CASE 138: The Camp Peculium

Tituli ex Corpore Ulpiani 20.10

Filius familiae testamentum facere non potest, quoniam nihil suum habet, ut testari de eo possit.

D. 14.6.1.3 (Ulpianus libro vicensimo nono ad edictum)

In filio familias nihil dignitas facit, quo minus senatus consultum Macedonianum locum habeat: nam etiamsi Consul sit vel cuiusvis dignitatis, senatus consulto locus est: nisi forte castrense peculium habeat: tunc enim senatus consultum cessabit

D. 14.6.2 (Ulpianus libro sexagensimo quarto ad edictum)

usque ad quantitatem castrensis peculii, cum filii familias in castrensi peculio vice patrum familiarum fungantur.

(Excerpts from Ulpian’s Writings)

A son-in-power cannot make a will since he has nothing of his own that he can make a will for. But the deified Augustus established that a son-in-power who is a soldier can make a will for the peculium he has acquired in the (military) camp.

(Ulpian in the twenty-ninth book on the Edict)

The social position of a son-in-power is irrelevant to application of the SC Mace- donianum, for it is applied even if he is a consul or of whatever position. But if he happens to have a camp peculium, then the decree of the Senate is not applied

(Ulpian in the sixty-fourth book on the Edict)

up to the amount of the camp peculium, since, with respect to a camp peculium, sons-in-power function as patres familiarum.

1.

So far in this part we have considered the limited power of household subordinates in holding and dealing with property. But the familia organization caused similar problems when children-in-power or slaves committed wrongs against others.

Roman law is fairly well developed as to delicts, private wrongs that broadly re­semble torts in Anglo-American Common Law. The three main delicts were all rooted in archaic statute but remained central in classical Roman law: theft (furtum), the appropriation of property belonging to someone else against that persons will; affront (iniuria), an antisocial attack on the dignity of another person; and wrongful infliction of loss (damnum iniuria datum), harm to another's property. Each of these delicts enabled the victim to sue the miscreant for what the jurists thought of as a “penalty,” a sum of money intended to repair the social breach the defendants act had opened. Theft and affront were sources of liability only if the miscreant had acted with the intent to commit them (dolus); but for wrongful damage to property a defendant was also liable for unintentional fault (culpa).

When children-in-power or slaves committed delicts, they were in theory per­sonally responsible for them (on children, see Gaius, D.

In the case of a slave, ownership of the offender was permanently conveyed to the plaintiff. A child-in-power occasions more difficulty. The offender, after being surrendered, did not cease to be a free citizen (nor, e.g., did his marriage end), but he did enter into a form of civil bondage called mancipium. Effectively, mancipium put him in the position of his victims slave, servi loco, where he remained until he had worked off the debt (Papinian, Coll. 2.3.1). The law offered some minimal pro­tection for the offenders personal dignity while in mancipium (Gaius, Inst. 1.141).

This somewhat rough-and-ready arrangement was used only for private wrongs. In the classical period, noxal surrender was probably far more commonly used for sons-in-power than for daughters; and Justinian (Inst. 4.8.7) later abol­ished the practice for both sexes. Crimes are treated differently: children-in-power are fully liable for their own criminal offenses.

Children-in-power have no property of their own and so cannot be the victims of theft or wrongful damage; but they do have independent legal personalities that third parties might offend against. Somewhat oddly, it may seem, an affront (iniuria) directed against a child-in-power was also often considered an affront against the child's paterfamilias, who was then entitled to bring his own lawsuit, in addition to that of his child.

Gaius, Institutiones 4.75-76

(75) Ex maleficio filiorum familias servorumque, veluti si furtum fecerint aut ini- uriam commiserint, noxales actiones proditae sunt, uti liceret patri dominove aut litis aestimationem sufferre aut noxae dedere.

(Gaius in the fourth book of his Institutes')

(75)      Noxal actions are given for the wrongful acts of sons-in-power and slaves, for example, if they commit theft or inflict affront. These actions allow the pater (familias) or owner either to pay the damages arising from a lawsuit or to make noxal surrender (of the miscreant). For it was unfair that beyond the value of their own bodies, their depravity cause loss to their fathers or owners.

face="Book Antiqua">(76)      Noxal actions have been established both by statutes and by the praetor’s Edict: by statutes, for instance, by the Twelve Tables for theft and by the lex Aquilia for loss wrongfully inflicted; by the praetor’s Edict, for instance, for af­front and robbery.

1.      Choice of Liability. How is it “fair” that the paterfamilias or owner be allowed a choice that limits his (or her, in that women could own slaves) liability in this way? Does the aim of noxal surrender appear to be to punish the true wrongdoer or to limit the liability of the paterfamilias? Can both occur simul­taneously? Which receives greater emphasis?

2.      Bad Behavior. Gaius uses strong language to characterize the supposed de­pravity (nequitia) of the offending sons-in-power and slaves.

3.      The Father’s Liability. The pater has the option of noxal surrender if he did not “know” of the offender’s act, that is, if he could not have prevented it. Where he did “know” of the act, he was considered to have committed the act himself and held fully liable. See, for example, Ulpian and Paul, D. 9.4.2-4 pr. Does this suggest that the pater is supposed to exercise at least a modicum of oversight in relation to his subordinates? In general, to what extent do you think that parents should be liable for the acts of their children? Which of the following should be taken into account in answering this question: the child's age; the child's general intellectual capacity; the nature of the act; the foresee­ability of the act or of its harm to others; the relationship of the victim to the parents?

Gaius, Institutiones 4.77

Omnes autem noxales actiones caput sequuntur. nam si filius tuus servusve noxam commiserit, quamdiu in tua potestate est, tecum est actio; si in alterius potestatem pervenerit, cum illo incipit actio esse; si sui iuris coeperit esse, directa actio cum ipso est, et noxae deditio extinguitur. ex diverso quoque directa actio noxalis esse incipit. nam si pater familias noxam commiserit et is se in adrogationem tibi dederit aut servus tuus esse coeperit, quibusdam casibus accidere primo commen­tario tradidimus, incipit tecum noxalis actio esse, quae ante directa fuit.

(Gaius in the fourth book of his Institutes')

Moreover, all noxal actions attach to the wrongdoer.

Conversely, a direct action can also become noxal. For if a pater familias commits a wrong and (then) allows himself to be adopted by you or becomes your slave—something, as we indicated in the first book (at 1.160), that happens in certain cases—the noxal action begins to lie against you, though it had previ­ously been direct.

Hypothetical Situation

Titius, a son-in-power, publishes a tract defaming Sempronia, an eminent person. Before she can sue, Titius's father, who is unaware of the tract, frees him from patria potestas (through emancipation). Whom should Sempronia sue?

1.      The Wrongdoer’s Head. Literally, the actions “follow the head” of the wrong­doer (caput sequuntur). This means that the noxal action is available against the person who currently holds the wrongdoer in his or her power. If the per­son is no longer in power, then suit can be brought directly against the wrongdoer, but the pater no longer is answerable for the delict. What does this suggest about the nature of noxal liability?

2.      Emancipation and Adoption. Could the plaintiffs interest be injured through release of the wrongdoer from someone's power? Is the same true of passage into someone else's power?

3.      Own Goal. Gaius (Inst. 4.78) also notes that if a son-in-power or slave com­mits a wrongful act against his pater familias or owner, there is no action. Is this consistent with the rules for other obligations?

D. 9.4.33 (Pomponius libro decimo ad Sabinum)

Noxali iudicio invitus nemo cogitur alium defendere, sed carere debet eo quem non defendit, si servus est: quod si liber est qui in potestate sit, indistincte ipsi sui de­fensio danda est:

D. 9.4.34 (Iulianus libro quarto ad Urseium Ferocem)

quotiens enim nemo filium familias ex causa delicti defendit, in eum iudicium datur

D. 9.4.35 (Ulpianus libro quadragensimo primo ad Sabinum)

et si condemnatus fuerit, filius iudicatum facere debet: tenet enim condemnatio. quin immo etiam illud dicendum est patrem quoque post condemnationem filii dumtaxat de peculio posse conveniri.

(Pomponius in the nineteenth book on Sabinus)

No one can be forced against his will to defend another person in a noxal action, but if it is his slave, he ought to lose him if he makes no defense. But if it is a free person-in-power, he (the child) should be given the unqualified right to conduct his own defense,

(Julian in the fourth book on Urseius Ferox)

for whenever no one defends a son-in-power in a suit for delict, the action is granted against the latter

(Ulpian in the forty-first book on Sabinus)

and if judgment is given against him, the son must discharge it himself, since he is liable for the judgment. In fact, this too must be said, that the father can also be sued after the adverse judgment against the son, but only up to the limit of the peculium.

1.      Refusal to Defend. Why would a paterfamilias simply refuse to defend a son­in-power instead of performing noxal surrender? Why would the praetor per­mit this?

2.      Automatic Surrender. Why does a refusal to defend a slave in a noxal action result in automatic surrender to the plaintiff, while the child-in-power is al­lowed to conduct a legal defense?

3.      Suing the Father. Why allow the paterfamilias to be sued after adverse judg­ment against the son? One possibility is that the son might have died before satisfying the judgment (see Case 120, which also specifies that liability is limited to the value of the peculium or for benefit received).