p234 Calumnia

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

on pp234‑235 of

CALU′MNIA. Calumniari is defined by Marcian (Dig. 48 tit. 16 s1), Falsa crimina intendere; a definition which, as there given, was only intended to apply to criminal matters. The definition of Paulus (Sentent. Recept. I. tit. 5) applies to matters both criminal and civil: Calumniosus est qui sciens prudensque per fraudem negotium alicui comparat. Cicero (de Off. 1.10) speaks of "calumnia," and of the nimis callida et maliciosa juris interpretatio, as things related. Gaius says, Calumnia in adfectu est, sicut furti crimen; the criminality was to be determined by the intention.

When an accuser failed in his proof, and the reus was acquitted, there might be an inquiry into the conduct and motives of the accuser. If the person who made this judicial inquiry (qui cognovit), found that the accuser had merely acted from error of judgment, he acquitted him in the form non probasti; if he convicted him of evil intention, he declared his sentence in the word calumniatus es, which sentence was followed by the legal punishment.

According to Marcian, the punishment for calumnia was fixed by the lex Remmia, or as it is sometimes, perhaps incorrectly, named, the lex Memmia (Val. Max. III.7 § 9). But it is not p235 known when this lex was passed, not what were its penalties. It appears from Cicero (Pro Sext. Rosc. Amerino, c20), that the false accuser might be branded on the forehead with the letter K, the initial of Kalumnia; and it has been conjectured, though it is a mere conjecture, that this punishment was inflicted by the lex Remmia.

The punishment for calumnia was also exilium, relegatio in insulam, or loss of rank (ordinis amissio); but probably only in criminal cases, or in matters relating to a man's civil condition (Paulus, Sentent. Recept. V.1.5, V.4.11).

In the case of actiones, the calumnia of the actor was checked by the calumniae judicium, the judicium contrarium, the jusjurandum calumniae, and the restipulatio; which are particularly described by Gaius (IV.174‑181). The defendant might in all cases avail himself of the calumniae judicium, by which the plaintiff, if he was found to be guilty of calumnia, was mulcted to the defendant in the tenth part of the value of the object-matter of the suit. But the actor was not mulcted in this action, unless it was shown that he brought his suit without foundation, knowingly and designedly. In the contrarium judicium, of which the defendant could only avail himself in certain cases, the rectitude of the plaintiff's purpose did not save him from the penalty. Instead of adopting either of these modes of proceeding, the defendant might require the plaintiff to take the oath of calumnia, which was to the effect, Se non calumniae causa agere. In some cases the defendant also was required by the praetor to swear that he did not dispute the plaintiff's claim, calumniae causa. Generally speaking, if the plaintiff put the defendant to his oath (jusjurandum ei deferebat), the defendant might put the plaintiff to his oath of calumny (Dig. 12 tit. 2 s37). In some actions, the oath of calumny on the part of the plaintiff was a necessary preliminary to the action. In all judicia publica, it seems that the oath of calumnia was required from the accuser.

If the restipulationis poena was required from the actor, the defendant could not have the benefit of the calumniae judicium, or of the oath of calumny; and the judicium contrarium was not applicable to such cases.

The edict De Calumniatoribus (Dig. 3 tit. 6) applied generally to those who received money, calumniae causa, for doing an act or abstaining from doing an act. The edict applied as well to publica crimina as to pecuniariae causae; for instance in the matter of repetundae the edict applied to him who for calumnia received money on the terms of prosecuting or not prosecuting a person. This edict provided for some cases, as threats of procedure against a man to extort money, which were not within the cases provided for by the edict, Quod metus causa (Dig. 4 tit. 2).