How To Become the Roman King (or Queen) of Torts

(With apologies to John Grisham and Melvin Belli)

So we’re clear on the terms. “Torts” is what we call compensation for injury, a civil procedure. Punishment for the crime committed involves a criminal procedure. This can lead to apparent contradictions (although not to an attorney). For example, in the notorious O. J. Simpson trial, Simpson was convicted in the civil tort action, while acquitted in the criminal murder action. Thus punishment and compensation are split. In Roman injury law (delicts), compensation and punishment are implicit in one action.

The basis of the Roman law of delict and hence modern tort law, lies in the Lex Aquilia of the early third century BC, sections one and three (section two covers other matters). Thus:

“The Lex Aquilia replaced all the laws which preceded it when the issue was loss or damage (iniuria). Now it is no longer necessary to use those laws, whether from the Twelve Tables or elsewhere.”
Ulpian in D. 9.2.1pr.

Lex aquilia omnibus legibus, quae ante se de damno iniuria locutae sunt, derogavit, sive duodecim tabulis, sive alia quae fuit: quas leges nunc referre non est necesse.

“The first section of the Lex Aquilia provides “if anyone wrongfully (iniuria) slays (occident) another’s male or female slave or a four-footed herd animal, let him be condemned to pay as much as the maximum the property was worth in the year prior to the slaving.”
Gaius in D. 9.2.2pr.

Lege aquilia capite primo cavetur: ” ut qui servum servamve alienum alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto”.

“In its third section the Lex Aquilia says ‘apart from injury by slaying to human or herd animals, if someone causes loss wrongfully by burning, breaking or rending, he shall be condemned to pay the owner as much as the thing will be worth in the next thirty days’.”
Ulpian in D. 9.2.27.5

Tertio autem capite ait eadem lex aquilia: ” ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto”.

There are two crucial words in these two sections. “Wrongfully” (iniuria) and “slay” (occiderit, occisos). For this post, we’ll consider just the first section, which treats slaying. Next post will be on the third section, which covers property damage.

“Wrongfully.” The jurists take this to mean, in so many words, “without legal right.” Thus:

“If a slave of either gender is slain unlawfully, the Lex Aquilia applies. It is properly added that he be slain unlawfully; slaying alone is not at all enough but it must absolutely be done unlawfully.”
Ulpian D. 9.2.3

Si servus servave iniuria occisus occisave fuerit, lex aquilia locum habet. iniuria occisum esse merito adicitur: non enim sufficit occisum, sed oportet iniuria id esse factum.

This last quote implies there can be lawful slaying. And so there is! Read on!

“Thus if I slay your slave who was lying in wait to rob me, I’m good. Natural reason allows a person self-defense against danger.”
Gaius D.9.2.4pr

Itaque si servum tuum latronem insidiantem mihi occidero, securus ero: nam adversus periculum naturalis ratio permittit se defendere.

Now for Some Fun
Okay, it’s been a heavy, if interesting lift. But getting to cases, real and hypothetical, is the payoff. You need an additional concept. An Aquilian action on slaying can be either statutory or analogous. Statutory if it’s done wrongfully (iniuria). The Praetor  will grant it without question. Second is analogous, when the killing is not done wrongfully, but there is a person with responsibility. This kind of action is at the Praetor’s discretion. If he grants it, it goes into his published edict and becomes a part of Roman law. And this is how Roman law grows and grows to the mighty edifice, or erection, that it has become by Justinian’s sixth century AD codification of it.

I. I pour poison down a slave’s throat. Statutory. I substitute a bottle of poison for the slave’s water bottle. Analagous. Physical directness is one way to make the distinction of the actions or, as the jurists put it, corpore corpori (by means of one body against another body).

2. I persuade a slave to climb up a tree which I know is diseased and liable to fall at any moment. The slave does so, the tree collapses, and the slave buys the farm, so to speak. Analogous.

3. A highway robber strips the slave of his clothing on a bitterly cold night. The slave dies. Analogous. Not only is there no physical directness, but it can be viewed as furnishing the cause of death (likewise in the analogous action of case one above).

[The robber is in bigger trouble. There’s an action for theft by the slave’s owner, and if he sees it happening at night he can legally kill the robber. Succinctly, the robber’s ass is grass. Stupid robber. But criminals are stupid; that’s why they’re criminals. Or, as Dick Tracy might say, “what a fitting finish for the evil rat.”]

But there are even more insights and excites in the next post. We’ll look at property damage, and the plot really thickens. Coming soon to a blog near you right now.