actions as as compensation for the violation of a right. In these PART II. penal actions the monetary penalty is sometimes the only compensation won by the injured plaintiff; but in others recovery of an object is aimed at, as well as compensation for the injury suffered by its loss. This difference in aim Penal is the source of the distinction between simple actions simple or of this type and 'mixed actions.' Like many similar ‘mixed.' distinctions in Roman law, it is of a somewhat superficial character; in both cases compensation is exacted for the wrong (delictum), but in some cases only can the object destroyed, as a tangible thing capable of valuation, be included in the estimate of the damage. iuriarum. Actions of the simpler type are typified by those Actio inspringing from wrongs done to the person, whether by physical assault or verbal injury. The principles of the Twelve Tables, which had enjoined physical retribution by the sufferer for grave bodily injuries and an increasingly inadequate fine of twenty-five asses for lesser hurts1, had long been abandoned; and as little respect could be paid to the savage penalty of death which had been inflicted for libel and slander 2. In their place the praetor gave a formula in which the penalty for such iniuriae varied according to the features of the case :-the amount of the wrong, the aggravating circumstances of its committal and the position of the litigants. The penalty of the transmitted formula was thus an uncertain amount of pecuniary damages (pecunia incerta), and the estimate of the amount fixed by the plaintiff was left to the 3 'Gell. xx. 1, 31-33; Gaius, iii. 223. 2 Cic. de Rep. iv. 10, 12 'duodecim tabulae, cum perpaucas res capite sanxissent, in his hanc quoque sanciendam putaverunt, si quis occentavisset sive carmen condidisset, quod infamiam faceret flagitiumve alteri.' Cf. Tusc. Disp. iv. 2, 4. 'Cf. Collatio, ii. 6, 4 sicut formula proposita est QUOD AULI AGERII PUGNO MALA PERCUSSA EST.' See p. 151. In Plautus we find perhaps the earliest reference to the formula of this praetorian action (Asinar. ii. 2, 104 'pugno malam si tibi percussero'). See Lenel, Ed. Perp. p. 321. BOOK I. equitable feelings of the iudex. Other personal damages were estimated by the edict of the curule aediles in their police jurisdiction 2; and, before the Ciceronian period, even the statute-law had supplemented the purely edictal jurisdiction of aedile and praetor. The primary object of the Lex Cornelia (Sullae) de iniuriis was a criminal prosecution for assault; but by usage a civil action was developed under its terms, which was concurrent with that contained in the praetorian promise 3. Actio furti. Theft was reckoned by the jurists as one of those actions in which the subjective elements of vengeance and the desire for punishment (ultio, vindicta) are the grounds of the penalty. This classification was historically justifiable, for in the actio furti considered by itself and apart from a subsequent possible action to recover the value of the thing, a poena alone was exacted, although in the law of the Ciceronian period the value of the thing is uniformly made the basis of the penalty, and the poena contains implicitly the recovery of the stolen object. The penalty enjoined by the Twelve Tables for furtum nec manifestum, of two-fold the value of the thing, was retained; but a praetorian action in quadruplum had taken the place of the scourging and bond-service (addictio) with which the Twelve Tables had threatened the author of a manifest theft. While the one was a 'civil' action, the other was an outcome of 'honorary' law; but both are stricti iuris actiones and little is left for the arbitrium of the iudex. 1 'aestimatio vestra est' (i. e. of the 'recuperatores') (Cic. pro Tull. 3, 7). Cf. Gell. xx. 1, 13 'praetores postea . . . iniuriis . . . aestimandis recuperatores se daturos edixerunt.' Gaius, iii. 224 permittitur... nobis a praetore ipsis iniuriam aestimare, et iudex vel tanti condemnat quanti nos aestimaverimus, vel minoris, prout ei visum fuerit.' 2 See p. 31. 3 Dig. 47, 10, 37, 1 'Etiam ex lege Cornelia iniuriarum actio civiliter moveri potest condemnatione aestimatione iudicis facienda.' We cannot tell whether this development had been reached by Cicero's day. * Gell. xx. I, 7; Gaius, iii. 189. Cf. Cic. pro Tull. 21, 50. iniuria dati; Aquilia. In an action for damage to property the estimate of the PART II. loss incurred enters more directly into the value of the Actio damni compensation, although this compensation may yet be regarded primarily as a poena. The actions furnished by the lex the Twelve Tables for such damage, generally called noxia but in later times termed damnum iniuria datum, were numerous and specific; but they had become well-nigh extinct even by Cicero's time. The reason for their disuse was the dominance attained by the Lex Aquilia, a plebiscitum perhaps of the year 287 B. C., which juristic interpretation had made the prevalent and almost the only means of seeking compensation for such loss1. It enacted that, in the case of the unlawful destruction of the slave or quadruped of another, the slayer should pay to its owner the highest value borne by the creature within the previous year: that, in the case of the unlawful 'burning, crushing or breaking' of any property besides that specified above, the destroyer should be liable for the value (i. e. as it was interpreted, the highest value) borne by the property within the last thirty days: and perhaps the very words of the law, QUANTI ID IN EO ANNO PLURIMI FUIT, QUANTI EA RES IN DIEBUS XXX PROXIMIS (FUIT)2, formed part of the condemnatio of the formula by which it was enforced. dati vi But this civil guardianship of property was found to Actiodamni be insufficient. The revolutionary era was marked by hominibus crimes of violence which required a more summary treat- armatis. ment and a severer punishment: and the remedy was, in accordance with the tendencies of the time, supplied by the praetor. M. Lucullus, in 76 B. C., framed and 1 Cf. Cic. Brut. 34, 131 'eodem tempore accusator de plebe L. Caesulenus fuit, quem ego audivi iam senem, cum ab L. Sabellio multam lege Aquilia... petivisset.' The word multa is here used somewhat improperly for damages in a civil action. 2 Gaius, iii. 210 214; Dig. 9, 2, 2; 9, 2, 27, 5. BOOK I. : introduced an action for damnum datum vi hominibus armatis1. Its chief aim was the repression of damage done by bands of armed slaves who were kept by unscrupulous masters for the violent enforcement of their private ends. The action was for four-fold the damage done (in quadruplum)2; the fixing of the maximum penalty (taxatio) was the work of the plaintiff, and the final estimate rested with the recuperatores who in this action took the place of the iudex 3. The formula for the action ran: QUANTAE PECUNIAE PARET DOLO MALO FAMILIAE P. FABII VI HOMINIBUS ARMATIS COACTISVE DAMNUM DATUM ESSE M. TULLIO', TANTAE PECUNIAE QUADRUPLUM (or IN QUADRUPLUM), RECUPERATORES, FABIUM TULLIO CONDEMNATE; SI NON PARET, ABSOLVITE. The inter- § 5. The Interdict. The magisterial utterances known as interdicts had had a long history by Cicero's time. He speaks of the praetor as engaged for 'whole days' in issuing such injunctions 5: and yet, in spite of their having become quite an ordinary branch of procedure, as usual a means of aiding the litigant as the praetorian action itself, they never lost their original character of exceptional commands springing from the imperium. While the praetorian action is due only to interpretative power and on its creation loses its character of a magisterial promise or command and becomes a right of the plaintiff, it was always felt that the interdict was an exercise of pure magisterial authority (auctoritas). This authority came more and more to be interposed, 1 Cic. pro Tull. 4, 8. 2 Ib. 3, 7. For further peculiarities of this action see Appendix on the pro Tullio. Cic. pro Caec. 13, 36 'Praetor... qui dies totos aut vim fieri vetat, aut restitui factam iubet, qui de fossis, de cloacis, de minimis aquarum itinerumque controversiis interdicit.' not for the sake of guarding the public, but for the purpose PART II. of protecting certain otherwise unprotected individual rights: since, however, a summary command can take little cognizance of the merits of a claim before the injunction is interposed, the true cognizance and the final pronouncement on the disputed right follows the interdict. This is equivalent to saying that the interdict is made the basis of an action. The probable causes which led to this form of its employment have been already explained1. We have now to consider the nature of these injunctions and the procedure consequent on them in their developed form. dicts are com mands. individual but uni character. The interdict is, in form and in spirit, a command The interoperating in the present. The praetor says 'I forbid' (veto) or 'you must restore' (restituas), and, although he may condition his prohibition or demand for restoration, in form if these conditions are fulfilled, the command is supposed versal in to operate at once. This form of the interdict betrays its origin: it is the survival of a command based on magisterial cognizance of a breach of the law, and the form is preserved even when the violation of right has yet to be proved. These commands are not of a general character and, formally at least, state no principle applicable to the world at large; they still maintain their appearance of interlocutions addressed to individuals; they appeal, and refer to, the parties involved in the singular number; the praetor, addressing the party complained against, says 'restore' or 'produce,' or 'I forbid you using violence to prevent him from cutting down that tree.' But, in spite of the particular application expressed in its form, the universality of the utterance is fully manifested in other ways. With the progress of years the injunction has become stereotyped, so fixed and definite that, like the action, it appears in the edict as the outline of a case, |