previous next


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]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: