15 It is true that here the statute does not expressly say 'the highest value,' but Sabinus rightly held that the damages must be assessed as if the words 'highest value' occurred also in this chapter; the Roman people, who enacted this statute on the proposal of Aquilius the tribune, having thought it sufficient to use them in the first chapter only.
16 It is held that a direct action lies under this statute only when the body of the offender is substantially the instrument of mischief. If a man occasions loss to another in any other way, a modified action will usually lie against him; for instance, if he shuts up another man's slave or quadruped, so as to starve him or it to death, or drives his horse so hard as to knock him to pieces, or drives his cattle over a precipice, or persuades his slave to climb a tree or go down a well, who, in climbing the one or going down the other, is killed or injured in any part of his body, a modified action is in all these cases given against him. But if a slave is pushed off a bridge or bank into a river, and there drowned, it is clear from the facts that the damage is substantially done by the body of the offender, who is consequently liable directly under the lex Aquilia. If damage be done, not by the body or to a body, but in some other form, neither the direct nor the modified Aquilian action will lie, though it is held that the wrongdoer is liable to an action on the case; as, for instance, where a man is moved by pity to loose another's slave from his fetters, and so enables him to escape.
TITLE IV. OF INJURIES
By injury, in a general sense, is meant anything which is done without any right. Besides this, it has three special significations; for sometimes it is used to express outrage, the proper word for which—contumely—is derived from the verb 'to contemn,' and so is equivalent to the Greek 'ubris': sometimes it means culpable negligence, as where damage is said to be done (as in the lex Aquilia) 'with injury,' where it is equivalent to the Greek 'adikema'; and sometimes iniquity and injustice, which the Greeks express by 'adikia'; thus a litigant is said to have received an 'injury' when the praetor or judge delivers an unjust judgement against him.
1 An injury or outrage is inflicted not only by striking with the first, a stick, or a whip, but also by vituperation for the purpose of collecting a crowd, or by taking possession of a man's effects on the ground that he was in one's debt; or by writing, composing, or publishing defamatory prose or verse, or contriving the doing of any of these things by some one else; or by constantly following a matron, or a young boy or girl below the age of puberty, or attempting anybody's chastity; and, in a word, by innumerable other acts.
2 An outrage or injury may be suffered either in one's own person, or in the person of a child in one's power, or even, as now is generally allowed, in that of one's wife. Accordingly, if you commit an 'outrage' on a woman who is married to Titius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. But if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives. Finally, a father-in-law may sue on an outrage committed on his daughterinlaw, if the son to whom she is married is in his power.
3 Slaves cannot be outraged themselves, but their master may be outraged in their person, though not by all the acts by which an outrage might be offered to him in the person of a child or wife, but only by aggravated assaults or such insulting acts as clearly tend to dishonour the master himself: for instance, by flogging the slave, for which an action lies; but for mere verbal abuse of a slave, or for striking him with the fist, the master cannot sue.
4 If an outrage is committed on a slave owned by two or more persons jointly, the damages to be paid to these severally should be assessed with reference not to the shares in which they own him, but to their rank or position, as it is to the reputation and not to the property that the injury is done;
5 and if an outrage is committed on a slave belonging to Maevius, but in whom Titius has a usufruct, the injury is deemed to be done to the former rather than to the latter.