3. Injury (Iniuria)

Ulpian explains neatly in his commentary on the edicts on iniuriae what iniuria (injury) was: ‘specifically, “wrong” [iniuria] is the designation for contumely [contumelia].

First the general edict. Injury could be committed by a physical act, such as slapping a person’s face, or by words, such as scolding. It had to bear upon what we would call one’s personality rights: ‘Every contumely is inflicted on the person or relates to one’s dignity or involves disgrace: it is to the person when someone is struck; it pertains to dignity when a lady’s companion is led astray; and to disgrace when an attempt is made upon a person’s chastity.’⁴⁶ This itself shows that the ancient personality was a much wider concept.

It is not surprising that some things were considered injury which we would not regard in that way (and vice versa, of course). Thus if a teacher chastised a pupil, it was not an insult, since he merely wanted to correct him (yet, if excessive, it would constitute fault⁴⁸). Further, social level played a great role. Freedmen had to be respectful to their patrons and could only sue for injury if it constituted aggravated injury - for example, being treated as if they were slaves; the same applied to children who were not in paternal power, while those still in it could never raise an action. What ‘aggravated’ meant is specified in several texts. It depended on the social position of the person, the place, the time it happened, and whether it was accompanied by physical force - in short, it depended on the circumstances. One such a case is: ‘If a man claims as his slave someone whom he knows to be free,... he is liable to the action for injury.’⁴⁹ Suggesting that a free person was a slave was a grave injury. Hindering somebody from using public property was an injury too:

If someone prevent me from fishing in the sea or from lowering my net...., can I have the action for injury against him? There are those who think that I can.

In antiquity ‘public’ meant that something was indeed common to all citizens. Hindering somebody in using this was an injury to his citizenship;

it implied that he did not participate fully. Injury could also apply where we would find nuisance:

If the owner of lower premises, with the intention of smoking [something] out, causes smoke in the premises of his neigh­bour above, or if the owner of the upper premises throws or pours anything into those below, Labeo says that the action for injury does not lie. I think this is wrong, if it is done with the intention of injury.⁵¹

The injured person had to specify in detail the injury he claimed to have suffered, and he had to estimate his injury, but the judge would set the fine. Condemnation brought infamy, which in its turn barred the condemned person from public functions. In the fourth century AD the punishments were scourging for slaves, beating with cudgels for freemen of the lower orders, and relegation or exile for the higher orders.

Special edicts existed for shouting abuse in a group (convicium), bringing young boys, girls, or married women into disrepute (de pudicitia adtemptata), and shaming somebody (ne quid infamandi causa). Theoretically these delicts could have been addressed by the general edict, as Labeo himself says about the last of them.⁵² It is indeed an unresolved question whether the general edict was issued after the special edicts in order to comprise all cases not covered, or whether the special edicts were issued after the general edict in order to give more attention to these specific forms of injury.

Convicium was mob shouting, and the shouting had to be against good morals.

Finally, when Pompey came to attend a court case, Clodius stood in a prominent position and put a series of riddles to the gangs of louts he led, who had no respect for anyone or anything: ‘What do you call a lewd military commander?’ ‘What do you call a man in search of another man?’ ‘What do you call a man who scratches his head with one finger?’ And like a chorus which has been well trained in its responses, cued by Clodius, giving his toga a shake, they shouted in answer to each question ‘Pompey!’.⁵³

All of these questions suggested that Pompey was effeminate and a catamite, surely behaviour against good morals; it was aggravating too, considering the place where it happened. Pompey, however, did not sue Clodius.

Reputation was perhaps not everything, yet for many it meant much. Girls and married women had to think of theirs and, as this edict implies, they could not readily go out without an escort; the same may apply to boys. Pudicitia (chastity) was a great virtue for both girls and boys: ‘In the first place, as a boy and as a youth, despite his attractive looks he escaped all malicious gossip’, wrote the younger Pliny in praise of his protege Ummidius Quadratus.⁵⁴ Being followed closely by somebody quickly suggested an illicit affair: ‘It is one thing to accost, another to follow. A person accosts who verbally solicits chastity; he follows who silently walks close behind; an assiduous proximity more or less suggests something disreputable.’⁵⁵ But the following had to be contrary to good morals. The edict punished those who accosted, followed, or succeeded in luring the escort away.

Shaming (infamari) was punishable too. The edict was in fact very wide in purport, almost as wide as the general edict. But in practice it was directed at more specific conduct:

And so whatever one does or says to bring another into disrepute gives rise to the action for injury.

The first instances suggested that the victim was in some way connected with death, or that he was accused of something reprehensible (only close relatives of an accused could wear filthy garments⁵⁷). The edict referred to a ‘song’, but a lampoon was also covered. There were other ways to bring disrepute to a person: for example, spreading doubts about his financial solvency: ‘Similarly, if someone announces that he is selling a pledge to denigrate me, as though he had received it from me, Servius says that I can bring the action for injury.’⁵⁸

Another edict (si ei qui in alterius potestate erit) covered injury done to somebody in another’s power, sons and daughters, grandsons and granddaughters in paternal power. Further, the edict qui servum alienum adversos bonos mores verberavisse sanctioned the thrashing or torturing of somebody’s slave against good morals and without the owner’s consent. It was of course always permitted to correct or reform a slave physically,⁵⁹ or to torture him to investigate something. But if it was outrageous, it would be against good morals or could be considered an affront to his master and the master could sue; or the magistrate would sue. A final edict

(si quid aliud factum esse) was a kind of general clause: if anything else was alleged which implied injury, the praetor could take the measures he considered appropriate.