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 p1200  Vindicta

Article by George Long, M.A., Fellow of Trinity College
on p1200 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

VINDICTA. A class of actions in the Roman Law have reference to Vindicta as their object, which is thus expressed: ad ultionem pertinet, in sola vindicta constitutum est, Vindictam continet (Dig. 47 tit. 12 s6, 10; 29 tit. 2 s20 § 5). Some of these actions had for their object simply compensation, as the Actio doli. Others had for their object to give the complainant something more (poena) than the amount of his injury, as in the Furti actio, and sometimes in addition to this, compensation also as in the Vi Bonorum raptorum actio. A third class of actions had for its immediate object money or property, but this was not the ultimate object as in the cases already mentioned, but merely a means; the real object was Vindicta. This Vindicta consists in the re-establishment of a right which has been violated in the person of a complainant, in which case the individual discharges the office which the State discharges generally in matters of Crime. Those actions of which Vindicta is the object, are distinguished from other actions by forming exceptions to the general rules as to the legal capacity of those who may institute them, such as a filiusfamilias and one who has sustained a capitis deminutio.

The following are actions of this kind:—

1. Actio Injuriarum. When a filiusfamilias was injured, a wrong was done both to him and to his father. The injury done to the son is the only one that belongs to the head of Vindicta. The father generally brought the action, for he could acquire through his son all rights of action. But the son could bring an action in his own name with the permission of the Praetor, if the father was absent, or was in any way prevented from bringing the action; and in some cases, if the father refused to bring the action. The pecuniary damages which were the immediate object of the action belonged to the father, so that the son appeared in the double capacity of suing in his own name in respect of the Vindicta, and as the representative of his father in respect of the damages. If the son was emancipated, the right of action passed to him and was not destroyed by the capitis deminutio.

2. Actio sepulcri violati, which could be brought by the children of the deceased, even if they refused the hereditas, or by the heredes. The object was Vindicta, which was effected by giving the plaintiff damages to the amount of the wrong (quanti ob eam rem aequum videbitur, &c. Dig.47 tit. 12 s3). The action was consequently in bonum et aequum concepta, and the right was not affected by a capitis deminutio. If those who had a right to bring the action neglected to do so, any person might bring the action; but in that case the damages were limited to 100 aurei by the Edict.

3. Actio de effusis. When a free person was injured by anything being poured or thrown from a house, he had an actio in bonum et aequum concepta, the ultimate object of which was Vindicta.

4. An action for mischief done to a man by any dangerous animal belonging to another, when it happened through the want of proper caution on the part of the owner (Dig. 21 tit. 1 s40‑43).

5. Interdictum quod vi aut clam. This is a plaint which could be instituted by a filiusfamilias in his own name, because the object was Vindicta. 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 his enjoyment by some act of his neighbour, the filiusfamilias might have an action for the amount of the damage, but the pecuniary satisfaction would belong to the father as in the case of the Actio Injuriarum. But the action was not in bonum et aequum concepta, since it had a definite object, which was either the restoration of things to their former condition, which might be immediately for the benefit of the filiusfamilias, or to ascertain the value of the wrong done (quod interest).

6. The action against a Libertus in respect of an In Jus vocatio [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.

7. Querela Inofficiosi [Testamentum].

8. Actiones Populares, 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. If the act complained of be such as affects the interests of individuals as such, they can bring an action in preference to any other person and the action is not purely popular: to this class belong such actions as the Actio sepulcri violati. But if there are no persons who are individually interested in the matter complained of, or none such bring an action, any person (unus ex populo) may bring the action as the Procurator of the State, and he is not bound to give the security which an ordinary procurator must give. A filiusfamilias can bring such action. By virtue of the Litis contestatio 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 father. These actiones being for fixed sums of money are not in bonum et aequum conceptae.

With the populares actiones may be classed as belonging to the same kind, the Interdicta Publica or Popularia, and that Novi operis nuntiatio which is for the protection of the 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 usual rules as to legal capacity, all these modes of proceeding agree.

(Savigny, System des heut. Röm. Rechts, II.121.)

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