VINDICTA
VINDICTA This word is used by Gaius (4.16) in describing the
proceedings of a vindicatio for the rod or wand in place of a spear, by
which each vindicant forcibly asserted his dominium [
VINDICATIO], and it
frequently signifies the rod with which a slave was struck when he was
manumitted before the Praetor [
MANUMISSIO]. Another meaning of vindicta was self-redress
exercised by an injured party against the party committing the injury; and
hence
vindicta came to signify
“vengeance,”
“revenge,” the Italian
vendetta. To
prevent persons from taking the law into their own hands by forcible
self-redress (
vindicta) was a principal object
of early law. Hence money compositions were gradually substituted in the
place of vengeance, and actions were instituted for their recovery. In some
cases the state itself took vengeance on criminals, and penalties were
inflicted on those who broke the peace in seeking private satisfaction for
their wrongs (Ihering,
Geist des römrischen Rechts,
1.122, &c.).
The actions which were given on account of delict came to be distinguished
according as to whether they had for their object simply compensation, as in
the
actio doli, or simply to give the plaintiff
a pecuniary penalty (
poena), as in the
actio furti, which was distinct from his claim to
compensation, or to give him in one and the same proceeding both
compensation and a penalty, as in the
actio vi bonorum
raptorum [
FURTUM]
(Savigny). There were, however, certain actions which, though they had for
their immediate object money or property, had for their ultimate object
satisfaction to the personal feelings of the injured party, and the term
vindicta is used in a special sense to
signify the personal satisfaction which is the object of these peculiar
actions: e. g. the
actio de sepulcro violato,
which is one of them, is said “non ad rem familiarem, magis ad
ultionem pertinere in sola vindicta constitui” (
Dig. 47,
12,
6
and 10; cf.
Dig. 29,
2,
20.5).
Civilians describe such actions as “actiones vindictam
spirantes.” Those actions of which vindicta is the object are
distinguished from other actions by the fact that they are not transmissible
to the heredes of the injured party, the injury not being so much to his
property as to his person, and for the same reason they are not, like
proprietary actions, capable of assignment. They also form exceptions to
general rules as to the legal capacity of the plaintiff. It was a
fundamental rule that a filiusfamilias could not maintain an action on his
own account, all property which he acquired being acquired for his
paterfamilias. But as vindicta and not damages or other property was the
main object of the actions in question, they could, generally speaking, be
brought by a filiusfamilias. So, too, a person who had acquired such a right
of action did not lose it by a change of status (
capitis
deminutio), e.g. by arrogation, as in ordinary cases. It may,
however, be doubted whether Savigny is right in thinking that all actions
which were exceptional in these respects were considered to have vindicta
for their object.
The following are cases of
actiones vindictam
spirantes:--
- 1. Actio injuriarum, or action on
account of insult, by assault, libel, slander, &c. This was
an action which could not be maintained by the heredes of the
injured party. When a filiusfamilias was the subject of injuria, a
wrong was done both to him and to his paterfamilias, for the latter
was indirectly affected by the insult. The paterfamilias generally
brought not only the action which he had on his own account, but
also sued on account of the wrong to his filiusfamilias, as he
acquired through his son all rights of action. But the
filiusfamilias could bring an action in his own name with the
permission of the Praetor, if his paterfamilias was absent, or was
in any way prevented from bringing the action. The pecuniary
damages, which were the immediate object of the action, belonged to
the paterfamilias, so that the only immediate advantage which the
filiusfamilias obtained for himself by bringing the action: was the
vindication of his honour. [It may be noticed that under the canon
law a person who was insulted might claim in a judicial proceeding a
public apology from the wrongdoer (46 Dist. 100.5).] If the son was
emancipated, his right of action belonged exclusively to himself,
and was not destroyed by the capitis deminutio (Inst. 4.4; Dig. 47, 10; Cod. 9,
35).
- 2. Actio sepulcri violati, or action
given on account of an intentional act of outrage to a grave or
sepulchral monument. This could be brought by the children of the
deceased, even if they refused the hereditas. The object was
vindicta, which was effected by giving the plaintiff damages, which
were assessed by the judex according to the gravity of the offence
(Dig. 47, 12,
3.8: “qui de sepulcri violati
actione judicant, aestimabunt, quatenus intersit, scilicet ex
injuria, quae facta est, item ex lucro ejus, qui violavit, vel
ex damno, quod contigit, vel ex temeritate ejus, qui
fecit” ). The right of action was not affected by capitis
deminutio. The action could not be maintained by the heredes of the
person injured. (If those who had a right to bring this action
neglected to do so, any person might sue the delinquent for a
penalty limited to 100 aurei by the Edict.)
- 3. The action on account of obstructing the burial of a corpse
(Dig. 11, 7,
9).
- 4. Actio de effusis et ejectis, in
respect of injury to a free person by something poured or thrown
from a house (Dig. 9, 3, 5.5).
- 5. The action against a libertus in respect of an unauthorised
in jus vocatio of his patron [PATRONUS]. If the
libertus had proceeded against the son of his patron, and the father
was absent, the son, could institute the suit himself, as in the
case of the actio injuriarum.
- 6. Querela inofficiosi testamenti,
the character of the querelant being supposed to be affected by his
disinherison [TESTAMENTUM].
- 7. Actions for penalties on account of adultery (Dig. 24, 3, 15.1). Savigny also includes in this class of actions
the interdictum quod vi aut clans, since it
could be instituted by a filiusfamilias in his own name. He
considers that the ground of this capacity of a filiusfamilias was
an injury done to him personally by a person who acted in opposition
to his remonstrance. If, for instance, the son inhabited a house
belonging to his father or one hired from a stranger, and was
disturbed in the enjoyment by some act of his neighbour, the
filiusfamilias [p. 2.962]might have an action for
the amount of the damage, but the pecuniary satisfaction would
belong to the father, as the case of the actio injuriarum. Savigny
further includes in the same category actiones
popudares, which are actions in which the plaintiff claims
a sum of money, but not as a private individual; he comes forward as
a kind of representative of the state.
A filiusfamilias could bring such an action. By virtue of the
litis contestatio [
ACTIO] the action becomes the same as if it were
founded on an obligatio, and this right of action as well As the money which
may arise from it is acquired by the filiusfamilias for his paterfamilias.
With the
populares actiones may be classed, as
belonging to the same kind, the
interdicta
publica or
popularia, and that
operis novi nuntiatio which is for the
protection of
publicum jus; with this
distinction, that the proceedings have not for their object the recovery of
a sum of money. But in the general capacity of all persons to bring such
actions, independent of the general rules as to legal capacity, all these
modes of proceeding agree. (Savigny,
System des heutijen
römischer Rechts, 2.121; Vangerow,
Pandekten, 1.145.)
[
G.L] [
E.A.W]
