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 The provisions of this statute seem to have been superseded by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]
