ENACTMENTS OF JUSTINIAN.
|~ Book XLVII ~|
( S. P. Scott, The Civil Law, X-XI, Cincinnati, 1932 ).
Tit. 1. Concerning private offences.
1. Ulpianus, On Sabinus, Book XLV.
The Civil Law prescribes that heirs shall not be liable to penal actions any more than other successors, and therefore they cannot be sued for theft. But although they are not liable in an action of theft, still they will be in one to compel them to produce the property in question, if they have possession of it, or if they have committed fraud to avoid being in possession; since when it is once produced, they will be liable to be sued for its recovery. A personal action will also lie against them.
(1) It is also established that an heir can bring an action of theft, as the prosecution of certain crimes is conceded to heirs. In like manner, an heir is entitled to the action granted by the Aquilian Law; but a suit for injury sustained will not lie in his favor.
(2) Not only in the action of theft, but also in other actions arising from criminal offences, whether they are civil or praetorian, it is decided that the crime follows the person.
2. The Same, On Sabinus, Book XLIII.
Where several criminal offences take place at the same time, this does not cause impunity to be granted for any of them, for one crime does not diminish the penalty for another.
(1) Therefore, where anyone robs a man and kills him, he is liable to an action of theft, for the reason that he robbed him, and to the Aquilian action, because he killed him; and neither one of these actions destroys the other.
(2) The same thing must be said if he robbed him by violence, and then killed him, for he will be liable to an action for robbery with violence, as well as under the Aquilian Law.
(3) Where a personal suit is brought for a slave who has committed theft, the question arose, whether one could also be brought under the Aquilian Law. Pomponius says that this can be done, because the action under the Aquilian Law calls for a different valuation than the one to recover property which has been stolen; as the Aquilian Law includes the greatest value of the stolen article during the year preceding the offence; but the personal action for recovery on account of theft does not go further back than the time of the joinder of issue. If, however, a slave has committed these offences, no matter under what noxal proceeding he may be surrendered, the other right of action will be extinguished.
(4) Likewise, if anyone beats a stolen slave with a scourge, he will be liable to two actions; that of theft and that of injury sustained ; and if he should kill him, he will be liable to three actions.
(5) Again, if anyone has stolen a female slave belonging to another, and debauched her, he will be liable to two actions; for he can be sued for having corrupted the slave, as well as for having stolen her.
(6) Moreover, if anyone should wound a slave whom he has stolen, there will be ground for two actions against him; that authorized by the Aquilian Law, and the action of theft.
3. The Same, On the Duties of Proconsul, Book II.
Where anyone desires to bring an action based on a criminal offence, and intends to do so for his own pecuniary benefit, he must have recourse to the ordinary proceeding, and cannot be compelled to prosecute the culprit for the crime. If, however, he wishes to sue for the penalty under the extraordinary proceeding, he must then sign the accusation of the crime.
Tit. 2. Concerning thefts.
1. Paulus, On the Edict, Book XXXIX.
Labeo says that the word "theft" is derived from the term meaning black, because the offence is committed secretly, and in obscurity, and generally at night; or from the word "fraud," as Sabinus held; or from the verbs to take, and to carry away; or from the Greek term which designates thieves as fwras. And, indeed, the Greeks themselves derived the word from the verb to carry away.
(1) Hence the sole intention of committing a theft does not make a thief.
(2) Thus, anyone who denies that a deposit has been made with him does not immediately become liable to an action for theft, but only when he has hidden the property with the intention of appropriating it.
(3) A theft is the fraudulent handling of anything with the intention of profiting by it; which applies either to the article itself or to its use or possession, when this is prohibited by natural law.
2. Gaius, On the Edict, Book XIII.
There are two kinds of theft: manifest and non-manifest.
3. Ulpianus, On Sabinus, Book XLI.
A manifest thief is one whom the Greeks call ep' autofwrw ; that is to say, one who is caught with the stolen goods.
(1) It makes little difference by whom he is caught, whether by one to whom the property belongs, or by another.
(2) But is he a manifest thief only when he is caught in the act, or when he is caught somewhere else? The better opinion is, as Julianus also says, that even if he is not caught where he committed the crime, he is, nevertheless, a manifest thief if he is seized with the stolen property before he has conveyed it to the place where he intended to take it.
4. Paulus, On Sabinus, Book IX.
The place where anyone intends to take stolen property should be understood to mean where he expected to remain that day with the proceeds of the theft.
5. Ulpianus, On Sabinus, Book XLI.
Therefore, if he is arrested in a public or a private place, before he has transported the stolen property to the destination which he had in view, he is considered a manifest thief; provided he is taken with the stolen article in his possession. This was also stated by Cassius.
(1) If, however, he has carried the stolen property to the place where he intended to take it, even if he is seized with it in his possession, he is not a manifest thief.
6. Paulus, On Sabinus, Book IX.
For although theft is often committed by merely handling an object, still, in the beginning, that is to say, when the theft was committed, is the time which has been established to determine whether or not the culprit is a manifest thief.
7. Ulpianus, On Sabinus, Book XLI.
If anyone in servitude commits a theft, and is caught after having been manumitted, let us see whether he is a manifest thief. Pomponius, in the Nineteenth Book on Sabinus, says that he cannot be prosecuted as a manifest thief, because the origin of a theft committed while in slavery was not that of manifest theft.
(1) Pomponius very properly says, in the same place, that the thief does not become a manifest one unless he is caught. Moreover, if I commit a theft by taking something from your house, and you have concealed yourself to prevent me from killing you, even if you saw me commit the theft, still, it is not a manifest one.
(2) Celsus, however, adds to the result of detection, that if you have seen the thief in the act of stealing, and you run forward to arrest him, and he takes to flight, he is a manifest thief.
(3) He thinks it makes very little difference whether the owner of the property, a neighbor, or any passer-by, catches a thief.
8. Gaius, On the Provincial Edict, Book XIII.
What a non-manifest theft is readily becomes apparent; for what is not manifest for this very reason is non-manifest.
9. Pomponius, On Sabinus, Book VI.
A person who can bring an action of theft is not entitled to any further proceeding based on the constant handling of the articles taken by the thief, even to recover any accession which may accrue to the property after it has been stolen.
(1) If I should bring suit to recover the property from the thief, I will still be entitled to a personal action. It may, however, be said that it is the duty of the judge who has jurisdiction of the case, not to order the restitution of the property, unless the plaintiff dismisses the personal action. If, however, the defendant, after having had judgment rendered against him in the personal action, pays the damages assessed, so that he is absolutely discharged from liability; or (which is the better opinion) if the plaintiff is ready to return the damages, and the slave is not given up to him, the possessor should have judgment rendered against him for the amount sworn to by the other party in court.
10. Ulpianus, On Sabinus, Book XXIX.
He who was interested in not having the property stolen is entitled to an action for theft.
11. Paulus, On Sabinus, Book IX.
The party in interest is entitled to the action for theft if the case is an honorable one.
12. Ulpianus, On Sabinus, Book XXIX.
Therefore, a fuller who has received clothing for the purpose of mending and cleaning it has always a right of action, as he is responsible for its safe-keeping. If, however, he is not solvent, the owner of the property can bring suit, for he who has nothing to lose sustains no risk.
(1) The action of theft is not granted to a possessor in bad faith —although he is interested in not having the property stolen—for the reason that it is at his risk. No one can acquire a right of action based upon dishonesty, and therefore the action of theft is only granted to a bona fide possessor, and not to one who holds the property in bad faith.
(2) If the stolen article has been given in pledge, we also grant an action for theft to the creditor, although it does not constitute part of his property. Further, not only do we grant the action of theft against a stranger, but also against the owner of the property himself; as Julianus stated. It is established that it also is granted to the owner, and, consequently, he is not liable to the action for theft, but he can bring it. It is granted to both parties, because both are interested; but is the creditor always interested, or is this only the case when the debtor is insolvent? Pomponius thinks that it is always to his interest to have the pledge, which opinion Papinianus adopts in the Twelfth Book of Questions. It is better to say that this appears at all times to be the interest of the creditor; and this was frequently stated by Julianus.
13. Paulus, On Sabinus, Book V.
A person to whom property is due under the terms of a stipulation is not entitled to an action for theft if it should be stolen, even though the debtor may be to blame for not having delivered it to him.
14. Ulpianus, On Sabinus, Book XXIX.
Where property which has been bought is not delivered to the person who purchased it, Celsus says that he will not be entitled to an action for theft, but that the vendor can bring this action. It will certainly be necessary for him to direct the purchaser to bring the action for theft, as well as the personal action, and the one to recover the property, and if anything is obtained by means of these proceedings, he must deliver it to the purchaser; which opinion is correct, and is accepted by Julianus. It is clear that the risk of the property must be assumed by the purchaser, provided the vendor had charge of it before he delivered it.
(1) Moreover, the purchaser is not entitled to an action for theft before delivery, and the question has been asked whether the purchaser himself, if he should steal the property, is liable to an action for theft? Julianus, in the Twenty-third Book of the Digest, says that if a purchaser, after having paid the price of the property, steals it, and the vendor has guaranteed its safe-keeping, he will not be liable to an action for theft. It is clear, however, that if he should steal the property before paying the money, he will be liable to an action for theft, just as if he had stolen a pledge.
(2) Again, tenants on land, although they are not the owners of the property, but because they have an interest in it, can bring an action of theft.
(3) Let us next examine whether the person with whom the property was deposited is entitled to an action for theft. As he gives a guarantee against fraud, it is held with reason that he is not entitled to an action for theft; for what interest has he if he has not been guilty of fraud? If he has acted fraudulently, the property is at his risk, but he ought not to ask for an action for theft on the ground that he has been guilty of fraud.
(4) Julianus, in the Twenty-second Book of the Digest, also says that, because it has been settled with reference to all thieves, that they cannot bring an action for theft on account of the property which they themselves have stolen; neither can he, with whom property has been deposited, bring an action for theft, although he has begun to be responsible for the property, if he has handled it with the intention of stealing it.
(5) Papinianus discusses the point that if I should receive two slaves in pledge for ten aurei, and one of them should be stolen, and the other that was left was not worth less than ten aurei, whether I will only be entitled to an action for theft to the amount of five aurei, for the reason that I am sure of the other five in the person of the remaining slave; or, indeed, because the latter may die, it should be held that I am entitled to an action for ten, even if the remaining slave is of great value. I incline to the latter opinion, for we should not consider the pledge which was not taken, but the one which was stolen.
(6) He also said that if ten aurei are due me, and a slave given in pledge for them has been stolen, and I have recovered ten aurei by an action for theft, I will not be entitled to another action for theft if the slave should be stolen a second time, because I have ceased to have an interest when I have once obtained that which was due me. This is the case where the theft was committed without any fault of mine, for if I was to blame, as I had an interest because I would be liable in an action on pledge, I can bring the action for theft. If, however, I was not to blame, it appears that there is no doubt that an action will lie in favor of the owner of the property, which will not be granted to the creditor. This opinion Pomponius approves in the Tenth Book on Sabinus.
(7) The same authorities assert that if two slaves are stolen at the same time, the creditor will be entitled to an action for theft on account of both of them; not for the entire sum, but to the extent of his interest estimated by dividing the amount which is due to him with reference to each of the slaves. If, however, the two slaves should be stolen separately, and the creditor has collected the entire amount on account of one of them, he can recover nothing on account of the other.
(8) Pomponius, in the Tenth Book on Sabinus, also says that if he to whom I have lent something for use, commits fraud with reference to the property loaned, he cannot bring the action for theft.
(9) Pomponius holds the same opinion with reference to a person who, by the direction of someone, has received the property for transportation.
(10) The question arises whether a father is entitled to an action for theft when property has been lent for use to his son. Julianus says that a father cannot bring the action under these circumstances, because he should not be responsible for the safe-keeping of the property; just as he says that anyone who becomes surety for someone to whom property is loaned for use is not entitled to an action for theft. For he holds that not everyone, without distinction, to whose interest it is that the property should not be lost, is entitled to an action for theft; but only he who is liable because it was his fault that the same property has been destroyed. Celsus, also, approves this opinion in the Twelfth Book of the Digest.
(11) Is a man who has acquired a slave by a precarious tenure entitled to an action for theft if the slave is stolen, is a question which may be asked. And, as a civil suit cannot be brought against him, because property held by a precarious tenure resembles a donation, and therefore an interdict appears to be necessary, he will have no right to an action for theft. I think, after an interdict has been granted, it is clear that he ought to offer a guarantee against negligence, and hence he can bring an action for theft.
(12) Where anyone has leased property, he will be entitled to an action for theft, provided it was stolen through his negligence.
(13) Where a son under paternal control is stolen, it is evident that his father can bring an action for theft.
(14) If property should be loaned for use, and he to whom it was loaned should die, although theft cannot be committed against an estate, and therefore the heir of the person to whom the article was lent cannot institute proceedings, still, the lender can bring the action for theft. The same rule applies to property which has been pledged or hired, for although the action for theft is not acquired by an estate, still it is acquired by the parties interested in the same.
(15) The action for theft not only lies in favor of him to whom the property was lent, on account of said property, but also on account of anything connected with it, because he was responsible for its safe-keeping. For if I lend you a slave for use, you can bring an action for stealing his clothing, although I did not lend you the garments which he wore. Likewise, if I lend you beasts of burden, and a colt is following one of them, I think that an action for theft will lie for stealing the colt, although it was not included in the loan.
(16) The question arose, what then is the nature of the action for theft which is granted to the person to whom property was lent for use? I think that actions for theft will lie in favor of all those who are responsible for the property of others, whether it is lent for use, leased, or pledged, provided it is stolen; but a personal action will only lie in favor of him who is the owner.
(17) If a letter which I have sent to you should be intercepted, who will have a right to bring the action for theft? And, in the first place, it must be ascertained to whom the letter belonged, whether to the person who sent it, or to him to whom it was despatched. If I gave it to a slave of him to whom it was sent, it was immediately acquired by the latter. If I gave it to his agent, this is also the case, because, as possession can be acquired by means of a free person, the letter immediately became his property; and this is especially true if he was interested in having it. If, however, I sent a letter which was to be returned to me, it will remain mine, because I was unwilling to relinquish or transfer the ownership of it. Who then can bring the action for theft? He can do so who is interested in not having the letter stolen, that is to say, the individual who was benefited by what it contained. Therefore, it may be asked whether he, also, can bring the action for theft to whom the letter was given in order to be conveyed to its destination. He can do so if he was responsible for the safe-keeping of the letter, and if it was to his interest to deliver it he will be entitled to an action for theft. Suppose that the letter stated that something should be delivered to him, or done for him; he can then bring an action for theft, if he assumed responsibility for its delivery, or received a reward for carrying it. In this instance, he resembles an inn-keeper, or the master of a ship; for we grant them an action for theft, if they are solvent, as they are responsible for property.
15. Paulus, On Sabinus, Book V.
A creditor, whose pledge has been stolen, has an interest not merely to the extent of his claim, but he can bring an action of theft for the entire value of the property stolen, but he must return to the debtor all in excess of his debt which can be recovered in an action on pledge.
(1) The owner of the property who has stolen something of which another enjoys the usufruct is liable to the usufructuary in an action for theft.
(2) If anyone who has lent you an article for use should steal it; Pomponius says that he will not be liable in an action for theft, as you have no interest in the matter, for an action based on the loan of the property cannot be brought against you; hence, if you have retained the article on account of some expense which you have incurred with reference to it, you will be entitled to an action for theft, even against the owner himself, if he should steal it, because, in this instance, the property takes the place of a pledge.
16. The Same, On Sabinus, Book VII.
It is not a rule of law that a father cannot bring an action for theft against his son, who is under his control, but it presents an obstacle from the nature of the case; because we cannot bring suit against those who are under your control, any more than they can bring suit against us.
17. Ulpianus, On Sabinus, Book XXXIX.
Our slaves and our children can, indeed, steal from us, but they will not be liable to an action for theft; as he who can decide the case of a thief has no need to bring suit against him. Therefore, no action was granted to him by the ancient legislators.
(1) Hence the question arose, if a slave was either alienated or manumitted, whether he would be liable to an action for theft. It was decided that he is not liable, for a cause of action which does not exist in the beginning cannot afterwards arise against a thief of this kind. It is, however, clear that if, after having been manumitted, he should appropriate any property, he can be said to be liable to such an action, because he then commits a veritable theft.
(2) When, however, a slave whom I purchased, and who was delivered to me, is returned to me under a conditional clause of the sale, he should not be considered as ever having belonged to me, but he has been mine, and has ceased to be such. Therefore Sabinus says that, if he commits a theft, his position is such that the person who returned him will not be entitled to an action for theft. But although he cannot bring such an action, still, when he is sent back, the value of the property stolen should be estimated and included in the action for his return.
(3) If a fugitive slave should steal from his master, the question was asked whether the latter could also bring an action against the person who had bona fide possession of him before he was restored to the power of his master. This point gives rise to some difficulty; for although I may be considered to have had possession of the slave during the time in which he was a fugitive, still I will not be liable to an action for theft, as he was not under my control. For Julianus says that when I seemed to possess him, this was of no advantage except to enable me to acquire him by usucaption. Therefore Pomponius, in the Seventeenth Book on Sabinus, says that the action for theft will lie in favor of the owner whose slave was in flight.
18. Paulus, On Sabinus, Book IX.
When it is said that the injury follows the person, this is true to the extent that the right of action follows him who commits the damage, where it arises against anyone in the beginning. Hence, if your slave steals something from me, and, having become his owner, I sell him, the Cassians hold that I cannot bring an action against the debtor.
19. Ulpianus, On Sabinus, Book XL.
In an action for theft, it is sufficient for the property to be described in such a way that it can be understood what it is.
(1) It is not necessary to mention the weight of vessels, therefore it will be sufficient to say a dish, a plate, or a bowl. The material of which the article is composed must, however, be stated; that is, whether it is of silver, or gold, or anything else.
(2) Where anyone brings suit for unmanufactured silver, he should say an ingot of silver, and give its weight.
(3) The number of coins which have been stolen from the owner must be included, for instance, so many aurei, or more.
(4) The question arises whether the color of a garment should be mentioned. It is true that this should be done, for, just as where a theft of plate is involved, a golden bowl is mentioned, so, where a garment is concerned, the color should be stated. It is clear that if anyone should swear that he cannot positively designate the color, the necessity of the case should excuse him.
(5) Where anyone gives property in pledge, and then steals it, he will be liable in an action for theft.
(6) The owner is not only considered as guilty of the theft of property which has been pledged, when he takes it from the creditor who possesses or holds it, but also if he should remove it at a time when he did not possess it; for instance, if he should sell the article which had been pledged; for it is settled that, under such circumstances, he commits theft. Julianus, also, is of this opinion.
20. Paulus, On Sabinus, Book IX.
Where brass is given in pledge, and it is stated to be gold, a dishonorable act, but not a theft, is committed. If gold is pledged, and afterwards, under the pretext of weighing, or sealing it, brass is substituted for the gold, the person who does so commits a theft, for he has appropriated property given in pledge.
(1) If you purchase my property in good faith, and I steal it from you, or even if you are entitled to the usufruct thereof, and I put it aside with the intention of appropriating it, I will be liable to you in an action for theft, notwithstanding I am the owner of the property. In these cases, however, usucaption will not be prevented, as where it is stolen; for, if another had stolen it, and the property should again come under my control, usucaption will continue to run.
21. Ulpianus, On Sabinus, Book XL.
The following question frequently arises, namely: where anyone removes a measure of grain from a heap, whether he steals the whole of it or only the amount which he appropriates. Ofilius thinks that he steals the entire heap, for Trebatius says that a person who touches the ear of anyone is considered to have touched him all over; hence, if anyone opens a cask, and takes out a little wine, he is understood to have stolen not merely what he removed, but all of it. It is, however, true that, under these circumstances, he is only liable in an action for theft for the amount which he carried away. For if anyone opens a closet, which he cannot remove, puts aside everything it contains, and then departs; and afterwards, having returned, removes one of the articles, and is caught before he reaches his destination, he will be guilty of both manifest and a non-manifest theft of the same property. For he who, in the daytime, cuts down growing grain, and puts it aside with the intention of removing it, is both a manifest and a non-manifest thief, so far as what he has cut is concerned.
(1) If anyone, who has deposited a bag of twenty sesterces, should receive another bag in which he knows there are thirty, through the mistake of the person who gave it to him, who thought that his twenty were contained therein, it is decided that he will be liable for the theft of ten sesterces.
(2) Where anyone steals brass, when he thinks he is stealing gold, or vice versa, or he thinks that the value of the article is less, when it is more, he commits a theft of what he removed, according to the Eighth Book of Pomponius on Sabinus. Ulpianus is of the same opinion.
(3) If, however, anyone steals two bags, one of ten, and the other of twenty aurei, one of which he thought belonged to him, and the other he knew to belong to someone else, we say that he only steals the bag which he believed belonged to another, just as if he should steal two cups, one of which he thought was his own, and the other he knew belonged to someone else, for he only steals one of them.
(4) But where he thinks that the handle of a cup belongs to him, and it actually is his, Pomponius says that he is guilty of stealing the entire cup.
(5) If, however, anyone should steal the sixth part of a measure of wheat from a loaded ship, does he commit a theft of the entire load, or only of the sixth part of the measure of wheat? This question is more applicable to a granary, which is full, and it is very severe to hold that a theft of all of it is committed. And what would be the rule in the case of a reservoir of wine, or a cistern of water, or what in that of a ship loaded with wine, as there are many of these in which wine is poured? And what shall we say of him who has drunk of the wine; is he to be considered to have stolen all of it? The better opinion is that we should say that he has not stolen it all.
(6) If you suppose two jars of wine to be placed in a warehouse, and that one of them is stolen, the theft has reference to that one, and not to the entire warehouse; just as where one of several portable articles in a granary is removed.
(7) A person who enters a room with the intention of committing a theft is not a thief, although he may have entered for that purpose. What, then, is the rule? To what action will he be liable? He can be accused of committing damage or violence, if he entered by force.
(8) Likewise, if he opened or broke anything of great weight, which he was not able to remove, an action for theft for the entire amount cannot be brought against him, but only for what he took away, because he was unable to take it all. Hence, if he removed a cover which he could not take away, in order to obtain access to certain articles, and then appropriated some of them, although he may have been able to remove the objects therein contained separately, but could not take the entire contents together; he is only considered to have stolen the thing which he removed, and not the others. If he was able to remove the entire receptacle, we say that he steals the whole of it, although he may have detached the cover in order to take some, or a certain number of the articles therein contained. This was also the opinion of Sabinus.
(9) If two or more persons should steal a beam, which any one of them alone is unable to lift, it must be said that all of them are guilty of stealing it, although none of them singly could have handled or removed it, and this is our practice. For it cannot be held that each one committed a theft proportionally, but that all of them stole the whole of it. Hence it results that each of them will be liable for theft.
(10) And although a person may be liable in an action of theft for property which he did not remove, still, a personal action cannot be brought against him, because such a proceeding will not lie to recover property which has been carried away. This was also the opinion of Pomponius.
22. Paulus, On Sabinus, Book IX.
Where a thief breaks or destroys anything, which he did not handle for the purpose of stealing it, an action of theft cannot be brought against him on this account.
(1) If, for instance, a chest should be broken into with the intention of stealing pearls, and they were handled with this dishonest purpose, it seems that the culprit had intended to steal them alone; which is correct. For the other articles which were displaced in order to reach the pearls were not handled for the purpose of stealing them.
(2) Anyone who scrapes a silver dish is a thief of all of it, and he is liable to an action for theft to the extent of the owner's interest.
23. Ulpianus, On Sabinus, Book XLI.
A child under the age of puberty can commit a theft if he is capable of crime, as Julianus states in the Twenty-second Book of the Digest. Likewise, an action for injury sustained can be brought against a child under the age of puberty, because the theft was committed by him; but this admits of a modification, for we do not think that the action under the Aquilian Law which can be brought against a child under the age of puberty, who is capable of guilt, is applicable to infants. What Labeo says is also true, that is, where theft has been committed with the aid of a child under the age of puberty, it will not be liable.
24. Paulus, On Sabinus, Book IX.
Julianus says that a personal action for recovery cannot be brought against him.
25. Ulpianus, On Sabinus, Book XLI.
The rule adopted by most authorities, that the theft of a tract of land cannot be committed, is true.
(1) Hence, the question arises, if anyone is ejected from land, can a personal action for its recovery be brought against him who ejected him? Labeo denies that it can. But Celsus thinks that a personal action can be brought to recover possession, just as when movable property is stolen.
(2) There is no doubt that an action of theft can be brought where anything is removed from land, for example, trees, stones, sand, or fruits, which someone has taken with the intention of stealing them.
26. Paulus, On Sabinus, Book IX.
If wild bees swarm upon a tree of your land, and anyone removes either the bees or their honey, he will not be liable for theft to you, because they were not yours, and it is established that they are included among those things which can be seized on land or sea, or in the air.
(1) It is also settled that a tenant who pays rent in money can bring an action for theft against anyone who steals his standing crops, because they would have begun to belong to him as soon as he had gathered them.
27. Ulpianus, On Sabinus, Book XLI.
Anyone who appropriates account-books, or written instruments, is liable for theft, not only for the value of the account-books, but also for the interest which the owner had in them, which has reference to the estimate of the sums included in the accounts, that is to say, if they amounted to that much money; for instance, if they contained an account of ten aurei, we say that this sum should be doubled. If, however, no claims were entered in the accounts because they had been paid, should not the estimate of the value of the account-books themselves only be considered? For what other interest could the owner have in them? It may be held that, because sometimes debtors desire the accounts to be returned to them, as they say that they have paid sums which are not due, it is to the interest of the creditor to hold the accounts, in order that no controversy may arise respecting them. And, generally speaking, it should be said that double the value of the interest involved is asked in cases of this kind.
(1) Hence, where anyone who has other proofs and bank-registers has had a note stolen from him, it may be asked whether double the amount of the note should be estimated, or whether this should not be done on the ground that he has no interest in it. For what interest can he have when the debt can be proved in some other way; for instance, if it is included in two different accounts. For the creditor is not considered to have lost anything, if there happens to be another evidence of the debt which renders him secure.
(2) Likewise, when a receipt is stolen, it must also be said that there will be ground for an action of theft to the extent of the owner's interest. It seems to me, however, that he has no interest in it, if other evidence exists to show that the money has been paid.
(3) If, however, the offender did not remove documents of this kind, but erased portions of them, there will not only be ground for an action of theft, but also for procedure under the Aquilian Law, for anyone who has defaced property is held to have "broken it."
28. Paulus, On Sabinus, Book IX.
If, however, he should steal something, he will only be liable for the interest which the owner had in not having the article stolen, for, by defacing it, he adds nothing to the penalty.
29. Ulpianus, On Sabinus, Book XLI.
Moreover, an action for the production of the property can be brought, as well as an interdict for the possession of the same.
30. The Same, On Sabinus, Book IX.
If the will has been mutilated.
31. The Same, On Sabinus, Book XLI.
Where, however, anyone defaces a picture or a book, he will be liable to an action for wrongful damage, just as if he had destroyed the article.
(1) If anyone steals, or makes erasures in the registers of the acts of the Republic, or of any municipality, Labeo asserts that he will be liable for an action of theft. He says the same thing with reference to other public property, or that belonging to associations.
32. Paulus, On Sabinus, Book IX.
Some authorities think that, in an action for theft, an estimate of the accounts should only be made, for the reason that if the amount of the debt can be proved before a judge having jurisdiction of an action of theft, it can also be proved before one having jurisdiction of a suit brought for the collection of the money. If, however, it cannot be established before the judge having jurisdiction of the action for theft, the amount of the damage sustained cannot be shown. Still, it might happen that, after the theft has been committed, the plaintiff could recover the accounts, so that he can prove how much damage he would have sustained if he had not recovered them.
(1) The principal question with reference to the Aquilian Law is, how can the value of the party's interest be established? For if it can be proved in any other way, he does not sustain any damage. What then is the rule, if he should happen to lend money under a condition, and, in the meantime, the witnesses on whom he relies for proof die before the condition is fulfilled? Or, suppose I have demanded a sum of money, which I lent, and because I do not produce the witnesses who signed the agreement, I lose my case; if I bring an action for theft, I can make use of their memory and their presence to prove that I lent the money.
33. Ulpianus, On Sabinus, Book XLI.
A guardian, while entitled to the administration of the affairs of his ward, has no power to appropriate his property. Therefore, if he removes anything belonging to the latter with the intention of stealing it, he commits a theft, and the property cannot be acquired by usucaption; but he will be liable to an action for theft, although one on guardianship can also be brought against him. What has been said with reference to a guardian also applies to the curator of a minor, as well as to other curators.
34. Paulus, On Sabinus, Book IX.
Anyone who assists a thief is not always himself a manifest thief; hence it happens that he who furnished assistance is liable for non-manifest theft, and he who was caught in the act is guilty of manifest theft of the same property.
35. Pomponius, On Sabinus, Book XIX.
If anyone should receive an article for the purpose of transporting it, knowing it to have been stolen, it is established that if he is arrested with it in his possession, he alone is the manifest thief, but if he was not aware that it had been stolen, neither of the parties is a manifest thief; the latter because he is not a thief, and the thief himself, because he was not arrested with the goods in his possession.
(1) If one of your slaves has drunk and carried away wine, and another has been caught drinking the wine, you will hold the former liable for non-manifest theft, and the latter for manifest theft.
36. Ulpianus, On Sabinus, Book XLI.
Anyone who persuades a slave to take to flight is not a thief; for he who gives another bad advice does not commit theft, any more than if he persuaded him to throw himself down from some height, or to lay violent hands upon himself; for things of this kind do not admit of an action of theft. If, however, he should persuade him to run away in order that he may be stolen by someone else, he will be liable for theft, because the crime was committed with his assistance and advice. Pomponius goes still further, and says that the person who persuades him, even though in the meantime he is not liable for theft, he, nevertheless, begins to be liable at the time that anyone steals the fugitive slave, as the theft is considered to have been committed with his assistance and advice.
(1) It has also been decided that anyone who assists his son, or a slave, or his wife, to commit a theft, is liable for theft; although they themselves cannot have an action of theft brought against them.
(2) Pomponius also says that when a fugitive slave takes property with him, he who has induced him to do so can have an action for theft brought against him, on account of the stolen property; because he contributed his assistance and advice to the thief. This also is stated by Sabinus.
(3) If two slaves take the advice of one another, and both run away at the same time, one is not the thief of the other. But what if they should conceal one another? It may happen that they are both thieves of one another. It can also be said that one is the thief of the other, for, where other persons steal each of them, they will be liable as having given mutual assistance; just as Sabinus has stated that they are also liable for stealing the property which they have carried away.
37. Pomponius, On Sabinus, Book XIX.
If you follow a tame peacock which has escaped from my house until he is lost, I can bring an action for theft against you, as soon as anyone seizes it.
If a son under paternal control is stolen, it is clear that his father will be entitled to an action for theft.
39. The Same, On Sabinus, Book IX.
A mother whose son has been stolen is not entitled to an action for theft.
(1) Although an action for theft can be brought on account of free persons, a personal action for recovery will still never lie.
40. Ulpianus, On Sabinus, Book XLI.
It is true that if anyone has carried away a female slave, who is a harlot, and belongs to another, or has concealed her, this will not be a theft; for not the act, but the motive for committing it should be considered. The motive for committing this act was lust, ancl not theft. Therefore, even a person who has broken down the door of a harlot for the purpose of having intercourse with her will not be liable for theft, where thieves were not introduced by him; even though having entered, they may have carried away the woman's property. But is anyone who has concealed a female slave for the purpose of enjoying her liable under the Favian Law? I do not think that he is, and an instance of this kind having been presented to me, I gave this opinion: for the person who stole the woman commits a more dishonorable act, and he pays for its disgrace, but he certainly is not a thief.
41. Paulus, On Sabinus, Book IX.
Anyone who takes beasts of burden to a greater distance than was agreed upon when they were lent to him, or who makes use of property belonging to another against the consent of the owner, commits a theft.
42. Ulpianus, On Sabinus, Book XLI.
When anyone, while in the hands of the enemy, has something stolen from him, and returns by the right of postliminium, it may be said that he is entitled to an action for theft.
(1) It is certain that an arrogator can bring an action for theft, even if the property has been stolen from the person whom he arrogated before this was done. If the theft was committed afterwards, there is no doubt that he can bring the action.
(2) The action for theft is not extinguished as long as the thief lives, whether he who perpetrates the offence is his own master when an action is brought against him, or whether he is under the control of another, and the action for theft is brought against the person to whose authority he is subjected; and this is the reason that it is said that the crime follows the person.
(3) If anyone, after having committed damage, should become the slave of the enemy, let us see whether the action will be extinguished. Pomponius says that it will be extinguished, and if the captive returns by the law of postliminium, or by any other right whatsoever, the action will be revived; and this is our practice.
43. Paulus, On Sabinus, Book IX.
If a slave should assume command of a ship without the consent of his master, the common rule should be applied against the latter for anything which is lost in the ship; so that what the slave is responsible for may be taken out of his peculium, and any negligence of the owner himself must in addition be atoned for by a noxal action. Therefore, if the slave should be manumitted, the right to bring the action De peculio will continue to exist against a master for a year, but the noxal action will follow him.
(1) Sometimes both the manumitted slave and the person who gave him his freedom are liable for theft, if the latter manumitted the slave in order to prevent an action for theft from being brought against him. When, however, the master is sued, Sabinus says that the manumitted slave is released by operation of law, just as if it had been decided that this should be the case.
44. Ulpianus, On Sabinus, Book XLI.
Where a false creditor (that is to say, one who pretends to be a creditor) receives anything, he commits a theft, and the money paid does not become his property.
(1) A false agent is also considered to commit a theft. Neratius, however, says that it should be considered whether this opinion, which is susceptible of different constructions, is correct. For when a debtor pays an agent money with the intention that it shall be delivered to his creditor, and the agent appropriates it, the above-mentioned opinion is correct, as the money continues to belong to the debtor when the agent did not receive it in the name of him to whom the debtor desired it to be paid, and by retaining it without the consent of his principal, he undoubtedly commits a theft. If, however, the debtor should pay the money in order that it may become the property of the agent, Neratius says that the latter by no means commits a theft, as he receives the money with the consent of his principal.
(2) Where anyone receives something which is not due, and delegates another to whom payment should be made, an action for theft will not lie; provided payment is made during the absence of the person above mentioned. If, however, he is present, the case is different, and he commits a theft.
(3) If someone has not made a false statement with reference to himself personally, but is guilty of fraud in his assertions, he is rather deceitful than guilty of theft; for example, if he says he is rich, and will invest what he has received in merchandise; that he will give solvent sureties; or that he will immediately make payment; for in all these instances, he is rather guilty of deception than of theft, and therefore he will not be liable for theft; but because he has committed fraud, if no other action can be brought against him, one for fraud will lie.
(4) Where anyone, with the intention of stealing it, removes the property of another, which he had left lying exposed, he will be liable for theft, whether he knew or did not know to whom the property belonged; for it does not diminish the guilt of theft for a person to be ignorant who was the owner of the property.
(5) If the owner has abandoned the property, I do not steal it, even if I have the intention of doing so; for a theft is not perpetrated unless there is someone from whom the article may be stolen. However, in the case where it is not stolen from anyone, the opinion of Sabinus and Cassius, who held that property immediately ceases to be ours as soon as we abandon it, has been adopted.
(6) If the property has, in fact, not been abandoned, but he who takes it thinks that it has, he will not be liable for theft.
(7) If the property has not been abandoned, and he does not think so, but takes it lying as it were exposed, not to profit by it, but to return it to the person to whom it belongs, he will not be liable for theft.
(8) Therefore, if he did not know to whom it belonged, and, nevertheless, took it in order to return it to anyone who claimed it, or could prove that the property was his, let us see whether he will be liable for theft. I do not think that he will, for most persons do this with the intention of putting up a notice announcing that they have found the property, and will return it to him who claims it. Such persons show that they have not the intention of stealing.
(9) What should be done if he demands a reward for finding the property? This is not considered to constitute a theft, although it is not very honorable for him to demand anything.
(10) Where anyone voluntarily throws something away, or has thrown it away, but not with the intention of considering it abandoned, and you remove it, Celsus, in the Twelfth Book of the Digest, asks whether you are guilty of theft. And he says that if you thought that the article was abandoned, you will not be liable, but if you did not think so, a doubt may exist on this point; still he maintains that you will not be liable, because he says the property has not been taken from him who voluntarily threw it away.
(11) When anyone carries away property which has been thrown overboard from a ship, is he guilty of theft? In this case, the question is whether the property was considered to be abandoned. If he who threw it overboard did so with the intention of abandoning it, which, in general, should be believed, as he knew that it would be lost, he who finds it makes it his own, and is not guilty of theft. When, however, he did not have this intention, but threw it overboard for the purpose of keeping it, if it should be saved, he who finds it can be deprived of it. If the latter was aware of this, and holds the property with the intention of stealing it, he is guilty of theft; but where he retained it with the intention of preserving it for the owner, he will not be liable for theft. If, however, he thought that the property had simply been thrown overboard, he will still not be liable for theft.
(12) Even if I should acquire only half of the ownership of a slave who had previously stolen something from me, the better opinion is that the right of action will be extinguished, when I have only obtained the ownership of half of said slave; because, even in the beginning, a person who had a half ownership in a slave could not bring an action for theft. It is clear that, if my usufruct in the said slave begins to exist, it must be said that the right of action for theft is not extinguished, because the usufructuary is not the owner.
45. Pomponius, On Sabinus, Book XIX.
If, by order of a debtor, a false agent should receive money from another, a debtor of the said debtor, he will be liable to the debtor for theft, and the money will belong to the latter.
(1) If I deliver my property to you as yours, and you know that it is mine, the better opinion is to hold that you are guilty of theft, if you did this with the intention of profiting by it.
(2) If a slave belonging to an estate which has not yet been accepted, steals something from the heir, and is manumitted by the will of his master, an action for theft will lie against him, because the heir was at no time his master.
46. Ulpianus, On Sabinus, Book XLI.
Where a partner steals property owned in common (for a theft of partnership property can be committed), it can be said without any doubt that an action for theft will lie.
47. The Same, On Sabinus, Book XLII.
It has been decided by all authorities that an action for theft can be brought against the thief, even if the stolen property has been destroyed. Hence, after the death of a slave whom someone has stolen, the right of action for theft remains unimpaired. Nor does manumission extinguish this right, for manumission is not unlike death as it appears to remove the slave from the power of his master. Therefore, no matter in what way the slave may be removed from the control of his master, the action for theft can still be brought against the thief; and this is our practice. This action lies, not because the slave is now separated from his master, but because he is separated from him for the benefit of the thief. This rule has also been adopted with reference to a personal action for recovery of the property; for it can be brought against a thief, even if the property has been, for some reason or other, destroyed. This must also be said where the property has fallen into the hands of the enemy, for it is established that an action for theft can be brought on account of it. If, however, after having been considered abandoned, it should be recovered by the owner, he can still bring an action for theft.
(1) If a slave subject to an usufruct is stolen, both the usufructuary and the owner are entitled to an action for theft. The action is, therefore, divided between the owner and the usufructuary, and the usufructuary brings suit for the profits, or for the amount of the interest which he had in not having a theft committed, that is to say, for double damages; and the owner brings an action for the interest he had in not being deprived of his property.
(2) When we say double damages, we must understand this to mean that an action for quadruple damages will lie, if the theft is manifest.
(3) This action may lie in favor of a person who is only entitled to the use of said slave.
(4) If anyone should suppose that this slave has also been given in pledge, the result will be that he, likewise, who received him by way of pledge, will be entitled to the action for theft. Moreover, if the slave is worth more than the amount due under the pledge, even the debtor can bring the action for theft.
(5) The actions which lie in favor of these persons are so different in their nature that if anyone of them has released the thief from responsibility for damages, it must be said that he has lost the right of action only for himself, but that it continues to exist so far as the others are concerned. For if you suppose that a slave owned in common has been stolen, and one of his masters releases the thief from liability for damages, the other, who did not do so, will be entitled to an action for theft.
(6) The owner can also bring the action for theft against the usufructuary, if he has done anything for the purpose of concealing the property, or appropriating it.
(7) It has been very properly held that he who thinks he has obtained possession of property with the consent of the owner is not a thief. For how can he be guilty of fraud who thinks that the owner will give his consent, whether his opinion is false or true? Therefore, he alone is a thief who takes something against the will of the owner and knows that he does so.
(8) On the other hand, if I think that I am doing something against the will of the owner, and the latter should actually be willing, the question is asked whether there will be ground for an action for theft. Pomponius says that I commit a theft. However, it is true that if I am willing for him to make use of the property, although he may not be aware of the fact, he will not be guilty of theft.
(9) If the stolen property should be restored to the owner, and is taken a second time, another action for theft will lie.
48. Paulus, On Sabinus, Book IX.
If the ownership of the stolen property is changed in any way whatsoever, the action for theft will lie in favor of the actual owner; as, for instance, in favor of the heir and the praetorian possessor of the estate, as well as of an adoptive father, and a legatee.
49. Ulpianus, On Sabinus, Book XLII.
A certain man lost a silver vase, and brought an action for theft, and when a dispute arose as to the weight of the vase, and the plaintiff declared that it was greater than it really was, the thief produced the vase. He to whom it belonged took it away from the thief, and the latter, nevertheless, had judgment rendered against him for double damages, which was an exceedingly proper decision. For in the penal action not merely the property itself which was stolen is included, whether the action for manifest theft, or that for non-manifest theft is brought.
(1) Anyone who knows a thief is not one himself, whether he points him out or does not do so, as a great difference exists between concealing a thief and not pointing him out. He who knows him is not liable for theft, but he who conceals him is responsible for doing so.
(2) He who takes a slave with the consent of his master is neither a thief nor a kidnapper, as is perfectly evident. For who that acts in accordance with the will of the owner of the property can be called a thief?
(3) If the master has forbidden it, and he takes the slave away, but not with the intention of concealing him, he is not a thief; if he conceals him, he then begins to be a thief. Therefore, anyone who takes a slave away, but does not conceal him, is not a thief, even if he does this against the will of the master. We understand, however, that the master forbids this being done, even when he is not aware of the fact, that is to say, when he does not consent.
(4) If I give you a garment to be cleaned for a compensation, and you, without my knowledge or consent, lend it to Titius, and Titius steals it, an action for theft will also lie in your favor, because you are responsible for the safe-keeping of the property; and I will be entitled to an action against you, because you ought not to have lent it, and by doing so, you have committed a theft. This is an instance in which a thief can bring an action for theft.
(5) Where a female slave, who is pregnant, is stolen or conceives while in the hands of the thief, her child will be stolen property; whether it is born while she is under the control of the thief, or while she is in the hands of a bona fide possessor. In the latter case, however, the action for theft will not lie. But if she conceives while in the hands of a bona fide possessor, and has a child while there, the result will be that the child will not be stolen property, but that it can even be obtained by usucaption. The same rule should be observed with reference to cattle and their offspring, as in the case of a child of a female slave.
(6) Colts born to stolen mares immediately belong to a bona fide purchaser, and this is reasonable, because they are included in the profits, but the child of the female slave is not included therein.
(7) A thief sold stolen property, and the owner of the same extorted the money paid for it from the thief. The opinion was properly given that he had committed a theft of the money, and he will even be liable to the action for property taken by violence; for no one has any doubt that what has been acquired in exchange for stolen property is not itself stolen. Therefore, money obtained as the price of stolen property is not stolen.
50. Gaius, On the Provincial Edict, Book X.
It sometimes happens that he who has an interest in having the property preserved is not entitled to the action for theft. For instance, a creditor cannot bring suit for the theft of property belonging to his debtor, although the latter, otherwise, may not be able to pay what he has borrowed. We speak, however, of property which has not been given in pledge. Likewise, a wife cannot bring an action for theft with reference to dotal property, which is at her risk; but her husband can do so.
51. Ulpianus, On the Edict, Book XXXVII.
In the action for theft it is not the damages which are quadrupled or doubled, but the true price of the property itself. If, however, the property has ceased to exist at the time judgment is rendered, this, nevertheless, should be done. The same rule applies if the property at present has become deteriorated, for the valuation will be referred to the time when the theft was committed. If the property has become more valuable, double the amount of the value will be estimated at the time when it was worth the most; because it is more true to say that the theft was committed at that time.
(1) Celsus asserts that a theft is committed with aid and advice, not only when this is done in order that the parties might steal together, but even if this intention did not exist, and where the theft was committed through motives of hostility.
(2) Pedius very properly says that, as no one commits a theft without fraud, assistance and advice to commit it cannot be given without fraud.
(3) He is considered to give advice who persuades, induces, and gives information for the commission of the theft. He gives assistance who furnishes his services and aid for the secret removal of the property.
(4) Anyone who shows a red cloth to cattle and puts them to flight, in order that they may fall into the hands of thieves, and does so with fraudulent intent, will be liable to an action for theft. Even if he does not do this for the purpose of perpetrating a theft, so dangerous a jest should not go unpunished. Therefore, Labeo says that an action in factum should be granted against him.
52. Gaius, On the Provincial Edict, Book XIII.
For if the cattle should precipitate themselves from some elevation, an equitable action for wrongful damage will be granted as under the Aquilian Law.
53. Ulpianus, On the Edict, Book XXXVII.
When anyone gives aid or advice to a wife who steals the property of her husband, he will be liable for theft.
(1) Even if he commits theft with her, he will be liable to the action for theft, while she will not be liable.
(2) If she, herself, gives assistance to the thief, she will not be liable for theft, but for the fraudulent removal of property.
(3) There is no doubt whatever that she will be liable for a theft committed by her slave.
(4) The same must be said with reference to a son under paternal control who is serving in the army; for he will not be liable for a theft perpetrated on his father; but he will be responsible for the act of his castrensian slave, if the latter steals from his father.
(5) If my son, who has a castrense peculium, steals something from you, let us see whether I can bring an equitable action against him, as he has property with which to satisfy the judgment. It may be maintained that the suit may be brought.
(6) Will the father, however, be liable to his son if he has removed something from his castrense peculium? is a question which we should consider. I think that he will be liable, for he not only steals something from his son, but he can also be sued in an action for theft.
(7) Mela says that a creditor who does not return a pledge after his money has been paid to him is liable for theft, if he retains the pledge for the purpose of concealing it, which I believe to be true.
(8) Where there are sulphur mines in a field, and anyone removes the sulphur from them, the owner will be entitled to an action for theft and afterwards the tenant can, by proceeding under his lease, compel the former action to be assigned to him.
(9) If your slave, or your son, receives clothing for the purpose of cleaning it, and it is stolen; the question arises whether you will be entitled to an action for theft. If the peculium of the slave is stolen, you can bring an action for theft, but if it is not stolen, it must be said that an action of this kind will not lie.
(10) If, however, anyone purchases stolen property, not knowing that this is the case, and he is dishonestly deprived of it, he will be entitled to an action for theft.
(11) It is stated by Labeo, that if a man should direct a flour-merchant to furnish anyone with flour who asks for it in his name, and a passer-by having heard this should ask for the flour in his name, and receive it, an action for theft will lie in favor of the flour-merchant against the person who made the demand, and not in my favor, for the flour-merchant was transacting business for himself, and not for me.
(12) Where anyone receives my fugitive slave as his own from a duumvir, or from any other magistrate who has authority to release persons from prison, or from custody, will he be liable to an action for theft? It is established that if he gave sureties, an action should be granted to the owner against them, and they should assign their rights of action to me. If, however, he did not take sureties but surrendered the slave to the claimant, as to one who was receiving what belonged to him, the owner will be entitled to an action for theft against the kidnapper.
(13) If anyone strikes gold or silver coins, or any other property, out of the hand of another, he will be liable for theft, if he did so with the intention that a third party should take them, and he should carry them away.
(14) Where anyone steals a silver ingot belonging to me, and makes cups out of it, I can either bring suit for the theft of the ingot, or a personal one for the recovery of the property. The same rule applies to grapes, and their unfermented juice, and seeds; for the action for the theft of grapes, their unfermented juice, and their seeds, can be brought, as well as a personal action.
(15) A slave who alleges that he is free in order that money may be lent to him does not commit theft, for he only asserts that he is a solvent debtor. The same rule applies to one who pretends to be the head of a household in order that money may the more readily be loaned to him when, in fact, he is a son under paternal control.
(16) Julianus, in the Twenty-second Book of the Digest, says that if anyone should receive money from me to pay my creditor, and, as he himself owes the same sum to the same creditor, he pays it in his own name, he commits theft.
(17) If Titius sells property belonging to another, and receives the price of it from the purchaser, he is not considered to have stolen this money.
(18) When one of two general partners receives property in pledge, and it is stolen, Mela says that he alone who received the pledge will be entitled to an action for theft, and that his partner will have no right to it.
(19) No one can commit a theft by words, or by writing; for it is an accepted principle that a theft cannot be committed without handling the article in question. Wherefore, giving assistance or advice only becomes criminal when the property is afterwards handled.
(20) If anyone excites my ass to induce him to cover his own mares, for the purpose of breeding colts, he will not be liable for theft, unless he had also the intention of stealing. I gave this opinion to my friend Herennius Modestinus, who consulted me from Dalmatia, with reference to stallions to which mares had been brought for this purpose by a man who was afterwards held liable for theft; if he had the intention of stealing, but if he had not, an action in factum would lie.
(21) As I was willing to lend money to Titius, who was an honorable man and solvent, you substituted for him another Titius who was poor, representing to me that he was the wealthy Titius, and, having received the money, you divided it with him. You are liable for theft, as it was committed with your assistance and advice, and Titius will also be liable for theft.
(22) If, when you make a purchase, anyone should lend you heavier than legal weights, Mela says that he will be liable to the vendor for theft, and that you also will be, if you were aware of the facts; for you did not receive the article by the consent of the vendor, as he was deceived in the weight.
(23) If anyone should persuade my slave to erase his name from an instrument, for instance, from a bill of sale, Mela says, and I think, that an action for theft can be brought.
(24) Where my slave has been persuaded to copy my registers, I think that an action for the corruption of a slave can be brought against the person who persuaded him; and if he himself copies them, an action for fraud should be granted.
(25) When a string of pearls has been stolen, the number of them must be stated. Where an action is brought for the theft of wine, the number of jars which were taken must be mentioned. If vases are appropriated, the number must be given.
(26) If my slave, who has the free administration of his peculium, should make an agreement (but not for the purpose of donation), with someone who has stolen his peculium, he is considered to have engaged in a legitimate transaction; for although an action for theft may be acquired for his master, still it forms part of the peculium of the slave. If the entire penalty of double the value of the theft is paid to the slave, there is no doubt that the thief will be released. The result of this is, that if the slave should have received from the thief what seems to him to be satisfaction for the property stolen, the transaction will also be considered legitimate.
(27) Where anyone swears that he has not committed a theft, and he afterwards handles the stolen property, the right of action for theft is extinguished, but that to pursue the property is still preserved for the owner.
(28) When a stolen slave has been appointed an heir, the plaintiff can also obtain the value of the estate in an action of theft, provided the slave died before he entered upon the estate by the order of his master. The same result can be obtained by bringing a personal action for the recovery of the dead slave.
(29) If a slave who is to be free under a condition is stolen, or any property conditionally bequeathed is appropriated and the condition afterwards should be fulfilled, before the estate has been entered upon, the action for theft cannot be brought, because the interest of the heir has ceased to exist. While the condition is pending, however, the value of the slave should be estimated as the price for which he could be sold.
54. The Same, On the Edict, Book XXXVIII.
When a man, by employing violence, steals anything from a house where no one was at the time, he can be sued in an action to recover fourfold the amount of the value of the stolen property, as well as in one for non-manifest theft, if he should not be arrested while carrying away the property.
55. Paulus, On the Edict, Book XXXIX.
He who breaks a door for the purpose of causing injury (although property may be taken away by others as the result of this), will not be guilty of theft, for the wish and intention of the culprit make a distinction in the case of crime.
(1) If a slave of the lender of an article for use steals it, and he from whom it was taken is solvent, Sabinus says that an action on loan can be brought against him, as well as one against the master on account of the theft committed by the slave. Where, however, the master has the money which he collected, the right of action for theft will be extinguished. The same rule applies where the action on loan is dismissed.
(2) If your slave steals property which has been lent to you for use, an action for theft will not lie against you, but only one on loan, because the property was at your risk.
(3) Anyone who volunteers to transact the business of others is not entitled to the action for theft, although the property may have been lost by his fault; but judgment can be rendered against him in a suit based on voluntary agency, if the owner transfers to him his right of action. The same rule applies to one who administers affairs in the place of a guardian, as well as to a guardian who is bound to observe diligence; as, for example, where several testamentary guardians have been appointed, and one of them alone, after having given security, undertakes the administration of the trust.
(4) If you hold my property through the donation of another, and I steal it, Julianus says that you can only bring the action for theft against me, if it was to your interest to retain possession; for instance, if you have defended a slave who was given in a noxal action, or if you have taken care of him when he was ill, you will have a just cause to retain him against the person demanding him.
56. Gaius, On the Provincial Edict, Book XIII.
If a creditor makes use of a pledge he is liable for theft.
(1) The opinion has been given that a person who has received something for his own use, and lends it to another, is guilty of theft. Hence, it is sufficiently apparent that a theft is committed, even if anyone uses the property of another for his own advantage, and it makes no difference for it to be said that he does not act with this end in view. For it is one kind of pecuniary profit to give away someone else's property; and another to acquire for ourselves an obligation on account of the resulting benefit. Hence he is guilty of theft who secretly removes an article for the purpose of giving it to another.
(2) The Law of the Twelve Tables does not permit a thief, who is caught stealing by day, to be killed, unless he defends himself with a weapon. By the term "weapon" is meant a sword, a club, a stone, and finally everything which can be used for the purpose of inflicting injury.
(3) As the action for theft has reference to the pursuit of the penalty, while the personal action and that for the recovery of the property are employed for the latter purpose, it is evident that if the property is recovered, the right of action for theft will remain unimpaired, but that those of the other two actions will be extinguished; as, on the other hand, after the penalty of double or quadruple damages have been paid, the right to bring suit for the recovery of the property, and that of the personal action, will remain unimpaired.
(4) Anyone who knowingly lends tools to break open a door or a closet, or knowingly lends a ladder for the purpose of climbing, even though, in the beginning, he gave no advice for the commission of a theft, will still be liable to an action for theft.
(5) If a guardian who administers the affairs of his trust, or a curator, makes a compromise with a thief, the right of action for theft is extinguished.
57. Ulpianus, Disputations, Book III.
When a creditor carries away property which has been pledged to him, he is not considered to handle it for the purpose of stealing it, but to take charge of his own pledge.
58. Julianus, Digest, Book XXII.
Under certain circumstances, a thief, even while the obligation of his penalty remains, again becomes liable, and can be sued several times for the theft of the same property. The first instance which occurs is when the right to possession is changed; for example, where the property again comes into the hands of the owner, and the same person steals it either from the same owner, or from him to whom he lent, or sold it. If, however, the owner is changed, he will be liable to a second penalty.
(1) Anyone who brings a thief before the Prefect of the Night Watch or the Governor of a Province is understood to have chosen a way by which to recover his property. If the matter is terminated there, and, by the conviction of the thief, the stolen money is recovered, the question of theft appears to be reduced to simple damages; especially if the thief was directed not only to return the stolen property, but the judge ordered something else to be done, in addition. Where, however, he was ordered to do nothing more than return the stolen property, and the judge did not render a decision for anything else against him, for the reason that the thief incurred the danger of a greater penalty, it should be understood that the question of theft has been disposed of.
(2) If property forming part of a peculium, after having been stolen, again comes into the possession of the slave, the defect attaching to the theft is removed, and the property in this case begins to belong to the peculium, and to be possessed by the slave.
(3) When, however, a slave secretly removes property belonging to his peculium, with the intention of stealing it, so long as he retains it his condition is not changed, for his master is not deprived of anything. If, however, he delivers it to another, he commits a theft.
(4) A person who administers a guardianship has a right to compromise with a thief, and if he remains in control of the stolen property, it ceases to be such, because the guardian occupies the place of the owner. The same thing must be said with reference to the curator of an insane person; as he occupies the place of the owner to such an extent that, even by delivering property belonging to the insane person, he is considered to alienate it. The guardian and the curator of an insane person, however, can, in their own names, bring suit for the recovery of the stolen property.
(5) If two of your slaves steal clothing and silver plate, and, on account of one of the slaves, an action is brought against you to recover the stolen clothing, and then, on account of the other, suit is brought against you for the recovery of the silver plate, an exception should not be granted against you, because an action has already been brought to recover the stolen clothing.
59. Alfenus, Epitomes of the Digest of Paulus, Book IV.
If anyone makes an excavation for the purpose of taking out chalk, and removes it, he is a thief, not because he dug out the chalk, but because he took it away.
60. Julianus, On Urseius Ferox, Book IV.
If property should be stolen from a son under paternal control, he can properly bring an action for this cause after he becomes the head of a household. Where property which has been leased to him has been stolen, he can also bring an action on this account, after he becomes independent.
61. The Same, On Minicius, Book III.
When anyone who has lent an article for use steals it, an action for theft cannot be brought against him, because he only took what was his, and the other party to the transaction will be released from any liability growing out of the loan. This, however, should only pe considered to refer to cases where he to whom the article was lent had no reason for retaining it. For if he had incurred any necessary expense on account of the article lent, it is rather to his interest to retain it than to bring an action based on the loan, and therefore he will be entitled to an action for theft.
62. Africanus, Questions, Book VII.
A female fugitive slave is understood, to a certain extent, to steal herself, and also by taking her child with her she commits a theft.
63. The Same, Questions, Book VIII.
When a slave owned in common steals something from one of his masters, it is established that an action in partition should be brought; and it is in the discretion of the judge to order that the other master make good the damage, or assign his share of the slave. The result of this appears to be that, even if he has alienated his share, an action can also be brought against the purchaser, as, in some respects, a noxal action follows the person. This rule, however, should not be pushed to the extent of holding that even if the slave should become free he can bring suit against him; just as an action could not be brought if he belonged entirely to the other master. Therefore, it is evident from this, that if the slave should die, there is nothing which the plaintiff can recover on this ground, unless the other joint-owner has obtained some benefit from the stolen property.
(1) He says that another result of this is, that if a slave, whom you have given to me in pledge, steals something from me, by bringing the contrary action of pledge I can compel you to make good the damage, or to surrender the slave to me by way of reparation.
(2) The same must be said with respect to a slave who it was agreed might be returned under certain circumstances, so that even the purchaser will be required to restore all accessions and profits; and, on the other hand, the vendor will be obliged to either make good the damage, or to surrender the slave by way of reparation for the injury sustained, unless an action for a larger amount can be brought.
(3) Where a man knowingly gives a thief in pledge to one who is ignorant of the fact, he can be compelled to make good all damages; for this is in conformity with good faith.
(4) In the action on purchase, however, what kind of a slave the vendor represented him to be must, by all means, be taken into consideration.
(5) But, with reference to what concerns the action on mandate, he says that he doubts whether it should also be held that all damages should be made good. And, indeed, this principle should be observed even more than in the preceding cases; so that if he who gave the order for the purchase of a certain slave did not know that he was a thief, he will, nevertheless, be compelled to make good all damages sustained; for it will be perfectly just for the agent to allege that he would not have suffered the damage if he had not received the order. This is still more evident in the case of a deposit, for although otherwise it would appear equitable that no more damage should be sustained by anyone than the slave himself is worth, it is much more equitable that the duty performed by one person to another for his benefit, and not for that of him who undertook it, should not injure the latter. And, as in the previously mentioned contracts of sale, lease and pledge, it was stated that the person who knowingly kept silent should be punished, so in these contracts, the negligence of those for whose benefit they are entered into, should only be injurious to themselves. For it is certainly the fault of the mandator who directed the other party to purchase such-and-such a slave for himself, and it is also the fault of him who deposited the property that they were not more diligent in giving warning as to the character of the slave who was deposited.
(6) With reference to a loan for use there is, however, reason for holding a different opinion, since only the convenience of him who requested the use of the property is concerned. Therefore, he who has made a loan for use, as in a lease, cannot lose anything beyond the value of the slave, if he is not guilty of fraud. Moreover, in this instance we ought to be a little more indulgent in the interpretation of fraud, because (as has already been stated) the person who lends the property does not profit by doing so.
(7) I think that this is true if no blame attaches to him who undertook to execute the mandate, or to take charge of the deposit, where the owner himself gave him any silver plate or a sum of money for safe-keeping; but on the other hand, where the owner did not do anything of this kind, a different opinion should be adopted.
(8) I leased you a tract of land, and (as is customary) it was agreed that I should be entitled to the crops by way of pledge for the rent. He says that if you should secretly remove them, an action for theft can be brought against you. But if you should sell the crops to someone else before they have been gathered, and the purchaser removes them, the result will be that we must hold that they have been stolen; for as long as they are attached to the soil they constitute a part of the land, and therefore belong to the tenant, for the reason that he is considered to gather them with the consent of the owner; which certainly cannot properly be said in the present instance. For how can they become the property of the tenant, when the purchaser gathers them in his own name?
(9) A slave who was ordered to be free under the condition of paying ten aurei was defended by the heir in a noxal action. While the case was still pending, the slave, having paid the ten aurei to the heir, obtained his freedom. The question arose whether he should be discharged unless he gave to the plaintiff the ten aurei which the heir had received. It was held that the source from which the money had been obtained should be taken into consideration. If it came from somewhere else than the peculium, the heir should pay it; because, if the slave had not yet gained his freedom, and had been surrendered by way of reparation, he would have paid the money to the person to whom he was delivered. If, however, the money was derived from his peculium, for the reason that he paid to the heir what the latter ought not to have permitted him to give him, a contrary decision should be rendered.
64. Marcianus, Rules, Book IV.
He who shows the way to a fugitive slave does not commit a theft.
65. Macer, Public Prosecutions, Book II.
The Governor of a province cannot prevent anyone who has been convicted of theft from being branded with infamy.
66. Neratius, Parchments, Book I.
Titius, an heir, having been charged with the legacy of a slave to Seius, the said slave committed a theft against Titius, before the estate was entered upon. If, after it had been entered upon, Seius should wish to have the legacy, Titius could bring an action for theft against him, on account of the act of the slave, because when the latter committed the crime, he did not belong to Titius; and even though anyone should hold that if the slave had begun to belong to him against whom he committed the theft, the right of action for theft would be extinguished, so that even if he was alienated, suit could not be brought on this ground. The slave did not become the property of Titius until after the estate had been entered upon, because legacies pass directly from the person who leaves them to him to whom they are bequeathed.
67. Ulpianus, On the Edict of the Curule Ediles, Book I.
He who has appropriated property belonging to another with the intention of profiting by it, even though, having changed his mind, he may afterwards restore it to the owner, is a thief; for no one by repentance ceases to be responsible for such a crime.
68. Paulus, On Plautius, Book VII.
Where anyone who has given an article in pledge sells it, although he is the owner, he commits a theft, whether he delivered it to the creditor or merely bound himself by a special agreement. Julianus holds the same opinion.
(1) If anyone from whom property has been stolen should bequeath it to me, while it is in the hands of the thief, and the latter should afterwards appropriate it, will I be entitled to an action for theft? According to the opinion of Octavenus, such an action will only lie in my favor when the heir is not entitled to one in his name; because it is established that, no matter in what way the ownership of property may be changed, the owner will be entitled to bring the action for theft.
(2) The ancient authorities gave it as their opinion that where anyone brings a muleteer into court for fraud, and his mules die in the meantime, he will be liable to theft.
(3) Julianus says that where a slave is appointed for the collection of money, and collects it after he has been manumitted, he will be liable for theft. The same rule applies to the case of a guardian to whom money is paid after puberty.
(4) If you have recommended Titius to me as being solvent, and as being one to whom I can lend money, and I make inquiries about him, and you afterwards introduce to me someone else as Titius, you will be guilty of theft; because I believe that he is Titius, and by all means if he who was brought to me knew of the fraud. If you were not aware of it, you will not be guilty of theft, and he who introduced him does not appear to have given his assistance, as no theft was committed; but an action in factum will be granted against the person who brought him.
(5) If I stipulate with you not to do anything to prevent the slave Eros from being given to me before such-and-such kalends, although it is to my interest that he should not be stolen, still, if he is stolen, you will not be liable under the stipulation; provided nothing was done by you to prevent him from being given to me, and I will not be entitled to an action for theft.
69. Celsus, Digest, Book XII.
No one commits a theft by denying that a deposit has been made with him. For the denial itself does not constitute an offence, although it comes very near doing so. But if the person should acquire possession of the property for the purpose of appropriating it, he perpetrates a theft. It does not make any difference whether the bailor had a ring on his finger, or the box which contained it, if, when it was deposited with the bailee, the latter intended to appropriate it.
(1) If an article which you have promised to return on a certain day under a penalty is stolen from you, and, for this reason, you are required to bear the loss, this will also be taken into account in bringing the action for theft.
(2) A stolen child grew up in the hands of the thief. The latter is guilty of stealing the youth as well as the child, and still, there is but one theft; hence he is liable for double damages; an estimate being made of the greatest value that the child had at any time after having been stolen. As the action for theft can only be brought once, what reference does this have to the question above proposed? For, if he had been stolen from the thief, and then recovered by him from the other criminal, even if he had committed two thefts, the action could not be brought against the thief more than once. I do not doubt that the estimate of the value of the youth rather than that of the infant should be made; for what would be so ridiculous as to consider the condition of the thief to be improved on account of the continuation of his crime?
(3) If the sale of a slave is annulled, the purchaser cannot bring the action of theft against the vendor, because the slave, after his purchase and before he was returned, stole something.
(4) When a stolen slave commits a theft against the thief himself, it is decided that the thief will be entitled to an action against the owner on this account, for fear that the crimes of such slaves may be committed with impunity to themselves, and be a source of profit to their masters, as the peculium of slaves of this kind is frequently increased by their thefts.
(5) If a tenant, after the expiration of his lease, remains for more than a year, and gathers the crops without the consent of the owner, let us see whether an action for the theft of the harvest and vintage cannot be brought against him. I do not think that there is any doubt that he is a thief, and if he consumes the stolen property suit can be brought to recover its value.
70. Marcellus, Digest, Book VIII.
Julianus denies that theft of property belonging to an estate can be committed, unless the deceased gave it in pledge, or lent it;
71. Scaevola, Questions, Book IV.
Or where the usufruct belongs to another.
72. Marcellus, Digest, Book VIII.
For he held that, in these instances, theft of property belonging to an estate could be committed, and usucaption be interrupted; and therefore that an action for theft would lie in favor of the heir.
73. Javolenus, On Cassius, Book XV.
When a person to whom an article has been lent for use steals it, an action for theft as well as one on loan can be brought against him, and if the one for theft should be brought, the right of action on loan will be extinguished; and if the one on loan is brought, an exception can be pleaded in bar of the action for theft.
(1) Where property is held by anyone in the capacity of heir, the possessor will not be entitled to the action for theft, although he can obtain the property by usucaption; because he who is interested in not having it stolen can bring the action for theft. This, however, seems to be the interest of the person who would suffer the injury, and not of him who would be pecuniarily benefited.
74. Modestinus, Opinions, Book VII.
Sempronia drew up a petition intending to give it to a centurion, in order that it might be filed in court; but she did not give it to him. Lucius read it in court as having been given to him officially. As it was not properly filed, or delivered to the centurion, of what offence is he guilty who presumed to read in court a petition stolen from the house of the person who drew it up, and who did not deliver it for that purpose? Modestinus answered that if he who took it did so secretly, he committed a theft.
75. Javolenus, On Cassius, Book XV.
If anyone who receives property in pledge should sell it, when no agreement had been made with reference to its sale while pledged, or if he should dispose of it before the day of sale arrives, and the debt is not paid, he renders himself liable for theft.
76. The Same, Epistles, Book IV.
I possess, in good faith, a female slave who had been stolen, and whom I purchased for two aurei. Attius stole her from me, and her owner and myself brought suit against him for theft. I ask, what assessment of damages should be made for both parties? The answer was double the amount of his interest for the purchaser, and for the master double the value of the woman. The fact that the penalty for theft is paid to two persons should not cause any difficulty, because although this is done on account of the same property, it is paid to the purchaser by virtue of his possession, and to the owner on the ground of his ownership.
77. Pomponius, On Quintus Mucius, Book XXI.
If anyone who represented himself to be an agent should induce me to promise to pay either him or the person to whom he delegated me, I cannot bring an action for theft against him, as there is no object which can be handled with the intention of stealing it.
78. The Same, On Quintus Mucius, Book XXXVIII.
He who uses property which has been lent to, or deposited with him, in a different way from that in which he was understood to receive it, not intending to do this against the consent of the owner, is not liable for theft; nor will he, under any circumstances whatsoever, be liable to an action on deposit. Will he be liable to an action on loan? The answer depends upon how far he was to blame; that is to say, whether he had reason to believe that the owner would not have permitted him to make use of the article as he did.
(1) If anyone commits a theft against another, and a third party steals from him what he himself appropriated, the owner of the property can bring suit against the last thief; but the first thief cannot do so, because the interest of the owner, and not that of the first thief is involved, as the stolen property is safe. This was stated by Quintus Mucius, and is true; for although it is to the interest of the thief that the property should be safe, because he is liable to a personal action, still the party in interest can bring an action against him, if his interest is based on a good title. We do not adopt the opinion of Servius who held, if no owner of the stolen property had appeared, or should afterwards appear, that the thief would be entitled to the action of theft, for it could not then any the more be understood to belong to him who proposed to profit by it pecuniarily. Therefore, the owner will be entitled to an action for theft against both of them, and if he begins suit against one, his right to bring such an action against the other will continue to exist. The same rule applies to a personal action, for both of them are liable for different acts.
79. The Same, On Various Passages, Book XIII.
Where anyone steals a bag containing money, he is also liable for stealing the bag, although he may not have had the intention of doing so.
80. Papinianus, Questions, Book VIII.
When anyone gives an article to be examined, and he who receives it assumes the risk, he himself can bring the action for theft.
81. The Same, Questions, Book IX.
Where a debtor steals a pledge, he can, under no circumstances, recover what he has paid in an action for theft.
82. The Same, Questions, Book XII.
If I sell, but do not deliver a slave, and he is stolen without any fault of mine, the better opinion is that I will be entitled to an action for theft; and I am considered to be interested, either because the property was in my hands or because I will be obliged to assign my rights of action.
(1) When, however, the action of theft is postponed on account of the ownership, although it does not lie unless we have an interest, still, my benefit should be referred to the valuation of the article itself, even if I have no other interest. This is proved in the case of slaves who are to become free under a certain condition, and where a legacy is bequeathed conditionally. Otherwise, where an attempt is made to prove something else, the amount cannot be easily determined. Therefore, because the valuation solely depends upon the benefit, as the action for theft arises without taking the ownership into consideration, in instances of this kind the action for theft cannot be referred to the valuation of the article.
(2) If I have brought an action for the production of property, intending to make a choice of a slave who was bequeathed to me, and one of the slaves belonging to the estate has been stolen, the heir will be entitled to an action for theft, as he has an interest in the matter, and it makes no difference whether the slave should have been guarded.
(3) No matter how a robber perpetrates a theft, he should be considered a manifest thief.
(4) He, however, through whose fraudulent act a robbery is committed, is not liable for theft, but for robbery with violence.
(5) If Titius, in whose name a false agent has collected money which was not due, ratifies the payment, Titius, indeed, can himself bring an action for business transacted; but he who paid the money which was not due will be entitled to a personal action on that ground against Titius, and the action for theft will also lie against the false agent. But if Titius should be sued, he can not improperly avail himself of an exception on the ground of fraud, to compel the right of personal action for theft to be assigned to him. If, however, the money was due, and Titius ratifies the payment, the right of action for theft will be extinguished, because the debtor is released.
(6) A false agent can also commit a theft of money, if he deceives the debtor of another, by assuming the name of a genuine agent of the creditor. This also applies to the case of one who asserts that money is due to him as the heir of the creditor, Sempronius, when he is not the heir.
(7) A person who was accustomed to transact the business of Titius paid a false agent of his creditor in his name, and Titius ratified the payment. The right of action for theft will not arise in favor of Titius, because as soon as the money has been paid, the action can be brought by the person who paid it, as neither the ownership nor the possession of the money belong to Titius. Titius, however, will be entitled to a personal action for the recovery of money which was not due, and he who paid the money can bring the action for theft. If Titius is sued on voluntary agency, the money should be awarded to him by the decision of the court.
83. The Same, Opinions, Book I.
Anyone who steals money belonging to a municipality or a city is liable to an action for theft, and not for the crime of peculation.
84. Paulus, Opinions, Book II.
A fuller or a tailor who receives clothing for the purpose of cleaning and repairing it and makes use of it is, by doing so, considered to have committed a theft, because the clothing was not received by him for that purpose.
(1) Where crops are stolen from land, the tenant, as well as the owner, can bring the action for theft, because it was to the interest of both of them to recover the property.
(2) Anyone who steals a female slave, who is not a prostitute, for licentious purposes, will be liable to an action for theft; and if he conceals her, can be punished under the Favian Law.
(3) Anyone who steals accounts or notes is liable to an action for theft, for the amount contained in them. It does not make any diiference whether they have been cancelled or not, because, by means of them it can be proved that the debt was paid.
85. Neratius, Opinions, Book I.
Where anyone, thinking that a person is dead, who in fact is still living, takes possession of his property as his heir, he does not commit a theft.
(1) If, after having begun an action for theft against a man in his own name, you bring another against him for some article stolen by his slave, he cannot plead an exception on the ground that both thefts were committed at the same time.
86. Paulus, On Neratius, Book II.
Although stolen property cannot be acquired by usucaption unless it is returned to the owner; still, if its appraised value in court is paid to the latter, or he sells the property to the thief, it must be said that the right of usucaption is not interrupted.
87. The Same, Manuals, Book II.
He who has an interest in not having the property stolen is entitled to the action for theft, if he also has possession of it with the consent of the owner; that is to say, where, for instance, the property is. leased to him. He, however, who voluntarily administers affairs as a guardian, just like a regular guardian or curator, cannot bring an action for theft on account of property which has been stolen through his fault. Likewise, anyone to whom a slave is due either under the terms of a stipulation or by a will, although he has an interest, cannot bring the action for theft; nor can he do so who has become surety for a tenant.
88. Tryphoninus, Disputations, Book IX.
If property which has been stolen, or obtained by violence, comes into the hands of the owner, and he is ignorant of the fact, it will not be considered to have been restored to his control. Therefore, if after possession of this kind the property should be sold to a bona fide purchaser, usucaption cannot take place.
89. Paulus, Decrees, Book I.
An action for theft will lie in favor of a creditor for the value of a pledge, but not for the amount of the debt. But when the debtor himself steals the pledge, the contrary is true; so that the action for theft can be brought for the amount of money due, and for the interest on the same.
90. The Same, On Concurrent Actions.
Where anyone brings an action for robbery with violence, he cannot also bring one for theft. If, however, he should prefer to bring an action of theft for double damages, he can also bring one for robbery with violence; provided that fourfold the value of the property is not exceeded.
91. The Same, On the Penalties of Civilians.
If a freedman or a client commits a theft against his patron, or a day laborer steals from one who employs him, there will not be ground for an action of theft.
92. Javolenus, On the Last Works of Labeo, Book IX.
A fuller was released from liability to the owner in an action on hiring. Labeo denies that an action for theft will lie. Again, if he should bring an action for theft before the action for hiring was brought against him, and before judgment had been rendered with reference to the thief he should be released by the action on hiring, and the thief ought also to be discharged so far as he is concerned. If nothing of this kind previously occurred, judgment should be rendered against the thief in favor of the fuller, and this is the case because he has a right to the action for theft only to the extent of his interest.
(1) No one can give aid and advice to another who himself has no intention of committing a theft.
93. Labeo, Epitomes of Probabilities by Paulus, Book II.
If anyone, knowing that property is being stolen from him, does not prevent this from being done, he cannot bring an action for theft. Paulus: The contrary is certainly true. For if anyone knows that property has been stolen from him, and keeps quiet because he cannot prevent it, he can bring an action for theft. If, however, he could have prevented it, but did not do so, he can still bring an action for theft. In this way patrons are accustomed to commit thefts against their freedmen, and also anyone who is entitled to such respect or reverence that it prevents him from being resisted by another in his presence, is accustomed to commit a theft.
94. Ulpianus, On the Edict, Book XXXVIII.
It must be remembered that thefts are generally prosecuted criminally, and that he who institutes a prosecution signs the accusation, not that the judgment may become public, but because it appears that the boldness of the culprit should be restrained by extraordinary punishment. Anyone, however, who wishes, can bring a civil action, if he desires to do so.
Tit. 3. Concerning the theft of timbers joined to a building.
1. Ulpianus, On the Edict, Book XXXVII.
The Law of the Twelve Tables does not permit a beam which has been stolen to be detached from a house, or a stake to be removed from a vine, or an action be brought for its recovery; which provision has been prudently established by the law to prevent buildings from being demolished, or the culture of vines being interfered with, under this pretext. But where anyone is convicted of having united these things, the law grants an action for double damages against him.
(1) In the term "beam" are included all the materials of which a house is composed, and everything necessary for vines. Wherefore, certain authorities hold that tiles, stone, brick, and other materials which are useful in building (for the word beam is derived from the verb to cover), as well as lime and sand, are embraced in this appellation. Also, in the case of vines, everything required for their cultivation is included under this term, as, for instance, stakes and props.
(2) An action for the production of property is, however, granted, for he cannot be indulged who, knowing property to belong to another, includes it in, or joins it to, or connects it with his own building, for we do not sue as the possessor, but as one who has committed fraud to avoid being in possession.
2. The Same, On Sabinus, Book XLII.
If, however, you suppose that suit has been brought for stolen timbers joined to a house, the question may arise whether an action for the recovery of the property will lie independently. I do not doubt that it will.
Tit. 4. Where anyone who is ordered to be free by the terms of a will, after the death of his master and before the estate is entered upon, is said to have stolen or spoiled something.
1. Ulpianus, On the Edict, Book XXXVIII.
If, through the fraud of a slave who was ordered to be free after the death of his master, and before the estate was entered upon, an act is said to have been committed with reference to the property of the person who directed him to be free, in order to prevent some of said property from coming into the hands of the heir, a suit for double damages will be granted against him within the available year.
(1) This action, however (as Labeo says), is founded rather on natural, than on civil equity. For, as a civil action is not applicable, it is but just, according to Natural Law, that the offender, emboldened by the hope of impunity, should not go unpunished; since, having the expectation of speedily obtaining his freedom, he believes that he cannot be chastised as a slave, nor be condemned as a freeman because he steals from the estate, that is to say from his owner; the master or the mistress cannot bring an action for theft against the slave, even though he should afterwards become free, or be alienated, unless he has also subsequently handled the property with the intention of stealing it. Therefore the Praetor thought that the cunning and impudence of those who despoil estates should be punished by an action for double damages.
(2) A freedman of this kind will not be liable unless he is alleged to have fraudulently wasted something. The fault and negligence of a slave after his freedom has been obtained is excused; but gross negligence very closely resembles fraud. Hence, if he committed some damage without fraud, this action will not lie; although otherwise, he would be liable under the Aquilian Law for having caused damage of any description whatsoever. Therefore this action has certain restrictions, so that the slave must be guilty of fraud not only after the death of his master, but before the estate has been entered upon. But if he does not commit fraud, or does so during the lifetime of his master, he will not be liable to this action. Nay more, the action will not lie even after the death of his master and the acceptance of the estate, for when the estate has once been entered upon, he can be sued as a freeman.
(3) What, however, should be done, if he received his freedom under a condition? In this instance, he will not yet be free, but can be punished as a slave; and therefore it must be said that this action will not lie.
(4) Where, however, his freedom is already obtained, it must be said that this action can and should immediately be granted against him who has become free.
(5) When a slave who is absolutely bequeathed commits some illegal act against the estate before it has been entered upon, it must be said that there will be ground for this action, for the reason that the ownership of the slave is changed.
(6) And, generally speaking, we say that, in a case where the ownership of the slave is either changed or lost, or he acquires his freedom within a short time after the estate has been entered upon, in this instance, this action should be granted.
(7) Where freedom is bestowed upon a slave under the terms of a trust, and he has committed some offence against the estate, can not the heir be prevented from manumitting him before he gives satisfaction? And, indeed, it has been frequently stated in Rescripts by the Divine Marcus, and by our Emperor together with his Father, that, under these circumstances, freedom granted unconditionally by a trust will not be prevented. The Divine Marcus, however, stated in a Rescript that an arbiter must be immediately appointed before whom the account should be rendered. This Rescript has reference to the account to be rendered for acts which the slave performed in the course of his administration. I think, then, that in this instance the action will lie.
(8) Before the estate is entered upon, we should understand to mean before it is accepted by one person alone, for as soon as one person does so, freedom is acquired.
(9) Where a ward is appointed an heir, and freedom is granted as soon as he has a substitute, and, in the meantime, some damage is committed, if this takes place during the lifetime of the minor, there will be no ground for this action. If, however, it should be committed after his death, and before anyone succeeds him, there will be ground for it.
(10) This action will not only lie with reference to property belonging to the estate of the testator, but also where it is to the interest of the heir that fraud should not be committed to prevent the property from coming into his hands. Therefore Scaevola treats the question more fully, for if the slave has stolen property which the deceased received by way of pledge, this praetorian action can be brought; because we understand the case of the property in a broader sense as meaning utility. For if the Praetor, on account of the condition of servitude existing, substituted this action instead of the one for theft, it is probable that he should have substituted it in every case in which an action for theft could be brought. And, in a word, this action is understood to lie with reference to property pledged, as well as to such as is held by bona, fide possessors. The same rule applies to articles lent to the testator.
(11) Likewise, if this slave, who has the prospect of his freedom, should steal crops which have been gathered after the death of the testator, there will be ground for this action. When the children of slaves, or the increase of cattle born after the death of the testator are involved, the same opinion must be given.
(12) Moreover, if a child under the age of puberty, after the death of his father, obtains the ownership of property, and the estate of the minor is stolen before it has been entered upon, it must be said that there will be ground for this action.
(13) This action can also be brought with reference to any property which it was to the interest of the heir not to have appropriated.
(14) This action not only applies to thefts, but also to all cases involving damage which the slave has committed against the estate.
(15) Scaevola says that theft of possession can take place, for if there is no possessor, theft cannot be committed; therefore theft cannot be committed against an estate, because the latter has no possession, which is, indeed, a matter of fact and intention. The heir does not have possession before he actually obtains control of the property, because the estate only transmits to him that of which it is constituted, and possession forms no part of it.
(16) It is true that if the heir can, in any other way, obtain that to which he is entitled, the Praetorian Action should not be granted, since the decision is based upon what the person has an interest in acquiring.
(17) Besides this action, it is established that a suit for recovery will also lie, as this proceeding resembles one for theft.
(18) It must be said that this action will also lie in favor of the heir and other successors.
(19) Where several slaves have received their freedom, and have maliciously caused some injury, each of them can be sued for the entire amount, that is to say, for double damages; and as they are prosecuted on account of the crime as in the case of theft, none of them will be released, even though one should make payment after he has been sued.
2. Gaius, On the Provincial Edict, Book XIII.
If, a short time before the freedom granted takes place, the slave should secretly remove some article, or spoil it, the ignorance of the owner does not authorize this action; and therefore, although the heir may have no information whatever that the slave is to be free under a condition, or any other master may not be aware that property has been appropriated or spoiled by his slave, he cannot avail himself of any action after the slave has once obtained his freedom, although in many other cases just ignorance may be alleged as an excuse.
3. Ulpianus, On the Edict, Book XIII.
Labeo thought that where a slave, who was manumitted under a condition, secretly removed some article, and the condition was soon fulfilled, he would be liable to this action.
Tit. 5. Concerning theft committed against captains of vessels, innkeepers, and landlords.
1. Ulpianus, On the Edict, Book XXXVIII.
An action is granted against those who have control of ships, inns, and other places of public entertainment, where anything is alleged to have been stolen by any one of them, or by persons in their employ; whether the theft was committed with the aid and advice of the proprietor himself, or the owner of the ship, or of those who were on board for the purpose of navigation.
(1) We understand the words "for the purpose of navigation," to refer to those who are employed to navigate a ship, that is to say, the sailors.
(2) This action is also for double damages.
(3) For when property is lost in an inn or on a ship, the owner or lessee of the vessel, or the landlord, is liable under the Edict of the Praetor; so that it is in the power of the person from whom the property was stolen to proceed against the proprietor under the Praetorian Law, or against the thief under the Civil Law, whichever he may prefer.
(4) If the innkeeper or the owner of the ship received the property "to be safely cared for," the owner of the same cannot bring the action for theft, but he who assumed responsibility for its safe-keeping will be entitled to bring it.
(5) The owner of the ship, however, can release himself from liability incurred by the act of his slave, by surrendering the latter by way of reparation for the damage committed. Why then should not the owner be condemned, who permitted so bad a slave to remain on his ship? And why is he held liable for the entire amount for the act of a freeman, and not for that of the slave? unless when he employed a freeman, it was his duty to ascertain what his character was; but he should be excused so far as his slave is concerned, just as in the case of a bad domestic, if he is ready to surrender him by way of reparation for the damage he committed. If, however, he employed a slave belonging to another, he will be liable, as in the case of a freeman.
(6) An innkeeper is responsible for the acts of those who are in his house for the purpose of transacting his business, as well as for all permanent lodgers; he is, however, not responsible for the acts of travellers, since an innkeeper cannot select the travellers, nor can he exclude them while they are pursuing their journey. He, however, to a certain extent, selects his permanent lodgers, if he does not reject them, and he must be liable for their acts. In like manner, the captain of a ship is not liable for the acts of his passengers.
Tit. 6. Concerning thefts alleged to have been made by an entire body of slaves.
1. Ulpianus, On the Edict, Book XXXVIII.
The Praetor introduced this most useful Edict in order to enable a master to provide against the offences of his slaves; for instance, where several of them had committed theft, they could not destroy the patrimony of their master if he was compelled to surrender all of them by way of reparation for the injury committed, or to pay the appraised value of each of them in court. Therefore, if he desires to admit that his slaves are liable for damage committed by them, he has the choice, under this Edict, to surrender all who participated in the theft; or if he prefers to tender their estimated value, he can tender as much as a freeman would be compelled to do, if he had committed a theft, and retain his slaves.
(1) This power is granted to a master, whenever the theft was committed without his knowledge. If, however, he was aware of it, this privilege will not be conceded to him, for he can be sued in a noxal action both in his own name and in the name of each of his slaves, and he cannot free himself from liability by paying the estimated value once, which a freeman can do. The word "aware" is understood to mean where he knew of the crime and could have prevented it, for we should consider knowledge as also including the will. If, however, he was aware of the theft and prevented it, it must be said that he is entitled to the benefit of the Edict.
(2) Where several slaves have caused damage through their negligence, it is but just that the same privilege should be granted their master.
(3) When several slaves steal the same article, and an action is brought against the master on account of one of them, proceedings against the others should remain in abeyance until the plaintiff, by the first judgment, recovers as much as he would have done if a freedman had committed the theft:
2. Julianus, Digest, Book XXIII.
That is to say, double damages by way of penalty, and simple damages in the personal action.
3. Ulpianus, On the Edict, Book XXXVIII.
Whenever the master pays as much as he would if a single freeman had committed the theft, the right of action with reference to the others is extinguished, not only against the master himself but also against the purchaser, if any one of the slaves, who together had committed the theft, should be sold. The same rule will apply if the slave should be manumitted. If the money had first been collected from the manumitted slave, then the action will be granted against the master of all the slaves; for it cannot be said that what was paid by the manumitted slave was, as it were, paid by all of them. I think it is clear that if the purchaser should pay, an action against the vendor ought to be denied; for payment was, to a certain extent, made by the vendor, against whom sometimes recourse can be had in such a case, and especially if he declared that the slave who was sold was not liable to be surrendered by way of reparation for damage, and was not guilty of theft.
(1) If an action should be brought against a legatee on account of a slave who has been bequeathed, or against a person to whom he has been donated, can proceedings also be instituted against the owner on account of the other slave? is a question which may be asked. I think that this ought to be admitted.
(2) The relief of this Edict is not only granted to him who, possessing slaves and having had judgment rendered against him, only pays as much as if a single freeman had committed the damage, but it also benefits him who was condemned because he committed fraud to avoid having possession.
4. Julianus, Digest, Book XXII.
The action to which a testator is entitled will lie in favor of the heirs of him against whom several slaves of the same household have committed a theft; that is to say, all of them will not recover any more than they would have done if a freeman had perpetrated the theft.
5. Marcellus, Digest, Book VIII.
A number of slaves owned in common committed a theft with the knowledge of one of their masters. An action for theft can be brought on account of all of them against the owner who was aware of the crime, but against the other owner only to the extent authorized by the Edict. If the former owner should pay, he can recover his share from the other, but not the amount due for the entire body of slaves. Where a slave, owned in common, commits damage by order of one of his masters, and the other makes payment, he can recover from his partner on the ground of damage sustained by the property owned in common; provided he can bring suit against him under the Aquilian Law, or the Law of the Twelve Tables. Therefore, if I have only two slaves owned in common, an action can be brought against the master who was aware that the damage had been committed, and this will include both slaves, but he cannot recover more from his partner than if he had paid for one alone. If, however, he should desire to proceed against the master who did not know that any injury had been done, he can only collect double damages. Let us see whether an action should not be granted against his partner, on account of the other slave, just as if he had paid in the name of all of them. In this case the decision of the Praetor should be more severe, and no indulgence should be shown to the one who was aware of the act of the slaves.
6. Scaevola, Questions, Book IV.
If my co-heir has collected double damages on account of a theft perpetrated by a number of slaves, Labeo thinks I will not be prevented from bringing an action for double damages; and that, in this way, a fraud will be committed against the Edict; and that it is unjust for our heirs to collect more than we ourselves could have done. He also says that if the deceased recovered less than double damages, his heirs cannot properly bring suit for more than equal portions ; but I think that the better opinion is that the heirs can sue for their shares, and that both heirs together cannot recover more than double damages including what the deceased collected.
Tit. 7. Concerning trees cut down by stealth.
1. Paulus, On Sabinus, Book IX.
Where trees are cut down by stealth, Labeo says that an action should be granted under the Aquilian Law, as well as under the Law of the Twelve Tables. Trebatius, however, holds that both actions should be granted in such a way that the court, in rendering a decision in the second action, should deduct the amount recovered in the first, and give judgment for the remainder.
2. Gaius, On the Law of the Twelve Tables, Book I.
It should be remembered that those who cut down trees, and especially vines, are also punished as thieves.
3. Ulpianus, On Sabinus, Book XLII.
The larger number of ancient authorities held that vines were included in the term "trees."
(1) Ivy, as well as reeds, are not improperly styled trees.
(2) The same may be said to apply to willows.
(3) But when anyone, for the purpose of planting willows, has inserted branches into the ground, and these are cut down or torn up, before they have taken root, Pomponius very properly says that the action for cutting down trees cannot be brought, as that cannot properly be called a tree which has not yet become rooted.
(4) If anyone removes a tree from a nursery, that is to say, with its roots, although it may not yet have taken hold of the soil, Pomponius, in the Nineteenth Book on Sabinus, says that it should be considered a tree.
(5) Therefore, that also may be considered a tree whose roots have ceased to live, although it still remains in the earth. This opinion is also adopted by Labeo.
(6) Labeo thinks that a tree can properly be so called which, having been torn out by the roots, cannot be replaced, or which has been removed in such a way that this can be done.
(7) Olive sprouts should be considered trees, whether they have thrown out roots or not.
(8) An action, therefore, can be brought on account of all the trees which we have above enumerated.
4. Gaius, On the Law of the Twelve Tables.
It certainly cannot be doubted that, where a sprout is still so small as to resemble a blade of grass, it should not be included in the number of trees.
5. Paulus, On Sabinus, Book IX.
To cut down is not merely to cut, but to cut with the intention of felling; to girdle is to remove the bark; to cut away is to cut underneath ; for one cannot be understood to have cut down a tree who has divided it with a saw.
(1) In this proceeding the cause of action is the same as in that under the Aquilian Law.
(2) He who has the usufruct in the land cannot bring this suit.
(3) He who has leased land belonging to the State can bring this suit, just as he can the action for taking care of rain-water and the one to establish boundaries.
6. Pomponius, On Sabinus, Book XX.
Where several persons have cut down the same tree by stealth, the action can be brought against each one of them for the entire amount.
(1) When, however, the same tree belongs to several persons, the penalty can only be collected once by all of them together.
(2) Where a tree has extended its roots into the soil of a neighbor, the latter cannot cut them off, but he can bring an action to show that the tree does not belong to him; just as he can do if a beam, or a projecting roof extends over his premises. When a tree is nourished by roots in the soil of a neighbor it, nevertheless, belongs to him from whose land it derives its origin.
7. Ulpianus, On the Edict, Book XXXVIII.
Trees are considered to have been cut by stealth when they are felled without the knowledge of the owner, and with the intention of concealing it from him.
(1) Pedius says, that this action is not one of theft, as it is possible for a person to cut down trees by stealth without the intention of committing theft.
(2) If anyone should tear out a tree by its roots or extirpate it, he will not be liable to this action, for he did not cut it down, or cut it away, or cut it off. He will, however, be liable under the Aquilian Law for having broken it.
(3) Even if the entire tree has not been cut down, the action will properly be brought as if it had been cut down.
(4) A person will be liable under this action whether he girdles, cuts off, or cuts down trees with his own hands, or whether he orders his slave to do so. The same rule applies when he gives such an order to a freeman.
(5) When a master did not order his slave, but the latter committed the act voluntarily, Sabinus says that a noxal action will lie, as in other offences. This opinion is correct.
(6) This action, although it is a penal one, is perpetual, and is not granted against an heir, but it will be granted in favor of an heir and other successors.
(7) Judgment in a case of this kind includes double damages.
8. Paulus, On the Edict, Book XXXIX.
In computing the amount of the interest of the owner in not having the damage committed, the value of the trees themselves should be deducted, and an appraisement made of what remains.
(1) Whoever cuts down a tree clandestinely cuts it down by stealth.
(2) Therefore, if he should cut and remove it for the purpose of profiting by it, he will be liable for the theft of the wood, and also to a personal action, as well as to one for the production of property.
(3) Anyone who, with the knowledge of the owner, cuts down a tree by violence, is not liable to this action.
9. Gaius, On the Provincial Edict, Book XIII.
When a tenant cuts down trees, suit can be brought against him under the lease; but it is clear that the plaintiff should be content with a single action.
10. Julianus, On Minicius, Book III.
Where there are two parts of one tree, and they are united above the ground, they are regarded as a single tree. But if the point of union is not visible, there are as many trees as there are trunks above the surface.
11. Paulus, On the Edict, Book XXII.
Where, however, proceedings have been brought under the Aquilian Law for trees cut down, and judgment under the interdict Quod vi aut clam has been rendered, the defendant will be discharged, if, under the first decision, he has made a sufficient payment; but suit under the Law of the Twelve Tables can still be brought.
12. Javolenus, On Cassius, Book XV.
Anyone who sells a field, can, nevertheless, bring an action for the cutting of trees before the sale has been concluded.
Tit. 8. Concerning the robbery of property by violence, and disorderly assemblages.
1. Paulus, On the Edict, Book XXII.
Anyone who takes property by force is liable to the action of non-manifest theft for double damages, and to the action of robbery with violence for quadruple damages. If the action for robbery with violence is first brought, that of theft will be refused. If that for theft is first brought, the other will not be refused, but only what exceeds the amount included in the first suit can be recovered.
2. Ulpianus, On the Edict, Book LVI.
The Praetor says: "If any damage is said to have been committed maliciously against anyone by persons unlawfully assembled, or his property is said to have been taken by violence, I will grant an action against whoever is alleged to have done these things. Likewise, if a slave is said to have committed these acts, I will grant a noxal action against his master."
(1) By this Edict, the Praetor has provided against illegal acts committed by force. For if anyone can prove that he has suffered violence, he can proceed by means of a public action against violence, and certain authorities hold that the private action should not prejudice the public one. It, however, seems to be more available, and although it may interfere with the operations of the Lex Julia having reference to private violence, still, an action ought not to be refused those who select the private remedy.
(2) He who commits robbery by violence not only perpetrates the crime maliciously, as stated in the Edict, but also when he seizes property by force, after having formed his plan, and collected armed men for the purpose of causing damage.
(3) Therefore, whether he himself assembles men, or makes use of those who already have been assembled by another in order to commit robbery, he is considered to have acted with malice.
(4) We should understand men who have been assembled to be such as are brought together for the purpose of causing damage.
(5) It is not added what kind of men, hence it makes no difference whether they are free or slaves.
(6) If only one man is called upon, we still say that men have been assembled.
(7) Again, if you suppose that only one has caused the damage, I do not think that the words of the Edict will fail to be applicable, for when it says, "Persons unlawfully assembled," we must understand this to mean that, whether one alone is guilty of violence, or whether he acts in company with others who are assembled and they are either armed or unarmed, he will be liable under this Edict.
(8) The mention of malice includes violence, for he who employs violence acts maliciously. It does not, however, necessarily follow that he who is malicious employs violence; hence malice suggests violence, and he who commits an act without violence But deceitfully is equally included.
(9) The Praetor says "damage." This word refers to every kind of injury, even that which is clandestine. I do not think, however, that all clandestine damage is included, but only such as is combined with violence. For anyone will give a suitable definition if he were to say that he who committed damage alone, and without violence, is not included in this Edict, and that if it was committed by persons who are assembled, even without violence, provided malice was present, it will come within the terms of this Edict.
(10) But neither the action of theft, nor that provided for by the Aquilian Law should be included in this Edict, although sometimes they coincide with it; for Julianus says that he who commits robbery by violence is a more unprincipled thief; and that he who commits any damage with the aid of assembled persons can also be held liable under the Aquilian Law.
(11) "Or his property is said to have been taken by violence." When the Praetor says, "Property taken by violence," we must understand this to apply even where only one article has been obtained by force.
(12) If anyone does not himself assemble men, but is found among them, and either takes anything by violence, or causes some damage, he will be liable under this action. But does this Edict only refer to damage fraudulently or violently committed by men assembled by the defendant, or does it also refer to robbery by violence, or damage committed by the men aforesaid, although they may have been called together by another, is a question which has been asked. It is better to hold that this also is the case, so that all these things are comprehended, as well as any injury committed by persons assembled by another, so that he who assembled them, as well as he who joined them, may be considered to be included.
(13) In this action the true price of the property is quadrupled within the available year, but not the amount of the interest of the plaintiff.
(14) This action will also lie with reference to a household, without it being necessary to show who among the members of the same committed the robbery by violence, or even the damage. The term "household" also includes the slaves, that is to say those that are in service, although it may be alleged that they are free, or are the slaves of others serving us in good faith.
(15) I do not think that by means of this action the plaintiff can proceed against the master on account of his slaves, because it will be sufficient for the master to once tender fourfold the amount involved.
(16) Under this suit for reparation, a surrender should not be made of the entire number of slaves, but only of those, or of him, who is proved to have caused the damage.
(17) This action is commonly styled one for property taken by violence.
(18) He alone is liable in this action who has been guilty of fraud. Therefore, if anyone forcibly seizes what is his own, he will not be liable for taking property in violence, but he will be fined in a different way. If, however, anyone should forcibly seize his own slave, of whom another has possession in good faith, he will, in like manner, not be liable under this action, because he removes his own property. But what if he takes away some article that had been encumbered to him? He will be liable.
(19) The action for property taken by violence will not be granted against a child under the age of puberty who is not capable of criminality, unless his slave, or his body of slaves, are alleged to have committed the offence, and, when this is the case, he will be liable in a noxal action for property taken by violence by his slave, or by a number of his slaves.
(20) If a farmer of the revenue should drive away my cattle, thinking that I have committed some offence against the tax law, although he may be mistaken, still, I cannot bring an action against him for property taken by violence, Labeo says, for he is not guilty of fraud. Where, however, he shuts up the cattle in order that they may not feed, and causes them to perish with hunger, a praetorian action can be brought under the Aquilian Law.
(21) When anyone shuts up cattle which he has taken by violence, suit can be brought against him on this account.
(22) In this action we do not merely consider whether that which has been forcibly seized constitutes part of the property of the plaintiff, for, whether it does or does not, if it has any connection with it, there will be ground for this proceeding. Therefore, whether the property is loaned for use, or leased, or even pledged, or deposited with me, and hence it is to my interest that it should not be removed, or if any of it is possessed by me in good faith; or I have an usufruct or any other right in it, so that it is to my interest that it shall not forcibly be taken away, it must be said that I will be entitled to this action, not that the ownership, but merely that what has been removed from my property, that is to say, from my substance, may be recovered.
(23) And, generally speaking, it must be held that an action for theft will lie in my favor for whatever has been done clandestinely in all these cases, and that I will be entitled to a right of action on this ground. Someone, however, may say that we are not entitled to an action for theft on account of property which has been deposited, but with reference to this, I have added: "If it is to our interest that the property should not be taken by violence," for then I am entitled to an action for theft.
(24) If, where property is deposited, I have become responsible for negligence, or if I have received the value of the deposit, but not as compensation, it is more proper to hold that even though the action for theft based on the deposit will not lie, one for property taken by force can be brought; because only a very small difference exists between one who acts clandestinely, and one who takes property by violence, as the former conceals his crime, and the other publishes his, and even commits it publicly. Therefore, when anyone proves that he has only a moderate interest in the matter, he should have an action for property taken by violence.
(25) If my fugitive slave buys articles to be used by himself, and they are taken away by force, for the reason that the said articles are included in my property, I can bring an action for robbery with violence.
(26) When property is taken by violence, an action can be brought for theft or wrongful damage, or a personal action will be available, or proceedings can be instituted for the recovery of each article.
(27) This action will lie in favor of the heir and other successors. It shall not, however, be granted against heirs and other successors, because a penal action cannot be brought against them. Let us see whether it should be granted for something by which they have become pecuniarily benefited. I think that the Praetor did not promise the action against the heirs for what comes into their hands, because he thought that the personal action was sufficient.
3. Paulus, On the Edict, Book LIV.
If a slave takes property by violence, and an action is brought against him when he becomes free, although he has the power to proceed against his master, suit cannot legally be brought against the manumitted slave after a year has elapsed; because, no matter against whom proceedings could have been instituted, the plaintiff will be excluded. If an action should be brought against the master within a year, and afterwards one is brought against the manumitted slave, Labeo says that an exception on the ground of res judicata, will operate as a bar.
4. Ulpianus, On the Edict, Book LVI.
The Praetor says: "When any damage is said to have been committed maliciously by one of a mob, I will grant an action for double damages against him within the year from the time when proceedings could have been instituted, and, after a year has elapsed, I will grant an action for simple damages."
(1) This Edict is introduced with reference to damage committed by any member of a disorderly crowd.
(2) Labeo says that the term "crowd" indicates a kind of riotous assemblage, and that it is derived from a Greek term signifying to "make a tumult."
(3) How large a number shall we consider to constitute a crowd? If two persons engage in a quarrel, we should not understand this to be done by a crowd, because two persons cannot properly be said to compose one. If, however, there should be a larger number, for instance, ten or fifteen persons, they may be called a crowd. But what if there are only three or four? This will not be a crowd. Labeo very properly says that there is a great difference between a tumult and a quarrel; because a tumult is the uproar and disturbance made by a multitude of men, and a quarrel is made by only two.
(4) Not only he who causes damage while in a tumultuous assemblage is liable under this Edict but also he who maliciously exerted himself in order that damage might result from the acts of the assemblage whether he was present or not, for malice can be manifested even if the person is absent.
(5) It must be said that he also is liable under this Edict who joined the crowd, and advised the damage to be committed; provided, however, he himself was present when it was done, and was there with evil intent, for it cannot be denied that the damage was committed by the crowd through his malicious interference.
(6) Where a man on his arrival excites or unites a crowd either by his cries, or by any act, either accusing someone, or arousing pity, and through his malicious conduct damage is committed, he will be liable; even if he did not have the intention of convoking the assemblage. For it is true that through his malice damage was committed by the crowd, and the Praetor does not require that it should be brought together by the person himself, but that the damage should be committed through the malicious instigation of one forming a part of it. The following difference exists between this Edict and the former one, namely: in the first the Praetor speaks of damage maliciously committed by persons tumultuously assembled, or robbery with violence perpetrated by them where they were not assembled; but in the second, he refers to damage committed maliciously by a crowd, although the accused person did not convoke it, but where it was incited by his cries, or his languages, or because he aroused pity, even if another assembled the mob, for he himself constituted part of it.
(7) Therefore, on account of the atrocity of the deed, the first Edict presents a penalty of quadruple damages, and the latter one of double damages.
(8) Both of them, however, grant the power of bringing an action within a year, but, after the year has elapsed, an action for only simple damages will lie.
(9) Moreover, this Edict mentions damage which has been caused and property which has been lost, but it does not refer to robbery with violence; still, suit can be brought for robbery with violence under the former Edict.
(10) Property is said to be lost which has been allowed by anyone to be destroyed, as for instance cut, or broken to pieces.
(11) Again, this action is in factum, and is granted for double the value of the property, which has reference to its true price and the estimate made at the present time, is always doubled within a year.
(12) The plaintiff must prove that the damage was caused by a mob. If, however, it was caused in any other way than by a mob, this action will not lie.
(13) If, when Titius struck my slave, a crowd assembled, and the slave lost something thereby, I can bring suit against the person who struck him, even though the crowd was responsible for the loss, and he began to strike him in order that injury might be committed. The action, however, will not lie if any other cause for striking him existed.
(14) When, however, anyone himself assembles a crowd, and beats the slave in its presence for the purpose of doing him injury, and not with the intention of causing damage, the Edict will apply; for it is true that he who strikes anyone unjustifiably displays malice, and that he who is responsible for the commission of damage commits it.
(15) The Praetor grants an action against a slave, and against an entire body of slaves.
(16) What we have stated with reference to heirs and other successors being entitled to bring the action for property taken by violence may be repeated here.
5. Gaius, On the Provincial Edict, Book XXI.
It will not benefit the person guilty of robbery with violence to restore the property before judgment is rendered, with a view to avoiding the penalty.
6. Venuleius, Stipulations, Book XVII.
The law forbids property which has been possessed or taken by violence to be acquired by usucaption, before it again comes under the control of the owner, or his heir.
Tit. 9. Concerning fire, destruction, and shipwreck, where a boat or a ship is taken by force.
1. Ulpianus, On the Edict, Book LVI.
The Praetor says: "When it is alleged that anyone at a fire, in the destruction of a building, in a shipwreck, or in an attack on a boat or a ship, has taken anything by violence, or fraudulently appropriated property, or caused any loss, I will grant an action for quadruple damages within a year after the time when an action can be brought, and, when the year has elapsed, I will grant an action for double damages. I will also grant the action against a slave, and an entire body of slaves."
(1) The benefit of this Edict is evident, and its severity is perfectly justifiable, since it is to the interest of the public that nothing should be stolen under such circumstances. And, although these crimes can be prosecuted criminally, still, the Praetor very properly provides that civil actions may be brought, where offences of this kind have been perpetrated.
(2) How should we understand the words "at a fire?" Do they mean in the fire itself, or only in the place where the fire occurred? The better opinion is to understand them to mean on account of the fire, that is to say, that the property was stolen because of the confusion produced by the fire, or the fear resulting from it; just as we are accustomed to say "lost in war," with reference to anything which is lost by reason of war. Hence, if anything should be stolen from the fields near where the fire took place, it must be said that there will be ground for the application of the Edict, because it is true that it was stolen on account of the fire.
(3) Likewise, the term "destruction" refers to the time when the demolition of the house took place, and not merely where anyone removed property from the fallen building, but also if he removed any from the adjacent houses.
(4) If there was a suspicion of a fire, or of the demolition of a house, and neither the fire nor the demolition occurred, let us see whether there will be ground for the application of this Edict. The better opinion is that there will be no ground for it, because nothing was taken either on account of the fire, or the demolition of the house.
(5) The Praetor also says, "If anything is taken in a shipwreck," and, in this instance, the question arises whether this means if anyone takes property at the time of the shipwreck, or if he takes it at some other time, that is to say, after the shipwreck has occurred; for anything cast upon the shore after a shipwreck is said to belong to the vessel. The better opinion is that this refers to the time of the shipwreck,
2. Gaius, On the Provincial Edict, Book XXI.
As well as to the place.
3. Ulpianus, On the Edict, Book LVI.
Where anyone seizes property by violence in the place where the shipwreck occurs or has occurred, he is held to come within the terms of this Edict. He, however, who carries away articles cast upon the shore after the shipwreck has happened is in such a position that he should rather be considered a thief than liable under this Edict; just as he who appropriates an article which has fallen from a vehicle, and one who removes property cast upon the shore are not considered to have taken it by force.
(1) Next, the Praetor says, "In an attack on a boat or a ship." He is considered to take property by force who, during a battle or a combat directed against a ship or a boat, either seizes it by violence, or does so while robbers are capturing the vessel.
(2) Labeo says it is only just that, if anything is taken by violence during an attack either upon a house in town or upon one in the country, there will be ground for proceeding under this Edict, for we can be annoyed and attacked by robbers no less upon the sea than upon the land.
(3) Not only he who has seized the property by force, but also he who received it, is liable in the above-mentioned instances, because receivers of stolen goods are not less guilty than the aggressors themselves. The word, "fraudulently," has been added, however, for the reason that everyone who receives property under such circumstances does not immediately become guilty, but only he who receives it with fraudulent intent. But what if he received it without knowing the facts? Or what if he received it for the purpose of taking care of it, and keeping it safely for the person who lost it? He certainly should not be held responsible.
(4) Not only he who took the property by force, but also he who removed it, or set it aside with the intention of removing it, or injured it, or concealed it, is liable in this action.
(5) It is, however, clear that it is one thing to take property by violence, and another to secretly appropriate it, since anything can be secretly appropriated without violence, but property cannot forcibly be taken without the employment of violence.
(6) Anyone who takes property by violence from a ship which has run aground is liable under this Edict. To run aground is what the Greeks term ecebrasvy.
(7) What the Praetor says with reference to causing damage only applies where the damage has been committed maliciously, for if malice is absent, the Edict will not be available. Hence, how must what Labeo stated be understood, namely: if, for the purpose of protecting myself from a fire, which has broken out, I demolish a building belonging to my neighbor, should an action be granted against me, and my slaves? For, as I did this for the purpose of protecting my own house, I certainly am free from malice. Therefore I think that what Labeo said is not true. But can an action be brought under the Aquilian Law? I do not think it can, for anyone who desires to protect himself does not act unjustly when he cannot do otherwise. Celsus, also, was of the same opinion.
(8) In the time of Claudius, the following Decree of the Senate was enacted: "If anyone, in a shipwreck, should remove the rudders of a vessel, or one of them, he will be liable for taking the whole ship." It was likewise provided by another Decree of the Senate that those by whose fraud or advice shipwrecked persons were overcome by force, in order to prevent assistance being given to the ship, or to anyone on board who was in danger, would be liable to the penalties of the Cornelian Law relating to assassins. And, moreover, that those who took by violence, or fraudulently obtained anything from the wretched fortunes of the shipwrecked person, should be compelled to pay as much into the Treasury as could be recovered by the Edict of the Praetor.
4. Paulus, On the Edict, Book LIV.
Pedius says that he who seizes property by violence while the terror which prevails during a shipwreck exists can be said to have taken it in the shipwreck.
(1) The Divine Antoninus stated as follows, in a Rescript having reference to those who are guilty of pillage during a shipwreck: "What you wrote me concerning the shipwreck of a vessel or a boat was done for the purpose of ascertaining what penalty I think should be inflicted upon those who have stolen something from the vessel. I think that this can be easily determined, for there is a great difference where persons take property which is about to be lost, and where they criminally seize that which can be saved. Therefore, if considerable booty appears to have been obtained by force, you will, after conviction, banish freemen for three years, after having them whipped; or, if they are of inferior rank, you will sentence them to labor on the public works for the same time; and you will sentence slaves to the mines after having scourged them. When the property is not of great value, you can discharge the freemen, after having whipped them with rods; and the slaves, after having scourged them. And, by all means, in other cases, as well as in those of this description, the condition of the persons and the nature of the property should be carefully considered, in order that no more severity or indulgence may be exercised than the circumstances demand."
(2) These actions are granted to heirs, as well as against them, according to the amount of property which comes into their hands.
5. Gaius, On the Provincial Edict, Book XXI.
If anyone should remove by stealth, or take by violence anything which has been rescued from a shipwreck, a fire, or the destruction of a house, and placed elsewhere, he will be liable either to an action for theft, or to one for property taken by violence; especially if he did not know that it came from a shipwreck, a fire or the destruction of a building. Where anyone carries away property which has been lost in a shipwreck, and is lying on the shore where it was cast by the waves; many authorities hold the same opinion, and it is correct, if some time intervened since the shipwreck took place. Otherwise, if this occurred at the very time of the shipwreck, it makes no difference whether the goods were taken from the sea itself or from the wreck, or from the shore. We should make the same distinction where they were taken from a boat or a vessel in distress.
6. Callistratus, On the Monitory Edict, Book I.
A ship is in distress when it is plundered, or submerged, or broken open, or has a hole made in it, or its cables are cut, or its sails torn, or its anchors are carried away by the sea.
7. The Same, Questions, Book II.
Many precautions have been taken to hinder property from being stolen during a shipwreck, or to prevent strangers from coming in and taking possession of it. For the Divine Hadrian provided by an Edict that those who owned land on the shore of the sea should, when a ship either badly damaged or broken up within the boundaries of any of them, see that nothing was stolen from the wreck; and that the Governors of provinces should grant actions against them in favor of those who were searching for the property of which they had been deprived, to enable them to recover anything which they could prove had been taken from them during the shipwreck, by those who had possession of the same. With reference to such as are proved to have taken the property, the Governor should impose a severe sentence upon them, as upon robbers. And in order to render proof of the commission of crimes of this kind more easy, he permitted those who complained of having suffered any loss to go before the Prefect and give their evidence, and search for the guilty parties, in order that they might be sent before the Governor either in chains, or under bond, in proportion to the gravity of their offences. He also directed that security be taken from the owner of the property alleged to have been stolen not to desist from the prosecution. The Senate also decreed that neither a soldier, nor any private individual, nor a freedman, nor a slave of the Emperor, should interfere in the collection of articles dispersed by shipwreck.
8. Neratius, Opinions, Book II.
If your boat has been carried by the force of the stream upon my land, you cannot remove it, unless you give me security for any damage which may have been caused by it.
9. Gaius, On the Law of the Twelve Tables, Book IV.
Anyone who sets fire to a house, or a pile of grain near a house, shall be chained, scourged, and put to death by fire, provided he committed the act knowingly and deliberately. If, however, it occurred by accident, that is to say, through negligence, he shall be ordered to make good the damage; or, if he is insolvent, he shall receive a light chastisement. Every kind of building is included in the term house.
10. Ulpianus, Opinions, Book I.
The vigilance of the Governors of provinces must be diligently exercised to prevent fishermen from showing lights at night in order to deceive sailors, thereby indicating that they are approaching some port, and in this way bringing ships and those on board of them into danger, and preparing for themselves a detestable booty.
11. Marcianus, Institutes, Book XIV.
Where a fire takes place by accident it is excusable, unless there was such gross negligence as to resemble illegality or fraud.
12. Ulpianus, On the Duty of Proconsul, Book VIII.
It is established that anyone can collect his shipwrecked property, and this was stated by the Emperor Antoninus and his Divine Father in a Rescript.
(1) Persons of low rank who designedly cause a fire in a town shall be thrown to wild beasts, and those of superior station shall suffer death, or else be banished to some island.
Tit. 10. Concerning injuries and infamous libels.
1. Ulpianus, On the Edict, Book LVI.
Something done contrary to law is designated an injury, for everything which is illegal is held to be injurious. This, generally speaking, is the case, but, specifically, an injury is defined to be an insult. Sometimes, by the term "injury" damage caused by negligence is meant, as we are accustomed to state in the Aquilian Law. At other times, we call injustice an injury, as where anyone has rendered a wrongful or inequitable decision, and this is styled an injury because it is in violation of law and justice as not being legal. The term "insult" is derived from the verb "to despise."
(1) Labeo says that an injury can be caused by a thing, or by words. By a thing, when the hands are employed; by words, when the hands are not used, and the outrage is committed by speech.
(2) Every injury involves either the person or the honor of him who is the object of it, and has a tendency to render him infamous. It is directed against the person, when he is beaten; against his honor, when a matron is deprived of her attendant; and it tends to render anyone infamous when his or her modesty is attacked.
(3) Again, an injury is committed against anyone by a person himself, or by others: by the person himself, where it is committed directly against the head, or the mother of a family; by others, where it is committed indirectly, as for instance, against my children, my slaves, my wife, or my daughter-in-law. For injury concerns us when it is directed against those who are subject to our authority, or are entitled to our affection.
(4) If an injury is perpetrated against the body of a deceased person, of whose estate we are the heirs, or the praetorian possessors, we can bring an action for injury in our own name; for an injury committed in this manner involves our reputation. The same rule applies if the reputation of him whose heirs we are is attacked.
(5) Moreover, any injury committed against our children is an attack upon our honor; so that, if anyone sells a son with his own consent, his father will be entitled to an action for injury in his own name, but the son will not, because no injury is committed against one who consents.
(6) Whenever an injury is committed against the funeral of a testator, or his corpse, and this is done after the estate has been entered upon, it must be said that it is, to a certain extent, committed against the heir, for it is always to the interest of the latter to protect the reputation of the deceased. If it was committed before the estate was entered upon, the action will rather be acquired by the estate, and transmitted by it to the heir. Finally, Julianus says, there is no doubt that if the body of the testator is detained before the estate has been entered upon, the right of action will be acquired by the estate. He also thinks that the same rule will apply if any injury is committed against a slave belonging to the estate before it has been entered upon, because the right of action is acquired by the heir through the estate.
(7) Labeo says that if anyone, before the estate has been entered upon, strikes a slave forming part of it, who has been manumitted by will, the heir can bring an action for injury. But if he should be struck after the estate has been entered upon, whether he knows that he is free or not, he can bring the suit.
(8) But whether he knows that it is my son or my wife, or whether he does not, Neratius says that I will be entitled to this action in my name.
(9) Neratius also says that from one injury sometimes a right to proceed against three persons will arise, and that the right of action of one is not extinguished by that of another; as, for instance, when an injury has been committed against my wife who is a daughter under paternal control, the action for injury will lie in favor of me, of her father, and of the woman herself.
2. Paulus, On the Edict, Book L.
When an injury is committed against a husband, his wife cannot bring the action, because it is proper for wives to be defended by their husbands, and not husbands by their wives.
3. Ulpianus, On the Edict, Book LVI.
It is said, by way of reciprocity, that those who can suffer an injury can also commit it.
(1) There are, however, some persons who cannot do this, for example, a lunatic, and a minor who is not capable of criminality, since they can suffer injuries but cannot commit them; for as an injury can only take place with the intention of him who commits it, and the result will be that such persons, whether they resort to blows, or use insulting language, are not considered to have committed injury.
(2) Hence, anyone can suffer an injury without perceiving it, but he cannot commit one unless he is aware of it, even if he does not know against whom it is committed.
(3) Therefore, if anyone strikes another in jest, or while he is contending with him, he will not be liable for committing an injury.
(4) When anyone strikes a freeman, thinking that he was his slave, he is in such a position that he will not be liable to an action for injury committed.
4. Paulus, On the Edict, Book L.
If, when intending to strike my slave with my fist, I should unintentionally strike you, while you were standing near him, I will not be liable for injury.
5. Ulpianus, On the Edict, Book LVI.
The Cornelian Law relating to injuries has reference to a person who wishes to bring suit for injury, because he says that he has been struck and beaten, or that his house has been entered by force. It is provided by this law that he cannot, in such a case, preside as judge, who is either the son-in-law, father-in-law, stepfather, stepson, cousin, or is any more nearly connected with the plaintiff by either relationship or affinity, or who is the patron, or the father of any of the abovementioned persons. Therefore, the Cornelian Law grants an action for two causes, namely, where anyone has been struck or beaten, or where his house has been forcibly entered. Hence it is apparent that every injury which can be committed by the hands is included in the Cornelian Law.
(1) The following difference exists between striking and beating, so Ofilius says: to beat is to cause pain, to strike is to inflict blows without pain.
(2) We should understand the word "house" to be not merely one which is owned by the plaintiff, but the one in which he resides. Therefore this law will be applicable, whether the aggrieved person lives in his own house, or in one which he has leased, or occupied gratis, or is one where he happens to be a guest.
(3) When he lives in a house in the country, or one surrounded by gardens, what should be done? The same rule should be adopted.
(4) If the owner should lease a tract of land, and it is entered by force, the tenant, and not the landlord, can bring the action.
(5) Where, however, anyone enters the land of another which is cultivated by the owner, Labeo denies that this action can be brought by the owner of the land, under the Cornelian Law, because he cannot have his residence everywhere, that is to say, in all his farmhouses. I think that this law applies to every habitation in which the head of a household resides, although he may not have his domicile there. For suppose someone goes to Rome for the purpose of pursuing his studies, he certainly does not reside at Rome, and still it should be said that if his house is entered by force, there will be ground for the application of the Cornelian Law. Therefore it does not apply to temporary lodgings, or to stables. It is, however, applicable to those who remain in a place for a very short time, although they may not have their domicile there.
(6) The question is asked, whether the head of a household can bring the action for injury under the Cornelian Law, if a son under his control has sustained an injury. It has been decided that he cannot do so. This rule applies in all cases. The Praetorian Action for injury will, however, lie in favor of the father, and that of the Cornelian Law in favor of the son.
(7) A son under paternal control can bring the action under the Cornelian Law for any of these reasons, and he need not provide that his father will ratify his act; for Julianus has stated that a son who brings an action for injury under any other law cannot be compelled to give security for ratification.
(8) By this law, the plaintiff is permitted to tender the oath, in order that the defendant may swear that he has not committed any injury. Sabinus, however, in his work on Assessors, says that even Praetors must follow the example of the law. And this is the fact.
(9) When a person writes anything for the purpose of defaming another, or composes, or publishes it, or maliciously procures this to be done, even though it may be published in the name of someone else, or without any name, he can be prosecuted under this law, and if he should be convicted, he will be declared incapable of testifying in court.
(10) He who publishes any inscriptions, or anything else, even if it is written, for the purpose of libelling another, will incur the same penalty, under the Decree of the Senate, as a person will who has caused any of these things to be purchased, or sold.
(11) Anyone, whether he be free or a slave, who gives information of the guilty party shall be rewarded by the judge in proportion to the wealth of the accused person; and where the informer is a slave, he may, perhaps, be granted his freedom. For why not, if the public welfare is promoted by his information?
6. Paulus, On the Edict, Book LV.
This Decree of the Senate is necessary, when the name of him against whom the act was committed is not mentioned. Then, for the reason that proof is difficult, the Senate wished that the crime should be punished by a public prosecution. If, however, the name of the person is mentioned, he can bring suit for injury under the Common Law, for he should not be prevented from bringing a private action because it prejudices a public prosecution, as private interests are concerned. It is evident that if a public prosecution is instituted, a private action must be denied, and vice versa.
7. Ulpianus, On the Edict, Book LVII.
The Praetor provides in his Edict as follows: "Anyone who brings an action for injury must state positively what injury was sustained," because he who brings an action which may render another infamous should not make a vague accusation admitting of a distinction which may affect the good name of another, but he must designate and specify clearly the injury which he alleges he has suffered.
(1) When it is said that a slave has been killed for the purpose of causing injury, should not the Praetor permit the public action to be prejudiced by the private one of the Cornelian Law, just as if anyone should desire to bring suit, because you gave poison for the purpose of killing a man? He will, therefore, act more properly, if he does not grant an action of this kind. We are, however, accustomed to hold that, in cases which can be publicly prosecuted, we ought not to be prevented from bringing private actions. This is true only where the action which should be publicly prosecuted is not vitally concerned. What, then, must we say with reference to the Aquilian Law, for this action has principally reference to this? The slave who was killed was not the principal object of the action which was brought mainly on account of the loss sustained by his owner; but, in the action for injury, proceedings are instituted with reference to murder and poisoning, for the purpose of inflicting punishment, and not for reparation of damage. But what if anyone should desire to bring the action for injury, because he has been struck on the head with a sword? Labeo says that he should not be prevented from bringing it, as the case is not one which demands public punishment. This is not true, for who doubts that the aggressor can be prosecuted under the Cornelian Law?
(2) Besides, the nature of the injury which the person suffered must be specifically stated, in order that we may ascertain whether judgment should be rendered against a patron in favor of his freedman. For it must be remembered that an action for injury is, not always but only occasionally, granted to a freedman against his patron, where the injury he has sustained is atrocious; for instance, if it is one which may be inflicted upon a slave. Moreover, we allow a patron to inflict a light punishment upon his freedman; and the Praetor will not receive his complaint as having sustained an injury, unless he is impressed by the atrocity of the act. For the Praetor should not permit the slave of yesterday who is the freedman of today to complain that his master has insulted him, or struck him lightly, or corrected him. It will, however, be perfectly just for the Praetor to come to his relief, if his master has scourged him, or severely beaten him, or seriously wounded him.
(3) If one of several children, who are not subject to paternal authority, desires to bring suit against his father, an action for injury cannot be rashly instituted, unless the atrocity of the deed should induce this to be done, but certainly those who are under paternal control are not entitled to this action, even if the injury was atrocious.
(4) When the Praetor says, "Must state positively what injury was sustained," how should this be understood? Labeo holds that he states anything positively who mentions the name of the injury, without any ambiguity (for instance, "either this or that"), but alleges that he has suffered such-and-such an injury.
(5) If you inflict several injuries upon me, for example, where a disorderly crowd having assembled, you enter my house, and in consequence I am insulted and beaten at the same time; the question arises, can I bring separate actions against you for each injury? Marcellus, in accordance with the opinion of Neratius, approves of the union in a single action of all the injuries that anyone has suffered at the same time.
(6) Our Emperor stated in a Rescript that, at present, civil actions can be brought for all kinds of injuries, even such as are of an atrocious character.
(7) We understand an atrocious injury to be one which is more than usually insulting and serious.
(8) Labeo says that an atrocious injury is committed with reference to the person, or the time, or the thing. An injury to the person becomes more atrocious when it is committed against a magistrate, a parent, or a patron. With reference to time, when it is committed at the games, and in public, or in the presence of the Praetor, or in private, for he asserts that there is a great difference, as an injury is more atrocious when it is committed in public. Labeo says that an injury is atrocious with reference to the thing, as for instance, where a wound is inflicted, or anyone is struck in the face.
8. Paulus, On the Edict, Book LV.
The size of the wound constitutes the atrocity, and sometimes the place where it is inflicted, for example, when the eye is struck.
9. Ulpianus, On the Edict, Book LVII.
While we are discussing the point that the injury becomes atrocious on account of the thing itself, the question arises whether, in order for it to be atrocious, it must be inflicted upon the body, or whether it can be such if it is not corporeal, for instance, where clothing is torn, or an attendant is taken away, or insulting language is used. Pomponius says that an injury can be called atrocious without inflicting a blow, the atrocity being dependent upon the person.
(1) When, however, one person strikes and wounds another in the theatre or in some other public place, he perpetrates an atrocious injury even though it is not serious.
(2) It makes little difference whether the injury is inflicted upon the head of a household, or on a son under paternal control, for it will be considered atrocious.
(3) If a slave inflicts an atrocious injury and his master is present, proceedings can be instituted against the latter. If his master is absent, the slave should be delivered to the Governor, who shall cause him to be scourged. When anyone makes immodest advances to either a woman or a man, or to a freeborn person, or to a freedman, he will be liable to an action for injury. If the modesty of a slave is attacked, the action for injury can be brought.
10. Paulus, On the Edict, Book LV.
The modesty of a person is said to be attacked when an attempt is made to render a virtuous person depraved.
11. Ulpianus, On the Edict, Book LVII.
Not only is he liable to an action for injury who commits the injury, that is to say, he who delivered the blow, but he also is included who, either by malice or through his efforts, causes anyone to be struck with the fist, for instance, upon the cheek.
(1) The action for injury is founded on right and justice. It is extinguished by dissimulation; for if anyone should abandon an injury, that is to say, if, after having suffered it, he does not recall it to mind, and should afterwards repent of having neglected to do so, he cannot revive it. According to this, equity is considered to abolish all apprehension of an action, whenever anyone opposes what is just. Hence, if an agreement with reference to an injury is entered into, or a compromise is made, or an oath is exacted in court, the action for injury will not survive.
(2) Anyone can bring the action for injury either by himself or by another; as, for example, by an agent, a guardian, or any other persons who are accustomed to act in behalf of others.
(3) If an injury is committed against anyone by my direction, most authorities hold that both I, who gave the order, and the person who received it, are liable to the action for injury.
(4) Proculus very properly says that if I hire you to commit an injury, suit can be brought against each of us, because the injury was committed by my agency.
(5) He says that the same rule will apply, if I direct my son to commit an injury against you.
(6) Atilicinus, however, says that if I persuade anyone to commit an injury who otherwise would be unwilling to obey me, an action for injury can be brought against me.
(7) Although the action for injury is not granted to a freedman against his patron, it can be brought by the husband of a freedwoman, in her name, against her patron; for the husband, when his wife has suffered any injury, is considered to bring the action in her name; which opinion Marcellus accepts. I, however, have made a note on him to the effect that I do not think that this applies to every injury. For why should light chastisement of a freedwoman even if she is married, or strong language, which is not obscene, be denied to a person? But if the woman was married to a freedman, we should say that an action for injury ought, by all means, to be granted to the husband against the patron. This is the opinion of many authorities. Hence it is apparent that our freedmen not only cannot bring an action for injury against us for injuries inflicted upon themselves, but not even for such as are inflicted upon those whom it is to their interest should not suffer injury.
(8) It is clear that if the son of a freedman, or his wife, should wish to bring an action for injury sustained, this ought not to be refused them because the action is not granted to the father or the husband, since they bring suit in their own names.
(9) There is no doubt that anyone who is said to be a slave and asserts that he is free can bring the action for injury against one who alleges that he is his master. This is true, whether from being free he desires to introduce him into slavery, or whether the slave wishes to obtain his freedom, for we use this law without making any distinction.
12. Gaius, On the Provincial Edict, Book XXII.
When an action is brought to reduce anyone from freedom to servitude whom the plaintiff knows to be free, and he does not do this on account of eviction, in order to preserve it for himself; he will be liable to the action for injury.
13. Ulpianus, On the Edict, Book LVII.
The action for injury sustained is not granted in favor of, or against an heir. The same rule applies where an injury has been inflicted upon my slave, for, in this instance, the action for injury will not be granted to my heir. But after issue has once been joined, this right of action passes even to successors.
(1) He who has recourse to a public law is not understood to do so for the purpose of causing injury, for the execution of the law does not inflict injury.
(2) Where anyone is arrested for not having obeyed the decree of the Praetor, he is not in a position to bring suit for injury founded on the order of the Praetor.
(3) If anyone should unjustly summon me before a tribunal of the magistrate, in order to annoy me, I can bring the action for injury against him.
(4) If, when honors are to be conferred, anyone should not suffer this to be done, as, for instance, where a statue, or something else of this kind has been decided upon, will he be liable to the action for injury? Labeo says that he will not be liable, even though he may do this for the sake of insult; for he says it makes a great deal of difference where something is done by way of insult, or where a person does not permit an act to be performed in honor of another.
(5) Labeo also says that where one person was entitled to an embassy, and the duumvir imposed this duty upon another, the action for injury cannot be brought on the ground of labor enjoined; for it is one thing to impose a duty upon a person, and another to inflict an injury upon him. This rule should be adopted with reference to other offices and duties which are unjustly bestowed. Hence, if anyone should render a decision for the purpose of causing injury, the same opinion should prevail.
(6) No act of a magistrate performed by virtue of his judicial authority renders the action for injury applicable.
(7) Where anyone prevents me from fishing, or casting a net in the sea, can I bring the action for injury against him? Some authorities hold that I can do so, and among them is Pomponius. The majority, however, hold that the case is similar to that of a person who is not suffered to bathe publicly, or seat himself in a theatre, or go into, sit down, or associate with others in any public place, or where anyone does not permit me to make use of my own property, for he can be sued in an action for injury. The ancients granted an interdict to anyone who leased these public places, for it was necessary to prevent force from being used against him by which he would be unable to enjoy his lease. But if I prevent anyone from fishing in front of my residence, or farm-house, what must be said? Am I liable to an action for injury, or not? For the sea, as well as the shore and the air, is common to all persons, and it has very frequently been stated in rescripts that no one can be prevented from fishing, or hunting birds, but he can be prevented from entering upon land belonging to another. It has, nevertheless, improperly, and without the authority of law, been assumed that anyone can be prohibited from fishing in front of my residence or my farm-house; therefore, when anyone is prevented from doing so, he can still bring the action for injury. I, however, can prevent anyone from fishing in a lake which is my property.
14. Paulus, On Plautius, Book XIII.
It is evident that, where anyone has a private right to any part of the sea, he will be entitled to the interdict Uti possidetis, if he should be hindered from exercising it, as this relates to a private matter and not to a public one, since the enjoyment of a right based on a private title, and not on a public one, is involved; for interdicts have been introduced for private and not for public reasons.
15. Ulpianus, On the Edict, Book LXXVII.
The question is also asked by Labeo, if anyone should alienate the mind of a person by drugs, or by any other means, whether there will be ground for the action for injury. He says that the action for injury can be brought against him.
(1) Where a man has not been beaten, but hands have been threateningly raised against him, and he has been repeatedly alarmed at the prospect of receiving blows, without having actually been struck, the offender will be liable to an equitable action for injury sustained.
(2) The Praetor says: "I will grant an action against anyone who is said to have abused another, or to have caused this to be done, in a way contrary to good morals."
(3) Labeo says that vociferous abuse by several individuals constitutes an injury.
(4) The expression, "Vociferous abuse by several individuals," is said to be derived from the terms "tumult," or "assembly," that is to say the union of several voices, for where those are united it receives this appellation, just as if someone had said an "assembly of voices."
(5) But what is added by the Praetor, that is to say, "Contrary to good morals," shows that he noted not all the united clamor, but merely that which violates good morals, and which has a tendency to render someone infamous, or detested.
(6) He also says that the expression, "Contrary to good morals," should not be understood to refer to those of the person who commits the offence, but, in general, to mean in opposition to the morals of this community.
(7) Labeo says that the abusive clamor of many voices can not only be raised against a person who is present, but also against one who is absent. Hence, if anyone, under such circumstances, should come to your house when you are not there, a clamor of many voices may be said to have occurred. The same rule applies to your lodging, or to your shop.
(8) Not only is he considered to have caused a disturbance who has himself uttered cries, but also he who has instigated others to cry out, or who has sent them for that purpose.
(9) The words, "Abused another," were not added without a cause, for if the clamor was raised against a person who was not designated, there could be no prosecution.
(10) If anyone should attempt to incite a clamor against another, but does not succeed, he will not be liable.
(11) From this it is apparent that every kind of abuse is not the clamor of several voices, but that alone which is uttered with vociferation.
(12) Whether one or several persons have uttered these expressions in a disorderly crowd, it is an united clamor. But anything which has not been spoken in a tumultuous assemblage, or in loud tones, cannot properly be designated an united clamor, but speech with a view to defamation.
(13) If an astrologer, or anyone who promises unlawful divination, after having been consulted should say that another was a thief, when in fact he was not, an action for injury sustained cannot be brought against him, but he can be prosecuted under the Imperial Constitutions.
(14) The action for injury, which is based on general clamor, is not granted either against or in favor of heirs.
(15) If anyone should speak to young girls who are attired in the garments of slaves, he will be considered to be guilty of a minor offence; and still less, if they are dressed as prostitutes, and not as respectable women. Therefore, if a woman is not dressed as a respectable matron, anyone who speaks to her or takes away her female attendant will not be liable to the action for injury.
(16) We understand an attendant to mean one who accompanies and follows anyone (as Labeo says), whether it be a freedman or a slave, a man or woman. Labeo defines an attendant to be one who is appointed to follow a person for the purpose of keeping him or her company, and is abducted either in a public or a private place. Teachers are included among attendants.
(17) He is considered to have a"bducted an attendant (as Labeo says), not where he has commenced to do so, but where he has absolutely taken the attendant away from his or her master or mistress.
(18) Moreover, he is not only understood to have abducted an attendant who does so by the employment of force, but also he who persuades the attendant to leave her mistress.
(19) Not only he who actually abducts an attendant is liable under this Edict, but also anyone who addresses or follows one of them.
(20) To "address" is to attack the virtue of another by flattering words. This is not raising a tumultuous clamor, but is a violation of good morals.
(21) He who makes use of foul language does not attack the virtue of anyone, but is liable to the action for injury.
(22) It is one thing to address, and another to follow a person, for he addresses a woman who attacks her virtue by speech; and he follows her who silently and constantly pursues her, for assiduous pursuit is sometimes productive of a certain degree of dishonor.
(23) It must, however, be remembered that everyone who follows or addresses another cannot be sued under this Edict; for he who does this in jest, or for the purpose of rendering some honorable service, will not come under the terms of this Edict, but only he who acts contrary to good morals.
(24) I think that a man who is betrothed should also be permitted to bring this action for injury; for any insult offered to his intended wife is considered an injury to himself.
(25) The Praetor says: "Nothing shall be done for the purpose of rendering a person infamous, and if anyone violates this provision, I will punish him according to the circumstances of the case."
(26) Labeo says that this Edict is superfluous, because we can bring a general action for injury committed, but it appears to Labeo himself (and this is correct) that the Praetor, having examined this point, wished to call attention to it specifically; for where acts publicly performed are not expressly mentioned, they seem to have been neglected.
(27) Generally speaking, the Praetor forbade anything to be done which would render anyone infamous; hence, whatever a person does or says, which has a tendency to bring another into disrepute, will afford ground for an action for injury sustained. Such are almost all those things which cause disgrace; as, for instance, the use of mourning garments or clothing that is filthy, or allowing the hair or the beard to grow, or the composition of poetry, or the publication or singing of anything which may injure anyone's modesty.
(28) When the Praetor says, "If anyone violates this provision, I will punish him according to the circumstances of the case," this should be understood to mean that the punishment by the Praetor will be more severe; that is, that he will be influenced either by the personal character of him who brings the action for injury, or by that of him against whom it is brought, or by the matter itself, and the nature of the injury as alleged by the plaintiff.
(29) If anyone attacks the reputation of another by means of a memorial presented to the Emperor, or to anyone else, Papinianus says that the action for injury can be brought.
(30) He also says that he who sells the result of a decision, before any money has been paid, can be condemned for injury, after having been whipped by order of the Governor, as it is apparent that he committed an injury against the person whose judgment he offered for sale.
(31) Where anyone seizes the property of another, or even a single article, for the purpose of causing him damage, he will be liable to an action for injury.
(32) Likewise, if anyone has given notice of the sale of a pledge, and states that he is about to sell it, as having received it from me, and does this for the purpose of insulting me, Servius says that an action for injury can be brought.
(33) If anyone, in order to injure another should refer to him as his debtor, when he is not, he will be liable, to the action for injury.
(34) The Praetor says: "If anyone is said to have beaten the slave of another contrary to good morals, or to have put him to torture without the order of his master, I will grant an action against him. Likewise, where any other illegal act is said to have taken place, I will grant an action after proper cause is shown."
(35) If anyone causes an injury to a slave in such a way as to inflict one upon his master, I hold that the master can bring the action for injury in his own name; but if he did not do this for the purpose of insulting the master, the Praetor should not leave the injury done to the slave himself unpunished, and, by all means, if it was effected by blows, or by torture; for it is clear that the servant suffered by it.
(36) If one joint-owner beats a slave held in common, it is clear that he will not be liable to this action, as he did this by the right of a master.
(37) If an usufructuary should do this, the owner can bring an action against him; or if the owner did it, the usufructuary can sue him.
(38) He adds, "Against good morals," meaning that everyone who strikes a slave is not liable, but everyone who strikes him against good morals is liable. Where, however, anyone does so with a view to his correction or reformation, he will not be liable.
(39) Therefore, if a municipal magistrate should wound my slave with a whip, Labeo asks if I can bring suit against him because he beat him contrary to good morals. And he says the judge should inquire what my slave did to cause him to be whipped; as, if he impudently sneered at his office, or the insignia of his rank, he should be discharged from liability.
(40) "To beat" is improperly applied to one who strikes with his fist.
(41) By "torture," we should understand the torment and corporeal suffering and pain employed to extract the truth. Therefore, a mere interrogation or a moderate degree of fear does not justify the application of this Edict. In the term "torment" are included all those things which relate to the application of torture. Hence when force and torment are resorted to, this is understood to be torture.
(42) If, however, torture should be applied by order of the master himself, and it exceeds the proper limits, Labeo says he will be liable.
(43) The Praetor says, "Where any other illegal act is said to have taken place, I will grant an action, after proper cause is shown." Hence, if a slave has been severely beaten, or put to the question, judgment can be rendered against the guilty party without any further investigation. If, however, he suffered any other injury, the action will not lie, unless proper cause is shown.
(44) Therefore the Praetor does not promise the action for injury in the name of the slave, for every kind of cause. For if he was lightly struck, or not grossly abused, he will not grant it. If his reputation has been assailed by any act, or by any written verses, I think that the investigation of the Praetor should be extended so as to include the character of the slave. For there is a great difference between the characters of slaves, as some are frugal, orderly, and careful; others are common, or employed in menial occupations, or of indifferent reputation. And what if the slave was shackled, or of bad character, or branded with ignominy? Therefore, the Praetor must take into consideration not only the injury which was committed, but also the reputation of the slave against whom it is said to have been perpetrated, and thus he will either permit or refuse the action.
(45) Sometimes the injury done to the slave falls back upon his master, and sometimes it does not; for if anyone, thinking that he belonged to someone else and not to me, should beat a man who alleged that he was free, and he would not have beaten him if he had known that he was mine, Mela says that he cannot be sued for having committed an injury against me.
(46) If anyone should bring an action for injury on account of a slave who had been beaten, and afterwards an action for wrongful damage, Labeo says that this is not the same thing, because one of the actions has reference to damage caused by negligence, and the other to insult.
(47) If I have the usufruct in a slave, and you have the ownership in him, and he has been beaten or subjected to torture, I, rather than the owner, will be entitled to bring the action for injury sustained. The same rule applies, if you have beaten my slave whom I possessed in good faith, for the master has the better right to bring an action for injury.
(48) Again, when anyone beats a freeman who was serving me in good faith as a slave, it should be ascertained whether he struck him for the purpose of insulting me, and if he did, an action for injury will lie in my favor. Therefore, we grant an action for injury with reference to the slave of another who is serving me in good faith, whenever the injury was committed with the intention of insulting me; for we grant it to the master of the name of the slave himself. If, however, he touches and beats me, I can also bring an action for injury. The same distinction must be made with reference to the usufructuary.
(49) If I beat a slave belonging to several masters, it is perfectly clear that they all will be entitled to bring the action for injury sustained.
16. Paulus, On the Edict, Book XLV.
It is not just, however, as Pedius says, that judgment should be rendered for a larger sum than the value of the share of the owner, and therefore it is the duty of the judge to make an estimate of the different shares.
17. Ulpianus, On the Edict, Book LVII.
If, however, I have done this with the permission of one alone, and thinking that he was the sole owner of the slave, the action for injury will not lie in favor of anyone. If I knew that the slave belonged to several persons, the action will not lie in favor of the owner who permitted me to strike the slave, but it will lie in favor of the others.
(1) Where torture has been inflicted by order of a guardian, an agent, or a curator, it must be said that the action for injury will not lie.
(2) My slave was scourged by our magistrate at your solicitation, or upon your complaint. Mela thinks that an action for injury should be granted me against you for an amount which may seem to the court to be equitable. And Labeo says that if the slave should die, his master can bring suit, because damage committed by means of injury is involved. This opinion was adopted by Trebatius.
(3) Some injuries inflicted by freemen seem to be slight and of no importance, but when inflicted by slaves they are serious; for the insult increases on account of the person who offered it.
(4) When a slave inflicts an injury, it is clear that he commits an offence. Therefore, it is reasonable, as in the case of other crimes, that a noxal action for damages sustained should be granted under such circumstances. The master, however, if he prefers to do so, can bring the slave into court in order to have him whipped, and in this way satisfy the person who sustained the injury. It will not be necessary for the master to give him up to be whipped, but the power will be granted him to surrender his slave for that purpose; or if the injured party is not satisfied with having him whipped, the slave should be surrendered by way of reparation, or the amount of damages appraised in court should be paid.
(5) The Praetor says, "In the discretion of the judge," which means that of a good citizen, in order that he may impose the measure of the punishment.
(6) If, before the master produces the slave in court to be whipped, in order to satisfy the complainant, this having been done by the authority of a magistrate, the plaintiff afterwards should insist upon bringing an action for injury, he should not be heard, for he who has received satisfaction has abandoned the injury he sustained; for if he acted voluntarily, it may undoubtedly be said that the right of action for injury will be extinguished no less than if it had been annulled by lapse of time.
(7) If a slave should inflict an injury by the order of his master, the latter can certainly be sued, even in his own name. Where, however, it is stated that the slave has been manumitted, it is held by Labeo that an action can be granted against him, because the injury follows the person, and a slave should not obey his master in all things. But if he should kill anyone by order of his master, we exempt him from the operation of the Cornelian Law.
(8) It is clear when he commits some act for the purpose of defending his master, that he has reason in his favor, and that he can plead an exception if he is prosecuted for what he has done.
(9) If the slave, in whom I have the usufruct, commits an injury against me, I can bring a noxal action against his owner, nor should my condition be rendered any worse because I have only an usufruct in him, than if I did not have it. The rule is otherwise where the slave is owned in common, for then we will not grant an action to the other joint-owner, for the reason that he himself is liable to one for injury.
(10) The Praetor says: "If someone is alleged to have committed an injury against a person who is under the control of another, and he to whose authority he is subject, or anyone who can act in his name as agent is not present, I will, upon proper cause being shown, grant an action to him who is said to have sustained the injury."
(11) When a son under paternal control has suffered an injury, and his father was present, but cannot bring suit on account of being insane, or because of some other affection of the mind, I think that an action for injury will lie; for in this instance the father is considered as being absent.
(12) If the father is present, but is unwilling to bring suit, either because he wishes to postpone it, or abandon, or pardon the injury, the better opinion is that the right of action should not be granted to the son; for, when the father is absent, the action is granted to the son for the reason that it is probable that his father would have brought it if he had been present.
(13) Sometimes, however, we think that even if the father excuses the injury, the action should be granted to the son, for instance, if the character of the father is vile and abject, and that of the son is honorable; for a father who is extremely contemptible should not estimate the insult offered to his son by his own degradation. Suppose, for example, the father to be a person for whom, by law and reason, a curator should be appointed by the Praetor.
(14) If, however, the father, after issue has been joined, should depart or neglect to prosecute the case, or is of inferior rank, it must be said that the right of action can be transferred to the son, if proper cause is shown. The same rule will apply where the son is emancipated.
(15) The Praetor gave the preference to the agent of the father over the persons themselves who suffered the injury. When, however, the agent neglects the case, is in collusion with the other parties, or is not able to prosecute those who have committed the injury, the action will rather lie in favor of him who suffered it.
(16) We understand an agent to be not a person who has been specially appointed an attorney to conduct an action for injury, but it will be sufficient if the administration of all the property has been entrusted to him.
(17) Where, however, the Praetor says that if proper cause is shown an action will be granted to him who is said to have sustained the injury, this must be understood to mean that when the investigation is made, it must be ascertained how long the father has been absent, and when he is expected to return, and whether the person who desires to bring suit for injury is indolent, or altogether worthless, and not capable of transacting any business, and on this account is not fitted to bring this action.
(18) When he afterwards says, "Who has sustained the injury," this must sometimes be understood to mean that his father will be entitled to bring the action; for instance, where the injury has been inflicted upon a grandson, and his father was present, but his grandfather was not. Julianus says that the action for injury should be granted to the father rather than to the grandson himself, for he holds it is the duty of the father, even while the grandfather is living, to protect his son against everything.
(19) Julianus also says that the son can not only bring the action himself, but can also appoint an attorney to do so. Otherwise, he says, if we do not permit him to appoint an attorney, and he should happen to be prevented from appearing by illness, and there is no one to conduct the action for injury, it must be dismissed.
(20) He also says that when an injury is inflicted upon a grandson, and there is no one to bring suit in the name of the grandfather, the father should be permitted to do so, and can appoint an attorney; for the power of appointing an attorney is conceded to all those who have the right to bring suit in their own names. Moreover, he asserts that a son should be considered as bringing the action in his own name, for, when his father fails to do so, the Praetor will give him permission to bring it.
(21) If a son under the control of his father brings the action for injury, it will not lie in favor of his father.
(22) He also says that an action on account of injury is granted to a son under paternal control when there is no one who can act in the name of the father, and that, in this instance, he is considered the head of the household. Wherefore, if he has been emancipated, or should be appointed a testamentary heir, or even if he is disinherited or has rejected his father's estate, authority to conduct the case shall be granted him; for it would be perfectly absurd that anyone, whom the Praetor would permit to bring the action, while he was under the control of his father, should be rendered incapable of avenging his injuries, after he had once become the head of a household, and that this privilege should be transferred to his father, who had abandoned him as far as it was in his power to do so; or (which is still more improper) if it should be transferred to the heirs of the father, who, there is no doubt, are not in any way interested in an injury inflicted upon a son under paternal control.
18. Paulus, On the Edict, Book LV.
It is neither proper nor just for anyone to be condemned for speaking ill of a person who is guilty; for it is both necessary and expedient for the offences of guilty persons to be known.
(1) When one slave inflicts an injury upon another, an action should be brought just as if he had injured his master.
(2) If a daughter under paternal control, who is married, should sustain an injury, both her husband and her father can bring the action for injury. Pomponius very properly holds that judgment against the defendant should be rendered in favor of the father for an amount equal to what it would have been if she were a widow; and in favor of the husband, for the same amount, just as if she was independent; because the injury sustained by each party has its own distinct valuation. Therefore, if the married woman is under no one's control, she cannot bring the action, because her husband can bring it in her name.
(3) If an injury should be inflicted upon me by someone to whom I am unknown, or if anyone thinks that I am Lucius Titius, when I am Gaius Seius, the principal matter here will have the preference, that is, the fact that he desired to injure me. For I am a certain individual, although he may think that I am some other person than myself, and therefore I will be entitled to an action for injury.
(4) But when anyone thinks that a son under paternal control is the head of a household, he cannot be considered to have committed an injury against the father of the latter any more than against the husband, if he believes his wife to be a widow, because the injury is not personally aimed at the parties concerned, and cannot be transferred from their children to them by a mere effort of the mind; since the intention of him who inflicts the injury does not extend beyond the aggrieved person, who is regarded as the head of the household.
(5) If, however, he was aware that he was a son under paternal control, but still did not know whose son he was, I would hold (so he says) that the father could bring an action for injury in his own name, just as a husband could do, if he knew that the woman was married; for he who is aware of these things intends to inflict an injury through the son, or the wife, upon any father or husband whomsoever.
19. Gaius, On the Provincial Edict, Book XXII.
If my creditor, whom I am ready to pay, should attack my sureties for the purpose of injuring me, he will be liable to an action for injury.
20. Modestinus, Opinions, Book XII.
If Seia, for the purpose of inflicting injury, seals up the house of her absent debtor, without the authority of the magistrate who has the right and the power to allow this, he gave it as his opinion that the action for injury could be brought.
21. Javolenus, Epistles, Book IX.
The estimate of the injury sustained should not date from the time when judgment was rendered, but from the time when the injury was committed.
22. Ulpianus, On the Edict of the Praetor, Book I.
If a freeman is arrested as a fugitive slave, he can bring an action for injury against the person who seizes him.
23. Paulus, On the Edict, Book IV.
Ofilius says that anyone who enters the house of another against the will of the owner, even though the latter may be summoned to court, he will be entitled to an action for injury against him.
24. Ulpianus, On the Edict of the Praetor, Book XV.
Where anyone is prevented by another from selling his own slave, he can bring an action for injury sustained.
25. The Same, On the Edict, Book XVIII.
If anyone should have intercourse with a female slave, an action for injury will be granted to her master, but if he conceals the slave, or does something else with the intention of stealing, he will also be liable to an action for theft; or, if anyone should have intercourse with a young girl who was not mature, some authorities think that the action under the Aquilian Law will also lie.
26. Paulus, On the Edict, Book XIX.
If anyone makes a laughing-stock of my slave or my son, even with his consent, I will still be considered to have sustained an injury; as, for instance, if he takes him to a tavern, or induces him to throw dice. This will always be the case when the person who persuades him does so with the intention of injuring me. However, evil advice may be given by one who does not know who the master is, and hence the action for corrupting a slave becomes necessary.
27. The Same, On the Edict, Book XXVII.
If the statue of your father, erected on his monument, is broken by having stones thrown at it, Labeo says that an action for violating a tomb cannot be brought, but that one for injury can.
28. Ulpianus, On Sabinus, Book XXXIV.
The action for injury does not affect our property until issue has been joined.
29. Paulus, On Sabinus, Book X.
If you manumit or alienate a slave, on whose account you are entitled to an action for injury, you will retain the right to bring the action.
30. Ulpianus, On Sabinus, Book XLII.
Who doubts that, after a slave has been manumitted, an action will not lie for an injury which he sustained while in servitude?
(1) If an injury has been inflicted upon a son, while the right of action will be acquired by the son as well as the father, the same estimate should not be made for both:
31. Paulus, On Sabinus, Book II.
As the injury done to the son may be greater than that done to the father, on account of the superior rank of the former.
32. Ulpianus, On Sabinus, Book XLII.
Magistrates are not allowed to do anything by which an injury may be caused. Therefore, if a magistrate, either as a private individual, or in his magisterial capacity, is instrumental in committing injury, he can be sued for injury. But will it be necessary to wait until he has relinquished his office, or can the suit be brought while he still holds it? The better opinion is, that if he is a magistrate who cannot legally be summoned to court, it will be necessary to wait until he relinquishes his office. If, however, he is one of the inferior magistrates, that is to say, one of those not invested with supreme jurisdiction or authority, he can be sued, even while he is still discharging his judicial duties.
33. Paulus, On Sabinus, Book X.
When anything is done in compliance with the dictates of morality for the purpose of protecting the interests of the State, and this causes anyone to be insulted, nevertheless, for the reason that the magistrate did not act with the intention of causing injury, but had in view the vindication of the majesty of the Republic, he will not be liable to an action for injury.
34. Gaius, On the Provincial Edict, Book XIII.
Where several slaves together have beaten someone, or have raised a tumultuous clamor against him, each of them, individually, is guilty of the offence, and the injury is all the greater, since it was committed by slaves; and, indeed, there are the same number of injuries as there are persons responsible for them.
35. Ulpianus, On All Tribunals, Book III.
Where anyone commits an atrocious act who can, on account of his infamous character and poverty, disregard a judgment rendered against him in an action for injury, the Praetor should exercise all his severity in the prosecution of the case, and the punishment of those who committed the injury.
36. Julianus, Digest, Book XLV.
If I desire to bring an action in the name of a son against his father, and the latter appoints an attorney, the son is not considered to be defended unless he gives security for the payment of the judgment; and therefore an action should be granted against him just as if he was not defended by his father.
37. Marcianus, Institutes, Book XIV.
It is provided by the Imperial Constitutions that anything placed upon public monuments for the purpose of defaming another shall be removed.
(1) The action for injury can even be brought civilly under the Cornelian Law, and the amount of the judgment be estimated by the judge.
38. Scaevola, Rules, Book IV.
It is provided by a decree of the Senate that no one shall carry the statue of the Emperor for the purpose of exciting odium against anyone, and that he who violates it shall publicly be placed in chains.
39. Venuleius, Public Prosecutions, Book II.
No one is permitted to wear filthy clothing or long hair in public under the name of an accused person, unless he is so closely connected with him by affinity that he cannot be compelled to testify against him in opposition to his will.
40. Macer, Public Prosecutions, Book II.
The Divine Severus wrote to Dionysius Diogenes, as follows: "Anyone who has been condemned for an atrocious injury cannot belong to the Order of Decurions; and the error of a Governor or of anyone else who has rendered a different decision on the point in controversy will not benefit you, nor will that of those who, in opposition to the established law, held that you still retained your membership in the Order of Decurions."
41. Neratius, Parchments, Book III.
A father, against whose son an injury has been committed, should not be prevented from bringing suit for his own injury and that of his son, by two different proceedings.
42. Paulus, Sentences, Book V.
Parties who are conducting a case should not raise their voices against the judge, otherwise they will be branded with infamy.
43. Gaius, Rules, Book III.
Anyone who brings an action for injury against another for the purpose of annoyance shall be condemned by extraordinary proceedings, that is to say he shall either suffer exile, deportation, or expulsion from his order.
44. Javolenus, On the Last Works of Labeo, Book IX.
If the owner of a lower house causes smoke to affect the building of his neighbor above him, or if a neighbor occupying a higher house throws or pours anything upon that of another, which is situated below, Labeo says that an action for injury cannot be brought. I think that this is not true provided it was thrown down upon the neighbor's premises for the purpose of injuring him.
45. Hermogenianus, Epitomes, Book V.
So far as injuries are concerned, it is customary at present to pass sentence arbitrarily, according to the circumstances and the person. Slaves who have been scourged are restored to their masters; freemen of inferior ranks are whipped with rods; and others are punished either with temporary exile, or by the interdiction of certain property.
Tit. 11. Concerning the arbitrary punishment of crime.
1. Paulus, Sentences, Book IV.
The seducers of married women, as well as other disturbers of the marital relation, even though they may be unable to consummate their crimes, are punished arbitrarily on account of the tendency of their destructive passions.
(1) An injury is committed against good morals, for instance, where one person throws manure upon another, or smears him with filth, or mud; or defiles water, canals, or reservoirs; or fouls anything else for the purpose of injuring the public; and upon persons of this kind it is customary to inflict the most condign punishment.
(2) Anyone who persuades a boy to submit to lewdness, either by leading him aside, or by corrupting his attendant, or anyone who attempts to seduce a woman or a girl, or does anything for the purpose of encouraging her in debauchery either by lending his house, or by paying her money, in order to persuade her, and the crime is accomplished, shall be punished with death, and if it is not accomplished, he shall be deported to some island. Attendants who have been corrupted shall suffer the extreme penalty.
2. Ulpianus, Opinions, Book IV.
Unlawful assembles must not be attempted, even by veteran soldiers, under the pretext of religion, or that of performing a vow.
3. The Same, On Adultery, Book III.
The actions for embezzlement and the exploitation of estates include an accusation, but they are not criminal prosecutions.
4. Marcianus, Rules, Book I.
The Divine Severus and Antoninus stated in a Rescript that a woman who purposely produces an abortion on herself should be sentenced to temporary exile by the Governor; for it may be considered dishonorable for a woman to deprive her husband of children with impunity.
5. Ulpianus, On the Duties of Proconsul, Book V.
In addition to liability to the action for corrupting a slave, which is authorized by the Perpetual Edict, anyone at whose instigation a slave is proved to have sought sanctuary at the foot of a statue, for the purpose of defaming his master, shall be severely punished.
6. The Same, On the Duties of Proconsul, Book VIII.
Those who are accustomed to embrace every opportunity to increase the price of food are called dardanarii, and provision has been made by the Imperial Decrees and Constitutions for the repression of their avarice. It is provided as follows in the Decrees: "Moreover, you should take care that there are no dardanarii of any kind of goods, and that they do not adopt measures for storing away merchandise which they have purchased; or, that the more wealthy of them may not be unwilling to dispose of their goods at reasonable prices in expectation of an unproductive season, so that the price of food may not be raised." The punishments imposed upon such persons, however, vary greatly, for generally, if they are merchants, they are only prohibited from engaging in trade, and sometimes they are deported, but those of low rank are condemned to the public works.
(1) The price of food is also increased by the use of false balances, with reference to which the Divine Trajan promulgated an Edict, by which Edict he renders such persons liable to the penalty of the Cornelian Law; just as if under that section of this law, which has reference to wills, anyone had been condemned for having written, sealed, or published a forged testament.
(2) The Divine Hadrian also condemned to deportation anyone who had false measures in his possession.
7. The Same, On the Duties of Proconsul, Book IX.
Persons who carry bags, and make use of them for forbidden purposes, by purloining or carrying away portions of property, and also those called derectarii, that is to say, such as introduce themselves into apartments with the intention of stealing, should be punished more severely than ordinary thieves, and therefore they are sentenced for a term to the public works, or are scourged and then discharged, or are deported for a certain time.
8. The Same, In the Same Book.
There are, besides, crimes over which the Governor has jurisdiction; as, wherever anyone alleges that documents belonging to him have treacherously been given to another, for the prosecution of this offence was assigned by the Divine Brothers to the Prefect of the City.
9. The Same, In the Same Book.
There are certain offences which are punished in accordance with the customs of the provinces in which they are committed; as, for instance, in the Province of Arabia a certain crime, designated "the placing of stones," is known, the nature of which is as follows: The majority of the people are accustomed to set stones in the field of an enemy, which indicate that if anyone cultivates the field, he will suffer death through the snares of those who deposited the stones there. This proceeding causes such fear that no one dares approach the field in apprehension of the cruelty of those who placed the stones on the land. Governors are accustomed to inflict the extreme penalty for the commission of this offence, because it itself threatens death.
10. The Same, In the Same Book.
In Egypt, anyone who breaks or injures dykes (these are levees which retain the water of the Nile) are also punished in an arbitrary manner, according to their civil condition, and the measure of the offence. Some of them are sentenced to the public works, or to the mines. Anyone, also, who cuts down a sycamore tree, can also be sentenced to the mines, according to his rank, for this offence is also punished arbitrarily, and by a severe penalty, because these trees strengthen the dykes of the Nile by which the inundations of that river are distributed and restrained, and the diminution of its volume arrested. The dykes, as well as the channels cut through them, afford ground for the punishment of those who interfere with their operation.
11. Paulus, Sentences, Book I.
An action in proportion to the gravity of the offence will be granted against mountebanks who carry around and exhibit serpents, when any damage results through fear of these reptiles.
Tit. 12. Concerning the violation of sepulchres.
1. Ulpianus, On the Edict of the Praetor, Book II.
The action for violating a sepulchre brands a person with infamy.
2. The Same, On the Edict of the Praetor, Book XVIII.
Where anyone demolishes a sepulchre, the Aquilian Law does not apply, but proceedings can be instituted under the interdict Quod vi out clam. This opinion was also stated by Celsus with reference to a statue torn from a monument. He also asks if it was not fastened with lead, or attached to the tomb, in any way, whether it should be considered a part of the monument, or a part of our property. Celsus says that it is a part of the monument, as a receptacle of bones, and therefore the interdict Quod vi aut clam, will be applicable.
3. Ulpianus, On the Edict of the Praetor, Book V.
The Praetor says: "If a sepulchre is said to have been violated by anyone maliciously, I will grant an action in factum against him, in order that he may be condemned for an amount which may appear to be just, in favor of the party interested. If there is no one who is interested, or if there is and he declines to bring suit, and anyone else is willing to do so, I will grant him an action for a hundred aurei. If several persons should desire to institute proceedings, I will grant power to do so to him whose cause appears to be the most just. Where anyone, with malicious intent, inhabits a sepulchre, or constructs any other edifice than that which is intended for a tomb, I will grant an action for two hundred aurei to anyone who is willing to bring it in his own name."
(1) The first words of this Edict show that he who violates a sepulchre with malicious intent is punished by it. Therefore, if there is no malicious intent, the penalty will not apply. Hence, those who are not capable of criminality, as, for instance, children under the age of puberty, as well as persons who did not approach the sepulchre with the intention of violating it, are excused.
(2) Every place of sepulture is understood to be included in the term sepulchre.
(3) If anyone should place a body in an hereditary tomb, even though it be the heir, he will still be liable to the action for violation of a sepulchre, if he did so against the wish of the testator; for a testator is permitted to provide that no one shall be buried in his tomb, as is stated in the Rescript of the Emperor Antoninus, for his wish must be complied with. Therefore, if he says that only one of the heirs can inter persons therein, this must be observed, so that the designated heir alone may do so.
(4) It is provided by an Edict of the Divine Severus that bodies may be transferred, which have not been buried in one place for all time; and by this Edict it is directed that the transportation of bodies shall not be delayed, or meddled with, or they shall not be prevented from being conveyed through territory belonging to cities. The Divine Marcus, however, stated in a Rescript that those who transported bodies on the highways through villages or towns were not liable to any penalty, although this should not be done without the permission of those who have the right to grant it.
(5) The Divine Hadrian, by a Rescript, fixed a penalty of forty aurei against those who buried dead bodies in cities, and he ordered the penalty to be paid to the Treasury. He also directed the same penalty to be inflicted against magistrates who suffered this to be done; and ordered the place to be sold by auction, and the body to be removed. But what if the municipal law permits burial in a city? Let us see whether this right has been annulled by the Imperial Rescripts, for the reason that Rescripts are of general application. The Imperial Rescripts must be enforced and are valid everywhere.
(6) Where anyone lives in a sepulchre or has a building on the ground, whoever desires to do so can bring the action.
(7) Governors are accustomed to proceed more severely against those who despoil dead bodies, especially if they go armed; for if they commit the offence armed like robbers, they are punished capitally, as the Divine Severus provided in a Rescript; but if they commit it unarmed, any penalty can be inflicted up to sentence to the mines.
(8) Those who have jurisdiction of the action for violating a sepulchre must estimate the amount of the interest in proportion to the injury which has been inflicted, as well as in proportion to the advantage obtained by the person guilty of the violation; or to the damage which resulted; or to the audacity of him who committed the offence. Still, judgment should be rendered for a smaller sum where the parties interested are the accusers than where a stranger brought the suit.
(9) If the right of sepulture belongs to several persons, shall we grant an action to all of them, or to the one who manifested the most diligence? Labeo very properly says that the action ought to be granted to all, because it is brought for the individual interest of each one.
(10) If the party in interest does not wish to bring suit for violation of the sepulchre, but, having changed his mind before issue was joined, says that he desires to proceed, he shall be heard.
(11) If a slave lives in a sepulchre, or builds a house there, a noxal action will not lie, and the Praetor promises this action against him. If, however, he does not live there, but uses the place as a resort, a noxal action will be granted, provided he appears to retain possession of the ground.
(12) This action is a popular one.
4. Paulus, On the Edict of the Praetor, Book XXVII.
The sepulchres of enemies are not religious places in our eyes, and therefore we can make use of any stones which have been removed from them for any purpose whatsoever, without becoming liable to the action for violating a sepulchre.
5. Pomponius, On Plautius, Book IX.
It is our practice to hold that the owners of land, in which they have set apart places of sepulture, have the right of access to the sepulchres, even after they have sold the land. For it is provided by the laws relating to the sale of real property that a right of way is reserved to sepulchres situated thereon, as well as the right to approach and surround them for the purpose of conducting funeral ceremonies.
6. Julianus, Digest, Book X.
The action for violating a sepulchre is, first of all, granted to him to whom the property belongs, and if he does not proceed, and someone else does, even though the owner may be absent on business for the State, the action should not be granted a second time against one who has paid the damages assessed. The condition of the person who was absent on business for the State cannot be held to have become worse, as this action does not so much concern his private affairs as it does the public vengeance.
7. Marcianus, Institutes, Book III.
It is forbidden to make the condition of a sepulchre worse, but it is lawful to repair a monument which has become decayed, and ruined, but without touching the bodies contained therein.
8. Macer, Public Prosecutions, Book I.
The crime of violating a sepulchre may be considered as coming within the terms of the Julian Law relating to public violence, and that part in which it is provided that he shall be punished who prevents anyone from celebrating funeral ceremonies, or burying a corpse; because he who violates a sepulchre commits an act preventing interment.
9. The Same, Public Prosecutions, Book II.
A pecuniary action is also granted for violating a sepulchre.
10. Papinianus, Questions, Book VIII.
The question arose whether the right of action for violating a sepulchre belongs to the necessary heir, when he has not meddled with the property of the estate. I held that he can very properly bring this action, which is introduced in accordance with what is good and just. And, if he should bring it, he need have no apprehension of the creditors of the estate; for although this action is derived from it, still nothing is received through the will of the deceased, nor is anything obtained from the pursuit of the property, but only in consequence of the punishment inflicted by the law.
11. Paulus, Sentences, Book V.
Persons guilty of having violated sepulchres, and who have removed bodies or the bones, are punished with the extreme penalty if they are of low rank; those of higher rank are deported to some island; others still are either relegated, or condemned to the mines.
Tit. 13. Concerning extortion.
1. Ulpianus, Opinions, Book V.
If extortion is committed under a pretended order of the Governor, the Governor of the province shall order the property surrendered through terror, to be restored, and shall punish the crime.
2. Macer, Public Prosecutions, Book I.
The prosecution of extortion is not public, but if anyone has received money because he threatened another with a criminal accusation, the prosecution may become public under the Decrees of the Senate, by which all those are ordered to be liable to the penalty of the Cornelian Law who have joined in the denunciation of innocent persons, and have received money in consideration of accusing, or not accusing others, or of giving, or not giving testimony against them.
Tit. 14. Concerning those who steal cattle.
1. Ulpianus, On the Duties of Proconsul, Book VIII.
The Divine Hadrian, at the Council of Baetica, stated in a Rescript relating to cattle-thieves, "When those who drive away cattle are punished most severely, they are ordinarily condemned to the sword." They are not, however, punished with the greatest severity everywhere, but only in those places where this species of offence is most frequently committed; otherwise, they are sentenced to hard labor in the public works, and sometimes only temporarily.
(1) Those are properly considered cattle-thieves who remove cattle from pastures, or from droves, and prey upon them, as it were; and they exercise this occupation of stealing cattle as a regular trade when they take horses or cattle from the droves of which they form a part. If, however, anyone should drive away an ox that is lost, or horses which have been left alone, he does not belong to this category, but is merely an ordinary thief.
(2) He, however, who drives away a sow, a she-goat, or a sheep should not be punished as severely as one who steals larger animals.
(3) Although Hadrian established the penalty of the mines, or that of labor on the public works, or that of the sword for this offence; still, those who do not belong to the lowest rank of society should not be subjected to this penalty, for they either should be relegated or expelled from their order. Those, however, who drive away cattle, while armed, are not unjustly thrown to wild beasts.
(4) Anyone who drives away cattle whose ownership is in dispute should be subjected to a civil investigation, as Saturninus says; but this rule ought only to be adopted where no pretext for stealing the cattle is sought, but the accused person, induced by good reasons, actually believed that the cattle belonged to him.
2. Macer, Public Prosecutions, Book I.
The crime of driving away cattle is not subject to public prosecution, because it is rather to be classed as a theft; but since most offenders of this description go armed, if they are arrested, they are usually more severely punished on this account.
3. Callistratus, On Legal Investigations, Book VI.
Sheep, in proportion to the number driven away, either render a man a common thief, or an appropriator of cattle. Certain authorities have held that ten sheep constitute a flock, just as four or five hogs, when they are driven away from a drove; but a cattle-thief commits this crime if he steals but one horse or ox.
(1) He also should be more severely punished who drives away a tame flock from a stable, and not from a forest, or one forming part of a larger flock.
(2) Those who have often perpetrated this offence, although they may have taken only one or two animals at a time, are nevertheless, classed as cattle thieves.
(3) Those who harbor offenders of this kind should, according to an Epistle of the Divine Trajan, be punished by being banished from Italy for ten years.
Tit. 15. Concerning prevarication.
1. Ulpianus, On the Edict of the Praetor, Book VI.
A prevaricator is a person who takes both sides, and assists the adverse party by the betrayal of his own case. This term, Labeo says, is derived from a varying contest, for he acts in this manner who, apparently being on one side, actually favors the other.
(1) A prevaricator, properly so called, is one who appears as accuser in a criminal prosecution. An advocate, however, is not correctly said to be a prevaricator. What then should be done with him if he should be guilty of this offence, in either a private or a public proceeding, that is to say, if he has betrayed his own side? It is usual for him to be punished arbitrarily.
2. Ulpianus, On the Duties of Proconsul, Book IX.
It should be remembered that, at present, those who are guilty of this offence are punished with an arbitrary penalty.
3. Macer, Public Prosecutions, Book I.
The judgment for prevarication is either public or introduced by custom.
(1) If the defendant opposes the prosecutor in a criminal case, alleging that he already has been accused of the same crime by another and acquitted, it is provided by the Julian Law relating to public prosecutions that he cannot be prosecuted until the crime charged by the first accuser and the judgment rendered with reference to it have been investigated. Therefore, the decision of cases of this kind is understood to belong to the category of public prosecutions.
(2) Where the crime of prevarication is said to have been committed by an advocate, a public prosecution cannot be instituted; and it makes no difference whether he is said to have committed it in a public or a private proceeding.
(3) Therefore if anyone is accused of having abandoned a public prosecution, the case will not be public, because no provision was made for this by any law; and a public accusation is not authorized by that decree of the Senate which prescribes the penalty of five pounds of gold against anyone who abandons a case.
4. The Same, Public Prosecutions, Book II.
If a person against whom an action for slander cannot be brought is convicted of being a prevaricator in a criminal case, he will become infamous.
5. Venuleius Saturninus, Public Prosecutions, Book II.
An accuser convicted of prevarication cannot afterwards bring an accusation under the law.
6. Paulus, On Public Prosecutions.
It was stated in a Rescript by our Emperor and his Father that, in the case of crimes which are opposed as being extraordinary, prevaricators shall be punished with the same penalty to which they would have been liable, if they themselves had violated the law by which the defendant was acquitted through their treacherous instrumentality.
7. Ulpianus, On Taxes, Book IV.
In all cases except those in which the shedding of blood is involved, anyone who corrupts the informer is considered as convicted, according to the Decree of the Senate.
Tit. 16. Concerning those who harbor criminals.
1. Marcianus, Public Prosecutions, Book II.
The harborers of criminals constitute one of the worst classes of offenders, for without them no criminal could long remain concealed. The law directs that they shall be punished as robbers. They should be placed in the same class, because when they can seize robbers they permit them to go, after having received money or a part of the stolen goods.
2. Paulus, On the Punishment of Civilians.
Persons by whom a thief, who is either their connection by affinity or their blood relative, is concealed, should neither be discharged, nor severely punished, for their crime is not as serious as that of those who conceal robbers who are in no way connected with them.
Tit. 17. Concerning thieves who steal in baths.
1. Ulpianus, On the Duties of Proconsul, Book VIII.
Nocturnal thieves should be arbitrarily tried and punished when proper cause is shown, provided we take care that no greater penalty is inflicted than that of labor on the public works. The same rule applies to thieves who steal in baths. If, however, the thieves defend themselves with weapons, or if they have broken in, or have done anything of this kind, but have not struck anyone, they shall be sentenced to the mines, and those of superior social position shall be exiled.
2. Marcianus, Public Prosecutions, Book II.
If they commit theft in the daytime, they should be tried in the ordinary way.
3. Paulus, On the Punishment of Soldiers.
A soldier who has been caught stealing a bath should be dishonorably discharged from the service.
Tit. 18. Concerning those who break out of prison, and plunderers.
1. Ulpianus, On the Duties of Proconsul, Book VIII.
The Divine Brothers stated in a Rescript addressed to Aemilius Tiro, that persons who break out of prison should suffer death. Saturninus also adopts the opinion that those who have escaped from prison whether by breaking down the doors, or by conspiring with others confined with them, should be capitally punished, but if they escaped through the negligence of the guards, they should undergo a lighter penalty.
(1) Robbers, who are more atrocious thieves (for this is the meaning of the word) should be sentenced to labor on the public works either for life, or for a certain term of years; those, however, who are of superior rank should be temporarily dismissed from their order, or compelled to depart beyond the boundaries of their country; but no special penalty has been imposed upon them by the Imperial Rescripts. Therefore, where proper cause is shown, the magistrate having jurisdiction can pronounce judgment according to his discretion.
(2) In like manner, thieves who carry bags, directarii, and those who break into buildings, shall be punished in the same way. The Emperor Marcus ordered that a Roman knight who had stolen money, after having broken through a wall, should be banished from the Province of Africa from whence he came, as well as from the City, and from Italy, for the term of five years. It is, however, necessary, after proper cause has been shown, to render a decision with reference to both those who break into houses, and the other offenders above mentioned, according to the circumstances attending the crime; provided that no one shall be sentenced to a more severe penalty than that of labor on the public works, if he is a plebeian, and if he is of higher rank, shall suffer no more severe punishment than that of exile.
2. Paulus, On the Duties of the Prefect of the Night Watch.
Different penalties are inflicted upon persons who break into houses, for those who break in at night are the more atrocious, and hence they are usually scourged and sentenced to the mines. Those, however, who break in by day, are first whipped, and then sentenced to hard labor for life or for a specified time.
Tit. 19. Concerning the spoliation of estates.
1. Marcianus, Institutes, Book III.
When anyone plunders the estate of another, it is customary for him to be punished arbitrarily, by means of the accusation of despoiling an estate, as is provided by a Rescript of the Divine Marcus.
2. Ulpianus, On the Duties of Proconsul, Book IX.
In prosecuting the crime of plundering an estate, the Governor of the province should take judicial cognizance of the same; for when the action for theft cannot be brought, recourse to the Governor alone remains.
(1) It is evident that the offence of plundering an estate can only be prosecuted under circumstances where the action for theft is not available, that is to say, before the estate has been entered upon, or after it has been entered upon, but before the property has been taken possession of by the heir; for it is clear that, in this instance, the action of theft will not lie, although there is no doubt that one for the production of property can be brought, if anyone desires this to be done in order to enable him to claim it.
3. Marcianus, Public Prosecutions, Book II.
The Divine Severus and Antoninus stated in a Rescript that anyone who desired to prosecute extraordinarily the crime of plundering an estate could do so either before the Prefect of the City or the Governor ; or he could demand the estate from the possessors by the ordinary course of procedure.
4. Paulus, Opinions, Book III.
The property of an estate belongs in common to all the heirs, and therefore he who brings an accusation for the crime of plundering it, and gains his case, is also considered to have benefited his co-heir.
5. Hermogenianus, Epitomes of Law, Book II.
A wife cannot be accused of the crime of plundering an estate, because the action of theft cannot be brought against her.
6. Paulus, On Neratius, Book I.
If, not knowing that certain property belongs to an estate, you take it, Paulus says that you commit a theft. Theft of property belonging to an estate is not committed any more than that of property which has no owner, and the opinion of the person who steals it does not change the character of the action in any respect.
Tit. 20. Concerning stellionatus.
1. Papinianus, Opinions, Book I.
The action of Stellionatus is not included in public prosecutions or in private actions.
2. Ulpianus, On Sabinus, Book VIII.
A judgment for this offence does not brand anyone with infamy, but it is followed by extraordinary punishment.
3. The Same, On the Duties of Proconsul, Book III.
The accusation of Stellionatus comes within the jurisdiction of the Governor.
(1) It must be remembered that those who have committed any fraudulent act can be prosecuted for this crime, that is to say, if there is no other of which they can be accused, for what in private law gives rise to an action for fraud is the basis for a criminal prosecution in an accusation of Stellionatus. Hence, whenever where the offence lacks a name, we designate it Stellionatus. Especially, however, does this apply to anyone who exchanges or gives property in payment through deceit, where the property has been encumbered to another, and he conceals the fact; for all instances of this kind include stellionatus. And, where anyone has substituted some article for another; or has put aside goods which he was obliged to deliver, or has spoiled them, he is also liable for this offence. Likewise, if anyone has been guilty of imposture, or has been in collusion to bring about the death of another, he can be prosecuted for Stellionatus. And, generally speaking, I should say that where the name of any crime is wanting, an accusation for this offence can be brought, but it is not necessary to enumerate the different instances.
(2) No punishment, however, is legally prescribed for Stellionatus, since, under the law, it is not a crime. It is, however, customary for it to be punished arbitrarily, provided that, in the case of plebeians, the penalty inflicted is not more severe than that of condemnation to the mines. But, in the case of those who occupy a higher position, the sentence of temporary exile, or expulsion from their order should be imposed.
(3) Anyone who has fraudulently concealed merchandise can be specially prosecuted for this crime.
4. Modestinus, On Punishments, Book III.
When anyone swears in a written instrument that property pledged belongs to him, thereby committing perjury, it becomes Stellionatus, and therefore the culprit should be sent into temporary exile.
Tit. 21. Concerning the removal of boundaries.
1. Modestinus, Rules, Book VIII.
The penalty for the removal of boundaries is not a pecuniary fine, but should be regulated according to the social position of the guilty parties.
2. Callistratus, On Judicial Inquiries, Book III.
The Divine Hadrian stated the following in a Rescript. There can be no doubt that those who remove monuments placed to establish boundaries are guilty of a very wicked act. In fixing the penalty, however, its degree should be determined by the rank and intention of the individual who perpetrated the crime, for if persons of eminent rank are convicted, there is no doubt that they committed the act for the purpose of obtaining the land of others, and they can be relegated for a certain time, dependent upon their age; that is to say, if the accused is very young, he should be exiled for a longer time; if he is old, for a shorter time. Where others have transacted their business, and have furnished their services, they shall be chastised and sentenced to hard labor on the public works for two years. If, however, they removed the monuments through ignorance, or accidentally, it will be sufficient to have them whipped.
3. The Same, On Judicial Inquiries, Book V.
A pecuniary penalty was established by the agrarian law which Gaius Caesar enacted against those who fraudulently removed monuments beyond their proper place, and the boundaries of their land; for it directed that they should pay to the Public Treasury fifty aurei for every boundary mark which they took out or removed, and that an action should be granted to anyone who desired to bring it.
(1) By another agrarian law, introduced by the Divine Nerva, it is provided that if a male or female slave, without the knowledge of his or her master, commits this offence with malicious intent, he or she shall be punished with death, unless his or her master or mistress prefers to pay the fine.
(2) Those, also, who change the appearance of the place in order to render the location of the boundaries obscure, as by making a shrub out of a tree; or plowed land out of a forest; or who do anything else of this kind, shall be punished in accordance with their character and their rank, and the violence with which their acts were committed.
Tit. 22. Concerning associations and corporations.
1. Marcianus, Institutes, Book III.
By the Decrees of the Emperors, the Governors of provinces are directed to forbid the organization of corporate associations, and not even to permit soldiers to form them in camps. The more indigent soldiers, however, are allowed to put their pay every month into a common fund, provided they assemble only once during that time, for fear that under a pretext of this kind they may organize an unlawful society, which the Divine Severus stated in a Rescript should not be tolerated, not only at Rome, but also in Italy and in the provinces.
(1) To assemble for religious purposes is, however, not forbidden if, by doing so, no act is committed against the Decree of the Senate by which unlawful societies are prohibited.
(2) It is not legal to join more than one association authorized by law, as has been decided by the Divine Brothers. If anyone should become a member of two associations, it is provided by a rescript that he must select the one to which he prefers to belong, and he shall receive from the body from which he withdraws whatever he may be entitled to out of the property held in common.
2. Ulpianus, On the Duties of Proconsul, Book VII.
Anyone who becomes a member of an unlawful association is liable to the same penalty to which those are subject who have been convicted of having seized public places or temples by means of armed men.
3. Marcianus, Public Prosecutions, Book II.
If associations are illegal, they will be dissolved by the terms of Imperial Mandates and Constitutions, and Decrees of the Senate. When they are dissolved, the members are permitted to divide among themselves the money or property owned in common, if there is any of this kind.
(1) In a word, unless an association or any body of this description assembles with the authority of the Decree of the Senate, or of the Emperor, this assembly is contrary to the provisions of the Decree of the Senate and the Imperial Mandates and Constitutions.
(2) It is also lawful for slaves to be admitted into associations of indigent persons, with the consent of their masters; and those who have charge of such societies are hereby notified that they cannot receive a slave into an association of indigent persons without the knowledge or consent of his master, and if they do, that they will be liable to a penalty of a hundred aurei for every slave admitted.
4. Gaius, On the Law of the Twelve Tables, Book IV.
Members are those who belong to the same association which the Greeks call hetaireian. They are legally authorized to make whatever contracts they may desire with one another, provided they do nothing in violation of the public law.
The enactment appears to have been taken from that of Solon, which is as follows: "If the people, or brothers, or those who are associated together for the purpose of sacrifice, or sailors, or those who are buried in the same tomb, or members of the same society who generally live together, should have entered, or do enter into any contract with one another, whatever they agree upon shall stand, if the public laws do not forbid it."
Tit. 23. Concerning popular actions.
1. Paulus, On the Edict, Book VIII.
We call that a popular action which protects the rights of the party who brings it, as well as those of the people.
2. The Same, On the Edict, Book I.
Where several persons bring a popular action at the same time, the Praetor shall select the most suitable one of them.
3. Ulpianus, On the Edict, Book I.
If suit is brought several times for the same cause, when the same act is involved, the ordinary exception of res judicata can be pleaded.
(1) In popular actions, the party in interest is given the preference.
4. Paulus, On the Edict, Book III.
A popular action is granted to a person whose rights are unimpaired, that is to say, to one who can bring suit under the Edict.
5. The Same, On the Edict, Book VIII.
Where anyone is sued in a popular action, he can appoint an attorney to defend him, but he who brings the suit cannot appoint one.
6. Ulpianus, On the Edict, Book XXV.
Popular actions are not granted to women and minors, unless they are interested in the matter.
7. Paulus, On the Edict, Book XLI.
Popular actions do not pass to him to whom an estate has been restored under the Trebellian Decree of the Senate.
(1) The person entitled to bring these actions is not considered to be pecuniarily benefited on this account.
8. Ulpianus, On the Edict, Book I.
All popular actions are not granted against heirs, nor is the right to bring them extended beyond the term of a year.