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“Occidere” and the Lex Aquilia

Published online by Cambridge University Press:  16 January 2009

N. H. Andrews
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Extract

This paper is concerned with the way in which the verb occidere was treated in the Lex Aquilia and with the explanation for this.

Professor Dieter Nörr appears to have offered the most recent explanation of the narrow scope given to the verb in the first chapter of the statute. He makes two points. First, he traces the distinction between direct killing (occidere) and indirectly causing death (mortis causam praestare or praebere) to early Greek law and speculates that this distinction was transmitted into Roman law through the Greek schools of rhetoric. Secondly, he suggests that the Lex Cornelia de sicarüs et veneficis included the phrase mortis causam praestare. If true, this second point would show how firmly the distinction had become established. The phrase would also have provided an obvious parallel for the jurists when engaged in interpreting the Lex Aquilia.

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Articles
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The Cambridge Law Journal , Volume 46 , Issue 2 , July 1987 , pp. 315 - 329
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Copyright © Cambridge Law Journal and Contributors 1987

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References

1 Crook, J. A., Athenaeum, Nuova Serie, Vol. LXII (University of Pavia) (1984), p. 67Google Scholar, examines the evidence supporting a reconstruction of all three chapters of this lex. There is no doubt that occidere was used in chapter one.

2 Nörr, D., “Causam Mortis Praebere,” in The Legal Mind. Essays Dedicated to Tony Honoré, (1986, Oxford), p. 203Google Scholar

3 Ibid., p. 212.

4 Or “mortis causam praebere”: ibid., p.216.

5 This is a jurisprudential term of art. H. L. A. Hart adopts the (mixed) metaphor of core and penumbra, the former representing settled, fixed or uncontested meaning, the latter uncertain and less secure meaning. See The Concept of Law, (1961) Oxford, ch. vii; (1958) 71 H.L.R. 593, 606–612.

6 A., Watson, The Law of Obligations in the Later Roman Republic, (1965, Oxford) pp. 241ffGoogle Scholar. He also, at p. 242 n.4, mentions Ulpian at D.9.2.27.33 who states that an actio legis aquiliae lies if a stone falls from a cart and crushes and breaks a thing. Watson says that this too could be a survival, under the third chapter, of an earlier stage of more liberal interpretation of the lex.

7 “We must accept ‘killing’ to embrace cases where the victim is hit with a sword, a cudgel or other weapon, or where he is done to death by the assailant's hands (if, for example, he strangles the victim) or is kicked or butted or is attacked in any other similar fashion.”

8 “A person is generally said to have ‘killed’ if he furnished a cause of death in any way whatsoever, but there will be liability under the Lex Aquilia only if death results from an application of force, as it were with one's hands, for the law's scope depends on interpretation of ‘caedere’ and ‘caedes’.”

9 Compare Gaius, 3.219, expressing scepticism.

10 This is not a case falling within D.9.2, but it can be safely said to be outside chapter one of the Lex Aquilia. The case arises, D.48.8.1. pr.-l (Marcian), in the context of the Lex Cornelia de sicariis et veneficis.

11 Compare the English discussion of an “offensive weapon” in R. v. Simpson [1983] 1 W.L.R. 1494.

12 See Stein, P., “School Attitudes in the Law of Delicts,” Studi in onore di Arnaldo Biscardi, Vol. II, 1982, (Milan), 281 at p. 291Google Scholar, for the problem of inciting dogs to bite others and whether it matters that the dog is not on a leash. He accepts that Proculus D.9.2.11.5 is dealing with occidere, preferring not to follow MacCormack, G., “Aquilian Studies,” (1975) 41 S.D.H.I., at p. 15Google Scholar who thinks Proculus is discussing rumpere's scope under chapter three. Julian's contrary view, that it is a case for an actio in factum, is described by Stein as savouring of “malicious mischief” from a Sabinian.

13 Of course, case (vii) involves a muscular response by a horse.

14 No doubt trickery or mistake might be relevant.

15 D.9.2.9.3 (Ofilius). This text is acutely discussed by Stein, op. cit., pp. 289–290, who emphasises that Ofilius draws the analogy with the person who lures a victim into an ambush where others then kill him. Gaius, Insi. 3.219, is clearly unpersuaded by this line of thought and is instead impressed by the fact that a person who throws another into a river acts violently (cp. D.9.2.51. pr at note 8 above, “adhibila vi el quasi manu”). Ofilius' example is one step removed from Gaius' since Ofilius is discussing the case of one who frightens a horse with the result that its rider is ejected into a river and dies.

16 To read Scott v. Shepherd (1773) 2 W. BC. 892; 96 E.R. 525, is to step back into the age of Julian and Ulpian and to be surprised by the anachronism that the Roman discussion is conducted in the prose of Boswell. Roman texts are not cited, but the discussion is uncannily similar to that preserved in the Digest. The question was whether trespass to D was committed by A on these facts: A on fair-day, 30 October 1770 (just before Guy Fawkes' night) throws a lighted squib containing a quantity of gunpower into a crowd. It falls upon B (who sold gingerbread) who, taking fright, throws it away; it falls next upon C who does the same as B; the squib now falls upon D, explodes and puts out D's eye. Nares and Gould JJ. and De Grey C.J. hold that this is trespass by A to D. Nares J., p. 894, states: “I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff. … [The present case] is like the case of the mad ox turned loose in a crowd.” Blackstone J. dissents, saying that an action on the case is necessary. He can be interpreted as having two reasons for requiring careful consideration of which form of action is appropriate. The first appears to be the need for clarity (p. 897), the second that a plaintiff in trespass who recovers less than forty shillings does not obtain costs, whereas in case, success for the plaintiff will always enable him to recover costs.

Blackstone J. then proceeds to analyse the facts. He says that the injury here was not “immediate” but “consequential” (p. 895). He distinguishes cases of “immediate” damage resulting from frenzied oxen or arrows deflected from trees, saying that the harm in such cases results from the original force (Blackstone J. uses the term “vis impressa”) for which the defendant is responsible, and that the force is not disturbed or interrupted by “free agents.” In Scon, by contrast, “the instrument of mischief, the squib, was at rest, till a new impetus and a new direction are given it … by two successive rational agents [viz., B and C].” He also stated (p. 896), that the intervening agents, B and C, “had not used sufficient circumspection in removing the damage from themselves.” For extensive examination of this case, its precursors and sequelae, see Prichard, M. J., “Scott v. Shepherd (1773) and the Emergence of the Tort of Negligence,” Selden Society, (1976, London)Google Scholar.

In the modern law of negligence, the test of direct harm, associated with Re Polemis [1921] 3 K.B. 560, Palsgrafv. Long Island Ry. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 and Smith v. L.S.W.R. (1870) L.R. 6 C.P. 14, has been supplanted by the test of reasonable foreseeability enunciated in Wagon Mount (No. I) [1961] A.C. 388. The development is charted in Winfield andlolowicz on Ton (12th edn., ed. Rogers, W. V. H.), (1984, London) pp. 126–137Google Scholar. The merits of the competing theories are assessed by Hart, and Honoré, , Causation in the Law (2nd edn.) (1985, Oxford), pp 267–275CrossRefGoogle Scholar. The author's conclusion at p. 275 is as follows: “the main effect of The Wagon Mound in contrast with the previous rule of Re Polemis, has been to exclude compensation where a freakish turn of events occurs, which involves a very unexpected type of causal process.”

17 An interesting parallel is the common conflation of “battery” and “assault,” so that they are both called “assault.” This is due to the confusing fact that they are in fact two separate parts of the tort of “assault.”

18 Supported also by D.48.8.1. pr.-l (Marcian). The Latin in the text above is: “A person who burns a house or a heap of corn placed next to a dwelling is ordered to be bound, beaten, and then burnt to death.”

19 “If someone drives away, or even kills, another's bees by making smoke, he seems rather to have provided the cause of their death than directly to have killed them, and so he will be liable to an actio in factum.” The passage is not included in Index Interpolatarum, Levy, E. and Rabel, E., (1929, Weimar)Google Scholar.

20 The appearance of the verb occidere in the second clause is doubly suspicious. First, there is no need to examine occidere in this context, since bees are not a species falling within the scope of the first chapter; secondly, because the distinction between a direct act of killing and an indirect act, mortis causam praestare, is in any case relevant only to the second possibility which is discussed, namely the bees being killed. It is submitted that the second phrase is not genuine and that the use of the word necare shows that killing by asphyxiating your victim is not an example of occidere.

21 See note 6 above.

22 P. Alfenus Varus, consul 39 B.C.; Jolowicz, and Nicholas, , Historical Introduction to Roman Law, (3rd edn.) (1972, Cambridge), p. 94Google Scholar.

23 “If a person breaks a bone with his hand or fist, then if his victim is a free man, let the penalty be three hundred asses; if the victim is a slave, one hundred and fifty.”

24 “If he injures a limb and no settlement is reached, let ‘talio’ be executed.”

25 Kelly, J., “The Meaning of the Lex Aquilia” (1964) 80 L.Q.R. 73f.Google Scholar, thinks that the lex is a direct successor to the Twelve Tables' form of the delict iniuria, namely the provision dealing with physical injury, membrum ruptum and os fractum.

26 (1936) 52 L.Q.R. 253.

27 “We accept that ‘to render asunder’ includes the case of one who wounds a slave either with a rod or whip or fist or one wh o strikes him with a weapon, or in any other way, with the result that a cut is made or he is bruised, but only if wrongful damage is thereby caused.”

28 Contrast the view presented here with that of Jolowicz, H. F., (1922) 38 L.Q.R. 220Google Scholar, who considered the third chapter to have covered at first only the total destruction of inanimate property.

29 Jolowicz and Nicholas, op. cit., at p. 171, n.8, rightly observe that if membrum ruptum had been restricted to the severance of a limb, then serious injuries which involved neither this nor the breaking of a bone (os fractum) would be merely subject to the residual penalty under the Twelve Tables of twenty-five asses, a sum payable for minor blows. Therefore they suggest that membrum ruptum covered “any permanent loss or disablement of some part of the body.” As an alternative, or supporting this, they suggest that os fractum “may have been confined to such fractures as produced no permanent disablement.” Interestingly, De Zulueta, in The Institutes of Gaius, vol. 2 (commentary) (1952, Oxford), suggests at p. 217Google Scholar that membrum ruptum involved wounding with a sword, dagger or knife. This would gain some, but admittedly, faint, support from D.9.2.27.17.

30 (1972)88 L.Q.R. 402.

31 Daube Noster (Essays dedicated to David Daube), p. 15. MacCormack, , “Aquilian Studies,” S.D.H.I., vol. 41 (1975) pp. 21ffGoogle Scholar. and 40ff., has also suggested that damages in an actio in factum would not be reckoned by reference to the slave's or pecus' highest value in the last year, but according to the plaintiffs “interesse.” The same would apply to the actio in factum in respect of all other loss (i.e. types of loss which, if directly inflicted, would be remedied under the third chapter). He also suggests that an actio in factum ad exemplum legis aquiliae would probably allow the possibility of double recovery if liability were denied and/or the possibility that damages might be reckoned by reference to the highest value in the relevant previous period (one year or thirty days). But these benefits, according to MacCormack, would accrue to the plaintiff only if the iudex exercised his discretion in favour of the plaintiff.

32 See also J. A. Crook, op. cit. note 1 above, at p. 75; P.G. Stein, op. cil. at note 12 above, p. 289.

33 P. G. Stein, ibid., pp. 287–293.

34 See note 2 above.

35 See notes 30 and 31 above.

36 Ulpian, libro octavo decimo adedictum, D.9.2.7.3: “Proinde si quis altcrius impulsu damnum dederit, Proculus scribit neque cum qui impulit teneri, quia non occidit, neque cum qui impulsus est, quia damnu m non iniuria dcdit: secundum quod in factum actio erit danda in eum qui impulit.”

“Thus, if someone does damage through being pushed by somebody else, Proculus writes that neither is liable under the lex; the one who pushed is not liable because he did not kill, nor is the one who was pushed because he did not do the damage unlawfully. Accordingly, an actio infactum will be awarded against the one who pushed.”

37 D.9.2.49 (see p. 322 and note 19 above); D.9.2.9. pr.-l Ulpian, libro octavo decimo ad edictum: “item si obstetrix medicamentum dederit et inde mulier perierit, Labeo distinguit, ut, si quidem suis manibus supposuit, videatur occidisse: sin vero dedit ut sibi mulier offeret, in faclum actionem dandam: quae sententia vera est, magis enim causam praestitit quam occidit.

Si quis per vim vel suasum medicamentum alicui infundit vel ore vel clystere vel si eum unxit malo veneno, lege Aquilia eum teneri, quamadmodum obstetrix supponens tenetur.' (Labeo reported by Ulpian.)

“Labeo makes this distinction if a midwife gives a drug from which the woman dies: if she administers it with her own hands, it would appear that she killed; but if she gave it to the woman for her to take it herself, an actio in faclum must be granted. This opinion is correct; for she provided a cause of death rather than killed.”

If someone administers a drug to anyone by force or persuasion, either in a drink or by injection, or rubs him with a poisonous potion, he is liable under the Lex Aquilia.”

38 I am indebted to Professor Peter Birks and Professor Peter Stein, both of whom generously read and commented on an earlier draft. As author, I take sole responsibility for remaining defects, patent or latent.