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CALUM´NIA

CALUM´NIA signifies generally the taking of legal proceedings, criminal or civil, against another person, when one has good reason for believing that the criminal charge or the civil action has no substantial foundation: “calumniosus est qui sciens prudensque per fraudem negotium alicui comparat” (Paulus, Sent. Rec. 1.5); and on the part of the defendant in a civil action it also means defending the suit without believing himself to be in the right. In all cases the intention to annoy the other party seems essential to the offence, for “calumnia in adfectu est, furti crimen” (Gaius, 4.178).

From calumnia in criminal charges persons were deterred by the following provisions:--(1) The accuser had always to take the oath of calumnia, i.e. swear that he believed the charge to be well founded (Fragm. Leg. Servil. 100.8; Cic. Fam. 8.8, 3). (2) A lex Remmia of unknown date established certain penalties for calumniatores (Cic. pro Rosc. Am. 19, 55); among them probably being that of having the letter K, the initial of Kalumnia, branded on the forehead (Cic. ib. 20, 57). The provisions of this statute seem to have been superseded by Trajan's enactment that a false accuser should be liable to the punishment which the accused would have suffered if condemned (Plin. Paneg. 35), and he was taken in law to have voluntarily subjected himself to this liability by signing the indictment (Dig. 48, 2, 7, pr.). If the charge had been one of treason, he could be tortured in order to discover the names of his instigators. (3) An accuser might not, as a rule, drop criminal proceedings after their commencement, so as to leave a charge hanging over the head of the accused without the consent of the latter (Dig. 48, 16, 18, 1, 2) and of the court (Paul. Sent. Rec. 5, 17, 1): he had to bind himself with sureties to push the charge to a verdict (Dig. 48, 2; 7, 1); and if he failed to do so, he not only forfeited the sum in which he had bound himself, but was also liable to punishment under the Senatusconsultum Turpillianum, passed in the time of Nero (Tac. Ann. 14.41; Dig. 48, 16; Cod. 9, 45).

There were some few crimes the accusation of which, even without ground, did not expose the accuser to be proceeded against as calumniator; but as a general rule, if he failed in his proof, the injured person might have an inquiry into his conduct and motives. If the person by whom this was conducted found that he had acted merely from error of judgment, he acquitted him in the form non probasti; if he convicted him of evil intention, he declared his sentence in the words calumniatus es, which sentence was followed by the legal punishment described above.

In the time of Gaius (and perhaps throughout the formulary procedure, B.C. 170 to A.D. 294, which he describes) a defendant in a civil action (1) could call on the plaintiff to take the jusjurandum calumniae, i.e. swear that he honestly believed his cause to be a good one (Gaius, 4.176). (2) In default of this he might, if acquitted, bring the calumniae judicium (Cic. Clu. 59, 163), by which he could recover a tenth of the value in dispute in the previous action, and one-fourth if the latter had been an interdict; but this remedy was unavailable unless it could be proved that the original plaintiff's motive had been merely to annoy the other party (Gaius, 4.175). (3) After acquittal in some actions (e. g. the actio injuriarum, Gaius, 4.177), the defendant could sue the plaintiff by judicium contrarium (the latter's bona fides in the earlier action here being immaterial: Gaius, 4.178), and thereby recover sometimes a tenth, sometimes a fifth, of the sum at issue in the previous proceedings. (4) In all actions in which there was a sponsio poenalis (for which see below) in favour of the plaintiff, the defendant was entitled to a promise by restipulatio of an equivalent sum in case the action went in his favour.

If the restipulationis poena was required from the plaintiff, the defendant could not have the benefit of the calumniae judicium or of the jusjurandum calumniae; and the judicium contrarium was not applicable to such cases.

Similarly, in the formulary period, if the plaintiff was not sufficiently secured against unwarranted defence of the action by other provisions,--e.g. duplication of damages (lis crescens) in case of defeat (Gaius, 4.171; Cic. pro Flacco, 21, 49); the sponsio poenalis in condictio certi, in the actio de constituta pecunia, and in interdicts tried per sponsionem; and the infliction of infamia on a defendant who was condemned (Gaius, 4.182),--he could require the defendant to take the jusjurandum calumniae: “non calumniae causa ad inficias ire” (Gaius, 4.172).

Under Justinian the judicia calumniae and contrarium and the penal sponsio and restipulatio had become obsolete. lnfamia and duplication of damages were still incidental to some actions ; the oath of calumnia was administered to both parties to an action and their advocates, and the losing side had to pay the other's costs (Inst. 4.16, 1).

[J.B.M]

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