INJU´RIA
INJU´RIA Injuria, in the general sense, signifies a
violation of law, what is not
jus (
“Injuriam autem hic accipere nos oportet non quemadmodum circa
injuriarum actionem contumeliam quandam, sed quod non jure factum est,
hoc est contra jus,”
Dig. 9,
2,
5.1). Similarly a person acting unlawfully is called
injurius (compare
inlex), but later
injustus (Voigt,
Zwölf Tafeln, 1.39). Hence the phrase
damnum injuria datum means unlawful damage to
property [
DAMNUM &c.].
Injuria, in a special sense, is the term which denotes a particular kind of
wrong or delict, committed against a man's person, as distinct from his
property. Injuria, in this sense, is any unlawful act by which an insult
(
contumelia,
ὕβρις) is conveyed by one person to
another. Thus every intentional violation of the right of another is
injuria, as implying contumelia, though, if such a wrongful act falls under
the category of any other offence, the penalty of the latter is applicable,
and not that of injuria (Windscheid,
Pandekten, §
472, n. 1). It follows from the nature of this delict that it cannot arise
without an intention to act unlawfully (
dolus).
The external acts constituting it might be various in kind. Thus it might be
done by assaulting a man, as by striking or beating him; by other conduct
likely to bring a man into contempt or derision, as by vociferous abuse
(
convicium), scurrilous songs and verses,
libellous writings of any kind; by insulting gestures, by spitting at a man
(Plaut.
Curc. 4.2, 17; Cic.
ad
Quint.
fr. 2.3, 2); by going about unkempt and
unshorn, or in mourning attire, with the object of falsely suggesting that
the person so acting was suffering by the misconduct of another person; by
demanding a debt in a way likely to injure a man's character (
clamore, flagitare, poscere, Plaut.
Pseud. 1.5, 143; 4.7, 46;
Curc. 5.3, 5); by
summoning a debtor to court (
in jus vocatio) in
an illegal manner (Porph.
in Hor.
Sat. 1.9, 77); by obtaining an execution order
against a person as if he were insolvent; by illegally distraining on a
man's goods, &c. A man might sustain injuria either in his own
person, or in the person of members of his family who were in his power.
Injuria to a wife was also injuria to her husband. No injuria could be done
to a slave, but certain acts done to a slave were an injuria to his master,
when the acts were such as appeared from their nature to be insulting to the
master; as, for instance, if a man should flog another man's slave: but for
verbal abuse of a slave, or striking him with the fist, Gaius (3.222) says,
there was no formula provided, nor would an action be readily granted by the
praetor.
The Twelve Tables had various provisions on the subject of injuria. The
penalty of injuria for a limb broken was retaliation (Gaius, 3.223,
“propter membrum ruptum talio erat;” cf. Festus, s. v.
Talio); for a bone broken or bruised, three hundred asses if the person
injured was a freeman, one hundred and fifty if he was a slave. It seems
probable, however, that Gaius made a mistake in classifying these
punishments under injuria, the prominent idea in the law of the Twelve
Tables respecting them being that of damage to the person rather than that
of insult. (Voigt,
Zwölf Tafeln, 2.129.)
The ordinary penalty for injuria in the Twelve Tables was twenty-five asses
(Gaius, 3.223). Gaius adds that such a sum seemed an adequate compensation
in those days of excessive poverty. Libellous songs or verses (
occentus: cf.
Hor. Ep.
2.1,
145, “Fescennina per hunc
inventa licentia” ), by which persons were frequently defamed at
public festivities, were followed in addition by a punishment affecting the
caput of the offender, which involved scourging as well as loss of liberty
(cf.
Hor. Ep. 1. 100.154), or which,
according to one interpretation of a passage of Cicero (
Rep.
4.10), was death. The penalty of twenty--five asses provided by the Twelve
Tables was subsequently found insufficient in many cases, and so an action
was established by the praetor (
actio injuriarum
aestimatoria), in which the injured party was allowed to claim
such damages as he thought he was entitled to, and the judex might give the
full amount or less. This became the ordinary remedy on account of injuria,
but a Lex Cornelia gave a special action in cases of
pulsatio, verberatio, and forcible entry into a man's house.
In determining the damages in the
actio
aestimatoria the praetor had to distinguish between an atrocious
outrage (
atrox injuria) and that of a less
serious kind. An injuria had the character of
atrox, either from the act itself, or the place where it was
done, as for instance a theatre or forum; or from the condition of the
person outraged, as if he were a magistratus, or if he were a senator and
the wrong-doer were a person of low condition. Infamia was a sequence of
condemnation in an
actio injuriarum [
INFAMIA].
The
actio injuriarum was regarded as a
vindictive action, in satisfaction of a purely personal injury (
actiones vindictam spirantes), and
[p. 1.1011]so could not be maintained by the heir of the person outraged.
It became the rule that every kind of injuria might be made the subject of
either criminal or civil proceedings (Inst. 4.4, 10). The criminal
proceedings and punishment were
extra ordinem
[
CRIMEN]. Various imperial
constitutions affixed the punishment of death to libellous writings [LIBELLI]. (Gaius, 3.220-225; Paul.
Sent.
Rec. 5, 4; Cod. Theod. 9.34; Cod. 9.35, 36; Inst. 4.4;
Dig. 47,
10; Keller,
Inst. 141, &c.; Huschke,
Gaius, 118, &c.; Rein,
Criminalrecht,
§ 354, &c.; Voigt,
Zwölf Tafeln, 2.
§ § 129, 130.)
[
G.L] [
E.A.W]
