2We should understand the word “house” to be not merely one which is owned by the plaintiff, but the one in which he resides. Therefore this law will be applicable, whether the aggrieved person lives in his own house, or in one which he has leased, or occupied gratis, or is one where he happens to be a guest. 3When he lives in a house in the country, or one surrounded by gardens, what should be done? The same rule should be adopted. 4If the owner should lease a tract of land, and it is entered by force, the tenant, and not the landlord, can bring the action. 5Where, however, anyone enters the land of another which is cultivated by the owner, Labeo denies that this action can be brought by the owner of the land, under the Cornelian Law, because he cannot have his residence everywhere, that is to say, in all his farmhouses. I think that this law applies to every habitation in which the head of a household resides, although he may not have his domicile there. For suppose someone goes to Rome for the purpose of pursuing his studies, he certainly does not reside at Rome, and still it should be said that if his house is entered by force, there will be ground for the application of the Cornelian Law. Therefore it does not apply to temporary lodgings, or to stables. It is, however, applicable to those who remain in a place for a very short time, although they may not have their domicile there. 6The question is asked, whether the head of a household can bring the action for injury under the Cornelian Law, if a son under his control has sustained an injury. It has been decided that he cannot do so. This rule applies in all cases. The Prætorian Action for injury will, however, lie in favor of the father, and that of the Cornelian Law in favor of the son. 7A son under paternal control can bring the action under the Cornelian Law for any of these reasons, and he need not provide that his father will ratify his act; for Julianus has stated that a son who brings an action for injury under any other law cannot be compelled to give security for ratification. 8By this law, the plaintiff is permitted to tender the oath, in order that the defendant may swear that he has not committed any injury. Sabinus, however, in his work on Assessors, says that even Prætors must follow the example of the law. And this is the fact. 9When a person writes anything for the purpose of defaming another, or composes, or publishes it, or maliciously procures this to be done, even though it may be published in the name of someone else, or without any name, he can be prosecuted under this law, and if he should be convicted, he will be declared incapable of testifying in court. 10He who publishes any inscriptions, or anything else, even if it is written, for the purpose of libelling another, will incur the same penalty, under the Decree of the Senate, as a person will who has caused any of these things to be purchased, or sold. 11Anyone, whether he be free or a slave, who gives information of the guilty party shall be rewarded by the judge in proportion to the wealth of the accused person; and where the informer is a slave, he may, perhaps, be granted his freedom. For why not, if the public welfare is promoted by his information?

6 Paulus, On the Edict, Book LV. This Decree of the Senate is necessary, when the name of him against whom the act was committed is not mentioned. Then, for the reason that proof is difficult, the Senate wished that the crime should be punished by a public prosecution. If, however, the name of the person is mentioned, he can bring suit for injury under the Common Law, for he should not be prevented from bringing a private action because it prejudices a public prosecution, as private interests are concerned. It is evident that if a public prosecution is instituted, a private action must be denied, and vice versa.

7 Ulpianus, On the Edict, Book LVII. The Prætor provides in his Edict as follows: “Anyone who brings an action for injury must state positively what injury was sustained,” because he who brings an action which may render another infamous should not make a vague accusation admitting of a distinction which may affect the good name of another, but he must designate and specify clearly the injury which he alleges he has suffered. 1When it is said that a slave has been killed for the purpose of causing injury, should not the Prætor permit the public action to be prejudiced by the private one of the Cornelian Law, just as if anyone should desire to bring suit, because you gave poison for the purpose of killing a man? He will, therefore, act more properly, if he does not grant an action of this kind. We are, however, accustomed to hold that, in cases which can be publicly prosecuted, we ought not to be prevented from bringing private actions. This is true only where the action which should be publicly prosecuted is not vitally concerned. What, then, must we say with reference to the Aquilian Law, for this action has principally reference to this? The slave who was killed was not the principal object of the action which was brought mainly on account of the loss sustained by his owner; but, in the action for injury, proceedings are instituted with reference to murder and poisoning, for the purpose of inflicting punishment, and not for reparation of damage. But what if anyone should desire to bring the action for injury, because he has been struck on the head with a sword? Labeo says that he should not be prevented from bringing it, as the case is not one which demands public punishment. This is not true, for who doubts that the aggressor can be prosecuted under the Cornelian Law? 2Besides, the nature of the injury which the person suffered must be specifically stated, in order that we may ascertain whether judgment should be rendered against a patron in favor of his freedman. For it must be remembered that an action for injury is, not always but only occasionally, granted to a freedman against his patron, where the injury he has sustained is atrocious; for instance, if it is one which may be inflicted upon a slave. Moreover, we allow a patron to inflict a light punishment upon his freedman; and the Prætor will not receive his complaint as having sustained an injury, unless he is impressed by the atrocity of the act. For the Prætor should not permit the slave of yesterday who is the freedman of today to complain that his master has insulted him, or struck him lightly, or corrected him. It will, however, be perfectly just for the Prætor to come to his relief, if his master has scourged him, or severely beaten him, or seriously wounded him. 3If one of several children, who are not subject to paternal authority, desires to bring suit against his father, an action for injury cannot be rashly instituted, unless the atrocity of the deed should induce this to be done, but certainly those who are under paternal control are not entitled to this action, even if the injury was atrocious. 4When the Prætor says, “Must state positively what injury was sustained,” how should this be understood? Labeo holds that he states anything positively who mentions the name of the injury, without any ambiguity (for instance, “either this or that”), but alleges that he has suffered such-and-such an injury. 5If you inflict several injuries upon me, for example, where a disorderly crowd having assembled, you enter my house, and in consequence I am insulted and beaten at the same time; the question arises, can I bring separate actions against you for each injury? Marcellus, in accordance with the opinion of Neratius, approves of the union in a single action of all the injuries that anyone has suffered at the same time. 6Our Emperor stated in a Rescript that, at present, civil actions can be brought for all kinds of injuries, even such as are of an atrocious character. 7We understand an atrocious injury to be one which is more than usually insulting and serious. 8Labeo says that an atrocious injury is committed with reference to the person, or the time, or the thing. An injury to the person becomes more atrocious when it is committed against a magistrate, a parent, or a patron. With reference to time, when it is committed at the games, and in public, or in the presence of the Prætor, or in private, for he asserts that there is a great difference, as an injury is more atrocious when it is committed in public. Labeo says that an injury is atrocious with reference to the thing, as for instance, where a wound is inflicted, or anyone is struck in the face.

8 Paulus, On the Edict, Book LV. The size of the wound constitutes the atrocity, and sometimes the place where it is inflicted, for example, when the eye is struck.

9 Ulpianus, On the Edict, Book LVII. While we are discussing the point that the injury becomes atrocious on account of the thing itself, the question arises whether, in order for it to be atrocious, it must be inflicted upon the body, or whether it can be such if it is not corporeal, for instance, where clothing is torn, or an attendant is taken away, or insulting language is used. Pomponius says that an injury can be called atrocious without inflicting a blow, the atrocity being dependent upon the person. 1When, however, one person strikes and wounds another in the theatre or in some other public place, he perpetrates an atrocious injury even though it is not serious. 2It makes little difference whether the injury is inflicted upon the head of a household, or on a son under paternal control, for it will be considered atrocious. 3If a slave inflicts an atrocious injury and his master is present, proceedings can be instituted against the latter. If his master is absent, the slave should be delivered to the Governor, who shall cause him to be scourged. 4When anyone makes immodest advances to either a woman or a man, or to a freeborn person, or to a freedman, he will be liable to an action for injury. If the modesty of a slave is attacked, the action for injury can be brought.

10 Paulus, On the Edict, Book LV. The modesty of a person is said to be attacked when an attempt is made to render a virtuous person depraved.

11 Ulpianus, On the Edict, Book LVII. Not only is he liable to an action for injury who commits the injury, that is to say, he who delivered the blow, but he also is included who, either by malice or through his efforts, causes anyone to be struck with the fist, for instance, upon the cheek. 1The action for injury is founded on right and justice. It is extinguished by dissimulation; for if anyone should abandon an injury, that is to say, if, after having suffered it, he does not recall it to mind, and should afterwards repent of having neglected to do so, he cannot revive it. According to this, equity is considered to abolish all apprehension of an action, whenever anyone opposes what is just. Hence, if an agreement with reference to an injury is entered into, or a compromise is made, or an oath is exacted in court, the action for injury will not survive. 2Anyone can bring the action for injury either by himself or by another; as, for example, by an agent, a guardian, or any other persons who are accustomed to act in behalf of others. 3If an injury is committed against anyone by my direction, most authorities hold that both I, who gave the order, and the person who received it, are liable to the action for injury. 4Proculus very properly says that if I hire you to commit an injury, suit can be brought against each of us, because the injury was committed by my agency. 5He says that the same rule will apply, if I direct my son to commit an injury against you. 6Atilicinus, however, says that if I persuade anyone to commit an injury who otherwise would be unwilling to obey me, an action for injury can be brought against me. 7Although the action for injury is not granted to a freedman against his patron, it can be brought by the husband of a freedwoman, in her name, against her patron; for the husband, when his wife has suffered any injury, is considered to bring the action in her name; which opinion Marcellus accepts. I, however, have made a note on him to the effect that I do not think that this applies to every injury. For why should light chastisement of a freedwoman even if she is married, or strong language, which is not obscene, be denied to a person? But if the woman was married to a freedman, we should say that an action for injury ought, by all means, to be granted to the husband against the patron. This is the opinion of many authorities. Hence it is apparent that our freedmen not only cannot bring an action for injury against us for injuries inflicted upon themselves, but not even for such as are inflicted upon those whom it is to their interest should not suffer injury. 8It is clear that if the son of a freedman, or his wife, should wish to bring an action for injury sustained, this ought not to be refused them because the action is not granted to the father or the husband, since they bring suit in their own names. 9There is no doubt that anyone who is said to be a slave and asserts that he is free can bring the action for injury against one who alleges that he is his master. This is true, whether from being free he desires to introduce him into slavery, or whether the slave wishes to obtain his freedom, for we use this law without making any distinction.

12 Gaius, On the Provincial Edict, Book XXII. When an action is brought to reduce anyone from freedom to servitude whom the plaintiff knows to be free, and he does not do this on account of eviction, in order to preserve it for himself; he will be liable to the action for injury.

13 Ulpianus, On the Edict, Book LVII. The action for injury sustained is not granted in favor of, or against an heir. The same rule applies where an injury has been inflicted upon my slave, for, in this instance, the action for injury will not be granted to my heir. But after issue has once been joined, this right of action passes even to successors. 1He who has recourse to a public law is not understood to do so for the purpose of causing injury, for the execution of the law does not inflict injury. 2Where anyone is arrested for not having obeyed the decree of the Prætor, he is not in a position to bring suit for injury founded on the order of the Prætor. 3If anyone should unjustly summon me before a tribunal of the magistrate, in order to annoy me, I can bring the action for injury against him. 4If, when honors are to be conferred, anyone should not suffer this to be done, as, for instance, where a statue, or something else of this kind has been decided upon, will he be liable to the action for injury? Labeo says that he will not be liable, even though he may do this for the sake of insult; for he says it makes a great deal of difference where something is done by way of insult, or where a person does not permit an act to be performed in honor of another. 5Labeo also says that where one person was entitled to an embassy, and the duumvir imposed this duty upon another, the action for injury cannot be brought on the ground of labor enjoined; for it is one thing to impose a duty upon a person, and another to inflict an injury upon him. This rule should be adopted with reference to other offices and duties which are unjustly bestowed. Hence, if anyone should render a decision for the purpose of causing injury, the same opinion should prevail. 6No act of a magistrate performed by virtue of his judicial authority renders the action for injury applicable. 7Where anyone prevents me from fishing, or casting a net in the sea, can I bring the action for injury against him? Some authorities hold that I can do so, and among them is Pomponius. The majority, however, hold that the case is similar to that of a person who is not suffered to bathe publicly, or seat himself in a theatre, or go into, sit down, or associate with others in any public place, or where anyone does not permit me to make use of my own property, for he can be sued in an action for injury. The ancients granted an interdict to anyone who leased these public places, for it was necessary to prevent force from being used against him by which he would be unable to enjoy his lease. But if I prevent anyone from fishing in front of my residence, or farm-house, what must be said? Am I liable to an action for injury, or not? For the sea, as well as the shore and the air, is common to all persons, and it has very frequently been stated in rescripts that no one can be prevented from fishing, or hunting birds, but he can be prevented from entering upon land belonging to another. It has, nevertheless, improperly, and without the authority of law, been assumed that anyone can be prohibited from fishing in front of my residence or my farm-house; therefore, when anyone is prevented from doing so, he can still bring the action for injury. I, however, can prevent anyone from fishing in a lake which is my property.

14 Paulus, On Plautius, Book XIII. It is evident that, where anyone has a private right to any part of the sea, he will be entitled to the interdict Uti possidetis, if he should be hindered from exercising it, as this relates to a private matter and not to a public one, since the enjoyment of a right based on a private title, and not on a public one, is involved; for interdicts have been introduced for private and not for public reasons.

15 Ulpianus, On the Edict, Book LXXVII. The question is also asked by Labeo, if anyone should alienate the mind of a person by drugs, or by any other means, whether there will be ground for the action for injury. He says that the action for injury can be brought against him. 1Where a man has not been beaten, but hands have been threateningly raised against him, and he has been repeatedly alarmed at the prospect of receiving blows, without having actually been struck, the offender will be liable to an equitable action for injury sustained. 2The Prætor says: “I will grant an action against anyone who is said to have abused another, or to have caused this to be done, in a way contrary to good morals.” 3Labeo says that vociferous abuse by several individuals constitutes an injury. 4The expression, “Vociferous abuse by several individuals,” is said to be derived from the terms “tumult,” or “assembly,” that is to say the union of several voices, for where those are united it receives this appellation, just as if someone had said an “assembly of voices.” 5But what is added by the Prætor, that is to say, “Contrary to good morals,” shows that he noted not all the united clamor, but merely that which violates good morals, and which has a tendency to render someone infamous, or detested. 6He also says that the expression, “Contrary to good morals,” should not be understood to refer to those of the person who commits the offence, but, in general, to mean in opposition to the morals of this community. 7Labeo says that the abusive clamor of many voices can not only be raised against a person who is present, but also against one who is absent. Hence, if anyone, under such circumstances, should come to your house when you are not there, a clamor of many voices may be said to have occurred. The same rule applies to your lodging, or to your shop. 8Not only is he considered to have caused a disturbance who has himself uttered cries, but also he who has instigated others to cry out, or who has sent them for that purpose. 9The words, “Abused another,” were not added without a cause, for if the clamor was raised against a person who was not designated, there could be no prosecution. 10If anyone should attempt to incite a clamor against another, but does not succeed, he will not be liable. 11From this it is apparent that every kind of abuse is not the clamor of several voices, but that alone which is uttered with vociferation. 12Whether one or several persons have uttered these expressions in a disorderly crowd, it is an united clamor. But anything which has not been spoken in a tumultuous assemblage, or in loud tones, cannot properly be designated an united clamor, but speech with a view to defamation. 13If an astrologer, or anyone who promises unlawful divination, after having been consulted should say that another was a thief, when in fact he was not, an action for injury sustained cannot be brought against him, but he can be prosecuted under the Imperial Constitutions. 14The action for injury, which is based on general clamor, is not granted either against or in favor of heirs. 15If anyone should speak to young girls who are attired in the garments of slaves, he will be considered to be guilty of a minor offence; and still less, if they are dressed as prostitutes, and not as respectable women. Therefore, if a woman is not dressed as a respectable matron, anyone who speaks to her or takes away her female attendant will not be liable to the action for injury. 16We understand an attendant to mean one who accompanies and follows anyone (as Labeo says), whether it be a freedman or a slave, a man or woman. Labeo defines an attendant to be one who is appointed to follow a person for the purpose of keeping him or her company, and is abducted either in a public or a private place. Teachers are included among attendants. 17He is considered to have a“bducted an attendant (as Labeo says), not where he has commenced to do so, but where he has absolutely taken the attendant away from his or her master or mistress. 18Moreover, he is not only understood to have abducted an attendant who does so by the employment of force, but also he who persuades the attendant to leave her mistress. 19Not only he who actually abducts an attendant is liable under this Edict, but also anyone who addresses or follows one of them. 20To “address” is to attack the virtue of another by flattering words. This is not raising a tumultuous clamor, but is a violation of good morals. 21He who makes use of foul language does not attack the virtue of anyone, but is liable to the action for injury. 22It is one thing to address, and another to follow a person, for he addresses a woman who attacks her virtue by speech; and he follows her who silently and constantly pursues her, for assiduous pursuit is sometimes productive of a certain degree of dishonor. 23It must, however, be remembered that everyone who follows or addresses another cannot be sued under this Edict; for he who does this in jest, or for the purpose of rendering some honorable service, will not come under the terms of this Edict, but only he who acts contrary to good morals. 24I think that a man who is betrothed should also be permitted to bring this action for injury; for any insult offered to his intended wife is considered an injury to himself. 25The Prætor says: “Nothing shall be done for the purpose of rendering a person infamous, and if anyone violates this provision, I will punish him according to the circumstances of the case.” 26Labeo says that this Edict is superfluous, because we can bring a general action for injury committed, but it appears to Labeo himself (and this is correct) that the Prætor, having examined this point, wished to call attention to it specifically; for where acts publicly performed are not expressly mentioned, they seem to have been neglected. 27Generally speaking, the Prætor forbade anything to be done which would render anyone infamous; hence, whatever a person does or says, which has a tendency to bring another into disrepute, will afford ground for an action for injury sustained. Such are almost all those things which cause disgrace; as, for instance, the use of mourning garments or clothing that is filthy, or allowing the hair or the beard to grow, or the composition of poetry, or the publication or singing of anything which may injure anyone’s modesty. 28When the Prætor says, “If anyone violates this provision, I will punish him according to the circumstances of the case,” this should be understood to mean that the punishment by the Prætor will be more severe; that is, that he will be influenced either by the personal character of him who brings the action for injury, or by that of him against whom it is brought, or by the matter itself, and the nature of the injury as alleged by the plaintiff. 29If anyone attacks the reputation of another by means of a memorial presented to the Emperor, or to anyone else, Papinianus says that the action for injury can be brought. 30He also says that he who sells the result of a decision, before any money has been paid, can be condemned for injury, after having been whipped by order of the Governor, as it is apparent that he committed an injury against the person whose judgment he offered for sale. 31Where anyone seizes the property of another, or even a single article, for the purpose of causing him damage, he will be liable to an action for injury. 32Likewise, if anyone has given notice of the sale of a pledge, and states that he is about to sell it, as having received it from me, and does this for the purpose of insulting me, Servius says that an action for injury can be brought. 33If anyone, in order to injure another should refer to him as his debtor, when he is not, he will be liable, to the action for injury. 34The Prætor says: “If anyone is said to have beaten the slave of another contrary to good morals, or to have put him to torture without the order of his master, I will grant an action against him. Likewise, where any other illegal act is said to have taken place, I will grant an action after proper cause is shown.” 35If anyone causes an injury to a slave in such a way as to inflict one upon his master, I hold that the master can bring the action for injury in his own name; but if he did not do this for the purpose of insulting the master, the Prætor should not leave the injury done to the slave himself unpunished, and, by all means, if it was effected by blows, or by torture; for it is clear that the servant suffered by it. 36If one joint-owner beats a slave held in common, it is clear that he will not be liable to this action, as he did this by the right of a master. 37If an usufructuary should do this, the owner can bring an action against him; or if the owner did it, the usufructuary can sue him. 38He adds, “Against good morals,” meaning that everyone who strikes a slave is not liable, but everyone who strikes him against good morals is liable. Where, however, anyone does so with a view to his correction or reformation, he will not be liable. 39Therefore, if a municipal magistrate should wound my slave with a whip, Labeo asks if I can bring suit against him because he beat him contrary to good morals. And he says the judge should inquire what my slave did to cause him to be whipped; as, if he impudently sneered at his office, or the insignia of his rank, he should be discharged from liability. 40“To beat” is improperly applied to one who strikes with his fist. 41By “torture,” we should understand the torment and corporeal suffering and pain employed to extract the truth. Therefore, a mere interrogation or a moderate degree of fear does not justify the application of this Edict. In the term “torment” are included all those things which relate to the application of torture. Hence when force and torment are resorted to, this is understood to be torture. 42If, however, torture should be applied by order of the master himself, and it exceeds the proper limits, Labeo says he will be liable. 43The Prætor says, “Where any other illegal act is said to have taken place, I will grant an action, after proper cause is shown.” Hence, if a slave has been severely beaten, or put to the question, judgment can be rendered against the guilty party without any further investigation. If, however, he suffered any other injury, the action will not lie, unless proper cause is shown. 44Therefore the Prætor does not promise the action for injury in the name of the slave, for every kind of cause. For if he was lightly struck, or not grossly abused, he will not grant it. If his reputation has been assailed by any act, or by any written verses, I think that the investigation of the Prætor should be extended so as to include the character of the slave. For there is a great difference between the characters of slaves, as some are frugal, orderly, and careful; others are common, or employed in menial occupations, or of indifferent reputation. And what if the slave was shackled, or of bad character, or branded with ignominy? Therefore, the Prætor must take into consideration not only the injury which was committed, but also the reputation of the slave against whom it is said to have been perpetrated, and thus he will either permit or refuse the action. 45Sometimes the injury done to the slave falls back upon his master, and sometimes it does not; for if anyone, thinking that he belonged to someone else and not to me, should beat a man who alleged that he was free, and he would not have beaten him if he had known that he was mine, Mela says that he cannot be sued for having committed an injury against me. 46If anyone should bring an action for injury on account of a slave who had been beaten, and afterwards an action for wrongful damage, Labeo says that this is not the same thing, because one of the actions has reference to damage caused by negligence, and the other to insult. 47If I have the usufruct in a slave, and you have the ownership in him, and he has been beaten or subjected to torture, I, rather than the owner, will be entitled to bring the action for injury sustained. The same rule applies, if you have beaten my slave whom I possessed in good faith, for the master has the better right to bring an action for injury. 48Again, when anyone beats a freeman who was serving me in good faith as a slave, it should be ascertained whether he struck him for the purpose of insulting me, and if he did, an action for injury will lie in my favor. Therefore, we grant an action for injury with reference to the slave of another who is serving me in good faith, whenever the injury was committed with the intention of insulting me; for we grant it to the master of the name of the slave himself. If, however, he touches and beats me, I can also bring an action for injury. The same distinction must be made with reference to the usufructuary. 49If I beat a slave belonging to several masters, it is perfectly clear that they all will be entitled to bring the action for injury sustained.

16 Paulus, On the Edict, Book XLV. It is not just, however, as Pedius says, that judgment should be rendered for a larger sum than the value of the share of the owner, and therefore it is the duty of the judge to make an estimate of the different shares.

17 Ulpianus, On the Edict, Book LVII. If, however, I have done this with the permission of one alone, and thinking that he was the sole owner of the slave, the action for injury will not lie in favor of anyone. If I knew that the slave belonged to several persons, the action will not lie in favor of the owner who permitted me to strike the slave, but it will lie in favor of the others. 1Where torture has been inflicted by order of a guardian, an agent, or a curator, it must be said that the action for injury will not lie. 2My slave was scourged by our magistrate at your solicitation, or upon your complaint. Mela thinks that an action for injury should be granted me against you for an amount which may seem to the court to be equitable. And Labeo says that if the slave should die, his master can bring suit, because damage committed by means of injury is involved. This opinion was adopted by Trebatius. 3Some injuries inflicted by freemen seem to be slight and of no importance, but when inflicted by slaves they are serious; for the insult increases on account of the person who offered it. 4When a slave inflicts an injury, it is clear that he commits an offence. Therefore, it is reasonable, as in the case of other crimes, that a noxal action for damages sustained should be granted under such circumstances. The master, however, if he prefers to do so, can bring the slave into court in order to have him whipped, and in this way satisfy the person who sustained the injury. It will not be necessary for the master to give him up to be whipped, but the power will be granted him to surrender his slave for that purpose; or if the injured party is not satisfied with having him whipped, the slave should be surrendered by way of reparation, or the amount of damages appraised in court should be paid. 5The Prætor says, “In the discretion of the judge,” which means that of a good citizen, in order that he may impose the measure of the punishment. 6If, before the master produces the slave in court to be whipped, in order to satisfy the complainant, this having been done by the authority of a magistrate, the plaintiff afterwards should insist upon bringing an action for injury, he should not be heard, for he who has received satisfaction has abandoned the injury he sustained; for if he acted voluntarily, it may undoubtedly be said that the right of action for injury will be extinguished no less than if it had been annulled by lapse of time. 7If a slave should inflict an injury by the order of his master, the latter can certainly be sued, even in his own name. Where, however, it is stated that the slave has been manumitted, it is held by Labeo that an action can be granted against him, because the injury follows the person, and a slave should not obey his master in all things. But if he should kill anyone by order of his master, we exempt him from the operation of the Cornelian Law. 8It is clear when he commits some act for the purpose of defending his master, that he has reason in his favor, and that he can plead an exception if he is prosecuted for what he has done. 9If the slave, in whom I have the usufruct, commits an injury against me, I can bring a noxal action against his owner, nor should my condition be rendered any worse because I have only an usufruct in him, than if I did not have it. The rule is otherwise where the slave is owned in common, for then we will not grant an action to the other joint-owner, for the reason that he himself is liable to one for injury. 10The Prætor says: “If someone is alleged to have committed an injury against a person who is under the control of another, and he to whose authority he is subject, or anyone who can act in his name as agent is not present, I will, upon proper cause being shown, grant an action to him who is said to have sustained the injury.” 11When a son under paternal control has suffered an injury, and his father was present, but cannot bring suit on account of being insane, or because of some other affection of the mind, I think that an action for injury will lie; for in this instance the father is considered as being absent. 12If the father is present, but is unwilling to bring suit, either because he wishes to postpone it, or abandon, or pardon the injury, the better opinion is that the right of action should not be granted to the son; for, when the father is absent, the action is granted to the son for the reason that it is probable that his father would have brought it if he had been present. 13Sometimes, however, we think that even if the father excuses the injury, the action should be granted to the son, for instance, if the character of the father is vile and abject, and that of the son is honorable; for a father who is extremely contemptible should not estimate the insult offered to his son by his own degradation. Suppose, for example, the father to be a person for whom, by law and reason, a curator should be appointed by the Prætor. 14If, however, the father, after issue has been joined, should depart or neglect to prosecute the case, or is of inferior rank, it must be said that the right of action can be transferred to the son, if proper cause is shown. The same rule will apply where the son is emancipated. 15The Prætor gave the preference to the agent of the father over the persons themselves who suffered the injury. When, however, the agent neglects the case, is in collusion with the other parties, or is not able to prosecute those who have committed the injury, the action will rather lie in favor of him who suffered it. 16We understand an agent to be not a person who has been specially appointed an attorney to conduct an action for injury, but it will be sufficient if the administration of all the property has been entrusted to him. 17Where, however, the Prætor says that if proper cause is shown an action will be granted to him who is said to have sustained the injury, this must be understood to mean that when the investigation is made, it must be ascertained how long the father has been absent, and when he is expected to return, and whether the person who desires to bring suit for injury is indolent, or altogether worthless, and not capable of transacting any business, and on this account is not fitted to bring this action. 18When he afterwards says, “Who has sustained the injury,” this must sometimes be understood to mean that his father will be entitled to bring the action; for instance, where the injury has been inflicted upon a grandson, and his father was present, but his grandfather was not. Julianus says that the action for injury should be granted to the father rather than to the grandson himself, for he holds it is the duty of the father, even while the grandfather is living, to protect his son against everything. 19Julianus also says that the son can not only bring the action himself, but can also appoint an attorney to do so. Otherwise, he says, if we do not permit him to appoint an attorney, and he should happen to be prevented from appearing by illness, and there is no one to conduct the action for injury, it must be dismissed. 20He also says that when an injury is inflicted upon a grandson, and there is no one to bring suit in the name of the grandfather, the father should be permitted to do so, and can appoint an attorney; for the power of appointing an attorney is conceded to all those who have the right to bring suit in their own names. Moreover, he asserts that a son should be considered as bringing the action in his own name, for, when his father fails to do so, the Prætor will give him permission to bring it. 21If a son under the control of his father brings the action for injury, it will not lie in favor of his father. 22He also says that an action on account of injury is granted to a son under paternal control when there is no one who can act in the name of the father, and that, in this instance, he is considered the head of the household. Wherefore, if he has been emancipated, or should be appointed a testamentary heir, or even if he is disinherited or has rejected his father’s estate, authority to conduct the case shall be granted him; for it would be perfectly absurd that anyone, whom the Prætor would permit to bring the action, while he was under the control of his father, should be rendered incapable of avenging his injuries, after he had once become the head of a household, and that this privilege should be transferred to his father, who had abandoned him as far as it was in his power to do so; or (which is still more improper) if it should be transferred to the heirs of the father, who, there is no doubt, are not in any way interested in an injury inflicted upon a son under paternal control.

18 Paulus, On the Edict, Book LV. It is neither proper nor just for anyone to be condemned for speaking ill of a person who is guilty; for it is both necessary and expedient for the offences of guilty persons to be known. 1When one slave inflicts an injury upon another, an action should be brought just as if he had injured his master. 2If a daughter under paternal control, who is married, should sustain an injury, both her husband and her father can bring the action for injury. Pomponius very properly holds that judgment against the defendant should be rendered in favor of the father for an amount equal to what it would have been if she were a widow; and in favor of the husband, for the same amount, just as if she was independent; because the injury sustained by each party has its own distinct valuation. Therefore, if the married woman is under no one’s control, she cannot bring the action, because her husband can bring it in her name. 3If an injury should be inflicted upon me by someone to whom I am unknown, or if anyone thinks that I am Lucius Titius, when I am Gaius Seius, the principal matter here will have the preference, that is, the fact that he desired to injure me. For I am a certain individual, although he may think that I am some other person than myself, and therefore I will be entitled to an action for injury. 4But when anyone thinks that a son under paternal control is the head of a household, he cannot be considered to have committed an injury against the father of the latter any more than against the husband, if he believes his wife to be a widow, because the injury is not personally aimed at the parties concerned, and cannot be transferred from their children to them by a mere effort of the mind; since the intention of him who inflicts the injury does not extend beyond the aggrieved person, who is regarded as the head of the household. 5If, however, he was aware that he was a son under paternal control, but still did not know whose son he was, I would hold (so he says) that the father could bring an action for injury in his own name, just as a husband could do, if he knew that the woman was married; for he who is aware of these things intends to inflict an injury through the son, or the wife, upon any father or husband whomsoever.

19 Gaius, On the Provincial Edict, Book XXII. If my creditor, whom I am ready to pay, should attack my sureties for the purpose of injuring me, he will be liable to an action for injury.

20 Modestinus, Opinions, Book XII. If Seia, for the purpose of inflicting injury, seals up the house of her absent debtor, without the authority of the magistrate who has the right and the power to allow this, he gave it as his opinion that the action for injury could be brought.

21 Javolenus, Epistles, Book IX. The estimate of the injury sustained should not date from the time when judgment was rendered, but from the time when the injury was committed.

22 Ulpianus, On the Edict of the Prætor, Book I. If a freeman is arrested as a fugitive slave, he can bring an action for injury against the person who seizes him.

23 Paulus, On the Edict, Book IV. Ofilius says that anyone who enters the house of another against the will of the owner, even though the latter may be summoned to court, he will be entitled to an action for injury against him.

24 Ulpianus, On the Edict of the Prætor, Book XV. Where anyone is prevented by another from selling his own slave, he can bring an action for injury sustained.

25 The Same, On the Edict, Book XVIII. If anyone should have intercourse with a female slave, an action for injury will be granted to her master, but if he conceals the slave, or does something else with the intention of stealing, he will also be liable to an action for theft; or, if anyone should have intercourse with a young girl who was not mature, some authorities think that the action under the Aquilian Law will also lie.

26 Paulus, On the Edict, Book XIX. If anyone makes a laughing-stock of my slave or my son, even with his consent, I will still be considered to have sustained an injury; as, for instance, if he takes him to a tavern, or induces him to throw dice. This will always be the case when the person who persuades him does so with the intention of injuring me. However, evil advice may be given by one who does not know who the master is, and hence the action for corrupting a slave becomes necessary.

27 The Same, On the Edict, Book XXVII. If the statue of your father, erected on his monument, is broken by having stones thrown at it, Labeo says that an action for violating a tomb cannot be brought, but that one for injury can.

28 Ulpianus, On Sabinus, Book XXXIV. The action for injury does not affect our property until issue has been joined.

29 Paulus, On Sabinus, Book X. If you manumit or alienate a slave, on whose account you are entitled to an action for injury, you will retain the right to bring the action.

30 Ulpianus, On Sabinus, Book XLII. Who doubts that, after a slave has been manumitted, an action will not lie for an injury which he sustained while in servitude? 1If an injury has been inflicted upon a son, while the right of action will be acquired by the son as well as the father, the same estimate should not be made for both:

31 Paulus, On Sabinus, Book II. As the injury done to the son may be greater than that done to the father, on account of the superior rank of the former.

32 Ulpianus, On Sabinus, Book XLII. Magistrates are not allowed to do anything by which an injury may be caused. Therefore, if a magistrate, either as a private individual, or in his magisterial capacity, is instrumental in committing injury, he can be sued for injury. But will it be necessary to wait until he has relinquished his office, or can the suit be brought while he still holds it? The better opinion is, that if he is a magistrate who cannot legally be summoned to court, it will be necessary to wait until he relinquishes his office. If, however, he is one of the inferior magistrates, that is to say, one of those not invested with supreme jurisdiction or authority, he can be sued, even while he is still discharging his judicial duties.

33 Paulus, On Sabinus, Book X. When anything is done in compliance with the dictates of morality for the purpose of protecting the interests of the State, and this causes anyone to be insulted, nevertheless, for the reason that the magistrate did not act with the intention of causing injury, but had in view the vindication of the majesty of the Republic, he will not be liable to an action for injury.

34 Gaius, On the Provincial Edict, Book XIII. Where several slaves together have beaten someone, or have raised a tumultuous clamor against him, each of them, individually, is guilty of the offence, and the injury is all the greater, since it was committed by slaves; and, indeed, there are the same number of injuries as there are persons responsible for them.

35 Ulpianus, On All Tribunals, Book III. Where anyone commits an atrocious act who can, on account of his infamous character and poverty, disregard a judgment rendered against him in an action for injury, the Prætor should exercise all his severity in the prosecution of the case, and the punishment of those who committed the injury.

36 Julianus, Digest, Book XLV. If I desire to bring an action in the name of a son against his father, and the latter appoints an attorney, the son is not considered to be defended unless he gives security for the payment of the judgment; and therefore an action should be granted against him just as if he was not defended by his father.

37 Marcianus, Institutes, Book XIV. It is provided by the Imperial Constitutions that anything placed upon public monuments for the purpose of defaming another shall be removed. 1The action for injury can even be brought civilly under the Cornelian Law, and the amount of the judgment be estimated by the judge.

38 Scævola, Rules, Book IV. It is provided by a decree of the Senate that no one shall carry the statue of the Emperor for the purpose of exciting odium against anyone, and that he who violates it shall publicly be placed in chains.

39 Venuleius, Public Prosecutions, Book II. No one is permitted to wear filthy clothing or long hair in public under the name of an accused person, unless he is so closely connected with him by affinity that he cannot be compelled to testify against him in opposition to his will.

40 Macer, Public Prosecutions, Book II. The Divine Severus wrote to Dionysius Diogenes, as follows: “Anyone who has been condemned for an atrocious injury cannot belong to the Order of Decurions; and the error of a Governor or of anyone else who has rendered a different decision on the point in controversy will not benefit you, nor will that of those who, in opposition to the established law, held that you still retained your membership in the Order of Decurions.”

41 Neratius, Parchments, Book III. A father, against whose son an injury has been committed, should not be prevented from bringing suit for his own injury and that of his son, by two different proceedings.

42 Paulus, Sentences, Book V. Parties who are conducting a case should not raise their voices against the judge, otherwise they will be branded with infamy.

43 Gaius, Rules, Book III. Anyone who brings an action for injury against another for the purpose of annoyance shall be condemned by extraordinary proceedings, that is to say he shall either suffer exile, deportation, or expulsion from his order.

44 Javolenus, On the Last Works of Labeo, Book IX. If the owner of a lower house causes smoke to affect the building of his neighbor above him, or if a neighbor occupying a higher house throws or pours anything upon that of another, which is situated below, Labeo says that an action for injury cannot be brought. I think that this is not true provided it was thrown down upon the neighbor’s premises for the purpose of injuring him.

45 Hermogenianus, Epitomes, Book V. So far as injuries are concerned, it is customary at present to pass sentence arbitrarily, according to the circumstances and the person. Slaves who have been scourged are restored to their masters; freemen of inferior ranks are whipped with rods; and others are punished either with temporary exile, or by the interdiction of certain property.